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Grand Committee

Volume 789: debated on Thursday 15 March 2018

Grand Committee

Thursday 15 March 2018

National Minimum Wage (Amendment) Regulations 2018

Considered in Grand Committee

Moved by

That the Grand Committee do consider the National Minimum Wage (Amendment) Regulations 2018.

My Lords, I beg to move that the National Minimum Wage (Amendment) Regulations 2018, which were laid before the House on 5 February 2018, be approved. The purpose of the regulations is to increase the national living wage and all of the national minimum wage rates from April 2018. The regulations also include an increase in the accommodation offset rate, which is the only benefit in kind that counts towards minimum wage pay.

The national living wage has had a real, positive impact on the earnings of the lowest paid: between April 2015 and April 2017 those at the fifth percentile of the earnings distribution saw their wages grow by almost 7% above inflation. This is faster than at any other point in the earnings distribution and, according to the Resolution Foundation, wage inequality, as measured by the ratio between the top decile and the bottom decile of the earnings distribution, fell in all regions of the United Kingdom between 2015 and 2017 thanks to the national living wage. Increasing the minimum wage is one more way in which the Government’s industrial strategy is boosting people’s earning power and seeking to raise productivity throughout the United Kingdom.

From next month the national living wage for those aged 25 and over will increase by 33p to £7.83, which is a 4.4% increase. The 33p increase in April will mean that a full-time worker on the national living wage will see their pay increase by over £600 over the year. The national living wage is on course to reach the Government’s target of 60% of median earnings by 2020.

The 21 to 24 year-old rate will increase by 33p, meaning those in that age group will be entitled to a minimum of £7.38—an annual increase of 4.7%. Those aged between 18 and 20 will be entitled to a minimum of £5.90—an annual increase of 5.4%—and those aged 16 and 17 will be entitled to a minimum of £4.20, an annual increase of 3.7%. Finally, apprentices aged under 19, or those aged 19 and over in the first year of their apprenticeship, will be entitled to £3.70, which is the largest annual increase of all the rates at 5.7%.

All of these above-inflation increases represent real pay rises for the lowest-paid workers in the United Kingdom. For younger workers on the national minimum wage, it is the largest and fastest increase in more than 10 years. The Government’s green-rated impact assessment estimates that more than 2 million people will directly benefit from these regulations.

All of the rates in the regulations have been recommended by the independent and expert Low Pay Commission. The LPC brings together employer and worker representatives to reach a consensus when making its recommendations. The Government asked the Low Pay Commission to recommend the rate of the national living wage so that it reaches 60% of median earnings in 2020, subject to sustained economic growth.

For the national minimum wage, the LPC has recommended rates that increase the earnings of the lowest-paid young workers without damaging their employment prospects by setting it too high. I thank the LPC for the extensive research and consultation that has informed these rate recommendations, all of which was set out in its 2017 report, published in November.

The Government recognise that, as the minimum wage rises, there is a higher risk of non-compliance as a larger share of the workforce is covered by the minimum wage. The Government are committed to cracking down on employers who fail to pay the national minimum wage. We are clear that anyone entitled to be paid the minimum wage should receive it. Consequently, the Department for Business, Energy and Industrial Strategy has increased funding for HMRC national minimum wage enforcement to £25.3 million this year—up from £13 million in 2015. HMRC follows up on every complaint it receives, even those which are anonymous. These include those made to the ACAS helpline, via the online complaint form or from other sources.

In 2016 HMRC recovered pay arrears in excess of £10.9 million for more than 98,000 workers. Those employers who underpay their workers the minimum wage face public naming by the Government. Indeed, last Friday BEIS named 179 employers who had underpaid a total of £1.1 million to 9,200 workers.

Sustainable increases in minimum wage rates depend on strong employment growth. Over the past year the UK labour market has reached a record high employment rate, and the lowest unemployment rate since the 1970s. Evidence has long told us that investing in human capital is crucial for the long-term productivity of the workforce. The industrial strategy sets out our long-term vision for increasing productivity, including through raising the minimum wage and so boosting the earning power of the lowest-paid workers. Through these regulations the Government are building an economy that works for everyone. I commend the regulations to the Committee.

My Lords, I thank the Minister very much for his introduction. I will not go back over the recent history of the introduction of the national minimum wage, because I think it is now a settled agreement between all the parties that it is a good thing. It works for all sections of society, but particularly for the lower paid, and we have evidence before us that shows that.

While we are in congratulatory mode, I thank the LPC, as the Minister did, for its work. It is often unsung and not very visible, but it is well rooted in the interest it has in this area and I know that Ministers value the work that it does. I also congratulate the team responsible for the paper before us. It is a bit of a shock to have to read back through some of the stuff one thought one had forgotten a long time ago about microeconomics and the impact of some of the very narrow points raised in the 51 pages or so of the supplementary work, which I am sure the Minister has in his mind and can quote extensively from memory. It is a very good read and very interesting. It agonises a lot about issues that we do not need to detain the Committee with, but it is important that that work is done. I appreciate the fact that it is there and we should publicly recognise the contribution made by it.

Having said that, while I give an alpha plus for the work that has been done, I give it a beta minus for presentation. I came to this slightly late, otherwise I would have raised it earlier, but it is unfortunate that some of the pagination has been lost in the form that the document comes to us. The pagination matters because, for instance, on page 15 of the copy we have from the Printed Paper Office there is a box that should be on one page but which has gone on to several pages. It makes it very difficult to pick up where we are on that. On page 17 there is a rather complicated and important wage distribution graph that is only really readable in colour, although it is printed in black and white. It therefore does not make sense. You have to spend quite a lot of time working out which of the confidence limits percentages are being referred to in the text. If they had been colour coded one would have been able to do so. I am not complaining about this; I am just pointing out that intelligibility would be improved if we could think more about a reader who is not directly involved.

