House of Commons

Wednesday 1st December 2010 Commons Chamber

Wednesday 1 December 2010

The House met at half-past Eleven o’clock

Prayers

Wednesday 1st December 2010 Commons Chamber

[Mr Speaker in the Chair]

Oral Answers to Questions

Wednesday 1st December 2010 Commons Chamber

The Secretary of State was asked—

[John Robertson (Glasgow North West) (Lab)]

1. What (a) recent meetings he has had and (b) meetings he plans to have with representatives of Scottish Power to discuss the energy industry in Scotland.

[The Secretary of State for Scotland (Michael Moore)]

I have regular meetings with the energy industry, including with Scottish Power, and will continue to do so, given the sector’s importance to the Scottish economy.

[John Robertson]

I thank the Secretary of State for his answer. He says that he has had these meetings, yet British Gas, Scottish Power and Scottish and Southern Energy have said that on no occasion has he ever discussed the price hiking that these companies are undertaking. When will he try to support the people of Scotland by doing something about the price hikes?

[Michael Moore]

What I recognise is the importance of ensuring that we get a fair deal for consumers, as well as for the shareholders—the companies are concerned about that. As the hon. Gentleman will know, Ofgem has announced an inquiry into consumer protection and competition in the sector. I expect that to be a very thorough process.

[Tom Greatrex (Rutherglen and Hamilton West) (Lab/Co-op)]

I am glad to see that the Secretary of State was able to get back from Scotland to be here today, despite the cold weather and the travel difficulties. Given that cold weather, and the increase in energy bills that many people have experienced, is he aware of the concern among many of my constituents and many others that the most vulnerable people will struggle to pay their bills, when they should be entitled to be on social tariffs? Will he therefore undertake to convene a summit of the six energy companies to discuss, in particular, what they are doing to ensure that people who should be on social tariffs are on them, and that people in Scotland are not left cold at home this winter?

[Michael Moore]

I am glad of the hon. Gentleman’s welcome, and I appreciate, as he will, that many people in Scotland, and indeed in the whole of the United Kingdom, have been struggling to get to work and go about their business today. He rightly focuses on temperature and the fact that this will cause extra difficulty for people, so I am sure he will welcome the fact that we are maintaining the cold weather payments and the winter fuel allowance. I am certainly happy to discuss ideas of getting together with the different energy companies to make sure that they are properly focused on the needs of their customers.

[Anas Sarwar (Glasgow Central) (Lab)]

2. What discussions he has had with the UK Border Agency on the cancellation of its contract with Glasgow city council to provide services to asylum seekers.

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

5. What recent discussions he has had with the UK Border Agency on the welfare of asylum seekers in Scotland.

[The Parliamentary Under-Secretary of State for Scotland (David Mundell)]

The Secretary of State and I are in regular contact with the Home Office on matters relating to asylum seekers. I understand that the UK Border Agency is working closely with support organisations in Glasgow to ensure that there is minimum disruption to those affected by the termination of UKBA’s housing contract with Glasgow city council.

[Anas Sarwar]

I thank the Minister for that answer. Does he think it acceptable that no detailed discussions were held between UKBA and either Ypeople or the Angel Group ahead of the decision to scrap the contract with Glasgow city council, even though they will be made to take responsibility for more than 1,000 asylum seekers in the city? Will he agree to meet representatives of all those involved in the dispute, so that he can make an informed contribution to the Immigration Minister?

[David Mundell]

I will certainly be happy to meet the hon. Gentleman and other people who have an interest in this matter. I know that he has already had the opportunity to meet UKBA, and I think that he will share with me the positive view that although the people involved will no longer have a contract with Glasgow city council and will instead have one with another provider, many of them will stay in the same properties and that will minimise disruption.

[Pete Wishart]

Does the Minister even start to understand and appreciate the outrage that exists in Scotland about the treatment of asylum seekers? This is not just about the Glasgow situation, appalling though that is; it is also about the detention of children and the operation of the section 4 card. Will he get down to the UKBA to explain that we look at these issues very differently in Scotland and we expect the UKBA to act accordingly?

[David Mundell]

I do recognise that there are concerns in Scotland about how the matter in Glasgow was handled, and the Immigration Minister accepts that the correspondence with those affected could have been much better handled. I am sure that the hon. Gentleman will welcome, as I do, the inquiry that the Scottish Affairs Committee is conducting into relations in Scotland with UKBA.

[Jo Swinson (East Dunbartonshire) (LD)]

I welcome the Minister’s acceptance that the correspondence could have been handled better on the cancellation of the Glasgow contract, because as a result of letters sent out by UKBA, vulnerable people, including many families, were left in a state of extreme anxiety about where they would be living. Can he reassure us that lessons will be learned from this, so that such mistakes are not repeated in future?

[David Mundell]

Indeed, I can give the hon. Lady that assurance. As soon as these issues came to light, the Secretary of State for Scotland was in contact with the Immigration Minister. There is a recognition that the correspondence was inappropriate, and a number of measures have been taken. For example, everyone affected will have at least 14 days’ notice if they have to move. Progress has been made. The initial letter was regrettable, but the situation will be better in future.

[David Cairns (Inverclyde) (Lab)]

3. What recent discussions he has had with the (a) Secretary of State for Health and (b) Scottish Executive on strategies to reduce the incidence of HIV in the UK.

[The Parliamentary Under-Secretary of State for Scotland (David Mundell)]

I am in contact with the Secretary of State for Health and the Scottish Government on a range of matters. As the hon. Gentleman knows, the Government published their public health White Paper yesterday. As that is taken forward, close attention will be paid to the lessons that can be learned from the Scottish Government HIV action plan.

[David Cairns]

I am grateful to the Minister for that answer. On world AIDS day, it is worth reminding ourselves of the rather obvious fact that viruses such as HIV do not respect borders. Will he reassure me that as the Government seek to draw up their sexual health and HIV strategy they will work closely with all the devolved Administrations to ensure a coherent and joined-up approach? That is the only way that we will slow the spread of the virus, which has already claimed far too many lives.

[David Mundell]

It is indeed appropriate that the hon. Gentleman has asked his question on world AIDS day. He is to be commended for his work as chairman of the all-party group on HIV and AIDS and for his work on the “Halve It” campaign. The Secretary of State will shortly meet the Minister for Public Health in Scotland, Shona Robison, and I shall ensure that this matter is on the agenda.

[Iain Stewart (Milton Keynes South) (Con)]

Will my right hon. Friend give an undertaking to discuss with the Scottish Government the findings from the eight pilot projects that the Department of Health is running to extend HIV testing in primary care hospitals and community centres?

[David Mundell]

I am happy to give that undertaking. As the hon. Member for Inverclyde (David Cairns) intimated, HIV and AIDS know no borders and the rest of the United Kingdom can learn from what has happened in Scotland, just as Scotland can learn from what is happening elsewhere in the United Kingdom.

[Mr David Amess (Southend West) (Con)]

4. What recent discussions he has had with the First Minister on the relationship between the UK Government and Scottish Executive with regard to economic policy under the devolution settlement.

[The Secretary of State for Scotland (Michael Moore)]

I have had a number of exchanges with the First Minister in recent weeks. Yesterday, the Scotland Bill was introduced in this House. If enacted, the Bill will strengthen devolution by giving the Scottish Parliament a financial stake in the Scottish economy while maintaining the economic strength we all desire from being in the United Kingdom.

[Mr Amess]

Now that we know that the Scottish nationalist party—[Hon. Members: “National party.”] It put Holyrood’s tax-raising powers out of commission for two years without telling the Scottish Parliament. Does the Secretary of State agree that the Scottish Government should be made more accountable for their financial management to such an extent that there should be a closer relationship between economic growth and how much money is spent?

[Michael Moore]

My hon. Friend makes some interesting observations. I can confirm that the Scotland Bill, if enacted, will provide exactly what he asks for. It will empower the Scottish Parliament, increase its financial accountability and secure Scotland’s place in the United Kingdom.

[Angus Robertson (Moray) (SNP)]

Where the Scotland Bill makes a real difference to the lives of people in Scotland and to the Scottish economy, it will have the support of the SNP. During the passage of the legislation in this House, will the Secretary of State and his Tory colleagues accept improvements that will deliver additional powers that will give the Scottish economy a competitive advantage?

[Michael Moore]

I welcome the hon. Gentleman’s initial comments. As he is aware, the Bill introduced yesterday and the Command Paper that goes with it are the result of the work not just of the Conservative party and the Liberal Democrats but of the Labour party and others across Scotland. I hope that we will get proper engagement. I am confident that the measures in the Bill get the balance right for Scotland. They are right for this time and I am sure that they will pass the test of time.

[Angus Robertson]

The Secretary of State knows that many of Scotland’s leading businessmen and women issued a statement this week, in which they said that there must be

“real economic levers to help sustain recovery and grow the economy.”

Will the Secretary of State and his Tory colleagues reconsider their plans and consider improvements to the legislation, such as devolving corporation tax to help business grow?

[Michael Moore]

I listen carefully to a range of opinion from business and elsewhere about the future of Scotland’s—

[Mr Speaker]

Order. I apologise for interrupting the Secretary of State. I do not know what the hon. Member for Blyth Valley (Mr Campbell) had for breakfast this morning, but I am not sure that it has had the desired effect. [Interruption.] Order. The hon. Gentleman must not rant at the Government Chief Whip or anybody else. He must calm himself—it is better for his health if he does.

[Michael Moore]

If I can repeat what I was saying before your intervention, Mr Speaker, I listen carefully to a range of opinion from across business and different sectors of Scottish society. The business community was well represented in the Calman commission, which produced and supported the proposal. We will continue to listen to a range of opinion, but we have no intention of devolving powers over corporation tax.

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

In 1997, the Scottish people voted to give the Scottish Parliament tax-varying powers, but in a disgraceful and secret decision, the SNP Government gave up those powers. I welcome the Scotland Bill. Will the Secretary of State assure us that those tax-varying powers will remain with the Scottish Parliament and that the Bill will be phrased in such a way that, were the SNP ever elected again, it would not be able to give up those powers in a secret decision?

[Michael Moore]

As my hon. Friend knows, the consequences of the Scottish Government’s decision not to maintain the Scottish variable rate have been debated in the Scottish Parliament in recent days. The fundamental difference between the existing arrangements and what will follow if the Bill is enacted is that the Bill will create a Scottish income tax that sits alongside United Kingdom income tax, and there will be a requirement to set that rate every year. That is a fundamental change, and it will bring the accountability and empowerment that I discussed earlier, which will be a good thing for Scotland.

[Ann McKechin (Glasgow North) (Lab)]

It is shocking that both the UK and Scottish Administrations are failing to prioritise job growth. While there was a slight fall in UK-wide unemployment last month, the jobless total for Scotland continued to increase. The latest figures show that in Campbeltown an astonishing 13 claimants are chasing every available job. Our youngest people are suffering the most, and if Labour wins in 2011, we are committed to continuing the future jobs fund to help them into work. Why is the Secretary of State set on removing that vital support, while at the same time supporting tax cuts for our biggest banks, which are at the root of our economic problems?

[Michael Moore]

That was an interesting insight into the Opposition’s economic policy, although I realise that Opposition Front Benchers are divided on exactly what it should be. I remind the hon. Lady that we are dealing with the consequences of the largest deficit in peacetime history—£155,000 million. We took urgent action to deal with that, which has drawn us back from the danger zone. We will announce proposals in due course on the Work programme which will replace the future jobs fund. We are dedicated to ensuring that we create the conditions for growth and for a private sector-led recovery to deal with the problems that we inherited.

[Ann McKechin]

Unfortunately, yet again Scotland’s youth are not the Secretary of State’s priority. His party does not think twice about dancing on the head of a pin. In its autumn edition of “Scottish News Extra”, which is turning out to be one of Scotland’s better reads, his colleague, the Business Secretary, is described as

“launching a scathing attack on the previous government’s unfair tuition fees which still have to be paid by Scottish students studying elsewhere in the UK. He likened tuition fees to the infamous poll tax.”

Now that his colleague has said that he may abstain on the forthcoming vote to increase tuition fees in England to £9,000, will the Secretary of State confirm whether he will support the increase, whether he will vote against it in support of the 3,000-plus Scottish students who are directly affected, or whether he will be absent again from the vote?

[Mr Speaker]

Order. In replying, the Secretary of State must bear in mind that we are referring to economic policy rather than higher education policy.

[Michael Moore]

It is interesting that the hon. Lady interpreted the question by seeking to get away from anything that might focus attention on Labour’s record on the economy and on our determination to create the conditions that will get us back to sustainable growth for Scotland and the United Kingdom.

[Mr Adam Holloway (Gravesham) (Con)]

6. What recent discussions he has had with representatives of the Scotch whisky industry; and if he will make a statement.

[The Secretary of State for Scotland (Michael Moore)]

I regularly have exchanges with the industry and will be meeting the Scotch Whisky Association in the near future.

[Mr Holloway]

The Prime Minister’s recent trade delegation to China succeeded in securing geographical indication of origin status for Scotch whisky. How much will that be worth to the UK trade balance?

[Michael Moore]

The importance of the Scotch whisky industry, not just to Scotland but to the United Kingdom, is shown by the fact that it contributes roughly £4 billion to our economy, £3 billion of which is represented by exports. At the moment our exports to China are very small in comparison with those to the rest of the world. This important new concession—this agreement with the Chinese—which we very much welcome, will ensure that we can grow our exports in China as we have done in the rest of the world.

[Mr Brian H. Donohoe (Central Ayrshire) (Lab)]

I declare an interest as secretary of the all-party group on Scotch whisky and spirits. What representations has the Secretary of State made to the Treasury in connection with the imbalance in the tax on whisky?

[Michael Moore]

As the hon. Gentleman will know from his distinguished position, the industry is well represented in discussions with the Treasury at all times throughout the year, as it was under the previous Administration. I continue to have discussions with my Treasury colleagues on this very important issue, and will continue to do so in the months ahead.

[Stewart Hosie (Dundee East) (SNP)]

The Secretary of State will know that only yesterday the Scotch Whisky Association said that the Treasury’s review on alcohol tax was a missed opportunity. Will he confirm to the House today that he will make specific representations to his Treasury colleagues for fair taxation of all alcoholic drinks based on their alcohol content only, and no other spurious issues?

[Michael Moore]

The hon. Gentleman has a distinguished record of following these issues very carefully. He will have made representations, as has the industry. The review was concluded a few weeks ago and will report in due course. As I said in answer to the earlier question, I will continue to discuss these issues with the Treasury.

[Greg Hands (Chelsea and Fulham) (Con)]

7. What assessment he has made of the lessons learned from the 2010 Delhi Commonwealth games which could inform his Department’s contribution to the 2014 Glasgow Commonwealth games.

[The Parliamentary Under-Secretary of State for Scotland (David Mundell)]

The Commonwealth Games Federation is currently leading a formal review of the Delhi games. The Scottish Government and Glasgow 2014 games partners are participating in that review, and will be seeking to identify the key messages to inform planning for the 2014 games. The Scotland Office will do whatever we can to contribute to a successful games in 2014.

[Greg Hands]

The Minister will know that one of Delhi’s troubles was in attracting the top athletes. What will the UK Government do to ensure that the best from across the Commonwealth come to Glasgow in 2014?

[David Mundell]

As the hon. Gentleman will appreciate, most of the responsibilities in respect of the 2014 Commonwealth games are devolved and rest with the organising committee. I have already met the leader of Glasgow city council and assured him that the UK Government will do everything that we can to support a successful games.

[Julian Smith (Skipton and Ripon) (Con)]

8. What recent discussions he has had with ministerial colleagues on measures to promote economic growth in Scotland.

[The Secretary of State for Scotland (Michael Moore)]

I have regular discussions with ministerial colleagues on this issue. In the spending review, the UK Government took decisive action to reduce the inherited record deficit. Along with the June Budget, the spending review has set the conditions to promote a balanced economy and sustainable economic growth for all parts of the UK.

[Julian Smith]

The Scottish Government used to be very keen on the economic growth achieved by Ireland. Will the Secretary of State assure me that, as well as taking measures to promote growth, he will ensure that the First Minister has fiscal responsibility at the top of his agenda?

[Michael Moore]

All of us are very concerned about what has happened to Ireland in recent months, and our Government have set out some very important steps that we are taking to contribute to the recovery in Ireland and other parts of Europe. We need to ensure Scotland’s place within the stability of the United Kingdom. The Scotland Bill, given its First Reading in this House yesterday, will ensure that we give Scotland the tools to achieve that, and I hope that it will be an Act in due course.

[Mr Frank Roy (Motherwell and Wishaw) (Lab)]

For every job vacancy in Lanarkshire there are 10 people on jobseeker’s allowance. Indeed, in Motherwell and Wishaw, that figure rises to 12 or 13. What priority will the Secretary of State give to the Lanarkshire economy to ensure that it gets back on track as quickly as possible? [Interruption.]

[Mr Speaker]

Order. There are far too many private conversations of a noisy character taking place in the Chamber. I want to hear the Secretary of State.

[Michael Moore]

I recognise the challenges faced by Lanarkshire and other parts of the Scottish economy and by those who are looking for a job. As the hon. Gentleman will be aware, I visited Lanarkshire recently and met people who are working their way into employment, and students at Motherwell college. We have to keep focused, and we have to put in place the right conditions to ensure that we achieve a sustainable recovery across the country. I believe that the measures we are taking will ensure that that happens.

[Sir Robert Smith (West Aberdeenshire and Kincardine) (LD)]

The Secretary of State will know from his visit to the north-east of Scotland just how important the region is, not just to the Scottish economy, but to the UK economy as a whole. We received a welcome boost this week with the announcement of the extension of the runway at Aberdeen airport and improvement in that transport link, but will he emphasise to the Scottish Government that all transport links in the north-east need to be improved? They do not need new levers to improve Scotland’s economy; they need to use the existing levers, as well.

[Michael Moore]

My hon. Friend makes an important point. Our Government here in the United Kingdom are committed to ensuring that we invest in infrastructure that will support growth, and we have produced other support for business that is geared towards growth, but I take his points about the Scottish Government. His points will have been heard, and I am sure that they will form the basis of further discussions between myself and Scottish Ministers.

[Pamela Nash (Airdrie and Shotts) (Lab)]

9. What recent discussions he has had with the Chancellor of the Exchequer on the effect on average household outgoings in Scotland of raising the rate of value added tax to 20%.

[The Parliamentary Under-Secretary of State for Scotland (David Mundell)]

The VAT rise is part of the Government’s credible plan to tackle the largest deficit in peacetime history. Difficult decisions are necessary, but as a consequence we will get our country back on a sustainable economic footing, to the benefit of everyone.

[Pamela Nash]

Does the Minister not agree that the rise in VAT—the most regressive tax, by his party leader’s own admission—will hit the poorest in our society hardest, particularly in Scotland, where incomes are lower and jobs continue to be lost?

[David Mundell]

What I acknowledge is that the Labour Government left us with a deficit £12 billion larger than they had told us, and that if we do not tackle that deficit everyone in Scotland will be worse off. [Interruption.]

[Mr Speaker]

Order. This sort of noise is very discourteous. I want to hear Fiona O’Donnell.

[Fiona O’Donnell (East Lothian) (Lab)]

Thank you, Mr Speaker.

The voluntary sector in Scotland plays a vital role in supporting some of our most vulnerable families. The increase in VAT will cost Scotland’s voluntary sector dearly. What is the Minister actually doing to support that sector, so that it can deliver his vision of a big society?

[David Mundell]

This Government are committed to supporting the voluntary sector in Scotland and elsewhere in the UK, but the hon. Lady should tell people in that sector and elsewhere in Scotland that the rise in VAT is a consequence of her party’s Government’s overspending.

[Katy Clark (North Ayrshire and Arran) (Lab)]

10. What discussions he has had with ministerial colleagues on commissioning a Ministry of Defence hospital unit in Scotland.

[The Parliamentary Under-Secretary of State for Scotland (David Mundell)]

Although there are currently no plans to extend the existing network of Ministry of Defence hospital units, I can assure the hon. Lady that the Government recognise the importance of maintaining world-class medical services for our armed forces in the UK.

[Katy Clark]

Despite the increase in the number of injured coming back, we have no MOD hospital unit in Scotland. Organisations such as the Royal British Legion Scotland believe that there should be one. Will he meet the Royal British Legion Scotland, myself and any interested colleagues to discuss the matter?

[David Mundell]

Indeed, I am happy to meet the hon. Lady and any colleagues. It is important to say, though, that many military personnel are treated extremely well in non-military hospitals in Scotland, where they are closer to their friends and family.

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

11. What recent assessment he has made of trends in the level of employment in Scotland; and if he will make a statement.

[The Secretary of State for Scotland (Michael Moore)]

In recent months, the numbers in employment have been rising in Scotland, though overall labour market trends remain mixed. This Government will continue to create the conditions to foster sustainable and balanced economic growth.

[Mr Davidson]

What steps are the Government taking to ensure that unemployment in Scotland does not rise to the level in the Republic of Ireland—part of the circle of misery? Does he agree with me that a small country and bad banks result in misery for working people?

[Michael Moore]

I am happy to agree with the hon. Gentleman that Scotland benefits hugely from being part of the United Kingdom, and under our proposals set out in the Scotland Bill, it will firmly stay within the United Kingdom.

[Mrs Eleanor Laing (Epping Forest) (Con)]

Does the Secretary of State agree that current levels of unemployment in Scotland are the fault of 13 years of mismanagement by the previous Labour Government and that the people of Scotland need to back this coalition Government to give Scotland a chance again?

[Michael Moore]

Since this Government came to office, they have taken decisive action to tackle the issues that we inherited—a record deficit of £155,000 million. We have pulled Britain back from the danger zone, we are setting out the conditions for sustainable economic growth, and that is the right way for this country.

[Mel Stride (Central Devon) (Con)]

12. What recent estimate he has made of levels of economic growth and inward investment in Scotland.

[The Secretary of State for Scotland (Michael Moore)]

The latest official statistics show strong economic growth in Scotland in the second quarter of this year. We are determined to ensure that Scotland will benefit as the Government tackle the deficit to secure growth, and provide the confidence that businesses and individuals need to invest.

[Mel Stride]

Can my right hon. Friend tell the House whether those figures support the claim made by the last Labour Secretary of State for Scotland that the right hon. Member for Witney (Mr Cameron) would be a “kamikaze” Prime Minister who would “plunge” Scotland “back into recession”?

[Michael Moore]

Funnily enough, I completely disagree with that assessment. I am pleased to say that not only has the Prime Minister led the Government’s efforts to get us away from the danger zone that the economy was in, but he has set out a constitutional path for Scotland that will enhance its economic growth and keep it within the United Kingdom.

The Prime Minister was asked—

[Margaret Curran (Glasgow East) (Lab)]

Q1. If he will list his official engagements for Wednesday 1 December.

[The Prime Minister (Mr David Cameron)]

This morning I returned from Zurich, where I have been meeting decision makers, aiming to convince them of what a brilliant World cup England could host in 2018. On my return, I had meetings with ministerial colleagues and others. In addition to my duties in the House, I shall have further such meetings later today.

[Margaret Curran]

May I give the Prime Minister Glasgow’s best wishes in the bid for England? I mean that most sincerely.

In a recent Lib Dem leaflet in Scotland, the Business Secretary compares tuition fees to the poll tax. Is it acceptable for the Business Secretary to say one thing in the House and, when campaigning for votes in Scotland, to condemn that policy?

[The Prime Minister]

I thank the hon. Lady for what she says about the England 2018 World cup. I know she would never mislead the House, so I know that what she said was utterly sincere, and I am sure it is shared by Members, whatever part of the United Kingdom they represent.

On tuition fees, let us look at the system that we are introducing. Under the new system, nobody pays anything up front. Every single student will pay less per month than they do currently. Half a million students will benefit from the increase in maintenance loans. It is time we started looking at the substance of the issue, rather than just the process.

[Caroline Dinenage (Gosport) (Con)]

Q2. The Prime Minister explained how he is shuttling between London and Zurich in support of England’s World cup bid. Can he update the House on how that bid is progressing, please?

[The Prime Minister]

I am grateful for that question. England 2018 has a very strong bid. With regard to the technical aspects, we have the stadiums, the facilities and the transport networks. We have the enthusiasm in our country for football and we can put on an absolutely first-class World cup. I know that many people will ask, “Are you spending too much time on something that might not succeed?” I would say, “If you don’t get on to the pitch, you have no chance of winning.” We should all get behind the bid.

[Edward Miliband (Doncaster North) (Lab)]

I start by wishing the Prime Minister well as he plays his part in efforts to secure England’s bid for the 2018 World cup. As he says, ours is a fantastic bid and all of us will be hoping for a successful outcome tomorrow.

We note that the Deputy Prime Minister is away on official business, and left the country before the tuition fees vote, but of course we understand that he had urgent business to attend to in Kazakhstan and we wish him well in that.

The Office for Budget Responsibility forecast on Monday was hailed as a great sign of success by the Chancellor, but I want to test out what it will mean for families up and down the country. The Prime Minister has been telling us for months that under his plans unemployment will fall next year, but on Monday the OBR said that unemployment would rise next year. Can he explain why that is the case?

[The Prime Minister]

First, I thank the right hon. Gentleman for his kind remarks about the England 2018 bid. I know that the former Prime Minister worked extremely hard on it, and I know that there is cross-party support for it. We need to maintain that as we go into the vital last 48 hours.

The right hon. Gentleman asked about the OBR forecast, which the Chancellor announced on Monday. Let me stress again that these are independent forecasts, published for the first time independently, and not interfered with by a Chancellor of the Exchequer. On unemployment, what the Office for Budget Responsibility found is that unemployment this year will be lower than previously forecast. It has not altered its forecast for unemployment next year, for which it is forecasting a rate of 8%, but it is forecasting increases in employment all the way through the forecast period. Above all, what the forecasts showed is that our policy of trying to cut the deficit and get growth at the same time is working.

[Edward Miliband]

What the OBR actually shows is that growth will slow next year compared with the forecast, and that is what will mean that unemployment will rise. What the Prime Minister needs to explain is why unemployment will fall next year in the USA, in Germany and in other major industrial countries, but will rise in the United Kingdom. Why is that the case?

[The Prime Minister]

I know that the right hon. Gentleman is determined to talk down the economy, but even he will find difficulty in finding depressing statistics in the OBR’s report, because, generally speaking, what it reported was good news for the UK economy. It finds, and the last European Commission forecast report found, that average UK growth for the next two years will be higher than in Germany, France, the US, Japan, and the eurozone, or the EU average. It would be more worth while for us to debate across the Dispatch Box how we get the country’s growth rate up. What reforms do we make to try to make our economy more efficient? Has he got something to say about that, or is it another blank page?

[Edward Miliband]

The Prime Minister asks how we get the growth of the economy up—absolutely right. What we should not do is put up VAT next year from 4 January and cut public spending by £20 billion. That is why the OBR says that we will have the weakest recovery from recession for 40 years. I come back to my point about unemployment. Can he tell us when, over the five years of the Parliament, unemployment will return to pre-crisis levels? That tests the strength of the recovery. When will it return to the levels before the recession?

[The Prime Minister]

We inherited an 8% unemployment rate, and the OBR says that it will be 6% by the end of the Parliament. He asked the question, he gets the answer. Let me just remind the right hon. Gentleman of something. At the last election, the Labour party, himself included, said that if we cut £6 billion out of the Budget, it would end in catastrophe for the British economy. He was proved completely and utterly wrong.

[Edward Miliband]

Mr. Speaker, have you ever heard a more complacent answer to a question? Families up and down the country are worried about their jobs and unemployment will rise next year, and all the Prime Minister can say is that it is some kind of rosy scenario. Let us take the rise in VAT, because that is one of the reasons why unemployment will rise next year. Can the Prime Minister tell us what impact that will have on economic growth and jobs next year?

[The Prime Minister]

First of all, let me deal with VAT precisely. The former Chancellor, the right hon. Member for Edinburgh South West (Mr Darling) said:

“VAT would have allowed you to pay off a sizeable chunk of the deficit.”

That is the policy that the last Chancellor supported.

If we had followed over the last six months the advice of the Leader of the Opposition, we would be linked with Portugal, with Ireland—[Hon. Members: “No.”] Yes. We would not be standing here today discussing how we will get faster growth and lower unemployment; we would be sitting around discussing how to rescue and bail out Britain.

[Edward Miliband]

Okay, Mr. Speaker—[[Hon. Members: “Ooh!”] You can rewrite history for only so long. Let us be—[Interruption.] Let us be absolutely clear about this—[Interruption.]

[Mr Speaker]

Order. We are wasting the time of Back-Bench Members. Let us hear the Leader of the Opposition.

[Edward Miliband]

The deficit was 2.5% of national income before the crisis—the recession—hit all around the world. It went up all around the world; it was a global economic recession. The question is: should we cut too far and too fast, which is what the Prime Minister is doing, so that there are four years of sluggish recovery—the most sluggish recovery from recession in 40 years? Why does the Prime Minister not answer the question? Is this the most sluggish recovery from recession in Britain for the last 40 years? Yes or no?

[The Prime Minister]

This is one of the fastest recoveries in Europe, and the point is, if we had followed the right hon. Gentleman’s advice we would not be discussing recovery; we would be discussing meltdown. He can have a blank sheet of paper about the future; he cannot have a blank sheet of paper about the past. We know we were left a record budget deficit; we remember “no more boom and bust”; we remember all the things that he was responsible for. I have to say to him that, after all that—and he has been doing the job for the last three months—people are beginning to ask, “When’s he going to start?”

[Edward Miliband]

With that answer, it is no wonder that today we learn that the Foreign Secretary describes this gang as the “children of Thatcher”. It sounds just like the 1980s—out of touch with people up and down the country. Why does the Prime Minister not admit that he is complacent about the recovery and complacent about the people who will lose their jobs? And it is they who will pay the price.

[The Prime Minister]

Not waving, but drowning. My mother is still with us, so she is able to testify that what the right hon. Gentleman has just claimed is not literally true, but let me say this: I would rather be a child of Thatcher than a son of Brown. [Interruption.]

[Mr Speaker]

Order. I call Tobias Ellwood.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

Thank you, Mr Speaker.

The Prime Minister will be aware that British citizens affected by the 7/7 bombings were supported by the criminal injuries compensation scheme. However, when such attacks take place abroad, such as in Bali, Mumbai or Sharm el Sheikh, no such compensation for things such as prosthesis and long-term care exists. Does the Prime Minister agree that any Britons caught up in terrorist attacks deserve our support, no matter where in the world that attack takes place?

[The Prime Minister]

My hon. Friend is entirely right to raise that issue. People who are victims of terror, whether at home or overseas, deserve our support, as he says. People might not know, but my hon. Friend’s brother was tragically killed in the Bali bombing—that horrific attack that took place some years ago. We are looking at this very difficult issue of trying to make sure that, when we consider criminal injuries compensation and what has been proposed for injuries overseas, we have a fair and reasonable system. The Justice Secretary is looking at that, and we will come forward with proposals.

[Lindsay Roy (Glenrothes) (Lab)]

Q3. The Prime Minister’s Government are spending £4 billion so that councils can promote wellness, £2 billion on reorganising the NHS, £100 million on electing police commissioners and £2 million on a happiness survey. Does that not demonstrate that the Prime Minister has lost touch with reality?

[The Prime Minister]

No, it does not. Let me take—[Interruption.] Generally speaking, I think the hon. Gentleman should cheer up a bit. Let me take the issue of NHS reform. Even with the settlement that we have set out for the NHS, which involves real-terms increases each year, if we stand still with the NHS and keep the current system, we will find it running into very severe problems each and every year. So, it is necessary to reform the NHS, it is necessary to cut out bureaucracy and it is necessary to reduce management costs, so that we have a system where we actually try to create a healthier nation and, therefore, reduce the demands on our NHS. That is what our reforms are all about.

[Mr Philip Hollobone (Kettering) (Con)]

Q4. Along with Jamaica, Nigeria and Vietnam, the Irish Republic has one of the largest groups of foreign national prisoners in the UK. Given that we are about to lend it more than £7 billion, could the Irish Republic be persuaded to pay for the incarceration of those people by taking them back to jails in their own country?

[The Prime Minister]

My hon. Friend makes an extremely good point. We are looking at how we can transfer prisoners who are foreign nationals from the UK to other countries. Obviously with Ireland the situation is slightly different, because of the long relationship between our countries. The previous Government announced that they would not routinely support the deportation of Irish nationals from the UK; that was announced in February 2007. Since then, there has been a European directive that is helpful, because it makes more automatic the removal of prisoners to other countries. But there is still the specific issue with Ireland, and I will ask my right hon. and learned Friend the Justice Secretary to look at it to see whether we can do a little better.

[Mrs Louise Ellman (Liverpool, Riverside) (Lab/Co-op)]

The Government are cutting their teaching grant to Liverpool university by 30%, to Liverpool John Moores university by 70%, and to Liverpool Hope university by 97%. Is this a policy for closing down opportunity?

[The Prime Minister]

No, this is a policy to make sure that we have a strong university sector in this country. [Interruption.] Opposition Members can object, but it was the Conservatives and the Labour Government who set up the Browne review. I would recommend that hon. Members read the Browne review, because with the alternative of staying where we are now, we would either have to cut student numbers or find universities struggling. What Browne has come up with is a proper answer for a strong university sector for the future.

[Tom Brake (Carshalton and Wallington) (LD)]

Q5. Does the Prime Minister agree that when this Government are devising policy they should look at the evidence of what works in tackling reoffending, substance abuse and youth crime, rather than relying on the tub-thumping, shroud-waving, ambulance-chasing antics that pass for a policy-making process in the Labour party?

[The Prime Minister]

The hon. Gentleman makes a very good point. The fact is that with the difficulties of the budget deficit and the spending problems that we have, we do not have any choice but to look at the evidence and make sure that what we do works and is cost-effective. I think that we should start with the issue of drug rehabilitation, because if we can reduce drug-related crime and cut those costs we will make very great progress.

[Steve Rotheram (Liverpool, Walton) (Lab)]

Will the Prime Minister carry out an urgent check on the satellite navigation system used in ministerial cars? My concern is that just a few short months ago the Deputy Prime Minister could not be stopped from driving himself from university campus to university campus, but since he has got his chauffeur-driven ministerial car, he has not been seen near a student union. Is the sat-nav broke, or has he simply lost his political direction?

[The Prime Minister]

That was a wonderfully involved metaphor. At least the Deputy Prime Minister can make up his mind whether to join a demo or not—the Leader of the Opposition cannot even decide whether to sit on the fence.

[Stephen Mosley (City of Chester) (Con)]

Q6. Last week the governors of Christleton high school in my constituency made the decision to apply for academy status. However, before they made that decision, they faced a barrage of opposition from trade unions and local Labour party activists. What message would the Prime Minister send to those who seek to undermine much needed reforms of public services in order to fulfil old-fashioned, outdated, left-wing ideology?

[The Prime Minister]

My hon. Friend is entirely right. The academy movement—just like the city technology colleges before it—has brought greater independence and greater authority to head teachers and has led to an improvement in educational standards. If Labour Members have got any sense, they will not back off from it, and they should tell their friends in the trade union movement to stop objecting to new academies.

[Lisa Nandy (Wigan) (Lab)]

Q7. I have recently come across workers in Wigan who were forced by gangmasters to work 12 hours a day, seven days a week, below the minimum wage, and were threatened and bullied when they complained. Why have the Prime Minister’s Government failed to take any action to tackle this issue? Will he join me in supporting the Gangmasters Licensing (Extension to Construction Industry) Bill and help to bring an end to this appalling abuse?

[The Prime Minister]

This is a problem, and it is not one that has arisen suddenly under this Government—it has been a problem for many years. There are problems with gangmasters not paying the minimum wage, and we need to make sure that this is properly policed.

[David T. C. Davies (Monmouth) (Con)]

Q8. Does the Prime Minister agree that the Olympics offer a golden opportunity to encourage more disabled people to take part in sport? Would he like to pay tribute to the Welsh Paralympic team, who we hope will be visiting the Welsh Affairs Committee in February? Should my right hon. Friend be available on that day, he would be very welcome to come and give his best regards.

[The Prime Minister]

I am happy to endorse what my hon. Friend says. As to his invitation, as he is an amateur boxer, I should probably say yes immediately. It is great that the Paralympics are returning to their birthplace for London 2012, and I am sure that it will be a great showcase for sporting talent. Obviously, I wish the Welsh team well.

[Ian Paisley (North Antrim) (DUP)]

As the happy son of Paisley, may I too wish the Prime Minister well in his bid to bring the World cup to the United Kingdom? Will he support the campaign of the historic town of Ballymena in County Antrim to achieve city status during Her Majesty’s jubilee year?

[The Prime Minister]

The hon. Gentleman is not only metaphorically, but biologically the son of Paisley—he is on safe ground there. I shall certainly look at the matter that he raises. I know that campaigns for city status can gain great traction. Before I start endorsing every single one, I shall look at what he has said, but I am sure that there is a strong case.

[Richard Fuller (Bedford) (Con)]

Q9. The Prime Minister may have noted that the Leader of the Opposition approaches economic questions with the acumen of a novice out of his depth. By the next general election, families in my constituency will each have paid back £21,000 in Government debt. Will the Prime Minister resist Opposition demands to scale back on the deficit-reduction measures?

[The Prime Minister]

I will certainly resist those demands. The fact is that we inherited a situation that was completely unsustainable. Not just the Conservative party made that point; the Governor of the Bank of England, the CBI, the Institute of Directors, the OECD and the IMF were all saying that the previous Government did not have a proper plan. We needed a plan, we have got a plan and we should stick to that plan.

[Mr Gerry Sutcliffe (Bradford South) (Lab)]

I wish the Prime Minister well in his efforts in Zurich and hope that we will get the right result tomorrow. There was a great debate in the House yesterday on school sport partnerships and there was consensus that something needed to be done. There was an offer from the shadow Front-Bench team to try to come to an arrangement on the issue. Will he look at it urgently with the Secretary of State for Education? I am sure that we can resolve this matter, because it is important that sport is available to all.

[The Prime Minister]

I know that the hon. Gentleman was a very successful Sports Minister in the previous Government. I thank him for his endorsement of the 2018 bid and all that we are doing to win for England.

The hon. Gentleman’s point about school sport is important. I am looking carefully at yesterday’s debate. We all have a shared interest: we all want good sport in schools and more competitive sport, and we all have to ensure that money is spent well. Everyone accepts that not every penny was spent well in the past. There is a quite bureaucratic system. The Secretaries of State for Culture, Olympics, Media and Sport and for Education are working hard on this issue. We are talking with head teachers to ensure that what we come up with works on the ground. I hope that we will be able to make an announcement soon.

[Graham Evans (Weaver Vale) (Con)]

Q10. The plans to link London and Manchester by high-speed rail will bring huge economic benefits to my constituency and the greater north-west. Does the Prime Minister agree that anyone who wants to eliminate inequality between north and south should support High Speed 2?

[The Prime Minister]

My hon. Friend makes the right point in the right way. I understand that there will be difficulties with High Speed 2 in terms of the impact on some hon. Members’ constituencies and on some neighbourhoods. However, it is true to say that Governments of all parties for 50 years have tried to deal better with the north-south divide and to bring our country closer together. I profoundly believe that high-speed rail and good transport links are a really good way of making that happen. This measure could succeed where others, frankly, have failed.

[Tony Lloyd (Manchester Central) (Lab)]

Q11. The community of Collyhurst in Manchester has waited patiently and stoically with its insecure doors and draughty windows, while it has seen huge regeneration across large parts of Manchester. The Prime Minister will understand the sense of anger and despair in that community last week when the Minister for Housing and Local Government announced that its regeneration will not go ahead. Will the Prime Minister or the Minister for Housing and Local Government meet my hon. Friend the Member for Blackley and Broughton (Graham Stringer) in Collyhurst with tenants’ representatives to see how the matter can be taken forward?

[The Prime Minister]

I will make sure that the Minister for Housing and Local Government does as the hon. Gentleman says. The regional growth fund will be available for investment in those sorts of areas, and the replacement of regional development agencies—the local enterprise partnerships—will, partly because they will be more locally based, have a finer-tuned ear to local problems such as the one that the hon. Gentleman raises.

[Chris Heaton-Harris (Daventry) (Con)]

Q12. With the renewed prospect of travel chaos for British Airways passengers, will the Prime Minister condemn the leader of Unite’s implied threat to families when he said to them, “Don’t go on holiday”?

[The Prime Minister]

Opposition Members do not seem to think it is serious that we now have trade union leaders who actually say that there is no such thing as an irresponsible strike. There is such a thing, and those who are bankrolled by the unions ought to speak up about it.

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

Q13. Every year, about 25,000 people die from thrombosis in hospitals, which is two to three times greater than the number of people who die from hospital-acquired infection, yet many of those deaths are avoidable if hospitals follow the NHS guidance on blood clot risk-assessment. What are the Prime Minister’s Government doing to ensure that the UK’s No. 1 hospital killer becomes the NHS’s No. 1 health priority?

[The Prime Minister]

The hon. Gentleman makes an extremely important point, and I know that he is chair of the all-party group on thrombosis. In answer to his question about what we are going to do, the first thing is to make available more information. It was a freedom of information request by the all-party group that showed that only 14 acute trusts in England were even close to meeting the goals for risk-assessing patients submitted to hospital for the dangers of thrombosis and blood clots. He is right, and the best thing that we can do is provide more information. That will help us to ensure that hospitals are coming up to the mark.

[Stephen Williams (Bristol West) (LD)]

The Prime Minister will be aware, I am sure, that today is world AIDS day. What are the coalition Government doing to ensure that the tide of HIV is stemmed both at home and abroad?

[The Prime Minister]

The hon. Gentleman is absolutely right to raise that issue, and to say that we need to look at what is happening both at home and abroad. Abroad, the biggest decision was to maintain the commitment to 0.7% of gross national income going to our aid budget, and we make a very big contribution out of that budget to the battle against AIDS globally and to ensuring that antiretroviral drugs are made available. We also have to look at home, where there are worrying signs of infection rates that are still extremely high. We need to get the message out today and on other days about the importance of safe sex and the precautions that people should take.

[Grahame M. Morris (Easington) (Lab)]

Q14. I have just got back from a visit to Israel and the west bank, and I was shocked to witness with my own eyes 13-year-old Palestinian children in leg irons and manacles in Israeli military prisons. That is one of numerous breaches of the UN charter and of article 49 of the fourth Geneva convention. Whether or not the Prime Minister is the legitimate son of Thatcher, I am sure that as a father he would join me in condemning that appalling practice, but what will the British Government do to put pressure on the Israeli Government to comply with their obligations under international law and to relieve the suffering of the Palestinian people in both the west bank and Gaza?

[The Prime Minister]

The hon. Gentleman raises an extremely important point. Every country should obey the Geneva convention and the other conventions that it has signed, and Israel should be no exception to that. Ministers in the Government I lead raise those issues with Israeli Ministers, as we should, and that is extremely important. The fact is, what we really need is a long-term settlement of the Palestinian issue, and we want a two-state solution. It is very important that we put pressure on both sides at all times to ensure that we make progress. The lack of progress only plays into the hands of the extremists, and we can see that all the moderates in the middle east who are trying to make progress are being undermined by our failure to do better.

[Priti Patel (Witham) (Con)]

Q15. If the Human Rights Act is “a glaring example of what is going wrong in our country”,when will the Government put the human rights of the law-abiding majority above those of dangerous convicted criminals?

[The Prime Minister]

It is right that we should be replacing the Human Rights Act with a British Bill of Rights. I have personally looked at the matter long and hard and believe that there is no better solution than that. We are committed to starting a process of looking at that to see whether we can remove some of the nonsenses that have grown up over recent years and show that we can have a commitment to proper rights, but they should be written down here in this country.

[Eric Joyce (Falkirk) (Lab)]

The Government have announced an injection of £50 million of new money into the interim cancer drugs fund. Can the Prime Minister say whether there will be Barnett consequentials for Scotland, because that is new money?

[The Prime Minister]

We have not made any changes to the Barnett formula, so if that is Barnett-able, as it were, there will be consequentials, and if it is not, there will not be.

[Bob Russell (Colchester) (LD)]

Does the Prime Minister think it fair that a war widow has to pay income tax on her war widow’s pension?

[The Prime Minister]

My hon. Friend raises a very good point. We need to look at all those sorts of issues under the work that we are doing on the military covenant—there are very complicated issues of pensions and interaction with taxes. I do not want to give a flip answer from the Dispatch Box; we have a proper process of looking at the military covenant, which is the right way to do things.

[Caroline Lucas (Brighton, Pavilion) (Green)]

Climate finance will be critical at the ongoing climate summit at Cancun. Although I welcome the fact that the Government have pledged £2.9 billion to the global climate fund, will the Prime Minister confirm that any future money pledge will be additional to existing aid budgets, and can he say what further innovative funding mechanisms he plans to employ to deliver the UK’s share of the annual $100 billion pledged at Copenhagen?

[The Prime Minister]

The hon. Lady is absolutely right to raise that. Although Cancun will not achieve the binding global agreement that we want, it can make important steps towards that, so we can stay on track. On climate finance, first, we will stick to what was set out previously on the limit in the aid budget for money used for climate change purposes, although there are very real connections between climate change and poverty; and secondly, there is a commitment, which we will keep to, of £2.9 billion for climate change finance. Britain is a leader on that, but as she said, we must look at innovative ways of levering in more money from other parts of the world, including—frankly—from some fast-growing areas which, when Kyoto was first thought of, were very underdeveloped and are now fast-developing countries. We need to help them, but the finance should not flow only from us.

[Daniel Kawczynski (Shrewsbury and Atcham) (Con)]

Will the Prime Minister have urgent talks with the Leader of the House and the Business Secretary on introducing legislation for a national regulator or ombudsman for supermarkets before more suppliers are decimated by their conduct?

[The Prime Minister]

We have new arrangements in terms of ensuring that supermarkets treat farmers fairly. All of us as constituency MPs have heard stories about supermarkets behaving very aggressively towards farmers, and it is right that there is a proper way of trying to police that independently, so that our farmers get a fair deal for the food that they produce.

Point of Order

Wednesday 1st December 2010 Commons Chamber

12:32

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

On a point of order, Mr Speaker. I should like to secure advice on an answer that was provided to me yesterday during questions to the Attorney-General. In response to my question—[Interruption.]

[Mr Speaker]

Order. May I appeal to hon. and right hon. Members who are leaving the Chamber to do so quickly and quietly? It would be helpful if I could hear the point of order from the hon. Lady—I might then be in a position to respond to it.

[Chi Onwurah]

I asked the Solicitor-General about the UK’s failure to sign up to the proposed EU directive on preventing and combating the trafficking of human beings. He said that the UK was a signatory, and repeated that in response to a question from my hon. Friend the Member for West Dunbartonshire (Gemma Doyle). However, that is not the case: the UK has opted out of the proposed directive. Could you advise me, Mr Speaker, on what is the best way for the Solicitor-General to correct his mistake?

[Mr Speaker]

I am grateful to the hon. Lady for her point of order. The short answer to her question is that the best way for a mistake to be corrected is for the Minister, if he has made a mistake, to correct it. We are about to hear from the hon. and learned Solicitor-General.

[The Solicitor-General (Mr Edward Garnier)]

There was a degree of confusion; the hon. Lady’s question was too general. I answered the question correctly. There are two European directives, one of which is signed, and one of which is not, hence the confusion. The former right hon. Member for Airdrie and Shotts, now Lord Reid, signed on behalf of the Government the European directive to which I referred in my answer yesterday. The hon. Lady may have referred to a different directive that has not yet been signed, so we were both right and we were both wrong.

[Mr Speaker]

I do not want in any sense to treat this matter with levity, but I hope the Solicitor-General will understand if I say that that absolutely ingenious response is proof of the argument that no reply from a lawyer is ever simple.

[The Solicitor-General]

rose—

[Mr Speaker]

Order. We are grateful to the hon. and learned Gentleman. The hon. Lady has put her view very fairly and squarely on the record. We will leave it there for today. I am grateful to the hon. Lady, and indeed to the Solicitor-General.

Public Libraries and Museums Act 1964 (Amendment)

Wednesday 1st December 2010 Commons Chamber

Motion for leave to bring in a Bill (Standing Order No. 23)

12:34

[Alison McGovern (Wirral South) (Lab)]

I beg to move,

That leave be given to bring in a Bill to amend the Public Libraries and Museums Act 1964 to broaden the scope of the general duty of library authorities so as to include a duty to provide related cultural facilities alongside the library service; and for connected purposes.

At a time of global economic turmoil, it may seem strange to some to want to talk about culture. However, I would like to quote in favour of doing so one of this country’s finest economists, Maynard Keynes. On the publication of the first annual report of the Arts Council in 1945, he said:

“The day is not far off when the economic problem will take the back seat where it belongs, and the arena of the heart and the head will be occupied…by our real problems—the problems of life and of human relations, of creation”.

He was right about that. The economic problems that we face are real, many and serious; however, culture and its role in our towns and cities is highly important. I want to raise the matter in my ten-minute rule Bill, in order to put on record my concerns about what could happen to culture in some of our towns, cities and counties in Britain.

There is real fear out there that there could be not just cuts in the arts sector—everybody appreciates that there will be cuts and that the cultural sector will need to bear its share of efficiencies—but the total withdrawal by some local authorities from providing cultural services. I give the example of Somerset, which recently cut all 160,000 of its direct grants to arts and cultural bodies, while Bedfordshire looks set no longer to fund its music service. I draw on my own experience as a councillor in the London borough of Southwark, where I had to watch the local authority close the only children’s museum in London. That showed me the importance of ensuring that local authorities continue to prioritise culture.

Of course local funding choices are important. I would not dream of telling local authorities what to do—by and large. The Government’s role in giving local authorities enough funding will have a massive part to play in determining whether they can provide decent cultural services. Nor do I want to be prescriptive. I am not introducing my Bill in order to tell local authorities that one kind of culture is good for them. Diversity in the cultural services provided by our local authorities is a truly good thing. In my experience, great local authorities lead on culture in places as diverse as Kent, Merseyside—my part of the world—and Leicester. We have some visionary local authorities. I pay tribute to what they do in ensuring that our towns and cities are places we can be proud of, and where there are public spaces that bring people together to share in their history and heritage.

The reason for my suggestion is to start a debate. The Public Libraries and Museums Act 1964 gives the Culture Secretary an important role. It enables the Culture Secretary, if they feel it necessary, to say to a local authority, “You’re in danger of not providing sufficient library services. I want you to stop with those plans. They’re not good enough for the people in your area. They need a library service that provides public education”—and for a very good reason. My argument is that this public education role should be extended to the wider cultural service. There are lots of people in local authorities up and down the country who are fearful of what is to come. My question is what kind of country do we want to be? Do we want to be the kind of country where culture is, by and large, for those who already access it? Or do we want to be the kind of country where culture is for everybody and where local authorities fulfil their responsibility in involving people?

I know that there is a real appetite among local authorities to take on that role. When I put the word out that I was seeking to ask leave to introduce my Bill, I asked people to come forward with examples. I would like to quote Councillor John Warmisham from Salford. I do not know whether Councillor Warmisham agrees with my Bill—he might not—but he told me that the best example of what can be done is that of Salford Quays:

“First we had the Lowry, which attracted the Imperial War museum in the north, and this laid the foundation for MediaCity. This will give us more jobs than when we had the docks in Salford”.

That, coming from a local councillor, is a powerful example of the good that culture can do.

There is sometimes a view in the cultural sector that local authorities do not care about cultural services because they do not consider them to be as important as housing or social services, but there are many councillors out there who really do care. I want this Bill to start a debate, to highlight those councils that do great work and to determine whether we need protection in law for the cultural services provided by local authorities. I think that we do; and we at least need to have that discussion.

In Merseyside, we know—probably better than many other parts of the country—the massive value of culture to places. Of course, this is about the economy, and I must mention the impact that City of Culture ’08 had on Liverpool, Merseyside and the wider north-west. I know that people will understand the importance of that, but this is also about the strength of community that was created at the time. People have pointed out to me examples of the work that went on to bring culture not only to Liverpool city centre but to the wider area of Merseyside. I know from experience in my own constituency how empowering it was for the young people and older people in our communities when the cultural services in the local authorities brought them together to discuss their history and their heritage. We need to ask whether that needs some protection in law.

The 1964 Act has been a vital backstop to our library services at a time when they feel under constant threat of being de-prioritised, driven down and questioned. I have every sympathy with local authority leaders, who are having to make terribly difficult decisions, but the 1964 Act is an important check on what might happen. It ensures that we will never have to face the situation that my own grandfather faced when he was growing up in the inter-war years. He used to go to Liverpool central library and, I confess, he used to steal books because it was not possible to borrow library books for free at that time. The Act is important because it provides a backstop and enables the Government to question any local authority that is proposing to decimate its library services.

We all know the importance to our own constituencies of the local art gallery, the museum and the local theatre. We have all seen young people from our schools gain confidence from coming into the theatre for their first performance. My reason for introducing the Bill is simply to ask whether we want to be the kind of country in which those services are available to everybody. Do we want the Secretary of State to take responsibility for those services? Such a task need not be prescriptive or demanding, and it would not require a large amount of funding, but it would allow local people to appeal to the Secretary of State and say, “Please stop. We don’t want our local cultural services to close.” That is important for all of us.

Question put and agreed to.

Ordered,

That Alison McGovern, Tristram Hunt, Stephen Twigg and David Miliband present the Bill.

Alison McGovern accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 17 June 2011, and to be printed(Bill 118).

Fixed-term Parliaments Bill

Wednesday 1st December 2010 Commons Chamber

[3rd Allocated Day]

Further considered in Committee

[Dawn Primarolo in the Chair]

Clause 2

Early parliamentary general elections

Amendment proposed (24 November): 5, page 2, line 11, leave out from ‘Government’ to end of line 14. —(Mr Cash.)

Question again proposed, That the amendment be made.

[The Second Deputy Chairman of Ways and Means (Dawn Primarolo)]

With this it will be convenient to discuss the following:

Amendment 22, page 2, line 12, leave out ‘14’ and insert ‘ten working’.

Amendment 36, page 2, line 14, at end insert—

‘(2A) In reckoning for the purposes of subsection 2(b), no account shall be taken of any time during which Parliament is prorogued or during which the House of Commons is adjourned for more than four days.’.

Amendment 37, page 2, line 14, at end insert—

‘(2B) Where the House of Commons passes a motion of no confidence in Her Majesty’s Government, the Prime Minister shall tender his resignation to Her Majesty within a period of seven days of the motion being passed.

(2C) On tendering his resignation under subsection (2B), it shall be a duty on the Prime Minister to advise Her Majesty to appoint as his successor the person who appears to him most likely to command the confidence of the House of Commons.’.

Amendment 25, page 2, line 24, at end add—

‘(6A) In this section a “motion of no confidence in Her Majesty’s Government” shall be—

(a) in the terms “This House has no confidence in Her Majesty’s Government” or

(b) in the terms “This House has no confidence in the Prime Minister”.’.

12:44

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

Being in this position almost persuaded me of the merits of knives, which at least enable us to conclude debates at approximately the point at which everyone else has spoken.

I remind the Committee that the amendments deal with the mechanism providing for an early general election following a vote of no confidence, as set out in clause 2(2). Last week, on the second day of this Committee stage, we engaged in a wide-ranging discussion both of the merits of the various amendments and of the Bill. Before I deal with the amendments, let me respond to some of the questions raised by Members last week.

My hon. Friend the Member for Epping Forest (Mrs Laing), who is present and who speaks for the Political and Constitutional Reform Committee, asked a number of questions relating to the constitutional consequences of a vote of no confidence under the Bill. She was particularly concerned about the possibility of a Government’s forcing a general election by refusing to act both in accordance with conventions and in the spirit of the Act. She gave the example of a Government who engineered a vote of no confidence in themselves, or who sought to trigger a series of elections close to one another by refusing to resign after an election result.

If a Prime Minister who would presumably be seeking to be re-elected in a subsequent election engaged in such constitutional shenanigans, he or she would first suffer a political penalty at that election. If a Prime Minister behaved in an absolutely unconstitutional fashion, there would always be the ultimate long stop: Her Majesty the Queen could dismiss the said Prime Minister. That is the ultimate check and balance in our system. Clearly it would require an extraordinary set of circumstances, but it is the position that would obtain if our unwritten or other conventions were breached in a really appalling fashion.

[Mr Richard Shepherd (Aldridge-Brownhills) (Con)]

By what constitutional authority does the Minister cite the extraordinary proposition that the long stop of the constitution is that the Queen may dismiss a Prime Minister?

[Mr Harper]

Her Majesty the Queen appoints the Prime Minister. If the Prime Minister were to behave in an unconstitutional fashion, the Queen would have the right to dismiss the Prime Minister.

[Mr Shepherd]

So that is the Minister’s new interpretation of a constitution, or of defined practice over the years.

[Mr Harper]

It is not an invention; it is the constitutional position.

[Mr Shepherd]

No, it is not.

[Mr Harper]

Yes, it is.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I cannot think of an example of such a position since the reign of Queen Victoria, who refused to accept Robert Peel as Prime Minister, and I think it inconceivable that it would arise in a modern constitution.

[Mr Harper]

I did say that there would have to be an extraordinary set of circumstances for the Prime Minister to behave in such a constitutionally outrageous way. They would be circumstances in which a Prime Minister was abusing and stretching the constitution in order to stay in office and avoid the consequences of losing a vote of confidence in Parliament.

[Jacob Rees-Mogg]

I think that that is extraordinarily unlikely. It is theoretically possible that the Queen could refuse assent to a Bill, but that has not happened since the reign of Queen Anne. Such constitutional anomalies remain theoretical, but so theoretical that it is inconceivable that they would arise whatever the emergency. I really feel that to rely on that for the passage of the Bill is most unsatisfactory.

[Mr Harper]

I am not relying on it for the passage of the Bill. I was referring to the issue raised by my hon. Friend the Member for Epping Forest, who last week, on behalf of the Political and Constitutional Reform Committee, raised some potential scenarios with which she was uncomfortable. I believe, and the Government believe, that those scenarios are indeed, as my hon. Friend says, theoretical, and extremely unlikely to happen. My point is that if a Prime Minister behaved unconstitutionally in such a theoretical and extremely unlikely way, a mechanism that already exists would be invoked. However, the Government contend—and I agree with my hon. Friend on this—that both sets of circumstances are highly unlikely. It is our contention that the eventuality to which my hon. Friend has referred would not be necessary, because a Prime Minister would not behave in a way that stretched constitutional convention to breaking point.

[Chris Bryant (Rhondda) (Lab)]

I must say that this is the second very worrying route the Minister has gone down. He is saying that if the Prime Minister were to behave unconstitutionally, the monarch would act. How would the monarch know whether the Prime Minister had acted constitutionally or unconstitutionally?

[Mr Harper]

I am not setting out anything that is groundbreaking; this is the position that exists now. I agree with my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) that there would have to be an extraordinary set of circumstances; indeed, I said as much. I did so because I was referring to a point my hon. Friend the Member for Epping Forest made last week in raising some concerns of the Select Committee’s concerns. My view is that those concerns are not well founded because the events they address are extremely unlikely to happen and are only really theoretical in nature, but there is a response to them if they were to happen.

[Mrs Eleanor Laing (Epping Forest) (Con)]

Will my hon. Friend reassure the Committee that it is the Government’s intention to fulfil their duty and that of Parliament to protect the Crown from being put in a position where the monarch would ever have to make such an important constitutional decision?

[Mr Harper]

Absolutely. I can certainly say on behalf of this Government that this Government and this Prime Minister would never wish to put Her Majesty the Queen in such a position. Clearly, I cannot speak for Governments of the future, however.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I think it would help the Committee if the Minister could cite an academic paper, some judicial text or something else that bears out this notion that Her Majesty the Queen would interfere in politics in the way he is suggesting she would. Can he quote anything?

[Mr Harper]

The position is that Her Majesty the Queen appoints Prime Ministers and the ultimate constitutional long-stop is that if a Prime Minister behaves in a way that is outwith the constitutional position, the monarch can dismiss the Prime Minister—but that is the long-stop constitutional safeguard in our system.

[Mr Jenkin]

Her Majesty would have to take advice on such occasions. From whom would she take advice?

[Mr Harper]

Her Majesty would, indeed, take advice from, for example, her Privy Council and her other legal advisers.

[Chris Bryant]

Let us be absolutely clear: as I understand it, the Minister is saying that if the Prime Minister were “unconstitutionally”—to borrow the Minister’s word—to engineer a motion of no confidence in himself, for instance by tabling a motion of confidence in himself and urging his supporters to abstain, the monarch would sack him.

[Mr Harper]

I am not setting out particular scenarios. I was making the point that we can set out some theoretical propositions that have not happened and that we think are extremely unlikely to happen. I was simply setting out that if such a theoretical and unlikely event, to use the words of my hon. Friend the Member for North East Somerset, were to happen there is a constitutional long-stop. That was all I was saying, and I think the hon. Gentleman is making rather too much of it, as it is not a new point.

[Sir Peter Soulsby (Leicester South) (Lab)]

Although we may well accept that the scenarios we are talking about are unlikely, they are none the less possible, and while they remain possible would it not be desirable for the Government either to accept the Select Committee’s amendments or, indeed, to bring forward some of their own to make sure that should such unlikely events occur, there is a clear road map for the sovereign to follow?

[Mr Harper]

The fact is that some of these things can happen under our existing constitutional position; they are not triggered by anything we are providing for in this Bill. Our flexible constitution has worked rather well over the years in dealing with events that have not been thought of in advance, and I see no reason to undertake a rather more significant constitutional rewrite.

This Bill is intended to do one specific thing, which is remove from the Prime Minister the power to seek a Dissolution of Parliament. It makes the necessary changes to do that, but it does not seek to make changes that are not necessary to do that; it does not seek to go wider than achieving that particular change, and I think that is very sensible.

My hon. Friend the Member for Epping Forest also asked last week how the Bill strengthened the power of the House to throw out a Government. Giving statutory effect to the vote that could bring about a general election, rather than simply relying on the conventions, strengthens the power of the House. The Bill transfers from the Prime Minister to this House the power to decide whether there will be an early general election. If I remember rightly, my hon. Friend did, however, say that she is broadly supportive of the measures in the Bill, as, I think, is the Select Committee.

The hon. Member for Rhondda (Chris Bryant) asked a number of questions last week. He asked whether the Bill should contain a provision to ensure that a motion of no confidence is given precedence so it is debated without delay. He is aware—he mentioned this last week—that there is a convention that the Government find time to debate a motion of no confidence tabled by the official Opposition. That is a long-standing convention, which has been followed by Governments. Also of course, it would always be open to the Opposition to table an amendment to a Government motion, changing it to one of no confidence to ensure that that was debated.

The hon. Gentleman also raised a number of related points about whether particular votes could be considered motions of no confidence and whether it was appropriate for the Speaker to rule on such matters. I think I am right in saying that he was concerned that the Bill would give too much discretion to the Speaker. The Government do not consider that to be the case. We would expect the Speaker by and large to take a fairly literal approach to clause 2(2). We do not think the Speaker would be left with appreciably more discretion in dealing with this sort of question than he already has, for example under the Parliament Act 1911 when he has to certify whether a Bill is a money Bill. That is a decision he makes; it is for him. It seems to me that that is a sensible amount of discretion for the Speaker to have, although I accept it is on a different issue.

[Chris Bryant]

The Minister is right, of course. In fact, at present Members of the House of Lords are fiercely contesting the Speaker’s decision on whether certain Bills are money Bills. My point, however, is that all that that determines is whether or not a Bill can be debated in another Chamber, whereas under this measure it would determine whether or not we had a general election and the Government had fallen. That is a very big decision to be placing in the hands of the Speaker, which heretofore has never been in the hands of the Speaker.

[Mr Harper]

There are two issues there. I will not dwell on the money Bill issue to any great extent, because if I were to do so you would rule me out of order, Ms Primarolo, but I have read the account of the debate in the other place to which the hon. Gentleman refers and the other place is not challenging the Speaker’s ability to rule on whether a Bill is a money Bill. It is simply disagreeing with the consequences of that, and arguing that if something is a money Bill it is perfectly appropriate for the upper House to debate it in Committee and pass amendments to it, recognising that legally those amendments will have no effect if the House of Commons chooses not to take them into account. The upper House is therefore not challenging the Speaker’s right to make that decision.

The hon. Gentleman is also not right to say that this is about the Speaker deciding, effectively, whether to bring down the Government. That would be a decision for the House. The Speaker would have to make a decision about certifying something as a vote of confidence. As we debated last week, it would be extraordinary if the House were debating a motion of confidence—which the Speaker would certify as such—with everybody remaining in ignorance of the fact that it was a motion of no confidence in the Government. I simply do not think that would happen. Everyone would be very well aware of the fact that it was a motion of confidence—that it had that import to it. It would be for the House to vote on the matter, and the Speaker would then certify in a way that means the decision is outside the ambit of the courts.

[Mark Durkan (Foyle) (SDLP)]

As the Minister just appeared to touch on, under the Bill the Speaker issues the certificate only after the vote has taken place, not before. Therefore, would not the Labour amendment that specifies what is and what is not a vote of confidence be much better in everybody’s terms?

12:59

[Mr Harper]

I shall deal with the specific amendments shortly, when I set out why the Government think that they are unnecessary and that their drafting makes them flawed. If the hon. Gentleman does not think I have adequately dealt with his point, he will be able to intervene on me and I will happily take such an intervention. We have debated the fact that there is also a purpose in the Bill’s not specifying the exact words in legislation, because such an approach gives the House some necessary flexibility. I will return to that in a moment.

Let us consider the amendments in order. Amendment 5 was tabled by my hon. Friend the Member for Stone (Mr Cash), who is not able to be here today because he is away on other parliamentary business. He explained that his amendment would remove the 14-day period before an early election was called in the event of the Speaker certifying that the House had passed a vote of no confidence. It is right to say that there would be circumstances in which it would be appropriate to move to an early election when the House determined that we should do so, and the Bill provides for that in clause 2(1). But it is perfectly possible that there may be circumstances within a fixed term in which a legitimate Government could be formed from the composition of the House as it then stood, so it would not be appropriate to insist on an election. Members will have been elected for five years, and they are able to give their approval to a Government formed from within their ranks without the need necessarily to go to the country. The House can decide to do so, because under our proposals if a vote of confidence is lost and no Government can be formed within 14 days who subsequently receive a vote of confidence, a general election would take place. It seems sensible to give the House the opportunity to test whether a Government can be formed.

My hon. Friend’s amendment contained a fundamental misunderstanding about what a Prime Minister should do in the event of a Government losing the confidence of the House. Two things can happen. One possibility, under our current system, is that a Prime Minister remains in office but invites Her Majesty to dissolve the House and call a general election. Thus the Prime Minister does not resign immediately, and that is what happened when the House expressed its lack of confidence in the Government in 1979. Mr Callaghan did not resign when he lost the vote of confidence; he resigned only when he lost the subsequent election. Alternatively, the Prime Minister could resign almost straightaway after losing a vote of confidence, as happened in January 1924 when the Government’s motion for the Loyal Address after the Queen’s Speech was amended: Prime Minister Baldwin resigned and the Labour Opposition formed a Government. This Bill seeks to encapsulate that double-sided convention.

At the moment, if a general election has an unclear outcome, the Prime Minister is able to test his support in the House of Commons. If the House then signalled that it did not have confidence in that Government, that Prime Minister would go and a new one could be appointed. Amendment 5 would insist that another general election took place, and if the result of that general election was unclear, we could end up having a succession of general elections. Amendment 5 would force such elections to be held. In countries that have fixed-term Parliaments it is very common for there to be a period of Government formation after a vote of no confidence before an election is triggered. That is what happens in Germany, Greece, Italy, Spain and Sweden, so we are proposing an approach that has much precedent, which we think is sensible. We cannot ask my hon. Friend the Member for Stone to withdraw his amendment, because he is not here and thus unable to do so. However, we urge Members who are here not to insist on it being pressed to a Division.

[Mr Jenkin]

I have been in touch with my hon. Friend the Member for Stone (Mr Cash), who makes things complicated because he does not text people. He is in Budapest representing the European Scrutiny Committee, but he has suggested that it would be in the interests of the scrutiny of this Bill to press the amendment to a Division, and one or two of us will attempt to do so.

[Mr Harper]

As I said, my hon. Friend the Member for Stone is away on parliamentary business and, as he has perhaps not reached 21st century methods of communication, my words are unlikely to reach him in a timely way. So I can only urge him not to press his amendment to a vote, but I suspect that the decision on that will be for others, not for him.

[Chris Bryant]

As it happens, I agree with the Minister on this amendment. However, the one area that it will be worth considering on Report is whether it would be sensible to have a motion of confidence on the forming of a new Government after a general election, which should be treated in a slightly different way. Such an approach would address the 1924 situation that he suggests.

[Mr Harper]

The hon. Gentleman makes a good point, which has been raised by others. I believe I am right in saying that the hon. Member for Nottingham North (Mr Allen), the Chairman of the Select Committee on Political and Constitutional Reform, has said he is keen on the idea of installing Prime Ministers with an explicit vote in the House—he was speaking for himself there, not for the Committee. That would be a further change to our system and, as I said in answer to the hon. Member for Leicester South (Sir Peter Soulsby), we have made the necessary changes in the law to take away the Prime Minister’s right to call an early general election, but we have not gone further. I shall think about what the hon. Member for Rhondda said and see whether we think it has merit.

The hon. Gentleman’s amendment 22 seeks to replace the 14 days that we set out in the Bill for that Government formation period with a period of 10 working days. He is supportive of a Government formation period, because he would not be attempting to keep one through this amendment were he not. I think he was wanting to understand why we chose the period that we did, using calendar days rather than working days. The reason why we did so was because the calendar day period is fixed and certain, whereas working days are not, as they are dependent on things such as bank holidays.

Two legitimate concerns are involved here, and they were touched on last week. There is a concern that the number of business days in the 14-day period would be curtailed or that the date of the no confidence vote could mean that the date for the Government formation vote fell on a non-working day. Our view—I am interested to hear the hon. Gentleman’s—is that discussions on Government formation would not stop on weekends and bank holidays; I suspect that they would continue, given that having a Government is probably the most important thing for the country.

There are two ways around a scenario where the vital 14th day when the vote of confidence is due falls on a day when the House would conventionally not be sitting. The first is to arrange that the no confidence motion be taken on a day that means that the House will be sitting 14 days later. The alternative is for the House simply to sit on what would traditionally have been a non-sitting day. There is nothing to prevent the House from sitting, if it chooses to do so, on a bank holiday, a Saturday or a Sunday. Non-working days are not days when the House cannot sit, even though it does not do so. There are precedents for the House sitting on such days when emergencies have happened. I believe I am right in saying that the House was recalled to sit on a Saturday when the Falkland Islands were invaded by the Argentines. Holding a vote on whether a new Government did or did not have the confidence of the House would be sufficiently important that it would be in order for the House to sit that day, even if it was not a conventional day.

[Chris Bryant]

The Minister is right in relation to the Falkland Islands, and I believe that the House has also sat on a Sunday on the demise of the monarch. That is precisely why we did not specify “sitting days” in this amendment; we used the term “working days” because that is the language used throughout the rest of the Bill. We sought to provide a degree of flexibility; otherwise, over Easter, when there are bank holidays on the Friday and the following Monday, there might be a sustained period when the House would find it inconceivable to sit but the Government might, none the less, want to be able to do their business.

[Mr Harper]

For the purposes of this particular set of motions, the only business that we would be talking about the House undertaking would be holding a vote on whether or not a new Government who had been formed had the confidence of the House. Given the things that the Government are responsible for, it would be important to have a clear Government in place for the financial markets and at difficult times. We know from experience and we can see it from what happens in other countries. Therefore, the Government formation negotiations would want to be concluded and it would benefit the country, the Government and the House for the House to vote on that without inordinate delay. If there were a number of bank holidays or other holidays in the way, that could be dealt with. [Interruption.] The hon. Gentleman asks about Good Friday. As I have said, the alternative is that we could arrange things by moving the no confidence vote so that it was 14 days before a sitting day.

Conventionally, no confidence motions are given time in the House very soon after they are tabled, but as long as the Government were prepared to table such a motion very soon and agreed that with the Opposition, it would not necessarily have to be tabled the next day. I do not think that it is an inordinate problem. We think that it is sensible for there to be a fixed timetable for a Government to be formed so that everyone has some certainty. That is why we picked the time period that we have.

My hon. Friend the Member for Epping Forest spoke in support of amendments 36 and 37, which are also tabled in the names of other members of the Select Committee on Political and Constitutional Reform. Amendment 36 would make the 14 days in a period following a Government defeat a period that would not include periods of Prorogation or Adjournment for more than four days. Although I do not think that this is the intention behind the amendment, its effect would be to permit the 14-day period for Government formation to be prolonged potentially indefinitely if the House was prorogued or adjourned. The Government do not think that that is appropriate. We think that the 14-day period strikes the right balance between giving parties in this House time to discuss and see whether a Government can be formed and not allowing things to go on for so long that the country is plunged into a period of uncertainty. We do not think that amendment 36 is acceptable.

Amendment 37 provides that a Prime Minister must resign within seven calendar days of losing a vote of no confidence and recommend to the monarch a successor who appears to them to be the person most likely to be able to command the confidence of the House. I think I am right to say—my hon. Friend the Member for Epping Forest will correct me if I am wrong—that the purpose of the amendment is to avoid a situation in which a Prime Minister who has lost a no confidence vote wishes to remain in power and asks the monarch to prorogue Parliament to avoid an alternative Government receiving a vote of confidence, thereby forcing a general election.

[Mrs Laing]

Yes.

[Mr Harper]

My hon. Friend says that that is indeed the purpose of the amendment. However, I think amendment 37 is defective, because it rules out the possibility of what happened in 1979 occurring again. As I have said, Prime Minister Callaghan did not resign as a result of the no confidence motion. He remained in office, asked Her Majesty the Queen to dissolve Parliament and resigned when he lost the subsequent general election. That outcome remains a possibility under the Bill. My hon. Friend’s amendment would have meant that he would have been forced to resign before the result of the election was known. I do not think that that would have been a sensible outcome.

[Mrs Laing]

I fully appreciate the Minister’s point. Amendments 36 and 37 might well be technically defective—in any case, I have no intention of pressing them to a vote, as I said—but the Select Committee’s purpose was to ensure that this issue was properly discussed and scrutinised on the Floor of the House. Will the Minister reassure the House that he and his colleagues are satisfied that it would not be possible under the Bill’s provisions for the Government to seek indefinite prorogation in order to avoid a vote of confidence and a general election?

[Mr Harper]

I think I have set out why I do not think that that is likely. As we have heard, there are lots of theoretical possibilities that are very outlandish—I do not propose to rehash the conversations that we had at the beginning of this debate—but the Government do not think that they are realistic risks and that is why we do not think that amendments 36 and 37 are acceptable.

Let me turn now to the last amendment in this group, amendment 25, which was also tabled by the Opposition. It specifies the wording of motions of no confidence for the purposes of clause 2(2). It aims to remove the discretion of the House over its wording and that of the Speaker in his certifying of a motion of no confidence. The Government recognise that no confidence motions might take different forms, as they do now, but we do not want to remove the flexibility entirely. That raises an issue, which we will come to in the next group of amendments, to do with the House’s exclusive cognisance.

If we try to set out in statute the precise form of a no confidence motion, that could raise the risks to which the Clerk of the House has alluded. We think it is better for the Speaker’s certificate to be conclusive and for the Speaker to determine the nature of that certification. As I said when we touched on this matter in debating a previous group of amendments, if there were doubt—I think it unlikely that there would be—about whether what the House was discussing was a motion of no confidence, it would seem to be sensible for the Government, the Opposition and the Speaker to ensure that Members were clear on that point when they were debating it. I cannot believe that there could ever be a debate in this House about a motion of no confidence in the Government in which Members were sitting there completely unaware that they were debating the future of the Government of our country.

13:15

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

Of course, the Minister is right about the reality and the politics of the situation. He should remember, however, that we are talking about a situation in which legislation has been introduced and that legislation is always challengeable in the courts. Once things get into the courts, who knows what will happen regarding the interpretation of the provisions? For the sake of clarity and certainty, what is wrong with setting out the precise terms that must be used so that there can be no doubt? That goes to the issue in amendment 6, tabled by the hon. Member for Stone (Mr Cash), which sets out provisions for the avoidance of doubt. Surely there is merit in making it absolutely clear and plain.

[Mr Harper]

I shall not attempt to rush forward to the certification procedure, because we will debate it when we discuss the next group of amendments.

Let me turn to the specific amendment before the Committee. I do not think amendment 25 achieves the certainty that the right hon. Member for Belfast North (Mr Dodds) suggests would be desirable. It states that a motion of no confidence “shall be”, not “must include”, so it is not clear whether the motion would have to consist exclusively of the specified text or whether that text could be part of a motion, such as if it were added to a Government motion by amendment.

The Opposition’s amendment tries to specify the text of the no confidence motion, but does not try to achieve equivalent clarity as regards the motion of confidence that would have to be passed within 14 days by an alternative Government in order to avoid a general election. The amendment is trying to achieve some certainty—that was what the hon. Member for Rhondda said—but I do not think it does. I also do not think it is desirable or appropriate to try to set out the text of the motions in the Bill.

The Government think that clause 2(2) provides a clear and practical mechanism that gives statutory effect to a vote of no confidence. I have set out the Government’s concerns about the amendments and I hope that hon. Members will not seek to press them to a vote.

[Mr Shepherd]

I should like to press amendment 5 to a vote, with the consent of my hon. Friend the Member for Stone (Mr Cash).

[The Second Deputy Chairman]

The question is, that the amendment be made.

[Hon. Members]

Aye.

[Hon. Members]

No.

[The Second Deputy Chairman]

I think the Noes have it.

[Mr Shepherd]

We wanted to press the amendment to a Division, Ms Primarolo.

[The Second Deputy Chairman]

I need to hear you pressing the amendment, Mr Shepherd. I need you to shout louder for me. I am happy to do it again, but I need to hear the vote.

Question put, That the amendment be made.

13:17

Division 136

Ayes: 6

---

Conservative: 5
Labour: 1

Noes: 498

---

Conservative: 244
Labour: 193
Liberal Democrat: 45
Democratic Unionist Party: 6
Plaid Cymru: 3
Scottish National Party: 3
Social Democratic & Labour Party: 2
Independent: 2
Alliance: 1
Green Party: 1

[The Second Deputy Chairman]

When, after voting, Members remain in the Lobby behind the Speaker’s Chair, they need to be quiet; otherwise it is impossible to hear the vote in the Chamber.

Amendment proposed: 36, page 2, line 14, at end insert—

‘(2A) In reckoning for the purposes of subsection 2(b), no account shall be taken of any time during which Parliament is prorogued or during which the House of Commons is adjourned for more than four days.’.—(Sir Peter Soulsby.)

Question put, That the amendment be made.

13:35

Division 137

Ayes: 202

---

Labour: 194
Conservative: 5
Social Democratic & Labour Party: 2
Independent: 1
Alliance: 1
Green Party: 1

Noes: 297

---

Conservative: 241
Liberal Democrat: 44
Democratic Unionist Party: 6
Scottish National Party: 3
Plaid Cymru: 2

[Mr Jenkin]

I beg to move amendment 6, page 2, line 15, leave out subsection (3) and insert—

‘(3) Any certificate of the Speaker of the House of Commons given under this section shall be conclusive for all purposes and shall not be presented to or questioned in any court of law whatsoever.’.

[The Second Deputy Chairman]

With this it will be convenient to discuss the following:

Amendment 23, page 2, line 17, at end insert—

‘(4A) The Speaker shall issue a certificate under subsection (1) or (2) within 24 hours of the relevant conditions being met under subsection (1) or (2).’.

[Mr Jenkin]

Amendment 6 stands in the name of my hon. Friend the Member for Stone (Mr Cash), who, as I mentioned earlier, is abroad on other House business as Chair of the European Scrutiny Committee.

We are at a curious juncture in the Bill and, indeed, in our constitutional history. The background to the amendment is the tension, since time immemorial, between this House’s ability to function immune from judicial interference, and the courts, which periodically have sought to limit the extent to which we can continue our business unimpeded by the courts. That was, of course settled—to a degree—in the Bill of Rights in 1789—

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

1689.

[Mr Jenkin]

Sorry, 1689. My hon. and learned Friend will keep me up to the mark, because he is much more of a lawyer than I am.

In recent years, however, the tension between the courts and the independence of this House has been thrown into relief. I remind the Committee of cases such as the one brought by Lord Rees-Mogg for judicial review of the ratification of the Maastricht treaty after this House had passed an Act of Parliament.

[Jacob Rees-Mogg]

I would like to clarify that the judicial review case brought by my noble kinsman was not in any way to challenge what had happened in this House. It was to challenge the use by Ministers of the royal prerogative, which is why the judicial review was allowed by the courts.

[Mr Jenkin]

I stand corrected—again. I fear that that may occur rather often during my presentation. The case relating to the Hunting Act 2004 was certainly an attempt to impede the free functioning of Parliament in its judicial function. In addition, an attempt was made to judicially review the lack of a referendum on what was then the Lisbon treaty. There are other examples of that tension, not least over the arrest of my hon. Friend the Member for Ashford (Damian Green), and I believe that only today, in connection with another matter, are the limits of the courts being resolved.

The present situation begs for something that many have recommended for some time: that this Parliament should have a privilege Act to delineate clearly the immunities of Parliament in relation to the functioning of the courts, but we are in an even more tense situation because we are arranging our constitution in other areas that question the very sovereignty of the House. We now have a Supreme Court and it is widely known that many jurists who serve at various levels of the judiciary take differing views of the notions of parliamentary sovereignty and parliamentary privilege. There was recently a case concerning the possible effective expulsion of an hon. Member as a result of a judicial decision. I do not comment on its merits as it is still sub judice. I merely advert to the fact that it represents another testing of the boundaries between the courts and Parliament.

We are told not to worry—the Bill’s provisions are immune from the courts, and nobody is going to interfere in what we decide is a Speaker’s certificate, certificating a vote of no confidence that satisfies the majority. When we are blandly and bluntly told that by the Government and at the same time told by the Clerk of the House who has bravely and independently—in his constitutional capacity as an independent guardian of our constitutional arrangements—issued a memorandum, to which I shall refer later, that flatly contradicts the Government’s view, we are obliged to take the matter very seriously.

I cannot think of a precedent, other than the Parliamentary Standards Bill, where a Government flatly refused to accept the advice of the Clerk of the House on a question of the potential justiciability of legislation before the House. The Bill before us is a major change to the constitutional settlement of this country, and it is backed by people in the Government who we know favour a written constitution—an entirely different constitutional settlement. That raises the question whether the Government have got it right when they say that the Clerk’s fears are to be disregarded.

With the indulgence of the Committee, I shall quote rather extensively from the memorandum submitted by the Clerk as written evidence to the Political and Constitutional Reform Committee. He states that the Bill is

“to make statutory provision for matters which fall within Parliament’s exclusive cognizance and which may affect the established privileges of the House of Commons as well as upsetting the essential comity which has been established over a long period between Parliament and the Courts.”

Erskine May makes it clear that “cognizance” refers to the right of both Houses

“to be the sole judge of their own proceedings, and to settle—or depart from—their own codes of procedure.”

The Clerk is clear in a bald statement in paragraph 12 of his memorandum:

“The Bill brings the internal proceedings of the House into the ambit of the Courts, albeit indirectly by the route of Speaker’s certificates.”

He goes on to explain how that occurs under clause 2(2), which we have already debated. In paragraph 16 he states:

“The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.”

That should be obvious. We know that Crown prerogative, as exercised by the Prime Minister, is subject to judicial review. We know that statute is subject to judicial review. We know that proceedings in the House and Standing Orders have not hitherto been subject to judicial review or judicial question. The Bill provides a connection between what happens in the House and in the rest of the world. We are providing a bridge of law that brings the courts into the House.

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

Does the hon. Gentleman think, therefore, that the amendment goes far enough? The solution, as the Clerk of the House sees it, is for the Speaker’s certificate to be provided for not in statute but under a Standing Order, which would prevent the courts from interfering in the proceedings of the House.

[Mr Jenkin]

The hon. Gentleman makes an extremely important point, to which I shall return. The entire Bill could be dealt with through Standing Orders. The only reason we have a Bill is either that a Bill is favoured by those who want to move towards a written constitution—I do not remember that being in anybody’s manifesto—

[Chris Bryant]

Ours.

[Mr Jenkin]

There we are. Perhaps that is why the Opposition support the Bill. We have just had a Division in which 400 right hon. and hon. Members were in the No Lobby and only a handful of us in the Aye Lobby. That underlines the curious consensus in favour of certain principles of the Bill. I do not think either of the elected parties in the coalition was in favour of a written constitution—[Interruption.] That is two parties, but the one that won the election certainly did not—

[Chris Bryant]

To clarify, I think the Liberal Democrats were in favour of a written constitution, and we were in favour of looking at a written constitution.

[Mr Jenkin]

I do not remember that being a great issue in the general election, but we are, in effect, creating one of the standard features of a written constitution, thereby tempting the courts to start interfering in the internal workings of the House.

[Mr Harper]

For the avoidance of doubt, the Government’s position is that they are not in favour of moving to what is more accurately said to be a codified constitution. Many of our constitutional principles are, of course, written down, just not in one document. It is not the Government’s position to do so. I hope that cheers my hon. Friend up.

[Mr Jenkin]

I am grateful for that assurance. The Minister, who in all these debates has shown impeccable manners and tact despite the pressure he is under, should be looking for an alternative way of delivering this part of the coalition agreement, to which the hon. Member for Stoke-on-Trent Central (Tristram Hunt) alluded.

The Speaker’s decisions will be taken under immense political pressure, as he decides what constitutes a confidence motion, what amendments might be tabled to amend a confidence motion, whether, if carried, that would invalidate the motion, whether the amendment could constitute a motion of confidence, and the consequences of amendments being carried or the motion being carried.

I quote again from the Clerk’s memorandum:

“As these would become justiciable questions, the courts could be drawn into matters of acute political controversy.”

I respect the fact that many in the House think we should have a Supreme Court like the European Court of Justice in the European Union or the Supreme Court of the United States, which is essentially a political court, but that is a very big constitutional change. We ought to have a royal commission about it, there ought to be debates on the Adjournment about it and the implications of drawing the courts into politics, if that is what we are going to do, ought to be properly explored. The way in which the Supreme Court is appointed to make it accountable for its political judgments is another important question.

We are importing continental and American-style jurisprudence into our judicial decision making. Some judges are becoming more and more adventurous about how they interpret statute and where they feel entitled to make judicial interpretations, and the Bill invites them to decide when there might be a general election under particular circumstances.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

Will my hon. Friend distinguish between two things: judicial activism, where there is extraordinarily little evidence that judges in this country are overreaching, although the same is not necessarily true in Europe and in the European Court, and impingement on the prerogatives of Parliaments, which is what the Bill covers? We should be focusing on the latter point.

14:00

[Mr Jenkin]

I am perfectly prepared to accept that point. I refer to judicial activism only because there are champions of judicial activism who would like the courts to be more judicially activist. The Bill creates circumstances whereby we tempt judicial activism, which is contrary to our legal traditions. It increases the danger of the Government’s assurances simply not being delivered, or of their not being able to make these assurances with any confidence.

The Clerk, in his memorandum, specifically says:

“In the case of Clause 2(3) it would be for the court to determine whether a document issued by the Speaker was a ‘certificate’ for the purposes of that clause. It is not impossible for a court to take the view that what appeared to be a certificate was not a ‘certificate’”.

The memorandum has been considered by the Select Committee, which attempted, in the short time available, to conduct pre-legislative scrutiny. It reached two principal conclusions. Paragraph 8 states:

“The Government needs to respond to the concerns expressed by the Clerk of the House of Commons about the potential impact of clause 2 of the Bill on parliamentary privilege.”

Paragraph 9 states:

“The purpose of the Bill needs to be achieved without inviting the courts to question aspects of the House’s own procedures or the actions of the Speaker, except where this is absolutely unavoidable and clearly justifiable.”

The qualification reflects the fact that on the Committee there was some disagreement about the seriousness of the threat and between those who are in favour of a written constitution and those who are in favour not of a written constitution but of the settlement that relies upon our immunity.

On whether there are alternative ways of achieving the Bill’s intentions without the risk of judicial interference, the Committee noted, in paragraph 38:

“As the Committee has noted, setting out the requirement in Standing Orders would not be satisfactory because Standing Orders can be amended, suspended or revoked by a single simple majority vote of the House of Commons only.”

That is not correct. I have taken further advice from the Clerks and I have a letter from the Clerk Assistant and Director General, Mr Robert Rogers, which, if the Committee will indulge me, I will quote. He explains that there is a precedent of super-majorities in Standing Orders being used, for example, on closure motions in the 1880s. He says:

“As to the practical issue of a “super-majority” SO being able to be amended or repealed only by a super-majority, I see no difficulty. The Speaker would be the arbiter of whether a motion…either was (a) orderly and (b) had been agreed to; he would be bound by the Standing Order (which should perhaps contain an explicit prohibition on “notwithstanding”-type Motions), and his decision would be beyond any external review.”

That neatly and devastatingly removes the need for the entire Bill. We could be operating entirely through Standing Orders, which would be protected by the super-majority that the Government want to embed in legislation for general elections. It leaves the question of why the Government are resisting this advice.

Amendment 6 is a more elaborate way of saying what the Government have already put in the Bill. I would be the first to accept that it may be regarded as a more elaborate bit of sticking plaster, because the clause will be subject to judicial interpretation. A certificate could not be presented to the courts—not even the Speaker could present one to a court for adjudication. The word “whatsoever” in the amendment means that we are referring not just to our own courts, but to the European Court of Human Rights, which is not just a figment of some Eurosceptic’s imagination. The Clerk himself has adverted to the fact that the ECHR, under article 10, could be adverted to as a cause for judicial review.

If a Member of Parliament was prevented from voting in the motion of confidence, they could say that their vote should be taken into account for a valid certificate to be issued by the Speaker. They could therefore mount a challenge saying that the certificate was not valid because they were prevented from voting. A question also arises if sick colleagues cannot get into the Lobby and are nodded through. Would that constitute a ground for challenging a vote of confidence?

[Jesse Norman]

Was not there an example in the 1970s of whether a Member had been able to vote? There was a tied vote and Harold Lever, I think I am right in saying, felt that he had not been able to exercise his vote. He might have had grounds under this Bill, if the Clerk is right, to invoke the care and attention of the courts.

[Mr Jenkin]

My hon. Friend adverts to an extremely relevant precedent. What would happen if a two-thirds majority was obtained, or not obtained, by just one vote, or the Speaker interpreted the result as a vote of confidence where there was one vote in it that was represented by somebody who was or was not present for whatever reason? These are very dangerous areas.

I have two final points, and I am grateful for the indulgence of the Committee in allowing me to quote extensively from documents. The Bill is being driven by an extraordinary consensus on some issues and by the fact that it is so close to the survival of the coalition that it is difficult openly to debate it. The Prime Minister said before the election that Committee stages of Bills should not be whipped, so that what a Committee thought can be understood. The Whips are out in force today, and I do not think that we will really find out what Members think about it. However, that invites the other place to look at the privilege and immunities of the House, and to propose comprehensive amendments that protect Parliament from judicial review.

[Mark Durkan]

Is the hon. Gentleman satisfied that either the Bill or amendment 6 would protect against judicial intervention on the ground of failure to issue a certificate—a controversy that could easily arise, particularly in the light of provisions in respect of a motion of no confidence? The certificate issues only after the 14-day period has been allowed—it does not issue at the time of the debate or just after the vote, but later on—and there could be controversy about the failure to issue a certificate or about whether a certificate could be issued. Someone might try to bring that to the court.

[Mr Jenkin]

The hon. Gentleman is absolutely right. The amendment, as drafted by my hon. Friend the Member for Stone, deals with only one aspect of the matter, and, given our limited time to scrutinise this enormously important Bill, I explicitly invite the other place to look carefully at all the aspects and the advice of the Clerk. One of its own Committees is considering the matter and might well come up with different conclusions from those of the Commons Political and Constitutional Reform Committee. The Lords sorted out the IPSA Bill, under which they kept our proceedings immune from the courts, and I very much hope that they will do the same with this Bill.

My concluding point is a general one about the Bill but is relevant to the amendment. I do not think that I can recall a major constitutional measure that was so closely associated with the survival of one Administration. We have to pinch ourselves when we think of what we are doing in reality: we are completely changing our constitutional settlement at the behest of a coalition, so that it can remain in power for five years. I do not even think that that is ethical. Parliament’s immunity is basically being screwed up, and, although a Bill can at least be repealed, once the courts have been allowed into our proceedings, we will never get them out again without a major break in the constitution such as in 1689.

All that can be forestalled if the Minister simply says, “These matters cannot be resolved today,” because they cannot be resolved on the basis of parliamentary counsel’s advice to Ministers about the drafting of Bills. We need the other place to give the highest and most independent legal advice to ensure that we do not inadvertently bring about what the Government themselves do not want to see.

[Chris Bryant]

Many thanks are due to the hon. Member for Harwich and North Essex (Mr Jenkin), who has done us a great favour by pointing out some of the problems in this small aspect of the legislation. He is absolutely right to say that large parts of the Bill exist only for the preservation of a single Administration. I do not know the appropriate Latin equivalent of ad hominem legislation, but this is “ad administrationem” legislation, which is why some provisions will not stand the test of time. The best that we can do is try to ensure that the elements of real peril are tidied up.

The hon. Gentleman was right in several regards, but not in one. He talked about the IPSA Bill having been miraculously improved in the other place, but none of us really thinks that we ended up with a perfect situation or that nirvana arrived by virtue of that Bill. However, on the Bill before us—I suspect this would also apply to the other constitutional Bill that we recently scrutinised—he is right that if there were a free vote, none of the legislation would go through at all.

[Mr Jenkin]

If the Parliamentary Voting Systems and Constituencies Bill had been separate Bills, I do not think that either would have gone through.

On the IPSA Bill, at one stage there was a proposal to allow IPSA to adjudicate on and punish Members for breaching the rules. That would have driven a coach and horses through our traditional immunities under the Bill of Rights, but it was removed in the other place.

[Chris Bryant]

Indeed. As the hon. Gentleman said earlier, a privileges Act will be needed at some point, and I hope that the Government turn to such legislation. I realise that there are problems with any written or “codified”—to use the Minister’s term—constitution, because one risks making it justiciable and must then decide what will be the justice that oversees it. Will it be a supreme court or a constitutional court, such as many other countries have? That is a debate for another day, however.

14:15

The issue of the Speaker’s certificate can be addressed only in relation to how it is operated in motions of no confidence, so I do not intend to stray far, Mrs Primarolo, from the specific issues involved. Nevertheless, in the previous debate the Minister said that all the amendments dealt with wildly hypothetical situations. Those were not his precise words, but broadly speaking that is what he meant, and he was right in a sense. When one starts writing bits of the constitution into statute, however, one has to provide for the hypothetical situation that suddenly arises when, for example, voters have cast their votes not so conveniently as to provide for a single majority party in government, or when a party—as has happened regularly over the past 200 years—has collapsed into two parties and is not able to sustain itself in power.

It is important that we consider the unlikely outcomes that might transpire, because if they were to transpire they would provide us with an enormous constitutional headache, and we would have literally no means of sorting them out, because we would have no other court to appeal to in order to sort out the constitutional row. For instance, if the monarch decided to sack the Prime Minister—this point was raised earlier—other than revolution I know of no other means that we would have to enforce what we all understand to be the proper constitutional settlement.

I presume that the Government have drawn up the provision on the Speaker’s certificate as they have done in an attempt to mirror provisions in the Parliament Act 1911, as amended of course in 1949. In an attempt to ensure that in accordance with the Bill of Rights the courts did not interfere in parliamentary proceedings, that legislation tried to provide a cast-iron process whereby the Speaker could certificate that certain Bills were money Bills and did not, therefore, have to go through the same process in the House of Lords as other Bills. It also provided that if a money Bill were amended or not passed by their Lordships within a certain period—I think it is a month—it would be automatically be sent to Her Majesty for Royal Assent.

I also presume that the Government have used that legislation to draw up the legislation before us, because section 1(3) of the 1911 Act states that

“the Speaker shall consult, if practicable, two members to be appointed from the Chairmen’s Panel at the beginning of each Session by the Committee of Selection.”

