House of Commons

Monday 25th October 2010 Commons Chamber

Monday 25 October 2010

The House met at half-past Two o’clock

Prayers

Monday 25th October 2010 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Monday 25th October 2010 Commons Chamber

The Secretary of State for Culture, Olympics, Media and Sport was asked—

[Ian Lavery (Wansbeck) (Lab)]

1. What plans he has for the future funding of community arts projects.

[The Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport (Mr Edward Vaizey)]

Future funding for particular arts projects is ultimately a matter for the Arts Council but, as part of its recent settlement, we have asked it to limit cuts to the overall budget for arts organisations to just 15%. When this is combined with an increase in income for the arts good cause from the national lottery, I am confident that community arts projects will continue to be successful.

[Ian Lavery]

Will the Minister tell the House what impact the cut of 29.6% to the Arts Council budget will have on the future success of the creative industries?

[Mr Vaizey]

Although the overall grant to the Arts Council has gone down by 29%, we have asked the Arts Council to limit the cut to arts organisations to just 15%, and when we take into account the significant increase in funds from the national lottery, the overall cut to the Arts Council will be below 12%. That is very good news, and I hope that the hon. Gentleman will congratulate the Secretary of State on such a fine settlement.

[Caroline Dinenage (Gosport) (Con)]

Will the Minister please confirm that this Government will not repeat the mistakes of the previous Government and ensure that national lottery funding is kept to its original purpose, which includes funding the arts?

[Mr Vaizey]

I am pleased to reassure my hon. Friend that we will not repeat any of the mistakes of the previous Government.

[Mr Jim Cunningham (Coventry South) (Lab)]

2. What recent discussions he has had with the Chancellor of the Exchequer on funding for the arts.

[The Secretary of State for Culture, Olympics, Media and Sport (Mr Jeremy Hunt)]

I am pleased to say that last week I agreed with the Chancellor a package of cuts that will limit the cuts in funding for front-line arts organisations and museums to just 15%, a figure that compares very favourably with many other parts of the public sector.

[Mr Cunningham]

Can the Secretary of State say what discussions he has had with his colleague the Secretary of State for Education about protecting the arts at universities and the teaching of art at school?

[Mr Hunt]

We have had considerable discussions with the Department for Education, with which we share a belief in the importance of cultural education. However, the Secretary of State for Education has made it clear that the best way to secure that is not by ring-fencing money going to schools, but by giving heads the discretion to use the money as they fit. By doing that, we are confident that heads will understand the extreme importance and value of arts education.

[Mr John Whittingdale (Maldon) (Con)]

Does my right hon. Friend agree that at a time when the amount of public money available for the arts has inevitably had to be reduced, it is all the more important that we should try to increase business sponsorship and philanthropy? Does he agree that Arts and Business has an exceptionally good record in that area, and that it would therefore be rather strange to cut the amount of money going to it at this time?

[Mr Hunt]

I thank my hon. Friend for his well-informed question. He is absolutely right that at a time like this, boosting philanthropy and other sources of income for the arts is extremely important. Arts and Business has done some valuable work. Obviously its funding is a matter for the Arts Council, which operates at arm’s length. However, I am pleased to be able to tell him that before the end of the year, we will be announcing a package of measures designed to boost philanthropy and help to strengthen the fundraising capacity of arts organisations—something that will be helpful to them in difficult times.

[Gloria De Piero (Ashfield) (Lab)]

Does the Secretary of State recall saying in January of this year:

“I want people to say that on my watch the arts not just weathered a very, very difficult period, but also laid the foundations for a new golden age”?

Last week we saw a 30% cut in the Arts Council budget and a 15% cut to the British Film Institute. Does the Secretary of State understand that his role last week as Chancellor’s little helper, rather than the champion for the arts, makes his words seem pretty hollow? How many arts organisations does he think will go to the wall as a result of the cuts?

[Mr Hunt]

May I start by welcoming the hon. Lady to her position? She brings with her considerable showbiz panache—something that, despite his many other talents, the Under-Secretary of State, my hon. Friend the Member for Wantage (Mr Vaizey) tried but failed to do for many years when he was doing her job.

The hon. Lady has only been doing the job a short while—[Hon. Members: “So have you.”] Indeed. I will perhaps forgive her for not understanding how the figures work, because after the lottery changes introduced by this Government—changes that the Labour party opposed every step of the way—the actual cut in the arts budget is less than 12%. Perhaps this is a moment for the Opposition to review that policy; otherwise there will be two parties in British politics that want to throw a lifeline to the arts and one party that wants to take it away.

[Mr Don Foster (Bath) (LD)]

We have already heard that changes to the national lottery have meant more money for the arts, but does the Secretary of State agree that we could go even further, were we to change the taxation regime for the national lottery to a gross profits tax regime? That would bring in yet more money for the arts. Will he tell the House what progress is being made in that direction?

[Mr Hunt]

I am very happy to do so. I agree with my hon. Friend that there is a big opportunity if we change the taxation regime for the national lottery. When we were in opposition, Camelot gave us undertakings that it was prepared to indemnify the Government against any reduction in Treasury revenues, were such a change to be made. If it were still prepared to do that, I am sure that we could make fast progress.

[Ian Mearns (Gateshead) (Lab)]

3. What discussions he has had with representatives of the tourism and hospitality sector on the effect on that sector of reductions in his Department’s budget.

[The Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport (John Penrose)]

As I am sure the hon. Gentleman would expect, I have regular and extensive discussions with representatives from right the way across the tourism industry in all parts of the country, and I hope to continue to do so.

[Ian Mearns]

Will the Minister outline what plans the Department has to facilitate growth in tourism and hospitality in the north-east of England? Tourism North East and its successful and popular marketing programme, “Passionate people, passionate places”, have until recently been under the umbrella of the regional development agency, One NorthEast, which is soon to be abolished. Given that Tourism North East’s advisory board’s proposed alternative marketing strategy has been rejected by the Government, what does he envisage will fill the vacuum in order to support the highly important tourism industry in the north-east of England?

[John Penrose]

I understand the hon. Gentleman’s concerns, and we have already made representations within Government on the importance of continuing tourism marketing spend, to ensure that local tourism boards of all kinds have continuity of funding. I hope that he will also be pleased to know that I have tasked VisitEngland to ensure that, for any programmes that are halfway through, as much continuity as possible is maintained.

[Miss Anne McIntosh (Thirsk and Malton) (Con)]

The Minister will understand that the tourism and hospitality sector in North Yorkshire benefits greatly from having so many race courses there. Will he ensure that the owners, trainers, jockeys and everyone else involved, including stable boys and girls, benefit from any changes to the levy to ensure that tourism and hospitality continue to flourish at race courses?

[John Penrose]

My hon. Friend is absolutely right to say that racing is an important part of our tourism industry. Race meetings all round the country bring in many people from the domestic tourism market, but they are rightly internationally famed for bringing in foreign visitors too. She is right to point out that any changes to the levy will need to ensure that the existing important symbiotic relationship between racing and bookmaking is maintained, and that a fair solution is achieved for all. I am sure that we will endeavour to achieve just that.

[Tristram Hunt (Stoke-on-Trent Central) (Lab)]

This Government have little feel for the history and heritage of this country, although they are among the drivers of the tourism sector. Will the Minister explain why the Government are seeking to protect the overpaid panjandrums of the Olympic Development Agency while cutting English Heritage by 30%?

[John Penrose]

I think that that last comment was extraordinarily rich, coming from a member of a party that, within living memory, was going on about cool Britannia and that completely failed to fund heritage in the way that it should have been funded over the past 10 or 15 years. I am sure that the hon. Gentleman will know that the entire heritage sector feels that it has been undervalued and underfunded for a very long time, in stark contrast to what is now happening under the new Government. As my right hon. Friend the Secretary of State has pointed out, if we take into account the changes in the lottery, we can see that the total cut to heritage funding is minus 4%, and that is all.

[Mr Philip Hollobone (Kettering) (Con)]

4. If he will discuss with the Chancellor of the Exchequer the merits of extending the listed places of worship grant scheme beyond 2011.

[The Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport (John Penrose)]

I am sure that my hon. Friend will remember that the Chancellor of the Exchequer announced in his comprehensive spending review statement last week that the listed places of worship grant scheme is to continue. I am delighted, as I am sure all hon. Members are, that that is the case. We have had to make some small reductions, and it will now go back to its pre-2006 status, but other than that, it will continue. I hope that my hon. Friend and others will join me in praising that decision.

[Mr Hollobone]

I congratulate my hon. Friend the Minister on doing his bit to save the scheme, which many of my constituents were worried was going to be cut altogether. Will he expand on what “pre-2006” actually means for those churches applying for funds?

[John Penrose]

I would be delighted to. Basically, it means that local community groups raising money to repair the fabric of their church will continue effectively to be able to claim grants equivalent to the value of the VAT on the works that are done. The only difference will be that some categories of work—primarily, professional fees, bells, organs and the like—will be excluded in the way they were before 2006, but everything else will continue to be claimable.

[Mr Frank Field (Birkenhead) (Lab)]

May I thank the Minister for safeguarding this scheme, but does he regard his success on this front as the only success his Department has had in its negotiations with the Chancellor of the Exchequer?

[John Penrose]

No, I do not. If the right hon. Gentleman looks at the Department’s overall settlement, he will see that we did pretty well compared with many. As mentioned twice already, the increase in funding from the lottery will help to allay the effects of some cuts, so this means that, overall, we hope to have managed to focus the cuts away from the front line and protect as much as possible the nation’s culture and heritage.

[Andrew Bridgen (North West Leicestershire) (Con)]

5. What recent progress has been made on the roll out of broadband to rural areas.

[Harriett Baldwin (West Worcestershire) (Con)]

10. What plans he has to roll out next generation broadband to rural areas.

[Graham Evans (Weaver Vale) (Con)]

11. What progress he has made on his plans to roll out next generation broadband.

[Anne Marie Morris (Newton Abbot) (Con)]

13. What steps he is taking to ensure that all areas have access to high-speed broadband.

[The Secretary of State for Culture, Olympics, Media and Sport (Mr Jeremy Hunt)]

We are making excellent progress in broadband roll-out. Last week, the Chancellor announced four superfast broadband pilots in rural locations in the Highlands and Islands, Cumbria, Yorkshire and Herefordshire. There will be further announcements before the end of the year on how we will roll this out to the whole country.

[Andrew Bridgen]

I thank the Secretary of State for that answer. In view of the potential cuts to rural bus services on top of the disastrous cuts in rural post offices under the last Labour Government, does he agree that the roll-out of broadband to our rural communities is absolutely vital in the fight to prevent rural isolation?

[Mr Hunt]

My hon. Friend makes an excellent point. Superfast broadband in rural areas offers huge opportunities for things such as telemedicine, home education and working from home. The National Endowment for Science, Technology and the Arts estimates that when this is done, it will have created about 600,000 jobs. The difference between Government and Opposition Members is that when Labour were in government they had secured £200 million for broadband roll-out, whereas we have secured £830 million. I think the public know who is doing better.

[Harriett Baldwin]

The villages of Ripple, Shrawley and Aston Somerville have all been in touch with me recently about the problem of very slow broadband speeds. Is there anything I can say to my constituents now about what can be done to speed things up?

[Mr Hunt]

What my hon. Friend can say is that this Government have committed to this country having the best superfast broadband network in Europe. Labour Members promised 2 megabit access for the whole country, so they wanted us to be in the economic slow lane, whereas we want to be in the superfast lane.

[Graham Evans]

When does my right hon. Friend expect the results from the rural broadband pilots to be gathered?

[Mr Hunt]

I hope the rural broadband pilots will start in the middle of next year and that, by the end of that year, we will be in a position to see how successful they have been. The broader issue with these pilots is that we have managed to secure nearly £1 billion of investment for this project—a lot more than the Opposition ever did—but it is going to take a lot more money than that, so we need to use this money to catalyse private sector investment. The point of the pilots is to understand the best way to achieve that, so that we can roll it out to the whole country at minimum cost to the taxpayer.

[Anne Marie Morris]

I am sure the Secretary of State will be as delighted as I am to learn that Broadhempston primary school in my constituency has recently gained access to high-speed broadband. However, he will also be acutely aware that there are many other household businesses and schools across Devon that remain effectively broadband blackspots. It is important to act urgently to ensure no part of Devon is still struggling to get broadband as other parts of the UK move into the super-broadband age. I am particularly concerned because I believe we are not part of the pilot and I do not wish to wait two years for progress. Will the Secretary of State agree to meet me in order to discuss this important matter further? What assurances can he give me that parts of Devon will have access sooner rather than later?

[Mr Hunt]

The assurance that I can give to my hon. Friend is that, having inherited a situation in which 250,000 homes have no access to broadband, we have developed a credible and affordable plan to deal with it; and that pledge applies to her constituency just as much as it applies to every other constituency in the country.

[Mr Denis MacShane (Rotherham) (Lab)]

I welcome the expansion of broadband—although before too long there will be 250,000 people without homes, let alone in homes with access to broadband—but might the Secretary of State consider whether broadband is not slightly yesterday’s technology? There are now cities around the world that are wholly wi-fi, so that people are not dependent on bits of lead and copper. Will the Secretary of State consider an experiment, perhaps in Rotherham? Could it be turned into a wholly wi-fi town?

[Mr Hunt]

The broadband pilots that we have announced are not technology-specific. If the right hon. Gentleman had asked me what I thought the likely solution would be, I should have said that there was likely to be a mix of fibre, wi-fi and mobile technologies that deliver universal connection. However, we want to wait for the pilots to establish the most cost-effective way of achieving that.

[Mr Dennis Skinner (Bolsover) (Lab)]

When will this super-duper roll-out reach the 25 ex-pit villages in Bolsover? People keep asking me when that will happen. The Secretary of State has painted a wonderful picture, but will it be this year, next year, some time or never?

[Mr Hunt]

I have good news for the hon. Gentleman to take back to the villages of Bolsover. Our commitment is that we will achieve that during the present Parliament. We will have the best superfast broadband network in Europe. The difference between the Government and the Opposition is that under us there will be no phone tax, no increase in the licence fee, and nearly £1 billion of investment. Who says that you cannot do more for less?

[Ian Lucas (Wrexham) (Lab)]

Why was Wales excluded from the superfast broadband pilots?

[Mr Hunt]

Wales has not been excluded. Herefordshire is on the border of Wales, and I very much hope that some of the benefits of the pilot there will spread over that border.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

The last Government committed themselves to 2 megabit broadband for everyone by the end of 2012. You have committed yourself to vague promises to improve the broadband network. Can you say precisely when everyone in the country will have 2 megabit broadband?

[Mr Speaker]

Order. I have committed myself to nothing on this matter and I can say nothing on this matter, but I hope that the Secretary of State can.

[Mr Hunt]

We have not said that we will not honour that commitment. We have delayed it from 2012 to 2015, for the simple reason that, as the hon. Lady will understand, there was not enough money in the pot.

[Jessica Morden (Newport East) (Lab)]

6. What plans he has for the future funding of S4C; and if he will make a statement.

[The Secretary of State for Culture, Olympics, Media and Sport (Mr Jeremy Hunt)]

The comprehensive spending review secured funding for S4C that will last throughout the next four years. We think that, in partnership with the BBC, we have a settlement that will be sustainable and also reduce the serious problems that S4C was facing in terms of its loss of audience share.

[Jessica Morden]

What hope is there for the Government’s respect agenda with the devolved Administrations if the Secretary of State did not even have the courtesy to consult Welsh viewers, the Welsh Assembly Government or even S4C itself over the handing of its funding to the BBC?

[Mr Hunt]

We faced severe challenges in regard to public spending. We managed to secure that public spending for the next four years, and at the same time we addressed something that the hon. Lady’s party did not address at all: the fact that over the past five years the weekly reach of S4C had halved. I think that what we have done is an achievement of which we can be proud.

[Hywel Williams (Arfon) (PC)]

The private sector of television production is very important as a generator of wealth and jobs in my constituency. What assessment has the Secretary of State made of the effects of his cuts on that vital sector—a sector that, if I may say so, only the stupidest of Governments would attack in the middle of a recession?

[Mr Hunt]

During my discussions on the future of S4C, I was very aware of the importance of the Welsh independent production sector. That is why I have made it an explicit part of our agreement with the BBC that it will continue to outsource 100% of S4C’s production to the sector. It is also why funding for S4C has been secured for the next four years—funding on which the Welsh production sector depends.

[Bob Russell (Colchester) (LD)]

7. When he last met the Football Association to discuss proposed reforms of football governance.

[The Minister for Sport and the Olympics (Hugh Robertson)]

Before answering, may I pay tribute to Andy Holmes, the double Olympic rowing gold medallist who, sadly, has passed away at the age of just 51?

For reasons the hon. Gentleman will understand, my Department’s current priority is winning the 2018 football World cup bid. However, I will continue my discussions with the football authorities—and, indeed, Members on both sides of the House—in order to deliver on the coalition Government’s commitment.

[Bob Russell]

The Minister has no doubt discovered by now that those at the top of football are as impotent as a room of eunuchs, that financially they have regimes that would make bankers blush, and that, with greedy footballers and parasitic agents, the game is being ruined. With that in mind, is it not time that the current Government—the last Government failed to do this—held a royal commission or some other inquiry, because the game is incapable of regulating itself?

[Hugh Robertson]

As was clear in the debate in Westminster Hall a month or so ago, there is widespread cross-House agreement that the position we are in at present is not satisfactory. People know where we want to get to eventually, but the problem is that, because of the disparate nature of football club ownership, there is no one silver bullet that will deliver that. I have said that I will consult widely over the next six months. I will continue to do so, and during that consultation I will, of course, bear the hon. Gentleman’s suggestion in mind.

[Tony Lloyd (Manchester Central) (Lab)]

The Minister has always struck quite a helpful tone on the governance of football issue, but does he accept that resolving the recent situation at Liverpool football club, for example, owed nothing at all to the stewardship of either the premiership or the Football Association, and that, frankly, the regulatory bodies are now beyond redemption? By all means the Minister can consult, but will he make sure that he brings the regulatory bodies to order so that there is proper regulation that serves the interests of the supporters?

[Hugh Robertson]

Yes, I can give the hon. Gentleman that commitment. As I think he knows, this process started some while before May—indeed, Ministers in the former Government were crucial in that. There is a clear cross-House will for this situation to be sorted out. As I have said, we all accept that the current situation is not satisfactory, and we know sort of where we want to get to, but there is no one single answer that gets us there. I promise the hon. Gentleman that I take this issue seriously and that I will do what I can.

[Mr Lee Scott (Ilford North) (Con)]

As part of any consultation, will the Minister look very seriously at foreign investment particularly in our lower league clubs? That is leaving many clubs in situations such as Portsmouth found itself in last week, as the directors and owners are not fit to run a football club and are just asset-stripping them.

[Hugh Robertson]

I absolutely take that point, although I remember that we looked into this issue when in opposition and it was clear both that there were as many examples of good as of bad overseas ownership, and that for a long time some of the worst excesses were committed by English owners. This is not necessarily a nationality problem, therefore, although my hon. Friend makes a good point.

[Mr Ian Davidson (Glasgow South West) (Lab/Co-op)]

8. What steps he is taking to ensure the successful staging of the Glasgow 2014 Commonwealth games.

[The Minister for Sport and the Olympics (Hugh Robertson)]

Responsibility for staging Glasgow 2014 rests with the organising committee and its key partners including the Scottish Government, Glasgow city council and Commonwealth Games Scotland. I have already met my Scottish counterpart on two occasions, visited Scotland House during my trip to Delhi—the hon. Gentleman will be pleased to know that—and had initial meetings with the Glasgow 2014 team.

[Mr Davidson]

I rise with some trepidation as Glasgow is nowhere near Herefordshire. Notwithstanding that, however, will the Government be a bit clearer about the help they intend to provide over the coming years, in particular to Glasgow city council and the organising committee?

[Hugh Robertson]

I can promise the hon. Gentleman that, given my name, I am very well aware that Herefordshire is nowhere near Scotland. I can also promise him that the Government have delivered on all the commitments they gave Glasgow 2014 as part of the bidding process and that we are examining ways in which we might help it further as the process moves forward.

[Pete Wishart (Perth and North Perthshire) (SNP)]

The Minister will, of course, know that the BBC has pulled out of being the official broadcaster of the Glasgow games, which has the potential to cost the games millions of pounds in terms of the broadcasting infrastructure. Will he join me in making a case to the BBC about reconsidering that? When he does so, will he remind the BBC that it has obligations to the whole UK?

[Hugh Robertson]

I will certainly do that. I just say to the hon. Gentleman that, as the right hon. Member for Dulwich and West Norwood (Tessa Jowell) will recall, a similar row occurred when the BBC did not secure the Paralympics rights for 2012 but, as things have worked out, I think that most people agree that the fact that those games will now be on a different broadcaster is to everybody’s benefit. This was not one of the issues raised with me in any of my meetings about the Commonwealth games in Delhi, but he has my word that if it becomes one, I will certainly take it up.

[Mrs Linda Riordan (Halifax) (Lab/Co-op)]

9. What assessment he has made of the legacy for Halifax of the London 2012 Olympics.

[The Minister for Sport and the Olympics (Hugh Robertson)]

Halifax and Yorkshire stand to gain from a wide range of opportunities created by the games, through businesses winning games-related work, increased tourism and cultural events. I am glad to tell the hon. Lady that the Olympic Delivery Authority has already awarded contracts to 39 suppliers in Yorkshire and Humberside.

[Mrs Riordan]

Given that these Olympics are London-focused and that the capital missed out on the worst of the cuts announced last week, how will the Minister ensure that towns such as Halifax do benefit from the Olympic legacy in terms of much-needed grass-roots sports facilities?

[Hugh Robertson]

I am delighted to tell the hon. Lady that the best possible news is that I have been to Halifax to deliver that message. On 20 July, I was able to visit the Ling Bob school in her constituency, where I attended a morning session connected with the Chance to Shine scheme. I saw the entire school playing cricket in the playground, and the school had clearly used this to shape its curriculum for the day. That is just one example of many that are brought about by the 2012 games.

[Tessa Jowell (Dulwich and West Norwood) (Lab)]

The concern about the sporting legacy is shared not just in Halifax but, as I am sure the Minister is aware, right around the country, in view of last week’s announcement that the funding for the Youth Sport Trust and school sports partnerships would be ended. Today, we have seen statements from 442 head teachers, coaches and physical education teachers expressing their concern that this puts the legacy for the London 2012 games and the aspirations of young people at risk. This has taken 10 years to achieve for young people in state schools. What assurance can he give that those children will continue to enjoy sport in the way that they have been led to believe is their entitlement as part of the Olympic legacy?

[Hugh Robertson]

The answer is in two halves. We have been able to do many things that have secured the sports legacy for the London 2012 games: a generation of new facilities is appearing in and around the Olympic park and our other venues; there will be a considerably increased profile as a result of the games; my right hon. Friend the Secretary of State for Culture, Olympics, Media and Sport has already announced our plans for a schools Olympics; we are bringing forward plans for community sport; and we were able, as part of last Wednesday’s settlement, to produce a new major events sports strategy, which will produce a tapestry of events post-2012.

The right hon. Lady’s point about the Youth Sport Trust is an interesting one. It is fair to say that it has performed extremely well in some places, but if she was honest about it, she would say that its performance has been less good in others. The fact remains that after 10 years and probably comfortably more than £1 billion of investment only one in five schoolchildren in this country is playing competitive sport—that is not a terribly good result.

[Mr Michael McCann (East Kilbride, Strathaven and Lesmahagow) (Lab)]

14. What discussions he has had with the Minister for the Cabinet Office on proposals to merge UK Sport and Sport England.

[The Minister for Sport and the Olympics (Hugh Robertson)]

My right hon. Friend the Secretary of State met Francis Maude on 8 July to discuss the public bodies Bill—

[Mr Speaker]

Order. I am sure that the Minister is referring to the right hon. Member for Horsham (Mr Maude); alternatively, he should refer to him as a Minister.

[Hugh Robertson]

My apologies, Mr Speaker. They discussed bringing together UK Sport and Sport England, and that was also discussed at an inter-ministerial meeting on 13 September. I also met my devolved counterparts to discuss the issue when I was in Delhi and I have, of course, discussed it with many others in sport and inside the two bodies.

[Mr McCann]

Recent correspondence from the Scottish Executive somewhat complacently suggests that they are merely aware of the proposed merger. Given UK Sport’s responsibilities for the world-class performance programme across the United Kingdom, how will the Minister ensure that there is a fair distribution of financial support for our elite athletes?

[Hugh Robertson]

That was one of the issues that we discussed in Delhi. I am sure that it will not have escaped the hon. Gentleman’s notice that part of the comprehensive spending review announced on Wednesday was framed by a decision to increase the amount of money going in to sport. We were able to announce not only that we would stick to the original spending limits envisaged for London 2012 and would honour those commitments in full, but that UK Sport would have the same level of funding, or slightly better, for the start of the Rio cycle than it is enjoying this year.

[Ian Austin (Dudley North) (Lab)]

In addition to the merger, the Government are cutting the funding that the two organisations receive as well as cutting £160 million from school sports and axing funding for sports colleges. Before the election, the hon. Gentleman praised Labour’s support for sport and pledged that it would not be undermined by the Conservatives. Will he tell us what impact those decisions will have on his predecessor’s ambition to get 2 million people taking part in sport?

[Hugh Robertson]

I welcome the hon. Gentleman to his place and I hope that he enjoys the position as much as I did—and, if I might say so, spends as much time doing it as I did. I understand his point, but he must admit that the amount of debt interest this country pays out every single day is the same as the entire community sport budget each year, so it is a considerable job to tackle it. By increasing the lottery shares to UK Sport and Sport England, not only have we been able to shield in full UK Sport from the effects of this, preserving elite athlete funding through to 2012, but by the end of the four-year cycle of lottery funding Sport England will have more money going through its front door than it did at the beginning. That is, I believe, a considerable achievement.

[Diana R. Johnson (Kingston upon Hull North) (Lab)]

T1. If he will make a statement on his departmental responsibilities.

[The Secretary of State for Culture, Olympics, Media and Sport (Mr Jeremy Hunt)]

During the summer, despite the pressures of the comprehensive spending review, we made good progress in our priority areas of tourism, philanthropy, broadband roll-out, local television and the schools Olympics. We will have announcements on all those areas before Christmas.

[Diana R. Johnson]

Many of my constituents have contacted me, concerned about the local independent BBC news that runs in East Yorkshire and Hull through Radio Humberside and programmes such as “Look North”. There is great concern that, because of the cuts to the BBC budget, areas such as East Yorkshire will lose that local independent news. What guarantee can the Minister give me that we will continue to have that?

[Mr Hunt]

There is no bigger supporter of local news than me. I made it one of the most important parts of our media policy, but if we are to have a thriving local media sector, people in the sector need an assurance that the BBC will not undertake more local activity than it does; otherwise, they simply will not take the risk of setting up newspapers, radio and television stations, and so on. We have come to a very good solution in this licence fee settlement, which is that the BBC has made a commitment that it will go no more local than it does currently. It is confident that it will be able to continue with its current obligations for the period of the settlement.

[Mr Philip Hollobone (Kettering) (Con)]

T7. Is it not quite wrong that somebody can be sent to jail for not paying their BBC television licence fee? Will the Secretary of State liaise with the Ministry of Justice to ensure that the BBC, like every other utility, pursues its civil debts through the civil courts rather than using the force of criminal sanction?

[Mr Hunt]

The licence fee is a curious system, but it has delivered outstanding results for British broadcasting. Most British people, when they go abroad, find that one of the things they miss is the BBC. One reason the BBC has been successful is that it has had sustained income through this rather curious system. That is why we have said that we are on the side of the public on this. We have given the BBC a tough settlement—freezing the licence fee for six years—under which we will continue with the structure of the licence fee as it is.

[Mr Ivan Lewis (Bury South) (Lab)]

We will work with the Government on issues where we agree, such as the Olympic games and England’s World cup bid. The Secretary of State will agree that the BBC is one of this country’s great institutions and its future a matter of public interest. Of course, the BBC cannot be exempt from cuts at this difficult time, but may I ask the right hon. Gentleman how he can justify a negotiating process that rode roughshod over the independence of the BBC, crushed any serious prospect of reform and involved no consultation with licence fee payers or parliamentarians? Will he confirm that at one point in the negotiations the BBC Trust board considered mass resignation and that he now faces a judicial review sought by S4C? Is that not another example of the Secretary of State doing a dodgy deal for the Chancellor to further his own political ambitions, instead of providing responsible leadership on an issue of crucial importance to the future of this country?

[Mr Hunt]

May I start by welcoming the hon. Gentleman to his post? I am delighted to talk to him about the BBC because the new licence fee settlement was announced last Wednesday and the silence of the Opposition’s response has been absolutely deafening. They have not been able to work out what to do because we have agreed a settlement that is acceptable to the BBC and is very popular with the public. Let me tell him the difference between what happened when his party negotiated the licence fee and when we did it. With his party, it took two years, it cost £3 million and we ended up with an above-inflation rise. With us, it took two weeks, it cost nothing and we got a freeze for six years.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

Given Ministers’ helpful answers about the funding of regularly funded organisations in the arts, will the Secretary of State give an assurance that those organisations will be encouraged to do developmental and outreach work in such a way that all corners of the country are reached and that younger and smaller organisations are supported?

[Mr Hunt]

I thank my hon. Friend for his question. He is absolutely right: we have given regularly funded organisations, with the agreement of the Arts Council, a settlement that is nothing like as bad as those in other parts of the public sector. I am very keen that on that basis—I have made this point to everyone I have spoken to about it—they should not cut outreach and education work, of which there are some outstanding examples in his constituency. On the basis of the conversations I have had, I am very reassured that those obligations will continue to be fulfilled.

[Jessica Morden (Newport East) (Lab)]

T2. I am sure that the Secretary of State will join me in congratulating all those involved in Newport’s successful staging of the Ryder cup last month, but does he understand that it is hard for the Government to talk about the long-term economic legacy of major sporting events such as the Ryder cup given that two days after that event they announced 300 job losses at the local passport office?

[Mr Hunt]

I went to the Ryder cup and I thought it was a fantastic example of how major sports events can make an incredible contribution to our wealth. Every year, 3.5 million people come to this country to watch or play in sports events, so they are big wealth generators. However, if we are to continue to support such events, we have to put the public finances on a sustainable footing, and that means using public funds much more efficiently than the hon. Lady’s party did in its 13 years in power.

[Nigel Adams (Selby and Ainsty) (Con)]

Is the Secretary of State aware that Yorkshire’s tourism board, Welcome to Yorkshire, is the only tourism agency in Britain to be shortlisted for an award in the world travel awards? Will he join me and all other hon. Members in the House from God’s own county in wishing Welcome to Yorkshire the very best in its endeavours?

[The Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport (John Penrose)]

I should be delighted to do so. I spoke to the chief executive of Welcome to Yorkshire, Gary Verity, last week, and he told me about its excellent progress. It is worth pointing out that the board is up against tourist boards that represent entire countries, rather than single counties, in having got this far. I am sure that everyone here is delighted by its progress thus far and of course we wish it luck in the final.

[Karl Turner (Kingston upon Hull East) (Lab)]

T3. Before the election, the Minister for Sport was keen to applaud Labour’s record on sport and pledged not to undermine it. With the massive cuts to funding for school sport, to local authorities and to Sport England, does he now feel that his Government are undermining the excellent progress that was made under the Labour Government?

[The Minister for Sport and the Olympics (Hugh Robertson)]

Absolutely not, because, as the hon. Gentleman will see if he examines the figures, in every year for the next four, the amount of money going to UK Sport and Sport England, with the exception of that to Sport England next year, is greater than it was under the Labour Government—so, no.

[Amber Rudd (Hastings and Rye) (Con)]

Many Members on both sides of the House have been kind enough to share their sympathy with me and my constituents about the devastating fire that afflicted Hastings and its pier recently. However, the reports of its death are exaggerated: the sub-structure is intact, the Hastings Pier and White Rock Trust is launching an appeal and we hope to rebuild on top of it. Will the Minister meet a group of us so that we can tell him more about it and learn from his experience?

[John Penrose]

I should be delighted to do so. I confess to some personal experience, in that two years ago Weston-super-Mare pier in my constituency went up in flames, and I am delighted to tell everyone that on Saturday just gone I had the honour of opening it. It was like the first day of the sales, as everybody dashed up to be first through the door. I should be delighted to meet representatives from Hastings and I hope only that they will have a similar renaissance of their pier.

[Helen Jones (Warrington North) (Lab)]

T4. Will the Minister explain why the Government have decided to underwrite the 2015 rugby union world cup, but will not give the same guarantees to the 2013 rugby league world cup? To paraphrase a famous comedian, “Is it because we is northern”?

[Hugh Robertson]

Tempting though it is, the answer is absolutely not. If the hon. Lady gets hold of a copy of the letter I wrote to the chief executive of the Rugby Football League when I took over, she will see that I said I was absolutely determined to ensure that precisely the same treatment was applied to both codes of rugby—for obvious reasons. The slight problem was that the RFL did not ask the then Government—of course, the hon. Lady’s Government—as the Rugby Football Union did when mounting the bid. My intention is to treat both similarly.

[Duncan Hames (Chippenham) (LD)]

Before taking office, my right hon. Friend was keen to promote the subtitling of parliamentary coverage. He may be aware that the service often ends by 6 o’clock in the evening, long before our debates here conclude. Will he urge broadcasters to ensure that all our proceedings are accessible to the 1 million users of subtitles who are either deaf or hard of hearing?

[The Parliamentary Under-Secretary of State for Culture, Olympics, Media and Sport (Mr Edward Vaizey)]

We are obviously keen to make parliamentary proceedings accessible to everybody, particularly late-night Adjournment debates, which I take. We now have an e-accessibility forum that is progressing that agenda, and we have also increased the amount of subtitling by broadcasters on a voluntary basis.

[Liz Kendall (Leicester West) (Lab)]

T5. Last year, more than 2,500 athletes with learning disabilities took part in the Special Olympics in Leicester. Will the Minister agree to meet those involved, to learn lessons from the event and make sure that people with learning disabilities can play a full part in sports and athletics in this country?

[Hugh Robertson]

Absolutely. I visited the event in Leicester last year, and, as the hon. Lady will be aware, the Special Olympics GB team has already been to No. 10 Downing street to meet the Prime Minister before going off to the games in Warsaw. I am absolutely behind the team and would be delighted to meet them. If the hon. Lady would just give me a month while we get the 2018 bid out of the way, I should be absolutely delighted to do anything I can to help.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

I welcome my right hon. Friend’s earlier comments on broadband. When will the BBC contribution from the licence fee come on stream? Will it form part of the £830 million commitment? Is it designated for a specific project or just part of the general fund?

[Mr Hunt]

I am happy to answer that question. As part of the licence fee negotiation that we concluded, the BBC has committed to put £150 million into broadband roll-out for every year of the new BBC licence fee settlement. That is how we shall get the nearly £1 billion of secured investment for the broadband roll-out, and I hope it will benefit my hon. Friend’s and everyone else’s constituency.

[Alun Michael (Cardiff South and Penarth) (Lab/Co-op)]

T8. How do Ministers intend to ensure that blind and partially sighted people, for whom radio is a vital lifeline, will not be disadvantaged if commercial pressures mount to switch from analogue to digital radio?

[Mr Vaizey]

As I mentioned in an earlier answer, we now have an e-accessibility forum that is taking forward many of those issues. One of the vital functions of the forum is to make sure that manufacturers take on board the issues and ensure that partially sighted people and people with other difficulties have full access to programmes through technology.

The Leader of the House was asked—

[Mr Philip Hollobone (Kettering) (Con)]

1. What progress has been made on the establishment of a House business committee.

[Graham Evans (Weaver Vale) (Con)]

4. What progress has been made on the establishment of a House business Committee.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

The Government are committed to establishing a House business committee. The Backbench Business Committee, of which the hon. Member for Kettering (Mr Hollobone) is a member, has got off to a good start, and we shall seek its views on how the House business Committee might operate.

[Mr Hollobone]

Is it the intention of the Deputy Leader of the House that once the House business Committee is established it will subsume the Backbench Committee, or will the two Committees carry on in parallel?

[Mr Heath]

I am grateful to the hon. Gentleman for that question. It is a fairly complex matter. If he re-reads the Wright Committee report, he will see that there is a degree of ambiguity about the precise interrelationship. I think the assumption is that the two Committees should sit alongside one another, with some common membership, but it is an area we need to discuss in detail with him and his hon. Friends on the Backbench Business Committee, and more widely in the House, so that we establish a system that will work for the whole House and make sure that both Back-Bench business and the interests of the House as a whole are protected.

[Graham Evans]

Does my hon. Friend agree that the creation of the Backbench Business Committee was a necessary step to restore the value of Back-Bench business, which was badly neglected under the previous Government?

[Mr Heath]

My hon. Friend will not be surprised to know that I entirely agree with him on that point. The Backbench Business Committee has made a good start in ensuring that important matters are brought before the House in a timely way. My greatest regret is the fact that the previous Government took so long to accede to the very reasonable request from the Wright Committee and many Members on both sides of the House to make that happen.

[Chris Bryant (Rhondda) (Lab)]

I warmly congratulate the Government on introducing the Backbench Business Committee, but can the Deputy Leader of the House guarantee that in future—as there always was in the past—there will be a European affairs debate before a European Council meeting and a full statement from the Prime Minister afterwards? This week, a European Council meeting will decide things such as our relationship with Russia and whether there should be Europe-wide regulation of the financial services industry, but the House will have not a single debate on it.

[Mr Heath]

I can only say to the hon. Gentleman that the arrangement of statements is, of course, a matter for the Government. Other debates, as the Wright Committee clearly sets out, are a matter for the Backbench Business Committee. I am sure that his comments were heard by the Committee.

[Helen Jones (Warrington North) (Lab)]

One of the most important reasons for setting up a House business Committee is to protect the rights of Members. Such a committee will not be set up in time to deal with the fiasco of the Parliamentary Voting System and Constituencies Bill, but will the Deputy Leader of the House assure us that he will protect the rights of Members of this House by ensuring that the statutory instruments relating to the Bill are debated before Report, and that he will place a record of the Government’s discussions with the devolved Assemblies in the Library? Is it not right that matters concerning elections to this House should be debated first here and not in the unelected House?

[Mr Heath]

I welcome the hon. Lady to her new position as shadow Deputy Leader of the House. I certainly do not recognise the word “fiasco” in any connection with that Bill, which will be in Committee later today.

[Hilary Benn (Leeds Central) (Lab)]

Well I do!

[Mr Heath]

The right hon. Gentleman says from a sedentary position that he does recognise the word “fiasco”, but the only fiasco I have come across in the course of our debates is the hon. Member for Rhondda (Chris Bryant) speaking for 50 minutes without mentioning his amendments. That may have been part of the problem of timing in relation to the Bill.

[Philip Davies (Shipley) (Con)]

2. What plans he has to increase the opportunities available for debate of Select Committee reports on the Floor of the House.

[The Leader of the House of Commons (Sir George Young)]

Select Committees have been strengthened by the introduction of election procedures for members and Chairs. Powers to set the agenda of the House have also been given to the Backbench Business Committee, which with the Liaison Committee is providing opportunities to debate Select Committee reports in Westminster Hall and on the Floor of the House. Those two measures have increased the ability of the House effectively to hold the Government to account.

[Philip Davies]

The Wright Committee recommended that there should be more opportunities to debate Select Committee reports on the Floor of the House. What steps is my right hon. Friend taking to make that a reality, or is he just leaving that to the Backbench Business Committee?

[Sir George Young]

With the greatest respect to my hon. Friend, he is in a much better position than I am to ensure that more Select Committee reports are debated on the Floor of the House, because following the implementation of the Wright Committee, the days for those debates have been handed over to the Backbench Business Committee, on which he sits. The Committee has the freedom to decide whether to debate Select Committee reports or other matters; that power no longer rests with the Government.

[Kevin Brennan (Cardiff West) (Lab)]

If more Select Committee reports are debated on the Floor of the House, can we avoid situations such as the one that occurred recently, when a Treasury Minister told the Public Administration Committee that he could not give the figure for compensation to Equitable Life policyholders because it had to be announced the following week in the comprehensive spending review, before leaking the information to the press that weekend? Could that be one way around this problem?

[Sir George Young]

I reject the hon. Gentleman’s implication that there was any impropriety in the discharge of information relating to Equitable Life. The figure was given in the CSR statement by my right hon. Friend the Chancellor last week.

[Jason McCartney (Colne Valley) (Con)]

3. What proposals he plans to put to the House in respect of the structure of the parliamentary calendar for the remainder of the current Session.

[Rehman Chishti (Gillingham and Rainham) (Con)]

5. What proposals he plans to put to the House in respect of the structure of the parliamentary calendar for the remainder of the current Session.

[Amber Rudd (Hastings and Rye) (Con)]

7. What proposals he plans to put to the House in respect of the structure of the parliamentary calendar for the remainder of the current Session.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

My right hon. Friend the Leader of the House announced the proposed parliamentary calendar until the end of 2011 last Thursday at the commencement of business questions, and I hope right hon. and hon. Members will have had the opportunity to pick up a copy.

[Jason McCartney]

I thank the Deputy Leader of the House for that answer, which will allow me and many colleagues in the House to plan our next few months in our constituencies. Can he help me plan the next four and a half years in my constituency, by giving the House an update on the Fixed-term Parliaments Bill?

[Mr Heath]

As the hon. Gentleman knows, we have had the Second Reading of that Bill. It should go into Committee shortly. I hope it will be able to make speedy progress, given the degree of consensus that exists across the House, and we hope it will receive Royal Assent at the earliest opportunity.

[Rehman Chishti]

Does my hon. Friend agree that plans to reform the parliamentary calendar will enhance the ability of the House to scrutinise and debate effectively the Government’s proposed legislation for this Session?

[Mr Heath]

It is important that the House has the fullest possible opportunity to hold the Government to account. One of the difficulties that we had previously when the House did not sit in September was that there was a large part of the year when the actions of Ministers could not be scrutinised by the House. My answer to the hon. Gentleman is yes, I do think that is the case, but we can still do better. That is why I am convinced that we should continue the discussion about how we can best organise the parliamentary calendar to enable the House to do its job as effectively as possible.

[Amber Rudd]

Does my hon. Friend agree that if we have more transparency and clarity in the calendar, it will stop giving the impression, which we may have got with the previous Government, of legislation being railroaded through?

[Mr Heath]

I agree entirely. If we can make sure that plenty of days are allocated for, for instance, the Committee and Report stages of Bills, which the Government have been committed to doing, and if we can ensure that the House uses that time sensibly and adopts a rational approach to the important things that need to be debated at length and those that may not need to be debated at quite such length, the House can start to look like a grown-up legislature able to do its job effectively.

[Fiona Mactaggart (Slough) (Lab)]

But is it not the case that even in the timetable that has been announced, we still have an extremely long summer recess in which Ministers will not be held to account in the House? Would it not be sensible if, instead of running days on unpredictably until late at night, we used more days during the summer to hold the Government to account, rather than holding them to account between 10 o’clock and 11 o’clock at night?

[Mr Heath]

The hon. Lady has expressed that view before. I do not entirely agree that we have an overlong summer recess, with the September sittings. That makes a huge difference to the way in which the House does its business. I also do not entirely agree that sittings are unpredictable. Where we have provided additional time, it has been in response to expected statements, to make sure that the House has protected time to do its business. We are constantly responding to the hon. Lady’s Front-Bench team demanding more time and longer sittings to scrutinise Bills effectively. We must get the right balance. We will look at the matter in more detail. The Procedure Committee has said that it will look at the calendar in the round, and she may want to give evidence to the Committee on her views.

[Diana R. Johnson (Kingston upon Hull North) (Lab)]

8. What steps he plans to take to provide further opportunities for pre-legislative scrutiny of Government legislation; and if he will make a statement.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

We have announced the publication of our four draft Bills in this Session. That is the same as in four of the five Sessions of the previous Parliament. More draft Bills are being prepared and I hope we will have a more impressive total by the end of the Session.

[Diana R. Johnson]

Is not the Parliamentary Voting System and Constituencies Bill a lesson in how not to legislate? Despite it being a major constitutional change in this country, there has been no pre-legislative scrutiny. As I understand it, the Government are tabling hundreds of Government amendments while it is on the Floor of the House. Should not the Government rethink this, abandon the Bill and bring back one that has been properly thought through?

[Mr Heath]

The hon. Lady is pursuing this argument. Early in the lifetime of a Government, there will, of course, be some Bills that are not available for pre-legislative scrutiny, simply because—apart from anything else—otherwise the House would be sitting here with nothing to do. That is why we have ensured that these important Bills are debated on the Floor of the House, where they can receive the longest possible scrutiny. I hope that, by the completion of all its parliamentary stages, every part of the Bill she mentioned will have been available for scrutiny, if hon. Members wish to pick up any specific points. I simply do not believe that there is an alternative way of doing business. Having said that, our normal practice will be to introduce important Bills in draft, as has been clearly stated. There are more Bills in the pipeline, and she will find that, by the end of the Session, considerably more Bills will have been considered in draft than in the previous Session.

[Robert Halfon (Harlow) (Con)]

10. What progress has been made on the establishment of a House business Committee.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

I refer the hon. Gentleman to the answer I gave earlier.

[Robert Halfon]

Does my hon. Friend agree that the House business Committee, allied with the Backbench Business Committee and the elections to Select Committees, has restored the balance of power between Parliament and the Executive? What other steps is he taking to redress that balance?

[Mr Heath]

We have already introduced quite a hefty group of reforms. I place on the record again my gratitude to the Wright Committee for its work, although I do not think that its proposals are necessarily the end of the story. I hope that the work of the Procedure Committee and the work that we will continue to do in bringing forward suggestions from my right hon. Friend the Leader of the House and myself will give us the opportunity to ratchet up steadily the involvement of individual Members of the House, to enable them to do the job that they were sent here to do on behalf of their constituents, which is to represent their constituents properly and to hold the Government to account in both their legislative and executive functions. The previous Parliament was incapable of doing that simply because of the restrictions placed on it. I hope that we can now make steady progress in improving the reputation of the House.

[Joan Walley (Stoke-on-Trent North) (Lab)]

But is not part of the job of an MP to introduce private Members’ Bills when they come first, or even ninth, in the ballot? It is vital that the House looks closely at private Members’ Bills and at the Committee stages to ensure that we are able to bring measures to the House and get them enacted?

[Mr Heath]

We need to consider urgently how we scrutinise private Members’ legislation. The Procedure Committee is currently looking at that, and I hope that it will make proposals in the near future. Meanwhile, we will have to consider—my right hon. Friend the Leader of the House is considering this—how we best use the time made available by the slightly longer Session than usual to enable greater scrutiny and greater opportunities for private Members’ legislation already in the pipeline.

[Pete Wishart (Perth and North Perthshire) (SNP)]

rose—

[Mr Speaker]

I call Mr Angus Robertson.

[Angus Robertson (Moray) (SNP)]

indicated dissent.

[Mr Speaker]

No, the hon. Gentleman is not standing. He was poised, perched like a panther. I call Mr Pete Wishart.

[Pete Wishart]

Will the hon. Gentleman assure me that the House business committee will be a Committee of the whole of the House, not just the Government parties and the Labour Opposition? What is he and the Leader of the House doing personally to ensure that smaller parties are properly represented on the new Committee?

[Mr Heath]

The hon. Gentleman knows, because we discussed the matter very early in this Parliament, that the Wright Committee was not terribly helpful in its proposals to him and his colleagues. Having committed ourselves to implementing the Wright Committee, we were left in some difficulties. However, we need to ensure that the voices of smaller parties in the House are clearly heard. I hope that he will take part in the necessary discussions about the establishment of the House business committee to ensure that that is done in good order and in a way that is consistent with the Wright Committee proposals while reflecting best practice in the House.

Points of Order

Monday 25th October 2010 Commons Chamber

15:34

[Andy Burnham (Leigh) (Lab)]

On a point of order, Mr Speaker. The House will recall that on 5 July the Secretary of State for Education announced the closure of the Building Schools for the Future scheme and the cancellation of 700 school building projects. Six hundred had reached financial close and were described in a list published by the Department as “unaffected”. However, last Friday local authorities received phone calls to tell them to make 40% efficiencies in those projects, threatening to throw local plans into chaos.

On the “Politics Show” yesterday the Education Secretary said that schools were informed back in July of the potential for further large-scale cuts. However, councillors in Salford, Leicester and Nottingham dispute that claim, which is at odds with the statement given to this House back in July that the remaining projects would be “unaffected”. There is a great deal of confusion in communities throughout the country about Building Schools for the Future. The projects matter greatly to children and teachers in those communities and to Members in this House, so I request through you, Mr Speaker, that the Education Secretary makes an urgent statement to the House to clarify matters.

[Mr Speaker]

I am grateful to the shadow Secretary of State for his point of order. I confess that here and now I detect nothing on which I should rule. That is a narrow interpretation of my responsibility, but it is a direct response to the point of order that the right hon. Gentleman has raised. I have heard very clearly what he has said. He has in a sense put his request for a statement on the record. That will have been heard by Members on the Treasury Bench, and I hope that it is helpful, both to the right hon. Gentleman and to others who have expressed an interest, if I remind the House that there is an upcoming debate on the comprehensive spending review, within which the concerns articulated by the right hon. Gentleman will doubtless be more fully aired.

[Hazel Blears (Salford and Eccles) (Lab)]

Further to that point of order, Mr Speaker. You will understand the distress and concern that has been caused in Salford as a result of a telephone call that came out of the blue at the end of last week, saying that our Building Schools for the Future programme might be cut by 40%. I ask you to convey to the Secretary of State the deep concern that people have and the gravity of the need for him to respond. I shall ask him for an urgent meeting to discuss the matter with people from Salford, and I just ask that you, Mr Speaker, ensure that he is fully aware of the distress that the matter has caused.

[Mr Speaker]

I note what the right hon. Lady says and certainly do not treat it with levity, but I am not convinced that I am, in this situation, a better conveyor belt than the right hon. Lady herself. She has just registered her concern and conveyed her message to the Secretary of State, and in those circumstances I do not think that I need to do so.

[Mr Wayne David (Caerphilly) (Lab)]

On a point of order, Mr Speaker. On Wednesday last week, at column 986 of Hansard, the hon. Member for Suffolk Coastal (Dr Coffey) may have given the wrong impression to the House by implying that in the European Parliament Labour MEPs had supported an increase in the EU budget. That is not the case, nor did they vote for the EU to have tax-raising powers. I say that to set the record straight.

[Mr Speaker]

The hon. Gentleman has done so—doubtless to his own satisfaction and, possibly, to that of others.

[Angus Robertson (Moray) (SNP)]

On a point of order, Mr Speaker. The Prime Minister has assured the House that no decision has been taken on the future of RAF Lossiemouth. However, defence documents have been forwarded to me indicating that the Air Force top brass favours RAF Marham as the main future base for Tornado aircraft. Such a decision would decimate the Moray economy, cut armed forces numbers in Scotland by 25% and concentrate the RAF in the south of England. Given how important an issue this is for service families, for Moray and for the whole of Scotland, has the Ministry of Defence confirmed when an official announcement will be made in this House?

[Mr Speaker]

The short answer is no, but the hon. Gentleman has made his point with his usual force.

[Ian Mearns (Gateshead) (Lab)]

On a point of order, Mr Speaker. This morning I received an answer to a written question from the Minister of State, Department of Energy and Climate Change, the hon. Member for Bexhill and Battle (Gregory Barker). My concern about the answer is that it refers to only half my constituency, when my question referred to the whole of it. Inasmuch as there has been a boundary change, the answer refers to the part of my constituency which was formerly in the old Gateshead East and Washington West seat and totally ignores the half that was in the constituency of Tyne Bridge. I am a bit concerned not only from my perspective, but for all hon. Members, because we are anticipating 600 boundary changes some time in the future.

[Mr Speaker]

The hon. Gentleman is proving that he is fastidious to a fault, and what I can say by way of advice and assistance is that I feel sure that a quick visit to the Table Office will yield a benefit to him, not least if he seeks to table further questions, as I suspect perhaps he might.

[Paul Flynn (Newport West) (Lab)]

Further to that point of order, Mr Speaker. I think it is time that we investigated the appallingly vacuous answers that we are having to parliamentary questions. They are the worst answers I can remember in 25 years in this House. I will give just one example from last Wednesday, when I asked a question on the number of desertions from the Afghan army and police. That is a matter of great importance for our soldiers in Afghanistan, because our whole exit strategy is based on a strong army. The answer that appeared made no reference whatsoever to the substance of the question asked. This is becoming increasingly common. The Government seem to be systematically leaking on a more incontinent basis than any other previous Government, and they are not answering questions; they are now treating this Parliament with disrespect.

[Mr Speaker]

I am grateful to the hon. Gentleman for his point of order. Lest others who listen to our proceedings are not aware of it, I can remind them, or inform them for the first time, that the hon. Gentleman is the author of a well-thumbed tome entitled “Commons Knowledge: How to be a Backbencher”. Over the years, he and I have both tabled very large numbers of questions, but I have to say to him, with some relief, that I have never been responsible for the content or quality of the answers under successive Governments.

The hon. Gentleman makes a serious point, but it is not one, as I think he knows, on which I can rule. What I will say to him is twofold. First, the Leader of the House is sitting on the Treasury Bench and will have heard very clearly the plaintive representation that he has made. Secondly, as an inquiry is currently being conducted, or is shortly to be conducted, into the subject of parliamentary questions and ministerial answers under the auspices of the Procedure Committee, if memory serves me correctly, the hon. Gentleman, with his vast experience and many examples, might wish to submit evidence to that Committee. I think that that would be useful.

[Joan Walley (Stoke-on-Trent North) (Lab)]

Further to the point of order on the Building Schools for the Future programme, Mr Speaker. If it is the case that there have been significant changes to money that was allocated in July, can you make sure that there is information in the Library prior to Wednesday’s debate on the comprehensive spending review?

[Mr Speaker]

Ministers will have heard the request that the hon. Lady has made. I have noted it myself, and it does not seem unreasonable. I cannot continue now the debate and exchanges that have already taken place, but I am grateful to her and to all hon. Members.

[Mr David Nuttall (Bury North) (Con)]

rose—

[Mr Speaker]

Mr Nuttall addressed the House for over an hour on Friday, but he feels a great thirst to raise a point of order, and of course I shall hear it.

[Mr Nuttall]

Further to the point of order on parliamentary questions, Mr Speaker. If I may assist, I understand that an e-mail has already been circulated from the Procedure Committee asking for any problems to be submitted to it.

[Mr Speaker]

That is most helpful; we are all exceedingly grateful to the hon. Gentleman.

Speaker’s Statement

Monday 25th October 2010 Commons Chamber

15:43

[Mr Speaker]

I have a statement to make to the House. I have to inform the House that, as required by section 144 of the Representation of the People Act 1983, I have received the certificate from the judges appointed to try the election petition relating to the Fermanagh and South Tyrone constituency election on 6 May 2010. The judges have determined that the petition be dismissed, and have certified that the hon. Member for that constituency was duly returned at the said election.

I shall lay the certificate on the Table, together with the shorthand writer’s notes, and will cause the full text of the certificate to be entered in the Journal. Members wishing to read the certificate for themselves will find it set out in the Votes and Proceedings for today, which will be circulated with the Order Paper in tomorrow’s Vote Bundle, available online and from the Vote Office.

Business without Debate

Monday 25th October 2010 Commons Chamber

European Union Documents

Motion made, and Question put forthwith (Standing Order No. 119(11)),

Investor Compensation Schemes

That this House considers that the draft Directive to amend the Investor Compensation Schemes Directive (European Union Document 12346/10) does not comply with the principle of subsidiarity, for the reasons set out in the Annex to chapter 7 of the Third Report of the European Scrutiny Committee (HC 428-iii); and, in accordance with Article 6 of the Protocol on the application of the principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the presidents of the European institutions.—(Angela Watkinson.)

Question agreed to.

Parliamentary Voting System and Constituencies Bill

Monday 25th October 2010 Commons Chamber

[Relevant documents: The Third Report from the Political and Constitutional Reform Committee, Parliamentary Voting System and Constituencies Bill, HC 437, and the oral evidence taken before the Committee on Thursday 15 July on the Coalition Government’s programme of political and constitutional reform, HC 358-i.]

[5th Allocated Day]

Further considered in Committee

[Mr Nigel Evans in the Chair]

New Clause 19

Press comment etc not subject to spending controls

‘Expenses incurred in respect of the publication of any matter relating to the referendum, other than an advertisement, in—

(a) a newspaper or periodical,

(b) a broadcast made by the British Broadcasting Corporation or Sianel Pedwar Cymru, or

(c) a programme included in any service licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996,

are not “referendum expenses” for the purposes of Part 7 of the 2000 Act.’.—(Mr Harper.)

Brought up, and read the First time.

15:45

[The Parliamentary Secretary, Cabinet Office (Mr Mark Harper)]

I beg to move, That the clause be read a Second time.

It is a great pleasure to see you in the Chair, Mr Evans. The new clause is a straightforward and clear response intended to cure, for the alternative vote referendum, a possible ambiguity in the Political Parties, Elections and Referendums Act 2000 framework on the regulation of referendum expenses. It clearly states that the costs of covering and reporting on the referendum in the media are not referendum expenses for the purposes of that Act. That means that those costs will fall outside the regulatory regime that the PPERA puts in place.

I want to be absolutely clear that the new clause does not change the position on the regulation of advertising in the media by campaigning individuals or organisations. Such media costs will continue to be subject to the usual spending restrictions in the 2000 Act. However, we believe it is important to ensure that media outlets are not caught by the spending restrictions in place for the referendum when publishing information about it, since they will play a vital role in building public awareness.

I take this opportunity to thank the hon. Member for Nottingham North (Mr Allen) and the Select Committee on Political and Constitutional Reform for the scrutiny of the Bill that they carried out despite the time available. The Committee’s members tabled a similar amendment, and I am grateful for their focus on the issue. They identified the problem and the potential ambiguity, and argued that it needed to be dealt with. The Committee identified a potential problem with the framework for referendums, as set out in the PPERA. Where there is ambiguity in statute there may be arguments either way, but I accept that on an issue as important as this, the law should be clear. That is why the Government have tabled their own new clause, similar to that tabled by the Committee’s members and identical in its intention. However, I believe that there are sound technical reasons why our version is preferable.

[Chris Bryant (Rhondda) (Lab)]

I warmly welcome the fact that the Government have tabled the new clause. Broadly speaking, the Minister is absolutely right that it was never anybody’s intention that ordinary newspapers, magazines, television broadcasts and so on should be included in the referendum expenses regime. However, there are some complications because of some of the terms used in the new clause.

I note that the Minister said en passant that the Committee chaired by my hon. Friend the Member for Nottingham North (Mr Allen) managed to come up with a report despite the time available, but of course the lack of availability of time was entirely down to the Minister, not down to anybody else. As the Minister noted, the Committee produced its own version of what a new clause might look like, and a lot of us have been lobbied by different parts of the media in favour of some version or other of an amendment such as this one. The Minister said that the Government’s version was slightly different, and I hope that he will be able to take us through why.

The new clause mentions, first:

“Expenses incurred in respect of the publication of any matter relating to the referendum, other than an advertisement, in…a newspaper or periodical”.

As I understand it, it is remarkably difficult to specify in law what is a newspaper or periodical. So far as I can see, there is no one clear definition of newspaper or periodical. I assume that the Government understand “newspaper or periodical” to be the same, not two separate concepts.

I can find two instances of a definition in statute. The first is the Newspaper Libel and Registration Act 1881, which states:

“The word ‘newspaper’ shall mean any paper containing public news, intelligence, or occurrences, or any remarks or observations therein printed for sale, and published in England or Ireland periodically, or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or numbers.

Also any paper printed in order to be dispersed, and made public weekly or oftener,”—

“oftener” is slightly strange language—

“or at intervals not exceeding twenty-six days, containing only or principally advertisements.”

I presume that the Government are not relying on that definition, because it applies only to England and Ireland, which is in a Bill that tried to ensure that all newspapers and periodicals were registered. That registration process no longer exists—now anyone is free to publish a newspaper or a periodical.

The second instance is in section 7(5) of the Defamation Act 1952, which states that

“the expression ‘newspaper’ means any paper containing public news or observations thereon, or consisting wholly or mainly of advertisements, which is printed for sale and is published in the United Kingdom either periodically or in parts or numbers at intervals not exceeding thirty-six days.”

I am sure that keen-eared Members noted that between 1881 and 1952, there was a difference of 10 days in the frequency with which a printed item might be described as a newspaper or a periodical.

[Mr Mark Field (Cities of London and Westminster) (Con)]

That may have had something to do with Christmas and a monthly publication potentially covering five weeks at that time of year. However, the shadow Minister may have stronger ideas about the reason for that difference—or mistake.

[Chris Bryant]

It seems slightly odd to go to 36 days because there is no specific definition of the date of publication. Of course, the hon. Gentleman is right that if the Christmas edition of a monthly publication is published around 15 November—after doubtless being written around 15 July—there might be more than 26 days between it and the next edition. However, large elements of the Defamation Act have been repealed, although the precise definition of newspaper seems still to exist. The territorial extent of that Act is not only England and Ireland, but Wales and Scotland.

Election law has for some considerable time made allowance for newspapers and periodicals so that, for example, an edition of The Times that advocates people voting Conservative or The Guardian bizarrely supporting the Liberal Democrats in a general election are not suddenly caught for election expenditure. I understand that, but the new clause needs greater clarity, not least because many more people now engage in publication. Under the 1881 Act, people had to be licensed to do that. Today, anybody can publish, and there is no specification in law of the number of copies that must be published, only of the frequency. I do not know whether the Parliamentary Secretary’s Conservative association produces a regular newsletter. Whether it is counted as a newspaper or periodical is of material significance to election expenditure.

I therefore hope that the Parliamentary Secretary can first explain his understanding of newspaper or periodical and from where he derives the definition, not least because the new clause does not refer to the derivation of the interpretation.

Secondly, subsection (b) of new clause 19 refers to

“a broadcast made by the British Broadcasting Corporation”

or Channel 4, but Channel 4 is going to be part of the BBC in the near future—

[Ian Lucas (Wrexham) (Lab)]

S4C.

[Chris Bryant]

Sorry, S4C, not Channel 4. S4C is going to be part of the BBC in the near future. I presume that subsection (b), which might be presumed at a later date to transfer to other referendums, would not be disturbed by the congruence of the two organisations, I think in 2013-14.

