Wednesday 6 December 2017
Arrangement of Business
My Lords, if there is a Division in the Chamber, the Committee will adjourn for 10 minutes.
Small Business Commissioner (Scope and Scheme) Regulations 2017
Considered in Grand Committee
My Lords, the purpose of the statutory instrument before us today is to establish further detail about the Small Business Commissioner’s complaints scheme, as well as which small businesses qualify to use the complaints service.
Late payment remains a significant issue in the United Kingdom. According to data on business population estimates published by my department in October 2016, 99.3% of the 5.5 million private sector businesses were small businesses and 99.9% were small or medium-sized businesses.
Latest BACS Direct Credit figures report that the overall level of late-payment debt owed to small and medium-sized businesses stands at £14.2 billion. This is completely unacceptable for the small and medium business sector in the UK, which we all rely on for jobs, goods and services. There is no place for this sort of unfair payment culture in a well-functioning economy.
Provisions in the Enterprise Act 2016 established the Small Business Commissioner. I take this opportunity to welcome Mr Paul Uppal into the role as the United Kingdom’s first Small Business Commissioner, following the announcement of his appointment by my right honourable friend in another place the Secretary of State, Greg Clark, on 2 October this year.
Mr Uppal’s role will be crucial in supporting small businesses to resolve payment disputes with larger businesses and will help drive a culture change in payment practices and how businesses deal with each other. The commissioner will provide general advice and information to small businesses, delivered through the commissioner’s website, signposting businesses to existing support and dispute resolution services.
The website has been specifically developed so it is fit for purpose. My department has received positive feedback that it meets an information and service need currently not met. I can report that development work on the website was completed yesterday and the website will be launched alongside the rest of the Small Business Commissioner’s service before the end of this calendar year, subject to the proceedings before us today. Since the debate in another place on 21 November, the Small Business Commissioner and his team have also begun their programme of stakeholder engagement and have begun recruiting additional staff who will provide support on complaints casework.
The commissioner will be able to consider complaints from small business suppliers about payment issues with their larger business clients and make relevant recommendations. We are aware that small businesses may refrain from making a payment-issue complaint about a larger business for fear of it being detrimental to their relationship—for example, resulting in a threat to terminate their contract or similar bully-boy tactics. The regulations therefore ensure that the commissioner is not required to name the complainant to the respondent. They also allow the commissioner to disapply the condition that the small business making the complaint must talk to the larger business about the complaint before coming to the commissioner, where the commissioner considers that to do so would have a significant detrimental effect on the commercial interests of the small business making the complaint. The Act makes it clear that, in any report on complaints, the commissioner cannot name the complainant unless the complainant agrees to being named.
The commissioner can accept and consider complaints that relate to matters which occurred in the period between 6 April 2017 and the formal launch of the complaints service, as well as those relating to matters occurring after the launch date. This broadens access to the complaints service and will help the Small Business Commissioner gain impetus as soon as the office is officially open for business. The complaints service will launch as soon as possible following Parliament’s approval of these regulations, as has already happened in another place.
The Enterprise Act 2016 sets out the broad framework for the Small Business Commissioner. These measures apply to the whole United Kingdom. These regulations provide further detail about what a small business is for the purposes of qualifying for the commissioner’s services, including the complaints service. The regulations also provide further detail about the complaints scheme itself.
The regulations set out that a business must have a headcount of fewer than 50 staff on one of the assessment dates or during one of the assessment periods to qualify to use the commissioner’s services. They also set out the requirements that must be met before presenting a complaint; the requirements as to the form and content of the complaint; and the time limit for presenting a complaint, and the power of the commissioner to fix and extend time limits and to dismiss complaints. They also set out the matters that the commissioner must take into consideration when determining whether an act or an omission complained about was fair and reasonable, and the factors to be taken into account when deciding whether to identify a respondent in any report of any complaint.
My department consulted on how the Small Business Commissioner would handle complaints between 13 October 2016 and 7 December 2016, and published draft regulations in February this year. We understand that the key message from respondents to the consultation was that the regulations should be simple so that the Small Business Commissioner’s services are as efficient and effective as possible.
The regulations before us will enable the Small Business Commissioner to accept complaints on payment matters from small business suppliers about their larger clients. This is an important part of the Small Business Commissioner’s role in supporting small business. I commend these regulations to the Committee and I beg to move.
My Lords, I thank the Minister for his pithy introduction. The regulations surely have to be welcomed. It must be good news to many thousands of SMEs. I refer to the register of interests: I am president of Flintshire Business Week and Deeside Business Forum, which sits across the England/Wales border and has some 9,000 jobs. It is based at Deeside Industrial Park, which has 260 companies at least, most of which are SMEs. There is considerable interest from companies such as these in the regulations. Do we yet have a commissioner’s name in mind? Who shall choose? Shall it be salaried? What salary might it be?
I refer to my entry in the register of interests, including my chairmanship of Red Tractor, which helps British branding, including some small businesses, to have their food assured and to sell it into the market.
There was a flurry in the Printed Paper Office this afternoon as some of us sought papers on the Small Business Commissioner. Eventually, we discovered papers entitled “Enterprise”. Of course, small business and enterprise go hand-in-hand. I share a passion for both, as noble Lords may know. It was fantastic to be involved in the passing of the parent legislation for these regulations. I welcome Mr Paul Uppal to his job—I believe he is the new Small Business Commissioner. Perhaps the Minister could kindly tell us a bit about him and why the Secretary of State has appointed him to this vital job for small business. I commend the role of the Federation of Small Businesses in ensuring that the Small Business Commissioner not only is now on the statute book but will be up and running once these regulations have been passed.
While regretting the length of the regulations—although obviously I support them strongly, brevity and simplicity are the most important features of law-making—I am sure that the Minister will keep the regulations and the rules and operation of this important new office under review so that we can ensure that it delivers better payment terms for small businesses in the way we all hope it will.
My Lords, I welcome these regulations because they go to show that persistence works. So many people have been asking for something like this for a long time, including myself, and now it has arrived. Considering the amounts of money that will be in dispute, are we going to be able to manage all the work on the kind of funding that will be allocated to the Small Business Commissioner?
My Lords, I too welcome these regulations and the start of this operation. I also welcome Paul Uppal to his job and wish him the best of good fortune in carrying it out. As my noble friend Lady Neville-Rolfe said, the application of these regulations goes for quite a few pages, so I hope that the website will be a good deal clearer and shorter so that small businesses can understand them.
Prompt payment or the lack of it has been a stubborn problem over many years and successive Governments. All sorts of things have been done in the past to try to improve the situation, and this is one more. I hope that it works successfully. I hope also that the website will point out that these regulations concern only small businesses not being paid by larger businesses. There is a separate operation known as the Small Business Crown Representative whose job it is to make sure that small businesses are paid by government departments and agencies. I think that the website should cross-reference this point because, as we know from the past, these agencies can sometimes be a problem.
Lastly, I hope that the Explanatory Memorandum is wrong in one respect. It states on page 3:
“There is no impact on business”.
I hope that that is a sort of technical way of explaining that the actual laying down of the details will not have an impact, but that the new role will have a considerable impact on small businesses and indeed on charities and voluntary bodies, which are also covered.
My Lords, I am absolutely crestfallen that the noble Lord, Lord Cope, has found the thing that I was going to start my contribution with, which is the phrase in the notes that the regulations will not affect business. My fear is that this is not a statutory instrument that will do the job in the way we hope it will. I want to preface my remarks by saying how nice it is to see the noble Baroness, Lady Neville-Rolfe, in her place. During the passage of the relevant provisions for the Small Business Commissioner in the Bill, she said at one point that she might even consider the role herself. I am pleased that she is still in this House campaigning on many issues, and I have to say that she has been saved by the appointment of an excellent candidate. I welcome Paul Uppal to his role as the Small Business Commissioner. He will make an excellent commissioner because he has great attributes for the role, given his background and approach. I congratulate the Government on securing such a person.
My only fear is that this statutory instrument is an illustration of why the Government are humbling the role before it has a chance of success. No matter what the quality of the person, I see tremendous difficulties ahead in being able to make any meaningful change. Yet again we have gone for a system where we have decided to invent a wheel that has four sides. My concern is that this does not work in any established model or precedent. It does not have any behavioural testing or pilots to demonstrate that it can achieve any of the outcomes. I will go through some of the policy issues and then through the statutory instrument.
First, I was really impressed with the department for its policy background in the Explanatory Notes because this is a huge exercise. The department is to be given huge credit for finding the lowest possible estimation of late-payment debt available in this country. It is certainly true that the BACS survey has far and away the lowest estimates of it for small businesses, by saying that it is just over £14 billion. In fact the average of all the surveys which I found was the Zurich survey, which had £44 billion for SMEs. Why have the Government therefore chosen the veracity of the BACS report? Would the Minister like to tell me, for example, the survey size of that report? I happen to know the answer but I would be keen to hear it from him. Of all the 14 available surveys that I found of late payments, none had a figure as absurd as that. Where does the survey fit in on a sample size—is it at the top, the middle or the end? Can he also tell me for how many years BACS has conducted a survey and what was the methodological change this year to have come out with such a figure? Seeing this figure alone, my concern is that I do not feel that the Government are taking this problem seriously. This will also affect the estimates to come thereafter of what the Government think will be necessary to do this.
Secondly, yet again, I understand the Government’s desperate desire not to do too much and to believe that cultural change, in and of itself, will make a huge difference. I know they will say that the Prompt Payment Code is causing all sorts of wonderful cultural changes that are making a huge difference. We may have that code but I would like to ask a few questions. Can the Minister give me any evidential base whatever to suggest that the Prompt Payment Code has made any change, apart from a Minister who I have found saying, “I’ve spoken to some people and they say they like it”? Can he give me anything with any independent foundation for doing it? Can he demonstrate any example, among the many identified in government reports or in the press, where a company that is a problem late payer and a member of the Prompt Payment Code has been disciplined, chucked out or taken to task for anything that it has done? It is a pretty hard case to make but I would be interested to hear his reflections on that.
It is a shame that the public sector is not included in this provision. I understand that there is a different commissioner and that the argument has always been that because there are definable terms of 30 days, it is not necessary because there is a different mechanism. But I think the overall success of the Small Business Commissioner will be through its ability to get underneath the issues that lie behind problems of late payments. That includes issues around the public sector and its suppliers, where there is a supply chain. It should be able to make the right sort of assessments of that sector. Taking the sector away humbles the Small Business Commissioner’s capacity to take an overall view of late payments. Those are all significant concerns.
I return to the issue about size because it is relevant. I think it is anticipated that the Small Business Commissioner will have establishment costs of £1.1 million and is meant to have a running cost of £1.4 million. I would be grateful to have a breakdown of the staff who comprise that £1.4 million and therefore how many hours of investigative time we think we will have. I also understand that the Government—on the basis of an utterly ridiculous figure of £14.4 billion, but that is another matter—say that the estimate is that 70,000 companies will be referring just under 400,000 disputes, of which 500 will result in full-blown complaints. While I am tempted to ask the Minister what percentage of the overall disputes will therefore result in a full-blown complaint, I can tell him for the benefit of time that it is 0.125%. Can he explain how the Government match that level of complaint to the staffing and what they are required to carry out through the statutory instrument? I have tried on the back of an envelope—in fact, multiple envelopes because it took so long to do the maths—to see how you can spend the amount of money involved in the establishment of it and end up with that number, and I just cannot do it. I would be very grateful if the Minister, on the basis of the bogus number, will tell us how this is meant to operate, how much time is allocated to each dispute, and how that will work. That would be very helpful indeed.
Unfortunately, I have some other issues with the actual drafting of the statutory instrument. I agree with the noble Baroness, Lady Neville-Rolfe, that brevity and simplicity are wonderful. There is nothing like brevity and simplicity and this statutory instrument is nothing like brevity and simplicity. I am tempted to say that I worry when a Government overregulate. This is an example of overregulation, when better regulation would be much more judicious.
The biggest problem I have with the statutory instrument is that fundamentally it regulates the size, not the activity. I talked this through with a lawyer and said, “If I am a big company, how do I change this? I just move the dispute that I have to a small company and I am no longer on the hook for it”. The ability to drive a coach and horses through this and to avoid any form of dispute or mediation or any cost by changing the structure or who holds the debt or who holds the activity is easy within these terms. Which lawyers reviewed this? Which scenarios did they plan for? Did they understand the opportunity to game it? This is important. As we have seen with the application of the role of the Pubs Code Adjudicator, a coach and horses has been driven through that one and absolutely nothing has happened. I would rather the Government were realistic at the very beginning about what was likely to happen.
As we all know, there is always the law of unintended consequences in these matters. In relation to the size, does the Minister think there will be any unintended consequences of setting a number? Will that exclude certain disputes that should be part of it? Should there be provision for the Small Business Commissioner to be able to apply discretion in certain circumstances, rather than it being as prescriptive as it is?
Then we move to the issue in Regulation 3, which is titled, “Requirements before presenting a complaint to the Commissioner”. It says that in order to pursue a complaint,
“the person making the complaint must … communicate the substance of the complaint to the person against whom the complaint is made; and … give that person a reasonable opportunity to deal with it”.
The definition of “a reasonable opportunity” is quite difficult. In truth, it is a payment that is late. We say that we have a condition for late payment, rather similar to that in the public sector, of days on which you can apply interest, and we then specify a reasonable opportunity to deal with it. If it is late, it is late. Again, we have created a huge opportunity for a sense in which a complaint can now be a reasonable complaint and you can probably delay to the average number of days. Whether you believe the bogus BACS survey which said it was 72 days, I think, or the other average that most others identify, which is 90 days, you can still extend much further on the basis of what is a definably reasonable opportunity to deal with it.
Then we have the wonderful paragraph (2). This is always the issue. The Minister correctly identified the problem of a company which may face adverse commercial consequences from raising the issue. It says here:
“The specified circumstances are where the Commissioner considers for this particular complaint, there is sufficient information to suggest that communicating it to the person against whom it is made would have a significant detrimental effect on the commercial interests of the person making it”.
Will the Minister please define for me in detail what this “sufficient information to suggest” is? I think that is a remarkable thing to put down and, again, it fetters the Small Business Commissioner’s scope.
I could go on but I will cut out a few comments because the point is being made. I could go on about the time limit for presenting a complaint. For example, when you are dealing with a company such as Amazon, which many of our small businesses do, it has a procedure which takes a year in the first place. Are we out of scope from the time you make a complaint to when it is defined? Again, it fetters the Small Business Commissioner in a much more serious way. In particular, Regulation 5(4) says:
“Where the complaint or part of the complaint is not made within the time limit set out in paragraph (1), the Commissioner must not entertain the complaint”.
By the way, in this context I am absolutely shocked to see—having had many a debate with the noble Baroness, Lady Neville-Rolfe, on this matter, with huge arguments over “may” or “must”—the remarkable number of times “must” appears in relation to the Small Business Commissioner. Again, he,
“must not entertain the complaint”.
That is also a huge mistake.
On the power of the commissioner to fix time limits, again, we have here perhaps the best powers given to the Small Business Commissioner, which are discretionary. I would like to see an awful lot more of those. On the power of the commissioner to dismiss a complaint, again a charter is given for people to be able to suggest that the complaint can be reasonably dismissed, and there are now eight headings that qualify the decision of the Small Business Commissioner on whether to dismiss a complaint. I spent time with my lawyer, and as a big company you could pull a case together on pretty much half of these anyway, on almost any circumstance. Therefore the Government have now given an ability to argue the case and to create a legal obstacle for the Small Business Commissioner to take up the issue in the first place.