That process still occurs, and Mr Speaker doubtless went through it before he recently certified several Bills as money Bills.

There is a difficulty, however, with transposing that provision directly into provisions for a situation in which the Government have lost a motion of no confidence, or into measures that provide the Speaker with a series of fairly significant powers. The Speaker will get to decide when to issue that certificate. As the hon. Member for Harwich and North Essex has already said, that means that the Speaker will decide whether nodding people through when Members are on the parliamentary estate and a Whip, by agreement between the Whips from both sides, nods them through at the end of a vote by saying, “And two more,” is allowed.

The Speaker will decide also, for instance, whether 14 days have passed since the no confidence motion has been carried. That is important, because past debates on a motion of no confidence might have started at 3.30 in the afternoon, but they certainly did not finish by midnight; sometimes, they took up the whole of the next day’s business. In parliamentary terms, Members were still on the first day, so the question whether 14 days had transpired would be a moot point.

Further, the Speaker will decide what is a motion of no confidence. I therefore presume that, similarly, he will decide what is a motion of confidence. The hon. Gentleman is absolutely right that many of those issues could be dealt with in Standing Orders. That would be very helpful to the House on the question of what counts as a motion of no confidence or of confidence, in particular, because this is a matter not of partisan advantage or ideological divide, but of trying to ensure that there are practical measures to obviate a constitutional disaster should the moment arise.

It would be helpful if the Minister were able to tell us whether he is minded to suggest to the Deputy Leader of the House that there should be motions to change the Standing Orders of this House to make some of the conventions that currently exist part of Standing Orders. For instance, there is the question whether we should have in Standing Orders the provision that when the Opposition demand a motion of no confidence it should usually be provided, say, within 24 or 48 hours, or provision concerning how the Speaker goes about the certification process.

[Mr Shepherd]

I am a little puzzled as to why the hon. Gentleman comes to the conclusion that this needs to be codified in any way. Our history demonstrates quite openly that this House comes to such a resolution by the processes of the House. When Mr Chamberlain won the famous Norway debate, he recognised that there was no confidence in him personally. These matters are eventually decided by the House and by the judgment of individuals. Surely that is the better way of doing it.

[Chris Bryant]

In a sense, that is an argument against the whole Bill which I understand. I know that the hon. Gentleman is not saying that this is a conspiracy, but I think that the hon. Member for Harwich and North Essex feels that a bit of a cosy consensus has developed around the fact that there should be a codification of fixed-term Parliaments. We agree with that codification. However, once one starts to codify one element, one has to codify rather a lot of them. That is why I have wanted to codify what counts as a motion of no confidence and what should be a motion of confidence. Perhaps we should have tried to codify it in a slightly different way so that, for instance, a motion to amend the Loyal Address could also be considered as such, as in 1924.

[Mr Jenkin]

What the hon. Gentleman is suggesting might well be sensible in one respect, but I fear that it will not prevent the courts from having a go at this. Indeed, if what constitutes a motion of confidence is codified in our Standing Orders, the courts will then be interpreting whether our Standing Orders reflect what could be regarded as such. If he wants clarity and is seeking to provide a better definition, this has to be put into the legislation. Of course, that reflects the point that we are tempting the courts to interfere in the proceedings of this House.

[Chris Bryant]

That is an interesting point. The Bill of Rights refers, I think in section 9, to the fact that proceedings in Parliament shall not be touched by any other court. The moot point then is what constitutes a proceeding in Parliament. There have been many discussions about this over the past couple of years, not least in relation to the arrest of the hon. Member for Ashford (Damian Green). The hon. Member for Harwich and North Essex is right in one sense. However, I have presumed—this is the advice that I had when I sat on the Government Benches as Deputy Leader of the House—that parliamentary privilege covers proceedings in Parliament and the whole of the Standing Orders of this House, because that how this House chooses to proceed. I think that there is greater security in the Standing Orders of the House.

Another issue is how we ensure that the Speaker is not dragged into a partisan contest, particularly at a moment of great political drama. As I said in an earlier debate, my concern is that if it is left for the Speaker to have to determine all these elements, the Speaker’s impartiality is compromised.

Another strange element of the Bill is the provision that says that before the Speaker issues his certificate, he shall consult the Deputy Speakers. That mirrors the provision in the 1911 Act whereby the Speaker, before issuing his certificate on a money Bill, has to consult two members of the Panel of Chairs. What happens if all the Deputy Speakers disagree with issuing the certificate? Why should the Speaker have to consult? One presumes that it is simply a matter of fact, although I suppose we all know that facts are rarely clearly delineated and are rather more subjective than most people would want to admit. The point is, however, that this puts the Speaker and potentially the House in peril, because people may want to contest any one of the various elements of the Speaker’s decision. One of the matters that would almost certainly arise if there were any contest as to whether the certificate was being rightly issued is what the Deputy Speakers had said. That is an unfortunate direction for us to take.

We have tabled an amendment, on which I hope to divide the Committee, on the timing of when the Speaker issues the certificate. At the moment, the Bill makes no provision whatsoever on when the Speaker’s certificate should be issued. One therefore presumes that it could be a month, two months or several months after the passage of two weeks. Let us say, for instance, that after a motion of no confidence has been carried, the Government try to reform themselves with a different concatenation of political parties and do not manage to secure a new motion of confidence, but there are still patently ongoing negotiations that are nearing their closing phase. Would it then be all right for the Speaker not to issue a certificate at that point but to wait until such time that another Government had been formed? The difficulty is that if the Speaker chose not to do so, who is to gainsay the Speaker? There is no provision in the Bill for what would happen if the Speaker has not done what the Bill requires.

For all those reasons, I believe that this element of the Bill is flawed. I also believe that certain elements should not be in statute but should be in Standing Orders in order to provide greater certainty for the House by taking them within the concept of proceedings of this House. Above all, I want to ensure that there is no uncertainty about the specific provision as to when the Speaker has to act and when the Speaker may act.

[Jesse Norman]

I wish to speak in favour of the amendment. First, may I congratulate my hon. Friend and neighbour the Minister on the very calm and effective way in which he has steered this legislation through the House?

None the less, it seems to me that a basic issue with the legislation remains unresolved. It has been described in this House as a matter of parliamentary privilege, but in fact it concerns the fundamental principle of parliamentary sovereignty. One thinks of the magisterial words of A.V. Dicey:

“The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined”—

by which he means the King or Queen in Parliament, rather than just Parliament itself—

“has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

That is the cardinal principle at issue today. It is worth saying that our parliamentary sovereignty remains intact in principle. It remains open to this House to repeal, if it so wished, the Act of Settlement 1701 by simple majority. The sovereignty of Parliament can thus be deliberately limited in its effects by this House—for example, by treaty—but it should not be limited by accident, by inadvertence or by over-confidence. There is a risk—a small risk—that this will happen under these provisions.

The Clerk of the House has advised in writing and in testimony that to include parliamentary voting procedure in statute would risk judicial scrutiny of the proceedings of this House, and possible legal challenge. It is important to note that this is not merely the view of the Clerk of the House, but also the view of Speaker’s Counsel, and it has legal authority behind it. That is simply because the functions described under the clause are statutory functions, and it would therefore be for the courts to determine whether those functions are lawfully exercised. That is, of course, advice rendered to the House, not to the Government.

14:30

This issue was rightly taken up by the Political and Constitutional Reform Committee in its report on the Bill. In response, the Government relied on expert witnesses to show that the Bill would avoid unwarranted legal challenge. As has been discussed, the Clerk recommended a way past the problem, which was that the procedure should be written into Standing Orders, but that was rejected by the Government. In my judgment, it is perfectly legitimate for the Government, after due consideration and on legal advice, to insist on their preferred approach of including the relevant procedures in the legislation, rather than in Standing Orders. Nevertheless, we are discussing a separate issue—related, but separate.

I believe that the Government would be well advised to accept the amendment for three reasons. First, as with all legal issues, this issue is not absolutely clear; it does not admit of certainty. The Government have relied on expert advice, but when Dawn Oliver and Anthony Bradley gave testimony to the Political and Constitutional Reform Committee, both experts acknowledged the small but clear risk of judicial challenge. They stated that precedent and statute are being relied on that may themselves require new legislative support. As has been noted today, that risk would be magnified by the heat and time pressure of an election.

I would like to correct something that I said earlier to the Committee with reference to Harold Lever, by quoting from the evidence of the Clerk of the House before the Political and Constitutional Reform Committee:

“I won’t bore the Committee with too many precedents, but I couldn’t resist this one. This is from 1974 and it’s to do with the passage of the Trade Union and Labour Relations Bill. I will read a very short extract from the Journal of that year. ‘Mr Harold Lever, Member for Manchester Central, acquainted the House, That in the Divisions on Amendments…to the Trade Union and Labour Relations Bill…he was recorded as having voted with the Noes, but he had to inform the House that he was not within the Precincts of the House at the time of those Divisions and that in consequence his vote ought not to have been so recorded.’”

The Clerk continued:

“In this case, when Mr Lever came to the House and acquainted the House about his absence, the whole procedure was declared null and void, including the Third Reading of the Bill. The Bill had to be called back from the House of Lords and the whole process had to happen again.”

He concluded:

“I don’t think I need labour the point of what this would mean in terms of a no confidence vote.”

Secondly, I think that the Government should accept the amendment because there is a clear trend of more public decisions falling under the scrutiny of the courts. I do not think that that is currently happening in domestic law, and in my view fears over judicial activism are misplaced. Nevertheless, we now have an independent Supreme Court that might not always exercise the restraint and care that has been shown by the present generation of judges in acknowledging and preserving the principle of parliamentary sovereignty.

The European Courts are taking a greater interest in domestic matters. The European Court of Human Rights has heard at least one case that the British courts would not consider on the grounds that it fell under parliamentary jurisdiction. European judges have expressed concern over the lack of remedies against the exercise of parliamentary privilege.

[Mr Jenkin]

My hon. Friend is making an extremely important point about the European Court of Human Rights. As soon as something gets into the Court, it respects no immunities whatsoever—nor does the European Court of Justice, but that is not adverted to in this case. Once a case is in that system, we do not know where it will lead. The European Court of Human Rights certainly would not respect the limitations of the 1689 Act.

[Jesse Norman]

I do not wish to comment on the procedure or intention of the European Courts, but I note merely that it is true historically that their scrutiny has extended itself over time. It is noted less than it should be that European judges have expressed concern about the exercise of parliamentary privilege and about the lack of remedies that people possess against its exercise.

The final reason why the Government should look again at the amendment is that the consequences of a mistake could be momentous. In the short term, a dissolution of Parliament and thereby an election could hang on it. In the longer term, there could be wider political and constitutional implications of judicial scrutiny of our power.

The amendment is simply worded, it offers an additional layer of protection for Parliament against a serious threat, and it does so at little or no additional cost. I urge the Minister to give it serious consideration.

[Tristram Hunt]

I, too, shall speak to amendment 6, which would take us some way in the direction in which we should be heading to protect this place from the actions of the courts.

Every day, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, we see growing evidence of interference by and elements of activism in the courts. We now have the Supreme Court in Parliament square, and large buildings tend to have large consequences. The emeritus professor of public administration at University college London, Professor Gavin Drewry, has recorded a major shift towards cases of public law, with some high-profile cases having a constitutional air:

“The establishment of the Supreme Court is an important constitutional landmark, and it would be surprising if the Court itself were to stand completely aside from the ongoing process of constitutional development.”

There is a strong sense of certainty that the Supreme Court will be involved.

It is apposite to be discussing this Bill after this morning’s judgment in the case of three former Members of this House, Morley, Chaytor and Devine, and also a peer, against their claim of parliamentary privilege. In his summation, Lord Phillips noted that

“extensive inroads have been made into areas that previously fell within the exclusive cognisance of Parliament.”

His statement should be of major concern to parliamentarians when considering the Bill, and in particular to Ministers, who I hope have read and digested the judgment and are coming to sensible conclusions about it.

If I may, I shall quote Lord Phillips at greater length:

“Where a statute does not specifically address matters that are subject to privilege, it is in theory necessary as a matter of statutory interpretation to decide a number of overlapping questions. Does the statute apply within the precincts of the Palace of Westminster? If it does, does it apply in areas that were previously within the exclusive cognisance of Parliament? If so, does the statute override the privilege imposed by article 9? In practice there are not many examples of these questions being considered, either within Parliament or by the courts. If Parliament accepts that a statute applies within an area that previously fell within its exclusive cognisance, then Parliament will, in effect, have waived any claim to privilege.”

Those are damaging and dangerous comments, which have wide repercussions.

Lord Phillips argues that the ultimate judgment of such matters rests with the courts. He quotes approvingly a letter written on 4 March 2010 by the Clerk of the Parliaments to the solicitor acting for Lord Hanningfield which had been approved by the Committee for Privileges:

“Article 9 limits the application of parliamentary privilege to ‘proceedings in Parliament.’ The decision as to what constitutes a ‘proceeding in Parliament’, and therefore what is or is not admissible as evidence, is ultimately a matter for the court, not the House.”

We should consider that evidence and the actions of a growing number of judges in considering the Bill.

[Mr Jenkin]

Bluntly, what the hon. Gentleman is averting to is a power struggle. The question is whether the House will stand up for its immunities or give them up. The Bill is an indication that we want to give them up.

[Tristram Hunt]

I agree with the hon. Gentleman and with the fundamental basis of his analysis, which is that the constitutional reform programme is driven by the immediate necessities of the Government in the context of this Parliament. We are making major decisions that will have wide ramifications in the functioning of the constitution of the United Kingdom, based on a political programme and timetable. That is never the best way in which to develop deep consensus thinking about the constitution.

I would finally raise a point that the Clerk of the House has also raised. As he put it in a note to the Committee in the other place,

“given that a draft Parliamentary Privileges Bill has now been announced, why deal in advance and separately with a matter affecting the proceedings of the House of Commons in legislation”,

if it is not for the specific political purposes of the current Government?

[Mr Shepherd]

I am more and more puzzled about the Bill as we go on, but there are two propositions in this group of amendments. I support amendment 6, in the name of my hon. Friend the Member for Stone (Mr Cash), and I am grateful for the important contribution of my hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman). Indeed, I was elated at the time of the election to hear that Jesse Norman had been elected to the House. I spent six months seeking out that fantastic opera singer—I got the wrong individual, as you will appreciate, Ms Primarolo, and I am very grateful to have encountered my hon. Friend on the Floor of the Committee.

[Jesse Norman]

rose—

[Chris Bryant]

He wants to sing. Sing for Britain.

[Jesse Norman]

No. Hon. Members will be pleased to hear that I do not propose to sing, but I am pleased to report that I have managed to overcome the quadruple handicaps of being tall, white, English and male.

[Mr Shepherd]

And formidable handicaps they often are.

The endeavour of my hon. Friend the Member for Stone and those who support the amendment was to provide some form of belt-and-braces approach. None of us is confident that it can work, because the aspirations and ambitions of several of our lords justices have given one an uncertainty as to where they are heading in the rewriting of the constitution. I am also mindful of the European Court of Human Rights. We have an inferior court that we call a Supreme Court and a superior court that we call a court of human rights, and on top of all that we have another court called the European Court of Justice. Somewhere in there I can see a demented Prime Minister making an application for unfair dismissal as a result of a vote to every one of those courts in turn, while we watch on, as though it were a Gilbert and Sullivan pantomime. I shall support the amendment.

Similarly, I will support amendment 23. The matter has to be determined quickly and appropriately, so I shall not waste the House’s time having indicated the actions that I will take.

[Mark Durkan]

Like the hon. Member for Aldridge-Brownhills (Mr Shepherd), I shall speak in support of amendments 6 and 23, which are both attempts to earth the Bill against some of the dangerous shocks that could be created for the House in the future. To make some of my points, I will have to refer to what the Minister said about the previous group of amendments.

In the debate on the previous group, the Minister said that he could think of no circumstances in which a debate on a motion of no confidence would take place without the House knowing that it was a motion of no confidence, even though the Bill requires the Speaker to issue a certificate only after a period of 14 days has elapsed—it does not specify how long after. That creates a situation that we all have to consider before we even go into the danger of what will happen when the matter goes to the courts. Let us first look at the difficulties and controversies that will be created in this House.

If a motion of no confidence can be played like a wild joker, and any motion can be converted into one, then whenever there is a controversial issue or one involving Opposition or rebel tactics, the Speaker will be asked early in a debate, “Will you signal whether you would be minded to say that this debate is certifiable? Will you declare that we are going through a potentially certifiable chain of political and constitutional events?” Of course, the Speaker might wish to say, “You are trying to draw me into a matter of controversy”, because he might not be privy to what Whips are saying to Members about the significance of a particular motion.

14:45

What would happen if the Speaker said that a motion was not certifiable, and the Prime Minister subsequently decided that the nature, colour and content of the debate meant that it had been a motion of no confidence in him rather than in the Government, as in the example of the 1940 debate mentioned by the hon. Member for Aldridge-Brownhills? Somebody could announce from the Dispatch Box, on either the Opposition or Government side of the House, that as far as they were concerned, there had been a motion of no confidence. Would that mean that the Speaker’s ruling was somehow removed or overturned? If anybody wanted to contest in court either the issuing of a certificate or the failure to issue one, that sequence of events involving the Speaker and Front Benchers could become relevant. It could become a matter of contest and controversy being presented in court.

Even short of the matter getting to the courts, we are already potentially compromising the Speaker. He will constantly be hostage to inquiries as to whether a particular motion could be treated as a motion of no confidence, and his ruling could at any time be upstaged from the Treasury Bench.

[Mr Charles Walker (Broxbourne) (Con)]

My children once asked me, “What does a heffalump look like?” I said, “You’ll know one when you see one.” Has that not been the case with confidence motions throughout history? The House has known one when it has seen one, and we are in danger of over-complicating the process in the Bill.

[Mark Durkan]

I have a lot of sympathy with what the hon. Gentleman says, and that was why I indicated my support for earlier amendments that would have narrowed the ambiguity and reduced the possibility of political and procedural chicanery, with which the Bill is riddled.

[Chris Bryant]

Will my hon. Friend point out to the hon. Member for Broxbourne (Mr Walker) that there is a picture of the heffalump in several of A. A. Milne’s books?

[Mark Durkan]

I accept that point fully.

[Mr Walker]

I shall admonish my children for not being better read.

[Mark Durkan]

I will acknowledge these interventions no further.

To return to the matter at hand, let us be clear that the Bill’s provisions are open to all sorts of contests, questions and controversies. As I have said, I believe that the Minister was wrong to say that the House will know in all circumstances when something is a vote of confidence. If he wanted to make that incontrovertibly so, he would need to provide either in Standing Orders or in the Bill for a formal indication by the Speaker that a certificate could be issued prior to the period set out in the Bill, which starts 14 days after a motion. That, in turn, would bring the Speaker into areas of political controversy and intervention. Amendment 6 is clearly aimed at ensuring that those difficulties do not make the issuing of a certificate, or possibly the failure to issue one, a matter of controversy that can be brought to the courts.

In discussing previous amendments, Members alluded to affairs currently in Oireachtas Éireann and in the Dail. Those affairs may be relevant this week, because an opposition party there has indicated that it might take to the courts the question whether, under the constitution, the agreement that the Irish Government have entered into has to be subject to a vote of the Dail. Let us not rule out circumstances in which a party here, possibly a party of Opposition, could feel that the Speaker had wrongly declined to issue a certificate, or that the Government were using all sorts of procedural chicanery to prevent certificates being issued and to reset the clock. That party might then feel obliged to take the matter to court if it felt that it faced dead ends and chicanery in Parliament. That is exactly the situation that was threatened in Dublin this week given what the Irish Labour party justice spokesman said. Let us not join the Minister in completely dismissing all such possibilities.

I do not want to move from Dublin to Northern Ireland affairs, but I have some experience of what happens in practice. I was involved in negotiating and implementing the Good Friday agreement, including as a Minister and Deputy First Minister. Ministers told this House that procedures would follow their own course and that political matters would not end up in the courts, but then I found that my election as Deputy First Minister was taken to court—when I was jointly elected with David Trimble—because all sorts of rules were bent and twisted and the clock was reset by Secretaries of State and others.

The Northern Ireland Act 1998 set a clear six-week period, but Secretaries of State discovered that if they suspended things for 24 hours, there would be a new six-week period. Whenever there is a facility to contrive a completely new situation and dispose of a statutory deadline, it is used—whenever Ministers are told that in case of emergency they can smash the glass, they do so. Completely contrary to the assurances and explanations given to the House when we debated the 1998 Act, a number of Secretaries of State found themselves doing that. In addition, Assembly Members redesignated to pass particular votes, even though they said that they would not, and so on.

In the context of the Bill, people have said that a Government would never put themselves in the embarrassing position of activating a vote of no confidence in themselves or cutting corners, ignoring rules or resetting clocks so that they can bypass dates and deadlines, but the Northern Ireland experience shows that that is not so. The exigencies of the moment, and the demands for stability and good governance, can be used as circumstantial excuses. Let us not pretend otherwise. If we are trying to provide for fixed-term Parliaments with clear, fixed and guaranteed arrangements, we must go further than the Bill does. It leaves too much power in the hands of the Prime Minister and the Executive when there has been a motion of no confidence, and in respect of their influence over the decision of whether a motion is one of no confidence or otherwise.

I therefore ask the Minister to acknowledge that there are shortcomings in the Bill. Some of the amendments have their own shortcomings, but they do not diminish the serious problems with the Bill. If he will not accept amendments 6 and 23, will he agree to work in another place and in the House at another time to make his own amendments, so that the Bill does not create those difficulties and controversies?

Under the Bill, the Speaker could be the subject of controversy. What if there are differences between the Speaker and Deputy Speakers on the question whether to indicate in advance that a motion is certifiable? More importantly, as the hon. Member for Harwich and North Essex (Mr Jenkin) said, I believe that such matters could find themselves before a court, not only because somebody might want to contest the fact or content of a certificate, but more importantly because people might want to contest the failure to issue a certificate or the fairly questionable proceedings in advance of it. We do not want the Speaker of the House of Commons to be caught in the same position as Scottish football referees. They have been accused of taking and changing decisions in relation to subsequent arguments and events. Let us protect the office of the Speaker and this House.

[Mr Robert Buckland (South Swindon) (Con)]

I rise to make a brief contribution. I have listened with great interest to the debate and I await with even greater interest the Minister’s response to the very well advocated position on amendment 6, with which I have great sympathy.

It seems blindingly simple to me. Clause 2(3) stops at the words, “for all purposes.” The comparison with section 3 of the Parliament Act 1911 has been made, so why not include the extra words,

“and shall not be questioned in any court of law”?

The amendment proposes the use of the word “whatsoever”, which was no doubt an attempt by my hon. Friend the. Member for Stone (Mr Cash) to deal with the European question—that is perfectly legitimate and I understand entirely the reason for his wording—but the point is the same: if such a provision was good in 1911, why is it not good now? If anything, the balance between Parliament and the courts has deteriorated, as the hon. Member for Stoke-on-Trent Central (Tristram Hunt) eloquently outlined. The balance is now extremely fine, and it is in danger of being overturned in favour of judicial activism.

It may well be that reliance will be placed upon the residual powers of article 9 of the Bill of Rights, but as an Act of Parliament, that too is subject to judicial interpretation. Over the years, it has been interpreted in a variety of ways by the courts. Notably, it has been impliedly waived or restricted by this House. Section 13 of the Defamation Act 1996 is a good example of Parliament deciding, in effect, to allow its privilege to be qualified. I have strong views on the wisdom of that legislation—it was foolish and has led to unintended consequences, which are at the heart of this debate.

No Member of Parliament wants a diminution of its authority or power. This is an elected Chamber and we represent the people of this country. Sovereignty means just that. It is right that all hon. Members worry—even if it is sounds like lawyers’ caution—about any further unintended diminution of our authority. That is why I support amendment 6. Why not change clause 2(3) to put things as far beyond doubt as possible, mirroring what legislators did in 1911, to ensure that the spectre of the judiciary questioning and second-guessing the proceedings of the House does not become a reality?

[Mr Cox]

I had not intended to speak, and I shall be extremely brief. Most of my remarks will be addressed to the Minister in the hope that he can provide the clarification in substance to the questions asked by my hon. Friends and Opposition Members, which I should like to reinforce.

My first question is precisely that which my hon. Friend the Member for South Swindon (Mr Buckland) just asked. Why not add the proposed words? If clause 2(3) is intended to be an instruction to the courts that a certificate shall not be challenged, on the face of it there could be no real reason, unless the Minister has thought of something that others have not thought of or been advised otherwise, why the injunction of my hon. Friend the Member for Stone (Mr Cash), which is more expressive, explicit and detailed, should not be added. Will the Minister elucidate the purpose of stopping short at the word “purposes” and not going on to be as explicit as possible?

I ask that because historically, ouster clauses in administrative law have not been conspicuously successful. The courts have not paid very much attention to interpreting their duty to examine such issues, and often even where the ouster clause has been passed. [Interruption.] I see from the sedentary reaction of my hon. Friend the Member for Somerton and Frome (Mr Heath)—the Deputy Leader of the House—that the reason may be that such provisions are so pointless that there is no point in going any further. If that is the reason, it would be helpful if the Government made that clear, so that Members could consider that. I have to tell him that I do not consider the provision to be pointless—I would not imagine that the Government would do anything that was pointless in drafting the legislation.

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

indicated assent.

[Mr Cox]

I see my hon. Friend nodding sagely. That provision therefore must have a function. If that function can be increased in its effect and efficacy by adding the proposed words, why not incorporate them?

15:00

That brings me to my second point. If it is necessary under clause 3(3) to try to instruct the courts that the certificate should not be justiciable—that it should not be considered—that must imply, as does my hon. Friend’s reaction from the Front Bench, that the Government are aware that the courts may well, even in remote and possibly extreme circumstances, become ensnared in the examination of these issues. One can see considerable skill and intelligence at work in the drafting of the Bill. One sees that it is intended not to be tempting to the courts. If we codify too much in statute, the danger is that the courts would be drawn into examining whether the preconditions for a motion of confidence had been met, whether the definitions were properly complied with and so on. What the legislation seems to be doing—if this is the intention, it is a laudable one—is enacting, in broad outline, so as to make it clear to the courts, that the critical questions of definition and discretion are still for the House and the proper authorities of the House. It is a statute that is intended to preserve a certain flexibility and suppleness so that the courts are not drawn into examining such issues, whereas they would be if we laid down too precise a definition of the concepts that they involve.

I appreciate that, and I see the point of it. It no doubt forms part of the Government’s confidence that the courts will not ordinarily enter into that territory. However, the mere presence of that ouster clause suggests that the Government are aware that in some circumstances they might. As the Government have indicated—albeit via a sedentary reaction—they are plainly aware that ouster clauses do not always work. That suggests to me that the Government are content—or at least have made a strategic decision—that in certain circumstances the judicial authorities may come to interpret and consider this legislation. I accept that that is highly unlikely in the ordinary case, given the amount of discretion, the amount of territory left to the Speaker and the ill-defined nature of many of the concepts. It would be a bold court indeed that entered into a discussion of such issues and allowed them to become the subject of a judicial review.

[Mr Jenkin]

We all know that we are talking about heated and potentially controversial circumstances. If there was a raging controversy about alleged malpractice in our proceedings or surrounding them, and if public opinion was strongly supportive of one view or the other, there would be intense pressure on a court to intervene. Does my hon. and learned Friend not think it would be difficult for a court not to intervene under such circumstances?

[Mr Cox]

No, I do not think that. Intense pressure is precisely what an independent judiciary is set up to resist. One would expect and hope for that from a senior judge. We are fortunate in the judiciary we have in this country. I hope that hon. Members will reflect carefully on some of the language that we have used in this debate today. It is not the case that the judiciary have an appetite to assume the powers of this House. Indeed, in my experience the preponderance in the judiciary is to be careful and scrupulous in the way they observe the parameters of judicial power.

The problem is—if I can extend this parenthesis as briefly as I may—that we have invited the judiciary into the territory time after time, since the European Communities Act 1972, which fundamentally altered the constitutional arrangements in this country. It essentially meant that there was a higher constitutional court, namely the European Court of Justice—we already have it—which presupposes and believes it is capable of trumping domestic law. That ultimately led to a decision in a case called Factortame, in which an Act of Parliament was set aside by the House of Lords, on the basis of the seniority—or superiority—of the European Union’s law. Then we had the Human Rights Act 1998, which preserves—or attempts to preserve—a careful balance. Nevertheless, it invites the courts into consideration of the policies and legislative objectives—almost on the basis of their merits—that this House has always considered to be its prerogative and to fall within its exclusive sphere. The courts are careful, but they themselves acknowledge that the Human Rights Act has invited them further into that territory.

[Chris Bryant]

The hon. and learned Gentleman is making an important contribution, and he is right about the reluctance of the courts, for the most part, to intervene and tread on our toes, as it were. However, the truth is that those elements of parliamentary privilege that attach because of not wishing to interfere with proceedings in Parliament get very fuzzy at the edges. Indeed, there are areas where others want the courts to express a view. My anxiety is not that there would be a challenge when the Speaker had issued a certificate, but that a challenge would be far more likely when the Speaker had decided not to do so.

[Mr Cox]

I have heard that observation made, and I hope that the Minister will be able to address it. I do not feel quite as concerned as hon. Members who have expressed their views on that point, and I will say why. A court would very soon see through an argument that went: “The Speaker has not issued a certificate in circumstances where we”—the party bringing the application to the court—“think he should have done.” The reason is that if a certificate is conclusive for all purposes, so must the absence of a certificate be. I do not believe for a moment that a court would see the matter any other way when the Speaker had chosen not to make a certificate. Otherwise, we would have to have a provision in the Bill saying that if the Speaker chooses not to certify, that should not be challenged either. It must be implied that if a Speaker made a deliberate and conscious choice not to certify, the absence of the certificate—that choice—must equally be conclusive, and I think that most courts would see it that way. One could argue that that should be explicit in the Bill, but for my purposes, I would not have thought a court would find impressive an argument that said that a Speaker who decided not to certify could be judicially reviewed, whereas if he had certified—let us say, in the negative—he could not be. That would be pointless.

[Mr George Howarth (Knowsley) (Lab)]

The issuing or non-issuing of a certificate is a slightly false comparison. The issuing of a certificate would result in action—providing that it was not challenged successfully in a court—whereas the non-issuing of a certificate would, I presume, simply preserve the status quo.

[Mr Cox]

What is the point of a certificate? It is not going to be challenged in a court, because the Government and this House will instruct the courts not to look at it. The point of the certificate is merely to express in writing the Speaker’s view that something had been a motion of confidence. If he does not issue a certificate, it is plainly the case that he has reached the view that it is not a motion of confidence. However, it is highly unlikely that the mere fact that a Speaker had produced that view but not committed it to a piece of paper would induce the courts to enter that territory and issue what used to be called a writ of mandamus—it is now called a mandatory order—to force him to do so. I find that improbable and implausible. I hope that the Minister will draw some comfort from that, but he should not draw complete comfort from it, because the mere fact that we are considering whether the courts would or would not be able to enter this territory will induce litigants, lobby groups and political groups to bring these very applications before the courts to test out the territory. It will not be long before the courts start to consider the extent to which the Bill allows them in, and the extent to which it does not. That is where the hon. Gentleman of whose constituency I am shamefully ignorant—

[Chris Bryant]

Stoke-on-Trent.

[Mr Cox]

The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted the recent judgment of Lord Phillips, and that is important because Lord Phillips made it plain that the courts will reserve the power to define the parameters of parliamentary prerogative and privilege. If the Bill remains enacted in the law of this country for a long period, which I rather doubt, there will inevitably be a point at which the courts are invited in and at which they will start to examine the extent to which they can and cannot become involved. Their view might not entirely coincide with that of the Government. For example, the question of whether a certificate is valid might arise. The Bill states:

“A certificate under this section is conclusive for all purposes.”

A court might well feel entitled to consider whether, as a matter of law, it is in fact a certificate. In the past, that is the way in which ouster clauses have been outflanked.

I am asking the Minister to consider this matter, and I am asking from the heart. I have noticed that, from time to time, he has found many of the interventions by Members not altogether to his taste. Perhaps the smile of the Cheshire cat is always seated on his face during these debates simply because of his serene command of his brief and his sublime confidence in the merits of this legislation. However, I ask him to address the consciences of many of the Members on his own side who have deep and sincere concerns. My hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd) is among them, and when he rises to speak on matters of the constitution, he must always be listened to with respect. He may not be a lawyer but, by Jove, his instincts on the constitution are proud and honoured by a long tradition in this House. I pay tribute to him for standing up with such integrity and for such a long time for the traditional view of the constitution in this House. It is not a bad thing to stand up for tradition. It is not wrong to honour the way in which our forefathers constructed the constitution, the wisdom of it and the value that it has conveyed down the ages to the inhabitants of this country.

Will the Minister address this matter? I hope that I have expressed myself modestly by saying that I do not endorse or adopt many of the more exaggerated flights of fantasy that have occasionally been bandied about the Floor of the House. However, it surely cannot be denied that there is some risk and some legitimate cause for concern, when this matter seems to prey on the minds and the consciences of so many Members of this House who are motivated by entirely sincere reasons, rather than merely by the need to hear the sound of their own voice. I ask the Minister to address those concerns with the sincerity with which they have been expressed.

[Mr Harper]

I am grateful for those kind words from my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox).

When Mr Hoyle was in the Chair last week, he made it clear that he did not intend to have a stand part debate on this clause as we will have touched on all parts of it when debating the amendments. Before I move on to considering the amendments, it is worth putting into context the parts of the clause about which Members are concerned.

I think I am right in saying that the concerns expressed about privilege and about whether the courts should intervene have almost exclusively related to clause 2(2), which deals with motions of confidence. Interestingly, the Clerk of the House, in his evidence and in conversations with me, was not concerned about subsection (2), given that it uses a perfectly well-precedented certification procedure. His concern—I think I explain it accurately—was with subsection (1), which covers the certification of an early general election, rather than with the certification procedure in principle. His concern was with the nature of the procedure that had to take place before the Speaker certified. In other words, not only would the House have had to pass a motion on a Division, but a particular number of Members would have had to vote.

15:16

Members expressed concern about motions of no confidence and the extent to which courts would want to interfere in them, but the Clerk of the House was exclusively concerned about clause 2(1), which deals with the House voting on a motion for an early general election, because of the two-thirds majority.

[Mr Jenkin]

At the risk of repeating what I have already read out from the Speaker’s memorandum, I want to ensure that we are not speaking at cross-purposes. In paragraph 16 of the Committee’s report, the Clerk makes it very clear, in discussing clause 2(2), that

“The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.”

I do not think that the Clerk could have been clearer: it is subsection (2) that he is concerned about.

[Mr Harper]

I had a conversation with the Clerk about the certification, with the majority being specified. The Government decided to place the provisions on the early general election in statute rather than relying on Standing Orders because, as I stated in the memorandum I placed in the Library on 13 September, we cannot achieve the policy objective by relying on Standing Orders, which can be changed by a simple majority—

[Mr Jenkin]

That is not true.

[Mr Harper]

Let me just finish this point, then I will take an intervention from my hon. Friend.

Standing Orders can be changed by a simple majority. The Government’s view was that, if that was the case, the power to dissolve Parliament early would effectively be left with the Prime Minister.

[Mr Jenkin]

I beg to suggest that, if the Minister had listened carefully to what I said earlier, he would have heard me reading from a letter I had received from Mr Robert Rogers, who made it absolutely clear that it is possible to entrench a Standing Order of this House with its own super-majority. I am astonished that the Government do not understand that, and that the whole basis of this Bill seems to rest once more on the denial of advice given by the Clerks of the House.

[Mr Harper]

My hon. Friend cited in the letter from Robert Rogers a reference to existing Standing Orders, which require a particular majority for an event to take place. I think he mentioned the requirement for 100 Members to vote for a closure motion. There is no precedent for a Standing Order, passed by a simple majority, to entrench itself and require that it cannot be changed, other than by a vote of this House on a different majority. The Government know of no precedent for that, and no Member has given an example of one. If a Standing Order provided that an early general election could be held only after a vote with the specified majority, and if that Standing Order could be changed by a simple majority vote in the House, it would be open to the governing party, at the behest of the Prime Minister, to change the Standing Order and to trigger an early election based on the whim of the Executive. That is exactly what we are trying to remove under the Bill. The Government believe that if the policy objective is to be achieved, the procedure must be specified in statute.

[Mr Shepherd]

If that is so—and I accept it as such—why does it not apply to the statute itself?

[Mr Harper]

I think we have touched on that before. Once the Bill becomes an Act of Parliament, it cannot be changed purely by a majority vote in the House of Commons. The decision would have to be made by Parliament, which would also engage the other place, in which the Government do not have a majority. Even after—[Interruption.] I anticipated that reaction. Even after the appointment of the new list of working peers, the governing parties together will have only 40% of the peers in the upper House; 60% will be Labour peers, Cross Benchers or Lords Spiritual. The fact that this will be an Act of Parliament makes it impossible for a majority vote of a governing party to bring about an early general election, which is our policy objective.

[Chris Bryant]

The Minister is right in saying that the main difference is that the matter would have to be dealt with in the second Chamber. As I understand it, however, the coalition agreement states clearly that the Government’s aspiration is to create enough peers to meet the proportions formed by each of the parties in the general election. That would provide a majority of 56%—quite apart from the fact that, as far as I can see, virtually every remaining Liberal Democrat Member in the country will be a member of the Second Chamber.

[Mr Harper]

I will not dwell on this issue at length, Mr Evans, because if I did so you would rule me out of order, but the coalition agreement does not say that. It says that we want to make the upper House more representative of the result in the general election, not exactly in line with it. The hon. Gentleman simply is not right.

The hon. Member for Stoke-on-Trent Central (Tristram Hunt) quoted from a judgment. I will not be drawn into the specifics of the Chaytor case—although the Supreme Court has given its judgment, there are ongoing criminal trials—but the flaw in the hon. Gentleman’s argument lies in the fact that the case concerns the administration of the expenses scheme. The House of Commons has never asserted exclusive cognisance of the expenses scheme. It has never said that the scheme, its administration and the matters that flow from it are parliamentary proceedings, which is why that is not a good example. Moreover, the Supreme Court’s judgment recognises the exclusive right of each House of Parliament to manage its own affairs without interference from the other, or from outside Parliament.

My hon. Friend the Member for Harwich and North Essex (Mr Jenkin) quoted the views of the Clerk of the House. If the Government were alone in their view and the Clerk’s views were shared by everyone else, my hon. Friend would have a stronger case. The Political and Constitutional Reform Committee and the Lords Constitution Committee have taken a great deal of evidence, and the weight of independent expert evidence has supported the Government’s view. For example, Professor Robert Blackburn of King’s college London said—and I think that this is in line with the comments of my hon. and learned Friend the Member for Torridge and West Devon—

“In my view, the government's Fixed-Term Parliaments Bill has been technically well-drafted by the Cabinet Office’s parliamentary counsel, particularly in avoiding judicial review of its provisions on early elections by way of Speaker’s certificates”.

The hon. Member for Nottingham North (Mr Allen), the Chairman of the Political and Constitutional Reform Committee, said:

“In the very limited time that we had to look at this matter, the Clerk was the only person to raise this question, and the academics who have been referred to—Professor Hazell, Professor Blackburn and others—completely disagreed with the view put forward by the Clerk.”—[Official Report, 13 September 2010; Vol. 515, c. 632-3.]

[Tristram Hunt]

The point was that we did not have enough time to hear other voices that might have agreed with the Clerk of the House, owing to our having to rush our consideration of the Bill and to the speed with which the Government are pushing it through.

[Mr Harper]

That was also the experience of the Lords Constitution Committee—and, in fact, we have not been rushing the consideration of this Bill. We published it in July, Second Reading was in September, and this is the third day of the Committee stage, in December. We are hardly rushing forward at an enormously swift pace. Months have elapsed. I feel sure that if hundreds of constitutional lawyers and academics agreed with the Clerk and disagreed with the Government, we would have heard from them.

[Mr Andrew Turner (Isle of Wight) (Con)]

Does my hon. Friend understand that the Committee had to rush through its work on this Bill and the Parliamentary Voting System and Constituencies Bill at the same time?

[Mr Harper]

I am prepared to accept that consideration of the Parliamentary Voting System and Constituencies Bill has been proceeding faster than consideration of this Bill, but I cannot accept that this Bill is being considered at a great pace. It was published five months ago, we have reached only the third day of the Committee stage, and the Report stage is still to come. I believe that we have been proceeding at a sensible pace. Indeed, today’s proceedings were added when the Government realised that Members wished to engage in the debate at greater length.

[Chris Bryant]

The Minister seems to suggest that all the evidence apart from that of the Clerk of the House falls into the other camp. The Committee listened to the various witnesses and reached a rather different conclusion—that the purpose of the Bill needed to be achieved without the courts being invited to question aspects of the House’s own procedures or the actions of the Speaker—and urged us to move in a rather different direction from the one advocated by the Government.

[Mr Harper]

The Committee was quite right. I agree that we need to ensure that the courts do not question those matters. In a moment I will deal with the amendments and the Government’s reason for believing that the language we have used about the well-precedented use of Speaker’s certificates prevents the courts from questioning the Act.

My hon. Friend the Member for Harwich and North Essex observed that judges were not more interventionist. I believe there is evidence that there has been more judicial activism in judicial reviews of Executive decisions, but as far as I am aware there is no evidence that the courts have become more interventionist in challenging parliamentary proceedings. Executive decisions and decisions of Parliament are quite different from each other. Although the Supreme Court has a new name, it has no greater powers than the judicial Committee of the House of Lords that it replaced. I do not think that my hon. Friend’s concerns are well judged.

My hon. Friend also referred to the European Court of Justice and the European Court of Human Rights. The European Court of Justice can deal with matters related to European Union law; nothing in the Bill would engage it. Similarly, the functions of the Speaker under the Bill do not engage any of the rights conferred by the European Court of Human Rights. I think it was only last week that the Joint Committee on Human Rights agreed with that when it said that the Bill’s provisions did not need to be brought to the attention of either House on human rights grounds.

My hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman)—who is not in the Chamber, as he has had to fulfil a long-standing and important engagement to attend a meeting elsewhere in the House—expressed concern about the European Court of Human Rights. In fact, it has shown the utmost respect for parliamentary privilege. In a 2003 case, A. v. United Kingdom, it was specifically held that article 9 of the Bill of Rights did not violate the convention by preventing an applicant from taking defamation proceedings against an MP for words said in parliamentary proceedings. The European Court of Human Rights strongly supported the contention that courts would not become involved in these matters.

I agree with my hon. and learned Friend the Member for Torridge and West Devon, who said that owing to the very nature of these events—the fact that they would be politically highly charged—judges would not be keen to rush in and engage in questions that are rightly to be resolved by political rather than legal means. I have heard no evidence, apart from assertion, that courts would do anything different.

[Mark Durkan]

I gave the example from 2001 when, on the third attempt, David Trimble and I were jointly elected as First and Deputy First Minister by the Northern Ireland Assembly. That was taken to the courts. Yes, the courts did not touch on issues connected with the Assembly’s standing orders, but they did entertain the suggestion that the Secretary of State had failed to use the power and duty, given to him under law, to set a date for an election if no First and Deputy First Minister have been elected after six weeks. The Secretary of State did not do so, claiming that because he had notice of the potential to elect us, which had been issued by the end day of the six-week period, he could interpret the deadline differently. The court did not throw out the case and the judges—competent, serious, senior judges—divided on the issue. In the light of that precedent, the assurance of the hon. and learned Member for Torridge and West Devon (Mr Cox) does not stand.

15:30

[Mr Harper]

The hon. Gentleman makes my point for me. He accurately sets out the fact that at issue was not a proceeding in Parliament—a decision of this House—but an executive decision by the Secretary of State. As I have said, there is lots of evidence that courts will challenge Ministers’ decisions, and one can argue about whether they will be right to do so; Ministers would probably argue they are not, but everyone else would probably argue that they are. The case the hon. Gentleman raises involved an executive decision; it was not a decision of this House or a proceeding in Parliament, and it is not protected under article 9.

[Mark Durkan]

But what we are talking about is related to the closest equivalent in the Northern Ireland Act 1998 of the certificate powers being given to the Secretary of State. Sections 31 and 32 of the 1998 Act provide for the early Dissolution of the Assembly and early elections. They are the exact same powers, except that in Northern Ireland the Secretary of State has the powers of an “over-Speaker”, rather than their being vested in the Presiding Officer. They are the equivalent powers, however.

[Mr Harper]

No, I think there is a rather crucial difference. The powers in that Act are given to a Minister—they are not proceedings in Parliament. That leads me nicely on to amendment 6—

[Chris Bryant]

rose—

[Mr Harper]

But the hon. Gentleman is keen to get in.

[Chris Bryant]

Sorry, but the Minister is using the phrase “proceedings in Parliament” as though it were a self-evidently clear concept, but a great deal of legislation and case law has analysed various different aspects of it and it is nowhere near as clear as he might presume.

[Mr Harper]

No, and that leads to where I was going, which was to turn to amendment 6 and to explain why we are using the language of the device of a Speaker’s certificate. There are precedents that have stood the test of time, which is why Professor Blackburn expressed the feeling in the quotation I read that parliamentary counsel had drafted the Bill well.

My hon. Friend the Member for Stone (Mr Cash) tabled amendment 6 and my hon. Friend the Member for Harwich and North Essex spoke to it. I can see why they would want to use the wording in the Parliament Act 1911, but the Bill says the Speaker’s certificate is “conclusive for all purposes” and the Government do not think inserting the words

“shall not be…questioned in any court of law”

adds anything. The 1911 wording has, indeed, stood the test of time, but it used the language of the early 20th century. Later legislation used different wording. The House of Lords Act 1999 used exactly the wording we have used, which provides that certificates of the Clerk of the Parliaments on questions of whether an hereditary peer is one of the excepted 92 hereditary peers are conclusive. The provisions have worked well in practice, whereas wording consistent with the Parliament Act 1911 could bring into question whether protections in more recent Acts were meant to be an inferior sort of protection. We think that would be undesirable.

Provided certificates are conclusive for all purposes, it is perfectly adequate to show that it is for the Speaker to decide whether the conditions for an early election have been satisfied, not for the courts or the Executive. The effect and the intention of the drafting are perfectly clear. Although the additional words in amendment 6 might appear attractive, they would not add anything to the protection in the Bill. There is no evidence or reason to think the courts would want to trespass on what would effectively be highly politicised issues or that they would not continue to regard matters relating to the internal operation of the House as “proceedings in Parliament”.

I should also like to deal with the wording in amendment 6 that seeks to prevent a Speaker’s certificate issued under clause 2 from being “presented” to a court. I can see why my hon. Friend the Member for Stone is trying to do that, but it seems to me that that takes a step backwards. Being able to present the certificate to the court is the simplest and easiest way of informing the court that the conditions for an early election exist and the Speaker has made the decision. That stops the court being tempted to dwell on proceedings in Parliament; it has a clear piece of paper that explains that the Speaker has made that determination and the court need go no further.

[Mr Cox]

Let us suppose that the Speaker issued a certificate that omitted one of the matters that the statute required him to certify. Would it not be open to a petitioner to argue in court that there had been a failure to comply with the conditions that made a certificate valid and that the court was entitled to examine whether it was a certificate before obeying the ouster that prevents it from challenging the certificate?

[Mr Harper]

My hon. and learned Friend makes a point that relates to the use of certificates, but what he describes would be perfectly true of the certificate that the Speaker issues on money Bills and the certification that he issues under the Parliament Act. Those are well precedented and have stood the test of time. The courts have been content to hold that the fact that the certificate has been issued by the Speaker is indeed conclusive for all purposes and they have not sought to challenge it.

[Mr Cox]

We are dealing with a fundamentally different sphere here. Whether or not a Bill is a money Bill is the kind of decision that is suitable only for a legislative Assembly, but on this matter the courts would regard themselves as guarding the right to an election, which is a fundamental right of the population of this country. If Parliament had prescribed that an election should take place and a certificate was defective because it did not stipulate one of the requisite terms, the courts may regard that as an area into which they ought to go to safeguard the right to an election.

[Mr Harper]

If a certificate was issued by the Speaker, we would be having an election, not stopping one taking place. I do not think that my hon. and learned Friend’s concern that the courts would hold that the population were being deprived of an election would apply. The language used in the Bill was chosen for exactly the reasons I have suggested. We have used well-precedented, tried and tested language; it has stood the test of time. It is perfectly true to say that people can make groundless applications to courts on all sorts of things, but courts quickly dismiss them and prevent them from proceeding further. We are confident that these proposals are robust and will not have the effect that hon. Members suggest.

In the few minutes remaining, I wish to discuss amendment 23, because the hon. Member for Rhondda (Chris Bryant) suggested that he wanted to ask you, Mr Evans, whether he could press it to a Division. The amendment proposes a 24-hour time limit for the issuing of the Speaker’s certificate. I can superficially see why that might be attractive, but it sets some conditions that might introduce elements casting doubt on the validity of the certificate if it were delayed, even if it were by only a few minutes, or if it were issued close to the time limit. Thus, the amendment would enable people to question the certificate. We should therefore rely on the standard practice, whereby the Speaker’s certificate is the conclusive provision.

Given what I have said, I hope that hon. Members will not seek to press their amendments to a Division and that we are able to proceed with the debate.

[Mr Jenkin]

I am most grateful, Mr Evans, for the opportunity to reply to the debate.

I regret that I feel compelled to press this matter to a vote, but I feel that the Minister’s response has been wholly unconvincing. We are faced with adamant and clear advice from the Clerk of the House that the Minister has chosen to dismiss as irrelevant. Let me remind the Committee what the Clerk said:

“The provisions of this subsection make the Speaker’s consideration of confidence motions and the House’s practices justiciable questions for determination by the ordinary courts.”

That includes

“what constitutes a confidence motion, the selection of amendments to such Motions and the consequences of their being carried”.

He goes on to say:

“As these would become justiciable questions, the courts could be drawn into matters of acute political controversy.”

The Minister has not responded with anything substantive to defeat that advice.

Moreover, the Minister has rested his justification for the Bill on the assertion that it would not be possible to write these provisions into the Standing Orders, which would be automatically immune. Let me read from the Clerk’s memorandum again. He said that

“a Standing Order regulating the matters in the Bill could provide for its staying in effect unless repealed by a specified majority”,

meaning that it could be entrenched,

“for example by…equal to or greater than two thirds of the number of seats in the House. Not only is the principle of specifying majorities already written into the Standing Orders of the House, but in the past the House has also required a relative majority for reaching decision.”

My hon. Friend the Minister also dismissed the comments that I read from Mr Robert Rogers, the Clerk Assistant and Director General, who made it clear that we can not only write into our Standing Orders provisions requiring super-majorities, but entrench a—[Interruption.] I am rather distressed that the Minister is not even listening to what I am saying. We can entrench a Standing Order with its own super-majority so that it could be removed only by a super-majority, if that is what the House chose to do. The whole basis of the Government’s advice remains contested by the Clerks. The basis of the Bill—that this has to be done through statute—also remains contested by the Clerks.

I doubt that we will win the vote in the Committee this afternoon, but the Minister has failed to give a full response or to acknowledge any of the points that have been made. His subsection refers to a Speaker’s “certificate under this section”, which is very unspecific. At least the amendment states

“Any certificate of the Speaker of the House of Commons given under this section shall be conclusive for all purposes”.

That word “any” and the reference to the Speaker make it clear that whatever the Speaker issues is uncontested, rather than leave it open to the courts to determine whether the certificate presented by the Speaker complies with the legislation. I am afraid that the Minister has not satisfied me and I do not think that he has satisfied a great many of my colleagues on the Government Benches or in the official Opposition. I want to press the amendment to a vote.

Question put, That the amendment be made.

The Committee proceeded to a Division.

[Tessa Munt (Wells) (LD)]

On a point of order, Mr Evans. At lunchtime today I was sitting in the Terrace cafeteria and, for the second time in a fortnight, I was unable to hear the Division bells at all. There was nothing to indicate that a vote was taking place. Can you facilitate Members’ ability to vote if they are sitting in that area, perhaps by asking the Badge Messengers to inform them that a vote is taking place while the problem is sorted out?

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

Thank you for that point of order. I must say that I have taken a number of points of order in a similar vein since taking the Chair on 8 June, and this is clearly worrying for Members as well as irritating for the Chair. I will instruct that the matter be fully investigated, not just in the area that the hon. Lady has spoken about, but throughout the parliamentary estate. Clearly, it could affect the outcome of a vote. In the short term, I ask that, every time there is a Division today, a messenger goes particularly to that part of the House to ensure that Members are made aware that a Division is taking place.

15:42

Division 138

Ayes: 231

---

Labour: 208
Conservative: 8
Democratic Unionist Party: 5
Scottish National Party: 5
Plaid Cymru: 3
Social Democratic & Labour Party: 1
Green Party: 1

Noes: 295

---

Conservative: 240
Liberal Democrat: 52
Independent: 1
Alliance: 1

More than three hours having elapsed since the commencement of proceedings, the proceedings were interrupted (Programme Orders, 13 September and 24 November).

The Chair put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83D).

Amendment proposed: 23, in clause 2, page 2, line 17, at end insert—

‘(4A) The Speaker shall issue a certificate under subsection (1) or (2) within 24 hours of the relevant conditions being met under subsection (1) or (2).’.—(Chris Bryant.)

Question put, That the amendment be made.

15:56

Division 139

Ayes: 229

---

Labour: 209
Democratic Unionist Party: 5
Scottish National Party: 5
Conservative: 4
Plaid Cymru: 3
Independent: 1
Green Party: 1

Noes: 302

---

Conservative: 249
Liberal Democrat: 51
Alliance: 1

Amendment proposed: 25, in page 2, line 24, at end add—

‘(6A) In this section a “motion of no confidence in Her Majesty’s Government” shall be—

(a) in the terms “This House has no confidence in Her Majesty’s Government” or

(b) in the terms “This House has no confidence in the Prime Minister”.’.—(Chris Bryant.)

Question put, That the amendment be made.

16:08

Division 140

Ayes: 229

---

Labour: 209
Democratic Unionist Party: 5
Scottish National Party: 5
Plaid Cymru: 3
Conservative: 3
Independent: 1
Alliance: 1
Green Party: 1

Noes: 298

---

Conservative: 247
Liberal Democrat: 50

Question put (single Question on successive provisions of the Bill), That clauses 2 to 4 stand part of the Bill.

16:21

Division 141

Ayes: 306

---

Conservative: 246
Liberal Democrat: 52
Democratic Unionist Party: 5
Independent: 1
Alliance: 1

Noes: 218

---

Labour: 206
Scottish National Party: 5
Plaid Cymru: 3
Conservative: 2
Green Party: 1

Clauses 2 to 4 ordered to stand part of the Bill.

Schedule

Consequential amendments etc

Amendments made: Government amendment 14, page 4, line 9, at end insert—

‘Parliament Act 1911 (c. 13)

3A In the Parliament Act 1911 omit section 7.’.

Government amendment 15, page 4, line 16, at end insert—

‘7A In section 119(2) after “mourning” insert “(but, in relation to a parliamentary general election, excluding any day to which rule 2 of the parliamentary elections rules does not apply by virtue of rule 2(2A))”.’.

Government amendment 16, page 5, line 9, at end insert—

‘(3A) Omit paragraph (2)(ii) and the “and” before it.’.

Government amendment 17, page 5, line 18, at end insert—

‘But, in relation to any proceedings commenced afresh by reason of a candidate’s death, this paragraph is to be ignored.”.’.

Government amendment 18, page 5, line 18, at end insert—

‘9A In rule 6A(4) in Schedule 1 after “rule 2(1)” insert “(subject to rule 2(2A))”.’.

Government amendment 19, page 7, line 10, at end insert—

‘15A In section 22(2A) after “1983” insert “(subject to rule 2(2A))”.’.—(Mr Harper.)

Schedule, as amended, agreed to.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Bill to be considered tomorrow

[Mr Deputy Speaker (Mr Nigel Evans)]

I now have to announce the results of the Division deferred from a previous day. In the Division on the Question relating to the Scottish Parliament, the Ayes were 317 and the Noes were 212, so the Ayes have it.

[The Division list is published at the end of today’s debates.]

National Policy Statements

Wednesday 1st December 2010 Commons Chamber

[Relevant documents: The Third Report from the Energy and Climate Change Committee, Session 2009-10, on The proposals for national policy statements on energy, HC 231, and the Government’s response thereto, and the Minutes of Evidence taken before the Energy and Climate Change Committee on 30 November, HC 648-i.]

16:35

[The Minister of State, Department of Energy and Climate Change (Charles Hendry)]

I beg to move,

That this House has considered the matter of the draft Energy National Policy Statements.

The revised draft national policy statements for energy set out national policy, which must be considered in determining whether consent should be granted to infrastructure projects that are examined by the Infrastructure Planning Commission. As right hon. and hon. Members will be aware, the previous Administration consulted on a suite of draft energy national policy statements between November 2009 and February 2010. Alongside that consultation, Parliament undertook scrutiny of the draft national policy statements. Scrutiny in this House was undertaken by the Select Committee on Energy and Climate Change, which held a number of oral hearings, requested written evidence and published a report of its findings, together with 30 recommendations and conclusions. I would like to take this opportunity to thank the then members of the Committee for the important work that they undertook and the thoroughness with which they approached it.

This afternoon’s debate is part of Parliament’s scrutiny of the draft energy national policy statements, so I will talk about the purpose of national policy statements and the changes that we have made to them, the parliamentary scrutiny process required for national policy statements, and the coalition Government’s proposals for planning reform. The statements are complicated, lengthy documents that cover all aspects of energy policy, so I will talk at some length in introducing them. I hope that the House will bear with me. I will also give way to any interventions from hon. Members wishing to raise concerns. However, before going into the detail of the national policy statements, I would like to take a moment to set out the background to the coalition Government’s energy policy and the need to build new major energy infrastructure, as it is against that background that such massive new investment is required.

Our energy policy is based on four pillars: energy saving, more renewables, new nuclear, and clean coal and gas. That includes the green deal, which we believe will help to bring existing buildings up to 21st-century efficiency standards. We are taking steps to reduce demand for gas through both energy efficiency measures to help improve our energy security, and demand-side response, through interruptable contracts for large users that will ensure that domestic users are prioritised in an emergency. A reduction in demand will also help to improve our energy security. Under the green deal, home owners and businesses will be able to get energy efficiency improvements without having to pay cash in advance. The private sector will provide the up-front funding, receiving its money back from the energy savings on household bills. That will help to save energy, reduce carbon and protect energy consumers from price rises through greater energy savings.

[John Robertson (Glasgow North West) (Lab)]

I commend the hon. Gentleman on the work that he did on the Energy and Climate Change Committee, and on which he congratulated everyone involved—they say that self-praise is no praise, but there we go. My great worry, and that of many of my colleagues on the Opposition Benches, is that the poor will always suffer. While everybody else is looking for ways of saving money, they cannot do so. What will his Government do to help people who perhaps cannot afford to do what is necessary to make the savings that he is talking about?

[Charles Hendry]

The hon. Gentleman has often raised this issue in the Select Committee in the past, and it should be at the heart of our thinking. At this time of year, when people are struggling to pay their bills, how they will pay them in the future is a matter of great concern to us.

The nature of the green deal is that it does not depend on the creditworthiness of the individual householder. A charge will be set against the future energy bills of their property, with the condition that the total cost of the energy efficiency measures should be such that it can be repaid through that extra charge over a period of 20 or 25 years. So the people living in those properties will get the immediate full benefit in terms of warmth and reduced energy consumption, but the charge will be brought back over time. We think that this policy has been devised in a way that has at its heart the interests of those who are fuel poor and have difficulty in paying their bills. The hon. Gentleman is absolutely right to say that, in all these issues, there are massive costs for consumers. Our job as a Government is to find ways of trying to drive down the number of units that consumers will be using. The green deal is part of that process, as is smart metering.

[Tom Greatrex (Rutherglen and Hamilton West) (Lab/Co-op)]

May I issue an appeal to the Minister and his colleagues that, as the green deal mechanism is being finalised and formulated, it should not be targeted at only cavity wall and loft insulation? There are many properties in my constituency and elsewhere for which that would be no use at all, and some of those properties are among the least fuel efficient.

[Charles Hendry]

The hon. Gentleman brings to the House a huge amount of expertise on these issues and I very much welcome his contribution. He has touched on an issue that is at the core of our thinking on how to take the green deal forward. He is absolutely right to say that, while a significant number of houses would be helped if it were to address issues of cavity wall and loft insulation, there are many that do not have cavity walls and many that need additional measures. We are looking at the role that boilers can play in regard to energy efficiency, because that area has not been given sufficient attention in the past. The key will be to find a range of measures that are relevant to each individual property, the savings from which will justify the investment over time. I can give the hon. Gentleman an absolute assurance that the type of houses that he is talking about in his constituency, in mine, and in many others across the country will be very much included as the green deal is developed.

[Andrew Percy (Brigg and Goole) (Con)]

In my constituency, many properties are not on the gas network, and there are no plans to expand the network into many of the small villages there. Will those properties be able to access alternative sources of heating through the green deal, perhaps through air source heat pumps and so on?

[Charles Hendry]

I am grateful to my hon. Friend for the work that he has done to highlight issues such as these. We said in the coalition agreement that prioritising off-grid customers would be an important part of what we are seeking to do. However, the help for them will not come through the measures in the green deal. His constituents will of course be eligible for support for energy efficiency measures through the green deal, but the renewable heat incentive will give them support for other mechanisms such as air source heat pumps, ground source heat pumps and solar thermal installations. There will be a different funding mechanism for that, and we have confirmed that £860 million will be made available for the renewable heat incentive. We will set out the precise details of that in the next few weeks, and it will target precisely the people that he is most concerned about in that respect.

[Albert Owen (Ynys Môn) (Lab)]

The Minister has been very effective in campaigning for the extension of the gas network throughout the United Kingdom, but what he has just said will be of little comfort to people in many areas who simply want a choice. At present, they have oil or liquefied petroleum gas, but they want mains gas, which is often located only a few hundred yards away from their village or hamlet. Do the Government understand their frustration? Given that the market is failing them, would it be possible for incentives to be given in this regard, and for the regulator to ensure that those gas connections can take place?

[Charles Hendry]

The hon. Gentleman raises an important point. Certainly, encouraging people to install renewable heat sources, particularly in off-grid properties, is part of the solution. He is absolutely right to say, however, that for many people, the convenience of being on the grid will be their primary concern. It must be extremely frustrating to live in a house close to the grid that is unable to benefit from it. Ofgem is working to ensure that the grid is extended, but that is obviously a gradual process. We are considering different ways of dealing with the problem. Grid development is mentioned in the planning policy papers, but we are introducing other measures such as the renewable heat incentive, to help people who currently have no alternative to heating oil or liquefied petroleum gas. I hope that it can be said that we are dealing with the issue comprehensively.

[Sarah Newton (Truro and Falmouth) (Con)]

Do not local councils also have an important role to play? Cornwall council, for example, is undertaking a project involving feed-in tariffs. It will work with the third sector in using the money that it earns from installing solar panels in the county to help those in the greatest fuel poverty—who, as other Members have pointed out, are often off grid—not only through energy efficiency schemes but by providing heat from more appropriate sources, such as ground-source heat.

[Charles Hendry]

My hon. Friend is right to draw that to the House’s attention. As a result of one of the changes that we have made, local authorities are now allowed to sell electricity directly to the grid. Rather than merely being able to host new facilities, they can now become involved in these processes as partners. They can sell the electricity that is generated, and benefit from the feed-in tariffs or other financial packages that are available. I hope that, in difficult times, councils throughout the country will see such measures as an important potential income-earner and a way of encouraging their communities to move in a low-carbon direction. That is a critical part of Government policy.

We have said that there will be special help for the most vulnerable. The new energy company obligation will provide additional funds for those who are most in need and for homes that are hard to treat, which may need additional support. Our policy also involves the electricity market reform programme, which is a wholesale redesign of our electricity market. There is no doubt that that process, which will begin in a few weeks, is the most fundamental reform of the market for 30 years. It involves a new way of encouraging people to invest in electricity generation, and I cannot over-emphasise the importance that we attach to it. The power sector needs to lead the way when it comes to cutting carbon.

[Charlie Elphicke (Dover) (Con)]

Many of my least well-off and most vulnerable constituents fear that in five years’ time the lights may go out. What action can the Government take to deal with the backlog of infrastructure repairs?

[Charles Hendry]

I am keen to reassure my hon. Friend. A couple of years ago, the outlook was a cause for great concern. The recession reduced demand by 5% or 6%, and, although it has grown again, it has not reached its previous level. What appeared to be a serious pinch point now seems to have been pushed further out, but that does not give grounds for complacency. We all know that cold winters and, in particular, cold still days place immense demand on the system, and we need to take action to deal with that.

As much as £200 billion of new investment may be required in our electricity infrastructure. We have to rebuild it. It would have been much better for the country if more of that work had been done before 6 May, and it would have been much better had there not been a five-year moratorium on new nuclear and a delay of some years in new installations. I applaud the conversion of the last Administration, which began to put us back on track, but a number of years were lost.

[John Woodcock (Barrow and Furness) (Lab/Co-op)]

rose—

[Huw Irranca-Davies (Ogmore) (Lab)]

rose—

[Charles Hendry]

I will give way shortly, but I hope I shall be forgiven if I do not do so immediately, as I am in full flight.

We need to establish a structure that will give people an incentive to invest in new nuclear, clean coal, coal with carbon capture, renewables—in regard to which we have great potential—and new gas plant, along with gas storage. We are alive to all the challenges, and we are moving forward on all fronts.

[John Woodcock]

The Government talk a great deal about blank pages. Have they whitewashed their time in opposition, when one party was dead set against nuclear and the other wanted it to be a last resort? If they have converted, that is fine, but let us at least have a bit of candour about the process through which the Minister has got to where he is now.

[Charles Hendry]

The hon. Gentleman is new to the House and he might therefore be unaware of the extent to which we worked very constructively with the previous Secretary of State, the now noble Lord Hutton, and others to try to ensure that we took this agenda forward. As the hon. Gentleman has been a special adviser however, he will be aware that nuclear was taken off the agenda for five years. There was a Government White Paper that said, in effect, “We do not see a need for new nuclear in this country.” There were no qualifications to that statement; it was just stated that there was no requirement, full stop. For five years, that delayed the development of new nuclear.

I completely applaud the work of the previous Secretary of State, which has contributed to our country becoming one of the most exciting in the world for new nuclear development. The reality is that we were constructively involved in that process, but for five years nuclear was taken off the agenda.

[Martin Horwood (Cheltenham) (LD)]

To be candid, the Minister may know that, as per the coalition agreement, many Liberal Democrat Members are still absolutely opposed to nuclear power. Will he confirm that at no point in the last 30 years has it been impossible for private investment for nuclear to come forward, and if Government policy was not preventing that, why does he think no private investment did come forward in the last 30 years?

[Charles Hendry]

The Government are seeking to address a comprehensive range of issues to do with new nuclear. There have been planning issues; for example, the Sizewell B project took five or six years just to go through the planning stage. Also, regulatory justification is a legal requirement, and that process had to be gone through. Last week, a measure on that passed through this House with a massive majority of over 500 to a couple of dozen, so there has been a significant step forward in that respect. The long-term cost of waste management also needs to be known, and that figure is now being made clear and given to the industry. Other barriers to investment are also now being addressed. Therefore, although it is technically right that there was nothing to stop people investing in new nuclear, it is also absolutely clear that the circumstances did not encourage people to come forward with new proposals.

[John Robertson]

I should declare an interest: I am chair of the all-party group on nuclear energy. I think the Minister is being slightly disingenuous towards the Opposition. It was Labour who led the fight to put nuclear back on to the table. It was not that it had been taken off the table; it was just that nobody really wanted to touch it, including Ministers who were Members of this House at the time. Therefore, in a spirit of cross-party coalition, will the Minister accept that we did our bit in getting nuclear back on to the agenda, and does he agree that now is the time to make sure that these new power stations are built for the benefit of this country?

[Charles Hendry]

I am keen that this coalition should get larger and grander every day, so I am delighted to welcome the hon. Gentleman to it. I agree with what he said. I have already twice given credit to the previous Secretary of State. I am very happy to pay tribute to him and the previous Prime Minister for the role they played in putting nuclear back on the agenda.

In response to the question of my hon. Friend the Member for Dover (Charlie Elphicke), I think it is true that the challenges we face today are in part a result of not enough construction having been carried out early enough. If there had been more construction in our energy infrastructure over recent years, we would not now be faced with the mountain of needing £200 billion of new investment.

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

I am glad to hear that the future of the nuclear industry in the UK will be a good one. Will there, however, be a good future for the UK supply chain for the nuclear industry, particularly in terms of the construction of these stations? What will the Government do to support the supply chain?

[Charles Hendry]

We are very keen indeed to see the supply chain benefit. We talk to the companies that are looking to invest in this area, and they are very keen to use British know-how, skills and businesses. The Westinghouse approach is to buy where it builds. Therefore, together with Arriva, it has been setting up workshops around the country to encourage people to show the contributions and skills they can bring. From our point of view, this is a critical part of the project. We want them to partner British companies and, as part of that process, we believe there is an opportunity for them to sell that package internationally as well. That is absolutely at the heart of what we want.

[Angela Smith]

Why, therefore, do the Government refuse to support Forgemasters in its bid to play a strategic part in the development of the supply chain for the future of our power stations?

[Charles Hendry]

The hon. Lady is very familiar with the argument. We have said that we looked at the issues as we came into government and we identified those that were based on affordability, not on their importance. We believe that Sheffield Forgemasters makes an extremely important contribution in this area. The Government’s position has been clear and what we now do not understand is the Opposition’s position.

We had a vote on regulatory justification last week, which approved two specific reactor types, the Westinghouse and the Areva designs. In that vote the shadow Business Secretary, the shadow Chancellor and the shadow Energy Secretary voted against the approval of those designs. How can the shadow Business Secretary make a case for Sheffield Forgemasters when he has voted against the exact design that it is supposed to be supporting? There is a complete hole in the Opposition’s policy in this area. I hope that this shadow Minister will rise to his feet to give us clarity on those issues, but when three members of the shadow Cabinet vote against the heart of the nuclear policy, the Opposition’s policy is in tatters.

[Huw Irranca-Davies]

The hon. Gentleman would not expect me to agree that our position is in tatters. As I made clear to him in the debate on the justification orders in Committee, when they went through with our support, we would very much welcome an opportunity for the Minister, alongside his colleagues, to go back to Sheffield Forgemasters and argue the case for making sure that it can be part of the supply chain. He is continually reluctant to do so. I suspect that that is not necessarily because of his reluctance, but because his colleagues are reluctant to argue the case.

[Charles Hendry]

I had hoped that the hon. Gentleman, for whom I have the highest regard, was going to explain what his shadow Cabinet colleagues had done in that vote. During that debate two weeks ago, we had agreed fundamentally on the need for regulatory justification and he was speaking officially on behalf of the Opposition, yet when it came to the deferred Division in this House a week ago today three of the most senior members of the shadow Cabinet voted against those reactor designs being approved. If they had won that debate, the whole nuclear programme in this country would have been brought to a standstill. If the Opposition are to have credibility in this area, we need to understand why the shadow Chancellor, the shadow Business Secretary, who is the one who will lead on issues relating to Sheffield Forgemasters, and the shadow Education Secretary, who is one of the most senior members of the Labour party, chose to try to stop nuclear power in its tracks.

[Mr Stewart Jackson (Peterborough) (Con)]

Is the stark contrast between those on the two sides of the House not shown in the fact that the financing arrangements for Sheffield Forgemasters were cobbled together in the dying weeks of the Labour Government whereas just five months into a Conservative-led coalition Government we have a comprehensive, coherent national infrastructure plan for the next five to 10 years? That is the difference between government and opportunism.

[Charles Hendry]

My hon. Friend makes a very important point. In the months just before the election an enormous number of commitments were made, and one of the first things that we had to do as an incoming Government was to identify which of them were affordable. We went through that process extremely thoroughly—I think we have been robust about it—and Sheffield Forgemasters entirely understands the decisions that we have made. The Department for Business, Innovation and Skills leads on supporting businesses in these areas and my Department feeds closely into that process. We want Sheffield Forgemasters, which is an outstanding example of a British manufacturing company, to have a key role to play in the future. However, on the basis that I have outlined, we did not believe it was appropriate for the loan to go ahead.

[John Woodcock]

I hope the Minister will accept that it is important to correct what the hon. Member for Peterborough (Mr Jackson) said if the Government are to retain credibility on this issue. Does the Minister accept that the issue of this loan was being negotiated for more than a year, including at the time when Lord Hutton was Business Secretary, and that it was very carefully considered by that Department over that period?

[Charles Hendry]

I am grateful to the hon. Gentleman for that intervention. As a new Government coming in, we had to look at the financial commitments that we were inheriting. We had to decide which were bad decisions—the Sheffield Forgemasters loan absolutely did not come into that category—and which were the decisions we viewed as simply not affordable. Of course we would love to be able to shower money on a range of good projects around the country, but there is no scope for doing so. As we know from the former Chief Secretary to the Treasury, there was no money left. That was what the outgoing Government told us.

[Several hon. Members]

rose—

[Charles Hendry]

I am keen to get back to some of the areas where there is consent and general agreement, but I will of course give way to the Opposition spokesman.

[Huw Irranca-Davies]

I thank the hon. Gentleman for giving way. Will he acknowledge that this issue is pertinent to our debate on our national infrastructure and the supply chain? It is my clear understanding, unless the Minister can disabuse me of this, that only one other global supplier makes the piece that Sheffield Forgemasters was going to make. If the company had been given that repayable loan, which would have been repaid to the Government in short order, it would have led the global supply chain—not just for the UK but for export—in the reactors that we passed the justification orders for last week. It is a clear own goal. I ask the Minister to go back to his BIS and Treasury colleagues to see whether there is still an opportunity to bring the measure forward. It is not too late.

[Charles Hendry]

The hole in the argument is that the hon. Gentleman makes that case on behalf of the Opposition when the shadow Business Secretary, shadow Chancellor and shadow Education Secretary voted against the nuclear programme. As long as the shadow Cabinet has anti-nuclear sentiments at its highest level, any suggestion that the Opposition want a nuclear renaissance is fundamentally questionable.

[Albert Owen]

rose—

[Charles Hendry]

I am keen to move on to other issues, but as the hon. Gentleman has such a strong constituency interest in new nuclear I shall give way.

[Albert Owen]

The hon. Gentleman and I were both very solid on nuclear power in the last Parliament when the then Leader of the Opposition thought that it should be a last resort. I am pleased that the new Secretary of State and the Prime Minister have made their journey and are in the same position as the Minister and I. The point about the supply chain is important. I know—the shadow spokesman is right—that if this work does not go ahead in Sheffield, Korea is the next port of call. That is not in the British interest. Will the Minister consider that as we go through these new policies and talk about infrastructure, so that we can keep British jobs and British business in the supply chain to help the nuclear industry?

[Charles Hendry]

I have said several times that our decision is no reflection on the quality of the workmanship at Sheffield Forgemasters. The Government came in, identified that £1 in every £4 of Government spending was borrowed, believed that that position was unsustainable and had to make difficult, tough choices about the right way forward.

[Several hon. Members]

rose—

[Charles Hendry]

I would give way to my hon. Friend the Member for Dover, but he was the one who made me depart from my extremely consensual speech into this area of great contention. I am keen that we should get on to the issues of planning policy that are at the heart of our debate.

[Dan Byles (North Warwickshire) (Con)]

To come back to the future of nuclear power in the UK and the comments made by my hon. Friend the Member for Dover (Charlie Elphicke) about keeping the lights on, Germany is now considering extending the lives of its reactors by up to 12 years. I am a great supporter of the idea that we need to replace our nuclear reactors with new nuclear reactors, but is there any scope in the Department’s plan to extend the lives of our current reactors to try to bridge that gap?

[Charles Hendry]

My hon. Friend raises an important issue. The situation in Germany is very different from the situation here. The plan in Germany had been to have an artificially early closure of the nuclear fleet, and Chancellor Merkel’s Government have allowed them to operate for their full lives. They have reversed a decision that would have brought about early closure. The approach that we have always taken in the United Kingdom is that plants should operate for their safe life. If there is an independent assessment that they can operate for longer than had been planned, that should be considered. The case here is based on safety and security issues and some recent life extensions have been given, which we welcome. At the end of the day the extensions are a bonus rather than a building block in energy policy, but my hon. Friend makes an important point.

I want to get back to some of the key areas of the debate. Our concern is that the existing market framework will not deliver the scale of investment needed in renewables, nuclear and carbon capture and storage, all of which have significant up-front costs. Our electricity market reform programme will examine the reforms necessary to restructure the electricity market to decarbonise the power sector by the 2030s while maintaining security of supply and affordable prices. We must move quickly to give investors certainty about our reforms because of the long lead-times in developing new generation capacity. Our reform of the planning system for major infrastructure, including for major energy infrastructure, also has an important role, as does the consultation on the revised draft energy national policy statements.

Reducing demand for electricity wherever possible is important in meeting our energy objectives. Our 2050 pathways analysis shows that total UK energy demand from all sources will need to fall significantly by 2050. As I have mentioned, the green deal will save energy in the home and non-domestic buildings. We will also roll out smart meters to help to reduce demand. However, those savings will be offset by increases in other areas, such as the increased use of electricity in industrial and domestic heating and in transport. Our 2050 pathways analysis suggests that demand for electricity may even double by 2050, as we plug into the grid to power our cars and heat our homes.

Decarbonising surface transport is essential to meet our target to reduce greenhouse gas emissions by 80% by 2050, as we are required to do by law. We expect electrification to play a major role in achieving that. While electric vehicles can be powered up overnight by fluctuating electricity generation, trains, for example, will need more base load generation. We have already announced £900 million of investment in the electrification of train lines from London to Didcot, Newbury and Oxford, and for lines serving Liverpool, Manchester, Preston and Blackpool. In the new year, we will consult on the next steps for building a national high-speed rail network, which will free up capacity to allow a shift of freight from road to rail and provide an attractive low-carbon option for travelling between our major cities.

Some 80% of journeys in the UK are currently made by car, and cars will continue to play an essential part in our national transport infrastructure. The Government announced in the spending review investment of more than £400 million in measures to promote the uptake of ultra-low-carbon vehicle technologies. That includes the plug-in car grant, which will be available from January 2011 and which will provide a grant of 25% of the vehicle price up to £5,000. We are also continuing the plugged-in places programme, which supports the development of electric vehicle recharging infrastructure in strategic locations. As part of the coalition agreement, we have also undertaken to mandate a national network of vehicle recharging facilities.

We want to see more decentralised and community energy systems, such as microgeneration, make a contribution to our targets on reducing carbon emissions and increasing energy security. However, we do not believe that decentralised and community energy systems are likely to lead to the significant replacement of large-scale energy infrastructure, which is why there is an urgent need for new major energy infrastructure.

[Neil Carmichael (Stroud) (Con)]

I have flicked through the plans, and I cannot see any reference to hydro-power in the context of micro-schemes. Do the Government intend to support hydro-power and particularly small-scale projects?

[Charles Hendry]

The Government are committed to taking us forward, and I welcome my hon. Friend’s support in that respect. Hydro has an important contribution to make. The Minister of State, Department of Energy and Climate Change, my hon. Friend the Member for Bexhill and Battle (Gregory Barker), who has responsibility for climate change, set out how we can hope to achieve that ambition in his recent speech on the subject. Most issues that we are discussing today relate to major applications of more than 50 MW. Most hydro schemes will fall below that threshold and will therefore be subject to local planning decisions.

The section of the energy policy statement that deals with renewable energy does not cover major hydro schemes, such as major schemes involving tidal flow, because at this stage there is no evidence of a serious application for such a scheme of more than 50 MW. If that happens, we will need either to review the national policy statement or to introduce one specifically for marine technologies. In this country, we have a network of rivers, which are a potential source for electricity generation that we are keen to see harnessed.

[Ian Swales (Redcar) (LD)]

The Minister has discussed the urgent need for new renewable electricity generation capacity. If that is the case, why is the banding review of renewables not reporting until August 2012 with implementation in March 2013? Will he consider speeding up that process, so that we can get the capital that is waiting for, for example, biomass power stations released and get such projects under way?

[Charles Hendry]

One of the issues for investors in this area is certainty. They want to be able to plan for the long term and to know what rate of support they will get under whatever mechanism is in place. A date of 2013 enables people to plan a transition to whatever the banded level will be after that. I understand the need for early clarity, and if there are ways we can provide that, we shall seek to do so. We seek to work constructively because we understand that the alternative can be a hiatus in investment, with investment dropping off for a period of years in advance of the threshold and the level of support changing. It is important, in terms of national interest, to have a continuous flow of investment.

I turn now to the issues that have been covered in the energy national policy statements. Perhaps it would be helpful if I briefly set out the purpose of the documents before us today. The revised draft energy national policy statements consist of a suite of six national policy statements and a number of associated documents. They are not intended to set out new energy policy. They are consistent with and explain current energy policy and how it relates to the planning consent process. Similarly, we are not using national policy statements to change the standard for consenting projects. They neither raise nor lower the bar on how a major energy infrastructure project is examined and consented. They are there to explain how such decisions should be made. They set out the consenting policies that need to be considered in the examination of major energy infrastructure and the decision on whether to grant or decline consent. At the same time, they will ensure that new major energy infrastructure projects respect the principles of sustainable development. They will allow not only the Infrastructure Planning Commission but developers and local residents to see the basis on which applications must be considered.

There is an overarching energy national policy statement that sets out the Government’s policy on energy and energy infrastructure development; an energy need statement on the need for new nationally significant energy infrastructure projects; the assessment principles that need to be taken into account in examining and deciding on proposals for energy infrastructure development; and generic impacts for all energy infrastructure, and how they should be assessed and mitigated to ensure that the right balance is reached between securing our energy needs and protecting the environment.

There are also five technology-specific energy national policy statements, covering fossil fuel electricity generation; renewable energy infrastructure, which deals with onshore wind, offshore wind and energy from biomass and/or waste; gas supply infrastructure and gas and oil pipelines; electricity networks infrastructure; and nuclear power generation.

[David Morris (Morecambe and Lunesdale) (Con)]

We know that we are legally required to reduce carbon emissions by about 80% in the next 40 years. Can we fulfil that requirement, given that of the 59 GW of new capacity required in the next 25 years, 33 GW of which is needed from renewables, we have only 2 GW currently under construction? The other 26 GW that is needed will, presumably, come from low-carbon nuclear. The Government have made enormous progress in this area—I acknowledge that—but would there be more scope to look at nuclear if we, for whatever reason, did not hit those targets?

[Charles Hendry]

I pay tribute to the work that my hon. Friend has done as an ardent supporter of the Heysham plant in his constituency and of the case for a new plant in that area. The role for nuclear has been set out clearly in the national policy statements. We believe that it has a fundamental role, but we also have to be realistic about what is achievable. We have identified sites that could be used for 16 GW of new nuclear power, but that is as much as the energy companies believe can be constructed over the next 15 years, which is the time scale that the national policy statements cover. That is not necessarily the end of the ambition, but it looks like what is achievable and realisable over those 15 years. There is no doubt about the Government’s ambition in terms of new nuclear.

[Martin Horwood]

On the subject of what is realistic, and referring back to what the Minister was saying about sustainability, is he aware that the Chartered Institution of Water and Environmental Management has said that current known reserves of economically extractable uranium may last only between 40 and 85 years? Given that other economies are also investing in new nuclear, we may be looking at the lower end of that scale rather than the higher, so new nuclear cannot be regarded as sustainable in any real sense.

[Charles Hendry]

I have certainly heard that point before. The OECD has a fundamentally different view of the availability of uranium stocks, and there is work to be done in plutonium reprocessing, which would provide an additional source of fuel. Furthermore, work is being done on the development of thorium reactors, which do not give rise to many of the concerns that people have about uranium reactors. A great deal of progress can be made and, at the end of the day, the decision is for investors to make. If they do not believe that there is sufficient uranium to power their plants for their lifetime, they will not make that investment. They will base their decision on the facts available to them and they will need to be reassured about the availability of stocks.

The overarching national policy statement contains information on the impacts that need to be considered for all energy infrastructure, while the technology-specific NPSs contain additional information on the impacts that are specific to each technology. They take into account the appraisals of sustainability. We have revised the AOSs for the non-nuclear NPSs substantially, which is why we are a carrying out a fresh consultation.

We believe that the revised appraisals put readers in a much better position to evaluate the revised draft NPSs. The revised AOSs give a clear picture of the likely significant impacts at the strategic level of consenting energy infrastructure projects in accordance with the NPSs, by reference to a wide range of relevant environmental, social and economic factors. They also explain more clearly why we have not chosen a number of alternative policies that others proposed, but which would not have been as good in meeting our overall objectives of maintaining safe, secure and affordable energy supplies while moving to a low carbon economy and reducing carbon emissions by 80% by 2050.

We have made significant changes to the statement of need in the overarching national policy statement. It now includes research that was not available for the first draft, including more detailed analysis of scenarios to achieve an 80% reduction in carbon emissions by 2050. We have also included more detail on what is required for an economic feasibility assessment to ensure that fossil fuel generating stations are carbon capture-ready.

[Neil Carmichael]

The NPS gives great support to those of us who support a green investment bank because it provides a framework for investment, which is necessary to the platform of support that investors might require. How important does the Minister think the green investment bank will be in delivering some of the outcomes?

[Charles Hendry]

The Government have committed £1 billion to the green investment bank, with additional funding to follow in due course. I am extremely pleased that the Environmental Audit Committee is to examine how the bank might work. Infrastructure banks in other countries—for example, the one in Holland, which was funded with €2 billion of initial capital, but brought in €100 billion of additional finance—can play a critical role, particularly in getting business through the so-called valley of death.

Returning to the technology-specific NPSs, we have revised the fossil fuels policy statement—document No. 2—to clarify the requirements for carbon capture readiness in terms of technical and economic feasibility in line with the request made by the Energy and Climate Change Committee.

[Ian Lavery (Wansbeck) (Lab)]

On carbon capture and storage, will new applications for gas-fired power stations be treated the same as applications for new coal-fired power stations in that they will have to be carbon capture-ready before they can be accepted at the planning stage?

[Charles Hendry]

A new coal plant will have to be equipped with some degree of carbon capture and storage capability—we have made it clear that there will be no role for unabated coal in the future—whereas a new gas plant will have to be carbon capture-ready, because of the much lower levels of emissions associated with modern gas plants. Emissions from the most efficient coal plant are perhaps 750 grams per kWh, whereas the figure for the most sophisticated gas plant is perhaps 350 grams per kWh. Given the significant difference in emission levels, we are looking at requiring CCS to be part of the programme. That is why we have allocated £1 billion, which is more than any Government anywhere in the world have allocated to a single plant. We are keen to take forward the development, but we have also said that as part of the subsequent pilot projects 2 to 4, we are keen to see whether that can be applied to gas.

[Ian Lavery]

The Minister said that £1 billion had been invested in the carbon capture and storage programme. There were four initial demonstration plants, the first of which is to be a coal-fired demonstration plant. The contract will be awarded, I believe, in December 2011. Will that not take most of the £1 billion? If so, is he confident that moneys will be available to secure the phase 2, 3 and 4 carbon capture and storage projects?

[Charles Hendry]

The hon. Gentleman makes an important point. The £1 billion is specifically and only for that project. As I said, that is more than any Government anywhere in the world have allocated to a single project. The additional plants will be funded either by the levy introduced in the Energy Act 2010, or from general taxation. We are looking at the best way forward in terms of deliverability and the Treasury is examining the issue. The funding of projects 2 to 4 is separate from the funding of project 1, which has the £1 billion available to it.

The revised renewables NPS has taken particular account of comments on biomass sustainability for generating stations using biomass as fuel. We have also revised the text regarding noise from onshore wind farms, which is different from general industrial noise, so a specific assessment methodology is used to take that into account.

The method of assessing noise from a wind farm is described in “The Assessment and Rating of Noise from Wind Farms”, known as ETSU-R-97. The report recommends noise limits that seek to protect the amenity of those living close to wind farms. The recommended noise levels are determined by a combination of absolute noise limits and noise limits relative to the existing background noise levels around the site at different wind speeds.

Policy document 4 relates to gas supply and oil pipelines. We have clarified that the gas supply infrastructure and gas and oil pipelines NPS covers only oil and natural gas pipelines and not CO₂ pipelines, which will be an important matter in relation to carbon capture and storage development. We have also added a new section describing the impacts on gas emissions due to the flaring or venting of gas.

Policy paper 5 relates to electricity networks. We have tried to make sure that Government policy on undergrounding and the need to treat each application case by case is expressed more clearly. I welcome the decision by the Institute of Engineering and Technology to make an authoritative investigation of the costs of undergrounding, particularly in relation to the issues that the hon. Member for Wells (Tessa Munt) has raised, so that we can have a clear fact-based assessment of the different costs involved.

[Tessa Munt (Wells) (LD)]

rose—

[Charles Hendry]

I thought that might encourage the hon. Lady.

[Tessa Munt]

Thank you. Will that investigation examine the cost of under-sea infrastructure as well? I understand that the project will look at networks not just underground, but under-sea. Is that correct?

[Charles Hendry]

That is my understanding of the report. We are all keen to have a fact-based scientific assessment of the relative costs. I know that in the hon. Lady’s constituency and many others there has been great concern and a need to know the costs of different ways of dealing with the issues, so I hope the report will examine the under-sea aspects as well.

[Tessa Munt]

rose—

[Dr Thérèse Coffey (Suffolk Coastal) (Con)]

rose—

[Charles Hendry]

I will give way to my hon. Friend, who has some issues in Suffolk.

[Dr Coffey]

Thank you. We do indeed have issues in East Anglia, and in Suffolk in particular. We have an enormous number of offshore wind farms, yet the green impact of pylons across our countryside is hardly palatable. I welcome the changes being made, and hope that we will have more detailed calculations of the costs and the impact of the benefits.

[Charles Hendry]

I shall give way again to the hon. Member for Wells and deal with both issues together.

[Tessa Munt]

How can I and my constituents be assured that the study is wholly independent and is not in any way informed or directed by National Grid?

[Charles Hendry]

I would hope that the nature of the Institute of Engineering and Technology, and its track record for independence and fact-based assessment, would be sufficient to assure everyone that a thorough approach will be taken. There is no doubt in any of our minds that if anybody tried to steer its conclusions one way or the other it would publicly require them to go away. I am absolutely satisfied that the process will be independent and robust, but in due course the institute will publish the full report so that it can be peer-reviewed.

[Dr Alan Whitehead (Southampton, Test) (Lab)]

Before the hon. Gentleman leaves EN-5, will he reflect on the question that he raised previously about investment in new infrastructure through the electricity markets as they stood, and the extent to which that investment stayed in existing equipment to shore up the electricity market? In the new circumstances, where investment in infrastructure will increasingly be required before the replacement of plant, will EN-5 reflect that change fully? If not, could the energy market reforms that he will undertake shortly inform a revision of EN-5 to take those new circumstances into account?

[Charles Hendry]

We have to see the national policy statements as part of the process. They are an integral part of an improved planning process, but they are not the full package. Electricity market reform will also be a key element in incentivising people to invest. Let me give an example of how things are changing. I was recently with Ofgem launching the second round of offshore grid transmission infrastructure bids. More than 100 different organisations, most of which were new players in this area, were keen to take part in that process, which was started by the previous Administration. A number of new organisations—new financial institutions—want to invest in our energy infrastructure, which is extremely encouraging, but to see the full package of these measures it will be necessary to ensure that they see the planning changes and the funding mechanisms that will drive it forward.

[Andrew Percy]

rose—

[Charlie Elphicke]

rose—

[Charles Hendry]

I shall take a couple of interventions and then seek to conclude my remarks.

[Andrew Percy]

While we are on the subject of new players coming into our energy industry, I invite the Minister to visit north Lincolnshire and the site of the South Humber Gateway project, where we hope to cluster a number of offshore wind farm manufacturers with the potential to create 5,000 jobs initially, possibly rising to 20,000. It will be incredibly important to our region, so I invite the Minister to join me and my hon. Friend the Member for Cleethorpes (Martin Vickers) on a visit some time soon.

[Charles Hendry]

I know that both my hon. Friends have done sterling work in pushing the case for the South Humber Gateway. I would be delighted to see the planned work to get a clearer understanding of the ambition. It is typical of many of the ambitions of people who see a fantastic new opportunity emerging in the energy sector, and we are keen to encourage that. I imagine that my hon. Friend the Member for Dover (Charlie Elphicke) will make a similar plea for a visit.

[Charlie Elphicke]

I do not wish to trouble the Minister to come down to east Kent, but for the benefit of the House will he say how many power stations were brought into operation during the last Parliament? The only one that we in Kent can recall is the dirty Kingsnorth power station. On the need for more funding and the need to build infrastructure and green infrastructure, I recall that during the last Parliament not many power stations were brought on line.

[Charles Hendry]

A number of gas powered plants were brought on stream. The last nuclear power station was Sizewell in the 1990s. There has not been a new clean coal plant yet because people need to know how the carbon abatement technology will move forward. Gas has been the fuel of choice: 60% of the consented plant—12 out of 20 GW—is gas. What people want to build remains to be seen, but there is significant interest. We now need the policies to drive this forward.

I want rapidly to conclude my remarks with a few additional points—

[Christopher Pincher (Tamworth) (Con)]

rose—

[Charles Hendry]

An enormous number of colleagues are keen to speak in the debate, but with your forbearance, Mr. Deputy Speaker, I will allow my hon. Friend to intervene as he is a member of the Select Committee.

[Christopher Pincher]

I am grateful to my hon. Friend for being so generous. May I take him back to his earlier remarks about energy security and how the national policy statements will feed into our energy security? Energy security not only relates to the Department of Energy and Climate Change, but has an impact on the Ministry of Defence, the Foreign and Commonwealth Office, the Department for International Development and the Department for Transport. How do the threads in our national policy statements interweave to ensure that across all those Departments we have a holistic approach to energy security?

[Charles Hendry]

One thing that has struck and impressed me most as an incoming Minister has been the extent to which Departments work constructively together, with information shared appropriately and buy-in from every Department on policy proposals. My Department clearly leads on the energy market and the Treasury is critically involved in setting a carbon price, which we believe is part of the process, but there is a holistic approach and investors are looking at that to make sure that there is joined-up government.

I want to close, so perhaps I can respond in my winding-up speech to any additional points about the exact way in which we will take the process forward. Having spoken for the best part of an hour, I feel that many hon. Members on both sides of the House will wish to have a chance to contribute fully to the debate.

In conclusion, our reforms of the major infrastructure planning process will ensure much greater democratic accountability. Ministers will be responsible for decisions to consent to or refuse major infrastructure development, and there will be a binding vote in the House on whether to approve national policy statements. Our debate today is about whether the House has considered the matter of the draft energy national policy statements, and I look forward to listening to it and having the chance to hear the expertise that so many hon. Members have to offer.

[Several hon. Members]

rose—

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. As the Minister says, a number of Members will be trying to catch my eye during this debate. Therefore, I am introducing a seven-minute limit on speeches.

17:29

[Huw Irranca-Davies (Ogmore) (Lab)]

Thank you, Mr Deputy Speaker. I have indicated to you through the usual channels that, if it is your wish, I am more than happy to forgo any concluding remarks so that more people have time to make their contributions.

I welcome this general debate about national policy statements, which is timely and necessary. I thank the Energy and Climate Change Committee for its continuing effort and expertise and, of course, the Committee on Climate Change for its recommendations and analysis. We share much of the Minister’s analysis of the challenges, but that is not surprising because, as I say with some humility, my predecessors laid the groundwork that he is continuing. We are glad to see him and his colleagues taking up the baton with such relish, because they do so at a critical juncture, when delay and dithering would be terminal to investor certainty, UK energy security and our low-carbon future. There is a real need to get on with that work.

On that thought, the shadow Front-Bench team and I—and I am sure the whole House—send our best wishes to the Secretary of State and his team on their negotiations in Cancun. In government, Labour adopted the world’s first legally binding framework to cut emissions, by 80% by 2050, signalling our clear intent and leadership on tackling climate change. My right hon. Friend the Member for Doncaster North (Edward Miliband) played a difficult hand with some great skill and not insignificant personal commitment at Copenhagen when he was Secretary of State, and although the job has not become any easier, we hope that the new Secretary of State will keep the momentum going.