I will make three points—but before I do, I will say that this is the third time that I have responded to this particular instrument, so I am quite familiar with the process, and in particular the rather neat shuffle that took place this time last year, or maybe six months ago, when we moved from October to April. Last time the instrument came partly under the national minimum wage and partly under the living wage. It did the work of assessment and thinking in terms of the minimum wage but prefigured how we would move to the living wage. This is a simpler and more straightforward document than we had the last time we went through this.

Having said that, we have lost a little bit of the context for the decisions that are quite important in this area, which is that the move from the minimum wage to the national living wage is one of significant increases over a relatively short period of time to jump-start an increase in funds at the lower end of the pay spectrum. We absolutely welcome that, but I have lost the thinking of why we are doing it over three years. Also, the Minister used the phrase “subject to satisfactory economic growth”. Well, economic growth is not very satisfactory. For reassurance’s sake, may I have a confirmation that there are no red lights about the future of this and that, as far as we are able to say at this stage, we are still on track to do this oddly phrased equal bite, or single bite, or whatever it is called—it is called the “straight line bite path”—movement from the current position to hit 60% of the median earnings in October 2020, and that there is nothing I have missed in this that would suggest there is any doubt about whether we will do that, subject obviously to the overriding concern about economic growth? It is important to give reassurance if we are at that stage.

Another minor point is that the percentage increases in individual hourly rates are good. One could perhaps make a little too much of 5.7% arising from a 20p per hour rate increase for apprentices, but nevertheless it is valuable in itself. However, the rates are significantly higher than they would have been otherwise and indeed contrast with the reduction in real wages which we are seeing elsewhere in the economy—so to that extent it is doubly welcome.

Having said that, the LPC has recommended, and as far as I can see the Government have accepted without comment, a much bigger increase in the disregard for accommodation rates. I wonder if the Minister could give me some thoughts on that. This is a sensible way of treating those who have accommodation benefits. I do not dispute the principle, but the particularity of squeezing cash in the pocket or the purse, as it were, by raising the disregard for accommodation at a higher rate than the increase in pay seems a little unfair. Is there any context around that in documentation that we have not seen? I would be grateful if the Minister could tell me that today. If not, I will be happy to receive a letter.

My final point concerns compliance issues. When we discussed this on the last occasion we were concerned because we were aware of reports in the press that quite a number of people were complaining that they had not been given the statutory entitlement of the national minimum wage at that stage and were concerned that as the national living wage came in they might again be differentiated. It is therefore good to hear about the activity that is going on in terms of the statutory powers that the Treasury can take to name and shame, which the Minister referred to, and the penalties that could apply to persistent offenders. I make no comment on that, but there is nothing much in the memorandum as presented on that. I hope that the next time around we could be given a little more detail rather than relying on the Minister’s response.

Finally, on the 20 or so pages around the counterfactual, this is a matter for deep economic consideration and analysis. Perhaps I may put it to the Minister that if it is clear—and I think that it is clear now—that the vast majority, if not the entirety, of employers are now moving to wage increases on an annual basis, which the evidence suggests they are, and they are broadly taking as given that the national minimum wage is the wage that is offered at the low end of the wage spectrum, the wish to have a counterfactual against which one measures the impact this is having on employment, efficiency and to some extent productivity seems, as the paper concludes, rather a lost cause. Might it be more effective to think about wider issues rather than simply concentrating on what would be the best way of measuring a totally hypothetical wage that cannot be paid and will not be paid either now or in the future so that we can measure whether the national living wage has any effect at all, other than accidentally, on the overall economy?

My Lords, I have two or three points to make on these regulations. We welcome the move to increase the rates and we support that policy. Obviously, evidence over the past few months has shown that the economy is slowing. We have some quite serious problems in the retail sector and cutbacks in catering, with a lot of chains in financial difficulty. The other sector I would like to mention—here I must declare an interest as the chair of Housing & Care 21, a housing association with considerable care interests—is the whole care sector, which is under huge pressure. Obviously, this is a further burden in terms of costs—and not just for the operators because, given that the health service does not protect a lot of people in this sector, those costs are coming straight out of the pockets of consumers. I hope that the Government are paying some attention to these sectors and I should like to ask the Minister what they are doing.

A key issue is the degree to which productivity will increase in order to absorb some of the significant costs that are being imposed on these low-wage sectors. What are the Government doing? We have various estimates of productivity, but what initiatives are the Government taking to encourage productivity growth in these sectors? What case studies are they implementing to judge the impact of labour costs in these sectors? What policy initiatives are being speeded up—particularly, I hope, in the care sector—to address the fact that the sector is very labour-intensive and that inevitably the costs will impact directly on some very needy people who are not catered for by the National Health Service? The Government’s delay in producing their social care policies is a major consideration as this policy of increasing the living wage continues towards the Government’s targets.

Finally, as we seek to improve to improve rates of low pay, the best scenario in which to do it is one in which the economy is growing well, living standards are increasing and we have no undue pressures. We know, however, that we are now facing a period of low growth and that, because of the movement in the exchange rate and the rise in costs—particularly those imposed by these measures—living standards will be squeezed. On top of that, the Government will impose on the economy the huge costs of Brexit. The Prime Minister has admitted that Brexit will affect jobs and standards of living, regardless. I would therefore like to know what specific measures and initiatives the Government are taking to deal with these problems, which could undermine their low-pay strategy.

My Lords, I thank both noble Lords for their helpful contributions to this debate and their broad welcome for these regulations. I will deal with the regulations and their attached documentation, and the concerns of the noble Lord, Lord Stevenson, that they were not set out exactly as they should be. I will ask the officials to send him a more readable version. More importantly, we take note of what he said. I will make sure that we do somewhat better at setting these documents out and making them clear to the noble Lord and other noble Lords taking part.