These are huge mistakes. I could go on about the notifications and how overly problematic they are. My basic point is that we will have to pass these things—that is the natural course of things in this place—because we need the Small Business Commissioner up and running. But they are deeply flawed, as they were from the time we tried to raise these issues during the passage of the Act up to now, when they are being put forward in a statutory instrument. The only assurance we can get, apart from some reasonable answers to not unreasonable questions, is on what the mechanisms will be to review it early—not late, as we faced with the Pubs Code Adjudicator, where problems are now faced because we have a restrictive three years for review—more seriously, quickly and appropriately, to ensure that we can adjust the scope and role of the Small Business Commissioner to adequately deal with these issues. I hope that that may mean that there is a new role for the noble Baroness, Lady Neville-Rolfe.
The noble Lord throws a bit of a dampener on the proceedings, which were going quite well before that stage. I will comment on what other noble Lords had to say before I deal with some of his complaints. I am not sure that I will deal with all of them; I will probably write to him in greater detail afterwards. Since he accepted that these regulations will go through, that the Small Business Commissioner has a role and that we have to get him on the move, the sooner we can do that, the better. I will go back to those noble Lords who at least welcomed the regulations—I think he did, but he then took them to pieces and, as I said, threw something of a dampener on the proceedings.
I will start off with the noble Lord’s friend, the noble Lord, Lord Jones, who, as I said, was much politer and kinder about the regulations. I am grateful for that, and I give him an assurance that we have now appointed Mr Paul Uppal—the announcement was made a few days ago—who is a former Member of another place. The post was advertised in the usual way and will be salaried. I am afraid that if my noble friend Lady Neville-Rolfe was looking to get that job, she will have to wait a little while before it is vacant again. As I said, it was advertised in the usual way. I cannot specify exactly why he was chosen as opposed to any others, as that would be invidious and not right, but he was selected after due process and we are grateful to him.
My noble friend Lady Neville-Rolfe also regrets the length of this regulation; it is always difficult to get these matters right. On many other occasions I have moved that various orders be agreed and people have complained that there is not the detail in them. Unfortunately, the point behind regulations of this sort is that one can get into the details that one cannot get in the parent legislation. My noble friend is aware of the parent legislation; she took it through this House, and the noble Lord, Lord Mendelsohn, dealt with it from the Opposition Benches. They know full well that it is not right and proper to get that sort of detail into the original primary legislation, and the point behind these regulations is to get the detail in. I hope that we normally get it about right, but my noble friend Lord Cope teased me over the fact that the Explanatory Memorandum—which I stress is not, I think, part of the regulations, although I can never quite remember what its status is—states that the regulations will have no effect on business. We would obviously all like to make sure that it has an effect on business—and a beneficial effect.
I turn to the comments of the noble Baroness, Lady Golding. I am grateful for her welcome, but one cannot think of passing the Enterprise Act and creating a commissioner as a magic wand that will solve all problems. This is also the general remark I would make to the noble Lord, Lord Mendelsohn, in relation to his various comments, one or two of which I will deal with in greater detail. I can think of very few occasions when legislation can solve problems overnight. There was one Bill with which I had some involvement, the Scrap Metal Dealers Bill, which did quite a lot of what it was targeted to do in the area of metal theft.
In the main, legislation can only do so much. We hope that the Enterprise Act and these regulations will make a big difference. As with so many of these things, however, it is a matter of changing people’s behaviour and the culture of the bigger businesses so that they realise what damage they are doing to others. Legislation can do a certain amount and we have provided the appropriate resources for the commissioner; at least, I think they are appropriate. The figures I have—I think these are the figures that the noble Lord, Lord Mendelsohn, asked to be confirmed—are that the set-up costs are in the order of £1 million and the annual running costs will be roughly £1.4 million, most of that going on staff costs. These must be guesses but it is estimated that there may be 390,000 enquiries and 500 complaints. We think that is adequate for the commissioner at the moment but there is scope for the Secretary of State to increase the resources available to the commissioner if appropriate. He will obviously take advice from the commissioner about what he does and try to make sure he gets it right.
I make one more remark on the commissioner and the work he has already done. My noble friend Lord Cope commented on the website, suggesting that it was not clear enough and should do more, including cross-referencing with other bodies. I am sure that the commissioner will be grateful for my noble friend’s suggestion and that it will be looked at in due course. It is always difficult to get your website exactly right; some are better than others. One can take advice, and I am sure that the advice of my noble friends will be listened to by the commissioner in due course.
Before my noble friend sits down, I reiterate that I very much support the regulations. I also asked, I think, what arrangements there were for review, because this is a new commissioner. I expect that the department has some standard review provision for looking at how it works, and I am interested in that.
I can give my noble friend an assurance that I was not about to sit down—unless others are desperate to get on to the other instruments—because I still had a certain amount to deal with from the noble Lord, Lord Mendelsohn, who would probably be upset if I left him at this early stage. I can, however, assure my noble friend that we will keep this under review. As I made clear, we are thinking of about £1.4 million as the budget being given to the commissioner for the annual running costs. My right honourable friend can keep that, and the size of it, under review. It is not just about money but about how they are getting on. The department will continue to keep these matters under review.
The noble Lord, Lord Mendelsohn, started off his throwing-a-dampener-on-it speech by questioning why we would use the BACS survey and saying that we should have used another survey that gave a higher figure. I will not go into details about which survey will be the best and which had the largest number of people involved in it to get the right figure. I do not know whether there is necessarily a right figure. All we can agree on is that £14.2 billion is a very high figure. The figures that the noble Lord quoted from other surveys are equally high and worrying. The important point is that something ought to be done to assist small businesses to ensure they do this properly. It is clear that the Government are taking this issue seriously from the fact that we sought parliamentary approval for the Enterprise Act and that, under that Act, we are now doing various things, of which the Small Business Commissioner and his staff are one small part. I do not think the noble Lord can accuse the Government of not taking this seriously. The important point is: we have put some resources in; we have appointed a good person to be that commissioner; and he will continue to pursue the appropriate measures available to him.
The noble Lord made the usual complaints people do about the drafting. He said it was too detailed and then that there was not enough—I was rather lost on that. The drafting went through the usual process. We consulted on it as we should. Generally, other than from the noble Lord, we have had a fairly favourable response to the drafting. I am sorry if he finds it overly legalistic. That is just the way things are drafted.
The noble Lord then asked me a rather extraordinary question: what are the unintended consequences of these regulations? If I knew what any unintended consequences were and that they would be detrimental to one or other person, or to the small business sector as a whole, I would not be moving them. I am afraid the noble Lord will have to accept that I do not have the wisdom of prophecy that he seems to think Ministers should have. I will try to improve. If I knew what the unintended consequences were, I would do something about them. We feel that the regulations will have a good effect and be one small step in helping small businesses. They will try to improve their lot and cut down the very large figure of £14.2 billion, or whatever larger figure the noble Lord would like to have.
Turning to another matter that I suppose is faintly relevant to what we are dealing with, the noble Lord asked about the evidence of the impact of the Prompt Payment Code. I can tell him that we actively monitor and enforce it. It has been successful in assisting business to recover debt, but also in highlighting best practice. That again is important as part of the necessity for the change of culture.
I appreciate that the noble Lord had other questions and that he would like further details on why we wanted BACS—
I will now try to give the Minister some sense of why I invested in him the powers of prophecy, as well as suggesting that rather than my being a complete dampener on this, he should look to scale the heights to deal with this issue. My question about unintended consequences comes down to this simple point. If there are 500 cases, you are talking about dealing with £35 million-worth of disputes, tops. Does he believe that the figure is £14.2 billion? The sample size was 304, which is below the statistical level on which we are meant to judge any survey with any certainty; in any serious form, no one would ever consider anything under 500. This is good enough for a press release, but why the Government suddenly believe that it is worth putting in a policy framework is another matter. From surveys that are robust, £44 billion is the SME number. Does he think that trying to tackle disputes relating to £35 million is sufficient to create cultural change? The unintended consequence of this statutory instrument is that late payments will get higher if you do not have the resource to challenge the right level and number of disputes. When I said “unintended consequence” it was all about that.
With his hand on his heart, is the Minister able to say that he feels that this statutory instrument has sufficient scale to make a meaningful difference in culture or any other practice? That is the key.
Genuinely, hand on my heart, in every possible way I honestly think this will make a difference. Changing that culture is the most important part of what we need to do. A commissioner himself can by his actions do a certain amount, by dealing with those 500 complaints a year, or however many there are; as I said, that is just an estimate, and we can increase resources if we need more. However, it is the existence of a commissioner—of the website and everything else —that can make the biggest change. That is why I gave assurances to my noble friend Lord Cope about getting the website and the advice right, which is so important.
Hand on heart, I believe that we can make a difference. I hope that that will be the case and that, in a year’s time—perhaps privately outside somewhere, or in debate on some other matter—the noble Lord, Lord Mendelsohn, will be kind enough to join his noble friends and say how well we are doing on this. We occasionally get praise from him, and I look forward to that. An unintended consequence of this debate would be his coming back to me with a degree of thanks.
Unified Patent Court (Immunities and Privileges) Order 2017
Considered in Grand Committee
My Lords, the draft order was laid before the House on 26 June. It confers legal status on the Unified Patent Court, as well as providing a limited set of privileges and immunities to the court, its judges and its staff. They are necessary to ensure the effective and proper functioning of the court, and were agreed in the international agreement establishing the Unified Patent Court and its Protocol on Privileges and Immunities.
In its current form, the patent system across Europe is fragmented and expensive. Businesses must maintain a bundle of patent rights, each covering a single country. They must also enforce each patent separately in the national courts of each country. That is costly and burdensome. The Unified Patent Court will offer a way for innovative businesses to enforce or challenge patents in up to 26 European countries with a single court action. That ability to obtain a single judgment is potentially significant and valuable for patent-intensive industries. For example, independent research shows that around a quarter of all patent cases heard in United Kingdom courts were also litigated in other European jurisdictions between the same parties. That is why a single Unified Patent Court is so welcome.
Even better, an important division of the court dealing with disputes in the field of pharmaceuticals and the life sciences will be based here in the United Kingdom. This cements the United Kingdom’s global reputation as a place to resolve commercial legal disputes and reflects this country’s strong role in this important field. It will also generate considerable work for, and help to enhance the global competitiveness of, the United Kingdom legal services sector.
British businesses will still be able to choose national patents and litigation in national courts should they wish, but they will now have the option to use this new court structure, with all the benefits I have described. Being part of this international court will allow us to ensure that it meets the needs of our own innovative businesses, which will be able to use it in the other contracting states. That is why the Government are carrying out their commitment to proceed with preparations to ratify the international agreement that sets up the Unified Patent Court. That commitment should not be seen as pre-empting the negotiations on leaving the EU. Although the UPC is not an EU institution, our future relationship with the UPC will be the subject of negotiations as we leave the EU. Our efforts will be focused on getting the best deal possible.
The Unified Patent Court was established by an international agreement which the United Kingdom signed on 19 February 2013. The Protocol on Privileges and Immunities was adopted in June 2016 and the UK signed it on 15 December 2016. A preparatory committee of the signatory countries to the UPC agreement was established in 2013 and is nearing completion of the work needed to bring the court into operation. The main steps towards UK ratification have already been completed. The changes to our patent law to implement the UPC agreement were made by an affirmative order which was approved by both Houses in 2016.
The draft order is part of the UK’s ratification process. It confers legal capacity on the Unified Patent Court and gives effect to the Protocol on Privileges and Immunities. The draft order provides for immunity from legal process for the court—with some exceptions—and its judges, registrar and deputy registrar. This immunity is also provided for the representatives and staff of the court, but is restricted to the exercise of their official functions. This immunity can be waived by the UPC. The judges and staff of the court will be exempt from national taxation on their salaries and from national insurance once the court applies its own equivalent tax and puts in place its own social security and health system. However, neither exemption will apply to court staff who are British nationals or permanent UK residents. Finally, the draft order provides that the court is exempt from direct taxation in relation to its official activities, as is the case for other international organisations based here, such as the International Maritime Organization.
The draft order applies to the whole of the United Kingdom but some provisions do not extend to or apply in Scotland. Articles 1(3) and 1(4) clarify which provisions do not apply there. A separate order was passed in the Scottish Parliament in October this year which dealt with provisions within its legislative competence.
The draft order confers only those privileges and immunities on the new court, its judges and staff that are necessary for the organisation to conduct effectively its official activities. They are in line with those offered to officers in other international organisations of which the United Kingdom is already a member. Innovative businesses have waited for more than 40 years for a patent system that helps them protect their inventions across Europe in a streamlined and cost-effective way. Moreover, the Government’s industrial strategy emphasises our commitment to fostering innovative businesses. The Unified Patent Court will be integral in achieving that goal. The draft order will enable the Government to be in a position to ratify the UPC agreement and make the court a reality. I commend the draft order to the Committee.
I stand here as a part of history. When I was Minister for Intellectual Property, we went to the European Community to try to get it to understand that the Chinese and Americans could have patents overnight but we were still, after 40 years, having to translate over and again the members of the European Community at that time. We worked very hard during that time. I thought we had eventually got there but it sort of floundered for a while. I am delighted to see it written down that we are going to ratify the Unified Patent Court.
Intellectual property is very important for us. It is an area in which we are recognised worldwide as doing the right thing. We have allowed the French, the Germans and the rest of them to choose which bits they would like to have a go at. At the end of the day we have come up with something that works very well. Given that we are working so hard on Brexit—I work on the European Union Select Committee, which is looking at all the Brexit paperwork—it is important that we are actually seeing something coming through. It is nice and clear, we can all hear it; we are all going to do it. This is one thing that is not going to cause us any difficulty over the next few months.
I congratulate my noble friend Lady Wilcox on her contribution to intellectual property. I was honoured to succeed her in an area where Britain is very strong. Obviously, that was a delight. I was intimately involved in the Unified Patent Court discussions in both Brussels and Luxembourg last year—after, as has been said, many, many years of discussion on its establishment and its location here in London, and the other centres. I want simply to welcome it and to congratulate the Minister and the Intellectual Property Office, which is headquartered in Newport. I wish them well in finding a sensible deal for patents in the Brexit negotiations. I have one point of clarification, which I think the Minister touched on: when does the patent court in London actually open its doors?
My Lords, the Minister will be grateful to know that the shadow cast upon the previous debate does not extend this far. I will be a ray of sunlight in his life and he will emerge, if not hopping and skipping, possibly with a little spring in his step at the pleasure we express and the way in which this piece of legislation is coming forward.
In passing, it was unfortunate that the Minister caught what appeared to be a full blast from both barrels from my noble friend. He should have seen him in the earlier stages of that Bill, when the hapless victim was the noble Baroness, Lady Neville-Rolfe. The full wrath that my noble friend Lord Mendelsohn could express at the whole approach that the Government were daring to take to this important area was expressed in many amendments that we had to discuss. The Minister got off lightly; he may not feel that. We certainly look forward to his letter when it comes.