Let us reprise where we are, as laid out in the documents before us. One quarter of the UK’s generating capacity will close by 2018, and as much as 30% will need to be replaced by 2020. Without prompt action we face an electricity generation gap in the next 10 to 15 years as our nuclear and coal-powered stations are retired. World energy demand is rising and often highly politicised; as North sea reserves decline, we are increasingly reliant on imported oil and gas; and, as the Minister says, electricity demand is forecast to double over the next 40 years. That will require rapid decarbonisation of the electricity sector, diversification of the energy sector with a decreasing reliance on fossil fuels and unabated combustion, and an increasing reliance on renewables, low-carbon energy and decentralised energy.

We will also require development of carbon capture and storage and renewables technology for the UK and for international markets. We will need to create sufficient capacity to meet electricity generation needs at all times, and we will need to put the necessary supply chains in place. I will not go over the issue of Sheffield Forgemasters again, as it has been well aired already. We will require the development of smart grid and electricity networks to meet the needs of a reconfigured, smart and diverse electricity infrastructure and, of course, investment in gas infrastructure.

[Ian Lavery]

The doubling of the electricity recovery rate over the next 40 years is vital. As was mentioned, the first phase of the four demonstration plants will cost up to £1 billion. Does my hon. Friend agree that it is essential that funding is found from somewhere to fund phases 2, 3 and 4 if we are to meet our electricity requirements over that period?

[Huw Irranca-Davies]

Yes, I agree entirely. It was wonderful news that after a slight delay to do with the coalition agreement, getting things in order, and some wrangling with the Treasury, we had the announcement that £1 billion would be available—the commitment that the Labour Government had made to the first phase of CCS on a commercial scale. However, it is equally essential that we have phases 2, 3 and 4. I am sure that the Minister is committed to continuing that wrangling with the Treasury to ensure that we find the mechanisms that will allow that to happen, and promptly. We need it for coal, but we also need it for gas. I welcome the in-principle announcements that have been made about phases 2, 3 and 4, but what we are waiting for, as with so much else, is the detail to make it certain.

[Angie Bray (Ealing Central and Acton) (Con)]

Given that the previous Government had a complete lack of policy on energy, threatening constituents such as mine with the possibility of their lights being switched off for long periods in the next 10 years or so, I find it a bit rich that the hon. Gentleman is lecturing us somewhat, although I appreciate the consensus on some issues. Does he at least agree that the national policy statements brought forward by this coalition Government are a great step forward in attracting the kind of investment that we need to ensure that the lights are left on?

[Huw Irranca-Davies]

Well, we can debate who can claim credit for the NPSs. Of course, they were instigated and developed under the last Labour Government, but I give credit where it is due; I will come to that in a moment in looking at some of the detail. We agree that there has been some improvement in the intervening six months—it will be nine months by the time they are eventually signed off—but they were in darn good shape before, and they were ready to go. The hon. Lady pushed me on trying to claim the credit entirely, but these are the Labour Government’s documents. They have been refined and improved, but they were already in place.

[Charlie Elphicke]

Will the hon. Gentleman give way?

[Huw Irranca-Davies]

Let me make a tiny bit of progress.

This short debate is informed by the ongoing consultation—or perhaps I should say, for the benefit of the hon. Member for Ealing Central and Acton (Angie Bray), reconsultation—on the national policy statements. The coalition Government have taken this opportunity to pause, to reflect, and to revise them. In a way, that is a good thing, because it has allowed more time for deliberation, but—let us be frank—it will also have cost a vital eight or nine months by the time that the final NPSs are produced in January. That is a luxury that has inevitably led to a delay in our national efforts to secure a long-term energy security future.

[Nicky Morgan (Loughborough) (Con)]

Is it not the case, though, that the report by the Energy and Climate Change Committee criticised the previous Government for leaving it quite so long to get to the stage where the NPSs were being considered? It published its report in March 2010, when the Government had had from 2005 onwards to put them in place.

[Huw Irranca-Davies]

Indeed. The hon. Lady will have noticed that between March 2010 and now an election got in the way. The national policy statements were in place, and this Government, had they so chosen, could have picked them up and run with them, or alternatively, as happened when we came into office in 1997 and had our policies ready to go having worked them up with the civil service, they could have got on with it straight away. We will be nine months delayed by the time we have these documents before the House for full consideration.

[Dr Thérèse Coffey]

rose—

[Huw Irranca-Davies]

I will make a little progress.

Although I welcome this debate, we now have only one hour and 20 minutes to debate issues that, as I am sure the Minister will agree, are critical to our national strategic energy needs and to the balance between those needs and democratic accountability at national and local levels. Unlike the over-long process of reconsultation, this short debate demonstrates all speed, but limited accountability. It will therefore be impossible to do justice to the six core energy documents and the accompanying materials. This must be seen instead as a useful staging post to a much longer debate in this place in Government time.

I will begin with some points on the reform of planning in relation to NPSs, in response to the Minister’s opening remarks.

[Martin Horwood]

Before we leave the question of Labour’s legacy, can the hon. Gentleman put a figure on the unfunded liabilities for cleaning up the last generation of nuclear power? Some estimates put it as high as £160 billion. Does that sound accurate to him?

[Huw Irranca-Davies]

That question should probably be put to the Minister. I recognise the hon. Gentleman’s long-held position on nuclear power. I pay credit to the Minister and the Government for pulling the coalition into a semblance of agreement on nuclear—albeit with the odd person against it—which means that we can move forward.

Labour’s Planning Act 2008, which underpins this matter, made the planning system for major infrastructure quicker, more efficient and much more predictable. It laid the conditions for essential new investment in the UK’s infrastructure, including large-scale, low-carbon energy projects. The coalition Government have a responsibility to ensure that their plans, which include scrapping the Infrastructure Planning Commission, do not add delays or remove the clarity and certainty that industry needs to invest in new renewable and nuclear capacity, and low-carbon energy. I give credit to the coalition Government and the Minister, because they have wisely decided, despite the unnecessary delay, to continue with the Labour Government’s national policy statements, with the revisions, rather than wait for wholesale reform of the planning system. That is a welcome recognition of the excellent work of the Labour Ministers who formerly occupied the Minister’s office and of my right hon. Friend the Member for Doncaster North.

[Christopher Pincher]

The hon. Gentleman waxes eloquent about the right hon. Member for Doncaster North (Edward Miliband). Can he therefore explain why the Public Accounts Committee, when it reviewed the Department of Energy and Climate Change, said that it lacked a definite sense of energy and purpose under the now Leader of the Opposition?

[Huw Irranca-Davies]

The ball is now firmly in the court of the Minister. There is an issue with the urgency and delivery of some the Government’s ambitions that we share. They must get on with it.

Rather than take further interventions, I will get into the nitty-gritty. Some of my questions for the Minister arise from his appearance yesterday before the Energy and Climate Change Committee, which, as usual, did a very good job.

When we return to this matter with the finished articles in front of us—the final, beautifully honed, polished NPSs—will we be afforded adequate time? Will each national policy statement have adequate, separate parliamentary time in line with the coalition Government’s stated aim of enhancing parliamentary scrutiny of NPSs in their planning reforms, or will they be mixed together like a bag of all-sorts? If the coalition Government are true to their aims, the Minister should help us through the usual channels to push for days, not hours, to debate the NPSs. Much as we dearly love the Secretary of State for Communities and Local Government—we may ask who would not do so, when he is described on the front page of his website as “an absolute star” and a “saintly figure”, among other less self-effacing and more humorous things—when it comes to debating energy NPSs, we want the Minister of State, Department of Energy and Climate Change, the hon. Member for Wealden (Charles Hendry), or the Secretary of State for Energy and Climate Change. We want them—no one else will do. Can the Minister guarantee that he and his DECC colleagues will not be squeezed out of their seats by the right hon. and saintly Member for Brentwood and Ongar?

In the coalition’s drive for parliamentary scrutiny, I am sure that the Minister will be able to confirm today that there will be a separate vote on each NPS, having been unable to confirm it yesterday to the Energy and Climate Change Committee. To mix the nuclear issue with those of fossil fuels, renewables, pipelines and the electricity network infrastructure would tax the wit of Wilde and the wisdom of Solomon. For us mere mortals, will he make representations through the usual channels to ensure that the votes are separate?

Will the Minister explain to the House why he has set against the calls to make an NPS amendable? We understand that there will be a take-it-or-leave-it vote. It would be interesting to hear the justification for taking scrutiny so far but no further. He might have a very strong rationale for that position, such as wanting to avoid the unpicking of an NPS that has been through exhaustive consultation, but we need to hear it.

There is a more fundamental point to be made about the parliamentary scrutiny of the NPSs, which goes to the very heart of the planning reforms that the Government are developing. The argument advanced by the coalition is that democratic accountability is best assured by laying the NPSs in front of the House and making a Minister, hopefully this Minister, answerable for them. In fact, he said back in June:

“A fast and efficient planning system is critical for facilitating investment in much needed new energy infrastructure. By abolishing the Infrastructure Planning Commission we will ensure that vital energy planning decisions are democratically accountable.”

His colleague the Minister of State, Department for Communities and Local Government, the right hon. Member for Tunbridge Wells (Greg Clark), went further, saying:

“Today the coalition is remedying those deficiencies by putting in place a new fast track process where the people’s elected representatives have responsibility for the final decisions about Britain’s future instead of unelected commissioners.”

Yet we understand that for the Minister, the consideration of the NPSs is a quasi-judicial decision. He has described it as such. Ministers, formerly myself included, are used to making quasi-judicial decisions and are made aware of the very strict limitations that bind them. His decision is strictly limited, involves the application of policy to a particular set of facts and requires the exercise of discretion and the application of the principles of natural justice. It is not a prescription for localism, political interference or ministerial hokey-cokey. It is about policy and facts.

May we safely assume that the NPSs, once presented to the House by the Minister in January, will be a fait accompli? May we assume that he will have satisfied himself, in a quasi-judicial role, that the NPSs presented are fit for purpose? He will listen to fellow MPs, but his mind will be made up. On that basis, will he tell us, first, what is the point of putting the NPSs to the House if they represent his full and final view? Secondly, if he has a mind to amend them, what specific examples can he give that would cause him to change his quasi-judicial view and alter the documents, and what further time delay would ensue?

[Charles Hendry]

I hesitate to intervene on the hon. Gentleman after my own comments went on for quite a while, but I wonder whether I can provide clarity on that issue now. The quasi-judicial aspect relates to a ministerial decision on a planning application, not to the approach taken to the national policy statements themselves. We are in the course of a three-month consultation, which will finish on 24 January. There will quite possibly be amendments to the NPSs after that, which will be in the final version put before the House for debate, assessment and a vote. We do not have a quasi-judicial capacity in that respect. My comments about acting in a quasi-judicial capacity related to ministerial decision making on individual planning applications under the rules set out in the NPSs.

[Huw Irranca-Davies]

I thank the Minister for that intervention, but will he clarify two things? Has he just said that NPSs will be amendable on the Floor of the House. He will sign off and present NPSs to the House, but will he sign them in a quasi-judicial role, or will he perform such a role only in respect of individual planning applications?

[Charles Hendry]

There is confusion between the approval process for NPSs and the role that Ministers will take in respect of individual planning decisions when the IPC has been abolished. On individual planning decisions, Ministers will act in a quasi-judicial capacity, but on NPSs, a revised consultation period to take account of the initial representations—we felt that improvements needed to be made—will end in January. If further revisions are necessary, a document will be put to the House for its final consideration and approval.

[Huw Irranca-Davies]

Is the Minister suggesting that the final document will be amendable and subject to a decision by the House, as I think I heard him say from a sedentary position? It would be helpful if he could clarify that, because we are talking about significant decisions over the future energy needs of this country. It is important that the House knows whether it is voting on a batch of NPSs or on each one individually and for how long they will be debated. It is also important that the House knows whether it has the ability to amend NPSs. If so, would that cause delays? My assumption is that if the House changes any individual NPS, it will need further consideration and possibly consultation. The Minister’s officials would certainly become involved, and relevant stakeholders would need to be consulted. There would be a minimum of 13 weeks’ consultation, as recommended by civil service guidelines, but possibly a heck of a lot more. It would be helpful to get some clarity on those issues before we debate NPSs.

[Charlie Elphicke]

Speaking of clarity, can the shadow Minister explain why we are threatened with the lights going out in 2015? Should he and his party not apologise for that shocking situation?

[Huw Irranca-Davies]

If the hon. Gentleman is seeking apologies, may I suggest that he starts by knocking on the door of No. 10? He should ask the Prime Minister why it took so long for him to move from a position of equivocation on nuclear new build to a position of indifference. Following Labour’s leadership, the Prime Minister finally rowed in behind on the need for nuclear new build. The five-year hiatus to which the Minister referred happened, as someone remarked earlier, because there was no appetite in the country or among the body politic to move forward on new nuclear. We showed leadership; certain individuals rowed in behind, but it took them a long time to do so.

For the sake of taxpayers, who are always in the mind of the coalition Government, will the Minister tell us what he knows about the cost of abolishing the IPC? What are the costs of the transition to the new major infrastructure unit within the planning inspectorate? Will there be savings for the taxpayer, and if so, will he or the Government publish those figures after the debate?

In the absence of the much anticipated localism Bill, where in the reformed process does localism rear its lovely head? Will the Minister explain how parliamentary scrutiny of NPSs, which represent the Minister’s opinion on the strategic needs of the UK, allows for localism? If the answer to that question is not in the Government’s response and if we will not be told in January, where is it?

What is the expected lifespan of NPSs? I ask that for a very good reason. The Minister recently spoke with clarity and purpose at a meeting of the World Coal Association, which I was pleased to attend, and made a bold prediction. He said with certainty that next spring, he would draw a line in the sand on his forthcoming decisions on a range of market mechanisms and incentives, including electricity market reforms, carbon floor-pricing, emissions performance standards, capacity payments and so on. The NPSs are part of that line in the sand, giving investors certainty for years ahead, yet they do not stand alone. There are so many “What ifs?”, and the Minister has to take these into account—it is like multi-dimensional chess.

I know that the Government do not particularly like the idea of school sport, as we discovered yesterday, but the Minister has been indulging in his favourite sport with his ministerial colleagues—an extreme sport known as Treasury-wrangling. After some delay, he came out with a partial win, announcing the first stage of commercial CCS—carbon capture and storage—which has delivered, after a slight delay of six months, the first part of Labour’s commitment to CCS. We look forward to him rapidly bringing forward not only that pilot, but the three others, including a pilot on gas CCS. However, may I urge—or should it be “nudge”, in the Government’s new lexicon?—the Minister to get on with that pronto? He has honestly and publicly acknowledged that there is no future for coal in the UK unless that technology is made to work. However, there is also a global imperative, as developing nations rush towards their own coal-powered futures. As such, this Government must avoid any further delay on the complete CCS programme of work.

However, what if CCS on a commercial scale does not work? What if there are delays because of cost, lack of funds or complexity, or because the technology to bring it forward is not available on time, or even not at all? We all want CCS to succeed—we all say that it has to succeed—and we are full of hope that it will, both for UK energy security and abating the global exploitation of fossil fuels. However, a reasonable man—and a reasonable Minister—cannot just assume that that will happen, and must therefore make contingency plans.

[Martin Horwood]

Given that carbon capture and storage technology has been in use on a commercial scale in the United States for some 40 years—albeit not on the same scale as that envisaged for the power stations in question—what does the hon. Gentleman imagine the technical barriers will be?

[Huw Irranca-Davies]

I am glad to say that I am not an engineer, but that is exactly the point behind the large-scale commercial CCS pilots. That is exactly why we are running them, and we all hope that CCS will work. Indeed, I recognise the hon. Gentleman’s confidence that it definitely will work. However, there are some nagging “What ifs?”. What if CCS is not delivered on time, or cannot happen because of the technology, the scale or the investment?

In my short time in this post, I have come to realise that the Minister’s Front-Bench colleague, the hon. Member for Bexhill and Battle (Gregory Barker), positively exudes enthusiasm. Indeed, he leaves a trail of enthusiasm wherever he goes, and for every conceivable energy source. His enthusiasm is demonstrated in photo-ops around the country and around the world, but what if the latest enthusiasm for decentralised energy, which the Minister mentioned, and combined heat and power is not realised, because the electricity grid is not smart enough to make it work locally or because the right incentives are not in place, or for other reasons?

I have a final “What if?” for the Minister: the nuclear “What if?”. He has been categorical in recent days—heroically categorical—that new build nuclear is on schedule for 2017-18. Yet he knows that the Health and Safety Executive will not be issuing final certificates next year on the two designs that this House has taken through in the past few days through justification orders, but will instead issue interim certificates. There is more work to be done on the designs and, equally importantly, the build speed of new nuclear, as evidenced by delays internationally, in Europe, the US and Asia.

The coalition Government have struggled to come to terms with their identity crisis on nuclear—do they love it or hate it, and will they unequivocally support it or sit on the fence—but the Minister deserves some credit for helping his Lib Dem comrades down off the fence. However, the industry still waits for the long-term certainty of market signals that will bring forward the investment at all, let alone on time. So, there are “What ifs?” on nuclear, decentralised energy and CCS, as well as on other things, if only we had the time to discuss them in this short debate.

[Martin Horwood]

rose—

[Huw Irranca-Davies]

I will not take another intervention because there are other people waiting to speak.

Meanwhile, part 3 of the overarching energy policy statement details new electricity projections. It outlines the need for 59 GW of new capacity by 2025, of which as much as 33 GW will be from renewables, thus leaving a significant potential gap, on top of the energy gap that we already acknowledge, if the Minister’s best laid plans do not come to fruition. This raises the question of how the Minister can avoid re-carbonising instead of de-carbonising the energy sector if an unabated dash for expensive imported gas rushes in to fill the looming energy gap. The dash for gas and the energy gap could be made far worse if any of the “what ifs” were to happen. The Minister has honestly and openly accepted that gas will form part of our journey to a de-carbonised future, but how will he ensure that we do not stumble into a new generation of unabated gas use by default?

As a former Minister, I recognise the problem of dealing with highly complex issues and scenario planning. I therefore ask the Minister to share with the House his scenario planning and risk analysis for the energy market, before we come to debate the national policy statements in detail on the Floor of the House in January. If there is to be real democratic accountability, the House needs to see the complete assumptions on which the Minister is making his case for the NPSs and for the energy market underpinning them. We assume that these have been done. If nuclear, CCS, decentralised energy or a whole host of other variables were delayed or undeliverable, what is plan B, plan C or plan D, and would any of them allow us still to reach our aims on energy security and low carbon energy?

In that regard, what is the Minister’s response to the recommendation of the Committee on Climate Change, in response to the proposals for national policy statements on energy, that the Government act on the Committee’s proposal that the widely accepted concept of fully de-carbonising the electricity sector by 2030 should be made explicit in Government policy and NPSs? It has been widely accepted anyway, and it would drive the achievement of the 2050 targets on greenhouse gases. The Committee asserts that making explicit that commitment would drive forward decision making on new generating capacity and give certainty to investors regarding the Government’s overarching energy policy.

[Dan Byles]

The shadow Minister has highlighted the concern that many of the Government’s plans are predicated on CCS working and on investment in nuclear coming through, and he has asked what plan B is. Can we look forward to hearing from those on his own Front Bench what their plan B would be if they were in government?

[Huw Irranca-Davies]

I can give the hon. Gentleman a guarantee that we are committed to assisting the Government to deliver this, but to ignore the potential scenarios of not making good in any one of these areas would be to bury our head in the sand. There are real concerns that there could be delays in one of these areas, and if that were to happen, we, as a constructive Opposition would have to work jointly with the Government to fathom a way in which we could still deliver de-carbonised energy, hit our carbon reduction targets and deliver energy security and affordable energy. I have not even touched on the issues of the green deal and the green investment bank that were raised by other Members earlier. That is why we need to see the Government’s working assumptions, the detail behind the Minister’s development of these NPSs and, as soon as possible, the proposals for electricity market reform.

I am pleased that the Minister is talking a lot about the intentions behind the NPSs, but we are really up against time. I know that he will once again stand up and say that that is all the fault of the previous Administration, but actually it was the previous Administration who put in the foundations for what the coalition Government are now rightly taking forward. We will look to the Government to make good, and we will be constructive in helping them, but the House and the Energy and Climate Change Committee need to be able to wrestle with the facts as well as with the broad thrust of the statements. I have spoken longer than I intended to, and I look forward to hearing the comments of other Members.

18:03

[Damian Collins (Folkestone and Hythe) (Con)]

We have had a tour de force from the Minister and the shadow Minister on many of the issues in the national policy statements for energy. I shall restrict my comments to an issue that affects my constituency, which is the list of suggested nuclear new build sites and, in particular, the Dungeness site. At present, there is an A station and a B station at Dungeness, and the site was included on the previous Government’s original list of 11 sites to be consulted on. Before the general election, it was removed from the list after the initial stage of the consultation, and it has remained off the list of potential sites to be taken forward within the national policy statement in the draft consultation that has been presented to Parliament.

I have already discussed the issue in debates in the House and in Westminster Hall and I do not want to go over all the ground again, but I do want to deal with some specific points raised by the draft national policy statement which may be of interest to other Members. Let me say first that I am grateful to the Minister for the interest that he has taken in the subject, for his time, and for agreeing to meet me later in the month, along with representatives of Shepway district council and Kent county council, to establish whether any progress can be made.

I note from the draft statement that the Government consider the site of Dungeness nuclear power station to be a credible site for a new power station should the principal concerns about it be addressed during the rest of the consultation period. Those concerns lie chiefly with Natural England’s objection to the development in a special protected area, a Natura 2000 reserve with a European designation. Dungeness is the only site under consideration in the initial consultation in which development would take place within a protected area. There are problems with the other sites that the Government believe can be solved, but the problems affecting Dungeness remain.

My constituents have particular concerns. They are typical of many communities living alongside nuclear power stations who have grown used to them, and are gratefully respectful not only of the energy that they contribute but of the large amount of employment that they bring to the communities that they serve. The existing Dungeness B station brings about £20 million a year into the local economy in Romney Marsh and in my constituency. That is not to be sniffed at: it would be difficult for a community to obtain the same amount of investment from any other source.

My constituents’ concerns lie with Natural England’s objections, with which the draft statement deals in some detail. The statement gives an answer, but it does not provide much further consideration that could help us to address some of those concerns. One objection is that building on the vegetated shingle at Dungeness would damage the site, and that that damage could not be mitigated. The counter-argument is that there would be a relatively small amount of development, and that a new nuclear power station would take up less than 1% of the entire protected area and thus could not be said to damage the integrity of the whole site. Natural England, however, believes that the damage will be greater, and that it will be impossible to mitigate.

We would like to know what further study could be conducted. Some of the land that would be lost has been developed before: it is not virgin territory that has never been disturbed. Much of the area that would be disturbed by the building of a new power station was disturbed when the existing power station was built. We would like any further study to consider the areas containing flora and fauna, and the vegetation on the shingle, which is the reason for the designation. Natural England says that if that vegetation is lost, it would not come back, but in parts of the peninsula it can be seen that where vegetation has been disturbed and lost, it has grown back.

Is a further study possible? Could it be said that Natural England’s concerns are not as great as it would have us believe, and that there is room for mitigation? We would welcome some guidance, either from the Government or through the process that is taking place. At present, the response seems to be an absolute “no”, although there have been a series of detailed considerations. EDF Energy, the owner of the current site, has made three presentations to the Government during the consultation, and Shepway district council has presented the Department with its own report, written by Ian Jackson. I know that those views have been considered, but we have been given no further detailed information about why they have been rejected, and we would like to know how we can make progress.

The behaviour of Natural England raises a different concern. A view is developing among local people that Natural England is not particularly interested in the opinions of others, but is interested only in its own opinion, and that that colours its desire to extend the protected areas beyond the current Dungeness site. At the end of last month, Shepway district council passed a motion which includes the following paragraph:

“This Council therefore rejects any need for the extension of the Dungeness, Romney Marsh and Rye Bay area nature conservation designations. It further looks to Natural England to work with the local population and businesses to find a more collaborative and integrated approach in preference to the prescriptive approach it is currently favouring.”

We would certainly welcome that.

Turning to the nature of the national policy statements, the site report on Dungeness states:

“Given the nature of the issues at Dungeness, it may be easier to ascertain that there will not be adverse effects on the integrity of the SAC at the detailed project level of an application for development consent.”

My concern in that respect is that no energy company would take forward such a proposal for Dungeness if it were not included in the list of preferred sites. The Minister said to the Energy and Climate Change Committee yesterday that national policy statements

“set the framework for major planning decisions. I think that the thoroughness with which they address those issues gives investors a significant amount of security.”

I agree; that is what the national policy statements are for. However, if a site is not included in a list, even though it can in theory be taken forward, no one will do so without a degree of certainty. I therefore wonder whether Dungeness could be included within the draft NPS, but with caveats listing the concerns of Natural England, which could then be addressed at a later stage. I would like us to be able to get to that stage first, however.

18:11

[Dr Alan Whitehead (Southampton, Test) (Lab)]

We have a scandalously short time in which to address these issues this evening. I have calculated that if we were to stack vertically the documents we are talking about this evening—important documents fundamental to the future of our energy planning—the pile would be 7 inches high. We have therefore been allocated 21 minutes per inch of document. As I have seven minutes, I will address just one third of the documents by focusing on EN-1 and EN-5. However, I hope the powers that be will press through the usual channels for a lot more time in the Chamber to discuss these documents as they go through the consultative phase, because it is just not right that we have such a short time to get to grips with them.

EN-1 is an overarching policy document setting out our energy planning framework for the future. It deals with our climate change commitments, and our commitments to reduce our greenhouse gas emissions by 80% by 2050. That, in turn, means the documents have to address the decarbonisation of the UK’s energy supply. The Committee on Climate Change wrote to the Secretary of State for Energy on 17 June, stating baldly:

“The path to meeting the UK’s 2050 target to reduce emissions by 80% requires that the power sector is largely decarbonised in the period to 2030 (e.g. average emissions should be about 100 g/kWh in 2030 compared to around 500 g/kWh currently).”

I assume that the Government largely agree with the Committee on Climate Change that to meet the requirements of our climate change budgets this, or something like it, should be the scenario and that that will be reflected in the planning documents that are published. After all, if we are to achieve these goals we cannot just hope they will happen; we need to plan for them, and to achieve them through a combination of planning signals, market incentives and supply and trading arrangements.

EN-1 states that under some of our pathways some revisions have taken the scenario beyond 2025 towards the 2050 targets. It states:

“Under some of our 2050 pathways, energy would need to be virtually emission-free”.

[Tessa Munt]

Does the hon. Gentleman agree that the Infrastructure Planning Commission successor body appears to be carbon-blind in its decision making under the arrangements? The IPC successor body should give significant weight to any project’s carbon emissions and ensure that cumulative emissions from the various projects do not jeopardise the UK’s carbon targets and their budgets. The national policy statement should provide an additional safeguard to that process.

[Dr Whitehead]

The hon. Lady is absolutely right. In response to the Energy and Climate Change Committee report examining the previous national policy statements the Government have accepted they need to undertake some sort of spatial planning arrangement which will look at the cumulative impacts between various arrangements as they progress. She is also absolutely right that in this NPS that question of decarbonisation of supply needs to be part of the process, not anterior to it. The current level of emissions of our energy supply means that if we are to get to that position, gas at about 450 grams per kWh unabated probably will have no part to play in the energy economy by 2030—when abated, it comes in at about 100 grams per kWh.

What are we planning? What are we looking for in these overarching documents? According to EN-1, we are planning to require a capacity of about 113 GW of installed power sources by 2025, which is a substantial increase on 2010 levels because of the penetration of wind, in particular. According to the scenario of that capacity projection, wind needs greater capacity to balance its variability. So the 113 GW, which is an increase on the about 80 GW of installed capacity that we have at the moment, will need to be installed by that point. However, 22 GW are expected to go offline, including most nuclear plants and a number of power plants, under the large plant directive and the industrial emissions directive. So 59 GW of new power will need to be built between now and 2025, one way or another.

If we reach the renewables targets for wind, and we probably will, given the amount of wind power already in planning, we will have about 33 GW of wind power on the grid. That means that we will need 26 GW of new build non-renewables or non-wind. Of whatever type, they will, for the reasons I have outlined, need to be low-carbon or lowish-carbon. Some 8 GW are under construction and almost all that construction relates to gas. That leaves a balance of 18 GW. Some 9 GW is not under construction but has planning permission. The Government dismiss that as uncertain, but 5 GW of that relates to gas; plans for a further 7 GW are under consideration, most of which also relates to gas. So it appears that most of the current gap is set to be made up by gas. As the Select Committee has been told by the Committee on Climate Change, more gas is in the pipeline in terms of planning, permissions or build than we need for that future decarbonisation strategy to work.

The NPS says that

“it would be for industry to determine the exact mix of the remaining 26 GW of required new electricity capacity, acting within the strategic framework set by the Government”.

If industry decides as it appears to be deciding, it will choose gas. If it is to be gas and that gas is unabated or only partially abated, the decarbonisation of our electricity supply will not happen.

[David Mowat (Warrington South) (Con)]

rose—

[Dr Whitehead]

I am sorry but I have to make progress because I will not get injury time for the second intervention I take.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

You will, Alan.

[Dr Whitehead]

Okay, then I will take the intervention.

[David Mowat]

Thank you for your help on that matter, Mr Deputy Speaker. I agree with the hon. Gentleman’s point about decarbonisation, but it prompts the question: how much cost penalty would he advocate as reasonable in order for us to go down the route of a totally carbon-free mix in the way he is suggesting? Each household in the country already pays about £50 for the renewables obligation. The implication of his remarks is that the sum should be very much higher. I wonder whether he has thought about that.

[Dr Whitehead]

Indeed I have. I think we will find out considerably more about that in the material that will come out on energy market reform, particularly the details on what a carbon floor price will look like and what capacity payments will look like to keep the energy balance more decarbonised in future. Yes, that will add costs to the system and there need to be circumstances in which those can be abated for the public, but that is a particular issue for the energy market reform material to address.

When the Minister was asked in the recent Energy and Climate Change Committee sitting about the gap that I have mentioned he said that it is possible that 16 GW of the 18 GW gap could be new nuclear. That represents 10 new nuclear power stations by 2025, and although that would solve the gap problem it has the unfortunate downside of being inherently implausible. The Minister may want to rectify what he said in the light of that implausibility at a future date.

The Committee on Climate Change’s estimate for the nuclear roll-out, produced in 2009, said that there would be a maximum of three nuclear power stations online by 2020, even based on optimistic build and planning time scenarios. Indeed, as we have seen, the timing of the justification process has already slipped.

That leaves a gap that is not filled by nuclear. It is clear at the moment that there is an apparent contradiction in our national planning statements. We want to decarbonise our supply, but for 2025 we are pushing towards having a majority of gas as opposed to a small amount of peripheral gas at peaking periods, which is what our future energy supply should be based on.

That is compounded by NPS EN-5, which attempts to collate permissions for plant and line. It will therefore replicate the question of providing grid capacity for plants as they stand and not provide new grid capacity for plants that are not yet completed and that will be needed for a decentralised and decarbonised future energy supply.

I do not have time to go into the matter of electricity storage, but I hope that the NPSs will pay some attention to that question. It is not true that electricity cannot be stored, as NPS EN-1 says. It can be stored and storage must be a future part of our increased capacity, as the Minister mentioned in the Select Committee yesterday. I hope that the Minister will reflect on that.

18:21

[Richard Graham (Gloucester) (Con)]

Thank you, Mr Deputy Speaker, for allowing me to contribute to this stimulating debate, which is fundamentally focused on the process of establishing the Government’s important plan for the greatest increase in energy capacity and generation that we will see in our lifetimes. It is required, of course, to avoid a situation such as the one described by the line, “The lights are going out all over Europe; we may not see them lit again in our lifetimes.” That phrase was used by Sir Edward Grey, the British Foreign Secretary at the beginning of the first world war, as a metaphor for the catastrophe that was enveloping our continent, but by 2014 it could be the reality of our energy situation.

I congratulate my hon. Friend the Minister on leading us towards a plan and through a process that will attract the enormous new investment of some £200 billion that is required to replace a third of all power stations in the next 10 years. I want to touch briefly on one aspect of it, which is the nuclear energy part. I am conscious that the shadow Minister said earlier that our overall energy situation was in “darn good shape” and “ready to go”. If new nuclear power stations had been under starter’s orders for 13 years, there must have been a terrible problem with the starter’s pistol.

Today those plans are closer to becoming reality, not least because of the contribution made by EDF and its plan for a new nuclear power station. It is worth reminding Members that EDF took over the eight existing nuclear power stations previously operated by British Energy from Barnwood in my constituency. It is also worth noting EDF’s considerable investment, which will benefit people all over this country, of £20 billion towards the next new power station. That is almost twice EDF’s initial investment in buying British Energy.

With the new generation of nuclear power stations come one or two other things I want to make the House aware of. First, the Barnwood nuclear power academy is becoming the training academy for nuclear engineers not just from this country but from all over Europe, and it brings thousands of young engineers to learn their trade in the centre of England. It is also running the country’s leading apprenticeship scheme, with some 400 apprentices studying on a four-year course. I am optimistic that before the Gloucestershire apprenticeship fair in February of next year, the academy will offer more apprenticeships in finance and human resources as well as in the core business of engineering on the operations side. Nuclear power is critical to the future of our energy supply and to employment opportunities in the energy sector—EDF will create some 2,000 jobs over the next 10 years. It is also important in terms of employment opportunities for our young through an ever-expanding apprenticeship scheme. That illustrates how important it is, first, to attract foreign investment to Britain; and secondly, to set up a framework and a robust plan so investors have the confidence to fulfil their part in the important new energy capabilities that the Minister is shaping us towards.

I conclude by saying that I hugely look forward to hosting a visit by the Minister to Barnwood soon to see at first hand the enthusiasm in my constituency both for tackling the energy shortages in our country and for building new nuclear power stations. Overall, the national policy statements will contribute hugely to having a more robust process, and I will certainly vote in favour of them this evening.

18:26

[Tom Greatrex (Rutherglen and Hamilton West) (Lab/Co-op)]

I am grateful for the opportunity to speak in this debate. I served for a short time on the Energy and Climate Change Committee before being moved on to other things.

As the Minister and the shadow Minister, my hon. Friend the Member for Ogmore (Huw Irranca-Davies), made clear in their opening remarks, the policy statements are important, and it is crucial that we have the opportunity to debate them—I hope that we will have more opportunity to debate them than the short time that is available this evening. Bearing in mind that several Government Members want to speak, I will try to curtail my remarks to less than seven minutes, if possible.

As the Minister has said, policy statements are crucial to energy security, our capacity and our ageing plant, which needs to be replaced. As the hon. Member for Gloucester (Richard Graham) said, they are crucial to investment, which can create and sustain jobs in the industry and the supply chain—I know that many Members on both sides of the House have a definite interest in that.

I will not repeat the issues with Sheffield Forgemasters, other than to say that it is a crying shame that opportunities to develop, nurture and create jobs and skills will be enjoyed by other parts of the world, when we are focused on trying—in the words of the Prime Minister—to “rebalance the economy”.

I want to touch on a couple of issues, to which I hope the Minister will respond. Many Members are more than aware of the huge frustration at the time it takes to move an infrastructure project from planning to building and to being ready for use—the clock is, as we all know, ticking. The previous Government looked to address that frustration through the Infrastructure Planning Commission. There are concerns that by choosing a different route—by making the IPC part of the Planning Inspectorate—the Government might be subjecting the certainty that investors need to further delays. In moving to that model, I hope that some reassurance will be given that delays will not result in investment decisions not being taken or in investment being taken elsewhere. That is absolutely crucial.

The Minister knows from our discussions that I welcome the Government’s commitment to carbon capture and storage and to the pilot project at Longannet. That is the right project, given the speed with which existing coal technology can be retrofitted and be up and running.

As my hon. Friend the Member for Wansbeck (Ian Lavery) said in an intervention, it is also important that gas forms part of future carbon capture and storage projects. I have heard the Minister refer to that, but I would be grateful if he reaffirmed it and gave further information. Otherwise, we will miss out on technology that can be developed, tested and used in this country, which goes back to my earlier point about some of the jobs and skills that can be nurtured in this country but exported elsewhere. When the Prime Minister and others go off to China, India and other parts of the world evangelising for UK manufacturing industry, there is potential for jobs to be created in the whole of the UK, not only in one part. That can help to join up the parts of the policy agenda.

I want to touch on some of the issues of electricity market reform. I know that I am getting a reputation for being able to bore on about transmission charging for ever, but I have about two minutes, so I will bore on about it briefly. As the Minister will be aware, there is considerable concern in some parts of the industry that investment decisions are being limited by the current transmission charging regime. Although the Ofgem review is being conducted—I welcome Ofgem’s recent change in stance—we have to be absolutely clear that as the electricity markets are reformed the transmission charging regime changes too. It was designed primarily for the pre-renewables world and is not serving our interests in achieving our overall targets for reducing carbon. There is potential for that industry to develop, partly, but not entirely, in Scotland, where investors could be put off making a number of decisions on projects as a result of the current transmission charging regime.

There has been a lot of talk about the importance of the green investment bank. The idea originated under the previous Government and has been carried forward under this Government. It is crucial that we get the model right. It has to be about levering in green investment on a certain scale if it is to have any positive impact.

I use my last few seconds to reiterate my plea to the Secretary of State for Scotland—which he seemed to begin to agree with—that the green investment bank be based in Scotland, given the industry and the expertise that is there.

18:32

[Sarah Newton (Truro and Falmouth) (Con)]

I am pleased to be called to speak in this important debate. Like many MPs, I believe that the first responsibility of any Government is the security of its citizens, and I take that responsibility very seriously. Securing our energy supplies is vital for the well-being and prosperity of the people who sent us here to represent them. The failure of the previous Government to invest, despite the so-called boom years and their great appetite for spending other people’s money, has led to our being far too dependent on imports to supply our national energy needs. Why? As we are discovering from so many other areas of policy that we have inherited, the reason is the previous Government’s failure to fix the roof while the sun was shining. There has been a lack of coherent and consistent policy to enable the UK to have a secure energy supply.

Like any industry, the providers of energy need a clear and timely planning process, and the national policy statements are a step in the right direction. Along with proposals that we anticipate in the localism Bill, they will create the right processes that will enable the development of sustainable and secure energy supplies for the UK. I believe that the new policies should provide an efficient and democratically accountable system, and a fast-track process for major infrastructure projects. There is no doubt that there is an urgent need for a new energy structure in the UK. In developing that structure, the right balance must be struck between consenting to and building new energy infrastructure and the importance of protecting our environment and the quality of life for those who live in the communities where that important infrastructure is located.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I wonder whether my hon. Friend might also emphasise the great importance of ensuring that energy is affordable for the poorest people in the country. There are some high-falutin’ ideas that seem to add cost for consumers, and they should be opposed.

[Sarah Newton]

I very much agree. Far too many people in constituencies such as my hon. Friend’s and mine, especially in rural areas, are living in real fuel poverty and enduring the hardship associated with high energy bills.

In establishing the right balance between environmental protection and the need to build new infrastructure, my hon. Friend the Minister must take very seriously the points my hon. Friend the Member for Folkestone and Hythe (Damian Collins) made about Natural England. Many of us up and down the country face the problems he described.

I welcome in the draft statement the recognition of the important role that local authorities will play in the development and consideration of proposed major energy projects. The extent to which local authorities wish to be involved in the planning process has always been, and will continue to be, up to them, but the new regime is a significant improvement, giving local government statutory rights in the process and ensuring that its views are adequately taken into consideration. In addition, rather than imposing additional costs, there are potential savings for local government from the new regime, as shorter hearings and quicker decisions should ensure that in future local authorities do not incur the costs incurred now.

As hon. Members will be aware, I represent a constituency in Cornwall, where we aspire to be world leaders in the new low carbon industrial revolution. As a result I have a particular interest in how the relevant parts of the NPS support the development of renewable energy. We are blessed with an abundance of natural resources that make us ideally situated to develop significant quantities of low carbon electricity to feed into the national grid. In the universities of Exeter and Plymouth and the Camborne school of mines, we have a world-leading knowledge base in renewable and sustainable energy. In local companies such as GeoScience and Kensa Engineering, we have pioneering and highly skilled engineering companies. The wave hub off Cornwall’s north coast is the first of its kind in Europe and it enables the testing of prototype wave and tide devices. We have great light for photovoltaics, an abundance of onshore wind and the hottest rocks in the UK. What we do not have is a national grid infrastructure able to take the anticipated volumes of electricity that can be generated locally to be fed into the grid. I believe that the NPS will help to tackle that wholly unsatisfactory situation.

Although I understand the Government’s reasons for feeling that there is no urgency about including technologies such as wave and tide in the NPS until large-scale commercially viable schemes have been developed, I urge the Minister to keep them in mind for the next round and subsequent revisions and, in the meantime, to do all he can to support that sector of renewable energy generation and to keep a watching brief on how the Marine Management Organisation handles its responsibilities. He will not be surprised to hear a similar plea from me for deep geothermal energy generation, which has the potential to contribute 5% of the UK’s electricity. That technology, which is tried and tested in other countries—often developed by UK engineers—is yet to receive the support it deserves from Government in this country. With my hon. Friend’s assistance, I hope to reverse that.

Given the scale of the challenge ahead, it is vital that NPS is capable of being revised and updated, so that, as we learn more about new and emerging technologies and develop an evidence base for their capacity to deliver energy into the grid and to contribute to the Government’s aim of decarbonising electricity production, they are supported and given the chance that inclusion in the NPS will provide.

18:40

[Andrew Percy (Brigg and Goole) (Con)]

It is a delight to follow my hon. Friend the Member for Truro and Falmouth (Sarah Newton), who spoke about the energy potential of the hot rocks of Cornwall. I shall say something about the energy potential of the East Riding of Yorkshire and north Lincolnshire, which it is my privilege to represent. My rocks may be a little colder, however.

We already contribute significantly to the energy infrastructure of this country, not least through the power stations just outside my constituency and the constituency of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), at Drax and Eggborough, as well as through the coal-fired power station at Keadby in my constituency. There are also the potential opportunities that I raised with the Minister earlier with regard to offshore wind at the South Humber Gateway. I shall not mention in the presence of my neighbour, my right hon. Friend and the Member for Haltemprice and Howden, onshore wind turbines, as he and I are engaged in a number of skirmishes with various developers.

I welcome today’s debate, which has ranged much broader than simply the national policy statements. We have gone into many wider areas of energy policy. The national policy statements will contribute to putting our energy policy on a much more secure footing, which we recognise is essential if we are to attract the necessary investment to keep the lights on in this country, as other Members have mentioned.

I shall speak about two issues associated with the potential for offshore wind. I mentioned earlier the potential for clustering the manufacturing for offshore wind at the South Humber Gateway, which has been progressing somewhat slowly through the planning system, owing to similar problems to those mentioned by other Members in relation to Natural England. In fairness to both Natural England and the developers, I should say that there has been significant movement in recent days and we may well get agreement. The planning structure is a problem for us because the developers are looking at sites not just in the UK, but internationally. Unless we get that right, we risk losing a potentially huge amount of investment, in this case to other countries in Europe.

I was pleased to hear the Minister talk about the review of overhead lines, which are another massive issue in my constituency. The national grid seems to criss-cross all over some beautiful Lincolnshire and east Yorkshire countryside. I shall follow the proceedings with interest.

On the relationship between national policy statements and local councils, I echo some of the concerns expressed by the Energy and Climate Change Committee, which said:

“We are concerned that the current status of the NPSs within the wider planning system is, at best, ambiguous.”

I note the Government’s response, which states that

“the degree to which Government policy, including the policy in the NPS, or draft NPS, is relevant to any particular planning application . . . is not for Government to prescribe.”

They go on to say that they therefore do not believe that any additional guidance is necessary.

I ask the Minister to reconsider that. Having served as a local councillor for 10 years, I know that it is an undeniable attraction to planning officers to look for leadership from national Government in local planning decisions. Could we have a clearer statement that the NPSs will not impact on local planning decisions and should not be used as an excuse? We saw regional spatial strategies often being drawn into planning applications, where they had no real role. The temptation is irresistible to many planning officers to look to national policy for guidance. Perhaps that can be considered in more detail when we debate national policy statements next year.

I welcome the general direction of policy. The debate today has been interesting, with the Minister and the shadow Minister working on a consensual cross-party basis on many topics. That is significant on a subject that is so important to the country. I look forward to seeing the Minister at the South Humber Gateway shortly, and I thank him for that.

18:43

[Dan Byles (North Warwickshire) (Con)]

I shall keep my remarks brief, as I am conscious of time.

It is extremely important that we get energy policy right. It is right that the Department has reconsulted on it, rather than rushing ahead, as it might have done. If we get energy policy wrong, we will live with the consequences for decades to come. There is a huge infrastructure challenge. As has been mentioned, we need to replace about one third of our entire energy generating capacity in the next 10 years.

All our nuclear power stations bar one will be off line by 2023, and we need to rebuild substantially, if not completely, our energy transmission infrastructure if we are to move towards a smart grid, which we will need to enable the 21st century energy infrastructure that we are trying to put in place to work. This huge infrastructure challenge translates into a huge investment challenge. Some £200 billion of investment is required in the coming years. To put that into context, I point out that it is approximately one third of the entire investment in energy infrastructure that the whole of Europe will require. EDF is looking at spending some £20 billion on what we hope will be the first of a new generation of nuclear power stations. That £20 billion represents the largest single investment by a French company outside France, I think ever, but certainly since the second world war. We need another nine just like that if we are to hit our £200 billion.

At the risk of over-emphasising this issue, let me say that we absolutely have to get the investment climate right. We need to put in place a stable regulatory and investment climate that will give investors the confidence to invest staggering sums of money for 30 or 40-year timelines and beyond. The investment challenge here is probably the biggest single part of the issue that we are discussing today. I therefore strongly welcome the broad degree of cross-party consensus that we have on our emerging energy policy. Investors must have the confidence that we will not lurch from one energy policy in this country to another with potential changes of Government, but work together and put something in place that will give the confidence for 10, 20, 30, 40 years or more.

That is all I want to say. It is a plea as much to those on the Opposition Front Bench as to those on the Government Front Bench. We must ensure that we put together an investment and regulatory regime that will not change, that will be stable and give the confidence that is necessary if we are to have the investment that we need.

18:46

[Tessa Munt (Wells) (LD)]

I will return to my favourite subject of the electricity grid, particularly as it affects Somerset, Suffolk and the other areas that have been mentioned today. Electricity networks have a significant effect on the beauty and tranquillity of the countryside, and to date the industry has been guided by a set of principles called the Holford rules in routing new overhead lines. I particularly want to note that the second draft of the NPS on electricity networks proposes to weaken the standing of the Holford rules. The latest draft says only that decision makers

“should bear them in mind”.

That is likely to mean that there will be no requirement on either the electricity companies to demonstrate that they have sought to avoid damaging impacts on important areas of landscape, or that the decision maker should base its evaluation for proposed overhead transmission line schemes on whether the Holford rules have been met. Neither does there seem to be an expectation that the mitigation measures suggested in EN-5, at paragraph 2.8.9, should be carried out for schemes where one or more of the Holford rules are not met. The effect of this will be seriously to weaken the protection of the countryside from unnecessary or intrusive energy infrastructure.

The other minor points that I would like to make include the wording of several sections of the NPS where minor changes of wording could have major impacts. I will write to the Minister in detail about those if I may, but certainly there are paragraphs in EN-1 that relate to the historic environment where there is weakened protection for non-designated but still important heritage assets, and there are impacts on the visual landscape that relate to the regional economy departing from existing protections for nationally designated areas such as national parks or areas of outstanding natural beauty. In addition, EN-1 also seems to advise applicants on how to circumvent green belt protection.

Finally, I cannot reflect the comments that were made earlier, and I should like to be sure that there is some way in which local authorities can negotiate a realistic contribution from developers, especially, for example, for residents in my area, which will be providing a storage facility for nuclear waste on a temporary basis that I understand to be somewhere in excess of 100 years.

18:49

[Charles Hendry]

We have had a good debate. It has been brief, but it is part of the process, not the end, and there will be further opportunities to discuss the issues at length when the House returns in the new year. We have had a very good mix, involving national interest and a great tour of the energy opportunities horizon in the constituencies of many Members on both sides of the House. One of the most encouraging outcomes of the debate is the recognition that, throughout the country, people are looking at how we can generate electricity in a new way. Where are the new opportunities? The hot rocks in Cornwall and the cold rocks in Yorkshire—the great opportunities that we find around us—are something that we should truly celebrate as we look at the issue.

The hon. Member for Ogmore (Huw Irranca-Davies), who speaks for the Opposition on these matters, talked about who should take the credit, Labour Ministers or Conservative Ministers? I do not think it should be any of us, because it should be our incredibly hard-working officials, who have done almost all the work in getting us to our current position and an outstandingly good job on a very complex set of documents.

The hon. Gentleman talked about the delay. We wish that there had not been one, but we recognised that in the previous draft statement there was a flaw in the appraisal of sustainability, and we felt it right to re-interpret that in order to make it stronger and clearer. Because that was so fundamental and in the overarching national policy statement, it seemed right that we should re-consult on all the statements, and it has been absolutely the right way to take the matter forward.

On the question of how the process will move forward, we have assumed that there will be a debate about the national policy statements overall and, at the end of the day, votes on the individual statements, but we do not anticipate the scope for hundreds of amendments to them. We have changed the previous Government’s decision that there would be no vote at all, because we believe it important that, as part of this democratic process, the House should have the chance to vote on them.

The hon. Gentleman asked also about the role of localism. There is a difference between the nationally critical strategic infrastructure, which we deal with in the national policy statements, and the local agenda, where we believe that local authorities should have significantly more power when deciding on the issues that come to them below the 50 MW. Of course, the views of local people, directly and through their local authorities, will be an integral part of individual planning applications, and they will be heard.

I shall pick up on some of the other points that have been raised during the debate. My hon. Friend the Member for Folkestone and Hythe (Damian Collins) talked about Dungeness, and from our conversations and his consistent representations, I understand where he is coming from. We recognise that the development of a new nuclear power station at Dungeness would be a continued source of employment and bring economic benefits to the surrounding area, but the Government are obliged by law to consider adverse affects on the integrity of European-protected sites which might be caused by development and to consider alternative sites if those impacts cannot be mitigated.

Dungeness is not on the NPS, because we have not yet been persuaded that a new nuclear power station could be built there without having adverse impacts on the integrity of the Dungeness special area of conservation, or that adverse impacts could be avoided or mitigated. The Dungeness SAC is the most important shingle site in Europe, so after careful consideration of the representations made so far our view that Dungeness should be excluded has not changed. The consultation is continuing, and, if additional evidence that changes that conclusion emerges in the course of the meeting that I will have with my hon. Friend and his local authority’s representatives, or in written submissions, we will take it into account.

The hon. Member for Southampton, Test (Dr Whitehead), who speaks with such authority, raises several issues, but I shall focus on the role of gas. We see a need for gas, but part of the issue is that we have inherited a situation in which new nuclear cannot be built until the end of the decade, because its construction did not start earlier. Further, when it comes to the mass roll-out of renewables, we are third from bottom in the whole EU. We have great ambition but start from a long way behind. Carbon capture and storage on a major commercial scale cannot play a massive role until the end of the decade, although our ambitions for that are high.

Gas will therefore have to be part of the process; that is the simple, practical reality. Gas-powered stations can be built quickly; gas requires lower capital expenditure than other technologies, so the write-off period is lower; and importantly it is flexible, so it can back up other, more inherently variable technologies.

Of course, the issue of emissions will be critical. That is why we are taking forward the work on the carbon floor price and looking at emissions performance standards and the other measures that will be brought to bear, which investors will need to take into account as they make decisions on these critical investments. The time scale of that is now almost upon us. In the next few weeks, before Christmas, we will set out how the electricity market reform process will work.

My hon. Friends took me on a fascinating tour of the country. We heard about the nuclear opportunities in Gloucester and the great training opportunities at the Barnwood EDF facility. My hon. Friend the Member for Gloucester (Richard Graham) is absolutely right to talk about the skills agenda and the supply chain opportunities that we are determined to realise.

My hon. Friend the Member for Truro and Falmouth (Sarah Newton) focused on energy security and the issues surrounding the wave hub and deep geothermal resources. I look forward to visiting those facilities with her in due course. My hon. Friend the Member for Brigg and Goole (Andrew Percy) talked about the supply chain and his concerns about power lines, which we completely understand.

My hon. Friend the Member for Wells (Tessa Munt) spoke about the Holford rules. We will reflect on the concerns that she expressed, but we must also have clarity about what benefit local areas will achieve from these new investments. That is at the heart of the localism Bill. Thinking about how local communities should benefit in terms of business rates and other direct benefits coming into their communities will completely transform the relationship between these facilities and the communities who host them. That will be an important element as we move forward.

The hon. Member for Rutherglen and Hamilton West (Tom Greatrex) speaks with great authority on these issues, and the House benefits from his expertise. He is absolutely right that time is not on our side. The whole purpose of what we are trying to do is to remove the barriers to new investment in these areas. We are absolutely clear that there will be no public subsidy for new nuclear, but we must then remove the other potential barriers—the regulatory barriers—to ensure that that investment can go ahead. On carbon capture and storage, I can absolutely give him the assurance that we are looking to gas as part of the next projects. The market-sounding exercise showed a significant interest in gas, and we will therefore open up this competition to gas plants as well.

The hon. Gentleman talked about EMR and the cost of transmission. We have to look at this in a new way. People will not build power plants if they do not believe that they can get their power to market. Historically, power plants were built in the coal centres or outside the big industrial centres; now, we are looking at new places for them to be built. We have to look at this afresh, and I am delighted with the work that Ofgem is doing to look at the best structure for the process. I will leave others to deal with the issue of the location of the green investment bank.

Finally, I want to deal with some of the points made by the hon. Member for Ogmore. He mentioned “what if?” scenarios. He was right to do that, but we are in that “what if?” environment because of the situation that we inherited. After 13 years, we have to get £200 billion of new investment coming into the infrastructure. If more decisions had been made to take forward the role of nuclear and not to have the five-year moratorium, we would be significantly further advanced, and the challenging energy situation in the middle of this decade would not have applied in the same way.

My hon. Friend the Member for North Warwickshire (Dan Byles) talked extremely clearly and effectively about the energy security needs that we have to address. It is possible that CCS may not work, or that the price may be too high, but if we do not push the process forward and take advantage of the extraordinary opportunities that we have in this country, we will always be followers and never be leaders. That is why we have been so keen to take forward that technology.

The hon. Member for Ogmore suggested that decentralised energy may be unable to deliver as much as we hope, and he may be right. However, we are right to try to look at what can be done locally, although we are doing it against the backdrop of how much more should have been done historically. In the end, this all comes back to the broad portfolio of policies that we are putting forward—the need to have clarity on national planning issues, which is exactly what these documents are about, and the need to have clarity on the market structure that will exist.

The hon. Gentleman talked almost as if EMR—the market reform process—was his own idea. Seven months ago, Labour Members were saying that there did not need to be a price on carbon, that there should not be an emissions performance standard, and that we did not need capacity payments. We are having to reinvent a market in order to take us forward and give us the security that we need. This is part of a package. I hope that he is in no doubt about our determination to achieve that and to drive it forward. Let me assure my hon. Friends and all hon. Members that we totally understand everything that needs to be done to drive forward investment in this area. We will take nothing for granted. Our goal is to make this the most attractive place in the world in which to invest in new energy infrastructure. We are determined to do that and we look for consensus and partnership to take it forward. This debate has been a constructive and important part of that process. I hope we can conclude that we have had a good debate on these issues—

19:00

Motion lapsed (Standing Order No. 9(3)).

Business without Debate

Wednesday 1st December 2010 Commons Chamber

Delegated Legislation

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Official Statistics

That the draft Official Statistics Order 2010, which was laid before this House on 13 October, be approved.—(Mr Goodwill.)

Question agreed to.

Libel Law

Wednesday 1st December 2010 Commons Chamber

Motion made, and Question proposed, That this House do now adjourn.—(Mr Goodwill.)

19:00

[Mr David Davis (Haltemprice and Howden) (Con)]

If the world has a capital of free speech, it is Britain. If it has a centre of free speech, it is this Chamber, as you know well, Mr Speaker. Yet in the last few years, Britain has become a watchword for something else—the use of our libel law to suppress free speech.

This is not an esoteric philosophical issue. Free speech is the mother of freedom of thought and freedom of thought is the mother of many virtues, including integrity, individualism and creativity. That is why Britain has a vigorous and successful tradition of high culture and science, as well as of democracy. As I will demonstrate, all those virtues of British culture have been suppressed, to a greater or lesser extent, by our libel law.

As a Parliament, we have failed to defend one of our nation’s primary virtues—free speech. We have also failed in the duty to protect the weak and vulnerable from the rich and powerful. More often than not, it is the rich and powerful who use the libel laws to intimidate the less wealthy and the less powerful, as I shall demonstrate. Perhaps the best demonstration that English libel law has become a weapon of the rich and powerful is the extent to which they choose to use the English courts over any other option and over the courts of any other country. When Boris Berezovsky sued a Russian TV company, he did so not in Russia, where the deed occurred, but in England. Similarly, Roman Abramovich chose to sue an Italian newspaper not in Rome, but in London.

In 2004, the Saudi billionaire, Khalid bin Mahfouz, launched a libel action against Rachel Ehrenfeld, the American author of “Funding Evil: How Terrorism Is Financed—and How to Stop It”. The book claimed that Mahfouz financed al-Qaeda. It was not published here, but it was available online. Mahfouz brought the case not in America or Saudi Arabia, but in Britain, and the court awarded him substantial damages. As a direct result, New York law was changed to prevent British judgments applying in the US and American national law is undergoing the same change.

Those rich men each brought their cases under the English judicial system, rather than in the appropriate forum, because English libel law is complex, clumsy, expensive and draconian. It is 140 times more expensive to defend a libel case in England than in other European nations. As a result, it favours the wealthy man who has the most financial stamina and can afford the most expensive lawyers. Although libel tourism is not the most important weakness in English libel law, it is the starkest symptom of how unfair it can be, compared with every other jurisdiction in the modern world.

Perhaps the best domestic example of this grotesquely expensive system is the Naomi Campbell case. A newspaper wrote about her drug problem. It was sued and lost on the grounds of breach of confidentiality. Although the story was true, the legal fees alone cost more than £1 million.

How did all that come about? English libel law was largely developed centuries ago by English judges, as an alternative to duelling to protect the honour of gentlemen. I am sure that no Member wants to see Hampstead heath littered with the bodies of dead journalists, but I am not sure how much of an improvement that new law was. It has been compounded with undoubtedly well intentioned European Union and European Court of Human Rights law, and we have ended up with dreadful unintended consequences.

One of the most egregious consequences has been the rise of the so-called super-injunction, which bans any reporting of a case at all. The most extreme of those was the Trafigura case, which you will remember, Mr Speaker. Trafigura was accused of dumping toxic waste on the Ivory Coast, and for a while its lawyers secured a ban on the reporting even of questions in Parliament. In so doing, they overturned the absolute right to free speech fought for and won more than two centuries ago by John Wilkes. That is a suppression of free speech in this country that no one in the House should countenance or tolerate.

There is worse yet: the crushing of free speech in science and medicine. Both those disciplines advance by conjecture and refutation, through the advancing of theories and the testing of them by experiment. Free dispute and unfettered argument are essential to that process. Yet we are witnessing, time and again, the use of English libel law by powerful commercial interests to suppress legitimate discussion of scientific fact and medical effectiveness.

That is not entirely new. A famous member of this House, William Cobbett, was bankrupted by a lawsuit in 1797 after he pointed out that the practice of bleeding victims of yellow fever probably killed a number of them. He fled the lawsuit and the victims continued to be bled, and of course continued to die.

In modern times, the starkest example was the thalidomide case. For some time, The Sunday Times was prevented from publishing articles alleging negligence in the manufacture and distribution of the drug, which, as Members will remember, caused terrible deformities in the children of women who took it in pregnancy. That judgment was eventually overruled, and the law was rebalanced slightly to favour free speech in the Contempt of Court Act 1981. Unfortunately, however, there are still actions by commercial companies and other vested interests to suppress criticism of medical products and practices.

I shall give an example. Henrik Thomsen, a Danish radiologist, raised concerns that Omniscan, a drug used to enhance medical scanner images, was causing crippling pain and even death in a few patients. Despite the fact that medicine advances by a process of critical appraisal, the maker of the drug, GE Healthcare, sued him in the British courts, clearly in order to silence him. The suit has been resolved, but another medical specialist, the eminent cardiologist Peter Wilmshurst, has faced similar treatment. At a cardiology conference not in Britain but in Washington DC in 2007, he criticised a product made by an American company, NMT Medical, to deal with symptoms of hole-in-the-heart syndrome. NMT sued Mr Wilmshurst not in America but in the English courts. He courageously decided to fight the case, specifically to defend free speech.

Time and again, commercial companies take such action to silence critics. The proper, responsible, scientific way of dealing with criticism in medicine is tousb present the data and confront the argument. Using the law to silence legitimate criticism is to put shareholder interest above public health and, sometimes, public safety.

The best known case in England, of course, is that of Simon Singh, who essentially called some of the claims of chiropractors bogus. The British Chiropractic Association sued him and, after a protracted legal battle, lost. Nevertheless, he ended up hundreds of thousands of pounds out of pocket in addition to losing two years of his life—two years of stress, anxiety and the prospect of financial ruin. A less courageous man would have buckled, and indeed most do. That, of course, is the purpose: to intimidate critics out of saying anything, or to force a humiliating retraction, effectively gagging the press from reporting such criticism.

The tactics used are carefully refined. They are known as “lawfare” and are designed to focus the financial intimidation on the individual who is least able to bear it. The most recent demonstration of that nasty tactic would be ludicrous—bordering on the farcical—were it not so serious in its wider implications. It involves a product, elegantly called “Boob Job”, sold at £125 a jar and produced by a company called Rodial. The Daily Mail sought the advice of a leading consultant plastic surgeon, Dr Dalia Nield, of the London Clinic. As one might expect, she questioned its effectiveness and suggested that if it had the physiological effects claimed for it by its producers, it might be dangerous.

Rodial threatened Dr Nield with legal action. It has not threatened the Daily Mail, which carried her comments, because it has the resources to fight back, just Dr Nield, to get the maximum intimidation for the minimum risk. The proper response of any self-respecting company would be to publish the detailed composition of its product and the data supporting its claims, and engage experts to test those claims and carry out safety tests. That would be the approach of a respectable company, but I am afraid that Rodial has not taken such an approach—it has taken instead the approach of a charlatan and a bully.

Of course, Rodial is not alone. When NMT threatened Peter Wilmshurst with a lawsuit, it did not threaten the BBC, which broadcast his comments, because the BBC can fight back. When the chiropractors sued Simon Singh, they did not sue The Guardian, which published his comments, because The Guardian can fight back. That is why it is called “lawfare”—it is the deployment of judicial shock tactics against the most defenceless part of the opposition. It is a disgraceful tactic, and it should not be possible under any decently balanced judicial system.

The effect of “lawfare” is to chill free speech in science, medicine and many other areas. In this age of the internet, that chilling effect does not stop at our borders. We should remember that English is the language of science. The impact of our dysfunctional laws will become more global as more corporations come to understand what they can do to use our laws to suppress criticism.

[Fiona Mactaggart (Slough) (Lab)]

I wanted to highlight the fact that “lawfare” operates not merely in science. My constituent, Hardeep Singh, has been battling for four years in the ludicrously named case of His Holiness v. Singh. He has been accused by a sect leader in the Sikh tradition of libel, and it has taken up four years of his life and thousands of pounds to defend his claim in a religious dispute that, in my view, is not able to be decided by the courts.

[Mr Davis]

The hon. Lady is entirely right. I used science and medicine to demonstrate the starker effects of “lawfare”, but she has demonstrated one of the reasons why we debated the law on religious hatred: to allow unfettered discussion of religion, which is another great tradition of British democracy. I apologise to her constituent because I think of his case as Singh II, but it is just as important as the Singh case I cited, because both demonstrate only too clearly that we must get a grip on British libel law to prevent it damaging every aspect of our culture and tradition of free speech.

That brings me to what we should do. Regrettably, there is no single, simple solution. This week is the first anniversary of the Libel Reform Campaign, which encompasses campaigning organisations such as PEN, Index on Censorship, Sense About Science and others. There are a variety of issues that we need to address.

The cost of defending libel cases should be brought down. One step would be not to remove jury trial, but to introduce a tribunal process to deal with all but the most serious cases. The Minister might also care to tell us about his Green Paper—published a few weeks ago, I think—in which he talks about contingent fee arrangements and their possible reform, which might be another way of reducing costs. The law should focus on protecting individual reputation, without allowing heavy-handed commercial intimidation. One step towards that might be not to allow commercial companies above a certain size—in fact, really rather a small size—to bring such suits unless they can, in advance, demonstrate financial damage.

The public interest defence—again, this is something that the hon. Lady will be interested in—is too vague and unhelpful to authors of legitimate criticism. A stronger and clearer defence than that provided by the so-called Reynolds defence should be instituted. In particular, there should be a broader definition of what constitutes fair comment. In the light of what I have said about scientific and medical concerns, such a definition should be designed to exclude scientific and medical dispute from the courts completely. There should be intelligent limits on what constitutes multiple publication. For a court case to be brought in Britain, a significant proportion—certainly more than 10%—of the publication should have been in Britain. As the House can see, there are many proposals—I have given only a short list—that need to be considered. I should like the Minister to confirm that the Government will be introducing a Bill in 2011; that he will consult Index on Censorship, PEN, Sense About Science and other campaigners before publishing it; and that the Government will correct this unintended and unwanted systemic failure in our judicial system.

I shall finish by quoting the Appeal Court judges in the Simon Singh ruling. Speaking about the words used by Simon Singh in his criticism of the chiropractors, they said that his

“opinion may be mistaken, but to allow the party which has been denounced…to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”

The judges went on to quote Milton, writing about his visit to Italy, from 1683 to 1689:

“I have sat among their learned men…and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought…that nothing had been there written now these many years but flattery and fustian. There it was…I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.”

When the judges had finished quoting Milton, they said:

“That is a pass to which we ought not to come again.”

I say to the Minister: it is a pass that the coalition Government ought not to allow to come again. To achieve that, we need clearly thought through and thorough reform of this bad law, to put free speech back at the pinnacle of public life in Britain.

19:18

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I am grateful to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) for securing today’s debate on such an important and contemporary issue. Let me start by confirming that the Government are firmly committed to reviewing the law on defamation in order to protect free speech, and that is reflected in our coalition agreement. My noble Friend Lord McNally confirmed that commitment in July by announcing on behalf of the Government that we will publish a draft defamation Bill for consultation and pre-legislative scrutiny in the first Session of this Parliament, with a view to introducing a substantive Bill as soon thereafter as parliamentary time allows.

Our core aim in reviewing the law is to ensure that responsible journalism, academic and scientific debate and the valuable work of non-governmental organisations are properly protected, and that a fair balance is struck between freedom of expression and the protection of reputation. We want to ensure that the right balance is achieved, so that people who have been defamed are able to take action to protect their reputation where appropriate, but that free speech is not unjustifiably impeded.

Ensuring that the right balance is struck is a difficult and sensitive exercise. It raises complex issues on which a wide range of differing views are likely to be held. In recognition of that, I can confirm to my right hon. Friend that we believe that any reform proposals will need to be the subject of extensive consultation, and that publication of a draft Bill for pre-legislative scrutiny, together with a full public consultation, represents the most effective approach to achieving substantive provisions that focus on core issues of concern where legislation can make a real difference.

Since Lord McNally’s announcement, the Ministry of Justice held informal discussions with a range of people and organisations with an interest in defamation law to ensure that their views are taken into account. These included: non-governmental organisations and libel reform campaigners; claimant representatives and members of the legal profession; representatives of the media and the publishing industry; internet service providers and other internet-based organisations; and representatives of the science community. I can confirm to my right hon. Friend that they included, as he requested, Index on Censorship, PEN and Sense About Science.

My right hon. Friend featured the position of the science community very strongly in his remarks. It would be inappropriate for me to comment on many of the cases that he mentioned, given that proceedings are pending. I can confirm, however, that we are very much aware of the concerns about the harmful impact that the current law is having on scientific debate. The case of Simon Singh and his brave stand for his beliefs have been widely reported, and I was pleased to hear his position being clearly explained this evening by his MP, the hon. Member for Slough (Fiona Mactaggart). We want to ensure that any provisions that we introduce will help to address those concerns and enable robust scientific and academic debate to flourish without being hampered by the threat of libel proceedings.

The discussions that we held were extremely helpful in identifying areas in which concerns exist and the possible approaches to tackling the difficulties that arise with the current law. We have also had the benefit of being able to consider the range of issues raised in the private Member’s Bill on defamation that was introduced earlier in the year by Lord Lester of Herne Hill. That Bill was also the subject of a debate called by my hon. Friend the Member for Maldon (Mr Whittingdale) in Westminster Hall in July this year on behalf of the Culture, Media and Sport Committee, which he chairs. It is good to see him here this evening.

It is not possible for me to indicate today precisely what provisions might be included in the Government’s draft Bill on defamation. However, a range of issues have been the subject of much discussion and debate over recent months, and I can confirm that we are giving careful consideration to them, to assess whether it is appropriate to include provisions in the draft Bill. They include the need for a statutory defence relating to the public interest and responsible journalism. Concerns have been expressed by non-governmental organisations, the scientific community and others that there is a lack of certainty over how the common law defence established in Reynolds v. Times Newspapers applies outside the context of mainstream journalism, and that this creates a chilling effect on freedom of expression and investigative reporting. This is a complex area of the law, and we are considering whether and how a statutory defence could be framed in a way that is beneficial and appropriate for a range of different contexts.

We are also considering libel tourism. My right hon. Friend gave various examples of that. There is a widespread perception that the English courts have become the forum of choice for those who wish to sue for libel, and that that is having a chilling effect on freedom of expression. I have to say to him, however, that there are mixed views over the extent to which libel tourism is a real problem. Research conducted in the context of the libel working group’s consideration of this issue did not show a significant number of actual cases involving foreign litigants in the High Court in 2009. However, non-governmental organisations have indicated that a major problem arises from the threat of libel proceedings by wealthy foreigners and public figures, which is used to stifle investigative journalism, regardless of whether actual cases are subsequently brought—hence the fact that the number of cases alone might not accurately reflect the extent of the problem.

We are considering possible options carefully in reaching a decision on the way forward, including the proposal of the Ministry of Justice libel working group for procedural steps to tighten the rules and practice in order to head off inappropriate claims at the earliest possible stage, in cases where court permission is required to serve a defamation claim outside England and Wales. In doing so, we are of course keeping in mind the fact that there is relevant European legislation—in particular the Brussels I regulation—on jurisdictional matters.

We are also considering the difficulties caused by the “multiple publication rule”—whereby each publication of defamatory material gives rise to a separate cause of action subject to its own limitation period—in relation to online material. The effect of the rule is that publishers are potentially liable for any defamatory material published by them and accessed online. That applies however long after the initial publication the material is accessed, and whether or not proceedings have already been brought in relation to the initial publication. We are considering how we could frame a single publication rule to remove the current threat of open-ended liability.

We are also considering a range of other aspects of the law. They include the possible need for provisions on renaming and codifying the existing defences of justification and fair comment; on the basis on which an action for defamation can be brought and whether it should be necessary for claimants to show that they have suffered substantial harm; on the ability of corporations to bring defamation actions; on trial by jury; on defamation in the context of internet publication; and on issues relating to absolute and qualified privilege. There is much ground to cover

My right hon. Friend asked about the use of super-injunctions. I can tell him that the Master of the Rolls has set up a committee to examine their use. We look forward to seeing the outcome of its work soon.

We are pressing ahead with our work to ensure that publication of the draft Bill and the accompanying consultation paper takes place on as timely a basis as possible in the new year. As well as considering the substantive law, we are determined to ensure that costs in all civil proceedings, including defamation, are proportionate. In that context, the Secretary of State for Justice announced to the House on 15 November that the Government were consulting on proposals for reform of civil litigation funding and costs in England and Wales. We are seeking views on the implementation of a package of recommendations made by Lord Justice Jackson in his “Review of Civil Litigation Costs”. The Government are grateful for Sir Rupert Jackson’s report, in which he argues cogently that the costs of civil litigation are too high and are often disproportionate to the sums at issue. I also accept his fundamental argument that achieving proportionate costs and promoting access to justice go hand in hand.

The key proposal on which we are consulting is the one to abolish recoverability of success fees and “after the event” insurance premiums under conditional fee agreements. Defendants who lose their cases are currently liable for those additional costs, which are often substantial. Abolishing recoverability would mean that claimants had to pay their lawyers’ success fees, and would therefore take an interest in the costs being incurred on their behalf. It is clear that if the current situation continues, and claimants continue to have no interest in the legal costs of their own lawyer if they win or in those of the defendant’s lawyer if they lose, the “have a go” compensation culture can only grow.

As well as consulting on that key proposal for reform of CFAs, we are seeking views on implementing a package of Sir Rupert’s recommendations that balances measures for defendants with measures affecting claimants. They include introducing qualified one-way cost shifting, increasing general damages by 10%, strengthening part 36 arrangements, which encourage parties to make and accept reasonable offers, and allowing damages-based agreements in civil litigation, otherwise known as contingency fees. It is hoped that the proposals will result overall in more proportionate costs in all civil proceedings including defamation, while enabling those who need access to justice to obtain it. The consultation on reform of civil litigation funding and costs closes on 14 February 2011, and in due course the Government will publish a response setting out the next steps.

I hope that I have reassured my right hon. Friend and other colleagues that we are taking focused and proportionate action that takes account of many of the issues involved. I believe that it is very important to ensure that the law achieves a fair balance between freedom of expression and the protection of reputation, and that steps are taken to bring the cost of proceedings under control. I thank my right hon. Friend again for the valuable contribution to the ongoing debate on these issues that he has made today.

Question put and agreed to.

19:29

House adjourned.

Division 135

Ayes: 317

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Conservative: 261
Liberal Democrat: 48
Democratic Unionist Party: 5
Independent: 1
Alliance: 1

Noes: 212

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Labour: 201
Scottish National Party: 5
Plaid Cymru: 3
Social Democratic & Labour Party: 2
Independent: 1
Green Party: 1
Democratic Unionist Party: 1

Westminster Hall

Wednesday 1st December 2010 Westminster Hall

Wednesday 1 December 2010

[Mr James Gray in the Chair]

Candour in Health Care

Wednesday 1st December 2010 Westminster Hall

Motion made, and Question proposed, That the sitting be now adjourned.—(Jeremy Wright.)

09:30

[Mr Robert Syms (Poole) (Con)]

It is a pleasure to serve under your chairmanship, Mr Gray. I start with an apology: I cannot possibly do justice in this debate to all those who have suffered as a result of mistakes made by the national health service. I know that a lot of people are paying attention to this debate, and I will do my best to make the case for a duty of candour in health care, particularly a statutory duty. That would be progress.

In the House, if an hon. Member makes a mistake, however outrageous, everybody thinks that it is fair enough as long as they apologise quickly. I want to put forward the arguments for why honesty is the best policy and why it is best to acknowledge that mistakes are made in medicine and in the health service. That is part of the medical process. If people inform relatives, put their hands up and say, “We made a mistake,” that is a far better way to proceed than what seems to have happened in the past.

I would like to thank Peter Walsh from Action against Medical Accidents for assisting me as I prepared for this debate. Over the next few weeks, Ministers are due to decide on their preferred option for honouring a commitment to require openness when things go wrong in health care. During the 2010 general election, the Liberal Democrat manifesto stated:

“We will: require hospitals to be open about mistakes, and always tell patients if something has gone wrong.”

I do not often quote from the Liberal Democrat manifesto, but it is probably important to do so under current circumstances and the coalition. That pledge was also included in the coalition programme for government:

“We will enable patients to rate hospitals and doctors according to the quality of care they received, and we will require hospitals to be open about mistakes and always tell patients if something has gone wrong.”

That has clearly been lifted from the Liberal Democrat manifesto. The White Paper, “Liberating the NHS”, stated:

“We will enable patients to rate hospitals and doctors according to the quality of care they received, and we will require hospitals to be open about mistakes and always tell patients if something has gone wrong.”

That shows consistency running from the original Liberal Democrat manifesto to the coalition programme for government and the White Paper produced by the Department of Health.

Those commitments have been widely interpreted and welcomed as going some way towards the introduction of a statutory duty of candour in health care. Such a move has been advocated for many years by patient groups and others, including the ex-chief medical officer, Sir Liam Donaldson. Recently, Ministers have made it clear that as well as the possible introduction of an explicit statutory duty of candour, they are also considering not altering or adding to the statutory regulations, but merely issuing new or refreshed guidance to existing regulations contained in the Care Quality Commission (Registration) Regulations 2009.

It is implied that that is more likely to be the favoured option because there is an extreme reluctance to add or alter statutory regulation. I will speak about those two options, with a view to encouraging support for the introduction of a statutory duty of candour. Action against Medical Accidents has campaigned on that matter for a number of years, and representatives from that charity met with a Health Minister to try to put forward their case about the right way to proceed.

Put simply, the situation is unacceptable. It comes as a shock to most people, particularly patients and members of the public, to know that health care organisations are in breach of no rules and will face no sanctions if they cover something up or decide not to inform a patient—or, in the case of a fatality, their relatives—that something went wrong during an operation or health care.

Probably more by accident than design, the current system tolerates cover-ups and denials. People ask how that can happen in a modern, ethical health service, and the vast majority of people would agree that honesty with patients and their relatives is a moral and ethical requirement. There is an abundance of guidance on the issue, and best practice dictates that honesty, or being open, is the only course of action.

We know that there are a million incidents in the national health service each year, about half of which cause some harm. Within those cases, there are many serious incidents, so it is a large problem. When something goes wrong, most people want someone to explain what happened to their relative, mother, father or daughter. In part, such behaviour is part of the professional code for individual doctors and nurses, and is recognised as a central component of an open and fair patient safety culture. However, the failure to be open and honest when things go wrong is not uncommon.

Although many trusts or PCTs do act openly, a significant minority tell patients nothing. Something must be done to provide parents and relatives with a flow of information and an honest approach. Patients and their families are unfairly denied crucial information about what happened during their health care procedure, and they may never learn the truth. If they do, they are often deeply traumatised by the initial dishonest response to something going wrong. It is not unusual to find people who have spent decades campaigning under difficult circumstances to find out what happened to one of their relatives.

If patients suspect that something has gone wrong but have to fight to get the truth, they lose all confidence in the health care system and are more likely to take legal and disciplinary action. The NHS and health care organisations have failed to develop a learning culture and the ability to learn from errors and make things safer. Instead, they have developed a culture of defence or denial; they do not want to see themselves in the newspapers.

The situation in England became even worse when the previous Government introduced the Care Quality Commission (Registration) Regulations 2009, which came into force in April 2010. That introduced a statutory requirement on health care organisations to report anonymously incidents that caused harm to the national incident reporting system. However, it did not include an equal requirement on the organisation to inform the patient or their relatives.

Therefore, an organisation is not currently in breach of the regulations if it covers up an incident from patients or relatives. It may be bad practice, but there is no real sanction as long as it sends an anonymous report to the system. An organisation will be ticked off if it does not send a report for the purposes of national measurement, but it will not be ticked off it fails to be open and honest with a patient or their relatives. Let me draw the Chamber’s attention to a document produced by Action against Medical Accidents entitled “The need for a statutory duty of candour in healthcare.” It is a good article for those who want to look at the more detailed requirements involved.

I pay tribute to my constituents, Derek and Joan Bye. As MPs, we deal with many constituents, but Mr and Mrs Bye have had to put up with a horror story following the death of their daughter, Helenor Bye, who died on 27 April 1978 in south Wales. There was a catalogue of medical errors. The parents were lied to, records were altered and their MP, John Morris, then the right hon. Member for Aberavon, held a debate in the House of Commons on 27 November 1979, volume 974, columns 1253-64. He called for a public inquiry, although that was turned down.

The situation was compounded by the fact that body parts were taken from Helenor Bye, some of which have been returned over the years. The last time body parts were received by the parents was in 2005. They have been through the most horrific period because of what happened to their daughter, what happened subsequently and, more importantly, because all along the line they felt that they were being lied to and that people were not being open and honest. Mr and Mrs Bye have become doughty campaigners for a more honest and honourable system of health care. They have also campaigned on their concerns about the drug Epilim. I cannot do justice to that campaign today, but if any journalist wants to know what can go wrong, I advise them to look at the case of Mr and Mrs Bye. They have had a very rough time.

Action against Medical Accidents calls for a change in the law and the introduction of a statutory duty of candour. It is called “Robbie’s law” because of the case of Robert Powell, who died on 17 April 1990, aged 10. His parents have campaigned for over 20 years to try and get justice. Similar things happened to them, such as changed medical records, and there was a catalogue of events, but they still do not feel that they have justice. Their campaign has continued under several Secretaries of State. The case is currently with the Welsh Assembly, and Mr and Mrs Powell are waiting to hear whether there will be a public inquiry into what happened to Robbie. Will Powell, who feels passionately about putting right what happened to his son and getting to the truth, has been a doughty campaigner for a long time. I pay tribute to him.

All the people whom we are talking about are, in their own way, fighting for the truth, not only to find out what happened to their loved ones, but so that such things do not happen again to someone else. This debate is about setting out a context and a better way of doing things, so that we have a much more honest and honourable system and families do not have to spend 10, 20 or 30 years going through absolute hell. Mr Bye told me that the start of the healing process is learning the truth and knowing what has happened to one’s relative. That is a very important point.

The Government have two options to consider. They can go for an explicit duty or for more guidance. Ministers often go down the guidance route. When the NHS constitution was being debated in the previous Parliament, the then hon. Member for Wyre Forest, Dr Richard Taylor, who served with me on the Health Committee, raised the issue of openness and whether we could go further down that route. He was informed by the then Minister of State, Mike O’Brien, “No, we can do it all through guidance,” yet guidance so far has not produced the results that we need.

Department of Health officials met representatives of Action against Medical Accidents and other stakeholders on 16 November 2010, when the two options were discussed in some detail. I shall go through the pros and cons of both. Option 1 is no new statutory duty but refreshed guidance in respect of the existing CQC regulations. The pros of that are that it would require no new legislation or change in the regulations.

[Dr John Pugh (Southport) (LD)]

Is not the difficulty with guidance the fact that guidance is already in place and any other guidance would simply reiterate what it says? Clearly, guidance by itself is not doing the trick in this case.

[Mr Syms]

The hon. Gentleman makes a very important point, because we have to change the whole culture of the national health service and I am not sure whether guidance will do that.

An argument can be made that the existing CQC regulations, backed up by clearer guidance, could be interpreted as making it a requirement to be open. For example, regulation 17 has been cited. It says that service users should be provided with adequate information and support in relation to their care or treatment. The guidance could clarify that that includes telling them if something has gone wrong. However, one of the cons is that, as the hon. Member for Southport (Dr Pugh) said, that would be in effect no different from the current situation. Such guidance and the existing regulations already existed when the policy to introduce a requirement was agreed. They were clearly not seen as sufficient then.

Given that the Department of Health was of the firm opinion previously that the existing regulations, even with the guidance alongside them, did not constitute a statutory duty to be open with patients when things go wrong—because at that stage they were not supporting a statutory duty—it is hard to see how that could be credible now.

Such a measure would be unlikely to be enforceable. Lawyers would no doubt have a field day if, given the above, the CQC tried to impose sanctions on a trust based on such a tortuous and dubious interpretation when the opportunity to be clear and specific had not been taken. Even if such a measure were enforceable, the CQC would be unlikely to give it a high priority, given the number of clear statutory obligations already spelt out in the regulations themselves, rather than developed by supporting guidance.

Option 1 would not have anything like the same impact as introducing a specific statutory duty, if it had any impact at all. The Department of Health would be trying to say, “This has always been the case, but we didn’t realise it and didn’t think it was important enough to make it clear.” That option would fail to deliver positive opportunities for sending a clear, unequivocal message about the importance of being open and would fail to support a major culture change. It would not deal with the bizarre situation whereby there has already been, since April 2010, a statutory obligation to report anonymously to the national incident reporting system patient safety incidents that cause harm, but there is no equal requirement to tell the patient or a relative. It would send the message that being open with patients is not important enough to justify a minor amendment to the regulations.

Option 2, which I prefer and think should be given serious consideration by the Government, is to introduce a specific statutory duty by amending the existing CQC registration regulations. That would send a clear, unequivocal message about the importance of being open, which would support and underpin other initiatives to develop a more open and fair culture. It would be enforceable. The CQC has confirmed that it would be practical for it to enforce such a measure. Of course, it would be a condition of registration with the CQC. It would have real impact: boards and management could not escape noticing the change or recognising the need to comply. At the moment, even when doctors or nurses want to be open with patients, sometimes the management of PCTs or of hospitals are less keen. We must send a clear message so that the whole organisation undergoes a major culture change in how it deals with patients.

Option 2 would balance out the existing statutory regulation where it is a statutory obligation to report anonymously patient safety incidents that cause harm but there is no equal requirement to tell the patient or a relative. It would not add to the regulatory burden on health care organisations, and I think that it would enjoy public confidence, which is a very important thing to have in this area. That option would be relatively easy to achieve. The con is that it would require a change in the regulations, so there would possibly be some legislation.

In my opinion, option 2 is the best way to go. It is not something that is supported only by a few oddbods; such a change has the support of many people, including many senior people in the medical profession. I know that there are concerns about compensation and litigation, but the evidence from the United States, where many insurers now do insist on a more honest system, is that when people receive an apology, they are less likely to sue. When they find out what happened to their relative, they accept that mistakes are sometimes made and they are less likely to pursue lengthy and costly legal action.

People are sometimes pushed into legal action by the sense of injustice that they feel when their relative has undergone harm or perhaps died in the course of treatment. They feel a sense of injustice and are then driven to take that action. Of course, many of the costs to the NHS are from the legal fees, not necessarily the money paid out in compensation.

I shall go through a list of some of those who would support a statutory duty of candour. I have already mentioned Sir Liam Donaldson, the ex-chief medical officer, who formally recommended a statutory duty in 2003. Harry Cayton, chair of the Council for Healthcare Regulatory Excellence, has also supported such a duty. The late Claire Rayner, who was a doughty campaigner on behalf of patients, and a former nurse, supported it. Professor Aidan Halligan, the former deputy chief medical officer for England, who is currently chief of safety at Brighton and Sussex University Hospitals NHS Trust, is completely supportive of the proposal. There is also Sir Graeme Catto, the immediate past president of the General Medical Council; Sir Donald Irvine, a past president of the GMC; Sally Taber, director of Independent Healthcare Advisory Services; Cure the NHS; Patient Concern; and Sufferers of Iatrogenic Neglect. There is broad support in the LINks—local involvement networks—organisation for the view that what has been described is an important thing to do.

In recent years, we have become aware of a major disaster at Stafford hospital. It has affected not one or two people, but hundreds of them. Of course, it has been the subject of much debate, many statements in the House and a lot of real concern, but had there been a statutory duty of candour, the management of Stafford hospital would not have been able to get away with the poor standards of treatment and nursing and the fact that many hundreds of people lost their lives. Such a duty is a very important and practical measure, and if the NHS is to mean anything to the people of this country, being open and honest with those who have suffered as a result of what are sometimes unavoidable accidents is the best way to proceed.

There are clear benefits to introducing a statutory duty, and there is an historic opportunity in that regard. I listened to my right hon. Friend the Secretary of State talking over the weekend about more transparency. Introducing such a duty would be a brave step, because all the advice from people in the Department of Health would be, “Careful, Minister. Don’t do anything that might have long-term costs.”

However, in the modern age—an age of freedom of information, when thousands of documents appear on the internet—it is not unreasonable that a cornerstone of the NHS in this century should be that people are up-front and honest, and tell the truth when something goes wrong. Things inevitably do go wrong—not necessarily deliberately, but simply because that is the way of the world and medical science. People can then understand what has happened to their relatives.

As my constituent Mr Bye said, “The start of the healing process after the loss of a loved one is to know the truth of what happened.” It is a very poor thing if Governments cannot tell the truth. One has to acknowledge that truth has not always been the essential component of the NHS that it should be. I propose that the Government give serious consideration to a statutory duty of candour, because that is the best protection for those who use the health service and for higher standards. The best protection is that all of us believe in honesty in public life.

09:50

[Tom Brake (Carshalton and Wallington) (LD)]

It is a pleasure to serve under your chairmanship this morning, Mr Gray. I congratulate my hon. Friend the Member for Poole (Mr Syms) on securing the debate and on lucidly and concisely setting out precisely why the Government should look carefully at a statutory duty of candour. I have not heard any effective arguments against it, but I will come on to some arguments from opponents. My hon. Friend set out why the duty would boost public confidence and he rightly pointed out that an apology—as we have probably all experienced—often, first, helps to secure closure for a family if a loved one has been involved in a tragic accident, and, secondly, can defuse a difficult situation that could end up in the courts for years afterwards. He has rightly set out the reasons why a duty of candour is a necessity.

My hon. Friend started by quoting from the Liberal Democrat manifesto, and I would expect nothing less in the coalition, so there is no need for me, as a Liberal Democrat, to do so. He also mentioned that the proposal has been carried through to the coalition agreement and, subsequently, into the NHS White Paper, which—although it perhaps does not contain a proposal as specific as a duty of candour—certainly makes it clear that hospitals need to be open about mistakes and always tell patients if something has gone wrong. One development to which he did not refer was the fact that legal aid will no longer be available in cases of clinical negligence, which I hope the Minister will pick up on in her response. I wonder whether that will have an impact and whether that strengthens the case for a duty of candour.

As I said in my opening remarks, there are opponents of a duty of candour. A briefing has been sent to Members by the Medical Protection Society, which is a

“leading provider of comprehensive professional indemnity and expert advice to…health professionals around the world.”

The briefing states that the society is committed to promoting openness in health care and supports the principle in the NHS White Paper that hospitals should be open about mistakes and always tell patients if something has gone wrong. However, it goes on to say that the MPS strongly believes that a change in culture would be more effective than a statutory duty. However, I agree with Action against Medical Accidents, which also briefed me for the debate. It said that perhaps the MPS is missing the point: it is not a question of a duty of candour or a change in culture, as it is perfectly possible to have both. Indeed, the duty of candour is one way of supporting and underpinning a change of culture, so that health care organisations are always open and honest with patients when things go wrong. The MPS says that it has been advocating that change in culture, and it is true that a number of organisations have been advocating it for the past 50 years or so, but the desired change has not happened. I am not sure how much longer one can wait for it.

There is an issue about guidance and about how seriously organisations take guidance when they are statutorily required to do other things. There is always a risk that guidance gets left aside while organisations focus on statutory duties. As the MPS said, it is correct that there is a professional duty for doctors and nurses to be open with patients in the event of a mistake, but there is a wider issue about there being no statutory duty on all health care organisations to promote and support that practice in their organisations. As my hon. Friend the Member for Poole said, the medical professionals may want to be open but, unfortunately, they are being advised by managers, who are not subject to the same professional codes and perhaps believe that less openness is the best course of action. My hon. Friend referred to the Stafford case, and, as I understand it, it was a legal officer who sought to suppress the doctor’s report in that case. When the General Medical Council was asked to confirm how many cases it had brought against a doctor specifically for a breach of this part of its code, it confirmed that it has not brought a case against a single one.

My hon. Friend also referred to the very sad case of Robbie Powell and the sterling efforts that the family have made. I am pleased to see that Mr Powell has joined us here today.

[Mr James Gray (in the Chair)]

Order.

[Tom Brake]

I am sure that Mr Powell will be listening carefully to what is said and reading the remarks in Hansard later. That family have played a major role in bringing this issue to our attention and are working with AvMA to promote what they hope will become Robbie’s law.

The MPS has provided information that I think works against its case. Its research shows that, at the moment, a third of doctors are not prepared to be open and honest when an accident occurs. If so many doctors feel constrained from or concerned about being open when an accident has occurred, it supports the case for a culture of candour. The MPS also refers to states in the United States where there is a duty of candour and where it perceives that there may be a difficulty in enforcing the duty. In his remarks, my hon. Friend the Member for Poole made it clear that the Care Quality Commission has confirmed that it could and would enforce a statutory duty, and would be in a position to do so, if that were part of its regulations.

Another issue that the MPS raised, which we need to respond to, is that the proposed duty would not include near misses. It is arguing against the duty of candour, but at the same time saying that it would be a problem if near misses were not included. I understand that there is a general agreement that, although it might the norm for near misses to be reported to the patient, there would be discretion in cases in which reporting a near miss might cause unnecessary harm. There is recognition that the near miss issue needs to be addressed carefully.

One important fact is that, whether it is a duty or a requirement, it must apply to all health care organisations. If there was one thing in the coalition agreement that was slightly remiss, it was the fact that it referred only to hospitals, but there is a wider health body that we need to include. I am sure that the Minister will clarify in her response that the duty of candour, or the requirement, would need to apply not only to the patient but, sadly, if the patient has died as a result of the accident, more widely to include family members. It should not be strictly restricted to the person who had the misfortune of suffering the accident.

[Dr Pugh]

My hon. Friend mentions hospitals, but does he not accept that there are severe diagnostic failures at primary care level? Failures to refer can seriously imperil life, so they, too, need to be encompassed in the duty of candour.

[Tom Brake]

I thank my hon. Friend for his intervention, and I entirely agree. A duty of candour must not be restricted simply to hospitals, because, as he rightly says, GPs in primary care and other health care providers regrettably also make mistakes. A duty would need to encompass more than simply hospitals, as was initially proposed in the coalition agreement.

I entirely support the points that my hon. Friend the Member for Poole made in opening the debate. There is strong, overwhelming evidence in support of a duty of candour. Guidance has not done the job, and a duty of candour really would open up the system and make sure that families and those who have suffered are, and know they are, entitled to receive information about an accident. That would make it much easier for them to arrive at closure. Regrettably, under the current system, people must all too often use great energy and perseverance to extract with great difficulty information that they should be entitled to from the outset.

09:59

[Dr John Pugh (Southport) (LD)]

I thank the hon. Member for Poole (Mr Syms) for introducing this important and timely debate and for putting the Government’s dilemma so succinctly and accurately. I also pay tribute to my hon. Friend the Member for Carshalton and Wallington (Tom Brake), who has done as much as anybody in this place to raise the issues of a duty of candour and patient rights.

I do not know whether anybody caught Ian Hislop’s programme about do-gooders on the BBC this week, but in it he described the creation of the journal The Lancet. It was set up by a young doctor, who, among other things, wished to expose some of the deficiencies in the appalling surgical practices at that time. He was greeted with wholesale acrimony from much of the medical profession and he was successfully sued. That shows that there is resistance in most businesses and professions to acknowledging error.

In an excellent book published some time ago, the sociologist Erving Goffman suggested that people in all organisations—whether in health, business, teaching or policing—have a vested interest in supporting their colleagues, playing as part of a team and working together to minimise the reputational loss that their organisation can suffer. He analysed in particular detail how that can happen in health services right across the world, although it must be said that such things do not always happen for bad reasons. People have duties of loyalty to colleagues and a genuine concern for the organisation to which they belong—for its reputation and, where admitting to errors might seriously imperil it, for its very survival.

People inside organisations often recognise that mistakes will happen in their organisations. I have worked in the teaching profession all my life, and I have not always been very overt about my colleagues’ deficiencies, even when that sometimes has involved people suffering from alcoholic intoxication when they should not. There are therefore circumstances in which people cover up. There is also probably a belief in many organisations that the internal resolution of problems is the best way to proceed.

However, there is a huge downside; confidence is eroded by simply taking such a path. Worse still, false confidence persists; in other words, there are palpable and demonstrable errors in organisations, but nobody finds out about them until it is too late. Errors remain uncorrected, and poor performance is undeterred or, in some cases, it worsens.