Subsection (b) also uses the term “broadcast”, a word that, in legislation, specifically refers to broadcasting from one to many points. That is to say, the broadcaster does not determine the precise number of people who receive a programme, network or channel, as opposed to cable, which has never before been referred to as broadcasting, because it is point-to-point. That is to say, the cable organisation knows exactly where the programme is going, because there is a direct connection between A and B, as opposed to what happens in terrestrial broadcasting, whether digital or otherwise. That is why the Communications Act 2003 has separate provisions for broadcasting and cable. I would be grateful if the Minister could clarify that when he says “broadcast” he does not just mean broadcasting, but includes cable and the provision of any such programme via any other means.

I ask that because subsection (c) refers explicitly to

“a programme included in any service licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996”.

I do not understand why subsection (b) refers to a broadcast—as opposed to either a programme provided by the two organisations listed or one included in any service provided by them—and it contrasts with how subsection (c) has been constructed. In addition, there is an issue relating to the provision of party political broadcasts, because there will be a different level of provision of party election broadcasts in Wales, Northern Ireland and Scotland, as a result of the elections being held there, from that provided in England during the run-up to the referendum and the short campaign for those elections. I suppose that any of the political parties in those areas could decide that it wanted to major on the alternative vote provisions and the referendum in its party election broadcast, and therefore might be considered to be in conflict with the provisions under the terms of the 2000 Act or the Broadcasting Act 1990.

[Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

A party might indeed consider doing that, but would the hon. Gentleman concede that the political reality of the situation is that most parties and combatants in the Scottish and Welsh elections will have better things to do than consider the AV referendum? That further underlines the folly of holding the referendum on the same day as those elections, thereby not giving the issue its proper space in those territories.

[Chris Bryant]

Indeed. Many of the provisions that we will talk about in the main debate this afternoon relate to the combining of polls, but this is the only point in the debate on the Bill when there can be any discussion about party election broadcasts, because this is the only point in the Bill that they are referred to. All the other elements—how many registers of electors there should be, what colour the ballot papers should be, how many polling cards there should be and so on—are referred to in the new schedules that we will come to a little later, but not broadcasting, which is a reserved responsibility.

The Broadcasting Act 1990 makes it clear that

“any regional Channel 3 licence or licence to provide Channel 4 or 5 shall include—

(a) conditions requiring the licence holder to include party political broadcasts in the licensed service; and

(b) conditions requiring the licence holder to observe such rules with respect to party political broadcasts as the Commission may determine.”

In addition, we specified in section 127 of the Political Parties, Elections and Referendums Act 2000 that

“(1) A broadcaster shall not include in its broadcasting services any referendum campaign broadcast made on behalf of any person or body other than one designated in respect of the referendum in question under section 108.

(2) In this section, ‘referendum campaign broadcast’ means any broadcast whose purpose (or main purpose) is or may reasonably be assumed to be—

(a) to further any campaign conducted with a view to promoting or procuring a particular outcome in relation to any question asked in a referendum to which this Part applies, or

(b) otherwise to promote or procure any such outcome.”

16:00

It is my contention that this provides us with a degree of uncertainty about what should happen during the process of the combined elections, particularly in Wales, Scotland and Northern Ireland, but also in England, in relation to party election broadcasts and referendum broadcasts. This will be the first time that broadcasters have had to deal with this set of coincidences—or rather, not coincidences, but this deliberate combination. There is a danger that, if political parties are obsessing too much about the referendum, many voters will worry that there will be an excess of referendum and party political broadcasts next year. Certainly in Wales, we will probably have them from the beginning of February all the way through to May. Some people might think that one party election broadcast a year is enough; I am sure that most of our voters do.

The real danger is that there will be conflict between the different kinds of party election and referendum broadcasts, but the argument can also go the other way. If, for example, all the people who appeared in a television broadcast during the AV referendum campaign in Wales were from the Labour party, people might contend that the broadcast in question was not a referendum broadcast but a party election broadcast on behalf of the Labour party. I very much hope that the Government will be able to clear up some of these problems.

In the Communications Act 2003, section 333—which is halfway to 666—requires Ofcom to ensure that party political broadcasts, including those for referendum campaigns, are covered by UK regional ITV, Channel 4, Five, Classic FM, talkSPORT and Virgin 1215 services. Obviously, the BBC is separately obliged to cover the broadcasts under the rules set out in its charter and governed by the BBC Trust. I presume that no elements of that are going to be changed by the announcements that the Secretary of State for Culture, Olympics, Media and Sport made last week. The 2003 Act also requires S4C to cover election and referendum broadcasts, but places regulatory responsibility with the Assembly, not Ofcom.

That brings me to another subset of the problem, which is that I am not sure whether there has been explicit consultation with the Assembly on the provision of party election and referendum broadcasts in the run-up to next May. I hope that the Minister will be able to place in the Library of the House all the correspondence that he has had with Ministers in Wales, Scotland and Northern Ireland on the combination of polls, on the elements that I have raised in relation to the new clause, and on the statutory instruments, which I understand have not yet been tabled, but which the Leader of the House wrote to some of us last week to say would be tabled very soon. I do not think that they have been seen yet, however. I would be grateful if the Minister could answer some of those questions, and lay in the Library of the House all his correspondence with Ministers in the devolved Administrations relating to these issues.

[Mr Mark Field]

I agree with what the Government are trying to do in new clause 19; they have taken on board some of the concerns expressed by the Select Committee. However, I want to ask the Minister a question about the increasingly important influence of the new media. Does he not feel—I appreciate it will not apply to this particular referendum—that much of our legislation, particularly that dealing with media comment, is now ripe for a much more radical overhaul? This could be the first referendum in which we see a significant amount of money being spent by online providers trying to put their message across—in both the English and the Welsh language, I suspect—on this issue. Much of the legislation already in place looks more towards 20th-century and perhaps even, in some cases, 19th-century media. Much of the new media will have a greater impact—not just through blogs, but through a whole range of forums coming under the auspices of existing magazines and periodicals—so I would like to know what indications the Government have had about the likely costs and whether they will count towards the amount of election expenditure.

It strikes me that we are now living in a much-changed world. Younger voters in particular are less likely to look at newspapers, periodicals or even the television as the most important mechanism for getting comment on political and other related matters. There is concern that a great deal of our legislation requires a much more radical overhaul than people appear to have in mind. Given the context of where we are today, however, the new clause provides a sensible way forward, taking into account many of the concerns expressed by the all-party group.

[Mr Harper]

I am grateful to the hon. Member for Rhondda (Chris Bryant) and to my hon. Friend the Member for Cities of London and Westminster (Mr Field) for raising a number of questions. Let me step back a little and explain why we tabled the new clause.

The problem arises from the definition of the word “material” in schedule 13 of the Political Parties, Elections and Referendums Act 2000. The reason for the concern —some media organisations were worried—is that there was some ambiguity about the meaning. We think “material” means leaflets and other campaigning items, but we decided to fix any ambiguity.

The hon. Member for Rhondda asked me why we prefer our new clause to the amendment that the Committee had tabled. That amendment changed section 117 of the 2000 Act, with the effect that media costs were still categorised as referendum expenses within the regulatory regime. The amendment further specified that although these were referendum expenses, there was no need for individual bodies to be permitted participants if they wanted to spend more than that. That might not have been the Committee’s intention, but that is how we thought it would work. By comparison, our amendment simply says that those media costs are not referendum expenses at all, so they are not subject to the regulatory regime set down by the Act. We think that that provides a more direct and less confusing approach than the Committee set out in its amendment. Our new clause has the same spirit and purpose, but we prefer it, as I have explained.

The hon. Member for Rhondda asked a number of questions. As to the definition and use of language, our approach is to use the equivalent provisions in the PPRA that regulate third-party activity in elections, which have been in place since 2000. The commission responsible for regulating the provisions is happy with how it has been defined and will issue some guidance setting out the case in a little more detail. As I have learned, it is not terribly helpful—to use a ghastly phrase—to have undue specificity on the face of the Bill, whereby every single possible definition of a media outlet is set out. If that is done, but one possible meaning is not captured by the definitions, it makes it easy for a person to argue that they are not covered. Having a broader definition, about which the commission can issue guidance, is much more likely to hold up legally, particularly when it comes to some of the new media to which my hon. Friend the Member for Cities of London and Westminster has rightly drawn our attention.

I shall come to my hon. Friend’s point about the future in a moment, but we have followed the approach in the PPRA and made it explicit that, in the case of this particular referendum, the regulations will be the same as those applying to third-party activity in elections. I think that, because the referendum and the elections are to take place on the same day, it is important for us to apply the same regime to both.

[Chris Bryant]

The Minister is talking complete sense, but I should like to be absolutely certain about what constitutes “a newspaper or periodical”, notwithstanding the issue of the convergence of a number of different media. There is a clear definition in the 2000 Act; perhaps he could give it to us.

[Mr Harper]

We have simply replicated the provision in the PPRA. I do not have it in front of me, but I should be happy to write to the hon. Gentleman about it later.

[Chris Bryant]

I understand that. My point is that I am not sure that there is a definition in law of “newspaper or periodical”, and I think that it is about time we had one. Definitions appeared in legislation in 1881 and 1952, but they conflict with each other.

[Mr Harper]

As I think I made clear in my reply to my hon. Friend the Member for Cities of London and Westminster, it is much better to leave such definitions to case law, which can evolve over time. If they are defined too tightly in statute law, and then new media appear and changes take place in the way in which the media are produced, we shall find that we must continually update primary legislation in order to keep up with the changes. The hon. Gentleman put his finger on it when he referred to those older definitions and the fact that they have changed. It is better to set a wider definition. The commission can issue guidance, and if problems arise, the courts can interpret the definitions in the light of changes in the way in which media organisations work, and changes in technology. That way of proceeding will produce a tighter definition than trying to include too much detail in primary legislation, which will then become out of date.

The hon. Gentleman asked about our use of the words “broadcast” and “programme”. Again, we wanted the clause to be consistent with the third-party expenditure provisions in the PPRA, and also with the parent terms in the Broadcasting Act 1996, to which the hon. Gentleman referred. We did not want to open up gaps enabling people to argue that the words did not mean what they had in those original pieces of legislation.

My hon. Friend the Member for Cities of London and Westminster referred to new media and changes in communication and technology, particularly in the context of the internet, e-mail and similar techniques. Because this will be the first United Kingdom-wide referendum to use the framework in the PPRA, one of the commitments that the Government have given to the Lords Constitution Committee, which has prepared a report on referendums, is that once it has taken place we will review the way in which it has operated, in order to establish whether we should make any legislative changes—changes in the framework, not just in specific referendums.

As my hon. Friend will know, the coalition Government are committed to introducing more referendums on both European and local matters. We now have a good opportunity to review the working of the system and to establish what practical changes are needed, given that there are likely to be more referendums in the future.

[Chris Bryant]

I thought that there would only be more referendums on European matters if treaties were proposed that would take powers away, but that is—I hope—a debate for another day.

I am still somewhat perplexed about the Minister’s understanding of “broadcast” and “programme”. I recognise that there are parallels in other legislation, but the concept of what constitutes the expense is material in this context. Is it the expense of making the referendum broadcast, which might include the cost of filming and so forth, or is it the expense of broadcasting the programme?

[Mr Harper]

I have not yet dealt with the hon. Gentleman’s point about party election broadcasts and referendum broadcasts.

On the issue of election broadcasts as against referendum broadcasts, it will be for the Electoral Commission to address the matter of referendum broadcasts with the yes and no campaigns once they have been designated. I listened very carefully to the remarks of the hon. Member for Rhondda about the differences between the rules for party election broadcasts and for referendum broadcasts and the provisions on them, and I thought—if I may say so as he was very courteous about me—that he explained them very clearly. On his specific point about the rules in respect of combination and what correspondence there was on that with Ministers in devolved Governments, as he will know, Ministers in devolved Governments are not responsible for the administration of elections. At present, that is the responsibility of the three territorial Secretaries of State and my officials and I have been discussing these matters with them. The hon. Gentleman will also know that the Calman proposals include recommendations to devolve the administration of elections in Scotland to the Scottish Government, but that has not yet taken place.

16:15

[Chris Bryant]

So there has been absolutely no consultation with the Administrations in Scotland, Wales or Northern Ireland about the combining of polls, the statutory instruments that are to be laid later this week, or the referendum broadcasts, which in Wales are the responsibility of the Welsh Assembly not Ofcom?

[Mr Harper]

No, that is not what I said. The hon. Gentleman asked about what correspondence I had had on administering the elections, and I was just making the point that that is not the responsibility of Ministers in the devolved Administrations. There has, of course, been some contact, however. The hon. Gentleman will know that my right hon. Friend the Secretary of State for Wales has had discussions with the First Minister about, for example, the combination and whether the Welsh Assembly Government wanted to move the date of their election. They made it very clear that they did not. The hon. Gentleman will also know that my right hon. Friend the Secretary of State for Scotland has also had such conversations. Furthermore, I forwarded copies of the letter I sent to the hon. Gentleman and other Members explaining how we were going to lay the new clause and new schedules on combination that we will debate today not only to Ministers in the devolved Administrations but to the leaders of each of the parties represented in all three devolved bodies—the Parliament and the two Assemblies—in order to keep them informed. That is a perfectly reasonable way to conduct our business, and it is properly respectful of those nations.

[Chris Bryant]

Except that it is not much of a consultation if the Secretary of State for Wales goes to the First Minister in Wales and says, “The referendum is going to be held on the date of your Assembly elections. Do you want to move your Assembly elections?” That is a pretty rum sort of consultation—more a case of holding a gun to the other side’s head than a proper consultation.

[Mr Harper]

I do not think that the hon. Gentleman is characterising that in a sensible fashion. This is a national referendum to be held in the United Kingdom, and it is a reserved matter for the UK Government to decide upon. When this whole issue arose and my right hon. Friend the Deputy Prime Minister made a statement to the House, some Members asked what consultation had taken place and he made it clear that this is a matter for the UK Government and that it was right that this House heard the announcement first, before any conversations took place with the devolved Administrations. I do not think that is disrespectful; rather, it is properly respectful of the rights of this House.

[Mr MacNeil]

Does this not highlight that when devolution was established by the then Labour Government, they were trying too hard to hold on to power and they should instead have been a bit more relaxed and allowed the devolved Assemblies or Parliaments a bit more power over the governance of their own elections? That is not rocket science.

[Mr Harper]

I thank the hon. Gentleman for that point. In my response to the hon. Member for Rhondda, I set out what the arrangements are now for the administration of elections. One of the things that has been discussed as part of the Calman proposals is the suggestion to devolve the administration of elections to the Scottish Government. I hope that we can take that forward, and I am sure that the hon. Member for Na h-Eileanan an Iar (Mr MacNeil) would welcome it. I think that I have run through the issues raised by the hon. Member for Rhondda and by my hon. Friend the Member for Cities of London and Westminster. He is no longer in his place and that demonstrates that his questions have been adequately answered.

[Chris Bryant]

It does not follow.

[Mr Harper]

I think that in this particular case it does follow. It might not follow if the hon. Gentleman left his place, but I think that my hon. Friend has left the Chamber because he was satisfied. Therefore, I ask hon. Members to support the new clause.

Question put and agreed to.

New clause 19 accordingly read a Second time, and added to the Bill.

New Clause 20

Combination of polls

‘(1) Where the date of the poll for one or more of the following is the same as the date of the poll for the referendum, the polls are to be taken together—

(a) a local authority election in England;

(b) a local referendum in England;

(c) a mayoral election in England.

(2) The polls for the referendum and the Welsh Assembly general election in 2011 are to be taken together.

(3) The polls for the referendum and the Scottish parliamentary general election in 2011 are to be taken together.

(4) Where the date of the poll for one or more of the following is the same as the date of the poll for the referendum, the polls are to be taken together—

(a) a Northern Ireland Assembly Election;

(b) a Northern Ireland local election.

(5) The following have effect—

Schedule [Combination of polls: England], in relation to the polls to be taken together in England under subsection (1);

Schedule [Combination of polls: Wales], in relation to the polls to be taken together in Wales under subsection (2);

Schedule [Combination of polls: Scotland], in relation to the polls to be taken together in Scotland under subsection (3);

Schedule [Combination of polls: Northern Ireland], in relation to the polls to be taken together in Northern Ireland under subsection (4).

(6) Polls taken together under this section must not be taken together with any other polls (despite provision in any enactment to the contrary).

(7) Section 16 of the Representation of the People Act 1985 (postponement of poll at parish elections etc) does not apply to any polls taken together under subsection (1).

(8) In this section—

“local authority election in England” means the election of a councillor of any of the following— a county council in England; a district council in England; a London borough council; a parish council;

(a) a county council in England;

(b) a district council in England;

(c) a London borough council;

(d) a parish council;

“local referendum in England” means a referendum held in England under Part 2 of the Local Government Act 2000;

“mayoral election in England” means an election in England for the return of an elected mayor as defined by section 39(1) of the Local Government Act 2000;

“Northern Ireland Assembly election” means an election to the Northern Ireland Assembly;

“Northern Ireland local election” means a local election as defined by section 130(1) of the Electoral Law Act (Northern Ireland) 1962;

“Scottish parliamentary general election” means an ordinary election under section 2 of the Scotland Act 1998;

“Welsh Assembly general election” means an ordinary election under section 3 of the Government of Wales Act 2006.’.—(Mr Harper.)

Brought up, and read the First time.

[Mr Harper]

I beg to move, That the clause be read a Second time.

[The First Deputy Chairman of Ways and Means (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Amendment (a) to new clause 20, leave out subsection (1) and insert—

(1) Where the date of the poll for a local authority election in England is the same as the date of the poll for the referendum, the polls are to be taken together.’.

Amendment (b) to new clause 20, leave out subsection (4) and insert—

(4) Where the date of the poll for a Northern Ireland Assembly Election is the same as the date of the poll for the referendum, the polls are to be taken together.’.

Amendment (c) to new clause 20, in subsection (8), leave out from ‘“local referendum in England”’ to the second “Local Government Act 2000;”

Amendment (d) to new clause 20, in subsection (8), leave out from ‘“Northern Ireland local election”’ to “Electoral Law Act (Northern Ireland) 1962”.

Government new schedule 2—Combination of polls: England.

Amendment (a) to new schedule 2, in paragraph 11, in sub-paragraph (1) leave out ‘15th’ and insert ‘28th’.

Amendment (b) to new schedule 2, after paragraph 12, insert—

‘Absent voter application

12A An application under regulation 51(4)b of the Representation of the People (England and Wales) Regulations 2001, SI 2001/341, for an absent vote must state whether it is made for parliamentary elections, local government elections, referendums or all of them.’.

Amendment (c) to new schedule 2, leave out paragraph 15 and insert—

‘15 (1) The Chief Counting Officer shall select the colour of the ballot paper used for the referendum.

(2) The other ballot papers used for any relevant election shall be of a different colour from that selected by the Chief Counting Officer.’.

Amendment (d) to new schedule 2, in paragraph 17, leave out sub-paragraph (1) and insert—

‘(1) The official poll cards used for the referendum and for the relevant elections must be combined for all electors qualified to vote in all the polls.’.

Amendment (e) to new schedule 2, in paragraph 18, leave out sub-paragraph (1) and (2) and insert—

(1) Separate ballot boxes must be used for the referendum to those used for other relevant elections taking place on the same day.

(2) Each ballot box must be marked to show—

(a) the referendum or relevant election to which it relates, and

(b) the colour of ballot papers that should be placed in it.’.

Amendment (g) to new schedule 2, in paragraph 27, in sub-paragraph (1), leave out

‘If the counting officer thinks fit, the same copy of the register of electors may’

and insert

‘Separate registers of electors must’.

Amendment (h) to new schedule 2, in paragraph 27, leave out sub-paragraphs (2) to (4).

Amendment (i) to new schedule 2, in paragraph 40, at the end of sub-paragraph (3) insert

‘or

(c) the person is a Member of Parliament.’.

Amendment (j) to new schedule 2, after paragraph 43 insert—

‘Priority in counting of votes

43A Counting officers must give priority to the counting of ballots cast in—

(a) the respective elections to the Northern Ireland, Scotland and Wales devolved administrations, and

(b) local council elections in each part of the United Kingdom.’.

Amendment (k) to new schedule 2, in paragraph 44, at the end of sub-paragraph (1), at end of sub-sub-paragraph (a) insert

‘containing ballot papers for the referendum vote.’.

Amendment (l) to new schedule 2, in paragraph 44, at the end of sub-paragraph (1), at end of sub-sub-paragraph (b) insert

‘containing ballot papers for the referendum vote.’.

Amendment (m) to new schedule 2, in paragraph 44, at the end of sub-paragraph (3), at end of sub-sub-paragraph (a) insert

‘containing ballot papers for the referendum vote.’.

Amendment (n) to new schedule 2, in paragraph 44, at the end of sub-paragraph (3), at end of sub-sub-paragraph (b) insert

‘containing ballot papers for the referendum vote.’.

Amendment (o) to new schedule 2, in Part 2, in the second column, in the entry relating to Regulation 71, leave out ‘eleventh’ and insert ‘fifteenth’.

Government new schedule 3—Combination of polls: Wales.

Amendment (a) to new schedule 3, in paragraph 15, leave out sub-paragraph (1) and insert—

"(1) The official poll cards used for the referendum and the Assembly elections must be combined for all electors qualified to vote in all the polls.’.

Amendment (b) to new schedule 3, in paragraph 17, leave out sub-paragraphs (1) and (2) and insert—

“(1) Separate ballot boxes must be used for the referendum to that used for the Assembly elections.

(2) Each ballot box must be marked to show—

(a) the referendum or Assembly election to which it relates, and

(b) the colour of ballot papers that should be placed in it.’.

Amendment (c) to new schedule 3, leave out paragraph 18 and insert—

“18 (1) The Chief Counting Officer shall select the colour of the ballot paper used for the referendum.

(2) The other ballot papers used for the Assembly elections shall be of a different colour from that selected by the Chief Counting Officer.’.

Amendment (e) to new schedule 3, in paragraph 45, at the end of sub-paragraph (3) insert

‘or

(c) the person is a Member of Parliament.’.

Amendment (f) to new schedule 3, in paragraph 47, in sub-paragraph (1)(d), leave out ‘separate’ and insert ‘keep separate throughout’.

Amendment (g) to new schedule 3, in paragraph 49, sub-paragraph (1), at the end of sub-sub-paragraph (a) insert

‘containing ballot papers for the referendum vote.’.

Amendment (h) to new schedule 3, in paragraph 49, at the end of sub-paragraph (1), at end of sub-sub-paragraph (b) insert

‘containing ballot papers for the referendum vote.’.

Amendment (i) to new schedule 3, in paragraph 49, at the end of sub-paragraph (3), at end of sub-sub-paragraph (a) insert

‘containing ballot papers for the referendum vote.’.

Amendment (j) to new schedule 3, in paragraph 49, at the end of sub-paragraph (3), at end of sub-sub-paragraph (b) insert

‘containing ballot papers for the referendum vote.’.

Government new schedule 4—Combination of polls: Scotland.

Amendment (a) to new schedule 4, paragraph 15, leave out sub-paragraph (1) and insert—

“(1) The official poll cards used for the referendum and for the Scottish parliamentary election must be combined for all electors qualified to vote in all the polls.’.

Amendment (b) to new schedule 4, paragraph 17, leave out sub-paragraphs (1) and (2) and insert—

“(1) Separate ballot boxes must be used for the referendum to that used for the Scottish parliamentary elections.

(2) Each ballot box must be marked to show—

(a) the referendum or parliamentary election to which it relates, and

(b) the colour of ballot papers that should be placed in it.’.

Amendment (c) to new schedule 4, leave out paragraph 18 and insert—

“18 (1) The Chief Counting Officer shall select the colour of the ballot paper used for the referendum.

(2) The ballot papers used for constituency or regional ballots shall be of a different colour from that selected by the Chief Counting Officer.’.

Amendment (e) to new schedule 4, in paragraph 42, at the end of sub-paragraph (3) insert

‘or

(c) the person is a Member of Parliament.’.

Amendment (f) to new schedule 4, in paragraph 46, in sub-paragraph (1)(d), leave out ‘separate’ and insert ‘keep separate throughout.’.

Amendment (g) to new schedule 4, in paragraph 48, at the end of sub-paragraph (1) (a)insert

‘containing ballot papers for the referendum vote.’.

Amendment (h) to new schedule 4, in paragraph 48, at the end of sub-paragraph (1), at end of sub-sub-paragraph (1)(b) insert

‘containing ballot papers for the referendum vote.’.

Amendment (i) to new schedule 4, in paragraph 48, at the end of sub-paragraph (3), at end of sub-sub-paragraph (a) insert

‘containing ballot papers for the referendum vote.’.

Amendment (j) to new schedule 4, in paragraph 48, at the end of sub-paragraph (3), at end of sub-sub-paragraph (b) insert

‘containing ballot papers for the referendum vote.’.

Government new schedule 5—Combination of polls: Northern Ireland.

Amendment (a) to new schedule 5, leave out paragraph 12 and insert—

“12 (1) The Chief Electoral Officer shall select the colour of the ballot paper used for the referendum.

(2) The ballot papers used for any relevant elections shall be of a different colour from that selected by the Chief Electoral Officer.’.

Amendment (b) to new schedule 5, in paragraph 14, leave out sub-paragraph (1) and insert—

“(1) The official poll cards used for the referendum and for the relevant elections must be combined for all electors qualified to vote in all the polls.’.

Amendment (c ) to new schedule 5, in paragraph 15, leave out sub-paragraphs (1) and (2) and insert—

“(1) Separate ballot boxes must be used for the referendum to that used for other relevant elections taking place on the same day.

(2) Each ballot box must be marked to show—

(a) the referendum or relevant election to which it relates, and

(b) the colour of ballot papers that should be placed in it.’.

Amendment (e) to new schedule 5, in paragraph 31, at the end of sub-paragraph (3) insert

‘or is a Member of Parliament.’.

Amendment (f) to new schedule 5, in paragraph 32, in sub-paragraph (1)(c), leave out ‘separate’ and insert ‘keep separate throughout.’.

Amendment (g) to new schedule 5, in paragraph 33, at the end of sub-paragraph (1)(a), insert

‘containing ballot papers for the referendum vote.’.

Amendment (h) to new schedule 5, in paragraph 33, at the end of sub-paragraph (1)(b) insert

‘containing ballot papers for the referendum vote.’.

Amendment (i) to new schedule 5, in paragraph 48, at the end of sub-paragraph (3)(a) insert

‘containing ballot papers for the referendum vote.’.

Amendment (j) to new schedule 5, in paragraph 48, sub-paragraph (3), at end of sub-sub-paragraph (b) insert

‘containing ballot papers for the referendum vote.’.

[Chris Bryant]

On a point of order, Mr Evans. This is a large group of amendments, schedules and a new clause; indeed, it constitutes some 120 pages of the amendment paper. I need a little clarity about when we come to vote on amendments and about whether, if we were to agree to the new clause, it would then be possible to vote on amendments to the schedule later.

[The First Deputy Chairman]

It is all dependent on how long this particular set of new clauses and schedules are talked to. Clearly, if we get to them before the knife is reached at 11 o’clock, they will be taken with the amendments, but that changes if we go beyond 11 o’clock.

[Mr Harper]

Encouragingly, the hon. Member for Rhondda took rather less time speaking to the previous new clause than he took last week. That may be a step forward and perhaps we may indeed—

[Chris Bryant]

rose—

[Mr Harper]

Oh come on, that was a semi-serious comment and it does not require a response. [Interruption.] Oh go on then.

[Chris Bryant]

It will get a semi-serious response; I do not want the hon. Gentleman to worry about this. I merely wish to remind him that the Deputy Leader of the House, who is sitting next to him, has said:

“I am saying that every Member of this House has the right to express their opinion before this House in whatever way they feel is appropriate and to be listened to.”—[Official Report, 19 January 2010; Vol. 504, c. 173.]

I am sure that the Deputy Leader of the House still feels that that is true.

[Mr Harper]

I agree, and indeed we did listen to the hon. Gentleman at length—I am just not sure that what he said would not have been improved had it been a little more brief. [Interruption.] It is a jest; do not take it so seriously.

As the hon. Gentleman said, the new clause and the new schedules are fairly sizeable. I am not going to labour the discussion on them, but they are important and so I shall go through them in some detail—I hope not to detain the House for longer than is absolutely necessary. They are required to provide that the referendum on the voting system can be combined with the eight different elections or local referendums across the UK that could take place on 5 May 2011. The “combination amendments”—I use a collective noun for them—consist of one new clause and four schedules. There is a schedule to deal with the combination with elections or local government referendums for each of England, Wales, Scotland and Northern Ireland. Each schedule is divided into three parts: part 1 deals with general provisions; part 2 deals with postal voting provisions; and part 3 deals with forms.

I think it is helpful to state that we decided not to include the combination provisions in the Bill when it was introduced on 22 July in order, as we said then, to allow us time to work with the Electoral Commission, the Association of Electoral Administrators and others in government, particularly those in the territorial offices, to make sure that if we did hold the referendum on the same day as elections, notwithstanding the arguments that Members of the Committee have made about whether or not we should do so, those polls would be well conducted and well run.

Our general approach has been to adopt a consistent approach for the referendum across the UK, but we have recognised that in some areas there is a need for variation to reflect local circumstances. For example, following consultation with the Scotland Office, the Wales Office and the chair of the interim Scottish electoral management board it became apparent that it would make the conduct of the referendum and elections easier for administrators if, in Wales and Scotland, the referendums were run on the same respective boundaries as the Welsh Assembly and the Scottish parliamentary elections. Appropriate provisions were consequently added to the Bill following a successful Government amendment last Monday and further provisions to support this are included in new schedules 3 and 4.

I am conscious that this is a sizeable set of amendments and it is only right and proper that we should go through them in some detail, so let me set them out for the benefit of the Committee. At the end of my remarks I shall say something about the territorial orders, so if the hon. Member for Rhondda (Chris Bryant) feels the urge to intervene on me about that point, I want him to know that I will get to it and, if he will hold his horses, I will set it out.

New clause 20 provides that the referendum on the voting system will be combined with the following polls, which are scheduled to take place on 5 May next year: elections to the Welsh Assembly, elections to the Scottish Parliament, elections to the Northern Ireland Assembly, local elections in England, local elections in Northern Ireland, mayoral elections in five local authorities in England and parish elections in England. There is also a strong likelihood that there might be some local mayoral referendums in England on 5 May and we have included provisions to allow those polls to be combined with the referendum.

New clause 20 includes provisions on parish elections, which reflect the commitment that I made to my hon. Friend the Member for South West Bedfordshire (Andrew Selous) on Second Reading. In England, parish council elections will be combined with the local elections and the referendum on the voting system and not postponed for three weeks. The Government’s decision takes into account the positive impact on turnout and the savings that can be made by combining these polls. Before making that decision, I was reassured by the Electoral Commission and the Association of Electoral Administrators that it would be possible in practice to combine the referendum, local elections and parish council elections on 5 May. I understand that that position is also supported by the National Association of Local Councils.

Subsection (6) of new clause 20 provides that, with the exception of the polls I have mentioned, no further polls will be combined with the referendum if they are arranged for 5 May. If there are any other unscheduled polls, such as a UK parliamentary by-election or a local government by-election in Wales, that run on separate boundaries, they will be run as separate elections, which will be easier and more straightforward for electoral administrators.

New schedule 2 sets out the provisions for the combination of the referendum with local parish and mayoral elections and local government referendums in England. I can advise the Committee that the majority of these provisions mirror those that already exist for combining polls under the various combination rules included under relevant pieces of legislation, such as the “Mayoral Elections (Combination of Polls) Rules” set out in schedule 3 to the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007. I fear that I might refer to similarly exciting-sounding parts of the legislative book during this debate.

Part 1 of new schedule 2 contains the following provisions, which I am sure that the Committee will be interested to note. Paragraph 3 provides that at a combined poll, a counting officer will be able discharge a number of the functions for which a returning officer would usually be responsible at an election. In short, it means that those functions that are discharged by referendum counting officers, such as the provision of polling stations, appointment of poll clerks and issuing of combined poll cards, will automatically determine practice at both polls. We have allowed for decisions on most core functions that relate to the conduct of a combined poll to be made at the discretion of the counting officer. That follows the approach taken in existing combination legislation that when polls are combined, certain functions in relation to the conduct of both polls are carried out by one officer.

There are two key exceptions. The printing of the ballot paper for the election polls will remain under the control of returning officers. Decisions about whether or not to combine postal ballot packs will be made through the counting officer agreeing a position with the relevant returning officer. The latter position ensures that decisions will be made in accordance with local needs. There are situations in which combining those postal ballot packs would simply not be practical and legislating for counting officers and returning officers to do things that are simply not practically possible does not seem to be very sensible.



Paragraph 5 provides that the cost of the combined polls will be equally apportioned between them. For example, in the case of a combined referendum on the voting system and local government elections in England, the cost would be split 50:50 between the Consolidated Fund and the local authority concerned.

Paragraph 9 permits the counting officer to decide whether combined corresponding number lists should be used for the combined polls. Paragraph 11 provides that the notice of poll for the combined elections should be published

“not later than the 15th day before the date of the poll.”

The 15-day deadline is necessary to ensure that a consistent approach is taken for all the polls that we are combining on 5 May.

Paragraph 15 provides that the ballot papers used for the referendum must be a different colour from the ballot papers used for any combined poll, thereby preventing any risk that voters might confuse the ballot papers. Paragraph 16 provides clarity that the polling stations that the counting officer chooses for the referendum will be used for all combined polls taking place in the voting area.

16:30

Paragraph 17 permits the counting officer, if he thinks fit, to combine the official poll cards for the referendum and all other polls, with the exception of parish elections. It is not possible to combine a parish election poll card with other poll cards, because in a parish election it is not known until the close of nominations whether it will be contested. As the majority of parish elections are uncontested, we have concluded, with advice from the Electoral Commission, that it would not make sense to delay issuing the poll card for all the other polls until after the nominations had closed for the parish elections. The rules for the other combined polls provide that poll cards can be issued as soon as practicable after the notice of referendum or notice of election has been issued. We have also included provisions that allow the counting officer, where the poll cards are combined, to adapt them in whatever manner seems necessary for the purposes of the combined poll.

Paragraph 18 permits the counting officer to decide whether the same or separate ballot boxes should be used for combined polls. Where separate ballot boxes are used, they are each to be clearly marked to show which ballot papers should be put in them.

[Mr MacNeil]

On the use of separate ballot boxes, if a voter happens to put both papers in one or other of the ballot boxes, will that be cleared up at the polling station simply by transferring the relevant paper to the right pile?

[Mr Harper]

Clearly, as is common with combined polls, the verification procedure, which I shall discuss later, will make sure that verification is complete for all polls before any election results are declared, so that there will not be problems if a whole load of ballot papers are suddenly found in the wrong box. That provision is fairly consistent with what happens now in combined elections.

[Mr MacNeil]

Will the Minister clarify that point? When he says “verification”, does he mean “counting”, with a declaration of the result after both polls have been counted, or does he mean that the papers will be separated to ensure that they are in the right place and that, in Scotland, votes for the Scottish Parliament will be counted and declared before people get around to counting and declaring the result of the referendum?

[Mr Harper]

I shall come to the order of counting in a while, but we have made it clear in previous debates that the election results should be counted first.

[Mr MacNeil]

And declared?

[Mr Harper]

Yes. The verification of both the referendum and election ballot papers will take place first; it will not be necessary to count the referendum papers at that point, but they will have to be verified to make sure that no election ballot papers have inadvertently been put in the wrong box. That is what happens with combined general and local elections now: local election votes do not have to be counted before general election votes can be counted and the result declared, but both sets of papers have to be verified to ensure that all the general election papers are in one place and that the result is accurate. That does not hold up the declaration of results, which, quite importantly for all the devolved Assemblies, will be wanted as soon as possible. When I come to that issue, the hon. Gentleman can jump straight in if he thinks I have not been clear.

Following our debate in Committee on 18 October, I confirm that a large-print version of the ballot papers for each of the relevant polls, including the referendum, must be displayed at all polling stations. Paragraph 20 provides that at a combined poll:

“The large version of the ballot paper displayed…must be of the same colour as the ballot papers to be used for the referendum.”

Paragraphs 27 to 34 permit the counting officer to use the same copy of the register for each poll to combine the various lists that are produced for proxy voters, the votes marked by the presiding officer, the list of voters with disabilities assisted by companions and the tendered votes list.

Paragraph 36 sets out the procedure that presiding officers must follow at the close of poll. That includes rules on the packets that need to be made up and sent to the counting officer after the poll has closed. Provision is included to ensure that certain documents relating to each poll are not combined with documents relating to any other poll. That applies to unused or spoilt ballot papers, tendered ballot papers and certificates as to employment on the day of the poll.

Paragraphs 38 to 45 set out the Government’s policy for the verification and count procedure at a combined poll. The combination amendment does not specify the timing of the count for any of the polls, to ensure that there is flexibility for votes on the ballot papers for the elections to be counted before those for the referendum. The combination rules for the verification and count process make it clear that once ballot papers have been received from polling stations, they have to be taken out of the ballot boxes and separated into piles for each poll. Before the votes on ballot papers for any poll can be counted, the counting officer or relevant returning officer must ensure that the ballot papers from a ballot box are mixed with the ballot papers for that poll from a different ballot box, and that postal ballot papers are mixed with ballot papers for that poll from a ballot box. If the counting of votes for any poll has not commenced by the time the verification process has been concluded, the ballot papers for that poll must be sealed up and retained by the counting officer in the case of referendum ballot papers, or delivered to the relevant returning officer, who will be responsible for storing the ballot papers securely until the count takes place.

Paragraph 46 provides that the verification process for all combined polls must have been completed before the declaration of any counts. Although we are aware that that may delay the declaration of a count, we believe that given the number of polls taking place the requirement is essential to ensure that all the ballot papers have been correctly accounted for, thereby ensuring the integrity of the count. Clearly, as with combined elections, having to do all the verification may mean that the result is a little delayed, but it will not mean that we have to wait for the referendum to be counted before the election count.

Paragraphs 48 and 49 set out the arrangements for ensuring that the counting officer and returning officer seal up all relevant papers in appropriate packets after the poll, and deliver them to the relevant registration officer. All documents that have been combined will be sealed together and sent by the counting officer to the relevant registration officer. Where it has been decided to use separate lists for each poll, the documents will be sealed in separate packets and delivered to the relevant registration officer by either the counting officer for the referendum or the returning officer for the relevant election.

We have specifically provided that in the event of legal proceedings arising on the referendum and/or relevant election, the court can make an order for the production of combined documents relating to the poll or polls.

[Chris Bryant]

I am grateful to the Minister for going through in some detail the large number of pages containing the amendments, new clauses and new schedules. The register for local elections in England will be different from the register used for the referendum, and from the register in Wales. The Government’s provisions suggest that there should be just one register in each polling station and that some kind of mark will be made somewhere to suggest who has had, and who has not had, each of the ballot papers. Is he confident that that will meet the requirement to make sure that nobody has a ballot paper to which they are not entitled? How will the returning officer make sure that the list of voters who have voted, or who have been given ballot papers, is accurately provided to the regional counting officer and then the counting officer, as well as to the local authority?

[Mr Harper]

The hon. Gentleman makes an important point. We are confident that the provisions will work appropriately. Combining the referendum with the elections may be controversial—although more for issues relating to the mechanics of the election—but it is not as though we never hold combined elections. We hold combined general elections and local elections, which have different franchises. There may be the odd problem, but in the main they work well, so this is not a new departure for those who run elections. We are confident about the rules, which we reached after close working with the Electoral Commission, which is responsible for running the referendum, and the Association of Electoral Administrators, which is responsible for delivering elections. They are confident that we have come up with a set of rules that maximise the ability of all individuals on the ground to run a smooth set of combined polls on 5 May 2011.

Part 2 of new schedule 2 includes provisions for the issue and receipt of postal ballot packs. The provisions apply existing legislation and make the necessary modifications. When read together, they set out the Government’s policy that the proceedings on the issue and receipt of postal ballot papers can be combined if returning and counting officers think fit. They also set out how the procedure works when papers are combined and when they are issued separately; the procedure and timing for the issue and receipt of postal ballot papers; the persons who are entitled to be present at proceedings on receipt of postal ballot papers for both the referendum and the relevant election; and the procedure for forwarding and retaining documents relating to the postal voting process—for example, postal voting statements, the proxy voters log and the postal voters list.

Part 3 of new schedule 2 sets out the combined forms that can be used for the purposes of the combined polls. The forms include corresponding number lists, postal voting statements, guidance for voters and a certificate of employment. As is the case for forms contained in the referendum rules, the Electoral Commission will be able to modify the forms for the purpose of making them easier for voters to understand or use.

I can confirm to the Committee that equivalent provisions with necessary modifications to take into account local needs have been provided for the combination of polls in Wales, Scotland and Northern Ireland under new schedules 3, 4 and 5.

[Mark Tami (Alyn and Deeside) (Lab)]

Before we move off the subject, a person applying for a postal ballot might automatically assume that by doing so they will get one for all elections. Is that so, or must they apply separately for a postal ballot for each poll?

[Mr Harper]

I do not want to anticipate the debate that we will have on the proposals of the hon. Member for Rhondda, but we have said that someone’s standing postal vote application for parliamentary elections will trigger their postal vote for the referendum. It is the same franchise, and we thought that that was a better way around the problem than insisting that all those with a standing postal vote application for a parliamentary election apply for a new postal vote specifically for the referendum. We wanted to maximise the opportunities for people to take part rather than have people who miss out because they did not realise that they needed to apply for a new postal vote. We have ensured that if people already have a standing postal vote for a parliamentary election, they will get one for the referendum.

[Mr Michael McCann (East Kilbride, Strathaven and Lesmahagow) (Lab)]

In response to my hon. Friend the Member for Alyn and Deeside (Mark Tami), the Minister specifically mentioned people who have a postal ballot for parliamentary elections. My recollection of the paperwork that is issued in Scotland is that electors tick boxes to say that they want a postal ballot for all elections. That might seem like a nit-picking point, but will the Minister confirm that by ticking a box marked, “All elections,” people will be entitled to receive a postal ballot for the referendum?

[Mr Harper]

My understanding is that if people are entitled to, or have applied for, a postal vote for a parliamentary election and tick the box marked “All elections”—that is a common way of asking that question in England as well as in Scotland—and if they are on the list for parliamentary elections, they will get a postal vote for the referendum. I am sure that if I have got that wrong, inspiration will strike me and I can correct my answer.

[Andrew Gwynne (Denton and Reddish) (Lab)]

Of course, in England on 5 May, we will have not parliamentary elections, but local elections. What assessment has the Minister or the Cabinet Office made of the number of people who are registered only for council election postal votes?

[Mr Harper]

Clearly, we do not need to have a parliamentary election—registration for a permanent postal vote for a parliamentary election will automatically trigger the postal vote for the referendum. What happens if a person is registered for a postal vote only for local elections depends on whether the postal ballot packs are combined.

[Mr Tom Harris (Glasgow South) (Lab)]

Can the Minister clarify the situation for next May? Is it conceivable that large numbers of voters in England—this probably will not happen in Scotland—will be sent automatically the referendum ballot paper but not a council ballot paper? People might have to go to the polling station to vote for their councillor, and yet be able to vote only by post in the referendum. Has the Cabinet Office made any calculation of how many people that will affect?

[Mr Harper]

If we were not having a referendum and were having only local council elections in England—I shall refer to England, as that is what the hon. Gentleman’s question was about—people would not get a postal vote if they had not asked for one, or if they were not registered for a permanent one. If they were registered for a postal vote for a parliamentary election, that would come automatically, but that would not in any way reduce their ability to participate in local elections, as they had not asked for a postal vote.

[Several hon. Members]

rose—

[Mr Harper]

Let me take the intervention from the hon. Member for Glasgow South (Mr Harris), as I am responding to his point.

16:45

[Mr Harris]

There is a corollary to what the Minister says, then. If people are registered to vote by post for a parliamentary election, and they then receive the ballot paper for the AV referendum, is it not likely that they will fill in that ballot paper without going to the polling station in order to cast a vote in the local council elections, thereby deflating turnout in the local council elections, which are extremely important?

[Mr Harper]

I am not sure I agree with the hon. Gentleman. I am not sure that voting in the referendum by post would make someone less likely to go and vote in their local council elections, as long as they were clear about what was going on. We have been clear, and the Electoral Commission has been clear—

[Andrew Gwynne]

rose—

[Mr Harper]

Let me finish responding to the intervention before I take another one. It is important that people are clear about what is going on. The Electoral Commission has said that one of its key responsibilities, as well as running the referendums, is to make sure that clear guidance is issued to those conducting elections and that there are clear communications to electors. The commission will send a booklet to every household to explain to people the elections and referendum that are taking place, so that people are clear about what is happening. The point raised by the hon. Member for Glasgow South is well made.

[Andrew Gwynne]

My concern is the opposite to that of my hon. Friend the Member for Glasgow South (Mr Harris). Plenty of people in England will be registered for a local election postal vote, but not necessarily for a parliamentary election postal vote. They will get a ballot paper for the 5 May council elections, but not for the referendum. How is that right?

[Mr Harper]

Well, because they are not registered for a parliamentary ballot. The reason for making those equivalent is that the referendum is taking place on the Westminster parliamentary franchise—

[Chris Bryant]

No, it is not.

[Mr Harper]

Plus peers; and it seems that using those who have asked for a postal vote for that type of election, given that we are talking about changing the voting system—

[Chris Ruane (Vale of Clwyd) (Lab)]

Resign!

[Mr Harper]

If resignations were based on that level of accuracy, there would not have been any members of the previous Government in post for longer than about a week, so we will have no more of that.

[Chris Ruane]

I thank the Minister for giving way. Right, here we go: what would happen in Wales if an elector were registered for a postal vote at European elections, not for a postal vote at parliamentary elections, for a postal vote at Welsh Assembly Government elections, and for a postal vote at local government elections? Whatever the Minister says, will the public understand it?

[Mr Harper]

If such a voter had elected to register for a permanent postal vote for every possible election except a Westminster parliamentary one, they would clearly have had a good reason for doing that, so our proposal that the UK parliamentary franchise be used makes sense. I do not think the hon. Gentleman makes a sensible point.

[Chris Ruane]

I left out town council elections.

[Mr Harper]

I think my answer stills stands.

[Ms Louise Bagshawe (Corby) (Con)]

Does my hon. Friend agree that there is deliberate obfuscation going on, given that some citizens eligible to vote in local elections are not necessarily eligible to vote in Westminster elections—for example, European nationals, whom we would not wish to vote in the referendum anyway? Contrary to the intervention by the hon. Member for Glasgow South (Mr Harris), is not one of the biggest predictors of voting whether someone has voted before? Is not the existence of the referendum therefore more likely to increase, rather than depress, turnout in local elections?

[Mr Harper]

My hon. Friend is spot-on. To be frank, I think that voters are perfectly capable of working out what elections or referendums are taking place. Voters in Wales will have had some warm-up practice in March, because they will have had an important referendum on the powers that the Welsh Assembly Government should have. They will therefore have had the opportunity to think about whether they want an absent vote. That will mean, I am sure, that at the front of their minds, as they approach the elections and referendum on 5 May, they will be thinking hard about whether they will be around and able to vote in person, or whether they should apply for an absent vote. At least in Wales, therefore, what the hon. Member for Glasgow South suggests might happen is unlikely to do so.

Now, where did I get to? [Laughter.] There have been so many interventions. I suspect that it was nice for everyone to break up the monotony of my voice reading out these exciting provisions, so I am happy to have taken those criticisms from the Committee.

Given that the provisions in schedules 3 to 5 are largely consistent with those I have outlined for England, I am sure that the Committee will be relieved to hear that I do not intend to go through their contents in the same detail. However, I will go through some of the key provisions we have made for Scotland, Northern Ireland and Wales. As I confirmed earlier, we have amended the definition of a voting area for the referendum as it applies in Scotland and Wales to provide that the referendum is to be run on the same respective boundaries as Scottish parliamentary and National Assembly for Wales elections. That will help with the administration of the elections, as the officials involved in delivering them have said.

We have kept the provisions on the timing of the count silent in the legislation to allow sufficient flexibility for the counts for the devolved elections to take place prior to the referendum count. We have based the postal voting provisions in part 2 of schedules 3 and 4 on those that apply for Welsh Assembly and Scottish parliamentary elections, making modifications where necessary to take account of the referendum. That will ensure that small differences in regional practice on postal voting will carry through to the referendum.

[Chris Bryant]

But why? Why should there be variations in postal vote practices around the country for a UK-wide referendum?

[Mr Harper]

It is because we are combining it with elections that are different in different parts of the UK. Picking up on points that hon. Members were making earlier, I can say that the poll cards issued will confirm the voting arrangements that will apply to a particular elector for each poll. They will explain to electors the arrangements in place, and people will be able to apply to the registration office to vary their postal voting arrangements up until 11 days before the poll, or six days before the poll where a proxy vote takes place. That will be helpful.

The Committee will want to be aware—certainly the hon. Member for Rhondda will—that I can confirm that all the new orders have been laid by the territorial offices today to update the rules for the elections to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales. Given that the combination amendments just discussed are based on existing legislation, as is usual practice, any consequential amendments reflecting those new territorial orders will be tabled for debate on Report next week, as I said last week.

[Pete Wishart (Perth and North Perthshire) (SNP)]

Will the Minister detail to the Committee what discussions and consultation he has held with the Scottish Government, the Welsh Assembly and the Northern Ireland Assembly prior to the orders being laid?

[Mr Harper]

I am not sure whether the hon. Gentleman was here when we had a slight rehearsal of this discussion at the beginning of our sitting, but the hon. Member for Rhondda asked me what discussions I had had about the conduct of the referendum in the devolved nations and about the arrangements for the combined polls, and I made the point to him that arrangements for elections in Scotland, Wales and Northern Ireland are the responsibility not of Ministers in the devolved nations, but of the territorial Secretaries of State.

I also pointed out to the hon. Gentleman that I had written to explain how we would lay and handle the combination amendments. I wrote not just to Opposition Front Benchers and Members who had expressed an interest, but out of courtesy to the leaders of every party represented in the devolved Parliament and Assemblies in order to keep them confirmed.

I said also that my right hon. Friends the Secretaries of State for Scotland, for Wales and for Northern Ireland have had discussions with representatives of the Administrations in each country about the combined elections, although it is fair to say that they all said to me—I shall not go through the issue in detail, because we had this debate at length on day one of Committee—that they were not happy with the combined poll.

[Pete Wishart]

Is it fair to characterise the Minister’s response as “No consultation with the Scottish Parliament, Welsh Assembly or Northern Ireland Assembly”? Would that be roughly right?

[Mr Harper]

No. The conduct of elections is currently the responsibility of the territorial Secretaries of State. I also made the point to the hon. Gentleman’s colleague, the hon. Member for Na h-Eileanan an Iar (Mr MacNeil), who was here at the beginning of our sitting, that with the Calman recommendations, the administration of elections in Scotland is proposed to be devolved to the Scottish Government. Clearly, if such elections were to take place in future, the Scottish Government would be very involved, but at the moment the responsibility for the administration of each election is that of the Secretary of State, not of the devolved Administrations.

[Mr George Howarth (Knowsley) (Lab)]

rose—

[Margaret Curran (Glasgow East) (Lab)]

rose—

[Cathy Jamieson (Kilmarnock and Loudoun) (Lab/Co-op)]

rose—

[Mr Harper]

Let me give way to those Members in the order that they rose: to the right hon. Gentleman and then to the hon. Ladies.

[Mr Howarth]

Given the procedure that the Minister has just described, can he assure me that under the orders to which he has referred, the process in Scotland, for example, cannot differ from that in England, Northern Ireland or Wales? If it can, it might change the terms on which people in each part of the United Kingdom are able to engage in a referendum.

[Mr Harper]

I am not sure that I follow the right hon. Gentleman. Clearly, there will be some differences. One difference I outlined is that, because the referendum is being combined in Scotland with Scottish parliamentary elections, the voting areas and conduct of the elections will be based on Scottish parliamentary constituencies. That will clearly be different in Wales, where they will be based on Welsh parliamentary constituencies, and in England the referendum will be conducted according to local government boundaries, all so that we can combine the elections in the most sensible way, which is what the administrators wanted us to do.

[Mr Howarth]

I understand that, but I had in mind the question: is there any way in which the qualification for taking part in a referendum might inadvertently be changed by that process?

[Mr Harper]

No. The franchise—those who can take part in the referendum on the voting system—are those people entitled to vote in Westminster parliamentary elections and, before the hon. Member for Rhondda jumps up, the small amendment that we have made, the addition of peers. The franchise is the same throughout the United Kingdom, so those entitled to vote in Westminster elections will be able to vote; the issue is simply to do with the mechanics of administering the polls to ensure that the elections are conducted using the most administratively sensible process.

[Margaret Curran]

The Minister may not be aware, but I am still a Member of the Scottish Parliament, and I feel obliged to point out to him that throughout the Parliament there are concerns about the coalition Government’s decision to hold the referendum on the same date as Scottish Parliament elections. People across the political spectrum in Scotland profoundly feel that that is a great disrespect to the Scottish Parliament, and I say that with great authority.

[Mr MacNeil]

More nationalism, more nationalism.

[Margaret Curran]

This is not a nationalist point, and I hope that the coalition does not dismiss the feelings to which I have referred as the marginal voice of nationalism in Scotland. The view is widespread throughout Scotland, and mainstream parties such as mine also hold it. However, I am concerned that in response to the question from the hon. Member for Perth and North Perthshire (Pete Wishart), the Minister seemed to imply that, because the Scottish Parliament does not have responsibility for the elections at the moment, it is not a key stakeholder in the ongoing discussions—

[The First Deputy Chairman]

Order. This intervention is longer than some of the speeches that I have made in this House—

[Margaret Curran]

rose—

[The First Deputy Chairman]

Please resume your seat.

[Mr Harper]

I am grateful, Mr Evans: I had got the hon. Lady’s point. I am not trying to minimise her concern, but I note that none of the devolved Parliaments or Assemblies has passed any formal motions or resolutions expressing that view to this House.

17:00

The hon. Lady raises two issues, one of which is about the combination of the referendum with the elections next year. We know about some of the views on that, because they were expressed when my right hon. Friend the Deputy Prime Minister made his statement on 5 July, in the Second Reading debate, and in the lengthy debate that we had about the coincidence of the dates on the first day of Committee. The Government take the view that voters are perfectly capable of making the distinction between referendums and elections, and this should not affect the ability of the election campaigns to take place. We have recognised, though—

[Chris Bryant]

rose—

[Mr Harper]

If the hon. Gentleman will forgive me, I will come to him when I have completed this point.

We recognise that there is a different qualitative issue raised by the combination of the general election and these elections. As I have said in previous debates, we are thinking about how that issue may be dealt with, and we will come back to the House and the devolved Administrations in due course.

[Mr MacNeil]

rose—

[Cathy Jamieson]

rose—

[Mr Harper]

Let me take the hon. Member for Rhondda first.

[Chris Bryant]

It seems extraordinary that the Government are taking this attitude in relation to consulting the devolved Administrations about their own elections. I fully understand that they do not have legislative competence for that matter—it is a competence reserved to Westminster—but it would be common human decency to be able to consult them. In the past, the Minister has tried to argue that he wanted to tell this House before he told anybody else. However, he knows perfectly well that through the Joint Ministerial Committee there are provisions for the Government to speak to the Welsh Assembly Government, the Executive in Scotland and so on. There is no reason why he could not have used those processes perfectly well.

[Mr Harper]

The hon. Gentleman should know that those processes have been used. The matter has been raised at the JMC. I am thinking back to—

[Cathy Jamieson]

rose—

[Mr MacNeil]

rose—

[Mr Harper]

Hang on: let me deal with one intervention at a time.

My understanding—I am sure that this is the case—is that this issue has been raised at the JMC; I am sure that I will be corrected if it has not. Moreover, one would be having these conversations not only with the Administrations but with the Parliaments and Assemblies themselves. I know that some of those conversations have taken place. For example, my right hon. Friend the Secretary of State for Wales has had a communication from the Presiding Officer of the Welsh Assembly making it clear that its Members did not want the date of the Assembly election changed.

[Cathy Jamieson]

I think that the Minister said that the Scottish Parliament and the other devolved Assemblies had not taken a formal position by means of passing a resolution. Is he therefore suggesting that should, say, the Scottish Parliament pass such a resolution, he would change his mind?

[Mr Harper]

No, I was not suggesting that at all; I was simply making the point that they have not done so. However, let me save them time and trouble by saying that if they do, it will not make us change our minds, so they can focus on the important issues that voters will be concerned about.

[Mr MacNeil]

Does the Minister find it a bit rich—I know I do—that Labour Members, particularly those who are still Members of the Scottish Parliament, argue day in, day out against more powers for the Scottish Parliament, yet suddenly, when party politics are involved, try to score points by saying that they want more powers for the Scottish Parliament? They should stick to their principles and not play party politics with the issue when they are here. We should give power to the Scottish Parliament similar to that for the Isle of Man, at the very least.

[Mr Harper]

I am very grateful to the hon. Gentleman. I will not add to his point, but I am now slightly envious that I am not a Member of the Scottish Parliament too, and so cannot indulge in such debates on a daily basis. I now know what I am missing out on by not participating in Scottish politics.

In answer to the hon. Member for Rhondda, I can confirm that these issues have been discussed at the JMC. If he does not believe that they have, I will happily write to him and give him the details.

[Chris Bryant]

To be honest, I do not want the Minister to write to me, I want him to consult the respective Executives in—[Interruption.] The hon. Member for Na h-Eileanan an Iar (Mr MacNeil) should calm down. The Government are ensuring that he has his own rotten borough, so he does not have to worry about the Bill.

I want to ensure that consultation happens properly. We rightly insist that before any European Union legislation is brought in we should have 10 weeks to do our proper parliamentary duty, and the same should apply to the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly. The Minister is deliberately eliding two concepts. Raising the matter at the JMC is one thing, but consulting expressly on written documents, which has not happened in relation to any of these issues, is something else altogether.

[Mr Harper]

The hon. Gentleman said that he wanted to ensure that these issues had been discussed, and they have been raised and discussed at the JMC. The devolved Administrations probably still disagree with the Westminster Government’s decision, but the matter has been discussed. He is not making a very sensible point.

[Mark Tami]

Would the Minister not agree that Scotland in particular has experience of holding polls on the same day, and that problems have resulted?

[Mr Harper]

It certainly does have that experience, which is why we looked closely at the conclusions in the Gould report. In an earlier debate I made it clear that although Ron Gould—he of the said report—said that combination would not have been his first choice, he was clear that combining a simple yes/no referendum and the Scottish parliamentary elections was likely to be a much more straightforward proposition than what happened in the elections to which the hon. Gentleman refers. Ron Gould did not believe that the same problems would occur.

[Jim McGovern (Dundee West) (Lab)]

I can assure the Minister that I am not going to rant and rave like the hon. Member for Na h-Eileanan an Iar (Mr MacNeil). The Minister says that a referendum and a parliamentary election on the same day are acceptable, but that seems to imply that only two votes will take place on the same day. However, there will be a first-past-the-post vote for the Scottish Parliament, a list vote for the Scottish Parliament and a referendum. He is possibly misleading Parliament—not intentionally—by implying that there will be only two votes.

[Mr Harper]

No, we have added one extra vote to what would otherwise have taken place, and it will have a simple yes or no question rather than a complex electoral system. Like the hon. Member for Na h-Eileanan an Iar in an earlier debate, the hon. Member for Dundee West (Jim McGovern) is doing his fellow Scots a disservice by suggesting, albeit obliquely, that they are not capable of making a decision in the referendum as well as voting in the very important Scottish parliamentary elections.

[Mark Tami]

Does the Minister not recognise that candidates standing in the Welsh Assembly and Scottish Parliament elections could take various lines about whether they are pro-AV or anti-AV? There is still a lot of scope for a very confusing situation.

[Mr Harper]

No, I do not think there is, actually. People are perfectly capable of laying out the prospectus on which they stand and the important issues on which they are campaigning in the elections to the Welsh Assembly, Northern Ireland Assembly and Scottish Parliament, and also joining the yes or no campaign on a voting system for this Parliament. That is not very complicated at all, and our voters will show us that we are underrating them if we take that view. Incidentally, next week, Americans will vote in an extraordinary number of elections—I shall pursue that thought only briefly, Mr Evans, for fear that you will rule me out of order—and they are perfectly capable of doing that, in the same way as voters here are perfectly capable of voting in two or three sets of elections next year.

[Chris Bryant]

The Parliamentary Secretary knows that the system that evolved in the United States because they have so many elections at the same time means simply pulling a Democrat or a Republican switch. Surely he does not intend to move to that system.

[Mr Harper]

Not at all. Many voters give much thought to whom they will support in different elections. There are many examples of people voting differently in different sorts of elections, doing what they call splitting the ticket.

[Mr McCann]

Will the Parliamentary Secretary focus on the pertinent point about the 2007 elections in Scotland? Many elderly voters are extremely confused. I have many elderly constituents who are proud of having voted in every election since they were given the opportunity to do so. The introduction of new voting systems in 2007 made the ballot papers confusing for them, and they were disturbed by that. Does the hon. Gentleman accept that holding another vote on the same day as the Scottish elections will provide scope for confusion, and many people will therefore be disfranchised in the referendum?

[Mr Harper]

The hon. Gentleman would have a stronger point if we were talking about another set of elections with a new voting system, and putting everything on one ballot paper. However, we have examined the lessons in the Gould report and want to ensure that we combine the elections in such a way as to minimise the opportunity for confusion. Ron Gould said that combining elections would not be his preference—I am quoting him fairly—but he is confident that the scope for confusion is nothing like the situation in 2007. He is fairly confident that the elections and the referendum will be organised sensibly and competently. I think that our combination provisions achieve that.

[Several hon. Members]

rose—

[Mr Harper]

I will take one more intervention and then finish, because I am almost there. Hon. Members can then make their own speeches.

[Mr McCann]

I am very grateful to the Parliamentary Secretary for giving way again. Does not he accept that in Scotland we will have a first-past-the-post election for the Scottish Parliament, the alternative vote system, and then we must explain to people that there is also a yes/no vote? It would be fine if we had only the yes/no vote—that is straightforward—but there are additional complications. Does not the point that he has just made concede my point? That is the point that he must grasp.

[Mr Harper]

No, because no new electoral systems will be invented next year. People will vote in the Scottish Parliament elections in the same way as they did previously, with the addition of a relatively simple yes or no question on the voting system for this House. Voters may prove us wrong, but I think that they are perfectly capable of making such decisions at the same time as voting in Welsh Assembly, Scottish Parliament or English council elections, and of differentiating the polls. Clearly, that requires good organisation on the ground and good communication. The Electoral Commission is aware of that; that is why it will write to every household to set out clearly in each of the devolved parts of the UK details of the elections that are taking place, the referendum and the procedures, so that people are clear about it. The yes and no campaigns obviously bear part of that responsibility too.