I am going to say absolutely nothing about the substance of the statutory instrument because we agree with it and are happy for it to go through. It shines a light on the way some people manage to live their lives—in tax-free environments, free of all exemptions and penalties; some people have all the luck—but nevertheless that is the way it is done. I am glad that it is coming forward.
Like the noble Baroness, Lady Neville-Rolfe, whose work on this I salute—as well as that of the noble Baroness, Lady Wilcox, who preceded her—I am interested to learn a little more about what is actually happening on the ground. There are rumours of premises having been secured and buildings having nameplates attached to them, and so on. It would be nice to know what exactly is going to happen and what the timing is, if it is possible for the Minister to tell us.
The other thing that might be interesting to find out is whether there is yet any feel for whether there will be a sufficient caseload to warrant other centres being opened. During the passage of the original Bill we talked about the possibility that the Court of Session’s responsibility for patent determinations in Scotland might be echoed by having a similar court based there, if there was sufficient casework, because there is expertise and knowledge in Edinburgh in this area, and it would be sad if those were not able to be expressed. But these are matters that the Minister may not yet have the detail on and I am happy to have that at a later stage.
As I said, I am a ray of sunlight. We support this statutory instrument.
I am not sure that I will necessarily be able to help the noble Lord; I might have to write to him. I am grateful for that ray of sunlight on this issue, even though he took a slightly “It’s all right for some” attitude to the idea that some of those lawyers and others involved with the courts would not pay UK taxes. However, it is always open to him to requalify at this stage in his life and seek to become one of the judges working in that court. I understand that they think that there might be up to six part-time judges there; that is all I can say. I say to my noble friend Lady Neville-Rolfe that I do not know where the court will be and when the doors will open. But again, if there is further information, I will let them know in due course.
There is one further process after the order leaves here, which is that this matter has to go to the Privy Council. I think it has missed the next meeting, so it might not be until the new year. At that point, we will have a better idea as to when, as I said, the doors will open and where it will be. If I have any further knowledge about what the caseload is likely to be, I will write both to my noble friend and to the noble Lord.
I am grateful also to have the support of both my distinguished former colleagues in this role, both of whom dealt with intellectual property when they were in that department. I am obviously not considered bright enough to do that, and they have taken that bit away from me. For all I know, it might be a gender issue—one of those things that mere men cannot do. I simply do not know. However, both my noble friends brought great distinction to that office, I am grateful for what they did, and I thank them—in particular for their warm welcome for this order.
Designs (International Registration of Industrial Designs) Order 2017
Considered in Grand Committee
My Lords, this order modifies the Registered Designs Act 1949 and the Registered Designs Rules 2006, and is an essential step in the United Kingdom’s ratification of the Geneva Act of the Hague Agreement for registration of industrial designs.
The Hague system for international registration of industrial designs provides a means of obtaining protection for designs in multiple countries, or with intergovernmental organisations, through a single application filed at the World Intellectual Property Organization—the WIPO. Membership of the treaty is becoming more popular, and recent signatories include Japan, the United States of America and South Korea. There are currently 66 members, including 18 EU member states, and the EU is also a member in its own right.
The Government want the UK to be the best place in the world to do business. The promotion of strong and effective international IP regimes can reduce the risks of trading internationally for UK businesses and create further export opportunities. UK designers and design-led business are part of a global industry and, as such, it is essential that they have the option to protect their IP cost effectively when trading abroad. Equally, UK membership of the Hague system will allow non-UK owners of designs to register their rights in the UK, thereby encouraging the manufacture, distribution or licensing of their designs in the United Kingdom.
Ratification of the Hague system forms part of a raft of measures to modernise the design framework, including the criminal offence for the intentional copying of registered designs and the reduction of design fees. I know from speaking to designers about the importance of design to the economy. A Design Council study found that the design economy generated £71.7 billion in gross value added. By joining the Hague system, UK businesses, especially SMEs, which wish to have designs registered across multiple countries will have a simpler, more cost-effective method for obtaining and managing their rights. Businesses will be able to save money on design registrations and protect their intellectual property with greater administrative ease.
UK businesses have been able to access the Hague system since January 2008 by virtue of EU membership. The UK has been planning to join the Hague system since 2011 to provide users of the international system with the option to designate the UK directly, rather than under the broader umbrella of an EU designation. By joining the Hague system, UK businesses will continue to have access after the United Kingdom leaves the EU, regardless of what is agreed during exit negotiations. This order will come into force when UK ratification of the Hague agreement with the World Intellectual Property Organization is complete.
In conclusion, this order is essential to make the required modifications to the Registered Designs Act 1949 and Registered Designs Rules 2006 to give effect to the Hague agreement in United Kingdom law. Ratification of the Hague system forms part of a broader designs modernisation portfolio, intended to refine and streamline the designs legal framework so that the UK can provide a first-class, fit-for-purpose system for our design-led companies. We are committed to ensuring that United Kingdom businesses continue to have access to the international system once the UK has left the EU. Joining the agreement is essential to ensure that we achieve just that. I beg to move.
My Lords, I cannot guarantee to be a ray of sunshine this afternoon but I will give it a good try. I was quite surprised that despite the invitation on the consultation being from the noble Baroness, Lady Neville-Rolfe, only 10 responses were actually received. That is a bit sad because it shows that there is not a great deal of understanding about the benefits of this kind of Hague registration, so my first question to the Minister is: what visibility will this have after its adoption, given our ability to have business register designs under the Hague arrangements?
Secondly, this appears to be a bit of an IPO-lite solution. Filing, as I understand it, will not be directly with the IPO but with WIPO itself. I am also a little confused by the response to the consultation in terms of how publication will take place and the search mechanisms that will be in place for those kinds of registered designs. Those will be quite important if the system is to be accessible and if we are to get all the benefits that the Minister waxed so lyrical about during his introduction. I share many of his sentiments because I believe that proper design protection is extremely important. We have had many happy hours debating this over the last two years and I am of course a great believer in unregistered design, as well as registered design.
Moving on, it is clear that whether or not one is a great fan of the Hague registration system, it is not as comprehensive as the registered Community designs right. The fashion industry has been making increasing use of registered Community design because it covers surface decoration and a number of other aspects of design.
The last government word on this—this is a Brexit-related aspect—was that:
“The government is exploring various options”—
that is, how one addresses the fact that we will not be a member of the EU in relation to registered Community design rights—
“and are discussing these with users of the system to establish the best way forward”.
The Minister may not be able to tell me very much at this point, but I wonder whether he has anything to say on the matter by way of a follow-up letter. It is all part of the kind of protection package that designers, and businesses that make use of design and want to protect designs, find extremely important. There is quite a lot of anxiety about it. I will not quote all the commentary on the matter, but one comment I read recently said:
“Without an agreement to the contrary, community rights, such as registered and unregistered community designs and EU trade marks (previously community trade marks), will no longer have effect in the UK. Ultimately the scope of any rights applied for will not include the UK, and there remain questions about what will happen to the “UK portion” of such rights obtained before Brexit”.
There are some quite complicated issues here. My question is whether, as well as doing wonderful things like signing up to the Hague system, the work is apace and those options are really being unpacked in relation to the Community design right.
My Lords, what I will say follows closely on what the noble Lord, Lord Clement-Jones, has said. He and I—if I dare also bring in the noble Baroness, Lady Neville-Rolfe—are part of a declining band who followed the paths of the intellectual property legislation that this House has looked at over the past six or seven years. His intervention brought back fond memories of the time when we were happily discussing some of the issues that are clearly still in mind and will be in play as Brexit negotiations go on.
I make a slightly different point—also one that the Minister may wish to take back—which is that a lot of the effort that went into the earlier Bills was around the question of registered and unregistered designs. We are still in the situation alluded to by the noble Lord, Lord Clement-Jones: a huge proportion of the designs generated in this country—for which we should be very proud—are unregistered. That is partly to do with the nature of the industries involved: where short-term designs, such as fashion designs, are being created, there is probably no incentive to register them, because they are copied and lose economic value so quickly. That design element would not necessarily qualify as a design. However—I made this point before to the noble Baroness; I am sure that she will recognise it and I do not need a response— the Government missed a trick on this. Government ought to be thinking very hard about what package of measures could be brought together to encourage people with design skills and knowledge, of whom we have so many talented examples, to register their designs, because the protections that they can get, as exemplified by this order, are significant, though they are not recognised as such. The point was well illustrated by the fact that so few responded to the consultation document; I was a bit shocked to hear how small a number it was.
Nevertheless, we are where we are. I am sure I will make myself slightly unpopular with the noble Lord, who will find a way of coming back to me—
Will the noble Lord give way on the subject of designs? Like him, I am very keen that design rights should be properly protected. It is such a growing part of the creative industries. The Intellectual Property Office has done some very good work. I know this because my daughter-in-law was looking to register a design and I discovered, first, that it was relatively inexpensive and, secondly, that the IPO had set up a very good IT option. The Minister may well be able to tell us more about what they were doing, but I thought that this was interesting consumer research.
That is very good news indeed. If it is moving in that direction that picks up the point I am making. There is an unexplored case for more work here, which will bring benefits to UK plc in time.
As I was saying, I was going to grandstand a little on the instrument to ask a couple of questions that I am very confident the Minister will not be able to respond to directly. I am happy to have a letter on them. The first is specifically on the consultation exercise. The Minister touched on this in his opening speech. The comment is made that the UK does not need to keep its own register of registered design rights because after we accede to the Hague agreement, which is what we are doing today, it automatically confers protection on the UK because the UK signed up to the Designview database, operated by OHIM. However, what is the mechanism under which we will continue to have access to it after Brexit? If it is in any way tied to membership it will raise, as the noble Lord, Lord Clement-Jones, said, considerable difficulties in negotiating a fair price and the conditional arrangements. If there are to be cost barriers that will further diminish the pressure on people who wish to register designs. It is important and clearly a useful tool for protecting design rights, but if it is inaccessible it will obviously not be of any value. WIPO and the role it plays are very valuable. The IPO does not have much of a role in this. It again seems a slightly missed opportunity to beat the drum for registration, but if the connection is directly to WIPO and we are to be affected by Brexit, clearly that is a problem.
Secondly, the Minister may be aware of a Supreme Court decision in the Trunki case, PMS v Magmatic. It raised the interesting question of whether one could register or even protect shapes of articles. In this case, the well-known Trunki is a small ride-on suitcase that children use rather irritatingly, at speed, in airport lounges, which my ankles have felt over the years—not my children, I confess; there were third parties involved. The case raised the interesting issue that our systems do not allow anyone who has a visual representation or design representation to register it. As I understand it, the Hague agreement has some flexibility about what can or cannot be registered. It would be interesting to get a sense from the officials in due course about whether they think it would be possible to use the flexibilities in the Hague agreement to allow those talented members of our design profession who design representation to register those designs. I look forward to hearing from the Minister in due course.
My Lords, I am grateful to the noble Lords, Lord Stevenson and Lord Clement-Jones, for their responses. As they said, it will be important that I write with a little more detail on this. I certainly promise to do so. The noble Lord, Lord Clement-Jones, was alarmed about the visibility of the Intellectual Property Office and of these matters more generally.
I am grateful that the noble Lord said that because I was going to refer to the exchange between my noble friend Lady Neville-Rolfe and the noble Lord, Lord Stevenson, on the Intellectual Property Office, which showed that it is doing a good job. One should give it credit for that, but I take the noble Lord’s point that this is really more about the visibility of the Hague system. I am not sure there is much we can do other than to continue our engagement with business representatives about these matters to promote the importance of Hague and designs in general. We will continue to do that.
As the noble Lord, Lord Stevenson, asked, we will also continue to promote the benefits of registration. We know that registrations with the UK IPO are rising. Since we reduced the fees in October 2016, as referred to in the most recent intervention by the noble Lord, Lord Clement-Jones, we have seen an increase of more than 100%. There is always more to do to raise awareness, and we will do what we can through programmes of business outreach. We want to get over the message that it is important for businesses to register when it would be of benefit to them, and we will continue to do that.
As I have said, I would prefer to go into greater detail on these matters in a letter to both noble Lords, but I am grateful for their general support and recognition that we want to approve the order today and see how we get on thereafter.
Pharmacy (Preparation and Dispensing Errors—Registered Pharmacies) Order 2018
Considered in Grand Committee
My Lords, I thank the rebalancing programme board for its advice, which has formed the basis for this order. The purpose of the order is to create, for registered pharmacy professionals working in a registered pharmacy, new defences to the criminal offences set out in Sections 63 and 64 of the Medicines Act 1968. The order makes these defences available in defined circumstances to pharmacy professionals making genuine dispensing errors. This marks an important step forward in addressing barriers to providing a safer, higher-quality service.
The Mid Staffs inquiry highlighted the importance of putting patient safety at the heart of everything we do and taught us about the importance of achieving a careful balance between assuring accountability to the patient and developing a culture of openness and transparency so that we learn from errors, improving practice and safety. Indeed, Professor Berwick stated:
“The most important single change in the NHS in response to this report would be for it to become, more than ever before, a system devoted to continual learning and improvement of patient care”.
The order follows that philosophy. Pharmacy professionals are highly regulated—in relation to dispensing errors, more so than any other healthcare professionals. Indeed they are subject to “triple jeopardy” in the event that they commit a dispensing error. They face prosecution for strict liability offences under Sections 63 and 64 of the Medicines Act 1968, prosecution for offences under general criminal law and sanctions under professional regulation requirements.
This can lead to defensive practices. It has been demonstrated in other industries where safety is critical that working under such a threat of sanction is a hindrance to the reporting of errors and accidents and therefore wider learning. Evidence suggests that patient safety and service quality can be improved through increasing the rate of reporting and learning from dispensing errors. This will have benefits to patients locally and throughout the NHS system.
By removing the fear factor of a strict liability offence for inadvertent dispensing errors, we aim to create a much more open and transparent culture, which in turn should help to improve learning and prevent mistakes from happening. We will work closely with pharmacies’ professional and regulatory bodies across the UK to make this a reality. That said, registered pharmacies already have a range of systems and procedures in place to prevent dispensing errors occurring. More than 1 billion prescription items are dispensed every year and it is testament to the professionalism of pharmacy staff that errors occur only in a small proportion of cases.
However, dispensing errors can occur within a registered pharmacy for a variety of reasons. For example, there are many thousands of medicines and some have similar names and brandings; medications may also have complicated dosing schedules. But this order is not about accepting the inevitability of error. Instead, it seeks to ensure that we collect information on errors that do occur and think hard about how they can be prevented in future, including through spotting trends at a national level. This may involve improving systems and procedures, designing out error as far as practicable. Obviously, without knowledge of what has gone wrong, this will not be possible.
However, we are not removing all safeguards for patients. There will remain offences under general criminal law—for example, in cases of gross negligence and manslaughter—and sanctions under professional regulation. In such circumstances, the professional regulators—the General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland—can still subject individuals to regulatory fitness-to-practise procedures. Sanctions would depend on the circumstances of the error but could ultimately include the individual being removed from the professional register and no longer being permitted to practise.
The order is well supported. During the public consultation, it was overwhelmingly endorsed, including by patients and the public, and groups such as Action against Medical Accidents. They will now want to see pharmacy professionals play their part and demonstrate increased learning and reporting of errors. The Government are committed to ensuring that this happens and we have already taken some action in this regard. In each of the four home nations, a number of initiatives to support reporting and learning have been introduced; for example, medication safety officers or champions, and national reporting systems. Regulatory and professional bodies in pharmacy have also put in place standards and guidance to support the desired culture change, with community pharmacy trade bodies encouraging their members to follow the standards and encouraging pharmacy teams to report, learn, act, share and review.