The noble Lord was also rather worried about why I used the expression “subject to economic growth”. The important point here is that the Low Pay Commission makes its recommendations in the light of an array of matters, and—as the noble Lord will know—it includes representatives of employers, employees and others. Ultimately, it makes recommendations and it is for the Government to make the decision. Those who are somewhat higher up in the Government—the Chancellor and others—have to take into account the effect on the economy of the Low Pay Commission’s recommendations, though we hope that it will also have considered the effect its recommendations might have on increasing unemployment by making it less affordable to employ people. The matter is, therefore, considered by the Low Pay Commission but, more importantly, my right honourable friend the Chancellor and others consider what lies ahead.

I join the noble Lord, Lord Stoneham, in wishing to see greater growth, but—as my right honourable friend the Chancellor set out recently—we are seeing steady growth over the coming years and I see no particular red lights in this area. We are still on track to achieve the target that we wanted to achieve—I think the noble Lord asked about this—which is 60% of median earnings by 2020. The Low Pay Commission will take all evidence into account in trying to get there.

The noble Lord also asked about the bigger change in the disregard for accommodation. Again, the Low Pay Commission took evidence to determine that off-set and its report summarises its view that the rate is a fair balance of the employer’s and the worker’s interests. Obviously I am happy to write to the noble Lord in greater detail on that if he so wishes.

I move on to the comment of the noble Lord, Lord Stoneham, that this imposes particular pressure on certain sectors. He singled out one that he knows particularly well, the care sector, for which we accept it can be difficult, and similarly for retail and other areas where wages tend to be on the lower side. That is why we are very grateful that there are representatives of employers on the Low Pay Commission to make sure that that point is made. There is no point raising rates too far if it will increase unemployment or create difficulties for certain businesses. Obviously it means that there will be extra costs for businesses but, as I think the noble Lord will accept, we want to make sure that workers are fairly rewarded.

There are certain things that Governments can do to recognise the increased costs for businesses. We give employers up to £3,000 off their employer NICs bill through the employment allowance. Last year more than 1 million employers benefited from that, saving some £2 billion. That will apply in all sectors. We cut corporation tax, as the noble Lord will be aware, from 28% to 19%, and that again benefits a large number of firms. As the noble Lord will remember, my right honourable friend announced reductions to business rates in the Budget.

I appreciate that things can still be difficult. The point behind having the Low Pay Commission, with representatives from both sides and others, is to make sure that we try to take all factors into account and, I hope, achieve greater balance. The noble Lord would like me to discuss the Government’s care policies more generally, but I do not think I am the right person or that this is the right place for me to do that at this stage, so I shall restrain myself from being tempted to take up his offer. No doubt he will find other opportunities to raise this matter with others in due course.

With what I take to be the support of both noble Lords, I commend these regulations to the Committee.

Motion agreed.

Works Detrimental to Navigation (Powers and Duties of Inspectors) Regulations 2018

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Works Detrimental to Navigation (Powers and Duties of Inspectors) Regulations 2018.

My Lords, I beg to move that the draft Works Detrimental to Navigation (Powers and Duties of Inspectors) Regulations 2018, which were laid before Parliament in January 2018, be approved.

We are moving on to a somewhat different and more technical subject, and I am very pleased to see the noble Lord, Lord Bradshaw, in his place. He will presumably bring a great deal of technical expertise to this debate. The regulations will provide inspectors in BEIS’s Offshore Petroleum Regulator for Environment and Decommissioning, which I will refer to as OPRED, with powers to conduct inspections to assess compliance by operators of offshore hydrocarbon installations with the conditions of consents to locate as granted under Part 4A of the Energy Act 2008.

OPRED inspectors travel to offshore installations to monitor compliance with our offshore environmental regulatory framework. However, they do not have powers to conduct inspections to assess operator compliance with consents to locate conditions. The regulations will close that gap in enforcement capabilities by enabling inspectors to board offshore installations to assess operator compliance with the consents to locate regime, inspect and investigate any legislative breaches, and take enforcement action where required.

Consents to locate are required before offshore activities likely to cause danger to navigation are carried out. A condition of consents to locate is the need for operators to maintain navigational aids, such as lighting, foghorns and other signage, to warn shipping of the presence of offshore installations. Part 4A of the 2008 Act gives the Secretary of State powers to make inspection regulations for enforcing the consents to locate regime and create criminal offences. Regulation 3 of the regulations contains powers to allow inspectors to undertake examinations and investigations and Regulation 6 sets out the offences and penalties that would apply to a failure to co-operate with inspectors. Inspectors would normally conduct checks on the consents to locate regime when undertaking routine visits to offshore installations to determine operator compliance with other environmental legislation.

The regulations are needed due to an increasing trend from 2015 onwards whereby non-compliances by some operators with the consents to locate conditions, primarily the obligation to maintain functioning navigational aids, have not been remedied timeously despite OPRED’s efforts. Although most operators initially responded to incidents of malfunctioning navigational aids by deploying temporary collision-avoidance measures, notably the use of guard vessels around installations, and eventually resolved breaches after protracted negotiations, this is not an ideal situation. Notwithstanding the instigation by operators of temporary solutions, the risk to shipping of a collision with an offshore installation at night, or during times of poor visibility, remains until functioning navigational systems are reinstated.

Without powers to access offshore installations and conduct inspections, we are reliant upon operator good will or evidence from third parties, namely the general lighthouse authorities and the Maritime and Coastguard Agency, in order to gather evidence to establish whether consents to locate requirements have been breached and to encourage operators to revert to compliance. The regulations would provide inspectors with powers to investigate and enforce an expedient return to compliance by operators, thus reducing the risk of offshore collisions occurring.

While the risk of a collision with shipping remains low and to date there have been no incidents of shipping colliding with UK offshore installations as a consequence of failed navigational aids, the human, environmental and economic impacts of a collision would be significant. There are invariably lengthy time lags before the resolution of non-compliances—in one instance it took four months before compliance was restored—which increases the risk of collisions at night or in adverse weather conditions.