[Several hon. Members]

rose—

[Mr Harper]

I have dealt with the point that the hon. Member for East Kilbride, Strathaven and Lesmahagow (Mr McCann) made, perhaps not to his satisfaction, but at length. I have a few more sentences and I am done. Hon. Members can make their own speeches then. I have been reasonably generous in giving way.

The territorial orders were tabled today. When the Committee stage is complete we will table the amendments, as I promised hon. Members last week, so that the House can debate them to reflect the new territorial orders—

[Chris Bryant]

How?

[Mr Harper]

The territorial orders have been laid before the House, and are therefore available to Members. They are not amendable, but it is possible for the House to vote them down, in which case we would simply revert to the combination provisions that we are discussing. If the House votes for them, and for our amendments next week, we will have been able to debate all the rules that will be in place next year, and will not have left it to their lordships.

[Chris Bryant]

However, neither the Joint Committee on Statutory Instruments nor the Merits of Statutory Instruments Committee in the House of Lords has yet considered the orders. I presume that the House will not consider the three territorial orders in Committee this week, nor will the House have disposed of them among the remaining Orders of the Day before next Monday. It surely cannot be possible to table amendments to legislation regarding other legislation that has not yet come into existence.

17:15

[Mr Harper]

As I set out earlier in this debate, clearly it would not have been sensible for us to table changes to the Bill to reflect orders that had not yet been laid before the House, but they have been laid before the House today, so—[Interruption.] The hon. Gentleman says that they have not been agreed. I have said that they have not been agreed, but they have been laid before the House—both of them under the affirmative procedure, so they have to be voted for. If this House or the other place were to vote them down, we would revert to the rules that exist already. We would then be able to go back to the provisions that I am explaining today, which will have been debated in this Committee. Either way, this House will have had the opportunity, on this Bill, to debate the provisions that will be in place for elections next year. That is what I committed to arrange, and that is important.

[Chris Bryant]

rose—

[Mr Harper]

I know that the hon. Gentleman is going to find whatever convoluted way he can to try to pretend that that is not the case, but on any reasonable reading of the situation, we have ensured that before the Bill leaves this place, this House will have had the opportunity to debate the provisions, rather than leaving that to the other place.

[Chris Bryant]

rose—

[Chris Ruane]

Go on Chris, convolute it.

[Chris Bryant]

It does not need to be convoluted; it is pretty straightforward. I presume that the Minister will agree with me that the law on combination of polls in Scotland, Northern Ireland and Wales next Monday will be precisely the same as it is today, so we will not be able to debate amendments to anything other than speculative legislation that will not have been carried by then and will therefore not be the law.

[Mr Harper]

It is correct that that legislation will not have been carried by the House, but it will be available for Members to debate. There are two scenarios: either the House will approve the orders that my right hon. Friends have laid before the House today—in which case the amendments that we will table once the Committee stage is finished, which we will debate on Report next week, will come into force—or the House will vote those orders down, in which case we will revert to what we are talking about today. In either situation, this House will have had the opportunity to debate those provisions—I suspect at length—and they will therefore not be left to the upper House.

We have tried hard to ensure that the elected House has been able to debate both the provisions on the referendum and those on boundaries. If I remember rightly, in the previous Parliament, in which I served, the Government of whom the hon. Gentleman was a member were not so fastidious about ensuring that this House was able to debate provisions. Significant pieces of legislation went to the other place without any debate at all on enormous portions of it. To the extent that it has been within the power of the Government, we have taken great care to ensure that by the time this legislation leaves this House next Tuesday, all the key issues will have been debated and voted on by this House. We may not have achieved perfection, but we have made a pretty good stab at it, and I have to say—honestly—that what we have done is a considerable improvement on much of what the previous Government did. I would ask Members to bear that in mind.

The provisions on postal voting in local elections in Northern Ireland are changed substantially by one of the orders laid today, so it would not have been sensible to deal with that in the current group of amendments. However, to finish on a point that I hope will bring the hon. Gentleman great cheer, I can confirm that no amendments will be necessary in relation to the combination provisions for Wales, as the changes to be made to the rules governing the conduct of the Welsh Assembly elections do not affect any rules relevant to combination with the referendum. On that note, which I am sure will gladden his heart, let me conclude by saying that the combination provisions that we have provided are necessary for the smooth running of all the polls that are scheduled to take place next May.

[Chris Bryant]

I am grateful to the Minister for giving us some of the detail on the amendments, although he has not given all of it, which is significant. I would like to start by picking up where he finished—on the due process that needs to be followed in relation to anything when it reflects the representation of the people, constitutional matters, or the constitutional relationship between Westminster and the devolved Administrations, but which has not, I believe, been followed in this case.

Of course, there should first be pre-legislative scrutiny, but, as we have heard, the Bill has had absolutely none. It is true that the Government published the Bill, but it exists not because of some grand constitutional principle but because of some naked partisan gerrymandering of a Bill. I am sure that if it had been published in pre-legislative form, so that a Committee of this House or a Joint Committee of both Houses had been able to consider it, that Committee would have said, right at the beginning, “You shouldn’t be spatchcocking together these two elements of the Bill”—[Interruption.] Or, “You shouldn’t be kebabbing the legislation in this way.” The Parliamentary Secretary helps me. It is not really spatchcocking; it is more kebabbing. It requires more of an inner-city image than a rural image; he is quite right.

[Chris Ruane]

Why does my hon. Friend think there has been such undue haste in rushing the Bill, or Bills, through the House?

[Chris Bryant]

This is entirely speculative, but it might be something to do with the Bill acting as the Araldite that holds the coalition together. The fact is, however, that the Deputy Prime Minister—or Sandie Shaw, as we normally know her, or him, now—is so Araldited to the Prime Minister that there is probably no need for the Bill to be introduced in precisely this way.

There should have been pre-legislative scrutiny of the Bill. I am sure that a Joint Committee would have said that it should not have been constituted in this way, and that it was inappropriate to try to foist combined polls on Wales, Scotland and Northern Ireland when they had expressly said that they did not want a combination of a referendum and their own elections, especially in Northern Ireland, where on the same day there will be local elections as well as Assembly elections. I am pretty certain that such a Committee would have found that inappropriate.

Indeed, we can be pretty confident of that because the Political and Constitutional Reform Committee, which is chaired by my hon. Friend the Member for Nottingham North (Mr Allen), made it absolutely clear that it believed that it had not had enough time to consider the Bill before it suddenly had its Second Reading. The Select Committee had only five days in which to read the Bill and to get constitutional experts to talk to its members and provide evidence. Those witnesses themselves thought that it was inappropriate that such haste was being adopted.

[Owen Smith (Pontypridd) (Lab)]

May I draw my hon. Friend’s attention to the report from the Welsh Affairs Committee that came out today? No doubt he will already have read it in detail. It reaches precisely the same conclusion as he has drawn. The Committee has a Government majority, but it nevertheless concluded that the Bill was being railroaded through with undue haste, and with completely insufficient scrutiny by this House. It also believed that it would have a significant constitutional impact on Wales. Does my hon. Friend agree that this is a disgrace?

[Chris Bryant]

I do not agree with my hon. Friend if he is suggesting that the Committee’s report is a disgrace, because it is excellent in highlighting the implications for Wales of the Government’s proposals on constitutional reform. But my neighbourly Friend makes a good point: the Committee is not comprised of rabid left-wingers—or, for that matter, entirely of members of the Labour party—and those who voted on this matter, those who turned up, were predominantly Conservatives. In fact, one of them is now a Parliamentary Private Secretary. Many of us deprecate the fact that there are PPSs sitting on Select Committees, but I note that the PPS who sits on this one chose to absent himself from the vote. I can presume only that that was because he agreed with the findings of the Committee. My hon. Friend the Member for Pontypridd (Owen Smith) is absolutely right to say that the Committee makes it clear that there has not been adequate scrutiny of the Bill, particularly in regard to Wales. It also makes the wider point about the amount of time that has been allowed in general.

[Mr Wayne David (Caerphilly) (Lab)]

Will my hon. Friend give way?

[Chris Bryant]

I will of course give way to my other neighbourly Friend.

[Mr David]

My hon. Friend has many neighbourly friends. He puts his finger on a crucial point about the speed with which this Bill is being introduced. Does he agree that not only that a number of Conservative Members sit on the Welsh Affairs Committee but that, significantly, its Chairman is a Conservative?

[Chris Bryant]

Yes, and I not think anybody could call the Committee’s Chair a patsy. He is a man of fierce independence—sometimes overly fierce, and sometimes overly independent—and the Select Committee’s findings were extremely clear. It reported:

“The Government is determined to pass this legislation quickly in order that the referendum on the Parliamentary electoral system can take place in May 2011. However, we agree with the Political and Constitutional Reform Committee”,

which, incidentally, does not have a Labour majority on it either,

“that the Bill has been given insufficient time for proper scrutiny. ”

It continued:

“The Welsh Grand Committee gives all Welsh Members the opportunity fully to debate issues relating to Wales. That the Parliamentary Voting System and Constituencies Bill impacts significantly on Wales is clear. In the light of this, we consider the Secretary of State for Wales’s decision not to convene a meeting of the Welsh Grand Committee in this instance to be very disappointing.”

Conservative Members are attacking a Conservative Secretary of State for Wales. It seems extraordinary that the Committee has not had an adequate opportunity to consider the Welsh element of the Bill, particularly the Welsh elements that are before us this afternoon, which are extensive.

Let me make another point about the proper process that should have been observed. We believe in pre-legislative scrutiny and consultation on any constitutional Bill, but this Bill additionally affects elections in Wales, Northern Ireland and Scotland. The previous elections for the Scottish Parliament led to significant problems, which my hon. Friend the Member for East Kilbride, Strathaven and Lesmahagow (Mr McCann) mentioned. This shows how important it is to have proper consultation with each of the devolved Administrations. By that, I mean, first and foremost, consultation “from Government to Government” as it were—that is, the Westminster Government speaking to the Scottish Executive, to Ministers in Northern Ireland and to the Welsh Assembly Government. That could have happened confidentially on a “Government to Government” basis; there is absolutely no reason why that should not have happened.

As I understand it, prior to the comprehensive spending review, extensive confidential discussions took place between relevant Ministers so that Ministers in Wales, Scotland and Northern Ireland knew more than this House did about what elements would affect their budgets. I have no complaint about that happening with the comprehensive spending review; my argument is that it should apply to the devolved Administrations in respect of this Bill.

[Mr Harper]

As I have said in response to interventions from other Members, the devolved Administrations—and even the devolved Parliaments and Assemblies—do not have a role in delivering elections. Although, as I have said, the position will change for Scotland, the Secretary of State is responsible for administering elections. The hon. Gentleman may not like that, but it is the position and we have worked closely with the territorial offices to ensure that procedures for the referendum work closely with the procedures for elections. That is the position.

[Chris Bryant]

Of course I understand the legal position. Local elections may or may not be happening at the same time in Scotland, Northern Ireland and Wales—they will happen across Northern Ireland but perhaps only because of a by-election in Scotland or Wales—but the Assemblies have a degree of responsibility for the conduct of the elections to the Welsh Assembly, the Scottish Parliament and the Northern Ireland Assembly. The Bill decouples the Welsh Assembly constituencies from the parliamentary constituencies so that the Government are able to reduce the number of seats in Wales by 25%. I would have thought that that creates an additional need to consult.

I think that there should have been consultation at two levels. There should have been a degree of consultation at ministerial level, but, because these issues affect the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly in their entirety, it would have been common courtesy to consult the Assemblies and the Parliament as Assemblies and a Parliament. In respect of European legislation, we now have a standard and proper process of consultation between the relevant European Committees in the House of Commons and in Scotland, Wales and Northern Ireland. In respect of the Bill, however, there has been no adequate consultation either with the Parliament and Assemblies or with Ministers.

17:30

[Mark Tami]

The point, surely, is not who has the legal responsibility, but who has the experience. There should have been plenty of consultation—certainly in Scotland—enabling Ministers to learn from that experience, and to decide on the basis of it whether it would be appropriate to hold the referendum and elections on the same day.

[Chris Bryant]

Obviously that is the case. I should have thought that, given that none of the Ministers in either of the teams affected represents a Welsh, Scottish or Northern Ireland seat, it would have been more important for them to consult the relevant devolved Administrations just to be able to get the position right.

[Cathy Jamieson]

rose—

[Jim McGovern]

rose—

[Chris Ruane (Vale of Clwyd) (Lab)]

rose—

[Chris Bryant]

I will give way to Scotland, and then to Wales.

[Chris Ruane]

Scottish female or Scottish male?

[Chris Bryant]

Scottish female.

[Cathy Jamieson]

Was it not worrying to hear the Minister say that even if the Scottish Parliament passed a resolution that made clear that it did not support the Bill, he would not take account of that and would not change his mind in any way?

[Chris Bryant]

The Government came to power arguing that coalition politics were somehow better for Britain. Whatever we may think of that proposition, if they are then not prepared to extend the courtesy beyond the internal dynamics of the coalition to others who are engaged in the political endeavour, they have let down their own basic first principles.

Of course the wish to foist a referendum on the same day as elections elsewhere is extraordinary, especially given that the people who now sit on the Government Benches are the people who criticised the Labour party most for the way in which the last combination of elections took place in Scotland.

[Chris Ruane]

rose—

[Jim McGovern]

rose—

[Chris Bryant]

I will give way to a Welsh man, and then to a Scottish man.

[Chris Ruane]

Does my hon. Friend agree that the way in which the current Administration have dealt with the devolved Administrations in Scotland, Northern Ireland and Wales—

[Mark Tami]

What about the respect agenda?

[Chris Ruane]

This is my intervention, if my hon. Friend does not mind!

Are not the Secretaries of State for Northern Ireland, Scotland and Wales behaving more like governors-general than Secretaries of State?

[Chris Bryant]

To be honest, I think that they are behaving more like satraps.

I think it extraordinary that there has not been proper consultation, and I do not understand why the referendum has to be held in May next year. It is pretty clear that in the respective Governments, Assemblies and Parliaments there is a firm view that it should not take place at the same time as the elections. Although most people in Wales do not view a Welsh Assembly election in quite the same way as a general election for the whole United Kingdom, many will refer to it as a Welsh general election. That is why it is so extraordinary that the people of Wales and Scotland and Northern Ireland have not been shown the same degree of respect as would have been extended to anyone else. That, I think, slightly betrays the rather London-centric view of the Government. I suspect that if there were a free vote on the Bill, many fewer Conservatives and Liberal Democrats would vote for it than will go through the Lobby later today. In particular, I should be surprised if a single Welsh Member voted for it.

I think that my hon. Friend the Member for Penistone and Stocksbridge (Angela Smith) wants to intervene. Oh no, I am sorry—I am giving way to a Scottish man next.

[Jim McGovern]

I thank my hon. Friend for giving way. He mentioned that some of his constituency neighbours are also his political friends. I hope I will be able to stand up and say that one day, because at present not many of my political neighbours are political friends.

As I am sure my hon. Friend will be aware, the local government elections in Scotland have been moved back a year to ensure that they do not conflict with the Scottish general election. Government Members claim it is offensive to the intelligence of the Scottish people to say that holding polls on the same day would be confusing, but it is offensive to the author of the Gould report for them to say they will not accept his recommendations.

[Chris Bryant]

I completely agree with my hon. Friend, and I hope that one day he will have more friends in neighbouring constituencies, which I think means that we will have to win some more Labour seats in Scotland. The key point is that, on the whole, it is better not to combine polls. I fully accept that the Minister has referred today—as have several other Members in previous debates—to the situation in the United States of America. It has an election day and the vast majority of elections are held on one single day. We have not gone down that route, and thus far it has been thought to be inappropriate to combine them on the same day, especially where a variety of different electoral systems are involved. I hope to come on to some of the specific problems of that.

[Angela Smith (Penistone and Stocksbridge) (Lab)]

rose—

[Chris Bryant]

I give way to an English woman.

[Angela Smith]

I thank my hon. Friend for giving way to an English woman on this point. Does he agree that in this instance it is not just that two different polls are to be held on the same day, but that one of them is an election and the other is a referendum, and as referendums have completely different processes from those for elections, that will complicate things and could well cause confusion?

[Chris Bryant]

Indeed, and I will come on to some of the specific problems that could arise. My hon. Friend did not add, however, that they are on completely different franchises as well. The Minister seems to think that the franchise for the next general election will be the same as the franchise for the referendum. They will not be, however, because of the inclusion of peers in the referendum. It has to be said that we do not have many peers in the Rhondda, however. We have one: Baroness Gale of Blaenrhondda who, unfortunately, is in hospital at the moment—she is across the road at St Thomas’—and I wish her well. There will be confusion in respect of the different franchises and issues such as whether we have the same register or two registers, and I will talk about those specific issues a little later.

The Minister referred to all the schedules before us and how we will address them, and he said that the territorial Departments for Wales, Scotland and Northern Ireland have today—I presume that means since the beginning of the debate this afternoon—tabled the statutory instruments that are required fully to combine the polls in each of the areas. There is no provision in statute for the combination of polls in Northern Ireland, whether for local government and Assembly elections or any other kind of elections. In Scotland, there is provision by virtue of an order, which I think was introduced in 2007, hanging off the Scotland Act 1998. That order makes it clear that local elections and parliamentary elections can be combined, but in fact it has now been decided not to combine them. In Wales, the situation is different again, because a 2007 order on the representation of the people and the Welsh Assembly makes provision to combine local elections and Welsh Assembly elections, but until now there has been no provision to enable the combining of referendums and elections.

The dangers of combining referendums are completely different from the dangers of combining elections. That is why the Government have had to introduce these statutory instruments to make provision for the referendums to be combined in each of the three territorial areas. Unfortunately, that is not the legislation that exists today, so these instruments have been tabled without, as far as I know, having been sent in advance to anybody involved in this Committee or anybody in the shadow offices in relation to Wales, Scotland and Northern Ireland, and without the Welsh Assembly, Scottish Parliament and Northern Ireland Assembly having been consulted on them; they have simply been published. I presume the Minister will be tabling things tomorrow, once we have finished in Committee, and he will then table a series of new amendments, which we will be able to debate on Report. I simply say that such an approach puts the horse before the cart.

[Mark Tami]

My hon. Friend finished on the point that I was going to make. Does he agree that the Government are clearly just making this up as they go along? At last Thursday’s business questions, even the Leader of the House was unable to confirm whether the affirmative procedure would be used or whether the instruments would be taken on the Floor of the House. Perhaps my hon. Friend could update us on whether he has been given more information.

[Chris Bryant]

My hon. Friend is absolutely right. The proper process for a statutory instrument is that, first, consideration is given to whether it should be taken on the Floor of the House or in Committee. Given that all three of these statutory instruments relate to elections and are of a constitutional nature, my preference, and that of Labour Members, is for them to be taken on the Floor of the House and not in some Committee without general public scrutiny. Secondly, statutory instruments have to be considered by the Joint Committee on Statutory Instruments, which has a limited remit but can examine whether the affirmative or the negative resolution process should be used. Last week, as my hon. Friend rightly says, Ministers, including the Leader of the House, did not seem to have the faintest idea whether or not these would be subject to the affirmative procedure. I am glad to say that the Minister has now made it clear today—

[Mr Harper]

indicated assent.

[Chris Bryant]

He has now made it clear, and we are deeply grateful to him, that these instruments will be dealt with by the affirmative procedure. Indeed, my hon. Friend the Member for Cardiff West (Kevin Brennan) received a letter to that effect—I was copied into it—on Friday.

We also need to consider what their lordships should do. I contend that we should proceed steadily, rather than at a gallop, on constitutional reform. That means, first, that the Joint Committee on Statutory Instruments and the Merits of Statutory Instruments Committee in the House of Lords should go through their processes. We should then decide on the Floor of this House whether we agree the order, as should the House of Lords. That process is particularly important because these orders are not amendable and so we ought to ensure that we have a proper process in place before we reach the Report stage—I do not see how we can consider matters on Report until that has been done.

[Angela Smith]

My hon. Friend is making an excellent case about the lack of proper consultation and process on these proposals. If we had had such a thorough consultation and procedure in this place it would have allowed us to consider not only the principles but the various costs of holding the referendum, whether or not it be on the same day as the other polls. That is a very important principle in the context of last week’s spending review.

[Chris Bryant]

My hon. Friend is absolutely right. One sadness about the way in which the business ends up having to be transacted today is that because the Government have constructed this in the form of a new clause with four new schedules attendant upon it, the votes on the schedules will be separated from the votes on the new clause—unless, Ms Primarolo, you are going to allow us to proceed in a slightly different way from how these matters are normally conducted. I understand that we will end up having a debate on new clause 7 before we proceed to votes on the new schedules, rather than having a separate debate on the new schedules. That is precisely because of how the Government have constructed their approach to the amendments.

It is also worth pointing out that the Government have not put minor amendments before us today. New schedule 2, which refers to England, is 35 pages long, as is new schedule 3, which relates to Wales. New schedule 4 is 37 pages long—Scotland gets rather more than Wales or England—and new schedule 5, on Northern Ireland, is just 19 pages long. I presume that the Minister’s final throwaway comments on postal voting in Northern Ireland, which he made swiftly at the end of his speech, are why the number of pages on Northern Ireland is substantially smaller than the number on Scotland and Wales, and that he intends to introduce significant amendments at a later stage. Obviously, I do not believe that that should be next week—I think it should be once the statutory instruments have been considered and, if necessary, approved. However, that is all the more reason for us to ensure that the Northern Ireland statutory instrument is debated on the Floor of the House before Report.

[Ian Lucas]

One particular aspect of the franchise relating to the alternative vote referendum and the Welsh Assembly and Scottish Parliament elections concerns me. Is the referendum franchise made up of the same franchise as the general election or as the Assembly election? As my hon. Friend will know, those two franchises are different.

17:45

[Chris Bryant]

It is neither A nor B—in fact, it is C. It is a new creation. The franchise for the AV referendum will be, broadly speaking, the same as that for a general election—that is, it will not include EU citizens—but will include, rather exceptionally, peers, including a peer who is able to have that vote only by virtue of their having a business interest in the City of London. A particularly bizarre franchise has been invented, which is why we tried to amend some of the elements of it in a previous discussion.

My hon. Friend the Member for Wrexham (Ian Lucas) makes a good point. In many polling districts, the register will be substantially different. In Newport, for instance, 1,000 voters will be able to vote in the Assembly elections but not in the referendum. I am not sure how many voters will be able to vote in the referendum but not in the Assembly elections by virtue of their being peers.

[Mark Tami]

Does my hon. Friend envisage people turning up expecting to be able to vote, because they can vote in the other election, only to be told that they can vote in that election but cannot take part in the referendum?

[Chris Bryant]

Indeed. There is a series of complications that I shall come on to, if my hon. Friend will bear with me for a while. Amendments specifically refer to that point, but they amend the Government’s new schedules rather than the new clause, and I want first to deal with the amendments to new clause 20 tabled by my right hon. Friend the Leader of the Opposition, other colleagues and me.

The first amendment is amendment (a) to new clause 20. I realise that some hon. Members might be slightly confused that there are lots of amendments (a) in this group, because some refer to the new clause and some to each of the new schedules. Amendment (a) to Government new clause 20 states:

“Where the date of the poll for a local authority election in England is the same as the date of the poll for the referendum, the polls are to be taken together.”

That is narrower than that which the Government have provided. The Government are suggesting that the polls can happen together when there is the referendum, and a local authority election in England, and a local referendum in England, and a mayoral election in England. In other words, it is theoretically possible that, if we stick with the Government’s proposal, one voter might come in to vote on the referendum on AV, a local authority election, a local referendum and a mayoral election all at the same time. It is one thing to consider all this in relation to someone coming into a polling station, and people might conclude that it is perfectly legitimate—that there is the franchise for the AV referendum, which we have already discussed, and the franchise for all three other issues, which would be the same—but what happens with postal votes for all those polls? If there are four postal votes and four polling cards, that provides a right old tagliatelle of a constitutional settlement for ordinary voters to try to sort out. That is why our amendment, instead of allowing all four polls at the same time, would allow only a local authority election in England to happen at the same time as the referendum. We do not think that is ideal, but at least it would tidy things up a little. I very much hope that the Minister will accede to that amendment.

Amendment (b) would also amend new clause 20 in relation to Northern Ireland. The Government propose:

“Where the date of the poll for one or more of the following is the same as the date of the poll for the referendum, the polls are to be taken together—

(a) a Northern Ireland Assembly Election;

(b) a Northern Ireland local election.”

In other words, they are providing for all three to happen at the same time. Up to now, there has been no legal provision enabling that to happen in Northern Ireland, which is why the Government are bringing forward relevant statutory instruments. We do not believe it is right to have all three elections at the same time, so we suggest, in a consensual way, that the Government might at least limit the combinations to a degree by taking one of the polls out of the measure.

[Mark Durkan (Foyle) (SDLP)]

A few minutes ago, my hon. Friend was very critical of the Government’s lack of consultation with the devolved interests, but who in Northern Ireland has he consulted regarding his amendment, which would prevent local elections from taking place on the same day as the referendum and Assembly elections? People in Northern Ireland have said that they do not want the referendum on the same day, and that they want the two elections together, but his amendment would mean that the elections could not take place on the same day.

[Chris Bryant]

The difficulty that we have as Her Majesty’s loyal Opposition is that if I had tabled an amendment to that effect, it would have been ruled out of order and would not have been considered because we have already debated, in relation to clause 1, amendments on separating the referendum from those elections. I fully understand my hon. Friend’s point and there have been extensive conversations on the amendment over the weekend with a wide variety of his friends and others in Northern Ireland. The point that we are trying to make is fairly simple: combining everything on the same day brings not clarity for voters but more obscurity.

[Mr Nigel Dodds (Belfast North) (DUP)]

Let me endorse the point made by the hon. Member for Foyle (Mark Durkan) and make it clear that we have no difficulty with the date of the referendum being moved but that we certainly do not agree with the date of the Assembly and council elections being moved from their current scheduled date next May.

[Chris Bryant]

For the most part, we agree that what is sauce for the goose is sauce for the gander. The right hon. Gentleman is absolutely right. Broadly speaking, we agree that where it has been determined that elections should take place on a four-yearly or other basis, and advance notice of their date has been given, it would be inappropriate to move them. Our point is that the referendum should not be on the same day as all those elections. I hope that he understands our reasoning; I think we are moving in the same direction.

[Mr David]

Does my hon. Friend agree that the exchange that has just taken place underlines the fact that not enough time has been allowed for proper dialogue and conversation?

[Chris Bryant]

My hon. Friend is absolutely right. Unfortunately, this is one issue on which, notwithstanding the changes that have taken place in relation to the Backbench Business Committee, there has not been much change of heart in the way that business is brought before the House. Government Members say that Labour was appalling when it was in government because it took things through at too great a speed and sometimes did not allow enough time for consultation, but they have been preaching to us since May about the new politics. I should have thought, in the context of the new politics, that major, significant constitutional reform that will affect different parts of the Union in different ways and that will change in myriad ways the way in which the House is elected should be given proper time. That means proceeding more like a stately galleon than a coyote.

[Ian Lucas]

My hon. Friend makes an excellent point. Does he agree that the consultation is even more important because the proposal for the alternative vote referendum was in neither the Liberal Democrat nor the Conservative manifesto and because there is no electoral mandate for it?

[Chris Bryant]

Again, I agree with my hon. Friend: the Bill was in nobody’s manifesto and that is why it seems like a piece of kebab legislation. It has been bunged together to provide the Araldite that the coalition otherwise would not have.

[Roger Williams (Brecon and Radnorshire) (LD)]

Does the hon. Gentleman agree that it would have been difficult to have pre-legislative scrutiny of whatever legislation was brought forward at this time? Is he suggesting that we should have a period at the beginning of a Parliament in which there is no legislation at all?

[Chris Bryant]

If we are talking about this legislation, then, yes, probably. The hon. Gentleman makes a serious point: there is a difficult period at the beginning of a Parliament in which a Government have to go from standing still to providing legislation. I fully understand that, but it is ill-advised to introduce major constitutional legislation at that time. I do not understand the rush with this legislation. I presume he hopes that it will not be needed until 2015, if AV is agreed to and the constituencies are all redrawn, because I am sure that he supports the five-year terms in the Fixed-term Parliaments Bill. There is no particular rush and this could all have been done at a slightly more leisurely pace. That would have improved the general feel of the way in which the Government are conducting this constitutional reform. Let us be clear: the party that would like to help, in some regards, those who want to reform the way in which we do politics in this country is sitting on the Opposition side of the House. The hon. Gentleman and I could be allies on many issues of constitutional reform, but the way in which the Government, particularly the Deputy Prime Minister, have approached many of these issues has made that far more difficult for us.

[John Mann (Bassetlaw) (Lab)]

rose—

[Chris Bryant]

I give way to my hon. Friend, who probably does not agree with my last sentence.

[John Mann]

I do not agree with my hon. Friend’s use of the adjective “ill-advised”. A more appropriate description might be “anti-democratic and gerrymandering in order to hold together this fragile and useless coalition.” I point out that in a by-election last Thursday, the Liberals’ share of the vote fell to 2% in my area.

[Chris Bryant]

My hon. Friend is almost getting into Rhondda territory. I think there is only one parliamentary constituency in which both the Conservatives and the Liberals have lost their deposits in the past 10 years—the Rhondda. [Interruption.] That was not at this general election, but the last one. I am sure that we will return to that situation at the next general election.

Returning to the Northern Ireland issue, the Government want everything to happen on the same day next May, but we think that is inappropriate and that is why we have tabled these amendments. We have tabled two other amendments to new clause 20: amendments (c) and (d). Amendment (c) would leave out lines 35 to 39, concerning a local referendum and a mayoral election in England. The Minister might enlighten us later on why the Government felt it necessary to include those measures. Are they expecting mayoral elections or local referendums on that date? If there are to be local referendums in England on the same day as an AV referendum, there will be a right old muddle. Most voters do not spend their waking hours, let alone their sleeping hours, worrying about the constitutional settlement in Britain. For the most part, they are more interested in other aspects of their lives than in the political machinations of Westminster or any other part of the constitution. That is why they often choose not to focus on the specifics until a late stage in the process. I am sure we have all had people come up to us two days before an election, saying, “I’m not registered to vote but I really want to vote in the election.” I am glad that one of the changes we introduced during the past 13 years was to make it easier for people to register after an election had been called. Far more people now register.

I am also glad that we made it easier for people to obtain postal votes. In the past, if someone wanted to vote by post, they had to have the application signed off by a medical practitioner of some kind, and in many parts of the country doctors and nurses charged £6 to sign the form. That meant that large numbers of poorer voters did not apply for a postal vote and were disfranchised, which is why it is all the more important to make sure there is clarity and consistency in the Bill.

18:00

I hope the Minister will be able to enlighten us on precisely why he thinks so many different elections, which might be for a county council, a district council, a local council or a parish council, as well as a local referendum, a mayoral contest and the referendum, could all be held at the same time.

[Andrew Gwynne]

My hon. Friend missed something from his list—the possibility of a council tax referendum. The Government have removed their capping powers, and are making provision for local referendums when local authorities want to increase council tax above a certain level.

[Chris Bryant]

My hon. Friend knows more about local elections in England than I do, so he will correct me if I am wrong, but I presumed that such referendums would be included in the local referendums in England category. However, he is right: a series of different propositions may be put to people. Following the comprehensive spending review last week, which included a drastic attack on local government funding, many local authorities will be worrying about whether they should spend £10,000 on a registration campaign, to make sure that as many people as possible are on the register, or whether they should spend the money on keeping a swimming pool open or on some other element of their services. They may decide that the only way to protect the public services they believe local people want will be to ensure that they hold a referendum on whether they should increase the amount of money that comes in from council tax.

I used to be a local government development officer for the Labour party, so I understand the argument that because between 75% and 80% of the local government budget is provided by the Government, it does not easily allow local democracy to flourish. However, if local referendums on those powers were held in May next year, it would add even greater complexity, as I think my hon. Friend was suggesting.

We have tabled several amendments to new schedule 2, and I shall go through them in order. However, because of the way in which the Government have structured the amendments, it is quite complicated for most ordinary Members to understand precisely where they are. When we consider amendments to clauses, new clauses or schedules, there are line numbers on the page, but not for new schedules. Consequently, in a lengthy new schedule of 35 pages, it is sometimes difficult to find the specific provisions to which the amendments refer.

Our first amendment is (a), on the notice for combined polls in England. It relates to paragraph 11, which Members can find on page 757 of the amendment paper. We suggest that there is no reason why the Government should insist that notice of poll be provided on the 15th day before the poll, when the 28th day before would perfectly easily give substantially more notice, so our amendment would replace “15th” with “28th”.

Our second amendment—(b)—relates to absent voter applications. Several Members have referred to postal and proxy voters, who constitute absent voters. A key issue is that someone might believe they had applied for a postal vote in respect of all elections and polls—anything on which they can vote. They might not draw a distinction between an election and a referendum; they have decided never to go to a polling station, and they prefer to vote by post. However, that is not actually what the provision is. Although some people might explicitly choose an all-elections postal vote, but not want a postal vote for referendums, such a situation is pretty unlikely, which is why our amendment states:

“An application under regulation 51(4)b of the Representation of the People (England and Wales) Regulations 2001, SI 2001/341, for an absent vote must state whether it is made for parliamentary elections, local government elections, referendums or all of them.”

People should be able to sign up to all of them, otherwise they will encounter terrible complexity not just when they ask for a postal vote, but also on polling day. As we know, some people lose their postal vote, some cannot send it on time and others may leave it until fairly late because they are uncertain how to vote and end up bringing the postal vote to the polling station. If someone has a postal vote for one poll but not for another, there may be considerable complexity about precisely what they are allowed to do.

[Andrew Gwynne]

In my constituency, a not insubstantial number of people are registered for a postal vote only for local elections, and not necessarily because they are EU residents who are unable to vote in a general election. Although they opted to register for a postal vote only for the local elections, they will expect a postal vote both for those elections and for the referendum and will be disappointed when they receive a ballot paper only for the council elections. Does my hon. Friend think there ought to be more publicity to make such people aware that they will not be able to vote by post in the referendum?

[Chris Bryant]

Yes, I agree. In addition, someone could have applied for a postal vote for one or other of the elections—the referendum, or the Assembly or Scottish Parliament elections. When their postal vote arrives for one of the elections, they might presume that it is the only election happening that day—most people do not obsess about whether there will be more than one election on a given date. They might feel they had been told that was their only chance to vote, so they would vote only in one or other of the elections. That is another complexity that could arise, which is why later on I shall refer to some of the amendments we have tabled on polling cards. We have to follow through the whole process. At the moment, I am referring to new schedule 2 as it relates to England, but later I shall discuss Wales, Scotland and Northern Ireland, where some of the same issues could arise, albeit in a slightly different format.

[John Mann]

I congratulate my hon. Friend on his proposed amendments to new schedule 2. I am attempting to follow his logic. Is he saying that amendment (b), which is on postal voting, could save on bureaucracy and red tape compared with the Government’s proposal?

[Chris Bryant]

Undoubtedly so, and that is one reason for my proposal. However, we sometimes overstate our concerns about the cost of elections. It is sometimes more important to say that we need the right regulations to provide clarity to voters. Holding several polls at the same time in the same polling station or by postal ballot adds complexity, which is not in the interests of good democracy. Incidentally, I am sure that if any of the hon. Members who act as observers of elections in other countries saw that situation, they would say, “The provision of postal votes was a complete and utter mess.”

[John Mann]

I accept my hon. Friend’s point that cost is not everything, but that is not what we have heard from those on both sides of the House in recent times. Does he agree that there is also an opportunity cost, because the returning officer and his or her staff will lose time on additional bureaucracy in the important run-up period to an election when they should be engaging properly with the electorate if the Government, with their ongoing lack of common sense, fail to accept amendment (b)?

[Chris Bryant]

My hon. Friend is right. Indeed, I was recently subjected to the complexity into which returning officers sometimes go. Westminster council has now sent me eight missives in relation to the postal vote in Westminster. I never exercise my vote in London because my vote is in the Rhondda, which is my home. However, I had to register in my property in London, which I rent. People have to return the form to say whether—[Interruption.] If the hon. Member for Brecon and Radnorshire (Roger Williams) wants to intervene, I am quite happy to give way to him.

[Roger Williams]

indicated dissent.

[Chris Bryant]

No. He is just going to continue chuntering. Fine.

My point is that quite often, voters must go through an unnecessarily onerous process to register for a postal vote. Likewise, the returning officer goes through far too many hoops. Sometimes it makes sense to make administrative savings when one can.

Amendment (c) to new schedule 2 is on the colour of ballot papers. Hon. Members might think that that is a recondite subject for a Bill, but notwithstanding the Minister’s remarks last week—he said that he did not want to tell returning officers precisely what to do at any point—the law already makes provisions on it, including in new schedule 2.

Government new schedule 2, which relates only to England, would simply state:

“The ballot papers used for the referendum must be of a different colour from the ballot papers used for any relevant election.”

That is sensible, because people might get two ballot papers when they arrive to vote—one for the referendum and one for the local election—and we want to ensure that the papers go into their respective ballot boxes. Different colours of ballot paper would make it easier for people to do that. However, in amendment (c), we are suggesting that it would be sensible for the same colour ballot paper to be used for the referendum throughout the United Kingdom. I suspect that the Electoral Commission will produce publicity on the referendum and encourage people to vote—not how to vote—and it would be helpful if it could refer to the colour of the ballot paper. The only way for that to happen is for the chief counting officer to decide the colour of the referendum ballot paper. The Government could then follow that up by providing that other ballot papers must be a different colour.

That is why, in amendment (c), we propose to remove paragraph 15 of new schedule 2 and insert:

“The Chief Counting Officer shall select the colour of the ballot paper used for the referendum…The other ballot papers used for any relevant election shall be of a different colour from that selected by the Chief Counting Officer.”

18:10

[Cathy Jamieson]

I absolutely agree with my hon. Friend. Will he invite the Minister to ensure that the colour selected for the referendum ballot paper is not a colour that is traditionally used in Scottish Parliament elections?

[Chris Bryant]

That makes sense. If we had had enough time to go through this process at a slightly more leisurely pace, it would have been possible to consult on and agree to all such things. If the proposals were generally accepted, there would be a rather better feeling about the Bill.

We toyed with tabling an amendment to seek to determine the colour of the ballot paper, but we decided against that bearing in mind what the Minister said last week about leaving some decisions to officers. I have received representations from people who say that it would be inappropriate to use on the ballot paper a colour that is normally used by a political party, because we would then get into the complexities of defining which is a major political party and which is not, and what colours relate to them, which is a problem not least because I am not sure whether the Liberal Democrats are yellow or orange these days. I note that the Minister is wearing a Liberal Democrat tie today—it is mostly yellow but with little bits of blue.

Amendment (d) to new schedule 2 is on official poll cards. In new schedule 2, the Government state:

“If the counting officer thinks fit, the official poll cards used for the referendum and for the relevant elections may be combined.”

The problem is this: how is the counting officer to determine whether he or she “thinks fit”? Why ought we to allow that degree of freedom locally when it might make a material difference to the conduct of the ballot or referendum? We propose that:

“The official poll cards used for the referendum and for the relevant elections must be combined for all electors qualified to vote in all the polls.”

We all get a lot of junk mail these days. The danger is that voters will be confused if they receive two or three—or potentially four, five or six—polling cards for the different elections that are happening at the same time. They will not see how one affects the other. It would be far more sensible, wherever there is a combined poll, for the official poll cards to make it absolutely clear how many votes must be cast, how many elections there are, whether the voter has a postal vote, how they go about registering for a postal vote and so on. Our proposal would mean that there is clarity on a single piece of paper for the ordinary voter rather than a series of polling cards. The Government should make clear the nature of the franchise for each election and poll. As a proposed amendment to new schedule 2, amendment (d) relates exclusively to England.

[Mr Tom Harris]

I seek to be helpful. Will my hon. Friend explain why it is so important that someone who receives a polling card is made aware of the extent of the franchise for that election? If they are aware that they can vote, does it matter if they are aware of the extent of the franchise in a particular referendum or election?

[Chris Bryant]

My hon. Friend is right. I did not mean to say that there should be a treatise on the polling card about the nature of the franchise, how it applies to peers and so on. I was making the point that the card should state clearly that the elector is entitled to vote in all the elections, one of them, two or whatever. It should make it clear that there is more than one ballot taking place at the same time.

[Jake Berry (Rossendale and Darwen) (Con)]

Does the hon. Gentleman agree that the clearest thing of all would be a separate polling card for each election, to enable people to use that polling card to vote in a specific election?

[Chris Bryant]

I do not understand why the hon. Gentleman is supporting the Government’s position. The Government say that where the counting officer thinks fit, he or she should be allowed to combine the polling cards. Logically, if the hon. Gentleman is to follow his own argument, he should have tabled an amendment that deleted that element and stated that there should always be separate polling cards.

The difficulty is that many people think they must have a polling card to be able to vote, which is not the case. If people have lost one of their polling cards—for instance, their referendum or their local election polling card—the danger is that they will think they are able to vote in one, rather than both. That is why it would be better to combine.

[John Mann]

I am following my hon. Friend’s logic, though he is beginning to lose me. Surely if there were more than one polling card per election, the chance of losing the polling card would be reduced, and more of our voters would turn out and vote because they have a polling card. Is he not proposing an anti-Labour amendment?

[Chris Bryant]

It is not those of us on the Opposition Benches who table partisan amendments. Only those on the Government Benches table partisan legislation. It is not my intention to benefit or disbenefit anybody, other than benefiting the ordinary voter who wants to be able to cast their vote in as many elections as they choose.

[Mr Dodds]

Does the hon. Gentleman agree that whether there are combined or separate polling cards, there is a need for the chief electoral officer in all areas, particularly in Northern Ireland, to do more to protect the integrity of all such official documents? We had examples in the last parliamentary election of one party in particular producing its own official polling cards, which caused utter confusion and deceived people. Can we ensure that when the polling cards are produced, proper policing takes place to prevent people from abusing those official cards?

[Chris Bryant]

If multiple polling cards go to each individual elector, in a household where there are five people living and two elections taking place, that would be 10 polling cards turning up. Apart from anything else, there is quite a strong likelihood that they will all get binned. The other difficulty is that political parties will step into the breach and produce leaflets which say, “You may not want to vote in the AV referendum, or you may want to vote in a particular way, but don’t forget, you’ve also got the Assembly elections.” Different political parties may want to step into the breach in various ways.

[Mark Durkan]

Surely if we have separate polling cards for each of the polls taking place, whether those are elections or referendums, we will get more of the problem of some cards being delivered and some not, which has been a constant problem in recent elections in Northern Ireland. In my constituency in particular, there has been an ongoing issue concerning postal workers, who feel that they are not getting paid the same for delivering election-related material, whether it is from parties or from the electoral officer. We will only add to those difficulties, which have meant that party material is not delivered.

[Chris Bryant]

Schedule 2 relates only to England, and the Post Office does not make such deliveries. Most local authorities use council staff to deliver polling cards. That is certainly true in some parts of England. I have a concern that with many fewer council staff, following the cuts that are likely to come, it will be more difficult for them to do so.

My basic point is that the returning officer should make it clear to each voter that they can vote in X election, Y election and the referendum, and that they can take their pick whether they want to take part in all of them, and whether they want to vote by post or turn up. Providing one piece of paper would make more sense than providing two, three, four or whatever to each voter. That might also save paper and administrative costs.

Incidentally, since each polling card must show the voter’s name, address and polling number and the address of the polling station, there is no reason why it should not state clearly which ballots that voter can take part in. That would meet what I think will be quite a complex issue—the fact that the franchise for the referendum is different from that for any of the other elections taking place on the same day.

Still on new schedule 2, which relates to England, our amendment (e) deals with separate ballot boxes. The Government state in paragraph 18:

“(1) If the counting officer thinks fit”—

a phrase they often use—

“the same ballot box may be used at the polls for the referendum and the relevant elections.

(2) Where separate ballot boxes are used, each must be clearly marked to show—

(a) the poll to which it relates, and

(b) the colour of the ballot papers that should be placed in it.”

That is wholly inappropriate. It would make far more sense to have separate ballot boxes for the referendum and for the relevant elections. The Government already say that the colour of the ballot papers should be different, so it would mean greater simplicity for voters to be able to turn up to a polling station, get, let us say, a light green ballot paper for the referendum and a white ballot paper for the local election in England, and see a little sign saying that green ballot papers go into one box and white ballot papers into another. I should have thought that that would make the process of verification of votes simpler for the vast majority of returning officers and counting officers.

[John Mann]

Aside from the problems that would be caused to those, including Members of the House, who are colour blind, why is my hon. Friend putting such additional complexities on voters, including elderly voters who may well have eyesight problems? Some voters in their 80s or 90s choose to go to the polling station. Why put complications in the system of voting? Where is the logic?

[Chris Bryant]

I do not think I am making the system more complex. It makes the system more complex if there is just one ballot box for two completely different sets of propositions. There will be two different electoral registers—we will come to the issue of electoral registers later—and those who can vote in one ballot will not be the same as those who can vote in another. To make sure that the ballot is correct, and that people are not given ballot papers when they are not entitled to them, and to make sure that the administration of the counting of the votes can take place properly, it would be better to have separate ballot boxes.

[Gordon Birtwistle (Burnley) (LD)]

I dread dragging the debate on any longer than is necessary, but in Burnley at the election in May we had one ballot box for both the local election ballot papers and the general election ballot papers. It caused no trouble whatever. If we had two boxes, the reconciliation of the ballot papers in either box would require them all to be emptied out, because people will make mistakes. I can see no sense in having various ballot boxes. The present system has worked for years. Why change it now?

18:29

[Chris Bryant]

I just think it is simpler to be able to separate them before starting. Of course, if somebody puts the wrong ballot paper in the wrong box, that is not a problem. Some other countries use what the Labour party used for its elections—of the leader of the Labour party, the national executive committee and so on—earlier this year: a single ballot paper covering a multitude of different elections. The voting system used in each of those elections was different, which confused some voters. Instead of a single ballot paper with lots of different elements on it, it is better to have separate ballot papers, and therefore separate ballot boxes.

[Mr Mark Williams (Ceredigion) (LD)]

Does the hon. Gentleman think that the system used in Wales for the National Assembly elections needs reforming on that basis, because we have two ballot papers—one for the list and one for the constituency contest? They all go in the same ballot box and are sorted out later.

[Chris Bryant]

We will come later to the question of which ballots is counted first. The Minister has said that he would like the elections counted first, but it will be difficult to do that until all the ballot boxes have been emptied and all the verification done. It would be swifter if we had a ballot box that, in 99% of cases, contained no mistakes and was for one set of ballot papers and not more.

[Andrew Gwynne]

May I advise my hon. Friend that the experience in Denton and Reddish on 6 May this year was quite different from that of the hon. Member for Burnley (Gordon Birtwistle)? In some of the polling stations, particularly in the Stockport part of my constituency, the ballot boxes were full before the end of the day, leading to the polling clerk having to shove rulers into the ballot boxes to try to make space for extra ballot papers.

[Chris Bryant]

I have seen the same myself in by-elections in Hackney and council elections elsewhere. That can happen in just one election, so it is far more likely to happen in combined elections, which is why it would be simpler to be able to separate the ballot papers.

[Andrew Gwynne]

To clarify, on 6 May, we had combined elections in Denton and Reddish, to both Stockport and Tameside metropolitan borough councils and to this place.

[Chris Bryant]

I am glad that my hon. Friend was returned with a decent majority; there cannot have been too much of a problem. None the less, I think that my amendment would provide greater clarity.

Amendment (f) to new schedule 2, entitled “Combination of polls: England”, relates to the publicity provided in polling stations. Polling stations contain some information about how people are to vote, mark their vote and all the rest of it. Our simple point is that there should be similar information on the referendum. Our amendment reads:

“The Electoral Commission are to supply posters to be displayed in every polling station used for the referendum, which give neutral information on first past the post and alternative vote systems that are the subject of the referendum, subject to agreement by the Speaker’s Committee on the Electoral Commission.”

The only additional element that need concern us is our suggestion that the matter be referred to the Speaker’s Committee on the Electoral Commission. We suggest that simply because what might not look to one person like a partisan presentation of the case for the alternative vote or first past the post might do so to the weathered eye of a politician. That is why information should be provided in the polling station. However, anything trying to explain the two voting systems should have been agreed by those here who represent different sides of the argument on the referendum.

Amendment (g) relates to registers. The Government’s measures allow for a single electoral register in the polling station. A voter will come in, provide their name and address—in Northern Ireland, they have to provide more information—or their polling or identifying number, and then be given the relevant number of ballot papers. The problem is, however, that the franchises are different. In Newport, for instance, 1,000 voters will be able to vote in the Welsh Assembly elections who will not be able to vote in the referendum. The Government’s provisions allow for that by suggesting that one mark be made against the names of those voting in all of the elections, and another against those of anyone who chooses not to vote, or who cannot vote, in one or more of them. That will lead to instances in which people are given ballot papers inappropriately. We have all heard of instances when that has happened because there has been a shared register. I therefore urge the Government to accept separate registers for the separate franchises. That is the best way to ensure that there is no inappropriate giving of ballot papers to people who cannot vote in one or other of the polls.

[John Mann]

On this occasion, my hon. Friend has not lost me with his amendment, although I am astonished at where it has originated. Will he explain exactly how it will be more effective and quicker for staff at a polling station to have two separate registers, given that they will not know which elections people are eligible to vote in, and especially given that, under another of his amendments, voters would have only one polling card to present? Would his amendment (g) not lead to the possibility of queues not just at 10 o’clock but throughout the day, with people trying to find out whether they were eligible to vote, because staff would have to check two registers rather than one?

[Chris Bryant]

No, what should be happening is this: a voter eligible for one election presents themselves at a polling station and goes to the electoral registration officer, who marks them off on the list and gives them a ballot paper for just one election. If the voter is eligible for the second election, the officer marks them off on the other list and gives them the relevant ballot paper. That is not vastly different. It simply means separate marked registers for each election, which will lead to fewer confusions about who is entitled to vote in each election.

[Roger Williams]

Does the hon. Gentleman agree that in the vicinity of the polling station there might be a helpful Liberal Democrat, who could help the voters and point out to them in which elections they could take part?

[Chris Bryant]

It depends which kind of Liberal Democrat it is. If they are from one side of the street, they will say one thing, and if they are from the other side, they will say exactly the opposite. Anyway, people with rosettes will not be in the polling stations advising people. It is not a good idea for people with partisan affiliations to be telling people whether they can vote when they turn up at a polling station. However, I note that that is the partisan direction in which the Liberal Democrats are going. I had thought better of the hon. Gentleman.

[John Mann]

I remain mystified, because my hon. Friend is now saying that there is an issue with the marked register. Does the issue with the marked register not relate to how postal votes, particularly late postal votes, are added to the marked register, not to whether a European vote can be identified on the register?

[Chris Bryant]

I think my hon. Friend misunderstands the situation. The Government want a single register with the officer deciding how many elections a person may vote in. I am suggesting two registers, one for the referendum and one for all the other elections, because the franchise for the elections would be the same. That would provide greater clarity when people are voting. [Interruption.] It would be the same in England. We are discussing new schedule 2, as I am sure the Minister, who is quietly chuntering in his charming way, will acknowledge.

[Jake Berry]

I should be interested to know how many elections the hon. Gentleman has run, or how many returning officers he has spoken to about the amendments, because they all seem to imply that what he thinks should happen in the election trumps what a returning officer believes should happen in his own election in his own division.

[Chris Bryant]

No. In relation to some of the measures, we think it important to look at whether there should be uniformity throughout the country for a referendum that applies to the whole country, such as in the colour of ballot papers. Broadly speaking, I think that there should be such uniformity, as does my party. Some of the other amendments are probing, because the aim of legislative scrutiny, especially when the Government have at a late stage tabled 110 pages or so of amendments, is to go through them and ensure that we have made the right decision. The hon. Gentleman is upset because he did not manage to table an amendment to the Government’s proposed changes. He had not spotted that he disagreed with them, but perhaps next time, when another piece of legislation comes forward, he will table one.

[Jake Berry]

My point is that I do agree with the Government. The returning officer should have the right to make the decision.

[Chris Bryant]

Well, the hon. Gentleman did not make that point earlier, but if he now agrees with the Government that must be because a Whip has spoken to him—or somehow or other. Anyway, he agrees with the Government, and I am sure that the Minister will be absolutely delighted about that.

[Kevin Brennan (Cardiff West) (Lab)]

The hon. Member for Damascus.

[Chris Bryant]

As my hon. Friend says, the hon. Member for Rossendale and Darwen (Jake Berry) has obviously become the hon. Member for Damascus. There are quite a lot of them in the Liberal Democrat party as well, so I am sure he and his friends will feel very much at home.

We have also tabled some consequential amendments, such as amendment (h), and that brings us to amendment (i) to new schedule 2, which is entitled, “Combination of Polls: England”. The amendment relates to who is able to attend the count. I accept that I have not consulted widely with returning officers on this matter, because my experience is that different returning officers—[Interruption.] The hon. Member for Crewe and Nantwich (Mr Timpson) mouths at me, “What page?” Amendment (i) is on page 790 of the amendment paper, and it reads:

“Paragraph 40, at the end of sub-paragraph (3) insert ‘or

(c) the person is a Member of Parliament.’.”

The amendment would merely allow Members, as of right, to attend the count on the AV referendum. We have not been able to word the amendment, “the person is the Member of Parliament for that constituency”, because thus far we have not won the argument with the Minister about making the count happen at a Westminster parliamentary constituency level, but the amendment would allow Members to attend the count.

[Mr Tom Harris]

I rise only to remind the Committee and particularly the hon. Member for Damascus about our argument in the previous Parliament which proved there is little point in consulting returning officers on some matters. Even though it was the will of the House that the general election count take place on the night of polling, primary legislation was required to force returning officers to agree to count the ballot papers.

[Chris Bryant]

I am not quite so negative as my hon. Friend about returning officers, but the hon. Member for Epping Forest (Mrs Laing) had an excellent debate in Westminster Hall the other day—[Interruption.] She is not in her place at the moment, but I am sure she will be later.

[Mr Harper]

The hon. Gentleman was gesturing.

[Chris Bryant]

Yes, I was gesturing to the hon. Lady as if she were there, because in spirit she is sitting just over the Minister’s shoulder, keeping a beady eye on him.

My point is that returning officers often have not only the law breathing down their neck, but elected Members who, in particular at the moment, are understandably worried about the financial situation. They will be wondering whether it is better to spend money on electoral registration, the proper running of election counts and buying more polling station equipment, or on keeping a swimming pool open. I understand the pressure on returning officers, who want clarity from Parliament, but sometimes, as my hon. Friend the Member for Glasgow South (Mr Harris) said, they are wrong.

18:45

There is remarkably little freedom in law to give out a ballot paper after 10 o’clock, as the Minister reminded us in a debate the other day—[Interruption.] Indeed, there is no leniency or flexibility. However, some returning officers in the general election did give out ballot papers after 10 o’clock, because there had been extensive queues, so there has to be a bit of give and take in the relationship between Parliament and returning officers. Nevertheless, on the matter before us, I have often found that returning officers, who in the Government’s new schedule would be given a degree of flexibility about whom they allowed to attend the count, choose not to allow the Member, as of right, to attend. It is a relatively minor point, but Members should be allowed to attend.

[Andrew Gwynne]

My hon. Friend made a very good point about basing the referendum count on parliamentary constituency boundaries. One third of my constituency is in Stockport metropolitan borough and two thirds are in Tameside metropolitan borough, and, were the referendum to be counted on a local authority basis, I would have two counts taking place at the same time.

[Chris Bryant]

Yes—[Interruption.] The Deputy Leader of the House says that he has that all the time. He obviously likes being “kebabbed” in that way—or perhaps that is spatchcocked, I am not sure.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

That is more spatchcocked.

[Chris Bryant]

The hon. Gentleman agrees.

The point is that our amendment is so drafted because, otherwise, a Member might be able to attend half the count in relation to the referendum on the alternative vote, but not the other half in relation to his constituency. We have tabled the amendment so that any Member of Parliament would be able to attend a referendum count. I would hope that most returning officers would not feel troubled by that, but some have explicitly said that the Member of Parliament is not, as of right, allowed to attend.

We have tabled one further amendment that is of significance and not just consequential on others. Amendment (j) relates to new schedule 2 and is about the priority in counting election papers.

[Ian Austin (Dudley North) (Lab)]

I may have missed this point earlier, but will the referendum votes be counted by ward and then by either local authority or constituency area, or by constituency area or local authority first? Will they be mixed together and counted, or will they be counted by local authority electoral ward first?

[Chris Bryant]

No, they will not be counted by local authority ward. The procedure is different in England, Wales, Scotland and Northern Ireland of course—just to make it easier for everybody. We tabled an amendment saying that it should be done in the same way throughout the whole country. [Interruption.] The Minister says that his provisions would make the procedure easier, but I am not sure that they would. In Wales, the procedure will be based on Assembly constituency boundaries, which are the same as parliamentary boundaries. In England, it will be based on local authority boundaries. In Scotland, it will be based on Scottish parliamentary boundaries, which are not coterminous with Westminster parliamentary boundaries—

[Mr Tom Harris]

What about in Dudley?

[Chris Bryant]

In Dudley, which is not a separate nation yet, the procedure will be based on local authority boundaries. I cannot remember the provision in relation to Northern Ireland, but I am sure that the Minister will enlighten us. [Interruption.] It will be based on the whole of Northern Ireland; that is right.

On the question of priority when counting votes, we believe, as I think the Minister does, that it is important to count first the ballots for elections in which somebody is standing for office, and the referendum afterwards. If the rules in the Government’s proposed changes are agreed to, however, that will not be entirely possible, because the ballots will first require a degree of verification, and we will have to empty all the ballot boxes in order to do so. None the less, we believe that in order to ensure that counting officers give priority to the counting of ballots cast in the respective elections to the Northern Ireland, Scottish and Welsh devolved Administrations, and to local council elections in each part of the United Kingdom, amendment (j) would need to be added to new schedule 2 in relation to England.

I am sure that you will be aware, Ms Primarolo, that we have tabled similar amendments to new schedules 3, 4 and 5 in relation to Wales, Scotland and Northern Ireland. I do not intend to refer to those now, because this is not the last time that the Government will present amendments on this subject, having decided to go through the ludicrous process of having statutory instruments that will not have been considered in advance of next week’s Report stage before they then table additional amendments. I think that that is inappropriate.

Let me refer to the report that was published today by the Welsh Affairs Committee, in which John Turner, the chief executive of the Association of Electoral Administrators, who, as the hon. Member for Damascus—the hon. Member for Rossendale and Darwen—will know, is head honcho among returning officers, said that

“drawing on the experience of Scotland in 2007, the AEA considered there was a high possibility for great confusion amongst voters…electoral events, if they are of a different nature, should not take place at the same time. As a matter of policy and principle, we subscribe to that. Therefore, we have concerns about the possible implications for voters in understanding, or being confused by, the different ballot papers they are presented with for different electoral events on the same day.”

We would contend, particularly because of the haste with which the Bill has been brought forward and the lack of pre-legislative scrutiny, that it will be even more difficult for returning officers to be able to do their job in the elections and to provide greater clarity for local voters.

[Mr Harris]

Has my hon. Friend received any information from the Government about the decision by the Scottish Parliament to move the local authority elections in Scotland back by one year specifically to avoid the confusion encountered in 2007? As the Government now want to have a referendum on the same day as the Scottish Parliament elections, does that mean that they believe that the Scottish Parliament was wrong to move the local elections back by one year?

[Chris Bryant]

I presume that they must, because that is why we are now going to have all three of these things on the same day in Northern Ireland, despite the experiences in Scotland, which were aggressively excoriated by the Liberal Democrats when they were on the Opposition Benches—although they seem to have forgotten all the speeches that they made then.

[Mr Alan Reid (Argyll and Bute) (LD)]

As I am sure the hon. Gentleman is aware, the difference is that the Scottish council elections are held under the single transferable vote, so the voter has to number the ballot paper with their first, second and third preferences. In this case, all ballot papers will be marked with a single cross, so the possibility of confusion does not arise as it would if we were having two elections on the same day under different electoral systems.

[Chris Bryant]

The hon. Gentleman is a Liberal Democrat, and I am sure that he knows all about confusion, especially at the moment. I think that he is trying to quibble to end up with a position that he can proudly defend. In 2007, he would probably have been saying that the elections should not have been held at the same time, so he should be advancing the same argument now. However, I leave that for him and his conscience.

The Welsh Affairs Committee cited Lewis Baston, the senior research fellow with Democratic Audit, who argued that the coincidence in 2015—if the Fixed-term Parliaments Bill goes through in the way that the Government intend—of a general election with Assembly elections in Wales and parliamentary elections in Scotland is even more troubling because

“the elections for Westminster and the Assembly would be taking place on different systems”—

precisely the point made by the hon. Member for Argyll and Bute (Mr Reid)—

“on the same day and, more complicatedly, on two sets of boundaries which will hardly ever correlate with each other.”

I am absolutely certain that because the hon. Gentleman is a very honourable gentleman who is always consistent with his arguments, he will therefore vote against provisions in the Fixed-term Parliaments Bill whereby elections in Scotland and Wales are to be held on the same day as the general election. I can see from his smile that I already have his vote in relation to any such amendments.

I am sorry that I have been unable to deal with all the other amendments that we tabled on Wales, Scotland and Northern Ireland, but some of them merely repeat the other amendments to new schedule 2 as regards England. I hope that we will have an opportunity to vote on quite a number of these proposals.

[Mr Harper]

First, I will pick up several issues raised by the hon. Member for Rhondda (Chris Bryant) and other Members, and at the end of my remarks I will ask the Committee to vote for my new clause and new schedules and to vote against all the amendments tabled by the hon. Gentleman. For colleagues requiring a simple way of thinking about it, that is what I am asking them to do, and they can now choose whether they want to listen to the rest of my remarks.

[Mr Dodds]

The Minister says that he is going to recommend to his hon. Friends that they vote against all the amendments. Does that include the amendment about giving priority to the counting of votes for Assembly elections or local elections over the referendum, given that I seem to remember him saying that he would support such a provision?

[Mr Harper]

We had a debate on this earlier, but I do not think that the right hon. Gentleman was in his place at the time. If he can wait until I get to that section of my speech, I will discuss it then. However, we do not think that his amendment is necessary to achieve the outcome on which he and I agree.