Action is also being taken in each of the home nations on medication error more generally throughout the healthcare system. It is sobering that 5% to 8% of all hospital admissions are medication-related. This September, the Secretary of State for Health and the Chief Pharmaceutical Officer for England launched an initiative that focuses on reducing prescribing and medication errors throughout the National Health Service in England. The programme will look at a number of areas, including improving how we use technology, understanding how best to engage patients with their medicines, and advancing the transfer of information between care settings.
Finally, I make it clear that while the order provides a defence for pharmacy professionals working in registered pharmacies, it is important to recognise that pharmacy occurs outside these settings and therefore not all pharmacy professionals will be able to avail themselves of the defences set out in the order. So work is progressing to develop similar measures for pharmacy professionals working in hospitals and other care settings, and we intend to consult on this early next year. This will ensure that, regardless of their position within the healthcare system, pharmacy professionals will be encouraged to report and learn from dispensing errors.
In summary, the order supports improved patient safety by encouraging a culture of candid and fulsome contributions from those involved when things go wrong. Within this culture, pharmacy professionals can increase their learning from dispensing errors and identify mitigating action to make recurrence less likely in the future. I commend the draft order to the Committee.
I thank the Minister for introducing this order with such clarity, and in the process answering several of the questions I had intended to ask her, which may shorten the proceedings. As she said, the order makes a change to the legislation governing the way in which pharmacists who make a mistake are prosecuted, by making certain new defences available to them. As the Minister also said, at the moment they face triple jeopardy from their professional regulator, health legislation and, potentially, criminal law for manslaughter. I recognise that this order is based on the premise that reducing the risk of prosecution will increase the number of errors reported. Over time, we hope that learning from a greater number of errors should lead to improvements in practices and therefore enhance patient safety.
The order will offer protection to pharmacists and dispensing technicians, but its main purpose, quite rightly, is to improve patient safety. Proposed new Section 67B(5) will require the accused to prove in their defence that on discovery of the error, every step was taken to report it at the earliest opportunity to the person in receipt of the medication. That provision will give pharmacy professionals the chance to minimise the effect of errors and will positively incentivise them to admit them, as the act of so doing will aid their defence. This is therefore a new duty of candour, which has the potential to lead to major cultural change. As the Minister also said, this does not mitigate pharmacy professionals who show deliberate disregard for patient safety and who will not benefit from this defence. The order will protect only those practising in registered premises who are already subject to professional regulation. For the sake of the protection of patients, it will not provide a defence for other groups or individuals external to the registered premises and involved in the medical supply chain.
It has to be said that this has been a long time coming. I recall the issue being raised in 2009, and I was there when, during the passage of the Health and Social Care Act in 2011, the noble Earl, Lord Howe, said that the legislation needed to be reviewed so that criminal liability did not arise as a result of genuine dispensing errors. While we welcome this order as a step in the right direction, we therefore feel that it does not go far enough and we hope that it does not take as long as it already has to complete this project.
Even after it is implemented, pharmacists will still not be on a level playing field with other healthcare professionals; they may benefit from access to improved defences, but, as the Pharmacists’ Defence Association maintains, they will still face the prospect of a police investigation and a lengthy trial. They will have to hold on to the hope that they can successfully use the defences but may still face prosecution under other provisions of the 1968 Act. I hope that the Minister will consider further legislation to ensure that inadvertent errors are totally decriminalised. Why are we still asking that those errors should be decriminalised? I hope that the Government will move on this.
Is there some kind of omission in the order? We know that learning from reported errors is anticipated, but there is no formal requirement in the order to deliver on that. It is reliant on good will. I am sure that many pharmacists and pharmacy dispensary technicians will want to take it upon themselves to improve their existing protocols so that errors cannot reoccur, but there is no formal requirement in the order for them to so do.
I am pleased to learn that hospital pharmacies, which are not included in this but should be, because there are many such pharmacies, will be included in due course. We support that very much.
As acknowledged in the Department of Health consultation report, the risk of prosecution under Section 269 of the Human Medicines Regulations 2012 for inadvertent labelling errors still remains for pharmacy businesses. In fact, since a pharmacy business cannot be put in jail, it seems that the risk is to pharmacy owners, who may also be pharmacists.
Finally, the Department of Health has projected a 100% increase in error reporting and a 30% reduction in errors. On what basis has it arrived at those conclusions?
My Lords, as someone who has followed pharmacy policy for many years, I have a strong sense of déjà vu. However, that is for all the right reasons because I can assure the Minister that I heartily approve of the order before us. It was only six years ago that I and the noble Baroness, Lady Jolly, put forward an amendment in reasonably similar terms, specifically on 19 December 2011. The favourite Bill of the noble Baroness, Lady Thornton, the Health and Social Care Bill, was under discussion. The noble Earl, Lord Howe, for whom we all have huge respect, said:
“I also wish to reiterate our commitment to bring forward a suitable legislative change at the earliest possible opportunity. I hope that with those assurances, my noble friend will feel able to withdraw his amendment”.—[Official Report, 19/12/11; col. 1559.]
I am not sure whether that was the first or the last time that I have heard those words from a Minister, but six years does seem to be a fairly long time even in politics. I wonder whether it does not reflect a little the way that the wheels of government can turn slowly. Also, although I am afraid that this is the rather downbeat aspect, I do not think that community pharmacy in particular, of which I am a great proponent, is really central to government thinking in the way it should be. It is very much the unsung hero of the health service and we should be making much greater use of it.
I have to refer back to the original debate. One of the objections to the amendment at the time was the fact that Northern Ireland was not properly included in it. Northern Ireland is now included, but of course the arrangements are slightly different because only registered pharmacists will be subject to this order. I am not sure in my own mind whether that means that only registered pharmacists can make use of these defences or whether they are free and clear of the duties entirely. I hope that the Minister can give some clarity on that aspect.
Another aspect I am very interested in is one on which the noble Baroness made a strong point, as did her honourable friend Julie Cooper in the Commons, who I believe is married to a pharmacist so probably feels pretty strongly about these things. As I read the order, the Government have chosen not to change the offence; rather, they have opted to change the defence. That still means, therefore, that the criminal offences are all there. That really illustrates the point made by the noble Baroness, Lady Thornton. It seems to keep a sword hanging over the pharmacist in an unhelpful way.
The Minister mentioned hospital pharmacists. Can she put a date on which they might be brought in, because time passes? It is only six years since we last talked about this issue. However, I was heartened to hear what she had to say about the culture of learning, because that was the motive behind the original amendment. It is absolutely what the Royal Pharmaceutical Society is seeking. I pay huge tribute to the society because it has been extremely patient about this matter. I shall read Hansard with considerable interest.
In closing, of course today is not the time for a full debate on the future of pharmacy. There are a great many aspects to it, including the Murray report and various other related developments, but I hope that the Government will start to grasp much more effectively the opportunity to make the best use of the real and valuable resource that is represented by community pharmacy. It is a gap in our health policy and I hope that the Government will take it forward.
My Lords, I shall be brief in my support of this statutory instrument. I too had a feeling of déjà vu when preparing for this debate. I looked up the debate and sure enough, it was on 19 December 2011 that I spoke, as did my noble friend and the noble Baroness, Lady Thornton, and as indeed did the noble Baroness, Lady Finlay, who is currently our Deputy Chairman of Committees. The only person we are missing is the noble Lord, Lord Patel.
My noble friend Lord Clement-Jones has given the Committee the detail. I, too, champion local community pharmacies and pharmacists. This SI covers some of the content of his original amendment and will have a considerable impact on the profession. We are all human; we make mistakes. In the previous debate, I outlined a mistake which happened within my own circle at home and caused a large high-street pharmacy to change the way in which it dispensed and stored medicines. The measure will have an impact in that some pharmacists and pharmacy assistants will feel more confident in owning up to making mistakes. We are encouraging people within the health and social care service to do this because we will then learn and share good practice. It is good legislation: mistakes are confessed to and rectified, and lessons are learned.
We heard from the Minister at the outset of this debate that more legislation will be coming down the track to look at other things. When that legislation comes before us for debate, I hope that all the areas that have been exposed today as being in need of tidying will be tidied up.
I hate it when notes come over one’s right shoulder just as one is about to stand up, because one never has time to read them.
I thank all noble Lords for their points. The noble Baronesses, Lady Thornton and Lady Jolly, and the noble Lord, Lord Clement-Jones, all said that the measure was a long time coming. I certainly agree; six years is clearly far too long. I say in mitigation that we were hoping to bring it forward in 2015, but several things happened which I am sure noble Lords will remember: an election, followed in 2016 by a referendum, which rather held things up. Even so, 2009 to 2015 was quite a long time, but we must welcome it now.
The noble Baroness, Lady Thornton, referred to there being no formal requirement to report. We want to encourage pharmacists to feel that they can come forward and report. We do not want to put strong legislation in place for that; we want there to be a feeling of openness, that they can come forward without feeling that that they are likely to be prosecuted. With the champions and the guidance in place, that should happen, and they should get used to this just being part of what they do without fear of further prosecution.
The noble Baroness, Lady Thornton, mentioned pharmacy owners. We want pharmacy owners to have systems in place whereby anyone who discovers an error makes sure that the patient is notified. If this needs doing, the legislation deliberately incentivises candour on the part of all responsible people at the pharmacy. The noble Baroness asked also whether there should be a mandate for reporting errors. As I said earlier, the defences have been drafted to incentivise the reporting of errors not just by the error maker; in addition, all pharmacy professionals are already subject to professional standards set out by the pharmacy regulators, the General Pharmaceutical Council and the Pharmaceutical Society of Northern Ireland. These standards include duty of candour, which includes an obligation to be open and honest.
The noble Lord, Lord Clement-Jones, mentioned pharmacy technicians in Northern Ireland. They are not registered in Northern Ireland as they are here, so they cannot come under these defences. The criminal offences are still there, so this measure makes the right balance. If there is gross negligence or serious errors are made, there is still legislation in place whereby pharmacists can be prosecuted.
I do not have the date for this to go forward for care and hospital settings, but come this summer they will be starting to look into how to bring that forward. It will be interesting to learn how this works in the pharmacy setting and then to bring that forward. We are keen that that happens.
I certainly hear what the noble Lord, Lord Clement-Jones, said about appreciating pharmacies. We do indeed, and we realise what a very important role they have to play not only for supplying medicines but for giving advice. The noble Baroness, Lady Jolly, mentioned one of the errors we hope will be picked up in the new form—coloured boxes. I remember so well as a nurse the danger if you have different medicines in the same coloured boxes when you grab them quickly. Luckily you always had two people checking the medicines in nursing so errors rarely occurred, but that is exactly what we hope this will pick up.
I hope I have answered all the questions raised, in which case I finish by saying that we feel the order will add further impetus to the work already under way to reduce medical errors across the health service and provide much-needed assurance that pharmacy professionals can discuss inadvertent dispensing errors without fear of prosecution. It is important that the pharmacy professions build on this, help to underpin a learning culture that puts the patient first, and ensure that patients receive excellent care and service from registered pharmacies.
Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017
Considered in Grand Committee
My Lords, it is a great pleasure to see the noble Baroness, Lady Finlay of Llandaff, in the Chair. The draft Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017 were laid before the House on 19 October 2017—that is a relief. I had a feeling like when I passed my driving test and I was out for the first time: it is a feeling of great power, but as though I might need assistance. The regulations will increase nationally set planning application fees by 20% and introduce fees for new categories of development. If approved by the Committee and the other place they will come into effect 28 days after they are made. They are due to be debated in the other place a week today.
It would be useful to give some context to these regulations. We want to make sure that the planning system is valued, resilient and capable of providing the service that local people and planning applicants expect. We also want to provide local authorities with the capacity and capability to support the Government’s objective to build more homes more quickly. I recognise that planning fees have not increased since 2012; therefore, the increase in planning fees set out today is a significant step towards addressing the widespread concerns of underresourced local planning authorities.
The housing White Paper of earlier this year stated that we would increase planning fees by 20% for those authorities that committed to invest the additional fee income in their planning department. Ring-fencing the additional fees in this way will ensure that resources are directly invested to support the delivery of an effective planning system. I am pleased to say that all local planning authorities in England have accepted this offer. Based on current activity, this uplift in planning fees could generate more than £75 million of additional fee income annually for local authorities. This is equal to the average salary of approximately 1,600 planners and other professionals who play a role in the planning process. This should bring the total planning application fee income to approximately £450 million per annum. The 20% increase keeps planning application fees at a modest level for householders and developers compared to overall planning costs—roughly 0.25% of development costs, I think—while providing local authorities with the necessary resources to turn round applications efficiently and effectively.
In developing these regulations, we undertook a technical consultation in 2016 on proposals to increase planning application fees. The majority of respondents, from all sectors, supported increasing planning fees, often citing concerns about resourcing in local authority planning departments. We are also very grateful to the Local Government Association for its work to promote performance improvement. Local government authorities are our partners. Their research suggests that since fees were last increased in 2012, local authorities have been relying on local taxpayers to support the delivery of their planning services.
I turn now to the specifics of what the regulations do. They deliver the housing White Paper commitment to increase nationally-set planning application fees by 20% and to introduce other technical changes in relation to fees charged by local planning authorities. These changes deliver on previous government commitments.
Regulation 1 sets out the scope of the regulations, in that they apply only in England and will come into force 28 days after they are made. Regulation 2 provides for an increase of 20% for all existing fees for planning applications and advertisement consents.
In addition, the regulations bring forward four technical changes. Regulation 3 inserts a new fee of £402 per 0.1 hectare for applications for permission in principle. This will follow new powers that we intend to provide to local authorities to grant permission in principle to suitable sites on application. We will be doing that by regulation. In other words, this is a new fee for a new power that was not previously in the regulations. The same principle applies in Regulation 4, which enables any mayoral development corporation or urban development corporation to charge for giving pre-application advice. This provides the same powers to development corporations as already exist for other local planning authorities. Again, this is a new fee for a new process.
Regulation 5(2) provides for a planning application fee to be charged by local planning authorities for applications necessary because a permitted development right has been removed. The right may have been removed either through an Article 4 direction or through a condition imposed on a planning permission. Many noble Lords will appreciate that this delivers on a commitment I gave to my noble friend Lord True, and to others in the House, during the passage of the Bill that became this year’s Neighbourhood Planning Act.
Finally in relation to these technical changes, Regulation 5(3) introduces a new fee of £96 for requests for prior approval for the new permitted development rights introduced in April 2015 and April 2017. These include the rights for the installation of solar photovoltaic equipment on non-domestic buildings, the erection of click-and-collect facilities within the land area of a shop, the temporary use of buildings or land for film-making purposes, and the provision of temporary school buildings on vacant commercial land for state-funded schools. Again, all of those are new fees for new processes.
We continue to keep the fee resourcing of local authority planning departments at the forefront of our thoughts and to keep under review where fees can be charged. In the consultation document on local housing need, Planning for the Right Homes in the Right Places, we have consulted on the potential for increasing planning fees by a further 20% for those authorities that are delivering the homes that their communities need. Again, this was presaged in the White Paper. The consultation closed recently and the responses will help to inform our thinking on how to ensure that the framework for planning fees delivers the resources necessary to support high-quality performance. We are now analysing those responses.