That is where the duty of candour fits in, because it will, on a voluntary or simply a request basis, lessen the problems. There is an enormous amount of evidence not only that patients want the NHS to be candid with them, but that the NHS finds it hard to be candid. The Department of Health itself spoke of a culture of denial in the NHS—denial about error and, more seriously, about negligence.

No one believes that things will necessarily improve if nothing is done. No willing provider entering the frame will find it easier to be more candid than NHS organisations; in fact, they might have other motives for covering up. They might be answerable to others apart from members of the public, such as shareholders and the like. There is therefore a genuine concern to get things right.

Every Member of the House of Commons has probably come across a case, or several cases, where they feel that things have gone badly wrong. In my intervention on my hon. Friend the Member for Carshalton and Wallington, I mentioned primary care. A young man in my constituency—he was a relative of a friend of my daughter’s—went to his GP five times to complain of listlessness, a lack of energy and so on. He was brushed off with suggestions that he needed more rest and less stress. He was told that he perhaps had glandular fever, but no blood test was done. Eventually, when one was done, it was discovered that he had late-stage leukaemia. My children attended his funeral. That clearly was a failing.

I am also familiar with the ongoing case in my constituency of a TV soap star with a disabling condition that was brought on by receiving the wrong diagnosis and the wrong treatment. Similarly, I had the long-running case of a lorry driver with severe hypertension who was prescribed Viagra for other complaints, even though Viagra increases blood pressure. The thought of a lorry driver being prescribed a drug that can imperil not only him but members of the public is quite disturbing.

A woman in my constituency was falsely diagnosed with cancer and treated for it until, on the spur of the moment, she decided to request a check of the X-rays. Staff then found that the X-rays that they had been using, and which they had assumed were correct, were those of another person. That woman had spent a year in absolutely harrowing circumstances. More disturbingly, we do not know whose X-rays were assigned to her. Presumably, that person was not given the treatment that this woman was wrongly given.

Each of those cases leads to a prolonged complaints procedure, involving the ombudsman and the Care Quality Commission. In other cases, as other Members have indicated, there have been accusations that records have been altered. The whole process is inordinately cumbersome and difficult. To some extent, it exists because there is no candour where candour would probably be the solution.

On top of that, there are the systemic failures—the Mid Staffordshires, the Bristol heart babies and so on. To be fair, the Government recognise that this all comes with the territory of running the modern health service, and they are, to some extent, endeavouring to deal with the problems. Lots of things are going on, and we all want to applaud and support what the Government are doing on quite a few issues. We also applaud the previous Government for having initiated some of these things.

Incident reporting has got better, which is wholly desirable. Complaints are monitored, which is good and a move wholly in the right direction. There is more intensive recommending of procedures. The NHS is more of a learning body than it ever used to be; good practice is disseminated, while bad practice is identified and controlled. There is a general beefing-up across the piece of NHS guidance—particularly to the secondary care sector—about things not to do, things that will help and things that will avoid mishap.

Right across the profession, there is a constant stressing of professional ethics, as spelt out by the General Medical Council or whoever. In the past few days, we have had the phenomenon of publicising outcomes, with efforts by Dr Foster and, presumably, the Department of Health to see that outcomes are properly tracked.

[Mr Syms]

It is interesting that it is sometimes non-NHS organisations such as Dr Foster, rather than the NHS itself, that put their finger on the things that go wrong. The NHS is a wonderful organisation generally, but most of my constituents would be surprised that there is not a duty of candour already. One reason why we have not got one is that we find out that we do not only when we actually have a problem.

[Dr Pugh]

Dr Foster is probably doing what the Government will eventually get around to doing, and it will presumably prompt the Government to do that more expeditiously.

In some cases, private organisations may find it slightly easier than the Department of Health to progress such matters, but a lot of internal consultations and procedures will need to take place. Such organisations do not need to be answerable for how they treat the bodies within the NHS. A recent key development is the Government’s willingness to ensure immunity for whistleblowers, and to encourage whistleblowing when appropriate. That is a good thing, but there is evidence that whistleblowers still take genuine risks. For instance, they may not be sacked or redeployed, but they may experience difficulties getting employment elsewhere in the health service. I know of cases in which genuine whistleblowers have regretted the professional outcome that has resulted.

Such Government measures are self-evidently to the good, but they are not the same, equivalent to or a substitute for a duty of candour. Frankly, not all errors will be reported and not all complaints will get bottomed out. As others have said, guidance is ignored, professional ethics can be flexibly interpreted, and outcomes, whether published by Dr Foster or others, often come too late or are too general for individual cases. As I pointed out, although whistleblowers may have temporary immunity, that may not last. The Department of Health spoke of a culture of denial; but if such a culture exists, it needs to deal with it.

The argument against a statutory duty of candour—that, in a sense, the simple duty to be open with patients or relatives when requested is otiose or redundant—is not sustainable. It cannot be used as a genuine reason for Government reticence or hesitation. I therefore ask why the Government are hesitating when they are going ahead with so much else. A duty of candour is a disincentive to cover up, and it takes away the risk for whistleblowers.

Statutory duties are important. I give a parallel example. Local authority reporting officers, usually directors of finance, have the job of identifying when a council is spending money in a reckless and improvident way. They have always been in that position, but prior to there being a statutory duty to show the council the red card they were often bullied by the political establishment. As a result, they unwillingly had to consent to the deployment of council resources in ways that were reckless. Without a statutory duty, the same sort of thing can happen in health institutions. People can be put under a lot of pressure, and unless they can say, “But I have the statutory duty to report this,” they will find themselves in appreciable difficulties.

If we all believe in transparency—and we do at the moment—the duty of candour must be part of it. It keeps patients informed of their genuine situation. It is entirely in line with what the Secretary of State says again and again—it is a good quote, which I paraphrase, about no action being done to me without my consent. That is the gist of what he says. Why, then, do we hesitate, given the coalition agreement? The Liberal Democrats are clearly on board, and many Conservative Members genuinely support it. Indeed, the coalition agreement is emphatic.

I have the perception that somewhere in the background in the Department of Health the voice of Sir Humphrey can be heard. Just as the Minister is about to initiate a statutory instrument on the subject, someone in the civil service—I do not accuse the permanent secretary—says, “That is a very brave decision, Minister.” The Minister is thus persuaded that his decision may not be as positive as appeared at first sight.

If one thinks about it, a candid admission of error or, worse still, of negligence is intrinsically damaging and potentially expensive. I have seen stats suggesting that the potential damage to the NHS, if every person who had a complaint pursued it legally to the nth degree, might be a bill of something like £10 billion. That is half of the internal savings that the NHS needs to make.

However, the stats also show that litigation costs against the NHS are far less than that. The unnerving feeling inside the Department of Health is that if it goes for a statutory duty—I believe that it should—that picture might change dramatically, as the number of complaints that end up in successful and expensive litigation mushrooms.

[Tom Brake]

Does my hon. Friend agree that, because the information is now in the public domain, another consequence might be that the number of accidents will reduce because people will take the necessary action to ensure that such things do not happen?

[Dr Pugh]

One sincerely hopes so. I was a member of the Committee that considered the NHS Redress Act 2006, which I believe is not yet in force. The sort of thinking suggested by my hon. Friend was behind that Act, but the same forces that are delaying the duty of candour are probably responsible for delaying its implementation. I cannot recall there being much dissent among the parties as to the merits of that legislation. The idea was that complaint costs would reduce if we had an open policy of admitting errors, patients surrendering none of their legal rights but simply being given the apology and the explanation that they wanted.

As the hon. Member for Poole said, people who wish to pursue a complaint against the NHS if they believe that their treatment has gone wrong are not looking for money. They are looking not only for an explanation and an apology; they are looking for an assurance that whatever happened to them or their relative will not happen to others.

Prior to the NHS Redress Act 2006, we looked hard at the costs of litigation in the NHS. Yes, it cost the NHS a lot of money; and, yes, something could have been done to reduce it. The really depressing thing, however, was that the bulk of the money went into the lawyers’ pockets on either side. The NHS is not about helping to boost lawyers’ profits.

The 2006 Act seemed to offer an alternative to litigation, which everyone would support, but the nagging fear in the Department of Health was that it would become a platform for litigation—that if someone admitted a fault it might be a sound basis for taking legal action. Are those fears well grounded? I believe that we do not precisely know, but we all have our own feelings on the subject. People cite the Michigan case in the United States, where they went outright for a duty of candour, and litigation costs to the health service have declined.

The duty of candour is not something that can be piloted, and once it has been done one cannot withdraw it. To go ahead with it is almost an act of faith. I am very keen on the concept of evidence-led policy, but I see evidence-led policy debates taking place in the Department of Health. If we go ahead with a statutory duty of candour—and I firmly believe that we should—it will be a statement about what sort of NHS we want.

I conclude by quoting Sir Liam Donaldson, the former chief medical officer for England. He said,

“To err is human, to cover up is unforgivable”.

Regardless of the risks, I doubt whether the Government want to do what is unforgivable.

10:19

[Liz Kendall (Leicester West) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Gray. Every 36 hours, NHS services are used by some 1 million people, the vast majority of whom receive safe and effective care. None the less, as in every other health care system in the world, not all care in the NHS is as safe as it could be, and too many patients are harmed by it, sometimes seriously and even fatally.

Modern health services are delivered in a highly complex, often pressurised, environment, and involve the care of many vulnerable and seriously ill patients. More than any other environment in which risks occur, health care is reliant on people taking difficult decisions that rely on judgments that are not always straightforward or clear cut. In such circumstances, things can and do go wrong. Sometimes, as I know from my own experience, the consequences can be very serious for the patient, their family and their carers.

Patients and their families have a right to know if something has gone wrong, to get an explanation of what has happened and to receive an apology and, if appropriate, compensation. As hon. Members have mentioned, it is also vital that professionals and NHS organisations learn lessons from mistakes to improve care for patients and, wherever possible, to save taxpayers’ money by reducing the cost to the NHS from clinical negligence claims.

During the past decade, important progress has been made on improving patient safety in the NHS. Last year, the Health Committee’s report on patient safety acknowledged that the previous Government became one of the first in the world to make it a priority to address patient safety across the whole health care system. A unified system for reporting incidents and learning from them was introduced, and it was centred on the national reporting and learning system and the National Patient Safety Agency. The creation of this system was, in a large part, down to the pioneering work of Sir Liam Donaldson, and I should like to pay tribute to him for his work on this vital issue.

Since the establishment of the data reporting system, the number of reported incidents has increased significantly, which is a good thing. At the last count, more than 3 million incidents had been reported, ranging from very minor incidents to the more serious ones. The NPSA has worked hard to improve patient safety, both nationally and within individual NHS trusts. I personally experienced such work when I was director of the Ambulance Service Network at the NHS Confederation. We set up a programme of work, with patient safety leads in ambulance service trusts, front-line paramedics, PCT commissioners of ambulance services and the NPSA to identify the particular areas of care where mistakes were being made—it is often in the handover period—and to share best practice to prevent such mistakes.

I question some of the comments that have been made this morning about managers wanting to cover up problems. In my experience, both managers and professionals have difficulties in blowing the whistle on their colleagues. I just want to put it on the record that the ones that I have worked with have wanted to be open and to learn the lessons.

My experience has shown me that the NHS needs to do more to improve patient safety. As identified by the Health Committee’s report and Ara Darzi’s next stage review, there is still huge under-reporting across the system, because, as hon. Members have said, there is too often a “blame culture” in the NHS.

I agree with the hon. Member for Carshalton and Wallington (Tom Brake) that this is not just an issue about hospitals. Primary care, which accounts for 95% of patient contacts with the NHS, accounts for only 0.25% of reported incidents. Although substantial progress has been made, patient safety is still not always a top priority for NHS boards. Most importantly, patients still too often feel that the NHS is not genuinely open and honest with them when a mistake is made.

In 2005, the National Audit Office’s 2005 report, “A safer place for patients” found that only 25% of NHS trusts routinely inform patients when an incident has taken place, and an astonishing 6% admit to never informing patients. Like other hon. Members, I have seen such practice in my own constituency. Patients feel that mistakes are not promptly or openly admitted to and they have to battle the system to—in the words of the hon. Member for Poole (Mr Syms)—“get at the truth”, which, so often, is the start of the healing process.

Last week, I went to a meeting at the University Hospitals Leicester NHS Trust with two of my constituents, Mr and Mrs Harkisan-Hall, who lost their son in the hospital’s neo-natal unit. It was only at the coroner’s inquiry that they found out that the two qualified nurses on the unit were both on a break at the same time, leaving a nursery nurse in charge of very vulnerable children. They felt that they had to battle to get that information, and they still have not seen the full reports of what the staff said. Like them, I believe that that is unacceptable.

[Mr Syms]

The hon. Lady makes a good point. One point that I meant to make was that if people do not hear what has happened, coroners can find it difficult to determine how someone has died. If people are not honest about what has happened to a particular individual, coroners do not have the full information.

[Liz Kendall]

In this particular case, interviews were conducted with the two qualified nurses. The trust did not read both transcripts together and did not see that both nurses were on a break at the same time. People are astonished that such simple things happen, and it is vital that we learn from this process.

Before I go on to talk about the duty of candour, I want to discuss two concerns about the Government’s policy in relation to patient safety. It is important that hon. Members do not look just at the duty of candour in isolation from what is going on in the rest of the NHS, including on patient safety. My first concern is the Department of Health’s decision to abolish the National Patient Safety Agency and to move responsibility for this issue to the new national NHS Commissioning Board. There are real concerns about whether the board will have the necessary skills, experience and time to focus on such a vital issue when it will also be responsible for setting NHS outcomes, assessing whether GP consortiums are delivering on those outcomes, commissioning a whole range of specialist services and managing contracts for all primary medical services. That is a huge agenda for any board, even without adding responsibility for patient safety.

Will the Minister tell us what resources and how many staff from the NPSA will be transferred to the NHS Commissioning Board? Which NPSA activities will the board take on? For example, will NPSA continue to publish patient safety alerts and bulletins and other guidance to identify key problems and help spread best practice? Will it also run workshops with leads for patient safety in individual providers, such as those I was involved with in the Ambulance Service Network? Will the national Patient Safety First Campaign, which was launched last year, and the annual patient safety week, which was held early this month, have the staff and resources to continue?

My second concern relates to the Government’s reorganisation of the NHS and fact that the service needs to make efficiency savings worth some £20 billion over the next three years, as the NHS chief executive said. The first report on adverse incidents in the NHS was drawn up by Sir Liam Donaldson in 2000. Its key recommendation was that the NHS must be open and honest and learn from its experiences. To do that, the NHS must become, as the report’s title suggests, “An organisation with a memory”. But the Government plan to abolish many of the very organisations that have worked hard to build this memory and understanding of how to improve patient safety.

If the NHS has to make efficiency savings worth some £20 billion, there will inevitably be job losses and posts frozen, some of which could include those staff who have worked hard to learn lessons from the mistakes that have been made in the NHS. How will the Minister ensure that the NHS retains its “memory” on patient safety when PCTs and strategic health authorities are being abolished, new GP consortiums are being established, community services are being transferred to different providers and staff posts are being frozen and reduced? In particular, what steps has she taken to ensure that managers and front-line staff who have knowledge and expertise in patient safety are retained in the NHS at a time when the Government want to cut management costs by 45% and make efficiency savings of £20 billion?

Finally, I want to talk about the duty of candour. As hon. Members have said, the introduction of a statutory duty of candour was first recommended by Sir Liam Donaldson in his 2003 report, “Making Amends”. I agree with hon. Members that there is a strong case to look again at this issue, as a Health Committee report recommended in 2009.

I think that it was the hon. Member for Carshalton and Wallington who said that too often the debate is split between those who want a statutory duty of candour and those who think the NHS should instead focus on creating a culture of candour. Of course, changing the practice of individual staff and organisations does not require legislation, but I think that we can see from existing laws, such as those that helped to reduce drink-driving, those that introduced the smoking ban and others, that legislation often plays a vital role in changing culture and behaviour.

Some professional bodies are concerned that a duty of candour would make it less likely that incidents would be reported. I am not convinced that that would be the case, particularly if the duty is combined with an

“exemption from disciplinary action for those reporting adverse events or medical errors—except where there is a criminal offence or where it would not be safe for the professional to continue to treat patients”.

That was the recommendation of Sir Liam Donaldson back in 2003.

Others question whether a statutory duty could be imposed when it might be difficult to specify or enforce sanctions. That concern has not prevented other parts of the world from introducing legal duties, including some US states, Sweden, France and Denmark. It is also worth noting that the Equality Act 2010, which was introduced by the last Government, imposes a number of legal duties on public bodies to consider the impact of their policies and decisions on different groups, without specifying what the sanctions will be if those duties are not complied with.

The final argument against a statutory duty of candour is that patients might end up trusting professionals less, because they have to report a mistake rather than because they want to. I think that the far greater risk for doctor-patient trust is the perception, and too often the reality, that professionals do not tell patients when things go wrong. I know that if a mistake was made in my own care, or in the care of one of my family or friends, I would want to know—and indeed I believe that I have the right to know.

To conclude, I think that the NHS has made important progress on improving patient safety and it has started to try to change its culture, to become more open and honest. However, the evidence shows and hon. Members have clearly demonstrated in this debate that the NHS is still not as open as it should be, not only with its own staff, but—crucially—with patients. The abolition of the NPSA, the huge reorganisation that the NHS is about to undergo and the future cuts in numbers of staff actually make a stronger case for having a duty of candour in place.

The White Paper, “Liberating the NHS”, says that the Government will

“require hospitals to be open about mistakes and always tell the patient when something has gone wrong”.

It also says that that requirement will be implemented by summer 2011. So I just want to ask the Minister to clarify whether the Government are therefore proposing a statutory duty of candour? Also, will she now agree to bring together patient groups, professional bodies, experts on the duty of candour in this country and abroad, as well as those who represent NHS trusts—such as the NHS Confederation—to discuss how we can all best move forward on this vital issue?

10:34

[The Parliamentary Under-Secretary of State for Health (Anne Milton)]

It is a pleasure to serve under your chairmanship for the first time Mr Gray congratulate my hon. Friend the Member for Poole (Mr Syms) on securing this debate. As Chairman of the Regulatory Reform Committee, he is no doubt acutely aware of some of the issues that exist around regulation, not least those that exist around the duty of candour. His humility and recognition of the impossible task that we face here today—to truly reflect the pain and suffering of those who have suffered as a result of medical harm—does him considerable credit.

We take candour and openness in the NHS extremely seriously. Everybody does, because it is a vital issue. As anyone who has ever been treated knows, a health care system is not just about how quickly someone is seen or how quickly their stitches come out; it is also about trust. Trust is fundamental—between patients, the patient’s family and health care professionals—and we must do everything we can to ensure that that trust is upheld.

As my hon. Friend may be aware, one of the early references to a statutory “duty of candour” was included in “Making Amends”, a 2003 report, which I know hon. Members have referred to. It was a consultation paper from the then chief medical officer, Liam Donaldson, and it set out proposals for reforming the approach to clinical negligence in the NHS, suggesting

“a duty of candour requiring clinicians and health service managers to inform patients about actions which have resulted in harm”.

The paper also proposed to foster an environment of openness and honesty among all NHS staff; it encouraged “integrity”, which is a word that we perhaps do not use often enough, and it proposed exempting those who report adverse events or medical errors from disciplinary action, unless there are serious extenuating circumstances. It is a key belief of the coalition, and I would hope all Members of the House, that the focus should be on the performance of the organisation rather than on penalising individuals who bring matters of concern out into the open. The hon. Member for Southport (Dr Pugh) has already mentioned whistleblowing. I think that the point is that this debate is not necessarily about the protection of whistleblowers or a right to whistleblow; it is perhaps about a duty to whistleblow.

It is important to note the good work that is currently being done to promote candour. The previous Government should be congratulated for providing staff with advice and support to help them to communicate with patients, their families and carers following harmful incidents. The Health Act 2009 requires all NHS organisations to be aware of the NHS constitution, which places a duty on NHS staff to acknowledge mistakes, apologise for them, explain what happened and put things right. The professional codes of practice for doctors and nurses contain a similar duty.

As somebody who trained as a nurse and worked in the NHS for 25 years, I think that professional codes of practice and professional standards are not talked about often enough. We look for someone to blame: we look for the organisation to blame; we look for the board to blame, and we look for the chief executive to blame. What we do not talk about is individual professional standards and I feel particularly strongly that we need to do everything that we can to raise those standards right up.

The National Patient Safety Agency has been running its own campaign to promote candour in the NHS, as the hon. Member for Leicester West (Liz Kendall) said. That campaign, entitled “Being Open”, is a long-term process rather than a short-term push. It encourages the provision of verbal and written apologies to patients, their families and carers; it promotes continual communication with those involved in incidents, and it requires thorough record-keeping of all “Being Open” discussions and documents.

However, we all know that still more needs to be done, as hon. Members have said and as I know myself from my own constituency casework; I have a number of people who have continually fought to try to get the truth about what happened to their relatives. The recent White Paper, “Liberating the NHS”, states that

“we will require hospitals to be open about mistakes, and always tell patients if something has gone wrong”.

It is quite simple: we expect the NHS to admit to errors; apologise to those affected, and ensure that lessons are learned to prevent errors from being repeated.

In one year, the NPSA receives notification of more than one million incidents. Most of those incidents result in no harm and we welcome the high level of reporting. However, the incidents that result in harm obviously cause distress and anguish for the patients and families involved. In those cases, it is even more important that the lessons are learned and that organisations are open with those who have been affected.

[Dr Pugh]

I want to ask about the future of the NPSA. If it is going to be brought within the national commissioning body, will a Chinese wall be established between the NPSA and the other operations of that body? It crosses my mind that risks can allegedly be increased or decreased by commissioning decisions themselves.

Under those circumstances, the NPSA has got to be free to impute itself, as it were, if the national commissioning body is going to be part and parcel of the same organisation. So, can the Minister assure me that there will be no conflict of interest when the NPSA is placed within the national commissioning body, which may itself—through its commissioning procedures—be one of the risk factors?

[Anne Milton]

The hon. Gentleman is absolutely right. That is terribly important. It is not only important to have Chinese walls and be seen to be separate; it is important to be separate. I will come to that point in detail in a minute.

Measuring openness is not as straightforward as measuring reporting. We welcome high levels of reporting, as they are an indicator of an open and supportive culture of patient safety, but there are still reasons why people within the NHS and organisations shy away from openness. Without a doubt, professionals who strive for excellence are reluctant to admit errors. The higher up the tree one is, the harder it is to say, “I’ve made a mistake.” All of us face that issue in our professional lives.

People may have unfounded concerns about possible admissions of liability, even though apologising when something has gone wrong is not in any way an admission of liability. The fine line between the two sometimes prevents people from saying what relatives want to hear: “I am so sorry this happened.” That is not necessarily saying, “I have made a mistake.” It is such a shame when professionals resort to a defensive stance, often encouraged by myths about where liability lies. Also, at times, they may fear reprisal, blame and even bullying.

We are considering options for introducing a requirement for openness and will make a decision in due course. The hon. Member for Southport felt that we were hesitating, and was concerned about possible evidence of Sir Humphreys in the Department. We are considering, not hesitating. It is important to get it right. Members have discussed the three options, but I will run through them quickly and mention a few relevant issues.

The first option is using what is in the existing Care Quality Commission registration requirement regulations. It is already mandatory for NHS trusts to report all serious patient safety incidents. We could also require organisations to demonstrate that they have met the openness requirement, which would not require new legislation. It makes sense to use existing means to detect and investigate trusts that are not as open as they should be. The counterargument is that that approach is not specific enough, and that the wording of the guidance would need to be made more explicit. We have seen many cases in which guidance has failed.

The second option involves introducing a new legal, statutory duty of openness explicit within the CQC regulations. That would send a clear signal about the importance of openness and provide patients and campaigners with a single clear duty that they could use to demand full disclosure. However, the Government want to create new legislation only when absolutely necessary, although when necessary, it should be done. We would need to ensure that any new legislation or new approach was not counter-productive. We want to make it easier for staff to come forward; we do not want new legislation to have unintended consequences.

The third option involves incorporating an openness requirement into the new NHS contractual, performance and commissioning processes, to which the hon. Members for Leicester West and for Southport referred. It certainly appears possible to pursue openness through the new commissioning arrangements. For instance, it could be written into standard NHS commissioning board requirements that providers commit to being open. The hon. Member for Leicester West asked whether the NHS commissioning board would have time to take a role on patient safety. In many ways, safety underpins all commissioning decisions. Any decision on any service commissioned should have safety wrapped around it. That is fundamental.

As with any complex matter, each of the options has its pros and cons. It is imperative that a decision on the issue is not rushed. I reassure the hon. Lady that campaigners and organisations have good access to officials within the Department, and I am sure that all their views will have been taken into account when a decision is made, because we are aware of the importance of getting it right. It is terrible to think that the first duty of the NHS is to do no harm. Safety wraps around everything that we do.

The hon. Lady also mentioned the decision to abolish strategic health authorities. I understand that SHAs are the performance managers of trusts, yet that did not help in Staffordshire. In many ways, bringing commissioning decisions closer to the patient within general practice will mean that decisions about care and its consequences rest where they should.

[Liz Kendall]

The Minister raises the important issue of Stafford and the lessons to be learned there, and says that the SHA did not take action. Obviously, we will wait for the outcome of the independent inquiry, but as responsibility will move to GP commissioning consortiums, can she tell us whether any of the GPs in the area raised concerns about Stafford, or whether any of them have submitted evidence to the inquiry? I am not aware that they have.

[Anne Milton]

I did not point a finger at the SHA; I pointed out that SHAs were performance managers. Where performance fails, one must ask oneself what was happening in the management of that performance that it could fail so abysmally. The hon. Lady must not forget that the GP consortiums will involve a much wider range of professionals in commissioning decisions than just GPs, including a lot of people involved in care. They will not necessarily consist only of NHS professionals. Voluntary bodies and other organisations that provide care will also have input.

The sad truth is that when things go wrong, relatives want to know what happened, as my hon. Friend the Member for Poole pointed out, but they do not always find out. They want the truth and honesty, but we often see precisely the opposite. Doors close, the shutters go down and NHS organisations resort to a defensive stance, sometimes quite aggressively. My hon. Friend mentioned his constituents the Byes and the Powells, who have campaigned endlessly for the truth and continue to campaign. I pay tribute to all the people, some of whom we do not know about, who use their own tragic circumstances to ensure that the same thing does not happen to others. Their efforts should never be underestimated.

[Tom Brake]

The Minister said that the NHS sometimes adopts an aggressive stance. I remind her of my question to her about the possible impact of withdrawing legal aid in clinical negligence cases. Often, families use such cases as a way of trying to secure an apology because one has not been forthcoming. If that option is not available to them, it reinforces the need for a duty of candour.

[Anne Milton]

The hon. Gentleman pre-empts me by a second; I was about to come to legal aid. My experience is that even with legal aid, the courts are rarely an option for most people. Allowing discretion on the reporting of near misses would, I fear, open another minefield beyond which people could hide, as he also mentioned.

I have certainly brokered meetings between NHS organisations and my constituents to try to bring them together and make the NHS organisations stop feeling so defensive. I have been an advocate for people in my constituency just so they could hear what happened. I should think that many hon. Members rely on personal relationships, particularly within hospital trusts, for such purposes. Maybe they know a supportive medical director to whom they can say, “Look, this family, this couple or these relatives just want to know what happened; this isn’t going to go anywhere.” That is a leap of faith. The NHS organisation has to say, “Fair enough.” When that happens, closure can follow.

The hon. Member for Southport rightly pointed out that accidents occur across the NHS and mentioned, in particular, the failure to diagnose in general practice. That is an ongoing, rumbling issue that I hear about not only as a constituency MP, but as a Minister. I thank him for recognising that the solution to getting to a situation where we have effective measures in place to ensure candour is a dilemma. It is not an easy decision. He is also right to point out that the NHS is not alone in protecting itself. My goodness me, we know a lot of professions that close their doors when one of their members is under attack—the legal profession is one. People just want the truth, but sadly the shutters go down and the doors close, and closure cannot be achieved.

[Mr Syms]

I am pleased with the way the Minister is responding to the debate and recognise that a statutory duty of candour is one of a range of measures that the Government are considering. However, if they decide not to take that route initially, it is important that they do not rule it out, because the culture change that is needed might not come about as a result of what they are doing, but we will still need to get there at some point. I still think that a statutory duty of candour would be the biggest and most successful leap towards that goal—the hon. Member for Carshalton and Wallington made a good point on that—but even if the Government choose not to go there, they should not rule it out, because I think that ultimately that is where we will end up.

[Anne Milton]

I thank my hon. Friend for his intervention and am sure that the report of this debate will aid people in making their decisions on the matter.

On the point raised by the hon. Member for Carshalton and Wallington on legal aid, I understand that the Ministry of Justice proposal on restructuring and refocusing the scope of legal aid is currently out for consultation. There will still be an exceptional funding route for those not eligible for legal aid, but he might want to raise that specific point with the MOJ because it is important. The hon. Member for Southport rightly picked up on the fact that we included in the White Paper the principle of “No decision about me, without me”, and that probably needs to be extended to situations where harm happens.

A few Members mentioned international precedents, but we must be slightly careful, because what happens abroad cannot necessarily be transported to this country. Those precedents tell us that there can be problems in adopting a statutory duty of candour. It can be difficult to measure success and, therefore, find any evidence of where success or failure has occurred. We must also be mindful of the differing health care and legislative environments that exist around the world when looking at international examples. In Pennsylvania, for example, we have been told that a complicated set of requirements makes enforcing its version of a statutory duty particularly problematic.

In conclusion, there are complex issues at play in relation to a statutory duty of candour, and views are held on both sides of the argument for and against such a duty. What we can say, as has been documented in the White Paper, is that we are absolutely set on achieving that change in culture to achieve openness and candour in the NHS and all organisations that provide care. We are exploring those complex issues carefully. The culture of secrecy and denial is a disease that needs to be cured, but to do so we need to understand and treat its causes at their source, rather than simply treating the symptoms with an ineffective plaster.

As my hon. Friend the Member for Poole stated, the start of the healing process is about learning the truth. The Government will need to decide how we can provide the environment, with or without legislation, in which the truth can come out immediately—in a timely fashion—and openly. We need inspirational leadership and highly developed management skills in our NHS leaders to create that change in culture to create an open atmosphere among staff, not the closed culture that we have seen. We need a culture that replaces the fear of the consequences of openness with the courage to recognise that openness, honesty and truth will, ultimately, not only give families what they need to heal their wounds and achieve closure, but allow staff to learn from their mistakes, raise their standards and raise the bar on their professional standards.

The Government will consider all that when making the decision, but Members should rest assured that everything that has been said today and all the effort to highlight the issue will be taken in account to ensure that we get the right system in place to give people what works.

10:55

Sitting suspended.

PACE (Stop and Search)

Wednesday 1st December 2010 Westminster Hall

11:00

[Richard Fuller (Bedford) (Con)]

I appreciate the opportunity to have this debate. The shorthand definition of the code of practice that I wish to consider is “stop and search”, but it also includes “stop and account”. The draft guidelines recently issued by the Government state:

“The primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about individuals without exercising their power of arrest.”

We would all recognise that that is an important part of policing powers, but some issues arise from it and I have some questions to which I should appreciate a response from the Minister. My interest arises partly from my membership of the all-party parliamentary group on race and community and from conversations that I have had with the Runnymede Trust and the StopWatch coalition, both of which have alerted me to issues of the context in which the proposed changes and guidelines are being made. The most significant issue is disproportionality between people of different ethnic origins.

A black person is at least six times as likely as a white person to be stopped and searched by the police. It is twice as likely to happen to an Asian. That is grossly disproportionate and those ratios have remained stubbornly constant in the past five years. The report “Stop and think”, which was produced earlier this year by the Equality and Human Rights Commission, included research findings that

“black and ethnic minority youths were over-represented in the criminal justice system. This over-representation started at the point of entry into the system, and largely continued as young suspects and defendants passed through it.”

If the very first part of a person’s interaction with the criminal justice system is disproportionate, there may be consequential effects at other stages in that system.

The black population of England and Wales is approximately 2.6%, but black people represent 14.8% of incidents of stop and search, 7.6% of arrests and 14.4% of the prison population. I think that anyone would find those statistics chilling. It is a rare thing for me to say I agree with Bernie Grant, the former Member of Parliament for Tottenham, but in 1997 he said:

“Nothing has been more damaging to the relationship between the police and the black community than the ill judged use of stop and search powers. For young black men in particular, the humiliating experience of being repeatedly stopped and searched is a fact of life”.

Of course society has moved on in 13 years, but, as the statistics have shown, disproportionality is still significant.

Stop and search is not a power that is used occasionally. Last year, there were more than 2 million instances of stop and account by police and more than 1 million of stop and search. That amounts to more than 10,000 a day, which is not only disproportionate, but shows widespread and pervasive use in our society.

I accept—and this is probably much of the intent behind Government moves—that the recording of information accounts for considerable police time. It is estimated by the Daily Mail that the proposed changes will save 450,000 hours of police time by eliminating the stop-and-account element and 350,000 hours of police time by reducing stop-and-search forms. Those are welcome savings in police time, to enable our police to spend more time in their jobs on the beat, and in helping citizens by combating crime.

However, against a backdrop of considerable community concerns, and severely disproportionate impacts, perhaps the Minister could assist with the answer to some questions. The first is about the removal of the requirement to record stop and account. As I have said, that represents 2 million actions by the police each year, so it is certainly clear that removing the requirement to record stop and account will save considerable police time. However, as we have not yet ended disproportionality, is the Minister concerned that we would lose an important source of information on fairness?

I understand that it would be possible for chief constables to re-institute stop-and-account searches if local concerns were expressed. That is a very welcome part of the proposals, but how will the local pressure be voiced? What would constitute a valid local concern and how would it be differentiated from concerns thought to be invalid?

I would also appreciate the Minister’s views on the decision by Suffolk police to de-fund the stop-and-search reference group. What message does that send to people who have concerns about disproportionality and the reliance on the raising of concerns by local voices? On the same point, what role does the Minister see for the Equality and Human Rights Commission? Are steps such as the enforcement action warning that it issued this week to Thames Valley police and other forces seen as part of the community response to disproportionality in stop and account and stop and search?

The Government have—and I welcome this—removed parts of the justification for section 60 stop and search on the grounds of race. The National Black Police Association said the original draft proposal

“opens the door to racial targeting that could be based on gossip, malice and outright racial prejudice.”

Perhaps I might use this opportunity to thank the Minister for, and congratulate him on, the changes, and for his statement:

“Previous guidance did not place any restrictions on use but now it will make clear than an individual characteristic such as ethnicity should never be the sole basis for any search.”

That shows the direction of travel of the Government. They will look at areas where there is disproportionality and seek to eliminate that. They will look at areas where ethnicity is misused in policing, and ensure that that no longer happens. I would welcome the Minister’s comments on the background to the draft guidelines and the change.

Section 60 stop and search is a very significant power that we provide to the police. It enables the police to stop and search an individual where there are no grounds for suspicion of the particular individual, in a designated area, for a period of 24 hours. Nationally the black population of the country, as I said earlier, is about 2.6%, but they represent 32% of stops and searches under section 60. Therefore, under the police power to stop and search with no grounds for suspicion of the individual concerned, a black person is 26 times more likely than a white person to be stopped. That is a shocking statistic and everyone, including members of the police force, will want that ratio to be changed.

The usage of this blanket power, which does not rely on individual assessment or suspicion, has grown over the past few years. In 2004-05, there were 45,600 incidences of section 60 stop and search being used. Just three years later, in 2008-09, the figure had more than trebled to 149,955. This is a specialised, exceptional power akin to those available under section 44 of the Terrorism Act 2000. Does the Minister believe that there should be specialist oversight of the authorisations that chief constables are using to invoke this power? I am not aware of any areas where there is currently national oversight over particular actions by chief constables, but given that the use of these authorisations is growing and disproportionate, and given that these very powerful measures are targeted on an area, not an individual, I would greatly appreciate it if the Minister could tell us what oversight, if any, there could be over them.

Other issues are related to the information collected on the stop-and-search form. Again, I think that the proposals are being introduced with the good intention of reducing the amount of police time that is spent on form filling. The Minister may, in an offhanded way, have called it box ticking, but I am sure that he accepts that some of this information is valuable. I want to alert him, therefore, to some reasons why some of the information that will be lost from these forms might be valuable, and he might want to consider how such concerns could be addressed.

The first piece of information that will be lost from the stop-and-search form is the name of the person who has been stopped and searched. How will it be possible to identify and measure repeat stops and searches that might amount to harassment? If an individual is stopped and searched routinely by the police, that will be evident from the current form because the individual’s name will have been collected, but it will not be evident under the proposed change. How might we deal with concerns about harassment if that information is lost?

Secondly, as a result of the targeting of individuals in a community, there might be community concerns. How will the community have the information that it needs to identify and measure whether particular individuals are being targeted? There is, therefore, not only the individual concern; there will also be a community concern if four or five individuals are routinely stopped and searched and people feel that their community is being unfairly targeted.

The second piece of information that will be lost is whether injury or damage was caused as a result of the search. If that information is not collected, my concern is that we might leave the police open to allegations that some injury or damage was caused. How will it be possible to identify and account for incidents of the misuse of force? The corollary of that is the issue of how the police will be guaranteed protection against allegations that an injury did occur.

The third piece of information that will be lost relates to whether anything was found as a consequence of the search. One of the concerns about the use of stop and search relates to how effective it is in tackling crime. With so few stops and searches resulting in an arrest, how will we know how effective stop and search is likely to be if we have no information about whether anything is found as a consequence of a search? Overall, stops and searches have resulted in an arrest rate of about 10% to 13%, which means that nine out of 10 stops and searches—3 million in total—do not result in an arrest. Three million is a widespread trawl through our communities, and that can have counter-productive effects by separating the police from the communities that they serve.

Over the past few years, since the quote from Mr Grant, progress has been made. Our police have done an enormously good job of reaching out to communities. We need to do more of that, but stop and search is not necessarily one of the main ways to do it. We need look only at the effectiveness of one of the important powers in section 60 in tackling knife crime. A review of statistics from 11 London boroughs with a high incidence of knife crime showed a broad correlation between the incidence of knife crime and the number of stops and searches—when there are a large number of knife crimes, the police carry out more stops and searches. However, there is no correlation between the number of stops and searches and a reduction in knife crime.

Let me give an example. In 2008-09, Tower Hamlets and Islington both experienced approximately 305 knife crimes. The police in Tower Hamlets responded with a stop-and–search rate that was two and a half times that of Islington. Although knife crime fell by 11% in Tower Hamlets, it fell by nearly 25% in Islington where such a large number of stops and searches were not carried out.

People in those communities want knife crime dealt with. However, stop and search does not appear to be a tool that helps and we must look at alternatives. In his response, perhaps the Minister will talk about initiatives other than stop and search that can be used to reduce the disproportionality of the statistics on ethnicity in our criminal justice system.

For example, the practice-oriented package initiative that was introduced in Stoke-on-Trent reduced the disproportionality ratio from six times the national average to just 1.5 times that average. In Cleveland, the number of stop and searches was reduced by 80%. That reduced the disproportionality in stop and search and also reduced the crime rate. Will the Minister also endorse police innovations in tackling drugs without the use of stop and search, which has been done to good intent?

I understand, appreciate and support the Government’s efforts to reduce the waste of police time spent collecting information that is not helpful in tackling crime. I believe and understand that the Minister shares my concerns about disproportionality and wishes to ensure that police powers are used correctly. I welcome the change to the draft guidelines that have stopped ethnic profiling from being written into our legislation. That move is welcome, but considerations and concerns remain about the continuation of stop and account without the recording of information, and about the reduction of information in the stop-and-search forms. I look forward to hearing the Minister’s response.

11:17

[The Minister for Policing and Criminal Justice (Nick Herbert)]

First, may I congratulate my hon. Friend the Member for Bedford (Richard Fuller) on securing the debate and on raising the issues in such a forceful way? Such matters continue to generate a significant amount of public interest and highlight some of the concerns about front-line policing that we are keen to address.

We are keen to ensure that officers strike the right balance between necessary bureaucracy for the sake of accountability—which is important—and irrelevant form filling that wastes the time of the police and the public, and impacts unduly on citizens going about their business by asking unnecessary questions.

It is important to understand how policing, and the bureaucracy that surrounds it, impacts on community relations. Procedures such as stop and account and stop and search are most effective when local communities understand them and support their use. There is a difference between stop and account and stop and search, and we must be mindful of ensuring that the processes associated with them are not confused. Stop and account is where an individual is asked to account for their presence, actions and so on, but they are not searched. It can be one step on from the general conversations that officers have with members of the public every day. Stop and search clearly goes further than that. It is an intrusive procedure and therefore a cause of more concern among local communities.

Many of the proposed changes to the Police and Criminal Evidence Act 1984 code of practice A are necessary to reverse the increase in paperwork generated by the last Government. In our judgment, that paperwork hampers police operations and leads to encounters with the public that are ineffective, bureaucratised and poorly understood. We need officers on the street to record only information that is of value, and it may differ from situation to situation and from force to force. I do not want to see in place measures that discourage proper interaction between police officers and members of the public.

Let me explain the rationale behind our stop-and-account proposals. The abolition of the national recording requirement for stop and account will potentially free up around 450,000 hours of police time, allowing officers to increase the quality—and shorten the duration—of these brief encounters, and enabling forces to be more responsive to the communities that they serve.

I share my hon. Friend’s concerns about the level of disproportionality in the use of police powers. However, when the statistics for stop and account are examined more closely, it appears that it is not used in a disproportionate manner across England and Wales. It is also fair to say that there is less concern about the operation of stop and account than there is about stop and search. That is why we are removing fully the national requirement for recording stops and accounts, leaving local recording to a local decision where a local need is identified.

Individual police forces know their own communities better than Whitehall does. Increasingly, they will be answerable to their local communities, as we have set out today with the introduction of the Police Reform and Social Responsibility Bill. Those forces should know the extent to which the operation of stop and account is a matter of particular local concern. They are best placed to analyse their own statistics and understand how they use the tactic and how it impacts on ethnic minority groups locally, and they should be held to account by their elected police and crime commissioners, with the scrutiny of new police and crime panels to ensure the proper use of such procedures.

The Government understand that stop and search is a very different tool and is far more intrusive. It is right that its monitoring and use should continue, both nationally and at a local level. We are reducing the number of pieces of data to be completed on a stop-and-search record from 12 to seven, saving more than 300,000 hours of officers’ time every year as well as reducing the duration of these encounters for those stopped and searched.

My hon. Friend expressed concern about some of the pieces of data that will be removed. However, key information about each encounter will still be recorded, including the self-defined ethnicity of the person stopped, which is obviously the critical information, and we have made minor amendments to code A to encourage the further use of mobile technology to reduce even further the time taken to record each stop and search. The 12 recording requirements used during a stop-and-search encounter will be reduced to seven: ethnicity, the object of the search, the grounds for the search, the identity of the officer carrying out the stop and search, the date, the time and the place. Such requirements do not prevent police officers from recording information that they feel would be useful intelligence, but it is not necessary as a Government requirement for such information to be held in a stop-and-search record.

Our amendments to the guidance on the use of section 44 stop-and-search powers follow the Home Secretary’s announcement on 8 July, which curtailed the use of this power in the light of the judgment of the European Court of Human Rights in the case of Gillan and Quinton v. United Kingdom. My hon. Friend also raised issues around section 60 stop-and-search powers, both in terms of the guidance supporting officers’ use of this power, and the disproportionality figures that have been reported in the press recently.

Let me assure my hon. Friend and all hon. Members that there was never any intention on the part of the Government to encourage the use of ethnic profiling or unlawful discrimination in the use of this power—far from it. The original draft of the guidance contained wording that had been introduced in code A by the previous Government in 2003 in relation to the police’s use of section 44 powers. The original draft explained that all authorisations had to be supported by clear intelligence and that, on occasion, intelligence could suggest a possible suspect description that included characteristics such as race, age, sex and so on. However, it also stipulated that race should never be the sole reason for stopping someone under section 60.

The guidance was evidently not clear enough and was misconstrued. We therefore considered the responses to the statutory consultation and have redrafted the relevant paragraphs to include all protected characteristics under the Equality Act 2010. We have stated clearly that unlawful discrimination will not be tolerated.

I must, however, warn against judging the use of a key tool such as section 60 purely on a national statistic. The figures cited in the press about black people being 26 times more likely than white people to be stopped and searched under section 60 are potentially misleading if they are not examined a little more closely. In 2008-09, 76% of all section 60 stops and searches were conducted by the Metropolitan Police Service in London. Therefore, to assess the use of that power against the national population’s ethnicity breakdown is deceptive. We need to compare that 76% with the ethnicity of the population of London and the remaining 24% with the rest of the country. When we do that, we find that the use is not so disproportionate.

The power is used to tackle specific issues relating to serious violence and, in particular, knife crime. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), who is responsible for crime prevention, recently responded to a debate in this Chamber on youth violence and was very clear about how we need to protect our communities against violent crimes.

The use of section 60 as one of the many tools that the Metropolitan police use as part of their continuing action against knife crime receives significant support from communities in London. The Metropolitan police have gone to great lengths since the start of Operation Blunt 2—their programme of action against knife crime—to increase community engagement. An example of that is the young Londoners engagement programme, which explains why the powers are so important and the dangers of carrying knives. The Metropolitan police are in the process of reviewing their operational use of the power, and all boroughs have been reminded that they must be proportionate in their use of section 60.

Neighbourhood policing—such a rare thing at the time of the Macpherson inquiry in the late 1990s—is now embedded throughout the country in such a way as to give the public far greater confidence in the way in which their police service operates. The Government are determined to do everything that they can to ensure that neighbourhood policing is protected, despite the budgetary challenges that confront forces. We are also determined that the British tradition of policing by consent should flourish, and that can happen only if the public understand why the police do what they do and, just as importantly, if the police understand how their actions are perceived by the public.

My hon. Friend the Member for Bedford referred to the role of the Equality and Human Rights Commission. The commission has praised the “Next Steps” process developed by the National Policing Improvement Agency, which is being used by the police in, for example, Merseyside and Dorset, as well as Lewisham in London. It helps the police to understand the way in which they use stop and search and how the population of an area and the apparent levels of disproportionality might in some circumstances not present a true picture. The early feedback on “Next Steps” is positive, and we hope to be able to expand it to other areas shortly.

I have been impressed by the way in which my hon. Friend has raised these issues. Since the general election, there has not been a great deal of debate in the House about these issues or the changes that we propose to make. There may be debate in relation to the orders that we have laid to change the PACE codes, but I would welcome the opportunity for further discussion with my hon. Friend and other hon. Members. I would be happy to convene a meeting with key representatives of the police, including the deputy commissioner of the police in London if he would be willing, in order to talk about their use of stop and search, why they believe that it is such an important tool in their fight against knife crime, why they believe that it has public consent and how they are alive to the important issues of disproportionality that can be raised.

In summary, stop and search is a vital tool. The challenge for the Government and the police is to ensure that the powers are used fairly and with the support of the community, and it is a challenge that I am confident we will meet.

11:30

Sitting suspended.

HIV

Wednesday 1st December 2010 Westminster Hall

14:29

[Mr Edward Leigh (in the Chair)]

The sitting is resumed.

[Hon. Members]

Hear, hear!

[David Cairns (Inverclyde) (Lab)]

That might be the best cheer I get all day. I welcome you to the Chair, Mr Leigh. It is a pleasure to serve under your chairmanship in this important debate. I also thank Mr Speaker for allowing this debate on HIV services in the UK to take place on world AIDS day. I have been in Parliament for nine years, but I am still ignorant about how debates are selected—whether there is a lottery or whether Mr Speaker has a say in the matter. If he does, I thank him; if it was a lottery, I thank the Fates for timetabling this debate on 1 December.

I begin with a point of clarification. This is not for the benefit of hon. Members present in the Chamber, as they are well aware of the procedures of this place, but for those who are watching the debate on television or the internet, and those who will read the account of the debate in days to come. This debate will focus mainly on HIV in the UK, but that is not because we think that HIV outside the UK is not a problem, or because we are unaware of the scale of HIV in the developing world.

Africa has 10% of the world’s population but 72% of the deaths from AIDS, and we are aware of that. However, parliamentary procedure means that different Departments respond to the debates on different days, and today it is the turn of the Department of Health, not the Department for International Development. Therefore, although an enormous number of points could be raised about the global AIDS epidemic, I will in the main restrict my comments to HIV in the UK. With your indulgence, Mr Leigh, I might also sneak in a few comments about the international scene; I alerted the Minister about that in advance.

If colleagues are anxious to hear about the international aspects of the HIV epidemic, I should say that a world AIDS day reception will be held this evening at 7 pm in the Commonwealth Parliamentary Association Room. You are invited, Mr Leigh, as are all hon. Members, friends and colleagues.

[Mr Gareth Thomas (Harrow West) (Lab/Co-op)]

My hon. Friend is performing a service by raising the issue of HIV/AIDS in the UK. Does he also recognise that many people, both inside and outside the country, want to know what the UK Government intend to do about the future funding of the Global Fund to Fight AIDS, Tuberculosis and Malaria? That body has an excellent record in getting drugs to people with TB, malaria and particularly AIDS, many of whom are still in desperate need.

[David Cairns]

I am grateful to my hon. Friend, who was a distinguished and long-serving Minister at DFID. In a sense, it is a false dichotomy to say that there is an AIDS epidemic in the UK and an AIDS epidemic in Africa and never the twain shall meet. One of the largest at-risk populations in the UK is the African community––people who come from Africa and are HIV positive, or those who contract the disease in the UK within the African community. I will speak about that in a moment.

My hon. Friend is correct to highlight the need to address the problem of the AIDS epidemic in Africa. Over the past few years, one of the most effective ways of doing that has been through the Global Fund to Fight AIDS, Tuberculosis and Malaria. The last Government had a good record in ensuring that the global fund was initiated, then adequately resourced. During the most recent meeting of the fund in October, high, medium and low targets were set for the level of replenishment. Unfortunately, the global community failed to hit the low target, let alone the medium or high targets.

I understand why the Government do not come forward and state the exact figures for the replenishment of the fund. Through DFID, they are conducting a multilateral aid review, and until they decide their priorities, they cannot say how much will be made available for the global fund. Until we can provide a figure, I encourage Ministers to let the world know, at least with rhetoric, that we remain committed to the global fund.

Much of the world looks to the UK for an international lead in tackling AIDS, and other countries will be looking to our figures for the replenishment of the global fund before making their commitments. The Government have an excellent opportunity to set a global lead. I was going to make those points about the international community at the end of my speech, but I have made them now.

Let me return to matters for which the Minister is responsible—she will be pleased to hear that—rather than the rest of the world. I will make three points about how we should respond to the ongoing HIV epidemic in the UK and our public policy; priorities. First, I will speak a little about prevention, secondly I will discuss testing and treatment; and thirdly, I will say something about care and support. Those three things do not exist in isolation; they are not, to use fabled management-speak, in “silos.” One point leads into another, but for the purposes of the debate I will say a little about each issue in turn.

The backdrop to this debate is not only the ongoing financial constraints under which all Governments around the world are operating, but the NHS reconstruction and reconfiguration that the Government have embarked on, as well as the messages contained in the public health White Paper, launched yesterday by the Secretary of State. Because the national health service is undergoing a process of change and transition, there is some uncertainty. Until we get answers to some of the questions that we raise, that uncertainty will continue.

As I pointed out in the main Chamber this afternoon, although the Minister’s responsibility on such matters is constrained to the NHS in England, the HIV virus does not respect geographical borders. It is incredibly important for the Government to work closely with the devolved Administrations in Edinburgh, Cardiff and Belfast to ensure a coherent, joined-up approach. That is the only way to tackle the virus in a way that will see a reduction in the number of people affected and reverse the rate of increase in new cases of the disease. Therefore, although I am addressing the NHS in England, the message must be heard by those who configure the NHS in the devolved Administrations. I was pleased to hear that the Secretary of State for Scotland will meet the Minister responsible for health in Scotland tomorrow, and will put that important issue on the agenda.

The first issue that I mentioned was prevention. In the early days of the epidemic, not much was known about the virus. There were no drugs and no effective treatment. Messaging was, by necessity, extensive and untargeted. Those of us old enough will remember the adverts with the collapsing tombstones and the gravelly voice telling us about the new virus—AIDS—and how dangerous it was. We remember the posters and the radio adverts, which were essentially blanket advertising for the whole UK. People debate the relative impact of those messages, but we remember that campaign many years after it happened, so it did have some impact.

The situation of those who have HIV in the UK today means that that type of mass media advertising is not perhaps the best way of getting a message to those most at risk. That point was made in the foreword to the “Halve It” document, by Lord Fowler, about which I will speak shortly. Lord Fowler was a distinguished former Secretary of State for Health and Social Security, and he is remembered very fondly by people who work on behalf of and alongside those with HIV and AIDS for the forward-looking approach that he took. As he acknowledges, such mass communication messages are no longer relevant, and the campaign must be more targeted.

Will the Minister tell us whether the Government’s strategies on sexual health and HIV propose to target messages on specific, at-risk communities, and particularly but not exclusively on younger gay men, for whom some of the safe sex messages may have been lost in time, and the African community? Those communities are not mutually exclusive, of course, but the messaging to each will have to be different. Particularly now that more heterosexual people are contracting the virus, many of whom are in the African community, there is a pressing need to develop messaging that speaks to that community and to its values and structures, whether through Church or faith networks or whatever, so that we can overcome some of the ignorance and stigma in the black African community in this country. I would be grateful for the Minister’s comments on what she proposes to do about that.

[Pauline Latham (Mid Derbyshire) (Con)]

rose—

[David Cairns]

I am happy to give way to a vice-chair of the all-party group on HIV and AIDS.

[Pauline Latham]

Does the hon. Gentleman accept that, in addition, white heterosexual people who perhaps have got divorced recently, after having had a monogamous relationship for many years, are now going out into the world of single dating and getting into a mess because they do not realise that HIV/AIDS is out there in the heterosexual community? Is that not an expanding area that we should also be targeting?

[David Cairns]

The hon. Lady is right. I was saying that the messaging should not go exclusively to gay men and to people in the African community. There must be a message for everyone, but the messaging needs to be differentiated. There will need to be different messages to different people, within relative constraints. I hope that the Minister will deal with her point.

There is concern. I am of the generation that came to maturity at the time when the AIDS epidemic—well, I might not have come to maturity yet; it is probably up for debate whether I have reached maturity.

[Mr Thomas]

Don’t do yourself down.

[David Cairns]

Yes, I am doing myself down here. I am of the generation that came to adulthood when the virus was making its first big impact, so those messages really stayed with me. I wonder whether that is the same today, particularly, although not exclusively, for young gay men of 17, 18 or 19. We cannot be squeamish about this issue. We must speak a language that they hear and will listen and respond to. I do not expect the Minister necessarily to go into that in detail today, but I want an assurance from her in that regard. I know, particularly given her former career, that she is not squeamish about these things, and we cannot be squeamish when people’s lives are at stake.

Of course, one way to prevent the spread of the virus is to ensure that everyone who is HIV-positive knows that they are HIV-positive—knows their status—and is receiving the correct drug treatment. It is not widely appreciated that when someone who is HIV-positive is on the correct level of antiretroviral drug treatment, they become significantly less infectious. I had not appreciated that—I must confess that that was ignorance on my part—until fairly recently. It means that treatment for one person is prevention for another.

When an individual is on ARVs and is less infectious, that helps to constrain the spread of the epidemic and when people know their HIV status, it alters their sexual practices. Most of the evidence and studies show that. The more people we can test and the more HIV-positive people who know their status and are receiving the right treatment, the more we will do to prevent the spread of the virus.

[Jenny Willott (Cardiff Central) (LD)]

rose—

[David Cairns]

I am happy to give way to another vice-chair of the all-party group.

[Jenny Willott]

I have just had a baby and I was tested automatically for HIV during my pregnancy. Does the hon. Gentleman agree that extending such automatic testing could play a valuable role in identifying cases very early, so that people can receive the treatment that, as he said, will not only help them with their own medical needs, but prevent them from spreading the condition?

[David Cairns]

The hon. Lady makes an excellent point. I think that it was my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson), when he was Secretary of State for Health, who introduced automatic testing in pregnancy. If we look at the graph, we see that the tail-off is quite astonishing: once opt-out testing was introduced for pregnant women, the numbers of babies being born HIV-positive plummeted.

Of course, the issue is not just about babies. Quite often when we are talking about the prevention of mother-to-child transmission, we focus on the baby, but a woman is involved as well. As the hon. Lady rightly says, if a woman’s own HIV-positive status has been diagnosed at the beginning of pregnancy, she can be put on the correct course of ARVs. That is why, in the northern world, mother-to-child transmission has been, if not completely eliminated, massively reduced— because not only ARVs but the correct education about breastfeeding are making an enormous difference. However, almost 500,000 babies born in Africa every year are HIV-positive. That is completely preventable—entirely avoidable. If pregnant women are tested and put on ARVs, they do not need to pass on the virus. It is one of the great scandals of our age that something that is solvable—we have solved it here—could be solved throughout the world with the correct financial support and the political will, but it has not been.

[Mr Thomas]

Is not one of the conclusions that can be drawn from the comments made by the hon. Member for Cardiff Central (Jenny Willott), as well as from my hon. Friend’s point about mother-to-child transmission, that we need to ensure that the Department of Health and DFID work closely together, so that the lessons of success in dealing with HIV in this country can be properly worked into our development policy abroad? Is it not therefore a concern that DFID’s HIV/AIDS team seems to have shrunk very small—if indeed any cadre of skills in this area is left in the Department at all?

[David Cairns]

I am grateful to my hon. Friend. He has far greater knowledge of these matters from within DFID than I have. If what he says is true, clearly it is a very worrying development. I was fortunate enough to meet some members of the HIV/AIDS team in DFID a few weeks ago. Whether or not the team is smaller than it used to be, it is certainly very committed. I also met some DFID workers when I was in Kenya a few months ago, and they are doing a tremendous job.

It is to the credit of the Government that they have protected the international development budget, but of course there will be reprioritising within that budget. Part of what we are doing as an all-party group is ensuring that these issues are not lost in the reprioritisation. This is what people find very frustrating about the international dimension of this issue. Enormous progress has been made and the tide is beginning to turn. If we withdrew funding or support or lost the political will at this stage, it would be a disaster and a tragedy, not least because in five years’ time we would have to return to the matter, because we could not let the number of deaths and new infections let rip, as we saw happen in the 1980s and 1990s.

[Mr Thomas]

Will the all-party group, as part of its thinking about the Government’s multilateral aid review, also consider funding for the new UN women’s agency? I ask that in the context of the comments from a previous UN Secretary-General, who said that AIDS in many parts of the developing world has an increasingly female face and that we need to ensure that we continue to champion efforts to tackle issues relating to gender equality—for many reasons, of course, but in particular to help with the fight against AIDS.

[David Cairns]

My hon. Friend makes an excellent point. The new agency has real potential to make a difference. We are all relieved that some of the world’s appalling, oppressive, anti-women regimes that were muscling in have been set to one side, which will allow the agency to focus on the issues that he mentioned.

A saying that we hear over and again now in Africa is that the face of the epidemic is female. That is not just because of mother-to-child transmissions, but because of the disempowerment of women and the limiting of women’s ability to make choices about their own sexual and reproductive health. Of course, that is not the case solely in Africa; it is the case elsewhere in the world as well. However, it is a particularly pressing problem in Africa and one that we must not lose sight of.

I was talking about the need to ensure that people who are HIV-positive know that they are HIV-positive. That is why the all-party group is pleased to support the Halve It campaign, which is composed of many agencies, clinicians and groups advocating on behalf of people with HIV. It is campaigning to halve the number of late diagnoses by 2015. That is an ambitious target, but the document sets out steps that can be taken to meet it, and I would be grateful for the Minister’s comments on them.

Yesterday, I was pleased that when I urged the Secretary of State for Health, while he was making his statement on the public health White Paper in the House, to look at the Halve It campaign, he gave an undertaking to do so and see whether it could form part of the HIV and sexual health strategy. I would be grateful if the Minister confirmed that she will look at the campaign’s document, particularly at the steps that can be taken to halve the numbers of late diagnoses and of those living with undiagnosed HIV by 2015.

I shall press on because I know other hon. Members are keen to take part and I want to hear the Minister’s reply. Once a person is diagnosed––I shall speak about some of the hurdles in a moment––the virus changes from being in its potentially lethal undiagnosed state, which poses a wide public health risk due to how it can be transmitted, to being a more normal—I use that word advisedly—long-term managed condition. That brings different challenges with it.

One thing that we are looking for in the detail of the NHS restructuring plan is how people will access services in the long-term managed phase of the condition. Who will commission those services, particularly in low-prevalence areas? Until those questions are answered, there will be uncertainty in the community. I want the Minister to answer specifically the question of who will commission HIV services in the new restructured NHS. Will it always be the GP? Is the GP the best placed person to do so? Do GPs have the time and the expertise, particularly in low-prevalence areas? I am sure that GPs in much of London, Brighton, Manchester or Glasgow have the necessary expertise because they have the caseload, but in other areas that might not be the case. Is a one-size-fits-all approach across the NHS the right solution or is something a little more granulated necessary to deal with the full complexity of the issue?

We have to face up to the fact that a lot of people who are HIV-positive simply do not want to access services through their local GP. Whether it is wise or unwise, it is understandable in some areas, particularly in smaller towns or villages, where everyone knows everyone else, and you know who works in your GP’s surgery and they know everybody and everything about you. Under those circumstances and given that the stigma prevails, and the myths, misunderstandings and prejudice that people with HIV face, it is understandable that there are those who will not want their status to be known in their own community. In evidence put forward yesterday by the National AIDS Trust, we saw how many people face discrimination in the workplace due to their HIV status.

AIDS is a complex condition. It affects people physically, emotionally and psychologically. In that complex mix, it is important that the NHS is responsive to that and allows people pathways to treatment that might not always be the same in every place. I would be grateful for the Minister’s views on that.

[Mr Russell Brown (Dumfries and Galloway) (Lab)]

I congratulate my hon. Friend on securing the debate. Because stigma is still attached to this condition, people in rural localities, such as mine, will seek advice and help from further afield, thereby distorting the figures on the prevalence of the condition in certain parts of the country.

[David Cairns]

My hon. Friend is absolutely right. He represents an area that is not only largely rural but on the borders of Scotland and England, which brings me to the point that I mentioned at the very beginning. I imagine that many of his constituents will be accessing HIV services in Carlisle, for all sorts of reasons, but partly due to the stigma still associated with the condition. They do not want to access services in small villages and towns. Ultimately, we have to get to a situation in which there is no stigma, prejudice or discrimination and people can happily access GP services for a long-term managed condition, as people with diabetes, asthma and other long-term managed conditions can. Until such a time, we have to be sensitive to these issues.

Another reason why people are wary about always accessing services through GPs is the lack of awareness and understanding that many GPs demonstrate. Part of the reason why we have so many late diagnoses is that GPs do not pick up the telltale signs often enough. An alarming number of people had seen their GP on many occasions during the 12 months before they were eventually diagnosed as HIV-positive, and it was not picked up that they might have been HIV-positive. An astonishing number of people had been in-patients in the 12 months preceding their diagnosis; they were almost certainly HIV-positive while they were in hospital, but it was not picked up.

A lady recently got in touch with the all-party group—a middle-aged, professional, white lady—who had suffered serious recurrent health problems for two years and had seen numerous clinicians, including a GP on many occasions, before anyone thought to offer her an HIV test, which brings me back to the point that the hon. Member for Cardiff Central made. That lady was a textbook case: she had every symptom and yet her GP never thought to offer her an HIV test. That is clearly happening across the country, which explains why we have 22,000 people who are HIV-positive, but do not know it. It is not the case that none of them ever visits their doctor—they regularly visit their GPs, perhaps they even go into hospital as in-patients, and yet their status is not picked up. That is a public health disaster because the ability of those people to infect others is much greater than it would be if they were receiving the correct course of ARVs.

We need assurance that, within the restructuring, GPs will get very good guidelines and necessary training, and be encouraged to offer people an HIV test in the routine manner suggested earlier, to tackle undiagnosed HIV.

[Jenny Willott]

Will the hon. Gentleman also suggest that we need to tackle the stereotypes about the kind of person who might have HIV? That is one issue for people who do not go to their doctor, or who do go but whose GP does not pick up on it. As the hon. Member for Mid Derbyshire (Pauline Latham) mentioned earlier, GPs may not think that a middle-aged, heterosexual white woman is likely to be HIV-positive. We need to tackle those stereotypes.

[David Cairns]

The hon. Lady is correct. Part of the education of GPs must be about looking at the symptoms, not only what the GP imagines a typical at-risk person would be. Having said that, we need to show that those within high-risk groups of people are being tested as well.

The tremendous progress that has been made in testing in the past few years is truly astonishing. Someone can be tested and have the result in less than a minute. I hope that he will not mind me mentioning it, but the hon. Member for Brighton, Kemptown (Simon Kirby) saw this first-hand last night when he received a test through the services provided by the Terrence Higgins Trust in the House, and he had the result in less than a minute. Testing is not the long drawn-out process that it was years ago, but can be done much more quickly.

Finally, on care and support, people are living longer with the virus, which is a very good thing, but it brings with it challenges and complications—physical, emotional and mental. It is very important that we understand the need to have a strategy for people living longer with HIV. The AIDS support grant is no longer ring-fenced, and I am not arguing that it should be re-ring-fenced, but I am arguing strongly for it to stay within the grants that go to local government as a specified budget line.

In that way, local people can hold their local authority to account in exactly the way that the Secretary of State outlined yesterday. It is his belief that local people should be able to see the services being provided for them, and argue for services. If the AIDS support grant disappears as a title altogether and is subsumed into the general pot of money that local government gets, local people will not be empowered to come forward and demand the kind of services for which money is being made available.

In conclusion, I hope that the Minister will address some of the concerns about the AIDS support grant and the Government’s vision for it. I hope too that she will be able to calm some of the fears and uncertainties out there on how HIV services are to be commissioned, how they will be accessed, and how they will be supported under the new NHS that the Government have in mind.

[Mr Edward Leigh (in the Chair)]

Order. Five Back Benchers have intimated that they wish to take part. I intend to call the wind-ups at about 3.30 pm. Hon. Members can do the maths, so I ask for brief speeches from now on.

15:00

[Mike Weatherley (Hove) (Con)]

I congratulate the hon. Member for Inverclyde (David Cairns) on securing this important debate, whether by skill or fortune.

The Hove and Brighton area has one the highest rates of HIV in the UK. Many of my constituents live with the virus, and others have friends and colleagues that do so. It is a great privilege to speak up for them on any day, but especially on world AIDS day.

I wish to make two clear points. First, HIV does not always conform to stereotypes. HIV does not affect only young men on the gay scene, or people in or from Africa. As we heard earlier, it also affects white, middle-aged and older straight men and women. Until politicians, policy makers, doctors and the general public take that fact on board, dealing with HIV will continue to be hard work. Secondly, 26% of all who live with HIV in the United Kingdom are undiagnosed. Tackling this must be a priority.

In Brighton and Hove City primary care trust, about 450 people are HIV positive without knowing it. The Government and local services must do everything that they can to bring the number down, and I am determined to do what I can to support the NHS at the local level in this task.

My two earlier points are linked, because it is precisely those who are not in what are known as high-risk groups who get diagnosed the latest. Heterosexual men have the worst rates of late diagnosis, at 65%. That is possibly because they are less likely to consider themselves at risk, as we heard earlier, and unlike women they will never be tested in ante-natal settings. It could also be because clinicians may not consider them to be at risk. Heterosexual men over 50 years old have the worst rates of diagnosis; 73% of those not diagnosed until over the age of 50 are diagnosed late.

HIV comes in many shapes and sizes. At 54%, more than half of new diagnoses in 2009 were among heterosexuals, something that surprised me when researching for the debate. At 51%, more than half of HIV-diagnosed individuals accessing HIV care in 2009 were infected through heterosexual sex. The proportion of heterosexual diagnoses in which people are believed to have been infected in the UK has risen year on year throughout the epidemic. From 2003 to 2007, it doubled from 12% to 24%, and it continues to rise. It is now about 32%. The over-50s represent one in five of all adults seen for HIV care in 2009. That is due to an ageing cohort of people diagnosed previously, as well as an increase in new diagnoses among older people.

I dwell for a moment on the growing cohort of people of more than 50 years of age that live with HIV. This cohort will be bringing new needs to the NHS, and it should be ready for them. As people get older, they see more of their GPs. Many older people living with HIV suffer side effects from treatment; overall, they report twice as many other long-term non-HIV conditions as their non-HIV positive peers. As a consequence, they need to spend more time in health care, including primary health-care settings, than their peers. That makes their relationship with non-HIV specialist doctors almost as important as their relationship with HIV doctors.

The Terrence Higgins Trust surveyed about 400 people aged over 50. It found that

“respondents repeatedly told stories of discrimination, ignorance and poor clinical treatment in generalist healthcare, particularly in primary settings.”

The survey concluded that there was important work to be done to address HIV discrimination in primary care settings, as doctors there may not be so familiar with people who have the virus.

In Hove and in Brighton, we have some of the most HIV-aware clinicians in the country, and our specialists are among the best in the world. However, we must not be complacent, as parts of the NHS in our area will be less HIV-aware, as we heard earlier. I urge the Minister to work with her colleagues, the all-party group on HIV and AIDS and charities such as the Terrence Higgins Trust to tackle the problem. Training for GPs and surgery staff could be one way to do so.

Medical care is not the only service needed by older people. In the same Terrence Higgins survey, fewer than one in 12 older people with HIV said that they would approach a mainstream organisation for older people for support. Age UK and the Terrence Higgins Trust are working to change attitudes and to improve understanding of HIV in mainstream social care and social networks for older people. Again, I hope that the Minister will listen to the views of people living with HIV. as her Department moves to create a social care system fit for the 21st century.

I turn next to late and undiagnosed HIV. Of all adults diagnosed with HIV in 2009, 52% were diagnosed late, when their CD4 count dropped below 350. People with the worst rates of late diagnosis are over the 50s. Recent research suggests that the majority of those people will have had previous contact with their doctors. Late diagnosis, whatever the age, is a problem; if treatment is not started promptly, it can do serious damage to the body and severely cut life expectancy.

HIV treatment is excellent, and if diagnosed promptly, one can live to an old age. It is not right that some of my constituents will not have this opportunity by being diagnosed too late to benefit from it. It even makes financial sense to treat people early; it is much cheaper to have people someone stable on HIV treatment than it is to treat them for the endlessly recurring serious conditions that can result from undiagnosed HIV. HIV treatment also reduces viral load; as a result, those who are diagnosed and on treatment are less likely to pass on the virus.

Now is the time, while we are focusing on public health and while we are worrying about public finances, to take action to tackle late diagnosis and undiagnosed HIV. I am proud to say that people in Brighton and Hove are not sitting back waiting for someone to come up with a solution but are already working hard to tackle the problem. There have been two pilot studies in our area looking into ways of reducing undiagnosed HIV, using clinicians in the area. Of 596 people tested, only two positives were found. However, even more people were identified through an anonymous survey done by the university of Brighton. I urge as many people as possible to be tested, because of the 3,872 anonymous tests 54 were positive.

My constituency is proof that HIV can affect anybody, whatever their background, age or sexuality. As more people with HIV grow to old age, we must ensure that they receive services of which we can be proud. Such services should include prompt diagnosis.

15:06

[Ian Austin (Dudley North) (Lab)]

I am delighted to take part in this debate. First, it gives me the opportunity to congratulate my hon. Friend the Member for Inverclyde (David Cairns) not only on securing the debate but on the important work that he does in chairing the all-party group on HIV and AIDS. Secondly, it gives me the opportunity to recommend to the Minister the work of Summit House Support. It is a fantastic charity, led by its chair Claire Pennell and its chief executive Suzanne Callen; for the last 18 years, the organisation has provided phenomenal services and support for people with HIV and AIDS in Dudley and Sandwell.

Thirdly, it gives me the opportunity to thank the Minister and her Department for the support that Summit House receives from the Department of Health through the Dudley and Sandwell primary care trusts. Finally, it gives me the opportunity to raise a number of points that I know are of interest to the staff at Summit House Support and those who work in the field.

I am delighted that the Secretary of State for Communities and Local Government has written to local authorities promising to increase spending on AIDS support over the next 10 years—I understand by £10.5 million. Is the Minister able to tell us how organisations in the HIV sector such as Summit House Support can safeguard the way in which local authorities decide to spend their grants? Will there be criteria for allocation, a needs assessment or some sort of ring-fencing process that considers the real needs of those with HIV? We have heard that is often a hidden group, so it needs to be done through specialist agencies, and it is fair to say that some of those working in the field are extremely concerned that money could be sidelined for other uses by local authorities if things are not monitored correctly.

As my hon. Friend the Member for Inverclyde said, people living with HIV are worried about the GP commissioning proposals now being considered. HIV is clearly a specialist area, and GPs historically have not had much interaction with those who have to live with it. In some cases, there is not the relationship of trust that should exist. Many people living with HIV are genuinely frightened or concerned about the proposals.

The current sexual health strategy will end shortly. What plans do the Government have to write a new strategy, given that the sexual health agenda has changed since 2004? Has the Minister also considered the extent to which NHS employees are routinely trained in HIV routes of transmission? I understand from the service users I met at Summit house that staff who have received such training and who understand the facts about transmission and infection are likely to be able to deal with people infected with HIV more effectively than those who have not had such training. Does the Minister think that training in HIV routes of transmission should be incorporated into employees’ standard training if is not already part of it?

Finally, would the Minister be prepared to visit Dudley to see first hand the fantastic work done at Summit house? If her diary does not allow her to do that, would she be prepared to let me bring people from Summit house to meet her in London?

15:10

[Stuart Andrew (Pudsey) (Con)]

May I say what a pleasure it is to serve under your chairmanship, Mr Leigh? I congratulate the hon. Member for Inverclyde (David Cairns). I am rather reassured that, after seven years, he does not know how these debates are chosen, because I certainly do not have a clue after seven months.

This is a significant day. It is a day to remember those who are no longer with us; it is a day to acknowledge and pay tribute to those who have worked so hard on this issue; and, crucially, it is a day to raise awareness. On the first of those issues, the scars on those who have lost people, particularly in the early years, are clearly raw. Thankfully, I do not know anybody who has died from AIDS, but I have friends who do, and they recall the pain and suffering vividly.

It is important that we remember those who have died and acknowledge their suffering. There is a wonderful quote in the film “Philadelphia”, where someone says that social death precedes physical death. That was certainly true in the early days, but I hope that things will get a lot better as time goes on. It is important, however, to look at how far we have come.

This is also a day to acknowledge those who have done so much. I pay tribute to each and every person and organisation for their work. There are too many organisations to mention, but I would like to pay tribute to the National AIDS Trust and the Terrence Higgins Trust. I would also like to mention two individuals. The first is the chief executive of the Terrence Higgins Trust, Sir Nick Partridge, who is here. He has done a tremendous amount of work over the years, and he should be acknowledged. The second is Lord Fowler, and I was pleased last night when he was acknowledged for the work that he did in the very early years.

Perhaps most importantly, today gives us an opportunity to raise awareness of HIV and AIDS here and abroad. I know that we are concentrating on the UK today, but I hope that we will have an opportunity to talk about the issues abroad, because they are significant.

The latest figures from the Health Protection Agency show that more people than ever are living with HIV. Last year, there were more than 6,000 new diagnoses, which is fewer than the year before, but only slightly. That emphasises that this is still a major problem. As many Members have mentioned, statistics also show that slightly more than half of new diagnoses are among heterosexuals, but the rate of infection in the gay community is still very high. Worryingly, there is an increase in diagnoses among those over 50, as my hon. Friend the Member for Mid Derbyshire (Pauline Latham) rightly said. We have also heard about the quarter of people with HIV who are undiagnosed. That is a huge problem, which really needs addressing.

I represent a constituency in Leeds, where the prevalence of HIV cases is average for England, with about 850 people receiving treatment and care in the city. Again, however, many of those people have been diagnosed very late, which highlights the need for early diagnosis. We also have a growing African population in the city, and there is a real link between HIV abroad and in the UK, as more and more people move around the world. In addition, we have one of the most vibrant gay scenes in Yorkshire, and I hope that we can encourage as much focus as possible on those two groups, because prevention really is the key.

It is important to mention the campaigns of the 1980s. The Conservative Government of the mid-1980s faced a massive challenge on an emerging issue, and even the best experts were learning day to day. Those campaigns were scary. I was at school at the time, but I remember them, and they still have an impact on me. As the hon. Gentleman said, those old campaigns were not exactly targeted, but they were highly effective.

Developments in medicine these days mean that people with HIV can expect to live well into old age. This generation could be forgiven for thinking that the problem has gone away, and that is a big problem, particularly in the young, at-risk groups. In the 1980s, HIV had already taken root among gay men in this country. Meanwhile, a devastating HIV/AIDS epidemic was about to take off in Africa, with inevitable consequences for this country and others. It is now estimated that, by 2012, there could be close to 100,000 people with the virus in this country. That is a tenfold increase on the 1980s figures, so the problem has not gone away.

I pay tribute to groups such as CHAPs, which have worked with community groups all over the country, and I am lucky that we have such groups in my constituency. [Interruption.] I notice, however, that I need to get a move on, so I will get rid of some of the pages of my speech.

Let me quickly say that I am delighted that we are highlighting some of the work that has been done over the past few years, although I should emphasise that work still needs to be done to save lives. There needs to be foreign aid, education and greater testing. Let me also say how happy I am that HIV and sexual health have featured highly in the public health White Paper, and that is important. It is also important that we acknowledge the problem in socially disadvantaged cases.

Finally, there is no one silver bullet when it comes to preventing HIV transmission, but we can, through a range of interventions, start to reverse this epidemic. Like the Government of the 1980s, the coalition faces a considerable challenge in tackling HIV. Unlike that Government, however, the coalition can draw on 25 years of experience in dealing with the epidemic and in understanding what works and what does not. I wish them well.

15:17

[Mr Virendra Sharma (Ealing, Southall) (Lab)]

I congratulate my hon. Friend the Member for Inverclyde (David Cairns) on securing a debate on such an important topic. HIV policy has long been close to my heart, and it is a pleasure to be able to speak in the debate. It is important that I can speak on an issue that affects my constituency so greatly. Although we are discussing the effects of HIV in the UK, we cannot do so in isolation; we need to discuss many global issues as well, and I am sure that we will have an opportunity to do so. Today, however, I want to address issues relating to the UK and particularly to my constituency.

Ealing primary care trust has the seventh highest prevalence of HIV in a country that has more people living with the disease than ever before. Rates of new infections in the UK remain high, and, as my hon. Friend said, the number of over-50s infected with HIV trebled between 2000 and 2009. It is obvious that a new policy has to be developed to deal with these pressing new issues.

One of the most important factors in this complex issue, which we must acknowledge straight away, is diagnosis. Roughly one in four people with HIV in Ealing do not even know that they have it. That is roughly the same ratio as at the national level. When HIV is discovered early, people can be treated and go on to live normal lives with near-normal life expectancies. On the other hand, late diagnosis leads to more AIDS-related illnesses, increased pressure on the NHS and a higher rate of onwards transmission. We have too high a rate of diagnoses being made at a point when treatment should already have started. As hon. Members have said, in 2009, 52% of people diagnosed with HIV were diagnosed too late, and 73% of those who died were diagnosed too late as well.

What can we do to ensure early diagnosis for all cases of HIV? The Health Protection Agency believes that all new members of GP surgeries in PCTs with high prevalence rates, including Ealing, should be offered an HIV test. We need to go further, and provide incentives to GPs and other health care workers to encourage HIV testing. We also need to improve antenatal testing. We already have good provision for HIV testing of unborn babies. Even though one in 450 women who give birth is HIV-positive, only 30 babies born last year had the virus. However, we could go further.

I want to comment briefly on the growing link between HIV cases and mental health. Obviously, meeting the mental health needs of a population is important in itself, but concentrating on people with HIV can have a particularly beneficial effect, both clinically and in cost-effectiveness. People with depression have a more adverse reaction to their HIV treatment in general. It is cheaper for the NHS to invest in 10 sessions with a clinical psychologist than to pay for costly treatments further down the line because someone did not take the initial treatment properly.

Those sufferers receiving the right psychological support are less likely to miss their medication, more likely to react positively to treatment, and less likely to pass on the disease by engaging in unsafe sex; such aspects of the matter can cost more in the long run if the right support is not established immediately on diagnosis. It is therefore important for the Department of Health to integrate HIV sufferers into long-term mental health strategies.

Although I am pleased that drugs for HIV sufferers will be ring-fenced in the health budget, social care and protection for HIV sufferers, which is often provided through local authorities, will not be. Social services are hugely important for people with HIV, and a squeeze on their budget is likely to have a detrimental effect on the mental health status of many HIV sufferers and cost much more in the long term. I am aware that through the CSR an announcement was made of an increased allocation to social care for people with HIV.

I now want the Department of Health to inform local authorities of their likely budgets as soon as possible, so that councillors can start to plan a thorough care plan for people living with HIV. Only through that long-term planning for mental health cases, more social care and a greater push for early diagnosis can we really start to tackle the problem of HIV in this country, and ensure that nothing stops people with HIV living normal lives.

15:23

[Pauline Latham (Mid Derbyshire) (Con)]

I am delighted to be speaking under your chairmanship, Mr Leigh, and I congratulate the hon. Member for Inverclyde (David Cairns) on obtaining this timely debate on world AIDS day. What is good about the debate is the unanimity between the parties. We often have heated debates, but we all appreciate the importance of today’s debate for people suffering from HIV/AIDS.

Now that the recent tough economic choices have been laid on the table, we are able to take an opportunity to review what is and is not working in the UK and try to make improvements. HIV/AIDS is a serious virus that poses a risk not only for those who are already suffering from it but also those around them. The ease of transmission of the disease means that, if we do not bring the number who have it back down from 83,000 or so, we run the possibility of letting the virus dictate our actions, instead of taking pre-emptive measures. Unfortunately, as a member of the Select Committee on International Development, I have seen at first hand that once the virus gets into sections of society where it becomes more prevalent, it can, left unchecked, destroy countless lives and families.

Britain is a world-leader in international development, and central in the international community’s voice and actions against HIV/AIDS worldwide. However, to be a credible voice and to make an inroad into the virus worldwide we need a credible tactic of beating the virus at home. Funding has been flatlining in recent years and we risk, if we are not careful, losing more than two decades of progress that has been made in fighting the epidemic.

The White Paper offers more flexibility to the health service, by offering GPs more control over the budgets that they inherit and how they spend the money allocated to them. Perhaps outlining the financial rewards of early screening will help to strengthen the argument. The Health Protection Agency recently estimated that the prevention of one new HIV infection saves the public purse between £280,000 and £360,000 in direct lifetime health care costs. That is a staggering amount per new diagnosed case. In 2008, had all of the UK’s 3,550 acquired infections been prevented it would have saved approximately £1.1 billion in direct health care costs.

Alternatively, we can look at the money that could be made, not saved, by early diagnosis. People living with HIV who have an early diagnosis can contribute wealth to the nation by staying in work for longer and therefore paying more in taxes; they are able to manage their health better, which results in their taking fewer days off sick. They can plan for their financial future so as not to require incapacity benefit in such large numbers, and by having quick access to antiretroviral drugs they can ensure that they do not require full-time carers, who are often family members, for so long. Their family can therefore go out and work and contribute to the national purse.

Of course, financial reward is not the only benefit of diagnosing HIV early. The significant social benefits to early diagnosis are equally if not more important. For instance, a 35-year-old male diagnosed early with HIV, and with quick access to antiretroviral therapy, would now be expected to live to 72—only a few years less than someone who would be deemed a perfectly healthy man.

Early diagnosis enables people who are HIV-positive to take positive steps in protecting others through safe sex. A recent study of newly diagnosed HIV-positive men who have sex with men reported that 76% had eliminated the risk of onward transmission three months after diagnosis. If the test comes back negative, of course, it allows the recipient a wake-up call and a chance to change their habits and think about the risks that they have been taking. In that way they are more than likely to help to prevent a future case of HIV in the UK.

Early diagnosis also allows the correct antiretroviral drugs to be prescribed. That in turn reduces the viral load and subsequently reduces the chances of transmitting HIV. By giving people the opportunity to take quick and effective measures against the virus we are putting them back in charge of their lives; they are not having their lives dictated by HIV. I should like the Minister to take note that women, and indeed men, who have been raped should automatically be monitored to ensure that if they suffer from HIV/AIDS it will be diagnosed extremely early; that is not something that they have chosen.

The truth of the matter is that the male gay community and the black African community are most susceptible to HIV infection owing to cultural sexual practice. There is a role for civil society in bringing UK levels of HIV down by bringing early diagnosis to those groups and deconstructing the stigma attached to screening for the virus. Everyone gets scared, intimidated and embarrassed from time to time and those natural feelings might be a barrier, preventing people in those at-risk communities from seeking early diagnosis.

Coming out of the financial turmoil of the past few years, it is important that we should take every opportunity that is given to us to make positive changes to the previous norm. We have the opportunity to put early screening at the heart of the public health White Paper and to create a social practice in which the stigma of screening is broken down through the participation of civil society. However, I believe that there is only one mention of HIV/AIDS in the White Paper. I simply ask that we do not let the opportunity slip away. Positive changes to the current HIV strategy can and should be made: most importantly, they need to be made.

15:29

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

I am pleased to have the opportunity to speak in this important debate on world AIDS day, and I congratulate my hon. Friend the Member for Inverclyde (David Cairns) on securing the debate.

Let us remember that some people who are suffering from HIV/AIDS, or suspect that they are, will have supportive partners, be in supportive communities and face the future with some positivity. Many, however, will be very frightened and very alone. It is a good thing that we in this Chamber can openly debate this issue and its ramifications, because it will reassure not just communities, activists and lobbyists but individuals who may read and see the debate this afternoon.

We must remember that we have moved some way since the early frightening adverts in the 1980s. No one who saw those adverts, with the tombstones collapsing and the voice of doom, has ever forgotten them. We should congratulate Norman Fowler on taking up the cause and using the power of his Department to put it in front of the public.

When we look at some of the indices around HIV/AIDS, we see that there has been an increase in HIV testing among gay men. Testing rose from 58% in 1997 to 72% in 2008. We have seen a plateau in new diagnoses among gay men, and we now see a consistently high rate of condom use among them—at least nine out of 10 now use condoms. The fact that we have seen such progress is partly a tribute to the people who took up the issue all those years ago. It is also a continuing tribute to the communities, activists and health providers who provide both care and commitment, and we need to acknowledge that today in this debate.

However, there is still some way to go. How we go forward on HIV/AIDS will be a test of the reorganisation of both the NHS and public health that has been announced in recent months. In principle, I do not think that anyone in this Chamber is opposed to the reorganisation, but it is just this sort of issue, which is not consistent across the country, that is not necessarily well represented in GPs’ lists and has different levels of information across the country; there may not be as much information in rural areas as there is in Brighton and London. That will be a test of the reorganisation’s effectiveness.

We know that AIDS can affect anyone, and that apart from the gay community the largest community affected by HIV/AIDS is that made up of black African men and women; currently, 38% of new HIV diagnosis is among that group. The stigma attached to HIV in that community cannot be overstated, and it very much hampers efforts to reach out to people and achieve early diagnosis.

The problem among black African men and women—and among other groups, as well—is that they present late and are therefore diagnosed late. That not only gives them a poor prognosis; it means that the cost of treatment is much more expensive than it need be. That is true of any individual or any group that presents late.

Another issue with black African men is that, even though they may be having sex with men, they refuse to consider themselves as gay. They think that HIV is something for the gay community and not for them, so they end up presenting very late indeed. They are more likely to be undiagnosed and to live in areas in which a relatively high proportion of the population are not on their GP’s list, so they are not really interacting with the authorities.

I should like to use this debate to stress the importance of educational and informative work generally and with the black and African community in particular. We must do more with the Churches, because that is probably the most effective way to reach those groups. Any Sunday morning, there will more people in African-led churches in Hackney than at any political party meetings for 12 months of the year.

We need to normalise testing and offer it in a much wider range of settings—not just for black and African men and women, but for the population as a whole. I was routinely tested when I had my son 19 years ago and thought nothing of it. We need to make testing more routine so that people do not think, “If I go for this test, it will badge me as someone at risk.” Universal testing may well be a step too far, but we need to make testing available in a wider range of contexts.

My hon. Friend the Member for Inverclyde said that he did not want to talk about international issues, but given that 38% of new HIV diagnosis is among black African men and women, I do not apologise for raising the issue of funds for the Global Fund to fight AIDS, Tuberculosis and Malaria. I know that that is not a matter for the Minister and I do not expect her to respond on the specific point. None the less, will she pass on to her colleagues the very concerning fact that the global fund is £13 billion short of what it needs? If the UK was to raise its pledged amount in line with France and other western European countries, the fund would be able to go to private sector donors such as the Gates Foundation and reach the amount of money it needs.

In that context, I should like to mention—again, I do not expect the Minister to respond on this point—that in the next few weeks we will have EU trade talks with India in Brussels. There is a great concern that as a consequence of the trade talks, India might not be able to produce the cheap generic drugs that have played such a huge role in the fight against AIDS in Africa. That would be a blow not so much for Indian industry, but for the millions of people in Africa who have benefited from access to cheap generic drugs.

HIV/AIDS is no longer a death sentence, which is good news. Thanks to new drugs, research and greater understanding, people are now living with HIV. As one of my hon. Friends said earlier, we have 65,390 people in the community living with HIV. In fact, it is increasing faster among the over-50s than among any other group, which raises new issues that were not considered in the era of the adverts with the crashing tombstones and the voice from above.

My hon. Friend the Member for Ealing, Southall (Mr Sharma) mentioned the issue of depression and how that interconnects with sufferers of HIV/AIDS and the support that they need in relation to that. There are ongoing concerns about care and support that were not an issue 20 years ago. If we are to offer sufferers from HIV/AIDS equity of health care and, as far as possible, a good quality of life, we must consider care and support, within the new health service and local authority structures, as we have not in the past.

As I said at the start of my remarks, the reorganisation of the commissioning of health care and of the public health service will be tested by this issue. Many ordinary people on the ground will judge the reorganisation by how issues such as this are dealt with. I stress, as my hon. Friends have stressed, the importance of a national strategy. We need to consider how it can go forward under the new arrangements. Will the Minister tell us who will be responsible for commissioning and funding the information work that is needed now more than ever—in particular, the specific education work that goes into the communities that I have mentioned? Who will be responsible for commissioning preventive work, care, treatment and support? I will listen with interest to the Minister’s responses to those questions.

I welcome the new public health arrangements in principle. Public health has been a core activity of local government since the 19th century and so, as a former local councillor, I am glad that public health has “come home” to local authorities. However, because I know local authorities and how they work, I want to be convinced that it is possible effectively to ring-fence the public health funds that they will receive.

I imagine that what some local authorities will do—or will be tempted to do, conceiving themselves to be under financial pressure—is to rebadge existing work in the areas of social care and environmental health as public health expenditure, and the new funds that all of us in Westminster Hall imagine are there for public health will melt away in the current climate. So this will be a test, as much as anything else, of how far it is possible effectively to ring-fence public health funds once they fall to local authorities.

Then there is GP commissioning, and the issue of HIV/AIDS will be a test of that system. The important thing with GP commissioning is that GPs should commission for their community and not for their list. As an east end Member of Parliament, I know that there are many public health issues that manifest themselves more extensively among people who are not actually on GPs’ lists, for a whole number of reasons. Tuberculosis is a case in point. A disproportionately high number of people who suffer from TB are not on a GP’s list, for a number of reasons. HIV will be a test of the extent to which GP commissioning consortiums will commission for the community as a whole and not just for the people who are on GPs’ lists and present themselves for treatment.

It will be important to know what will happen to some of the survey work that is carried out by organisations such as the London Health Observatory; I had a meeting with representatives of that organisation this morning. That survey work is the only way of seeing what the trends are in issues such as HIV. It is easy for us to say this afternoon that 43% of HIV/AIDS sufferers are in London, many more are in Brighton and so on. However, we live in a globalised environment and there are trends and changes. Only survey work—not only national survey work, but sometimes precise survey work—can track what is really happening with HIV/AIDS.

[Jim Shannon (Strangford) (DUP)]

I understand that some of the figures that have been released in the past year for those who have just been diagnosed with HIV show that it is not just a young person’s disease any more; it also affects those who are 50-plus or 55-plus. I wonder whether the hon. Lady is aware of that. If she is, what does she feel should be done to address that issue of those in an older age bracket who are now succumbing to the disease?

[Ms Abbott]

That is an important point, and it is one that I touched on earlier. It shows that anyone can find themselves—

15:42

Sitting suspended for a Division in the House.

15:51

On resuming—

[Ms Abbott]

In conclusion, I congratulate all those who have campaigned, worked and raised consciousness on this issue over 20-odd years. Improvements have been made, partly through the efforts of communities and campaigners and partly through the commitment of people in the House, but we face new challenges due to the reorganisation of the NHS and the fact that a generation of people are now living with AIDS.

I look to the Minister to answer some of the questions asked in this debate, particularly about how the reorganisation will affect the treatment of HIV/AIDS, and to reassure us that the information needed in a range of communities will be publicised. I will listen with interest to her response.

15:52

[The Parliamentary Under-Secretary of State for Health (Anne Milton)]

It is a pleasure to serve under your chairmanship, Mr Leigh; I do not believe that I have been in this position before. I am grateful to the hon. Member for Inverclyde (David Cairns) for securing this debate. I congratulate him on his chairmanship of the all-party parliamentary group on HIV and AIDS, and I congratulate the group itself on continuing to raise awareness in Parliament, in the UK and internationally.

Today, as we all know, is world AIDS day, so this debate is timely; I believe that Mr Speaker has some influence over when debates occur. It is an opportunity to reflect on what we have achieved, where we stand and the challenges ahead, many of which have been mentioned. I thank my hon. Friend the Member for Pudsey (Stuart Andrew) for his gracious comment that this is a chance for us to pay tribute to those whom we have lost along the way to the present improvements in life expectancy for those with HIV/AIDS. A dear friend, Eric, with whom I worked in the 1980s, died from AIDS; I am sure that many of us know people who lost their lives. It is so tragic when we consider the advances made.

The hon. Member for Inverclyde focused on the situation in the UK. The hon. Member for Hackney North and Stoke Newington (Ms Abbott) mentioned the global situation. It is important to note that the number of new infections decreased by 19% between 2009 and 2001. Today, more than 5 million people have access to life-saving antiretrovirals. That is more than a thirteenfold increase in five years, but significant challenges remain. More than 33 million people are living with HIV, 2.1 million children are infected and the World Health Organisation estimates that at least 10 million people still need treatment. There is a great deal more to be done, and no room for complacency.

I would like to mention my noble Friend Lord Fowler, and welcome the announcement of next year’s inquiry into HIV and AIDS. Like the hon. Member for Inverclyde, I am old enough to remember when the disease came on the scene. A great friend of mine, a professor of virology who went over to the States, came back and said that it was extraordinary to see an acquired deficiency, as the disease’s name suggests. He talked about a curious illness that people were getting.

At that time, a tremendous amount of work was being done by many people, not least my noble Friend, to fight HIV/AIDS. It is still a powerful model for public health campaigns; we cannot forget those tombstones. Such images enabled a lot of the preventive work from which we still benefit. I reassure the hon. Member for Inverclyde that mass communication had an effect. The rate of sexually transmitted diseases decreased across the board. However, he also mentioned targeted messages, which is where we need to focus our efforts.

Although prevalence is relatively low in the UK population as a whole, some groups are disproportionately affected, including men who have sex with men, and black African communities. In 2009, they accounted for 42% and 36% respectively of the 65,000 individuals living with diagnosed HIV infection. However, as my hon. Friend the Member for Hove (Mike Weatherley) rightly pointed out, stereotypes are dangerous, and the figures that I have quoted must be used with caution.

15:56

Sitting suspended for a Division in the House.

16:04

On resuming—

[Anne Milton]

My hon. Friend the Member for Hove also mentioned the specific problems with late diagnosis, which I shall return to. The outlook for most people with HIV in the UK is more positive than it used to be, and the vast majority can now plan for their future with a great deal more certainty, which is to be welcomed. We must not forget that we have the dedicated work of many scientists around the world to thank for that, along with action from Governments from both sides of the House.