[Mr Tom Harris]

When the Opposition expressed reservations about the rapidity with which the Government were pushing the Bill through, we were assured that a certain number of days on the Floor of the House would be given to the Committee stage to enable Members from all parties to express an opinion. The Minister is now saying that he is recommending opposition to every single amendment tabled by the official Opposition. Is this yet another example of openness and the new politics?

[Mr Harper]

I have said that I am going to explain why hon. Members should vote against the amendments; I think that there are very good reasons for that. I have listened carefully and at length to the hon. Gentleman, as I have on every day of these debates. I want to use this as a good opportunity to talk about these matters.

I am happy to admit that we may not have reached perfection, but when one considers how we have conducted ourselves on this Bill compared with what Labour did when in government, it is clear that we have made tremendous steps forward in allowing the House time to consider it. Last week the hon. Member for Rhondda referred to the Constitutional Reform and Governance Act 2010, which was a similar kind of Bill, and said we should have allowed a day for each clause of our Bill. If a whole day had been spent on each clause of the CRAG Bill, which had 95 clauses, we would have had 24 weeks of debate—and of course we did not. Entire new parts and several stand-alone clauses were added which bore no relation to any existing provisions in the Bill. Only six days in Committee were allowed for those 95 clauses, and only a single day to debate all the new clauses on the alternative vote. There were multiple knives in the programme motion to restrict debate, and only one day for Report. I am happy to accept that we may not be perfect, but we have made tremendous steps forward.

[John Mann]

Is the Minister daring to come to this House and suggest that failing to put this Bill into a proper Committee, with week after week of scrutiny—I would have been happy to serve on it, and to stay overnight as well if necessary—and railroading this gerrymandered Bill through Parliament is in some way democratic? How has he got the nerve to come up with such nonsense?

[Mr Harper]

By having a Committee of the Whole House, we have enabled every Member to be here. I have been here for all five days of debate, and enjoyed them tremendously. I am afraid that I cannot agree with the hon. Gentleman on this particular issue. If he wants to wait, however, he will find that, much to my surprise, I agree with several of his points about the amendments tabled by the hon. Member for Rhondda.

[John Mann]

But Members such as myself have tabled amendments, and because there has not been enough time, they have not even been scheduled for debate. The gerrymandering being attempted is not even being debated in the Committee, because of the timetabling. This collapsing coalition has put together a democratic outrage.

[Mr Harper]

That argument might be credible if I did not remember all the programme motions that the hon. Gentleman voted for in the last Parliament. Indeed, Labour Members opposed both the second programme motion on this Bill, which added six hours of debate, and the original programme motion, which ensured that we had more debate last week than we otherwise would have done. When we gave the Committee more time—to take account of the statement on the strategic defence and security review and the, quite rightly, lengthy statement on the comprehensive spending review—Labour Members voted against extra compensatory time. Labour never gave such compensation when we debated important provisions.

19:00

[John Mann]

I thank the Minister for generously giving way again in the limited time available today. Does he not remember criminal justice Bills of the past, for example, when some of us sat in Committee every Tuesday and Thursday for three months going through them clause by clause, word by word? In the case of the Legal Services Act 2007, amendments were tabled by Members in all parts of the Committee week after week, to improve the Bill. The then Government were sensible enough to listen to their Back Benchers in detail in Committee.

[Richard Graham (Gloucester) (Con)]

Will the hon. Gentleman give way?

[John Mann]

Why do the Minister and his mate from the Liberals—the Deputy Prime Minister, who cannot even turn up—not have the courage of their convictions and listen to arguments on amendments, including from their own side of the House, to improve their rotten Bill?

[Mr Harper]

I can see why my hon. Friend the Member for Gloucester (Richard Graham) was confused and tried to intervene on the hon. Gentleman. That was a very lengthy intervention, almost worthy of a speech.

We have made considerable provision for debate, and when the Government provide extra time, the Committee needs to debate a Bill sensibly. To be fair, most Members have done so, but I cannot help but observe that most of the extra time that we added for the past couple of days was almost entirely used up by the hon. Member for Rhondda. Rather than comment, I will let Members judge for themselves whether he used that time well.

[Angela Smith]

However much time the Government give the Bill on the Floor of the House, it will not make up for the lack of the pre-legislative scrutiny that it should have had.

[Mr Harper]

My hon. Friend the Member for Brecon and Radnorshire (Roger Williams) dealt with that point very well in his intervention. As my hon. Friend the Deputy Leader of the House has said, if there was pre-legislative scrutiny of everything at the beginning of a new Parliament, with a new Government having been elected, there would be a huge gap in the programme. He has made it clear that taking the Government’s programme as a whole, we will almost certainly end up allowing more scrutiny of draft Bills than any previous Government.

[Angela Smith]

With respect, is not a Bill relating to constitutional reform of such significance that the Government should have waited and gone through a pre-legislative scrutiny process before bringing it to the House?

[Mr Harper]

All that I can say is that we can examine the comparative records. In the last Session under the Labour Government only four Bills had pre-legislative scrutiny. We will end up with twice as many, so our overall record will bear comparison.

I am not sure whether he meant it, but the hon. Member for Alyn and Deeside (Mark Tami) accused us of putting the horse before the cart and proceeding at a gallop. I represent a rural area, so I think I have got this right: putting the horse before the cart seems to be the right thing to do, as does proceeding at a gallop. I do not see any problem with that.

[Mark Tami]

It was actually my hon. Friend the Member for Rhondda (Chris Bryant) who said that, not me. As I asked the Minister earlier, will he resign now?

[Mr Harper]

I will not, but I will of course correctly assign the comment to the hon. Member for Rhondda. It perhaps demonstrates that he needs to learn a little more about horses and carts before he makes such allusions.

The hon. Member for Rhondda mentioned combined elections and said that the Government had chosen the date of other elections for the referendum. I cannot help but observe that in both 2001 and 2005 the previous Government specifically chose to have general elections on dates when county council elections were already planned. They knew that in advance, and the elections were combined. They ran perfectly well and passed off without incident. I do not have any complaint about that, but for the Opposition to complain about our choosing to have a referendum on a date when there are other elections seems a bit rich.

[Chris Bryant]

I think I am right in saying that the hon. Gentleman has just said that the 2001 general election was held on the same day as the local elections. It was not: it was held in June, which was when I was first elected. That is yet another reason for him to resign.

[Mr Harper]

No, not at all, because the local elections were also held in June, because of the foot and mouth outbreak. Both sets of elections were moved, and they were on the same day, so it is the hon. Gentleman who should resign. I remember that very well, because my constituency was badly hit by the foot and mouth outbreak and the shambolic way in which it was handled by the Labour Government. That was one good reason why I was elected in 2005, and re-elected this year.

[Kevin Brennan]

On pre-legislative scrutiny, if we are going back to 2001, I will mention that the first Bill that I served on in that Parliament, the Adoption and Children Bill, went through a Special Standing Committee procedure. We had some evidence sessions before the Bill was considered in Committee. It would have been perfectly possible for that to happen with this Bill. Would not the opportunity to take evidence for a few days before Committee stage started—rightly, on the Floor of the House—have made the Bill stronger, and its passage through Parliament better informed?

[Mr Harper]

I have said both today and on earlier days that notwithstanding the short time available to it, the Political and Constitutional Reform Committee did a sterling job of taking evidence and producing a comprehensive report on the Bill. We have examined what it said with great care, even though we do not necessarily agree with it.

The other point that I would make on that subject is that at business questions last week, when some hon. Members were complaining about the amount of time available, an Opposition Member who speaks for her party from the Front Bench complained that we were allowing too much time. She said that it was not very helpful that the House was sitting late, and asked what we were going to do to make the hours of the House more “predictable and family-friendly”. I can only observe that there is a balance to be struck. Some Members think we should sit all night, but when we allow more time, others criticise us for making the House less family-friendly. Opposition Front Benchers cannot have it both ways.

I wish to pick up some of the points that the hon. Member for Rhondda made. He alluded to what I said about combining elections in Northern Ireland, and said that there was not currently any provision to do so. There is provision to combine local elections in Northern Ireland with UK parliamentary elections, and that already takes place, but there is no power in existing legislation to combine Northern Ireland Assembly elections with Northern Ireland local elections. If we did not have such provision in the Bill, they could not be combined and would have to be run separately.

The hon. Gentleman’s amendments seeking to remove the provision for combining elections would not prevent elections from happening on the same day. They would just make it impossible to combine them. They would have to be run completely separately, which would incur extra cost and more complexity. Returning officers and counting officers could not ensure that the arrangements for those elections were brought together to work more sensibly. Those proposals would therefore not take us any further forward. We would still have the elections, but there would be more cost and complexity. He does us no favours by suggesting that.

I made a point about poll cards earlier, but I shall repeat it, because it came up in the contributions of the hon. Gentleman and a number of other hon. Members. Poll cards will confirm the voting arrangements that will apply to particular electors. When they get their cards, electors will know whether they have a postal vote in place, which of the elections they are entitled to vote in, and therefore whether they need to apply for a postal vote for any of the elections. The fact that poll cards will have that information on them will be very helpful.

The hon. Member for Rhondda also mentioned some of the other elections that we propose to combine. I want to correct a small error. I think that I said that five mayoral elections were planned for next year, but the figure is four. I shall list the places for the hon. Gentleman’s benefit: Bedford, Middlesbrough, Mansfield and Torbay. It is possible that further mayoral elections or by-elections might take place next year, and our combination provisions would cover them.

The hon. Gentleman mentioned local government referendums. I understand that several petitions have been registered with local authorities about referendums for directly elected mayors. We think that at least some local referendums are likely to take place. If they are held on the same day, we and the administrators believe that it would be sensible to combine them.

I have already spoken about amendment (a) to new clause 20 to limit the combination of elections. The amendment would not stop the elections happening; it would simply mean that administrators could not take them together. That does not help. I understand the views of hon. Members who do not agree with combination, but we had a lengthy debate of around five and quarter hours about that on the first day of our Committee proceedings. We had the argument and the Committee made a decision. If we accept that the elections will take place on 5 May, the Government amendments intend to ensure that they work sensibly, instead of rerunning the debate about whether they should be held on the same day.

[Chris Bryant]

I understand the thrust of the Parliamentary Secretary’s remarks, but I am not sure that he is right. New schedule 2 refers to England, and although we discussed other elections in Wales, Scotland and Northern Ireland, we did not have a debate about whether English local elections should be held on the same day as the referendum.

[Mr Harper]

No, but we had a debate about whether the referendum should take place next May. If it does, it will be on the same day as the local authority elections. The Committee made a decision about the day on which it wanted the elections to take place—5 May.

Amendment (c) to new schedule 2 deals with the colour of the ballot paper. The current wording of new schedule 2 matches the version that is used in existing combination legislation, which has worked well for several years. The first sub-paragraph of amendment (c) is unnecessary. We do not believe that it is appropriate to give the chief counting officer first choice of colour for the ballot paper for the referendum, partly because of showing respect to the other polls on that day. I cannot remember who raised the point, but there may well be custom and practice about the colour of ballot papers for particular elections in different parts of the UK. We think it appropriate to allow returning officers to continue with their usual custom and practice and to choose a different colour for the ballot paper for the referendum to make it easy for voters to tell the papers apart.

Much to my surprise, amendment (d) is one of two topics on which I agree with the hon. Member for Bassetlaw (John Mann). The flexibility that we have allowed on combining poll cards would allow counting officers to make local decisions, which reflect conditions on the ground. There may be particular reasons for that. Returning officers have adduced logistical reasons why printers, distributors and sometimes other administrators cannot combine poll cards. It is not sensible to legislate for something that cannot be delivered on the ground. Our proposals are more sensible and leave the decisions in the hands of officials who can respond to local conditions.

On ballot boxes, my hon. Friend the Member for Burnley (Gordon Birtwistle), who is in his place, made the point well that we want to allow flexibility for administrators to do what makes sense. In some places, where there is only a small polling station, multiple ballot boxes might constitute overkill. Even if there are separate ballot boxes, one cannot guarantee that papers from the election or the referendum do not go into the other ballot box. One must therefore still take all the papers out, separate and verify them. Again, it is much more sensible to leave that decision to administrators, who can take account of local circumstances.

19:15

On amendment (g), which deals with the register, I again agree with the hon. Member for Bassetlaw. Our approach permits but does not require registers to be combined. Again, that is the standard practice for combined polls. Amendment (g) would add much extra complexity and force counting officers to maintain and mark several separate registers. Those decisions should be made locally. As has been said, local people have to run the elections, and they will make sensible decisions.

The right hon. Member for Belfast North (Mr Dodds) spoke about counting, and amendment (j) deals with counting priority. We do not believe that the amendment is necessary. Government amendments on combination already provide that returning officers must count the votes for the elections as soon as practicable after receiving the separated ballot papers from the counting officer. The chief counting officer has a power of direction over the timing of the referendum count. We have made it clear, as has the chief counting officer—the chairman of the Electoral Commission—that the votes in the referendum on the voting system are expected to be counted after those in the elections.

Verification was mentioned, and it must conclude before any count is declared, but it is not necessary for it to conclude before the counts start. The election counts can therefore start straight away, but they cannot conclude until the verification of both the elections and the referendum is done to ensure that all ballot papers have been accounted for.

Amendment (i) deals with Members of Parliament attending counts. As drafted, the amendment is flawed because it would allow Members of Parliament to attend the counts for local authority, mayoral and parish council elections and the local government referendums, but it would not allow them to attend the count for the referendum on the voting system for the House of Commons. I do not think that the amendment reflects the intention of the hon. Member for Rhondda.

I expect the count for the referendum on the voting system for the House not to take place until Monday 9 May, because of prioritising the elections and our respect for the fact that in Northern Ireland counts do not usually take place on Sundays. Of course, on Monday 9 May, Members of Parliament will not be able to attend counts because they will be in the House attending to their important parliamentary duties. If Members of Parliament do not have important parliamentary duties in the House, they could attend counts in the usual way, either by applying to the Electoral Commission to become accredited observers or by being appointed by a permitted participant—one of the political parties—as a referendum agent. Amendment (i) is therefore unnecessary.

[Chris Bryant]

I seek clarification from the Parliamentary Secretary. He said that the three territorial authorities had laid their statutory instruments, but there is nothing in the Vote Office yet. The Scottish statutory instrument is available online, but not in the Vote Office. I hope that he will check the facts for us later.

[Mr Harper]

My information was that we had laid the three territorial orders in the Table Office. I think that that is correct—indeed, I confirm that it is.

[Kevin Brennan]

Do I take it from the Parliamentary Secretary’s comments about attending the count on a Monday that he expects no member of the Government to attend any of the counts for the AV referendum?

[Mr Harper]

I did not say that. I assume that most Members will have duties in the House and in other places. If they do not, of course they can attend the counts. However, I foresee that most Members of Parliament will have important matters to tackle here, instead of attending counts in local authority areas or in Scottish Parliament, Northern Ireland Assembly or Welsh Assembly constituencies.

[Mark Durkan]

rose—

[Chris Bryant]

rose—

[Mr Harper]

I am faced by a galaxy of choices. Let me give way to the shadow Minister first and then to the hon. Member for Foyle (Mark Durkan).

[Chris Bryant]

The Minister may be right that somebody has given the statutory instruments to the Table Office, but they are not available in the Vote Office. It would be for the convenience of the Committee if the Government provided copies to the Vote Office today, so that hon. Members can read them before we finish the amendments.

[Mr Harper]

I said that the Government would table the territorial orders today, because it is in relation to those orders—now that we have them and they are available—that we will be able to table amendments after the Committee stage finishes, for discussion on Report. The new clause and the Government new schedules that we have been debating today, and on which I will ask hon. Members to vote, refer to the law as it currently is, prior to the tabling of the territorial orders. Those orders are not needed for Members to deliberate today; they are needed for Members to table amendments for debate on Report, and they will be available to Members in good time for those debates.

[Chris Bryant]

I am just asking a simple thing, which is that the Minister should help the Committee. He says that all the statutory instruments have been tabled, but although the Scottish one is available online, the Welsh and the Northern Ireland ones are not. Would it not be simpler if he provided a few copies to the Vote Office? What possible difficulty can that give him?

[Mr Harper]

As with his lengthy speech, the hon. Gentleman is just going around creating confusion where there is none. The territorial orders that we have laid today—and we have laid them today—will be available for Members in good time for the debate on Report. The debate that we are having today is about new clause 20 and the Government new schedules, which, as he well knows, relate to the law as it currently is, prior to the tabling of the territorial orders, so he is creating a problem where none exists.

[Mark Durkan]

The Minister referred to the fact that the provisions on postal votes in Northern Ireland, as provided for in the Government’s new schedules, are not the same as those provided for elsewhere. Given that he has spent a lot of time dealing with the various Opposition amendments, will he now address that issue? The hon. Member for Rhondda (Chris Bryant) said that there could be further amendments from the Government. Will the Minister also address that issue, and tell us whether we are awaiting further amendments from the Government on postal voting in Northern Ireland?

[Mr Harper]

This is not a secret: I set out what we were going to do in the letter that I sent to all hon. Members who took part in the debate on Second Reading, and to the Opposition and the leaders of each party represented in the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. What we are going to do is complex, but simultaneously straightforward, which is to have tabled the combination amendments today—that is, the new clause and the Government new schedules, based on existing legislation, which we are debating. The territorial orders updating the legislation have been laid today in the Table Office. When the Committee concludes today, the Government will, as I said in my letter, table amendments that we can debate on Report—if they are selected by the Chairman of Ways and Means—that will be based on the new legislation. The territorial orders that have been laid today will be available in good time for Members to decide whether they want to table any amendments for discussion on Report, because they will be available for Members to see tomorrow. I hope that that helps the hon. Gentleman.

I have set out, at some length, our response to the amendments standing in the name of the hon. Member for Rhondda. As I said at the beginning of this debate, I would urge hon. Members to support our new clause and our new schedules, and to oppose the hon. Gentleman’s amendments.

Question put, That the clause be read a Second time.

19:24

Division 96

Ayes: 335

---

Conservative: 268
Liberal Democrat: 52
Democratic Unionist Party: 7
Scottish National Party: 4
Social Democratic & Labour Party: 1
Plaid Cymru: 1
Green Party: 1

Noes: 207

---

Labour: 202
Scottish National Party: 2
Independent: 1
Alliance: 1

New clause 20 read a Second time.

Amendment proposed to new clause 20: (a), leave out subsection (1) and insert—

(1) Where the date of the poll for a local authority election in England is the same as the date of the poll for the referendum, the polls are to be taken together.’.—(Chris Bryant.)

Question put, That the amendment be made.

19:40

Division 97

Ayes: 222

---

Labour: 204
Democratic Unionist Party: 7
Scottish National Party: 6
Social Democratic & Labour Party: 1
Independent: 1
Plaid Cymru: 1
Alliance: 1
Green Party: 1

Noes: 317

---

Conservative: 263
Liberal Democrat: 53

Amendment proposed to new clause 20: (b), leave out subsection (4) and insert—

(4) Where the date of the poll for a Northern Ireland Assembly Election is the same as the date of the poll for the referendum, the polls are to be taken together.’.—(Chris Bryant.)

Question put, That the amendment be made.

19:53

Division 98

Ayes: 205

---

Labour: 202
Independent: 1
Green Party: 1

Noes: 326

---

Conservative: 264
Liberal Democrat: 52
Democratic Unionist Party: 7
Social Democratic & Labour Party: 1
Alliance: 1

Question put, That the clause be added to the Bill.

20:05

Division 99

Ayes: 327

---

Conservative: 266
Liberal Democrat: 51
Democratic Unionist Party: 7
Social Democratic & Labour Party: 1
Alliance: 1

Noes: 214

---

Labour: 204
Scottish National Party: 6
Independent: 1
Plaid Cymru: 1
Green Party: 1

New clause 20 added to the Bill.

[Chris Bryant]

On a point of order, Mr Streeter. As there was some discussion before that last set of votes about the statutory instruments to be laid by the Welsh Office, the Northern Ireland Office and the Scotland Office—

[Bill Wiggin (North Herefordshire) (Con)]

It is the Wales Office.

[Chris Bryant]

I apologise and am very grateful to the Whip for that.

These statutory instruments are now available in the Vote Office and I note that the Scottish one is 205 pages long. There are two Northern Ireland instruments, not just one as was stated earlier. One is 59 pages long and the other is somewhat shorter; the Welsh one is quite short too. Would it not be extraordinary if these were not to be debated properly before Report?

[The Temporary Chair (Mr Gary Streeter)]

I am very grateful to the hon. Gentleman for his point of order. I am sure that his comments have been heard by those on the Treasury Bench and the House is grateful to him for his assistance.

[Fiona Mactaggart (Slough) (Lab)]

On a point of order, Mr Streeter. I have participated in many of the debates on this Bill, but it has been drawn to my attention that the Parliamentary Secretary, Cabinet Office, the hon. Member for Forest of Dean (Mr Harper) suggested that I had earlier today requested that there be fewer hours spent scrutinising this Bill. What I specifically said was that there should be fewer hours after 10 pm spent scrutinising this Bill, and we would have been able to achieve that had he and his colleagues acceded to the Opposition request for an additional day to debate it.

[The Temporary Chair]

I am grateful to the hon. Lady. That is not a point of order for the Chair, but I am sure that she is pleased to have put the record straight.

New Clause 7

Variation in limit of number of holders of Ministerial offices

‘(1) The House of Commons Disqualification Act 1975 is amended as follows.

(2) For section 2(1) substitute—

“(1) The number of holders of offices specified in Schedule 2 to this Act (in this section referred to as Ministerial offices) entitled to sit and vote in the House of Commons at any one time, whether paid or unpaid, must not exceed 95 if the number of constituencies in the United Kingdom is 650.”.

(3) After section 2(1) insert—

“(1A) If the number of constituencies in the United Kingdom decreases below 650, the limit on the number of holders of Ministerial offices entitled to sit and vote in the House of Commons referred to in section 2(1) must be decreased by at least a proportionate amount.”.

(4) In subsection (2), after “subsection (1)”, insert “or subsection (1A)”.’.—(Mr Charles Walker.)

Brought up, and read the First time.

[Mr Charles Walker (Broxbourne) (Con)]

I beg to move, That the clause be read a Second time.

New clause 7 would amend the House of Commons Disqualification Act 1975, which currently sets the maximum number of Ministers allowed in this place at 95. As you know, Mr Streeter, part of this Bill, if passed, will bring about a reduction in the number of MPs from 650 to 600. My new clause is very modest in its scope. All I am seeking to do is to amend the 1975 Act to ensure that the ceiling for the number of Ministers is pushed down from 95 to 87, which directly reflects the percentage reduction in the number of Members of Parliament.

My new clause is very moderate. Many colleagues urged me to go further and to make a real assault on the patronage of the Executive, but I thought that that would be unreasonable and unreasonably ambitious. There might be voices of self-interest, largely residing on the Front Bench, who argue that we have the right amount of Ministers. They might even argue that we need more Ministers. I hope that I do not hear those arguments tonight.

[Sammy Wilson (East Antrim) (DUP)]

Might there not be even more Back Benchers interested in increasing the number from 95 to about 195?

[Mr Walker]

The hon. Gentleman makes his usual sparky intervention.

Rafts of leading academics and political commentators have recognised for a long time that there are far too many Ministers in this place. Sir John Major, the former Prime Minister, has argued that we could easily do as well with a reduction of 25% to 30%. Lord Turnbull, the former Cabinet Secretary, told the Select Committee on Public Administration earlier this year that the number of Ministers could be cut by 50%. Professor Anthony King has argued the same, as has Lord Norton of Louth.

Of course, those academics and political commentators are in good company. Our own Deputy Prime Minister argued in January that the number of Ministers should be reduced.

[Fiona Mactaggart]

Has the hon. Gentleman spoken more recently to the Deputy Prime Minister, because it is my impression that he is not likely to say today the things he said in January?

[Mr Walker]

The Deputy Prime Minister is a man of great integrity. I recognise that this is his Bill, and once he has heard the force of my argument he will rush here and demand a rethink from his Front Benchers.

Speaking at the Institute for Government in January, the Deputy Prime Minister called for the House of Commons to be reduced to 500 and for the number of Ministers across both Houses to be cut to 73. The Government’s demands are much more moderate. They are talking about reducing the size of the House to 600, but if we reduce it to 600, following the Deputy Prime Minister’s logic, we should reduce the number of Ministers by 15. That would tally with his mathematics, but, as I said, my new clause is modest. I am not calling for a reduction in the number of Ministers by 15. I know that many Members are demanding that I do that, but I shall not hear it. I am simply demanding a reduction in the number of Ministers by eight.

Many people here have argued privately in the corridors that there is no link between the size of the House of Commons and the number of Ministers. That is total nonsense. We know that as far back as the Bill of Rights of 1689 this House expressed concerns about the Crown having a presence here in the form of Ministers. The 1701 Act of Settlement tried extremely hard to remove Ministers from this place, because the politicians of that time wondered how one could serve the Crown as well as one’s constituents. Unfortunately, that never saw the light of day because the Executive got their way in 1706. As recently as 1926, if someone became a Minister of the Crown, he was required, in between general election periods, to resign his seat so that his constituents could decide whether their Member of Parliament could serve two masters—the interests of the constituents and the interests of the Crown.

That is where I am coming from. I am arguing for a modest reduction in the number of Ministers. We have had enormous ministerial inflation since 1983. Margaret Thatcher—we all remember her, that great lady—had 81 Ministers to run this country in 1983. We now require 95. Is the world so much more complex? I say to those who argue that it is that since 1983 we have privatised a large number of previously Government-owned industries and we have allowed Scotland, Wales and Northern Ireland to have their own devolved Assemblies. The number of Ministers has still risen inexorably.

I do not want to try your patience, Mr Streeter, by straying off new clause 7 and talking about inflation in the number of Parliamentary Private Secretaries, but we are now seeing 50 PPSs adding to an already burgeoning payroll. Although these people are not even paid, they are called the payroll vote. As far back as the 1960s, one could be a PPS and vote against the Government without danger of losing that role, but that is not the case today. The civil service code of conduct says that a PPS is required always to support their Government.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I am mystified as to what the role of a PPS has to do with the civil service code.

[Mr Walker]

My hon. Friend is absolutely right to correct me. It is the ministerial code, which is similar to the civil service code.

Those on the Front Bench might well argue that they have made progress in reducing the cost of the ministerial payroll. They will argue—it is a bit of a red herring—that on taking the seals of office, Ministers took a 5% pay cut. In reality, they did not take a pay cut, because they went from being in opposition to being in government and took a 25% to 50% pay rise. It just was not as large a pay rise as it could have been.

The savings to the ministerial payroll are about £500,000, not an insignificant sum. Lord Turnbull said to the Public Administration Committee that the average cost of maintaining a Minister, with private offices, cars and private secretaries, is £500,000 per Minister. By reducing the ministerial payroll by eight in 2015, we will save the taxpayer a further £4 million. While we are at it, we might like to consider the 10 unpaid Ministers we have across the two Houses, because if we got rid of them we could save another £5 million. However, that is an argument for another time and another place.

Mr Streeter, you know better than anyone that we live in an age of austerity. Things are changing. We are dismissing senior permanent secretaries from across the civil service. We are removing chief executives of councils and their directors. We are attacking senior and middle management across the country, yet there is one group of senior management that is completely immune to these cuts and that is the ministerial corps. Yes, we are all in it together, but not quite if one is a Minister. I do not think that any good argument could be presented from those on the Front Bench for not reducing the ministerial head count.

I am an enormous fan of the coalition and the Prime Minister, and I think that the coalition is what the country needs at this time. Both the Prime Minister and the Deputy Prime Minister have talked about new politics, a new way of doing things and a new optimism. New clause 7 is the litmus test for new politics, because I do not understand how we can have new politics and oppose reducing the Government’s patronage at the same time. I hope that Front Benchers can respond to that point.

To colleagues who are, perhaps, being leaned on by the Whips, I say that this is our chance to take ownership of new politics, which cannot be driven by Front Benchers and the Executive because the Executive are all about taking and retaining power and extending the tentacles of patronage even further. We as Back Benchers will take ownership of new politics tonight; we will do the heavy lifting for the Executive. By going into the Lobby and supporting new clause 7, we will be able to look our constituents in the eye when we go for reselection after the boundary review or the general election and say, “I was different.” When they challenge us with that worn cliché, “You’re just the same as the rest of them. You’re only in it for yourself,” we can say, “You are wrong. I was one of those Members of Parliament in 2010 who voted to reduce the number of Ministers.”

I have spoken for too long. In conclusion, new clause 7 is the very essence of new politics. The House and my colleagues have the chance to do the right thing tonight and I hope that they take that chance, because they will be respected for it if they do.

20:30

[Sir Peter Tapsell (Louth and Horncastle) (Con)]

I wish to speak in support of new clause 7, which was so ably introduced by my hon. Friend the Member for Broxbourne (Mr Walker), and to comment on the related issues of the number of MPs and the number of Ministers with which it deals. Paragraph 24 of the coalition programme for government, the contents of which we are, in part, debating today, starts with the words:

“The Government believes that our political system is broken. We urgently need fundamental political reform”.

I totally dissociate myself from that shameful statement. If it were true, all the political leaders of recent years ought to resign their seats because they would be responsible. Our “political system is broken” it says. That was the slogan of Oswald Mosley and the British fascists when I was a boy. Mosley spent the war in prison and the political system he despised and described as broken triumphed at home and abroad. Our political system is not broken. We have had some nincompoop Front Benchers, some expense-fiddling Back Benchers and even some who managed to qualify under both categories, but our political system is basically sound and, in parliamentary terms, not very different from what it was in 1945, 1918 and 1815.

It is the duty of an incoming Government in a democratic country to work within the rules and conventions of its political system, not to change those rules and conventions to fit their temporary party political convenience—that is a privilege usually reserved for banana republics. That is why I am opposed to all the so-called constitutional changes proposed in the coalition programme. The Deputy Prime Minister said yesterday—appropriately on “Desert Island Discs”—that when he met the leader of the Conservative party after the election, they agreed together that in the general election both their parties had lost. We should try to reverse that decision of the electorate not by changing the rules of the game but by raising the standard of government. We do not have too many MPs: we have too many Ministers and too many placemen, to use Sir Robert Walpole’s phrase to describe the proliferation of what Disraeli later described as the Tadpoles and Tapers of politics, who are now being proliferated to an astonishing degree.

In 1900, when we were the richest and most powerful nation in the world, there were nine Parliamentary Private Secretaries. By 2000, the number had gone up to 47 and it is rising daily.

[Mr MacNeil]

The hon. Gentleman said that in 1900 the UK was the richest nation in the world. Today, in The Scotsman, I read that among the top 15 most prosperous nations, the UK finds itself in the unlucky 13th place, behind Norway at No. 1 and noticeably behind Ireland and Iceland, respectively at 11th and 12th. That is just a point of information.

[Sir Peter Tapsell]

It is very interesting—even if incomprehensible to me. I make the point in passing that Scotland has gained even more than Britain from the combination of our two countries since the Act of Union.

[Mr MacNeil]

Does the hon. Gentleman feel that the Irish Republic would be better off as part of the UK, or has the Irish Republic prospered and done far better by leaving the UK?

[Sir Peter Tapsell]

Curiously enough, I shall come to the question of the Irish Republic a little later in my remarks, if the hon. Gentleman will bear with me.

Although by 2000 the total number of MPs involved in Government had already gone up from 42 in 1900 to 129, the number of Cabinet Ministers has not greatly increased. It is the number of loyal, but little known and easily sackable bag carriers that has ballooned. At the election, we in the Conservative party were pledged to make Government more answerable to Parliament. How is that to be achieved by maintaining the number of Ministers and increasing the number of PPSs, yet at the same time reducing the number of MPs? At this rate, genuine Government Back Benchers will become a threatened species. There will be no more Pitts attacking Walpole, no more Disraelis attacking Peel and no young Macmillans attacking Chamberlain, yet that is part of the lifeblood of our parliamentary story.

On what grounds is it claimed, historically, statistically or in terms of accommodation, that we have too many MPs? Germany, Australia and the United States, with their federal structures, have far more elected representatives, at various levels of their constitution, than we have. Over the past two centuries, our population has increased from about 16 million in 1800 to about 62 million today. We now have 650 MPs. The proposal is to reduce the number to 600. In 1801, shortly before Trafalgar, there were 658 MPs. In 1885, in the heyday of Liberalism, there were 670 MPs. In the 1918 general election, 707 MPs were elected to the House, before the southern Irish were hived off in 1922—the year in which the Back Benchers of the Tory party reasserted themselves and got rid of Lloyd George.

Universal suffrage was not fully achieved until 1929, but in the two previous centuries the voteless masses were never out of the minds of wise MPs and Ministers. In 1801, the number of people, as distinct from voters, in each constituency averaged 24,000—although it varied a good deal from constituency to constituency. Today, the number is 95,000 and the majority are electors. If we reduce the number of MPs to 600, as is proposed, that average population figure will become 103,000, quadrupled from the 25,000 of 1800 when they had more MPs than we have today. Also, the demands of a constituency on its Member of Parliament have enormously increased in recent years. In my first Parliament, I shared one secretary with two other young and active MPs; now I have three secretaries working for me alone.

Coalition Ministers, in their programme document, claim to hold our political system in contempt, but the strange fact is that the part of the system that undoubtedly works best is that in which the Government are least involved. The best aspect of modern politics is the close personal relationship between MPs and their constituents. Its closeness and extent is unique. Even in Switzerland, the cantonal MP is not seen as being so close and available as most MPs of all parties are seen to be by their constituents in Britain.

While the media and many members of the public often express contempt for our leading political figures—but not, of course, for the Leader of the House—at grass-roots level, whatever the politics of their MP, people are more likely to say, “My own MP does a good job in the constituency, and when I am in trouble, I know that he will do his best to help me.” That is the strongest of all the present bulwarks of our democratic parliamentary system.

At a time of economic failure, disgruntled police, fearful public servants, a neglected army and hostile trade unions, which in many countries would be regarded as a dangerous quintet, why tamper with that bulwark? When there are so many more pressing issues to be solved, why set many MPs, even of the same party—or particularly of the same party—at the political throats of their neighbours, as rumours of boundary changes begin to abound? My local press has already speculatively redrawn the six Lincolnshire constituencies and abolished one of them, to general dismay and the discouragement of activists of all parties. Why muddy the political waters with the inevitable charges of gerrymandering, which are certain to be thrown about?

Very wisely, in the United States, changes to the actual constitution occur only very rarely, after years of discussion, and they require a two-thirds majority of both Houses of Congress and the approval of the Supreme Court. In this debate on new clause 7, I have spoken about only two aspects of the so-called constitutional reforms, but in my view, the wide range of constitutional and electoral changes proposed by the coalition Government, taken as a whole, and introduced so early in the life of a Parliament full of new Members, constitute an attempt at a peaceful, political coup d’état, with the sole object of securing the position of Ministers. They have no mandate for the Bill from the country. I therefore urge this Committee to accept new clause 7, and urge the House in due course to reject the whole Bill on Third Reading.

20:45

[Fiona Mactaggart (Slough) (Lab)]

I had not intended to speak in the debate, although I support the proposal in the new clause. I am quite certain that our most important role in this place is that of representing our constituents, and I agree with the hon. Member for Louth and Horncastle (Sir Peter Tapsell) that that relationship between the Member and our electors is the most special thing about my job. That is what most Members of Parliament think.

The problem is that that relationship is not sufficiently rewarded by the structures of this place, and in some ways the new clause goes to that issue. It challenges a reward system which says that success is achieved only by being a Minister. I have history here, because I am one of the very few people who, when they were a Minister, asked the Prime Minister to stop making me a Minister because I had had enough. I wanted to jump off that gravy train, for a number of reasons. One of them was that I believed that my responsibilities as a Minister interfered with the relationship that I had with the people of Slough whom I have the privilege to represent.

I have been complaining about late-night debates on the Bill and I did not plan to intervene until the hon. Member for Louth and Horncastle spoke. We need to listen carefully to what he said, because his speech was not just about the new clause. It was not just about the number of Ministers. It was an analysis that showed that the Bill is looking down the wrong end of the telescope. The Bill protects the interests of those in government—in power—at the expense of those who put us there. It is not sufficiently focused on the electorate of Britain, on the masses whom we have the privilege to represent, and it is too focused on those who have scooped up the power in what he calls a coup d’état.

In a way, the hon. Gentleman is entirely right. I do not quibble with the fact that the result of the election required a coalition to be created. I am also of the view that the coalition had to be created between the largest party and a partner. But I quibble with the kind of constitutional change that the Bill seeks to bring about, not prefigured properly in any party’s manifesto, being rammed through the House of Commons without proper consideration.

That speaks to us about the consequences of not having a written constitution. There are some merits in not having a written constitution. It can create some flexibility and some opportunities to be imaginative and to solve problems as they arise, but it has risks, and today we are in the middle of one of the biggest risks. Without a written constitution, people can take liberties with the constitution. That is happening right now. Liberties are being taken, and those taking the liberties are those in government, who see the reward of elections—the highest thing that they can achieve—as Government office, not representing the masses.

Those of us who think that representing the people of Britain is our highest achievement should say that we will support the new clause and that we will not accept a situation in which a third of those on the Government Benches are on the payroll. That is not acceptable. It is not satisfactory and it creates huge cynicism among the electorate of Britain. I cannot blame them for thinking that politicians are rogues. Most of us in this place know that most are not, but when the system means that people cannot say what hon. Members and I know they think because they are on the Government Benches and they have to just suck it up, that makes people think that politics has no authenticity and that it is dishonest. That is damaging to democracy.

[Chris Bryant]

I congratulate my hon. Friend on her splendid speech. I had not realised that she was going to end so swiftly.

We have had excellent contributions. The hon. Member for Broxbourne (Mr Walker) said that he lacked ambition. That is clear, I suppose. That has been underlined with three lines from the Whips, but I praise the motion that he tabled. It puts into a new clause the question that I asked the Deputy Prime Minister some few months ago: if the Government plan to cut the number of seats in the House of Commons and do not plan to cut the number of Ministers, surely that will increase the influence of the Government—the Executive—over Parliament. I wholeheartedly support the argument that the hon. Member for Broxbourne made this evening.

[Mr MacNeil]

May I charitably suggest that although the hon. Member for Broxbourne (Mr Walker) might lack personal ambition, he certainly does not lack ambition for the House and its wider membership, which will have been noted on both sides of the House?

[Chris Bryant]

Of course; I did not mean to be ungenerous to the hon. Member for Broxbourne, as I think he well knows. I was praising his ambition, which need not be for the greasy pole—it might be for other things in life.

The right hon. Member for Louth and Horncastle (Sir Peter Tapsell)—

[Sir Peter Tapsell]

I am not right honourable.

[Chris Bryant]

Well, the hon. Gentleman should be. He carries himself as if he were right honourable—if not most reverend as well.

[Daniel Kawczynski (Shrewsbury and Atcham) (Con)]

He was magisterial.

[Chris Bryant]

Yes, he delivered his remarks with a magisterial largesse—[Interruption.] No, I was not going to say laissez faire.

The hon. Member for Louth and Horncastle made some extremely good points, and I hope that many Members will reject the Bill on Third Reading for precisely the reasons he advanced. One of the arguments I have tried to make throughout is that I fully understand why many hon. Members feel that, following the expenses saga in particular, we need to be very humble about the authority of the House and individual Members. However, we should not throw the baby out with the bathwater. We should be proud of our representative democracy and the system we have. It does not work perfectly. There are things that have to be improved. As in the church, there will always be things that are semper reformanda. However, we should not in the process suddenly start to say that the whole of the political system is corrupt, wrong and rotten, and that therefore we have to start all over again.

I differ from the hon. Gentleman on one point. He said that the system is not much different from that in 1945, 1918 and 1850—

[Sir Peter Tapsell]

1815.

[Chris Bryant]

1815?

[Sir Peter Tapsell]

Waterloo.

[Chris Bryant]

Well, my point remains. Neither in 1815 nor in 1850 were miners able to vote, because they did not qualify under the franchise. In 1885, they were allowed to, but women were not. One can make significant changes to the system, although I think the hon. Gentleman holds a different view from me about reform of the House of Lords. That is where I agree more with the Government Front-Bench team. I do not know whether the hon. Gentleman had any particular tadpoles or nincompoops in mind—I can see some images flitting across his mind now, which suggests he had some specific people in mind.

The hon. Member for Broxbourne referred directly to the argument that the Deputy Prime Minister made in January in favour of cutting the House of Commons to 500 Members and the number of Ministers to 73, but of course that is not at all the proposal before us. The right hon. Gentleman has adopted neither measure. It might be that having picked one tune on “Desert Island Discs” on Sunday, he changes his tune entirely when it is replayed on Thursday. That is clearly the situation we have at the moment.

Our system has changed over the generations because it has not been considered right and proper that Ministers thought of their salary or pension as just a tiny part of their remuneration for being in hock to the Crown and that all the other monopolies and benefits accruing by virtue of how they operated their ministerial office brought in far more money. It was Edmund Burke who, in 1782, first introduced changes that meant that Ministers of the Crown had to rely on the properly arrived at financial provisions, rather than on the previous system which was completely and utterly corrupt. As Macaulay said of the 18th century:

“From the noblemen who held the white staff and the great seal, down to the humblest tidewaiter and gauger, what would now be called gross corruption was practiced without disguise and without reproach.”

Many in previous generations exercised their ministerial functions solely on the basis of financial corruption. Ministers accumulated enormous fortunes by virtue of being Ministers. It is right and proper that we do not have that system today, and if anybody in the British political system does accumulate, by virtue of their political office, an enormous fortune, there is something going wrong—IPSA must have allocated everything that we have all claimed to just one individual Member.

There was substantial change in 1831 through the Select Committee on the Reduction of Salaries. It suggested a completely different structure, which ended up with William Pitt the Younger, when he was First Lord of the Treasury, earning just £5,000 by virtue of that post, although he had other posts that earned him some £4,300. Today, that would be a considerable amount of money for ministerial office, but at the time MPs were not paid at all.

Today’s system relies on two pieces of legislation from 1975, the Ministerial and other Salaries Act, and the House of Commons Disqualification Act, to which the new clause in the name of the hon. Member for Broxbourne refers. Both specify that the number of Ministers shall be 95. The Ministerial and other Salaries Act also lays out how many Cabinet Ministers, Ministers of State, Whips and so on there can be, and it is my simple contention that if one wants to limit the number of Members and ensure that the proper legislative scrutiny function of this House is performed, one has to cut the number of Ministers.

[Mr David Hamilton (Midlothian) (Lab)]

When the hon. Member for Broxbourne (Mr Walker) spoke to his new clause, he made the very good point that, at a time when we are talking about reducing not the number of councillors throughout the UK, but the administrative costs, the chief executives, the directors and so on, it is incumbent on us to talk about changing the Executive and reducing the Executive’s power.

[Chris Bryant]

That is right. If we really are to have new politics—that rather amorphous term to which the coalition agreement alludes—it must accept something that we the Opposition were too reluctant to accept when we sat on the Government Benches: that Parliament, when it is free to do its job, does its job better than when it is constrained.

The constraints are multiplying. The number of parliamentary secretaries is not quite growing daily, as the hon. Member for Louth and Horncastle suggested. He made it sound as if they were breeding and reproducing. The number is not growing daily. However, it is certainly true—

[Sir Peter Tapsell]

I was talking about PPSs.

[Chris Bryant]

Ah! Parliamentary Private Secretaries. Indeed, I was going to come to the point about PPSs, because the hon. Member for Broxbourne was absolutely right to say that they are included in the ministerial code of conduct. It is a bit odd that a list of PPSs is still not available to the public. If one goes to the Cabinet Office website, one finds that the most recent list refers to July 2009. There is a list on conservativehome.com, which is a website that Government Members might consult sometimes, detailing 22 Parliamentary Private Secretaries, but as I understand it there are considerably more than that. The Government should be straight with the House and tell us precisely how many people are really on the payroll. By payroll, I do not mean that PPSs are in receipt of moneys.

The ministerial code of conduct, which incidentally every PPS should have been provided with and signed, although I suspect that most have not, makes it absolutely clear:

“Parliamentary Private Secretaries are expected to support the Government in important Divisions in the House. No Parliamentary Private Secretary who votes against the Government can retain his or her position.”

I say again that this House does its job as a reviewing, revising and legislative body when it is freest from the shackles of patronage, but with the numbers of Ministers and PPSs having grown, there is already an unnecessary constraint on the real power of this House to do its job.

We have talked about what happens on the Government Benches, but what also happens is that the Opposition feel that they have to match the ministerial team—and of course, the PPS team—man for man and woman for woman, so we end up not with 95 Ministers but 190. [Interruption.] The hon. Member for Shrewsbury and Atcham (Daniel Kawczynski) is saying from a sedentary position that Labour did the same—yes, and I have already said that we were too slow to accept these points. However, there is a big difference. He is supporting a Bill to remove 50 Members of Parliament while keeping the number of the Ministers the same, which means that Ministers will form a larger percentage of the House.

When one includes Ministers and PPSs on the Government side and their shadows on the Opposition side, one ends up with a large number of people who are not entirely free to speak their mind because they are bound by collective responsibility. There are many things to be said in favour of collective responsibility: nobody wants to be run by a shower who are completely and utterly unable to organise themselves and exercise some discipline. However, we also need a significant number of people on the Back Benches who are able to deliver their verdict on legislation and to vote at all times entirely with their conscience.

21:00

[Mr Stewart Jackson (Peterborough) (Con)]

It seems to me that the hon. Gentleman is trying to have it both ways. He is arguing that people who are not members of the Government are a bulwark against an oppressive Executive, and I accept that. At the same time, he admits that his own Government—the previous Administration—got it wrong, and I agree. However, this is not necessarily just a numerical issue. We should cast our minds back to the Iraq war debates, when a huge Back-Bench cohort failed to hold the Executive to account on one of the most important issues of foreign policy in our country’s history since the war.

[Chris Bryant]

I think I agree with the hon. Gentleman. In the previous Government we were not always as alive as we might have been to the fact that this House does its job best when it is most free to be able to do so. However, the difference that he has to face is that unless he intends to agree with the hon. Member for Louth and Horncastle, he is supporting a Bill that wants to cut the number of MPs from 650 to 600. That will, in effect, cut the number of Back Benchers, because it does not cut the number of Ministers. My argument is that if we are going to cut one group, we should cut the other. That is entirely in line with the new clause.

[Mr Mark Field]

Everybody accepts that collective responsibility is an important function, particularly in this media-savvy world in which we live, where it is important to ensure that any Government do not look like a shambles. Does the hon. Gentleman accept, however, that there is a distinction between collective responsibility for much of the legislation that goes through this House and this sort of Bill—a constitutional Bill that should not be subject to quite the same shackles to which he has referred?

[Chris Bryant]

I agree. That is why I have been trying to argue that Members such as the hon. Gentleman who have taken a long-standing interest in constitutional issues should feel free not necessarily to vote with their Front Benchers. I know that he has already exercised that right on several occasions.

[Daniel Kawczynski]

The hon. Gentleman says that having a large group of PPSs will make it more difficult to hold the Government to account, but some might argue that when Mr Blair was Prime Minister it was the rebellion among PPSs threatening to resign that finally forced him to go.

[Chris Bryant]

I know too much about that episode to want to divulge exactly what went on. The hon. Gentleman is a PPS now, is he not?

[Daniel Kawczynski]

Yes.

[Chris Bryant]

Right, but he is not yet listed on any publicly available list of PPSs. [Interruption.] Well, I am sure that the country is grateful and that people will welcome the hon. Gentleman with acclaim and instantly start putting up red and white bunting in honour of his historical associations with Poland.

My point is that the payroll vote has increased. It has increased because of the dramatic increase in the number of PPSs, which partly happened under our rule but I think is happening again at the moment. The increased payroll vote is not just because of that, though. It is also because of unpaid Ministers. I was an unpaid Minister for a while and sympathise with the Deputy Leader of the House, who is one now. We now also have a particularly interesting concept, which is a Liberal Democrat Whip who is not even an unpaid Minister but an organiser of the Liberal Democrats, but who is sort of on the payroll as part of the ministerial team. Clearly, because their job has the word “Whip” in it, they are expected to vote with the Government at all times.

In addition, a vast extent of patronage is still available to Prime Ministers. They can make Members chair an ad hoc committee or ask them to be a delegate to some conference here or there. The whole business of patronage can be profoundly dangerous to how we do our business. I have already referred to how that applies to Opposition parties.

I will be warm towards the Government briefly and say that they have made some moves to remove one element of that patronage, which we had suggested before and for which I remember fighting when Robin Cook was Leader of the House. They have done that through the election of Select Committee Chairs. That has been entirely beneficial and I support it fully. I can see at least one Committee Chair in his place, and he is a splendid chap. He might not have become Chair of that Committee if it had been a matter of patronage, or if he had become Chair by virtue of patronage, he might not have felt so free to use his voice in these debates over the past few days. He has pointed in the direction of the new politics, but we can still go much further.

Of course we must consider the financial costs of ministerial office that can be saved, although I do not want to go too far down the populist route attached to that. Sometimes it is valuable to have Ministers who are properly supported and can do their job well. When I was in the Foreign Office it had only three Ministers in the House of Commons, which made it very difficult for foreign delegations to be met by a Minister from the Foreign Office. I do not know whether that did the United Kingdom any favours. I do not wish to adopt every populist measure that is thrown in front of us, or to kick it in the net, but I do want to ensure that the House has sufficient Members with Back-Bench independence to be able to hold the Executive to account.

Many of those who have made the most significant contributions to the House over the centuries have not only never sought ministerial office but actively declined it, from Andrew Marvell, who turned down office on five or six occasions, to Plimsoll, Bradlaugh and a series of others. They made dramatic changes to the lives of many ordinary people in this country, and they did not need ministerial office to do it. They were able to do it from the Back Benches.

[Zac Goldsmith (Richmond Park) (Con)]

I wish to speak very briefly in favour of the new clause. There is a long history in this House of Members challenging the ever-increasing power of the Executive. We heard recently from the Leader of the House, who is not in his place:

“The terms of the trade between Government and Parliament have shifted too far in the executive’s favour. That is not good for Parliament; but neither does it lead to better government.”

The Prime Minister also highlighted those concerns in February, saying:

“We’d want to reduce the power of the executive and increase the power of Parliament even if politics hadn’t fallen into disrepute.”

We also heard from the Deputy Prime Minister before the election, which he described as

“an opportunity to turn the page on decades of relentless centralisation within government.”

He argued for a dispersal of power away from the centre and a cut in the number of Ministers and Government Whips, saying:

“The rules of the game at Westminster are stacked in favour of the ruling party; parliament is rendered largely impotent to hold ministers to account.”

We have heard over the past few days and weeks very strong arguments for equalising the size of constituencies and reducing the number of MPs, but to do that without also reducing the number of Ministers would profoundly undermine the authority of Parliament. The proposal is not radical, or even a solution to the problem that so many hon. Members have identified. It would neither minimise the power of the Executive nor increase that of the legislature. It merely calls for a reduction in the size of Government in line with the planned cuts to the number of Members of Parliament. In effect, it will do no more than prevent trends from getting worse.

If the Government are truly committed to decentralisation, they can demonstrate that today by backing the new clause. I strongly urge them to do that.

[Mark Durkan]

I support the new clause, to which my name, along with those of so many others from different parties, is attached in the unpublished list.

When considering the new clause, the Committee should bear in mind not only the experiences of the parties that form the Government and occupy the Government Benches, but those of the rest of us who come to the Chamber and the Committees of the House and are confronted with the realities of the Government Whip system and Parliamentary Private Secretaries—part of the peculiar ecosystem here—who can represent their constituents but are at times bound not to represent their consciences. The idea that someone can represent their constituents but never their conscience is a peculiar political creation, from which the House should try to get away. It brings politics into some disrepute if we appear effectively to neuter ourselves. The straits into which PPSs are cast are unnecessary; they should be allowed more freedom than they generally exercise or are encouraged or permitted to exercise.

New clause 7 led me to that issue by way of making a general observation about the dominance of the Executive in the House. In recent years there have been attempts to reduce the Executive’s absolute control of the agenda and the timetable, and changes have been made from appointing Chairs of Select Committees to electing them. That is all to the good, but new clause 7 is the reality check. As the hon. Member for Broxbourne (Mr Walker) said, it is the genuine test of whether the new politics means anything.

I have no argument with reducing the number of Members of Parliament. I did not vote for 650 the other night; I am happy if there is a reduction. However, alongside that, we need a reduction in the size and voting dominance of the Executive in the Chamber.

Of course the answer to the problem of the over-supply of Ministers in this House is not to over-supply them in another place. In the previous Parliament not only many Ministers, but Cabinet Ministers—Secretaries of State—sat in another place. I joined others in criticising that lack of accountability. For me, the answer was not to bring Ministers from the Lords into this House—the last thing I wanted was to bring Peter Mandelson back anywhere, not least to the Dispatch Box, given our experiences of the man. On that famous occasion in Hartlepool, he said that he was not a quitter but a fighter. I always believed that his theme tune should have been the Simon and Garfunkel song “The Boxer”—not for the lyrics of the verses but for the chorus, which is simply “Lie la lie” throughout.

[Chris Bryant]

Certainly not “I am just a poor boy”!

[Mark Durkan]

I said, not for any of the words of the verses, but for the chorus. That alone would make a good theme tune for Peter Mandelson.

The answer was not to bring Lords Ministers into this place; the question was: why were there so many Cabinet Ministers in the Lords? The hon. Gentleman referred to the fact that there are limits in statute on the number of Cabinet Ministers, but we saw how the previous Government got round that. They went to the limit for Cabinet Ministers and then had a series of ministerial high chairs put around the Cabinet table, so that lots of other Ministers had rights of attendance at Cabinet, simply to ensure that more Members of the House of Commons were in the Cabinet room than would have been there otherwise. That is the sort of lazy, sloppy, self-serving thinking that seizes parties in government. They use and abuse, and bend and flex rules and limits in ways that suit themselves, which does nothing to enhance the reputation of politics in general or this House in particular.

21:15

We have a choice this evening with new clause 7. If the Government are being straight and sincere, they should accept the spirit of the new clause. I know that we will need other provisions to ensure that one way round this is not suddenly to increase the number of Ministers in another place or whatever—but the full spirit of new clause 7 should be embraced. The Government tell us a lot about the big society. They are against big government out there, but they are all for big Government in here. New clause 7 really is the test for the Government. In particular, it is the test of whether they will allow their own Back Benchers to vote according to their conscience on how they want this House truly to operate under the banner of the new politics.

[Mr Jenkin]

I rise briefly to congratulate my hon. Friend the Member for Broxbourne (Mr Walker) on the spirited and coherent way in which he moved his new clause. I should also like to congratulate my hon. Friend the Member for Richmond Park (Zac Goldsmith), who also made a coherent and spirited defence of the new clause.

It is not my intention to speak for very long. In fact, it had not been my intention to speak at all in this debate, partly because I am losing my voice, so this speech might not continue for long. In fact, it might be cut down in its prime. However, I have been watching the Deputy Leader of the House nodding at some interesting moments during this debate, when he seemed to be endorsing the past statements of his party’s leader. I am waiting with bated breath to see how he melds the previous position of his party’s leader with the present position of the Government.

While he is preparing his remarks, I hope that he will reflect on the fact that the very office of Deputy Leader of the House is, in itself, rather a modern invention. I think that it was invented during the previous Labour Government. I do not know whether it ever existed before—I look to my hon. Friend the Father of the House—because it had never been deemed necessary for there to be a deputy to the Leader—[Interruption.] The hon. Member for Rhondda (Chris Bryant) was the embodiment of the invention. The post reflected the desire of the Executive to create more jobs for the boys—if I may put it that way—than existed before.

There is a simple test that we need to apply to this Bill, and to new clause 7 in particular, which is: does it strengthen the House of Commons? It was axiomatic before the election, and in the aftermath of the expenses scandal, as the hon. Gentleman pointed out, that every party leader should speak in grand terms about the need to strengthen the accountability of Government and to strengthen the House of Commons. Can the Bill do that? It cannot, unless we reduce the number of Ministers pro rata to the reduction in the number of MPs. I should point out that my remarks are not some manic attack on the power of Government. There are plenty of ways in which Governments can appoint people to jobs in order to get things done. Indeed, I should say to the hon. Member for Foyle (Mark Durkan), who spoke just before me, that it is possible to appoint more Members from the other place. It is also possible to appoint more special advisers—and let us face it—we have a rash of special advisers in Government these days compared with what we used to have. There are all kinds of ways both of ensuring that there are ambassadors for the Government in office and people to implement the Government’s policy and political direction, and of ensuring that the Government remain accountable to the House.

Ministers do not need to be Members of the House in order to be accountable to it. It is worth reflecting on the fact that as we have grown the number of Ministers in this place, we have left Whips and even Parliamentary Private Secretaries to speak for the Government in the other place, because Governments are so interested in filling ministerial offices with Members of Parliament, to secure their influence in this place. However, if there were more Ministers in the other place, there is no reason why they should not be invited to the Bar of the House to answer questions. That reform is long overdue. There are plenty of alternatives.

I should like to reflect on the term “the new politics” that has crept into political parlance. I am not quite as old and wise as my noble Friend Lord Heseltine, who sat for many years in this place, and who I saw opining, at the very formation of the coalition, that there was no such thing as the new politics; there was only the old politics, and politics would always be the same. That is of course true, but if the new politics is going to mean an increase in the domination of the Executive in the House of Commons, that would seem to be the antithesis of what those who coined the phrase were seeking to convey.

In fact, politics is changing. When I was first elected in 1992 there was still quite a strong element of deference in the House of Commons towards authority and the Whips. Members who were first elected in the 1950s would have served in one or both of the world wars, and virtually every Member of Parliament at that time had done national service of one sort or another. That Edwardian deference has gone from today’s politics, however, and Governments will have to accept that the House of Commons is becoming more assertive. An example can be seen in the whole expenses debacle. I refuse to call it a scandal, because what the newspapers uncovered was much less a scandal in respect of individuals and much more a scandal in terms of the system that had developed, in which the press itself had connived. The outcome of the expenses debacle sent a message to everyone that it was time for Parliament to reassert its role, and it seemed that the party leaders took that message up. What really came through in that episode was how useless Parliament had become.

What is Parliament’s job? It is to ensure that the laws of this country are fit for purpose, to stand up for the liberty of the citizen and to control the supply of money to the Government. Looking at those three tests, we can see that the House has performed miserably over the past decade. More and more legislation, particularly secondary legislation, is passed that is unfit for purpose and not scrutinised properly. The House has completely failed to control the massive growth in public expenditure that has led to the deficit crisis that we now face, and as for protecting the liberties of the individual, I am afraid I think that most of our constituents would feel that the House has been found wanting.

If we are to improve the way in which we do our job, will we be helped if we allow the Government, of whichever party, to have patronage over and to give hope to a wider and wider group of Members, and to instil into the principle of politics in this House that the be-all and end-all is ministerial office? Would that be conducive to a more accountable system? We do not have the separation of powers in our system, but we nevertheless rely on a degree of separation between the Executive and the legislature. I submit that the new clause is exactly the signal about our determination to hold the Executive to account that the House needs to send not only to the Government of the day but to the people at large. We must send this signal that we take our jobs seriously and that we are not going to be seduced, cajoled or flattered into accepting the Executive agenda more and more.

I end with this point. My hon. Friend the Member for Broxbourne, who moved his new clause so ably, is a member of the Public Administration Committee, which produced the report “Too Many Ministers?” in the last Parliament. I am afraid that I have to inform the Government that we have already launched a new inquiry, asking “What do Ministers do?”. That might seem a cheeky question, but at this time when there are so many Ministers, we know from the revelations in various biographies that Parliamentary Under-Secretaries have jobs and activities created for them to keep them busy.

When it comes to the Foreign Office, I have no doubt that the hon. Member for Rhondda is right to say that we need ambassadors for Britain, representing both Parliament and Government, but I simply do not believe that to be true of all Departments. Do we need more Ministers to represent the Government in this House? It was suggested to our Committee that Whips speak for the Government in the other place, so why cannot Whips speak on behalf of the Government in this place? Why do they have to remain mute and silent here, as if they had no views of their own and no speaking purpose in a House of whose being speaking is the very essence?

[Mr Christopher Chope (Christchurch) (Con)]

Is my hon. Friend aware of the irony that his Committee is carrying out this inquiry, but the Government are using that fact as a reason why our hon. Friends should not vote against the Government position tonight—because it is all going to be sorted out in the future by my hon. Friend and his Committee? Can he put my hon. Friends right, and tell them that they need to be in the Aye Lobby for this new clause?

[Mr Jenkin]

I can put them right. As Chairman of that Committee, although I do not act as Chairman in this capacity, I will be in the Aye Lobby myself on new clause 7. As my hon. Friend the Member for Broxbourne said, it represents a very modest maintenance of the status quo. That is what this is about—checking an advance or a further incursion of the Executive into the House of Commons. It is a holding position, while my Committee completes its work.

[Mr Heath]

I think this has been an interesting and illuminating debate. I am grateful to the hon. Member for Broxbourne (Mr Walker) for tabling his new clause and for the way in which he spoke to it. I am also particularly grateful to the hon. Member for Harwich and North Essex (Mr Jenkin), the Chairman of the Public Administration Select Committee, not only for contributing to this evening’s debate but for his Committee’s work—and that of its predecessor, which, as he rightly said, published the first report.

We have heard from a number of Members of all parties, including from the Father of the House. The hon. Member for Louth and Horncastle (Sir Peter Tapsell) often gets criticised—or, perhaps, slightly cheesed—for his lapidary style, but I know from my experience over many years that he is well worth listening to on many issues. Although I do not agree with everything he says—I do not think he would expect me to—I always find listening to him a useful exercise.

The hon. Member for Na h-Eileanan an Iar (Mr MacNeil), who is not in his place at the moment, intervened earlier and sought to persuade the Committee that the Republic of Ireland is the epitome of prosperity, which I am not sure is an argument that holds great water. The hon. Member for Slough (Fiona Mactaggart), who is also not in her place, was moved to tell us why during the last Parliament she asked to be a Minister no longer.

The hon. Member for Rhondda (Chris Bryant) said repeatedly that the Government of whom he was a part were too slow to take on these issues. Too right they were! They never took on these issues one single bit; there was never the slightest attempt to reduce the size of government or to relax the grip of the Executive on Parliament. It is only since the present Government have been elected that we have been able to deal with some of these issues. He also said, in passing, that he was suspicious that Parliamentary Private Secretaries were not acquainted with the ministerial code. He is quite wrong on that; of course they are—they are given the ministerial code to sign on taking up their positions. That is as it should be. The hon. Gentleman will have to look at the websites himself.

[Chris Bryant]

The information is not available.

[Mr Heath]

It is available, and the hon. Gentleman will be able to find it if he cares to look at the Government websites.