In conclusion, I must reiterate that it is vital to have well-resourced, effective and efficient local authority planning departments in order to provide new homes and deliver economic growth. I pay tribute to the planning departments of our local authorities throughout England. We expect local authorities to match these recommended fee increases with an ongoing improvement of service when handling planning applications. In bringing forward these changes, we are ensuring that they have the necessary resources to take on and deal efficiently with the increasing demands being made of them. I commend these regulations to the Committee.
I draw attention to my registered interests as a councillor in Kirklees and as one of the many vice-presidents of the Local Government Association. As a local councillor and someone who is interested in planning, I welcome the 20% increase in fees across all types of planning application, although it has been a long time coming.
However, I note with some concern that the noble Lord, Lord Bourne, did not refer to the fact that the resultant gain in income will cover only around half of the current deficit in financing the planning applications processed by the local planning authority. Paragraph 7.3 of the Explanatory Memorandum draws attention to this. It says that,
“the Government is seeking to reduce the funding gap, and estimate that some £80m additional fee income will be raised annually”.
I also note that the Minister referred to an annual increase of £75 million. The paragraph goes on to state:
“Therefore, although the fee increase will help to address some of this shortfall, even taking this additional income into account, authorities’ costs will overall still be higher than the fee charged”.
We continue to say that the Government are expecting hard-pressed council tax payers to subsidise developers. Given that the interesting figure of 0.25% of planning costs is what the planning fee represents, it seems that we ought to be asking developers to pay the full cost of the planning application. My rough guess is that it would mean a 40% increase. It is not acceptable for council tax payers to continue to subsidise development, and the developers who will make considerable profits out of the projects they undertake.
I noted the new type of planning known as “planning in principle” referred to by the Minister. When I read it, it seemed to be outline planning consent, and I would like to understand what the difference is. In the explanation it talks about there being none of the detail but perhaps only access and considering the principle of building on a certain site. I take that to be outline planning consent and I should therefore like to know what the difference is.
The Minister went on to refer to the opportunity of a further 20% increase in planning fees which would be dependent on local planning authorities delivering on housebuilding targets. This is a bit of a punishment for those authorities that grant planning consent for applications in a timely way but then find that developers sit on them for years and keep coming back with requests for time extensions on their permissions. I cite my own ward in Kirklees, where we have 600 planning consents—that is just one ward, not a whole authority—waiting for development. No doubt my council would not qualify for the further 20%, regardless of the fact that it had granted all these planning permissions.
Perhaps it is because I am new to all this, but I want to comment on this business of the Government undertaking to define planning application fees. Planning permissions and the whole planning process are a local planning authority matter and I believe that planning fees ought to be determined by local government. I do not understand why central government wants to keep such a tight hold on this. If there was more freedom for local planning authorities to determine fees, I am sure that they would introduce innovative processes and be a bit more business-like. If you wanted to attract more development, maybe you would cut fees for development that was within the local authority’s strategic vision. I am not sure why central government has to keep a tight hold of planning fees. I look forward to the Minister’s response on that.
With those comments, in totality I welcome the increase in fees. Local taxpayers have subsidised development for far too long. I look forward to a further 20%, so that they do not subsidise it at all.
My Lords, I welcome the noble Baroness, Lady Finlay, to the Chair, as did the noble Lord, Lord Bourne. I draw the Committee’s attention to my registered interests as a councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.
Like the noble Baroness, Lady Pinnock, I welcome the measure as far as it goes, in that it increases the fees that local authorities charge for planning applications. That is welcome, as are the fees for the new categories. The 20% increase will make a difference, but council tax payers will still be subsidising the planning process. As has been mentioned many times, that is regrettable. In paragraph 7.3 of the Explanatory Notes, that seems to have been accepted, although I do not think that these proposals go far enough. As the Explanatory Notes say, the last increase was in 2012, which highlights a problem—that is five years ago and costs have gone up since. I accept the point that the noble Baroness, Lady Pinnock, made in asking why the Government are still setting these fees nationally. If they are going to carry on doing that they should look at some way of inflation-proofing this, otherwise we will be sitting here in another five or six years’ time agreeing the fees again. Costs increase all the time for local authorities and waiting five years is far too long. As the noble Baroness said, these matters should be dealt with by local authorities, which will set fees connected to their areas.
The Explanatory Notes also mention applications for permission in principle. A new figure is being proposed, but the fee is set lower than it is for present applications. The justification is that less work will be involved, so you do not need a bigger fee. But of course the fee we have now does not cover it. There is a new fee to be charged but, again, it will not cover the cost of even that work. That is odd logic, unless you always want to set the fees at a lower level than the cost so you always have the council tax payer subsidising the payment process. I would have thought that we would want to get out of that at some point—if not today, certainly in the future. Having said that, I welcome the increase. It is going in the right direction.
We will be talking about pilots later but I have suggested before that perhaps at least one council in the whole of England should do a pilot on full costs recovery. I cannot see the harm of just trying it. At the end of the day it may not work, but if we could find one place to volunteer to do that it would give the Government useful information about whether that is something we could do. I have called for it, as have colleagues. Perhaps we should do that. Having said that, I am happy to support the regulations, as far as they go.
My Lords, I thank the noble Baroness, Lady Pinnock, and the noble Lord, Lord Kennedy, for their comments, their general support and, indeed, their constructive approach. I will try to deal with the points they raised.
First, in relation to whether we should have gone further, I appreciate that it is the Government’s job to bear down on costs and obviously there is a concern, which we all share, about ensuring that we build more. Having said that the planning fees represent only 0.25% of the development costs, we nevertheless have to be aware of the fact that there must be a level where it would begin to be a disincentive to development. That said, as I outlined and the noble Baroness, Lady Pinnock, referred to, we are looking at a potential 20% tied to housing target delivery and we are analysing the responses. I do not see this as punishing those authorities that do not make it. This is very much a carrot, not a stick. I expect that many local authorities will want to respond favourably to this.
However, I listened carefully to the noble Lord and the noble Baroness as I know they have lots of experience in local government. I realise they know what they are talking about—nearly always—particularly on these areas. They made a fair point. There have been gaps under previous Governments when the fees have not gone up as they perhaps should have. I liked the constructive suggestions from the noble Lord, which I will take away, about the index-linking and the pilots. Both are worthy of discussion so we will have a look at them. The current regulations do not provide for index-linking and I suspect that we would need primary legislation to amend the enabling power. That said, let us see if there is some merit in that suggestion because I appreciate that we need to ensure that planning departments are properly resourced. The noble Lord and the noble Baroness are as aware of that as anyone.
The fee for permission in principle—a new route to planning permission, as the noble Baroness knows, giving developers up-front certainty that sites are suitable for housing-led development—was not plucked out of the air, as it were. There was discussion with local authorities and others about fixing that fee, which we consider appropriate. It is a new fee but we have not had massive representations against it—I am right in saying that—in so far as there were any representations. I think it probably is an appropriate fee, as the others are. I appreciate the general point that this is new territory.
In relation to the point raised by the noble Baroness and the noble Lord about the national setting of fees, this has always been the approach under successive Governments. That does not necessarily mean that it is the correct approach, I know, but it has. There are a couple of issues concerning setting fees nationally. Allowing local planning authorities to set their own fee levels risks the principle of ring-fencing this. I suppose a ring-fence could be created but it would be a little clunky. But there is also a risk, which would be more of a concern to me and to the Government, that uncertainty in relation to fees may act as a disincentive to home owners and small developers in particular to undertaking development in a particular area. There might be a race to the bottom. We should be careful what we wish for because there is a risk that this could end up underresourcing public authorities by pushing them to charge lower fees than might be sensible. I shall need to look at this carefully but, as I say, my initial view is that it might be difficult and not achieve what we want.
That said, I take the points made about index-linking very seriously; it would save us the difficulty of passing primary legislation. We shall take the suggestion away and look at it for the longer view. The pilot is also a constructive suggestion. With that, I welcome the approach of both the noble Lord and the noble Baroness in their welcome of the fact that we are increasing planning fees.
I am pleased that the noble Lord is going to look at the suggestions. The general point to make is that we hear in our authority and from local government generally that there is a lot of pressure in many areas of service. If there is one area where you could get close to full cost recovery, it is this one, and that would be progress. I take the point that it might hamper development, but I am not convinced that 0.25% of the development costs would be the deal-breaker. If council tax payers are subsidising the planning process, it means that money is not being used for other services which are equally if not more important for the authority to deliver. We hear debates right around the local government sphere about the problems and pressures on budgets and the cuts that have been made in the past six or seven years. That is a serious point for local government, so I am grateful to the Minister for saying that he will take a look at this.
We are getting closer to full cost recovery with these regulations and I appeal to the noble Lord’s legendary patience to await the consultation on the other 20%. That will go a long way for many authorities which I know are trying and succeeding to meet their housing targets. However, the general point has certainly been taken on board.
Combined Authorities (Mayoral Elections) (Amendment) Order 2017
Considered in Grand Committee
My Lords, in speaking to this order I shall speak also to the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2017. The purpose of these instruments is to modify provisions in the Representation of the People Act 2000 to enable the pilot scheme provisions to apply to combined authority elections and local mayoral elections. These provisions were brought into effect in 2000 and used extensively in pilots in 2007. There has been no piloting of changes to the voting process since 2007 but new polls have been introduced to other local authority elections; namely, elected local mayors and mayors for combined authorities. At present, the 2000 Act piloting provisions do not fully apply to these new polls.
Earlier this year, the Government announced that they would be conducting pilots for voter identification at the local elections in May 2018, in line with their manifesto commitment to,
“legislate to ensure that a form of identification must be presented before voting”.
Voter ID is part of the Government’s commitment to improve the security and resilience of the electoral system that underpins our democracy, and will ensure that people have confidence in our democratic processes. Five authorities have indicated their intention to run voter ID pilots at the local elections in May 2018: Woking, Gosport, Bromley, Swindon and Watford, while Tower Hamlets will pilot new security features for postal voting. Watford and Tower Hamlets will also be holding local mayoral elections in addition to their local council elections.
The powers to alter electoral conduct rules for the purpose of running pilots are contained in Section 10 of the Representation of the People Act 2000. Section 11 of that Act enables the Secretary of State to apply measures trialled in a pilot scheme generally, taking into account any report on the scheme provided by the Electoral Commission under Section 10. Currently, these sections make provision to conduct pilot schemes in local authority and Greater London Authority elections.
As I indicated a moment ago, two of the local authorities that plan to conduct pilot schemes in May 2018 for local government elections will also be holding a local authority mayoral election on the same day. These polls are usually held in combination, for the benefit of electors and administrators. The proposed changes will allow pilot schemes to be conducted at both these polls. This will ensure that voters have a smooth voting experience. It would be confusing for voters if the provisions being piloted applied to one poll but not the other poll being held on the same day. The changes will also facilitate the effective administration of the polls being held.
More generally, the statutory instruments we are considering will enable pilot scheme orders to be made that are intended to improve the voting experience for voters and make the electoral process more secure. The pilot order schemes will also allow evidence to be collected for statutory evaluation by the Electoral Commission of the impact of voter ID in polling stations. That evidence and evaluation will inform the Government’s decision about how most successfully to meet their manifesto commitment to introduce voter ID nationally. There are currently no pilot schemes planned at a combined authority mayoral election—“metro mayors”, as the media have termed them—but the order will facilitate any pilot scheme orders for combined authority mayoral elections to be held in the future.
I turn briefly to the detail of the proposed changes. As I explained, Section 10 of the Representation of the People Act 2000 enables the Secretary of State to, by order, make provision for running pilot schemes relating to the conduct of local government elections in England and Wales. Section 11 allows the Secretary of State to apply those changes generally. Section 10 as drafted does not enable changes to be made to the conduct rules for local mayoral elections. Also, provisions in Section 11 that enable measures tested in a pilot scheme to apply generally and on a permanent basis do not encompass conduct rules for local mayoral elections. When the mayoral rules were made in 2007, provision was made to apply Sections 10 and 11 of the RPA 2000 to mayoral elections. However, a further modification was needed to enable changes to be made to the mayoral conduct rules as those rules are made under the Local Government Act 2000. Sections 10 and 11 enable changes to be made only to conduct rules made under the Representation of the People Acts. This was a technical oversight. The regulations make these modifications to enable pilot scheme orders under Section 10 of the RPA 2000 to make changes to the mayoral conduct rules. This will enable pilot scheme orders to be made that will facilitate voter ID pilot schemes during local mayoral elections in the short term, and any other pilot schemes in the longer term.
I turn to the Combined Authorities (Mayoral Elections) (Amendment) Order 2017. Similar to local mayoral elections, Sections 10 and 11 of the RPA 2000, as currently drafted, do not enable the conduct rules for combined authority mayoral elections to be modified. When the combined authority mayoral order was made in 2017, provision was made to apply Sections 10 and 11 of the RPA 2000 to combined authority mayoral elections. However, a further modification was needed to enable changes to be made to the 2017 conduct rules, made under the Local Democracy, Economic Development and Construction Act 2009. Again, this was a technical oversight. The order makes these modifications to enable pilot scheme orders under Section 10 of the RPA 2000 to make changes to the combined authority conduct rules for the purpose of conducting pilots.
We are also taking the opportunity to address a technical issue concerning the subscription of candidates’ nomination papers at combined authority mayoral elections. The order will amend the definitions of “elector” and “local government elector” to clarify who may subscribe a nomination paper. A subscriber must be of voting age on the day of the poll and they must be on the local government register of electors on the last day for the publication of the notice of election, which must be published no later than 25 working days before polling day. It also includes new versions of the form of the nomination paper for use by candidates of the combined authority and mayoral elections as a consequence of these changes.
The provision for the combined authority mayoral elections did not contain the limitation of the register being the one produced by the last day for publication of the notice of election, which is the case for other polls. This meant that administrators had to check subscribers on the register up to that date and beyond it, which opens up scope for confusion and error, as this was unlike the position for other polls. This change brings the provision in line with those for other polls and therefore also supports more effective administration when polls are held in combination. These amendments will make combined authority mayoral elections consistent with other polls on this issue and provide certainty to candidates and administrators on who may subscribe a nomination paper.
Our principal stakeholders, the Electoral Commission and the Association of Electoral Administrators, have been consulted on these draft statutory instruments and they are content. Furthermore, they have expressed support for voter identification pilots in general. The Cabinet Office and the Electoral Commission will undertake detailed evaluation of the pilots, after which the Government will announce the next step towards implementing voter ID nationally.
We consider that these instruments are necessary for the conduct of electoral pilots in respect of local mayoral elections and combined authority mayoral elections, and that they make the law governing candidates’ nominations at combined authority mayoral elections consistent with other polls. I commend these instruments to the Committee.
My Lords, again I draw the attention of the Committee to my registered interests as an elected councillor in Kirklees and a vice-president of the Local Government Association. I understand, appreciate and welcome the technical changes in these two statutory instruments, which ensure that the opportunity to take part in the pilot for voting ID, among others, can include mayoral elections.
My noble friend Lady Thornhill is currently the elected Mayor of Watford, which is one of the pilot areas in next year’s elections. No doubt it was that and the Tower Hamlets situation that have triggered these SIs. I asked my noble friend Lady Thornhill what sort of ID they were using. It is quite interesting: they require people to bring their polling cards as their form of identity when they vote. Failing that—because those involved in elections know that polling cards constantly get lost—they can bring other forms of written ID. Interestingly, they are not required to provide photographic ID.