However, challenges remain. As Members have pointed out, despite our successes, a quarter of people with HIV do not know that they are infected and so are unable to benefit from the treatment available, and they can unwittingly infect others. Around half of the newly diagnosed infections are diagnosed late, after the point at which people should have started treatment. The hon. Member for Ealing, Southall (Mr Sharma) raised that as an ongoing and growing problem, along with the fact that many of the people affected have serious mental health problems. The mental health and well-being of people with HIV and AIDS is seldom mentioned, but it is extremely important to recognise.

I share the concerns raised in the debate about the need to reduce the number of people with HIV who are undiagnosed or diagnosed late. We need to increase testing, especially in those areas that have a higher prevalence of HIV. We have seen a good uptake of HIV testing in sexual health clinics and antenatal settings, but all health care professionals need to be alert to the importance of offering appropriate HIV tests.

[Ms Abbott]

Does the Minister have any practical proposals for increasing testing, such as different contexts in which it can occur?

[Anne Milton]

I thank the hon. Lady for raising that point, which is important. I will return to it later in my remarks. The hon. Member for Cardiff Central (Jenny Willott) mentioned the automatic testing when she had her baby. The Department of Health has funded eight pilot projects, which have now been completed, that looked at the feasibility and, importantly, acceptability of providing an HIV test as part of routine services offered to newly registered adults. I am encouraged by the findings from those projects, which confirm that offering HIV tests in GP practices, hospitals and community settings is acceptable to patients.

The pilots picked up a significant number of previously undiagnosed people in high prevalence areas. It is good news that people are happy to be tested, because it means that we can pick up cases of HIV that would otherwise be missed. We are working on the best approaches to expand HIV testing in a variety of settings and, as the hon. Member for Hackney North and Stoke Newington said, that is really important. If a wide variety of settings was available, a GP practice is not necessarily where people would go for a test—far from it, I would say.

I am also pleased to note that, thanks to the leadership and drive of local HIV clinicians and others, findings from the pilots in Brighton, Lewisham and Leicester have now been embedded in local practice, which is to be congratulated. The Health Protection Agency will publish its final report on the pilots early next year, which many people will look forward to seeing. We need to see what we can do to put into practice what we have learnt. It is vital to increase testing for HIV, as it is for a number of sexually transmitted diseases, so we continue to fund targeted programmes for the groups most at risk from HIV in the UK. We have also funded the Medical Foundation for AIDS and Sexual Health to provide training resources for health care professionals in secondary care.

I would like to thank the hon. Member for Dudley North (Ian Austin), who kindly sent me a note to explain that he has had to leave the debate, for raising the work of Summit House Support. We will be looking at the findings of the pilots I have mentioned, and I would certainly not like to miss an opportunity to go to Dudley, should the opportunity arise, to have a look at what Summit House Support is doing.

For HIV, as for all STIs, prevention remains the most important response. In the UK, the majority of HIV infections are sexually transmitted, and the vast majority of those could have been prevented; that is a message that we really must hang on to.

16:09

Sitting suspended for a Division in the House.

16:15

On resuming—

[Anne Milton]

We need to ensure that safer sex messages are clearly communicated and understood by all.

I think that we also have to clamp down a bit on irresponsible marketing. I have been approached by those who are unhappy about the promotion of DVDs and other material promoting “bareback” sex. We need to address such issues and I know that a lot of people and organisations, such as the Terrence Higgins Trust, are doing all they can to stop the promotion of such material. To those who are most at risk of HIV in the UK, I say that the Government work very closely in partnership with the Terrence Higgins Trust, the African Health Network and a huge number of other voluntary and community groups.

Yesterday, we published a White Paper on public health and later this month we will publish a number of supporting documents, including a public health outcomes framework. We will be thinking about what the best outcomes might be for HIV and they will be included in that document. I know that Members will look at that document with care and feed back to us their feelings on it. In the spring, we will publish a position paper on sexual health which will, of course, include HIV. That paper will take into account many of the issues that have emerged this afternoon.

[David Cairns]

I will let the Minister catch her breath and I appreciate that we are really up against the clock. She says that there will be a position paper in the spring. Does she envisage that that will lead to a full new HIV strategy, or will it just remain a position paper?

[Anne Milton]

No, it will be a sexual health strategy. The Government and the NHS need to play their part, and we need to support individuals to make responsible lifestyle choices. We continue to provide the very best HIV treatment services, but others have a role to play and they are often better placed than the Government to make a difference. The hon. Member for Hackney North and Stoke Newington mentioned the role of churches in that regard and they can have a significant impact.

Voluntary community groups, industry, responsible media, churches and faith groups all have a part to play. That collaboration is so important in tackling stigma and discrimination, which is still a very real issue for many people affected by HIV. That is particularly important within those communities who find sexual health issues more challenging than other communities.

Stigma means that people refuse tests, do not take precautions and do not go for treatment. I was delighted to see that the Prime Minister highlighted the issue of stigma in his world AIDS day podcast. Tackling HIV is everyone’s business and we can all make a difference to reduce stigma, reduce new infections and enable people living with HIV to lead full and productive lives.

The hon. Member for Inverclyde raised issues about global funds. I am sure that he will also raise those issues with my colleagues in the Department for International Development. However, as my ministerial brief also covers EU health, it may be of note for him to realise that such issues are recognised by many people within Europe and across the world, and we continue to work both nationally—within our own member states—and internationally, because collectively we can do a great deal to help each other.

The hon. Gentleman also said that generally a one-size-fits-all approach does not work and, as my hon. Friend the Member for Hove said, anonymous testing and treatment is often crucial. We will announce our commissioning intentions soon. However, the hon. Gentleman’s point is well made.

I think that it was the hon. Member for Dumfries and Galloway (Mr Brown) who mentioned the issue of commissioning services in rural areas, which poses particular challenges and very real problems. It is absolutely crucial that we get that commissioning right. We will announce our intentions soon and I hope that they will address some of the points that he raised.

We need to talk about sex. We need to talk about people’s sexual health. We need to talk about people’s responsibilities in looking after their sexual health, and we all have something to offer and we all have something that we can do personally, particularly those of us who are Members of Parliament. As MPs, we have unprecedented access to media, particularly in our local areas. We need to do everything that we can to express the fact that this is everybody’s business and that people need to take responsibility for their sexual health. Their sexual health not only affects them; it affects the others around them and their families too. Only then will we be able to see a future for people living with HIV/AIDS that we all want to see.

Metal Theft

Wednesday 1st December 2010 Westminster Hall

16:20

[Mr Tom Watson (West Bromwich East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Leigh. You remain the fastest voter I have ever seen, so if there is another Division I will attempt to keep up with you.

I am here to talk about

“the second biggest threat to our infrastructure after terrorism”.

Those are the words that Paul Crowther, of the British Transport police, used to describe the growing problem of metal theft in the UK. It is my contention that, if al-Qaeda or militant student demonstrators perpetrated some of the attacks to critical UK infrastructure on the scale and frequency that we are currently seeing, the Home Office would be taking this matter far more seriously than it currently appears to be taking it.

16:21

Sitting suspended for a Division in the House.

16:28

On resuming—

[Mr Watson]

Whether it is copper from the side of a railway line, broadband cable, a drain gully or lead flashing from a school roof, not a day goes by when metal theft does not feature in the daily crime roster for police in the UK’s towns and cities. I seek to make the case to the Minister that metal theft is a national problem needing urgent attention. It is eroding our critical infrastructure and therefore the economic capacity of the nation. After outlining the issues, I will make the case for the need to collect more accurate data on metal theft incidents, for amending the Scrap Metal Dealers Act 1964 and for protecting uniformed British Transport police. I will also make the case for new regulations to deal with the rise of unscrupulous dealers in precious metals.

The Minister has gained a reputation for being hard-working and fair-minded. I hope to convince him to focus in the coming months on the increasing problem of metal theft. Many businesses and police officers to whom I have spoken are frustrated with the progress made in the past, including—dare I say?—under my own Government. Six months into the coalition Government, I hope that he has found his feet and will be able to move up a gear in that policy area.

The Home Office line appears to be that the police have the necessary tools and powers to tackle metal theft: I will make the case that they do not. The problem is great for two important reasons: soaring commodity prices and the ineffectiveness of the Scrap Metal Dealers Act 1964. In the past two years, for example, the price of refined copper has more than doubled on international markets. Part of the problem faced by the Minister is that his Department has found it difficult to understand the scale of the problem because it has not collected the appropriate data.

Using the Freedom of Information Act, I have undertaken a comprehensive assessment into the effects of metal theft in local authorities up and down the country in 2007, 2008 and 2009. It is not an exact picture, but it provides a more comprehensive view of the scale of misery caused by metal theft throughout the country. The results are shocking, but since a number of authorities have not responded to my FOI request, I fear that my newly compiled figures are just the tip of the iceberg.

We found 1,873 reported instances of schools being targeted by metal thieves, predominantly for the lead from their roofs. We know that 185 leisure centres and 156 community centres have been targeted, as have—shockingly—71 cemeteries and crematoriums. Thirty-three local authorities told me that metal theft has cost them more than £100,000 in insurance claims and repair costs. My borough of Sandwell has suffered the highest losses of any authority—more than £720,000. It is closely followed by Leicester, which lost £530,000, and Greenwich, which lost more than £470,000.

Last October alone, Sandwell council lost £20,000. Such thefts have cost Sandwell, and councils in Birmingham, Wolverhampton and Walsall, nearly £1.6 million over the past three years. The scale is huge and it is getting bigger. It is not taking place just in the country’s metal-bashing heartlands: the London boroughs of Greenwich, Sutton, Bexley, Bromley, Barking, Dagenham, Enfield, Havering and Redbridge estimate that between them, they have lost £1.9 million as a result of metal theft.

Anything can go. Three stainless steel slides were stolen from Birmingham, and the city also lost £30,000- worth of goal posts. Durham council raised 97 repair orders for its schools, and admitted that that may not even begin to dig into the problem. Sheffield lost a swimming pool roof that cost £200,000, and Thurrock council lost the eternal flame from the East Tilbury war memorial. The cost of replacement was so great that a fibreglass replica had to be made.

More worryingly, I have uncovered an increasing problem of thieves targeting our key infrastructure networks. The most recent police estimate of the cost of such thefts to communication, energy, transport and water industries is £770 million per annum. This year alone has seen more than 5,000 reported thefts from the railway, gas and electricity networks. Such thefts have resulted not only in the loss of services to vulnerable customers, but have included attacks on 999 services and communication services that are provided to the various police forces and military establishments.

In the past six months, BT has seen more than 900 attacks on its network, which has affected more than 100,000 customers. It has lost more than £5 million in the past year, and on current trends, it looks as if it will lose £6 million in the current financial year. In one attack in Scotland last week, 32 tonnes of copper cable were stolen in a single night. Energy company E.ON faces similar problems. Last year, substation theft cost the company £1.3 million, and by the end of May it had already seen 175 reported incidents. The figures speak for themselves. It is not just the monetary cost that is worrying, but the danger in which the thieves are putting both themselves and the engineers who work for companies such as BT and E.ON, through their illegal activities.

Today, Gwent police superintendent Harry Gamlin, head of the taskforce that deals with metal theft in Wales, said that the problem is now so bad that it threatens to “fracture social cohesion.” He added:

“There is a common perception of metal thieves being loveable rogues, old-man-Steptoe-type characters...People need to wake up to the fact that they are in fact highly organised and skilled gangs of criminals who more than likely have links to other forms of serious and organised crime.”

The taskforce in Wales is a welcome step, but tougher laws are needed.

It is not just the seasonal “wrong type of snow” and leaves on the track that are holding up our train network: commuters now have to contend with the regular misery of year-round signalling thefts. Network Rail tells me that commuters and operators have lost 19,417 hours in delays since 2006-07. Overall, it estimates that it has spent £35 million since then on metal theft-related crime. That includes £25 million of schedule 8 costs. That is £25 million that could have been spent on improving the railway network that has been diverted to essential maintenance because of metal theft alone.

I travel to Westminster from Sandwell and Dudley station every week. Between September 2009 and this October there have been five serious incidents of cable theft in the Tipton area alone and I have been late for meetings and nearly missed votes. These incidents in Tipton caused £485,000 worth of damage to the rail network causing hundreds of hours of delays for commuters. I find these figures staggering. Across the whole of the west midlands in the last 18 months there have been 52 cable thefts on the railway causing 1,500 trains to be cancelled. I am told by Network Rail that the route between London and Scotland up the east coast is by the far the worst affected, especially in Yorkshire and the north-east. That route has recorded days on which up to 40 thefts have taken place. Commuters and British business are the people who are really losing out as metal theft soars.

I have unearthed other examples that are shocking in their scale and audacity. There are the thieves who cut a heavy copper cable used to link an MRI scanner to the main electricity supply in Northamptonshire. Thieves stole cable twice in a week meaning 70 patients had to have their diagnostic appointments rearranged. Lives could have been lost. I have been told of the sick thieves who stole two brass plaques listing the names of the Blackley men who fell during the first world war in Manchester. The community had to unite to make sure that the 215 war heroes could be honoured on Remembrance Sunday.

Just as sickening was Linda Smith’s story. Linda contacted me to tell me about the theft of metal containers for holding flowers from graves from Abney park in Stoke Newington. The Minister may not be aware that the Ecclesiastical Insurance Group, the leading church insurers, report that they have received more than 7,000 claims for metal theft since the start of 2007 at an estimated total cost of £23 million.

Councillor David Sheard of Kirklees council has been in touch. He told me about the £18,000 worth of litter bins that had been stolen from the council in a single week. The case of Tom Berge who escaped a jail sentence for stealing lead worth £100,000 from some of the most historic properties in Sutton in Croydon has also been brought to my attention. He used Google Earth to identify listed buildings, churches and schools that he could target. In Sandwell, two people have already lost their lives trying to steal cabling from a disused factory after an explosion.

Five-year-old Keanu Jones of Dudley road in Tipton could so nearly have been the third life lost last week. He fell down an exposed drain when out with his mum. The cover had been stolen. It left him shaken and covered in bruises. Keanu’s case is important. It highlights the fact that thieves do not just target high-value, precious and commodity metals. The resale value of what can be stolen can often be minimal. To quote Tony Glover, spokesman of the Energy Networks Association:

“It is pathetic, quite frankly. As a crime it is sometimes as little as £5, £10 or £20… But its impact is enormous—it’s almost like an act of vandalism. Some of our equipment is oil-insulated and a £5 brass valve—that’s all they stole— resulted in 30,000 litres of oil coming out of some equipment.”

Just to illustrate the point, this week I was visited by my constituent Ravi Kumar who told me that thieves had stolen his old, rusty metal table from his front garden. Ravi had put the table out for collection by Sandwell council. Thieves looking to make a quick cash return made off with the table before the council van arrived. There is a black market price list for this stuff—£10 for Ravi’s table, £20 for a stolen manhole cover, £80 for a catalytic converter. These items are being stolen because they are easy prey to thieves to sell on to rogue scrap metal dealers.

More worryingly, West Midlands police and the Black Country chamber of commerce continue to alert me to the rise in the number of burglary dwelling offences across the country in which the offenders are stealing the victim’s gold or silver jewellery. There is currently no legislation covering the buying and selling of gold and silver by independent retailers, which are becoming increasingly common in most towns and cities. Despite some franchises still following good practice, in which no transaction can take place without a series of identity checks, some of the rogues are beginning to make an impact on communities.

I would like to see two minor changes to the law to tackle the problems that I have outlined. One change would deal with commodity metals such as copper, lead and brass, and the second change would deal with precious metals such as gold and silver. The Scrap Metal Dealers Act 1964 needs to be made fit for the modern age. It is outdated; it is not well understood, and, in its current form, it simply fails in its purpose.

Many hon. Members may not be aware of the legislation to which I refer. As it stands, the Act requires dealers to keep a simple book detailing all scrap metal received at the place of purchase. The book must also show that all scrap metal is either processed at or dispatched from that place. That is inadequate.

In the Sandwell area, and across the country, I repeatedly hear stories of some unscrupulous scrap metal dealers opening as early as 5 am. Cash in hand is given to the seller, and it is not unusual for them to turn up with a wheelie bin full of manhole covers. The unscrupulous scrap metal dealer, who does not check too closely where the metal has come from or who the seller is, then sells it on to legitimate dealers, who have no idea that they are buying stolen metal. In some cases, the metal is exported to the far east due to global demand. Some dealers will let sellers get away with giving their name as Joe Bloggs or Mr Smith. Scrap metal is big business, and the record keeping among rogue dealers can be very poor or even non-existent. One police force has told me that records kept by metal merchants do not always provide them with a good enough audit trail to track back such thieves, and I know police forces across the country feel the same.

Although I appreciate that recent dialogue between the British Metals Recycling Association and ACPO has resulted in the development of a code of practice, which includes measures that go beyond those prescribed by the 1964 Act—including requesting proof of identity, limits on cash payments and guidance on best practice for deploying CCTV—I have real doubts that those go far enough. Unscrupulous metal dealers have already made it clear that they are unwilling to abide by good practice, and a voluntary code is extremely unlikely to change the mindsets of those people in the industry. My preferred option would be to make scrap metal dealers operate under a cashless system. If thieves cannot make a quick profit, the incentive to steal in the first place would be dramatically reduced. I draw the Minister’s attention to the state of Oregon, which did that in 2009. All the signs from Oregon suggest that the beefed-up regulations have caused a drop in the number of people looking to sell stolen materials. Many police forces are also seeking powers to close down suspected rogue dealers on the spot, and they want metal users to consider embossing their metal to make it less attractive to steal. I hope that the Minister will seek ways to make that happen.

It strikes me that there is a need for precious metals, such as gold and silver, to be brought within the scope of the 1964 Act. We cannot allow the situation to continue in which there is no legislation covering the buying and selling of such metals. The Black Country chamber of commerce tells me that it would like precious metal dealers to register their business with the local authority every three years; it would like to see registered dealers required to keep a written record at each precious metal store of all items received, processed and dispatched from that store; and it would like deeper proof of identity from those who sell precious metals. I support the Black Country chamber of commerce in its call, and I hope that the Minister will take its suggestions seriously.

Based on new figures that I have made public today, I believe that the Government should arrange for data on metal theft to be better collected and to be presented in a clearer format. The failures of local authorities and police forces to accurately chronicle every incident make contributions to public policy and finding solutions on this subject more difficult for Ministers and stakeholders. It is time for the courts to get tough. The Home Office should ask the Ministry of Justice to issue specific guidance on metal theft to magistrates, as the Ministry of Justice did with home repossessions.

Analysts tell me that they expect a 62% rise in copper prices over the next few years. Coupled with the Government’s announced cuts to policing budgets and the fact that the future budget of the British Transport police is in doubt, that could see a further rise in metal thefts. If the UK adopted a cashless approach to scrap metal sales, I am certain that thieves would be deterred. There would simply be no quick cash incentive for them to steal commodity metals and there would be a proper audit trail. I hope that the Minister will look seriously at the proposals of the Black Country chamber of commerce on precious metals. Metal thieves erode UK resilience. They undermine communities and threaten businesses. They have to be stopped.

[The Second Church Estates Commissioner (Tony Baldry)]

rose—

[Mr Edward Leigh (in the Chair)]

Order. This is a short Adjournment debate. Does the Second Church Estates Commissioner, the hon. Member for Banbury (Tony Baldry), have the permission of the Minister and the hon. Gentleman to speak?

[Mr Watson]

Yes.

16:45

[Tony Baldry]

I sought the permission of everyone, Mr Leigh, including Mr Speaker. The hon. Member for West Bromwich East (Mr Watson) has done the House an enormous service and what he has had to say is truly shocking. I am grateful to him and to the Minister for allowing me to intervene briefly in this debate. I do so in my capacity as the Second Church Estates Commissioner.

Lead theft is one of the most serious threats at present to the Church of England’s 1,600 churches, many of them grade I listed buildings. Indeed, 45% of all grade I listed buildings are churches, and other faiths have similar concerns. Night after night, lead is being stolen from church roofs, and thieves now use Google Earth to identify targets, including church roofs.

Since 2007, the main insurer of ecclesiastical churches has received 8,000 claims for lead theft, at a cost of about £23 million. That represents only the insurance claims; the total cost, including damage to churches, is much greater. In many instances, churches that have replaced their roofs at considerable expense have been repeatedly targeted—14 times, in the case of one church. Of course, if they have had the lead stripped from their roofs, it is often difficult, if not impossible, to get re-insured. As hon. Members can imagine, the effect on the morale of parishioners and communities is devastating.

In spite of that, there have been very few prosecutions. Congregations feel that the police regard metal theft as a victimless crime and that they are reluctant to investigate or take action, even when there is an established pattern of theft taking place on consecutive nights. I understand that the Home Office does not even record the theft of lead as a separate offence. Although some of the thefts may be opportunistic, there is growing evidence that organised gangs are involved, and the graph of the incidence of theft mirrors, with remarkable consistency, the price of lead on the world metal markets. The higher the price of lead, the more churches are stripped of it.

A number of things need to be done. Scrap metal yards need to be more regularly spot-checked by local authorities and the police. Local authorities have a responsibility to inspect the registers of scrap metal yards. The hon. Gentleman’s suggestion of a cashless transaction is interesting, and I hope that the Minister will take it seriously. This is a crime that has to be taken seriously. I am sure that Home Office Ministers take it seriously and that they will ensure that it is consistently taken seriously by police forces and local authorities throughout the country.

The Church of England’s Church Buildings Council, chaired by Anne Sloman, has set up a working group to address the problem urgently. It is taking evidence from police, scrap metal merchants, the legal profession and other interested parties. When it reports early next year, I hope that the Government will consider its conclusions carefully and endorse what it has to say as a way forward.

16:48

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

May I thank you, Mr Leigh, for ensuring that this debate started promptly despite all of this afternoon’s Divisions? May I also congratulate the hon. Member for West Bromwich East (Mr Watson) on securing this Adjournment debate about the important subject of preventing and tackling metal theft, and on the measured and detailed way in which he has rightly highlighted the issues? I am sure that the House will appreciate the information that the hon. Gentleman has advanced. I assure him that I regard the issue as serious. I take a personal interest in it because of my own experiences as a constituency MP. I know the impact that metal thefts can have.

May I also thank the Second Church Estates Commissioner, my hon. Friend the Member for Banbury (Tony Baldry), for his speech on churches and the challenges facing the Church community? I hope that I will be able to comment on that in the time remaining.

Metal theft is an issue about which I am concerned, and I give the assurance that the Government take it seriously. The need to reduce this crime is important, and I thank hon. Members for raising the issue. Let me be clear: we recognise the serious consequences of metal theft. It is not a victimless crime. We have seen the significant disruption that metal theft causes to critical national infrastructure throughout the United Kingdom. That includes power and transport networks, with the stealing of live copper cable, which has resulted in death and serious injury for people involved.

In addition, as hon. Members highlighted, a number of historic buildings, including churches, are being targeted for their lead roofs and damaged. Many other examples were given, but the time available means that I must try to deal with the relevant points that have been highlighted this afternoon.

I recognise that the constituency of the hon. Member for West Bromwich East has a specific issue. I was recently in Sandwell, talking to the community safety partnership and the police. They underlined to me the importance that they place on dealing with and responding to metal theft. I congratulate them on the work that they are doing in dealing with the problem.

The police, other law enforcement agencies and industry are making efforts to tackle metal theft, providing a strong foundation on which to build a future partnership approach. There are excellent examples of effective multi-agency partnerships that have come together in affected areas to tackle their local metal theft problem. I am keen to ensure that the practical impact of that work, which shows how much difference can be made by motivated and committed partnerships that take the problem seriously, is shared more widely. We need to build on it. Many scrap metal dealers are doing excellent work in supporting law enforcement activity and reporting suspicious behaviour. We need to support their efforts, while bearing down on those who operate outside the law.

At national level, the Association of Chief Police Officers metal theft working group, chaired by Deputy Chief Constable Paul Crowther, provides leadership to police forces and a forum in which industry and the police can share information and good practice, which is extremely valuable work. I welcome the recent distribution of the ACPO tactical guidance to police forces. That provides, in clear detail, examples of effective practice in tackling metal theft.

The nature of metal theft means that joint working is just as important at national level as at local level. That is why the recent work by the telecommunications and utilities industries, in working on joint enforcement operations with local police forces, is so important.

I particularly welcome the efforts of industry in designing out this crime. For example, BT has been working to improve the protection of metal assets through improved security at storage sites. There are other examples of industry partners reviewing and tightening up their planned disposal of waste metal through the use of approved contractors and scrap metal dealers.

On the Scrap Metal Dealers Act 1964, I am grateful to the hon. Gentleman for bringing to the House’s attention the issue regarding the effectiveness of the existing legislation. The Act contains a number of requirements relating to the regulation of the scrap metal dealer industry—namely, the requirement for each dealer to register with their local authority; the fact that all seller details are to be recorded; and the fact that metal cannot be accepted for sale from the under-16s. We have seen excellent examples in Avon and Somerset and elsewhere of how the existing legislation can be used.

I note and welcome the British Metals Recycling Association code of practice, which it has recently issued to its members and to which the hon. Gentleman referred. However, although we welcome such attempts at self-regulation, we are also seeking to join up the existing regulatory framework better by contributing to the Department for Environment, Food and Rural Affairs review of waste policies—due to report in the summer of next year—to see what changes, if any, need to be made to legislation in this area.

Environmental and waste regulations cover the operation of the scrap metal dealer industry, as well as the transportation and storage of waste materials. Those regulations are mostly enforced by the Environment Agency. Therefore, it is vital that the police and the Environment Agency continue to work together to ensure that all the existing legislation is used effectively.

The hon. Gentleman will no doubt appreciate that the lead on funding for the British Transport police is the Department for Transport, rather than the Home Office. I know that Westminster Hall debates are not the arena in which to make party political points about the economic situation, but I note what the hon. Gentleman said and I am sure that colleagues at the Department for Transport will note it when they refer to the report of the debate.

As the Minister responsible for crime prevention, I am determined to develop a joint plan of working with law enforcement agencies, Departments and industry to tackle metal theft at every stage, from theft to disposal. Because joint working is so important, I want the plan to be jointly owned by the Home Office and the Association of Chief Police Officers multi-agency metal theft working group. We also need to consider the intelligence arena. We are looking at how regional intelligence units can share intelligence effectively on the more serious organised thefts of metal. That is an important subject that needs further examination.

On the cashless model, I share the concern that criminals are able to turn up at scrap-metal yards and walk away with unlimited sums of cash in exchange for metal. We will examine that in developing our work plan in this arena, including establishing a cashless model. As part of a review of the industry standards, it requires further examination.

I believe that the Church Buildings Council is producing a report on metal theft, and I would welcome sight of the report once it is complete. I hope that we will be able to incorporate its recommendations, when appropriate, in our forthcoming work plan.

I apologise that my comments have been so brief, but I reiterate the importance that I place on this matter. We are committed to preventing and tackling metal theft. I am certain that we have a real opportunity to tackle this crime by working together in partnership with law enforcement agencies and the industry. By working together and having a joint working plan, I am sure that we will be able to tackle all aspects of metal theft and provide the catalyst for a concerted effort by all agencies to reduce this crime.

Health Care (North Yorkshire and York)

Wednesday 1st December 2010 Westminster Hall

16:56

[Julian Sturdy (York Outer) (Con)]

It is a pleasure, Mr Leigh, to serve under your chairmanship. Naturally, I am grateful to those hon. Members attending this debate and to the Minister.

More than 800,000 people are fortunate enough to live in our beautiful part of the country, the North Yorkshire and York region. It is part of God’s own county, as some would say. Quality of local health care is of the utmost importance to many, if not all. Local health care provision is often viewed alongside other criteria such as employment and crime. It is a measure of the local community’s economic well-being and happiness—a word that seems to be floating around in many debates at the moment.

It is in our moral and economic interests to ensure the widest availability of health services, the shortest waiting lists and the most impressive health outcomes, and they should be implemented in each and every region. Ensuring such health care standards for all is truly one of the most essential roles of Government. Indeed, I am sure that all those Members here today will agree that health-related concerns crop up frequently in our constituency mail. That is certainly so in my constituency of York Outer.

When it comes to health, I often have nothing but sympathy with the majority of my constituents who are affected. Many of them feel betrayed by the system, weighed down by the bureaucracy, frustrated by the delays and ultimately let down by those supposedly in charge. In my experience, it is easy to comprehend such frustration. After all, our national health service is a national treasure. We champion it, and rightly so. However, when patients report negative experiences and local health funding concerns, our national treasure is in danger of being tarnished, to the detriment of health care users and service deliverers. That, in my view, should not be allowed to happen.

The health service has some of the most caring, compassionate and hard-working nurses and doctors in the world. That is certainly true in North Yorkshire and York. Our health care personnel carry out tremendous work, often in tough circumstances, and they do so out of a sense of public duty, kindness and compassion. I cannot commend these individuals highly enough. However, I am concerned about health care provision in North Yorkshire and York because of the representations that I have received from NHS employees and local patients.

The region faces some real health care difficulties. In truth, extremely serious concerns are growing about the capability and performance of the region’s primary care trust and related bodies. Local residents have good reason to believe that a huge range of treatments will be withdrawn, if they have not been withdrawn already. For example, I have received letters regarding the future of IVF treatments, counselling services, broken voluntary sector contracts and the withdrawal of pain relief injections. It also appears that about £2 million will be cut from GPs’ budgets for prescribing medications, and that some physio services are at risk.

[Julian Smith (Skipton and Ripon) (Con)]

I congratulate my hon. Friend on securing this debate. He might be about to discuss this, but my experience from my constituency is that North Yorkshire and York PCT’s way of dealing with voluntary organisations in the past few months has been a disgrace, breaching the voluntary compact between those organisations and the PCT. It has caused problems for those important parts of the big society that have been operating in North Yorkshire for so long.

[Julian Sturdy]

Absolutely. I agree entirely with my hon. Friend. The time limit given by the PCT to those voluntary organisations is despicable, and it has caused fear and concern in the sector. Not only that, if the organisations lose funding for six months, which might be seen as only a short period, the problem is that they might not start up again. That is my concern, and I will go on to discuss it in more detail.

Local residents have good reasons to believe that a huge range of treatments will be withdrawn, as I said. If the truth be told, the status quo is not only unacceptable but frightening, particularly for the most vulnerable members of our communities. Even describing the current situation as a postcode lottery is too generous. I fear that our patch is in danger of becoming an area of health deprivation.

Several different factors require deep consideration as we piece together this somewhat depressing picture. First, we must accept that the region has to some extent been underfunded in the past. Before 2008, the North Yorkshire and York PCT did not exist. Instead, four separate PCTs covered the area. Nevertheless, for the purposes of this debate, I have amalgamated funding data to show the PCT’s current funding allocation and the annual figures stretching back to 2003-04. For 2010-11, our region’s PCT received just over £1.1 billion, an allocation that places it in the lowly position of 140th out of 152 PCTs. From a starting point of 127th in 2003-04, it has dropped down the funding table each year. The current funding level is the lowest allocation per head of all Yorkshire and Humber PCTs.

PCT funding is currently allocated according to a complex funding formula, often referred to as the weighted capitation formula. In essence, the formula determines the target share of resources to which PCTs should theoretically be entitled, based on a broad range of criteria including population, the local cost of health care provision and the level of need and health inequality in the area. Unfortunately, most PCTs never receive an allocation equal to their deemed target share according to the formula. Rather, they move towards it over time, some faster than others.

Personally, I am slightly critical of the current formula. It often results in greater funding disparities between different regions, which provoke a profound sense of unfairness. Less deprived areas often seem to get a certain tag as well. For example, according to the formula, North Yorkshire and York does not have adequate need for additional resources, particularly compared to the needs of more urban areas such as Hull. I am not convinced that approaching regional health funding consideration with that mentality—judging whether areas are deprived enough—is a sufficiently robust methodology in current circumstances. We must look more deeply at the funding stream.

I agree that the funding shortfall has increased the strain on our local PCT and its ability to deliver the best possible health outcomes and equity access for local residents. I would appreciate the Minister’s comments on whether the coalition Government will review the funding formula at some future date. However, I also suggest that excusing our health care failings in our region on past funding alone would be somewhat naive. Over the past few years, North Yorkshire and York PCT has accumulated an overspend of some £17.9 million. Thus, despite the coalition’s welcome commitment to protect the wider health budget, services are being cut in our region to pay for the fiscal irresponsibility of the PCT. Moreover, the PCT seems to be intent on resolving this deficit immediately because the previous Government imposed a statutory obligation on all primary care trusts to break even by the beginning of 2011. Such a target-focused piece of bureaucracy has now resulted in the PCT cutting too many services too quickly, possibly leading to a diminished health care package for our local residents.

I have already listed some of the services that are under threat of withdrawal. My hon. Friend the Member for Skipton and Ripon (Julian Smith) has named the services in the voluntary sector as well. I shall expand on a few examples. First, there is the withdrawal of the pain relief injections. As Members from neighbouring constituencies know—my hon. Friend the Member for Selby and Ainsty (Nigel Adams) has campaigned with me on this—the PCT’s decision to restrict the provision of back pain relief injections has provoked a huge reaction from both patients and health care professionals alike.

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

I, too, congratulate my hon. Friend on securing this debate. I am not sure whether I should declare an interest, having received several back pain relief injections in the past. The injections are a big issue in the north Yorkshire area, as evidenced by the huge postbags that my hon. Friend and I receive, and we have spoken to the Secretary of State on the matter. Can my hon. Friend recall a discussion with the Secretary of State in which he said that one of his officials would look into the York PCT’s interpretation of the NICE guidelines on back pain relief injections? Has he received any notification of those discussions or heard from the Secretary of State’s office?

[Julian Sturdy]

My hon. Friend makes a valid point. We did indeed meet, and I have not yet received a response from the Secretary of State. I hope that the Minister will hear our message here and chase up that response, because it is important that we get an answer to our question.

My hon. Friend mentioned the back pain relief injections, and the issue is causing real concern among our constituents. Members of the public came to my last surgery to discuss the matter. The PCT, as my hon. Friend said, based its decision to cut back pain injections on its interpretation of the NICE guidelines. Unfortunately, almost every other PCT interprets the same guidelines in a different way. As such, countless local people are being forced to suffer enormous and unnecessary pain.

Alongside other hon. Members from the region, I have lobbied the Secretary of State. Campaign groups such as York and District Pain Management Support Group have been leading the way on this as well. I have also received representations from concerned health professionals. Only last week, Dr Peter Toomey, a consultant anaesthetist at York hospital wrote to me, stating:

“I consider that the PCT have made serious errors of judgement in coming to their decision to restrict access to spinal injections for the relief of pain. The PCT will not reimburse York Hospital for any injection into any part of the spine for any diagnosis unless it has been approved by the PCT’s Funding Request Panel.”

We know—my hon. Friend the Member for Selby and Ainsty will back me up on this—that many people are being refused by that request panel. Dr Toomey and a number of his colleagues have fought hard to challenge the PCT’s policy, but—alas—their medical expertise seems to have fallen upon deaf ears.

Patients and medical professionals are united in the view that this pain relief service should not have been withdrawn. It has been taken away for the wrong reasons and should be reinstated without delay. The withdrawal of such vital services is causing me great concern, as is the withdrawal of funding for numerous voluntary services. My hon. Friend the Member for Skipton and Ripon touched on that matter earlier. The York Council for Voluntary Service has been informed of a 37% in-year cut, which has been issued by the PCT with just one month’s notice. Angela Harrison, the chief executive of the YCVS, summed up the whole situation quite aptly when she said:

“These cuts have already had a disastrous effect on front-line voluntary groups who serve some of the most vulnerable members of society. At the same time, the infrastructure groups who support them have had their funds withdrawn at very short notice, reducing their capacity at a time when it is most needed.”

One specific voluntary case vividly highlights the poor management of the way the PCT has handled this situation. On 19 October, Yorkshire MESMAC received a letter from the PCT, informing the organisation that its contracted health care funding was to be withdrawn within one month. Such blunt and definitive notice is absolutely outrageous. Not only has an agreement been broken, but no consultation took place with the organisation, which—knowing the PCT’s overspend—would have been happy to sit down and reach a more amicable agreement. As Tom Doyle, the director of Yorkshire MESMAC, said:

“I want to express my deep frustration at how the process has been handled, which was, in my opinion, unlawful, disrespectful and showing an arrogant disregard for the PCT’s own agreements and processes.”

It is now feared that Yorkshire MESMAC will be forced to close.

On a wider note, the voluntary services budgets are expected to lead to a saving of some £150,000 for the PCT this year. Given that that is a small drop in the £17 million overspend, I would urge the PCT to look internally for structural and efficiency savings, rather than merely reducing the funding of voluntary groups, whose work often plays such as vital role in our health service. If our voluntary health services are forced to close, I predict that far greater numbers of patients will actually require more hospitalised, long-term and expensive treatments through the NHS, thus undermining the PCT’s initial savings.

Due to the overspend and service reductions, there now exists a lack of trust in the PCT and a complete absence of confidence over its future intentions, and I fear that local people are simply paying too high a price for that. In the long term, I am more optimistic about health care provision in north Yorkshire and York, largely due to the contents of the health White Paper. The localised drive to ensure that PCTs are, at some point, abolished altogether and replaced by GP-led commissioning bodies, which are influenced by local patients, is a measure that I wholeheartedly welcome.

At long last, local patients will have a say in their local services, holding the decision makers to account and freeing up our nurses, doctors and health providers from the red-tape that so often binds them and takes them away from the front line. I hope that the Minister can reassure me that the transition from PCTs to GP-led commissioning will be carried out swiftly to ensure that the interim transitional period will not see a lack of leadership or direction for local health care services—especially in our area.

I believe that the PCT will continue to operate until 2013, and I plead with the Minister to review to the situation in north Yorkshire and York in the meantime. Our constituents simply cannot afford to wait three years for the situation to be remedied. Most specifically, I would welcome any comments from the Minister on the previous Government’s imposition of a statutory obligation on PCTs to break even by the end of this year. Could that deadline be extended to soften the blow of the cuts over a greater time period?

The people of north Yorkshire and York depend upon their health care services, and many are extremely worried at present. I hope that hon. Members from the region—I was going to say “regardless of political allegiances”, but as we only have coalition Members here I will not say that. To give the hon. Member for York Central (Hugh Bayley) credit, he did say that he would try to be at the debate today.

We must protect the essential health care services and funding that our region deserves. I ask and urge hon. Members to fight and to campaign for that. We must ensure that, before GP-led commissioning starts, the PCT delivers the best service that it can within its budget. It must focus on service delivery and the outlying services to our communities, rather than cutting.

I hope that the Minister will give serious consideration to the issues that I have raised. I am grateful for his time. I know that it has been a hectic day thanks to the Divisions, but I am grateful to him for giving us the time, and I hope that he will give the matter serious consideration.

17:15

[Andrew Jones (Harrogate and Knaresborough) (Con)]

I congratulate my hon. Friend the Member for York Outer (Julian Sturdy) on securing this important debate, and I add my support to his recognition of the excellent work that the health care professionals do in our area. He has highlighted that our health grant in North Yorkshire is low, which impacts on the services that we receive.

When facing the challenge of low funding, the PCT has to look hard at its priorities, particularly with regard to mental health services. I am always concerned about mental health provision, because I think that for far too long in our country it has been a bit of a Cinderella service. In my constituency, the community mental service has closed the Hawthorn day unit, which was extremely popular with its service users and well respected across the community. It is claimed that the closure is temporary, but the reasons for its closure run on and on, and it seems endless.

While the excuses mount up, some of the most vulnerable people in my constituency—many of whom I have met—have seen their contact time with counsellors, or their time in respite care, decrease from three or four days a week to half an hour a fortnight. I am worried about the impact of the change on some of the most vulnerable members of the community. In some cases, those constituents have severe mental health problems and can periodically be a danger to themselves. I hope that our PCT will consider that and, even at this late stage, find a way to reopen the Hawthorn day unit at the earliest opportunity.

17:16

[The Minister of State, Department of Health (Paul Burstow)]

I congratulate my hon. Friend the Member for York Outer (Julian Sturdy) on securing this debate, and I note the cross-party support that he has gained, with the arrival of the hon. Member for York Central (Hugh Bayley). I note the presence of my hon. Friends the Members for Skipton and Ripon (Julian Smith), for Selby and Ainsty (Nigel Adams) and for Scarborough and Whitby (Robert Goodwill), and I know that they are all interested in and concerned about the issues that my hon. Friend the Member for York Outer has raised. He has made a powerful case for why we need the radical reforms across the NHS to which the Government are committed.

Before I turn to the points that my hon. Friend has raised, I join him in praising the work of NHS staff across Yorkshire. They do an excellent job, often in the most trying circumstances, and he is right that the NHS is a national treasure. Our White Paper reforms are, first and foremost, about freeing those hard-working professionals from the bureaucracy that stands in the way of good patient care.

We will be cutting management costs by a third, moving decisions closer to patients through new GP consortiums and giving local councils more responsibility for the health of their communities. All those will help to create a more flexible, efficient, interconnected and accountable health service.

We are now entering a transition to the new system, which brings its own challenges for all parts of the NHS. The descriptions that my hon. Friend has given of circumstances in his constituency demonstrate the challenge that is exacerbated by the fragile state of the local NHS finances. The Government have inherited that fragility and they will have to address it.

I understand from the strategic health authority that the North Yorkshire and York PCT is likely to end the year with a significant deficit unless it takes drastic action of the sort that my hon. Friend has described, and to which others have referred in this debate. That process clearly involves some tough decisions, which will have a distressing impact on his constituents, and I will return to those in a moment. I want to answer his concerns about funding allocations for the NHS in that part of the country.

At present, as my hon. Friend has described, the NHS uses a funding formula based on objectives set by the previous Government and developed by the independent Advisory Committee on Resource Allocation. I know that one of the big frustrations for North Yorkshire is whether its rural nature is taken fully into account in the funding formula, and my hon. Friend has alluded to that. As a Government, we have asked for that formula to be examined. The Secretary of State has asked ACRA to review how NHS resources are distributed, and has explicitly requested that consideration be given to the issues that face rural communities.

Looking ahead, from 2013-14 we will have moved to the new system of the independent NHS commissioning board allocating resources to general practice consortiums. How it does that will be up to the commissioning board itself, but we are clear that it must do it fairly and consistently across the country. For places such as his constituency, my hon. Friend the Member for York Outer is right—real pace and purpose are vital to getting the NHS on to a more stable financial footing. I can assure him that we are keen to make fast progress on GP commissioning consortiums taking on responsibilities. In that regard, shadow allocations for GP consortiums will be published late next year for 2012-13, giving the new organisations the time and space to test financial plans before the full system goes live in 2013-14.

My hon. Friend asked whether GP consortiums would have to take on PCT debt. I have heard that anxiety expressed around the country. The NHS operating framework, which we will publish in a few weeks, will set out the rules on legacy debt to ensure that no debts carry forward into the new system. That is challenging, and we are keen to work through it effectively.

I shall now come back to the present and say a few words about the current financial position in North Yorkshire and York. The strategic health authority tells me that the local PCT has had a problematic financial history stretching back many years, which may be an understatement. [Interruption.] I can see colleagues nodding.

Over the past 12 months, its situation has deteriorated due to a number of factors, including a significant overspend on community services and the fact that its QIPP—quality, innovation, productivity and prevention—programme has not delivered the expected savings. As a result, the trust is having to take radical steps to put its finances in order, including temporary reductions to some non-urgent health services. I very much regret that.

I regret that the fragility of the organisation has placed my hon. Friend the Member for York Outer’s constituents in a position where they face these service changes. I hope he will understand that it is not for me to give a running commentary on every aspect of what the PCT is doing. On the issues that he highlights—particularly about the QIPP programme implementation, which I have looked at carefully—there are lessons for how we ensure that we get a proper grip on financial management in local NHS organisations.

It is striking, for instance, that the neighbouring PCTs with similar populations to North Yorkshire and York’s are not facing the same financial challenge, nor are they having to resort to the desperate actions that the trust is taking. My hon. Friend is right to say that the trust should not seek excuses in how the funding formula works. None the less, we need to look at the formula.

Equally, it is important to bear in mind that the QIPP programme in North Yorkshire and York has not delivered. I understand that it set some ambitious and challenging plans; the problem was that the implementation has not been as robust as the plans. I understand that one issue appears to be a failure to bring on board the full range of stakeholders to deliver on the improvement plans. That is a significant failing, because where the PCT is doing that, the signs are extremely positive. For instance, local GPs are working with the trust on prescribing practices—together they are looking to cut costs by more than £1 million, while protecting quality and service. I highlight that because it shows the power of GPs in managing efficiencies, and is a sign of how our reforms will help in the future.

Perhaps most troubling of all is the fact that the PCT has slammed the brakes on funding for the voluntary sector in a way that may have serious consequences for the future. The PCT may, technically, be within its rights to give the minimum of notice to providers, but pulling the plug on small organisations with just a month’s notice—or in some cases, less—is alien to the spirit of collaboration and partnership that we want the NHS to cultivate. As my hon. Friend the Member for Skipton and Ripon said, it seems to be against the notion of the compact.

There is an important general point here. As we move through transition there will be difficult choices, and the NHS needs to be clear about what it needs to protect and how best to maintain vital voluntary community services. Therefore, in response to this debate, I have asked the NHS chief executive, Sir David Nicholson, to consider how to ensure that local NHS organisations act responsibly towards voluntary sector organisations during any period of retrenchment. My hon. Friend is right: we need candour and early discussions. about where the cost pressures are in the system, because, given the opportunity, the voluntary sector can contribute to managing them.

Reference has been made to the issues of pain relief injections and of treating chronic back pain. The hon. Member for Selby and Ainsty (Nigel Adams) asked a question about the discussions that he has had with the Secretary of State, as did the hon. Gentleman who secured this debate. I am not cited in regard to those discussions, but I will undertake to ensure that we look very carefully at the issue and come back to both hon. Members who raised it, to satisfy them and ourselves that NICE guidance is being followed properly.

However, I believe that the PCT understands that its decision has affected a significant number of patients with chronic back pain, and that it has written to a number of those patients, commissioned a series of initiative clinics where patients are fully assessed and given new treatment options to manage their pain.

[Nigel Adams]

Just on that point, it is worth remarking that the reason given by the PCT for the withdrawal of the procedure is not a financial one, which is very difficult for colleagues to comprehend. Apparently, it is based on medical advice via the NICE guidelines, but the PCT seems to be the only one in the country that has adopted that stance. Does the Minister agree that that sort of logic is a perfect reason why our reforms must come through in terms of GP commissioning, so that decisions can be made by health professionals rather than bureaucrats?

[Paul Burstow]

There is no doubt in my mind that getting clinicians far more engaged in commissioning will be a key driver to a significant improvement in quality and outcomes in the system in future. I certainly undertake to ensure that we have a proper look at this issue of the guidance, and I will come back to both the hon. Gentleman and his hon. Friend, the hon. Member for York Outer, on that point.

I certainly share the belief that those reforms are needed to ensure that the NHS in north Yorkshire, and Yorkshire in general, moves in the positive direction that we all want to see it move in. Our proposals will bring the right leadership and purpose to sustain and improve the services that the constituents of the hon. Member for York Outer, and those of the other hon. Members who have come to support him in this debate, expect the NHS to deliver.

Decisions that are made much closer to the patient will ensure that health care is shaped in the best interests of the community and the general population. By introducing greater transparency and democratic accountability, we will ensure that the local NHS is far more answerable to the people whom it serves and that there will be much more scrutiny and community involvement in the decisions that it takes.

That is something that I am sure all hon. Members want to see. It is how we can move our NHS forward, maintaining it as a national treasure but one that really delivers the best possible outcomes—outcomes that are among the best in the world. That is what we really want to see.

Question put and agreed to.

17:27

Sitting adjourned.

Written Ministerial Statements

Wednesday 1st December 2010 Written Statements

Wednesday 1 December 2010

Fair Pay in the Public Sector

Wednesday 1st December 2010 Written Statements

[The Chancellor of the Exchequer (Mr George Osborne)]

Will Hutton has today published the interim report of his review of Fair Pay in the Public Sector. The Government welcome the publication of this report and will give careful consideration to the findings so far. The Government look forward to the outcome of the final report in March and will respond in more detail once they are in receipt of this.

The report is available in the Vote Office and in the Printed Paper Office and it has been deposited in the Libraries of both Houses.

Periodic updates of the review’s work will be made available through the website located at: http://www.hm-treasury.gov.uk/indreview_willhutton_fairpay_tor.htm.

Telecoms Council

Wednesday 1st December 2010 Written Statements

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

I am pleased to confirm the agenda items for which BIS has responsibility at the forthcoming Telecommunications Council in Brussels on 3 December 2010. I intend to represent the UK at this Council.

There are four substantive agenda items:

1. Proposal for a decision of the European Parliament and of the Council establishing the first Radio Spectrum Policy Programme (RSPP): A Progress Report and Exchange of Views.

This item is an exchange of views on the presidency report and questions for the discussion in relation to the Commission’s proposed RSPP (EM 13872/10). This is a proposal for draft legislation which codifies policy and legislative actions necessary for the efficient management of spectrum in the EU up to 2015.

The RSPP is seen by the Commission as a necessary key contributor towards broadband targets, especially for those geographically rural and remote areas that would rely on wireless technology to receive broadband services. This view is generally shared by the Council and the European Parliament. It follows on from the agreements reached on spectrum during the communications framework review.

Progress had been made in debating the draft legislation in the Council but the European Parliament is yet to start deliberations.

The questions tabled for discussion range from how spectrum management contributes to economic growth through issues related to a proposed inventory of spectrum in the EU to the deadlines related to the release of certain spectrum.

As efficient spectrum management is a key component of the Coalition’s broadband strategy, the main points of my intervention, taking into account the questions posed, will be:

to broadly welcome the proposals from the Commission which we do indeed think are important in terms of economic growth within the EU and for the development of mobile broadband services;

to welcome the breadth of the proposal but to caution any legislation mandating the use of spectrum for particular social or community purposes;

to welcome the approach by Commission of ensuring that spectrum for mobile broadband is made available as early as possible but caution on the imposition of rigid timelines that may not be realistic or match national circumstances; and

to wish the Hungarian presidency well in their deliberations on this important dossier with a hope that we might see an agreement before the summer of next year.

2. Proposal for a Regulation amending Regulation (EC) No 460/2004 establishing the European Network and Information Security Agency (ENISA) as regards its duration—A Progress Report

Proposal for a Regulation concerning the European Network and Information Security Agency (ENISA)—A Progress Report

These two items are progress reports from the Commission on the current status of the above two recently issued documents. (EM 14322/10)

The first progress report covers the proposal to amend the existing regulation, which established ENISA, in order to extend its duration for 18 months. (The purpose of the extension is to allow the continued operation of ENISA under its current remit whilst the new regulation is negotiated).

The second progress report covers the new regulation that renews and updates the mandate of ENISA.

As these items are progress reports and it is anticipated that no debate will take place, I am not planning an active intervention. However, should there be a debate; my intervention will reaffirm Her Majesty’s Government’s (HMG) current policies that are detailed in the relevant EM noted above.

3. Cross-fertilisation between the Europe 2020 flagship initiatives “A Digital Agenda for Europe” and “Innovation Union”—Adoption of Council Conclusions

This item covers the adoption of the above Council conclusions. These conclusions are member states’ views on the synergies between two of the EU Commission flagship agendas, namely the Innovation Union (EM14035/10) and the European Digital Agenda (EM 9981/10).

Thus, the conclusions contain elements of both flagship agendas, including stressing the need for accelerating the roll out of high-speed broadband which will help drive innovation, as well as recognising the importance of increasing EU spend on ICT research and development.

In the main, HMG welcomes these conclusions, and I intend to make the following comments:

welcome the adoption of these conclusions and pleased to see joined up thinking in linking together these two critical flagship agendas;

pleased to see that these conclusions recognise the importance of digital technologies as one of the key economic drivers for Europe’s future prosperity;

welcome the emphasis on the re-use of public sector data as a potential driver of private-sector led innovation; and

welcome the “active and healthy ageing” EIP pilot that will be jointly developed by DG-INFSO and DG-SANCO (the latter being the part of the Commission that deals with health issues).

4. European Broadband: investing in digitally driven growth—Adoption of Council conclusions

The last substantive item on the agenda is the adoption of the Council conclusions that specifically cover the European broadband strategy (EM 13874/10). This strategy is another component of the Commission’s “Broadband Package”.

The importance of broadband roll-out is noted under item 1 above and I plan to make the following interventions during the planned discussion on these conclusions:

HMG welcomes the adoption of these conclusions and hope that they will be taken note of by member states and the Commission to aid them in the rollout of super-fast broadband;

The UK recognises the value of these conclusions and will shortly publish a UK-wide broadband strategy, detailing HMG’s plan to ensure every UK citizen is able to access broadband; and

The EU broadband objectives are challenging, but by working together, and alongside the private sector, we can achieve them.

I will inform the House of the outcome of the discussion on this, and the preceding item in my post-Council statement.

This concludes the formal substantive business items for Council. However, there are three items that are covered by “Any Other Business”.

They are:

A. A report on the state of development of roaming services within the European Union—Presentation by the Commission.

This item will be coupled with a discussion over lunch preceding the Council. These items will be centred around the Commission’s recent Interim Report on the State of the Roaming Market (EM11711/10)

During the lunch, Ministers have been asked to consider and discuss three questions. In summary they cover issues relating to stimulating competition, the impact of technological change and the introduction of a price cap on the retail price of data while roaming.

During my lunch time discussion and any debate following the presentation from the Commission, I intend to make the following points:

we look forward to proposals from the Commission on how they intend to deal with the roaming issue when the current regulation expires in June 2012;

we fully support the call by the Commissioner for a functioning single market in mobile roaming services; especially with respect to data (which is of increasing importance for EU citizens); and

we would welcome high-level but detailed discussions between all interested parties on this issue to try—possibly using the same format as the recent meeting on net neutrality—and find a way forward that benefits consumers but also does not undermine competition, investment or innovation in the mobile sector.

B. Internet Governance Forum (IGF)—Briefing by the Commission and the Presidency.

I do not plan an intervention on this item but if the opportunity arises, I will reaffirm HMG’s policy lines that:

supports the multi-stakeholder approach on internet governance;

welcomes the agreements reached at the recent ITU plenipotentiary; and

anticipates a positive outcome to a vote in the UN General Assembly later in December to extend the mandate of the IGF for another five years.

C. The next presidency’ programme and events—Briefing by the Hungarian delegation

This item is a presentation from the Hungarian delegation on their plans once they assume the presidency of the EU (1 January 2011 to 30 June 2011).

I do not plan an intervention for this item but you may wish to note that my officials are in the final stages of planning a bilateral meeting with Hungarian officials so that we are able to capitalise upon any opportunities that may be presented by Hungary assuming the presidency.

London Reforms and the Localism Bill

Wednesday 1st December 2010 Written Statements

[The Secretary of State for Communities and Local Government (Mr Eric Pickles)]

I am today announcing a new settlement for London which includes a package of measures to be included in the forthcoming localism Bill.

These far reaching proposals include measures which will significantly devolve power to the Greater London Authority, London boroughs and beyond and they will streamline the plethora of agencies in London’s public sector landscape. They are based on proposals put forward by the Mayor and London boroughs themselves. We have listened to key players in the capital and responded to their ideas.

The measures include:

The devolution of executive powers over housing investment from the Homes and Communities Agency to the GLA so that there is more decentralised control over housing investment decisions in the capital.

The abolition of the London Development Agency, with its city-wide roles on regeneration and management of European funding to be transferred to the GLA so that the mayor is directly accountable.

New powers for the Mayor of London to create Mayoral Development Corporations to focus regeneration where it is needed most, such as to help secure East London’s Olympic legacy, in partnership with London boroughs.

London boroughs will be given greater control over key local planning decisions that affect their local communities. The mayor will only consider the largest planning applications in future.

A more streamlined approach to mayoral strategies and increased powers of scrutiny for the London Assembly over these strategies, including the power to reject final strategies by a two thirds majority.

A new requirement for the GLA Group to publish details of all expenditure over £500 and openness rules will be extended to Transport for London.

These reforms will drive decision making back into the hands of the mayor and locally elected London leaders, streamlining the way London is run and paving the way for further devolution to London boroughs.

Diamond Jubilee Civic Honours Competitions

Wednesday 1st December 2010 Written Statements

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

I am pleased to announce that the Government are today launching UK-wide competitions for a grant of city status and a grant of Lord Mayoralty (or Lord Provostship) to mark Her Majesty the Queen’s Diamond Jubilee in 2012. Local authorities throughout the United Kingdom who believe that their district, borough, town or city deserves consideration for either of these rare honours are invited to apply by the closing date of 27 May 2011.

Entry guidelines have been posted on the Diamond Jubilee section of the Department for Culture, Media and Sport’s website, www.culture.gov.uk. Copies have also been placed in the Libraries of both Houses, the Vote Office and the Printed Paper Office. The document provides guidance on the contents of applications, as was the case for the competitions held for Her Majesty’s Golden Jubilee, as well as full details on the submission of entries.

In addition, for the first time in such competitions, the entry guidelines specify a standard format for entries. Local authorities are urged to use the standard format, which is intended to limit the costs of entering the competition and to introduce a fair basis for comparison between entries.

The honours will, however, continue to be rare marks of distinction conferred, on ministerial advice, under the royal prerogative, rather than rights to be earned by the meeting of specific criteria. All valid entries will receive individual consideration on their merits and the Government look forward to announcing the results of the competitions in the early months of 2012.

Single Payment Scheme

Wednesday 1st December 2010 Written Statements

[The Minister of State, Department for Environment, Food and Rural Affairs (Mr James Paice)]

The Rural Payments Agency (RPA) will today begin payments under the 2010 single payment scheme (SPS). Over the next few days payments totalling over £1 billion are expected to be made to some 80,000 claimants. This represents over 75% of eligible claimants.

Further progress towards the agency’s 2010 SPS payment targets—to pay 85% of eligible SPS claimants by the end of December 2010 and to pay 95% of the value of SPS payments by the end of March 2011—is being closely monitored by the RPA oversight board which I chair. Against the background of the additional workload created by the update last year to Rural Land Register and reduced staff numbers, it is clear that meeting those targets represents a significant challenge.

Farmers may be assured that outstanding payments will be made as individual claims are verified. But that will not mean cutting corners: I am determined to bring a renewed focus on accuracy to the administration of the scheme so that legacy issues are addressed once and for all and the agency is then able to deliver a better quality of service to farmers in the medium term. Equally, we need to ensure taxpayers interests are safeguarded by ensuring our actions represent good value for money and further discussions will take place with the National Audit Office to that end.

As we progress through the payment window, I will keep the House informed on the agency’s progress towards its targets and any related decisions by the RPA oversight board. At an individual level, the RPA is writing to farmers where it appears unlikely that payment will be made during the course of December.

Stem Cell Transplant Services

Wednesday 1st December 2010 Written Statements

[The Parliamentary Under-Secretary of State for Health (Anne Milton)]

As part of the Government’s desire to see improved services for NHS patients, the Department asked the NHS Blood and Transplant Authority to lead a review of stem cell transplant services.

The authority duly established the UK Stem Cell Strategic Forum, an advisory group of national and international experts, service providers, clinicians, patients and charities which has now reported on its findings. The report, “The Future of Unrelated Donor Stem Cell Transplantation in the UK”, contains 20 recommendations on how we can better deliver this type of stem cell technology for the benefit of NHS patients.

The Department welcomes the report. We will now begin work, in collaboration with the NHS, NHS Blood and Transplant and the Anthony Nolan Trust to develop improved partnership working and consider how the findings and recommendations in the report can be best translated into real service improvements.

A copy of the report has been placed in the Library and copies are available to hon. Members in the Vote Office.

Local Licensing Act

Wednesday 1st December 2010 Written Statements

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

Today, alongside the publication of the Police Reform and Social Responsibility Bill, we are publishing the Government’s response to the Rebalancing the Licensing Act consultation which was conducted earlier this year and includes the full analysis of consultation responses. Our response sets out which proposals we will be taking forward from the consultation document, and how; explains why we have decided not to proceed with some proposals; and outlines new proposals that we have introduced in response to suggestions received during the consultation.

The Government believe that local communities should have a greater role in determining local licensing. The package of measures that we are introducing through the Police Reform and Social Responsibility Bill and the additional changes we will make through secondary legislation and guidance will rebalance the Licensing Act in favour of local communities, ensuring that local residents’ views and concerns are heard and considered and they get the type of night-time economy they want.

The measures being introduced will also provide the police and licensing authorities with the tools they need to more effectively address alcohol-related crime and disorder in the night-time economy. Tackling alcohol-related crime and disorder is not something that can just be done centrally. These measures will enable issues to be addressed at a local level, with local communities taking greater responsibility for tackling problems in their own areas.

The full Police Reform and Social Responsibility Bill is today being published on the Parliament website: http://services.parliament.uk/bills/. The Government response to the Rebalancing the Licensing Act consultation will be available on the Home Office website: http://www.homeoffice.gov.uk/drugs/alcohol/rebalancing-consultation and copies will be placed in the House Library.

Policing in the 21st Century

Wednesday 1st December 2010 Written Statements

[The Minister for Policing and Criminal Justice (Nick Herbert)]

Today, alongside the publication of the Police Reform and Social Responsibility Bill, we are publishing the Government’s response to the “Policing in the 21st Century” consultation, which set out the most radical reforms to policing in at least 50 years, putting the public at the heart of policing.

Directly-elected Police and Crime Commissioners are central to our proposals to replace bureaucratic accountability with democratic accountability. The Government are confident that Police and Crime Commissioners will make forces truly accountable to the communities they serve, ensuring that resources are properly targeted to where they are needed and giving the public a greater say in measures to reduce crime and improve community safety.

We are also clear that the long held principle of operational independence, where those operating in the office of the constable are able to make independent decisions on how to use their legitimate coercive powers on behalf of the state will continue to remain the cornerstone of the British policing model.

We received approximately 900 responses to the consultation and we are grateful to all those who responded. The response document we are publishing today summarises the views that we received and sets out next steps in implementing our reforms, which include:

replacing existing police authorities with directly elected Police and Crime

Commissioners (PCCs), who will hold forces to account and strengthen the bond between the police and the public;

new police and crime panels to provide important scrutiny of PCC functions, with membership including both top-tier and district councils—giving district councils formal involvement in the governance of policing for the first time;

a framework of checks and balances to scrutinise PCCs and a more independent Inspectorate of Constabulary;

strengthening professional discretion, cutting bureaucracy and freeing up police officers’ time;

greater collaboration between police forces to increase public protection and save money; and

phasing out the National Policing Improvement Agency and creating a powerful new National Crime Agency to lead the fight against organised crime and strengthen our border security. This will be supported by a clearer framework for local PCCs and their forces, set out in a new strategic policing requirement (in response to some of the feedback we received during the consultation).

We have listened closely to what people have had to say and our final proposals take this in to account. For example, the Police Reform and Social Responsibility Bill that we are also publishing today provides more detail on the powers and duties that PCCs and police and crime panels will have and how PCCs will work with their force and other local providers.

The full Police Reform and Social Responsibility Bill is published on the Parliament website. The Government response to the “Policing in the 21st Century” consultation will be available on the Home Office website and will be placed in the House Libraries.

Justice and Home Affairs Pre-Council Statement

Wednesday 1st December 2010 Written Statements

[The Secretary of State for the Home Department (Mrs Theresa May)]

The Justice and Home Affairs Council is due to be held on 2 and 3 December in Brussels. My right hon. Friend the Secretary of State for Justice and I intend to attend on behalf of the United Kingdom. As the provisional agenda stands, the following items will be discussed:

The Council, beginning in Mixed Committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen States), will receive an update from the presidency on the state of play of the Schengen Information System II (SIS II) project.

Next there will be a discussion of the Commission report on the implementation of the Council conclusions on 29 measures for reinforcing the protection of the external borders and combating illegal immigration. The UK has not yet received a copy of the report; however, we expect that the Commission will use this item to inform member states of progress regarding these measures. The measures include: Frontex working arrangements; exchange of relevant information between FRONTEX, other EU agencies and member states; development of the European Surveillance System—EUROSUR; exchange of information on illegal immigration, trafficking in human beings and falsification of documents; and solidarity and the integrated management of external borders by member states.

After Mixed Committee the Council will receive an update from the presidency on the progress being made on asylum and legal and illegal migration and seek to ensure that the following four presidencies (Hungary, Poland, Cyprus and Denmark) remain on course to meet the Commission’s 2012 deadline for delivery of the Common European Asylum System (CEAS). The UK Government believe that the challenges that Europe faces on asylum and illegal immigration are better addressed by practical co-operation than by further legislation. We do not consider the adoption of a common EU asylum policy to be right for Britain. But we do believe there are many issues in the area of asylum and migration on which all EU member states have much to gain by working together. We will be active in promoting effective cooperation, and will consider participation in legislative proposals on their merits in consultation with our European partners and relevant EU institutions.

The Council will then receive updates from the Commission on the Mediterranean Office for Youth, the Greek national action plan on asylum and migration and a legal migration conference held on 26 November. The Mediterranean Office for Youth supports circular migration for educational purposes. The UK is not a participant in the Mediterranean Office for Youth, which is restricted to members of the Union for the Mediterranean. The UK considers the Greek national action plan on asylum and migration (the “Greek Action Plan”) to be key in increasing the ability of Greece to act as an efficient partner in countering illegal migration. Alongside other EU member states we have offered practical assistance to Greece, however we would like to see the establishment of an effective Commission-led process to ensure co-ordination and prioritisation; avoid duplication of member states’ actions; ensure the availability of clear, accessible funding streams to support the action plan; and the setting of clear timescales for action and milestones for progress. The presidency will also present their conclusions following the conference on legal migration.

Over lunch Interior Ministers will be asked to agree a regulation to create an agency for large-scale IT systems in the JHA field. This would be accompanied by a Council decision ensuring full UK participation in the agency, which was a Government priority as the agency will manage a number of existing systems in which we participate (Eurodac and the second generation of the Schengen Information System). While the Government are content with the text as drafted some member states have maintained reserves which will need to be resolved before the Council, in particular concerning the location of the agency. Also during lunch Ministers will discuss alternatives to detaining children for immigration purposes. The UK Government are committed to ending the detention of children in the UK and a review is currently underway to consider how this can be done in a way which protects the welfare of children and ensures that families leave when they have no right to be in the UK. This will be an opportunity to share experience and ideas with other member states who are also dealing with this difficult issue.

After lunch, the Commission will present their draft action plan on combating heavy arms trafficking. Should this plan be endorsed during this Council, the EU will have an integrated approach to combating arms trafficking, and more particularly heavy fire arms.

Next the presidency will present for agreement Council conclusions on itinerant gangs which seek to define the problem of itinerant crime groups and agree an administrative approach to tackle the problem, including increased cross-border co-operation. The Council will also be asked to agree draft Council conclusions on preventing and combating identity related crimes and on identity management.

The Council will be asked to agree negotiating mandates which will authorise the start of negotiations between the EU and the United States, Canada, and Australia for the transfer and use of passenger name records (PNR) to prevent and combat terrorism and other forms of serious cross-border crime. Clear PNR agreements between the EU and Australia, Canada and the US will play a vital role in removing legal uncertainty for air carriers flying to those third countries. It will also help ensure that, where appropriate, PNR data can be shared quickly and securely with all necessary data protection safeguards in place. The Government are content with the proposed negotiating mandates but has yet to take a decision on whether or not to opt in. The Government strongly believe that early publication of an EU PNR Directive covering intra-EU as well as external flights is vital to the safety and security of EU citizens.

Next the EU CT co-ordinator will present a discussion paper to Council on an EU CT strategy which covers transport security, terrorist travel, cyber threats, the external dimension of CT and fighting discrimination and social marginalisation of Muslims.

The UK welcomes the paper as a useful starting point for further policy discussions. The EU CT co-ordinator will also provide an update on progress against the EU action plan on combating terrorism to date.

The presidency will seek agreement on a paper on a system for sharing information on terrorist threat levels in the member states. The UK supports improvements to the information sharing mechanisms on terrorist threat levels at the EU level while maintaining that changes to threat levels remain a member state competence.

The Council will also be asked to reach agreement on a paper recommending proposals to strengthen aviation security following the incident at East Midlands airport. This paper will go jointly to the Transport and JHA Councils on 02 December for agreement. The UK welcomes this report and will press for early, effective and co-ordinated action.

Commissioner Malmström will present her EU Internal Security Communication, which looks to translate the Council’s EU internal security strategy into action points and will seek initial views from member states. The text was published on 23 November. The Government are therefore considering the detail of what is proposed and will set out their initial views at the Council.

On the justice day, the Council will be asked to agree the text of the EU directive on human trafficking. In June, the Government made a decision not to opt in to the directive, but to review its position after adoption, at which point the UK could apply to opt in retrospectively. The directive is in its final stages of negotiation; there is a qualified majority in the Council and should the European Parliament also agree the text in December adoption will follow.

The presidency will then seek a general approach on the draft directive on combating sexual exploitation and abuse of children and child pornography. This draft directive aims to update existing EU legislation in the area of combating child sexual exploitation and pornography in line with technological developments such as the use of webcams to bully children into sexual posing (a pornographic performance). The Government are seeking scrutiny clearance to enable the UK to support the presidency in reaching a general approach.

There will be a state of play report on the European Investigation Order (EIO), which is a draft directive aimed at streamlining the system of mutual legal assistance between participating EU member states. The presidency will report progress on negotiations but is not expected to seek agreement on any issues at this time. The Government will take the opportunity to press for further detailed work on the grounds for refusing assistance.

The presidency will also seek a general approach on the right to information in criminal proceedings. This is the second measure in the roadmap to strengthen procedural rights in criminal proceedings. It aims to set common minimum standards and improve the rights of suspects and accused persons by ensuring that they receive information about their rights. The presidency has taken on board the Government’s concerns in relation to article 7 of the draft directive. The Government are seeking scrutiny clearance to enable it to agree to the general approach.

The presidency will then seek agreement among participating member states on the regulation implementing enhanced cooperation in the field of law applicable to divorce—Rome III. The European Parliament will adopt its opinion by the end of the year. The UK is not participating in this measure.

The presidency held a seminar on 14 October to discuss issues around resolving child abduction disputes by mediation. At the end of the seminar the presidency produced conclusions aimed at encouraging EU law makers and member states to consider promoting mediation in such cases. The presidency is seeking agreement to these conclusions at the Council.

There will be a discussion on the Commission’s communication on “A comprehensive approach on personal data protection in the European Union”. The Communication is intended to serve as a basis for further discussions between the Commission, other European institutions and interested parties with a view to developing a new data protection legislative framework. It is anticipated that the Commission will publish a legislative proposal in mid-2011.

The presidency will seek agreement to the adoption of a negotiating mandate for an EU-US Agreement on data protection. The agreement would clarify data protection safeguards for the transatlantic exchange of personal data for law enforcement purposes.

Ministers will then be provided an information point on the outcomes of and proposed follow up to the EU-Russia Permanent Partnership Council (PPC) (freedom, security and justice) (18-19 November), and the Western Balkans Ministerial Forum (23-24 November). The PPC agreed steps forward on visa liberalisation (the top priority for Russia). They agreed to work on a list of common steps towards negotiations on an EU-Russia visa waiver agreement. This does not directly affect the UK as we are not part of the Schengen visa arrangements. The UK did not attend the Western Balkans Ministerial Forum. Ministers will be updated at the JHA Council.

Ministers will then be presented with a report on the activities of the e-justice working party during the Belgian presidency. The main focus of this work so far has been the development of a European e-justice portal which is a website (launched at the July Informal JUA. Council) that acts as a point of access to a range of information on justice matters across the EU.

Over lunch, there will be a discussion about the forthcoming directive, access to a lawyer. This is the third measure on the roadmap to strengthening criminal procedural rights, which is likely to be published in June 2011. The Commission is still in the early stages of drafting the proposal. It is considering provisions on the right to waiver legal advice, consequences of violations, the competence and quality of lawyers and provisions for European arrest warrant proceedings.

Grand Committee

Wednesday 1st December 2010 Grand Committee

Wednesday, 1 December 2010

Budget Responsibility and National Audit Bill [HL]

Wednesday 1st December 2010 Grand Committee

Committee (2nd Day)

15:45

[The Deputy Chairman of Committees (Lord Skelmersdale)]

My Lords, I begin by repeating words that you have all heard many times before. If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bell is rung and will resume after 10 minutes. We are now on the second day of proceedings of the Grand Committee on the Budget Responsibility and National Audit Bill.

Clauses 2 and 3 agreed.

Schedule 1 : Office for Budget Responsibility

Amendment 8 not moved.

Amendment 9

Moved by

[Lord Peston]

9: Schedule 1, page 11, line 13, at end insert “; and in making such nominations the Office will set out the role of the 2 or more members, including why they are needed.”

[Lord Peston]

Amendment 9 is grouped with Amendment 15, which my noble friend Lord Eatwell will speak to. I have discovered that the more work one does jointly, the more thoughts one has. Therefore, one or two things emerge from this amendment that had not occurred to me when I tabled it. I will mention what they are, but that does not necessarily mean that we should debate them today: we might save them for Report.

The amendment covers the role of the two or more other members. They are referred to in the Notes as non-experts. I had not thought through the implication, because the word is not used in the Bill, that the OBR people are the experts. At some point I shall try to find a way by which we can discuss the distinction between expert and non-expert. I assure the Minister that this is a probing amendment for elucidation. I am asking what the point is of having these people. Given that we have experts, what do they contribute? They cost money—I assume that they expect to be paid—and they will have to be serviced with briefings of all sorts. The point of the amendment is to ask generally why we need this class of member; and, secondly, if this is what the Bill intends and if we are to have them, to ask the OBR, which will want to appoint them: “Can you tell us why you need them in this broad category, and why you need these specific people?”. I was intrigued by the Notes saying explicitly that these people will not be experts.

My other point is that so far, the only thing that we have any practical experience of, given the operation of the OBR, is that these people are not experts in the sense that they are not economists. I assure the Committee that there are other experts in the world. One or two of my colleagues, particularly in the United States, believe that economics will develop into a universal science that will cover everything in the field of human knowledge. I do not hold that view. It seems to me that although the experts so far are economists, I can think of other areas of expertise that would class people as experts for the purposes of the Bill. I do not expect the Minister to talk about that today, but I will raise it on Report. Statisticians and businessmen have wide experience and could be classed as experts in this context. The point of this probing amendment is to seek enlightenment. I beg to move.

[Lord Eatwell]

My Lords, I want to speak to Amendment 15 in this group, which is tabled in my name and that of my noble friends Lord Davies and Lord Myners. The amendment seeks to provide a specific and important role for the non-expert members who, in the Explanatory Notes, are defined as non-executives. The role of the non-executives is very important indeed because, as we have already identified, the OBR is a strange beast. It is independent in an important way, or at least we hope it is, and yet it is an essential ingredient of policy-making within a particular department, mainly the Treasury. So it is not really a non-departmental public body as we know many independent bodies because it is very much part of the Treasury, and yet it is also very much not part of it. It is therefore important that we bolster the “not” side of that equation to ensure that not only is there the reality of independence in a way that I know the Government are seeking, but also the appearance of independence, which will be equally important, especially in more tempestuous political and economic times.

Amendment 15 seeks to clarify the role of the non-executives in a particular way. What is striking at the moment is that the non-executives have no role whatever except that of being involved in audit activity and the production of the annual report; otherwise, they simply make the tea for the experts. We want to give the non-executives a particular role, that of bolstering and supporting the independence side, let us call it, of the OBR. It will be done by requiring the office to include in its annual report an assessment of how the OBR and the Treasury have adhered to the terms of the OBR’s independence as set out in Clauses 5 and 6(2).

Noble Lords will recall that Clause 5 makes the particular point that not only does the OBR have “complete discretion” but, as set out in subsection (2):

“The Office must perform that duty objectively, transparently and impartially”.

One of the oddities of the draft charter is that it seeks to define the terms of Clause 5(2) which are perfectly well defined in the noble Lord, Lord Sassoon’s, favourite reference book, the Oxford English Dictionary. I do not see why we need any further definition, but we will come to that in a moment. The non-executives can comment on these provisions, but more especially they can comment on the provisions of Clause 6(2), which is the really crucial piece of independence in the Bill—the independence of method and of forecasting approach. That is because, as we discussed on Monday, the Treasury is to retain its own forecasting unit and the non-executives will have the responsibility of assessing whether the mutual influence between the two forecasting organisations compromises the OBR’s independence.

It is important that the Government should realise that forecasting organisations influence each other to a considerable degree in respect of introducing new and different ideas, concepts, judgments and methodologies. Moreover, first-class forecasting units interact with one another. That is absolutely inevitable at any level of serious intellectual endeavour. For example, in economic forecasting, the very method used can have a significant influence on outcome, and unwarranted influence on the outcome can be exerted as much by a debate over method as over judgment.

The role of the non-execs is simply to stand there as defenders of the independent side of the OBR, and we could give them the responsibility of reporting on that independence in their annual report. They would then have a specific, valuable and important role.

I admit that Amendment 9, tabled by my noble friend, is cast in much more general terms, but I think that it is seeking to achieve the same ends. It is seeking to define a role for the non-executives. I suggest that the statutory role that we are suggesting—as guardians of the independence of the OBR—will be of enormous value to the Government, to Governments in future and to the organisation itself.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, although the noble Lord, Lord Peston, says that this is not necessarily the opportunity to try to clarify what is intended, I think that it is worth spending a moment or two to try to tease out what is going on here, although from what both noble Lords said, it is probably now clear what is going on.

As I said at Second Reading, when I was first shown a draft of the Bill, it categorised the two groups as professional and non-professional. That was changed to expert and non-expert, but we are talking about, on the one hand, a group that is expert in the sense of having all the competencies to carry out the role of the OBR—so they are both expert and executive—and, on the other, another group of people who are described in the Bill as non-expert, but we are rightly talking about them as what they are in substance, non-executive. They might be expert or they might not, but the critical thing is that they bring to bear a degree of support and challenge that comes from a different perspective. If they happen to have some relevant expertise, fine, but that is not the point.

The so-called non-experts are non-executives, but are full members of the OBR, which means that they can help to carry out any of the OBR's functions beyond those reserved for the BRC. As I see it, their role will be principally one of support and constructive challenge to the executive members, just in the way that non-exec directors would normally exercise those functions. They may form part of some committee structure, if the OBR so decides—audit is a particular role often assigned to independent non-executives—and they will carry out an important role in safeguarding the independence of the OBR. I have no difficulty with the principle behind Amendment 15, spoken to by the noble Lord, Lord Eatwell. It is just a question of the best way to achieve that.

For a start, we have a statement from the Treasury Select Committee in its recent report on the OBR. It states:

“We will take evidence”—

from the OBR—

“regularly as part of the budget process. We will intervene if we believe the OBR's independence is threatened. We expect the members of the Budget Responsibility Committee or the non-executive directors to report any concerns they have to us. Only if it is independent will the OBR be successful”.

We completely agree with that and would expect both the executive and the non-executive members, whether collectively or separately, to report any concerns on independence. That is clearly implied by the whole nature of the construct. The non-exec non-experts must be people of independent mind and character.

The question is whether this needs to be written in further. My slight problem with requirements to report on things like independence on a regular basis is the risk of becoming formulaic. We want the OBR and the non-experts to report whenever they see any question of a lack of independence arising, and I hope that that will never occur, but my hesitation is that if you get people to report regularly it becomes another box that they tick and another standard sentence that they write. It may actually be more difficult for them to do what in substance there is nothing stopping them doing—there is every encouragement from the Government and from the Treasury Select Committee already—which is to raise any independence concerns in the appropriate way, which may not be in any particular form with any regularity.

I have noted the points that have been raised, but at the moment I am not convinced that writing more into the Bill will necessarily do anything but lock us in to one particular formula. However, I will reflect further on the points that have been put. For the moment, though, I hope that I have answered the questions that have been raised and that that is sufficient for the moment for the noble Lord to withdraw the amendment.

16:00

[Lord Peston]

My Lords, will the Minister clarify one or two of his remarks? I got a bit lost. I think I am right that he is now saying that the real distinction is exec versus non-exec, not expert versus non-expert, so we have moved on from the Explanatory Notes on those clauses to something different. Do I therefore understand that the non-execs could include people who would be regarded as experts?

My second question, and I blame myself for this as I did not emphasise it in my opening remarks, concerns the rubric in the Bill, “two or more”. I meant to ask: what is the point of “or more”? Two seems a lot. Why have the Government not been able to make up their mind what they think the right number is? I was very puzzled by that. I would have thought that two, full stop, would be enough. Certainly, if I were doing this, I would say, “If we’re going to have to have these people, a couple of them are fine”, but I do not see where the “or more” comes in, unless we go along with my noble friend Lord Eatwell that the two that we have turn out not to be able to make tea and we need a third one for that purpose.

[Lord Sassoon]

My Lords, in answer to the first question, to be clear again, it is certainly the case that there is a group which is executive and expert and then there is a second group, described at the moment in the Bill as “non-expert”, which is also non-executive. That second group could be experts, there is nothing to rule that out, but the point is that they do not have to be experts; they should, however, be sufficiently independently minded, supportive and challenging of the executive expert members.

We have put in “two or more” because at the moment we think that the remit of the OBR and the construct should be perfectly sufficient and workable for robust government arrangements. That is the minimum number. To have one non-exec would put that individual in an impossible position; two gets you to the minimum. If the OBR’s remit were somehow to develop in an unanticipated way, it might be appropriate to modestly expand the number of non-exec non-experts, but that is not the intention at the moment.

[Lord Turnbull]

I suggest to the Minister one possible use of this third post: at some stage, it might be thought helpful to recruit someone who has experience in a different country of how this kind of arrangement has worked. The two non-executives—I really do not know why we do not just settle on that as a description, because they are expert at being non-executives—could well be supplemented by someone who brings some other dimension to the affair.

[Lord Sassoon]

That is a very helpful thought. I shall in another context say that the parallel with the MPC is not at all inappropriate. For example, in the MPC or the board of the FSA there is a good record in the UK in recent years of bringing in relevant experts from overseas. I entirely agree with the noble Lord’s thought.

[Lord Eatwell]

My Lords, I am grateful for the noble Lord’s reaction to our Amendment 15; he said that he did not have any difficulty with it in principle. He then suggested that the independence of the OBR should be guarded by an external body—namely, the Treasury Committee of another place. While I have enormous respect for that committee, it would be better to bolster the independence of the OBR within its own organisational structure, rather than relying on an external body to deal with this issue. That is what I was trying to do in my amendment.

The other aspect is that if it is clear that the important role of the non-execs is to bolster the independence of the OBR, it will affect the sort of person who is appointed. You will want people of stature and self-confidence who would be willing to make themselves unpopular in defending the independence of the OBR. That would be a particular sort of person. It is especially valuable that we do not rely on an external organisation and use an internal structure with the non-execs. After all, they are there; we might as well use them to do this job.

I understand the point that a regular report might become formulaic, but this is such a serious duty that serious people would not treat it in a formulaic manner. However, I will take away the noble Lord’s point and see if I can modify the amendment a little.

[Lord Sassoon]

I want to clarify one matter. I was not for a minute suggesting that the Treasury Select Committee would be the sole policeman of independence. Under the current construct without the proposed amendment, I absolutely regard the OBR to be the guardian of its independence—which it shows every signs of being fiercely committed to. I was merely using the wording of the Treasury Select Committee report to point out that there are already external pressures on the OBR from a number of directions, but in no way was I suggesting that it will not already be expected to raise concerns on independence. The reporting mechanisms could include the annual report that will happen anyway. I am simply suggesting that making that mandatory in the legislation risks a formulaic approach.

[Lord Eatwell]

As I have said, I understand that; but when you are in the executive position, as the very distinguished people you have been lucky enough to attract to run the OBR are, it is very easy, because you have to get the report out and do things, to be so immersed in the incredible pressures that you slip across boundaries. If non-execs are there, like a non-executive chairman with a chief executive, they could help with guidance and prevent that slip happening. If we give the non-execs this particular role, it will not only bolster the appearance of independence of the OBR—which is valuable in itself—but provide an important check in reality. Including that duty in the Bill would be so serious that I do not think that serious people would treat it in a formulaic manner.

[Lord Peston]

My Lords, I thank the Minister for his clarifications, particularly in relation to the application of the exec versus non-exec issue. My noble friend Lord Eatwell has made a powerful case and I am glad that the Minister will at least reflect on how independence will work. Even though one felt very frustrated on Monday by the Minister’s refusal to give a much bigger role to the House of Lords, I can assure him that as long as I am alive, I and my noble friend Lord Barnett will find many a way of making sure that the OBR is subject to the kind of criticism that will ensure that, whatever else it is, it is definitely independent.

Having said that, I would like to come back to the question of expertise, but that can wait until Report. I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10

Moved by

[Lord Eatwell]

10: Schedule 1, page 11, line 13, at end insert “, with the consent of the Treasury Committee of the House of Commons”

[Lord Eatwell]

A peculiarity of Schedule 1 as drafted is that the members of the committee who are required to have the relevant skills we have talked about are also required to obtain the consent of the Treasury Committee of the other place, whereas the non-execs are not. This is peculiar and unfortunate because, while there is a clear template against which to measure the members of the committee—they must have a suitable professional status within the economics profession, and especially within economic forecasting—the non-execs require a wider skill set. It would be inappropriate to spell out a particular skill set—even though my noble friend Lord Peston wants it in the Bill—because that is best assessed by the Treasury Committee and, if we wish to add it, the Economic Affairs Committee of your Lordships’ House.

What kind of things do we want? We want independence, experience, commitment, a clear interest in the issues at hand and an understanding—although not necessarily a high level of expertise—of the strengths and weaknesses of economic forecasting. We also want political independence, or at least political balance, within the structure of the non-execs. The Treasury Committee, which covers a multitude of sins, has the expertise to evaluate that kind of skill set. That is why Amendment 10 seeks to apply the kind of rigour and general assessment to the appointment of the non-execs as is applied to the appointment of the committee. I beg to move.

[Lord Higgins]

My Lords, I am a little worried about the remark “covering a multitude of sins” as I was chairman of the Treasury Select Committee in the other place for about 14 years—in fact, probably for most of the time that it has been in existence.

[Lord Eatwell]

If the noble Lord and the right reverend Prelate will allow me to explain, I was using the term in the same way as the Church of England covers a multitude of sins.

[Lord Higgins]

It will be interesting to know the Minister’s view on that one. I support the noble Lord in the view he has expressed. I welcome the fact that sub-paragraphs 1(1)(a) and (b) of Schedule 1 both require the Treasury Committee of the House of Commons to be involved. As I said at Second Reading, I think it is true to say that this is the first time that a Treasury committee in this sort of role has ever appeared in legislation. But like the noble Lord who moved the amendment, I am puzzled as to why the Treasury Committee should be involved in the case of the first two groups and not in the case of the third. It seems appropriate that it should be involved in all three. It is certainly appropriate that it should be involved in the appointment of the chairman, because the chairman plays a crucial role between the parliamentary side of things and the Executive nowadays, so that is very good.

I also remain puzzled as to why, under sub-paragraph (c) of Schedule 1, the two members are to be nominated by the OBR and then appointed by the Chancellor, whereas those under sub-paragraphs (a) and (b) are simply appointed by the Chancellor. No doubt the Minister can explain why the OBR should be in the nomination of the third group.

16:16

[Lord Barnett]

My Lords, I agree with the noble Lord. Although I am sure that the Minister will consider the amendment carefully before we get to Report, I wonder whether it would be simpler for him to add a few words to it—namely, that the Economic Affairs Committee of the House of Lords might be added to this consideration. I am sure that he would be happy to see that done.

[Lord Sassoon]

My Lords, I am quite puzzled by this amendment because we are moving into unusual territory. We believe it absolutely right for the Treasury Committee to have a veto over the role of the chairman, but it is almost unprecedented for Parliament or parliamentary committees to have such roles at all, let alone over non-executive members. One of very few other appointments that is subject to a parliamentary veto of the sort provided for in this Bill is that of the Comptroller and Auditor-General.

In terms of the non-executives, I do not share the analysis of the noble Lord, Lord Eatwell, in terms of expertise. I shall come back to the other constitutionally substantive point, which is that we are not talking about experts in this area in any sense but about those who will bring independence of mind and who will challenge and support. That is potentially a much wider field of candidates. So I think that such appointments would rest on the relatively narrow point about what the Treasury could bring to bear, and actually I do not think that it would have anything special to bring to this. The wider point to be made here is that we would be moving into new and extraordinarily different territory. To take one broadly similar example, the non-executive members of the board of the UK Statistics Authority are appointed by the Minister for the Cabinet Office after consulting with the chair of the UK Statistics Authority. So we are following a perfectly respectable precedent.

In answer to the question of why the names that are being considered for the non-expert, non-executive role should be nominated by the OBR, again we want to strike a balance between appointment by the responsible Minister, who is the Chancellor, while not leaving it entirely to the Chancellor and the Treasury to come up with names. So again there is a perfectly well precedented route by which the authority concerned has a role in identifying candidates. That would include the Debt Management Office, the Crown Estate Office, the museums, the Natural Environment Research Council—I could go on.

Our suggestion in the Bill for how this should work is well-worn territory; there is nothing so different about the role of these non-execs. We have already had some questions about how substantive the role is, but there is nothing that takes the roles of these non-execs into remotely different territory from the role of non-execs in a lot of other well functioning bodies in the broader public sector, and we have broadly followed the appointment processes in those other areas. I am genuinely puzzled by this amendment and do not believe that it would add anything to the strength of the OBR governance arrangements.

[Lord Peston]

Perhaps I may indicate one thought that has occurred to me, which the Minister might like to reflect on. It follows on from what my noble friend Lord Eatwell said: namely, that there is an enormous benefit to be gained if these people have been scrutinised. I do not believe that in practice it would occur very often, if at all, that the names brought forward were rejected, but a committee—which, one hopes, did not operate politically, such as the Treasury Select Committee; certainly the Economic Affairs of your Lordships’ House has never done so—might say, “We approve of these people; they’re just the people we need to help safeguard the independence”, which my noble friend Lord Eatwell has emphasised in this context and before. It is worth reflecting on whether that would be helpful in a body that is very different from any body that I can think of that has been set up in my time to consider economic policy-making.

There is an old adage, “Never do anything for the first time”, but that is what this body is doing, whether we think that that is good or bad. I would have thought that the Minister might like to reflect at least a little on the point that there would be positive benefits from going down the path that my noble friend suggests.

[Lord Desai]

I am sorry, my Lords, I did not speak in the Second Reading debate or on Monday. The point here is about trust. The Government have set up an institution that in its early days suffered from a bit of a problem of trust. I think that that was an accident, not the fault of the OBR itself. Whatever the Government can do to establish trust in the body would help them enormously. As my noble friend Lord Peston said, this is an innovation, a very good one, and perhaps it would strengthen it to do something, as my noble friend Lord Eatwell has suggested, to say that this is not like any other public sector body but is vital to the conduct of economic policy by the Government and to the perception of that policy. If the Minister can do something to assuage the trust deficit that we have here, it would be helpful.

[Lord Higgins]

My Lords, I agree with the point that has just been made. It is true, as the Minister has said, that we are breaking new ground here, but the other bodies to which he referred are very different from this one, which is unique. I would have thought that the case for having the whole board approved by the Treasury Select Committee gave greater weight to the committee’s authority and would certainly make the committee, which is going to be dealing with this whole issue a great deal, more acceptable to it in future proceedings. I am not clear why the Minister objects to adding this.

[The Lord Bishop of Chester]

My Lords, it would be a great mistake to regard being opposed to sin as the sole prerogative of the Church of England. I hope that the whole Committee is opposed to sin.

I have some sympathy with the Minister on this. My problem with this part of the schedule is that it feels too in-house to me—too much the same. The Chancellor of the Exchequer is involved in the appointments and perhaps the Select Committee will be involved. I should have thought that the office needs a certain amount of diversity; its independence requires a greater diversity. It strikes me that the schedule is too tightly constrained as it is and to constrain it further by saying that the Select Committee of the other place has to be involved each time feels odd. I would almost expect the Governor of the Bank of England to nominate a member. We need a greater sense of diversity and independence in what is supposed to be an arm’s-length body. This body is in danger of not being sufficiently arm’s length from government. On that ground alone, I support the Minister’s resistance. However, I have a problem in that the whole thing seems a bit too in-house as it is.

[Lord Turnbull]

The noble Lord, Lord Higgins, referred to making this more acceptable to the committee. I remember reading the report of the committee in another place: it did not actually ask for this. It asked for powers on appointment, and for powers of dismissal, which are built in here. Members of that committee did not think this was necessary and I am prepared to back that judgment.

[Lord Sassoon]

I am grateful to the right reverend Prelate. I hope that he will forgive me if I do not offer any thoughts on sin. I know my limitations. I am grateful to the noble Lord, Lord Turnbull, for reminding us that the Treasury Select Committee has not asked for this. We need to get back to the substance of this. Yes, the OBR is a critically important entity. I would not characterise its role quite in the way that the noble Lord, Lord Peston, did, as being involved in economic policy-making, but we had that discussion two days ago. The OBR is critically important. It has a role which it has already begun by producing the official economic forecast. Because that is such an important role, we have as a Government, in agreement with the Treasury Select Committee, come forward with a most unusual role for the committee in respect of appointment of the executive members of the OBR. That in itself emphasises the special nature of this entity.

We have recognised the special role of this body in the executive appointment process, but as to the non-execs, we should not get too excited and think that their role is very different. Are we really saying that the non-execs here have a completely different role to the non-execs on, say, the UK Statistics Authority board, which is another critically important part of the architecture? We risk over-engineering this.

Another point that no one has made is that all public sector appointments are subject to an independent process and a series of safeguards. We must not forget that this is not part of a closed process. I believe that the overall construct is appropriate and we should not over-engineer it, particularly in a way that the Treasury Select Committee has not asked for.

16:29

Sitting suspended for a Division in the House.

16:39

[Deputy Chairman of Committees]

The Minister was in full flow and presumably wants to continue.

[Lord Sassoon]

I think I had finished.

[Lord Myners]

Before the Minister sits down, I should like to make one point. There is a rather good article in the Financial Times today by Miss Sue Cameron on the subject of the appointment of non-executive directors by government. It starts out by detailing some of the difficulties that the Government appear to be having in getting people of appropriate quality to step forward to take these positions. It then goes on to say that there is a lack of clarity about whom the non-executive directors owe their duties and obligations to and to whom they report. If, as I believe my noble friend Lord Eatwell suggested, the non-executive directors are there primarily to vouch for the competence and independence of the OBR committee, then it begs the question: with whom do they raise doubts about competence or independence? It seems to me that it would be the Treasury Select Committee rather than the Chancellor of the Exchequer. After all, it would probably be the Chancellor of the Exchequer or the Treasury that were encroaching on independence. If that is the case, surely it is also logical that the Treasury Select Committee should be involved in approving the appointment of the non-executive members. After all, those members are the eyes and ears of the Treasury Select Committee within the OBR committee.

[Lord Sassoon]

My Lords, I have not had a chance to read that article. If we have another break, I shall go and do so. The arguments of the noble Lord, Lord Myners, are always powerful and coherent, but there are plenty of instances of where the appointment process does not, for all sorts of different reasons, necessarily have much to do with where reporting lines go. At the moment, quite properly, banks have to do a huge amount of reporting to the Financial Services Authority but the FSA does not appoint the boards of directors, who are appointed by the banks’ shareholders.

[Lord Eatwell]

But the FSA now interviews non-executive directors from major financial institutions.

[Lord Sassoon]

The FSA does not appoint the boards of directors. We are talking here about public sector boards, and I feel that there is little more to add. The Treasury Select Committee has not asked for this, and it does not happen with other appointments. Critical bodies such as the statistics authority work perfectly well under the sort of construct that we are proposing here.

[Lord Myners]

Will the Minister confirm that appointments to this committee will follow the same procedures and processes as apply to membership of the statistics authority? In particular, will he confirm that the public appointments body will be involved in overseeing the process, that these positions will be properly advertised and that due regard will be given to diversity in the specification of the terms of appointment? I think that the Minister is leading in the direction of giving us some comfort that we can look to such parallels but it would be helpful if he could confirm that that is the case.