21:30

[Chris Bryant]

I am sorry, but no list of Parliamentary Private Secretaries is currently available on a website or anywhere else. Unless the hon. Gentleman can provide the address of a website that features the information, it is not available.

[Mr Heath]

If the hon. Gentleman looks at the departmental websites, he will find that the PPSs are clearly listed. It is hardly a deep, dark secret.

[Mr Lee Scott (Ilford North) (Con)]

If my hon. Friend looks at not just individual websites for Members of Parliament but the parliamentary website, he will see that it includes the information that a Member of Parliament is a PPS. That information was added to my name within about four weeks of my appointment.

[Mr Heath]

I am grateful to the hon. Gentleman for putting the Committee straight on that.

The hon. Member for Richmond Park (Zac Goldsmith) supported the new clause. The hon. Member for Foyle (Mark Durkan) made the important point that the oversupply of Ministers was not best addressed by their being put in the House of Lords. I entirely agree. The hon. Member for Harwich and North Essex expressed a contrary view, saying that he rather liked having Ministers in the House of Lords, but I am not sure that I agree with him.

[Mr Charles Walker]

I do not like the idea of lots of Ministers being in the House of Lords, but the fact is that there are currently eight unpaid Ministers there. If the hon. Gentleman does not want them to be there, why on earth are the Government putting them there?

[Mr Heath]

I will let the hon. Gentleman into a secret: I am not the Prime Minister. It is the Prime Minister who makes appointments. I am simply saying that I do not think we would improve the present position by putting more Ministers in the House of Lords. In the last Parliament, members of the Cabinet—Secretaries of State in charge of Departments—were in the House of Lords, and we had no way of holding them to account. That was an affront to this elected House, and I am pleased that we have put it right.

Let me explain why I cannot support the new clause, although I have a degree of sympathy with the view of the hon. Member for Broxbourne (Mr Walker).

[Mr Jenkin]

rose—

[Mr Heath]

First, however, I will give way to the hon. Member for Harwich and North Essex.

[Mr Jenkin]

Is the hon. Gentleman seriously saying that there is something unconstitutional about having a Secretary of State in the other place?

[Mr Heath]

I said that it was undesirable, and I believe that it is undesirable. I said that in the last Parliament. I called for Secretaries of State in another place to be brought before this House for questioning, because I think it is wrong for Members of the House of Commons not to have access to those who lead Departments. That remains my position, and I am not going to change it.

[Philip Davies]

I do not quite follow the hon. Gentleman’s argument. Is he saying that the new clause means that any Secretary of State could not be in the House of Commons, and would have to be in the House of Lords? I see nothing in the new clause that would force a Secretary of State to be in the House of Lords.

[Mr Heath]

I am not suggesting that that would be the case. I am picking up on points made during the debate, which I think is part of the job of a Minister responding to a debate. The hon. Member for Foyle expressed the hope that a reduction in the number of Ministers in the House of Commons would not result in an increase in the number of Ministers in the House of Lords. I suggested that I agreed with his view. The hon. Member for Harwich and North Essex does not agree with it. So be it. That is the nature of debate.

[Mr Mark Field]

The Deputy Leader of the House has made it clear that he wishes to respond to the contributions made in the debate. I think that one of the most important contributions, with which I entirely concur, came from the hon. Member for Slough (Fiona Mactaggart). She considered it highly regrettable that a Bill of such constitutional importance was being rushed through so quickly and so early in the Parliament, in a way that gave the public—certainly those who are interested in these matters—the impression that it was being introduced simply to keep in place the current arrangements introduced by the current coalition. She suggested that it was solely a result of the electoral arithmetic that obtained in May 2010, rather than having been introduced in the long-term interests of Parliament for decades and, indeed, centuries ahead.

[Mr Heath]

That is a Second Reading point, but it is not a point that I agree with or accept in any way. We have already had extensive debate on the timing of the Bill; I believe we have given that subject a substantial amount of debating time. The most important point is that it is necessary to make rapid progress on the Bill if we are to have in good order both the referendum and the boundary changes suggested in the Bill.

[Chris Bryant]

Will the hon. Gentleman give way?

[Mr Heath]

If the intervention is on that point I have to say that it is not germane to the new clause, but if it is on a different point then of course I give way.

[Chris Bryant]

Whether or not it is germane is obviously for the Chair, not the hon. Gentleman, to decide, but I am grateful that he has given way.

I am sure the hon. Gentleman would not want to mislead the House. He has suggested that Parliamentary Private Secretaries are listed on each of the websites—[Interruption.] Government Members, and in particular Ministers, groan, but that is perhaps because they want to see the extension of patronage rather than the extent of patronage to be known to the whole of the House. The truth of the matter is that I have looked at the websites of four Departments and there is absolutely no evidence in any of them of who the departmental PPSs are.

[Mr Heath]

Well, perhaps the hon. Gentleman needs to look a little more carefully.

May I now move on to the principal arguments that I want to address? I have already said that I have a degree of sympathy with what the hon. Member for Broxbourne said about the reductions.

[Chris Leslie (Nottingham East) (Lab/Co-op)]

Will the hon. Gentleman give way?

[Mr Heath]

No, not for the moment because I have just said that I want to set out some of the reasons I have difficulties with the new clause.

One point worried me slightly, and I have to say that the hon. Member for Broxbourne and I may have an honest disagreement about it. He appeared to be advocating a complete separation of powers.

[Mr Chope]

That is not in the new clause.

[Mr Heath]

But it was suggested in the speech moving the new clause. The hon. Member for Broxbourne seemed to give the clear impression that he personally would favour a separation of powers, meaning that there would not be this country’s current parliamentary democratic system where we have Ministers drawn from this elected House. Rather, he would prefer Ministers to be drawn from the ranks of those outside the House, which is much more akin to a presidential democracy. [Interruption.] I may be misrepresenting the hon. Gentleman, and if so I apologise. However, if that is his view—and it is a perfectly respectable view—it is not one that I share. [Interruption.] I see other Members nodding because it is their view, and I understand that to be the case.

My second point is that this is not simply an issue about Ministers. It is an issue about patronage and the extent of the patronage of the Prime Minister and Government of the day. That is what we need to address, rather than the narrower issue of Ministers in this House.

My next point is that there is not a simple arithmetical relationship between the number of Members of the House and the number of Ministers: to suggest that there is is to reduce the argument and to take it beyond what is reasonable. Ministerial responsibilities must reflect what the Prime Minister and Government of the day feel they need in order to do their work effectively. There is a relationship between the number of Ministers in this House and the number of others in the House whose positions are created by patronage and both the perception and the reality of the independence of this legislature. That is a perfectly proper comment to make, but there is not, I suggest, a simple arithmetical relationship.

[Mr Kevan Jones (North Durham) (Lab)]

Is the hon. Gentleman suggesting, therefore, that the Prime Minister of a future Labour or Conservative Government, or indeed the Prime Minister of what we have at the moment, could extend the power of patronage to have as many Ministers as they wish in order to control the political process?

[Mr Heath]

As I shall go on to describe, what the previous Government did when they reached the buffers of the current restrictions was simply to create all sorts of fantastical posts that were not described as “Ministers” but were, nevertheless, an extension of patronage. We know what the Labour party did when in government and I think we can do better.

[Philip Davies]

The Minister seems to be saying that these things should be judged on the ministerial work load, as opposed to numbers. I do not know whether this is the case for him and his constituency, but the work load of MPs has increased rapidly in recent years. The Government are proposing to reduce the number of MPs by 50, so this Bill clearly has nothing to do with work load, yet he is giving the distinct impression that this is a simple case of turkeys not wanting to vote for Christmas.

[Mr Heath]

Without rehearsing arguments from other parts of the Bill—we must not do that—I can say that the interesting thing is that the proposal to reduce the number of Members and equalise constituencies seeks to make some Members who represent very many fewer constituents than others have the same work load as those of us who represent larger constituencies; we comprise about a third of the House.

[Mr Charles Walker]

The Deputy Leader of the House questioned whether it is wise to put an arithmetical limit on the number of Ministers, but an arithmetical limit of 95 is already in place. Is he suggesting that we remove that and just have a free-for-all in this place?

[Mr Heath]

No, I am not. I am suggesting that a slightly more complicated relationship is involved than perhaps the simple solution suggests; I have already mentioned one of the factors, which is that this solution does not take into account the position of the House of Lords and the reform of that House in which we are engaged.

[Several hon. Members]

rose—

[Mr Heath]

I am not making terribly much progress, but I shall give way to the hon. Member for Foyle.

[Mark Durkan]

May I take up the point that the hon. Member for Broxbourne (Mr Walker) raised about the Deputy Leader of the House’s comment that the House should not become concerned with setting an arithmetical limit and seeking an arithmetical formula? The Bill says that there should be 600 MPs and 600 only—not one more and not one less. No flexibility is to be left to the boundary commissions, to Parliament or to anyone else, and constituencies are to be formulated every five years, again on the basis of a tyranny of arithmetic, so how can the Deputy Leader of the House tell us that within this regime of the new arithmetic and the new politics there cannot be arithmetical guarantees on the fixed number of Ministers in this House?

[Mr Heath]

Again, the hon. Gentleman seeks to draw me back to debates that we have had on other parts of the Bill. However, I repeat that I do not think that there is a simple arithmetical relationship between the number of Ministers in the Government and the number of Members in this House, other than the view, which is my view and that of right hon. and hon. Friends, that we need to reduce the scope of Government patronage. That is something in which we are already engaged.

[Daniel Kawczynski]

My hon. Friend made a very important point a few moments ago about the staggering number of special advisers that the previous Labour Administration had. I believe that they even had one for timber products and for rain forests, as well as having special envoys for Cyprus and for Sri Lanka. It is slightly hypocritical of the Labour party to accuse us of patronage of this kind when there was so much in their Government.

[Mr Heath]

Well, the hon. Gentleman must not tempt me into spelling out in graphic detail the degree to which what the Labour party is now saying is the opposite of what it did in government, but of course it is the case.

[Mr Chope]

Before the Deputy Leader of the House gets carried away by what my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski), who is a PPS, said, will he correct the impression that he has given—that the previous Labour Government had the maximum number of Ministers, which is 95? In fact, they had only 90 at the most. It is only this Government who have gone up to the maximum number of Ministers. Will he explain why that is so?

21:45

[Mr Heath]

The hon. Gentleman will have to put that question to the Prime Minister.

[Mr Jenkin]

The hon. Gentleman’s honesty is touching. Will he explain very simply why 95 is the correct number?

[Mr Heath]

I think it very well might not be; it is likely that at some stage in the future we will reduce the number of Ministers. The hon. Gentleman is refusing to accept that I agree with a great deal of the thesis that has been put forward.

[Mr Kevan Jones]

Will the Deputy Leader of the House give way?

[Mr Heath]

No.

Let me go on to the next point, which is the timing of what is being suggested. This is not the hoary old chestnut that used to be described by the former Member for Cambridge, Mr David Howarth, as the doctrine of unripe time—everything was always for the best possible purposes, but the time was never ripe for it to happen. I am not saying that. I am simply saying that various elements of our proposals for reform of the constitutional arrangements and for the politics of this country are moving forward in various pieces of legislation and at various times. By the end of this Parliament, they will be in place, but this is not the right time for this measure.

Let me try to make some progress. The Government are committed—as the fairer Members who have contributed to the debate have already recognised—to passing power from the Executive to Parliament. The hon. Gentleman, who is a member of the Backbench Business Committee created by this Government, will, I hope, recognise that that is the case—

[Mr Charles Walker]

To which hon. Gentleman was he referring?

[Mr Heath]

To the hon. Gentleman.

[Mr Walker]

No, I am not a member of the—

[The Chairman of Ways and Means (Mr Lindsay Hoyle)]

Order. We cannot have two people on their feet at the same time. The Deputy Leader of the House should give way to Mr Walker.

[Mr Walker]

I should like to point out to the Deputy Leader of the House that I am not a member of the Backbench Business Committee.

[Mr Heath]

I apologise; I thought that the hon. Gentleman was. I apologise to him and to the House. I hope that it will not prove to be a resigning matter that I mistook him for a member of the Backbench Business Committee. Knowing him to be a fair-minded man I know that he will attest to the fact that this House has already moved the control of much more parliamentary time to Back-Bench Members through the Committee. We have also seen the election of Select Committee Members and Chairs, to which we have already drawn attention in this debate.

My right hon. Friend the Prime Minister has also become the first Prime Minister in history to give up the power to call a general election at the time of his choosing. I think it is clear that the Government are not looking to extend their own influence, but believe on principle that power should be dispersed. Indeed, we will bring forward legislation very soon to disperse more power to local communities and local authorities, enabling them to do their job more effectively.

I have difficulty in accepting that there is a need to put this new clause into this Bill at this time. It is now October of 2010—[Hon. Members: “Well done!”] It is good to know that Opposition Members are engaged in serious constitutional debate. There are four and a half years until the provisions of this Bill will take effect—[Hon. Members: “No.”] There are four and a half years until the provisions of the Bill on the boundary reviews and the reduction in the size of this House take effect. It does not result in an immediate change to the size of this House. We are legislating at speed to allow sufficient time for boundary reviews to be conducted nationally on the basis of a smaller House, but when we have time to reflect, we should use that time.

[Mr Graham Brady (Altrincham and Sale West) (Con)]

Surely new clause 7 would also come into effect in four and a half years, at exactly the same time as the other aspects that the Minister has mentioned.

[Mr Heath]

Yes, it would, but my point is that new clause 7 does not perfectly encapsulate the purpose that the hon. Gentleman, the Government and I might share of making government fit for purpose in that new Parliament. Given that we do not have to pass this new clause as part of the Bill, it seems sensible to take our time, listen to representations and people’s views, and see whether we can come up with something better.

We have heard very clearly that the issue at stake is the size of the Government’s payroll vote. The proposition we have heard is that the Bill will give the Executive undue numerical dominance in the House and that we must therefore legislate now to reduce the number of Ministers here. It is a numerical fact that if the Bill becomes law, and unless we legislate to the contrary at some stage, the Government elected in 2015 will be entitled to make Ministers out of a higher proportion of the Members of the House. They will not be compelled to do so, but they will be entitled to, and recent Governments have tended to appoint as many Ministers as they can, or very close to that number. My right hon. Friend the Deputy Prime Minister and I have acknowledged before that this issue deserves consideration, and it would not take a great detective to find the number of occasions on which I have said precisely that. On the face of it, it is not desirable that the payroll vote should be expanded as a proportion of the House’s membership. We have said that we will consider how to address this issue and we will do so.

We are told that Governments legislate too much, and the new clause concerns an issue that might be better resolved without legislation. Governments are capable of reducing the number of Ministers without being compelled to do so through legislation. More importantly, perhaps, the payroll vote is often taken to include Parliamentary Private Secretaries, who are not covered by current legislation and who would not be covered by the new clause. It is only by self-denying ordinance that those numbers are limited. Governments have clearly been capable of self-restraint, and that self-restraint would still be necessary if the new clause were accepted. As I have said, under the previous Government we had not only Ministers and PPSs, but tsars, envoys, special representatives, Regional Ministers and assistants to Regional Ministers. A lot of them have been removed but they were all elements of patronage within the House. If it is patronage we are seeking to address, then we have to address all those appointments, not just the ministerial ranks.

Let me repeat a point that was made earlier. Legislation would not cover the number of Opposition Front Benchers, which is also relevant if the concern is that there are too few independent voices from the Back Benches. I accept the principle of legislation on ministerial numbers as a back-stop, but surely the number of Ministers must be a function of need, which is not necessarily related to the number of MPs. When previous statutes increased the number of Ministers in the House, they were unrelated to any changes in the number of MPs: there has never been a clear link or a set ratio. At the moment, there can be one Minister for every 6.842 Members of Parliament or thereabouts. The new clause would enshrine that ratio in law in perpetuity. If it were to become law, the Government could appoint as Ministers no more than 87.692307 Members of the Chamber. That would be the relationship. I merely make the point that I do not believe that a simple arithmetic relationship is necessarily the right one to address.

We should not forget the purpose of having a ministerial presence in the House: we need sufficient Ministers to attend to the business in the House, to make statements, to answer questions, to introduce Bills and to contribute to debates. The House rightly expects the highest standards of accountability from its Ministers and we strive to meet those standards. Indeed, it is often complained that Ministers are too rarely seen when the House discusses issues for which they do not have direct responsibility. That reflects the reality that we demand a lot of our Ministers in this country, both to govern and to legislate.

The question of how many Ministers should sit in the House of Commons is bound up with other questions—for example, considering the number of Ministers in the House of Lords. As the Committee is aware, my right hon. Friend the Deputy Prime Minister is chairing a Committee on reform of the House of Lords. The Committee comprises Members from all three major political parties, as well as from both Houses—[Interruption.] From a sedentary position, the hon. Member for Rhondda asks, “What’s that got to do with it?” as though reform of the House of Lords—the thing for which we have been arguing for 100 years—has nothing to do with the constitutional arrangements of this country.

The cross-party Committee is discussing all issues pertinent to reform, including size and composition, and whether the second Chamber is wholly or mainly elected. It will also discuss the position of Ministers in the reformed Second Chamber. Currently, there are far fewer Ministers in the House of Lords than in the Commons, but we will need to think carefully about how the distribution of Ministers may be affected by any changes to the size of the second Chamber, or by the introduction of elected Members.

The Committee is charged with producing a draft Bill early next year, which will then be subject to pre-legislative scrutiny. The Government hope that will be carried out by a Joint Committee of both Houses. It is possible that arguments may then be made for either a greater or smaller ministerial presence in the second Chamber. We should wait to hear the views of the Committee.

There is also an argument that the limit on Ministers in the House of Commons Disqualification Act 1975 is arcane in other respects. For example, it makes no provision for Ministers who might fill the role on a part-time basis or a job share. It is expressed in terms of numbers of individuals rather than full-time equivalents. That should perhaps be part of any consideration.

For all those reasons, although I welcome the debate, the Government are not minded to accept the new clause. We shall reflect on the arguments made today and set out plans once we have achieved some consensus on the composition of the second Chamber, including the number of Ministers there. If it still appears—[Interruption.] I think it is important for the House to hear this. If it still appears necessary, there will be plenty of time at that stage to legislate before 2015. I urge the hon. Member for Broxbourne to withdraw the new clause, on the basis that we shall very carefully consider the arguments he has made.

[Mr Walker]

I say to new colleagues who were not here in 2009 that it was the most awful experience. We were led up the garden path by a powerful Executive and had our legs cut from underneath us. We vowed that we would never, ever let that happen again. We vowed that we would take control of this place back from the Executive.

I wish I was being braver in my new clause. All I am asking is that when the House of Commons reduces by a mere 50, we reduce the number of Ministers by a mere eight, yet in this age of new politics those on the Front Bench cannot even give us that. Colleagues, this is the night when the new politics will be born, or it will die. Please support new clause 7 tonight, to give new politics some meaning, because it will be driven by Back Benchers—it can never be driven from the Front Bench.

I call for a vote.

Question put, That the clause be read a Second time:—

21:58

Division 100

Ayes: 241

---

Labour: 199
Conservative: 22
Democratic Unionist Party: 7
Scottish National Party: 6
Social Democratic & Labour Party: 1
Independent: 1
Plaid Cymru: 1
Alliance: 1
Green Party: 1
Liberal Democrat: 1

Noes: 293

---

Conservative: 245
Liberal Democrat: 48

New schedules 2 to 5 brought up, read the First and Second time, and added to the Bill.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Bill to be considered tomorrow.

Newport Passport Office

Monday 25th October 2010 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Mr Newmark.)

22:15

[Jessica Morden (Newport East) (Lab)]

I am very grateful to have this opportunity to raise the issue of the Home Office’s proposed closure of Newport passport office. The campaign against the closure, led by the Public and Commercial Services Union and very well supported by the South Wales Argus on behalf of the workers, has united the whole community in Newport and is supported by MPs and AMs of all political parties, some of whom are here tonight. I am very grateful to those hon. Members who have stayed for tonight’s debate, which has started a little earlier than we expected, but their presence shows the strength of feeling. Most notably, the campaign is supported by my hon. Friend the Member for Newport West (Paul Flynn), in whose constituency the passport office resides.

Since the announcement that the passport office in Newport is in line to become the first major casualty of UK Government spending cuts, the city of Newport has united around the growing campaign against its closure. Three hundred workers attended the first meeting called by local union reps; more than 1,000 people attended a march and rally through Newport last week; and, in just two short weeks, more than 11,000 people have signed the South Wales Argus petition. If the Minister wants an indication of the strength of feeling in Newport, I am happy to present him with a subscription to the Argus, as I want him to be in absolutely no doubt about the fury in Newport over the decision.

The Identity and Passport Service announcement that the office could close has been badly handled, as well as being a disaster for staff and their families. Staff learned of the potential loss of their jobs from a civil servant who was sent as the bearer of bad news—not a Government politician in sight. The Secretary of State for Wales gave every impression at the time that she was not aware of the decision, although in a reply to a parliamentary question of mine she now claims that she was. That is all the more galling locally, as in her speech to the Tory party conference just a few short days before, she spoke of how the Ryder cup had put Newport on the map. We were hoping for an economic legacy from the Ryder cup, not an announcement a few days after the event that hundreds of people would lose their jobs.

[Albert Owen (Ynys Môn) (Lab)]

The Prime Minister has made big play of the respect agenda. Does my hon. Friend not agree that by not telling anybody, not least Welsh Assembly Ministers, such behaviour proves that that agenda has been dropped in favour of disrespect?

[Jessica Morden]

I agree. We now see a culture of disrespect towards the Welsh Assembly Government, and I shall come on to that point.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I congratulate the hon. Lady on securing time for this very important debate. She has my party’s full support. The announcement is not only unjust and disrespectful, but unfair, because it came before last week’s cuts, which are deeper and worse for Wales than for the rest of the UK.

[Jessica Morden]

The hon. Gentleman makes an extremely valid point, and I am extremely grateful for his support.

[Chris Ruane (Vale of Clwyd) (Lab)]

This cut is just one of a number that will affect Wales, including the cancellation of the Defence Aviation Repair Agency, the cancellation of the electrification of the south Wales railway line and the cancellation of a prison for north Wales. Now, we have the cuts in the constituency of my hon. Friend the Member for Newport West (Paul Flynn). Does that show a disrespect for Wales?

[Jessica Morden]

I thank my hon. Friend for that intervention. Over the past couple of weeks, we have seen a disgraceful list of cancellations in Wales, and that does show a complete disrespect for Wales.

I hope that the Minister will agree that the most important people in all this are the staff at Newport passport office and their families. Two years ago, when there was a rumour about the future of the passport office, my hon. Friend the Member for Newport West and I initiated a meeting with the then passport Minister, my hon. Friend the Member for Hackney South and Shoreditch (Meg Hillier). She was adamant in all her dealings with us that there should be a regional application passport office in each devolved nation. She also recognised that the staff at the Newport office did a fantastic job. In fact, she constantly praised them for what she called their can-do attitude, and for the fact that they were the regional office that always volunteered to do any pilot going. What message is sent to civil servants who strive for excellence in their jobs when they are rewarded with a decision like this proposed closure?

The previous Minister knew how good the Newport passport office is, but so do its customers, as it receives much favourable feedback from them for its fast and efficient service. I genuinely know how good that service is from personal experience when I had to get three passports at short notice last year. The staff tell me that in the past week they have dealt with customers from as far afield as Truro in the south-west, Harlow in the south-east, Scotland and Belfast, all of whom tried to get to a more local office but failed to get an appointment without waiting for two to three weeks.

[Kerry McCarthy (Bristol East) (Lab)]

My hon. Friend makes the very valid point that it is not only the people of Wales who are serviced by the Newport office. People from Bristol and much further afield in the south-west also rely on it, and they would have to make very long journeys to make passport applications if it were not there.

[Jessica Morden]

I thank my hon. Friend for her intervention; she makes a valid point. People from the south-west come to Newport for its passport service, and it is much used. For example, travellers who have a problem with their passport when they arrive at Heathrow airport might be directed by staff to Newport because it is faster and more efficient than using the London office.

Given the work that staff have to put in to get the service right, why choose to close the Newport office? My constituents are not arguing that another office in another part of the country should be closed, but they want to know from the Minister why there are not calls for voluntary redundancies across the service to make this decision much fairer. I would be grateful if he could explain how his Department came to the decision to target the Newport office. Can he share with the House what case has been made internally, and make that information publicly available? If the closure were to go ahead, how much would it cost in short-term redundancy costs? Will he share with us the results of the economic impact study when it is available?

The feeling in Newport is that this decision has been taken at the stroke of a pen—that it is easier for the Department to close just one of the seven offices instead of looking at other options. Staff tell me that the IPS has a history of making short-term decisions which then have to be reversed. In Glasgow, the postal production service was removed, only for the IPS to have to reinstate it because demand was too great and it had reduced staffing to inadequate levels. Given the real hardship that this decision will cause, will the Minister re-examine this case for closing Newport, bearing in mind that history of the IPS running down capacity and then having to reverse decisions?

I am told that when staff were informed by the chief executive why they were about to lose their livelihoods, some of the reasons cited were that the windows were single-glazed and that the floor was of the wrong type. If part of this decision is to do with the office being old and unsuitable, what discussions has the Minister had with the local authority about doing a deal over more suitable premises and thereby cutting costs in that manner?

[Chris Ruane]

Does my hon. Friend think, like I do, that the real reason the Newport passport office is being closed is not that it has the wrong type of windows but that Newport has the wrong type of political party—that is, it is represented by Labour MPs, not Conservative MPs?

[Jessica Morden]

I appreciate my hon. Friend’s point and thank him for making it.

Putting people out of work is not something that should ever be done without absolutely every alternative having been examined. In this case, the evidence for that has not been supplied to me, to my hon. Friend the Member for Newport West or to the unions, and that is not acceptable.

[Nia Griffith (Llanelli) (Lab)]

Does my hon. Friend agree that in addition to the loss of service to the people of Wales, it makes absolutely no economic or environmental sense to be centralising offices rather than keeping them in a large number of geographical locations?

[Jessica Morden]

I strongly agree with my hon. Friend about the need to spread jobs across the country, which was certainly the policy of the previous Government.

If the office were to close, as well as the effect on people’s lives and families, it would have a devastating effect on Newport, where traders are already reeling from the loss of shops, with major high street retailers Marks and Spencer, Next and Monsoon leaving the city centre. The passport office employs more than 250 people right in the heart of the shopping centre. Their custom supports other local businesses, and people who travel to Newport to get their passports often spend the four-hour wait shopping. The loss of this office would leave a gaping hole in the centre of the city. Why does the Minister believe that the private sector is going to step in and provide enough jobs to cover the job losses given that some of the private sector is leaving the city centre as well?

It is a bit ironic that the heads of both Marks and Spencer and Next signed the letter to the Chancellor last week urging cuts and suggesting they were up to the job of filling the gap. It does not bode well for the future that they do not practice what they preach, given that they are leaving our city centre. In fact, that is a case in point of the division between the private sector and the public sector being false. Private businesses have much to lose if the jobs in question are lost in the city centre, and that is precisely why people in shops and businesses are joining the marches and signing the South Wales Argus petition. They want to keep the city centre alive.

[Paul Flynn (Newport West) (Lab)]

Although it is disappointing that very few Conservative MPs are supporting us in our campaign, it is encouraging that Conservatives and Liberal Democrats on Newport council and in the Welsh Assembly are united in opposing this foolish move. Is it not encouraging that there are moves by Newport council to suggest alternative premises? The state of the premises seems to have been a factor in the decision, but now there is new information that there might well be alternative premises available that will destroy the case for the minute savings that the move would make.

[Jessica Morden]

I thank my hon. Friend. The cross-party support is very encouraging, and we very much welcome the Tory-Liberal Democrat council’s moves to consider alternative premises, which might be the answer.

May I ask the Minister to comment on why the Welsh Assembly Government were not even told that they were going to lose the passport office? As my hon. Friend the Member for Ynys Môn (Albert Owen) asked, how does it bode for the Government’s culture of respect for the devolved nations if the Government in Cardiff bay are not consulted?

Much has been said about Wales being left as the only country in Europe without a passport office. I know the Minister will argue that there will be a small office in Newport employing 45 staff. Given the strength of feeling that exists, the Government have been forced to make that decision, but they cannot expect people in Newport to be hugely grateful for 45 jobs when 200-plus will still go.

[Roger Williams (Brecon and Radnorshire) (LD)]

I congratulate the hon. Lady on making such a passionate and constructive case on behalf of the facility in Newport. Does she agree that the previous Government’s policy of taking jobs out of high-value areas and devolving them to areas where services could be delivered at better cost would be a good one to put forward in the consultation period that is about to take place?

[Jessica Morden]

That is an extremely good point, and of course Newport benefited from jobs in the Office for National Statistics, the Patent Office and the Prison Service.

I say respectfully to the Minister that the small office that is planned for Newport is not enough, and nobody in Newport is taken in by it. My hon. Friend the Member for Hackney South and Shoreditch, the former Minister, was adamant that Wales must have its fair share of jobs and that the passport service must be a truly UK service. Is the Minister 100% certain that 45 staff can service all the emergency passport demand in Wales, the west country and parts of the west midlands, not to mention the cases from further afield that I mentioned earlier?

[Mr Mark Williams (Ceredigion) (LD)]

Will the hon. Lady give way?

[Jessica Morden]

I am running out of time, but I give way to the hon. Gentleman for a tiny intervention.

[Mr Williams]

I am grateful to the hon. Lady, who is a real friend on this matter. She has got to the heart of it—it is about fairness, and an implicit part of a fairness agenda must be a meaningful dialogue with the National Assembly. I am afraid that has not happened.

[Jessica Morden]

It has not, and I thank the hon. Gentleman for making that point.

Let us be clear: what is being offered is the loss of the regional passport application centre and its replacement with an interview office. That would be a downgrading of the service, which leads me to my final point. Staff and the PCS have real concerns that if the proposals were to go through, reduced staffing would make the passport a less secure document. British passports are regarded as the most secure in the world, and the basis of that confidence is the integrity and skills of the staff involved. The loss of staff will mean that the work will have to done by fewer people, and there will be an inevitable impact on customer service and security. Is the Minister really confident that the loss of jobs will not have an impact on security?

Only this weekend, the Secretary of State for Work and Pensions said that people from the valleys should get on a bus to find work. Perhaps the Minister could tell us what town he is expecting the people of Newport to get a bus to if he proceeds with this proposal.

[Nick Smith (Blaenau Gwent) (Lab)]

Does my hon. Friend agree that that remark about people getting a bus to work was outrageous, not least because in Blaenau Gwent, not very far from Newport, there are seven people chasing each job?

[Jessica Morden]

It was an outrageous remark. Hon. Members are here in numbers tonight precisely because their constituents do get on a bus to Newport, to work at the passport office. I hope that the Minister understands that this is not just a paper exercise; it is about people’s lives. The workers at Newport passport office deserve to have the Government consider their plans in depth during the consultation period and change their mind.

22:29

[The Minister for Immigration (Damian Green)]

I understand why the hon. Member for Newport East (Jessica Morden) has chosen the debate, and she is to be congratulated on securing it. Given her reputation, I would expect her to defend her constituents as passionately as she has done tonight.

What I can do most usefully is disentangle the emotion from the facts, because although some of what the hon. Lady said was undoubtedly valuable, some of it was misleading, and some of her colleagues’ interventions frankly suggest that they do not understand the Identity and Passport Service proposals for Newport. It is important to hold the debate on a factual basis and, indeed, on the basis of the previous Government’s actions towards other passport offices. The IPS has been contracting its network of regional offices for some years.

I met the hon. Lady and the hon. Member for Newport West (Paul Flynn) last week. I was surprised when she said that she did not have any information because, as she and the hon. Gentleman know, I handed her the internal working document that the IPS used as the basis of its action. She asked for those details tonight but, as she knows, she was given them last week.

[Paul Flynn]

The Minister will recall from that meeting that we expressed some dissatisfaction with the idiot’s guide to the decision that we were given, and we questioned many of its conclusions, although we had only a brief time to look at it. We asked whether we could see the full report on which it was based, but no assurance was given that we would have it. Indeed, I suggested that we might need a freedom of information request to get it. Will the full report on which the decision was based be made available and put in the Library?

[Damian Green]

I shall ensure that the hon. Gentleman gets the available information, because I acknowledge his concern and that of the hon. Lady about the impact of job losses on the staff, their families and the local community. As the hon. Lady knows, I have met the leader of Newport council to hear his views. Of course, a proposal to lose 250 jobs has not been made lightly.

The Identity and Passport Service has long recognised that its greatest asset is its reputation, and IPS employees make a significant contribution to that, as reflected in the high levels of public satisfaction with the delivery of passports and civil registration. The Identity and Passport Service has a reputation for quality of delivery, which is achieved by those who work for the agency across the UK.

The service is paid for through the passport fee, which covers the cost of the domestic passport service and consular services overseas for British citizens. Passports have to be delivered within the fee structure and be available to the public at an economic rate. When efficiencies can be made through better working, they should be—indeed, they must be. That is why in 2008, the hon. Member for Hackney South and Shoreditch (Meg Hillier), to whom the hon. Lady referred, closed the application processing centre in Glasgow, with the loss of 124 staff. The Glasgow office currently retains a premium and fast-track service, but the processing centre work was absorbed by other regional centres. I cannot emphasise enough that that is exactly the same proposal that the Government are making for the Newport office. All the rhetoric about respect and the Government’s somehow picking on the people of Newport or of Wales is wrong.

[Paul Flynn]

rose—

[Damian Green]

The hon. Gentleman has had his chance, I have not got much time and he has already made many points. I hope that he can contain himself for the moment.

There is absolutely no disrespect to the people of Newport or of Wales. Hon. Members know about the country’s economic position and the new Government’s terrible inheritance. That is why we are having to make such decisions. It would be entirely inappropriate for the passport fee to subsidise the IPS if it were or would knowingly be over-staffed or operating with excess capacity. However, that is the situation that the IPS faces. In the case of the five remaining passport application processing centres in the UK, at Belfast, Durham, Liverpool, Peterborough and Newport, an operational review was carried out by the IPS in the light of the planned programme of efficiencies to be achieved within the next 18 months. The review identified that meeting those efficiencies by spring 2012 and beyond would result in excess capacity of around 350 staff and some 25% of the IPS estate. Therefore, cuts do have to be made.

[Paul Flynn]

All in Wales.

[Damian Green]

That is simply not true. The IPS has already lost around 100 jobs at headquarters through efficiencies and, as the hon. Gentleman knows, it is making cuts across all regional offices. In addition, the IPS has already reduced some excess capacity across the network through voluntary redundancies. The announcement at Newport reflects the need for the passport fee to pay for the delivery of a service and not for surplus posts or excess office accommodation.

[Owen Smith (Pontypridd) (Lab)]

The Minister says that cuts are being made right across the board in the IPS, but surely he sees that one fundamental difference is that Wales will be the only country left in the UK without a passport office. That is a fundamental difference, whatever the cuts made elsewhere.

[Damian Green]

That would be a fundamental difference if it were true, but it is fundamentally wrong. It is false, and the hon. Gentleman is misleading people if he is saying that Wales will be left without a passport office. There will still be a passport office for people to go to in Newport. The hon. Member for Bristol East (Kerry McCarthy) said that people travel from the south-west of England to go to the Newport passport office, and they will still be able to do so. I have read many recent editions of the South Wales Argus, with pictures of people holding placards saying, “Wales mustn’t lose its only passport office”. I am happy to assure not just the people of Newport, but the people of Wales that Wales is not losing its passport office, and it is simply misleading for hon. Members to keep repeating the falsehood that it is.

I recognise that this is a difficult time for many people, and I appreciate that many members of staff working in passport offices up and down the country have contributed to the success of the passport operation. That is why the IPS carried out an objective assessment of its UK operation, to establish how to respond to the excess capacity. A comparative assessment was made of the five centres to determine how best to achieve a better, more efficient service for all existing and future passport holders. The assessment was based on the criteria of cost, affordability, estates, people, customers, partners, performance and operational feasibility.

The primary consideration lay in the ability of the agency to achieve the right level of efficiencies, while retaining sufficient operational capacity to maintain the current high level of service. The assessment had to consider whether an application processing centre could be closed without the need to recruit additional staff back into the remaining offices. Achieving the savings through efficiencies was a key criterion, but it had to be demonstrated in the assessment that savings would be sustainable and would not simply reappear as a future cost to the IPS during periods of peak demand. As I think the hon. Member for Newport East knows, I have undertaken to carry out a full impact assessment, in line with the requirements of the Department for Business, Innovation and Skills. I note in passing that such an assessment was not published at the time of the Glasgow closure.

I appreciate that the hon. Lady will consider Newport to be a special case that should receive special consideration. I would expect hon. Members in constituencies across the UK to consider jobs in their constituencies similarly to merit special consideration. However, the IPS applied the same economic criteria to all areas, for two reasons: first, to ensure consistency and fairness; and secondly, because the IPS is a UK-wide service and requires an operational structure that ensures the highest standards of delivery and service for all its customers, in all parts of the United Kingdom. The IPS has identified the Newport passport application processing centre as the main potential candidate for closure by using an evidence-based approach. The closure would be achievable at the lowest cost, and would represent the most favourable net present value and enable the IPS to retain sufficient operational capacity after closure without the need to recruit staff to back-fill into other offices. The IPS is looking to achieve the necessary staff reductions while avoiding compulsory redundancy wherever possible. That is why, in the case of Newport, the IPS is working with the Wales Office and other Departments to help to identify opportunities elsewhere.

I repeat, in the hope that hon. Members will accept this salient fact, that the proposed restructuring of the regional application processing centres does not mean that Wales will be the only devolved nation without a regional office. The IPS will retain a customer service centre in Newport to service south Wales and the south-west, employing up to 45 people to provide a counter service and with the ability to deal with applicants in the Welsh language. That will cater for the 47,000 people a year who use the current Newport regional office and also provide capacity for 7,000 interviews. The service proposed for Newport after spring 2012 will be similar to the services currently in place at the IPS offices in Glasgow and London.

The point was made strongly to me by the Secretary of State for Wales, my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan)—as it was by the hon. Member for Newport East—that shops in the centre of Newport have been closing and that there is a threat to the town centre. The footfall of those 47,000 people who visit the passport office is therefore essential to give some hope to the shops that remain in the town centre and to the town centre’s continuing regeneration. I found that argument very persuasive from my right hon. Friend and from the hon. Lady, and that is why I have decided that that office should stay in Newport. It could be moved to somewhere else in Wales; that would fulfil the criteria desired by other Opposition Members that Wales retain a passport office, and I could obviously do that without retaining it in Newport. Given the particularly difficult circumstances that Newport has faced, however, I think that it is right to retain the customer service centre there, and that is what we intend to do.

Obviously, this will be of little comfort to the hon. Lady’s constituents and those of the hon. Member for Newport West who might lose their jobs through the closure of the Newport passport application processing centre, but the decision reflects the importance that the IPS attaches to providing a service to passport applicants and holders across the UK. I am afraid that the IPS simply has excess staff capacity in its application processing and interview office networks of around 350 full-time equivalents. It has excess physical capacity of approximately 25% across the whole application processing estate, and excess staff capacity of about 150 full-time equivalent jobs and 39 local offices across the interview office network. That is why what is happening in Newport is not the only reduction that the IPS is having to go through. It is having to make cuts across all its regional offices and across the interview centres as well.

The IPS has begun a formal 90-day consultation period with the trade unions. It began on 19 October, and we will provide the unions with extensive background information on the decision to close the Newport processing centre. We are also looking into whether that information can be made public before the end of the consultation period. To answer another specific question, the IPS will be producing a full impact assessment, which will include an assessment of the economic impact of the loss of approximately 250 jobs. Home Office economists will support the IPS with that analysis.

We will seek to include as part of the assessment the impact of job losses on a local area, but that might not be specific to the economic environment in Newport. The IPS has conducted its closure analysis as an operational task, and to include in the analysis the effect on a specific local area, we would need to conduct a local economic impact assessment on all five application processing centres. Clearly, that is not a function for the IPS.

IPS officials are continually offering meetings to the First Minister and to local council officials in Newport. As I have said, I have already met the local council leader.

[Jessica Morden]

May I ask the Minister why he did not consult the Welsh Assembly Government before taking this decision?

[Damian Green]

As I say, we have started a consultation period, but, regrettably, as so often happens, for some reason somebody chose to announce this before all the consultations had properly taken place. The hon. Member for Newport West had asked for a meeting with me and I had agreed to meet him in the intervening period. As he knows, however, the BBC and various other journalists got hold of the date for the start of the consultation process. These things happen, and it is very unfortunate—

22:45

House adjourned without Question put (Standing Order No. 9(7)).

Written Ministerial Statements

Monday 25th October 2010 Written Statements

Monday 25 October 2010

“A Long-Term Focus for Corporate Britain”

Monday 25th October 2010 Written Statements

[The Secretary of State for Business, Innovation and Skills (Vince Cable)]

I announced on 22 September that I would be undertaking a review into corporate governance and short-termism. Today’s publication of “A Long-Term Focus for Corporate Britain—a call for evidence” marks the first stage of this review.

The UK has benefited greatly from open, free and well functioning capital markets. Our companies and markets have been successful in attracting investment into the UK and providing wealth creation which we need to prosper as a nation. But recent events have exposed weaknesses. We must ensure that growth is not compromised by short-term volatility or its benefits captured by a few at the expense of the many who provide the capital, and the wider national interest.

Government intervention, both through regulation and other measures, seeks to address such failures, while maintaining markets which are as free and open as possible. The UK has led the world in developing high standards of corporate governance, most recently with the introduction of the stewardship code, setting out the role of shareholders in holding directors to account.

These are important steps to secure sustainable UK growth for the future. The review aims to establish whether there are further issues affecting the functioning of capital markets and, if so, what are the causes. It considers the role of directors and shareholders and asks fundamental questions; for example, about shareholder engagement, market short-termism and the functioning of the investment chain in the UK. It also considers directors’ remuneration and—following up the takeover panel’s recent announcement—the economic case for takeovers.

This review builds on the report published by the Business, Innovation and Skills Committee on “Mergers, Acquisitions and Takeovers: The Takeover of Cadbury by Kraft”. It is also closely linked to the Department’s recent consultation on the future of narrative reporting.

I am placing copies of this document in the Libraries of both Houses.

ECOFIN

Monday 25th October 2010 Written Statements

[The Financial Secretary to the Treasury (Mr Mark Hoban)]

The Economic and Financial Affairs Council was held in Luxembourg on 19 October 2010. The following items were discussed:

Administrative Co-operation in the Field of Taxation

This directive aims to improve arrangements for exchange of information on request and bring the EU into line with OECD standards. It also extends automatic exchange of information, which the UK supports to the extent that this does not impose disproportionate burdens on business or on tax authorities at a time of fiscal consolidation. The Council agreed that they would aim to reach political agreement on this issue at their November meeting.

VAT Reverse Charge Derogation

The Council agreed that a new derogation should be provided, until the end of 2013, to Germany, Italy and Austria, allowing the application of a reverse charge to mobile telephones and computer chips. The Council also agreed to extend, until the same date, the UK’s VAT reverse charge to domestic trade in mobile phones and computer chips. The reverse charge has been a key component in reducing VAT fraud and has helped protect billions of pounds since 2007.

Stability and Growth Pact

The Council discussed Lithuania and Romania’s excessive deficit programmes. They agreed that the actions taken by both countries represented adequate progress towards the correction of excessive deficits within the deadlines set by the Council, and that no further steps under the excessive deficit procedure were required at the moment.

Debrief on the Informal ECOFIN Meeting

The Council briefly took stock of discussions held during the informal ECOFIN in Brussels on 30 September and 1 October.

Preparation of the G20 Ministerial Meeting

The Council endorsed the terms of reference for the G20 ministerial meeting in South Korea on 22 and 23 October. These will form the basis of the EU’s contribution to the meeting. The Government believe that these reflect UK priorities. However, since the UK’s views are represented through the separate UK seat in the G20, the UK is not bound by these terms of reference.

Tertiary Education

The Council adopted conclusions on a Commission report on tertiary education. The UK is content with the report, which was commissioned by the May ECOFIN Council to assess the efficiency and effectiveness of public spending on tertiary education.

Report on Fiscal Frameworks

Ministers adopted Council conclusions which welcome a report on fiscal frameworks. The Government support the report, which highlights common features of successful national experiences in the Netherlands, Sweden and Austria.

Preparation for European Council: Levies and Taxes on Financial Institutions

ECOFIN agreed a report to the European Council on levies and taxes on financial institutions. The Government are content with the report, which recognises that there is no consensus on how national Governments should deploy the proceeds from bank levies. It states that an EU-only financial transaction tax could result in significant distortion of competition and relocation of financial activity within the global financial system, so careful analysis needs to be carried out.

Alternative Investment Fund Managers Directive

The Council reached unanimous political agreement on the presidency’s compromise text on the alternative investment fund managers directive. This will now form the basis of further discussions with the European Parliament, which is due to vote in plenary session in November. This agreement represents a number of significant gains for the UK from the ECOFIN general approach of 5 May, including provision to extend the marketing passport to managers and funds outside of the EU. The Government also successfully ensured that the agreement limits the powers of the European Securities and Markets Authority to those already provided for in the package on financial supervision.

National Infrastructure Plan 2010

Monday 25th October 2010 Written Statements

[The Chief Secretary to the Treasury (Danny Alexander)]

The Government have today published a national infrastructure plan outlining its vision for the future of UK economic infrastructure.

This is the first ever infrastructure plan for the UK. It outlines the scale of the challenge facing UK infrastructure and the major investment that is needed to underpin sustainable growth in the UK. It focuses on the networks and systems—in energy, transport, digital communications, flood water, waste management and in science—that provide the infrastructure on which our economy depends. The plan gives clarity on the role of Government in specifying what infrastructure we need and how they can remove barriers to mobilise both private and public sector resources to maintain our world class infrastructure.

Copies of the document have been deposited in the Libraries of both Houses and are available on the Treasury website at: www.hm-treasury.gov.uk.

Tax Information Exchange (Netherlands Antilles)

Monday 25th October 2010 Written Statements

[The Exchequer Secretary to the Treasury (Mr David Gauke)]

A tax information exchange agreement (TIEA) was signed with the Netherlands Antilles in The Hague on 10 September 2010.

The text of the TIEA has been deposited in the Libraries of both Houses and made available on HM Revenue and Customs’ website. The text will be scheduled to a draft Order in Council and laid before the House of Commons in due course.

London Regional Committee Report (Government Response)

Monday 25th October 2010 Written Statements

[The Minister for the Cabinet Office and Paymaster General (Mr Francis Maude)]

The report by the House of Commons London Regional Committee on their only inquiry into London’s population and the 2011 census was published on 31 March 2010 (HC 349). This Government did not re-establish the Regional Committees. They recognise the importance of providing a response to Parliament on the issues raised by the Committee. The majority of the recommendations in the report were for the Office for National Statistics (ONS). Two of the Committee’s recommendations were for Government and this written ministerial statement provides the Government’s response. The other recommendations were for ONS and I have placed today a copy of its response in the Library of the House.

This Government have serious concerns about the 2011 census introduced by the previous Parliament. Having given the issue serious consideration, and the costs already incurred, the 2011 census is the only way that unique information can be provided to meet essential UK and EU requirements in the given timeframe at no extra cost than that budgeted. It is important that the 2011 census goes ahead and this Government will continue to promote the importance of the public engaging with the 2011 census.

Given the highly mobile nature of the population, the UK Statistics Authority recognises the increasing difficulties and costs in carrying out a census. The authority has therefore instructed ONS to urgently work on developing alternatives, with the intention that the 2011 census is the last of its kind.

Recommendation 21 of the Committee’s report was dealt with by the previous Government, with my predecessor writing to the Chair of the Committee shortly before the report was published.

Recommendation 14 of the report was on the need for the census address register being developed by the ONS for the 2011 census to be maintained after the census. The previous Government failed to deliver a definitive address register, despite the demands for such a register and the associated costs of inefficiency in maintaining a number of similar registers. This Government are working with the parties concerned and will look to deliver a definitive register. Considerable progress has already been achieved. The work ONS has done will form part of the solution.

Ports Tax

Monday 25th October 2010 Written Statements

[The Parliamentary Under-Secretary of State for Communities and Local Government (Robert Neill)]

Since the day we came into Government, we have been committed to finding a solution to the “ports tax”—the unfair backdated rates bills incurred by some businesses.

We announced in June that we would waive these backdated bills which businesses were telling us threatened jobs, investment and in some cases their solvency. However, we were clear that the waiver would require primary legislation.

I am today announcing that the Government intend to include in the forthcoming localism Bill, the necessary provisions to cancel certain significant and unexpected backdated business rates bills. This will allow affected businesses, in ports and others across England, to move forward confidently, unburdened by the crippling debt imposed by this liability.

Call-Out Orders: Reserves

Monday 25th October 2010 Written Statements

[The Minister for the Armed Forces (Nick Harvey)]

With the expiry of the call-our order made on 24 October 2009, a new call-out order has been made under section 56 of the Reserve Forces Act 1996 to enable reservists to continue to be called out into service to support our wider efforts to counter the threat from international terrorism and piracy, and to assist our maritime security objectives. The order takes effect from 25 October 2010 and ceases to have effect on 24 October 2011. Some 250 reservists were called out under this order made last year and their continued support is greatly appreciated and valued.

Right to Information (Criminal Proceedings)

Monday 25th October 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government have decided to opt-in to the directive on the right to information in criminal proceedings. The directive meets the criteria set out in the coalition agreement with regard to EU justice and home affairs measures.

The draft directive will provide minimum standards for individuals subject to criminal proceedings. British citizens abroad will benefit under the directive from increased confidence in procedural standards across the European Union. It will also increase security at EU level by supporting existing provisions which help combat crime and promote the rule of law.

The Government will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system.

Cold Weather Payments

Monday 25th October 2010 Written Statements

[The Minister of State, Department for Work and Pensions (Steve Webb)]

I am pleased to announce that the cold weather payment rate which was due to return to its default level of £8.50 will be permanently increased to £25.00 from this winter. Amending regulations were laid today and will come into force on 1 November 2010, in time for the beginning of this winter period.

Cold weather payments provide help for pensioners in receipt of pension credit and to certain vulnerable groups in receipt of income support, income-based jobseeker’s allowance and income-related employment and support allowance to meet heating costs incurred, or likely to be incurred, in cold weather.

Payments are triggered when the average of the mean daily temperature for a period of seven consecutive days at given weather stations is recorded as, or is forecast to be zero degrees Celsius or below.

House of Lords

Monday 25th October 2010 Lords Chamber

Monday, 25 October 2010.

14:30

Prayers—read by the Lord Bishop of Wakefield.

Climate Change: IPCC Leadership

Monday 25th October 2010 Lords Chamber

Question

14:37

Asked By

[Baroness Noakes]

To ask Her Majesty’s Government whether they support the leadership of the Intergovernmental Panel on Climate Change.

[The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)]

My Lords, yes. The Intergovernmental Panel on Climate Change is the primary authority on the science of climate change and the Government retain confidence in its leadership. We welcome the agreement reached by the IPCC to take forward some key recommendations of the recent independent review into its procedures, communications and management.

[Baroness Noakes]

My Lords, I thank my noble friend for that reply. He will be aware that the recent report by the InterAcademy Council laid bare the faulty processes in the IPCC which led, inter alia, to the ridiculous assertion about the melting of the Himalayan glacier. One clear recommendation was that the IPCC chairman should not serve for more than one term—that is to say, that the current incumbent should already have gone. Why have the Government reached the position in which they appear not to support that? What representations, if any, did the Government make at the recent IPCC meeting to that effect?

[Lord Marland]

Let me point this out to the noble Baroness and let us look at the facts: this organisation won the Nobel Peace Prize in 2007, and that should be commended. Like many organisations it will have growing pains, management and communications issues, but it has 194 countries subscribing to it and we cannot just wave a magic wand and change things. An independent review of its activities was carried out—I am grateful to Sir Peter Williams, the treasurer of the Royal Society, for being on the review committee—which found that the management structure was weak and that communications were not adequate. However, the review found that the information the IPCC provides is highly relevant. Frankly, it is not for this Government to decide how the organisation should be run. Dr Pachauri, the chairman, has accepted the recommendations and is going to implement them. He has an excellent relationship with emerging markets, which is very important, and he is an eminent Yale professor who is working for free.

[Lord Soley]

Does the Minister accept that, although the science on climate change is incredibly complex, all of it points in the direction of climate change being profoundly dangerous? Therefore, is it not right that, even though an organisation such as the climate change body to which he refers may make mistakes from time to time, it is critically important that, although we might examine those mistakes, we do not lose sight of the overall need to stop the pollution in which we are engaged at the moment?

[Lord Marland]

My response can be very short this time: I completely agree with the noble Lord, who is right. The Stern review showed that we have got to invest now to stop climate change in the future. I do not disagree with one word that he has said.

[Lord St John of Bletso]

My Lords, does the Minister agree that, apart from the necessity of agreeing a road map for the avoidance of deforestation, it is also vitally important that the IPCC addresses the issue of education on environmental matters and the promotion of green professionals?

[Lord Marland]

Again, I totally agree. We have to show leadership on the subject of climate change. As we said in the discussion on deforestation the other day, we have committed £300 million towards that out of the £1.5 billion that has been ring-fenced. It is encouraging that there is cross-party agreement on that endeavour, and that should be continued.

[Lord Pearson of Rannoch]

My Lords, the Minister says that Dr Pachauri is working for free, but has he read Christopher Booker's column in the Sunday Telegraph? It suggests that Dr Pachauri has some side activities that might be worthy of the Government's attention.

[Lord Marland]

I have known Christopher Booker for a long time, but I am afraid that I do not agree with a lot of things he has to say. Doubtless, the noble Lord agrees with every word—it is probably a biblical thing.

[Baroness Smith of Basildon]

My Lords, while clearly lessons are to be learnt from any errors in the assessment report, that does not alter the fact that there is overwhelming scientific evidence of significant man-made climate change and action must be taken. Does the Minister agree with the professor of physics and oceanography, Stefan Rahmstorf, that one of the great strengths of the IPCC is that it tends to be conservative and cautious and does not overstate any climate change risk? Indeed, it has since been proved by the July 2001 study that projections in temperature and sea level have risen higher than the top of the range predicted by the IPCC.

[Lord Marland]

I thank the noble Baroness for pointing that out. Again, the role that the Labour Government played in sorting out the problems that the IPCC had got into is to be commended. I totally endorse what the noble Baroness said.

[Baroness Parminter]

My Lords—

[Lord Hannay of Chiswick]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, let us hear next from the noble Baroness, Lady Parminter.

[Baroness Parminter]

My Lords, should not the most important leadership on climate change be from the United States and China? Will my noble friend inform the House what the Government are doing to persuade those two giants of carbon emissions to exercise that leadership at Cancún later this year?

[Lord Marland]

I thank my noble friend for her second question in this House. Both of them have been excellent on this particular subject. The fact is that we have to show leadership. I am glad to say that the Prime Minister will visit China next month. He will lead a UK-China summit on low carbon development, which will be a central pillar of the visit. The Secretary of State, Chris Huhne, will join him.

The USA has made commitments. We may or may not consider them adequate, but it has made a commitment to improve carbon reduction by 17 per cent on 2005 levels by 2020.

[Lord Hannay of Chiswick]

My Lords, does the Minister not agree that practically all the criticism that has been levelled at the IPCC and other bodies supporting it has been about personalities and process but has not shaken the fundamental case? It would be much better if the critics concentrated on the fundamental case—if they can disprove it, which I do not believe they can—and laid off on the process and the personalities.

[Lord Marland]

The noble Lord makes a valid point, particularly as the previous chairman was hounded out by a similar approach. The fundamentals are what we are here to look at and I totally agree with him.

Charities: War Zones

Monday 25th October 2010 Lords Chamber

Question

14:44

Asked By

[Lord James of Blackheath]

To ask Her Majesty’s Government whether they will clarify the responsibilities of charities under the Corporate Manslaughter and Corporate Homicide Act 2007 when placing representatives in war zones.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, charities have responsibilities when placing representatives in war zones, but the Act referred to in the Question applies only when the harm that leads to a death occurs in the UK, UK territorial waters, or on a British ship, aircraft, hovercraft or an offshore installation covered by the UK criminal law.

[Lord James of Blackheath]

My Lords, I thank the Minister for that reply. Does he share my concern that this somewhat difficult Act contains within it a form of Catch-22, whereby any attempt to try to increase accountability might have a knock-on effect on charities to the extent that they cannot afford the risk of sending abroad the people to administer the money that they raise, which would have very serious effects to the detriment of British charitable support? Can we find a way round that problem of increased accountability?

[Lord McNally]

My Lords, I read the report of the Committee on that Bill of 5 February 2007, when my noble friend raised a similar doubt, and the noble and learned Lord, Lord Goldsmith, gave him reassurances on this matter. I do not think that we can go beyond those reassurances, as we do not believe that the Act has the adverse effect on charities that he feared then and evidently still fears.

[Lord Phillips of Sudbury]

My Lords, does my noble friend agree that, although, as he says, the 2007 Act and criminal law do not apply to staff of charities working in war zones abroad, civil law and common law apply and the law of negligence is very much alive to those circumstances? Do the Government offer any advice or assistance to overseas charities having to make very difficult judgments vis-à-vis their staff when they are put into highly vulnerable circumstances?

[Lord McNally]

Yes, my Lords, we do. The issue is difficult and is a matter of judgment for the charities and for the individuals concerned, but we do not say that those very brave individuals should not go. I pay tribute to those who are willing to go into places of danger on behalf of charities. The Department for International Development draws the attention of NGOs to FCO travel advice for the area and the Charity Commission provides guidance to charities working internationally on how to manage the risks to their staff.

[Lord Elystan-Morgan]

Will the Minister kindly tell the House, since the Act came into operation three and a half years ago, how many prosecutions there have been, how many civil actions have been commenced, and if so with what result?

[Lord McNally]

I am afraid that I shall have to write to the noble Lord on those questions.

[Lord Campbell-Savours]

Are most representatives of charities who go into these war zones generally covered by insurance?

[Lord McNally]

They can be insured, but if they are going into very dangerous places it may be very difficult to get comprehensive insurance, which I suspect is the issue behind that question.

Iraq: Camp Ashraf

Monday 25th October 2010 Lords Chamber

Question

14:48

Tabled By

[Lord Corbett of Castle Vale]

To ask Her Majesty’s Government what representations they have made to Iraq regarding its undertakings to ensure the safety and security of Iranian refugees at Camp Ashraf.

[Lord Archer of Sandwell]

In the absence of my noble friend Lord Corbett of Castle Vale, and at his request, I beg leave to ask the Question in his name on the Order Paper.

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, we have discussed the situation at Camp Ashraf with the Iraqi Prime Minister, the Iraqi Foreign Minister, the Iraqi Human Rights Minister, the Iraqi Minister of Internal Affairs and the Iraqi Government’s Ashraf committee. The United Kingdom has underlined the need for the Iraqi authorities to deal with the residents of Camp Ashraf in a way that meets international humanitarian standards. Officials from the British embassy in Baghdad have visited Camp Ashraf four times in the past year and remain in contact with the United Nations Assistance Mission and the United States. We continue to follow developments.

[Lord Archer of Sandwell]

My Lords, I thank the noble Lord for that account of energetic activity, but does he agree that, since the occupying forces of the Americans and British delivered the residents of Ashraf to the mercies of the Iraqi military, they retain some obligation for their welfare and protection from repeated murderous attacks and the interruption of food and medical supplies? Does he agree that, if we could discharge an obligation simply by saying that we had transferred it to someone else, we could all get rid of our debts instantly and painlessly? Do the Government agree that they retain a responsibility to protect?

[Lord Howell of Guildford]

We certainly retain a humanitarian concern, but we have to remember, as I am sure the noble and learned Lord will be the first to recognise, that Iraq is now a sovereign state with its own responsibilities and it is within the Iraqi sovereign concern to address this matter in the proper way. That does not mean that we will ignore it. As I indicated, we have constant contact with the Iraqi Government; the United Nations Assistance Mission visits the site once a week, although for the moment it has removed its continuous monitoring; and there is international pressure. However, the facts are the facts: Iraq is a sovereign country now and it lies within that country’s sovereign area to address the problem and solve it in a sensible way.

[Lord Waddington]

Does my noble friend not agree that even if the residents in Ashraf are, as some argue, no longer entitled to protection under the fourth Geneva convention, we as partners of America in the Iraqi war have a clear moral responsibility to try to stop any violence or intimidation of the people in Ashraf? I am grateful for what he has said about the representations that have already been made, but perhaps the time has come when we should be urging a permanent UN presence in Ashraf until things are really sorted out there.

[Lord Howell of Guildford]

I recognise my noble friend’s continuous concern on this issue. It is the concern of all of us that we do not want to see suffering, violence or worse. However, as has been acknowledged by the United Nations, the people of Camp Ashraf do not have refugee status under the fourth Geneva convention, nor are they prisoners of war under any other part of the Geneva convention. Our concern must be the concern of any civilised nation—that this matter can be handled properly. The UN does not find the idea of a permanent military force there acceptable but, as I said, it is keeping the matter under constant monitoring and we shall continue to press it strongly.

[Baroness Symons of Vernham Dean]

My Lords, does the Minister not agree that, irrespective of our legal obligations, we have an enduring obligation to the people in Camp Ashraf, as the noble Lord, Lord Waddington, indicated? After all, we do not hand anyone over to any sovereign power if we think that they would be tortured or in any other way mistreated. Does the Minister believe that there is any truth in the allegations that United States officials are not allowed into Camp Ashraf for inspections? I am pleased to hear that our officials have been allowed in, but will he assure us that they will continue to visit the camp? Is there any hope that in the future there will be UN inspectors in Camp Ashraf, as the noble Lord, Lord Waddington, rightly requested?

[Lord Howell of Guildford]

I can give hopes and intentions rather than assurances because, as the noble Baroness knows well from her own experience, this is a difficult area. Obviously, we intend to continue having access and monitoring. We intend to continue pressing the UN, which appears to be ready to visit and maintain a close eye on the situation. The overall pattern, however, is governed by the fact that this is Iraqi sovereign territory and Iraq is a sovereign state, although the Iraqis will be watched carefully by the world and will be expected to police and manage this matter in a civilised way.

[Baroness Nicholson of Winterbourne]

Does the Minister agree that, since the residents of Camp Ashraf have no refugee status, they are in fact there by choice? Is it not ironic that no member state of the European Union, including the UK, or North America will accept these residents of Camp Ashraf because of the activities of some of them in earlier times? Is it not therefore time for us to move on and leave this issue to the sovereign nation of Iraq?