The regulations will contribute to our aim of ensuring that offshore hydrocarbon activities are carried out in a safe, clean and environmentally sound manner. In 2017, OPRED conducted a consultation with the offshore sector on the regulations. Two responses were received seeking simple clarification. We replied to both consultees addressing their comments and agreeing to publish updated regulatory guidance once the regulations entered into force.

One substantive issue arose from the consultation regarding the provisions that would allow inspectors to take original documents as evidence in an investigation. To enforce the consents to locate regime effectively, it was our opinion that obtaining original documents would fulfil the legal obligation to gather the best evidence available should we need to pursue criminal proceedings against non-compliant operators. We decided to retain the power to seize original documents in the regulations, but took account of industry concerns by caveating it with limitations on the use of the power.

The objective of the regulations will be to achieve a high level of operator compliance with the consents to locate regime through inspections and the investigation of breaches, the use of enforcement notices instructing operators to take timely actions and the imposition of penalties. Given the need for the regulations, it would be useful if they entered into force on the day after they are made. I commend these regulations to the Committee.

My Lords, I would like to inquire into some of the background. I do not know whether the Minister has these details but, first, may we know how many real incidents there have been? Secondly, how many inspectors are there and what is the chance that a person who is not complying will actually be caught?

The system which the Government have in mind will obviously cost some money. I do not know whether they intend to expand the inspectorate or whether this is another duty to be laid upon the existing inspectors. Is there going to be any extra cost or extra inspectors? Can we also be clear whether this applies only to any obstruction which has an association with the hydrocarbon industry, or are other places such as old windfarm foundations covered in these regulations?

The Minister mentioned non-compliance. There is also some mention in the documentation of non-compliance, so is he able to tell us how much of it there was, or is, and why it is necessary to produce this further legislation? Can I please get some idea of the penalties which fall upon people who do not comply? For example, apart from fining them, is there any way in which they will be denied a licence in future to punish them, as it were, for not having cleared up any obstructions which they left behind them in the sea? I fully support what the Minister has said about the need to take precautions because the consequences of a ship spilling the oil which it might be carrying or injuring people are quite significant.

There is one other thing. Are these obstacles, if I may call them that, added continuously to the charts used by people who use the sea, and can ships therefore be forewarned that such obstructions are there? I would be grateful if the Minister can fill me in a bit on the background to this.

My Lords, like the noble Lord, Lord Bradshaw, I am supportive of the intention behind these regulations and have no wish to delay them in any sense. Before I start, I should like to say how nice it is to have had three Lords Chairman officiating over our modest debate. I am sure it must be a very interesting chance for the Lord Speaker to shine a spotlight into the activities of your Lordships’ House in a way that is not often possible.

Real life and marine life as well, as we are going to discover.

I have three main points but they are not at all major. First, as I think the Minister said, these regulations have been in force since 2009 as part of the implementation of the 2008 Act. Yet there seems to have been a sudden rush of activity since 2015, according to the Explanatory Memorandum. Can he give a little more detail about what is going on here? Is there some new interest in the area, arising from some activity which we were not aware of and, if so, why is all this litter being left around and causing difficulty to ships? I would be interested in the background if that is possible.

Secondly, I do not think the Explanatory Memorandum makes the case very well for OPRED’s lack of ability to force operators to return expediently to compliance. The powers now in these regulations would allow them to get more information in the form of paper and other documents. That would somehow seem to inform them better but I do not quite see how it will make anybody do anything they are not currently doing. I would be grateful if my puzzlement on that could be met with a bit more information.

In that respect, there was a four-week targeted consultation. I am not saying it is true of this occasion, but whenever I see the words “targeted consultation”, I wonder whether very many people have been involved. Given that there were only two responses from what seems to be a very large sector of our economy with many companies—indeed the Explanatory Memorandum states later on that there is a large number of small companies involved—maybe there could be a few words about whether, in the department’s view, the consultation was as effective as it could have been. There were only two responses, neither of which was significant in terms of what we are told here, but they did manage to persuade OPRED that there should be a change in relation to the power to seize original documents. Paragraph 8.3 says that OPRED decided to take,

“account of industry concerns by caveating it with sensible limitations on the use of the power”,

but does not say what those limitations are. Again, perhaps the Minister could just explain them.

However, my main concern is timing. Members of the department will be aware that every time BEIS comes in with a regulation, I think I have made a point of pointing out that the Government have accepted, as have previous Governments, that there should be adherence where possible to the common commencement dates of 6 April and 1 October. These common commencement dates are there for the benefit of businesses and to make sure that regulations do not sprinkle upon them like rain from the heavens but are brought up at two points in the year when they can anticipate that there will be regulations, plan for them and expect them to be implemented in an appropriate way. There may be some reason for the commencement date, but these regulations seem to be coming into force in a rather ad hoc way. They come into force the day after they are made. The Explanatory Memorandum comments that,

“the critical need for, and core objective of, the instrument”,

means that the regulations,

“will enter into force on the day after they are made and, if feasible, either prior to, or (if apposite) beyond, the next Common Commencement Date of 6 April 2018”.

It happens that 6 April 2018 is not very far away, so it would not have been very difficult, and certainly given the pressures on all concerned not impossible, for these regulations to come in on 6 April. There may be good reasons for bringing them in a few days before then, and I would be interested to hear what they are, but I worry more generally that the department does not, much as I would wish it to, try to work to the common commencement dates. I am sure the Minister will accept that they are important. They have been advertised and adhered to now for, I think, 15 years. It is something we should respect if we can. I would be grateful for his comments.

My Lords, we will try to stick to common commencement dates where appropriate, but as I think the noble Lord suggested, there has already been some concern that a degree of time has been taken getting these regulations ready. We therefore felt that this is one of those occasions when not sticking to the common commencement dates would be appropriate. Bearing in mind that there is always the risk of an accident, we thought it appropriate to move as quickly as possible. For that reason again, we thought that a relatively short, targeted consultation—going to what we thought would be the appropriate people—was appropriate. As a result, we obviously missed out the noble Lord.