[Lord Sassoon]

I hope that I can be helpful on that point. The Government expect the appointment process for the BRC to match up to the high standards of public appointments. A bespoke appointment process has been put in place for the BRC executive members involving advertising, independent involvement in the interview process and so on, and that process has been designed to be open and transparent. It is up to the OBR to design the process for the non-executive members but we would also expect that to be open and in line with the principle of transparency. We have high expectations of the quality of the process and I hope that that gives the noble Lord some comfort.

[Lord Higgins]

Am I to understand that the Treasury Select Committee said that it wanted to be involved in the appointment of the chairman and executive members but that it did not want to be involved in the appointment of the non-executive members? If so, that seems a rather extraordinary position to take, but I will accept whatever the Minister says.

16:12

[Lord Sassoon]

My Lords, that is indeed the position. It may be extraordinary but, as I have tried to explain, it is entirely consistent with the fact that, as far as I am aware, no other non-executive appointments to a wide range of public bodies are subject to a parliamentary committee veto. Of course, it will be up to the Treasury Select Committee to decide whether it wants to interview the non-executive members individually, collectively or as part of the total board of the BRC, and it will have an opportunity to see them in accordance with its normal processes.

[The Lord Bishop of Chester]

Can the noble Lord comment on the fundamental point I made in my earlier contribution that, as it is set up, it is all rather in-house and too tight and that it does not draw from a wide enough range of sources—for example, the Governor of the Bank of England? One could no doubt think of others, but can the Minister comment on that point?

[Lord Sassoon]

Certainly it is important that the non-executives are people of independent standing and stature who are able to challenge as well as support. That is why there is a critical distinction. It may bring with it some lack of clarity but the expert/non-expert distinction makes the critical point that the non-executives should come from people who are capable of a broader challenge and support role. That is why there is a distinction between experts—which implies a closed group of economists—and a wider group. The posts will be advertised and subject to competition. It will come down, as it should, to the description of the posts, which should allow for people from wider backgrounds to come in. I welcome the right reverend Prelate’s reminder that that would be healthy.

[Lord Myners]

Does the Minister share my concern that, because these two members have not been approved by the Treasury Select Committee—I realise I am taking a different tack from the right reverend Prelate—their credibility, standing and authority as challengers within the committee is in some way diminished, and that, because they have not been anointed by Mr Tyrie and his colleagues, that detracts from their standing and makes them somewhat subservient or subordinate to those who have been approved by the Treasury Select Committee? I ask the Minister to take this away and give it a little more thought.

[The Lord Bishop of Chester]

My concern was that they are nominated by the office itself in an almost self-perpetuating sense. Whether or not they are approved by the Select Committee is a secondary issue. The more fundamental issue is how an arm’s-length body in such a sensitive and politically charged area should properly draw its membership. The danger is that this is too much like a self-perpetuating body, with the Chancellor involved in every appointment.

[Lord Sassoon]

My Lords, on the latter point, I say again that the fact that it is intended that, as part of the nomination process, there should be an openly advertised way in will make it clear that we looked widely for the non-executives.

Implicit in the remarks of the noble Lord, Lord Myners, about the non-executive members not going through the process of getting the imprimatur of the Treasury Select Committee is the suggestion that all the non-executive board members of a huge range of public sector boards who do not go through parliamentary scrutiny are subservient and subordinate. I do not know why it should be different here. As I have explained, we are applying the same rigorous, high standards to these appointments as are applied to all other bodies. I see no reason why they should be subservient or subordinate simply because they have not had Treasury Select Committee endorsement.

The critical thing is that these are non-executive non-experts carrying out an important role similar to that of non-executives in a huge number of bodies across the public sector. That is very distinct from the expert members who, because of their special role at the heart of economic forecasting—the Treasury Select Committee agrees with this distinction—should be subject to the special veto.

[Lord Eatwell]

My Lords, having had the opportunity to listen to noble Lords who have taken part in the debate, I have become more convinced of the value of the amendment. My conviction derives from the following points. First, we must recognise that this is a very peculiar body, as a number of noble Lords have emphasised. It is of the Treasury but not in the Treasury. It is of the Treasury because it plays an important role in the formulation of the Treasury’s policy by providing it with the information and forecasts that are necessary for the development of policy. However, it stands outside as well. It is that independence with which we have all been concerned. Analogies with other public bodies do not work very well. This is a very peculiar body that we are trying to get right in the Bill.

Having listened to the arguments, the major reason why I am even more convinced of the value of the amendment is that I was involved in such a process when I was chairman of the British Library. I had a very tough and effective chief executive, and we tried to build a board that would serve various important roles at the library. However, we were continually—I was going to say “interfered with” but that does not sound quite right—guided in a very decisive way by the Department for Culture, Media and Sport, which is not one of the most powerful departments, certainly when compared with the Treasury. It played a very active role in the so-called independent nomination process. I was continually having vigorous arguments with the Permanent Secretary at the DCMS in which I would tell her to take her tanks off my lawn and allow us at least to nominate members, as was our right under the relevant Act. I am not convinced that the nomination process will be as independent as might be expected from looking at the simple structure laid out in the Bill.

The amendment would protect the Treasury and the Chancellor from the accusation that there was any compromise to the independence of the OBR in the nomination of non-executives by granting oversight to the Treasury Select Committee. The point is important. Members of the Treasury Select Committee are politicians, and therefore they are very sensitive to issues of political independence. It is what they know about and their area of expertise. They can spot political tendencies a mile off because they are experienced politicians and that is their job. Having listened to the argument, I have become much more convinced of the value of this amendment. I was a little tentative when I set out, but now I am convinced that it is the right thing to do. We will return to this on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendment 11

Moved by

[Lord Higgins]

11: Schedule 1, page 13, line 21, at end insert—
“( ) The Office shall not be located in the Treasury.”

[Lord Higgins]

My Lords, the theme running through all our proceedings has been that the OBR shall be seen to be independent. In that context, its forecasts in particular need to be independent. It would appear that, despite what may be a possible solution, the Treasury will continue to make forecasts at the same time as the OBR is making them, and it will be extremely difficult for everyone to believe that there has not been any degree of collusion if in fact the office is located in the Treasury itself.

This is a simple amendment. It may be that the Minister will happily say right away, “It’s clear anyway from the clause, since the OBR apparently owns property in the context of this amendment’s location. There is not the slightest question of it being located in the Treasury”—in which case we can let the matter rest. I hope that that is so. I beg to move.

[Lord Barnett]

My Lords, it is really all about perception. We all know Robert Chote, the chairman; I respect him and believe him to be truly independent. Being based in the Treasury, with everything that that means, would clearly be wrong, but on the other hand I read recently—I do not know whether this is right—that the OBR was looking for premises outside. It may already have found them, so this amendment may not be necessary. Perhaps the Minister can tell us.

[Lord Sassoon]

My Lords, I hope that we might be able to dispose of this a little more speedily than some other matters today, although it is important. I shall make the situation clear: Robert Chote has announced that the OBR is moving out of the Treasury and will do so—my speaking note says “next month”. I think that we are already in next month. It will be moving out in December. Before Christmas the OBR will be out of the Treasury building and going to Victoria Street, so it will not be too far away. I think that the noble Lord, Lord Burns, noted at Second Reading that the OBR will inevitably work closely with the Treasury. It will be out of the Treasury building but it will not cost its members too much in shoe leather if they occasionally need to have meetings with the Treasury and with other government departments. The OBR is moving out and it is up to that body where it goes. We should not lay down in legislation whether it should go to one place and not to another.

[Lord Myners]

I do not think we can allow it to go unnoticed that the Minister, in his reference to “shoe leather”, assumed that the OBR would be called to the Treasury. I hope that the OBR will be sufficiently independent to call the Treasury to visit it at its own offices. I hope that the Minister is not conveying a subconscious message to us on that point.

[Lord Higgins]

My Lords, on one occasion when the Government that the late Iain Macleod was opposing accepted an amendment, his response was, “You don’t shoot Santa Claus”. Perhaps that is an appropriate reaction in this instance. I am delighted to hear what the Minister has said.

[Lord Eatwell]

Before the noble Lord finishes, I should like to comment. I really am having road-to-Damascus experiences today; I now think that this is rather important, although I did not when we started. Yes, the OBR is moving out, but the point is that this is a Bill to establish that body for the long term. The Minister has said that it is up to the OBR to decide where it goes. Let us suppose that it decided to go back. Would that be acceptable? The answer, of course, is no. Having felt that the noble Lord, Lord Higgins, had tabled an amendment that had been superseded by events, I now realise that he has spotted a rather important point.

[Baroness Noakes]

My Lords, before the noble Lord, Lord Eatwell, gets too carried away with joining in with any opposition to the Bill, I want to point out that the Treasury is not a place, so the drafting of my noble friend’s amendment, while appearing Santa Claus-like, is in fact defective. There is a Treasury building but the Treasury could be anywhere. I think that he means “located in the same premises as Ministers and officials of the Treasury”.

We can take this too far, though. There might be circumstances in future when it is perfectly sensible for space in the same building as the Treasury is located to be occupied by the OBR. If the Treasury shrunk in size to proper proportions again and did not occupy as much of its building, some of it could be let out. What would be wrong with having the OBR even closer to save on shoe leather? We must not get carried away with this amendment.

16:59

[Lord Brooke of Sutton Mandeville]

My Lords, I have not been provoked to rise by what the noble Lord, Lord Eatwell, said about the Department for Culture, Media and Sport, in which I once had the privilege of serving as a Minister. I, too, had that experience with it after I left, so I know exactly what the noble Lord meant. On the other hand, when the Department for Culture, Media and Sport was set up and was given the job of handling listed building consent, the Department of the Environment, whence that function came, had to employ Chinese walls when both departments were deciding which building should be listed and were giving listed building consent for the alteration or destruction of buildings, and there was no question at all that it was an enormous plus to have matters dealt with in two different departments. Therefore, in that respect, I have some sympathy with the amendment moved by my noble friend Lord Higgins.

[Lord Higgins]

My Lords, as I indicated earlier, what the Minister has proposed seems to be in line with the intention behind the amendment—namely, that the OBR and Treasury staff should not mix together over coffee or whatever. Should the situation be reversed at some point in the future, that may or may not happen. In any event, I am satisfied with the Minister’s reply and beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12

Moved by

[Lord Barnett]

12: Schedule 1, page 13, line 23, at end insert—
“( ) The staff must be employed solely by the Office, and not be civil servants transferred temporarily from other departments.”

[Lord Barnett]

Listening to the previous debate, I am even more confused than I was before about which staff are now being employed by the OBR and what the plans are for the future. Perhaps the noble Lord can help us on that. I know from a Written Answer in which I got a proper answer from the noble Lord that 12 Treasury members were still working officially for the OBR—full time, I assume. As I now understand it, having listened to the previous discussion, there are a lot of non-executive members as well as executive members. Quality will be required in the new members of the OBR, but they will not necessarily be non-executive or executive members.

I do not quite understand what we are talking about when we refer to “staff”. For example, I understand that Robert Chote, quite rightly, retired from his position as head of the Institute for Fiscal Studies. I am not clear whether that institute is continuing with another head. I think that it probably is. I see the noble Baroness, Lady Noakes, nodding—perhaps she is the new chair—but it is just adding to the 50-odd independent forecasters that we have, or whatever the number was before, plus one. I should be glad if the noble Lord could clarify that.

In Amendment 12, my noble friend Lord Peston and I say that the staff must not be civil servants, because we were both worried about them either remaining as officials of the Treasury or being temporarily transferred to the OBR, which we would not find very satisfactory. The whole point about the OBR is that not only must it be independent, which I am sure it will be, but it must be seen to be independent. If we are not careful, because of its proximity to the Chancellor and the Treasury, it will not necessarily be seen to be as independent as it should be. For example, on the previous amendment my noble friend Lord Myners talked about the OBR moving its office to Victoria Street. However, it may be moving to the offices of the Department for Business, Innovation and Skills for all I know. Perhaps the Minister can clarify that as well. My noble friend was worried about whether they would have to keep traipsing backward and forward between the OBR offices and the Treasury, rather than inviting any Treasury officials to whom they want to talk to come to them. The foreword of the recent OBR report makes it clear that it sees not only the Treasury. It states that,

“we have also drawn heavily on the help and expertise of officials across government”.

There is a whole load of them, including Revenue and Customs, and the Department for Business, Innovation and Skills. The OBR officials go to lots of offices, so there is a wide-scale connection with government. I do not object to them seeing officials in government departments—that is sensible—but it makes me wonder, when I see the number of departments that the OBR visits, just how big it is, or is going to be. Perhaps the noble Lord, Lord Sassoon, could tell us how many staff the OBR has now, how many are full time, how many are part time, how many are quality, how many are not quality—doing the footwork, you might say—how many are experts, how many are executive, and how many are part-time executive. For example, are Robert Chote and the two people with him full time or part time? I do not know. Unfortunately, I have not seen the minutes of the Treasury Select Committee, where the answers may have already been given. Perhaps the Minister can tell us. I beg to move.

[Lord Newby]

My Lords, the provision in paragraph 8(2) of Schedule 1is sensible. It states:

“Staff are to be employed on such terms as to remuneration and other matters as the Office may, with the approval of the Minister for the Civil Service, determine”.

Surely that is the sensible way of doing it, with the chairman deciding which staff he wants. It would be slightly surprising if none of them came from a Civil Service econometrics background, which would bring strength to the office. Just because they have come out of Whitehall does not mean that they are somehow tied hand and foot to Treasury thinking. No doubt, people will come in from academia and elsewhere. It is for the chairman himself to decide who the best people are to do the job.

[Lord Turnbull]

I support the noble Lord, Lord Newby. As I understand it, the number of staff would be around 20. Some may be seconded from the Treasury, some may be brought in from academia, and some may come from somewhere else. It is basically for the chairman of the OBR to assemble the best team that he wants, and we should not fetter that discretion, because there is a safeguard in Clause 5(2), which states:

“The Office must perform that duty objectively, transparently and impartially”.

In other words, anyone who is on loan from another government department is subject to that duty, which should ensure that the right degree of independence is maintained. If you say that someone with a Civil Service career must resign from the Civil Service in order to go and work for the OBR, you will raise all sorts of issues relating to pensions, seniority, this, that and the other. You will make it difficult to assemble the best-quality team, and that should be paramount.

[Lord Myners]

I agree with those comments. However, the duties described in Clause 5(2) are subject to guidance given under Clause 6(1)(b), which slightly diminishes the confidence and reliance we can place on Clause 5(2).

I support the intention of this clause, but cannot bring myself to support the wording of the amendment. The majority of the staff of the OBR, certainly until quite recently, were former Treasury officials, and the majority are doing work that is very similar to the work that they were doing before the establishment of the interim OBR—work that they are now allowed to appear to criticise through the OBR. They are still in the Treasury building, they are still going to the excellent Treasury canteen for their subsidised lunches and they are still entitled to belong to the Treasury choir and the Treasury glee club. They have not left the Treasury. What we are seeking to achieve is appropriate distancing—but not at the cost of denying the OBR the best people to do the job. It is not unreasonable to assume that currently at least some of them will be working in the Treasury.

The difficulty that I have with the drafting of the amendment is the reference to “transferred temporarily”. “Temporarily” assumes some knowledge of the future. I see a situation in which somebody may go from the Treasury to the OBR and later return to the Treasury without that necessarily having been planned. There must be clear severance in employment terms: it must be quite clear that staff have left the Treasury and are now employed by the OBR. The independent, non-executive directors should keep a particularly close focus on where people are recruited from and where they go afterwards, in order to make sure that the effectiveness and credibility of the body is not diminished by a greater flow between the Treasury and the OBR than common sense might justify. However, I cannot bring myself to support the amendment as it is drafted.

[Lord Peston]

My Lords, I am not in the least concerned about the precise drafting of amendments, because all our proceedings in Committee are exploratory. The central point is that the staff of the OBR should be simply the staff of the OBR—end of story. It needs to be made clear that they are not other staff. The purpose of the amendment is to say categorically that these staff are now the staff of the OBR. I take it for granted that they will be full-time rather than part-time staff. This has nothing to do with the chairman or others choosing the best people; it is to do with the status of the staff. That is all the amendment is about. They should be the staff of the OBR and therefore, unless the law is changed, they will not be the staff of the Treasury or of anywhere else. My noble friend Lord Barnett and I would like a simple answer from the Minister. Are the staff the staff of the OBR? That can be answered with a yes or no.

[Lord Newby]

My Lords, perhaps I may ask the noble Lord, Lord Peston, a quick question. Is he opposed to any staff going on secondment from the Treasury to the OBR?

[Lord Peston]

Yes, categorically. The Bill refers to them as the staff of the OBR. We can argue about language, but if somebody asks who my staff are, I say, “He works for me and so does he. They are on my budget and they are my staff”. Sorry, I should have said “she”. If someone said to me, “Actually, they are not, they are Treasury officials on secondment,” I would not regard that as a correct use of the words “my staff”. The Minister may agree with the noble Lord, Lord Turnbull, that the point made by my noble friend Lord Barnett and me does not matter, and may be perfectly happy for them to be on secondment, work part time and so on. If that is the position, I would like to know. My position is that an independent body appoints its own staff, and they are its staff.

17:14

[Baroness Noakes]

My Lords, I profoundly disagree with the noble Lord, Lord Peston. I do not know what the initial position might be in the OBR in that they might all be initial employees. But we would restrict the OBR’s access to a pool of talented people if we insisted that they could work in the OBR only if they became its employees and severed any employment connections with other organisations. The OBR will be a small organisation, so in order to get good people it may well need to attract them through shorter secondments, whether to handle specific issues or to be part of the staff more generally. Over time, we have to allow the OBR that flexibility, and there is nothing wrong with that. People move in and out of all sorts of organisations throughout Whitehall and are brought in whenever it is necessary.

[Lord Turnbull]

My Lords, I am amazed at the sheer unrealism of the proposition of the noble Lord, Lord Peston. If this is enacted, there will be a major crisis in the organisation. Around 20 people will have to take a decision whether to resign from the Treasury or quit the OBR and go back to the Treasury. That is something we could absolutely do without. The initial staff in large majority are secondees. We have not complained about their work. We did not say that the report produced last week was ineffective or that we did not trust it because the staff are seconded. The noble Lord is imposing something that will be damaging to the credibility of the organisation and will make it much more difficult to attract people of the quality it needs. As I have said, a major problem will be created immediately if such a proposition is enacted.

[Lord Peston]

I did not create this problem. I did not set this body up. Unlike all other noble Lords present, I do not happen to be much in favour of it, but that is another matter. The fact is that our duty in this House, when a piece of legislation is going through, is to make it better. That is our role. So this is not my responsibility, but my point is that if we are going to have such a body, whose essence is its independence, if it turns out that the staff are secondees, that undermines its independence. It will not be independent any more.

[Lord Burns]

I support my noble friend Lord Turnbull and the noble Baroness, Lady Noakes. This amendment is totally unrealistic. To imagine that one should bar secondees from this kind of activity is extraordinary. There can be no real career structure within the OBR. There are specific sets of jobs and there will be little potential for advancement. It is bound to provide activities that people will take on for a certain period, after which they will move on to do something else. Inevitably, they will wish to hold on to their employment in a department which actually offers them the possibility of a career structure.

I think that the noble Lord hugely underestimates the independent-mindedness of many civil servants. During my time in the Treasury, and I am sure subsequent to that, we had many secondees from other departments who would work in our expenditure divisions. They would work effectively in support of the Treasury by running, very often, the expenditure policies relating to the departments from which they had been seconded. I had no difficulty with this. Indeed, when I first joined the Treasury, my noble friend Lord Kerr was on secondment from the Foreign Office to the Treasury in order to carry out the expenditure work of the MoD. These are everyday, bread-and-butter activities for civil servants, and I am confident that they can work very effectively.

Clearly there would be a problem if the executive members of the OBR were on secondment from the Treasury, but I assume that that is not what is in mind and that the mechanisms which have been put in place in terms of their appointments will safeguard against that. However, we must be realistic about these arrangements. As long as the senior people in the OBR are appointed under the correct processes so that they are independent, it should be for them to recruit the people who they think can carry out the tasks most effectively. To surround that with lots of restrictions is not only unrealistic but, as my noble friend Lord Turnbull said, very damaging.

[Lord Eatwell]

This is a tricky issue but the balance has been struck by a combination of the noble Lord, Lord Turnbull, and my noble friend Lord Myners. If the staff of the OBR is simply a rotating group of Treasury officials, the appearance of independence, which is so important to the OBR, will be endangered. We should remember especially the crucial independence of method set out in Clause 6(2). If it is a rotating group, it will carry with it the method that it brought from the Treasury. On the other hand, I recognise that we do not want to limit the career prospects of staff or the quality of staff; we want to get the best people we possibly can.

The Government cannot be complacent about this. The OBR will undoubtedly be under close scrutiny and it will not do for it to allow employment to be a revolving door connected to the Treasury. It is up to the Government to come up with an answer. If they want the OBR to have independence, they will have to find a solution to the staffing problem. I am afraid I do not have it; if I did I would offer it. Given its independent role under Clause 6(2), it is clearly a problem. However, I entirely agree that we should not in any way endanger the career prospects or the quality of the staff of the OBR.

[Lord Higgins]

My Lords, one could look worldwide and still fail to find better experts on the practical implications of this amendment than the noble Lords, Lord Burns and Lord Turnbull. There are obviously considerable practical problems and the Government have to face up to the fact that if these are insurmountable, then the argument that the previous arrangements on forecasting were biased and subject to ministerial interference and so on will be difficult to sustain if precisely the same people are making the forecasts now as were making them before.

The Minister shakes his head and I look forward to reassurance from him. However, one cannot simply let it rest and say that it does not matter because they are the same people. Given the overall intention of the creation of the OBR, one has the political problem that it should be seen to be independent.

[Lord Brooke of Sutton Mandeville]

My Lords, perhaps I may make an analogy which is completely separate from that that we have been discussing. The SAS is now one of the finest fighting forces in the world, frequently in much demand from the United States Army to work in conjunction with it. That organisation was founded in the desert in 1942 and people were asked to volunteer to join it. If they had been asked to resign all relationship with their previous regiment, I am not at all sure that they would have joined at that stage; nor that we would have had evolving out of 70 years of history the remarkable fighting force that we have.

[Lord Sassoon]

My Lords, we need to step back and, in answer to the fundamental challenge of my noble friend Lord Higgins, remind ourselves of just what is going on here. We need to remember that the people who were making these forecasts under the old way of doing it were essentially Ministers and their advisers, who plucked out from the numbers that the fine Treasury officials were putting in front of them, in some non-transparent way, the forecasts and published them.

In the new construct of the BRC we have Robert Chote and his two fellow members as the body charged with producing the forecasts. We should not lose sight of the fact that that is where the fundamental responsibility for decision on the forecasts will be made. What is needed under the new model—as it was under the old model—is the best possible group of forecasting expertise. The Government recognise that, yes, it needs to be independent and expert. The principal guardians will be the three independent members of the OBR, who must be allowed to hire the best staff. The arguments put forward by the noble Lords, Lord Turnbull and Lord Burns, and my noble friends Lord Newby and Lady Noakes are very persuasive. We do not want in any way to constrain the OBR from hiring and firing whoever it wants to hire and fire. But if we were to exclude it taking civil servants because civil servants would have to resign from the Civil Service, with all the consequences that that might mean for their terms of employment, pension and so on, that would significantly reduce the pool of relatively talented people that the OBR should be able to employ.

Sir Alan Budd, in his advice on the permanent OBR, noted the benefits of the office being established as a Civil Service employer. The noble Lord, Lord Myners, makes an important point, which is that as well as the OBR having freedom, the non-executive directors will take on a role, which is to consider the overall mix of people. There is not remotely a question of complacency here, but we should not invent a problem where there is not one and significantly restrict the potential pool of relevant expertise on which the BRC will need to call.

In answer to some of the questions from the noble Lord, Lord Barnett, about the situation at present, the OBR has 13 full-time staff. They are Treasury employees on secondment because, for as long as it takes noble Lords in this House and Members in another place to pass the legislation, they cannot be employed by anyone else. As soon as the legislation is passed and we put the body on a statutory basis—the sooner, the better, I say—lots of things will be put on to their proper basis, because the OBR will under paragraph 8(1) of Schedule 1 become an employer in its own right. Under the well established terms for Civil Service employment, staff can be transferred, remain within the Civil Service and maintain their Civil Service terms and have the ability to move. They might not necessarily move back to the Treasury, but take a completely different direction in their career.

There are 13 staff now supporting the BRC. Of the three BRC members, Robert Chote is full time and Stephen Nickell and Graham Parker are working, on average, three days a week at the moment. There is no question about the non-execs, because they do not exist. That is how it is at the moment. As the noble Lord, Lord Turnbull, indicated, the expectation is that the steady state of the OBR will be about 20 employees, but that is a matter for Robert Chote. He will make those decisions.

[Lord Higgins]

I intervene because I think that the Minister is winding up on this amendment. Why is it assumed that the staff of the OBR have to be people seconded from the Treasury? It is not as if the world is short of economic forecasters. One has only to look at the list of economic forecasters in the summary which the Treasury produces. Why do we feel that we have to second people from the Treasury rather than recruit them on a competitive basis?

[Lord Sassoon]

It is simply a matter of fact at the moment, because the OBR is not yet constituted on a statutory basis, that the employing body has to be somewhere else and, at the moment, it is the Treasury. The staff do not have to come from the Treasury. Indeed, I understand that an advertisement is out now publicly before the OBR to recruit an economist. It can recruit from wherever it likes; it has the resources to do that. The OBR will recruit to have an appropriate mix of knowledge and expertise, but the critical thing is that that it should recruit from wherever it would like to without any unreasonable hindrance. All the recruitment will be led by the independent, externally recruited members of the BRC. Even though it is not a formal employer at the moment, it is getting on and doing all the recruitment, totally independently.

17:30

[Lord Peston]

Perhaps I may interrupt the noble Lord. Do his numbers include secretaries, computer programmers and all the ancillary staff, or is he talking about frontline staff? I do not see how the OBR has managed to do any work at all if it does not have lots of ancillary staff. Am I wrong in that?

[Lord Sassoon]

No, the noble Lord is right. The figure is the total number of staff.

[Lord Peston]

That figure of 13 includes secretaries, PAs and computer programmers?

[Lord Sassoon]

I cannot give a breakdown of exactly what they all do, although it would be possible to do so. The office no doubt buys in all sorts of services, but that is the total number of staff. As I said, I believe that Robert Chote intends that when the office is totally established there will be about 20 full-time staff. That is the number that he believes will be needed.

[Lord Myners]

I find it extraordinary that the Minister has just disclosed to the Committee that the OBR has a total of 13 staff, including support workers and secretaries, yet the Government suggest that the OBR audited the Government’s forecast expenditure. Auditing is a demanding, challenging and fairly labour-intensive task, as the noble Baroness, Lady Noakes, will no doubt vouch. Auditing future expectations is extraordinarily difficult; to do it with only 13 people makes the use of that word totally inappropriate.

[Lord Sassoon]

There should be no surprise when I say that there are 13 people because I answered a Written Question asked by the noble Lord, Lord Barnett, almost exactly a month ago when the figure was 12. Now, it is 13. I received a note saying “IPA” but I did not say anything about that because I thought, “What does India Pale Ale have to do with it?”. However, I have now worked it out: the OBR has one PA. This is a lean and mean organisation. It includes secretaries and it has one PA. This is not a numbers game; it is a question of expertise and independence and, as has already been referred to, drawing on the underlying modelling base in Whitehall. The OBR does not require a superstructure of people to carry out the critical role that it does. If at any stage it decides that it wants more resources, it will have the ability—we will come to this in later clauses—to put forward the necessary request for money.

[Lord Barnett]

My Lords, I was trying to be brief. I introduced this amendment by asking just a few questions so that we might reach the target number of amendments that the Government want to reach today. I am not trying to delay the Committee but we have now spent 32 minutes on this amendment. I am not objecting to that; I welcome the views of Members of this Committee, such as the noble Lords, Lord Burns and Lord Turnbull, my noble friend Lord Myners and, indeed, the noble Lord, Lord Sassoon, himself, who have worked in the Treasury rather more recently than I have. I apologise for trying to be brief and for not expanding on what I might say at a later stage. However, I have now elicited a reasonable amount of information from the noble Lord, Lord Sassoon. I should make it clear that in no way am I or, I am sure, my noble friend Lord Peston seeking to obstruct Lord Chote—no, that comes later; I am making a forecast now. We are not seeking to obstruct the OBR from employing the best possible people.

I want to be crystal clear: like everyone else, we are both concerned about the independence of this body. As I indicated on Second Reading, I was not in favour of setting it up—unlike every other Member of this Committee—but we must have it. I do not object to that now but I want to know exactly what is going to happen. I was told by recent senior officials of the Treasury that people could be popping in and out and that there was no career structure. Perhaps the plan is that the OBR will be temporary, I do not know. I thought not; I thought it was another permanent independent forecasting body that was perhaps doing a lot more work than the Institute for Fiscal Studies or any of the other independent bodies. I would welcome any further information on that.

I do not wish to pursue the matter further now, other than to make clear that we are seeking to ensure the true independence—and the perceived true independence—of the OBR. I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendment 13

Moved by

[Lord Barnett]

13: Schedule 1, page 14, line 3, at end insert—
“( ) The Office must make public the nature and membership of any committee or sub-committee it sets up, and subsequently the report of any such committee or sub-committee.”

[Lord Barnett]

My Lords, this is a simple question and I hope that the Minister will be able to reply. I have nothing more to say. I beg to move.

[Lord Sassoon]

My Lords, Amendment 13 is intended to create a legal obligation for the OBR to publish the nature and membership of committees or sub-committees and to publish the reports of those committees. It is inconsistent with the right of the OBR under paragraph 11 of Schedule 1 to determine the procedure of any committee or sub-committee. We should not seek to fetter the way in which the OBR organises its committee structure and processes. While I am happy to talk at greater length, we should leave it up to the OBR to determine how its committees and sub-committees should operate. This would be consistent with everything that we have said about the independent and unfettered way that it should go about its business.

[Baroness Noakes]

I am sorry to interrupt my noble friend. The amendment asks simply that the nature and membership of any committee or sub-committee, and the reports of any such committee or sub-committee, should be made public. That does not fetter in any way the discretion of the OBR to set up those committees; it is merely part of the public accountability of the OBR to explain what it does and how it does it. It is quiet simple and I am not sure why the Minister is resisting it on the grounds that he has given.

[Lord Sassoon]

For example, if the OBR wished to set up a sub-committee to deal with internal personnel matters, it would not be appropriate that it should be required to publish details about that. We are making presumptions that sub-committees have a particular meaning. Perhaps we should step back for a moment. The output of the OBR is essentially the 150-page document that it has now produced, along with a number of other reports and analyses that it has already made, and it has set out plans for future work streams. We must remember that this is not equivalent to talking about the Monetary Policy Committee or the yet to be established financial policy committee of the Bank of England, which will have regular monthly meetings to make decisions about policy.

We need to be clear about this. The output of the BRC of the OBR will be a series of policy documents that will not come regularly out of a minute-taking and minute-making process. Perhaps I was presuming a bit too much in my brief answer. The committee’s structure is up to the OBR, but it is likely to have more to do with the governance and management of the entity than with the reporting that comes out in its major documents. In that context, requiring this straitjacket would be inappropriate for the nature of the entity.

[Lord Myners]

My Lords, I speak specifically to Amendment 14, which proposes that the budget responsibility committee should publish the minutes of its meetings. I wait with somewhat bated breath, but with diminishing hope, for the Minister at some point, having whetted our appetite on Monday, to find some sympathy for at least one amendment. I fear that this will probably not be the one that he chooses to approve.

It is pleasing, though, in proposing this amendment, to have the noble Baroness, Lady Noakes in attendance in Committee. My mind goes back to a debate on the Financial Services Bill. The Committee may remember that that Bill, which was produced by the previous Government, proposed the establishment of a council for financial stability. The Government proposed that the council’s minutes should be published. The noble Baroness supported that but went on to propose a number of amendments, including ones relating to the speed with which the minutes should be published and, importantly, a requirement that the minutes should attribute comments to individuals participating in the council rather than being produced in the style of the Monetary Policy Committee.

I hope that we are not now seeing a conversion in the thinking of the Conservative Party, which is the leading member of the coalition, in this respect. When it was in Opposition there was a great enthusiasm for transparency, now that it is in government I hope we are not going to hear arguments that transparency would not be appropriate. If I could be persuaded that there was an argument for publishing the minutes of the council for financial stability—which, noble Lords will remember, succeeded the rather less formal tripartite process—a body that deals with quite confidential matters relating to systemic and idiosyncratic risk relating to individual financial institutions, and if I believed that the party in Government supported the view that those minutes should be not only published but published promptly and in a full and detailed form with attributed comments, then I find it difficult to believe that the Conservative Party would not also approve the publication of the minutes of the committee of the Office of Budget Responsibility.

I go back to the points that were made earlier today by at least two noble Lords: that this proposal would further enhance the appearance of independence—and, no doubt, the effective independence—of that committee and, in so doing, facilitate the role that the Chancellor of the Exchequer and the Treasury clearly have in mind. I urge the Minister to recognise that in respect of transparency this is a good opportunity to ensure that the minutes of the committee of the Office of Budget Responsibility are published.

The Government are already committed to saying that the people who meet the committee of the Office of Budget Responsibility will be identified in announcements made shortly after major publications—I do not know whether such an announcement has already been made in respect of the OBR’s report earlier this week—but it is incomplete to say that the OBR met the Chancellor of the Exchequer on five occasions, Mr David Ramsden on four occasions and economists from the Bank of England on two or three occasions without letting us see how that information shaped and formed the thinking that went into the OBR report. That would be best evidenced through the publication of the minutes, which would allude to any such input that had an important impact on the ultimate thinking and conclusions of the committee of the OBR.

17:44

[Lord Peston]

My Lords, there are three amendments in the group, but I want first to say a brief word about the amendment spoken to by my noble friend Lord Barnett. I am intrigued by what is set out in the Bill: the setting up of a committee or sub-committee that may consist of or include persons who are neither members of the office nor members of the staff. I asked myself what this could possibly be about. The Minister decided that he did not like that by quoting the most trivial example he could have dreamed up, and went on to say that they might have set up a committee to deal with personnel matters and that that should not be known. I do not see why that should not be known; transparency means transparency, it does not mean “transparency but”. I want to know what serious argument the Minister could possibly put forward to explain why the office is not obliged to let us know if it sets up a committee. I had assumed that we were talking about a committee of experts on optimal forecasting methods and that sort of thing. We need a more serious response from the Minister.

A fortiori, the amendment tabled by my noble friend Lord Myners requires a serious reply. If you believe in transparency, would there be any circumstances why the minutes of the Budget Responsibility Committee should not only be published but be made available to the public at the same time as they are made available to the members of the committee? Both of those are matters of significance.

I come now to the third amendment in the group, just to say that it is also important. My noble friend Lord Barnett will enlarge on it in a moment, but again I hope that we are given a serious answer, rather than a trivial example to explain why the Minister does not like it.

[Lord Barnett]

I shall say a word about Amendment 34. It seeks to provide that:

“The Office will place in the public domain a record of all meetings with the Chancellor … and other ministers”.

When I tabled a Question for Written Answer on this matter for the noble Lord, Lord Sassoon, he asked Robert Chote to answer it. Mr Chote has duly written to me and I shall quote from it:

“We will be publishing a list of contacts between the OBR and ministers, special advisers and their private offices shortly after each autumn and Budget forecast, beginning with our forthcoming forecast on November 29th”.

I do not know when the list is going to be published and I have not seen it, but it is clear that regular formal or informal meetings with the Chancellor and other Ministers are a very important matter for an independent forecaster, one that is not available to our other 50-odd forecasters. So I hope we will have an answer to this very soon. That is the whole purpose of Amendment 34.

I shall not add to my remarks because I am trying hard to curtail my contributions so that we get to the target figure of amendments that the Government want to see dealt with. But far be it from me to prevent Members of the Committee speaking.

[Lord Turnbull]

My Lords, it seems that an analogy is being drawn with the Monetary Policy Committee, whose minutes are produced. What happens at the Bank is this. On the preceding Friday of the week in which the committee meets, the members spend the whole day going through virtually every possible economic indicator and receive reports from the agents around the country. That is a meeting, but no minutes are taken. I think the members then meet on the Tuesday afternoon and hold discussions during which they try to sift out what the main measures are to be. Again, there are no minutes, or certainly none that are published. The members then come together at the formal meeting, which is where they take decisions and where the minutes for the record are produced.

In other words, they do not produce a running commentary. We are told here that the BRC has more than 40 challenge meetings with officials from other departments, in addition to numerous meetings at staff level. That is complete overkill and, I would say, a false analogy with the Bank to assume that each of those meetings has to be minuted and published. This thing is published—there are 150 pages of it—and it is produced twice a year. Everything else is work in progress, which leads to the production of the report. We should be satisfied with the fact that it is produced, eventually, after talking to whomever the committee wants to and whatever progress it wants to make. Some of that will include what is or is not in the Budget; some of it goes to the nature of fiscal policy. What is eventually produced is this report. Those are the minutes and I do not think that we need anything beyond them.

[Lord Sassoon]

I am very grateful to the noble Lord, Lord Turnbull, who, I think, gets it absolutely right. There is a further point, which he did not stress, which is that the Monetary Policy Committee is a policy-making committee. It is therefore important to understand how policy, and the thinking behind the policy, is being made. The OBR is not making policy; it is producing forecasts. They are very important forecasts and that is a critical function, but it is not policy-making that requires minutes to understand.

[Lord Myners]

The Minister has made a very important point. Can he clarify whether, because the committee of the OBR is not making policy, any Freedom of Information enquiries made to the committee of the Office of Budget Responsibility will require the committee to disclose minutes of meetings? One of the exemptions that I found—both as a Minister when I was signing the exemptions and which I now find rather more frustrating when I am not getting the information I require—is that the information officer in the department has concluded that this relates to advice to Ministers on policy-making, and therefore the document cannot be disclosed. The Minister has made a clear statement that that committee is not involved in policy-making, and, therefore, that exemption from FOI inquiries will not apply. I hope that he can confirm that my understanding is correct.

[Lord Sassoon]

The noble Lord’s understanding is correct in so far as the OBR will be subject to freedom of information legislation. That is clear. Of course, the example that he gives is not the only exemption. I do not want to disappoint him, but he should understand that, as he well knows, there are other exemptions—for example, where disclosure could prejudice the effective conduct of public affairs. They will be subject to the normal tests. No doubt the commissioner will test them if people want to challenge any decisions, but it will be for the OBR to decide how it interprets the Freedom of Information Act.

[Lord Myners]

So, the OBR will have its own information staff—it will not be relying on the Treasury for that. Of the 13 people, there is now minus one who is doing FOI; minus two was a PA. I must note that when the noble Lord, Lord Sassoon, was an employee of UBS Warburg, he probably had more than 13 PAs, let alone 13 staff. Can he confirm that that number now includes a freedom of information officer in the OBR, and that it does not rely on the Treasury for that function?

[Lord Newby]

Surely there is an easy solution: make the PA also responsible for freedom of information.

[Lord Sassoon]

It is clearly up to Robert Chote how he deploys his staff and what they do. Noble Lords obviously have not quite grasped what is meant by the independence of the OBR. It means that it is for the office to organise its life. I have not the faintest idea how it will do it, but I am sure that it will do it professionally and appropriately and that it will devote the necessary resources.

In answer to another question, I was going to quote from page 3 of the OBR report to summarise the contacts that it has had in the build-up to producing its 150 pages, but the noble Lord, Lord Turnbull, has already pointed to the key paragraph. The OBR made it clear that it would publish the list of contacts, which, as it promised, is coming out this week, shortly after the publication of the report.

Nothing in the Bill stops the OBR publishing any minutes, reports or documents of any kind that it wants to. As well as focusing on the critical point that we should not require it to produce minutes for the sake of minutes when the output is forecasts rather than policy-making discussions, it is also important that we should recognise that if it wants to disclose anything about the way in which it goes about its business, it is entirely free to do so. It can draw on external expertise. It might have committees with external experts. There is nothing to preclude that. The core executive functions cannot be delegated, though, and the minimum output will be the two formal reports per year. However, it is already also producing a considerable amount of other information, and it will do so in future. It is for the office to be as transparent as it thinks is appropriate, consistent with its mandate.

I do not for one minute take this to be a trivial point. I made the comparison with the MPC because it is critical. However, the amendments would require the OBR and the BRC to do a number of things that on the one hand are not required—consistent with the principles of accountability, transparency and independence—and, on the other, would put minor straitjackets on it that are not necessary because it should be free to publish whatever it sees fit to publish.

This has been an interesting discussion. I am sympathetic to some of the objectives that are desired, but I am afraid that the amendments in this group do not add anything to the underlying purposes, which I understand are well intentioned. I ask noble Lords not to press their amendments.

[Lord Desai]

Perhaps I might try once more. There was a birth trauma when the OBR was established, and its independence was undermined by what happened. Sir Alan Budd has publicly said that he suffered as a result. We are trying to help the Government to re-establish trust in this body. They have taken the view that they have done enough—but that is what they said last time. It is fine for them not to accept the amendments, but they will harm the reputation of the OBR.

18:00

[Lord Barnett]

My Lords, again I intended this to be a very brief debate, but already it has taken 22 minutes. I am obliged to the noble Lord, Lord Turnbull, for replying to my amendment. Sometimes I have the feeling that he is a frustrated ex-permanent secretary who, having taken control of Ministers, the Opposition and everybody else, now finds himself having to listen to arguments that he would have dismissed out of hand before. I hope that he will forgive me. I appreciate what he said, except when he claimed that there was no analogy between the MPC and the OBR. I deliberately never referred to the MPC. I more than recognise the difference between the MPC, which was given a job to do under the Bank of England Act, and the OBR. I recognise that the OBR is a forecasting body, but it looks as if it will be rather more, judging by the 150-page document before us.

The Minister, who has formally replied to the debate in place of the noble Lord, Lord Turnbull, said that once again—in Amendment 13, I think—we wanted to say something that was unnecessary because the OBR can do it anyway. Again, though, if it can do it, why not leave it in the Bill? However, we will come back to that on another occasion. Meanwhile, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendments 14 and 15 not moved.

Amendment 16

Moved by

[Lord Eatwell]

16: Schedule 1, page 15, line 18, at end insert—
“( ) The budget for the annual operations of the Office for Budget Responsibility shall be published, and be available for scrutiny by the Treasury Committee of the House of Commons.”

[Lord Eatwell]

My Lords, a well known and effective method of controlling any nominally independent body is by controlling its budget. Under this Bill, the budget of the OBR is clearly controlled by the Treasury. In Schedule 1(15)(1), we are told:

“The Treasury may make to the Office such payments out of money provided by Parliament as the Treasury considers appropriate for the purpose of enabling the Office to meet its expenses”.

If the OBR were not behaving in a manner that suited the Government, perhaps by undertaking a number of extra studies that cast the implications of government policies in an unfortunate light, the easiest way to discipline those independent-minded souls without going into any fuss about independence would be to cut their budget, forcing them back to their core function. Control of the budget is an important means of controlling an organisation.

All that the amendment proposes is that the budget be published and made available for scrutiny by the Treasury Committee of another place. That would give the Treasury Committee the opportunity to have its say on whether any inappropriate limitations were being placed on the operations of the OBR. Amendment 16 provides the scope for the Treasury Committee to act as the financial champion and protector of the independence of the OBR.

Noble Lords may have noticed a theme running through the amendments that my noble friends and I have proposed. We are attempting to enhance the independence of the OBR, and I am surprised that the Minister is resisting that attempt. I beg to move.

[Lord Higgins]

My Lords, I presume that the Minister will confirm whether the budget is going to be published. If it is, clearly the Treasury Select Committee could have a look at it if it wished. It seems more likely, however, that it would be examined by the Public Accounts Committee rather than the Treasury Committee, having already been looked at by the Comptroller and Auditor-General.

[Lord Burns]

My Lords, I support the spirit of this amendment for the reasons put forward by the noble Lord, Lord Eatwell. I am sure that no problems with the budget will arise during the early years of the existence of this body. Indeed, it has probably already been agreed in the present expenditure round. But if we are going to safeguard the OBR into the future, it is necessary to have a system of public accountability and the opportunity for the executive members and perhaps the non-executives to be questioned by the Treasury Select Committee whether they think the resources being made available to them are sufficient to do the job. On this occasion, I disagree with the noble Lord, Lord Higgins, because this is an issue that falls to the Treasury Select Committee as the body with oversight of the extent to which the OBR is doing its job effectively.

In most cases I suspect that these issues would arise naturally, without having to include them in the Bill, so I shall listen carefully to what the noble Lord, Lord Sassoon, has to say in reply. As I said, however, the spirit that is captured in the amendment is an important safeguard in terms of the future of the OBR. That is because in five or 10 years’ time, the circumstances surrounding the body may be very different.

[Lord Sassoon]

My Lords, let me see if I can help by making clear what is actually going on and what is intended here. The first point to bear in mind is that HM Treasury is not incentivised to underfund the OBR because it will be relying on the office to produce the official forecasts. We need to bear it in mind that the OBR provides a critically important component to feed into the Treasury’s economic and fiscal policy-making. I am not sure what the circumstances could be in which the Treasury would want to starve the OBR of funds because it provides such a critical service to the Treasury itself.

The second point is this. Noble Lords may not have seen it, but the funding has been put in place not for one year but is committed through the spending round period from 2011-12 through to 2014-15. The spending letter from Sir Nicholas Macpherson, the Permanent Secretary to the Treasury, has been published by the OBR. It makes it clear that the funding allocation is £1.75 million per year flat cash at a time when the Treasury group settlement is minus 33 per cent. The position for the next few years is clear. Sir Nicholas goes on to say in his letter:

“Should you find that you are unable to manage within the constraints of this allocation, please raise this with me at the earliest opportunity”.

So the initial funding is in place with an open invitation—which, as I have said, is very much in the interests of the Treasury—to the OBR to raise any matters of any potential underfunding. Robert Chote himself highlighted the importance of the OBR’s funding position when talking to the Treasury Select Committee:

“If you accede to my appointment and I find myself being squeezed in that way, this Committee will be hearing about it very promptly. That’s how we make that public and ensure that those sorts of pressures do not go unremarked”.

He is clear in the substance about where he would immediately go.

There are a number of specific safeguards in the legislation that go further. Schedule 1, which provides for the funding arrangements, ensures that the OBR’s independence and effectiveness will be protected. There will be a separate line for the OBR in the Treasury Estimate and the body will produce its own accounts which will be laid before Parliament. Furthermore, it will be able to submit an additional memorandum alongside that of the Treasury, which will be submitted to the Treasury Select Committee.

[Lord Eatwell]

Will the noble Lord give me the paragraphs in Schedule 1 in which those propositions appear, so that I can follow his argument?

[Lord Sassoon]

I will come back to the noble Lord on that: I do not have the Bill in front of me. The point that I was going to make was that there will be a role for both the Treasury Select Committee and the Public Accounts Committee in relation to the expenditure of the OBR. The Treasury Select Committee will take an interest in whether there is any pressure caused by inadequate funding of the OBR. In addition, because the accounts of the OBR will be audited by the National Audit Office, the Public Accounts Committee and the NAO can be expected to take a critical interest not only in the accounts themselves but in any conceivable underfunding that the accounts reveal. Any future Chancellor who attempts to impose any underfunding will get caught, both because the chairman can go to the Treasury Select Committee and can go public at any stage, and because the accounts will be subject to audit. It is paragraph 15 to which we should turn.

[Lord Eatwell]

I thought that it was, but paragraph 15 does not contain the propositions that the noble Lord suggested were in Schedule 1. Paragraph 15 is very short and consists simply of two short sub-paragraphs.

[Lord Sassoon]

Paragraph 15 provides for the Treasury to make payment of grants in aid from the resources devoted by Parliament, as reported in the Treasury Estimates. That brings with it various responsibilities to report the estimates, in this case in a separate line in the Treasury Estimates. I refer also to the production of accounts and the voluntary ability of the OBR to publish any additional memorandum that it wishes. In the incentivisation of all the parties concerned, and principally the incentivisation of the Treasury not to underfund, there is an alignment of interests.

Secondly, in respect of the formal reporting position, through the accounting, Treasury Estimates and the ability of the Treasury Select Committee, the Public Accounts Committee and the National Audit Office to look at the numbers, there are many formal structures. In addition, we have a funding letter agreed by the Permanent Secretary to the Treasury and the chairman of the Office for Budget Responsibility that covers the period up to 2014-15—a settlement that is markedly more generous than the Treasury's own and that contains an explicit invitation for the chairman of the OBR to come back to the Treasury at the earliest opportunity if they find that they are unable to manage within the constraints of the allocation. This is very important and, as with many issues that we are discussing today, there is no difference between us on the objective. There are plenty of safeguards already in place in the legislation and the development practice between the Treasury and the OBR.

[Lord Eatwell]

My Lords, I am grateful for the Minister's reply, although I am still confused about what he thinks is in Schedule 1 and what he thinks is not. I will deal with the points that have been made. First, the noble Lord, Lord Higgins, echoed by the Minister, talked about the role of the Public Accounts Committee and the Auditor-General. They will audit the accounts for honest and true accounting, efficient management of funding and so on, but they will not be sensitive to the issue of the independence of the OBR and its activities, and the degree to which they are constrained by budgetary methods.

18:15

[Lord Higgins]

Some years ago, the Comptroller and Auditor-General and the PAC agreed that the Comptroller and Auditor-General could carry out value-for-money examinations. So it could do that.

[Lord Eatwell]

Absolutely. I agree with value for money, but the issue that we are discussing is the independence of the OBR in the pursuit of its activities. It may have pursued a constrained raft of activities very efficiently, providing good value for money, but the issue is the constraint. The Treasury Committee would be sensitive to exactly that kind of issue. That is why I have incorporated the Treasury Committee into my amendment.

[Lord Sassoon]

Perhaps I may help the noble Lord on the point of sensitivity. He is absolutely right: the Treasury Select Committee is sensitive to the point and has taken it into account already. It may help him to know that the Treasury Committee issued a press release on 12 October—perhaps he has not seen it—headlined, “Treasury Committee Chairman Welcomes Chancellor’s Statement on the OBR”, particularly on this point. The press release stated that the chairman, Andrew Tyrie, said:

“It is vital that the OBR has the resources it needs. The Committee will monitor this carefully: the Terms of Reference suggest that the Treasury accepts the importance of transparency and separate disclosure, and we will have the information we need to do our work”.

I am grateful to the noble Lord for raising the question of sensitivity, but I trust he notes that the Treasury Select Committee has already said that it believes that what is proposed meets its requirements.

[Lord Eatwell]

The Ministers might care to look over their shoulders; they are being handed advice.

There are two points here that the Minister is getting wrong. First, on the business of being incentivised, of course the Treasury is incentivised to fund the OBR to do the things that the Treasury wants it to do; it is not incentivised to fund the OBR to do things that it does not want it to do. That, I am afraid, dismisses the incentivisation argument. It just does not make sense.

The second point concerns the funding in the current spending round and the comments by Mr Tyrie about that funding, which I welcome, but which do not address the point made by the noble Lord, Lord Burns, about the future. That is what the amendment is about; it is not about what is happening now. As far as concerns the Treasury Committee, the launch funding seems to be adequate—maybe even generous—but the question is whether we are to provide a mechanism in the Bill that will prevent future Administrations using the budget as a constraint on the OBR. It is the most effective constraint of all because no one really notices it.

If we are going to secure the independence of the OBR in the Bill, we should take the position supported by the noble Lord, Lord Burns, and clearly by Mr Chote, who said, “I will be off to the committee”. Let us ensure that the committee has full information and powers to recognise the chairman of the OBR at an appropriate time, and to defend him. We are not talking about subvention or incentivisation. The incentivisation argument is false—it is the other way round—because, if the Treasury is incentivised, it is of course incentivised to stop the OBR doing things that it does not want it to do.

Let us think about the future of this organisation and ensure that it has the independence that we seek. I will return to the issue on Report, because it is important. I am most encouraged by the support of a former Permanent Secretary, who has identified this as an important issue.

[Lord Sassoon]

Since the noble Lord is coming to the end of his remarks, I wanted to put something into, if you like, his work plan for thinking more about this matter before Report. This is another point that I had thought hardly needed to be made. The grant-funded NDPB model which we are talking about is common to a great many credibly independent bodies such as the Advisory, Conciliation and Arbitration Service and the Equality and Human Rights Commission. I do not believe that there is any question of funding for other grant-funded bodies of this sort being compromised. They produce explanatory memoranda; the OBR can produce an explanatory memorandum, which will go to parliamentary committees for scrutiny. I simply put on the table that if the noble Lord wants to go on thinking about this, he should also consider the read-across to other NDPB models.

[Baroness Noakes]

Before the noble Lord, Lord Eatwell, takes this away to consider before he comes back on Report, he might want to look at the debates on setting up the Statistics Commission. Very similar points were raised at the time. Although it was a non-ministerial government department rather than an NDPB, the principles are exactly the same. When I sat on that side of the Grand Committee, the concerns were that insufficient resources would be made available to the Statistics Commission to enable it to do the work that it needed to do because it was to be subject to Treasury control.

One of the arguments, which I am not sure has been fully deployed, although many good arguments have been, is that the annual report required by Schedule 1 is the vehicle for the body—the Statistics Commission in that case, and the OBR in this case—to say exactly what it wants. The Treasury has no ability to stop anything being put in the annual report, which must be laid before Parliament. This is in addition to the undoubted ability of Robert Chote to get Mr Tyrie to obtain a Treasury examination if he thought there was a problem, which can be done by informal means. Therefore, Mr Chote has a formal means of bringing to the attention of the wider public any concerns that he has about funding.

[Lord Eatwell]

I am grateful to the noble Baroness. She has given me some ideas to think about. I will go away and think about these things. It would be nice if we felt that the Government were going to do some thinking as well. We have an important issue here, which we will perhaps relate to the annual report. That is an interesting idea and I will look up the debate to which the noble Baroness referred. In the mean time, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Schedule 1 agreed.

Clause 4 : Main duty of Office

Amendment 18

Moved by

[Lord Higgins]

18: Clause 4, page 2, line 20, at end insert “on the basis of section 1(2)(a) and (b)”

[Lord Higgins]

My Lords, Clause 4 states:

“It is the duty of the Office to examine and report on the sustainability of the public finances”.

The amendment proposes to insert at the end of that passage,

“on the basis of section 1(2)(a) and (b)”,

which, as we have already discovered, state that the charter should set out,

“the Treasury’s objectives in relation to fiscal policy and policy for the management of the National Debt”,

and the means by which the Treasury is going to achieve that. It is important to refer back to the earlier passage to be clear about how the OBR will carry out its duties.

I still have considerable problems in understanding how it is going to look into these matters without also examining the Government’s economic policy—a matter that we spent a long time on in the previous Committee sitting. In the mean time, however, we have received a letter from the Minister commenting on that aspect. It is closely written and very condensed, and it deserves careful study. I presume that it is being placed in the Library so that it will be generally available.

[Baroness Noakes]

Is this a letter that only the noble Lord has received from my noble friend the Minister?

[Lord Peston]

We have all been given one. They are over there.

[Lord Higgins]

Has my noble friend now got a copy?

[Baroness Noakes]

Yes. This is an unorthodox way of distributing letters to Peers.

[Lord Higgins]

I presume that the Minister was seeking to be helpful to the Committee so that we should have it in advance of our discussion.

[Lord Sassoon]

The letter was intended to be helpful in advance of our discussion. It was sent around by e-mail earlier today, but noble Lords may not have seen it. I do not know who received it and I am not sure exactly what time it went out. Hard copies are available here in the Moses Room and it is now, or soon will be, on the Bill’s website. We tried to distribute it in as wide a way as we could.

[Lord Higgins]

In fact, as my noble friend has discovered, the letter was also available to the Committee today. In it, this complicated issue has been very condensed, and we will no doubt wish to return to it later.

As I say, I still have problems in believing that the OBR will carry out its duty in the terms that I quoted earlier unless it can take into account the Government’s general economic policy, which is one of the means in subsection (2)(b) by which the Treasury intends to achieve its fiscal policy, otherwise known as the fiscal mandate. In any event, it seems to clarify the situation if we accept the wording in the amendment.

Amendment 27, proposed by the noble Lords opposite, is, rightly, linked with this amendment. It raises an important point: what is meant by sustainability? The essence of what I understand that the OBR is going to do is report on whether the fiscal policies—and, I thought, the economic policies—are sustainable. At this stage, so that we have some idea what we are talking about, we need a clear definition from the Minister of what is meant by “sustainability”. One problem, of course, is that one can sustain the finances at various levels. Without knowing what the economic policy is, it will be difficult to know at what level it is proposed to sustain the financial side of the Government’s operations. We need to know, since it is in the Bill and it is important, what “sustainability” means.

[Lord Barnett]

My Lords, the noble Lord, Lord Higgins, has referred to Amendment 27 in the name of my noble friend Lord Peston and myself. The amendment itself says:

“In any report on the sustainability of the public finances, ‘sustainability’ must be defined”.

I have tried hard to obtain some kind of definition of “sustainability” in the sense in which the Minister has used it—I have tried to elicit information on many of the words that he has used, as he knows—but that word, in some of the contexts that it is used, is a little difficult, to say the least. That is why we tabled the amendment; we need to know what is being talked about here.

Again, I have tried to be helpful and brief. I would like the Minister to explain briefly what is meant by “sustainability”.

18:30

[Lord Peston]

My Lords, the noble Lord, Lord Higgins, put his finger on the central issue that we debated at some length on Monday and on which I have since had a chance to reflect. The Government seem to be taking two positions. One is that it is possible to separate economic policymaking from economic forecasting. I used to lecture on this subject and I can say categorically that that is simply nonsense. I cannot believe that any serious economist would accept that the two can be separated. In fact, the correct position is entirely the opposite. The optimal macroeconomic policy and the optimal macroeconomic forecast are part and parcel of the same piece of economic analysis. That enables one to focus, first, on the major difference between some of us and the Government on this matter.

The second position, again echoing the noble Lord, Lord Higgins, is that however we define sustainability—several of us could try and I will have a go at it when we get to Report—the presumption that one should not make, and indeed economics tells us that exactly the reverse is the case, is that there is one unique state of government finances that is sustainable, rather than a multiplicity of such states. Therefore we must not make the error of assuming that there is only one sustainable policy, whatever the definition is.

Finally, since Monday I have had a chance to read the Economic and fiscal outlook. It reminds me of a debate that has been going on in economics for about 100 years, which is normally encapsulated in the phrase “measurement without theory”. The great Nobel prizewinning economist attacked the founders of the National Bureau of Economic Research because they were great believers in measuring, but in doing so without theory. I am in a tiny minority here because I do not think much of this report as a piece of economics. It is an example of economic forecasting without theory, and that is really not the way to do it. So my intervention is to make it clear that we need some clarification from the Government, and what we need to accept that there are many possible policies that might be pursued, along with many sustainable positions.

[Lord Sassoon]

My Lords, I regard the question of sustainability as very important, so much so that although I will give a brief definition, because I have been asked what the Government mean by it, the critical issue for the OBR is concerned is that it should have an unfettered ability to look at sustainability in its broadest sense. I see that the noble Lord, Lord Peston, is nodding in agreement. The main objective here is not to constrain the OBR by giving it some sort of government laid-down definition of sustainability—there is more nodding, for which I am grateful—so while I can give my own overview definition of sustainability, that rather misses the point. Sustainability is part of the Treasury’s overall fiscal policy objectives, and to the Government, the sustainability of the public finances means putting them on a footing from which they can withstand shocks. It means keeping the deficit down so that debt does not spiral out of control. That is the fundamental of it, and it is the Treasury’s responsibility to make policy that supports sustainable public finances. That would be my overview of where we start.

The important point is that the OBR should take this matter away. It seems to have indicated that this is not an easy thing to do, and has already made that clear in its remarks both in the Pre-Budget forecast earlier this year and in the November document, the Economic and fiscal outlook. The OBR talks about what it has done, and critically it says that it will examine the issue of sustainability in detail in the fiscal sustainability report due next summer. That is at paragraph 5.25 on page 140 of the latest document. There is a section on sustainability and, indeed, a chapter on fiscal sustainability, including, on page 55 of the pre-Budget forecast document, lots of complicated equations that are beyond my grasp of economics. The OBR is already, quite rightly, beginning to analyse this. It recognises that a lot more analysis is to be done, including looking at the implications of a number of relevant government policy areas and reviews. It has set all that out. The critical thing here is that we make sure that the OBR is allowed to do that unfettered.

I would not necessarily want to constrain the OBR in the way suggested by Amendment 27. I am sympathetic to the principle, because I think that it absolutely has to explain the context of any work that it does on sustainability.

[Lord Peston]

The amendment is not meant to constrain the OBR; it simply asks it to tell us what it has in mind, which I think is what the Minister is saying.

[Lord Sassoon]

Indeed. The question is: what is appropriate to put in the legislation? There is an element here of risking treating the OBR inappropriately by telling it to do things that are clearly already self-evident to the OBR, in that it has already started to make significant comments on sustainability but is not rushing to final conclusions or making it the subject of a separate major piece of work. Therefore I am absolutely sympathetic to the principle but I am not sure that we should get into the game of writing down everything that the OBR is to do. The question this provokes in my mind is whether anything more should be said about this point in the charter. If there is any more to be said, it should be in the charter, and it is in that context that I should like to reflect on the substance of Amendment 27.

Amendment 18 makes an explicit link between the OBR and the Treasury’s objectives and mandate. I absolutely agree that it is important for the OBR to work in the context of these objectives and the mandate. Therefore, the purpose behind my noble friend’s amendment is entirely appropriate but I am a little concerned that, taken particularly with Amendment 30, it would not provide sufficient protection to keep the OBR out of what could become broader and politicised debates about policy scenarios.

I have thought about this carefully. I believe that the current design achieves a balance for the broad remit for the OBR with a sufficiently clear focus on government policy, and any amendment in this area would need to ensure that that careful balance was protected. I am worried that the amendment might challenge that. As I said, I believe that the substance of what is intended is already in the Bill. I very much took to heart the words of noble Lords on this area at Second Reading, including those of the noble Lord, Lord Burns, who noted the importance of the OBR not being drawn into wider political debates and not opining on alternative policy options. We have to keep the OBR focused on the fact that its forecast has to be of the economic policies that have been decided by the Government. However, we should not through inappropriate drafting risk taking the OBR into debates about the policy itself.

I shall continue to think carefully about whether we have got the balance right, but I hope my noble friend understands that we may risk drawing the OBR into something wider than I suspect he intends. I ask him to withdraw the amendment.

[Lord Higgins]

My Lords, we are in danger of getting involved in metaphysics rather than econometrics. The absolutely central thing in the Bill is that the main duty of the office is to examine and report on sustainability. To say, “Oh well, the OBR itself will decide what is meant by that” when it is in the Bill is not a satisfactory situation. We have to have some idea of what is meant by it.

As far as the individual is concerned, it is fairly clear: if your expenditure is more than your income, the position is not sustainable—except, of course, that you can delay the proceedings by borrowing and so on. The same is not totally untrue as far as the Government are concerned. In the light of the earlier clauses to which I referred, is the OBR going to say, “The way the Government are going will not work. Their fiscal objective”—in the simple terms I have just outlined for an individual——“is not sustainable”? The same would have been true if the OBR had been reporting earlier on the position of the Irish Government. It could have said, “This is not sustainable. You will either default, have to be bailed out—which may or may not be a sustainable position—get out of the euro, or whatever”. Is the OBR going to say, as perhaps it might have said to the previous Government, “What you are doing is not sustainable”?

We have taken the clear position as an incoming Government that what the previous Government were doing was not sustainable; in short, they were going to go bust unless they could continue borrowing enough to stay afloat. Is this what is meant by sustainability? It probably is but, if so, we at least need confirmation from the Government—not from the OBR—that it means, “You cannot go on doing this without various other consequences following”.

[Lord Sassoon]

My Lords, I tried to make clear in summary what the Government understand by “sustainability”. It encompasses the thinking of my noble friend, which is the bare minimum that anyone would understand by “sustainability”. I want to allow the OBR to interpret it further. The noble Lord, Lord Peston, shakes his head. I say it is the bare minimum but I want to give the OBR the freedom to interpret “sustainability” in as wide a way as it thinks appropriate. Of course the OBR can and should say that the public finances are not sustainable if it considers that to be the case. It has written on sustainability already and will do a lot more work. I do not want to constrain it with a government definition that people may criticise. Having said that, there is a need for further consideration to ascertain whether the matter of sustainability can be reflected in the charter. However, it should not be done in a way that lays down a government definition of it.

[Lord Higgins]

That is a very helpful reply, if I may say so, but we cannot go along with the main object of the whole thing not being more clearly defined. Could my noble friend discuss it with the OBR and, before Report, get some idea of the answer?

18:45

[Lord Sassoon]

My Lords, as I have said, I am happy to discuss it with the OBR again, but it clearly believes that this is a very difficult issue, which is why it has made some opening comments, if you like, on sustainability in both its June and its November documents. It will make it the subject of a self-standing report—I assume, a significant one—next year, which is in its programme. It has already said that sustainability in its full richness cannot and should not be rushed or reduced to a simple formula. It wants to lay its thinking out in detail, and we should allow it to do that.

[Lord Higgins]

I beg leave to withdraw the amendment, but as the noble Lord has kindly produced a letter on the earlier part, perhaps he might try, before Report, to produce a letter on this issue.

Amendment 18 withdrawn.

Amendment 19

Moved by

[Lord Eatwell]

19: Clause 4, page 2, line 20, at end insert “in the light of the Government’s economic policy”

[Lord Eatwell]

As Amendment 19 bears on the debate we have just had, I thought that it would be entirely appropriate to go beyond our target and deal with it so that we can tuck it out of the way. Amendment 19 is intended to make clear exactly within what context the issue of sustainability might be considered. The term “sustainability” has no meaning in and of itself, as we have just discussed, unless we simply define it as “not spiralling out of control”, which I think everybody would accept as perfectly reasonable but somewhat trivial.

The reason that it has no meaning in and of itself is the interaction of the public finances with what is happening in the rest of the economy. It was very useful to see the first attempt at a discussion of sustainability by the OBR in its recent report. As I pointed out in my remarks on the Autumn Statement, the definition of sustainability which the OBR presents in that report is a surplus of 2.1 per cent of GDP on the Budget. I remarked then, and I remark again, that that is completely unsustainable. It is unsustainable because a Budget surplus of 2.1 per cent, with the normal balance of payments position of the past 10 years or so of minus 1 per cent of GDP, would imply that the private sector was accumulating debt at a rate of 3.1 per cent of GDP. That is unsustainable for the private sector.

I have already had some correspondence with Mr Chote on the matter. The OBR got that wrong, and it shows how difficult it is to encapsulate the notion of sustainability without referring to the general economic context. Let us take the example of Ireland, which was raised by the noble Lord, Lord Higgins. In 2007, prior to the crisis, the Irish Government were running virtually no deficit and had a debt to GDP ratio of 12 per cent, one of the lowest in the developed world. Yet they were pursuing an economic policy, with respect to what they were committing their banking sector to accumulate, that was unsustainable. If you just looked to the Government, everything looked great. They were pursuing exactly the policies that one would define as sustainable. If you took it in the context of the economic policy and the economy as a whole, it became unsustainable; just as the OBR has made the mistake in its report—I know that it will change it because it has good economists who will see the point very quickly—of pretending that a government surplus is the basis of sustainability.

Let us just look at the history: Governments have not had a surplus for 200 years but they have continued perfectly well. Indeed, it is important for the Government to run a deficit; otherwise there will be a major shortage of government bonds for pension funds and the insurance industry. In fact, our financial sector would be wrecked if the Government did not run a deficit. The Government can run a relatively small deficit, which will see the level of debt to GDP stable, perhaps even falling. That would be entirely sustainable and would not spiral out of control.

I suggest that introducing the phrase,

“in the light of the Government’s economic policy”,

solves the Minister’s problem. It says that we will look at sustainability in the round and it creates that notion of “in the round” for the OBR to work on. Once again, we have managed to solve a problem for the Minister, and I hope that he recognises that a solution has been provided for him. I beg to move.

[Lord Burns]

My Lords, I have been struggling with this debate. I have had difficulty in seeing where it was going. When I looked at the amendment of the noble Lord, Lord Eatwell, I thought, “Surely everyone assumes that that is the way that it will be done in any case”. In that sense, I am not sure what the amendment adds because I do not understand what the counterfactual position would be if the OBR tried to do an analysis of sustainability that was not in the light of the Government’s economic policy. To the extent that the amendment would clarify a situation if there were any real doubt about whether that would be the position, then I can see that it has merit.

I am not contradicting what the noble Lord says about how this should be done. I would expect the OBR to do it in that way, largely because I cannot see how it would do it in any other way; it would be rather limited. My assumption is that the response to this will be, “It isn’t necessary because everyone would assume that this was the way that it would be done”. I agree with everything that the noble Lord has said about how one would hope that this would be done; my only question is whether the amendment is necessary.

On the question of how far one wants to spell out the issue of sustainability, my preference would be to leave the OBR to give its own definition and present its own analysis. It would then be up to others to question whether it had done that correctly, whether it had missed out something in its definition of “sustainability” or whether the analysis was too narrow and should have been broadened. That could easily be a subject for debate after the OBR had presented its report, and no doubt it would then be taken into account when it made its next report.

If we follow much of the debate that has gone on, and if we are setting up something that we hope will last a long time, I am conscious of the fact that there are not many aspects of economic policy that remain unchanged for long periods of time. People’s interpretations of words and policies move over time. I would be cautious about trying to be too specific about what we mean by “sustainability”. In the broadest sense we understand what it means but, if circumstances were to arise that required a different definition or we had to assume that the Government would react in some way in future to certain types of events and that were to be built into the analysis, that could be done.

I find myself agreeing with the amendment, but I question whether it is necessary or whether it would not be assumed that what it suggests would already be the case.

[Lord Sassoon]

I am grateful to the noble Lord, Lord Burns. I think that he gets it right. I am sympathetic to the underlying concern of the noble Lord, Lord Eatwell, to try to solve a problem. The analysis of sustainability—the main duty of the office—has to have regard to, and be in the light of, the Government’s economic policy, so I do not think that there is any other way of doing it. Of course we must get the technical drafting right on this. In so far as there is any potential problem, we need to get it right.

I sometimes find the drafting of these things a bit obtuse, but I am advised by the experts on how these things are drafted that Clause 5(3) deals with the issue that the amendment is intended to remedy. That subsection states:

“Where any Government policies are relevant to the performance of that duty, the Office may not consider what the effect of any alternative policies would be”.

[Noble Lords]

Oh!

[Lord Sassoon]

It seems to deal with what should be excluded rather than what should be included. Due to the way that legislation is constructed, however, I am told that by referring to what should not be considered, the link to what should be considered is there by implication and hard-wired into Clause 5, which is the critical provision on how the main duty is to be performed. I am advised by the experts on these matters that we have in the Bill what is technically necessary to make the link through to the Government’s economic policy. Further to that, we have to be careful—this very much relates to the point made by the noble Lord, Lord Burns—because there are a lot of other matters in here that may come and go, to which the main duty of must have regard. Yes, it relates to economic policy, but what about the Government’s taxation and expenditure policies? What about the potential for the impact of external shocks? There is a danger here that if we agreed to the amendment, it would boilerplate the importance of the duty being carried out,

“in the light of the Government’s economic policy”.

I agree with the noble Lord, Lord Burns; how could it be any other way?

[Lord Burns]

I had assumed that the term “economic policy” encompassed all of the things that the Minister has just mentioned—taxation policy, expenditure policy, pensions policy or anything that would affect the public finances in one way or another.

[Lord Sassoon]

Again, I am advised that the drafting of the amendment would not necessarily achieve that end. If we include “in the light of economic policies”, even if it was widely interpreted, does that mean we should refer also to other aspects of sustainability, such as, for example, the impact of external shocks? I believe that the subsection works, even as drafted. We absolutely agree with both noble Lords in terms of what we expect to be taken into account, but we do not consider that the amendment will help. Its drafting does not do the trick and, I am advised, aims at something which is not necessary because we have it in Clause 5(3).

[Lord Higgins]

I have, in fact, tabled an amendment to Clause 5(3)—Amendment 30, which we shall come to in due course. However, long experience in these matters suggests that occasionally when one is discussing a Bill, it becomes apparent at what stage the parliamentary draftsman had a nervous breakdown. If the advice given by the parliamentary draftsman is that in some way Clause 5(3) is helpful in defining the point that we are discussing, I find that very surprising.

[Lord Eatwell]

Perhaps I may follow up that point. If Clause 5(3) is supposed to in some sense incorporate the notion of government economic policies and the definition of sustainability, it is obscurantist to an extreme degree. The subsection does not say that, and normal reading would not reflect that. It is a sort of philosophical point suggesting, “Don’t listen to what I say; listen to what I mean”.

I must say that what is written here does not in any common-sense manner refer in a constructive way to the point that we have been discussing. It is nonsensical to suggest that the clause provides the qualification that is required. If by some extraordinarily convoluted legal argument it does, there is an extreme lack of clarity here, and it is the Government's responsibility to make this clear. There is a severe deficiency of drafting in the Bill if the clause purports to refer in a constructive way to the matter that we have been discussing.

19:00

[Lord Higgins]

My Lords, Clause 5(3) on page 3 of the Bill is the subject of Amendment 30. However, I entirely agree with what the noble Lord said a moment ago: one cannot conceivably construe that subsection as in some way qualifying the issue that we are now debating. If that is the advice that my noble friend is getting from the parliamentary draftsmen, who of course are paid far more than anyone else in the Civil Service, it is an extraordinary answer.

[Lord Sassoon]

Perhaps I may try again. Under Clause 4(1) it is the duty of the office to examine and report on the sustainability of the public finances. For the reasons explained by the noble Lord, Lord Burns, it would be difficult to report on the sustainability of the public finances without having regard to a lot of things, including—critically and at the centre—government economic policy. That links to what is laid out in the charter. If there is any doubt about whether the office will take account of government economic policies, as opposed to any other economic policies, we should look at Clause 5 for guidance on how the main duty is to be performed. The first point, which is important, is that the office has complete discretion, subject to certain subsections. Therefore, there will be a raft of approaches and other considerations that it can bring in if it considers them to be relevant.

We may then go on to subsection (3), having established that the OBR could not exercise its main duty without having regard to economic policies. Clause 5(3) makes it abundantly clear that when it looks at economic and other policies, it must have regard to any relevant government policies—not just economic policies, or economic policies defined in the widest sense by the noble Lord, Lord Burns. Under Clause 4, the office must have regard to economic policy; otherwise, how on earth would it start to look at sustainability? Clause 5(3) makes it clear that the policies that it must have regard to are not alternative policies but the policies of the Government. It is clear if one follows it through.

[Lord Newby]

Everybody agrees on the substance. The problem is that the Minister is trying to turn words that are inelegant and the wrong way round to mean what we all agree on. Without wishing to claim the fee of a parliamentary counsel, it seems to me that we could deal with this simply by redrafting subsection (3) to read: “The office must perform that duty, taking account of any government policies that are relevant to the performance of that duty. It may not consider…”

[Lord Eatwell]

Absolutely. We have just heard clarity provided from this incredibly obscurantist piece of drafting. This subsection is a negative. It says:

“Where any Government policies are relevant … the Office may not consider”.

You are taken to the negative. The verb with operational significance in that sentence is “may not”. The noble Lord, Lord Newby, has hit the nail on the head. If one really wants to achieve what we are all trying to achieve, this subsection should be split into two with Clause 5(3) saying, “Take these things into account” and a new Clause 5(4) saying, “Don’t mess around looking at other people’s policies”.

[Lord Higgins]

When we consider my amendment which refers to Clause 5(3), I shall make a quite separate point. The noble Lord, Lord Newby, has essentially encapsulated what he wants to say. The problem for the Government is that we are saying that the OBR has to take into account the Government’s economic policy, whereas the noble Lord’s letter—and the debate on that lasted for an hour and 20 minutes on our first day in Committee—was concerned with saying that we must not under any circumstances allow the OBR to look at economic policy.

[Lord Burns]

There is an issue with the drafting of Clause 5 and I wonder whether we are trying to make subsection (3) work too hard for its living. I had assumed that it was there to make sure that the OBR did not get dragged into a political debate and would not be called upon by anyone to cost opposition policies—which, as we know, has become a bit of a habit over the past 25 years—or by a Select Committee to insist that it compared the outcome of the Government’s policies with that of another set of policies. That would inevitably draw the OBR into a political debate. I had assumed that that was the purpose of this subsection, and it may be working it too hard to say that it should also do the job suggested by the noble Lord, Lord Eatwell. I think that the noble Lord, Lord Newby, has captured the spirit of what a number of us have been concerned about.

[Lord Sassoon]

We are all trying to get to the same end. I do not think that this is a rerun of what we were talking about under Clause 1 on the charter for budget responsibility. If it were, I would not carry on with a sympathetic tone. If it is trying to reopen—

[Noble Lords]

Oh!

[Lord Sassoon]

Do not push me, because I can sit down now. All the notes say “Resist”, but there is “resist” with a smiling face and there is another kind. If this discussion is intended to reopen the debate around Clause 1, which would have the effect of getting the OBR into the business of commenting on government economic policy and conceivably alternative economic policies, then I am not going to suggest looking at clarifying the drafting to achieve that. My starting point, like that of the noble Lord, Lord Burns, is that it would not be possible to carry out the measure set out in Clause 4(1). How could you conceivably do that if it were not based on the Government’s economic policies as widely defined, including thinking about the potential for external shocks and so on? The very important point is that Clause 5(3) stipulates that the context is only one of government policies, not alternative versions. Therefore, when the OBR carries out its analysis, it should look at only the government policies that have been announced.

[Lord Higgins]

I am trying to be helpful; this is clearly rather more complicated than we may have thought a little time ago. Could my noble friend simply say that he will look to see whether the intention of the Government has been encapsulated by the draftsmen and that, if not, he will table a more suitable amendment, because I do not think that we can leave it as it is?

[Lord Sassoon]

I was going to make two points. There is a further important consideration here, which is that we have the draft charter in front of us. It is worth bearing in mind that paragraph 4.12 of the draft charter, at page 13, states:

“The OBR’s published forecasts shall be based on all Government decisions and all other circumstances that may have a material impact on the fiscal outlook”.

So it is quite clear from that paragraph that the published forecasts shall be based on all government decisions. It continues, in the first bullet point, or tiret, as the Treasury used to call it—I do not know whether it still does since the departure of the noble Lord, Lord Burns; I fear that it now calls them “bullets”. Anyway, in the first blob—

[Lord Eatwell]

Standards are falling.

[Lord Sassoon]

They are slipping terribly. In paragraph 4.12, the first bullet point states,

“where the fiscal impact of these decisions and circumstances can be quantified with reasonable accuracy the impact should be included in the published projections”.

So we have in the charter a lot of the clarification, if there is any doubt to be avoided. I think that we have exposed all the issues here. I believe that between the two clauses and the charter, we have covered it all. I will look at the issue again in the cold light of day with officials. If, on reflection, there is anything more, I will write with further thoughts, but in the mean time, I ask the noble Lord to withdraw the amendment.

[Lord Eatwell]

I am grateful to the noble Lord. This debate has been much more valuable than I expected when we started. We discovered in the imperfect drafting of Clause 5(3) a real drafting difficulty, which has nothing to do with trying to make any political or more general economic point, but just concerns clarity. That was very valuable. I want to return to this, and want to associate with the notion of sustainability a general notion of economic policy. The reason for that is illustrated by the Irish case. The Irish Government looked incredibly stable in 2007, yet the overall economic position was completely unsustainable. If you just looked narrowly at the government finances, they looked terrific, but once you placed those government finances in the context of what was happening in the financial sector in Ireland as a whole, taking into account the Government’s economic policy with respect to the banks, for example, you would have seen that the position was unsustainable. It is that broader context that I was trying to get at here, and which informed my remarks on the sustainability analysis in the report published on Monday. We have teased out some important issues here, and we must certainly return to them on Report but, in the mean time, I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Committee adjourned at 7.13 pm.

House of Lords

Wednesday 1st December 2010 Lords Chamber

Wednesday, 1 December 2010.

15:00

Prayers—read by the Lord Bishop of Newcastle.

House of Lords: Reform

Wednesday 1st December 2010 Lords Chamber

Question

15:06

Asked by

[Lord Dubs]

To ask Her Majesty’s Government how the increased membership of the House since the general election, and likely further increases, are consistent with their aim of Lords reform.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the new appointments since the general election are entirely consistent with the coalition’s programme for government, which set the objective of creating a second Chamber that is reflective of the share of the vote secured by the political parties at the last general election. The Government are committed to reform of this House. The cross-party Joint Committee on House of Lords Reform will come forward with a draft Bill early in the new year.

[Lord Dubs]

My Lords, I want to make it clear that I mean no disrespect to the many Members who have recently joined this House or are about to do so, but how can the Minister reconcile the Government’s reducing by 50 the number of MPs in the House of Commons with increasing by more than that the number of Members of this House? Is he not breaking the cross-party understanding that the Government should not have an overall majority, especially as this has an adverse effect on the Cross Benches? I have yet to find a single Member of this House who agrees with the Minister—and I have asked quite a few of them. One can look at the faces behind the Minister to see that they are nodding in agreement with me and not with him.

[Lord McNally]

I had better not look behind me then. There is a dilemma which this House has partially created for itself. For as long as I have been involved in these matters, there has been an assumption that incoming Governments will freshen their Benches, partly for reasons of needing to man the government Benches. That is exactly what the Labour Party did, with Mr Blair creating more than 300 Peers during his term of office. The attempts to reform this House over the past 10 years have failed and we are left with a problem of a House that is too large. That is why I hope that the Benches opposite, when they get the opportunity in January, will enthusiastically embrace the reform programme which the Government will put forward.

[Lord Tyler]

Does my noble friend agree that the best way to make progress would be if the Labour Party, instead of bringing in ex-MPs who are refuseniks on reform of your Lordships' House, stuck to its manifesto commitments, made not just at the last election but at many other elections, to reform this House comprehensively?

[Lord McNally]

My noble friend makes some valid points, but I think that it is unfair to say that the ex-MPs who come in are against Lords reform. It usually takes them two or three weeks before they become enthusiastic supporters of the House. I see in his place the noble Lord, Lord McAvoy, who has taken to the ermine like a duck to water.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord, Lord McNally, has implied that the 300 Peers brought in by Mr Blair were Labour Peers, but can he tell me how many were not and took other Whips in the House? Does he endorse the remarks made yesterday by his noble friend Lord Tyler, who in the context of Lords reform effectively told the Cross Benches that, unless they supported the Government in votes, a 100 per cent elected House rather than an 80 per cent elected House would be proposed? Does he endorse that view?

[Lord McNally]

I do not read that into what my noble friend Lord Tyler said yesterday. I trust the Cross Benches to take decisions on votes in this House as individuals and not as a collective group. I know that they will continue to do that. Even more shaming than any threats real or imagined from my noble friend Lord Tyler are the blatant attempts made by the Labour Party to lure the Cross Benches into elephant traps when trying to delay government business.

[Lord Kakkar]

My Lords, have any of the newly appointed Peers been asked to give an undertaking that they would support House of Lords reform as envisaged by the Deputy Prime Minister?

[Lord McNally]

My Lords, it is always good to have a contribution from the Cross Benches. No such assurances have been asked for and they would be pretty valueless for the reason I gave earlier. I can see faces on the Benches opposite who I remember in their radical youth wanted to burn this place down, and they are now enthusiastic supporters of no change at all.

[Lord Campbell of Alloway]

Does the noble Lord accept that there is no logical explanation to the Question put by the noble Lord, Lord Dubs? We all know the views of the Cabinet and the coalition. I speak as a Conservative, I am still a Conservative and I support—when I can—the coalition, but not on this occasion.

[Lord McNally]

I am well aware of those views. All I will say to all sides of the House is that the other place has come to a settled and consistent view on the need to reform this Chamber. In keeping with our democracy, those views were taken to the electorate. The Conservative Party’s commitment to reform, the Liberal Democrats’ commitment to reform and the slightly dodgy, but still there, commitment of the Labour Party to reform—

A noble Lord: We lost—

[Lord McNally]

We all lost, but some of us made a better fist of that fact than others.

[Lord Pearson of Rannoch]

My Lords, if it were true—

[Baroness Gould of Potternewton]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, there is time for only one more question. Noble Lords cannot all stand up at the same time.

[Lord Pearson of Rannoch]

My Lords—

[Lord Strathclyde]

This is a question we will come back to many times. There is time for only one more question. The noble Lord, Lord Pearson, has been trying to get in consistently since the beginning and I suggest that we hear from him. There will be many other opportunities.

[Lord Pearson of Rannoch]

My Lords, if it is true that the Government are appointing new Peers in proportion to the votes cast at the general election, why does UKIP not have 24 Peers in your Lordships’ House and why did the Prime Minister refuse a single extra Peer?

[Lord McNally]

My Lords, I do not know. It is not in my brief, but I will find out. That shows that you should never let in that last question.

Roads: Long and Heavy Vehicles

Wednesday 1st December 2010 Lords Chamber

Question

15:15

Asked by

[Lord Dixon-Smith]

To ask Her Majesty’s Government what plans they have to permit a trial of longer and heavier vehicles on roads; and what assessment they have made of the impact of the use of such vehicles on rail freight.

[Earl Attlee]

My Lords, the Government have made it clear that they have no intention of permitting any trials of goods vehicles longer than 18.75 metres or heavier than 44 tonnes. The Government are awaiting the conclusions of research into a small increment in the length of articulated lorries, but this would provide no more loading capacity than is currently possible with a rigid draw-bar combination lorry.

[Lord Dixon-Smith]

My Lords, many types of lightweight freight are completely inappropriate for rail travel. At a time when all public expenditure is under critical examination, to improve productivity and to reduce costs, does my noble friend agree that it is appropriate to review all our regulatory systems at the same time, so that economic or environmental performance on this particular transport question can be improved wherever possible?

[Earl Attlee]

My Lords, before responding to that question, I should first declare an interest as I know Mr Dick Denby, who is a proponent of a longer and heavier vehicle. I have also received engineering advice from his designer on a pro bono basis. Mr Denby has done the country a great service by opening up this issue. As a result, this Government and our predecessor have been looking at a small increase in the length of an articulated vehicle to address precisely the concern of my noble friend: that low-density goods are bulking out, rather than grossing out, our current range of goods vehicles.

[Lord Snape]

My Lords, does the Minister accept that it is the heaviest goods vehicles that directly abstract traffic from rail freight? Will he accept from me that, for years, the road haulage industry has been claiming spuriously that heavier and longer goods vehicles would mean fewer of them? Does he agree that the heaviest goods vehicles have, for over 30 years, failed to pay their true track costs, and does he accept that any acceptance of longer and heavier vehicles will cause even more damage to Britain’s roads, which will be paid for by other taxpayers?

[Earl Attlee]

My Lords, most of what the noble Lord says is right. We are looking at an increase in the cubic capacity of an articulated vehicle, but we have absolutely no intention of increasing the gross weight of a goods vehicle, for precisely the reasons that the noble Lord explained.

[Lord Geddes]

My Lords, is the crucial question in this context not the axle weights rather than the overall weight?

[Earl Attlee]

My Lords, the noble Lord makes an important point. The damage to the road goes up in proportion to the fourth power of the axle weight, but we have no intention of altering the permitted axle weights either. However, the type of vehicle we are looking at will require different axle arrangements on the rear of the vehicle.

[Lord Davies of Oldham]

My Lords, I quite appreciate the Minister approaching this issue with some care, because he will know the anxieties of the general public about the questions over the damage which heavy lorries do to our roads and the pollution that they create. However, is there any reason why he should delay the charging of heavy goods vehicles, given that at present he is all too well aware of the unfairness of foreign lorries coming into this country and using our roads without cost?

[Earl Attlee]

My Lords, we discussed lorry road-user charging recently at Question Time. We are working on it and will announce on it in due course.

[Lord Bradshaw]

Can the Minister assure us that road safety will play a very prominent part in his consideration, because these lorries will not be confined to the motorway network? Will he please tell us, through the Library or however, how many prosecutions have been brought against HGVs—heavy goods vehicles—for contravening the weight restrictions on most of our roads?

[Earl Attlee]

My Lords, the noble Lord raises important issues about enforcement. This question is more about the design, construction and use of our vehicles, but he is right that we need to make sure that we enforce regulations on the operation of goods vehicles very carefully indeed.

[Lord Faulkner of Worcester]

My Lords, can the Minister confirm that it is the policy of this Government to carry as many goods by rail as possible and to transfer goods from road to rail wherever possible? In that context, will the Government continue to support freight transfer depots and other facilities to enable goods to be put on to the railway and carried long distances by rail rather than by road?

[Earl Attlee]

My Lords, on the first part of the noble Lord’s question, absolutely. We will do nothing that reduces the amount of freight carried by rail.

[Viscount Montgomery of Alamein]

Can the Minister confirm that the road axle weight has increased from 38 tonnes per axle? He rather gave that impression in his earlier Answer.

[Earl Attlee]

My Lords, the gross train weight—that is, the all-up weight of a heavy goods vehicle—was increased some time ago from 38 tonnes to 44 tonnes, but the axle weight is considerably lower than that.

[Lord Craig of Radley]

My Lords, will the Minister take into account the number of heavy goods vehicles that have jack-knifed during the recent bad weather and caused considerable traffic delays? Does this need to be borne in mind in deciding on the future of these arrangements?

[Earl Attlee]

My Lords, one of our motivations for considering a slightly longer articulated trailer rather than using a rigid vehicle towing a draw-bar trailer—precisely the point that the noble and gallant Lord makes—is that we believe that an articulated vehicle will be slightly safer.

IMF and World Bank: Appointment Procedures

Wednesday 1st December 2010 Lords Chamber

Question

15:21

Asked by

[Lord Stern of Brentford]

To ask Her Majesty’s Government what assessment they have made of the appointment procedures for the heads of the International Monetary Fund and the World Bank.

[The Commercial Secretary to the Treasury (Lord Sassoon)]

My Lords, G20 leaders are committed to open, transparent and merit-based selection processes for the heads and senior leadership of all international financial institutions. The UK supports this commitment as part of a broader package of reforms to increase the institutions’ effectiveness and legitimacy. Further consideration is being given to the processes for search, selection and appointment of heads at the IMF and the World Bank.

[Lord Stern of Brentford]

I thank the Minister for his Answer and I declare an interest as a former chief economist and senior vice-president of the World Bank.

Does the Minister agree with the assessment that the system of reservation—because that is what it is—of headships of the IMF and the World Bank for Europe and the United States respectively is outdated, unacceptable in the modern world and deeply resented by the Governments and people of developing countries? Does he also agree that past declarations of the importance of open competitions have not prevented the UK Government from participating in the continuation of these stitch-ups? Does he therefore agree that, to make the openness clear, the UK should support non-European and non-US candidates for these positions? There are many outstanding candidates. I am happy to provide him with a list. If the IMF position becomes available first, Europe must take the lead, as a matter of principle, whether or not the US tries to keep its monopoly at the World Bank.

[Lord Sassoon]

My Lords, I pay tribute to the noble Lord for the distinguished part that he played as chief economist at the World Bank and I therefore listen very carefully to what he has to say. I can confirm that this longstanding, informal agreement whereby the managing director of the IMF was always a European and the World Bank was always to be headed by a US citizen is well past its sell-by date. As I said, we support open and transparent appointments based on merit and in that context, while it is right and appropriate that good candidates from wherever should come forward, the UK’s position is emphatically that appointments should be made regardless of nationality or, indeed, of gender.

[Lord Bilimoria]

My Lords, does the Minister agree that waiting for the appointment of the head of the World Bank is like waiting for white smoke to emerge from the building? We know that the Americans fund the World Bank more than anyone else, but, in spite of that, is it right that the President of the United States, behind closed doors, should have the right to appoint the head of the World Bank in today’s world? With the IMF, why should it be a European? Why can it not be, as the noble Lord, Lord Stern, said, someone such as our mutual friend, Montek Singh Ahluwalia, the deputy head of the Planning Commission in India?

[Lord Sassoon]

My Lords, I will not repeat my previous answers but I draw attention to part of my first Answer. Processes for search, selection and appointment are being worked up by the IMF and the World Bank. I suggest that any candidates that noble Lords think are appropriate for the appointment should apply in due course.

[Baroness Kinnock of Holyhead]

My Lords, is the Minister aware that European countries occupy eight to nine of the 24 seats in the IMF and the World Bank? Does he not consider that we, as one of those European countries, should presume that it is about time some of these privileges were given up in favour of emerging and developing countries?

[Lord Sassoon]

My Lords, I said at the outset that the improvements to the processes for appointing the heads of these organisations must be part of wider reform packages for the entire governance of the IMF and the World Bank. Progress is being made on that in the quota shares, the voting arrangements and the governance arrangements. Equally, it is critical that, under the new arrangements, the four BRIC countries are in the top 10 voting and quota share countries, so we will have a much better balance in both voting and representation. It is equally important that the UK remains a top five member and that we retain our board seat.

[Lord Newby]

My Lords, does the Minister accept that these top appointments are intensely political? Therefore, simply having a process that is called “open and transparent” will not guarantee that the best person gets the job. Would it not be sensible, as the noble Lord, Lord Stern, said, for the British Government to make it clear at this stage that they expect the next head of the IMF and the World Bank not to be a European or an American?

[Lord Sassoon]

I can only restate the position of the Government: these appointments should be made regardless of nationality or gender.

[The Lord Bishop of Liverpool]

My Lords, is the Minister aware that many of the beneficiaries of the World Bank feel that the leadership of both the World Bank and the IMF are out of touch with the complexity of the issues facing the developing world, especially when it comes to land rights?

[Lord Sassoon]

My Lords, I am grateful to the right reverend Prelate for reminding us of what part of the important role of the World Bank is. Indeed, since we are talking about governance arrangements, it is important that there is a commitment to arriving at a new formula for the World Bank shareholding by 2015 that will properly reflect the development mandate of that organisation.

[Lord Grenfell]

My Lords—

[Lord McFall of Alcluith]

My Lords—

[Noble Lords]

Order!

[Lord Grenfell]

I am most grateful to my noble friend for giving way. I declare an interest, having served 30 years with the World Bank and being in receipt of a pension from it. I totally agree with what the noble Lord, Lord Stern of Brentford, has said about the necessity of broadening the field of recruitment. Does the Minister agree that the most important aspect is to make sure that the best qualified person gets the job and that it is extremely important that, whatever negotiations are held, the G20 should not go from one stitch-up, which we have now, to another and thereby end up with the lowest common denominator of approval? We should at least find the best people available for both these posts.

[Lord Sassoon]

I am very grateful to the noble Lord, Lord Grenfell, who speaks from immense experience. I completely agree with what he said.

[Lord McFall of Alcluith]

Undemocratic and non-transparent are the buzzwords of these institutions today. Will the British Government take the lead from the German finance minister who asked for lower representation for European countries so that the sub-Saharan and developing countries can get more representation and so that we have a big step on the way to democracy for these institutions?

[Lord Sassoon]

The Government are pleased with the recent agreements in the IMF and the World Bank that have seen a significant shift of voting and quota away from the developed towards the dynamic, growing economies.

Immigration: Detention of Children

Wednesday 1st December 2010 Lords Chamber

Question

15:30

Asked by

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what progress they have made regarding the ending of the detention of children of failed asylum seekers.

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, there has been progress in the pilot studies that the Government have been conducting. We remain determined to end the detention of children for immigration purposes and intend to make a Statement on the subject before the Christmas Recess. As the House will be aware, the number of children in detention for immigration purposes has fallen dramatically—and is now very low—and takes place only for very short periods. There are no children in detention at present.

[Lord Foulkes of Cumnock]

Is the Minister aware that the Government kept their promise to end the detention of children in Dungavel in Scotland by shipping them hundreds of miles away to detention in Yarl’s Wood? The Observer reported on Sunday that the replacement for Yarl’s Wood is no better than Yarl’s Wood. How will the Government end what Nick Clegg described as a moral outrage or will this be another pledge he wishes he had not made?