[Lord Howell of Guildford]

My noble friend speaks on this matter with a great deal of wisdom and experience. She is right that there is some baggage from the past to carry, which makes it additionally difficult to deal with the status of these people. Nevertheless, having been involved in Iraq for many years, until it restored its full sovereignty, we have a moral concern and must keep the issue alive. I am very grateful that noble Lords keep raising it. We do not want to see it deteriorate into hideous bloodshed in the future.

[Lord Clarke of Hampstead]

My Lords, we will all be pleased to hear about the activities that the Government are pursuing through the various bodies that are in control of Iraq, but when we talk about the normal procedures for these things, there is something that we must bear in mind. Does the Minister agree that we should pay tribute to those people—the women—who stood up to the chains with which they were being beaten when the Iraqi people went into the camp? Does he agree that these people deserve more than words? There should be good, sound advice from this House about what goes on when young people are beaten up there. As I have seen on the DVD, chains are being used to hit women who are protesting. Will the Minister, who I know is doing the best that he can, now go to the United Nations and say, “Normal procedures are one thing, but let’s get on and get these people some security”?

[Lord Howell of Guildford]

The noble Lord is right: all such methods and activities, where they take place, should be deeply deplored. These are not the kind of things that we expect to see in the modern Iraq, which is trying to take its place in the world and the comity of nations as a responsible power. We should never cease to put pressure on Iraq to maintain the highest possible standards and we should not cease to deplore anything of the kind that the noble Lord has described.

[Lord Desai]

My Lords, am I right in thinking that, if these people were in the UK, we would not send them to Iraq, knowing full well that they would be tortured?

[Lord Howell of Guildford]

That is a hypothesis with which I would have to agree if that were so but, unfortunately, it is not. We are dealing with a much more complex situation, with Iraq seeking to get a new Government and to be a sovereign power. There is also the historical baggage to which I have referred and the malign influence of Iran throughout the Middle East, which we must never cease to safeguard against and watch carefully.

[Lord Dholakia]

My Lords, one area of concern is the treatment of residents in Camp Ashraf, particularly those who suffer from cancer et cetera. They have no or very restricted access to hospitals in Baghdad. Will the Minister consider, on humanitarian grounds, ensuring that the United Nations Assisted Mission in Iraq is able to assist in such cases?

[Lord Howell of Guildford]

Yes, I am assured—I have checked this carefully—that all basic and medical supplies are getting in. There is a hospital facility in the camp. Although some items—bicycles and beds, oddly enough—have been prevented from entering the camp, all basic material and food supplies, and the basic essentials of life, are getting into the camp and will continue to do so. The UN is very concerned to see that this situation is maintained.

[Baroness Farrington of Ribbleton]

My Lords, can the Minister assure us that visits on behalf of Britain are unannounced and that there is an insistence on meeting people without security guards being present? We all know that there is a danger that a prepared route is available and that prisoners are often too frightened to speak out.

[Lord Howell of Guildford]

I have not had any clear information about there being a difficulty on that front so far. The visits have been regular and occasionally irregular and therefore unannounced and unplanned for. I do not think that there has been any difficulty, but I will watch out for that carefully in the future to see that these are genuine visits, where evidence is presented and not covered up.

Housing: Shared Ownership

Monday 25th October 2010 Lords Chamber

Question

14:59

Asked By

[Baroness Gardner of Parkes]

To ask Her Majesty’s Government what they expect to be the effect of the limitations on shared ownership for first-time buyers as set out in the Financial Services Authority’s policy statement A Specialist Sourcebook for Building Societies, published in March 2010, stating that a maximum of 15 per cent of a building society’s whole mortgage book will be available for non-prime owner-occupied mortgages.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, the regulation of building societies is a matter for the Financial Services Authority, which is an independent body. I have, however, raised this question with the FSA and I understand that it has written to my noble friend, explaining how it uses its Specialist Sourcebook for Building Societies.

[Baroness Gardner of Parkes]

I thank my noble friend for that Answer, but is he aware that the 15 per cent limit also covers buy-to-let, commercial and social landlords and equity release schemes, so an awful lot is crammed into it? The problem seems to have arisen because the FSA says that this is guidance but building societies have said at a recent meeting of 14 major and minor societies that individual supervisors from the FSA have insisted that this was an absolute maximum and that there was no question of discretion. Will my noble friend clarify that this is just guidance?

[Lord Sassoon]

Well, my Lords, the FSA, and what my noble friend has reported it as saying, must stand for themselves. I cannot directly answer for the FSA. However, my clear understanding is that the source book offers guidance on the way that the FSA undertakes its regulation and does not consist of formal rules. Indeed, for those societies with advanced risk management systems, there is not even an indicative limit on the level of shared ownership in which they can engage. As I understand it, building societies can lend within their statutory limits. They can undertake any lending up to their statutory limits provided they have appropriate controls in place.

[Lord Forsyth of Drumlean]

My Lords, given that the sub-prime crisis in the United States was caused in the first place by government interference requiring lenders to lend money in an unsafe way, should we not be very wary about interfering in the lending decisions of building societies or others, however important the social issues are?

[Lord Sassoon]

My Lords, the Government want to have a sustainable mortgage market in this country, and that requires a balance in maintaining a flow of mortgages so that people can get on to the housing ladder. In that regard, the actions which the Government have taken to ensure that market interest rates are kept low are paramount. On the other hand, we want to ensure that mortgage providers lend responsibly. That is why the Financial Services Authority is conducting a mortgage market review and why in July it issued a responsible lending paper for consultation.

[The Countess of Mar]

My Lords, to whom is the Financial Services Authority responsible if it is not answerable to Ministers?

[Lord Sassoon]

The Financial Services Authority is, indeed, appointed by Ministers and has a high degree of reporting to all its stakeholders, including Parliament. The Government do not believe that the model of tripartite regulation which we inherited from the previous Government is at all appropriate. Therefore, the FSA will go under the legislation which we will be bringing forward and we will have a completely new system of accountability for financial services regulation which we think is more appropriate.

[Lord Newby]

My Lords, does the Minister agree that the large number of different affordable housing schemes offered by the Homes and Communities Agency are confusing to lenders, developers and, ultimately, to the buyers they are supposed to be helping? Will the Government undertake to rationalise the schemes that the HCA currently offers?

[Lord Sassoon]

My Lords, I am wary of straying too far from financial regulation into housing policy areas but I will ask my ministerial colleagues in the Department for Communities and Local Government to write to my noble friend on that point.

[Lord Eatwell]

My Lords, is the Minister aware that in the source book referred to by the noble Baroness, Lady Gardner, there is a clear premise that building societies—mutuals—are significantly less risky than banks because, as the source book itself says, of their,

“lower exposure to wholesale funding and complex financial instruments”.?

If they are less risky, is it not time to reduce the punitive levy on building societies for the Financial Services Compensation Scheme—a levy which is reducing the funds available for lending to house buyers?

[Lord Sassoon]

One of the beauties of the current system and our future system of financial regulation is that decisions about the relative riskiness of different classes of financial assets are emphatically not for government but for the financial regulator, which in due course will be the Bank of England. So while I can ask the Financial Services Authority to write to the noble Lord, I am certainly not going to second-guess its judgments.

[Lord McFall of Alcluith]

My Lords, are not all the building societies that became plcs now bust and out of business, and is there not a case for looking at mutualisation with responsibility? Surely the Government should be encouraging the FSA to go along those lines so that we have good mutual organisations, which have existed in the past, lending responsibly.

[Lord Sassoon]

My Lords, it is important that we have diversity and a variety of providers of financial services. In that context, building societies of course have an important role to play—particularly in the area of shared-ownership mortgages, which is the subject of the Question. Many building societies continue to offer products in this area, and I welcome that.

[Baroness Gardner of Parkes]

Will the Minister confirm that, in spite of what my noble friend Lord Forsyth said, there is a self-limiting situation, in that someone applying for shared ownership can have the mortgage for their percentage of ownership tailored exactly to an amount that they can be sure of paying?

[Lord Sassoon]

My Lords, questions about what people can afford to pay are essentially for the mortgage provider to judge in the context of its commercial decisions, made within the responsible lending guidelines set down by the FSA.

[Lord Christopher]

My Lords, can the Minister offer a view on why equity release schemes should be regarded as sub-prime mortgages? I should have thought that such arrangements were highly desirable, given the age distribution that we face.

[Lord Sassoon]

My Lords, I regret that I am not going to be drawn into making judgments which are for the financial regulators to make.

Terrorist Asset-Freezing etc. Bill [HL]

Monday 25th October 2010 Lords Chamber

Report

15:06

Amendment 1

Moved by

[Lord Lloyd of Berwick]

1: Clause 2, page 2, line 3, at beginning insert “Subject to section (Treasury’s power to make final designation (No. 2)),”

[Lord Lloyd of Berwick]

My Lords, I intend to address the amendments that relate to the final order, and I therefore wish to degroup the amendments that relate to the intermediate order.

It seems that the Bill has attracted little public attention, except from our own Constitution Committee, which was very critical of the Bill, and from bodies such as Liberty and Justice, which are even more critical. Liberty and Justice state in their briefing paper that they have four major concerns. The purpose of my amendments is to meet at least some of those concerns.

The purpose of the Bill is to give effect to Security Council Resolution 1373, following the decision of the Supreme Court in the case of Ahmed, which quashed the orders made by the Treasury. The Bill was first drafted by the previous Administration, but that does not matter, because the starting point of its drafting should surely have been the decision of the Supreme Court in the Ahmed case and the light that it throws on the meaning and effect of Resolution 1373.

Reading the Bill in July, my immediate impression was that Ahmed had been very largely ignored. The Bill simply puts on a statutory basis, as was required, the provisions of the Terrorism Order 2006, but ignores the very serious criticisms that the Supreme Court made of the order. To make that good in Committee, I referred to a paragraph in the judgment of the president of the Supreme Court, the noble and learned Lord, Lord Phillips. Afterwards, I wrote to the noble Lord, Lord Sassoon, to explain the difficulties that I had with the Bill, and he was courteous enough to reply. I make no apology for repeating the words of the noble and learned Lord, Lord Phillips, because they are central to what is wrong with the Bill. Having referred to paragraph 1(c) of the critical resolution, he continued:

“Paragraph 1(c) requires the freezing of the assets of those who commit the acts that the Resolution has required should be criminalised and their agents. Thus what the resolution requires is the freezing of the assets of criminals. The natural way of giving effect to this requirement would be by freezing the assets of those convicted of or charged with the offences in question. This would permit the freezing of assets pending trial on criminal charge, but would make the long term freezing of assets dependent upon conviction of the relevant criminal offence to the criminal standard of proof”.

I emphasise those words and the sentence that follows:

“The Resolution nowhere requires, expressly or by implication, the freezing of the assets of those who are merely suspected of the criminal offences in question”.

I turn now to what the noble Lord, Lord Sassoon, said in the debate in Committee on 6 October. He said:

“The Government do not support moving to a higher legal threshold than reasonable belief, for example by imposing asset freezing only on those who have been convicted of a terrorist offence. Such a move would undermine the preventive nature of the regime”.

I will come back to that. The noble Lord said that such a move would also,

“be incompatible with international best practice and the aims of the United Nations Security Council resolution”.—[Official Report, 6/10/10; col. 122.]

With great respect, that is simply not correct. To make the commission of a terrorist offence the threshold of a freezing order could not be incompatible with the aims of the resolution, since, as I have just read out, that is what paragraph 1(c) specifically requires. States are required to freeze without delay the assets of persons who commit or attempt to commit terrorist acts—nothing less, nothing more. There is no mention anywhere in the resolution of those suspected of committing terrorist acts.

If it is then said that in the passage that I have read the noble and learned Lord, Lord Phillips, was, as it were, on a frolic of his own, then what about the noble and learned Lord, Lord Mance, at page 451 of the judgment? At paragraph 225, he said:

“The relevant wording of Security Council Resolution 1373 … is directed at the prevention and suppression and the criminalisation and prosecution of actual terrorist acts; at the freezing of funds or other financial assets or economic resources of persons ‘who commit”—

again, the same words—

“or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts’”.

A little later, he went on to say that the wording of paragraph 1(c),

“does not suggest that the Security Council had in mind ‘reasonable suspicion’ as a sufficient basis for an indefinite freeze”—

what we here call a final order. I would add that nor is there any suggestion that the Security Council had in mind “reasonable belief”, as opposed to “reasonable suspicion”.

At paragraph 197 of the judgment, the noble and learned Lord said that reasonable suspicion,

“goes well beyond the strict requirements of Resolution 1373”.

The noble and learned Lord, Lord Brown, said exactly the same at page 196. I need not refer to his language because it replicates that of the noble and learned Lords, Lord Mance and Lord Phillips.

The only justice to have expressed a contrary view was the noble and learned Lord, Lord Rodger, at paragraph 170, but none of the other six judges agreed with him. Therefore, in my submission there is no doubt at all about what the Supreme Court decided. That is put very well in the rather lengthy head note, of which I should perhaps refer to a very small part. It said that the appeals would be allowed because Resolution 1373 was not phrased in terms of reasonable suspicion, so by introducing such a test the terrorism order went beyond what was necessary or expedient to comply with the relevant requirements of the resolution and that accordingly the terrorism order was ultra vires the powers conferred. Therefore, again, there is no doubt about what the court decided. However, when this Bill was being drafted, those responsible for the drafting must have read the speech of the noble and learned Lord, Lord Rodger, but overlooked the speeches of the three noble and learned Lords to whom I have referred and what, on any view, was the actual decision of the court. I hope that, when he comes to reply to this amendment, the noble Lord, Lord Sassoon, will accept that my amendments are not in any way incompatible with Resolution 1373—indeed, quite the opposite. They give meaning and effect to the resolution in precisely the way that the Supreme Court indicated.

As a result of the Second Reading debate, and in particular the speech of my noble friend Lord Pannick, the Government now accept that “reasonable suspicion” is not good enough and instead they have substituted “reasonable belief”. The noble Lord, Lord Rodger, said that it is very difficult to say how much difference there actually is in practice between those two. I think he describes suspicion as being “only a little less stringent than belief”, or words to that effect. Whatever the precise difference between those two, surely it is clear that exactly the same argument, which has led the Government to accept that suspicion is not good enough, must also apply to what they have now substituted; namely, belief.

It is true that belief will catch fewer innocent people than suspicion, which I assume to be the reason for the change, but I doubt whether it will make much difference. The point remains the same: that belief, like suspicion, casts the net too wide; it is far wider than the resolution requires, so that more innocent people will inevitably be caught. That is why it is so important to keep to the words of the resolution and not to change the essential nature and target of the resolution. I put it to your Lordships that that means the final order must be confined to those who have been arrested and charged with a terrorist offence and that is what will be achieved by my amendments, if they are accepted. I beg to move.

[Lord Bach]

My Lords, to my surprise, I shall be speaking early in these proceedings but I enter the fray at a rather late stage of the Bill because my noble and learned friend Lord Davidson of Glen Cova cannot be here today. However, on this Bill I am not to be allowed gently to put my toe in the water. The House is dealing with important amendments tabled by the noble and learned Lord, Lord Lloyd of Berwick, to whom I want to pay tribute. He has a deserved reputation for knowledge and expertise, particularly in this area, going back many years. I have also had the experience of debating with the noble and learned Lord on a number of occasions when sitting on the other side of the Chamber. Although he is always a model of courtesy, good manners and, of course, persuasion, I have no doubt that those who have succeeded me will find his arguments as difficult to deal with as I did. However, I say with the greatest respect, that does not always mean he is right.

Today, we on this side believe that the noble and learned Lord is wrong in limiting final determinations only to those cases where a person has been charged with a criminal offence under Clause 2(2). Why do we think that? In essence, we think that such a step would be impractical and would not work in the real world. Reading through the Committee stage debates, I was impressed by the arguments employed by the noble and learned Lord, Lord Wallace of Tankerness, in dealing with this issue. It seems to us that his arguments are powerful. On 6 October, he said:

“Unlike control orders, asset freezing is not only used against people in the United Kingdom who cannot be prosecuted or deported. In fact, only around 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and are not being prosecuted for terrorist offences”.

The noble and learned Lord went on to say:

“The noble and learned Lord, Lord Lloyd of Berwick, indicated that he thought that those who were subject to designation should also be prosecuted. I asked how many people who have been subject to asset freezes have been prosecuted”.—[Official Report, 6/10/10; col. 150.]

He was advised that 21 individuals in the UK had been convicted for terrorism offences, and that six people within the UK have not been prosecuted. He went on to say that he had asked his officials how many persons outside the UK had been subject to designation for asset freezing, and that the answer was 36, of which 22 were entities and 14 were individuals. He said that it would just not be possible to prosecute them. That is, in essence, what the noble and learned Lord said at the Committee stage of these proceedings.

The trouble is that if one had to charge before making a final designation order, many of those whose assets one would want to make an order against might not be in the jurisdiction, might not be likely to be in this jurisdiction, or might have skipped the jurisdiction as fast as they possibly could. Why should they escape the making of a valuable order if it would assist in the fight against terrorism? That is why we think that in the real world, where a considerable number of the people who one would want to make an asset order against are abroad and not within the jurisdiction, there should be power to make such an order, because if there were not, there would be a serious lacuna in the law.

[Lord Lloyd of Berwick]

My Lords, before the noble Lord sits down, I hope that he will deal with that point a little more fully as it is quite important. Is he arguing that Clause 1 has extraterritorial effect? If so, that is not stated in the Bill. Indeed, the Bill specifically provides that the offences provision in Chapter 2 is to have extraterritorial effect, but there is nothing in the Bill to suggest that we can serve persons abroad. It applies only to our own nationals and to people within this country in the ordinary way.

[Lord Bach]

I have to admit that I do not know the answer to the noble and learned Lord’s question. However, I am concerned about the position of a UK citizen who goes abroad and who therefore cannot be interviewed and perhaps afterwards charged with an offence, and who because of that fact cannot have an order made against his assets. As I understand it, having read the letter from the noble Lord, Lord Sassoon, in response to the Joint Committee on Human Rights, that actually happens in real life.

[Lord Lloyd of Berwick]

I will not take up the noble Lord’s time further, but I shall obviously need to deal with that matter with the Minister who no doubt has given consideration to this important point.

[Lord Elystan-Morgan]

My Lords, I support the arguments and the amendment tabled by my noble and learned friend Lord Lloyd—not that he needs my feeble assistance in this matter. It seems to me that there are two flaws in the provision before us. Those flaws still remain, even with the amendment suggested by the Government.

The first stage might be called the “trigger” stage: the point at which the authorities have some jurisdiction in this matter. In the original Bill, it was at a point when there was reasonable suspicion, but in the amendment it is when there is reasonable belief. As the noble and learned Lord, Lord Lloyd, has said, those are two separate categories, but they are very close to each other.

Perhaps I may trouble the House a moment or two with this illustration. Let us think of Section 22 of the Theft Act and the provision dealing with the receiving of stolen goods knowing or believing them to be stolen. A judge will tell the jury very simply that even if the defendant is shown to be in possession of suspicion, that counts for nothing at all: there has to be actual knowledge or belief. But the same judge will normally say to the jury that of course there is a point where suspicion becomes so strong and convincing as to amount virtually to belief. I make that point as an illustration of the fact that the two estates practically merge at that point. That flaw remains even if the amendment were to be carried.

The other point is what might be called the boundary point. There are two stages: first, that you trigger the mechanism by way of a belief; secondly, that it must be belief as to some state of affairs. That, it seems to me, can be one of two things. It can either be a belief that a criminal act is in the course of being committed or has been committed; or that there is involvement within the accepted degrees of criminality in that act relevant to the provision. If one is concentrating on what is or is not a criminal act, that is a fairly simple matter to decide. Is the person you suspect or believe to be involved a person who would be a principal in the first or second degree, an aider and an abetter, et cetera, or is he beyond that pale?

If you draw the line at the point of criminality, it is perfectly simple, because you have a defined boundary. You can say, “That is the ne plus ultra of the law's authority in this matter”. If you extend that pale, where are you? Where is the boundary? I remember the very strong argument of the noble Lord, Lord Carlile of Berriew, some weeks ago in this matter. There may very well be a case for extending the boundary beyond that of actual criminality, but there has to be a boundary. That is my point about Clause 2. If you leave the boundary of actual criminality and assume any other boundary, with the greatest respect, you have to define it very closely.

15:30

[Lord Judd]

I listened very carefully to what my noble friend said in his forthright argument. I have always thought that if anyone was the epitome of someone who lives in the real world, it is my noble friend. What is important about the amendment of the noble and learned Lord is that, with all his vast legal experience, he is reminding us of certain basic principles which we seek to defend in our antiterrorism legislation—the character of our society.

I am troubled in what I have seen as a drift over the years by what has happened to the principle of the presumption of innocence. I am not a lawyer, and it takes a certain amount of intellectual courage, if I may put it that way, to rise in a debate such as this when the lawyers are all speaking with so much authority and learning. However, as an ordinary citizen, the principle of the presumption of innocence is very precious, and we need to be certain that, in the terribly difficult task with which we are confronted in preventing terrorism, we do not throw the baby away with the bathwater. The noble and learned Lord’s amendment is not necessarily the best way to pursue the matter, but I seek some very convincing reassurances from the Minister when he comes to reply.

[Lord Mackay of Clashfern]

My Lords, I am prompted to rise by the noble Lord, Lord Judd. The principle to which he refers is displaced only by a conviction. Therefore, the amendment does not particularly invoke that principle. I would be interested to hear the basis on which the noble and learned Lord, Lord Lloyd, thinks that a person should be charged with an offence under this provision. Of course, I understand the point made from the opposition Front Bench. It may be sufficient if there are assets in the jurisdiction, even if the person who owns or controls the assets is not himself or herself in the jurisdiction. Having listened carefully to my noble and learned friend Lord Lloyd of Berwick, I am left with the question of the basis on which, or the extent to which, one must know what has happened in order to charge someone with an offence under these provisions.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, if noble Lords will permit me, I will speak to this entire group of amendments, although there has not been any significant discussion on some of them. It is perhaps worth summarising what these amendments would do. They would limit final designations to those charged with a terrorist offence of a description within Clause 2(2). They would require any final designation to cease if the charges are dropped or the person is acquitted and require the Treasury to apply to the court to make an interim designation.

Amendments 1 and 3 relate to the Treasury’s power to make a final designation. They require the Treasury to make final designations against only those people who have been charged with a criminal offence falling within the description of terrorist activity in Clause 2(2) for the purposes of the Bill.

Amendments 4, 5 and 6 require a final designation automatically to expire when a person charged is acquitted or charges are dropped before the ordinary one-year expiry. This goes to the heart of what this regime is intended to be about. Although I echo the words of the noble Lord, Lord Bach, in recognising the contribution of the noble and learned Lord, Lord Lloyd of Berwick, and the great wisdom he brings to this, I think he does not go to the complete heart of the rationale of UNSCR 1373, which is indeed preventive. It requires states to take steps to prevent terrorist acts. I should quote further from the resolution. Its paragraph 1(c) states that one of the means of achieving this requires states to:

“Freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts”.

The rationale of paragraph 1(c) is to prevent funds, financial assets and other economic resources being used or diverted for terrorist purposes, and the Government absolutely believe that it would not accord with the preventive rationale of the UN resolution if a final designation could be made only in respect of those charged or convicted of terrorism-related offences.

If that were the threshold, the Treasury would not be able to freeze the assets of those in respect of whom there was evidence that was insufficient to bring such a charge, but sufficient to give rise to a reasonable belief on the Treasury’s part that the person represented a terrorist risk—for example, where an interim designation has been made in respect of a person on the basis of a reasonable suspicion and insufficient evidence has come to light during the 30-day period of that interim freeze that would allow charges to be brought, but the Treasury has nevertheless come to a reasonable belief that the person is or has been involved in terrorism and considers it necessary for public protection that the final designation be made. If the Treasury were not able to make a final designation in those circumstances, that would give rise to a risk of terrorism that the requirements of the UN resolution are meant to prevent.

I remind the House that in making these designations, it is necessary that the dual test is met. The other half of the test, which has not been mentioned this afternoon, is a public protection leg. It is the Government’s continued firm belief that a reasonable belief threshold for a final designation would allow the Government to implement effectively the requirements of the resolution.

[Lord Lloyd of Berwick]

Does the noble Lord accept that reasonable belief goes beyond what Resolution 1373 requires? That is the critical question. It is also the question, which, as I have explained, has been decided by the Supreme Court.

[Lord Sassoon]

My Lords, the interpretation of UNSCR 1373 can be construed partly on a recommendation of the resolution itself and partly on the interpretation which the Financial Action Task Force has made. It is clear from its guidance that asset freezes should not be limited only to cases where people have been charged or convicted. If we were to accept this amendment, which the Government do not intend to do, it would certainly put the UK outside what is considered by all leading countries through the FATF guidance to be best practice in implementing Resolution 1373. What we are proposing is consistent with the approach taken by other authorities, such as in Canada and New Zealand, of which the noble and learned Lord, Lord Brown, approved in the case of Ahmed.

I agree with the interpretation of the noble Lord, Lord Bach, of the situation. Asset freezing is implemented against individuals and groups in the UK and overseas. At the moment, 22 entities and 14 individuals overseas are the subject of asset freezing. Nothing in Clause 1 limits this. Asset freezing certainly is not limited to people in the UK. People anywhere in the world can be designated, but the prohibitions apply only within UK jurisdictions; that is, to assets that are either held in the UK or by UK persons such as banks overseas. I hope that that clarifies the question of territorial scope.

[Lord Lloyd of Berwick]

Is the Minister saying, in effect, that Clause 1 has extra-territorial effect? If so, what is his authority for saying that in the light of the fact that the Bill makes specific provision for extra-territorial effect for offences under Clause 11 but no such provision in relation to Clause 1?

[Lord Sassoon]

Under Clause 1, people anywhere in the world can be designated. To repeat myself again, the prohibitions, on the other hand, apply only within UK jurisdictions; that is, to assets either held in the UK or held by UK persons such as banks overseas. That is about as clear as I can be on the Government’s understanding of the scope of Clause 1. The people overseas who are subject to asset freezes are operating in environments where it is not possible to charge or to convict them clearly of terrorist offences, but where it is necessary in order to disrupt their actual or potential—

[Lord Carlile of Berriew]

Perhaps I may tempt the Minister into a more direct answer to the question posed by the noble and learned Lord, Lord Lloyd. Surely what he is saying amounts to no; it does not have extra-territorial effect. A clear answer to that effect might be helpful for future purposes.

[Lord Sassoon]

Not being a lawyer, I was trying to give a clear statement of what effect Clause 1 has in relation to the underlying reality of where it bites. As to whether this does or does not mean that it has extra-territorial effect, I will leave that to lawyers to sort out. However, I am now given advice which says that Clause 33 sets out the extra-territorial application of the offences. Perhaps that will help on this point.

15:45

[Lord Davies of Stamford]

I thank the noble Lord for giving way. He may not be a lawyer, but he is a Minister. He has come before this House to present a Government Bill and therefore must be deemed to understand what the purposes of the Government were when they drafted and brought forward this legislation. I have listened with great interest to the debate with no intention of taking part, but it is clear to me that the Minister is not willing to tell the House whether Clause 1 has extra-territorial effect. The question should be capable of a simple yes or no answer. The Government must know where they are on that whole idea before they come before the House with a Bill.

[Lord Sassoon]

My Lords, I am trying to get to the substance of what we are seeking to achieve here, which is that if the people are abroad—that is, extra-territorial—but their assets are here, those assets can be made subject to an asset-freezing order. Indeed, if the people or the entities are UK persons, the asset freeze can also bite on them. I hope that that clarifies what we are trying to achieve.

[Lord Davies of Stamford]

We all know what “territorial” means. It means persons who are in this country or visiting this country, or corporate persons such as banks that are resident in this country but have assets abroad. That is territorial jurisdiction. What we want to know is whether Clause 1 has extra-territorial jurisdiction attached to it. In other words, is the power capable of being exercised in relation to persons and assets that are not connected with the United Kingdom?

[Lord Sassoon]

My Lords, let me try to say it again. Clause 1 bites on assets that are here—that is, territorial assets—but also enables the Government to freeze the assets of people who are not here, which would be extra-territorial.

[Lord Davies of Stamford]

So, to be clear, the clause can bite on persons or assets that are not connected with the United Kingdom.

[Lord Sassoon]

No, my Lords, that is not strictly what I said. Clause 1 can bite on assets that are here that might be under the control of people who are not in the UK. Equally, it may bite on people who are within the jurisdiction of the UK on assets that they might hold elsewhere. I am sorry if that is not clear.

[Noble Lords]

Order.

[Lord Davies of Stamford]

Does Clause 1 have extra-territorial jurisdiction encapsulated within it, or does it not have extra-territorial jurisdiction encapsulated within it?

[Lord Sassoon]

I am trying to reduce this to what Clause 1 actually does. I do not believe that saying whether it is extra-territorial will clarify the point at all. What I am trying to do is get to the substance of what the clause is intended to achieve. I do not know whether it is being suggested that we should not, for example, be able to freeze the assets of the likes of Osama bin Laden, if he had assets in this country, just because he does not happen to be here. Is that what is being suggested we should be prevented from doing?

[Lord Davies of Stamford]

Osama bin Laden—

[Noble Lords]

Order!

[Lord Davies of Oldham]

My Lords, at the Report stage of a Bill, the Minister is not here to be cross-examined in this way. My noble friend may make one contribution—he has made several—so he certainly ought not to make any more. We are dealing with the Report stage of the Bill and the Minister is replying to the debate.

[Lord Stoddart of Swindon]

My Lords, on this important amendment, we have heard from the Minister that because he is a layman, as I am, he is not able to answer the questions raised by the noble and learned Lord, Lord Lloyd, in a manner that satisfies those of us who are laymen and thus enables us to vote intelligently if a vote is called.

[Lord Sassoon]

My Lords, I am grateful to the noble Lord, Lord Davies of Oldham. I hope that the majority of us are clear about the intended scope of Clause 1, so I shall move on to deal with some of the other aspects. However, it is quite clear that the scope of Clause 1 is as intended and required by our obligations under UN Resolution 1373, which is the relevant resolution.

It is worth noting that while the majority of asset-freezing cases in the UK are against those who are charged or convicted of terrorist offences, at the moment there are six cases where it has been necessary, in order to protect the public from terrorism, to act upon the intelligence picture which, for reasons of national security or admissibility of evidence, cannot be used as the basis for criminal charges. However, that does not, of course, mean that those people do not continue to pose a serious risk to national security. Therefore, to limit final designations only to those subject to a criminal charge would exclude such groups and individuals as I have described. This would fatally undermine the preventive and disruptive nature of the asset-freezing regime as well as impact significantly on its operational effectiveness.

Nevertheless, the Government recognise that the Bill as it was introduced raised civil liberties concerns, and it was to address those that we amended the Bill so that a higher final designation threshold of reasonable belief, rather than the previous reasonable suspicion threshold, is being introduced. However, again I stress that there is a twin test, as the test of necessity for public protection also needs to be met. I do not think that the noble and learned Lord, Lord Lloyd of Berwick, drew attention to that.

The noble and learned Lord referred to a final order as giving an indefinite freeze. However, it is important to recognise that freezing orders have to be relooked at whenever the evidence changes or after 12 months. While “final order” is the term in the Bill, we should remember that a final order or a final designation will expire after 12 months unless it is renewed. We have also provided that the legal challenge to any designation should be by way of appeal. The Government continue to believe that the Bill strikes the right balance between safeguarding a person’s rights and protecting the public.

Amendments 9 and 11 require the Treasury to apply to the court to make an interim designation.

[Lord Lloyd of Berwick]

I have not addressed those amendments yet. I believe they have been degrouped and appear in the next group. I specifically asked before I addressed the House that those amendments, which relate to an entirely separate subject matter—namely, the interim order, not the final order—should be degrouped. If the Minister did not hear that, he can answer what I have to say in due course.

[Lord Sassoon]

My Lords, the last grouping I have seen from the Printed Paper Office suggested that everything was grouped together. Perhaps I should break off here and ask the noble and learned Lord whether he is prepared to withdraw Amendment 1 and not to move Amendments 3 to 6.

[Lord Skelmersdale]

My Lords, it would make life a lot clearer for me if the Minister could say whether anything in Resolution 1373 prohibits a state that has signed up to it from producing legislation on the same subject that is more severe than the resolution suggests.

[Lord Sassoon]

I am not aware of anything in the resolution that prevents legislation going further. The Bill does what is required to properly implement Resolution 1373 but, if it did go further, that would not be precluded by the terms of the resolution.

[Lord Lloyd of Berwick]

My Lords, the Minister has not fully dealt with the point that what is now proposed goes well beyond what is required by Resolution 1373. He argued that that resolution was intended to be preventive and that what is now proposed is preventive. The resolution states, in paragraph 1(a), that it is intended to be preventive, but it then goes on to say how it is to be preventive by requiring all member countries affected by the resolution to pass legislation to freeze the assets of those who have been charged or convicted of a terrorist offence. That is clear from the language of the resolution. Simply to say that the resolution is intended to be preventive and that the Bill is preventive is not an answer to that point.

The only real answer that has been given was that given by the noble Lord, Lord Bach, when he repeated what was said by the noble and learned Lord, Lord Wallace of Tankerness, in Committee. In particular, he said:

“I also asked how many persons outwith the UK have been subject to designation for asset freezing; the answer is 36, of which 22 are entities and 14 are individuals”.—[Official Report, 6/10/10; col. 150.]

How can that be so under the terrorist orders unless they were intended to be extra-territorial?

That brings us back to the question whether Clause 1 is extra-territorial. The fact that something has happened is by no means proof that it was justified, as indeed is the case with the whole history of this part of the law, which has had to be corrected by the Supreme Court in its most recent decision. Those figures do not convince me at all. We return to the question whether Clause 1 on this particular point is intended to be extra-territorial. It is clear to my mind that it is not, for the reasons that I have already given—namely, that other provisions in this Bill are said to be extra-territorial and this is not included among those provisions. That merely confirms the ordinary rule that we apply all the time that legislation is not extra-territorial unless it is stated to be so.

There is a further question relating to the figures given by the noble and learned Lord, Lord Wallace of Tankerness. If those persons were outside the jurisdiction, how were they notified? Under Clause 3, it is the obligation of the Treasury to notify a person immediately when the final order or an interim order is made. How can we be sure that that is being done when the person is outside the jurisdiction, wherever he may be? The argument that my amendment would in some way cut down a valuable power that the Treasury now has and would not have if my amendment were passed is simply not, with respect, borne out. I am not willing to withdraw the amendment and will take the opinion of the House.

15:57

Division 1

Ayes: 17

---

Crossbench: 14
Labour: 1
Independent: 1

Noes: 292

---

Labour: 108
Conservative: 95
Liberal Democrat: 46
Crossbench: 32
Independent: 2
Ulster Unionist Party: 1

16:16

Amendment 2

Moved by

[Lord Sassoon]

2: Clause 2, page 2, line 14, leave out ““terrorist activity” means” and insert “involvement in terrorist activity is”

[Lord Sassoon]

My Lords, the Government’s intention behind this amendment is to clarify that the words “involved in” in the legal tests for interim and final designations do not mean something additional to the activities and conduct referred to in the definition of “terrorist activity”. In Committee, my noble friend Lady Hamwee indicated her concern that use of the term “involved in” could capture people whose conduct did not fall strictly within Clause 2(2) but who were simply associates of people whose conduct did fall within that clause or who were merely innocent bystanders. This was not the Government’s intention, nor do we think that it is the effect. However, by tabling this amendment to make it clear that “involvement in terrorist activity” means no more than the activities and conduct described in Clause 2(2), I hope to ensure that there can be no doubt or further confusion. I thank my noble friend for her intervention in Committee and hope that she and other noble Lords will be minded to support our amendment. I beg to move.

[Baroness Hamwee]

My Lords, I am extremely grateful to the Minister for this amendment. The Bill creates a number of offences, so I felt that it was important to be crystal clear about the provisions. In my view, the amendment achieves that. I thank my noble friend.

Amendment 2 agreed.

Amendment 3 not moved.

Clause 4 : Duration of final designation

Amendments 4 to 6 not moved.

Amendment 7

Moved by

[Lord Sassoon]

7: Clause 4, page 3, line 17, leave out “such steps as they consider appropriate” and insert “reasonable steps”

[Lord Sassoon]

My Lords, these amendments relate to the requirement on the Treasury, where an interim or final designation expires or is varied or revoked, to take such steps as it considers appropriate to bring that fact to the attention of those informed of the interim or final designation.

When the Bill was being discussed before the Committee of the whole House, the noble Lord, Lord Pannick, expressed concern that the wording of what are now Clauses 8(2)(b) and 9(2)(b), which make provision for the duration, variation and revocation of interim designations, did not hold the Treasury to a sufficiently high standard, as it was open to it to consider, in its own subjective determination, the steps to be taken to inform those informed of an interim designation of the expiry, variation or revocation of the interim designation.

We agree that it is important that persons informed of an interim designation are also informed of an expiration, variation or revocation of that designation and, on reflection, we believe that it is appropriate to make express provision in the Bill for the Treasury to be required to take reasonable steps to notify such persons. Furthermore, the same standard should be applied to the steps that the Treasury must take to inform persons of the expiry, variation or revocation of a final designation. Therefore, these amendments, which I hope address the noble Lord’s concerns, amend not only Clause 8(2)(b) and Clause 9(2)(b), but Clause 4(5)(b) and Clause 5(2)(b), which make provision for the duration, variation and revocation of final designations. The amendments have the same effect on each of the clauses, in that they remove the Treasury’s discretion to determine subjectively the steps that it considers appropriate and replace it with an obligation to take steps that, on an objective assessment, would be considered reasonable in the circumstances. I therefore beg to move.

[Lord Pannick]

My Lords, these amendments meet the concerns that I expressed in Committee. I am grateful to the Minister for listening and acting.

Amendment 7 agreed.

Clause 5 : Variation or revocation of designation

Amendment 8

Moved by

[Lord Sassoon]

8: Clause 5, page 3, line 24, leave out “such steps as they consider appropriate” and insert “reasonable steps”

Amendment 8 agreed.

Clause 6 : Confidential information

Amendment 9

Moved by

[Lord Lloyd of Berwick]

9: Clause 6, page 3, line 28, after “make” insert “an application to the High Court or, in Scotland, the Court of Session for leave to make”

[Lord Lloyd of Berwick]

My Lords, the purpose of the amendment is to provide for a High Court judge to make the interim designation, not a Treasury Minister. The Minister makes the application for an order, but it is the judge who should make the order. That is the normal course of events when a person’s assets are being frozen, for whatever reason, and it is right, given that the freezing of a person’s assets has all the dire consequences described by the Supreme Court in the case of Ahmed. What is proposed makes the defendant, in effect, a prisoner of the state, as Lord Justice Sedley said in the Court of Appeal and as was repeated in the Supreme Court.

It is normal for asset-freezing orders to be made by judges. That has been the case since long before Resolution 1373. It was the judges, after all, who invented the Mareva injunction in the middle of the 19th century. I may have meant the 20th century—perhaps I was a century out. Such injunctions enabled a plaintiff with a good arguable case to go before the judge and obtain an order or injunction freezing the defendant’s assets, if it seemed likely that those assets would be dissipated before any judgment against him. This happened often—I have granted many such freezing orders—and the system worked. The defendant, for obvious reasons, was not given notice of the application before it was made, otherwise it might have proved fruitless—he would have dissipated the assets before the order was made. When the order was made, he could come before the judge and seek to have the order set aside or varied. That is a well established system, as any judge or lawyer in the House would know. I cannot understand why that procedure should not be applied here.

The Minister was pressed at some length in Committee to give reasons why it should not work in that way. He said that in the end it came down to speed and complexity. However, there is nothing in either of those grounds. As soon as the Minister has grounds for suspicion, he can go before a judge the very next day and get his order. That is what happens as a matter of course in the commercial court, so I see no difficulty on the ground of speed. Of course, the Treasury Minister, when he makes his application, will have to have formulated his grounds, but he would have to have done so in any event, since the defendant, as soon as he has notice that he has been designated and that his assets have been frozen, will certainly go straight to the judge on appeal, as he will now be entitled to do. Since he can do that, and since the Treasury Minister will have to explain at that stage—perhaps the very next day—why the order has been made, clearly the Minister will have to have his tackle in order before the application is made. I suggest that there is nothing in the ground that this cannot be done quickly enough in the ordinary way.

The ground of complexity is equally without foundation. It is absurd to suppose that judges in the Administrative Court cannot understand these things. They have to understand them as soon as the defendant who has had his assets frozen goes to the judge, as he can do the very next day, so why can they not be made to understand them before the order is made by the Minister?

If there is no objection on either of those grounds to the order being made in the usual way, what is the real objection? It seems that this is the way in which it has always been done by the Treasury. Another reason is that the decision is more suited to the Executive and, indeed, is the proper function of the Executive. I regret to say that I cannot agree. Indeed, I hope never again to hear it said that a decision that takes away a man’s right to deal with his property as he thinks fit is more suited to the Executive than the judiciary.

In Committee, I asked the noble Lord, Lord Carlile, whether he could think of any other order of this type that affected the liberty of the subject in this way. He could think only of a control order, which hardly provides a trouble-free precedent for what is proposed in this case. Let us assume that the result of the review being carried out by the Home Office is that we get rid of control orders, as I profoundly hope that we shall. How then can we justify continuing the regime that the noble and learned Lord, Lord Brown, described as “scarcely less restrictive” than control orders and which he said could be “even more paralysing”? I repeat what I said in Committee: I am in favour of interim orders being made on the basis of suspicion. To that extent, the Government are right. However, I am wholly against the orders being made by the Executive rather than by a judge in the ordinary way. I beg to move.

16:30

[Lord Sassoon]

My Lords, Amendments 9 and 11 require the Treasury to apply to the court to make an interim designation. As I set out in Committee, the Government continue to believe that Ministers are best placed to take decisions to impose asset freezes, but it is absolutely right that these decisions should be subject to intense scrutiny by the courts in cases where a person wishes to challenge the asset freeze.

I believe that there are three compelling reasons why decisions to impose asset freezes should be taken by the Executive. First, they are preventive, not punitive, measures taken on the basis of operational advice to protect national security. It is accepted practice for such decisions to be taken by Ministers, who take decisions to impose proscriptions, deprivations of citizenship and exclusions. Secondly, Ministers are then accountable for these decisions to Parliament and the courts. This clear accountability and their broad view of the threat posed mean that Ministers are best placed to weigh the protection of national security with the interests of the designated person. Thirdly, there are strong international comparisons for this practice. The US, Australia, Canada and New Zealand all entrust asset-freezing decisions to the Executive, whereas the noble and learned Lord’s amendment would introduce mandatory court involvement in the making of interim asset-freezing decisions.

With permission, I should like to set out why the Government do not believe, as a matter of principle, that any asset-freezing decisions need to be approved by the courts. I accept, for example, that control orders work differently and are approved in this way, but the Government do not believe that the courts should have the same role in asset freezing, because the circumstances are clearly different. Asset freezes interfere with property rights but they do not impact on human rights to the same extent as control orders, which can impose restrictions on movement, association and communication. Furthermore, in contrast to control orders, asset freezing is not primarily used against people in the UK who cannot be prosecuted or deported. Indeed, as we have already discussed, only about 10 per cent of asset-freezing cases involve people who are in the UK or hold funds here and who have not been prosecuted for a terrorist offence. In cases where people are prosecuted for terrorist offences, evidence against them will be brought before a court.

In the case of terrorist groups or individuals overseas, the asset freeze has a less direct impact because it applies only within UK jurisdiction. Overseas terrorist groups and individuals have not challenged their asset freezes in the UK courts and we do not believe that mandatory court decision-making or approval would add any real value in these cases. Indeed, it may even provide groups such as Hamas with a public platform on which to challenge the UK’s operational and foreign policy decisions.

We therefore believe that the right way to recognise the need for proper judicial scrutiny over asset freezing is not to introduce mandatory court involvement but, rather, to make it clear that there is robust court scrutiny of cases where individuals or entities wish to challenge their freezes. The Government therefore brought forward amendments to the Bill to specify that challenges to designations should be on the basis of an appeal, rather than judicial review. Although I realise that judicial involvement is a principle on which certain noble Lords will have strong views—one certainly—I hope that they will be able to accept that the right way forward is to maintain the current drafting of the Bill and I ask the noble and learned Lord, Lord Lloyd of Berwick, whether he is prepared to withdraw the amendment.

[Lord Lester of Herne Hill]

My Lords, perhaps I may briefly echo my support for the noble and learned Lord’s amendment.

[Lord De Mauley]

My Lords, we are on Report.

[Lord Lloyd of Berwick]

My Lords, the Minister gave three reasons why he could not accept the amendment, the first of which was that the measures are meant to be preventive. However, they are also rather more than preventive; they are extremely restrictive of the basic right of any individual to deal with his assets as he thinks fit. He also said that we are not concerned here with human rights. Of course we are; we are concerned with Article 1.

[A noble Lord]

He did not say that.

[Lord Lloyd of Berwick]

Did he not say that? He said that he differentiated this measure from control orders on the ground that we are not concerned here with human rights, but we are, albeit a different provision under the Human Rights Act—Article 1 of Protocol 1, which is that a person’s property cannot be interfered with. We are in exactly the same area as control orders, which is why the judges in the Supreme Court have described asset freezing of this kind by Treasury order as being almost as restrictive as control orders themselves. The noble Lord has not dealt with any of those points. I think that the noble and learned Lord would like to intervene.

[Lord Mackay of Clashfern]

My Lords, I would like to be sure that I understand. The noble and learned Lord’s Amendments 9 and 11 seem to allow the Treasury to make an application for leave to make an order. They do not provide for the Treasury making, nor suggest that the Treasury makes, the order in the end.

[Lord Lloyd of Berwick]

My Lords, I entirely agree with the noble and learned Lord. That is the normal way in which it is done—let the Treasury make the order, but only with the leave of the judge. I see no reason why that should not flow. It is an even clearer case than that of Mareva injunctions, where it was the judge who made the order. Either way, that is the way in which we should be dealing with this. I am sorry to say that I fear that it is pointless for me to take this any further, so I reluctantly beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10

Moved by

[Lord Pannick]

10: Clause 6, page 3, line 38, at end insert “, and
( ) they consider that it is necessary to act as a matter of urgency before proper consideration can be given to whether section 2(1)(a) applies.”

[Lord Pannick]

My Lords, this amendment addresses the purpose of the interim designation. Noble Lords will be well aware that the Treasury has a power to make an interim designation for a period of up to 30 days if it reasonably suspects that the criteria for making a designation are satisfied. After the 30-day period, reasonable belief is required. I entirely accept that it is appropriate for the Treasury to have this power of interim designation on the basis of reasonable suspicion, but surely it is appropriate for the Treasury to have and to exercise such a power only in those cases where it has not had a proper opportunity to consider and to decide whether the stricter criterion of reasonable belief is satisfied. Amendment 10 would limit the interim designation power to those cases where the Treasury considers that it is necessary to act as a matter of urgency before proper consideration can be given to whether it has reasonable belief in the involvement in terrorism. I cannot see that it would be appropriate for the Treasury to exercise that power of interim designation in any other circumstances. I suggest to noble Lords that it would be highly desirable that the purpose of this interim designation power be specified in the Bill.

My Amendment 13 is grouped with Amendment 10. However, government Amendment 14 meets the concern which I expressed in Committee and explains Amendment 13, which deals with the need for improved safeguards against repeated interim designations of the same person. I thank the Minister for tabling Amendment 14. I beg to move.

[Baroness Hamwee]

I have tabled Amendment 12 in this group. First, with regard to Amendment 10, I hope we will not hear from the Minister that it is not necessary to put the provision into the Bill because it is the practice—a point I may make later in a different context.

I might have said that my Amendment 12 was substantially the same as the amendments tabled by the noble Lord and the Minister. The point is the same—that the same or similar evidence should not be used to make more than one interim order. I could make the Government’s arguments against proposed new paragraph (b) in my Amendment 12, but I would like to hear them do so.

As regards the second limb of my amendment, it seemed to me that a time limit would be easier to deal with and could be more clearly analysed than relying on whether evidence is the same or substantially so. A time limit, although six months may not be the correct one, would make the matter absolutely clear—no one could argue with it or argue its nuances.

[Lord Lester of Herne Hill]

I agree with the noble Lord, Lord Pannick, and with my noble friend. I am speaking partly as a member of the Joint Committee on Human Rights, whose report was published on Friday last. We took the most unusual step of publishing our preliminary report before we had seen the Government’s response. I am therefore sure that once the committee, which meets tomorrow, has had a chance to look at this debate, it will be too late to influence what happens in this House, but I hope it may be looked at in the other place.

I shall not waste the time of the House by citing what is in our report as it can be read by anyone who is interested. However, one point at the end of it bears on all these amendments. At paragraph 1.47, we ask the Government to explain why the opportunity is not being taken in the Bill to provide a comprehensive and accessible legal regime for terrorist asset freezing, and therefore to provide Parliament with the opportunity to scrutinise those powers for human rights compatibility, the lack of which so troubled the Supreme Court. That is a general and important point, and it may have to be pursued if not here then in the other place.

[Lord Davies of Oldham]

Amendment 17 stands in my name and that of my noble friend Lord Bach on behalf of the Official Opposition. We table it today in order to debate what the Government propose to do about people whom they have reasonable grounds to suspect of being terrorists but have not gained further evidence to impose a further interim or final designation. If the Bill is passed in its current form, an interim designation will lapse after 30 days and the person will again have the opportunity to access their assets at potential risk to the public.

The Minister will appreciate the fact that he has had support from the Opposition on crucial aspects of this Bill both in Committee and again today. However, he ought not to countenance the view that we have no anxieties about the legislation, or any actions of the Government that may be related to the legislation if and when it comes into effect. We all recognise the seriousness of the debates we have had on this important legislation. On the one hand, we have clearly heard about the rights of the individual and their dependants, who may be subject to an asset-freezing law. We have heard so eloquently expressed today, in Committee and on Second Reading the anxieties that freezing orders can restrict the ability of such people to live their lives in the way that they would choose. That of course is an encroachment on human rights and we are grateful to those noble Lords who, as members of the legal profession, are able to identify exactly which human rights are involved in this. This Chamber has enough currency with regard to those significant debates of principle for all of us to be well aware of the importance of the issues.

16:45

On the other hand—this weighs with Her Majesty's Opposition as it does with the Government—we have to weigh up the issue of the rights on the other side as well: the rights of our fellow citizens to enjoy safety and security. Those rights are fundamental too, and they are fundamental to the Government, who have the job—the fundamental task—of protecting their citizens. Failure to do so could affect a large number of people in an appalling way through death, injury and the loss of loved ones.

At times, we have perhaps seen those rights generalised and offered as a backdrop to legislation. I emphasise that—both when we were in government, responsible for the development of the orders, and now that we are in opposition, offering support in principle to the legislation and the basis on which it is established—it is important that the security of our citizens is guaranteed, as far as government can make that possible.

We all know the threats with which we are faced, and we all know that at any time the condition of public opinion could change significantly if some further outrage occurred. That is why, when the Government argue in certain crucial areas for the necessity of executive power, we support their position, because the Executive are alone able to act preventively. Remember that that is a crucial dimension of the Bill, that the Executive are able to act preventively to protect our citizens.

However, the Opposition have our anxieties and, within the context of the Bill, I feel it right that we should give voice to them. I know that the Minister could easily slip into the bolt-hole of suggesting that even the Official Opposition are straying a little from the immediate context of the Bill. I hope that he will not rush to that defence but will address himself to our proper worries. They are these.

Over the past week, we have had proposals about government expenditure. Tucked away within the expenditure budgets were proposals about surveillance. Against the various cuts announced to fundamental areas of our fellow citizens’ lives, the coalition Government have decided to ring-fence spending—some £2 billion—for the Home Office to enable the police and security services to track our e-mails and phone calls, to follow our text messages and to survey internet use. This was a surprise decision for us and, I imagine, for many members of the public and for many noble Lords. Am I to understand that we should expect legislation on that point in the near future? Is that the Government's answer to the gap when an interim designation under the Bill may fail on evidential grounds—that those new resources will be made available?

Given that the noble Lord has already expressed some approval for the co-operation of the Opposition on crucial aspects of the Bill, I think that he should answer our anxieties in that respect.

[Lord Sassoon]

My Lords, I will first address Amendments 12 to 14, which concern making a subsequent interim designation of someone who has already been subject to an interim designation. A common theme of the amendments is the information which can be used to make a further interim designation against the same person. These amendments clarify that the Government can make a further interim designation against the same person only on the basis of significant, not incidental, new information. The Government agree that any new information would need to be significant in order for the Treasury to make another interim designation. Our amendment is tabled to make it clear that a second interim designation cannot be made on exactly the same or substantially the same evidence.

The amendment moved by the noble Lord, Lord Pannick, prevents the Treasury making more than one interim designation of the same person in relation to substantially the same evidence, but not exactly the same evidence. I am grateful to the noble Lord for what I took to be the likelihood of him formally withdrawing his amendment—he is nodding. He also said that he will support the government amendment dealing with that point, and I am grateful for that.

The amendment tabled by my noble friends Lady Hamwee and Lady Falkner of Margravine mirrors the government amendment but, in addition, prohibits the Government making a further interim designation on the same person within a period of six months. I understand that the purpose of this amendment is to ensure that interim designations are not abused effectively to subject someone to a continuous interim designation lasting more than 30 days. In practice, it is extremely unlikely that the Government would be able to make the same person subject to a second interim designation within six months without a final designation being made. This would arise only where we are unable to make a final designation but have become aware of substantial new information showing that a further interim freeze is necessary for public protection. Such a situation would be extremely unusual. Ordinarily, we would expect that significant new information would support a reasonable belief threshold, but it is nevertheless possible. Any second interim designation must, of course, be necessary for public protection as well as not being based on the same information or, as we propose, substantially the same information. We believe that these are the right safeguards and that an arbitrary period during which the second interim designation cannot be imposed is unnecessary. We would not want to deny ourselves the ability to make a further interim designation in these circumstances. If we were so denied, it would leave the public exposed to an unacceptable terrorist threat. We therefore cannot accept this amendment, and I hope that my noble friends will not move it but will support the government amendment.

Before speaking to the government amendment, I will discuss the other amendments in this group. Amendment 10 limits the circumstances where interim freezes can be imposed to when the Treasury considers that there is an urgent need to act before proper consideration can be given to whether the reasonable belief threshold for a final designation can be met. We share the view that interim designations should be made only where necessary. Where the Government have sufficient evidence available at the outset to meet the reasonable belief test, the Government will make a final designation, not an interim one. This reflects that the fact that where we can do so, it is clearly in the Government’s interest to make a final designation rather an interim designation because, first, a final designation lasts for 12 months compared with 30 days for an interim designation and, secondly, because it is not in the Government’s interest to suggest to the designated person and to the outside world that we have only reasonable suspicion of a person’s involvement in terrorism where we in fact have reasonable belief. Therefore, interim designations will be made only in cases where the Government at the time of making the decision have sufficient evidence to meet a reasonable suspicion test but not a reasonable belief test.

The amendment proposes that as an additional safeguard interim designations should be made only where there is an urgent need to act before the Government have considered whether there is sufficient evidence to make a final designation. Let me stress that there is already an important safeguard in place. Interim designations and final designations can be made only where necessary for public protection. The question raised by this amendment is what additional purpose is achieved by requiring not only that interim freezes must be necessary for public protection but that there must also be an urgent need to act. If an urgent need to act is the same as being necessary for public protection, there is no need to add it. If, however, an urgent need to act is something additional to “necessary for public protection”, what situations does it cover that the phrase necessary for public protection does not?

In our view, the Government must be free to impose interim freezes in cases where we have sufficient evidence to meet the reasonable suspicion test and where we consider that it is necessary for public protection. To accept a situation where the Government consider that an interim freeze was necessary for public protection but were unable to act would negate the purpose of making provision in the legislation for interim freezes and would increase the risk to the public from terrorism. For this reason, the Government cannot support the amendment and I hope that the noble Lord will withdraw it.

The noble and learned Lord, Lord Lloyd of Berwick, has not spoken to Amendment 15, so I propose to move straight to Amendment 17. This amendment seeks to clarify that where an interim designation expires, whether after 30 days or on the making of a final designation, this does not prohibit the continued investigation of that person by the relevant authorities. I am grateful to the noble Lord, Lord Davies of Oldham, for reminding us of the underlying purpose of all this activity against terrorism of which this Bill forms a part. The Government must be enabled to deploy all reasonable legislative and other appropriate powers to prevent terrorism. Therefore, it is good to be reminded of that at this point.

However, asset freezes are separate and completely distinct from investigative operations. While investigations may be relevant to the evidential base for making an interim designation, they are not directly linked. Neither the existence nor the expiry of an interim designation prohibits the relevant authorities from pursuing or continuing investigations they determine to be necessary. For that reason, we do not believe that it is necessary to amend the legislation and therefore hope that the noble Lord will not press his amendment.

[Lord Pannick]

My Lords, in relation to Amendment 10, the Minister emphasises that an interim designation order may be made only where it is necessary for purposes connected with protecting members of the public. Of course, he is correct. The difficulty with that argument is that the same criterion appears in precisely the same form in Clause 6(1), which is concerned with interim designation orders, and in Clause 2(1), which is concerned with final designation orders. Indeed, the criteria in the Bill for making an interim designation order are exactly the same as the criteria for making a final designation order, save that the final designation order may be made only where there is reasonable belief and the interim designation order may be made where there is reasonable suspicion.

My point is that there needs to be in the Bill something that identifies the circumstances in which it may be appropriate for the Treasury to take this, I hope, exceptional step of making an interim designation order even though it only has reasonable suspicion. The Minister, with great respect, has not answered my point that it can surely only be where there are circumstances of urgency and when the Treasury has not had time to deliberate and decide whether there is reasonable belief that it could be appropriate to make an interim designation order.

I am not going to pursue this matter today, but I ask the Minister and those who assist him to read the report of this debate before the next stage just to see whether he may be persuaded that there is something in what I say. He has himself brought forward, helpfully, a number of amendments to clarify the Bill in order to remove potential ambiguities, and I suggest that this is another. For the moment, I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendments 11 to 13 not moved.

Amendment 14

Moved by

[Lord Sassoon]

14: Clause 6, page 4, line 2, after “same” insert “, or substantially the same,”

Amendment 14 agreed.

Clause 8 : Duration of interim designation

Amendment 15 not moved.

Amendment 16

Moved by

[Lord Sassoon]

16: Clause 8, page 4, line 31, leave out “such steps as they consider appropriate” and insert “reasonable steps”

Amendment 16 agreed.

Amendment 17 not moved.

Clause 9 : Variation or revocation of interim designation

Amendment 18

Moved by

[Lord Sassoon]

18: Clause 9, page 5, line 3, leave out “such steps as they consider appropriate” and insert “reasonable steps”

Amendment 18 agreed.

17:00

Clause 17 : Licences

Amendment 19

Moved by

[Baroness Hamwee]

19: Clause 17, page 8, line 14, at end insert—
“(4A) An application for a licence for the purposes set out in subsection (4B) shall be dealt with by the Treasury as a matter of urgency.”

[Baroness Hamwee]

I shall speak also to Amendments 20, 20A and 22. They all concern the licensing regime and I am keen to ensure that there is sufficient in the legislation, as distinct from current practice, to put a direct obligation on the Treasury to deal with licences in the way that we have come to understand it does, and that the obligations are direct and thus do not require what might be described as a slightly more complicated Human Rights Act route.

Amendment 20 would require of the Treasury, if requested by a designated person or another person—I have put that in as an olive branch to the Treasury—that,

“a licence shall, if requested, be granted to enable the designated person or any other affected person to have access to funds or economic resources sufficient for the reasonable living costs”,

both of the person concerned and of any dependants. Subsistence costs are not much to ask for, and they can be conditional. Clause 17(3)(a) provides that any licence can have conditions attached. Amendment 19 would require that an application,

“shall be dealt with by the Treasury as a matter of urgency”,

for the reasons that have already been touched on, and clearly this must be urgent. It almost goes without saying that if all of a person’s assets are frozen, enough should be released to allow for reasonable living expenses.

I understand that the Government say that the Human Rights Act in effect obliges the Treasury to issue licences so that convention rights are not infringed. No doubt the Minister will take this opportunity to spell out exactly what convention rights are in issue and give the Government’s view on the route taken through them to achieve the result I want.

Amendment 20A deals with the costs of legal representation or legal advice. We debated this in Committee and I hope that my amendment has taken the helpful points made in particular by the noble Lord, Lord Pannick, in order to address the possible use of such a provision to evade proper asset freezing controls—or, to put it more colloquially, giving money to dodgy lawyers who might then give it back to the person who is being controlled. So I have referred to “regulation” in the amendment. I am aware that the practice of the Treasury, which is not the same as what is stated in the Bill—although I may again be told about human rights provisions—is generally to license the granting of legal aid without anticipating what might happen to the legal aid budget. I am not convinced that that is sufficiently wide.

Amendment 22 deals with the variation of a licence. I have tabled it in order to seek assurances that the court can vary an order. Clause 27 states that a decision can be set aside. It would again be helpful if the provision were spelt out, although I suspect that I will again be told that there is Human Rights Act protection. Perhaps the Government can tell the House why it cannot be spelt out that an order can be varied rather than simply be set aside. If a decision were set aside, it would allow the designated person to go through the hoops again. However quickly the matter is dealt with, some time will be taken. However much the Treasury takes into account what the court says—it will clearly be under pressure to do so—it is all rather less direct and less clear. I beg to move.

[Lord Pannick]

My Lords, I support the amendments, in particular Amendment 20A. The Treasury has no interest whatever in controlling expenditure on legal advice and legal representation; its only interest is to ensure that the assets are not used for terrorist purposes. It is important that the uninhibited right to seek legal advice and to obtain legal representation is stated clearly in the Bill and that it is not left to Treasury concession.

[Lord Wallace of Tankerness]

I thank my noble friend Lady Hamwee for dealing with licensing, which was an important part of our deliberations in Committee. Amendments 19, 20 and 20A would write expressly into the Bill a duty on the Treasury, if requested, to issue licences to allow the designated person and his dependants to access sufficient funds and economic resources to meet reasonable living costs and to pay for legal representation. In the case of living-costs licences, the amendment would place a duty on the Treasury to deal with applications urgently.

As my noble friend made clear, the amendments reflect concern that the Bill does not include a sufficiently clear obligation on the Treasury to issue licences for these purposes and that designated persons and their families are reliant on the good faith or good practice of the Treasury to grant such authorisations. I recognise the concerns that have prompted the amendments. It goes without saying that a designated person must be in a position at the earliest possible opportunity to access funds to meet his or her and their dependants’ living costs and to be able to pay for legal advice and representation in relation to their designation.