I will take advice, but I am fairly sure it was a number greater than two. I do not know what it was, but on this occasion we did not need a general consultation including the noble Lord and others. We are talking about a fairly specific field that many of us do not know a great deal about. I will come to some of his other points later on, but will deal with points raised by the noble Lord, Lord Bradshaw, first and give him a little more background and detail about the amount of non-compliance there has been.

On average there are at least 49 incidents a year on offshore installations, a proportion of which seem to be in the southern North Sea, which is obviously a fairly busy shipping route. Nine offshore installations had components of their main or subsidiary lighting systems repeatedly fail completely, meaning that parts of the installations were not visible at night or at times of poor visibility due to intense fog. Thirty-two offshore installations had other types of repeated malfunctions relating to other navigational aids, including lights not flashing in unison and dim lighting systems causing reduced visibility from a distance. Five installations had fog signals that were repeatedly inaudible or not functioning, while the radar communications systems on three offshore installations repeatedly failed. Those are the numbers involved and reflect the scale of the issue. I hope that is useful to the noble Lord.

I will have to write to him about the number of inspectors and whether we think that that number needs to be increased. The important point is that the inspectors are already doing their job, but we are giving them extra powers to make sure that there is proper enforcement. He also asked about the appropriate penalties if operators are prosecuted under these regulations. An operator guilty of an offence as set out in Regulation 6 would be liable on summary conviction in England and Wales to an unlimited fine and on summary conviction in Scotland and Northern Ireland to a fine not exceeding the statutory maximum, which is £10,000 in Scotland and £5,000 in Northern Ireland. I hope that the noble Lord does not ask me why the fines are different among the nations, but if he has any concerns I will write to him about it. Conviction on indictment leads to an unlimited fine, which would usually be for an amount greater than the fine on summary conviction. I might be wrong, but that is probably the explanation for the difference between England and Wales and Scotland and Northern Ireland. In Scotland and Northern Ireland there is summary conviction or on indictment whereas in England and Wales there seems to be only summary conviction.

The noble Lord, Lord Stevenson, asked why after 2015 it became more difficult for operators to rectify promptly breaches of consents to locate obligations. Some have asked whether it coincided with the drop in the price of oil at the time. The reason it has become more difficult to get smaller operators to rectify breaches is not entirely clear. Contributing factors may have been the low oil price which has put pressure on operators, but whatever happens the situation is clearly unsatisfactory, given the critical nature of navigation aids, hence the need to put these regulations on to the statute book as quickly as possible. I appreciate that some will argue that we have taken our time to do this, but it is important to get on with them now.

I again thank both noble Lords for their contributions. I think that I have largely dealt with the points, but if I have missed any, I will write. I commend these regulations to the Committee.

Motion agreed.

Criminal Justice and Police Act 2001 (Powers of Seizure) Order 2018

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Criminal Justice and Police Act 2001 (Powers of Seizure) Order 2018.

My Lords, I congratulate the noble Lord, Lord Stevenson, who is still with us for the third item of business. I am grateful for the feedback from the Secondary Legislation Scrutiny Committee regarding the explanatory material accompanying this draft order. We always strive to provide sufficient information for noble Lords to gain a clear understanding of an instrument’s policy objective and intended implementation. Furthermore, my department will take account of the comments of noble Lords made in this Committee when preparing explanatory memoranda for future instruments.

Insider trading and price manipulation in the wholesale energy markets is a crime and ultimately consumers and businesses pay the price for such behaviour in the form of higher bills. It is therefore important that the energy regulator in Great Britain, Ofgem, has sufficient powers to investigate and punish those behaving in such a way and that that acts as a deterrent. Insider trading and market manipulation in the wholesale energy markets are prohibited by the wholesale energy market integrity and transparency regulation—REMIT —which has been in force since December 2011.

In June 2013, the Government made civil enforcement regulations for REMIT—the Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations 2013—which give Ofgem powers to impose unlimited financial penalties, access to information and the power to enter the premises of a regulated person under a warrant. In March 2015 the Government strengthened that regime by making further regulations to create criminal offences of intentionally or recklessly breaching the prohibitions on insider trading and market manipulation.

The 2013 regulations give the regulator the power, under warrant, to enter premises to search for, and seize, information and documents that appear to be relevant. However, there are cases where Ofgem may have difficulty exercising this power of seizure. Investigating officers may be presented with a large volume of documents. Identifying documents relating to suspicious transactions among many documents of a similar nature can be akin to finding a needle in a haystack. Ofgem currently has no power to take away an entire body of documents to sift them for relevance off premises. In some cases, this may mean that vital evidence is missed.

Section 50 of the Criminal Justice and Police Act 2001 addresses this problem. It enables a person exercising a power of seizure to remove material from the premises being searched to determine whether it is something which the person is entitled to seize if it would not be reasonably practicable to determine that on the premises. The power in Section 50 applies where a person is exercising a power of seizure listed in Schedule 1 to the Criminal Justice and Police Act. More than 60 such powers are already listed in the schedule. The effect of this order is to extend this power to Ofgem when it is searching premises to investigate breaches of REMIT. The Government believe this would be a measured and sensible extension of Ofgem’s powers, which will help to ensure it can take effective enforcement action.

The Government sought views in December 2015 through consultation on whether Ofgem’s powers should be strengthened to bring them into line with this provision. Industry stakeholders, perhaps not surprisingly, believed that the additional powers offered to Ofgem were disproportionate. Others, including consumer groups, were neutral or in favour of the provision. The Government believe that effective regulation in this area is essential and that sufficient safeguards will be in place to meet stakeholder concerns. The Government do not believe that costs will be unreasonable.

The power will apply only where a court has granted Ofgem a warrant to search premises. When Ofgem exercises this power it will be under a statutory duty to sift information as soon as reasonably practicable after seizing it and return anything which it was not entitled by the warrant to seize. Additionally, a person who is the owner of a document can apply to the court for the return of such material.