[Baroness Neville-Jones]

My Lords, the Observer is inaccurate. It is not the case that the accommodation that will be provided will be “no better than Yarl’s Wood”. The picture painted of the current Yarl’s Wood was inaccurate. The Labour Benches opposite will know something about the changes that they made. The accommodation will not be like Yarl’s Wood and will not contain any means of detention.

[The Archbishop of Canterbury]

My Lords, the Government will be aware of the Church’s continuing acute interest in this subject not least because of an open letter to all party leaders that was sent before the general election touching this question. What are Her Majesty’s Government’s plans to keep monitoring the psychological and mental medical impact of detention upon children and families and the impact of some aspects of the whole regime that currently obtains, including the practice of dawn raids, the proposed suggestion of indeterminate dates for expulsion and comparable matters? Will Her Majesty’s Government be prepared to raise and press some of these issues with other European Union countries?

[Baroness Neville-Jones]

My Lords, the most reverend Primate raises a number of important points. The reason why we are concerned about the mental condition and psychological effect on children and their families of what has hitherto been the practice is the reason why this Government made a commitment to end the detention of children for immigration purposes. We will honour that commitment.

As a result of the number of questions that I have been asked on this subject, I have kept the House aware of the pilots that we are already conducting to alter procedures such that some of the things that have been mentioned will no longer take place. There will not be a need for the “raids” that used to take place. We are endeavouring to bring about a system that ensures that those who are not entitled to be in this country are not able to stay here and that they are not able to abuse the system, but that in its procedures is humane and just.

[Baroness Afshar]

My Lords, I declare an interest as someone who is involved in the Child M question and has raised the question of children in detention. It seems to me that the treatment of these children as numbers rather than as human beings, and the idea that they are a category that belongs or does not belong in this country, simply denies them their rights as human beings. Can we please take these cases as human beings and think what we would do if these were our children? I feel that Child M is being pulled every which way. The family is breaking up and the future of that child is being destroyed. We talk about future pilots. Here is an example. Please let us do something.

[Baroness Neville-Jones]

I say to the noble Baroness that these pilots are in progress; they are not future pilots. We are endeavouring to introduce means by which we can encourage families to return on a voluntary basis. I lay stress on the fact that we keep families together as much as we possibly can. It is now a very rare circumstance, such as, possibly, the brutality of parents within a family, that would result in family separation. We try to keep families together. Our aim is to get them to depart voluntarily if they are not entitled to be in the country and, if they do not do so, to make as humane arrangements as we possibly can to remove them, but we do not intend to involve detention in that process.

[Lord Roberts of Llandudno]

My Lords, is the Minister aware that in seven months we as a Government have made more progress to end the detention of children for immigration purposes than the Labour Party did in 13 years? Can she arrange a visit to Yarl’s Wood to enable the noble Lord, Lord Foulkes, the most reverend Primate the Archbishop of Canterbury, the noble Baroness, myself and others to see the ending of that desperately sad regime?

[Baroness Neville-Jones]

My Lords, I have already offered the possibility of a visit to Yarl’s Wood, which will, in due course, become a centre for adults only. However, I would be very happy to demonstrate to Members of this House the arrangements that we are piloting and hope to put in operation shortly. As I said, there will be a Statement on this issue before the Christmas Recess.

Superannuation Bill

Wednesday 1st December 2010 Lords Chamber

Report

15:36

Clause 1 : Consents required for civil service compensation scheme modifications

Amendment 1

Moved by

[Lord Brett]

1: Clause 1, page 1, line 1, at end insert—
“( ) Section 1 of the Superannuation Act 1972 is amended as follows.
( ) In subsection (3), after “consult” insert “, with a view to reaching agreement,”.
( ) In subsection (3A) after “consult” insert “, with a view to reaching agreement,”.”

[Lord Brett]

My Lords, Amendment 1 stands in my name and that of my noble friend Lord McKenzie of Luton. As my noble friend Lord McKenzie said in Committee, this is a straightforward amendment designed to clarify the purpose of consultation, emphasising that consultation should aim to reach agreement. In Committee, the Minister expressed reservations that this amendment was drawn too widely in respect of the 1972 Act, but recognised that the Government’s aim, like that of the previous Administration, was to seek to reach agreement by consensus where possible. There have been discussions between the Civil Service trade unions and Ministers in this respect and the Government have now submitted Amendments 2 and 4, which are grouped with Amendment 1 and which I take to be an endeavour to offer the reassurance sought in Amendment 1. While I clearly prefer the simplicity of our amendment, I await the Minister’s arguments in support of his amendments with interest. I hope that our thinking is as one, even though our amendments may use different language. I beg to move.

[Lord Wallace of Saltaire]

My Lords, it may be helpful if I begin by reminding your Lordships of the main outcome that the Government are seeking to achieve in securing agreement to this Bill, which is to enable necessary reform of the Civil Service Compensation Scheme. Our goal in effecting this reform is to put in place a scheme, following consultation with the Civil Service trade unions, that is affordable, sustainable for the long term and fair not only to civil servants but to other taxpayers. This is not an initiative of this new Government but an issue that we inherited from our predecessors. Indeed, the previous Government negotiated for 18 months with the Civil Service trade unions and had a scheme to propose in February this year, which was then challenged by one of the unions and struck down in a judicial review.

I have described previously the intensive discussions between the Government and the Civil Service unions since my right honourable friend the Minister for the Cabinet Office, Francis Maude, announced on 6 July his intention to push through reform of the compensation scheme. Since Grand Committee, which took place three weeks ago, some of the unions have begun to ballot their members on a new scheme based on the agreement reached on 5 October between the Government and the negotiating teams of five of the six Civil Service unions.

The key elements of the new scheme that we propose to introduce include: a standard tariff for compensation payments; an entitlement for a three-month notice period on redundancy, whether voluntary or compulsory; significant protection for lower-paid civil servants; limitations on payments to higher-paid civil servants; and, lastly, the ability to access an unreduced pension for staff who have reached minimum pension age.

The Government listened carefully to points made by those noble Lords who spoke in Grand Committee about the purpose and structure of the Bill, as well as underlying concerns about how reform of the scheme would be achieved. We have brought forward some further amendments, which we believe address these points, as I will explain in due course. I hope that we will be able to use this Report stage to ensure that the Bill meets our goals of supporting a new, affordable, fair and sustainable compensation scheme and of providing that the Civil Service and the Government are not left in limbo over the reform of this scheme.

In speaking to Amendment 2, I will also address Amendment 4, which is simply a consequential drafting amendment, and respond to the points raised by noble Lords opposite on Amendment 1. Indeed, these government amendments are specifically intended to respond to the identical amendment that the Opposition tabled for Grand Committee and to the discussion that followed about the way in which consultation should be carried out.

Amendment 1 would insert into the Bill the words,

“with a view to reaching agreement”,

in references to consultation on schemes under Section 1 of the Superannuation Act 1972. It would in practice render my Amendment 2 unnecessary, as it covers the substance of my amendment and much more besides. That is why the Government have brought forward Amendment 2, to address the specific issue of consultation on the compensation schemes that are covered by this Bill.

The Grand Committee agreed to amendments that I had tabled to deliver the undertaking made in another place to reinforce the requirement for meaningful consultation with the unions before any compensation scheme is imposed. Those amendments inserted what is now Clause 2 of the Bill. The coalition Government firmly believe that a requirement to consult already carries with it the implication that the consultation must be genuine and that proper consideration must be given to the response. However, we were happy to set out in primary legislation our commitment to meaningful consultation, which we have also reiterated in both Houses of Parliament.

It is also the intention of this Government that any consultation that we carry out under the 1972 Act would be begun with a view to reaching agreement. Clause 2 already uses the words,

“with a view to reaching agreement”,

in respect of the report that the Government will in future be required to lay before Parliament about changes to the scheme. The noble Lord opposite pressed me in Grand Committee to make our intention clear in the Bill and to apply the same words expressly to the requirement to consult.

I do not think that there is much between us as to the aim and purpose of these amendments. However, as I explained in Grand Committee, the Government have reservations as to the breadth of the scope of the amendment from the noble Lords opposite. It would take us very much wider than the process of changes to Civil Service compensation, which is the key purpose of the Bill. Amendment 1 would in practice apply also to schemes in relation to pensions and injury benefits, which are subject to different regimes for consultation and agreement and which we have not otherwise considered in this Bill. The Government were therefore not able to accept the amendment in Grand Committee and this has not changed.

Nevertheless, I have reflected carefully on the points made by the noble Lord, Lord McKenzie, in Grand Committee. He said then that it should not be contentious to seek to emphasise that the aim of consultation should be for it to lead to agreement. Indeed, the Government would not wish to contend with that view. I also understand that inserting the wording,

“with a view to reaching agreement”,

explicitly into the requirements for consultation in the 1972 Act is seen by the Civil Service trade unions as an important indicator of the Government’s good faith in continuing to try to find agreement through negotiation. I have, therefore, brought forward Amendment 2, which relates, like the rest of Clause 2, to any cases where changes are proposed that would reduce the value of compensation benefits, in order to address that point. It will not have the effect of restoring the union veto on reform, which Clause 1 will remove, and it will not apply, as Amendment 1 would, to consultations on the much broader range of schemes covered by Section 1 of the 1972 Act. Those extend beyond the main business of the Bill, which we have had the opportunity to discuss in detail. However, it will make it absolutely clear that the Government will now have a duty to consult with a view to reaching agreement where there is any future proposal that would have the effect of reducing the amount of compensation benefits payable to civil servants.

I say to the noble Lord, Lord McKenzie, that I was persuaded by his arguments in Grand Committee but that, for the reasons that I have explained, I still prefer the approach in the Government’s amendments. I hope that noble Lords are persuaded, as I have been, that this amendment rounds out and reinforces the statutory commitments to meaningful consultation on compensation schemes. I also hope that it succeeds in meeting the substance of the genuine concerns raised by noble Lords opposite and that, therefore, they will agree to withdraw the amendment.

15:45

[Lord Brett]

My Lords, I am grateful to the Minister for that explanation. A number of amendments tabled by the Opposition and indeed a number of speeches made from all sides in Committee were about the confidence that is required to carry forward what is a contentious piece of legislation for those civil servants who will be worse off financially than they would have been under the provisions in the 1972 Act and beyond. However, I take the point made by the noble Lord regarding our endeavours to engender a degree of confidence in respect of the compensation element, which is the issue in this Bill. In the circumstances and with the strength of the reassurances given, I do not feel it necessary to test the opinion of the House and I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 2 : Consultation in relation to civil service compensation scheme modifications

Amendment 2

Moved by

[Lord Wallace of Saltaire]

2: Clause 2, page 2, line 22, at end insert—
“( ) After subsection (3C) insert—
“(3D) So far as it relates to a provision of a scheme under the said section 1 which would have the effect of reducing the amount of a compensation benefit, the duty to consult in section 1(3) of this Act is a duty to consult with a view to reaching agreement with the persons consulted.””

Amendment 2 agreed.

Amendment 3

Moved by

[Lord Brett]

3: Clause 2, page 2, line 28, leave out “such information as the Minister considers appropriate” and insert “information”

[Lord Brett]

My Lords, Amendment 3 stands in my name and that of my noble friend Lord McKenzie. Clause 2, as amended in Committee, requires the Minister to lay certain information before Parliament regarding the consultation undertaking in respect of the new Civil Service Compensation Scheme prior to the scheme coming into operation, with such information to be limited to information that the Minister considers appropriate. Again, we believe that that undermines confidence, as many people feel that it might be misused to withhold from Parliament information that would be influential in the subsequent discussions and debates that might take place.

We believe that constraining the information in such a way is unnecessary and will certainly not engender the confidence in the consultation process that I think everyone involved wants to see. I do not say that such is the Government’s intention, but unfortunately the wording in its present form to some degree undermines the confidence that we seek to restore. Our amendment seeks to remedy the situation by removing the ministerial discretion to limit the information. I trust that this will not be considered controversial and that the Minister will not feel the need to resist Amendment 3. I beg to move.

[Lord Wallace of Saltaire]

My Lords, we had a useful and constructive discussion on this in Grand Committee and I was persuaded by the strength of the argument put forward by the noble Lord, Lord McKenzie, at that time. We took the matter back and discussed it and now wish to accept this opposition amendment.

There was a perfectly good reason for the original wording that the noble Lord now proposes should be removed. It was simply intended to clarify that there might need to be some discretion about what precisely would be included in the published report of the consultation that had been carried out with the Civil Service trade unions. For example, some details might need to be omitted on the grounds that they should be held in confidence, such as a negotiating position set out by a particular union during the consultations that it asked should be treated in confidence.

However, I agree that it is unnecessary to insist on this wording as to what constitutes information. The report will be produced by the Minister for the Civil Service and will, in any event, include only information which he considers appropriate and which does not breach confidences from the negotiations. I agree that this need not be spelt out in the Bill, so I am happy to say that, with what I hope the Opposition will accept as good grace, the Government accept the amendment.

Amendment 3 agreed.

Amendment 4

Moved by

[Lord Wallace of Saltaire]

4: Clause 2, page 2, line 36, leave out “amendment made by this section applies” and insert “amendments made by this section apply”

Amendment 4 agreed.

Clause 3 : Limits on value of benefits provided under civil service compensation scheme

Amendment 5

Moved by

[Baroness Donaghy]

5: Clause 3, page 2, line 41, leave out “the following limitations” and insert “agreement reached following consultation and negotiation with the relevant trade unions”

[Baroness Donaghy]

My Lords, I have pleasure in moving this amendment on behalf of my noble friend Lady Turner of Camden, who, as noble Lords will know, was taken ill on Monday. She was unable to attend the House today, but I am pleased to say that she is now at home. I am a lifelong admirer of Lady Turner and I hope that I can do justice to her amendment. I have a guess that this amendment might not be received in the same way as one or two of the previous ones.

These are worrying and uncertain times for civil servants, with their job security, pensions and standard of living under attack. I am sure that many noble Lords have received letters from individual civil servants about the impact of this Bill on their lives. They entered the Civil Service with certain expectations about their job security and pensions. The impact on their morale should not be underestimated, and I am concerned that the public focus on Civil Service pay and pensions is always on the higher paid. I notice that when this was discussed on 10 November, one contribution made out that an annual salary of £40,000 to £50,000 was the norm. I know that Members of this House will realise that that is not the norm. The majority of civil servants earn very modest salaries and even more modest pensions. It is not my intention to hold up the House by quoting the figures, but I know that the Minister will be aware of them.

I acknowledge the reassurance of the noble Lord, Lord Wallace of Saltaire, that negotiations will be genuine. However, the general tenor of the Bill will not reassure civil servants. I believe that it is reasonable to reach agreement with trade unions. There is a long and honourable tradition of this in the joint Civil Service negotiating bodies and I hope that the Bill’s tenor will do nothing to undermine it. It is in that spirit that I move the amendment tabled by my noble friend Lady Turner.

[Lord McKenzie of Luton]

My Lords, I thank my noble friend Lady Donaghy for stepping into the breach. She did indeed do justice to our noble friend and colleague Lady Turner. Perhaps we can take this opportunity of sending our best wishes to her for a speedy recovery.

I very much agree with the thrust of the amendment, which pretty much replicates a debate that we had in Grand Committee. The difficulty, in a sense, is that the approach is predicated on Clause 1 not standing part of the Bill, so there is a potential inconsistency between these two provisions. In so far as the cap is concerned, we are very clear that it should go from the Bill in its entirety, which would negate this amendment if it were to be pressed and were successful. However, we agree that there must be consultation with every effort made to end up with a negotiated settlement. My right honourable friend in the other place, Tessa Jowell, made clear that we accept that there would be circumstances in which changes would have to be made that did not rely on agreement. We do not recognise this lightly, nor indeed does the Minister. To that extent we may differ a little on my noble friend’s amendment, but we have some other amendments constructed to achieve in large measure the same thing, which is to get rid of the caps.

[Lord Maclennan of Rogart]

My Lords, I thank the noble Baroness for moving the amendment and I join the noble Lord, Lord McKenzie, in sending good wishes to the noble Baroness, Lady Turner. However, I fear the amendment as drafted goes too wide, as was implicit in the remarks made by the noble Lord, Lord McKenzie. It might have the effect of reinstating the veto, which it is the purpose of this Bill in large measure to withdraw. I am glad to recognise what was said in another place by Tessa Jowell and the inconsistency of that, as I see it, with the amendment tabled.

[Lord Wallace of Saltaire]

My Lords, I join other noble Lords in sending our best wishes to the noble Baroness, Lady Turner of Camden. I served on a committee with her when I first became a Member of this House and have been very fond of her ever since. We look forward to having her back with us. She played a useful and constructive role in our Grand Committee discussions.

In Grand Committee we discussed the question of the balance of pay with trade unionists and I remarked at the time that we need to understand how many low-paid civil servants there are and to construct a scheme which is as fair as possible to the lower-paid. As the noble Baroness will know, one of the elements of this scheme is that all those earning under £23,000 who are offered redundancy will be treated as if they were earning £23,000. So built into the compensation scheme are limitations for the small number of civil servants who are paid £150,000 or above and much greater benefits for that large number of civil servants who earn below the medium wage. I hope that this has the sympathy of all Members of the House because it is part of what this scheme is intended to achieve.

Although this amendment seeks to amend Clause 3, to some extent it contradicts Clause 1, as the noble Lord, Lord McKenzie, pointed out. The Government are not therefore able to accept it as it is not entirely clear what its implications would be. As I have already made clear, the Government are committed to full consultation with the Civil Service trade unions over the long term. However, the recent history of changes proposed to the Civil Service Compensation Scheme both by the previous Government and by the coalition Government shows that a requirement to reach agreement can lead to stalemate where the Government of the day are unable to implement the changes that are necessary or agreed with the majority of unions.

So in practice the drafting of the amendment may not have the effect that the noble Baroness, Lady Turner of Camden, would want it to achieve. It does not just apply to changes in the compensation scheme but rather to the scheme as a whole. I am sure I do not need to tell noble Lords that the Government would not want this to be the case. Nevertheless, I appreciate the opportunity that the noble Baroness’s amendment provides to emphasise yet again our commitment to meaningful consultation and our determination on the other hand not to allow any union to have a complete veto over changes that may be proposed to the Civil Service Compensation Scheme. This is an important point which we take as seriously as the noble Baroness does and we are determined that it is the lower paid civil servants who will have the most generous benefits, as we have proposed in the current scheme. We have therefore pushed this scheme forward and are puzzled by the resistance of one of the unions to a scheme that seems to us to be better for the lower-paid than the alternatives that that union seems to prefer.

16:00

I turn to the drafting of the amendment. On several occasions in Grand Committee I heard the noble Baroness express genuine concern for civil servants who are at risk of redundancy. Many of us, me included, have received many letters from civil servants. There are also a good many low-paid HMRC civil servants where I live in Yorkshire, so I not only receive letters but hear about it from people in the pub. I am therefore entirely sure that it is not the noble Baroness’s intention that the amendment should jeopardise any compensation payments to civil servants in that position. As drafted, however, Amendment 5 does not achieve what she seeks to do—even if the Government were minded to support it, which we are not. Once the Bill receives Royal Assent, it is our intention to lay before Parliament the revised Civil Service Compensation Scheme which, in our view, will be fair to civil servants and affordable for the taxpayer.

I hope that I have provided sufficient clarification about the intention of the coalition Government’s policy and the legislation to deliver it, and that I have explained my concerns about the effect of this amendment. I therefore ask the noble Baroness to withdraw it.

[Baroness Donaghy]

My Lords, I neglected to declare an interest: I am in receipt of a very small Civil Service-related pension as former chair of ACAS. I apologise to the House for not having done that. In the light of the statements made, it does not seem sensible to press the amendment to a vote. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by

[Lord McKenzie of Luton]

6: Clause 3, page 2, line 43, leave out subsections (2) to (ii) and insert—
“(2) Where a civil service compensation scheme, or any part of that scheme, is challenged in Court, the provisions of that scheme and any settlement made under that scheme shall remain in place until the Court has made a final determination about the legality of that scheme.”

[Lord McKenzie of Luton]

The purpose of this amendment is to consider alternative options to resolve the problem which the caps are said to be intended to address. We remain firm in our view that the caps are not necessary, are counterproductive and would present their own series of operational complications if they were ever in effect and applied.

As a responsible Opposition we have sought to get to the heart of the issue. Following deliberations in Grand Committee, we received a helpful letter from the Minister, dated 16 November. Based on this communication we understand that the Government’s concern is that, in the event of a challenge on the legality of any new scheme, the courts will reinstate the unaffordable current scheme. In his letter, the Minister notes that once litigation has been started, that alone will put a question mark over which scheme should be regarded as being in force at any one date before all the appeals have been exhausted. The Government are concerned that, in this interim period, the default position as applied by the courts will not be the new scheme which we understand the Minister intends to lay before Parliament in January, but the more expensive current scheme. The Minister states in his letter that it should be Parliament that decides the default position—which, by implication, is to be the caps. The Minister argues that if the challenge is on human rights grounds, the courts would not have the right to set aside limits in primary legislation but would be limited to declarations of incompatibility.

The purpose of our amendment is to address this uncertainty in another and, we hope, less complicated and more effective way. The effect of the amendment would be to state quite clearly in primary legislation what would happen during a period when the scheme was undergoing a legal challenge that had not reached a conclusion. Rather than revert to the caps, the Act would stipulate that the scheme in operation would be the default position until the validity of the new scheme had been determined. Things would eventually come out in the wash when the court process had run its course. We will come to a substantive debate on the caps in the next group of amendments, and we consider that there are compelling reasons to remove the caps in their entirety. We are supported in this position by the recent report by the Joint Committee on Human Rights which cast doubt on the benefit or extent of the certainty that the Government would achieve by relying on this mechanism.

I should make it clear that we do not intend to press this to a vote, nor are we wedded to this precise wording. However, we are firmly of the view that if the Government consider that a fallback in primary legislation is necessary—we do not—it must not be the caps locking in via primary legislation. The scheme most recently introduced, albeit by order, is potentially one way of achieving this. I look forward to the Minister’s reaction to this amendment. Perhaps, when he responds, he will also cover what alternative mechanisms have been considered to address his concern. I beg to move.

[The Chairman of Committees (Lord Brabazon of Tara)]

I understand that there is a mistake in Amendment 6 as printed in the Marshalled List. Instead of “(2) to (ii)” it should read “(2) to (11)”.

[Lord Wallace of Saltaire]

My Lords, I appreciate that we will come on to caps in a later amendment, so it is a little difficult to know whether to respond in detail now or to leave it to later. We discussed this delicate set of issues quite extensively in Grand Committee, and I subsequently set out in a letter, which the noble Lord, Lord McKenzie, has mentioned and which has been placed in the House of Lords Library, that I wished to avoid being in the position that followed the High Court’s judgment of May 2010, which resulted in the February 2010 arrangement being squashed and the pre-February scheme being largely revived. I reiterate our strong intention to ensure that the proposed new scheme is legally robust and our consequent view that the scheme would ultimately survive any legal challenge.

Nevertheless, it is open to anyone to seek to challenge the scheme now or in the future, regardless of whether their intention is rational or their arguments are ultimately found to be meaningful by the courts. Such a challenge could result in the scheme being suspended until due legal process has been pursued. The Government take court rulings very seriously; we would always give the most serious consideration to court judgments and would certainly take the necessary steps to take account of any final ruling. As I previously explained, the question that arises is what the default position should be during any period of uncertainty caused by litigation. The Government continue to believe that it is right that Parliament, a democratically accountable body, should decide in an Act of Parliament what the default position should be, and that is the reason for Clause 3 as it is currently drafted.

I do, however, feel certain that a court would have views of its own about an Act of Parliament containing the approach set out in Amendment 6. This seeks, in effect, to oust the court’s power to strike down a scheme, an approach which the courts have often felt to be misconceived and on which the Government would not therefore be confident to rely. I also note that the drafting of the amendment is a little vague, which would not be helpful in conveying to a court a clear meaning of Parliament’s intent. For example, given all the opportunities for appeal or for proceedings to be taken on to the European Court, how could anyone be certain that the “final determination” has been made? Even if the intention and the process could be made sufficiently clear, I am not convinced that a court would always accept that a compensation scheme that is being challenged qualified as a scheme that should remain in place during that challenge.

I emphasise once again, as we did on several occasions in Grand Committee, that the coalition Government hope not to need to use the powers in Clause 3, nor the powers in Clause 4 that support them. What we want is a new, reformed, sustainable, affordable and fair Civil Service Compensation Scheme that can be implemented once this Bill has received Royal Assent and which will mean that we will never need to use the caps in Clause 2. If we are taken to court and therefore need to fall back to a provision that means that the necessary reductions in the Civil Service workforce can be made without disproportionate cost and perverse effects, it is more reasonable to rely on such caps than on a clause that attempts pre-emptively to bind the court.

We shall shortly have the chance to discuss Clause 3 again as drafted, along with the provisions in Clause 4 that provide for the repeal, extension or revival of Clause 3. I do not think it would be right for us to agree to an amendment that might be interpreted by some as seeking to constrain the powers of the courts. So, for the reasons that I have given, I hope that the noble Lord will withdraw his amendment.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his explanation of why the Government are unable to accept this amendment. As I explained when I introduced it, we did not propose to test the opinion of the House, but simply to probe alternatives to the use of the caps as the default position. With respect, the Minister has said why he does not like our formulation, but he has not dealt with the point about what formulations other than the caps have been considered to create the certainty that he seeks and considers is necessary in circumstances where there is a challenge. We do not object to Parliament deciding in an Act of Parliament what that default position should be.

I take the point that the formulation of our amendment could be seen as seeking to oust the power of the courts.

[A noble Lord]

My Lords—

[Lord McKenzie of Luton]

My noble friend suggests otherwise. I am reassured by that intervention, if it is in support of our amendment. Will the Minister and his team reflect further on this matter? It is difficult to conceive that the only default position would be the caps. We will come on to why the caps are so offensive to many and why we think that it is misguided to retain them. If he Minister does not like our alternative formulation, will he enter into discussion to see what alternatives there might be that do not involve the default position being those caps?

We have all had correspondence from people about their fear of the caps and what it may mean to their compensation arrangements. Being able to remove that without wishing to detract from the Government’s position of wanting some protection and a fallback is worthy of further exploration. I simply do not believe that you could have only the caps and no other formulation. I beg leave to withdraw the amendment and, in doing so, I ask the Minister to reflect further on this issue. We would be happy to have discussions with him between now and Third Reading to test the alternatives that might give him the protection he wants without those caps.

Amendment 6 withdrawn.

Amendment 7

Moved by

[Lord McKenzie of Luton]

7: Clause 3, leave out Clause 3

[Lord McKenzie of Luton]

My Lords, in speaking to Amendment 7, I shall speak also to the other amendments in this group. The purpose of this amendment is abundantly clear. It would remove Clause 3. Amendments 9, 10 and 14 are consequential, as the removal of Clause 3 would obviate the necessity of sunset and sunrise clauses, and provisions relating to orders. With the deletion of Clause 3, the caps, which have been at the core of so much dissatisfaction with this Bill and with this process, would go. They remain a continuing source of anxiety and many civil servants who fear redundancy believe that their compensation will be a fraction of what they hitherto considered to be their entitlement.

The caps set out in the Bill are not only punitive—certainly in relation to the current scheme—but they are, in terms of the Government’s own position, redundant. If the caps are a blunt instrument supposedly needed as a basis for discussion and to force agreement with the trade unions, they are no longer necessary, as an agreement is no longer a precondition of introducing a changed compensation scheme. We know that the Government are actively working up the detail of a scheme, which is expected to be introduced shortly after this legislation enters into force. Before the scheme order is laid, Clause 3 will have to be repealed for the scheme to be effective.

16:15

The further reason the Minister has advanced for retaining the caps is that they are needed in reserve. We have just touched upon that issue. The Joint Committee on Human Rights, however, has blown the cover on this. Removal of this clause would go some way to addressing the anger that accompanied its inclusion in the Bill and would place the emphasis back on the need for consultation and negotiation. It would remove a genuine source of anxiety for those who expect to be made redundant and who fear that, by one means or another, the caps will define their compensation.

We have been encouraged in our determination to remove these caps by the latest report of the JCHR in HL Paper 64. The committee considers, contrary to the view of the Government, that the Bill in its current form engages Article 1 of Protocol 1 to the European Convention on Human Rights. It was very clear that the legitimate expectation of obtaining effective enjoyment of a property right can and does amount to possessions in this case. Individuals have acted on reliance on their expectation that they will receive certain sums—for example by entering into mortgage commitments—in the belief that, even in redundancy, their commitments could be met. The committee’s view is that the limits on compensation payments set out in Clause 3 of the Bill clearly constitute an interference with that right, but not a deprivation of it. It is the Government’s obligation therefore to seek to justify that there is a sufficiently compelling public interest in doing so, provided the interference is not arbitrary, is proportionate and does not affect the very substance of the right.

In summarising the Government’s justification—basically, affordability and the lack of comparability with other parts of the public and private sectors—the committee considers that the case has not been made for the limits, or caps, imposed in the Bill. The limits in the Bill are, as we know, less generous than those that the Government have said that they are prepared to agree to and, indeed, have agreed to with five trade unions. References to blunt instruments and the Government’s minimum negotiating position, the committee says, are not compatible with the argument that the limits in the Bill are a necessary and proportionate interference with civil servants accrued rights.

Clearly it is too late for the Government to unpick their previous justification for the caps, but there can be no doubt that their retention, revival and potential use damages any case that changes to the CSCS are a justifiable interference with civil servants accrued rights. Far from help the Government’s position, it can be concluded that the preservation of the caps makes it more likely that the Government’s approach will be treated as incompatible with the convention.

We debated a moment ago the supposed fallback protection that the caps provide in the circumstances of a legal challenge. The JCHR was sceptical about this leading to less legal certainty, because the Government would ultimately have to remedy any incompatibility by compensating all those affected. The JCHR’s view is that the route to minimise legal uncertainty is not questionable distinctions between the relative uncertainty of incompatible primary or subordinate legislation, but by providing limits on compensation that are capable of stronger justification.

There are overwhelming reasons why the caps in this clause should go from the Bill. They are more trouble than they are worth to the Government; they do not contribute to the scheme that has been negotiated; they are an impediment to trust and negotiation with trade unions; their continued existence makes defence of incompatibility with the human rights convention more difficult, if not impossible; and they create a range of practical difficulties. Worst of all, they create real distress and uncertainty among our civil servants. It is time to give them up.

I beg to move.

[Lord Wallace of Saltaire]

My Lords, the noble Lord opposite has raised a wide range of issues about the Bill. I recognise, again, the concern that a lot of civil servants have about the caps—perhaps on the misunderstanding that these are the only thing on offer. The Government have made it clear—and I will spell this out in answering a later amendment—that it is their intention to be more generous than the minimum caps expressed in the Bill. I remind noble Lords that Clause 3(11) gives the Government power to increase the compensation scheme but not to decrease it.

As noble Lords will recognise, the Bill at various points goes rather deeply into the relationship between Parliament and the courts. To anyone who would like to sink even more deeply into that area, I can recommend the evidence being given by various law professors to the European Scrutiny Committee in another place, where the doctrine of parliamentary sovereignty and the extent to which it depends on court rulings are being discussed in absorbing but extremely lengthy detail.

Today, the Minister for the Cabinet Office wrote to the chair of the Joint Committee on Human Rights. That letter will be in the House of Lords Library by the end of today; I hope that it will also be copied to noble Lords opposite. Perhaps it would be helpful if I read out two paragraphs from it. They state:

“I welcome the Committee’s acknowledgement that measures interfering with the peaceful enjoyment of possessions are capable of being justified by a sufficiently compelling public interest provided the interference is not arbitrary, is proportionate and does not affect the very substance of the right … Your report goes on to say that in the context of economic and fiscal policy generally, the European Court of Human Rights allows a considerable degree of latitude to States in deciding what is in the public interest, and that it is reluctant to interfere with that judgment unless it is manifestly without reasonable foundation. You also note that the European Court of Human Rights has generally been deferential to arguments of fiscal necessity although it has carefully preserved a scrutiny role and made clear that even interferences which are justified by fiscal considerations must not be arbitrary or so excessive that they remove the very essence of the right. As both this Government and its predecessor concluded, the current scheme is simply unaffordable for the taxpayer and over-generous when compared with comparable schemes elsewhere”.

I reiterate the point that the caps that Clause 3 sets out on the value of benefits under the Civil Service Compensation Scheme are a fallback. I have just explained that the Government are not persuaded that there is a better way to provide it. There is broad agreement that the compensation scheme must be reformed. Your Lordships will appreciate that, after two years of negotiation, we now need to proceed with a new scheme with some urgency, not only because the economic situation requires it but because civil servants will become even more anxious if the current uncertainty remains for longer.

The retention of Clause 3 means that a failure to implement a new scheme would prevent government departments making the changes to their workforce that they need to make for the future as well as now. The clause guards against a situation in which we would have no choice but to revert to the old scheme, which is, as I have said, unaffordable, unsustainable and out of place.

I appreciate that the other amendments which are grouped with Amendment 7 are consequential on it, since, if Clause 3 were not part of the Bill, much of Clause 4 would also not be needed. None the less, I am well aware that there is also concern about the power in Clause 4 to extend or revive the caps in the Bill, particularly some of those that would be among those deleted by Amendments 9 and 10. As Members who have read their Marshalled Lists will note, I have already put down amendments, which I hope we will have the opportunity to discuss later, which seek to respond to points made in this House and the other place about some of those delegated powers.

The Government are determined to ensure that there is certainty that a new and affordable compensation scheme can be put in place. I very much hope that that is the consensus among all your Lordships. The Government remain convinced that Clause 3 and the provisions that support its variation are the appropriate and proportionate way to secure that certainty. For these reasons and all those that I have previously given, I ask the noble Lord opposite to withdraw Amendment 7. I repeat that I shall say something further on a later amendment about the way in which we hope to provide a more generous compensation scheme.

[Lord McKenzie of Luton]

I thank the Minister for what he said in his response, although it does not take us far enough. I look forward to what he has to say on subsequent amendments and look forward to reading a copy of the letter from the Minister for the Cabinet Office.

From what was quoted from that letter, it did not seem to deal with the particular point about the caps being arbitrary and disproportionate. The Government in their own language have talked about them as blunt instruments and have identified them as a minimum and as a starting point for negotiations. The Government themselves have, in agreement with most of the trade unions, developed a scheme which is substantially in excess of what those caps provide. The very existence of those caps, according to the JCHR—and one can see the reasoning—are a threat to the compatibility of the policies with the convention. It does not help the Government’s case at all to retain those caps. On the basis of what the Minister argues, is it not the case that it would take only one person to appeal the new scheme for the Government to consider imposing the caps? They would remain an ever present threat for all of our civil servants while that is under way. That is one of the reasons why they should go from the Bill.

I can see from the Minister’s face that I am unlikely to convince him and to cause him to change his mind immediately. What I need to do is to test the opinion of the House on this matter.

16:27

Division 1

Ayes: 161

---

Labour: 147
Crossbench: 7
Independent: 2

Noes: 222

---

Conservative: 118
Liberal Democrat: 56
Crossbench: 37
Bishops: 2
Ulster Unionist Party: 2

16:40

Clause 4 : Final provisions

Amendment 8

Moved by

[Lord McKenzie of Luton]

8: Clause 4, page 4, line 31, at end insert—
“( ) Section 3 comes into force at the end of the period of 1 month beginning with that day.”

[Lord McKenzie of Luton]

Amendment 8 addresses a practical issue concerning the timing for a new scheme, the coming into force of the Bill and the operation of any caps, now that they look likely to remain. It would delay the commencement of Clause 3, which sets the caps, until a month after the Act is passed by Parliament. Indeed, we would be amenable to a later date, should the Government consider that more time is necessary; or to the more flexible option of that clause being subject to a commencement order to be laid by the Minister.

We took from our earlier discussions that the sequence of events would be as follows. On day one, the Act would enter into force. On day two, Section 3 would be repealed by order. On day three, an order outlining the new CSCS would be laid, to be brought into effect immediately. However, from our discussion with the Minister and his officials earlier this week, it appears that there may now be a noticeable gap between the entry into force of the Act and the laying of the scheme order. This may be influenced by the timing of the conclusion and outcome of trade union ballots, which we understand will be on 14 January 2011. We are concerned that this delay will mean that people will be subject to the effects of the caps before the Government get around to repealing them and making an order for the new CSCS.

This produces an intolerable situation, in which those made redundant or agreeing to voluntary separation between entry into force of the Act and the laying of the order for the new scheme would face the limits imposed by the caps. It would be possible to cater for this by inserting a delay for the coming into effect of Clause 3, hence our amendment. We have assumed a delay of one month but the Minister may wish to comment on whether this period is likely to be sufficient. As noted, an alternative way of dealing with this would be for there to be a power to bring the section into being by order so that alignment could be assured, although Clause 4(4) might need to be adjusted if this route were followed.

This practical issue is yet another reason why the caps are more trouble than they are worth and why they should be removed from the Bill, but I acknowledge the vote that we have just had. However, if removal or delayed introduction are not supported, what will happen in this interim period? Will departments be advised not to proceed with any separations until a new scheme or order is made? What advice has been given to date? When we raised this issue with the Minister in our meeting, it was clear that officials had not given total thought to the matter. What reassurance can the Minister now give to civil servants who are expecting redundancy? If Royal Assent is given before the Recess and the new scheme does not come into effect until mid-January, or even later, it will consign potentially thousands of civil servants to a pretty miserable Christmas. How will the Minister ensure that there is a level playing field in operation? Since each department is, I understand, a separate employer, it would remain within the discretion of a department to treat individual employees as it saw fit. In the absence of repealing Clause 3, this would mean that it had to impose the statutory maximum on any redundancy payments. This would be the law. What is to stop departments with hard-pressed budgets being tempted to proceed in the window where the caps drive the compensation limits? Should this happen, what commitments should be given about bringing people up to the level of the new scheme when this is introduced?

These are real practical issues. We do not raise them just to be picky over the wording of the Bill. If the caps are to take effect in the circumstances outlined, they will have a real and detrimental impact on the lives of people subject to the scheme. If the Minister is not able to meet us on the detail of the amendment, I would press him to be very clear on the record about how the Government are to handle these matters. I beg to move.

[Lord Maclennan of Rogart]

My Lords, I feel some sympathy with the practical inquiries that have been made. It appears unlikely that there will be no redundancies between the date of the passage of the Bill and the introduction of the new compensation scheme. It is also possible that someone may test the compatibility of the Act with the human rights convention before the new compensation scheme has been introduced. Some reassurance is needed. The Government have given indications that they do not wish there to be a significant lapse of time between the enactment of the Bill and the introduction of the new scheme—which would obviate the problem—but that is not now a certainty. In those circumstances, if the Minister is not able to answer the question today, it would be very helpful if he undertook to answer this after due consideration of the issues raised by the noble Lord, Lord McKenzie.

16:45

[Lord Wallace of Saltaire]

My Lords, the Opposition wish to cast me—or the Government—as Scrooge, or I believe it is the Grinch that the younger generation talk about. The idea that the Government are looking for the opportunity to dismiss huge numbers of civil servants between 23 December and 10 January is an interesting but an unlikely one—indeed, an unreal one. The Government are still looking to lay the new scheme on the second sitting day following Royal Assent. An order to move the caps would be laid in the first sitting day following Royal Assent, which would have advice issued on the operation of the cap by the Minister to the department. As we have already said, we would be minded to increase the level if no agreement has been reached. As the noble Lord has already remarked, a number of unions are already balloting their members on the scheme that has currently been offered, with the negotiation and participation of several of the unions concerned.

One Government or another have, for two years or more, been negotiating on this scheme. Further delay does not seem desirable. I offered repeated assurances about the Government’s purpose in retaining, and our intentions on using, Clause 3 in the Bill—whether there might be some circumstances in which, for whatever reason, the new scheme could not be implemented. We do not see a justification for any further delay. I am not persuaded that we should accept Amendment 8 or any other proposal to further delay any part of this package. The Government are able to carry through the implementation rapidly. Members will understand that government, as well as Parliament, tends to slow down a little over the Christmas and new year break. If these matters are not completed by the time we rise on 22 December, action will be taken very quickly when we all return on 10 January. It is not an enormous delay and I therefore do not see the necessity of the amendment. I therefore ask him to withdraw it.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his response but it does not altogether deal with the issue that I seek to raise in this amendment. I can see that if the new scheme proceeds very quickly in early to mid-January, there is a limited window within which my concerns might arise. However, as I understand it, there is no certainty that the date will be the middle of January; it could be later. We do not know what will happen with the trade union ballots and whether that may affect the Minister’s view. This is absolutely not about delay because it does not touch on the date for the introduction of the scheme; it is about seeking to align the time at which the caps bite with the scheme, otherwise you would have a period in which the caps drove the compensation scheme, and that is a cause for concern.

I can see that encouragement and guidance might be given but, at the end of the day, departments are their own masters in this matter and in circumstances where departments are faced with very squeezed budgets the measure could give rise to difficulties. If the scheme is laid on 10 January—I think that is what the noble Lord suggested—I accept that there is only a very narrow window. If there were to be a wider gap—I think that this is taking us on to the next amendment—one way the Government might respond would be to increase the caps under Clause 3(11). That would certainly help to ameliorate the issue but not deal with it completely. Perhaps we should await the debate on the next group of amendments, but the Minister might reflect further on this. I hope that he will be as specific as he can on the record—if not today, perhaps at Third Reading—on a not insignificant gap opening up between the date that the caps come into effect, the date that the scheme is laid and comes into effect, and the Government’s response to that. That would be helpful because, as I say, we have identified a genuine concern. I am grateful to the noble Lord, Lord Maclennan, for recognising that concern. I am happy to leave it at that for now but ask the Minister to reflect further on this to see what reassurance he can give on the record in the event of the gap widening. Subject to that, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendments 9 and 10 not moved.

Amendment 11

Moved by

[Lord McKenzie of Luton]

11: Clause 4, page 5, line 1 after “(5)(c)” insert—
“(a) may only be made if, at the same time, the Minister makes an order under section 3(11) of this Act to align the provisions of section 3(2), as far as practicable, with the current terms of the civil service compensation scheme; and(b)”

[Lord McKenzie of Luton]

My Lords, in moving Amendment 11, I shall also speak to Amendment 12. We have been unsuccessful in deleting Clause 3, although we expect it to be repealed at some stage before the new scheme is introduced. The Minister has confirmed that that is the case. Government Amendments 13 and 15, which we will support, mean that Clause 3 can be revived for a period of up to six months, provided that the revival takes place within the three-year period starting when the Act is passed.

Amendment 11 would require that any revival of Clause 3 must be accompanied with an order under Clause 3(11) uprating the caps to a level consistent with the CSCS then in operation—that is, the revised CSCS introduced by order following the coming into force of the Act. It is accepted that a precise alignment may not be possible, hence the “as far as practicable”. I cannot see that the Government should have any difficulty with this unless there is an issue about wording, which could be revisited at Third Reading. It is understood that this would be their intention in any event. I think that the Minister hinted that that was the case in our debate on the earlier amendment, but perhaps he would confirm that. There would be no downside, as the measure would align the caps only with the new scheme; there is no additional financial commitment. It would help to address the concerns raised by the JCHR and provide some comfort to civil servants who believe that, at the end of the day, the caps will determine what they get.

Amendment 12 would reduce the time during which revival can take place from three years to one year. We have heard no detailed explanation of why three years is included in the Bill, so the Minister might take this opportunity to explain that in a bit more detail. He might also take the opportunity to be a bit more specific about the precise circumstances and the process under which any revival might proceed. I beg to move.

[Lord Wallace of Saltaire]

My Lords, I thank the noble Lord for the care with which he has approached this entire Bill. It is a complicated Bill and a complicated scheme; all those in the previous Government and in this Government who have been involved in these negotiations will know how complex it is, particularly when issues of judicial challenge come in. I assure your Lordships, once again, that the Government intend to repeal Clause 3 when the new scheme is ready, in order to enable that scheme—as I have explained, we have agreed that it will be more generous than the minimum reasonable levels set out in the caps—to be laid before Parliament and to take effect. It is not our intention to leave the caps in force for any length of time, since we want to make progress in delivering a reformed compensation scheme for the Civil Service. However, if Clause 3 were not yet in force when the new scheme is ready, as we hope will be the case before the end of the year, we would need to do one of two things. We would either proceed with laying the scheme before Parliament, without having available for several weeks the potential fallback of Clause 3, or we would move that a new scheme be put into place at that point.

I have listened with interest to the noble Lord’s detailed arguments and I thank him for giving me notice of Amendments 11 and 12 earlier this week. I have some sympathy for the reasons behind Amendment 11, but I shall explain that there are reasons why the Government are unable to accept this particular approach. The noble Lord has made it clear that Amendment 11 is aimed at testing the intention behind the power in Clause 4 to revive the caps in Clause 3 and to ensure that they would be reviewed if there were circumstances in which they had to be revived at a later date.

Our view is that there are some significant problems with the drafting of Amendment 11, which we do not think could be resolved. First, the amendment requires the revived caps to be aligned,

“with the current terms of the civil service compensation scheme”.

On the face of it, this might mean maintaining compensation payments as closely as possible with the terms of the proposed new Civil Service Compensation Scheme, which it is intended to put in place as soon as possible after the Bill receives Royal Assent. However, if the new scheme were struck down by challenge in the courts, it seems quite possible that it would not be interpreted as “the current terms”; rather, those terms might need to be interpreted as the terms of the previous, pre-2010, scheme, which would solve nothing, as that is the scheme that both this Government and our predecessor concluded must be reformed.

Even if this were not the case, the wording,

“align ... as far as practicable, with the current terms”,

is not at all clear and might itself be subject to challenge. It would not be as simple as the Government changing the caps to the numbers of months’ service specified in the scheme—for example, replacing 15 months with 21 months. We have made it clear that such an approach would not work, as staff accrue compensation payments differently under the existing and proposed new schemes and so simply changing the number of months stated in the caps would not keep compensation payments within the same cost envelope. We are simply not confident that the words “as far as practicable” would provide sufficient flexibility to set caps that would fully take account of differences in accrual or other issues determining the likely profile of departures.

While for these reasons I have considerable difficulties with the drafting of Amendment 11, that is not the end of the matter. The Government have provided in the Bill a power at Clause 3(11) to increase by order the number of months specified in the caps. I emphasise again that this is a power to increase and not a power to decrease the caps. The powers are there for a reason, which is that, just as the noble Lord has indicated, there might well be very good reasons why the caps should be increased should they need to be imposed following a revival of the provisions in Clause 3. If the Government had no intention of ever increasing the caps, they would not have sought this power.

17:00

I hope that the noble Lord will accept that if, following the expected repeal of the caps in Clause 3, it is necessary at some stage in the future to revive the caps, the coalition Government will undertake to review their level. Should there be a genuine problem that could result in the imposition of the caps leading to a general reduction in the value of compensation benefits payable, we will indeed use the power to increase them.

The commitment that I am putting on the record today is this: if we need to use the revival power in Clause 4 to bring back the caps because the new Civil Service Compensation Scheme is set aside, we will, first, undertake to review what the impact of operating the caps would be compared to the new compensation scheme; and, secondly, if there were a significant detriment in practice in operating the caps as they are, we undertake to table an order under Clause 3(11) to increase the caps to such a level that would, as far as is both fair and affordable, reflect what would otherwise apply under the new scheme. I am not sure that I can say any more, as the circumstances that we are talking about might never arise. However, if they do, that is what the Government will do. I very much hope that that provides the reassurance that the noble Lord is looking for to enable him to withdraw Amendment 11.

I cannot accept Amendment 12 either, but for rather different reasons. In Grand Committee, I brought forward government amendments to limit the period within which the powers in Clause 3 could be revived to three years. I believe that that is a reasonable timescale. I am afraid that a one-year limit simply will not do, as a legal challenge could quite possibly still be in progress within that time. Such a challenge might not set aside the new scheme—we might not know until after the end of legal proceedings what the position would be—so we would not necessarily need, at the outset, to revert to the existing, unaffordable scheme. Thus, we would need to apply the caps. Indeed, it is even possible that one would not have emerged within such a short a period as 12 months.

Of course, I understand that the powers to revive primary legislation by order are unusual and should be used sparingly. That is why we introduced the three-year limit. Also, as we shall be discussing under the next group of amendments, that is why we have accepted the arguments made in Grand Committee that we should not be allowed the power to extend beyond three years by order. I believe that that is a considerable concession. For those reasons, I cannot accept any further reductions to the limits that we have set and, therefore, I ask the noble Lord not to move Amendment 12.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for what he has put on the record, which is helpful. Obviously we shall want to read what he has said and reflect on it. I noted that there were references to “significant detriment” and “fair and affordable”, which is not overly precise language. However, I accept the thrust of what he said, which provides some comfort on the issue of revival of the caps. The noble Lord, when a little on the back foot, sought to pick away at the detail of an amendment—I suppose I did that as a Minister—but, if necessary, that could be tidied up at Third Reading. The key thing is that we have something robust on the record. I would like to reflect on this and to read Hansard just to see in the cold light of day how far this goes, but it has been helpful. There is certainly no intention to press these amendments to a vote today. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12 not moved.

Amendment 13

Moved by

[Lord Wallace of Saltaire]

13: Clause 4, page 5, line 2, leave out from “passed” to end of line 10

[Lord Wallace of Saltaire]

In moving Amendment 13, I shall speak also to Amendment 15. These are government amendments, but I am pleased to say that, unusually, they have the support of a broader coalition with the Front Bench opposite, as I am pleased to see that the noble Lords, Lord McKenzie and Lord Brett, both have their names to these amendments on the Marshalled List. The Government responded to criticism from the Delegated Powers and Regulatory Reform Committee of the unlimited time in which the caps proposed in what is now Clause 3 could be revived by introducing a three-year time limit. The government amendments in Grand Committee were intended to respond to that concern; as I made clear then, the Government accept that there should not be an unlimited power to revive Clause 3. Such a power might then be used many years in the future, in circumstances that we could not predict today and would clearly be unjustified.

However, on reflection, I believe that the amendments that we tabled then may not have had the desired result. In Grand Committee, there was a moment when I recognised that the Government were in a rather weak position, when it was pointed out by noble Lords that, while we had put a time limit on the power to revive the caps in Clause 3, we had not at the same time introduced a power to extend the time limit by a further six months. Had we done that, that power could be used to further extend the power by another six months and another six months, and so on indefinitely. Indeed, the noble Baroness, Lady Drake, commented,

“that does not seem much of a concession”.—[Official Report, 10/11/10; col. GC 58.]

I had to admit that she was probably right. I trust that your Lordships recognise that, when it is clear that the effect of the powers in a Bill do not achieve what the Government had intended to do, we will try to put it right. That is what we are doing in this amendment today.

Accordingly, we have decided that, for clarity, we should dispense completely with any power to extend further beyond three years the time limit on the power to revive the caps in Clause 3. That is what these amendments will achieve. On that basis, I beg to move.

[Lord Brett]

My Lords, my noble friend Lord McKenzie and I have indeed put our names to these amendments. I will avoid wincing a second time at the use of the word “coalition”. It represents, I believe, not so much a coalition but, because we see repentance of sinners, more a congregation. Suffice it to say that I think we have unanimity on this, and I also am moved to support the amendment.

Amendment 13 agreed.

Amendment 14 not moved.

Amendment 15

Moved by

[Lord Wallace of Saltaire]

15: Clause 4, page 5, line 20, leave out “or (7)”

Amendment 15 agreed.

Public Bodies Bill [HL]

Wednesday 1st December 2010 Lords Chamber

Committee (3rd Day)

17:08

Schedule 1 : Power to Abolish: Bodies and Offices

Amendment 19

Moved by

[Lord Greaves]

19: Schedule 1, page 16, line 10, leave out “Agricultural dwelling-house advisory committees.”

[Lord Greaves]

My Lords, we resume our rapid canter through the Committee stage of the Bill. Amendment 19 refers to the,

“Agricultural dwelling-house advisory committees”,

in England and seeks to remove them from Schedule 1. I am not arguing that this is exactly what we should do. This is a probing amendment to establish who will carry out the important role of these committees in the relatively small number of cases involving agricultural tenants of tied housing, in which some 30 per cent of agricultural workers live. They are guaranteed security of tenure in their tied housing for fairly obvious reasons: their housing is tied to their job and their job is tied to their housing. That is a relatively unusual situation nowadays; it used to be a lot more common.

These committees were established under the Agricultural Wages Act 1948 and are now established under the Rent (Agriculture) Act 1976. They are convened locally and hear about 40 to 50 cases each year. Membership is drawn from membership panels that are maintained by the Defra offices in Crewe and Bristol and the meetings are set up on an ad hoc basis according to the business to be conducted. They are not terribly high-powered bodies in the sense of always being in session and always having a lot of business. They have a relatively small amount of business, but it is important. They consist of one member who represents agricultural worker interests and is nominated by the trade union Unite; one member who represents agricultural employer interests and is nominated by the National Farmers’ Union; and one independent member who acts as chairman and is appointed from a panel of persons approved by the Secretary of State for Environment, Food and Rural Affairs.

Agricultural workers living in tied cottages generally have security of tenure, but a farmer may apply to the local housing authority to have a protected worker rehoused if he or she needs the cottage for a replacement agricultural worker in the interests of efficient agriculture. In such circumstances the local housing authority, the farmer or the cottage occupier can ask an ADHAC to advise on the applicant’s case to determine whether it is in the interests of efficient agriculture and urgent. In other words, although the committee can be asked to intervene by any of the parties to the dispute and to the attempt to evict the farm worker from his tied accommodation—in other words, the farm worker or the employer—in practice, the usefulness of these committees is to provide advice to the local housing authority, or the local council, on whether it is a reasonable request.

That is the nub of it. I am not arguing that ADHACs should continue in their present form. It may well be that the number of cases that are dealt with each year is relatively small, and that they could be dealt with in some other way. Some other body could be charged with advising the housing authority, and in this respect I am aware of the position when an application is made for planning permission for a house or cottage to be built in an area of the countryside where it would otherwise not be allowed because of planning rules on building new dwellings in open countryside, on greenbelts, or whatever. What tends to happen is that the planning authority, which is part of a unitary local authority or, in two-tier areas, the district, seeks advice on whether the accommodation is sensibly required from the appropriate department of the local authority responsible for farming and agriculture in the area. In two-tier areas that will be the county council, and in single-tier areas it is another department of the same authority.

There is a duty to advise a housing authority on whether it is reasonable to require the local authority to provide accommodation for someone who is otherwise in tied accommodation, so putting that duty on the relevant department of the local authority—whether it is another department of a unitary or the county council in a two-tier area—is a sensible way forward. It could provide the same safeguards and advice, which the housing authority will need anyway, within the wish of the Government to abolish this particular board organisation. There are sensible ways forward, but they require a bit of care and application by the Government not simply to abolish the agricultural dwelling house advisory committees without having first made appropriate arrangements for other bodies to do what they do because it is a very useful and necessary function. You only have to think of the situation in which you are in tied accommodation because you have been a worker on a particular farm, but you have retired, the farmer needs your house or cottage, you need to be rehoused, and the housing authority needs to have specialist advice as to whether it is a reasonable application to take precedence over all other applications for housing in that area. I hope that I can get an answer from the Government that is sympathetic to what I am putting forward. On that basis, I beg to move.

17:15

[Lord Clark of Windermere]

My Lords, I follow in the tone of the noble Lord, Lord Greaves, who moved this amendment in a very moderate way. He said “necessary” provision. The role of the agricultural dwelling house advisory committees is very limited and focused. Nevertheless, it is critical to the individuals affected. Indeed, over the years the committees have helped greatly to facilitate on the one hand the evils of tied housing and on the other hand the needs of the farmer to get access to his tied house for his necessary employees. So there is a real difficulty there. We are talking about agricultural workers, but the tied cottage also applies to other related employees, such as gamekeepers and gardeners. I am conscious that tied-housing problems remain in urban areas, but the problem is probably not as great in those areas because there is more alternative accommodation in the form of affordable housing, council housing, and so on. In many rural areas the provision of affordable housing is quite low. So the demand is there. This may not be the vehicle to meet the demand, but we need to be reassured that the Government have thought this through and are certain that the new system that they need to put in place will meet the necessary requirement to which the noble Lord, Lord Greaves, referred.

I well remember the Labour Government’s 1976 Act at that time, how it seemed to be a major step forward and how it increased the work of the agricultural dwelling house advisory committees. Over the years the numbers have clearly fallen and the system seems to have worked, but the housing problem in rural areas is deteriorating. Increasingly, there is a demand for people to live in rural areas, a demand for second homes, and a demand for holiday homes as well. Often these are not only the modest cottages that one was used to in the past but increasingly ex-council houses as well. I see the noble Lord, Lord Henley, is here. He is aware that in parts of Cumbria many of these council houses are now used as holiday homes, so the reservoir of affordable housing is decreasing.

All Governments have recognised, in a different sense, that servicemen leaving the services should have priority in affordable housing. The decrease in the number of available houses for rent in rural areas plus the increasing demand for the remaining houses lead us to ask the Government whether they have thought this through. I can see their feeling, need and desire to get rid of the statutory bodies and understand it completely, but we must be convinced that the alternatives of the big society and localism, which the Government seem to espouse so much, will apply. I see nothing in the Bill or in what I have read to convince me that this has been thought through, but I remain to be convinced by the Minister later this afternoon.

[Lord Newton of Braintree]

My Lords, I rather rashly intervene to express my general support for the thrust of the amendment moved by the noble Lord, Lord Greaves. I declare an indirect interest as my wife is a member of the planning authority in the area in which we live—Braintree in Essex—and I know that some of these problems occasionally land up with that committee. I am not an expert, but I think what the noble Lord, Lord Greaves, said about the need for some kind of expert advice in areas where the issue is whether there is an agricultural need is important. I hope that my noble friends on the Front Bench can meet it.

[Lord Whitty]

My Lords, I agree with the general thrust of the approach by the noble Lord, Lord Greaves. I am certainly not arguing for the status quo, although this body has helped to solve a number of acute cases for individual retired farm workers, farmers who desperately need the accommodation to attract further labour and local authorities faced with the housing crunch to which my noble friend Lord Clark referred, so it has been a useful institution. The demand is diminishing, but it is important that we know what will replace this body.

I will make an additional point to the Minister because it goes to the heart of the way in which we are dealing with the Bill. In Schedule 1—and the same will apply to some extent to other schedules—each body has a particular situation to deal with and the Government appear to envisage different consequences of the abolition of those bodies. It is important that this House knows what is in the Government’s mind to replace what has hitherto been an important, if diminishing, function. It is important that we have this in writing, not simply as a reply in the debate. Some of us argued for a Select Committee procedure that would have allowed that to happen away from the Floor of the House, if necessary, and on a different basis of consideration. In this, as in so many other areas, we need to know the total picture. I make a plea to the noble Lords, Lord Henley and Lord Taylor, that as we go through the stages of this Bill, and it looks as though it will be quite a lengthy process, they provide us with that kind of information so that we can have a more rational debate. I make the point on this institution because it is one about which I do not disagree with the Government, but we need to know in all cases what is intended to replace these bodies.

[The Earl of Caithness]

My Lords, like the noble Lord, Lord Clark of Windermere, I remember the 1976 Bill coming through Parliament. I was on the Benches that he is sitting on now. I thought it was a bad Bill then, and it has remained a bad Act, in particular with regard to ADHACs. The noble Lord, Lord Greaves, said that this body is necessary. If it had been necessary, it would have been compulsory to have consulted an ADHAC. As it is, it is a purely voluntary agreement that an ADHAC can be used for consultation with the housing authority if necessary. The vast majority of cases are dealt with directly with the local housing association, so “necessary” was not the right word to use in this instance.

The noble Lord, Lord Greaves, said that there are 40 to 50 cases a year. I question that. My information is that the number is almost in single figures now. Sixteen ADHACs have some 10 cases a year in total. That means that half of them are not doing anything at all. It is high time we got rid of them, and I thoroughly support my noble friend in this. Could I just ask him whether, when we come to the follow-up legislation, he will propose to get rid of all 16 ADHACs at once, rather than one by one?

[Baroness Quin]

My Lords, I support the noble Lord, Lord Greaves, in having tabled this amendment, which allowed this issue to be aired through this short debate. I know that he had some support from my noble friends who added their names to his amendment, which is symptomatic of a wider concern than if the amendment had simply been tabled in his own name. It shows concern that the issues that the agricultural dwelling house advisory committees have been dealing with are still important to address for the future in whatever way the Government are envisaging. We will be very interested to hear how the Minister responds to this debate.

It seems to me that the scale of the issue is quite important, despite what the noble Earl, Lord Caithness, has just said. As I understand it, 30 per cent of agricultural workers live in tied accommodation. Given that there are some 150,000 agricultural workers, we are talking about a considerable number of people who could avail themselves of this service. Obviously, there is some dispute about the figures; I am also aware of the figures cited by my noble friend showing that the advisory committees deal with about 40 to 50 cases each year. The noble Earl has given us different figures. Perhaps the Minister, in his reply, might like to give us the official Defra figures for this process.

Even if the figures are lower than I and my noble friends believe, that does not necessarily mean that all the committees should disappear. There might therefore be an argument for rationalising the structure. I do not know if this is something to which the Government have given consideration. If there are cases—sensitive cases, because they concern people’s accommodation and whether they are going to be able to stay in their homes or be forced to move—being dealt with properly by the committees in a sensitive and efficient way, then it would be very unwise to simply disband the committees without having some very clear assurance as to how these matters will be dealt with in future. Perhaps the Minister can give us some figures showing whether the tempo of consultations and referrals to the committees has increased or decreased in recent years. The noble Lord, Lord Greaves, was quite right to stress, as the major point of his argument, the importance of how these issues are going to be dealt with in future and whether there will be people who know of the special circumstances of agriculture and the agricultural industry who will be able to deal with them.

Consultation is also important. I see that the noble Lord, Lord Taylor of Holbeach, is in his place. Much to the House’s pleasure, he gave it some assurances about the consultation process to which he was committed while taking forward the provisions in this Bill. It would therefore be interesting to know what consultation has taken place so far on this issue with those likely to be affected and those who are members of the committees at the moment, and to know whether they judge their work likely to decrease or increase. After all, there are quite a number of different and even specialised aspects to agricultural tenancies; for example, the different types of tenancy—protected, statutory or assured. We need to know that there will be people who understand how the system works and will be able to operate it in future. The point has also been made to me that when farm workers come up for retirement but want to stay in their homes, that can be a difficult time. Therefore, we are entitled to ask who will represent and support farmers at that stage of their lives and in those circumstances.

17:30

The Minister and, no doubt, noble Lords around the House will have seen the recent Joseph Rowntree report about income standards and conditions in rural areas. It came out last week and makes a number of interesting points, not least that which was referred to by my noble friend Lord Clark of Windermere when he talked about the lack of availability of affordable housing in rural areas, which makes the issues that we are looking at important. There are also planning difficulties. It was interesting to hear the contribution of the noble Lord, Lord Newton of Braintree, to this debate.

I understand the costs of removing these committees to be in the order of £13,000, which is rather a modest sum. It is strange that on the previous group of amendments, which we considered the other day, many of us had the impression that the bonfire of quangos was largely about saving money and deficit reduction, yet so far the amounts at which we have been looking have been very modest. Therefore, we are right to ask whether these modest reductions in costs will lead to something worth while. It has been somewhat puzzling to see how modest the costs have been in terms of the measures with which we have been dealing.

Finally, I should also like to ask about the situation regarding this area in the devolved territories. Certainly, on the Welsh Assembly Government’s website there is still information about how to apply to agricultural dwelling house committees. It would be good to know from the Minister what consultations he has had with his counterparts in the devolved Administrations and whether they have raised some of the concerns about the way forward which have been raised today.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)]

My Lords, in moving this amendment, my noble friend Lord Greaves said that this was his first amendment during what he described as a rapid canter through Committee on this Bill. I am not much of an equestrian, but “rapid” and “canter” are not the words that I would necessarily give to it at this stage. But I accept that my noble friend was merely putting forward a probing amendment. Therefore, I will try to set out why we think it is right that we are abolishing these committees.

As many noble Lords have said, ADHACs were set up under the Rent (Agriculture) Act 1976. The noble Lord, Lord Clark of Windermere, remembers the Act, as does my noble friend Lord Caithness. Sadly, I was not in the House, so I cannot go back quite that far. But I listened to both of them and they had rather different views. My noble friend made clear that ADHACs were set up to have an advisory role—I was very grateful he stressed that—in the rehousing of agricultural workers. To get on to the whole problem of accommodation in rural areas is stretching the point a bit too far. We are talking only about ADHACs and the advisory role that they had.

The purpose of the Act was to give those who lived in tied houses, such as agricultural workers, former workers and their successors, security of tenure and protection from eviction by their employer. Under the Act, a landlord can make an application to a local housing authority to rehouse a protected tenant on the grounds that the property is required for a new worker; that he is unable to provide suitable alternative accommodation for the existing tenant; and that the housing authority ought, in the interests of efficient agriculture, to provide suitable alternative accommodation. The landlord, the tenant or the local authority may refer such applications to the local ADHAC for advice on the agricultural need and the urgency of the application. However, there is no statutory requirement to consult an ADHAC. Again, I am grateful to my noble friend for stressing that point. Where advice is sought, the housing authority is currently obliged to take that advice into account when considering its housing priorities. But it is only a matter for the housing authority to take that advice into account.

Since the Rent (Agriculture) Act came into force, there have been significant changes to housing legislation, which have enabled farmers to let cottages to farm workers using an assured shorthold tenancy. As a result of these changes and changing employment practices within the farming industry, the use of ADHACs has fallen from what used to be something of the order of 500 cases per year in the 1980s to something fewer than 10 this year. To assist the noble Baroness with those figures, I can tell her that in 2007 there were nine cases, in 2008 there was a dramatic increase to 12, and in 2009 there were a further 12. So far we have had eight this year. As the noble Lord, Lord Whitty, put it, demand for this service is diminishing—and it is diminishing pretty fast.

In the light of this, the Government consider that, as the functions of the ADHACs are largely defunct, it is difficult to justify the retention of 17 different committees. Again, my noble friend referred to 16 different committees; I can assure him that there are 17 different committees covering England and Wales, with the associated administrative burden of recruitment and training of members. I appreciate that the cost is relatively low. The noble Baroness, Lady Quin, asked whether it was just £13,000. That is the figure I have for the direct administrative costs, but there will be other costs to the department in terms of the secretariat needed for 17 different committees in England and Wales.

Furthermore, it should be made clear that the function can be, and indeed is, carried out equally effectively by the local housing authorities on their own account, as my noble friend Lord Greaves seems to suggest. Many local authorities already take decisions on rehousing without the advice of an ADHAC. I can assure the Committee that the abolition of ADHACs will not remove any of the protection afforded to agricultural workers and their successors in tied housing. The only change will be when a local authority receives an application for rehousing a worker in a tied cottage; the local authority will need to determine the agricultural need and urgency of the application on its own account, as it does now in the vast majority of cases. Again, I stress, we have had eight uses of ADHACs in this year. I imagine, as we are already into December, that figure is unlikely to increase by that much.

There is no intention to change the provisions in the 1976 Act which give security of tenure to protected tenants; tenants will not be disadvantaged by the proposed abolition of ADHACs.

The noble Baroness, Lady Quin, asked about devolved Administrations—obviously in this case we are talking only about Wales, because this part covers only Wales. Yes, we will consult the Welsh Administration in the appropriate manner.

Finally, my noble friend Lord Caithness asked whether—or seemed to imply—we would need 17 different orders to abolish these. My understanding is that the power is such that there will be only one. I think that we—the noble Baroness as the opposition spokesman, and I as the Minister dealing with this in the Moses Room—will have to deal with only one rather than 17 different ones; I cannot remember whether the procedure is affirmative or negative. I hope with those reassurances my noble friend will feel able to withdraw his amendment.

[Lord Greaves]

My Lords, I am grateful to everybody for the constructive and consensual way in which the amendment has been discussed. The question of the number of individual cases per year has been raised. I am sorry if the figures I cited were rather larger than is actually the case. The figures came from what I took to be an official authoritative source on the internet, but perhaps that is a lesson for us all. I will go back and check that source, but that is clearly what it said.

A question of general interest was raised. I deliberately did not call the bodies “quangos”, for the very reasons that noble Lords mentioned; that is, that their scale and cost are small. In many ways, they strike me more as part of the big society than as quangos, but perhaps I should not pursue that very far. Perhaps there are parts of the big society which have performed a useful function in the past and are now redundant.

The Minister responded to my use of the phrase “rapid canter”. It is always a little dangerous to try to use irony in your Lordships' House, not least because Hansard has not yet got round to the use of smileys, which, as many of us know to our cost, are necessary if you are trying to say something ironic because a lot of people will otherwise read it absolutely flatly. I therefore make it quite clear that I was being absolutely ironic in talking about taking a rapid canter through the Bill, but—who knows?—it may be a rapid canter by the time we have finished.

I am very grateful for the Minister’s assurances that the legal protection for people who have tied tenancies will not change in any way. On that basis, and on the basis that I think that we have had the kind of discussion that I would have hoped for to make the position absolutely clear, I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Amendment 20

Moved by

[Lord Greaves]

20: Schedule 1, page 16, line 11, leave out “Agricultural Wages Board for England and Wales.”

[Lord Greaves]

My Lords, this is a much more substantive and important amendment—not that the last one was not important, but this one is much more so. I shall speak also to Amendment 21, which is grouped with and linked to it. Amendment 20 is about the agricultural wages board, whose purpose is to set the scale of agricultural minimum wages and related minimum terms and conditions of employment. It is an independent statutory body established by the Agricultural Wages Act 1948, and it goes back in its lineage as far as 1924, when there were far more agricultural labourers than there are now.

The question posed by the amendment is: are the functions of the AWB still needed, in whole or in part; and if they are still needed, in some way at least, is the best way to carry them out through the continued existence of the AWB or in some other way? There has been pressure for its abolition. The NFU has called for it, although not all farmers who employ agricultural workers would welcome that because it provides them with a clear framework of what they should be paying without having to negotiate. Its abolition was promised in the Conservative manifesto at the last election. It was not in the Liberal Democrat manifesto and was not in the coalition agreement. It is opposed by the relevant trade union, Unite. That information sets the amendment in its political context, but, as we know, the manifestos on which the last election were fought are probably redundant following the formation of the new coalition Government.

Liberal Democrat spokespersons, including my honourable friend Andrew George in the House of Commons, have expressed concern at the abolition and the potential removal of existing protections. The proposal to abolish the body was announced by the Secretary of State, Caroline Spelman, on 22 July, but it was done so, to the best of my knowledge, without any prior consultation. Any consultation would still have to take place.

The agricultural wages board consists of 21 people, comprising eight representatives of the employers, nominated by the NFU; eight representatives of the workers, nominated by Unite; and five independent members, including the chairman, appointed by the Secretary of State and the Welsh Assembly Government. I shall not speak much about the regional agricultural wages committees, which are the subject of the second amendment in the group, but they are linked to the AWB and basically set up by the same legislation.

17:45

What does the AWB do? It meets each year to make an Agricultural Wages (England and Wales) Order, which sets the agricultural minimum wage and other terms and conditions from 1 October each year. It may meet again to make amendments during the year.

The agricultural minimum wage must not be lower than the national minimum wage. There are currently six categories determined according to responsibilities and qualifications. It starts with grade 1, which is a few pence above the national minimum wage and is basically for unskilled, temporary and seasonal workers. At the moment it is £5.95 an hour, £232.05 a week. The other five grades are higher than that, as you might expect. Grade 2, for example, is the standard worker grade and it requires some minimum basic qualifications or certain responsibilities such as working with animals or driving a tractor, and that is £6.58 an hour. The grades progress to grade 5, the supervisory grade, at £8.23 an hour and grade 6, the highest, which is the farm management grade. The recipient of this grade may have responsibility for a whole farm and for employing and disciplining staff, so it is not a trivial job. The minimum rate for that is £8.88 an hour at the moment, £346.32 a week. These are not huge salaries and wages by any stretch of the imagination, but they do provide a guarantee for people working within the farm industry.

It is generally recognised that reform and modernisation are needed, and the board itself is keen to change the structure of the arrangements to a degree, and to change the consultation arrangements and procedures. For example, there is clearly a need now for the minimum wage in each category to be stated in annual, rather than in hourly or weekly amounts, and there is clearly a possibility that the whole system could be simplified and that some of the detail could be removed from it. But this still applies to 154,000 workers. It is not something trivial that can be discounted on the grounds that it is no longer needed because there is hardly anybody involved. There are far fewer than there used to be, but nevertheless, there are still 154,000 workers—that is 154,000 families. It is a lot of people.

What will happen if the agricultural wages board is abolished? Will there be a new national system set up? Will there be a bargaining system set up within the industry—an unofficial system, as it were—outside the purview of statutes and government, in which employers and representatives of agricultural workers negotiate? Or to what extent will it be left to individual farmers to negotiate with their own workers or just impose the terms and conditions and wages that they want to impose above the national minimum wage?

It has been said that the national minimum wage now makes the AWB unnecessary, but quite clearly that is an argument that would apply only to the very basic level of grade 1, which only applies to a minority—I think it is about 20 per cent of workers. The cost of the organisation is reported as £195,000, together with servicing costs from Defra itself of £77,000 which totals £272,000. This is not insignificant even nowadays, but again, it is not a huge figure.

Two questions arise. First, if it is abolished, in the absence of protection, what is to stop wages and terms and conditions of employment being squeezed, being forced down due to the pressure that we all know exists on farm gate prices, particularly from supermarkets and from food processors? At the moment, many farmers are adversely affected by market conditions and by their inability to match the monopoly powers of the people that they sell their produce to. However, they cannot compensate for that by reducing the wages that they pay below the AWB rates—the minimum agricultural wage rates. If they were able to do that, it seems highly likely that it would happen in a significant number of cases and wage rates would go down. Unite believes that if that happened, industrial action would be inevitable. I cannot comment on that and have no idea whether it is true. But I believe that if agricultural wages were to fall in the present circumstances, that in itself would be wrong.

The second question is: what is the best way forward? If savings can be made and the system can be streamlined to an extent, I do not think that any of us would disagree with that. I am certainly not going to go to the wall to defend the existence of a particular quango—and I think that this probably is a quango. The AWB as it stands may or may not be the best way of doing it. I am not asking the Government to stand and have an argument today and in future weeks over the existence of a particular body; I am asking them to look for a better way forward without prejudicing existing protection for what is still a relatively vulnerable group of workers. I beg to move.

[Baroness Prosser]

My Lords, I support the amendment put forward by the noble Lord, Lord Greaves. I also declare an interest as a member and previous deputy general-secretary of what is now the union Unite, which, as has been said, is the union that organises agricultural workers.

The noble Lord, Lord Greaves, said in moving this amendment that the agricultural wages council has been with us for a very long time. It came from the original trade board which was introduced at the very beginning of the previous century. When the Bill setting up that board and a number of other councils covering other areas of industry was introduced, it was supported by Members of Parliament from across all of the Benches. The thinking at the time—and this is why I and, I think, the union feel so strongly about this—was to encourage support for the wages councils, particularly the agricultural wages council, and the reasons behind that have not changed. The thinking was that there are certain areas of industry where it is enormously difficult to organise the workforce or protect it in a day-to-day way.

As noble Lords will know, aside from the agricultural wages boards, all other agricultural wages councils were abolished back in the 1980s. The agricultural wages council itself was retained because there was continuing recognition that this is a very difficult area in which to organise the workforce, and also because particular aspects of it need to be protected. The most particular aspect is that in many circumstances the relationship between the worker and the employer is very personal. The relationship often involves just one or two employees and one employer. It is a very close relationship where day-to-day friendship and trust has to be established. How, in those circumstances, can the employee raise for himself or herself the sorts of questions that need to be answered if that employee is to feel secure in his or her employment and endeavour to improve his or her circumstances?

The noble Lord, Lord Greaves, has already talked about the various grades available to agricultural workers. Moving along those grades depends on having had access to certain kinds of upskilling and training. How can a worker—knowing, quite often, that circumstances may be quite tricky on the farm; that they may be struggling in economic terms, or in terms of access to manpower—raise his or her own concerns and promote his or her own interests? It is very difficult. That is precisely why the agricultural wages board was retained when the other wages councils were abolished. I can see no reason why we should look at this now and say that things are any different.

I accept that life moves on, that nothing should be set in stone, that we have to look at arrangements that have been with us for many years and consider whether those arrangements are still appropriate. But nothing has changed in the day-to-day experience of those workers that would allow us to say that their protections should be lessened, loosened or removed in any way. The national minimum wage does not compensate and would not cover the circumstance which the agricultural wages council rules cover in terms of protecting that workforce.

With those few words, I support entirely the amendment put forward by the noble Lord, Lord Greaves.

[The Duke of Montrose]

My Lords, may I add a few words as an agricultural employer with a couple of agricultural workers? I must say that the two workers I employ are never loath to come and argue with me about what their wages should be. On the question of the agricultural wages board and the rate set, I am speaking, of course—it may be a difficult adjustment—of the Scottish Agricultural Wages Board and Scottish agricultural wages rates, with which I am familiar. I think one can almost say that practically no workers are paid the minimum that is laid down. It is used as a guide on which increments are added. That is true for full-time workers.

One area where the wages board is useful in our area is in dealing with younger workers, although, of course, everything is now tied back to the minimum wage. The minimum wage can serve as a guideline on what increases are useful or necessary in any given year. The other area—I do not know whether it exists so much in the English agricultural wages board—are the wonders, some of which no longer exist, which were called perks. What was the value of perks such as milk and potatoes? A wonder that still exists up in the north is that the provision of a house with hot and cold running water allows a deduction of £1 a week from the agricultural minimum wage.

Will my noble friend the Minister say whether these areas might need some guidance or a body to direct them? The final one, which is of interest in my area, is a shepherd’s provision of dogs, which has a special rate for it.

18:00

[Lord Whitty]

My Lords, I support the noble Lord, Lord Greaves, in his argument and agree with pretty much everything that he said. I caution the coalition Ministers that they will frequently find that propositions that have been put to successive Governments and their Ministers get dusted off and re-presented to new Ministers. Sometimes—I do not wish to impugn the noble Lord—Ministers are credulous enough to accept them, even though their predecessors have rightly looked at and rejected them. To my knowledge, the proposition of abolishing the agricultural wages board has continued for the past 40 years. It has come less from officials in MAFF or Defra than from pressure from the dead hand of the Treasury and the free labour marketeers in what is now BIS. That pressure is evident here. Certainly that pressure was put on Mrs Thatcher’s Ministers, who rightly resisted it. It was put on John Major’s Ministers, who also rightly resisted it. To my certain knowledge, every Secretary of State and junior Minister for Agriculture in the previous Administration was under such pressure and we rightly rejected it.

The noble Lord will say that things have changed. He has some justification because two things have changed slightly. First, for most of that period most farmers were in favour of maintaining the wages board. That is no longer entirely true. The upper echelons of the NFU have started voting with the workers rather than the farmers, who have taken a rather more jaundiced view of the wages board, even though it has meant a fairly balanced result for both sides in the long run. Many others, who are not necessarily in the top echelons of the NFU, are still favourably inclined towards the wages board because it saves small farmers a lot of work in trying to establish the appropriate rate for a skill and all the other terms and conditions. They would otherwise have to go through all that themselves. Indeed, some farmers’ organisations are still in favour of the wages board. The Famers’ Union of Wales, for example, is in favour of retaining it and opposes this proposition, as do the Welsh Government. We are talking about a body that covers England and Wales; there are devolution issues here. As far as I am aware, the proposition in Scotland is entirely separate. The noble Duke, the Duke of Montrose, who I am sure is one of the more benevolent employers north of the border, will find that there are Scottish farmers who still wish to retain the process. It is not true to say that all farmers, as employers, are now opposed to the continuation of the board.

Secondly, although we now have the national minimum wage, it deals only with the absolute minimum, as my noble friend Lady Prosser pointed out. There are differences of only a few pence in that area. The whole structure of skill rates and different time rates and the whole issue of non-wage benefits, which were dealt with by the wages board, are not dealt with by having a minimum wage. The whole grading structure is in peril if this board is abolished.

As the noble Lord, Lord Greaves, said, that is not to argue that the present structure could not be hugely simplified. Indeed, the previous Government looked at bringing forward a legislative reform order that would have reduced the number of committees, simplified the process and, to some degree, made the process for the agricultural minimum wage equivalent to that for the minimum wage. That was a sensible proposal, which would have had to follow the procedure of the Regulatory Reform Act. At the time, some noble Lords were concerned that the Act was moving towards the Henry VIII end of the spectrum. However, compared to this Bill, it was an absolute doddle for those who wished to preserve parliamentary privilege. It is probably more like a Henry III Bill in that Henry III had to compromise with Parliament. I believe that on some of these issues the Government will have to compromise with Parliament. The process that is being proposed in the Bill, as I have said several times, needs to be addressed.

The agricultural labour force of more than 150,000 in England and Wales—and others who use the wages board as an analogy to avoid engaging in separate bargaining with their employees or their unions—is still an important feature. I hope that the noble Lord can answer the question asked by the noble Lord, Lord Greaves: what will replace the board? Is there any role for the Low Pay Commission to look at aspects of this—at the particular rates and situations that apply to agriculture? Is there really any prospect of collective bargaining if it is not underwritten by the law? Under the legislative reform order that we contemplated, it would have been possible to have moved the agricultural wages board to a more bilateral structure but still with the legal underwriting. That would probably have been a sensible move. I was certainly in favour of it. We could have moved towards it.

If we leave this entirely to collective bargaining, as applies in other sectors, there is, as my noble friend Lady Prosser indicated, the difficulty of organising in this area. I do not have to declare an interest since I am not a member of Unite, although I have some family connections to it. These days I am a resident of Dorset, which is still a major focus of agricultural workers. There, the union’s ability to organise is a little better than it was at the time of the Tolpuddle martyrs, but it is not easy. In so far as the wages and conditions of agricultural workers in Dorset have dramatically improved since those days, they owe a lot to the 100-year operation of the agricultural wages board, rather than the benevolence of employers or the state. It is unlikely that it will be easy to move to a normal situation of collective bargaining in this area.

Perhaps this is not so much a West Country issue. The people who are pressing most for this are horticultural employers, who have a very odd workforce structure. The work is hugely seasonal for obvious reasons. Much of the workforce is made up of migrants, many of whom are very vulnerable. Employers tend to try to pay the minimum rate, if not less. In the horticultural sector, a lot of the seasonal workers, many of whom have skills and qualifications in their own countries, will be pushed down to the minimum rate. The only legally binding rate will be the minimum wage. That, I can see, is desirable for the more ruthless employers in the horticultural sector. However, it is not the equivalent of a situation where you are a permanent employee in a major area of agriculture.

The other question is: who will now enforce the minimum wage in agriculture? It is difficult if we are talking about farms with two or three workers or farms where there are many seasonal workers who move on after a couple of weeks. The agricultural wages board had a rather minimal inspectorate attached to it, but who will now do its work? The Revenue imposes and enforces the minimum wage, but it is unlikely to tramp up and down every farm to find out how much every worker is paid. Enforcement is also an issue.

The question to those of us who oppose the dropping of the wages board is: why is agriculture so different from other areas that it requires a continuing minimum standing wage? The fact is that every other wages board was abolished. The wages councils were abolished in the 1980s and 1990s and the average wage in those sectors dropped significantly. If this is a blatant wage-cutting exercise, we should be told. If, however, it is more that we want to develop a skilled, effective and competitive workforce in agriculture, people must recognise that there are several difficulties in this sector beyond those that have already been referred to.

I shall mention some in particular. My noble friend Lady Prosser referred to the rather close relationship that agricultural workers inevitably have with their farmer employer, particularly on small and medium-sized farms where there are only two or three employees. That is fine while it is good. As soon as it breaks down, however, the power relationship between the employer and the individual farm worker is incredibly imbalanced and the worker is incredibly isolated—literally, in geographical terms—because there are no workmates in the same situation.

The other dimension is that the farmer himself or herself is under severe pressure, to a degree that many other small businesses are not. The noble Lord, Lord Greaves, made reference to the role of the food chain in pressuring farm costs, particularly in relation to the supermarkets. I am glad that this Government have decided that they will take up with slightly more enthusiasm than the last Government the proposition for an ombudsman who will look at the contractual relationships between the farming industry and other small providers of food and the grocery chain. I very much commend them for that. However, this is moving in the opposite direction. Within a week or two of the legally binding minimum wages disappearing from horticulture and agriculture, the buyer from the supermarkets will say, “You now do not need to pay the wages that you have previously paid. You can lower your costs and your price to us and provide a significantly lower rate”. The cost benefit, therefore, of cutting wages does not go to the farmer. The employees will lose their living standards and the profit from the whole process will go up the chain to the big processors and supermarkets. If that is what the Government want, it is not in the interests of the agricultural sector. Indeed, it is a downward spiral in the agricultural sector and something that they have recognised needs to be counted in other respects.

Another nefarious dimension of the labour conditions in the agricultural labour market relates to the seasonal and migrant workers operating in many parts of agriculture but particularly in horticulture and in the larger-scale vegetable sector. I was grateful to hear on Second Reading the noble and learned Baroness, Lady Butler-Sloss, ask why the Gangmasters Licensing Authority was in this Bill at all. Speaking as the ex-Minister who brought in that piece of legislation, I am glad that she and others have recognised what a successful operation that is beginning to be. However, it is an uphill struggle because, in this sector, the conditions of the workers are open to the widest exploitation. The Gangmasters Licensing Authority has to check on a number of things. It clearly has to check on health and safety at work and in housing. It checks on the employment and migration status, tax and national insurance of the workers—and rightly so. The abuses in all those areas tend to be cumulative.

Another area—one that is absolutely essential in triggering the Gangmasters Licensing Authority’s interest—is whether the Agricultural Wages Board provisions are being followed. If the legal basis for that disappears entirely, the Gangmasters Licensing Authority’s ability to check whether appropriate wages and conditions are being paid by employers—many of whom will push their situation to the limits if they possibly can—is removed and a whole section of agricultural workers will lose one of their most important protections. These are just some reasons why agriculture, particularly the seasonal dimension of agriculture, drives us to think that a legal minimum ought to be retained.

I seriously ask the Government to reconsider this. I am not against the simplification of the wages board. I am not actually against the abolition of the wages committees. However, a basic minimum level of remuneration in agriculture would potentially avoid pretty substantial abuses, which I am sure that all parties in this House wish to avoid. I ask the Government to think again.

18:15

[The Earl of Caithness]

My Lords, I agree with the noble Lord, Lord Whitty, in so far as the Agricultural Wages Board has done a good job in the past, when it was badly needed. However, I cannot follow him in the rest of his arguments, except possibly his last statement, when he said that a legal minimum wage must be retained. Well, it will be retained, because there is the national minimum wage as the base floor. That solves the noble Lord’s last point.

Besides the national minimum wage, there are the working time directives and regulations that have emanated from and will continue to come out of Europe, as we are increasingly bound in our employment laws by Europe. I firmly argue that the days of the Agricultural Wages Board are otiose. It can all but be done by the farmers with the current legislation in place, which gives the workers the security that they certainly did not have when this came in 1948.

Nobody has really mentioned Amendment 21 on the agricultural wages committees. Nobody has sought to defend those—not even the noble Lord, Lord Whitty. It is worth reminding the Committee of the hard work that these committees do. The only thing left to the agricultural wages committee is to appoint the members of the ADHACs. As we discussed in the last amendment, there are only eight applications for ADHACs, while there are 17 ADHACs. So a lot of people are wasting a huge amount of time and money. Perhaps it is the best thing that we get rid of them soon.

[Lord Clark of Windermere]

I support the amendment by the noble Lord, Lord Greaves, and I do so in the same tone and with the same approach. The real point of these amendments at this stage is to try to ascertain what the Government’s real intentions are. What do they have in mind for the agricultural wages in the years ahead? This House has a high reputation because it is comprised of people who represent, often, the top of their professions—eminent people. As I look around and look across the House, I see so many people who know a great deal about this subject from the other side of the fence from the one that I occupy. I see a number of landowners from my native county of Cumbria. My only locus in speaking for this is that I started my working life under the Agricultural Wages Board and still remember when we used to glean The Westmorland Gazette—I think it was in October—for the advert that would tell us what our wage would be for the following year.

That was 50 years ago. I accept that times have moved on. However, as we heard from my noble friends Lady Prosser and Lord Whitty, there may still be a case for that certainty. My noble friend Lady Prosser made the point very clearly and graphically on the relationship between the small teams—often a farmer and his employee—that work on so many farms. It is difficult because they do work for a team; it is embarrassing and awkward for both sides. That has been the substance that has kept the Agricultural Wages Board going for the 62 years that it has been in existence. There may be a case for that certainty to continue.

The noble Lord, Lord Greaves, quite rightly made the point that 154,000 individuals are covered by the Agricultural Wages Board. However, it is much more significant than that, because the Agricultural Wages Board provides the yardstick and benchmark for many other workers in rural areas. While they might not be encompassed by the Agricultural Wages Board, they are influenced, and their wages determined indirectly by it. Again, we are talking about a great many people.

In the spirit of the noble Lord, Lord Greaves, I must say that one thing that has disappointed me most about the Agricultural Wages Board in committee issues has been the lack of consultation. I was amazed to read a letter from Mr Jim Paice, who I know well and respect a great deal. He is a thoughtful and considerate man. In a letter dated 8 September 2010, which was circulated to the members of the Cumbria, Northumbria and Tyne and Wear AWC, he responds to comments about a lack of consultation. The letter states that,

“we do not consider it would be productive to have a consultation on the proposals, although individuals will be welcome to continue to submit their views to Defra”.

That is not written in the same spirit in which Ministers have advanced their case in this House. I ask them to think a little more about this. With more consultation we are more likely to get a better result and a better conclusion. I hope that that negativity will disappear. As I say, I am very surprised that Mr Jim Paice wrote such a letter.

I stress the other main point that has been raised—that the Government argue that there is no longer a need for an Agricultural Wages Board as agricultural workers are protected by the national minimum wage. Of course they are; every worker in this country should be protected by the national minimum wage. However, as has been said repeatedly, that applies only to the basic agricultural wage, which currently is one penny an hour greater than the national minimum wage, so the amount is not great. However, modern agriculture is a highly technical industry involving a great deal of skill and often a great deal of expertise. That is recognised by the agricultural industry and is certainly recognised by the Agricultural Wages Board. While it is true that the national minimum wage would protect a worker on the basic rate, what about the five higher grades? What protection would people on those grades have? Mr Jim Paice states in the letter that,

“on the abolition of AWB, the six different grades of worker will not be retained, as agricultural workers will be covered by the national minimum wage rate, as for all other workers. It will be for individual workers and employers to agree different rates while taking into account experience and qualifications alongside the needs of the business and individual circumstances. Agricultural workers will continue to be protected in the absence of the AWB by bringing them into the framework of the National Minimum Wage”.

Again, I am worried by the tone of the letter. If I am right in my submission that the agricultural industry is a modern, highly technical industry, we need to encourage and reward skills. However, I submit that if we leave this matter to individual negotiations, bearing in mind the points raised by my noble friend Lady Prosser, there will be an erosion of skills in the agricultural industry.

I will not go on for much longer but I am probing the Minister to try to ascertain how the Government foresee the future for agricultural workers and related workers in forestry and other land-based industries. There may be a case for rationalisation but I seek reassurance that the Government have thought this through.

[Lord Corbett of Castle Vale]

My Lords, I apologise for not being here at the start of the debate on these amendments, to which my name is attached. I will not detain the Committee for long. I declare an interest in that 10 of the happiest years of my life were spent working for Farmers Weekly, during which time I gained a lot of experience of the work of the Agricultural Wages Board. I was provoked to intervene in this debate by the remarks of the noble Earl, Lord Caithness. There is a profound misunderstanding that the national minimum wage can take care of the proper pay rates for agricultural workers. As my noble friend Lord Clark of Windermere has said, there are six grades of pay. As he pointed out, if it is to be left to those on the five grades above the minimum rate to negotiate with the farmer who employs them, it is not beyond the wit of man to imagine that some farm workers will face pay cuts. This must be the logic of it. The noble Earl shakes his head. If I have this wrong, I will gladly sit down and he can put me right on it, but the minimum wage does what it says on the tin: it sets a minimum wage, but takes no account of the grades above that. As my noble friend Lord Clark of Windermere has also said, those grades are there for a purpose. They are accepted by the employers, farmers, who recognise that increased productivity and the higher levels of skills that are needed must be rewarded, which means that there must be different grades for different levels of skills.

Most farm workers—they are a dwindling number—work in groups of two, three and four, working closely with their employer, the farmer. It is only when you get into the poultry packing plants and the vegetable processing plants that you can measure workforces in the dozens and the hundreds, but that is a very different atmosphere in which to negotiate. Are the Government really suggesting that a father and his two sons, who make up the workforce on a mixed farm, will make an appointment with their employer, the farmer, to talk about rates of pay? This is not the real world because there is no equality there. In my submission, the Agricultural Wages Board was put in place in the interests of farmers and the industry as much as in the interests of farm workers because it levelled the playing field. The industry got great value out of the Agricultural Wages Board. The other day I was astounded to hear a former president of the National Famers’ Union, with whom I spent many a happy hour in the old days when I worked for Farmers Weekly, rely on exactly the same argument. He said, “No, Robin, it does not matter because the national minimum wage is there”. I take it that the official view of the National Farmers’ Union is that it now wants to see the destruction of the Agricultural Wages Board. I say simply that it will live to regret that because it could result in immense chaos, let alone unfairness, for the industry. A very heavy price will be paid if the board is abolished.

The last report of the Agricultural Wages Board that I could find in the Library was for 2007-08. It makes the point that the board does not deal just with wages. There have been demands from the workers’ side for an all-industry pension scheme. How will that be dealt with now? What are the unions supposed to do now? To whom do they write? Will they write to the president of the National Farmers’ Union of England, the president of the National Farmers’ Union of Wales and the Farmers’ Union of Wales and the NFU in Scotland? Is this the way that they are meant to proceed? Given the row about tithe cottages, who decides the value of the accommodation provided under the contract of employment to employees who live on the farm as part of their job? The national minimum wage will not take care of that. Who will take care of that? Will this be negotiated farm by farm across the length and breadth of England and Wales? This is a ridiculous way to engage in human relations and will cause immense resentment. I do not believe farmers are bad employers but they are not overgenerous with their money. As the last report of the Agricultural Wages Board notes, this is traditionally a low-pay industry, which is why the Agricultural Wages Board was established.

18:30

The Agricultural Wages Board does other things. For example, it has a helpline. Why does it need one? In 2002-03, 4,477 farm workers phoned the helpline because they felt they were not being paid the proper rate of pay; that rose in 2007-08 to 5,006. Who is going to deal with those complaints? Now if I say to my employer, the farmer, “Listen, George, I should be on this rate. This is what you should be paying now, it is what we agreed, and I am not getting it”. Presumably George is going to turn round and say that the world has changed and we have the national minimum wage now. The Agricultural Wages Board was given the same powers as the national minimum wage authority to ensure that the minimum scales of pay were met. These six pay scales are legally enforceable. That is going to disappear. This is a recipe for unfairness and for chaos, and I regret very much indeed that the National Farmers’ Union has put its signature to what the Government are proposing.

I hope the Government will seriously think again about this proposal. The total budget of the board is £481,000 a year to bring some sense and fairness into this industry. If the Government are committed to doing away with the Agricultural Wages Board, I hope they will try to persuade employers to establish a forum where these matters can be discussed sensibly between all those who work in the industry, employers and workers, to avoid the chaos and unfairness that is bound to happen unless that is done.

[Lord Cameron of Dillington]

My Lords, I declare an interest as a farmer and as an employer of staff in the West Country—not the county of Dorset, like the noble Lord, Lord Whitty, but next door in the county of Somerset. I had not really intended to get involved in this debate—I thought I would just let it wash on and see what came out—but I think that I should report to your Lordships from the real world of Somerset. If I was to reduce the wages paid on my farm down to the levels set by the Agricultural Wages Board, not the basic wage but the various craftsmen rates, I am fairly certain I would have a strike on my hands.

I rarely pay much attention to the Agricultural Wages Board or what it says. I can see that a guide on an annual percentage rise within the agricultural world is often quite useful. However, I dare say that in the absence of the Agricultural Wages Board there will be other means of arriving at such a benchmark system, and I am sure that the NFU and others will get together and provide us with one, if that is going to be needed.