I am concerned that, following the report by Eric Pickles, the Government seem to be focusing their attention on voter identification in order to improve the integrity of the ballot, rather than focusing on the area where there is evidence of larger fraud: the use of postal votes. I am concerned, and have been for a long time, about the abuse of postal votes, for a number of reasons. One reason is that for some families in some communities—where the whole family votes by post—a secret ballot does not exist. In particular, that has a negative effect on women’s rights to express their own opinion when they vote. That issue, unfortunately, has not been addressed through this.
I also draw the Minister’s attention to the widespread use of postal votes in areas whereby they are collected and filled in by others. We know this from court cases. Despite the best efforts, which I accept have been made, to improve the identifiers on postal vote applications and hence on the form and the ballots as they are completed, in my experience they might have reduced but certainly have not prevented continuing abuse of the postal voting system.
Lastly, when it comes to voter identification, we need to learn from the experience of those of us who have been involved in elections. I will relate an experience I have had to illustrate the point. It took place a few years ago, but I will not say in which area it was. A guy drove his car down the street and pressed the horn. People came out of various houses. The man in the car handed out polling cards and off those people went to vote. Linking the polling card with the person has not prevented abuse in the past and I am not necessarily convinced that voter ID would reduce it now. It might also prevent some people voting because they would not want to have photographic identification.
I am all in favour of improving the integrity of the ballot because it has been eroded over the past few years, but I am not convinced that we have found the solutions. Having said that, I totally support these statutory instruments.
My Lords, the noble Baroness, Lady Pinnock, has just referred to improving the integrity of the ballot. That is precisely what was behind the debates we had some years ago on electoral registration, which I opposed most vigorously, as indeed did some of my noble and honourable friends. The reason was quite simple. We are wasting millions of pounds on electoral registration when in fact we should be doing what the noble Baroness herself said. We should be concentrating our efforts on where the real fraud lies, and that is in selected areas. I remember moving an amendment to do something precisely to that effect in this place. We had a Labour Government at the time but they rejected it. We should not have been wasting money on a national scheme; we should have concentrated our efforts on those areas with a real problem. We knew that where there was a problem, local authorities themselves would ask for additional resources to sort out the issues. Of course that is why we still have some fraud in the system.
I want to go a little wider on this. The noble Baroness referred, I think, to polling cards. Again, there is an inconsistency because she wants to enforce some kind of system to make sure that ID works. Well, why not go the whole hog and have ID cards, which would sort out the whole problem? In those circumstances we could do away with electoral registration. We would go down exactly the same route as I did the other day with the Minister, the noble Lord, Lord Young, at the Dispatch Box, because he knows that the ID card is the way to sort this problem out.
I want to turn to something else regarding the nomination form because there has been some discussion about nomination papers. I have always believed that when a candidate stands for public office, there should be a declaration of interest. Why should there not be a full declaration of interest on the nomination form which is published by the local authority, whether it be a candidate for a parish council, Parliament or whatever? The public would then know the interests of the person standing. The problems with these people standing for public office often arise out of the fact that they have an interest which subsequently turns out to have compromised the positions that they are taking within their respective authorities. I put that to the Minister—I do not expect an answer today. However, let us now consider the whole question of declaration of interests by candidates being published at elections where everyone can see them.
Lastly, I raise the whole question of the voting system. One of the great—I suppose it was minor—contributions I have made in my modest political career was to devise the supplementary vote system. I named it in my house, brought it here, and in the end it was adopted by the Labour Government and is still in operation in mayoral elections. I would like to see an audit on how effective it has been, because there is still some criticism of the supplementary vote. My view is that it works. When you check through the election results over the year in the various authorities, whether that is in police authorities or whatever, and you look at where it has worked, it has worked in some interesting areas. Have the Government done an audit of how it operates, and how effectively?
My Lords, I will make only a few brief remarks on the order and the regulations. Like the noble Baroness, Lady Pinnock, I refer the House to my interests as a councillor—in the London Borough of Lewisham—and as a vice-president of the Local Government Association.
In general I am supportive of the order and the regulations—I have no problem with them as such. However, there are some issues. As we have heard, one of the themes in the review is fraud. Issues of fraud have been reported far and wide over a number of years in the media and there have been a number of court cases in which people have, quite rightly, been prosecuted and some sent to prison, deservedly so. I think we all agree that we want to make sure that fraud is driven out of our electoral system, and if these go some way towards helping to do that, that is well and good and I support it.
We have had a number of pilots in this area of policy over a number of years—I certainly remember that the Labour Government, and particularly Jack Straw, loved pilots. I just hope that if we have these pilots, we will make a decision on them and move them along a little. I am all for pilots but I want a conclusion as well. If they are seen to improve the electoral system, we should go ahead with them.
On the nomination papers, obviously that is fine. I am surprised that we need to do that, but I am happy that we agree those nomination papers.
I may have heard the Minister say that we consult the people we normally consult, which is the Electoral Commission and the Association of Electoral Administrators—two fine bodies. I have certainly made the point—if not to the Minister then to other Ministers sitting in that position on behalf of the Government—that the one group that is always missed out is the political parties. We have some experts in these areas. I was a member of the Parliamentary Parties Panel, which is the statutory body that the commission consults, and I then became an electoral commissioner, so I sat on the Electoral Commission. I can tell your Lordships that at no point did these bodies consult on these issues with the political parties. They do not. They might say that they do, but they do not, and it is a shame. They might say that we do not need to on this one, because these are purely technical matters. There are people from all parties—we all know some of them very well— who are expert in these areas and can give valuable information, insight and experience. It is a shame; the Government should as a matter of course add in the political parties and formally consult them as well. It would not be a great problem for the Government to do that. We should certainly not rely on the Electoral Commission. As I said, it is a good body and great people—and great commissioners—work there, but I do not want it to consult, because it will not. It does not; it will talk to the administrators, and as this is a technical issue and not a campaign it will not involve the parties. Maybe we should think about that.
My noble friend Lord Campbell-Savours makes a valid point about ID cards and fraud. That certainly would have dealt with the issue. The issue is of course that some people do not have ID or what is acceptable ID when you go along to the polling station—what would be acceptable? Everyone has a passport or a driving licence, so what will not be acceptable? That is an issue to deal with. Also, Northern Ireland has a little electoral card, which is very popular, especially among young people, because they say, “It gets us into pubs and clubs because it proves we’re 18”. It is not an ID card but an electoral card provided by the Chief Electoral Officer for Northern Ireland.
My noble friend Lord Campbell-Savours mentioned the supplementary vote. All these systems are interesting and useful. I prefer the alternative vote, because it spreads the vote around more evenly than the supplementary vote, but other systems are definitely worth looking at.
Having said that, I support these measures as far as they go. I look forward to the noble Lord’s response.
My Lords, I am grateful to all noble Lords who have taken part in this short debate, all of whom have indicated their broad support for the measures before the Committee but have raised a number of other issues. A number of those who have spoken are vice-presidents of the Local Government Association. I am not, but I was a vice-president of a predecessor body called the AMA. I was expelled either for rate-capping or for abolishing the GLC, which may well be spent convictions.
I will deal with some of the issues raised. The noble Baroness, Lady Pinnock, is quite right that there are a range of recommendations in the Pickles report. We are dealing with some of them, such as those on harvesting votes by political parties and behaviour at polling stations. They are being dealt with on a separate track.
Tower Hamlets is piloting postal vote ID, to pick up the point the noble Baroness made, so we will have more information on what the options are for dealing with the issue of potential fraud with postal votes, which she raised. In principle, postal votes are a good thing because they help drive up participation in the democratic process. They are a very convenient way of voting, so I would not want to move away from the system we have of postal votes on demand, but we will discover more from Tower Hamlets about how one can drive up the integrity of the system.
Turning to some of the other points made, I take the point that the noble Lord, Lord Campbell-Savours, made about trying to target the pilot schemes on particular areas where there are known to be problems. The approach we have adopted at this stage is to invite local authorities to take part in the pilot schemes, rather than be prescriptive, which is the approach he was in favour of. Tower Hamlets, which is an area where there has been some difficulty, is taking part in one of the pilot schemes on postal votes.
So far as declarations of interest are concerned, my experience is that the interests of candidates are widely advertised during the process of the campaign— quite often by their opponents. Putting them on the ballot paper would make the ballot paper very cumbersome. I think the noble Lord’s suggestion was that they might go on the nomination paper. We will look at that in conjunction with the Electoral Commission.
On the supplementary vote, there is a Private Member’s Bill coming up in the name of my noble friend Lord Balfe looking at alternative methods of electing local councillors. He is in favour of some form of PR for local government, so if the noble Lord is free on a Friday, there will be an opportunity for him further to develop his views. The supplementary vote is of course used at the moment, as the noble Lord said, for local mayors, combined authority mayors, the London mayor and the PCCs, so it is already embedded in part of the process. I do not think we have any plans to use it more widely.
Does the Minister not see the merit if we target where the problem is and then getting rid of the individual registration scheme? I see no benefit whatever in the scheme other than to deal with a problem in particular areas, which will be dealt with anyhow under other arrangements.
But I think there was broad all-party support for individual voter registration, which was the point I was making. So we have a lone voice, which I respect, but it is an improvement on the previous system, where it was up to the householder to put people on the voters’ list. Where we are now is a much better system.
On the issue I was talking about a moment ago, we will have a look at declarations of interest but, as I said, putting it all on the ballot paper would make it more difficult for electors to understand. It could lead to errors and confusion in completing the ballot paper. I also mentioned registration. Changing the registration system has ensured that false names cannot be put on the register to allow ghost voters to cast fraudulent ballots, which had been a significant issue in the past.
The noble Baroness, Lady Pinnock, raised postal vote fraud. I am advised that there is no evidence of organised postal vote fraud since personal identifiers were introduced in 2007. Tower Hamlets will pilot changes to postal voting. On the Watford pilot, if a poll card is missing, the elector can cancel it and be issued with a new poll card to enable them to vote. Poll cards are one of the types of photo and non-photo IDs being tested in the 2018 pilots and, as she said, not all of them will involve having photo ID. We are addressing 48 of the recommendations in the Pickles review and will consider measures to improve the integrity of the postal vote process. The 2018 Tower Hamlets pilot will shed some light on how to take this further.
On advising the parliamentary parties—so in response to the noble Lord, Lord Kennedy—I used to be on a parliamentary panel set up by the Electoral Commission. We had regular meetings with the Electoral Commission and all three parties were represented on that panel. Of course, the political parties are represented on the Electoral Commission itself, so when we consult it I would hope that it might touch base with the political representatives on the commission. If not, they will have read this exchange and I am sure they will change their procedures to take on board that criticism. The noble Lord is right that the political parties should be consulted—of course, they are consulted right at the end, as we are doing at the moment in dealing with these statutory instruments.
The ID card system in Northern Ireland is voluntary. You can either get an ID card or use your passport, or some other system. It is very much a voluntary process.
If I have not dealt with all the questions raised, I will certainly write to noble Lords but I welcome their contributions and I commend these instruments to the Committee.
I have just a couple of points. My noble friend Lord Campbell-Savours talked about specific areas. When I was a commissioner, people at the commission would always talk about hotspots but it was never very clear about what was meant and where they are. That is part of the problem; they always went on about hotspots and I remember discussing them, but I could not get much progress at all.
On these instruments, yes, the commission does a good job and consults the political parties through the Parliamentary Parties Panel, which I was a member of as an official for many years. I was one of the first four political commissioners on the commission and when we had our board meeting, we would look at broad-brush things such as policy. We were not sitting and looking in detail at such regulations. Something is missing here. It is not intentional but it is missing and it would be useful to get that on the record and at some point to have it looked at. That is not a criticism but something that has fallen through the cracks.
Local Authorities (Mayoral Elections) (England and Wales) (Amendment) Regulations 2017
Considered in Grand Committee
Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017
Considered in Grand Committee
My Lords, I intend to be brief. Noble Lords will recall that the Digital Economy Act 2017 received Royal Assent in April this year. That Act included reforms to the Electronic Communications Code, which provides the statutory framework for agreements between site providers and digital communications network operators.
The purpose of the reforms is to make it easier and cheaper for digital communications infrastructure to be installed and maintained, ensuring that this statutory framework supports the wider benefits of the UK’s world-leading digital communications services. The reformed code is subject to commencement by a separate statutory instrument, which will not require parliamentary scrutiny. We expect to bring the code into force by the end of December. However, before taking this step, we need to ensure that a number of sets of supporting regulations are in place.
In addition to the regulations before the Committee today, the supporting measures include two sets of regulations that were laid on 19 October 2017 under the negative procedure, which amend secondary legislation and make specific transitional provisions. Together, the purpose of all these regulations is to ensure a smooth transition from the existing legislation to the new code. They will therefore take effect only when the new code commences, which, as I mentioned, we expect to be by the end of December.
The draft Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 amend references in other primary legislation to the existing code and to provisions in the existing code, replacing them with terminology and cross-referencing aligned to the new code.
The draft Electronic Communications Code (Jurisdiction) Regulations 2017 bring into effect one of the code’s key reforms: transferring the jurisdiction for code disputes from the county courts to the Lands Tribunal in England and Wales, and from the sheriff court to the Lands Tribunal in Scotland. This reform was strongly recommended by the Law Commission following its consultation on the code, and is expected to ensure that code disputes can be dealt with more quickly and efficiently. The DCMS has worked closely with colleagues in the Ministry of Justice, and their counterparts in Scotland, to prepare for this change. I beg to move.
My Lords, the Minister has reminded us of our happy days during the passage of the Digital Economy Bill—now the Digital Economy Act. Of course, we all like to be reminded of our days in the salt mines. These regulations are straightforward and we welcome them. I certainly do not intend to raise again any issues relating to the Electronic Communications Code. Certainly, I would not want to provoke another speech from the noble Lord, Lord Grantchester; that would be very unwise.
However, I will make a couple of comments relating to the implementation of the code. As I understand it, Ofcom is issuing a code of practice on top of that. There is some concern that although the direction of travel of the ECC was very clear, the code of practice is in a sense bringing back a slight bias in favour of the landowners. That is a concern of some commentators. One says:
“While the consultation around the code of practice is to be welcomed, if implemented in its current form, the code of practice is in danger of swinging the pendulum back too far in favour of landowners who will be able to challenge operators at every stage”.
I know that the Government were very keen to get the balance right. It will be interesting to hear what the Minister has to say about that.
The Minister may want to write to me about this, but this is a useful opportunity to ask about the direction of government policy in terms of EU regulatory reforms—if we can bear it. It looks like there are plans from Brussels for a new Electronic Communications Code which includes e-privacy regulation. Obviously, before we exit—if we exit—it will continue to be important to keep the digital single market and the single telecoms market in place. The question arises: will there be time? Will the new Electronic Communications Code, however it is brought in—whether by directive or regulation, I am not quite sure—happen? Will it fall outside? Will it be after 29 March? Will it fall during a transition period? I suspect there are many in the telecoms field and the general area of technology infrastructure who will be extremely interested in the answer to that.
Those are the two areas on which I would very much like to have an answer from the Minister, either now or at some stage in the future.