We believe that this additional power will aid Ofgem in its investigation of market abuse and that the safeguards should ensure that it is not used unnecessarily. I commend the order to the Committee. I beg to move.

My Lords, I thank the Minister for his full introduction to this order. Again, we have no significant concerns about the order itself because it is an appropriate way forward. Indeed, it seems to be needed, based on the description we have had.

As the Minister has said, the Secondary Legislation Scrutiny Committee reported on the order in order to draw it to the attention of the House on the grounds of a policy likely to be of interest. The committee’s main concern seems to be about the rather extended time taken to go from the initial idea booted around in the consultation paper in December 2015 to the final decision to move forward on a part of what was consulted on—only a part—as late as earlier this year. The Minister said that the issues raised will be taken back with everything else, but he did not give us an explanation about that issue. The letter from the department that covered it is also rather vague. It is mainly to do with the fact that internal government processes got in the way of the smooth running of the overall proposal and that the decision was taken quite late simply to go ahead with these REMIT proposals. More information about that would be of interest.

My concern is slightly different. The consultation that was carried out was broader than the REMIT, but the Explanatory Memorandum focuses on those issues. I take it that the references in Article 8 of the Explanatory Memorandum are around that. It says in paragraph (8.2):

“Some energy companies expressed support for the initially proposed “seize and sift” powers, but the majority of companies and representative groups”—

so it is not quite as the noble Lord mentioned—

“argued that these were disproportionate, unnecessary or gave Ofgem too much leeway on which information to remove”.

In other words, they were about the powers. It seems to me that the majority of companies did not agree with the proposal. They felt that the existing powers would be sufficient and that seeing papers on sight, sifting through them there and taking information away in that form would be sufficient for their processes. In paragraph (8.3) however, the department’s response states:

“Having taken account of the consultation responses, BEIS considers that the aim of the policy … justifies the additional burdens identified by industry”.

They were complaining not about the burdens, but the powers. The Explanatory Memorandum is completely silent on whether these powers are appropriate. It seems that the Government have decided to ignore the consultation and go ahead. Will the Minister comment on that? He is not wrong in the sense that the ends may justify the means, but the process would have left a number of companies a bit bruised, given the very short time available and the lack of any individual consultation. They would be entitled to feel that they have not been taken account of properly.

Finally, I have to come back to the matter of the implementation date. This is a new group of civil servants and I can expand on my worries. Other noble Lords will realise that I have raised this matter before. This order may be cited from, and comes into force on, the “twenty-first day after the day on which it is made”. It will have a considerable impact on a small number of companies operating in the electricity and gas field. It is therefore not inappropriate to think that the order should start from the common commencement date: 6 April. If you do the maths, 21 days takes you just beyond 6 April. It would be not inappropriate if the Minister decided to suggest, even with the regulation in this form, that 6 April would have been a better date, and I appeal to his better judgment to make the necessary changes if he can.

In considering this order we should consider the enormous public dissatisfaction with some of the regulated industries that we have seen for a long time. I think I am correct that the regulators have often been caught out saying that prices should be allowed to rise by a certain amount, and immediately after the announcement, companies’ share prices have risen. To me, this means that the regulator has misjudged the situation. Bodies such as Ofgem are extremely powerful, and from the point of view of the consumer and the general public it is important that a very close watch is kept on their activities. I am happy to support what is in this paper because the balance of advantage between consumer and supplier is tilted very much one way, and this will tilt it back the other way.

My Lords, I think that I am grateful to the noble Lord, Lord Bradshaw, for his comments. It is always difficult to get the balance right in these matters, which is what we are trying to do in a number of other pieces of legislation—as the noble Lord will be aware—that are before another place at the moment.

It is important that we ensure that Ofgem has the appropriate powers to look after the consumer interest. Obviously, we take very seriously the idea of any extension of powers that we might grant to Ofgem or any other body, and that is why, under the Police-and-whatever-it-is Act 2001, we have to make an order if we want to do that. They are affirmative orders and we have to come to the House to argue the case for them. That is what I am doing.

The noble Lord, Lord Stevenson, was slightly worried about the consultation and whether we listened to the consultees. What I said in my opening remarks was that the industry and stakeholders, perhaps not surprisingly, believed the additional powers were disproportionate, but I added that others, including consumer groups—this is the point that the noble Lord, Lord Bradshaw, picked up—were neutral or in favour of the provision. The Government have to consider these matters very carefully.

Just to be clear, paragraph 8.2 of the Explanatory Memorandum does not say what the Minister just said. It may just be that the expression needs to be changed, but it states,

“the majority of companies and representative groups”.

I think “representative groups” includes consumer groups. The Minister said there were others, but we do not have the detail. They,

“argued that these were disproportionate, unnecessary or gave Ofgem too much leeway”.

It does not just include consumer groups. The point I was making was that consumer groups in particular were neutral or in favour. Having listened to the consultation, the Government came to their conclusions and decided what was necessary. We considered that the powers were very important and we considered bringing them in with appropriate safeguards. I think that is what we have done.

The noble Lord was concerned about the timing of the order. I am glad that it was not just me listening to him. As he said, there is a collection of officials listening behind me, and I hope this will suffuse through the department so that all of us—Ministers as well as officials—can be aware of his concern that as far as possible we stick to the appropriate dates. Obviously, there will be other occasions when we cannot. I have no power to make amendments now. The noble Lord probably guessed that, since he made the suggestion. Since I have general agreement that this order should go through, I repeat that the department could possibly do better in future. I will keep my beady eye on these matters and see to it that we do as well as possible. As I said at the beginning, we will continue to take the Committee’s views into account in future.

I go back to my original point and ask the Minister, for my comfort and satisfaction, to write with a bit more explanation about the make-up of the responses that were received. May I also welcome the Minister to the small band of people who believe in common commencement dates?