However, we do not think that to include in the legislation an obligation to issue such licences is necessary, since the obligation already exists by virtue of the Treasury’s duty to act in compliance with the Human Rights Act. Under Section 6(1) of that Act it would be unlawful if the Treasury acted in a way which is incompatible with a convention right. So, in response to the point made by my noble friend, it is not a question of acting with good grace but of acting under a requirement—an obligation—on the Treasury. It means that the Treasury must issue any licence that may be required to ensure that the affected person’s convention rights are not unlawfully infringed by the imposition of an asset freeze.

In order to secure compliance with this obligation on the Treasury, it routinely issues licences immediately on designation so that designated persons from the outset have access to frozen funds, including all social security benefits to which they are entitled, to meet their day-to-day living expenses. There is no requirement that such licences be requested by the designated person; they are issued automatically as a matter of course. The licences that the Treasury issues are broad and do not restrict the designated person’s access to funds necessary to meet only reasonable living costs. The only controls imposed are those necessary to protect against the risk of funds being diverted to terrorism.

In addition, a designated person or any other affected party may request a licence at any time if access to funds or economic resources is required which is not already authorised under the terms of a licence issued immediately upon designation. The Treasury’s practice is to treat any request for such licences as a matter of priority and, in particular, to deal urgently with requests where the failure to act quickly would result in hardship to the designated person or their family. It is therefore not necessary to impose an express duty on the Treasury to treat such applications as a matter of urgency as the Treasury already has a legal obligation to act in a way which is compatible with the affected person’s convention rights, and it is accordingly the Treasury’s established practice to do so.

My noble friend and the noble Lord, Lord Pannick, attested to the importance of legal expenses. Again, the Treasury is obliged by virtue of human rights law to ensure that it does not act in a way that would impede an affected person’s access to legal representation. To ensure this, there is already in place a general licence permitting the Legal Services Commission to pay legal aid funds to solicitors representing those designated persons who are eligible for legal aid. In addition, the Treasury will ensure that an additional general licence will be issued which authorises third parties to meet the legal expenses of designated persons by paying their lawyers.

There is an overriding obligation on the Treasury to issue licences for legal expenses. Therefore, again, it is not necessary to write such a duty into the Bill. I assure my noble friend and your Lordships’ House that the absence of such an express duty would in no way prevent an affected person from challenging the Treasury in circumstances where a Minister decided to impose a particular condition in a licence, delayed issuing the licence or refused to issue it at all. I repeat to my noble friend that this is not simply a matter of Treasury practice, but of the Treasury honouring the legal obligations upon it.

[Lord Pannick]

If I understood him correctly, the Minister mentioned legal aid for the designated person and allowing third parties to fund legal representation for that person. My concern is when the designated person has assets of his own which he wishes to spend on his legal representation. I should like to have an assurance that the Treasury will allow the designated person to use as much of his own legal resources as he thinks appropriate in his own legal defence provided that the payment, as Amendment 20A states, is to,

“a person subject to regulation as a legally qualified person”.

[Lord Wallace of Tankerness]

I said that in addition to a general licence which already exists with regard to the Legal Services Commission paying legal aid funds to solicitors representing designated persons who are eligible for legal aid, the Treasury will ensure that an additional general licence will be issued which authorises a third party to meet the legal expenses of designated persons by paying their lawyers.

The noble Lord, Lord Pannick, raised the issue of whether the person’s own assets might then be used. That would be distinctive from a general licence which, by definition, cannot relate to that of an individual. As I indicated earlier, licences issued in respect of individuals are intended to impose controls that are necessary to protect against the risk of the funds being diverted to terrorism. That is the test. Therefore, an application for a licence—it would have to be a licence for an individual with regard to his own individual circumstances and not a general licence to which I have already referred—would have to be looked at by the Treasury against that test to ensure that that there was not a diversion of funds to terrorism.

17:15

[Lord Pannick]

I am sorry to test the Minister's patience, but if I understand him—please correct me if I am wrong—he is saying that there may be circumstances in which the Treasury would restrict the amount of money that the person who is designated—his own money—may be able to use for his own legal representation. If I understand the Minister correctly, that is because of the risk of the money being diverted to terrorism. But surely, if the money is going to a person who is regulated as a legally qualified person, the Treasury would have to suspect that a solicitor or barrister is involved, in some way, in terrorism. That is a very serious matter that should be taken up with the proper regulatory authorities and not be the subject of restricting the designated person from obtaining the legal representation that he seeks.

[Lord Wallace of Tankerness]

My Lords, in principle, it would be possible to allow people to spend their own funds on legal expenses. It does not detract from the possibility of a licence being issued, but there are practical reasons why it is not possible to allow frozen funds to be used to pay legal expenses. For example, there would be circumstances where banks would be put in a position of having to determine whether a particular transaction was for legal expenses or not. The Treasury allows this matter to be dealt with by way of licence with the appropriate conditions attached. That would be the way to deal with an individual licence on an individual application and a person seeking to use his own funds as opposed to and distinct from the general licence that exists for legal aid, which I have indicated would be issued with regard to the third-party circumstances that we have already discussed.

[Lord Lester of Herne Hill]

Will my noble and learned friend tell the House what legal remedy there would be if, in spite of good intentions, the reality was that there was an unfair, unnecessary and disproportionate interference with the right of access to court as a result of the way in which the Treasury was exercising its discretion?

[Lord Wallace of Tankerness]

My Lords, as my noble friend is aware, provisions within the Bill allow for a decision not to issue a licence with suitable conditions to be challenged. If I may say, this is a circular argument—how do you get the funding to challenge it?—but it is not without remedy.

I was asked whether there would be any restriction on the volume of funds. If the funds are required specifically for the purposes that the noble Lord, Lord Pannick, indicated, that would not lead to a restriction. This is best dealt with, and would be dealt with, on the basis of an individual licence application. Obviously, there would be a remedy there if the person was not satisfied with the terms of the licence that was issued.

The other amendment to which my noble friend spoke relates to the position under Clause 27 for a person affected by a Treasury decision other than a designation-related decision to apply to the court not only for the decision to be set aside but for it to be varied. The amendment would in particular allow decisions relating to licence conditions—the very issue that I have been discussing with my noble friend Lord Lester—such as limits on the amount of cash a designated person could access per week to be varied by the court. The Government agree that the court should have sufficient powers to require the conditions of a licence to be varied so as to ensure that the designated person has sufficient access to funds and economic resources subject to appropriate conditions, but we also believe that the amendment is unnecessary.

Under Clause 27, the court can set aside any licence-related decision made by the Treasury. For example, if the court considers a designated person should be entitled to access a larger amount of cash per week than he is permitted to withdraw under the cash limit in the licence, the court can set aside the Treasury’s decision to impose that cash limit. While it would not be open to the court expressly to write conditions into the licence or rewrite existing conditions, the Treasury is obliged to take into account the reasons that the court gives for striking down a condition in the licence. In practice, the Treasury has immediately revised licences, taking account of the court’s view on what the licence should contain. Therefore, I hope that my noble friend will not press her amendments on the assurance that these are matters not just of good practice but of obligation, which the Treasury obviously takes very seriously.

[Baroness Hamwee]

My Lords, with that last comment, my noble and learned friend anticipates my saying that I would not wish to see this matter rest on practice but that it is a matter of obligation.

I understood my noble and learned friend to say that a licence to use funds for legal advice or representation is in part to protect the banks. I find that difficult to follow, because I am asking for a licence; I am not asking for the banks to be allowed to release funds simply on the say-so of the designated person or third party that this is the use to which the funds would be put. I make that point quite seriously, although I will not ask my noble and learned friend to come back on it if he does not want to at this point. However, which article or articles does he rely on with regard to subsistence costs? The right to a fair trial leads one very directly to the point of legal advice and representation. It is probably, although I do not want to put words into the Government’s mouth, a combination of other articles that takes us to subsistence.

[Lord Wallace of Tankerness]

My noble friend is right to say that there are other articles. The right to a fair trial is the obvious one, but there is also the right to use one’s resources under Article 1 of Protocol 1. Also used in these contexts sometimes is the right to family life under Article 8, which might well be relevant in circumstances such as these.

[Baroness Hamwee]

I am grateful to my noble and learned friend. Although I remain a little uneasy—that is not his fault—I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Amendments 20 and 20A not moved.

Clause 22 : Failure to comply with request for information

Amendment 20B

Moved by

[Baroness Hamwee]

20B: Clause 22, page 11, line 13, at end insert—
“(3) A person must comply with a request under this Chapter even if doing so might constitute evidence that the person has committed an offence.
(4) But in criminal proceedings in which a person is charged with an offence—
(a) no evidence relating to any answer given, or anything else done, in response to the request may be adduced by or on behalf of the prosecution, and(b) no question relating to those matters may be asked by or on behalf of the prosecution,unless evidence relating to those matters is adduced, or a question relating to those matters is asked, in the proceedings by or on behalf of the person.
(5) Subsection (4) does not apply to—
(a) an offence under section 112 of the Social Security Administration Act 1992 (false representation for obtaining benefit etc);(b) an offence under section 5 of the Perjury Act 1911 (false statutory declarations and other false statements without oath); or(c) an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations).”

[Baroness Hamwee]

This was another matter that I raised in Committee, and I have been grateful for the opportunity to discuss it with my noble and learned friend since then. We agreed that I would table an amendment again to enable the Government to give a slightly longer explanation than they were able to at that date.

The amendment would protect a person who does not wish to incriminate himself. The exception of reasonable excuse would apply in this situation; it would be reasonable for a person to say that he will not comply because of the right not to self-incriminate. But this is a general defence to something that is really very specific, and if the Government can take us through their thinking it would be very helpful. On the question of what is reasonable in particular circumstances, one would have to analyse the circumstances so carefully and to such a degree that the concern about self-incrimination might be trumped. That is why a provision that was—as I described it—more straightforward, although longer, would be appropriate.

[Lord Wallace of Tankerness]

Again, my Lords, I am grateful to my noble friend for raising this point, which we dealt with in Committee and which we have had an opportunity to discuss further. I hope that I can persuade her that the Bill does not really provide the ace of trumps up the sleeve; rather, it recognises—as I think would this House—the importance of the privilege against self-incrimination.

The amendment would replace a qualified requirement to provide information in the absence of reasonable excuse with an absolute obligation, but would provide that such information could not be used in subsequent criminal proceedings. Again, as my noble friend indicated in moving the amendment, the purpose of doing so would be to protect the privilege against self-incrimination.

In Committee, I confirmed to my noble friend that the privilege against self-incrimination was not overridden by the Bill. In particular, I clarified that if a person was concerned that compliance with an information request would infringe that person’s right against self-incrimination, that concern itself would form a reasonable excuse, under what is now Clause 22(1)(a), for refusing to comply with that request.

I appreciate that the amendment is prompted by a concern that “reasonable excuse” operates as a defence, and that it is inappropriate to rely on a general defence in such a fundamental area. I readily appreciate the nature of this concern, but it is misplaced as it is founded on a misunderstanding of how the prohibition in Clause 22(1)(a) will operate. In order for the offence to be committed, the person must have no reasonable excuse for failing to provide the information. If the person decided that providing the information would infringe his or her right against self-incrimination, he or she would have a prima facie reasonable excuse for withholding it and would not have committed the offence.

The onus would not be on the person to raise a defence based on the privilege against self-incrimination. It would instead be on the prosecution to show that the person’s reliance on that privilege was not reasonable in the circumstances. In practice, no prosecution would be brought unless the prosecution considered that there was a reasonable prospect of establishing this, and then it would be incumbent on the prosecution to prove that beyond reasonable doubt. I hope that this further reassurance will permit my noble friend to withdraw the amendment.

[Baroness Hamwee]

My Lords, with reference to where the onus lies, the Minister’s reply is particularly helpful; I am glad to have the assurance that it lies on the prosecution in that situation. I beg leave to withdraw the amendment.

Amendment 20B withdrawn.

Clause 26 : Appeal to the court in relation to designations

Amendment 21

Moved by

[Lord Pannick]

21: Clause 26, page 13, line 3, at end insert “including the award of damages if and to the extent that the court thinks it just and appropriate to do so”

[Lord Pannick]

My Lords, this amendment concerns the award of damages where a person wins their appeal against a designation order. In Committee, the Minister said, at column 193 of the Official Report, that Clause 26(3), which was introduced by a government amendment in Committee, would ensure that a person who won their appeal against a designation order would be able to claim damages from the court. He was responding to an amendment tabled in Committee by the noble and learned Lord, Lord Davidson of Glen Clova.

I expressed concern in Committee that Clause 26(3) does not clearly confer a power on the court to award damages, even though it states that the court may make such order as it sees fit. The basis of my concern is that it is a general principle of law that to establish in court that an administrative act is unlawful because it is unjustified or based on a mistaken view of the relevant legal power does not of itself normally confer a right to damages for the victim, even if they are able to show that the unlawful act has caused direct and foreseeable damages. To claim damages, it is normally necessary for the victim of an unlawful administrative act to show that the official acted in bad faith or recklessly. I am concerned that, without express provision in the Bill, the courts may well apply this general principle.

17:30

Since the Government rightly intend to provide for a wider right to claim damages in the present context, given the damaging effect that a mistaken or unjustified designation order will have on a person and their family, my amendment seeks to state the principle clearly in the Bill. The amendment identifies what seems to be the appropriate criterion in this context. The victim should not have a right to damages in every case. The matter should be left to the discretion of the judge, both as to whether damages should be paid and, if so, how much. There may—although I hope not—be cases where the officials impose a designation order without proper care and attention, causing substantial harm to the victim. At the other end of the scale, there may be cases where the victim has, by his own conduct or failure to co-operate with the authorities, brought the designation order on himself. It would be quite wrong for that person to be awarded compensation simply because he succeeds in his appeal. I hope the Minister will confirm today, as he did in Committee, that the Bill is intended to confer a right to claim damages, with the judge in his or her discretion deciding whether it is appropriate to award damages in the individual case. If so, I hope the Minister will accept the amendment to clarify the position in the Bill for the avoidance of doubt and, indeed, for the avoidance of what will otherwise inevitably be expensive litigation from which no one, other than lawyers, will benefit. I beg to move.

[Lord Lester of Herne Hill]

I spent much time on Bills seeking to persuade the previous Administration that the statute book should state the law as clearly as possible. I remember most recently, on the Equality Bill, that I managed to persuade the previous Government—with the help, as I recall, of my noble and learned friend Lord Wallace of Tankerness—that statutes ought to say what the law is. The summary of the position by the noble Lord, Lord Pannick, is absolutely accurate. There are problems in administrative law over the circumstances in which compensation or damages are payable. The Bill, at present, does not explain those.

Presumably the Minister will remind the House that we are dealing with Article 1 of Protocol 1; we are dealing with circumstances in which property has been taken away from somebody. In an appeal, I suppose it would be said that that was an interference that should give rise to compensation. In other words, the European convention and, I suppose, the Human Rights Act—which require this legislation to be read, if possible, compatibly with the convention rights—would give rise to a right to compensation or damages in appropriate circumstances. However, it is not satisfactory to leave this to a Pepper v Hart statement by the Minister, rather than to have some appropriate language—whether that of the amendment of the noble Lord, Lord Pannick, or something else—so that the individual does not have to go to lawyers to discover what the situation is, but can tell from the statute itself what the law is.

Even if the amendment of the noble Lord, Lord Pannick, is not accepted by the Government, I hope that by Third Reading some appropriate language will be inserted so that the Bill will state the law as it is intended to be, rather than relying on Pepper v Hart. In that case I had the good fortune to appear on behalf of the successful party, with the noble and learned Lord, Lord Mackay, dissenting. I sometimes wonder, with respect, whether he was right in his dissent. The case gave rise to the possibility that Hansard will always be used to make good what the statute does not properly state itself. Although I hope I was right and the House was correct in the outcome of Pepper v Hart, it could set a bad example to Ministers if they did not amend Bills to state the law correctly.

[Lord Mackay of Clashfern]

Noble Lords can hardly expect me to remain silent while that remark is made. I support the amendment moved by the noble Lord, Lord Pannick. So far as I can judge, it seems to be appropriate in its wording. If the Government were willing to accept the principle, they might wish to consider the precise words. There is also the question of whether the same principle should not apply in relation to Clause 27, where a judicial review provision is in question. The remarks of the noble Lord, Lord Pannick, apply as much to judicial review as to any other form of order in administrative law. Therefore, it is worth considering—if the Government decide to accept this amendment or something like it—whether something of the same kind should go into Clause 27 as well. It is obvious that if the Government think this is something that should happen, it is unwise to leave it on Pepper v Hart. However good the noble Lord, Lord Pannick, thinks that decision is, it would be rather better to put it in express provision, which in any event saves a certain amount of litigation.

[Lord Bach]

Briefly, I can say only to the noble and learned Minister: plus ça change. Here I am, supporting in what I am about to say the suggestion made by the noble Lord, Lord Pannick, in his amendment. I do so in rough terms; I am not in any way inviting him to test the opinion of the House on it today. This is surely a matter that can be dealt with in some more satisfactory way than that. The noble Lord seems to have a point, backed up as he is by the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay of Clashfern. I ask the Minister this simple question. Presumably he will argue that,

“such order as it considers appropriate”,

includes damages. If the answer to that question is yes, can there be any reason not to put that in the Bill in express terms, for the reasons stated by the noble Lord, Lord Pannick?

[Lord Wallace of Tankerness]

My Lords, in responding to an amendment moved by the noble Lord, Lord Pannick, I feel somewhat guilty as I do not feel able to go so far as my noble friend Lord Sassoon in offering concessions. However, I welcome the noble Lord’s amendments as they have given us the chance to have a very useful discussion. Notwithstanding the points that have been made about the adequacy or inadequacy of Pepper v Hart statements in providing clarity, I hope that the noble Lord, Lord Pannick, will feel that sufficient clarity is provided.

This amendment relates to the debate that we had in Committee about the avenues available to a person who has suffered loss as a consequence of an asset freeze to obtain compensation. During that debate, the noble Lord, Lord Pannick, the noble and learned Lord, Lord Davidson of Glen Clova, and my noble friend Lady Noakes were particularly keen for the Government to indicate their position on this point, and I shall try to do so.

The amendment of the noble Lord, Lord Pannick, would provide that the court can, in relation to appeals by designated persons against designation-related decisions, award damages if and to the extent that the court thinks it just and appropriate to do so. The noble Lord has tabled the amendment following our discussion on the scope of the orders available to be made by the court under Clause 26(3). In that discussion I drew the Committee’s attention to that provision and indicated that,

“it would be possible, in connection with a successful challenge against the designation, for the person to claim damages, and it would be open to the court to award damages to a successful applicant”.—[Official Report, 6/10/10; col. 193.]

I was not suggesting—as my noble friend queried; and I am grateful for the opportunity to set the record straight—that it would be open to the court to award damages,

“simply for the invalid nature of the designation”.

As the noble Lord rightly observed then, and repeated tonight, that would be contrary to,

“the general principle of … administrative law … that the law does not normally provide compensation for those who have suffered direct loss as the result of invalid administrative action”.—[Official Report, 6/10/10; col. 194.]

It is not the Government’s intention to overturn that principle. However, it is the case that a designated person appealing a designation-related decision under Clause 26 can in certain circumstances make a damages claim in connection with that appeal. I apologise to your Lordships’ House if I did not make that distinction clear.

To clarify the effect of Clause 26(3), the orders that a court may consider appropriate in connection with an appeal of a designation could include, for example, an order to revoke the designation, or the renewal of it, or an order to uphold the designation. It would be open to a designated person to include in these, or subsequent, proceedings claims for damages under the Human Rights Act, as I believe my noble friend Lord Lester indicated, such as breach of the person’s right to enjoyment of property under Article 1 of Protocol 1 as a consequence of being invalidly designated, or—as I indicated in relation to the previous amendment— breach of Article 8, the right to respect for private and family life.

There have been relatively few legal challenges to designations, but where such challenges have been made a number of them have either included Human Rights Act damages claims or have given rise to separate Human Rights Act damages claims. Those claims which are being pursued are at a very early stage and as yet there has been no judicial determination of any of them. It may also be possible—although I appreciate that this would be more difficult—to found claims in tort or delict.

My noble friend Lady Noakes raised in Committee concerns about persons other than the designated person suffering loss as a result of a designation. Nothing in this Bill is intended to change the existing grounds—whether as a matter of the law of tort or delict or under the Human Rights Act—on which anyone affected by an asset freeze, whether the designated person, such person’s spouse or other family member, or any other third party, can claim damages against the Treasury if they believe that they have suffered loss as a consequence of an unlawful asset freeze.

In relation to loss suffered by both designated persons and persons other than designated persons, I should like to make one further crucial point. The purpose of the asset-freezing regime is to prevent the diversion of funds and economic resources for terrorist activity. It is the Treasury’s policy as far as is possible and consistent with that aim to license the use of funds and economic resources. The licensing regime successfully mitigates the impact on designated persons, their families and other third parties of an asset freeze. The general presumption is that a licence will be granted unless there is a risk that the transaction carries a risk of funds being used or diverted for terrorist purposes. Where third parties are affected, the power to grant a licence is exercised so as to ensure that, so far as is possible, no loss is suffered by any third party. For example, where payments to a family member or other third party would be prohibited because the designated person would thereby receive a significant financial benefit—for example, the discharge of a debt owed by the designated person—the Treasury can license such payments. Similarly, payments by a designated person to a third party in respect of, for example, contractual debts owed by the designated person to that third party are capable of being licensed.

I have heard the request that it would be useful to put something in the Bill. My concern is that although that might to some extent allow the individual to look at it and not necessarily contact a lawyer—however, I rather suspect that in many cases a lawyer will be quickly contacted—it might not cover the ingenuity of lawyers. If you put something in the Bill, it might seem to be limiting whereas lawyers might use their ingenuity to come up with other grounds under the Human Rights Act under which a claim could be made in the context of appeal proceedings or other proceedings. I shall certainly reflect on what has been said but I—

[Lord Lester of Herne Hill]

I am very grateful to the Minister. However, I would still like him to explain the practical disadvantage in accepting the amendment of the noble Lord, Lord Pannick. Would it not be of great advantage to the principle of reasonable legal certainty if this part of the Bill stated the law as it is? If not, what other means can the Government think of to bring home to people what the true legal position is, without having to consult a lawyer?

[Lord Wallace of Tankerness]

My Lords, my concern is that it would not necessarily provide the degree of certainty which my noble friend seeks. It could leave open all sorts of possibilities as to the grounds on which claims might be sought. However, important points have been made in the debate. I wish to reflect on them without commitment, but I am concerned that the proposed remedy might raise as many questions as it is intended to resolve. Therefore, I hope that the noble Lord will withdraw his amendment.

17:45

[Lord Pannick]

I am grateful to the Minister. I am also very grateful to the noble and learned Lord, Lord Mackay of Clashfern, and to the noble Lords, Lord Lester of Herne Hill and Lord Bach, for their support.

I fear that the wording of Clause 26(3) will inevitably lead to considerable uncertainty. When persons win their appeals against designation orders—and some of them will—they will inevitably ask for damages and the court will have to decide whether Clause 26(3) embodies a discretion for it to award damages. I am concerned that the House should understand clearly what the Government’s position is. In Committee, Amendment 46 moved by the noble and learned Lord, Lord Davidson of Glen Clova, required the Bill to state expressly:

“The Secretary of State shall, by order, provide for the compensation of persons who have suffered loss as a result of an incorrect designation”.—[Official Report, 6/10/10; col. 190.]

The noble and learned Lord told the Committee that the purpose of his amendment was to,

“compensate those persons who have suffered loss as a result of having assets wrongly frozen, when the person holding the asset has acted in good faith and without negligence”.—[Official Report, 6/10/10; col. 191.]

There was some support in Committee for such a provision.

In responding on behalf of the Government, the Minister said:

“Should a designated person or any other person wish to seek compensation for loss suffered as a result of an incorrect designation, we believe that there are sufficient existing opportunities available for them to do so … we believe that it would be possible, in connection with a successful challenge against the designation, for the person to claim damages”.—[Official Report, 6/10/10; col. 193.]

However, I understand the Minister today to be saying something very different, which is that the court would enjoy the right to award damages only if the individual were able to establish some other legal basis for the award of damages—a breach of the Human Rights Act or a tort. If I have misunderstood the Minister, I should be grateful if he tells me and the House. This is a very important matter and it is absolutely vital that the House understands precisely the Government’s position and intention on this, and that the Bill is clear, so that those who read the legislation know exactly where they stand. I respectfully ask the Minister to think about this matter again over the next few days, to read the debate and, indeed, the debate in Committee, and consider whether it would be possible to come up with some words to clarify the position.

I entirely accept the point made by the noble Lord, Lord Bach, that this is not an appropriate matter on which to divide the House—certainly today—but I would be grateful if the Minister would think about the matter again. On that basis, I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Clause 27 : Review of other decisions by the court

Amendment 22 not moved.

Clause 28 : Appeals and reviews: supplementary

Amendment 23

Moved by

[Lord Pannick]

23: Clause 28, page 14, line 2, at end insert—
“(5) In section 67(3) of the Counter-Terrorism Act 2008 (rules of court about disclosure)—
(a) in paragraph (c) after “that” insert “subject to paragraph (ca) below”; and(b) after paragraph (c) insert—“(ca) that in relation to a final designation, the material disclosed by the Treasury on which they rely is sufficient to enable each designated person to give effective instructions to a person appointed as a special advocate to represent that party’s interests;”.”

[Lord Pannick]

My Lords, Amendments 23 and 24 are designed to give statutory effect, in the asset-freezing context, to the principle established by the Appellate Committee of this House in the case of AF (No. 3). I declare an interest—although it is not really an interest—in that I was counsel for the claimant in that case.

The principle stated by the Appellate Committee is that where a person is the subject of a preventive measure such as a control order, which severely restricts his basic liberties, that person must be given sufficient information about the allegations against him to enable him to give effective instructions to his lawyers or the special advocates to enable them to respond. The demands of national security, important though they are, cannot outweigh the basic right to know the case against you and to have the opportunity to answer it. The reason for that, of course, is that a right of appeal to a court is of very limited value if the subject of the order does not know the essence of the case against him.

I am surprised that the reply from the Minister, the noble Lord, Lord Sassoon, to the chairman of the Joint Committee on Human Rights disputes that the AF principles apply in the context of asset freezing. I am surprised for three reasons—first, because a recent judgment of the European Court of Justice in the Kadi case specifically applied the same principles to asset freezing. Secondly, I am surprised because a judgment of the Court of Appeal earlier this year in the Bank Mellat case applied the AF principle to a Treasury decision to prohibit the financial sector in this country from entering into business with the claimant—an Iranian bank. There is very little distinction in principle between asset freezing and the financial restriction proceedings that were an issue in the Bank Mellat case. The third reason why I am surprised that the Government do not accept that the AF principles apply in this context is that the Supreme Court judgment in Ahmed, which led to this Bill, accepted that asset freezing is a very grave interference with a person’s rights, comparable to a control order.

Amendment 23 would amend the relevant provision of the Counter-Terrorism Act 2008 so as to require rules of court to ensure that the court’s otherwise absolute duty of non-disclosure in asset-freezing proceedings, where national security so requires, is expressly qualified by a positive duty to ensure sufficient disclosure to protect the right to a fair hearing. Amendment 24 is consequential.

These amendments, like many amendments that your Lordships have debated today, are required to avoid uncertainty in courts, delay and expense in the implementation of legal rights. The House may be aware that 27 special advocates pointed out in their recent written evidence to the Home Office counterterrorism review that there have been continuing difficulties in practice in securing the right to a fair hearing in control order cases. These amendments are designed to make clear the primacy of the duty of fairness in this context, as in the other context, consistent with what the courts have repeatedly stated, and to avoid the uncertainty that will inevitably otherwise result. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I have put my name to the amendment and I wish to speak briefly in support of it. I shall not add to anything that the noble Lord, Lord Pannick, has said, because I perfectly agree with his entire analysis.

Regarding the evidence given to the noble Lord, Lord Macdonald, QC, in his review of counterterrorism powers, the noble Lord, Lord Pannick, referred to 27 members of the Bar who gave evidence. Eleven of them are extremely distinguished Queen’s Counsel, as are the juniors who act for both sides, who cannot be accused of being soft on terrorism or anything of that kind. I do not know whether the Minister has seen their devastating criticism and attack upon the special advocates and control order regime.

Like the noble Lord, Lord Pannick, I do not agree that there is a distinction to be made between this regime and control orders for the reasons which he has given, including the judgment of the European Court of Justice in the Kadi case. I can deal with the amendment briefly, because the report of the Joint Committee on Human Rights published at the end of last week deals with this matter in detail, from paragraph 1.25 to paragraph 1.35. The committee will meet tomorrow and will need to consider this debate and the Minister’s letter to the committee, referred to by the noble Lord, Lord Pannick.

I hope that the House will be assisted by our having brought out the report, unusually before the Minister has had a chance to reply. Paragraph 1.35 states:

“We recommend that consideration be given to amending the legal framework to ensure that it secures the ‘substantial measure of procedural justice’ to which the subject of an asset-freeze is entitled under both Article 6 ECHR and the common law … we recommend that consideration be given to amending the Bill in four specific ways”.

Those are then set out.

Whatever happens today, this will not go away. It is extremely important, and it is my wish that both Houses take steps to ensure again that our statute book avoids the need for unnecessary litigation. Unless a significant change is made, whether in this House or the other place, it will be inevitable that this will be pursued not only in the context of counterterrorism, but also in the context of this aspect of counterterrorism; namely, asset freezing. Therefore, I hope that even at this late stage in the process in this House consideration can be given to what is in the report of our committee.

18:00

[Lord Mackay of Clashfern]

My Lords, it appears reasonably plain that the ratio of the decision of this House in the case referred to by the noble Lord, Lord Pannick, would apply with equal effect to asset-freezing orders and to the subject matter of that particular decision. The only question is whether one has to wait for a court to make that decision in this type of case or whether Parliament should decide it now. To achieve a good and clear result fairly quickly, the proposal of the noble Lord, Lord Pannick, is correct. The precise wording follows very much that of the decision of this House in AF (No. 3), but I can see that there is room for consideration of that. However, I strongly support the view that this principle should be recognised in relation to asset freezing, as it was in AF (No. 3).

[Lord Carlile of Berriew]

My Lords, I join in asking my noble friend to consider very carefully the proposal put forward by the noble Lord, Lord Pannick. I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that there is no logic to saying that different principles will apply to asset-freezing cases from those that apply to control order cases.

[Lord Bach]

My Lords, I was very well assisted by the report that the committee brought out, and by the paragraphs referred to by the noble Lord, Lord Lester. The Government of whom I was a member set up the special advocate system in order to deal with what was and remains a very difficult issue around terrorism. However, we recognise that there are difficulties with it that any Government will have to deal with in due course. On balance, we do not think that the Bill is the appropriate vehicle to make sweeping changes of principle on the issue of the special advocate system.

I have a couple of questions that I should like to ask. This may be a short debate, but the issue may be one of the most important that we debate this afternoon. As my noble friend Lord Davies of Oldham said in an earlier debate, this matter calls into question the balance between civil liberties and security—it is right at the heart of that argument. Any Government of whatever complexion will have to deal with this, day by day and month by month. I take the point made by the three noble Lords who have spoken already that it is difficult to understand why the Government argued in Committee that the regime for control orders is not the same as that for asset freezing, particularly as it relates to the special advocate system. In the end, it seems that the same rules will have to apply, whatever they are. I hope that the Minister will deal with that point when he sums up the debate. What are the differences between the two regimes, especially in relation to the special advocate system?

I am aware that there is to be a Green Paper on this vexed issue in 2011. Will the Minister confirm that that will not be December 2011, as presently planned, but more like the middle of the year? I also understand that there is likely to be a case, perhaps on point, that the Supreme Court will be asked to decide, and which will be heard very early next year, with the judgment expected in good time for the Green Paper.

Those are my questions. Despite what I have said, I hope that the noble Lord will not press the amendment. It needs some careful consideration. However, the points that have been made are powerful and must be dealt with at some stage.

[Lord Wallace of Tankerness]

My Lords, as the noble Lord, Lord Bach, indicated, this has been a short but fundamentally important debate. As he also indicated, it focuses on the challenge and dilemma of balancing the interests of liberty and those of security. I know that the noble Lord, having relatively recently been in government, had to do that himself. These are not easy issues to determine. It is important to recognise, too, that they are issues with which the Government constantly wrestle. It is fair to say that in its preliminary report—I welcome the fact that we have that report to help us today—the Joint Committee on Human Rights acknowledged the amendments that were moved in Committee and welcomed the Government’s willingness to consider the human rights issues raised during the debate at Second Reading and their amendments to the Bill, which are designed to improve the balance between national security and human rights in the asset-freezing regime. This is an issue of which Ministers are acutely conscious as they constantly try to ensure that the balance is correct.

Amendment 23, moved by the noble Lord, Lord Pannick, seeks to create a new subsection within Section 67 of the Counter-Terrorism Act 2008 that would apply to the content of the court rules about disclosure in financial restrictions proceedings and to court rules made in relation to challenges to decisions under the Bill. The amendment would require the court rules, which are to be made initially by the Lord Chancellor for England and Wales and Northern Ireland, to ensure that the Treasury provides sufficient open disclosure to enable the designated person to give instructions to the special advocate. As has been reflected in some contributions to the debate, the form of words is based on the European Court of Human Rights judgment in A, which was applied by your Lordships’ Judicial Committee in AF and Others to the stringent control orders that it was considering. The effect of the amendment is to apply AF (No. 3) to challenges to final designations.

As was foreshadowed in the letter of my noble friend Lord Sassoon to the committee, the Government do not support this amendment, and I shall explain why. I start by stressing a fundamental point on which I know there is common ground all round the House. Designated persons must have the full protections afforded to them under Article 6 of the European Convention on Human Rights; namely, the right to a fair hearing.

Section 67(6) of the Counter-Terrorism Act 2008, which is imported into the regime for dealing with asset freezing, is absolutely clear that nothing in that section, or in rules of court made under it—they include provisions relating to the Treasury’s disclosure of information only to the court and a special advocate—requires the court to act in a way that is inconsistent with Article 6 of the ECHR. It is important to emphasise that the judge also has an important role to play in challenging the closed material and in weighing the impact that non-disclosure has on the fairness of the proceedings. The court determines whether material should be withheld, and the disclosure process is designed to ensure that the maximum amount of material that can be disclosed to the individual without damaging the public interest is disclosed.

The Government and the legislation are absolutely clear that Article 6 rights apply in full to asset freezing. Therefore, it would be inaccurate to say—and I do not think that this was suggested—that advocates of the amendment support Article 6 rights while the Government do not. To make it clear, not only do the Government support Article 6 rights but those rights are there in the Bill by reference to the Counter-Terrorism Act 2008.

I hope that there is broad agreement that the legal position regarding the application of AF (No. 3) principles to asset freezing has not been fully determined by the courts. That is probably a matter of fact but it is clear that different views are being expressed in the House this evening regarding the applicability of the decision in AF (No. 3) to asset-freezing designations. Of course, the courts have determined—indeed, it was determined in the case itself—that AF (No. 3) principles apply to stringent control orders and to financial restrictions proceedings under the Counter-Terrorism Act 2008. That was the subject matter of the case to which the noble Lord, Lord Pannick, referred. However, the courts have not yet determined that AF (No. 3) principles apply to asset-freezing cases. The Government’s view is that it would certainly be wrong to say that legally there is no room for doubt on this.

I shall now seek to address the points that the noble Lord, Lord Pannick, made in moving the amendment. When the Bill was discussed in Committee, I indicated that in the Government’s view the principles do not apply to asset freezing because, although I do not in any way wish to minimise their significance or importance, asset freezes do not have the same impact on individuals as stringent control orders, nor are they as wide-ranging in their financial and economic impacts as decisions to impose financial restrictions under the Counter-Terrorism Act 2008. Perhaps I can assist the noble Lord, Lord Bach, who asked me to identify some of the distinctions. Asset freezes are not of the same nature or magnitude of interference, because they restrict the rights to property and indeed can be modified or alleviated by licences, whereas control orders restrict people’s liberty, communications and movement. As I said, I do not in any way diminish the seriousness of asset-freezing designations but, in our argument, their impact is not of the same magnitude as that of stringent control orders. However, it is open to the courts to determine whether the Government’s position is to be challenged.

It is certainly possible to draw a distinction in the case of Kadi, which was determined by the European Court of Justice. That judgment concerned the process followed by the European Commission in listing Kadi, and the Government would certainly argue that it had no direct bearing on the process to be followed by the United Kingdom Government in applying asset freezes domestically against persons believed to be involved in terrorism. We believe that the European Court of Justice judgment in Kadi is separate from the question of whether AF (No. 3) principles should apply to asset freezes. Likewise, in the Bank Mellat case, which was determined in May this year, the court’s rulings on disclosure were specific to the cases concerned and there was no general ruling on whether AF (No. 3) should apply in asset-freezing cases. The court ruled that the application of AF (No. 3) applied in the context of financial restrictions imposed against the Iranian bank, but the circumstances of such financial restrictions, where the Treasury issued a direction that the UK financial sector must cease dealings with the bank, were very different from those where an individual is subject to an asset freeze because of his alleged involvement in terrorism. Therefore, I do not think that a direct read-across of the court’s ruling is right, applying the specific circumstances under consideration to the freezing of terrorist assets, where different considerations may well apply.

[Lord Lester of Herne Hill]

I apologise for interrupting the noble Lord, but does he not agree that his valiant attempt to distinguish the control order regime and the asset-freezing regime runs against the following difficulty? The European Court of Justice in Kadi (No. 1) and Kadi (No. 2) took an extremely robust position with regard to a UN framework, emphasising the extreme deprivation that could result from asset freezing and the need for adequate safeguards. The Court found that the European Commission’s second attempt to produce adequate safeguards had failed. Would that not give advocates using arguments of that kind in our courts a very hard time indeed?

18:15

[Lord Wallace of Tankerness]

My Lords, I can almost hear the noble Lord advancing that case. The Government’s position is simply that it is possible to make a distinction where there was a challenge to the listing in the Kadi case. It is not a position that we would wish to concede; it is on all fours with the circumstances that would arise in an asset-freezing case.

Should the courts decide that AF (No. 3) applies to asset-freezing cases, any court rules that cut across this would be read down to ensure compatibility with the ruling. Therefore, it would not be necessary to amend the legislation. In any event, it would be premature to prejudge such a determination by the courts and now to require the disclosure of sensitive information that could damage national security or the detection or prevention of crime.

The question is how best to deal with a situation where the applicability of AF (No. 3) principles is not given and is uncertain. Advocates of the amendment argue that we must remove the uncertainty by giving the Government specific obligations in this statute in the terms of the amendment moved by the noble Lord, Lord Pannick. As I believe is abundantly clear, the Government’s approach is different. As I said in Committee, and as the Prime Minister announced in July, the Government will review the whole matter of the use of intelligence material in judicial proceedings and will issue a Green Paper next year. I say in response to the question from the noble Lord, Lord Bach, that the intention is for the Green Paper to be published in the summer of next year. In response to his second question, this will allow time for a judgment to be handed down in the lead case—the employment tribunal case of Tariq—in relation to whether AF (No. 3) applies more widely than stringent control orders. I understand that that case will be heard by the Supreme Court in January and we expect a judgment in the spring. It would be wrong to pre-empt the Green Paper, although there will obviously be an opportunity for reflection on that judgment before the Green Paper is published.

It would also be wrong to adopt a piecemeal approach to this important issue. As we have heard eloquently expressed in the debate this evening, the issue of special advocates and the use of intelligence material cuts across a number of areas. If we try to address these important issues in an ad hoc way in individual pieces of legislation dealing with different aspects, we risk ending up with different requirements in different pieces of legislation. I know that that is not what many noble Lords wish to happen in this area of legislation. They want to see greater coherence and consolidation, not fragmentation and a piecemeal approach. I could not have agreed more with my noble friend Lord Lester when he said that this matter will not go away. The Government readily recognise that. As I indicated, our commitment is to address the issue. The fact that we are willing to do that is a testament to the importance that we attach to it.

The Green Paper will aim to develop a framework for ensuring full judicial and non-judicial scrutiny of intelligence and wider national security activities in line with the Government’s commitment to individual rights, to the rule of law and to properly protecting national security. It will need to address concerns about the United Kingdom’s ability to protect intelligence material, including that shared by foreign partners, and to bring forward proposals to reconcile the evolving legal position—duly informed, as it will be, by Strasbourg and Supreme Court rulings—with modern intelligence practices. We will try to ensure such a coherent and consistent approach. I hope that noble Lords will welcome and support that approach and see it as a recognition not just of how important this issue is but also of just how difficult it can be to reconcile two very important but at times competing requirements. Although I recognise that noble Lords have raised necessary and important issues with this amendment, I hope that the noble Lord will agree to withdraw it.

Amendment 24 would amend Civil Procedure Rule 79.2. That rule requires the court, when dealing with certain cases, to read the overriding objective of the Civil Procedure Rules—in other words, to deal with cases justly in a way that is compatible with the requirement to ensure that information is not disclosed contrary to the public interest, while ensuring that it has the material available to properly determine the proceedings. This relates to a similar range of arguments to those that we have just gone through. It comes from a belief that the ruling in AF (No. 3) should apply to challenges to designations under the Bill.

For two reasons, I do not believe that the amendment is necessary. As I have already made clear—I shall not rehearse the reasons again—the Government do not accept that AF (No. 3) applies to asset-freezing challenges. It is for the court to decide the ambit of AF (No. 3) on a case-by-case basis. Even if ultimately the court found that AF (No 3) applied to challenges to asset-freezing decisions, we do not think that there would necessarily be a conflict between the disclosure requirements of AF (No. 3) and the public interest requirement of Rule 79.2 of the court rules. Rule 79.23 makes it clear that the public interest provision is without prejudice to the need for the court to satisfy itself that the material available to it enables it properly to determine the proceedings. Furthermore, as I have indicated, Section 67(6) of the Counter-Terrorism Act 2008, which is imported into this Bill, simply states:

“Nothing in this section, or in rules of court made under it, is to be read as requiring the court to act in a manner inconsistent with Article 6 of the Human Rights Convention”.

In short, the Government do not believe that Rule 79.2 would cut across any fairness obligation required by the court to meet Article 6. It is an important reminder of the need to deal carefully with sensitive material but it does not constrict the proper determination of the proceedings.

I recognise that serious and important issues have been raised. I have sought to address, although I suspect that I have not done so fully, the concerns expressed by noble Lords. We hope that this will be considered fully. My noble friend Lord Lester mentioned the special advocates, as did the noble Lord, Lord Pannick, who expressed his views very robustly. There will be an opportunity to deal with that in the context of a Green Paper, which will be a way to move forward in a coherent rather than a piecemeal manner. Therefore, I ask the noble Lord to withdraw his amendment.

[Lord Pannick]

My Lords, I am grateful to noble Lords who have spoken in the debate for the support that they have given these amendments and to the Minister for his detailed response. I sympathise with the noble and learned Lord because, with his brief, he faces the substantial difficulties of inviting the House to accept that the legal position is not as it has been stated by the European Court of Human Rights in the A case, by the Appellate Committee of this House in AF (No. 3), by the Supreme Court in Ahmed and by the European Court of Justice in the Kadi case. For all those judges essentially to agree that basic fairness is required when the Government impose a substantial detriment, whether a control order, asset freezing or something similar, on a person—and I forgot to mention the Court of Appeal in Bank Mellat—poses a certain difficulty for the Government. As we are all rightly concerned about saving public money, I respectfully suggest to the Government that it would be a considerable waste of public money to litigate again the question whether the AF principles apply in the context of asset freezing.

The noble and learned Lord mentioned the pending case of Tariq in the Supreme Court, which is concerned with whether the AF principles apply in an employment context. The case concerns alleged race discrimination. Whatever the Supreme Court decides in that case, it is most unlikely to throw any light on the issue that we are debating here and it is most unlikely to conflict with what has been said previously.

Having made all those points, I recognise that we shall not take this matter further today. I hope that the Government will reflect on what has been said—not by me but by other noble Lords who have spoken—that they will reflect on the range of judgments that have been given and that they will recognise that, if they want to impose orders of this sort, they have to comply with basic principles of fairness that involve telling the person concerned why, in essence, the detriment is being imposed on them. I have no doubt at all that the House will return to this matter on a future occasion, if not future occasions. For today, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Clause 31 : Independent review of operation of Part 1

Amendment 23A

Moved by

[Lord Judd]

23A: Clause 31, page 15, line 29, at end insert—
“( ) A person may not be appointed under subsection (1) unless—
(a) the Secretary of State lays a report before both Houses of Parliament which recommends the person and sets out the process by which he was chosen,(b) a Minister of the Crown tables a motion in both Houses to approve the report laid under this subsection, and appoint the person, and(c) such a motion is agreed by a resolution of both Houses of Parliament.”

[Lord Judd]

My Lords, I shall speak also to Amendments 23B, 23C, 23D, 23E and 23F. This afternoon, there have been references to the Joint Committee on Human Rights and in its report, which was published last week, it dealt with the issue covered by this amendment. In welcoming, as I do, the moves which the Government have made to try to strengthen the human rights aspects of this proposed legislation, the committee has firmly stuck to its view that the propositions which I am putting forward are the right course to take.

I take this opportunity to pay a very warm tribute to the noble Lord, Lord Carlile of Berriew, for the role which he has fulfilled as reviewer of other aspects of terrorism legislation and its implementation. He has set extremely challenging and high standards, which we should all applaud. I have not agreed with his conclusions all the time, but no one can question the commitment and expertise which he has brought to the task. He has certainly proved himself capable of making very rugged and outspoken statements when he believes that the time has come for him to do so. It is good that there is provision for a reviewer. I am really glad that the Government have made that provision in legislation.

We all know that in this extremely difficult and challenging issue of terrorism, the extremists and the terrorists operate best when there is a considerable constituency of ambivalence about what they are doing. I very much doubt whether anyone in this House would not take the most firm and uncompromising stand against what they are doing. We are clear in our own minds. However, we have to recognise that if people suffer injustice, if people are alienated, if the extremists can get to work on what they can portray as an absence of absolute transparency in all that is being done, that plays into the hands of the terrorists and their chiefs. Therefore, as in other issues we have been debating today, it is not just a matter of what is right, but of what is necessary if we are to be effective in our campaign against terrorism. We simply have to take the issue of hearts and minds seriously. That is why transparency is so crucial. What therefore is proposed in these amendments is that, following the Government’s good sense in making provision for a reviewer, the reviewer should be able to be seen, and should be seen, to be independent in all that is undertaken.

I have genuinely commended the noble Lord, Lord Carlile, for his work in adjacent contexts. I hope he will not mind my saying that I think it has been done despite the arrangements that have been made to support him and within which he has operated, not because of them. I believe that his position would have been even stronger if he had been able to be seen as totally independent in all his support and operational arrangements. That is what the amendment proposes. I hope that the Government will accept that its intention is to help them to make a success of their provision.

Therefore, perhaps I may briefly cover the points. First, we think it would be sensible that the reviewer reports to Parliament. Secondly, Parliament should certainly approve the arrangements for the appointment of the reviewer and indeed the appointment of the reviewer himself. Thirdly, the secretariat—the people who work with the reviewer—should be independent of government. There is room for doubt to be exploited if people can say, “But, look, the reviewer is utterly dependent on the implementing department for support in executing his task”. The noble Lord, Lord Carlile, has not fallen into the trap but we might not always have him, and therefore what is put into the Bill needs to provide for all circumstances. Finally, it is sensible that the appointment is for a finite period so that there can be no question of people saying that it has become part of the ongoing furniture and is no longer bringing a freshness and acute objectivity to the task.

I believe that the task of reviewer for the effectiveness of our campaign against terrorism is crucial. If we are going to have a reviewer, the logic is to ensure that he cannot be portrayed by anyone as anything but demonstrably independent of government machinery. I beg to move.

18:32

[Lord Lester of Herne Hill]

My Lords, I have added my name to the noble Lord’s amendment because I am a member of the Joint Committee on Human Rights and we dealt with the issue in paragraphs 1.41 to 1.44 of our latest report. Indeed, together with the noble Lord, Lord Judd, I was a member of the previous Joint Committee on Human Rights, when we made similar recommendations.

In our report, we paid tribute to the Government—it is important that tributes should be paid—for the way in which, during the passage of this Bill, they have moved in a human-rights compliant direction. One of the many ways in which they have done so, as we report at paragraph 1.42, relates to the two additional safeguards that have been included:

“First, there is a requirement that the Treasury report quarterly to Parliament about the exercise of the powers. Second, that the Treasury is required to appoint a person to conduct an annual ‘independent review’ of the operation of the asset-freezing regime, reporting to the Treasury which lays a report before Parliament”.

The Joint Committee then states at paragraph 1.43:

“Safeguards which enhance democratic accountability for the exercise of counter-terrorism powers are clearly to be welcomed from a human rights perspective. Our predecessor made a number of detailed recommendations for improving such safeguards, including that the post of statutory reviewer of terrorism legislation should be appointed by Parliament and report directly to Parliament, on the grounds that a reviewer with a supporting secretariat within Government might suffer from a perceived lack of independence from the Government”.

The committee therefore recommended that,

“consideration be given to amending the Bill so as to give Parliament the power to appoint the proposed independent reviewer and for the reviewer to report directly to Parliament, in line with earlier recommendations concerning the statutory reviewer of terrorism legislation”.

Like the noble Lord, Lord Judd, I pay tribute to my noble friend Lord Carlile for the work he has done as reviewer. Nothing I am about to say should be taken in any way as a criticism of his fine work. In previous debates, I have made the case that important public appointments should be made at least with the advice and consent of Parliament, not only by the executive branch. I am not suggesting that this is an occasion when that principle needs to be slavishly followed, but it is one that has a great deal to commend it. In other states that I can think of in Europe and beyond, it is regarded as good governance.

I am not in favour if disfiguring Bills with too much unnecessary detail, and there may well be other ways than this amendment of accomplishing the objective indicated by the noble Lord, Lord Judd: that is, to enhance public confidence in the perceived independence of the reviewer.

When for 18 months under the previous Government I acted as the independent unpaid adviser to the right honourable Jack Straw, Minister for Justice, one of the requirements on which I insisted, and which the Cabinet Office strongly resisted, was that I should not have an office in the Ministry of Justice and that I should not have a secretary appointed within the ministry. The Cabinet Office could not understand why I took such a strong position. I said, “Well, I am meant to be the independent adviser and it seems to me important that, as a matter of public confidence, I do not have staff from, or an office located in, the ministry”. In the end, as I said that I would not do the job otherwise, the Cabinet Office had no alternative but to comply.

I appreciate the reasons why that has not happened in the case of my noble friend Lord Carlile, and I can see arguments of convenience about security and confidentiality that would point in the other direction. However, if I am allowed, I would say to the noble Lord’s successor that, whatever the fate of these amendments, I very much hope arrangements will be made to enhanced the perceived independence of the reviewer in order to enhance public confidence. It does not have to be done in the way suggested in this amendment: it can be done administratively, provided that sensible arrangements are made. So I support the objective of the amendment, and although I have no doubt that it will not be pursued to a Division today, I hope that the principle that the Joint Committee on Human Rights has made several times will be appreciated within the Executive. I am sure that they will appoint an admirable person without the need for parliamentary intervention, although I would prefer some parliamentary involvement in the process. That person, whoever is appointed—it is a matter of judgment and character—needs to act in a way that will enhance public confidence.

[Lord Carlile of Berriew]

My Lords, I fear that it would be negligent if I did not take a little bit of the House’s time to comment on the amendment of the noble Lord, Lord Judd. I thank him for declaring my interest so generously—I mean that genuinely. Even if there are any implicit criticisms of the way in which I have conducted myself during my nine years and 25 days as independent reviewer of terrorism legislation, I have been around the political world long enough to take them on the chin and respond to them.

I am slightly surprised that I was not asked to give evidence to the Joint Committee on Human Rights prior to its most recent report. Perhaps it thought that I might have disagreed with it far more than I do, because, basically, I do not disagree with what it has said.

I remind the House how the process developed. There were a number of distinguished independent reviewers of terrorism legislation who dealt with Northern Ireland. That had become a significant but not particularly time-consuming role prior to 11 September 2001. By one of those extraordinary coincidences of life, I was approached on that very day, before the twin towers were hit in New York, and asked to carry out a function which I was told would take only a few days per year. Later during the day, after the twin towers had been hit, I asked the Home Secretary’s Private Secretary if the Government now wanted someone competent to do the job. The response was that they were happy for me to do it, and I have done it ever since.

I tell that story because it is important to remember that the role of the independent reviewer has been evolving all the time, just as counterterrorism law has been evolving all the time. I am sure that the previous Government would acknowledge that, from time to time, they made mistakes about counterterrorism law. I, as independent reviewer, made mistakes in reviewing certain aspects of counterterrorism law. I suspect that the present Government—whom I support politically, at least, although I am neutral for this purpose—will also make mistakes. It is a very difficult area.

The whole process of reviewing started in my case from a relatively unsophisticated position and has developed into a much more demanding role. On the question of independence, I should say that it really depends whom you speak to. I fear that I may have been cited on most sides of almost every argument about counterterrorism. If that is evidence of independence—and it may well be—I am satisfied with that position.

About office and matters of that kind, I remind those who have spoken in this debate and may be interested in it that I have always conducted the role of independent reviewer of terrorism legislation from my chambers, which I have paid for allowing me to carry out the role there. I had better give them a plug —9-12 Bell Yard. My chambers, as one would expect of a good set of barristers’ chambers, has been prepared to put up with that inconvenience—possibly because I was head of chambers for six and a half years of the time that I have been doing it.

I have had an office in the Home Office, and I am glad to see my noble friend Lord Thomas of Gresford here, because on one occasion he castigated me in this House for having an office in the Home Office. He was kind enough to acknowledge afterwards that he might have overlooked the fact that in my office in the Home Office, which is situated in the Office for Security and Counter-terrorism, I have a room, quite an ample room—it even has a sofa, which is quite hard to get these days in the Home Office—which I use only because I have to keep documents in a secure place. Keeping documents in my chambers or, even worse, in my home, is insufficiently secure.

I confess to your Lordships that on my not-very-frequent visits to that office—perhaps, on average, I go there about once a fortnight—I hold meetings, but it is convenient to meet Home Office officials, police and others whom one needs to meet in a secure place in precisely that, a secure place. It would be far more expensive for government if such meetings were to take place elsewhere. Although I entirely support the notion of physical and intellectual independence being clear, it is not so easy in practice.

The Bill proposes that there should be a reviewer of yet another aspect of counterterrorism law, of which there has not been an independent reviewer up to now. It makes sense that whoever succeeds me after the end of this year—my appointment having been extended, after three three-year terms, for a very short period so that a successor can be appointed and find his or her feet—should be able to carry on as independently as I believe that I have, although I recognise that not everybody would agree with that, and should have the secretariat with which to do so.

18:45

In my most recent report on the operation of the Terrorism Act 2000, referring to the year 2009, I set out at the end a section intended to help the Government when they came to appoint my successor. I suggested that the job should become full-time, because it has taken up so much of my time that it has been difficult to do almost anything else; that it should have a proper secretariat; and that it should have an office which does not depend on the good will of, for example, the other tenants of that great institution, 9-12 Bell Yard.

I believe, however, that the crucial independence is that of the reviewers, not that of the secretariat, for this reason. If an independent reviewer is to know what is going on in the Office for Security and Counter-Terrorism in the Home Office, it is necessary to have someone on hand who understands the OSCT not just as to its organisation but as to what flows through its arteries. Equally, an independent reviewer properly funded would have in his or her office a researcher who came either straight out of the academic world or from some other sphere entirely separate from government. Actually, that does not matter. What is vital is that the independent reviewer should be able to act independently, recognising what is good advice, bad advice, partial advice and impartial advice. That is the essence of the role carried out by the reviewer.

My belief that the independent reviewer of terrorism legislation should become a full-time role with an office—which I fear would involve expenditure of further government resources at a rather bad time for acquiring greater government resources—is enhanced by the belief that when the counterterrorism review is published shortly, there may well be further aspects of counterterrorism that the independent reviewer will have to focus on, in a way which has not been incumbent on me. The case for a full-time, or near full-time, reviewer is becoming stronger, and the case for giving the reviewer permanent staff, wherever they come from, is now unanswerable, in my view. I suffered from the lack of permanent staff.

I qualify that statement by saying that I could not have asked for greater support than I have had not just from Ministers of both Governments who have been in power in my time but, more particularly, from civil servants—senior, middle ranking and junior. It needs to be said from time to time that they have displayed a discipline of independence that is possibly unique to the Civil Service in the United Kingdom. I cannot praise them enough for the help that I have been given on that basis. If anyone thinks that they should say in a debate such as this that the Civil Service is partial to one Government or another, to one view or another, I can tell noble Lords that they would be completely wrong.

As to the way in which the independent reviewer is appointed, I do not have any very strong views. Appointment by a Minister does not make the reviewer any less independent. Many public appointments have sprung surprises on government; for example, chief inspectors of prisons. Independence is in the way the person concerned operates. There are particular difficulties in this role because the independent reviewer of terrorism legislation sees things that other people do not see, including some people who claim to have seen things that they have not seen. Even worse, there are some people who claim to have seen things that do not exist; that poses difficulties when the press gives them the credibility it does. Indeed, there are one or two senior political figures who give themselves that kind of credibility, and it is completely bogus. Far more important than the appointment procedure—although I take everything that has been said about open appointments, which are obviously desirable, as absolutely genuine—the most important thing is that the person should be independent and properly supported.

It would always be my preference that the independent reviewer’s reports should be submitted to Parliament. That is a logically neutral way of doing it, and there is an intellectual guarantee that if a reviewer reports to Parliament, Parliament will publish the reports and nobody can even attempt to suppress them. I have to say to your Lordships for the record that, although my reports have been submitted to the Home Secretary because of the way I was appointed, on no occasion has any draft report of mine been changed in any material particular, save where I was factually wrong, except once, and I should tell your Lordships about it because it is instructive about a flexible process.

On one occasion, I was concerned that those who were arrested in Northern Ireland for terrorism offences under the now defunct Part 7 of the Terrorism Act 2000 were unable to obtain bail over a weekend because bail could be obtained from a High Court judge only, and the High Court in Belfast did not sit over a weekend. So I wrote a report that suggested that there should be a duty judge over the weekend, and I submitted it for factual correction if inaccurate by the Home Office. I am delighted to say that one afternoon I was required to go to a red telephone where I spoke, at his request, to the then Lord Chief Justice of Northern Ireland. As a result, I changed my report; I was able to say that I was delighted that the Lord Chief Justice of Northern Ireland had decided to appoint a duty judge for every weekend to deal with bail applications. That seems to be an effective use of the reporting procedure used at the moment and of the draft.

I cannot imagine any circumstances in which any honourable person appointed to this role would be prepared to change their report at the behest of a Minister or civil servant for political reasons. It has never happened. It did not happen with any of the reviewers before I was appointed, it has not happened during my period of tenure, and I do not think it will happen with any successor I can foresee under the present or changed arrangements.

The real purpose of what I want to say this afternoon in response to the amendment moved by the noble Lord, Lord Judd, is that what happens is much more important than the process. The process must have integrity, but there are practical aspects to a role such as this that mean that simply sitting in an ivory tower, sending out letters demanding responses on matters, some of which are extremely secret, is not an adequate way of getting the job done well.

I think this may be my swansong in this role so far as this House is concerned, so I will say that I am grateful for the support and the constructive criticism that I have had from noble Lords, including some of my noble friends. I hope that we will not in future have to have a debate about something as basic as the way the appointment takes place.

[Lord Davies of Oldham]

My Lords, I rise briefly to congratulate my noble friend on the way in which he moved this serious and important amendment for the House to consider and triggered a constructive and significant debate. I favour the amendment. It has not always been the case in recent years that I have favoured Back-Bench initiatives from my party, but one of the liberating factors in opposition is that one is able to reform old friendships after the obvious discipline that imposes itself in government. I am happy to indicate from the Front Bench how much we welcome the way in which my noble friend has acted in this respect and has presented this amendment today.

First, I want to make it absolutely clear that none of us has anything but admiration for the way in which the noble Lord, Lord Carlile, has carried out his duties. He has described with great accuracy this evening the nature of the role and its challenges, but his reputation has run before him over these many years. The fact that he identifies that he has spent nine years and 25 days in the role shows the degree of service that he has done to the nation in a very challenging role. I emphasise that in so far as we see merits in the amendment, that is in no way a criticism of the way in which the noble Lord carried his duties—far from it. We are great admirers of the way he discharged those responsibilities.

I also recognise what the noble Lord, Lord Lester, generously said. The Government have included two additional safeguards with regard to this legislation, on which they are to be congratulated. That is part of the reason, but not the sole reason, why we in the Opposition have been moved to offer support throughout the bulk of the debates in this House. We recognise that the Government are facing challenging issues in identifying this legislation accurately. On one point I disagree with the noble Lord, Lord Lester. I am not sure that an amendment of this kind can be described as potentially disfiguring the Bill. If the amendment brings a dimension to the Bill that meets the objective that my noble friend emphasised in his introduction—taking the hearts and minds of our people with us on combating terrorism—we need the confidence of the nation in the processes that we put into place.

[Lord Lester of Herne Hill]

I do not think that the amendment to which I put my name does so. I was simply seeking to say that in general one should not include unnecessary detail of a disfiguring kind, but I support the amendment, which is why I put my name to it.

[Lord Davies of Oldham]

I am delighted to hear that. I apologise for my slight misinterpretation of the noble Lord’s advocacy this evening. I thought that he put that point in to indicate that it might detract from the Bill when, of course, I assumed that he signed the amendment with the wholehearted determination to support it as far as he was able. He certainly largely did so in his contribution this evening.

As I indicated, I want to speak only briefly with regard to this issue. We find merits in the amendment, and we hope that the House does too.

19:00

[Lord Sassoon]

My Lords, it has been an interesting discussion. I am grateful to the noble Lord, Lord Judd, for recognising that the Government have put in this independent review process. We have modelled the provisions for the independent reviewer on those in the Prevention of Terrorism Act 2005, which we believe provide an effective model for the statutory, independent asset-freezing reviewer. The tributes that have been paid to the work that my noble friend Lord Carlile of Berriew has done, and to which I add my own, are the strongest possible endorsement of the framework we have used and on which we have modelled the provisions in the Bill.