From the noble Lord’s tone of voice, I honestly thought that it was a sunnier experience than that. Between that and a hypothetical happy future, when other things may or may not happen, I will stick to what is in front of us.
It all seems logical to me. I guess the simplicity of the proposals led to this being referred to me, with my simple mind. I understand perfectly that with the developments in electronic communications we have to have methods appropriate for handling the expansions of systems across the land. I note that the speed and effectiveness of dispute resolution becomes a possible consequence of decisions taken. The balance to which the noble Lord, Lord Clement-Jones, referred is indeed mentioned in these documents and is being sought. I am in no position to judge whether the view expressed that suggested movement back towards landowners is true, but I am sure the Minister will answer that question.
There is a consultation. I note that there is to be no impact assessment because there is no impact, it seems. It is nice to have read that at least six times in these papers. I commend all those who have gone through all the legislation, both past legislation in general and localised legislation from across the land. It is a job for somebody and I pay tribute to the nameless people who have done this trawl. It even goes into the county of my birth—Dyfed in south Wales—where I was rather disturbed to find that “statutory undertakers” are now to be called “operators”. In my life’s work as a Methodist minister, I had rather a lot to do with statutory undertakers and I am sorry that they have been defined out of existence.
There is a logic running through this. It is simplicity itself. It tidies up what is in front of us. I have no hesitation in supporting these measures.
My Lords, I am grateful for both noble Lords’ comments. On the question from the noble Lord, Lord Clement-Jones, on the code of practice, it is not yet published. Extensive consultation was carried out. It is a bit difficult to speculate on its content, but it is important to remember that the code of practice is not binding and cannot change the balance that the law delivers. We spent some time considering that balance. It is certainly true that one of the points of the code was that it should enable operators to do things that were taking too long. There is certainly no intention to change that balance. We absolutely understand the need for operators to access land more easily and more speedily, but preferably on a consensual basis. That was the whole object. These regulations are to do with the occasions, which we hope will not be very often, where agreement cannot be reached, so we can go to a tribunal that has expert surveyors and people like that on it, rather than the county court, which is not expert. I say to the noble Lord that we have no intention and there was no desire to change the balance between landowners and operators. We will have to see what the code of practice says. It is not binding, but if need be we can talk to him when it comes out. We expect to commence the code in December. Ofcom has assured us that the code will come out before it comes into force.
We do not know the timings for the European ECC. If it is acceptable to the Committee I will look at some of the questions the noble Lord asked and do some research into them. We might not know the answers. I do not have them to hand, but if we do know I will come back to the noble Lord.
I am pleased that the noble Lord, Lord Griffiths, was able to come in at the end of this long process. He had one of the more happy experiences. I am very grateful to him. With that, I beg to move.
Electronic Communications Code (Jurisdiction) Regulations 2017
Considered in Grand Committee
Criminal Justice (European Investigation Order) Regulations 2017
Motion to Take Note
The Criminal Justice (European Investigation Order) Regulations 2017 transpose an EU directive regarding the European investigation order which standardises the way one member state can ask another for help in pursuing cross-border criminality, through gathering evidence, investigating banking information, executing search warrants or taking evidence from witnesses.
The Secondary Legislation Scrutiny Committee raised questions about how temporary transfers of prisoners to another member state to help with its investigations are to be handled and what assurances there are that the prisoner will be returned. In its fourth report, published on 7 September, the committee said:
“Regrettably, the Home Office has failed to respond in the seven weeks since we made that request. We shall pursue those enquiries directly with the Minister”.
That the committee did, when the Minister of State for Policing and the Fire Service appeared before it on 12 September. I will return to the issue of the Home Office’s failure later.
In its fourth report, the Secondary Legislation Scrutiny Committee stated:
“Given that the changes these Regulations make are all recognised as a significant improvement on the MLA system, the House may wish to know what arrangements the Home Office proposes to make for such exchanges once we leave the European Union”.
I therefore ask the Minister for the answer to the question posed by the committee. In addition, what arrangements would we be left with for such exchanges if we were unable to reach a deal with the European Union on Brexit and leaving the European Union?
Turning to the committee’s concerns in relation to the provision allowing a prisoner, with his or her consent, to be temporarily transferred to the custody of another member state, can the Minister confirm that it will be Ministers who have to authorise such a transfer, rather than an official or officials, and that in so doing Ministers would need to be satisfied that it was only through the transfer being agreed that the necessary information or evidence could be obtained by the member state seeking the transfer?
Moving on from that stage in the process, what will happen if the receiving member state fails to return a transferred prisoner within a timescale which the authorising Minister here would presumably lay down clearly when agreeing to the temporary transfer? What is the redress available, how is it available, and how long would it take for that process to be completed successfully? It would not be a very effective process if it took any length of time at all to activate and for a conclusion to be reached which had real teeth, resulting as a minimum in the individual being promptly returned. I have to say that the responses given to the committee on this issue were, to say the least, somewhat vague. I hope that we can have greater clarity when the Minister responds to this point.
I referred earlier to the Minister for Policing and the Fire Service appearing before the Secondary Legislation Scrutiny Committee. In its fifth report, published on 14 September, the committee expressed its thanks to the Minister for meeting it and for the fulsome apology he made,
“for the lamentable lapse by his department in failing to answer our queries in a timely manner”.
The report went on to say:
“The Committee pointed out that the reason that they had so many questions was because the EM presented with this instrument assumed the reader had an extensive knowledge of both Directive 2014/41/EU and of the current UK system”,
contrary to the committee’s guidance, which,
“makes clear that we expect an EM to assume the reader has no prior knowledge of the subject and a better-targeted EM could have avoided the need for some of our more basic questions”.
Can the Minister say why the Home Office’s Explanatory Memorandum did not comply with the Secondary Legislation Scrutiny Committee’s guidance?
The committee went on to say in its fifth report:
“The Minister described the failure to respond to the Committee’s letter as an isolated incident, and the circumstances around it were being considered at the highest level in the Home Office. The Committee however commented that we had been in this position before: Home Office Ministers in July 2015 and November 2016 had both given undertakings to improve the way that the Home Office’s statutory instruments are presented. This case not only raised questions about the Home Office’s mechanisms for dealing with Parliamentary requests and the priority that they are given but also about the quality of the EM and the clearance process”.
Particularly in the light of the committee’s comments about the EM for this order, can the Minister spell out the changes that were made to process and procedure to deliver the commitments given by Home Office Ministers in July 2015 and November 2016 that the way the Home Office’s statutory instruments were presented would be improved? Can he also spell out exactly what changes have been made to process and procedure following the discussions “at the highest level” in the Home Office on the circumstances surrounding the delay in responding to the committee’s letter and to which the Minister for Policing referred in his oral evidence to the committee?
When the Minister for Policing appeared before the committee in September, he appeared to be unaware of the previous transgressions by his own department in July 2015 and November 2016. That in itself does not suggest that the department and its Ministers have taken as seriously as they should the concerns previously expressed by the committee. The Minister can help to quash any such thoughts by spelling out the precise actions taken by Home Office Ministers to properly and effectively address the concerns raised by the committee in each of the past two years. Responsibility lies at ministerial level, since Ministers gave the undertakings. He could also help to quash any such negative thoughts by spelling out the actions that have been taken, or will be taken, by Home Office Ministers to address the concerns raised by the committee in September about the failure to respond to its letter in a timely manner.
Finally, can the Minister say whether, first, the Home Office, and, secondly, the Government, accept—and will ensure that they abide by—the Secondary Legislation Scrutiny Committee’s clear statement in its fifth report that,
“although an increased volume of SIs was to be expected from all Government departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”?
I beg to move.
My Lords, I do not propose to deal with the post-Brexit situation; that is a land from whose bourn no traveller returns unscathed. I will, however, raise with my noble friend a couple of questions around the situation as proposed in the EIO.
I need to declare two interests. First, I am a trustee of a charity called Fair Trials International. As the name implies, we are concerned with the operation of justice. I do not speak for the organisation. As far as I know it has no objections to the EIO in principle. I support the idea that we have an opportunity to execute judicial arrangements swiftly, clearly and fairly. I hope, therefore, to get reassurance—I am sure that I will get it—from my noble friend about how things operate on the ground in real life as opposed to the calm deliberations at a quarter to seven on a Wednesday evening in the Moses Room. Secondly, I was a member of the Secondary Legislation Scrutiny Committee, and I am afraid that I was the person responsible for raising the “temporary” issue. I left the committee half way through this matter, so I have form where this is concerned.
It is obvious that for a state to hand over a citizen to another state is a fundamental decision. One of the primary reasons for the existence of individual states is the protection of their citizens as individuals. I hope that the Minister and the Committee will forgive me if I go through a practical example for a couple of minutes and get the Minister to explain to me how the real-life situation works. I note from paragraph 3.1 of the Explanatory Memorandum that so far only nine countries have signed up to the regulation. There is a larger list in Schedule 2 on page 40 of the SI, so I presume that all will eventually become signatories and abide by the convention.
My real-life example is not of concern to noble Lords: we all know where to press the hot buttons to protect our position. There are, however, many people who are less able to defend themselves. Let us assume that I am a football fan and I am going to Bucharest in Romania to watch a European football match. That country is on the Schedule 2 list, not on the list in paragraph 3.1 of the Explanatory Memorandum. Let us assume that it has signed up to this. I am going to see my team play Dinamo Bucharest, a good, quality European team. I go to the match and it is fine. After the match I go into a bar with some friends. We have some drinks and a good time is being had by all, but a fight breaks out in the street outside, somebody is stabbed, and people spill into the bar to try to get away from the violence. Understandably, the police are called. Of course they either anticipate trouble—or sometimes welcome it, as a chance to have a bit of a go at the football fans, whom they do not necessarily regard very highly. I am sitting there with my friends and am required to give my passport number and details, which I am happy to do, and then I go home.
A couple of months later, the man who was stabbed outside has died, and I am served with an EIO to come and give a witness statement about what I saw and what happened to me that night. This is where I would like the Minister to take me through the process. I assume that the EIO is then served, like the European arrest warrant, through a magistrate, probably through Westminster which is where the EAWs go, but I would like to be certain about that. The magistrate can dismiss the application, but if he grants it, as I read this regulation, various options are open to him. He can make a deposition under oath, arrange a telephone conference call, arrange for an interview by closed-circuit television, or he can arrange for my physical transfer. As I understand it, I have to consent to transfer, although I would like the Minister to confirm that.
If I am transferred, that places a considerable burden on me for reasons which I shall explain in a minute. How can I be certain that the magistrate, or whoever is the investigating authority, is certain that the transfer is the last resort? It may be that the police and the investigating authorities in Bucharest would much rather have me present, saying, “We really would like to get Hodgson here because he’s a serious witness, and we don’t think it’ll work well with closed-circuit TV”. How do we make sure that that is the last resort? After that, who is it who actually lets me go? The noble Lord, Lord Faulkner of Worcester, asked in the Secondary Legislation Scrutiny Committee,
“whether it will be the Home Secretary personally who will be authorising the prisoners to be sent abroad under these orders or some designated official and if it is an official, what sort of official will it be?”.
Mr Hurd, a Member of Parliament, replied that it will be “the Minister”. Does that mean every single EIO goes across the Home Secretary’s desk? I will be delighted to be told that that is the case. The idea of the EAW is that it is a much faster and slicker arrangement than that. I would therefore like to be certain that the answer—which I am sure was given in good faith—is accurate.
On arrival, when I have been transferred to Bucharest, I give my evidence. However, there is a question about the availability of translation services—that need not concern us because it is not part of this regulation—not only of whether the questions are being adequately translated, but also of whether I understand their significance. The questions asked in different jurisdictions may have different weight attached to them, but that is another question. How do I know when I will be free to return? There is a suggestion here that the authorising person, the Minister, will say that it will be so many days or weeks. Will it happen and how is my judicial representative able to say, “That’s not fair. It’s too long”. Alternatively, is it just ex cathedra with, “Sorry, you’re going for 10 days”, or a fortnight, or whatever? When I am there, and the police are certain that they have got me bang to rights, innocent though I am, they say, “Thank you for your evidence, that’s great”, but they say to themselves, “The case isn’t quite ready yet, but it’ll be ready in two or three days. Since Hodgson’s clearly guilty, let’s hang on to him”. “Two or three days” becomes a week, becomes two weeks, three weeks and so on. We need be clear about what “temporary” means and how it works. Nick Hurd makes it perfectly clear in a letter to the committee that a prisoner “must be returned”, but he does not say actually when. I am a football fan. A month without any pay may interfere with my ability to pay my rent or mortgage, put food on the table for my family and, above all, if I do not know when I am going to come back, to make alternative arrangements to deal with my developing domestic circumstances.
I repeat that I do not oppose the measure as it is a useful adjunct to inter-judicial co-operation between us and other countries, making sure that people who have committed crimes are dealt with and sorted out quickly, but I am worried about the potential gap between the perfectly drafted legal system laid out in the papers before us and what actually happens to a person who is not terribly sophisticated, does not always know their rights and may or may not have access to first-class legal advice. He or she surely needs to have real protections before we transfer them to a state elsewhere—any state. It is a matter of principle that we look after our citizens. We need to make sure that if we send them abroad, we do so with the proper protections and provisions to ensure that their interests as citizens of the United Kingdom are safeguarded.
My Lords, I welcome this short debate. The European investigation order is a valuable instrument. Therefore, I am pleased that the Government are implementing it. I was involved with it when I was a Member of the European Parliament. I was the lead MEP for the liberal group and involved in all the co-decision negotiations with the Council in finalising it. It has been a source of regret to me and, I think, to my political colleagues in the European Parliament that successive British Governments have not fully taken part in the fair trial rights side of the EU programme alongside enforcement measures such as the European arrest warrant and the European investigation order—that partly relates to what has just been said.
I am a patron of Fair Trials International and a huge admirer of its work. The EIO is a sort of European arrest warrant for evidence. A fair criticism of the European arrest warrant is that it was occasionally used as a fishing expedition. It was meant to be used only from the perspective of charge and prosecution.
I do not think that that is in the EAW framework decision, but it was much discussed in the Julian Assange case with Sweden. Certainly, you had to be on the brink of those further stages of charge and prosecution—not when you just wanted to interview someone and were trying to collect evidence. I hope that the EIO will take the weight off the European arrest warrant and stop it being misused. That is all good. The EIO is for evidence; the search is for interception. It is much more efficient for police and prosecutors than relying on the rather clunky EU mutual legal assistance convention of 2000, which has never really worked. As the committee points out, it would be a very retrograde step to fall back on the MLA convention, just as having to fall back on bilateral extradition agreements under the aegis of the Council of Europe will be an alarmingly backward step if the UK is unable to stay in the European arrest warrant if we Brexit. So, like the noble Lord, Lord Rosser, I echo the question put by the committee about what concrete arrangements the Government propose to continue the efficiency and effectiveness that the EIO will deliver, as the European arrest warrant already does. In one of the committee’s reports, the Minister apparently said that,
“he hoped that close cooperation between Member States on security matters would continue, but the precise nature of future relations would be the subject of negotiation”.
Many of us are really quite eager to know how the Government propose to continue this essential cross-border police and prosecution co-operation.
I also want to ask about Regulation 28. Article 11(1)(f) of the directive gives us a ground for non-execution by the country which executed the EIO where,
“there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter”.