The noble Lord will get a reputation for having a bee in his bonnet about common commencement dates and will, no doubt, be teased by his colleagues as “Lord Common Commencement Dates” for ever. I will certainly write to him in greater detail on the other matter. I am grateful for the support from both noble Lords.

Motion agreed.

Passport (Fees) Regulations 2018

Considered in Grand Committee

Moved by

My Lords, the purpose of this statutory instrument is to set passport fees for the first time under the primary charging powers provided by the Immigration Act 2016, which allow the Home Office to reflect not only the costs of considering an application and issuing a passport but any other function of the Secretary of State in connection with UK passports. This includes the costs associated with British citizens leaving and entering the UK.

Over the last year the average turnaround time for the vast majority of the estimated 7 million passport applications that HM Passport Office handled was in the region of seven days. This excellent performance has resulted in high levels of customer satisfaction. The Institute of Customer Service has once again ranked HMPO as the top performing public services organisation in its recent customer satisfaction index survey. The service has improved its customer satisfaction index scores over each of the last five years and, for the first time, also appears in the top-50 list of high-scoring organisations on the customer satisfaction index survey, along with Amazon and John Lewis.

The full costs associated with processing applications and issuing passports are funded by income from fees charged for passport services, but the number of passengers arriving at the UK border continues to rise, with about 130 million passengers currently arriving each year, of whom about 70 million are UK passport holders. This leads to a significant cost for the Home Office, which is currently largely funded by the Exchequer.

Reflecting the costs to the Home Office associated with passengers leaving and entering the UK in passport fees means that we can reduce the burden on the Exchequer and move towards operating on a “user pays” basis for the overall service provided by the Government to UK passport holders. It is obviously important that we recover any additional costs in a balanced way that incentivises the use of a more efficient online application process, which we intend to become the standard passport application channel. So, while we propose to increase most passport fees, people who submit their application online will, for the first time, be charged a lower fee than if they submit their application via post. This reflects the fact that it currently costs more to process a postal application. It also supports the wider commitment to improve online services to meet the needs and expectations of customers who increasingly use digital channels to access government services.

We intend to increase the fees for an online adult passport by only £3, which is broadly in line with inflation. This will mean that the current adult fee will be £75.50, which is still below the £77.50 fee charged for an adult passport between 2009 and 2012. An online child passport fee will increase by the same amount and will be set at £49. Fees for adult and child passports applied for via post will each increase by £12.50 to £85 and £58.50 respectively, to reflect the additional cost of processing postal applications.

With more than 90% of adults in the UK having access to the internet and third parties being permitted to apply on a person’s behalf, the vast majority of people should face no obstacle to applying for their passport online. However, Her Majesty’s Passport Office is developing further help for those who wish to apply online but need some additional advice or support to do so. It is working to deliver an assisted digital leaflet for relevant support groups to enable them to help their clientele to apply online. This will also ensure that their online application route is built in such a way as to be extremely simple to use and to be compatible with various aids, such as screen readers, that people might use to make their interactions with the passport service easier. An advice line is available for those who wish to discuss their requirements with representatives of the organisation.

The Committee will be aware that HMPO provides excellent priority services for applicants who wish their applications to be processed faster, or who prefer to apply in person. It is right that applicants should pay more for a priority service and we intend to move the fees for those services towards full-cost recovery sooner than for online or postal services, given their optional nature and the additional benefits that a customer receives by using them.

Finally, within these regulations we are holding a new and specific power that allows the Home Office to consider waiving fees for replacement passports where they have been lost or destroyed during an incident considered a national emergency or crisis, or where the UK Government have activated exceptional assistance measures overseas. This will allow the Government to ensure that they can provide the appropriate level of support to vulnerable people in emergency situations and crises.

We are committed to ensuring that this Government continue to move towards a position where the border, immigration and citizenship system is funded by those who directly use it. Moving to a position where passport application fees include the costs of UK passengers leaving and entering the UK is part of this. The additional income raised from the proposed increase in fees will help to protect vital front-line services and ensure that we continue to operate a world-class border system. I commend the regulations to the Committee.

My Lords, I thank the noble Baroness, Lady Williams of Trafford, for explaining to the Grand Committee the purpose behind these regulations this afternoon.

First, I have absolutely no problem with full-cost recovery. Generally speaking, it is not a bad thing to aim for in a variety of services. I have been calling for it for planning applications for a very long time, but the Government have stubbornly refused it. Perhaps the Minister would be kind enough to mention to her noble friend Lord Bourne of Aberystwyth and the Ministry of Housing, Communities and Local Government that this is a good thing to do, because I cannot get that government department to consider doing even one council pilot on full-cost recovery. They just will not have it—so if the Home Office is doing it, perhaps they will look at a pilot.

Having said that, the rise of £12.50 in one go is a little steep. It may have been better to phase it in over time. Inflationary rises in the cost of services are what we have come to expect and I generally accept them. I do not have a problem with there being two levels of fees, taking account of the costs of processing applications. I get that point. But while I know the Minister referred to the “vast majority”, we are still talking about millions of people who are not in that vast majority. They are not e-enabled for a variety of reasons. They might not have access to a computer or have the skills to use the facilities; equally, they may have a computer and the skills but be in an area where the broadband coverage is so poor that they cannot do it anyway. The Minister might suggest in a moment that they should go to a library, but she will know that the number of libraries in Britain is much reduced from what it was 30, 20 or even 10 years ago. So that will not always be the solution to the problem—again, there is an issue there.

The power to have the fee waiver is sensible and I am very supportive of it. But one thing that the Government should guard against is an issue that exists in a variety of local government services. It is that if you are an ordinary, decent and law-abiding citizen, why do you have to pay more for services just because you are poor? I noticed that that was not addressed in the impact assessment. There is lots about what the Government are going to do, but I cannot find any reference to why somebody poor has to pay more. That issue needs to be looked at across government. It goes across business, too, and other areas, and it irritates me.