Amendment 23A requires the independent reviewer to be approved by Parliament. We have heard very clearly from my noble friend Lord Carlile that independence is not to do with the detail of the appointment process, but the state of mind and the way in which the reviewer goes about his or her business. Of course, the independence of the reviewer is absolutely essential as part of the safeguards and will be a principal objective of the appointment that is made. But that does not mean that we believe it is necessary for Parliament to approve the independent reviewer. That would be a significant departure from standard practice in these matters. The appointment of a reviewer by government reflects a longstanding principle of ministerial responsibility about appointments. It is something for which Ministers are directly accountable to Parliament and to the public. Parliament will of course be able to scrutinise the work of the reviewer and hold him or her to account through existing mechanisms; for example, through parliamentary committee scrutiny.

Amendment 23B requires the reviewer to have a secretariat that is independent from government to assist him in the task. For reasons, including those given by my noble friend Lord Carlile of Berriew, we do not consider this to be a necessary provision. The independent reviewer will be provided with a secretariat and administrative support in this case, as necessary, by the Treasury. As my noble friend has explained, in practice these matters are not easy. He has set out a model that suited his way of working. It combines, under exactly the same provisions as we are proposing in this legislation, his operating partly in his own offices and partly, for matters of security and confidentiality, within, in his case, the Home Office. That does not appear to have impacted adversely in any way on his ability to carry out the role. Indeed, he has explained why in aspects of it it has been necessary to have the provision of a secretariat of civil servants, whose work he has warmly commended. We do not see why this should be any different for the independent reviewer of the asset-freezing regime.

To make the obvious point, creating a new and independent secretariat would mean a significant and ongoing cost. It is important, especially at the present time and in the present financial climate, that the best value for money is achieved, consistent with all the other objectives that we need to meet. We believe that the Treasury can provide the necessary secretariat without affecting the independence of the review or creating further significant costs.

Amendments 23C, 23D and 23E would replace the independent reviewer’s obligation to report to the Treasury with an obligation to report to Parliament. The annual reports and other ad hoc reports from my noble friend Lord Carlile of Berriew have always been provided, as he has eloquently explained, in the first instance to the Home Office to check factual accuracy, and to check that they do not inadvertently include any classified material and cannot be published. Similarly, asset freezing also deals with highly sensitive and classified material. We therefore believe that a similar process is appropriate.

Given that the independent reviewer will have access to all relevant papers and evidence, including highly classified intelligence reports, and on occasion material that is being considered as part of a separate criminal prosecution, it is only sensible to ensure that published reports do not include classified or sub judice material. Parliament could certainly not undertake such a check. But I can assure noble Lords that the Government will not seek to influence in any way the outcome of these reports. The reports will be provided to Parliament as quickly as possible and will be made available to the public.

Finally, Amendment 23F states that the appointment of the independent reviewer will be for five years and that it will not be renewable. We do not believe that it is necessary to have a statutory limit on the length of time that a reviewer should remain in post. There may be valid reasons why a reviewer should leave at an earlier stage. Equally, there also may be valid reasons why a reviewer should stay in post for longer, such as the expertise that a reviewer builds up over time of the legislation that is being reviewed, which may be invaluable to the review process.

The Government consider it essential that the report is impartial and transparent. As I said in Committee, the independent reviewer will be free to review any aspect of the asset-freezing regime. I would therefore hope that the noble Lord will be prepared not to press his amendments.

[Lord Judd]

I thank the noble Lord for that full reply and appreciate the tone in which it was given. I also thank everyone who participated in this debate and, if I may, I have a special word for the noble Lord, Lord Lester, who supported the amendment. I say that because it is fascinating to watch even one of my oldest friends—we were at the same school—grappling with the realities of his intellectual and legal convictions, and the cause of coalition politics. I understand his predicament and think that he spoke as positively as he could. Obviously I am glad that my noble friend Lord Davies commended the amendment. It is always nice to feel that one’s Front Bench is behind an amendment of this kind.

I have also a warm word of thanks for the noble Lord, Lord Carlile, for sharing so much of his experience and insight. We are fortunate to have someone of his calibre doing the job. But that is the point: he emphasised that it is the rugged independence of the reviewer that matters. We are making provision in this legislation for a future in which we do not know who the reviewers will be. They may not all be as robust and at times combative as the noble Lord has proved himself to be. The advantage of what we are proposing is that there will be a system that gives resources to and backs the reviewer in order to enable him or her to play the part as fully as they should.

The noble Lord and others spoke about costs, and of course one recognises that there may be costs involved. We are talking about justice in the face of the most terrible and sinister provocation, and of preserving the essence of what makes our system of justice, of governance and of democracy worth defending. If we really believe in these things, there will be a price. But we cannot simply trim still further because by doing so we give a victory to the extremists. What I have always been determined to see in our approach to these matters is that we do not inadvertently give the extremists a victory—a score. That is why it is so important that we demonstrate to the world and to others that we are proud of our system of justice and our freedoms. We know that in the context of terrorism it is necessary to introduce special measures, but in doing so, we must be determined to ensure that all can see that we will keep the diminution of our systems of justice as we understand them to an absolute minimum, and that what is being done can be justified. That is crucial and therefore the importance of the independence of the reviewer cannot be overstated. It is vital. In that sense, what the amendment proposes is a system that will enhance and demonstrate that independence.

This is a vital issue. I do not want to see the processes of rationalisation beginning to erode it all over again. That is how we slip and how, inadvertently and step by step, incrementally we give the terrorists and the extremists a victory. By doing so, the society we will end up with will not be the society we are trying to protect. From that standpoint, and because it is such an important issue of principle, I wish to test the view of the House.

19:11

Division 2

Ayes: 122

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Labour: 103
Crossbench: 13
Independent: 3

Noes: 143

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Conservative: 95
Liberal Democrat: 32
Crossbench: 7
Ulster Unionist Party: 2

Amendments 23B to 23F not moved.

Schedule 1 : Consequential amendments

Amendment 24 not moved.

Statement of Changes in Immigration Rules (Cm 7944)

Monday 25th October 2010 Lords Chamber

Motion to Disapprove

19:23

Moved By

[Lord Avebury]

That the Statement, laid before the House on 1 October, be disapproved.

[Lord Avebury]

My Lords, the statement reverses the judgment of the Supreme Court in the case of ZN (Afghanistan) concerning the Immigration Rules that apply to dependants of former refugees who have been naturalised as British citizens, and imposes a new English language requirement on persons applying to join their spouses or civil partners already settled in the UK.

Up to now, the rules have allowed British citizens and non-EEA nationals who are settled in the UK or who are being admitted to the UK for settlement to bring with them their spouse, fiancé or civil partner subject to certain conditions which do not normally include a pre-entry language requirement, the only exception being where the applicant is asking for indefinite leave to enter as a partner or spouse. In those cases, where the applicant satisfies all the other requirements but not the English language test or the test of knowledge of life in the UK, she or he is normally admitted for a period of 27 months, which generally gives them time to do the homework and pass both tests.

The justification for extending pre-entry testing, given in paragraph 7.13 of the memorandum accompanying the statement, is that it will help spouses and civil partners to integrate into British society. The Government say that it will help promote the economic well-being of the UK by encouraging integration and protecting public services. They claim that it will help ensure that spouses and civil partners are equipped to play a full part in British life from the outset.

But the Immigration Minister, the honourable Member for Ashford, has included these rule changes in a list of initiatives designed to reduce numbers. The honourable Member for Romford reinforced the point when he appeared on the BBC’s “Politics Show” on 9 June. I understand that the Government estimate that the tests will produce a 10 per cent reduction in applications from spouses and civil partners—perhaps my noble friend the Minister will confirm that figure. It would mean that we are talking not merely about a delay affecting the failed applicants but about their permanent exclusion. If the number of applications is the same in every year and the failures are successful 12 months later, the 10 per cent reduction will happen only in year 1 and will be made up by those who defer taking the examination until the second year. Will the Minister confirm that it is assumed that none of the 10 per cent will get through the tests after some delay? If not, what is the Government's estimate of the proportion of applicants who drop their attempts permanently?

There was no consultation on the imposition of the language test on the grounds that the changes proposed were said to be minor and to reinforce rather than change existing policy. There was a consultation on the UKBA’s original proposal on marriage visas generally in December 2007, and, the following July, it reported that 68 out of 101 respondents were against pre-entry language tests. Respondents pointed out the difficulty of accessing good-quality tuition in many countries and said that English was best learned in the UK, where facilities are available and the newcomer is already immersed in British life.

Liberty, the civil liberties organisation, reminds us that, because of the problems uncovered by that consultation, the previous Government decided on a phased implementation. In July 2008, they announced their intention to establish a cross-government departmental group to identify benchmarks that would trigger implementation of universal pre-entry language testing, to develop monitoring and reporting arrangements and to improve English services in priority areas from which most spouses apply. In the Home Office’s equality impact assessment of 1 October this year, we read that the FCO, BIS, DfID and the British Council indeed formed such a group, but, as far as I know, any advice that they gave has not been published. It would be interesting to know what they said about the time that it would take to implement marriage visa reform. I hope that the Minister will agree to place copies of their reports in the Library of the House.

Without knowing even approximately how many spouses may be affected, one can see already from the adverse effects on family unity of ordinary migrants that, for some of those who must take the tests, these are not minor changes by any means. My correspondent, Mr R, originally from Kuwait but now a British citizen, wishes to bring his wife and one year-old child to live with him in the UK. He lost his well paid job here during the recession and has since been in Kuwait looking after his wife and little girl. As Mrs R is a Bidoon, it took some time and a lot of correspondence to register the little girl as a British citizen. Mr R is now facing the dilemma that the accommodation and maintenance tests can be passed only by returning to the UK and trying to get work in a hostile economic environment, leaving his wife and daughter to fend for themselves in a society where Mrs R is a non-person. It may take several years before Mr R can get the resources needed. Meanwhile, his wife must learn English without having the money to pay for lessons.

On the basis of a legal opinion from Matrix Chambers, the director of Liberty, Shami Chakrabarti, says that pre-entry English tests are discriminatory and unlawful, and that Liberty will challenge the policy in the courts. The memorandum gives the Secretary of State the power to let the applicant off taking the test where there are exceptional compassionate circumstances that would prevent them meeting the requirement. It would be helpful if my noble friend explained how that expression is to be construed. Will there be guidance on its interpretation and when can it be expected?

The equality impact assessment published on 1 October acknowledges the possibility of an Article 8 case if a family is separated because a spouse such as Mrs R is unable to meet the requirement either because she cannot access English lessons in the country of origin or because she is destitute, or both. The EIA also admits that cases might be brought under Article 14 of the ECHR on discrimination on grounds of nationality, taken together with Article 8 on the right to family life, because spouses from countries where English is the majority language are exempted from taking the tests.

Rabinda Singh and Aileen McColgan of Matrix Chambers advised Liberty that there are,

“serious grounds for concern as to whether the imposition of pre-entry language requirements … is consistent with the UK’s obligations under Articles 8 and 14 of the ECHR, and also with the positive obligations imposed on public authorities (specifically here the UKBA) by the Race Relations Act 1976”.

Can my noble friend say how the Government reached the conclusion that making it harder for refugees’ spouses to join them, and thus damaging family unity, is compatible with the Convention relating to the Status of Refugees? Will she address this question in the light of the judgment by the Supreme Court in the case of ZN, where the noble and learned Lord, Lord Clarke, said in paragraph 35 that there were,

“coherent policy reasons for applying the same principles to applications to join or remain with a spouse or parent who has been granted asylum both before and after such a sponsor has become a British citizen”.

19:30

This principle is underlined in many of the decisions of Excom, the governing body of UNHCR, of which the UK is a prominent member. In 2005, for example, Excom reaffirmed,

“the importance of family unity and reunification as referred to in its Conclusions Nos 9, 24, 84 and 88; and recognises that family members can reinforce the social support system of refugees, and in so doing, promote the smoother and more rapid integration of refugee families”.

It follows that creating barriers to entry will delay the integration of refugee families and, as children learn languages less easily as they grow older, the delay may be critical. In the Netherlands, when language testing was introduced there was a reduction of 39 per cent and 44 per cent in the number of spouse applications from Turkey and Morocco respectively, the two main countries of origin, in 2006, the first year of the tests, and that reduction continued into 2007. Will the Minister ask the Netherlands Government whether they sought advice from independent agencies on the effects of their tests on integration, particularly since they raised the standard of the tests in 2008?

On the question of who will conduct the tests, the EIA answer to question 1.2 says that initially we will accept any of the test providers who are approved for tier 2 of the points-based system and who confirm that they provide appropriate A1 speaking and listening tests. What has been the response so far of these providers, and when is the full procurement exercise for providers of English tests likely to be undertaken? In the mean time, what will the tests cost an applicant and will they be able to take them online?

Lists of approved testing centres will be needed in all the countries from which spouses are likely to apply. Perhaps my noble friend will place copies of those lists in the Library. There are further questions from both ILPA and the JCWI in their joint letter to the Immigration Minister of 1 October, and I hope my noble friend will ask him to publish his reply to that letter.

The other change in Cm 7944 is that, if the refugee is naturalised as a British citizen, for the first time his spouse has to satisfy the accommodation and maintenance requirements that apply to spouses generally to get a marriage visa. The Government’s argument is that under the rules as they stand there is discrimination between British citizens who were not refugees and other British citizens who were refugees and are now naturalised. However, as ILPA has pointed out, the circumstances of the two groups are profoundly different. The cause of family disunity in the case of the refugee is that he had to leave his home country because of his well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Naturalisation does not change his status as a refugee. As I have mentioned, the noble and learned Lord, Lord Clarke, said in paragraph 35 of the Supreme Court’s judgment in the case of ZN, which the Government now seek to reverse, that there were,

“coherent policy reasons for applying the same principles to applications to join or remain with a spouse or parent who has been granted asylum both before and after such a sponsor has become a British citizen”.

This principle is underlined by many of the decisions of Excom, as I have already mentioned. Have the Government asked UNHCR to comment on these changes? Can my noble friend explain why the Government consider that making it harder for refugees’ spouses to join them, and thus damaging family unity, is compatible with the Convention relating to the Status of Refugees?

In the impact assessment published in August 2009, I understand that the cost of implementing these measures was estimated at between £26.9 million and £51.1 million, but that did not include the legal cost of defending human rights actions based on Articles 8 and 12 of the ECHR, the right to private and family life and the right to marry and found a family respectively. Can we have an update on the cost, including an estimate of the legal fees that will be incurred?

These changes, and similar ones in Germany, Denmark and France, are modelled closely on the system in place for several years past for dealing with spouses in the Netherlands, except that in the Netherlands family members of persons who have been recognised as refugees are exempted permanently from the test. Research there by Human Rights Watch has shown that the system hinders integration by preventing spouses from living together; and the operation of the test, coupled with the income requirements, high costs and long waiting periods, creates a strong impression—expressed also by the majority of migrant representatives interviewed by Human Rights Watch—that the measures are not about integration but rather about keeping people out of the country. In the words of one, they are “to close the door”. I fear that that will be the legitimate reaction to this statement among immigrant communities here too, so that the damage to integration will not be confined to the families immediately affected. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, it may be for the convenience of the House if I now speak to my Motion. However, perhaps I may first comment on the interesting remarks of the noble Lord, Lord Avebury. As he said, the previous Government had signalled their support for English language changes, but as part of a staged process over a number of years in order gradually to introduce the policy that all spousal applicants would have to speak English in order to better their integration. The decision to go for a phased development related to the availability of English language classes in some of the countries from which applicants were likely to come. I shall be interested in the Minister’s response to the points and questions that the noble Lord, Lord Avebury, has raised.

I pay tribute to the Merits Committee for its careful attention to the two statements of changes in the Immigration Rules that are encompassed by my Motion. I turn first to the substantive statement, HC 59, laid on 28 June. Two changes are proposed in that statement to the points-based system as applied to highly skilled migrants. These are to provide for the application of a limit on applications approved under tier 1 general of the points-based system and to increase the number of points required to qualify under tier 1 general. These changes are meant to be interim and the Government are consulting on how limits should be determined and applied in the longer term on a permanent basis. I have two substantive points to make: first, the principle of the changes to be made; and, secondly; the degree of parliamentary scrutiny in relation to the size of the cap.

Last Thursday, we had an excellent debate on the Government’s cap policy in relation to highly skilled migrants. It was opened by the noble Baroness, Lady Valentine, and more than 20 speakers from all round the House took part. Essentially, it drew attention to the illogicality and damage to the UK of the immigration cap imposed by the coalition Government.

In speaking to my Motion tonight, I do not underestimate the challenge of immigration policy for any Government. Over the centuries, this country has experienced wave after wave of migrants coming to our shores and we have benefited mightily from the talent and commitment that they have brought. They continue to come and enrich our country. However, migration also brings pressures to many of our more vulnerable communities—pressures on jobs, public services and social cohesion. That is why the previous Government committed themselves to an immigration system that both promoted and protected British values. As a result of the action that we took, our borders are stronger than ever. We recognise the pressure that can be placed on housing and public services in many communities and we had planned to expand the migration impact fund paid for by contributions from migrants to help local areas.

We can clearly see the progress made, with a reduction in net migration to the UK and with asylum claims now down a third from their 2002 level. We also introduced the new points-based system to ensure that the need for migrants was closely aligned to the needs of the British economy. That is why we built flexibility into the system. That flexibility has essentially been removed by the cap that the Government have introduced—at first temporarily through the statement, but to be followed by a permanent cap next year. This in turn has brought immediate problems for business, universities and the arts. I believe that it threatens to seriously undermine the UK economy.

Last Thursday, in the debate, the consequences were spelt out by many noble Lords. The noble Lord, Lord Ryder, the chairman of the Institute of Cancer Research at the University of London, spoke about the institute as a world-leading cancer research organisation and said that its international pre-eminence would be at risk unless the Government adapted their cap on immigration. My noble friend Lord Giddens said that many companies are already deciding not to invest in projects in the UK because of worries about the availability of specially skilled staff. The noble Lord, Lord Lucas, talked about the impact on the independent schools sector. The noble Baroness, Lady Manningham-Buller, spoke about the need for our universities to be globally competitive and said that they were being put at risk by the cap. The noble Baroness, Lady Hamwee, raised concerns about the impact on our creative industries. The noble Lord, Lord Newby, drew attention to the critically important energy sector, where the arbitrary cap may force companies to move specialist functions to other countries. Many similar points were made by other noble Lords, including my noble friends Lord Judd and Lord Turnberg.

Tonight, we have an opportunity to ask the Government to reflect on the damage that their arbitrary cap is doing already and will certainly do in the future. I hope that the Government will also reflect on the degree of parliamentary scrutiny that they are affording to these major changes in policy. The Merits Committee report identified four matters that the House might wish to explore. First, is the Government’s analysis of the impact of the changes on the number of applicants accurate? Secondly, has the case for interim limits been fully made? Thirdly, will the changes have any specific equality impact? Fourthly, what is the Government’s reasoning for not putting the actual limit in the statement itself, which would then make it subject to parliamentary scrutiny?

19:45

Given the time, I would like to concentrate on the fourth point, because that is the subject of my Motion. The actual limit imposed on applications for tier 1 general is not in the statement. This limit is published separately by the UK Border Agency on its website and the key concern is that the UKBA guidance is not subject to parliamentary scrutiny, whereas the statement of change that we are debating today is. This concern about the Government making substantial changes in immigration policy without being subject to formal parliamentary scrutiny has of course been the subject of a number of recent judgments. As a result, the Government have altered the way in which tier 2 changes are to be implemented. Even then, however, in the case of neither tier 1 general nor tier 2 have the relevant statements provided for the limits. In the case of tier 2, the limits are left to the points-based system guidance.

I am concerned about this principle because I believe that the actual numbers should be determined by Parliament. As the Merits Committee says,

“the actual limit imposed for Tier 1 (General) would seem to be an important matter, and the House may wish to consider further the Government’s reasoning for not putting the proposed Tier 1 (General) limit in the Rules themselves”.

If the Government wanted to, they could set the tier 1 general limit as zero through an administrative act subject to no parliamentary control.

Although we are told that these are interim limits, there is no guarantee that they will be replaced by permanent limits in the future. I am sure that the Minister will say that there is a need for flexibility. I understand that, but there is also an overriding need for parliamentary scrutiny. As the Merits Committee points out:

“Government’s desire for flexibility could be met by setting an overall limit in the Rules themselves, with the UKBA then given the ability to vary the month-by-month quotas in order to provide the desired flexibility”.

There may well be other ways in which flexibility can be provided but with the overall limits being subject to parliamentary scrutiny.

My Motion refers to another statement—HC 96, laid on 15 July. That statement was laid on an urgent basis following two court judgments concerning the extent to which requirements under the points-based system should be set out in the Immigration Rules rather than in the UK Border Agency guidance. I have referred to that already and, in a sense, my remarks apply as much to the second statement as to the first.

I hope that the House will consider my Motion. My understanding from the media is that the UK Border Agency announced last week that it will be issuing no more visas in October as a new monthly limit has already been replaced. I would be grateful if the noble Baroness could confirm whether that is right. If so, it is a disaster. The Government are putting at risk this country’s pre-eminent status in academia, the arts and business. The Standard reported that Mr Cameron said in his speech today that,

“the new immigration cap will not shut out business talent from overseas”.

The problem is that there are specific examples from companies showing that it is being shut out from overseas. I question whether that is the right thing to do when our economy is in a position of great fragility. My Motion is not a fatal Motion, but passing it would send a powerful signal to the Government that they need to think again.

[Lord Hylton]

My Lords, successive Governments have declared that they favour families and family life, and I personally have always defended the principle of family reunion for people accepted into this country on a long-term basis. Now we find that this Government are meanly changing the rules to discriminate against accepted refugees and to take away rights that they have enjoyed for many years to bring in their immediate families. The Government should bear in mind that genuine refugees have almost always suffered persecution and may well have suffered additionally through harm in the process of escaping or reaching this country. There is a strong argument for allowing refugees to bring in their next of kin when it is possible. Quite often it may not be possible for a whole variety of reasons.

I support what the noble Lord, Lord Avebury, said about language tests and what the noble Lord, Lord Hunt of Kings Heath, said about process and lack of consultation, especially on refugees. I urge the Government to pay attention to your Lordships’ recent debate on immigration but, above all, I ask them to have second thoughts on family reunion for refugees.

[Lord Lucas]

My Lords, I share the worries expressed by the noble Lord, Lord Hunt, in this area and his concern about where we are heading on this policy. It is not that I share his fundamental opposition to it as a policy, but we seem to be implementing it in a very dogmatic way rather than taking account of the needs of the economy and putting the primacy of economic growth and recovery first. That concerns me very much.

I am also concerned by the particular subject of the noble Lord’s Motion—that we should not have the cap in legislation. As he says, interim solutions can last a long time. We are an interim solution approaching its hundredth year. I find myself in many ways in sympathy with him and will therefore listen to my noble friend on the Front Bench with great interest when she comes to reply.

My particular concern is with the implementation of tier 4. The last figure that I had was that more than 60 pupils at top-ranked independent schools were still stuck abroad at half term because their process is not being completed. It is a common experience for schools of endless difficult bureaucracy and of parents and pupils in tears. There are real problems in recruiting students—and for what known problem created by the independent schools sector or students in it? What is all this expense for at the UK Border Agency and the Home Office? Why are we wasting money on controlling things that do not need to be controlled? In doing so, we are damaging an industry in which we have a great reputation and which, in the wider sense, particularly for further education, brings in several billion pounds a year of earnings to this country.

Why are we beset with extraordinarily idiotic rules, such as the one whereby a qualification has to be approved by Ofqual if we allow someone to come into this country for more than six months to study? That means that we cannot bring people in to study our renowned courses in air traffic control or the safety of oil wells, but we can bring them in to study cake decorating. That is just daft. There are other little things. If someone comes here on a six-month tourist visa and in the middle of it decides that they would like to learn English, they have to go back home to apply to be allowed to return here to do a short course in English. Why? They are here on a tourist visa; they already have a higher status than a student is required to have. Why not make it easy for them? And if they have to prove their ability to speak English, the UK Border Agency does not accept GCSE English as proof of an ability to handle English. There may be good reasons for that—I sometimes have sympathy with that attitude myself—but it seems an extraordinary thing for the Government to do.

I urge my noble friend on the Front Bench to put the economy first. I entirely agree with where we are headed and I am comfortable with that, but I am extremely uncomfortable with the way in which it is being implemented.

[Lord Judd]

My Lords, I am always impressed by the matter of fact approach demonstrated towards these matters by the noble Lord, Lord Lucas, and I think it is significant that, when the Government are repeatedly telling us that our future depends on the private sector, we are hearing significant voices within the private sector questioning the whole basis of the cap in immigration policy. Either we want to be able to let things grow, or we do not. Some of the people on whom this is dependent are saying, “Be very careful with what you’re doing in immigration policy”.

My noble friend Lord Hunt referred to the very interesting debate that we had last week, and it would be wrong to repeat it all, but one thing that came out of that debate was the realisation that the pressures of migration are not going to reduce. We must be very careful that we do not slip into a kind of “finger in the dyke” syndrome while the dyke is crumbling. In a world in which we emphasise the importance of market, free movement of capital and goods and having international economic policies that facilitate that and strengthen those processes, there is a gigantic flaw in the market if there is not free movement of people. That will, of course, lead particularly to illegal migration—or so-called illegal migration. We have to be very careful about double standards in that regard. I apologise for referring to a point that I made last week, but we regard someone as a social hero in this country who goes off to find a job elsewhere if his community is faced with economic depression, but when in the international market someone does that, they are regarded as somehow a threat. We use disparaging language about them and call them “economic migrants”. It has become almost a term of disparagement. In fact, they may be heroes, if the international market was looked at in a different way.

That is not all. Climate change may make these pressures that we are looking at seem insignificant by comparison in not very many years’ time, because people will be forced to move in very large numbers. Are we preparing for that? Something that we should all take very seriously is that we cannot solve the issues of migration in the context of national policy alone. It is one area in which effective international policies are absolutely crucial. That starts with the European Union, but extends beyond it into the UN system and the wider international community.

I have one other thing to say about context—and I am glad that my noble friend Lord Hunt referred to it. We must realise that so often the most immediate pressures of migration fall on the communities least prepared for it, which are already struggling in terms of jobs, health and education provision, housing and the rest. If we want success in migration policy, we must look to that social and economic investment where the front line of the issue is really to be found.

I am afraid that there is a certain confusion coming from the Government and from different people within the Government. On the one hand, we are hearing that this will all add up to a way of controlling immigration numbers and, on the other hand, we are hearing that it is all about positive integration and making a success of integration. These two arguments are clearly not synonymous and it would be helpful if the Minister could give an authoritative view on how she sees it and what she believes it is all about in that context.

Like other noble Lords, I am sure, I have received very interesting briefing. Some of it comes from an illuminating document from the Joint Council for the Welfare of Immigrants and the Immigration Law Practitioners’ Association. In many ways, the people working in the heat of the situation should have their views reflected in Hansard as they themselves have put them. I shall pick a couple of points from that brief because the people doing this work deserve honest and straightforward answers in the context of the kind of immigration debate that we are having today. The briefing points out that Adrian Blackledge, professor of bilingualism at Birmingham, has noted that,

“there is little evidence that testing English language learners is in itself an effective way to develop linguistic skills. The National Association for Teaching English and other Community Languages to Adults … argue that the UK is the best place for people to learn the English language”.

20:00

It goes on to say that, even if it were accepted that the scheme,

“could theoretically have some merit from the point of view of developing linguistic skills, there appear to be a number of more practical problems with it”.

Professor Alderson, professor of applied linguistics at Lancaster University—I declare an interest as a member of the court of that university—observes that,

“the UK Border Agency’s August 2010 list of approved providers of the English test has been developed by unknown agencies with ‘absolutely no evidence of their validity, reliability etc’”.

The briefing comes to a conclusion with some specific questions, and I am sure that the House will forgive me if I draw them to your Lordships’ attention:

“If these Rules are not to be withdrawn we would welcome clarification of the following: … The circumstances in which the ‘exceptional/compassionate circumstances’ exemption will be met. In particular, will the following automatically be treated as meeting the exception? … cases in which English language classes are not reasonably accessible e.g. because of geographical location, cost, internal conflict … cases in which level A1 testing is not available in a particular country or more generally reasonably accessible … cases in which an impecunious applicant seeks to join their spouse”.

These are important questions and I hope that the Minister will deal with them, but there are others. I have drawn attention to the document and I am sure that if she has not already read it, she will now ask her officials to ensure that she is able to.

I have spent most of my life working with voluntary agencies, non-governmental agencies and the rest in the sphere of international relations, human relations, the movement of people, development and so on. One of the things that I am always concerned about is our inability to keep vividly in mind the reality of life for refugees, would-be asylum seekers and the rest—the mental anguish, the turmoil, the anxiety through which they are going. How are we, by the policies and measures that we are introducing, meeting the main basic humanitarian and humane responsibility of ensuring that these people are treated with dignity and respect as these pressures bear in upon them, and that we are not inadvertently actually making their hellish life even more of a nightmare?

That is why we have to look at these systems, not just to see that they look neat on paper but to find out how they appear to the people in the middle of the situation who are experiencing the reality and how far they reinforce prejudice in our own society as people say, “Look, all these rules are necessary—there must be something wrong with the people”, instead of saying that these people are victims of the imperfections of the international system. How on earth can we best help them in their predicament while recognising that it is simply impossible at this stage to have an open-door policy? We must face up to this. It is a cultural point. It is so easy to criticise the official in the migration system who does something insensitive or wrong, but how much is the leadership working to provide the ethos and the culture in which good performance is expected of all those working in such services?

We need to be careful about just thinking that new rules can create new solutions. There are some huge cultural and educational issues involved in the whole story of migration.

[Baroness Williams of Crosby]

My Lords, I shall be brief and make just two points. The first concerns the issue of the cap, and on this one I have some sympathy with the points made by the noble Lord, Lord Hunt of Kings Heath, particularly about the effects of the cap on universities, especially their science departments, at a time when the universities themselves are going through the turmoil of a totally different system of paying for university studies and a sharp decline in the proportion of money made available for teaching. That means that the research standards of universities have become even more important than they were before in terms of attracting the many overseas students who today, frankly, sustain many of our universities and are expected to continue to sustain them. I am not talking about permanent residents but about people who come to our universities as a matter of choice for the length of their degree.

Anyone who knows the universities, particularly the more renowned ones, will be aware that in their scientific departments there is a substantial proportion of young men and women who have come here to study for PhDs and have then stayed on, with the agreement of the British Government, in order to strengthen the quality, the standard and the excellence of those university departments. Whether we like it or not, university teaching is today a substantial element in the prosperity of the whole British economy.

We should not get absorbed into the idea that a cap is something separate from the standing and the attraction of some of our most significant educational institutions. Immigration is central to them; it is a fundamental part of their presentation to a world in which they are still regarded as being second only to the great universities of the United States. That could all quickly disappear if we start trying to cull people of quality who would otherwise have stayed, taught and continued to do research.

My second point follows more closely the remarks of the noble Lord, Lord Hylton, who I am sorry to see is not in his place—no, he is back in his place; I am very pleased—which have also been supported by the noble Lord, Lord Judd. Quite simply, as a Government and as a country, we cannot easily go on about the sacred nature of marriage and how much we believe in it and are going to support it, while indicating to some of the most desperate people in the world that they are not going to be part of that privileged state of human existence. It would be particularly difficult not to seem hypocritical when making such a sharp distinction between those who come to this country in an attempt to join husbands or wives who are refugees—especially refugees whose position has been accepted, which is why they have been granted, or may be capable of being granted, British citizenship.

I shall give one example, not least because tomorrow morning there will be a memorial service for a great former Member of this House, Baroness Park of Monmouth, who during her time in the House, from the moment when Zimbabwe stopped being a nation that accepted democracy, fought for the right of Zimbabwean citizens to be left in this country to be able to pursue their opposition to Mr Mugabe’s Government, fought for them to have the right to have their families with them and persuaded that most difficult of departments, the Home Office, to support them until such time as Zimbabwe could guarantee their freedom and safety, neither of which it has been effectively able to do up to this moment.

I mention Baroness Park because of one of her recommendations. She said that refugees are often the most brave, courageous and determined members of their own societies—people who have tried to seek asylum because they have supported democracy and the values of the European court and the European Convention on Human Rights. To deny people with such a powerful right that they have been accepted for citizenship of this country the ability to remain married to the people that they are married to, and bring up their children in a united family, is an extraordinary and last-minute kind of inhumanity. I therefore beg the Government, on both the economic point, which I have made in the context of universities, and the human point, to reconsider what they are trying to do. I do not believe that if such a case were to proceed to the European Court of Human Rights it would be anything other than rejected. There are other, and far more humane, ways to limit immigration if that is what we are thinking of. The way that has been chosen here is very unfortunate and the Government will long find it difficult to justify.

I say clearly that I do not believe that the previous Government had a very good record on immigration. I would be very sorry to see the new coalition Government follow in a tradition that has always been profoundly qualified, profoundly hypocritical and profoundly populist in the worst sense of the word.

[Baroness Sharp of Guildford]

My Lords, I supplement the remarks of my noble friend Lady Williams with two specific points about the implications of the caps for universities. The first relates to the tier 1 cap. I believe the number of points needed to gain entry through this category is likely to be increased. This raises a problem. The points required under tier 1 already place considerable weight on an individual’s prior earnings and probably insufficient weight on their qualifications. This disadvantages academics and researchers, who tend not to be as highly paid as businessmen and bankers but, in many senses, create economic value in a different way. I ask the Minister: is there likely to be a review of the criteria and weightings used within tier 1 of the points-based system to prioritise those with skills and qualifications most likely to generate long-term economic benefit for the UK, and not just the highly paid?

My second point relates to tier 2. I understand that tier 2 applies to occupations where there is a recognised UK national shortage. Academics and researchers are not currently listed as shortage occupations. They tend to fill very specialised and niche vacancies. This change would mean that the tier 2 route would effectively be closed to universities and research institutes. This would severely affect many universities because it would affect both PhD students and the post-doctoral students who come over and fill many research posts in institutions. As the noble Lord, Lord Ryder, implied in last week’s debate, it would impose severe restrictions on what such research institutions could do. Will the Minister ensure that tier 2 is sufficiently flexible to respond to future economic growth areas, and not just to existing skills shortages? I also urge the Government to consider the introduction of a specific new immigration category for research collaboration and exchange, aligning the UK with other EU countries that have already made such a commitment to such collaborations.

20:15

[Lord McConnell of Glenscorrodale]

My Lords, like my noble friend Lord Hunt, I enjoyed last Thursday’s debate in this House. In addition to the points of detail that were raised in the debate, I particularly enjoyed the number of decent, humane contributions that enlightened the public debate in the UK on this most sensitive of issues. For far too long, far too many have displayed a willingness to direct their thinking and comment on migration in a way that reinforces fear and intolerance, rather than challenges it. When confronted with difficult issues that may risk popular opinion, politicians and legislators are faced with a choice. On an issue as sensitive as this, which goes to the core of how individuals relate to each other, the choice that we make is particularly important.

On such sensitive issues, our starting point has to be what is right. Discussion on how to win public support for a position should follow decisions on what is best for the country. Unfortunately, on migration, too much decision-making follows the reverse course, with policy based on what will appeal, what will most easily win votes and what will be politically acceptable within political parties. As a result, policy decisions damage Britain and are regularly unsustainable. Not only do I believe that hostility to cultural diversity is morally wrong and unnecessarily intolerant, I am also convinced that culturally diverse societies are more likely to be entrepreneurial, more likely to succeed and more likely to grow and prosper in the modern world. The evidence tells us that, increasingly, they do.

The Government’s approach of an arbitrary cap, cloaked in, frankly, the language of intolerance, reinforces and entrenches the problems in this debate. It contradicts the Prime Minister’s admirable signal of “open for business”, since “not open for talent and hard work” is a poor sub-heading for that slogan. It views new people as a burden, rather than an asset. It legitimises intolerance and ignores the innovative and positive approach to the regionalisation of immigration policy, as advocated by the Liberal Democrats before the last general election. Despite dire warnings, we made a success of such a policy in Scotland. It would be a tragedy if it was never repeated and its positive lessons lost.

In 2002 I began a positive campaign for in-migration of fresh talent to help reverse Scotland’s history of emigration and resultant depopulation. Population decline was the greatest threat to our future prosperity. We set about attracting people to reverse that decline. For five years Scotland’s population has risen. Our society is more diverse and we benefit from the work rate, talents and enterprise that the new people have brought to our shores. The fresh talent visa scheme, the welcoming of new people into communities, the celebration of diversity by leaders and the challenging of prejudice have left us stronger, more successful, just as stable and with fewer racial tensions than we had a decade ago. Therefore, I hope that the new Government do not feel obliged to stick to a rigid and damaging approach, that my party in opposition regains its confidence on this issue and that the Liberal Democrats do not forget in government what they advocated just six months ago in opposition.

If all parties—and I mean all—were to resolve that Britain is best when we are open, tolerant, inclusive and, yes, diverse, we would be a far richer society in the years to come.

[Baroness Hamwee]

My Lords, mention has been made of last Thursday’s debate. In opening it, the noble Baroness, Lady Valentine, referred to a recent report by the Economic Affairs Committee of this House which concluded that any immigration policy should have at its core the principle that existing UK residents should be better off as a result. It seems to me that the term “better off” is capable of very wide interpretation, certainly culturally as well as economically and long term as well as short term.

I find it hard to read the changes regarding language as an integration measure as integration is about far more than language. I am no linguist but I know from my own experience that being in a country whose language I do not know is the best way to learn that language. I cannot help commenting on the loss of support two or three years ago for the teaching of English as a second language.

It is a paradox that the changes discriminate against British citizens, as distinct from EEA nationals, whose overseas spouses wish to join them. However, I do not want to go down the route of criticising the statement but rather to ask questions of the Minister—she will have anticipated most of them—because I hope to be helped to support the measure. I do not ask my questions in any particular order. It has been suggested that temporary visas might be awarded to spouses to enable them to come to the UK to learn the language once they are here. I hope that the Minister will comment on that. I should be glad if she could clarify the test. With teachers teaching to an exam—if I can put it that way—to ensure that their pupils get through it rather than learn the subject, will she comment on how the tests and the teaching will be carried out? Can she tell us anything about the extent of discretion that will be given to Border Agency staff, or is the matter to be dealt with just at testing centres and you either pass or fail? Will there be enough centres in the feeder countries? Where are they? What about access for rural applicants? Is there a sufficient number of teaching centres? Teaching will be expensive. Is it proposed to charge fees for the tests? I hope not.

The noble Lord, Lord Judd, and my noble friend mentioned the term “exceptional compassionate circumstances”. Those who fall within that term are by definition a small minority. It seems to me that this will mean that the proportionality test in Article 8 will not be met. Will the Minister comment on that? As regards the cap, the impact assessment says that the UK wishes to attract the “brightest and the best”. We do, but as an aside I should say that a country cannot exist just with an elite. What evidence is there about the impact of the interim cap, which has now been in place for a little while? What analysis or representations have been made regarding any disproportionate impact on particular professions and sectors? The quality impact assessment identifies no adverse consequences. That is a very positive statement, but have the Government identified any possible adverse consequences for equality that we should be looking out for? How will any disproportionate impact on a particular nationality be managed by the Government? We know that India and Pakistan are the most extensive users of tier 1, and they are key to this country’s international relations.

What general principles do the Government use to decide what is in the rules and what is in guidance? Can the noble Baroness comment on any impact on families that arises from this. I recall raising this matter with her soon after the election, because I had been asked to do so, and she said that we are not an “inhumane” Government. That is something which I would like to hold on to.

In the debate on Thursday, I gave a clear indication of my attitude—if noble Lords want to say “bias”, that is fair enough. The sectors that were mentioned included the academic, the scientific, the performing arts and other areas that have been mentioned this evening. They were generally considered to be hugely important contributors to the UK’s wealth and specifically to have considerable impact in a number of narrow discrete examples. Mention was made of the underlying principles. The speech which we have just heard by the noble Lord, Lord McConnell, is one that we should have available to refer to in the future. I valued his contribution.

We debated the UK’s reputation and the importance of making and keeping friends internationally, as well as the economic benefits and the tax take that successful immigrants generate. I do not want to repeat the speech that I made, although there is a great temptation to plagiarise others, but I will say again that the use of Immigration Rules should be a facilitator not a constraint. I realise that in the context of the cap they should not be in any sense a blunt instrument.

My most important question to the Minister is to ask for her assurance that the Government are still listening and consulting informally on the permanent cap. There have been vociferous and anxious comments about the interim cap, and I hope she can assure us that these, including the debates in Parliament, will feed into decisions down the track. Will Parliament have an opportunity—engineered and ensured by the Government—to consider the permanent arrangements?

The Motion of the noble Lord, Lord Hunt, “regrets”. I have to say that what I and, I am sure, others regret more is that under the previous Government we had so little opportunity, except when my noble friend Lord Avebury ensured it, to discuss these issues. I was glad to hear some of the things that the noble Lord, Lord Hunt, said today, but the reaction to the previous Government’s attitude to immigration was that it was not notably consultative.

[Lord Roberts of Llandudno]

My Lords, I hope that I am not unduly suspicious, but I rather think there is something in the opposition Motion that is not entirely to do with the cap, but tries to embarrass the coalition. Perhaps I am just a Welshman who should not be thinking that way, but I am afraid that that might be the case.

I look back at the record of the previous Government and I see that new immigration Acts were introduced in 1997, 2002, 2004 and 2006. Another consolidated Bill was on the way and was mooted to contain more than 800 clauses. We never came to it because the general election beat us to it. Each Act was harsher and less liberal than the one before it.

I know from personal experience how we tried to amend the Asylum and Immigration (Treatment of Claimants, etc.) Bill in 2004—especially Clause 9, which sought to make failed asylum seekers absolutely destitute by withdrawing all their benefits and facilities. We on the Liberal Democrat Benches tried to get rid of that clause, but we failed. The Labour Government would not give way. That was the case throughout the previous Parliament.

We remember the campaign to end the detention of children for immigration purposes, but the Labour Government would not budge. It took the new coalition to take the initiative there. I am afraid that only one voice supported the continuation of detention—a highly regarded former Labour Minister. When the 2006 Bill was going through the House, I tried to get the Government to provide information packs for migrants to inform them of the challenges and concerns they might have on reaching the United Kingdom. The Labour Government refused to provide the packs. I also questioned the delays in the provision of visas for children's choirs from Kampala. There was delay after delay until finally, two days before they were due to leave, the visas came through.

20:30

Then there was the charge. I was concerned with music festivals. At the time there was a fee of £67 per member of every choir and dance group. That came as a tremendous blow, especially to those poorer countries that were struggling to pay for their visit to the Llangollen International Music Eisteddfod—but the Government would not budge.

Some noble Lords will remember the struggle to prevent the forced removal of gay youngsters to Iran, where they could well have faced execution. It took 80 Cross-Benchers and Liberal Democrats signing a petition to the then Home Secretary to save their lives and set a new principle for these deportations. We remember also the struggle that we had time after time over forced deportations to Darfur, Zimbabwe and the Congo. It really was difficult to get the Government to move on this.

I have one more quotation. When the five-tier points system was introduced by the previous Government, the BBC reported:

“All applicants will have to pass an English test—unless they have £1 million or more to invest”.

This was ridiculous. The report continued by stating that even,

“someone applying for entry from a poor country, such as Nigeria or Afghanistan, will have to prove annual earnings of at least £4,000”.

Their average annual income is a tenth of this, at most. Therefore, when the Labour Opposition propose something that would restrict a cap of sorts, we should remember that we have had financial and other caps from them over the years. I regard the opposition Motion as totally irrelevant, and one that the Labour Opposition will possibly not press to a vote.

[The Minister of State, Home Office (Baroness Neville-Jones)]

We have had a very interesting debate. I thank the noble Lords, Lord Hunt and Lord Avebury, for their flexibility in agreeing to debate their Motions together. A large number of points have been raised and I will do my best to deal with the issues to which they give rise.

The Motions before us deal with two distinct subjects: the introduction of an interim limit for applications under tiers 1 and 2 of the points-based system, which is covered by the Motion of the noble Lord, Lord Hunt; and a number of other amendments to the Immigration Rules, particularly on asylum seekers and refugees, which are addressed by the noble Lord, Lord Avebury. I will deal with those in turn, starting with the Motion of the noble Lord, Lord Hunt.

The Government certainly believe that the UK can benefit from migration—on this point there is no difference between us and many Members of your Lordships' House—but equally we do not think that the UK benefits from uncontrolled immigration. That is the purpose of the cap. At the same time, we will ensure that policy is implemented in a way that ensures that Britain remains open for business, and that we continue to attract and retain the brightest and best people who will make a real difference to our economic growth. However, we must recognise that in some towns immigration places unacceptable pressures on public services. The House will be aware that public concern has risen in line with the increased levels of migration over the past 15 years. This is obviously why our predecessors in office began a policy of limitation.

At the same time, we must ensure that those people coming here to work or study will really benefit from it, and will in turn benefit our economy. The figures show that while we may have been open, we have not necessarily been attracting those who could make that real difference. I will give an example. We know from recent research that up to 30 per cent of migrants who came here under tier 1—the highly skilled tier—did not take skilled work. Some of the work that they did was pretty unskilled. We cannot let this kind of uncontrolled migration and abuse of policy continue unchecked in this way.

I think the House will agree that it is clear that migration can certainly increase the size of the population and therefore the economy. I say to my noble friend Lord Lucas that we share his considerable preoccupation with not damaging the economic prospects of this country. Indeed, our aim is, for example, to increase the number of investors and entrepreneurs who come to this country. The previous Government succeeded in getting a rather low number of people in this category—in the low hundreds—to come to this country. We certainly want to increase the UK’s attractiveness to net-high-worth individuals, and that involves creating many other things concerned with the attractiveness of our economy beyond immigration policy. Finally, for clarity, I say to my noble friend Lord Lucas that students do not come under the interim cap. Therefore, if individuals have been experiencing difficulties, the delays must relate to other problems concerning their visas and not to the interim cap on immigration.

As noble Lords opposite have noticed, the pressures on the economy and on social services are real, as the noble Lord, Lord Hunt, specifically acknowledged. We have to bear in mind that, alongside the economic considerations that I have just mentioned, there are social considerations, which hit some communities very hard. Therefore, it is not quite right to say that introducing a policy designed to bring down the immigration levels, as we intend to do, is purely populist-driven; it reflects real needs and real pressures in communities that we have to look after.

The House of Lords Select Committee on Economic Affairs produced a report in 2008 on the economic impact of immigration. It pointed out that economic benefits depend critically on the skill levels of migrants. Returning to the point about pressures, we therefore need to be certain that we attract those with the key skills that we need. In that context, we believe that the bar is set too low and that it cannot be right, for example, for the current system to allow in people claiming to be fried chicken chefs and restaurant managers when there are 2.5 million unemployed people in this country who could fill those jobs.

The coalition programme states that we will introduce a cap on non-EU economic migration and reduce the number of non-EU immigrants. Specifically, we will introduce an annual limit on the number of non-EEA economic migrants admitted to live and work in the UK, and we will introduce new measures to minimise abuse of the immigration system—for example, via student routes. This is the purpose of the policy and, as the House is well aware, the process has begun. However, no decisions—and I mean no decisions—have been taken on the final shape of the policy or the level of the limit. We are consulting. We expect to make an announcement towards the end of the year and intend to implement the full limit by April next year.

I turn for a moment to parliamentary scrutiny. Interim measures were announced by the Secretary of State in a Statement to Parliament on 28 June this year. In that Statement, she confirmed the Government’s intention to limit non-EEA economic migration. At the same time, she launched a public consultation exercise concerning the method by which the limit and levels of reduction should be achieved. She also asked for advice from the Migration Advisory Committee, which assesses need, as to the level at which the limit should be set for the year commencing April 2011, and she announced, as we are debating now, a series of interim measures to apply during the period from her Statement to 31 March 2011. The interim measures apply to tier 1, the highly skilled migrant route, and to tier 2, the route for skilled workers with a job offer, under the points-based system. They include—I make no bones about this—raising the pass mark for tier 1 and the introduction of a limit on both tier 1 general and tier 2 general.

The interim measures were implemented following statements of changes in the Immigration Rules laid before Parliament on 28 June 2010 and 15 July 2010 respectively. Statement of Changes in Immigration Rules HC 59 implemented the tier 1 interim limit, by setting out that the granting of tier 1 general applications be subjected to a limit; for that limit to be administered during regular allocation periods—I shall return to that in a moment; and for applications in excess of that limit to be carried over to the next, and any subsequent, allocation period. That is in the interests of flexibility. Statement of Changes in Immigration Rules HC 96 adds a reference to our intention to limit the allocation of certificates of sponsorship to sponsoring employers, in order to implement and operate the tier 2 interim limit.

Questions were asked about the principles used to decide what is in the rules and what is in UKBA guidance. I set that out so that noble Lords can see the picture. The answer is that Section 3(2) of the 1971 Act requires that substantive requirements regulating the entry into or stay in the UK of individuals subject to immigration control must be laid before Parliament. Therefore, any substantive, as opposed to procedural or evidential requirement, that an applicant needs to meet must be set out in the Immigration Rules. I return to the way in which we are trying to implement that because I think this guidance is fairly clear. We introduced an interim limit to prevent a surge in applications before we introduce our permanent limits in April 2011, which would have led to an increase in net migration, undermining the purpose of the limit and putting undue strain on the UK Border Agency.

As the House is aware, the interim limit also set a reduction in numbers of 5 per cent, compared to the same period in the previous year; that is a reduction of 1,300, which is a relatively small number. For the interim limit, which for tier 1 is set at 5,400, we did not include the level of the limit in the Immigration Rules laid before Parliament in order to give the Government additional flexibility in implementation. Noble Lords opposite have commented on that and, at the same time, they have asked for flexibility in the operation of the system. The effect of the noble Lord’s amendment would be to reduce that flexibility. He also wanted confirmation of whether we had ceased issuing certificates in October. That is the case, but we shall start again on 1 November; part of the flexibility of the system which is in operation now is that we are able to do that on a monthly basis. It acts to the benefit of migrants because we are able to carry over any limit allowance not used each month to the next month. This limit applies to main applicants and does not—I repeat not—apply to their family members or dependents.

A point was made about confirmation, but we reached the tier 1 limit only last week. We are still accepting applications so that on 1 November those who are in the pipeline will be able to get their applications granted. We do not stop the system moving; we move the granting of the applications into the next month.

The Government are committed to ensuring that the decisions of substance are announced to the House in the first instance. I have to make an apology. As the House knows, we regard it as regrettable that the Government’s announcement on 28 June was released to the press before it was announced in the House. The Home Secretary, in a Statement on 30 June, made it clear that that will not happen again.

20:45

[Lord Martin of Springburn]

My Lords, I thank the Minister for giving way. Perhaps I may say that during my time in the House of Commons, the opposition parties—then the Conservatives and the Liberal Democrats—always complained about Ministers and departments releasing information to the press. Will she give assurances that every step will be taken to ensure that the elected Chamber and then this House are notified before information is given to the press?

[Baroness Neville-Jones]

The noble Lord is quite right. It was regrettable. I know what happened—it was inadvertent, but it nevertheless happened. It was regrettable and I give the noble Lord the assurance that every effort will be made not to repeat ignoring Parliament.

I also want to give the House an assurance that statements of changes to the Immigration Rules will be laid before Parliament before implementation of the permanent limit. I want to make it absolutely clear that well before any of those statements of changes are made, and those decisions are taken, there will be continuing and extensive consultation.

There has been comment in this debate and in earlier debates about the effect of these limits on certain categories, businesses and universities. We have been talking to businesses about the interim limit and the longer term. We tried to design the interim limits so that they had some inbuilt flexibility. The intra-company transfers, on which many multinationals rely, are exempt from the operation of the usual limit. There is also a small reserve pool of certificates of sponsorship for new requests. The anxieties expressed by companies have been investigated in detail with them. Sometimes we find that in another part of their business they have some certificates of sponsorship that have not been used and they have more latitude and leeway than they realise. Therefore, it is a matter of the system being understood and of the companies knowing what their position is.

We have been issuing this reserve pool of certificates if a company has had a particular need that must be met and it is certainly in the economic interest of this country. Those are issued once a month according to a set of criteria. Some employers have raised concerns about the interim limit and we often find that many of them have not used their allocations. Many companies are able to bring in the people they want via the intra-company transfer route, which is not subject to the interim limit.

The universities have also been concerned and the Government are well aware of the anxieties that they have expressed. Obviously, it is not our objective to reduce the attractiveness of British universities to those who want to come here to study, to teach, or to do their research. Again, to some extent there has been a misunderstanding of the system. Under the interim arrangements, which have been going only for a short time—in fact, since July—more than 2,400 visas have been allocated to universities to recruit the academics and the researchers they need. I am not aware that in concrete cases there are real shortages.

Under tiers 1 and 2, academics get points for academic qualifications as well as for earnings, a point raised by the noble Baroness, Lady Sharp. Therefore, the system is not just earnings-related. Several noble Lords raised the question of the impact assessment. We thought about doing nothing under the assessment, but that would not have met our policy objectives, which are given in the impact assessment as reducing net migration, reducing the adverse social impacts of immigration and continuing to attract the brightest and best to the UK. Furthermore, the application of an interim limit is to ensure that the announcement of a permanent limit does not lead to a so-called surge.

The equality impact assessment identifies no adverse consequences. It makes the point that the immigration system has a very wide pool of potential users who can come here from any part of the world. The equality impact assessment (EIA) is focused solely on the impact of the introduction of an interim limit to tier 1 general and tier 2 general and an increase in the point threshold for tier 1 of the points-based system. It does not address the difficulties which some groups may have in accessing those tiers, which may be due to a wide range of social, educational, and economic inequalities from different societies in the world. Although I have sympathy with the points made, frankly, the UK immigration system cannot be used to mitigate such wider-ranging barriers and inequalities in the home countries of those who may wish to use our system.

On consultation, the interim limit on tier 2 is based mainly on past allocations to individual employers, to give employers certainty. We will take account of concerns when designing the permanent limit and will have a more forward-looking arrangement. At the moment, obviously, we are operating on historical evidence, but the idea is not to base ourselves purely on what has happened in the past but to look forward to the future needs of the economy. We will take into account the findings from our consultation with businesses.

The chief executive of the UK Border Agency has met the CBI and its members. UKBA officials have also received 3,500 responses to the consultation and have met a wide variety of businesses and other corporate partners. Our promise of consultation is not idle; it is real, and consultation is proceeding in some detail. Officials have also listened carefully to concerns and have discussed the proposed mechanism as well as the coverage of the permanent limit. We want a system that works both for the people of this country and for those who are concerned with the running of its economy.

One major theme running through the responses to the consultation is that employers attach greater importance to their ability to fill specific posts through migrant labour, rather than through a pool of highly skilled workers. There is possibly a clash between the perceived short-term need of a company to be able to find somebody easily and what the Government regard as the long-term need of this country, which is to create a pool of highly skilled workers. We need our population to be able to take those jobs in competition with others. It is for that reason, among others, that the Government are committed to limiting non-EU migration and to cutting net migration. We make no apology for that. However, as I said, we are listening to business about how that should be done and how we will make the permanent limit work. This is not a question of it not working.

We also want to give some time for the UK economy and UK businesses to adapt, so we intend to phase the system in. We will introduce the policy in ways which make the needs of individual businesses and of the country as compatible as possible at any given moment. The Department for Work and Pensions programme for welfare reform, including the work programme, should also help to make a difference. If we get these policies right over time, the nation should see reduced dependency on migration, and thus, in turn, less demand for migrant labour. We have to kick-start the skills systems in this country to provide the skills we will need in the future and limiting skilled migration is one of the levers we have to encourage business engagement in that agenda. In the short term, it clearly creates some conflict of interest between individual businesses and what we regard as the national need, but we believe that over time the national need has priority. In this way, we want to bring net migration down to tens of thousands from the unsustainable level at which it was previously operating, but we will engage in consultation throughout this.

I now move to the statement of changes against which the noble Lord, Lord Avebury, has prayed. This statement contains a number of amendments, including clarification of the formal definition of a refugee, further provisions to enable the use of online applications and the correction of certain typographical errors in the rules, but my impression from what the noble Lord, Lord Avebury, said in the Chamber is that he is principally concerned with the provisions on family reunion for people who have been granted citizenship after having formerly held refugee status, so I will deal with that issue.

The Government recognise the importance of allowing refugees to be reunited with their relatives. The Immigration Rules therefore provide that a refugee’s spouse or partner and children under the age of 18 can join him or her in the UK without the refugee having to show that they can be maintained and accommodated without access to public funds. Also, we do not charge any kind of visa fee. For family members to benefit from these provisions, the family relationship must have existed before the refugee left the country in which he or she used to live. These rules apply where the sponsor in the UK has humanitarian protection, which is a status given to people who are at risk of serious harm in their home countries but who are not refugees under the 1951 convention. However, it has never been the intention that these provisions should apply to people who are not refugees or who do not have humanitarian protection. That is the policy that these amendments are intended to confirm. There is no intention or effect to change policy.

The amendments deal with the situation where a refugee becomes a British citizen. In these circumstances, the 1951 Convention relating to the Status of Refugees is very clear. The individual is no longer a refugee because he or she has,

“acquired a new nationality and enjoys the protection of the country of his new nationality”.

As the person ceases to be a refugee at that stage, our intention has always been that he or she would no longer benefit from the special provisions in the Immigration Rules for refugee family reunion. Instead, the former refugee would be able to be joined by family members in the same way as any other British citizen under the rules for the immigration of spouses and children that appear in Part 8 of the Immigration Rules. I think that most people would see this approach as entirely fair. Once we have welcomed someone as a British citizen, that person should have all the rights and responsibilities that any other citizen would have, including in respect of bringing in family members. We do not think that it would be right to give one group of citizens—former refugees—privileges over the others. The point is not that we are changing the rules. We do not believe that the judgment given in the case of ZN (Afghanistan) and Others dealt with this point. The case dealt with ambiguity in the language of the rules, which these amendments are designed to deal with. There is no change of policy, but there is clarification of the rules. Noble Lords asked various other questions, but the effect of this language is not to make it any harder for refugees’ spouses to join them or to damage family unity.

21:00

The previous Government put in place English language tests. We have brought the operation of that test forward by all of six months, which I do not think is a very big change in the nature of the policy. We take the view that, while integration, we agree, has a great deal more to it than simply whether people can speak English, we regard English as being relevant to the speed at which individuals and families integrate in society or are able to cope with the society in which they operate. Therefore, we believe that it is wholly in their interests, as well as those of society, that they should be asked to speak English. We have put in place not unreasonable tests. The English language is spoken around the world. It will not be difficult or particularly expensive for those individuals to obtain those skills.

The noble Baroness, Lady Hamwee, asked a number of detailed questions, which I do not have time to deal with here. I will write to her and will lay the letter in the Library so that other Members of the House can be aware of the points that we have made. However, I want to reassure the noble Baroness that I do not believe that the arrangements being made are unreasonable for the individual or will cause a reduction in the numbers. We believe that, if individuals do not qualify in the first year, they will qualify in the second year. Taken over a two-year period, this is not a measure to control migration; it is a measure to increase integration.

I hope that I have dealt with the majority of points raised by Members and that I have explained the reasoning behind our changes to both noble Lords, who I hope will feel able not to press their Motions.

[Lord Avebury]

My Lords, I would trespass on the patience of the House if I were to make a reply to this debate in anything like that depth. But I am not criticising the Minister because she was very helpful and has answered a lot of the questions put by the noble Lord, Lord Hunt, and by these Benches. I urge her to address the remaining questions, including the important ones in the letter written to the Government by ILPA and JCWI setting out their concerns. We should like to have detailed answers to all those questions and I do not think that she needs to apologise for her half-hour speech, which did not allow her to deal with them.

As to the substance of these debates, on the Motion of the noble Lord, Lord Hunt, although I feel that I have some temerity in purporting to reply on his behalf, there are still obviously some gaps in the need to deal with the consultations on the effects on the universities and research institutions. I notice that the noble Baroness said several times that the Government were in detailed consultations with businesses, but I did not hear her make the same remark about either the universities or the research institutions, which are seriously affected by the changes in those two Motions. I beg the noble Baroness to let us have further information about how these consultations are being conducted, so that we can see that it is not only the businesses but also the universities and the research institutions which are being consulted in detail.

I am sure that that will be quite enough from me. I beg leave to withdraw the Motion.

Motion withdrawn.

Statements of Changes in Immigration Rules (HC 59 and HC 96)

Monday 25th October 2010 Lords Chamber

Motion of Regret

21:04

Moved By

[Lord Hunt of Kings Heath]

That this House regrets that Her Majesty’s Government have laid before the House Statements of Changes in Immigration Rules (HC 59, laid on 28 June; and HC 96, laid on 15 July) in a way that limits direct parliamentary scrutiny of the level of the immigration cap; and further regrets that the Government’s cap policy in relation to highly skilled migrants will damage the UK economy.

Relevant documents: 4th and 6th reports from the Merits Committee.

[Lord Hunt of Kings Heath]

My Lords, let me say at once that I am grateful to the Minister for her reply. I have enormous respect for the noble Lord, Lord Roberts, but I should say to him that I have brought forward this Motion because of the report of the Merits of Statutory Instruments Select Committee which identified a number of issues that it thought warranted consideration by the House. I hope that he will consider this Motion on its own merits. Surely it is right for the House to be able to express a view on the statement of changes, and I am sure that if the previous Government had introduced these changes, the noble Lord, Lord Roberts, would have had no hesitation whatsoever in voting against them.

The Minister has said that she is still listening as far as a permanent cap is concerned. While of course I am glad that she is still listening, the point here is that a permanent cap is some way off. In the mean time, the interim cap holds and is causing damage. As the noble Lord, Lord Lucas, suggested, we have no guarantee today that the interim cap will be replaced by a permanent one, and the fact is that the current operation is in crisis. Applications were stopped last week and will start again on 1 November. How many days will it be before the cap is closed again? For an employer trying to get highly skilled people into this country, dealing with such a situation is a nightmare.

The noble Baroness has said that we have to develop skills within the UK. Of course we do, but we are a great, global trading nation and we have some outstanding global industries and businesses, including world-class academic institutions and extraordinary creative arts. We are putting all this at risk with the immigration cap as it is at the moment, and we are doing it in a way whereby parliamentary scrutiny of the size of the cap is avoided. We should put this to the test.

21:06

Division 3

Ayes: 96

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Labour: 78
Crossbench: 13
Independent: 2

Noes: 130

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Conservative: 95
Liberal Democrat: 29
Crossbench: 2
Ulster Unionist Party: 1

House adjourned at 9.18 pm.