We fought long and hard in the European Parliament to get those grounds for refusal in. Had they been in the European arrest warrant, we might have avoided some of the scandals which gave the EAW a bad name. One that Fair Trials International was deeply involved in concerned a constituent of mine when I was an MEP for London, the Andrei Simin case. It was a completely scandalous case where a young man had spent 18 months in appalling conditions in a top security jail in Athens before finally being released. It was a complete miscarriage of justice. I am afraid that those who did not like criminal co-operation measures jumped on that case in order to bash the EU over the head, as well as the idea of efficient extradition arrangements.
Regulation 28, which ostensibly transposes the directive, coyly does not actually spell out the human rights grounds for refusal; instead we have to refer to Schedule 4, which refers only to the grounds for refusal being incompatible with the European Convention on Human Rights within the meaning of the Human Rights Act. That of course is a non-EU measure, so there has been a complete wiping out of any reference to the charter because paragraph 1 of Article 6 of the Treaty on European Union states:
“The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights”.
The Minister may know of the charter because there has been some discussion of it during the passage of the Data Protection Bill, and I hope there will be more. It covers some grounds that are not in the convention and some provisions which are more modern and stronger than the European Convention on Human Rights. Unfortunately, there is a mood in some circles that is antipathetic to the European Charter of Fundamental Rights, which has always been much misunderstood. Put Europe and human rights together and many people start to jump up and down. However, the whole point of the charter is to protect people from the abuse of EU law by either EU institutions or member states. It is a protective measure for citizens. It is not about enlarging the powers and competence, but about restricting them in the name of EU law. A Home Office official giving evidence to the committee on the transferred prisoner issue referred to how such a person could raise a complaint under human rights. Surely the much fuller and stronger charter would be relevant and useful in, for instance, a case where there was any problem about the return of a transferred prisoner.
I will just correct myself—I am sorry, it has been a long week. It was the Symeou case. I ask Hansard to note that: Andrew Symeou was the person who suffered a miscarriage of justice under the European arrest warrant.
My last act as an MEP was to write a report calling for the reform of the European arrest warrant. One of the things I wanted was a clause similar to the one I have just invoked from the European investigation order. That was the first time the European Parliament had managed to get such a clause into an EU law enforcement measure. The failure of the Government to invoke the charter in this measure weakens the protection of people from any kind of abuse or misuse.
Finally, in answering the committee’s question about safeguards for the transfer of prisoners, the Home Office legal adviser explained that any recourse for problems in returning a transferred prisoner or a piece of evidence would be a matter for the European Court of Justice. That was in evidence to the committee in its recent report. Under the Government’s plans, if they happen, what happens after March 2019, or at least after a transition or implementation period, as the Government prefer to say? What alternative protection to court protection would replace the ECJ?
My Lords, I am very grateful to the noble Lord, Lord Rosser, for allowing us to have this debate on the EIO. I will focus on the principal points raised during our discussions, which are, as I understand it, the failure of the Home Office to respond in time to the request for information from the committee and the language it used—I have read in full the minutes of the Secondary Legislation Scrutiny Committee’s meeting on 12 September. Then there was the question of what happens to the football fan, posed by my noble friend Lord Hodgson, then the issues of what happens to the prisoner transferred and their protections. Finally, there was the broader question of what happens post Brexit.
Rather than read out a fairly long brief about why the EIO is a marvellous instrument, I will focus on the specific issues raised during the discussion, beginning with the failure of the Home Office. The noble Lord, Lord Rosser, made the point that it was not the first time the Home Office had apologised for late submissions to the Lords committee. He asked why the assurances given on an earlier occasion had not been fulfilled and delicately asked why we should believe the assurances that have been given this time.
I begin by apologising yet again, as my honourable friend Nick Hurd did, for the time it took to respond to the request from the committee in respect of this legislation. There was a breakdown in the process for handling this piece of correspondence in the department. It was a serious administrative error. I and Ministers in the Home Office take the business of parliamentary scrutiny very seriously. Officials have looked into what happened to learn the lessons and to ensure this does not happen again. They have now put in place a robust process to improve the quality of the material put before parliamentary scrutiny committees. I read the comments from, I think, my noble friend Lady Finn, who complained about the language used.
This supervision includes personal oversight by Ministers, with a named senior civil servant held personally accountable throughout the development of the draft instruments. New quality assurance and trading interventions are already under way. These are all intended to reduce the need for committees to seek additional information and to ensure that when such requests are made there is a clear line of sight throughout the department to ensure that they are expedited.
The matter has been considered at the Home Secretary- chaired regular departmental Ministers’ meetings, which I now attend, to ensure that it is addressed and discussed at the highest level. I hope that this will assure the noble Lord, Lord Rosser, and others, that we take this very seriously.
Absolutely. As somebody who has been a Minister on and off for nearly 20 years, I am a fully-paid subscriber to ministerial accountability and responsibility to this House and the other place. I am not a Minister who will, if this happens again, pass responsibility on to civil servants.
On the question of the language, I apologise again for the quality of the memorandum on this occasion. As I said a moment ago, the Home Office has put in place robust processes to improve the quality of material put before the scrutiny committee, and again, this includes personal oversight by the Ministers, with a named civil servant within the apartment accountable for the development of these draft instruments. As I said a moment ago, the buck stops with Ministers.
In the example given by my noble friend Lord Hodgson, he would not be a prisoner in the UK, therefore the temporary transfer provisions simply would not apply. They apply only if the person is a prisoner in the UK. The Secretary of State then has to be satisfied, first, that the prisoner consents, and secondly, that no alternative means of providing evidence exists. In the evidence given by Stephen Jones on 12 September, we read:
“Baroness O’Loan: What if the prisoner refuses to go? … Stephen Jones: If the prisoner refuses to consent to the transfer taking place, then it will not happen”.
I hope that reassures my noble friend that he can go and watch his favourite football team in Bucharest and be an innocent witness to an exchange which may result in a crime being committed. He can come back to this country confident that he will not have to go back there under the provisions of the EIO.
The noble Baroness, Lady Ludford, and the noble Lord, Lord Rosser, raised the question of what will happen if a prisoner is not returned. First, the temporary transfer of persons held in custody for the purpose of investigation has already been possible for a number of years under the existing mutual legal assistance system, which the EIO replaced, so this order is not introducing a new provision. However, the UK central authority’s records suggest that the numbers for transferring prisoners held under custody are extremely low. We are aware of one instance of this happening in the past five years. The prisoner is normally able to give evidence in person through court or through video telephone conferencing, and it would have to be authorised by a Minister.
Under the directive, a country receiving a prisoner under an EIO must return the prisoner back to the executing state. However, I accept that the point is not explicit in legislation, which I think was the point raised by the noble Baroness, Lady Ludford. As with other matters relating to EU law, the Court of Justice of the European Union will be competent to give a view, in this instance on the application of the directive, and in particular on the interpretation of Article 22.1, which we consider makes it clear that a prisoner has to be sent back to the executing state—the UK—within the period stipulated by the executing state. Such an interpretive ruling would be binding on the member concerned.
I do not have the answer at my fingertips. Clearly, it would have to go through the judicial process. As I indicated, we have transferred only one prisoner in the past five years and in that case there was not a problem with the prisoner being returned. In these circumstances the European convention offers similar protections to those in the charter but, unlike the EAW, which I think was mentioned by the noble Baroness, no detention or transfer can take place without consent under an EIO. I am advised that an urgent procedure is available if the person is in custody. That seems only fair. But I take the point that the noble Lord and the noble Baroness would like more information on this. I am also advised that effective dispute resolution mechanisms and protections for UK and EU citizens will be agreed as part of the negotiation on our future relationship with the EU.
That brings me to the final point raised. The fact that both noble Lords raised this indicates that when we do negotiate post Brexit, these particular issues need to be tied down to avoid any problems of delay in resolution. The question was: what contingency plans are in place in case no deal is reached with the EU and, indeed, what are we planning to do as part of an agreement? As the Prime Minister made clear in her Florence speech, we are unconditionally committed to maintaining Europe’s security now and after we leave the EU. What we must do now is agree the mechanisms to support ongoing co-operation. It is in no one’s interests that either the UK or Europe suffers a loss of operational capability as a result of the UK’s exit.
We have proposed a bold new strategic partnership with the EU, including a comprehensive agreement on security, law enforcement and criminal justice co-operation. That was set out in a paper on those subjects, which I think was debated earlier this year. We are seeking an overarching treaty with the EU that provides for practical operational co-operation, facilitates data-driven law enforcement, and allows multilateral co-operation through EU agencies. It is too early to say what future co-operation we may have in relation to individual measures, such as the EIO. In leaving the EU, we will end the direct jurisdiction of the Court of Justice of the EU. But there is significant precedent for the EU to have co-operation with third countries, including co-operation closely aligned to areas of EU law, but there is no precedent for a third country to submit to the jurisdiction of the CJEU. Effective mechanisms will be necessary to ensure that obligations that are agreed will be enforced after negotiations on the treaty.
I was asked what contingency plans are in place in case no deal is reached with the EU. We are confident that continued practical co-operation between the UK and EU on law enforcement and security is in the interests of both sides. The EU 27 made it clear in their Article 50 negotiating guidelines, published in April, that:
“The EU stands ready to establish partnerships in areas unrelated to trade, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy”.
So we approach these negotiations anticipating that an agreement in this area can be reached. We do not want or expect a no-deal outcome. But a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government.
I hope I have addressed the specific issues raised.
As I understood it—and the noble Baroness, Lady Ludford, referred to this—one of the weaknesses of the EAW was that it was being used for fishing expeditions, which tended to undermine it, and that the EIO was to fill that gap; in other words, you could ask questions which did not require an EAW, which had been brought into disrepute in some senses. But that is not the case, is it? You have to be a prisoner before you can have an EIO, so we are back to fishing expeditions again. There is no way that an EIO could be served on the ordinary person in the street because they are not a prisoner. Our concern about fishing expedition continues, I think.
It goes back to what the EIO aims to do. Basically, it is a judicial co-operation mechanism for providing assistance in investigating and prosecuting criminal offences and it replaces the existing scheme; that is, the existing EU and Council of Europe mutual legal assistance measures. It does this through introducing mutual recognition of other member states’ judicial decisions. As my noble friend said, it standardises the process for making requests by using a template form rather than a letter of request, and it specifies time limits for responding. All the evidence shows that it is already working quite well. A number of requests have been made and processed, and it is proving to be a much more efficient system than the one it replaces. As more member states sign up to the EIO, we believe that it will be an improvement on the previous mutual legal assistance scheme.
I am not sure that I have fully understood the point made by my noble friend, in which case I shall read it again in Hansard. I will drop him a line and hope to give him and the noble Baroness an assurance. As I have just said, the EIO is a mutual legal assistance measure. An individual can give a voluntary statement under an EIO or could be compelled to come to court in the UK in the same way as in domestic proceedings. I hope that that gives my noble friend the answer he was seeking.
Perhaps I might invite the Minister to agree that one thing that would help in the situation of both the EIO and the EAW would be if the person concerned had legal advice and representation at both ends of the system. One of the regrets that I referred to in general terms was that the UK has not opted in to the directive on the right to a lawyer. That was a great shame, notwithstanding the controversies about legal aid. When the measure was agreed a few years ago, the gold standard was access to a lawyer. Had we opted in—hope springs eternal and there is still time—that would have motivated other member states to make sure that they came up to the mark, because a person who has legal advice and representation is going to be in a much stronger position to contest any unfair treatment.
It is a great pity that the UK, with its strengths in the rule of law and justice, has not opted in, apart from to the directive on interpretation and translation—which, contrary to the remark made by the Advocate-General for Scotland last week, is a directive, not a regulation. I was the rapporteur on it. Unfortunately, the UK did not choose to take part in the other ones in the so-called Stockholm programme of defence rights, so we have an unbalanced participation. I think that it would give everyone more confidence if the UK had a more balanced participation. I suppose that I am only asking the Minister to accept my remarks.
I think I will respond to those remarks rather than accept them. The noble Baroness prefaced her remarks by saying “notwithstanding any arguments about legal aid”, but I think that that is probably exactly the issue, in that the proposition she has just put forward would mean extending legal aid into an area where it does not exist at the moment. That takes us into a broader argument about legal aid. Perhaps I might offer to write to the noble Baroness if I have misunderstood her comments.
I raised one question at the end of my remarks which I do not think the Minister has responded to, and I am quite happy to repeat it. It refers to a statement at the end of the fifth report of the Secondary Legislation Scrutiny Committee. I asked whether, first, the Home Office and, secondly, the Government, accept—and will ensure that they abide by—the committee’s clear statement in its fifth report that,
“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.
My question was, first, does the Home Office accept and will ensure that it abides by that and, secondly, do the Government accept and will ensure that they abide by it?
I have in front of me the response given by the Minister to the committee—it was right at the end—to a question from my noble friend Lord Kirkwood of Kirkhope. He asked:
“Can you give us some assurance as the numbers ramp up that you think the quality will not suffer?”.
Mr Hurd replied:
“I can give you as much reassurance as I can. It needs to be tested. There will be a high volume of secondary legislation, but I am absolutely sincere in saying I hope and believe this instance we had to come and apologise for is exceptional and will not be repeated. It is a basic function of any department to support Ministers in the scrutiny process with Parliament. I cannot guarantee that balls will not get dropped at all because to err is human, but that is what has happened in this case”.
In its fifth report, the committee also made it clear that,
“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.
I accept that.
I am not quite sure what answer I have had. I would have thought it fairly clear that if I asked whether that also represented the Government’s view, as opposed to the Home Office view, the Minister could have said either yes or no. I invite him to say either yes or no. Do the Government intend to accept and abide by the statement that he has just repeated, which appears at the end of the Secondary Legislation Committee’s report?
At the risk of bringing my ministerial career to a premature end, I can say yes. Of course the Government accept the principle that the committee has made clear: that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny. I am happy to put my name to that proposition.
I thank the Minister for his responses. I am sure that he would not say that he found himself in a difficult situation, since he has had no responsibility for the Home Office’s failures to which we have referred and which were referred to in the committee’s report. I am very grateful to him for making it clear that if there are further failures by the Home Office, the responsibility rests fair and square on the shoulders of Ministers. It is just not good enough to turn up in front of a committee or to make statements that somehow it is due to an administrative failure, which by implication means that they are passing the buck on to officials. Ministers gave assurances; Ministers are responsible for seeing that those assurances are kept and, if they are not, it is only Ministers who are responsible and accountable for that. They should be prepared to accept that responsibility if they have to appear in front of the committee again, and not seek to say words which imply that somebody else within the department at a lower than ministerial level is somehow responsible.
I also thank the noble Lord, Lord Hodgson of Astley Abbots, and the noble Baroness, Lady Ludford, for their contributions to this debate and for the issues they raised, along with the questions they asked and to which the Minister has had to respond. I say in closing only that my motive in tabling this Motion, apart from raising my specific questions, is that we have some duty when we see such a report from the Secondary Legislation Scrutiny Committee to make sure that it is debated. I do not think that the committee is prone to making such critical comments and observations about a department—and, in this instance, its failure—every five minutes. I think it really would have to be pushed to feel moved to write its fourth and fifth reports in the vein that it did. I will leave it at that and thank everyone who has participated. I thank the Minister again for his responses and, since this is a take-note Motion, I take it that this Committee agrees to take note of the Motion.
Committee adjourned at 7.29 pm.