I know this is nothing to do with the noble Baroness, but if you go to an area that is not as wealthy as somewhere else, you find that the less wealthy area has no cash machines and that you have to pay £3 or £4 to get your £10 note out. If you are a genuine, ordinary, decent, law-abiding person, why is it that, just because you have less money than someone else or live in a poorer area, you have to pay more? The Government should always be mindful of that as a policy issue across a range of things. Having said that, I have no particular issue with the regulations and I am happy to agree to them.

My Lords, I thank the Minister for her explanation of these regulations and we are broadly supportive of the idea, in particular the move to online and the proposal for a price incentive to encourage people to apply in that way. I am sensitive to the concern about people who do not have online access, but I expect that the Government will take appropriate action to make sure that they are supported.

I wish to make three points. First, if this was the private sector, one would have peak and trough pricing. I should like to know what the peaks and troughs for passport applications are. In the summer there are always problems when people want to renew their passports, and presumably there is a lull in the winter when fewer people are travelling. One of the costs to the public sector, that of retaining peak staffing, could be assuaged if more people are encouraged to apply for their passports when the demand is lower. Have the Government considered that and are there great peaks in the workflow?

Secondly, while I understand that people must pay the cost of issuing a passport, what proportion of the costs of maintaining our borders and our consular activities overseas are we aiming to meet through passport renewal? We all know that there is a national interest in our borders and in having consular services overseas because they perform other functions besides looking after British passport holders, so obviously a key proportion of the costs of those services should come out of general taxation rather than simply being met by people who apply for passports. What proportion of the costs of these services will this measure contribute and what is the Government’s ultimate aim here?

Finally, one thing that Brexit will do is to increase the cost of our borders because it will require extra people to man them. Are those renewing their passports going to have to pay for the cost of Brexit or will it come out of general taxation? My view is that it is the Government who are creating this extra cost; they should therefore pay for it out of taxation. They should not be trying to put the extra costs of Brexit on to those who apply for passports. We should not forget that the economy benefits hugely from tourism so it is in our interest to improve the current border controls, which many people regard as slow and inefficient. What are the Government doing to make improvements in, for example, the flow of people through our border controls, which I am sure they have an interest in since they are now seeking an additional source of revenue to pay for them?

I thank both noble Lords for their questions. I turn first to the contribution of the noble Lord, Lord Stoneham. He asked about peak and trough pricing, but then suggested that the extra costs of maintaining the border should be met through general taxation. We have considerably improved the technology and intelligence around our border and we think that we will be able to meet any additional burdens created through Brexit. The fees application regulations before us are not about Brexit; they are about putting in train something that was decided in the Immigration Act 2016, and thus I think before Brexit was even a twinkle in the general public’s eye.

As to what proportion of money will go to the border, we expect that about 40% of the current full cost to the Home Office of UK passengers leaving and entering the UK will be funded by passport fees after these increases. We did consider peak and trough schemes, and looked at variable pricing, but the cost of that would outweigh the benefits.

That was the analysis—the costs would outweigh the benefits of doing it.

The noble Lord, Lord Kennedy, asked about the £12.50 increase. That of course is for the paper application. The analysis shows that a premium service is more expensive, paper being not the cheapest way to deliver passports or indeed other items. That is reflected in that fee increase. As for full-cost recovery, the noble Lord and I have had many an exchange on such local government matters. He asked me to take it to MHCLG. I will, but I suspect the reason for not having full-cost recovery, as with all local government things, is so that things do not become overpriced. MHCLG always sets them under full-cost recovery, but I shall certainly take that back.

The noble Lord, Lord Kennedy, also asked about digital inclusion, particularly for poorer people and people without access to libraries. The Government totally recognise this point. The digital strategy uses 3,000 libraries across England to provide a trusted network of accessible locations with trained staff and volunteers, free wi-fi, computers and other technology. In addition, people can use a friend’s or colleague’s computer to do this. Just because you have not got a computer in your home, that does not disfranchise you from applying online.

I reiterate my support for the noble Lord, Lord Kennedy, about being charged at cash machines. It is something that really irritates me. I accept that sometimes the only cash machine in a location is a paid-for one and that some of the fees really are quite outrageous. I think that is about it. Have I answered everything or does the noble Lord, Lord Kennedy, want to come in?

I know this is slightly straying off the regulations before us today, but that irritates me. Like the noble Baroness, I can obviously go somewhere else and not use the machine, but sometimes people do not have that ability or that benefit. It is the same of course with people who have to go to the newsagents to get electricity for their meters. There is an issue here. Why do we accept that if you are poor but law abiding, hard-working and doing your best, you have to pay more for things when other people have them more cheaply? That is a general issue and a general point.

Before the Minister sits down, can I go back to the two points I raised? I would like to see the peaks and troughs, and presumably monthly figures are available. I would be quite interested to see them. Secondly, I do not think that the Government should easily be able to get away with the assumption that there is no cost from Brexit when it comes to border controls. That is almost fantastical and I do not think anybody would believe it. It would be useful to know how many of the 130 million people going through our borders actually have EU passports as opposed to UK ones. We know the quantity of people who are doing that. I go back to my original question. If you assume that passport renewals will pay for 40% of the border costs and if the costs go up because of Brexit, does that mean we will have higher proportionate passport renewal costs over time in order to keep to that percentage?

I cannot answer some of those questions but I know that HMPO will have done an analysis of the figures. I was trying to say, but I do not think I was doing it very articulately, that we have a variety of technological, intelligence and other methods of predicting people crossing the border and of looking for the needle in the haystack, which is the person who is crossing the border illegally or someone who might be on our watch list. Our technology and intelligence have improved significantly. We have e-gates and other methods such as heartbeat monitors at the border. I do not disagree with the noble Lord that volumes might go up, but we have better methods of predicting and detecting illegal crossings of the border. On the other point about numbers, I will write to the noble Lord.

Motion agreed.

Committee adjourned at 3.26 pm.