[Lord Wedderburn of Charlton]

I, too, wish to support the amendment moved by the noble Lord, Lord Greaves, and the remarks made by several of my colleagues on these Benches. If this board was abolished in this rather casual way, without any suggestion of what should replace it, it would be regarded by writers in the future as a rather cruel joke, in view of the difficulty this area of the workforce has had to obtain normal collective bargaining resources. Now, fortunately, many workers belong to the union, UNITE, but there was a day when workers who wished to form trade unions in this vulnerable sector of the workforce were met by a very different response by their society.

This particular history does not die in the memories of those who are literate regarding trade union organisation. It is very surprising that the Government come forward with no suggestion of anything to replace this—one of the boards or councils set up in the early parts of this century to protect vulnerable sectors of the workforce that did not have the advantage of even the elements of collective bargaining. The existence of a minimum wage to cover the entire workforce is no argument at all. The Agricultural Wages Board can, and does, make very sensitive interventions, as my colleagues on these Benches have illustrated, with the modernisation of agriculture.

I very much hope that in reply the Minister does not resist the amendment—certainly not without any suggestion of what the Government foresee as the structure and protection of this area of the workforce. A raft of structures has been attached to the Agricultural Wages Board, such as the agricultural dwelling house advisory committees, as we have already discussed. I very much hope that the amendment in the name of the noble Lord, Lord Greaves, will be supported by this House in the interests not merely of labourers in agriculture but also of employers in the agricultural sector, who, as we have heard, also have an interest in the protection afforded by the Agricultural Wages Board.

[Lord Morris of Handsworth]

My Lords, I too support the amendment. I apologise for not being here at the very start of the debate; I was detained elsewhere in the House.

Let me declare an interest—for 12 years I had the great privilege of leading the union to which agricultural workers belong and which represented them. I was general secretary at the T&G, and I am delighted to see the noble Baroness, Lady Prosser, who was my deputy general secretary. Part of our joint and collective responsibility was to pay a special interest to the work of our agricultural membership. We did that because in many instances they had a diffuse working environment, away from the collectiveness of the workplace found in factories, warehouses and even supermarkets. I am sure that the noble Baroness would have made some of the points I might make now, and for that I apologise again.

The noble Baroness and I campaigned, along with the rest of the trade union movement, to have a national minimum wage introduced because it gave certain standards. It also sent a very clear message about how workers should be treated and what sort of economy we want to build in the United Kingdom. If I thought for one minute that the agricultural wages board could have done the job that the national minimum wage is intended to do, we would not have bothered. We are talking about two separate and distinct bodies, with separate and distinct functions. The agricultural wages board is a joint industry body—it represents agricultural workers, sitting face to face with employers, and of course has an element of independence as well. It looks after the interests of young people, it is concerned about safety and it has a duty and responsibility that goes far beyond anything that the Low Pay Commission ever does.

The Low Pay Commission was set up by the Government of the day to deal exclusively with pay—nothing else and nothing more. Therefore, any consideration of abolishing the Agricultural Wages Board, in the vain hope that the tasks, duties, responsibilities and obligations that it performs will be transferred to the Low Pay Commission, displays a level of ignorance which is quite threatening and worrying. The two bodies are different and they carry out different functions.

In fact, the Agricultural Wages Board was preceded by a body called the Fair Wage Resolution. Every so often a resolution would be passed to renew the principles of fair wages—nothing else but wages. However, it failed. Accidents were part and parcel of daily experience. Young children were going into grain silos with some horrific consequences. It was recognised that there needed to be an authoritative body which was not a trading body and not an employers' body, but a body for the industry which recognised and promoted the interests of the industry.

When my union goes to Brussels and meets agricultural workers, we do not say, “What is the rate of pay in other parts of the European Union?”; we do not say, “What is now being looked at for holidays?”; but we talk about the issues of the industry. The Agricultural Wages Board is an advocate for the international industry; the Low Pay Commission is no such thing. It would not just be a backward step but a tragedy for British agriculture to have no voice which represented both sides of the industry and which could speak with an element of independence, nationally and internationally. Therefore, I genuinely ask the Committee and the Government to think again because they will be sending the wrong signals and putting a lot of people in a lot of danger. They are making a tragic mistake. I hope that they pull back from this.

[Lord Maclennan of Rogart]

I declare an interest as the owner of a small farm in the north of Scotland, the circumstances of which are very different from the farms mentioned by other owners.

This has been a very important debate, stimulated by my noble friend’s amendment. There has been a remarkable chasm of opinion between those who view the winding up of the Agricultural Wages Board with concern and those who are either indifferent or supportive. The National Farmers’ Union apparently has made its position clear. The one interest which has not been expressed in this debate so far from the point of view of an objective economist is: what will be the impact on rural development of a depression in farm workers’ wages? That seems to be the natural consequence of the removal of this body, at least at the lower end of the scales.

I recognise that in some prosperous parts of the country, agriculture has to compete for skilled activity from people who could find alternative employment relatively easily in the area. Large parts of the south-west may be a good exemplification of that, but in the more sparsely populated areas there is not a superfluity of employment. There are not many alternative jobs available and it seems to me that a consequence of depression in income of those working on farms, whether at the top of the local scale or near the bottom, is likely to result in a further flight from the land. That has to be of concern. I cannot speak with the authority of a rural or agricultural economist, but I very much hope that the Government, in considering this proposition, have taken those considerations into account. If there is any evidence that can be revealed, I hope they will reveal it this afternoon or at a later stage of the Bill.

18:45

It seems to me that we are entering a process with great rapidity and perhaps with too little prior consideration of the consequences. We have all spoken from local experience, from personal experience and from different angles of vision, but those matters need to be drawn together if we are looking at a body which has existed since 1948 and which had forerunners going back to the early part of the 20th century. We need to look at this not just in a debate which has lasted for one hour and five minutes, but rather more deliberately. It is not entirely reassuring that the process of the Bill would allow another one and a half hours of debate on an affirmative resolution to decide this ultimately.

We need considerably more evidence about the impact on those parts of the country where income is low and the population is sparse but which play some part in meeting the nation's needs for agricultural production. We do not want to see the land deserted or visited purely for recreational purposes. I hope that we can get some more solid, factual information before the House is asked to reach a conclusion.

[The Duke of Montrose]

Perhaps I might intervene again. Having listened to the various speeches around the House and particularly to the speech of the noble Lord, Lord Morris, giving the story of the very essential and important work that the agricultural wages board has done over the years, we need to consider how things have moved on. One element which is very different now is that all employers and all jobs are subject to the Health and Safety Executive. All accidents must be reported to the Health and Safety Executive, so that deals with one element which perhaps the agricultural wages board used to look into.

The other point, which the noble Lord, Lord Corbett of Castle Vale, spoke about, is the difficulty in the grading of agricultural workers. One big difference now is that, in the nature of things, agricultural workers acquire certificates and they come with a grading of their own. If someone applies to you for a job, he can produce certificates of his skills and certain elements. In my part of the world, I do not see a danger of reduced wages because there is a shortage of skilled men and they are now, more or less, in a position to name their price.

[Viscount Eccles]

My Lords, I reinforce the argument made by my noble friend. I drove a tractor some time ago—1943, I think it was. Whether I was underage I will leave the House to decide. I remember that we were very happy if we got 30 hundredweights an acre. We stooped it, then it was put in a stack, and it was then thrashed by a threshing machine that came around at about this time of the year.

Today, you have a computer-controlled combine harvester that does the whole thing on its own. It is about two and a half times the width of the old cutters that we used to have. I will gamble that there are very few farmers that own one of those combines. There are some in Norfolk, in the grain area of the east of England, but in my part of England—in north Yorkshire—none of the farmers owns their own combine harvester. The contractors own it—and they do the potatoes as well. There are no labourers left in north Yorkshire in agriculture. No such person exists any longer. If there is not a skill, then you cannot employ anybody in agriculture in north Yorkshire—I am not sure about north Scotland.

I contend that—never mind the £8-something—you will not get that combine driven by anyone paid anything less than £10 an hour. The statistics that I would like to understand are the actual wages in agriculture today, because—believe you me—they do not bear much relationship either to the minimum wage or to the wages that were set on 1 October by the board which we are discussing.

[Baroness Quin]

My Lords, I, too, support strongly the amendment and pay tribute to the way in which the noble Lord, Lord Greaves, introduced this debate. It has been an interesting and powerful debate, and noble Lords from around the House have certainly brought their experience to bear on this issue. We even had the personal experience of my noble friend Lord Clark of Windermere, who, at an earlier stage in his career, was affected by the decisions of the agricultural wages board.

We were reminded by the noble Lord, Lord Greaves, that the board, in one form or another, was established a long time ago—in 1924—and has been a tried and tested institution. The noble Lord, Lord Greaves, also referred, as I think did the noble Lord, Lord Cameron, to industrial action. Happily there has not been industrial action in the agricultural industry since 1923—significantly, the year immediately before the establishment of the board. However, I support the agricultural wages board not simply because it has been here for a long time. The Minister misquoted me in our last debate when he said that I had said at some point,

“that everything should continue as it is just because it always has existed in the past”.—[Official Report, 29/11/10; col. 1360.]

I can assure him that I have never said anything remotely like that, and I am very often persuaded of the need for all kinds of change. I hope, after what has been said today, particularly by my noble friends and by the noble Lord, Lord Greaves, that the Government will think again about the decision to abolish the agricultural wages board. I think they should reconsider it very seriously indeed in the light of this discussion.

A number of noble Lords mentioned consultation, and there certainly has been next to no consultation on this decision. The Minister, in answer to a Written Question from me, said:

“No specific consultation was undertaken prior to the decision to abolish the Agricultural Wages Board”.—[Official Report, 26/10/10; col. WA 245.]

It is my understanding that the Welsh Assembly Government criticised their notification of this as being totally inadequate; they were given one week to respond. Indeed, in an answer to a Question from the former Defra Secretary of State in the other place, Hilary Benn, again the lack of consultation was clearly evident. Given that the agricultural wages board has been a very long-standing feature of our economic and agricultural landscape, to have no consultation is very serious indeed.

[Lord Maclennan of Rogart]

Would the noble Baroness agree that the debate has been forceful in indicating that consultation would be advisable and helpful, and that perhaps it would be sensible not to reach a conclusion on this matter in this debate, because evidently there is still a great deal of time left to consider the Bill?

[Baroness Quin]

The noble Lord makes an important point. Obviously, how we proceed is up to the author and introducer of the amendment to decide. None the less, given the number of questions that have been raised in this debate on all sides, and given the fact that there has been a very strong feeling in the Chamber that this is an issue about which there should be proper consultation, I am inclined to support the noble Lord, Lord Greaves, in his comments. I am sure that, in the light of whatever response we get from the Government, we would very much want to return to this in any case, because it is obviously of great concern and interest to many Members in this House and, of course, to many people outside.

The issue of cost has once again been referred to. The noble Lord, Lord Greaves, in his introductory comments, said that the cost of abolishing the board was very limited. In answer to a Parliamentary Question in the other place by Willie Bain, I understand that the Government said that the costs would be “negligible”; indeed that the,

“changes to include agricultural workers within the scope of national minimum wage legislation”,

were,

“expected to be cost neutral”.—[Official Report, Commons, 25/10/10; col. 14W]

Therefore this has not been brought forward to save a great deal of money, again like some of the measures that we were considering earlier. In many ways it seems to be part of a political agenda—a political decision—which I must say I very much regret. The noble Lord, Lord Greaves, himself said that the abolition of the agricultural wages board was part of the Conservative manifesto but was certainly not part of the Liberal Democrat manifesto. It was not part of the coalition agreement, and for that reason I think that it would be very good if it were not part of government policy here and now. I know, having looked at the Liberal Democrat Voice on the internet, that there is a concern generally about the Bill among Liberal Democrats, but also about some of the specific proposals, including this one.

I know that some farmers have come out very much in favour of abolition of the agricultural wages board, including the NFU in England. It is interesting, however, that the National Farmers’ Union in Wales has come out more in support of the retention of the agricultural wages board. Indeed, it and some other farmers have made the very important point that the agricultural wages board actually lifts from individual farmers the burden of negotiation. Quite understandably, this debate has focused on the effects of abolition on agricultural workers, but there is also a negative effect on many farmers who find the operation of the agricultural wages board helpful and valuable in terms of the recruitment and retention of skilled labour. The Government have said in the past, in debates in this House, that they value professionalism in agriculture; yet I fear that, by going down this route, we will undermine agriculture and show it as a low-paid profession where there is not proper protection for workers. We already know that agriculture is a dangerous industry in terms of accidents. We need to tackle that issue, which I think the noble Duke, the Duke of Montrose, referred to. At the same time we want agriculture to be seen as an industry which is attractive for new employees in the future.

19:00

It would be good to hear from the Minister about discussions he has had with individual farmers, and in particular some of the farms in different areas in England which might have a similar farming structure to those in Wales. Many noble Lords have referred to what will happen when the agricultural wages board disappears, if it does, and indeed, how much importance we should attach to the fact that such workers would still be covered by the national minimum wage regulations. It is true that level 1 of the agricultural wages board structure is only 2p an hour more than the national minimum wage but, as my noble friend Lord Corbett of Castle Vale and others have pointed out, we have other levels of remuneration in agriculture. I understand that only 20 per cent of workers are on grade 1, so 80 per cent would lose substantial protection with the abolition of the agricultural wages board.

The whole issue of the agricultural wages board goes much further than the national minimum wage, as my noble friend Lord Morris of Handsworth said, as indeed did my noble friend Lord Whitty earlier in the debate. The national minimum wage provisions do not cover entitlements, many of which are currently covered by the Agricultural Wages Order, such as specific rates of pay for overtime, standby duty and night allowance, entitlement to bereavement leave, and birth and adoption grant. The agricultural wages board has responsibility for a large number of issues, on which it makes various rulings. The board also makes specific ruling for apprentices under the age of 19 during their first year of apprenticeship and considers the position of students on work placements of less than a year. It is important for the Government to address all those issues in giving us some assurance in how they see the way forward in this important area of policy. What safeguards will they put in place to guarantee the provisions that fall outside the national minimum wage regulations?

I listened to what the noble Earl, Lord Caithness, said. It is true that there is a framework of regulations and employment provisions in place, including the national minimum wage, the working time directive and various social measures from Europe to which he referred, but that does not give me great encouragement. At least the Conservative part of the coalition strongly opposed those measures in the past, and I am worried that this decision may be part of a wider pattern and attitude towards wage and employment conditions that we will regret.

So far there has been a deafening silence on what would replace the agricultural wages board, and I very much share the concerns of the noble Lord, Lord Wedderburn, when he referred to that. The board exists for a good reason. Indeed, my noble friends Lady Prosser and Lord Morris referred to this. There was a special reason why the agricultural wages board was retained when the other wages councils were abolished. It is very much to do with the fact that the industry involves individuals negotiating with an individual employer. It is not a matter of dealing with a large firm with a large number of employees who may be well organised to negotiate. There are issues relating to agriculture that are unique and which were recognised before, when the decision was made to retain the board. With regard to other councils being abolished, in many ways the precedents are not good because many wage rates in those sectors fell as a result of abolition.

My noble friend Lord Whitty mentioned that the horticultural sector was particularly supportive of the abolition of the agricultural wages board and I am aware of some of the reasons, having had contact with representatives of the horticultural industry. Their concern arises very much from the pressure from supermarkets and the weakness they feel in their negotiations with them. I suggest that the best way of approaching that is to bring in the supermarket ombudsman and use the other measures that have been put forward to strengthen the agricultural industry’s negotiating position with supermarkets. That would be much better than abolishing the agricultural wages board in the way proposed by the Government. In many ways, given some of the issues that have been raised in the agricultural sector by noble Lords today and from outside, it could be said that there is a case for strengthening or even extending the remit of the agricultural wages board rather than abolishing it.

I also want to ask the Minister about relations with devolved institutions. I understand that the intention is to cover England and Wales. Is the agreement of the Welsh Assembly Government necessary to bring about the abolition of the structure in Wales? Given the concerns expressed by both the Welsh Assembly Government and the Welsh National Farmers’ Union, it is an important point that we need to know. In a Written Answer in the other place, the Government said that legislation in the Welsh Assembly would not be necessary, so does that mean that the Government can simply abolish the board without reference to views in Wales on the desirability of its continuation?

The noble Duke, the Duke of Montrose, mentioned Scotland. I understand that there are no plans to get rid of its agricultural wages board and, indeed, agricultural wages were revised by the board in Scotland just last month. Therefore, there seems to be a commitment to the agricultural wages board in Scotland. It would be good to see England in the lead in some of these issues, rather than falling behind in our support of employees with a good level of wages and a good degree of protection in working conditions.

This House has been repeatedly concerned about the economic well-being of our rural areas. Indeed, the noble Lord, Lord Greaves, not very long ago introduced a debate on the uplands and his concern about living and working conditions there. The report by the Joseph Rowntree Foundation which I mentioned earlier makes important reading for Ministers as well as Members of this House. Certainly, that report refers to some of the higher costs of living in rural areas and the question of housing, which we dealt with earlier when discussing the agricultural dwelling house advisory committees. The foundation said that single working-age adults needed to earn £2,000 or £3,000 a year more than those in urban areas simply to have the same standard of living. That is a reflection of the higher domestic fuel costs in the countryside and problems of access to transport in many rural areas. The findings of the Joseph Rowntree Foundation seem to suggest that it is important to retain mechanisms that support levels of income in the countryside and not undermine them until some of the wider issues have been addressed.

In conclusion, I feel that this decision is a highly regrettable one if the Government decide to go ahead. It is not being done on grounds of cost but for political reasons. It is unjust, it is unfair, it does not make economic sense and it does not serve agriculture well. I hope that the Minister, in replying, will change tack and respond positively to the powerful concerns which have been expressed so well in this debate.

[Lord Henley]

My Lords, I will start, as is proper, by offering an apology to the noble Baroness, Lady Quin, for possibly misquoting her, as she alleged earlier in her somewhat lengthy speech. I am not sure whether I did, but I will look at the record and, if I have misquoted her, I will offer my sincere apologies for so doing. If I can quote her again, I noted that she made the point towards the end of her speech that there was possibly a case for strengthening the Agricultural Wages Board for England and Wales. I think that the noble Baroness accepts my quotation. I note that as a new commitment by the party opposite from its Front Bench.

The noble Lord, Lord Whitty, listened to his noble friend’s speech with great attention and I was grateful for his admission that the Government of which he was part had considered the abolition of the agricultural wages board. They decided not to for reasons that I cannot speculate on, but the range of speakers who come from the other side might give some indication as to why they changed their mind on the issue. We have examined the issue again and we have decided to go ahead with abolition. I will try to set out just why we wish to do that.

When the wages board and the committees were established in 1948—in fact, they were established earlier than that, but the parent Act is the 1948 one—farm workers had very little protection available to them from exploitation. The close working relationship between workers and employers, where the former were often dependent on the latter for housing, meant that workers were often at a disadvantage in negotiations on wages. In these circumstances, it was sensible to provide an independent statutory forum where farm workers and employers could come together to agree pay and conditions. Since that time, we have seen tremendous changes in wider employment legislation, both nationally and, as my noble friend Lord Caithness said, at an EU level, which protects and benefits workers in all sectors of the economy, including farm workers. Those changes include the introduction of legislation on the national minimum wage, which has been referred to. That makes it illegal to pay a worker below the current national minimum wage. There are also the working time regulations referred to by others, which, among other provisions, set a statutory minimum entitlement to a minimum wage.

For these reasons and all the changes that we have seen since 1924 and 1948, the agricultural minimum wage framework set out in that 1948 Act is, we believe, anachronistic. As the noble Baroness, Lady Prosser, and the noble Lord, Lord Clark, put it, in more or less the same words, life moves on. I accept that life moves on. Life has changed considerably since 1948 and it is no longer necessary to do what the Act does and effectively duplicate and gold-plate wider employment legislation. It adds an unnecessary regulatory burden for businesses in the agricultural and horticultural sectors, many of which are small businesses. It is a particular burden for farm businesses that also operate in sectors outside those covered by the agricultural wages legislation and hence have to cope with dual regimes. Moreover, the agricultural wages legislation effectively prevents the payment of annual salaries and fair piece rates, preventing farm businesses from adopting modern, flexible practices. That can also be disadvantageous to the workers.

I will say a word or two about Amendment 21, which would remove from the Bill the agricultural wages committees. Most of the functions of those committees, as my noble friend Lord Caithness made clear, have lapsed in practice or have been replaced by wider legislation. As my noble friend put it, there are currently 15 committees in England and one in Wales and their only remaining active functions are to appoint members of the agricultural dwelling house advisory committees and to report to the Secretary of State on their proceedings, which are now limited to holding an annual general meeting. I do not think that there is any case for retaining them.

It is for these reasons that we consider that the separate employment regime for agricultural workers is no longer appropriate. I am grateful again for the intervention from the noble Lord, Lord Cameron, who pointed out that he was not going to get away with paying the lower wages that seemed to be suggested by the party opposite. People just would not accept them. The same could be said for the intervention from my noble friend Lord Eccles when he pointed out that the whole industry has changed too much in terms of the sophistication of the skills that are required for many workers to confine themselves to pay rates of the sort that we are talking about. We believe that by abolishing the agricultural wages board—

19:15

[Lord Whitty]

Apologies if the Minister was moving on to this point, but do the Government have an impact assessment of the effect of the abolition of the legal minimum on wage rates, given that when each of the other wages boards was abolished the rate in that sector fell? Clearly, there are always some who are paid more than the minimum, but have the Government done that calculation? If so, I think that we should know.

[Lord Henley]

I do not think that it is necessary for that work to have been done. As I said, we believe that with the abolition of the board the industry will be able to operate more flexibly, which would lead to more job creation and better opportunities. What the noble Lord and others have been asking us to do is describe what picture, as they put it, we see for the future. I believe that it is one where it is open to the industry to come together to set up its own system. Again, I was grateful to the noble Lord, Lord Cameron, who said that the NFU ought to be out there seeking to put something together. What I did not hear from the representatives of Unite or Unite’s predecessor, the Transport and General Workers’ Union, was whether they were prepared to come together with the NFU and put something together. I do not see why the NFU, Unite and other industry representatives cannot come together and create their own advisory committee to discuss these matters. We do not think that it is necessarily a matter for the Government.

[Baroness Quin]

If I could follow up on my noble friend’s point, I thought that the Government had said that they would routinely carry out impact assessments in coming forward with legislation. I do not understand why they do not seem prepared to do so in this case.

[Lord Henley]

My Lords, as I made clear, I do not think that it is necessary in this case to carry out an impact assessment. If it was necessary, we would do so. What I am saying is that, after the abolition of the wages board, it is open to the industry to look at its own arrangements. That is why I was grateful for the intervention from the noble Lord, Lord Cameron, who said that the NFU could do this, but I do not see why the NFU cannot do it along with Unite and all the other representatives of the industry.

I appreciate that we have now spent an hour and a half discussing these matters. We will no doubt come back to this in due course. My noble friend Lord Maclennan said that there was still much time to discuss these matters. There certainly will be time, because noble Lords opposite wish to make sure that there is. We will discuss these matters further, therefore, but I have not heard anything yet this afternoon that would encourage me to say that there was a case for preserving the agricultural wages board or the agricultural wages committees. I hope, therefore, that my noble friend will feel able to withdraw his amendment.

[Lord Greaves]

My Lords, I thank everybody who has taken part in an excellent and sensibly tempered debate with a huge amount of expertise on an important issue. It is curious that we are having this kind of debate on the Public Bodies Bill, which is not, on the face of it, about agricultural wages or, indeed, about many of the other things that we will debate in the course of its consideration in Committee, except that it is about everything. It is a curious Bill about everything and nothing but, if it leads to debates like this, the Committee will be doing the Government a service as well as the country generally.

I was particularly taken by the range of expertise in the debate. I do not want to reply to everybody, because it would take far too long, but I was slightly amused by what the noble Baroness, Lady Prosser, said in her excellent contribution. It took me back to the great Liberal Governments of a hundred years ago, who had a great deal to do with the introduction of wages councils. However, times have changed and the solutions of a hundred years ago are not necessarily the solutions of today.

The noble Lord, Lord Whitty, is one of a large number of speakers with ministerial experience, particularly in this area, who are distinguished Members of the House. He referred to the possible involvement of the Low Pay Unit as part of the solution to this conundrum. I am aware that such discussions are taking place in some areas. Whether they will come to anything, I do not know, but at least there is some time to pursue them and other discussions in the mean time.

The noble Lord, Lord Cameron of Dillington, and the noble Duke, the Duke of Montrose, got me wondering about what I would do if I had my time again. I thought that I would perhaps have liked to have had a more outdoors life. If it were a choice of looking after sheep on a Scottish hillside or looking after the cattle of the noble Lord, Lord Cameron, there would be no real choice: I would spend my life on the noble Duke’s Scottish mountainside and probably enjoy myself more than I have done, although I have enjoyed a great deal, especially being able to stand and make speeches in your Lordships’ House.

The noble Viscount, Lord Eccles, raised an important question: do the Government have the facts about agricultural wages at the moment? How many agricultural workers are at the moment on the basic levels of pay set out by the agricultural wages board? I have not seen this information, but it must exist somewhere. How many of them are working for more enlightened employers, such as the noble Lord, Lord Cameron, or perhaps for employers who are exposed to a market that requires that they pay higher wages, or for a combination of both? We need that information before we can get to the bottom of how much the existing protection is required. Unite, among others, is saying that it has evidence of farmers telling their existing workers that if the protection is removed their wages will go down. I do not know whether this is tittle-tattle or hard evidence, but we need evidence to probe and investigate in the mean time.

Some noble Lords have argued that the legislation is not needed because they know of lots of people who are paid more than the level set out or, indeed, who employ people who are paid more than the level set out. I take that with a slight pinch of salt because you could apply that argument to the national minimum wage. Most people in this country are paid more than the national minimum wage, a lot of people are paid a great deal more than the national minimum wage and some people are paid astronomical sums—millions of pounds a year, according to what we read in the newspapers—but just because a lot of bankers are apparently paid these huge salaries is no argument for saying that the national minimum wage is not necessary or is not a good thing, because it protects a lot of other people who need protection. Again, I think that we need the kind of facts that the noble Viscount suggested that we should have. I hope that the Government will find it possible to dig out those facts, circulate them and write to all noble Lords who have taken part in today’s debate.

Having said that and having said what an excellent House of Lords debate this has been, with propositions made, questions asked and debates enjoined, I should add that the other part of the equation that is traditionally necessary in the House of Lords is for the Government to listen to what has been said, think about it and respond to it. I thought that I detected in the Minister some softening and some willingness to continue to take part in the debate. I hope that that is the case. He said that we will discuss these issues again further. I hope that he did not mean that we will have to wait until Report, when we can have a set-piece battle with everybody lining up with their pitchforks or whatever people use nowadays instead of pitchforks. I hope that the discussion will take place in the several weeks that will be available to us before we get to Report.

Let us keep talking and let us have further discussions wherever we can. Let us bring the matter back on Report if we need to, but in the mean time let us hope to find a way through the issues that have been raised today and find some sort of compromise. Let us distinguish between closing down a quango, which the Government are adamant they want to do, perhaps saving quite a bit of the £250,000-plus that it costs to run, and keeping at least some of the functions, which might be carried out by somebody else. Even if that is not possible, let us understand what kind of negotiating system and procedure there might be in future between employers and employees at a national level and what sort of guarantee there might be that that will result in solutions that will stick rather than advice that can be ignored.

There is a great deal to be discussed further. The burden to business is being exaggerated a little, but with reform, modernisation and streamlining of the system it might be possible to reduce quite a few of those burdens without taking away the essential safeguards of the floors that exist to protect a group of people who, as many noble Lords have said, are more vulnerable than many other groups nowadays. The world has changed, so let us change the systems in response to that without taking away what is valuable.

I think that there is a general view around the Committee that we should not divide on this occasion. Indeed, in view of what I have said, it would be totally inappropriate for me to ask for the opinion of the Committee at this stage. I therefore beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Amendment 21 not moved.

Amendment 22

Moved by

[Lord Rosser]

22: Schedule 1, page 16, line 13, leave out “Aircraft and Shipbuilding Industries Arbitration Tribunal.”

[Lord Rosser]

My Lords, the Aircraft and Shipbuilding Industries Arbitration Tribunal organises compensation in connection with the nationalisation of the aerospace and shipbuilding industries. It hears appeals on valuations with a right of appeal ultimately to the Supreme Court. There is also provision for judicial review of the original compensation offer. The tribunal continues in existence but was described by the Council on Tribunals in 2006 as “rarely convened/moribund”. On 1 November 2007, the tribunal came under the supervision of the Administrative Justice and Tribunals Council, whose future also now appears somewhat less than secure. When he responds, will the Minister indicate the annual cost of the Aircraft and Shipbuilding Industries Arbitration Tribunal, how many members there are of the tribunal and how many times, if any, it has met in each of the past three years? Will the Minister also indicate the list of duties and responsibilities of the arbitration tribunal and state which duties and responsibilities the Government consider no longer need to be undertaken at all and why, and which duties and responsibilities, if any, will continue to be undertaken, and to whom or to which body they will be transferred? Presumably, the Government must have come to some conclusions on these issues. Having taken into account which duties and responsibilities will be transferred elsewhere, and the cost of continuing to carry out any remaining duties and responsibilities, could the Minister say what the net saving will be from abolishing the Aircraft and Shipbuilding Industries Arbitration Tribunal? I beg to move.

19:30

[Viscount Eccles]

We seem to concentrate only on whether something saves money, but the public are not interested only in saving money. They believe they are over-governed, that there is too much regulation and too much interference in their lives, and that there are too many bodies carrying out functions which most likely could be carried out better somewhere else. They want to see the system simplified, and I believe that this House should remember, when they are discussing these matters, that it is not only a matter of money; it is also a matter of making life less complicated.

[Lord Taylor of Holbeach]

My Lords, I am pleased to move on to this series of amendments, and I will first turn to the Aircraft and Shipbuilding Industries Arbitration Tribunal. This was set up under the Aircraft and Shipbuilding Industries Act 1977 and related to the nationalised industries in aircraft manufacture and shipbuilding. These nationalised industries no longer exist and the tribunal is redundant. Similarly, the purpose of abolishing British Shipbuilders as a corporation is to simplify the administration of the funding and handling of British Shipbuilders’ residual liabilities. These liabilities will be transferred directly to the Department for Business, Innovation and Skills, which will provide a long-term solution to managing these liabilities.

The Government are committed to making compensation payments to former employees of British Shipbuilders, and I can give an indicative figure of the level of those compensation payments. They come to about £7 million a year. I hope that helps. The tribunal itself does not cost anything, as there are no standing costs and it does not have any employees. The compensation payments for former employees cover such injuries as mesothelioma, which were the result of their employment with British Shipbuilders. The payments are in line with the obligations that British Shipbuilding had to its employees.

British Shipbuilders Corporation was set up under the Aircraft and Shipbuilding Industries Act 1977. The corporation has no active trading operations and exists solely to meet its residual liabilities—litigation, insurance claims and other contractual matters— relating to its former employees. British Shipbuilders is effectively a shell company. In light of my assurances, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Rosser]

I am not entirely sure whether the Minister was also replying to Amendment 24 as well as Amendment 22. Amendment 22 is about the Aircraft and Shipbuilding Industries Arbitration Tribunal, which is the one that hears appeals over valuation in relation to the nationalisation of the aerospace and shipbuilding industries. As far as I understood it, we were dealing with Amendment 22 separately. It seemed to me—though I am obviously prepared to stand corrected—as though some of the comments that the Minister made related to Amendment 24, which is about British Shipbuilders and any subsidiary of that company. I did raise a number of points—

[Lord Taylor of Holbeach]

I did speak to Amendment 24 because my speaking notes represented a grouping which is not current, and I apologise to the noble Lord. Perhaps he will confine himself to my response in respect of the tribunal, because that is what he was speaking to. I apologise.

[Lord Rosser]

I was not entirely clear about what the Minister said. He did say that it was moribund, so do I take it that the answer to my question as to how many times it met in each of the past three years is that it has not met at all? Is it the case that, despite the comments made by the noble Viscount, Lord Eccles, no costs are being incurred by this body, because it is moribund and it has not met?

[Lord Taylor of Holbeach]

I confirm that is the case. It does not cost anything, there is no standing cost and it does not have any employees.

[Lord Rosser]

I thank the Minister for that clear response and I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

House resumed. Committee to begin again not before 8.40 pm.

National Assembly for Wales (Representation of the People) (Amendment) Order 2010

Wednesday 1st December 2010 Lords Chamber

Motion to Approve

19:37

Moved by

[Lord Wallace of Tankerness]

That the draft order laid before the House on 25 October be approved.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, this draft order makes a number of modest policy and technical changes to the National Assembly for Wales (Representation of the People) Order 2007. The 2007 order makes provision for the conduct of elections to the National Assembly for Wales and was made under the powers in the Government of Wales Acts 1998 and 2006. It also comprehensively reflects changes made to electoral law since the previous order in 2003 and, in particular, by the Electoral Administration Act 2006.

While this draft order only numbers some 10 pages, the 2007 order runs to some 273 pages in total, so I do not intend to speak in any great detail about its contents. I do intend, however, to outline the main changes that will be made to it by the amending order before the House this evening.

Article 3 amends the definitions of Assembly constituency, Assembly electoral region and elector in the 2007 order to ensure that they are consistent with the Government of Wales Act 2006. The relevant provisions in the Government of Wales Act 2006 did not commence until after the 2007 order was made. The definition of elector also reflects changes to the Representation of the People Act 1983, which were made by the Electoral Administration Act 2006. This includes references to anonymous voters.

Article 4 makes amendments relating to registration appeals, where decisions on appeals about entries in the register in respect of postal votes are determined before the election. These decisions will now take effect and the register altered. The article also clarifies the relevant provisions under which an appeal can be made and a notice of alteration issued. Article 5 makes an important change to the 2007 order, under which the election agent for a candidate who stands in an Assembly regional election must have an office in that region.

A number of political parties raised concerns about this requirement during the 2007 elections, as a political party might wish to appoint only one election agent to represent all the regional candidates for that party in an Assembly election. The previous provision, which required the election agent to have an office in the region, prevented them from doing so. Following a recommendation by the Electoral Commission, made after the 2007 Assembly election, this requirement is being relaxed so that an agent’s office must be located within Wales.

Articles 6 and 7 make minor changes to the 2007 order that reflect changes made by the Legal Services Act 2007. If a legal professional is found guilty of a corrupt practice during an election campaign, an election court must inform bodies capable of exercising regulatory functions over the legal profession. Article 6 expands the definition of these bodies. Article 7 amends the relevant part of the 2007 order which expands the definition of who the Director of Public Prosecutions may send as his representative to attend election courts.

Articles 8 and 9 amend references in Schedules 1 and 3 of the 2007 order respectively which we subsequently found to be incorrect. Article 10 makes perhaps the most substantive change to the 2007 order by changing the design of the constituency and regional ballot papers. In October 2009, the Electoral Commission published its guidance on designing voter materials, Making Your Mark. This guidance highlights best practice when designing voter materials, such as ballot papers, to ensure that they are as accessible and intelligible as possible for voters. It is clearly in the interests of democracy that every eligible elector is able to participate in elections and that the voting process is as clear and simple as it can be. In designing the new ballot papers, we have worked closely with the Electoral Commission to ensure that we adhere to the spirit and the letter of the guidance. Apart from the design, the key change is the removal of the names of those on the party list from the regional ballot paper. Noble Lords will wish to know that this also occurs in Scotland.

Noble Lords will know that the Parliamentary Voting System and Constituencies Bill before this House provides for the referendum on the alternative vote system for electing Members to the other place to be combined with the elections to the National Assembly on 5 May next year. The provisions within this draft order are not affected by the combination provisions.

The Government and the Welsh Assembly Government are committed to working together to ensure that the polls next May are a success. Jenny Watson, chair of the Electoral Commission and chief counting officer for the alternative vote referendum, who will have the lead role in the combined polls, said last month that the commission believed that,

“enough progress has been made … to allow the National Assembly elections and referendum on 5 May to run smoothly”.

In conclusion, in preparing this order, the Wales Office has worked closely with electoral administrators, including the regional returning officer for Wales, the Electoral Commission, the Welsh Assembly Government and the four major political parties in Wales. I commend the order to the House.

19:45

[Baroness Gale]

My Lords, I thank the Minister for bringing this order before us today. Although this is not a milestone on the devolution road which we travelled last week, it is nevertheless an important order, although largely technical in nature. As the Minister has said, it corrects drafting errors in previous legislation and its provisions update the National Assembly for Wales (Representation of the People) Order 2007, bringing the 2010 order in line with changes to electoral law effected under either the Government of Wales Act 2006 or the Electoral Administration Act 2006.

Article 3 updates the definitions in the 2007 order to ensure that they are consistent with those in the Government of Wales Act 2006. It also updates the definition of elector as set out in the current definition in the Representation of the People Act 1983. We agree with this tidying-up amendment. We welcome the change proposed in Article 5 of the 2010 order that amends Article 39(2)(b), which stipulates that the office of an election agent for a regional election should be within that region. This amendment is in keeping with suggestions made by the Electoral Commission to allow election agents for the regional elections to have their office anywhere in Wales and not solely within the region. This practical amendment makes sense: in most cases the campaign for the regional list candidates would be run centrally, usually from the political party's headquarters in Wales.

We are content that the amendments in Articles 6 and 7 reflect changes made by the Legal Services Act 2007, which expands the description of bodies regulating the legal profession that must be considered by election courts and describes the duty of the Director of Public Prosecutions. These are reasonable and appropriate amendments and we would support them.

We are content with the changes to Schedule 10 described at Article 10 of the amended order relating to the format of the ballot papers for the Assembly constituency elections and for the regional elections. The changes improve the ballot paper, making them easier to understand, and correct omissions on one of the forms and one of the poll cards used in the elections. They are rational and evidence-based.

I believe that this format for the ballot papers is much easier and clearer for the voters. In the case of regional list ballot papers, electors are asked to vote for a political party rather than for a named political party candidate, unless of course the candidate is an independent. Will the Minister confirm that a full list of candidates will be on display at the polling station?

We agree with the order before us. They are sensible and practical amendments to the elections laws for the Welsh Assembly elections on 5 May next year. Agreeing to them tonight means that they will be in place in time for those elections. I am pleased to say that we support these amendments.

[Lord Elystan-Morgan]

My Lords, there are two good reasons why one should welcome this order. The first is that the House is not experiencing any problem as far as seating is concerned. The second is that, for once in the history of Wales, we have a development that seems to be applauded generally and totally by everyone. That is almost unique in a land of such fissiparous divisions as my own land and nation of Wales. The Electoral Commission and all those bodies responsible for these amendments are to be commended on the way in which they have conducted themselves. They have consulted fully and have managed to achieve a rapport among all bodies. All that is involved in the order are amendments that are consequential on legislation that this House and the other place have passed over the past four years.

Having said that, perhaps I may, with the indulgence of the House, take one minute to mention other matters. No one can speak of elections in Wales without being aware of the vulturous presence of legislation that will in a few months affect Wales greatly. I refer specifically to the Parliamentary Voting System and Constituencies Bill, which will deprive Wales of one-quarter of its constituencies. That is an immense proportion. Reducing the number of constituencies of England, Wales, Scotland and Northern Ireland by 50 will mean a reduction of one-thirteenth. If my mathematics is anywhere near right, that is about 7.8 per cent of the totality. In Wales, it will be 25 per cent.

Many people may say, “Well, come off it, you have managed to have this advantage for many decades. Has not the time come when you should surrender this advantage?”. That exact point was put to the right honourable Kenneth Clarke as Home Secretary when he was conducting the parliamentary commissions Bill through the House of Commons in 1992. He said, “I am not having it. Wales is a land, a nation. There is a constitutional arrangement here, which I respect and am determined to uphold”. Wales is no less a land, a nation, now than it was in 1992.

If the House wishes to have a sleepless and nightmarish experience over the next few hours, one need only contemplate the possibilities of what will happen not in May 2011 but in May 2015—assuming that Parliament will by then have passed an Act making the life of Parliament a solid five years, no more and no less. It will mean that the elections to the Welsh Assembly will coincide exactly with the elections to Westminster, and people will be in constituency A of the House of Commons but constituency B of the Welsh Assembly. It is, as I say, a wholly terrifying and nightmarish consideration. But that is not strictly relevant to this issue.

[Lord Roberts of Llandudno]

My Lords, I appreciate the words of both the noble Baroness and the noble Lord, both of whom I consider as colleagues and as friends. However, looking at this order, I am not quite as appreciative of it as others who have spoken. There is some concern that the order distances us from local areas and local people. It is true that you can have one agent for the whole of Wales, but it means that the Wales campaign is centralised, not localised—or it can be. The noble Baroness, Lady Gale, knows more about this than I do. So you could have a central campaign that does not reflect local interests.

There was a time when I was a young candidate and every ward had its own committee room on election day and every constituency had its central committee room—its swyddfa ganolog. Then there is the region. Yes, you can get on in the region, but remember that Welsh regions, like Scottish regions, are quite massive sometimes; they can stretch for many miles. The agent is far away, even at a regional level, from the local activity. We could possibly accept this, but some may remember when we had not one agent for Wales, but we had subagents covering so many areas of a constituency. To have an office located anywhere in Wales could present difficulties in the organisation of election days and electoral officers. It needs to be very well thought out.

The region-less ballot paper—the new one that has been presented to us—is far less cluttered than previously because, as has been stated, no candidate’s name is printed. The noble and learned Lord, Lord Wallace, suggested that Scotland has the same kind of ballot paper. Is this the first time in the United Kingdom that we have had a ballot paper with just the party’s name but no candidates? Is this a step in the right direction? I can understand why, because many parties—my own included, I am sure—have in the past nominated, say, 12 candidates for each region. Let us say that you have six or seven different parties contesting and most of them give you a dozen candidates. Wow, that ballot paper will be very cluttered. But to go further in a different direction and simply say Conservative, Labour, Plaid Cymru, Liberal Democrats, Greens, without giving any indication of who is the lead candidate, would cut away the personal link. It makes the regional candidates second-class Assembly Members, because they have not been elected as individuals, even though, as the noble Baroness mentioned, you can have a list of them in the polling station. When I go into a polling station—and I am allowed to vote at some elections, including the Welsh Assembly election—I do not look at the posters, I just look at the ballot paper I vote on.

I would ask—and other people are thinking this way—that we do not put 12 names for each party, but that we print the four top names selected by each party on the ballot paper of a regional list. At least we would have a personal involvement. People will have some idea about who they are going to return, not just someone who they have never heard of and whose name is totally strange to them. I speak to the Minister as a very dear friend of mine. I hope it is not too late to amend this order. I suggest we have four names—it might be three, it might be five—so that we keep that personal link with the regional list members as well as with the constituency members.

What you are doing also is that you are increasing the authority of a party and making it far superior to the individual candidate. Is this a danger? I think it is a dangerous step—a very dangerous step. We do not have to take that step—it is not too late—because we can amend it to include the lead names for each party.

I am more than happy with the constituency ballot paper. It is clear and the sort of ballot paper that we are more or less used to. Mind you, there is one great sadness. You are asked to put an X in one of the boxes. I hope the time comes when we do not ask for Xs but for 1, 2,3, and 4 and we have a proportional system.

[Lord Elystan-Morgan]

My Lords, in so far as that particular specimen ballot paper is concerned, has the noble Lord noticed that all the names used were Anglo-Saxon ones—there was not a Jones, an Evans, a Morgan or a Williams? It may very well be that this was done, as lawyers would say, ex abundanti cautela—out of an abundance of caution; I must say it struck me as rather strange that there was not a single Welsh name among them.

[Lord Roberts of Llandudno]

I of course defer in this to the noble Lord, Lord Elystan-Morgan; he not only has one name on the ballot paper, he has two. I am reduced to the very inferior status of a Roberts, but, as a Roberts, I say, yes, I welcome the constituency ballot paper. Then I ask the Minister to look again at the absence of names on the regional ballot paper. I think that we may have to accept the one agent for the whole of Wales, although I still remember the ward committee rooms with great affection.

20:00

[Lord Jones]

The National Assembly for Wales is a real success. It is striking out on its own trajectory. It is barely 10 years old, but it has done so much and has grown in stature. To cut the number of parliamentary constituencies in Wales by 25 per cent is something of a folly. No doubt we can return to this matter another time, but it cannot be right.

I acknowledge the erudite introduction by the Minister, and I also thank my noble friend Lady Gale for her observations from the Dispatch Box. If anybody knows about elections in Wales, it is my noble friend, for she has a magnificent record of general election campaigning in Wales. The statistics indicate that hers were always the best results for the Labour Party throughout Britain. My noble friend is very surefooted in the matters delineated in the order. Yes, it is a tidying-up measure and not controversial. I support it. Surely it will be passed.

It is good to see the parity given to both languages in this order. The Government cannot be too careful on matters concerning language in Wales. Language is now at the forefront of consideration in public life in Wales, and I think that it will remain so. I am glad that the order has comprehended that.

The schedule helpfully presents Form CK, Form CK1 and Form CL. In the Explanatory Memorandum is a splendidly deadpan sentence under the heading, “Territorial Extent and Application”. It states:

“The Order extends to the whole of the United Kingdom but applies only in relation to the election to the National Assembly for Wales”.

I think Sir Humphrey lives; it is a delicious catch-all. Constitutional change always fetches up example after example of such glorious lines as that. What fun the civil servants must have had; how enjoyable the draftsmen must have found it. Sir Humphrey lives and, without a doubt, devolved government presents for all of us here in your Lordships' House a perpetual learning curve.

In the schedule, the mock constituency ballot paper and the mock regional ballot paper are very helpful. There is an interesting coincidence where Sarah Gale is concerned. I am looking again at surnames—there is no relation of course. I very much agree with my noble friend that there are no genuine Welsh names, and I would not be the first in this debate to point that out. It cannot be right. My noble friend was right in his mischievous and humorous way to tell us of that fact.

In the 1997 Parliament in another place, the then Madam Speaker appointed me as the chairman of a new committee, the Political Parties Committee. The committee was to settle upon the description of a political party’s name—the words describing the party. It was also to settle upon the logo that that party could adopt. It is interesting now to see the ballot papers proposed. All the political parties in Great Britain, and some that one never knew existed, came forward with their logo and their self-descriptions. I had been on the Intelligence and Security Committee, appointed by the Prime Minister, for some 11 years, but I learnt more about the Communist Party of Great Britain from its description of itself than I ever did from being a member of that committee.

[Lord German]

My Lords, perhaps I may make a short intervention in support of my noble friend Lord Roberts of Llandudno on the issue of the regional ballot paper. It will give me the opportunity also to answer one of the points raised by the noble Lord, Lord Elystan-Morgan, about the coincidence of elections. It is incidental to the order, but I cannot resist the opportunity of answering that point.

There is a long and noble tradition in our electoral system of people being able to vote for people. If I have to look at the wall of a polling station to find out who will be elected if I put my vote against a party’s name, it is not quite the same as having the name there on the ballot paper. I understand the point about numbers, but only four people can be elected from the regional lists for any constituency in Wales. If the top four names for each of the parties are given, people will be able to say, “If I am voting for this party, I am voting for these four people in this order”. It will be quite clearly laid out on the ballot paper. I therefore ask my noble friend the Minister to consider this matter and see whether it chimes with political parties and the Electoral Commission for the elections next year.

On the coincidence of elections, we now have four elections in Wales: a European election, a National Assembly election, local council elections and elections for the other place. After the Bill passes, as we assume it will, there will be two five-year terms, for the European elections and the elections to the other place, and two four-year terms, for local authority and National Assembly elections. The National Assembly has previously moved elections for local government so that they do not coincide. The one, obvious way out of this difficulty whereby elections might clash on any number of occasions in the future—just as local elections and National Assembly elections would have clashed in the past—is to make all elections have five-year terms. We have two elections with fixed terms, European and Westminster; it seems that we should do the same for National Assembly and local elections.

These are personal views. I am testing them on this House so that people might consider them as a way out of the confusion created by having two sets of elections occurring at different intervals. Those of your Lordships who are good at mathematics will know that, if you have two fives and two fours, the fives and the fours will eventually clash. If it is logical to have fixed-term Parliaments for Europe and for the other place, it might be logical also for the National Assembly and local councils. If the logic is that fixed terms give you more time to make your programme of government work, that logic can be applied also to the National Assembly and local government.

[Lord Wallace of Tankerness]

My Lords, I thank the noble Baroness and the noble Lords who have contributed to this debate. I am grateful for the general welcome that has been given to the order. I noted that the noble Lord, Lord Elystan-Morgan, rehearsed his speech for the debate that we will undoubtedly have during the passage of the Parliamentary Voting System and Constituencies Bill. I rather suspect that it will fall to me to answer that part of the Bill. At least I am well prepared by knowing from where the attack will come, and I can expect it also from the noble Lord, Lord Jones.

There will undoubtedly be an opportunity to consider the coincidence of elections when we come to debate the Fixed-Term Parliaments Bill—I hear the point made by my noble friend Lord German. The noble Lord, Lord Elystan-Morgan, and the House will perhaps be reassured to hear that the Government are aware of the concerns that have been expressed in some quarters about the coincidence of polling dates in 2015. They are consulting the Welsh Assembly Government, all political parties represented in the Assembly and representatives of the Assembly itself on options for moving the date of elections to the devolved legislature—a similar consultation is taking place also in Scotland and Northern Ireland. We will decide whether further legislation is needed in the light of the consultation.

The two issues of concern to my noble friend Lord Roberts of Llandudno related to the location of the agent’s office and the names on the ballot paper, which my noble friend Lord German mentioned as well. The relaxation of the rules for agents is only for the regional election. The order states that the office must be “in Wales”. It could be in the respective regions, given that they are all in Wales. Only if political parties choose to have one agent for every regional election will it now be possible for an office not to be in every region. That arose during the 2007 election and has been taken forward. No party has objected to the change. I remind my noble friend that this rule applies to the agent’s office and not to the candidate’s offices. Candidates will still have offices in the respective Assembly constituencies. I hope that that gives some reassurance to my noble friend, who I know will engage in the electoral battles with the same gusto as I have seen from him over many years.

It shows just how much attention I pay that I had thought that names had been on the regional list for the previous Scottish elections; I am told that they were not, that that already is the case in Scotland. Such was my enthusiasm to vote for Scottish Liberal Democrats, I did not pause to notice whether the names were there or not. The names of the candidates will be displayed in the polling stations. My noble friend asked whether it would be possible to amend or reduce the number of names to four. That could happen only with the agreement of all the political parties that would be putting up more than four candidates; and although that agreement has been sought, it has not been forthcoming. It could be done by primary legislation, but clearly there will not be an opportunity for primary legislation between now and the elections.

The Government did give careful thought, and did consult the main political parties in Wales, before deciding which was the appropriate way to go forward. In the regional elections voters cast their votes predominantly on the basis of party affiliation rather than individual candidates, although independents can of course stand; and we believe that the change will help ensure that ballot papers do not become unduly unwieldy if all the names are on them. I am advised that representatives of Plaid Cymru and the Welsh Labour Party agreed the proposal, while the Welsh Liberal Democrats did not object. No comments were received from the Welsh Conservative Party, although it was circulated with it. The change is strongly supported by the Electoral Commission and by the representatives of the Association of Electoral Administrators in Wales, including the regional returning officer for Wales.

After every election there is a wash-up by the Electoral Commission. No doubt in May next year, this may be something that the respective political parties may wish to reflect on with the Electoral Commission in the light of that experience.

With regard to the sample names that have been mentioned, I had noted—the noble Lord, Lord Jones, beat me to it—that the candidate on the constituency ballot paper representing the farmers of Wales was Sarah Gale. I am not sure of the Welsh origin, if there is any Welsh origin, of the name which the noble Baroness is no doubt proud—

[Lord Elystan-Morgan]

What struck me was not the name of the candidate but the bovine that represented the logo. It was not a Welsh black, it was a Friesian.

[Lord Wallace of Tankerness]

Even more damning, I suspect. I rather suspect that the names were put there to be neutral. I only conclude on this point by noting that in the regional ballot paper, where there is one independent named, he goes under the name of Xavier Alfonso. I may be wrong, but it does not sound like the name of a boy from the valleys to me.

In conclusion, the noble Lord, Lord Elystan-Morgan, said that this was perhaps a unique moment given that all sides were applauding a particular order; and the noble Baroness, Lady Gale, commended the order for its evidence base, for being practical and for being sensible. I think there is general agreement. I have no doubt that when the time comes, the respective parties will engage in electoral combat with great passion, but no matter which party we belong to—or none—it is in all our interests that these elections are conducted effectively and efficiently, and I believe that with this order, we put in place the machinery for doing so. I commend the order to the House.

Motion agreed.

20:13

Sitting suspended.

Public Bodies Bill [HL]

Wednesday 1st December 2010 Lords Chamber

Committee (3rd Day) (Continued)

20:40

Amendment 23

Moved by

[Lord Warner]

23: Schedule 1, page 16, line 13, at end insert—
“Audit Commission.”

[Lord Warner]

My Lords, my amendment would add the Audit Commission to Schedule 1. I move it not because I wish to abolish the Audit Commission—quite the reverse—but because I wish to probe the thinking of the Government on why it has been excluded from the Bill while other bodies have been included in Schedule 1.

The utterances of Conservative Ministers in the coalition have been extremely critical of the Audit Commission and there has been a steady trickle of briefing against it from within the CLG so I, in my naivety, had rather assumed that Mr Eric Pickles would have been rather keen to rid himself of this body at the earliest legislative opportunity. Perhaps, let us hope, he has had a damascene conversion against abolition but more probably, as I suspect from my own intelligence, it is proving a bit more difficult than he thought to dismember the Audit Commission. That sort of impetuosity is typical of the way in which much of this Bill has been produced: decide first and think about what the reasons were afterwards.

I should acknowledge that, over the years, my path has crossed several times with the Audit Commission, so I could be said to have an interest to declare. In 1986, the commission produced an excellent report on community care which, to their credit, the Conservative Government acted upon. I was very involved with the reforms that followed that commission report, and again, 10 years later in 1996, when the commission produced a withering critique on the state of the youth justice system under the Conservatives that in its turn led to the establishment of the Youth Justice Board in 1999—an issue that we will debate later under an amendment in my name and that of the noble Lord, Lord Ramsbotham. Then, when I was a Health Minister, the commission helped to sort out some arcane, unworkable NHS accounting rules and provided much technical help on NHS reform, certainly to me. The fact that this commission has been capable for many decades of speaking truth to power has been a continuing feature of its work, but it seems to be a quality that has been little valued by some senior Ministers in the coalition Government. The way that this Bill has been produced rather confirms that.

I will not spend a lot of time today explaining why abolition of the Audit Commission is a thoroughly bad decision and will do much damage to good governance and efficiency in the public sector. There will be plenty of time to do that when, as I suspect, the Government eventually find a way to swing the legislative axe next year. However, I shall mention one issue that affects many public bodies but which, it is clear, has not been adequately thought about before the Government decided to abolish the Audit Commission—how to ensure that all local public bodies have an audit system based on clear principles of independence. We will not go into that tonight but I want to register that point.

There is no doubt that the Audit Commission has curbed the fees of the big accountancy firms for auditing public bodies and that its removal is likely to unleash significant increases in public expenditure thereafter. This is the kind of thing that we would expect to have spelt out in any impact assessment on legislation on the Audit Commission. However, if one looks at this Bill, one actually sees what I can only describe as contempt for Parliament, with the publication of an impact assessment that has no costs and benefits assessment in it about these bodies in Schedule 1. There is nothing there to tell us what the benefits and costs are of doing the things that the Government want done through Schedule 1. That is one reason why many of us are so concerned about the Bill.

20:45

Some of us would say that the impact assessment produced for the Bill is a scandal and is contemptuous of Parliament. That is one reason why the Minister is going to find, as we plod our way through Schedule 1, that we continue on body after body to ask for information—the same thing was asked earlier today—about the costs of deleting and abolishing these bodies and what the benefits are. If the Government had done it properly in the Bill’s impact assessment, they would be making faster progress. I do not want to carry on too far in that vein, but I remember some of the speeches that Mr Francis Maude made before the election about this; getting rid of quangos was all about saving money. I want to ask why, in an exercise that started off being about saving public money, we do not have any figures about the costs and benefits of getting rid of these bodies.

I now turn to the main reason for this amendment. I am afraid that I have a lot of questions for the Minister and let me assure him that they are not rhetorical. Do the Government still intend to abolish the Audit Commission, or have they had a change of heart? If so, how do they propose to do it, given that the commission is not in Schedule 7, so cannot be brought within the scope of the Bill? If the Government are going to use bespoke primary legislation to deal with changes to the Audit Commission, as seems to be the case, why are they not applying the same approach to some of the bodies in Schedule 1? For example, why is there not specific primary legislation amending the Crime and Disorder Act 1998 to make the changes to the Youth Justice Board that they seek? Why are bodies such as the Youth Justice Board being treated differently from the Audit Commission when their functions and membership were all set out in primary legislation after due consideration by Parliament? There is not a scrap of difference between some of the bodies in Schedule 1 and the Audit Commission in that regard.

Can the Minister give the House any coherent explanation of why the Government are picking and choosing between different bodies on the legislative way they make changes to them? If so, what is that explanation? If the Government cannot give those kinds of explanations, why should this House not, as part of its constitutional duty, continue to debate every body in Schedule 1 one by one, to find out what was behind the Government’s thinking and how they propose to change functions and to alter and amend the nature of the affected bodies?

I draw attention, without being too vainglorious, to the fact that as a Health Minister I abolished 20 arm’s-length bodies. However, if you go back over the records, you will see that we plodded our way through, organisation by organisation, bringing primary legislation to both Houses of Parliament, setting out the arguments as to why it was important to make changes and what were the legislative requirements for making those changes. People had a chance to put their views and we had some tussles in this House and in the other place about some of those changes. The Government are not giving Parliament the opportunity to do that on many of the important bodies which they have decided are for the chop in Schedule 1.

I would like answers to the questions I have posed. I understand that the Minister may not be able to answer them all today, but I would like answers well before Report as to why the Government are picking and choosing how they deal with particular bodies. I do not think that it will be too taxing for the Government to answer my questions. We have heard that the Government carefully scrutinised the 900 or so bodies that have been looked at since May before coming to the conclusions that they have reached. As an old Whitehall hand, I am sure that tucked away in the cupboards and computers of Whitehall are umpteen files—in digital or another form—that set out the careful analysis that has no doubt gone into the decisions reflected in Schedule 1. There will have been detailed cost-benefit analyses of each of these bodies before they were put in Schedule 1. No doubt great care was taken with the accounting officers in those departments to make sure that there would be no minutes of their reservations. I look forward to seeing the Minister’s arguments for why they have taken a different approach for the Audit Commission from their approach to many of the bodies in Schedule 1.

I spent some time picking over the disparity between what the Government are doing with the Audit Commission and their approach to the bodies in the Bill. This is because I have grave concerns about giving Secretaries of State—who, historically, may not be all that long in their jobs—powers to sweep away bodies about which they get a bee in their bonnet. All of us who have been Ministers get a bee in our bonnet from time to time about people who may be thwarting us or giving us uncomfortable messages. It does not mean that we reach for the axe or turn the screws on particular bodies to vent our spleen. We are getting nervous messages from many of these bodies about this approach, which makes me think that we need to hold the Government much more to account over the Bill than they might wish.

That is why Schedule 7 is so dangerous. It is a list of 150 bodies over which any number of Secretaries of State can work themselves up into a lather and behave—if I may say so—probably in an extremely British way but, nevertheless, in a way that exerts pressure on the thinking and behaviour of those bodies. We need a more measured approach and we need the Government to come cleaner than they have about the arguments for and against dealing with the bodies in the way they propose in Schedule 1. I beg to move.

[Viscount Eccles]

My Lords, I have not the good fortune to have been in this House for very long. I have had two sessions here. One, in 1999, was rather short, but I have been here from 2004 until today. I do not know a great deal about the procedure of this House, but that sounded extraordinarily like a Second Reading speech. Perhaps I am mistaken, but that is how it sounded to me.

I will briefly offer a little comfort about impact assessments. This is, admittedly, a framework Bill, and there is a long list of bodies in Schedules 1 to 6. Whenever a Secretary of State wishes to put down an order to abolish, to change funding or to merge, he will have to produce an affirmative instrument. Affirmative instruments are subject to 12 weeks’ consultation and the provision of an impact assessment, unless there is a very good reason why there should not be an impact assessment. The idea that there will never be any impact assessments for this House to look at is not right.

How will this House look at them? There is a committee called the Merits Committee, on which I was fortunate enough to serve for four years. That committee, as your Lordships know, looks carefully at every instrument. If it thinks that it is right to draw something to the attention of this House, it does so. If it thinks that the policy in the instrument is inconsistent with the Government’s declared policy, it says so. Then that affirmative instrument is debated.

It has been said—and we shall come back to this—that there should be some enhanced procedure, allowing Parliament to debate the thing in more detail because, it is said, Parliament does not usually turn down affirmative instruments. Nevertheless, we have that power. I believe, if the noble Lord, Lord Warner, will forgive me, that to reiterate that there is no impact assessment is to misunderstand the way in which the Bill has been put together. If you believe that this Bill should not have been put together as it was and that we should do whatever will be done only by primary legislation, what you are saying is that we will do only half a dozen bodies a year, because that is about all we would ever get the parliamentary time for.

[Lord Warner]

The noble Viscount may wish to interpret this as a Second Reading speech, but I thought that I was asking a very serious question about why some of these bodies are in Schedule 1 when they are fundamentally not that much different from the Audit Commission, which is not in Schedule 1. I am trying to understand the Government’s criteria for including some bodies but not others in this Bill. That is the whole purpose of my speech. I say to him, with the greatest respect, that debating the detail of an order some many months after the passing of this Bill will be too late. Those of us who have experience of chairing and being a member of staff of some of these public bodies would say to him that, once you have signed the death warrant—that is what the Bill is—you have no hope of retaining a great deal of talent in some of these bodies. That melts away. It is a perfectly rational, human response to a death warrant being signed on the organisation that you work for. It is a bit late in the day, when we get to the order, to start having the debate about whether it was a good idea in the first place.

[Lord Hunt of Kings Heath]

This has been a very interesting short debate. I am grateful to my noble friend Lord Warner for allowing us to debate the Audit Commission and some of the matters that arise from consideration of it as far as the Bill is concerned. My noble friend has a distinguished record as a quango basher. He led the arm’s-length body review in the Department of Health, which I succeeded him on. That reinforces the view that we, on this side, are not at all opposed to the principle of looking at each of these organisations where it is quite clear that they ought not to continue or that their functions can be done in another way. We have no problem with that. We do have a problem, however, with the architecture of the Bill. There is the general principle of the Henry VIII clauses, a huge and unprecedented power given to Ministers. I have no doubt whatsoever that, if we as a party had brought this Bill before your Lordships’ House in the last Parliament, we would have had no possibility whatsoever of having it passed.

The second point is this. The noble Viscount is right to suggest that, when affirmative orders come before your Lordships’ House, consultation has to take place and impact assessments have to be published. However, we are right, at this stage, to scrutinise those bodies that are under threat in this Bill.

Also, as a distinguished member of the Merits Committee, the noble Viscount may well have observed the correspondence between the committee and the noble Lord, Lord Strathclyde—the Leader of the House—on the question of the use of the conventions as regards secondary legislation. The Cunningham joint select committee report, which was approved by this House, made it clear that there were circumstances in which it was quite appropriate for the House to seek to defeat secondary legislation. My judgment is that that would apply to this Bill, because the kind of skeletal Bill that the Cunningham committee described is exactly what we are debating today.

The noble Lord, Lord Strathclyde, seeks to reinterpret the convention as regards secondary legislation. Essentially, he does not accept that there is a convention that this House can seek to defeat secondary legislation in the circumstances described by the Merits Committee. That increases our nervousness about whether the scrutiny available to the House of Lords will be sufficient to meet the needs of this Bill. We would have had greater comfort if the noble Lord, Lord Taylor, who is leading this Bill through with his usual inestimable charm, had clearly indicated that the Government would not proceed with Clause 11 and Schedule 7 and would agree to use the super-affirmative procedure. If he had acknowledged that at an early stage, the passage of this Bill would be an awful lot easier. I suspect that that will be the end point of our debates in your Lordships’ House. He will know that there is profound unease about this Bill all round the House. We will continually come back to the point about the architecture.

21:00

My noble friend asked important questions about the Audit Commission. First, it is very difficult to know why the Audit Commission is being abolished. Of course, some of its activities may be open to question and questions may be asked about whether it needs the resources that it has, though most of them come from the fees that it levies rather than from central government. My understanding is that the quality of the commission’s work is acknowledged in local government and in the health service and that there is generally felt to have been an improvement in the efficiency of local government and of the NHS as a result of the commission’s activities.

My second question concerns the cost of the commission’s abolition. I should like the noble Lord, Lord Taylor, to hazard a guess at what he thinks the cost of abolition will be. A few weeks ago, we were told by the noble Baroness, Lady Hanham, that the estimate was about £50 million. However, she was not able to be more precise than that. Far from the huge savings that we were promised, it is becoming apparent that in the next spending review period there will be a huge upfront cost as a result of this Bill. I remind noble Lords that an announcement was made from Downing Street at the time of the Queen’s Speech that suggested that £1 billion would be saved. Since then, however, the Government have been rather coy about this; in fact, there is a whiff of suspicion that costs will be greater than savings in the next spending review period. As we all know, the impact assessment is silent on all these matters.

It would be good to know what is expected to replace the commission. I have no doubt that private sector firms will be able to take over individual audit work, but I wonder whether the Minister agrees with the ACCA and CIPFA that there may be more conflicts of interest if all this work goes to the private sector. As my noble friend has said, there is a real fear that the independent voice of the Audit Commission, which was able to criticise government, will be lost.

My other concern relates to the work that the Audit Commission has done in relation to comparative performance and national comparators. Over the years, it has produced invaluable reports on National Health Service finance and related issues and comparative performance studies that have enabled the boards of NHS bodies to compare themselves with similar organisations, which I know board members have found invaluable. It is worth noting that its payment-by-results benchmarker was a winner in the excellence in the use of healthcare information management section of last year’s E-Health Insider Awards. Therefore, there is every indication that the Audit Commission produces quality work.

There is a further question that we are very puzzled about: why is the Audit Commission not in the list of bodies to be abolished? Our assumption is that the Government consider that it should be abolished by primary legislation. However, it is very difficult to establish the criteria under which some bodies are to be dealt with in this Bill while others are to be dealt with in primary legislation. The same is true of a number of health bodies that we know will be abolished under forthcoming health legislation. Again, I should be grateful to the noble Lord if he could explain a little more about the criteria that determine in which Bill these bodies will be dealt with.

[Lord Greaves]

Before the Minister replies, may I ask the noble Lord, Lord Hunt, a question? Earlier in his speech, he waxed lyrically in his normal way about the problem of whether the House of Lords can reasonably reject affirmative orders. As the noble Lord knows, many of us in this part of the House very much agree with him that the ordinary affirmative procedure is not acceptable for this legislation. Indeed, the enhanced super-affirmative procedure being put forward by the Government is still not adequate. Something rather special is needed, given the proposal to close down by ministerial order so many organisations that have been set up by primary legislation. There is a great deal of common ground on this issue around the House.

I wanted to pick up the point that the noble Lord has made several times about the approach that my noble colleague the Leader of the House is taking to affirmative orders, possibly taking a different approach from the view that was taken by the Cunningham committee. Does the noble Lord, Lord Hunt, accept that, as ordinary affirmative orders have to be put to the House after discussion, nobody in this House—not even the Leader of the House—can prevent this House from rejecting an affirmative order if that is what it wants? If there is a division of opinion when the voices are called for, there will be a Division and, if more people vote in the Not Contents Lobby than in the Contents Lobby, the order is rejected. That cannot be prevented by anybody.

[Lord Hunt of Kings Heath]

My Lords, I am sure that that is right. I remind the noble Lord that the Companion recalls the vote taken by your Lordships’ House some years ago that reaffirms its right to defeat secondary legislation. I am sure that that is the position. However, it is important to note the views of the Leader because it is worrying that he should seek to undermine the consensus that I thought we held about the Cunningham convention.

[Lord Taylor of Holbeach]

We had this debate the other evening. If the noble Lord remembers, I corrected what I said from “convention” to “custom”. I think that that more closely fits what happens in this matter. It is for the House to decide how it deals with statutory instruments. It is not a matter of convention; it is purely a matter of custom. If the noble Lord is seeking to develop this argument, which may be connected to this amendment—I understand that it is certainly connected to the purpose of the Bill—I think that it would be important for him to bear that in mind.

[Lord Warner]

Whether it is a custom or a convention makes very little difference to the people working in these organisations. As far as they are concerned, if Schedule 1 goes through, they are for the chop. That is the end of those organisations. People will make their own dispositions. They are not going to sit around waiting for the customs and conventions—or whatever we want to call them—of this House to decide whether this House will or will not defeat an order many months later. Does the noble Lord accept that there is a problem of handling for many of the organisations in Schedule 1?

[Lord Hunt of Kings Heath]

Perhaps I may come in first and respond to the noble Lord, Lord Taylor, before he responds to my noble friend. In my remarks I made no criticism whatsoever of the noble Lord, Lord Taylor. He is quite right that he made the point about custom, but I was referring to the correspondence between the noble Lord, Lord Strathclyde, and the Merits Committee, which has been published in, I think, two reports of the Merits Committee.

Finally, having raised concerns about this Bill, we have been informed that we should be comforted by the fact that each order would be an affirmative order. I do not think that that is sufficient, nor do I think that the amendment that the noble Lord has tabled in relation to enhancing that is sufficient.

The problem is that at the moment we do not find the Government willing to hear the voices around this Chamber or to understand that at some point they will have to make some movement, as it is pretty plain that this Bill will not get through your Lordships’ House in its present form. Therefore, it would be in everyone’s interest for the Government to show willing and to sit down and listen to some of the genuine concerns that are held in the House to see whether we can find a constructive way through. The debate on the Audit Commission allows us to put those matters on the table.

[Lord Taylor of Holbeach]

I thank the noble Lord for that contribution to our discussion on this amendment. The amendment in the name of the noble Lord, Lord Warner, if not a probing amendment, is a teasing amendment. It is a new parliamentary device to tease the Government into enunciating their philosophy behind the Bill. Noble Lords would agree that some of the speeches have resembled Second Reading speeches and have gone over ground that we have discussed before. So that all noble Lords are aware of this, I reaffirm that I am listening and that I am conveying the mood of the House.

Why I must resist the amendment to include the Audit Commission in Schedule 1, which I have no hesitation in doing, and why I forgive him for not producing an impact assessment on his proposal to include it in the schedule is because the noble Lord knows very well that the time for consultation and impact assessments comes later on in the proceedings. It is not part of this legislation to produce those documents for individual bodies.

[Lord Warner]

The Government actually produced an impact assessment and that impact assessment is totally silent on the subject of costs and benefits of the proposals, even in any kind of outline form. Is the Minister saying that the Government can bring a Bill to this House seeking to abolish a very large number of bodies and not produce any numbers whatever about the costs and benefits? Is that his position?

[Lord Taylor of Holbeach]

Indeed, it is. The process that is built into the Bill allows for impact assessments to be presented at the time of change. The Bill does not propose change; it facilitates change. I tease the noble Lord. He is proposing to include a body in Schedule 1 but, quite rightly, he has not come up with an impact assessment because he is not in any position to provide that; nor would I be in a position to provide that. The time to do that is when the department makes a decision to act under the Bill. I know this is a tease on the noble Lord’s part, but it is very important to use the opportunity of this debate to get that message across.

[Lord Warner]

If the Minister looks back to the period between 2004 and 2007 or 2008, he will see that the previous Government came forward with primary legislation for changes to bodies set up by Parliament with an impact assessment which set out the cost of those changes so that Parliament could see the money implications of changes to legislation that it was being asked to make. In effect, the Minister seems to be asking for a constitutional change: to come to Parliament to take primary legislation to abolish bodies which have been set up by Parliament without giving any idea of what the costs and benefits of that decision are. That is what he seems to be saying.

21:15

[Lord Taylor of Holbeach]

I am trying to use the opportunity of this debate to reassure the noble Lord about the process that will exist following the passage of the Bill, that no action can be taken without proper consultation and impact assessments. Noble Lords know that. I have said this many times. However, I have listened to what has been said about the need for information. I appreciate that the Committee and the House would like more information on proposed changes, and I take that matter on board.

[Baroness Royall of Blaisdon]

I am sorry to delay the noble Lord once more. However, in that information, if we are to take real decisions about whether important bodies such as the Agricultural Wages Board, which we were discussing earlier, are to remain in existence, then the information that the noble Lord is very kindly going to provide us with must include an impact assessment on, for example, the costs. Otherwise, we cannot come to a clear and rational decision.

[Lord Taylor of Holbeach]

Indeed, I reassure the noble Baroness that any instrument produced under the Bill to enact any of the powers within it will contain that information. That is the position. This is not primary legislation to abolish the Agricultural Wages Board or the Audit Commission. That is not what the Bill is about; it is intended to empower the executive with the ability to bring forward secondary legislation in order to facilitate change. It is at that stage that the legislation occurs. It is very important to get that message over.

We have produced an impact assessment for the Bill. It talks about changes to particular bodies made under the orders of the Bill, and they will be produced in accordance with its existing rules and guidance on impact assessments at the appropriate time. Perhaps I may continue by addressing the amendment. After all, the noble Lord has proposed that we should include the Audit Commission in Schedule 1, and I wish to tell the Committee why I think that suggestion needs to be resisted and why there may well be a better way of dealing with the policy change which the coalition has announced in order to deal with it.

The Government intend, where appropriate, to use the power in the Public Bodies Bill to make changes to public bodies. However, the changes regarding the Audit Commission require power changes to legislation which is outside the scope of the Public Bodies Bill. Therefore we are setting up an alternative legislative vehicle. I will explain the background to that. On 13 August, the Secretary of State for Communities and Local Government announced plans to disband the Audit Commission and refocus audits on helping local people to hold local bodies to account for local spending, as well as on saving the taxpayer some £50 million a year. This figure reinforces the one given by my noble friend Lady Hanham.

The commission’s responsibility for overseeing and delivering local audits will stop, its research activities will end and its in-house audit practice will be moved to the private sector. We are considering a range of options for doing this. Councils will be free to appoint their own independent external auditors from a more competitive and open market, and there will be new audit arrangements for local health bodies. All local audits will be regulated within a statutory framework, with oversight roles for the National Audit Office and the profession. As a result, the Audit Commission’s in-house practice will be transferred out of public ownership. A range of options are being considered and evaluated for moving the audit practice into the private sector. The department is now working closely with the commission, the accountancy profession, local government and the health sector to develop the detailed design of the new systems, and to take forward, in the most effective way, the transfer of the commission’s in-house audit practice into the private sector. This work is ongoing. We are aiming for the new regime to begin to come into effect during 2012-13. That regime will require primary legislation and as such, this timetable is dependent on parliamentary time. If the noble Lord’s amendment were to succeed, it would mean that the Government could use the power in Clause 1 to abolish the Audit Commission. However, the Government would not be able to ensure that a robust statutory framework for local audit is put into place.

This is the statutory regime for the audit of local authorities and local health bodies, including foundation trusts and other NHS trusts. For example, the powers in the Public Bodies Bill would not allow the Government to provide these bodies with the powers they need to appoint their own independent external auditors. Likewise this Bill would not enable provision to be made for the arrangements through which the quality of local audit will be maintained. The Government intend to bring forward separate primary legislation, subject to parliamentary time, which deals with the disbanding of the Audit Commission, the transfer of the in-house practice into the private sector and the setting up of the new local audit regime in a comprehensive and integrated way. As such, I hope that the noble Lord will withdraw his amendment.

[Lord Warner]

My Lords, I was fascinated to hear that elegant explanation of how the Government will deal with the Audit Commission. If only I felt they would use that same elegant approach to some of the other bodies in Schedule 1, I would go home happy. I shall continue to reflect on what the noble Lord has said, and look forward to having answers to my questions, which I do not feel that I have had. In the mean time, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Amendment 23A

Moved by

[Lord Fowler]

23A: Schedule 1, page 16, line 13, at end insert—
“BBC Trust.”

[Lord Fowler]

I think that I can bring the Committee into calmer waters by proposing something that the government Front Bench will have no difficulty whatever in accepting. The Marshalled List is littered with amendments to preserve bodies that the Government propose to abolish. I am not doing that in any way; I am adding a body that should be abolished and which would have beneficial financial consequences for the Government. I hope to have a very helpful reply from the government Front Bench but I fear an unhelpful intervention from my old pal on the Select Committee.

[Lord Maxton]

I have a lot of sympathy with the amendment but if I were a Clerk in the other place I do not think that this amendment would be in order. The trustees of the BBC and the BBC itself are not established or controlled by an Act of Parliament. Therefore, I do not see how we can have an amendment that would abolish something in an Act of Parliament that in itself was not established by an Act of Parliament. That may be a little legalistic but I wonder whether the noble Lord would like to comment on that.

[Lord Fowler]

I knew that the noble Lord would say something entirely unhelpful from past experience. I will come precisely and exactly to that point, but let me make the case in principle, with which the noble Lord is honest and experienced enough in these matters to sympathise.

Let me make it clear that this is in no way an attack on the BBC. I am a committed supporter of the BBC, as I think is the noble Lord. It provides the best news coverage both domestically and internationally of any media organisation, probably in the world. I totally support its freedom to report, including the recent “Panorama” on corruption inside FIFA. I note, when abroad, how high the corporation’s reputation is. In short, I believe that we would be mad to turn our back on the BBC or see it weakened. But one of the things we should recognise is that the BBC is currently, and has been for some time, under attack from powerful forces who would like to see it changed and weakened. There is no question about that. It is therefore crucial that the BBC has a structure which, apart from anything else, enables it to fight its corner, to put its case and to reply swiftly and with confidence to attacks when they come. My view is that this is simply not achieved by the present divided leadership of the BBC and much of that fault lies with the formation of the BBC Trust.

The BBC Trust is a recent invention. For the vast majority of the time and history of the BBC we did not have a trust and there was no need for such a body. It was set up by the last Government in the aftermath of the dispute with the BBC about its reporting of Iraq. The result has been that there have been not one board but two boards. We have had an executive board that has been headed by the director-general but with non-executive members—something pretty unusual in corporate history—and we have had the BBC Trust, which was kept deliberately separate from the BBC executive, housed in a different body and with the chairman being able to call himself the BBC chairman but only as a courtesy title. That is exactly how it is set out.

The Select Committee which examined the royal charter of the BBC, which I chaired and of which the noble Lord, Lord Maxton, was a member, opposed this change. Basically, in précis, we said that it would be much better to have one organisation—a BBC board, a chairman, non-executive directors, a chief executive and other executives—in other words, a structure just like the structure of any other major corporation in this country, with regulation carried out if necessary by Ofcom. We were not alone remotely in our opposition to the change that was being proposed at the top of the BBC. Past chairmen of the BBC such as Christopher Bland made it clear that they were opposed to it. Most significantly of all, by the end of the last Government, Ben Bradshaw, then Secretary of State for Culture, also said that he was opposed to it. So I think we can say that there is a pretty strong consensus, and an even stronger consensus in the broadcasting industry, that this is an unnecessary body and that reform and change need to take place. Perhaps I should say in parentheses that this is in no way a personal criticism of the present chairman of the trust, Sir Michael Lyons, who I know and like and have worked with entirely happily. It is not a criticism of him; it is a criticism of the divided structure. But Sir Michael is now standing down and there therefore exists the opportunity to change the structure into something more sensible. That is the point. This Bill seems to me potentially to give that opportunity.

The purpose of the Bill is to eliminate or pare down unnecessary bodies in the public sector. The BBC Trust qualifies on all counts. It adds to cost, causes delay and sometimes confusion in decision-making, and could all be done so much better than it is. Again, I think there is no real conflict on that. But so far that opportunity has not been taken. I do not detect that that is because this Government are any more enthusiastic than the last Government about the trust—any more enthusiastic than Mr Bradshaw. The concern seems to be that action would mean interfering with the royal charter. I come now precisely to the point that the noble Lord, Lord Maxton, was putting. Our view as a Select Committee was that the whole governance of the BBC should be put on a statutory basis, but this was resisted by previous Ministers on the grounds that the royal charter cemented everything in for 10 years. That, in précis, was the case that was put to us. In the past few months we have seen the licence fee frozen and the cost of the World Service added to the licence fee, and we very nearly saw the cost of licences for the over-75s added to the licence fee as well. I do not debate the merit of those proposals—I would love to do so, but I do not—but I observe that it has not proved very durable cement as far as the 10-year period is concerned.

21:30

The fact is that the royal charter, which sounds so very grand, is fiercely anti-democratic. It gives, and is intended to give, all power to the Executive. The royal charter is a straightforward deal between the Government and the BBC which at no stage comes near Parliament for a decision. We can give our views. The Select Committee gave its views and was thanked profusely. No one took any notice of them, but the Select Committee was profusely thanked for them. I think other Select Committees did the same. I am simply not persuaded that the royal charter should act as a block to change, and even less am I persuaded when I hear that one possible solution is that the trust should now appoint a new chairman. We know it is an unsatisfactory body, but the headhunters are already hunting for a successor to Sir Michael. They say the circle should be squared by giving the executive board a new non-executive chairman. If that plan goes through, we will end up not with one chairman of the BBC, but with two. That seems a pretty eccentric solution to this problem.

Although I guyed it a bit, I am very conscious of the point made by the noble Lord, Lord Maxton, and there may be other solutions. If there are, I am very happy to hear them from the Minister. What I would be unhappy about is not hearing any solution at all and being told that we are going to wait for the next five or six years, because that is a totally unsatisfactory position. I do not think it is satisfactory to go ahead and appoint a new chairman for a body that most people in broadcasting think is unsatisfactory and does not serve its purpose.

I should again emphasise that I am in no way anti-BBC; I think noble Lords may have detected that. On the contrary, I think it is fundamental for the state of the media in this country, but my view is that this divided structure does the BBC no favours whatever. It is in the interests of the BBC that we should have one board and one chairman, and that means abolishing the BBC Trust. No one seriously believes that the trust will survive another charter review in four, five or six years. No one thinks that if we are going to go ahead with a charter review, the BBC Trust will come out of it as a solution because it is virtually certain that it will not. Rather than waiting for five or six years, there is everything to be said for acting now—saving money, certainly, but above all getting clearer lines of responsibility than we have at the moment. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I declare an interest as a member of your Lordships’ Select Committee on Communications and pay tribute to the stewardship of the former chairman, the noble Lord, Lord Fowler, who has just spoken. It was interesting to listen to the initial spat between the noble Lord and another former member of the committee about whether this amendment could be permitted. In truth, the whole of his speech appeared to be about moving the BBC into Schedule 7, not Schedule 1. The attack, as it was, on the current governance arrangements of the BBC was well made and echoed what was in the Select Committee’s report a few years ago, but it is really about change, not abolition. However, I will pass on because we are in tickling and teasing mode rather than worrying too much about exactly how these things are coming out at the moment.

Today’s debate has been, for those of us who are somewhat new to the arrangements for discussing Bills, a wonderful tour d’horizon of the far reaches of our constitutional arrangements in this country. I did not know enough about agriculture, justice, the Audit Commission or various things to do with shipbuilding. I may even have heard about aircraft—or was it the other way around? I was not quite sure at the end of that discussion whether we had in fact had an answer to the amendment earlier today, but, again, I will pass on. We were only tickling there. Underneath all this, however, does the discussion not raise one or two principles? It seems to me that, although a lot of the heat and energy in this debate has been about whether we are doing it right, the elephant in the room—that terrible hackneyed phrase—is really what this says about our constitutional measures.

Every Government and every governing operation has to work out how to deliver the services that legislatures create for them. In that, we have to think about subsidiarity—the lowest level to which we can devolve the operations which are to be carried out, and make sure they are done properly. We have to give protection from undue interference from those who have set up the arrangements and freedom to those who are charged with getting on with the duties to undertake reasonable stewardship. I do not hear those principles coming through very much in the debate we have been having, but they are surely underlined in what we are saying.

The amendment to which I am speaking is really, as I said, a teasing amendment—a hypothetical situation perhaps. But the noble Lord, Lord Fowler, brought out very well, and I am sure other speakers who will join us in this debate will also say, that nobody argues against the very special place that the BBC holds in this country. It makes entertainment programmes among so many other things, so it obviously affects every aspect of our culture, and it informs and therefore changes the terms of the political debate. It is absolutely at the heart of what we believe our country is about. It is important that we find some form of super-protection, and I think the noble Lord was saying the same thing, both within the environment in which the BBC operates, but also against Ministers and even against Parliament. One could not imagine, if the BBC were to be abolished, the DCMS accepting responsibility for all the various aspects of our life that the BBC influences. That must not be right.

We could not abolish the BBC, but how do we manage it? That is the question that we have to think about. Clearly, the state has to balance the interest it has in economy, efficiency and effectiveness, and apply that to all its public bodies. I worked in a similar body, the British Film Institute, some time ago; just before I arrived, it had negotiated very hard indeed against the then Government to achieve a royal charter, which was given to the BBC about 50 years after its incorporation in 1933. We celebrated that, because it felt as if we had received the gold standard in terms of freedom from interference from Ministers and those in authority. It was illusory, obviously, because Ministers are very persuasive and good at getting around anything that could possibly smack of concern about these sorts of issues; but it was something that we ritually touched every month or two, just to reassure ourselves that we did exist, that we had that protection and that we should have had it. The BBC is in a similar position. Its charter is renewable, as it was not in the BFI’s case, but there was sufficient public interest and discussion in the renewal process to ensure that the BBC would not be affected too badly.

My concern in this amendment—and I am not entirely sure whether I am speaking in favour of it or against it, but I suppose I am tickling it—is that this is really about how one would find in a constitutional settlement, perhaps a codified constitution towards which we are surely moving, a way of expressing some of the issues that appear in our day-to-day existence, which we take for granted, such as academic freedom, freedom of speech, and the ability to switch on our television and see unmediated news and entertainment. These things have to be written in somewhere, not be dealt with simply by a framework Bill, a subsequent affirmative order or in speeches made in this House or another place. That is more important than some of the points made around other bodies here. There are one or two organisations and bodies that we would recognise as being hard-wired in our operation of this country, but I have yet to find an appropriate place within the various organisations that we currently see.

In another debate at another time, I encouraged the noble Lord, Lord Maclennan, to talk a little more about his ideas for a council of state, which might in some way take on the responsibilities of this Chamber. It may be that at some point we should think again about how we account for those senior bodies, such as the BBC, that we must have in our arrangements. I leave that thought with this House.

[Lord Maxton]

My Lords, given that I waited 40 minutes for a bus last night in the cold, I do not intend to detain the House for long tonight. I do not think that this amendment could be part of this Bill. The BBC is part of the royal charter. To get rid of the trustees, as the noble Lord, Lord Fowler, said, you would need to put the BBC on a statutory basis in an Act of Parliament. I accept the tenor of his amendment, and I supported the report when it was published in terms of not wishing to have trustees but having a different type of governance. However, my worry is that, if we get to the point where the BBC is to be established by an Act of Parliament, it would mean passing an Act of Parliament to abolish the present situation—essentially abolishing the present BBC—and then re-establishing it. In those circumstances, given what the noble Lord said about the threat that is coming to the BBC from external forces, we would put the BBC under even greater threat. That would be the whole existence of the BBC in those circumstances.

Having said that, I have a lot of sympathy with what the noble Lord has said, not just because the governance of the BBC is wrong in terms of the trustees. This is no criticism of the trustees personally, but they have failed in one of their primary responsibilities—to hold the BBC, somehow independently of the BBC, to account. They have failed to do that job properly in one particular regard. The BBC, after all, is funded entirely out of public funds, and the trustees should say to the BBC that it should be accountable to the public in the same way as is every public body funded by the taxpayer. In particular, as the noble Lord will know, I believe that the whole BBC—every person, both employee and contractor—should be subject to the Freedom of Information Act in the same way as are all other public employees. Therefore, we should know exactly what some of the people in the BBC earn, and I do not mean the big entertainment stars. I am much more interested in knowing what some journalists earn, as they attack those of us who are public servants in other ways, including attacks on MPs about their expenses. In that sense, the BBC Trust has failed in its duty to hold the BBC to account. For that reason, I would support the amendment in the name of the noble Lord, but I feel that if his amendment is carried it would put the BBC as a whole at some risk.

[Baroness Jones of Whitchurch]

My Lords, I have listened to the contributions of the noble Lord, Lord Fowler, with some interest. I certainly acknowledge his experience and his interest in the future of the BBC over the years. He described himself as a committed supporter of the BBC and I certainly endorse that. However, by raising this issue in this way, I fear that he will undermine the very cause that he at the same time is seeking to champion. I say that for a number of reasons.

There may well be the need to have a debate over the future of the BBC Trust. As the noble Lord, Lord Fowler, said, the previous Secretary of State, Ben Bradshaw, has already described the BBC Trust as not a sustainable model in the long term, a fact which we acknowledge. But this is not the time for such a review. The truth is that over the last few months the BBC has been battered by the challenges to its role. There have been, as has been acknowledged, powerful forces seeking to undermine its role. It was forced in an unseemly timescale to agree a financial package that might have been more robust, more defensible and more justifiable if a longer time had been taken over those negotiations. In its wake, questions have been left over the future funding of organisations like the World Service and S4C which might not have been intended at the outset of those negotiations.

21:45

More importantly, that whole period over the last few months has left a question mark in the minds of the great British public over the future of the BBC. It is worth acknowledging in this debate that whatever we think of the BBC and the way that it is run, it is still a much loved institution in this country. The general public would like to see that we are standing up and defending that organisation, because it is still held in very high regard.

There has been a bit of a debate about whether or not this is a teasing amendment. Like others, I do not know enough about the constitution to know whether the noble Lord, Lord Fowler, is serious or not. If he is, why create further uncertainty at this time, particularly as the current Secretary of State at the DCMS has said that major changes are not appropriate before the review of the royal charter in 2016? If that is the current state of play of the Government, then why create further uncertainty and further question marks over the BBC’s future? Also, this is not the appropriate vehicle for such a debate. If there is to be a review, we need to find an alternative venue and structure for a measured, thoughtful and timely debate that will allow us to look at the future governance in the round. This will enable us to ensure that when we come to a solution about future governance, it is more sustainable than the structure that we have in place at the moment.

My colleague the shadow Secretary of State for the DCMS has asked for an inquiry by the Culture, Media and Sport Select Committee. Again, the noble Lord, Lord Fowler, will be aware of the power of those sorts of Select Committees. There is a role for these kinds of bodies to give the sort of scrutiny that these issues will allow—to take them away from the cut and thrust of the Chamber and work through something that will be sustainable in the longer term.

There has been a lot of criticism of this Bill already in terms of its framework, style and lack of depth, and therefore the opportunity that it gives for people to put their pet projects on to the list, perhaps without due scrutiny. I was very interested in the comments made by my noble friend Lord Wills that there is a need not only to look at the governance of the BBC but to look at some of the other institutions that we have in the round. Again, I argue that this Bill is not the means by which we should do that. Yes, let us have a debate about the future governance of the BBC. Yes, let us find the right opportunity and the right time to do it. If we can find the right means for that, there might well be more consensus going forward than this amendment, in this form and in this Bill, will allow. I hope that the noble Lord will consider withdrawing it on that basis.

[Lord Taylor of Holbeach]

My Lords, I thank my noble friend, who I hold in high regard, for moving this amendment. However, I have to disappoint him by saying, like the noble Baroness, Lady Jones of Whitchurch, that this is not the time nor the place. Now is not the time, and this Bill is not the place, to debate the proposals that he has presented in this amendment. Perhaps the contribution from the noble Lord, Lord Maxton, explained that for the Committee.

The BBC Trust is established through the royal charter, the current charter being in place until the end of 2016. The Government have no intention of bringing the charter to an end before its designated end date of 2016. There are certain benefits in granting a 10-year charter and remaining committed to its stated duration. For example, a charter supports the independence of the BBC from government and Parliament, to which the Government are committed in the coalition programme. A 10-year charter provides greater certainty and stability for the BBC in the way that it operates, including its governance arrangements, and gives the BBC an ability to plan for the future while allowing for a fundamental review at expiry. Ending the charter before its due date would undermine these important principles and lose the benefits of granting a 10-year charter. As noble Lords are aware, the Government have agreed with the BBC that the NAO can have full access to the BBC’s accounts in order to make it more transparent and accountable to Parliament. The Government do not believe that there is a case for any greater accountability to Parliament. As the noble Lord, Lord Stevenson of Balmacara, said in a very thoughtful speech—I was grateful for his contribution—the BBC must be able to hold Parliament and parliamentarians to account. Increasing the BBC’s accountability to Parliament would counter the principle of safeguarding its editorial independence.

The future of the trust as a model of governance will be fully assessed at the time of the next charter review. I am sure that my noble friend Lord Fowler will be in a position to advise on that assessment, and I imagine that he will do so robustly. As my noble friend is aware, the chair of the trust is due to leave the post at the end of his current term and a new chair will be appointed from next May. The BBC Trust offers a direct line of accountability to TV licence payers. It holds the executive to account. This separation has a purpose. As I have said, when the next charter expires, all issues relating to the BBC will be discussed.

When the current charter was created, extensive consultation took place. The public made it clear that the BBC should not be made more accountable to Parliament.

[Lord Fowler]

What does the Minister base that on?

[Lord Taylor of Holbeach]

As I have said previously in my response, the public said in the consultation that they did not want the BBC to be beholden to Parliament because they felt that its independence and ability to criticise Parliament and government would be impeded.

Furthermore, the BBC is not a statutory body, as the noble Lord, Lord Maxton, pointed out. This Bill is designed to cater for bodies where changes need legislation in order to be effective. This is not the position in relation to the trust. Therefore, as with all other non-statutory bodies, it is not appropriate to include it in the Bill.

Despite disappointing my noble friend—I am sure that I have not surprised him—I would ask him to withdraw his amendment.

[Lord Fowler]

My Lords, as the Minister said, it is a disappointing reply. Frankly, I think that we are going backwards, because the previous Secretary of State in the previous Administration made a darn sight more radical assessment of the royal charter than the Minister has. He is now repeating all the things that we were told about four or five years ago. It is exactly the same script as the Department for Culture issued at the time. This stuff about the public having been asked is complete rubbish; I really do think that the department might at least take that out of its script if nothing else. I am sorry to get heated about this, but it is fairly dismal.

I thank all noble Lords for their contributions. It has been a useful debate. What the noble Lord, Lord Stevenson, said was extremely interesting. I do not think that the royal charter is a gold standard. It has not worked for the BBC. It is frankly just a deal, as I said, between the Secretary of State on the one side and the chairman of the BBC on the other. We can set up Select Committees to kingdom come, but some of us have to take notice of those Select Committees, and the record of that has not been great. When we come to Select Committees, I would point out to the noble Baroness, Lady Jones, that the Select Committee in the House of Lords and the Select Committee in the House of Commons have both said that the BBC should be placed upon a statutory basis. There is no doubt about that. The noble Lord, Lord Maxton, raised an interesting and important point about the statutory basis and the dangers that it could have and I do not wish to decry that. I also remember him arguing passionately in the Select Committee that the only democratic representatives, as far as the licence fee was concerned, were Members of Parliament.

The noble Baroness said that the BBC has been battered. She might consider that one reason it has been battered is that it has no strong chairman, no strong board and no one to respond for it. She asked, “why now? We cannot have a debate now.” I would point out that I have had a request for a debate on the Order Paper for the past 12 months. There are not that many opportunities for debates in this House. The crucial question, the crucial issue is this. Sir Michael Lyons, the chairman of the BBC Trust, is resigning. It gives us an opportunity to rethink.

Of course I will withdraw this amendment, but I warn the House that when both the government and opposition Front Benches agree on a policy, then the Back Benches need to think very carefully indeed. With that in mind I beg leave to withdraw the amendment.

Amendment 23A withdrawn.

House resumed.

House adjourned at 9.58 pm.