Grand Committee
The Deputy Chairman of Committees (Baroness Fookes)
My Lords, it has been agreed that, should any of the Questions for Short Debate not run for their allotted hour this afternoon, the Committee will adjourn during pleasure until the end of the hour. Therefore, each of the Questions for Short Debate will start at half-past the hour. Of course, in accordance with normal practice, if there should be a Division in the House, we will immediately adjourn for 10 minutes. If necessary, time can then be added to the time for the Question for Short Debate—what I would describe as injury time.
Health and Safety at Work
(13 years, 8 months ago)
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Lord McKenzie of Luton
To ask Her Majesty’s Government how their proposed changes to the health and safety system will encourage safer and healthier work places.
Lord McKenzie of Luton
My Lords, I am grateful for the opportunity to have at least a short debate on issues of health and safety. It gives us the opportunity to take stock in light of recent developments, including implementation of the recommendations of the noble Lord, Lord Young of Graffham; the impact of the spending review and the 35 per cent reduction in funding for the HSE; and the recent pronouncements of 21 March by the Minister for Employment.
It was not my intent today to cover issues around the HSE’s role in nuclear inspection, but I hope that the report under way by the UK’s chief nuclear inspector will provide this opportunity in due course. Nor do I intend to dwell on major hazard industries, not because they are not extremely important but because the coalition Government have seemingly, and sensibly, determined that regulation of these industries is soundly based and in accordance with best international practice.
Our concern around recent developments is the central message being promulgated, which is that much action on health and safety is burdensome to business and unnecessary. The focus is on what RoSPA refers to as “over-hitting” on health and safety, rather than on underperformance. There is also very little focus on occupational health.
So it is worth reminding ourselves why health and safety is so important. The prevention of death, injury and ill health to those at work and those affected by work activities is not only a legal imperative and a moral one; it is good business. The costs to business of health and safety failures are potentially wide ranging: direct costs of sick pay, compensation, fines; loss on a temporary or long-term basis of employee skills; costs of temporary cover, reputational damage and possible exclusions from procurement opportunities. For individuals and their families the consequences can be devastating—the loss of a loved one, aspirations blighted, family finances wrecked.
We know that good health and safety is linked to leadership of an organisation and that organisations which have good health and safety systems tend to have good management systems, and better economic performance. We also know that the benefits of worker engagement can improve health and safety outcomes but that hardly gets a mention these days—certainly not trade unions and the significant contribution that they have made to the training of safety reps, which is just one example. For government the gains should be obvious; stopping people falling out of work avoids the cost of benefits, retains tax revenues and obviates recourse to expensive back-to-work programmes.
So, given all of this, it is surprising that little effort on the part of the Government is being directed at improving our performance as a country and promoting the strong benefits of the system that we have; rather, there is the focus on health and safety being a burden on business. I will not repeat all the figures, but last year 28.5 million days were lost to workplace ill health and injury. Over 500,000 workers suffered from MSDs, and nearly as many from stress, depression or anxiety. Some 152 people were killed at work, and 740 in work-related road accidents. The cost to the UK economy is many billions of pounds each year. Despite the fact that we have a very strong record in comparison to other countries, there is still much to do.
So how are these recent developments helping? The report of the noble Lord, Lord Young, focused little on occupational health and what might improve our health and safety performance but had wider significance around personal injury claims, food hygiene rating schemes and so on. Nevertheless, positive developments have flowed from the report, perhaps the most important being the establishment of the Occupational Safety and Health Consultants Register. This was formally opened for business by the 21 March announcement but had been in gestation for some time. The health and safety professional bodies which have co-operated with the HSE in bringing it to fruition are to be congratulated, especially IOSH, which has long campaigned for an accreditation scheme. It will provide better reassurance for purchasers of services, helping to tackle the problem of unqualified or unscrupulous consultants who overcharge and overprescribe, adding costs for business and adding to a culture of unnecessary risk aversion.
One of the enduring strengths of our health and safety legislation and the management regulations is that they are non-prescriptive. They set out what must be achieved, not how something should be done. However, this creates a need for more help for some businesses, especially SMEs and micro-businesses. This theme was picked up by the noble Lord, Lord Young, who proposed simplified risk assessments for what he described as low-hazard workplaces. The HSE has responded to this, although it does not appear to be developing the proposed periodic checklist, nor, thankfully, to be exempting employers of home workers or the self-employed from risk assessment. The launch of the website Health and Safety Made Simple with the March statement is to be welcomed.
I turn to what is described as the new health and safety framework. A central proposition of this is to reduce inspections for non-major-hazard industries. In particular, it proposes that there will no longer be proactive inspections for what are described as lower-risk areas, which include light engineering, electrical engineering, the transport sector—air, road haulage and docks—education, and electricity generation, nor for areas of concern such as agriculture, quarries, and health and social care, where such inspections are deemed unlikely to be effective.
Perhaps, in passing, I may comment further that the HSE’s website for January records that one of the successful prosecutions was of a high-voltage electrical engineering company where someone was prosecuted after an employee suffered serious burns from equipment carrying 11,000 volts. On the new basis, it would seemingly be a lower-risk area and not subject to proactive inspections, if I understand the intent. Perhaps the Minister can expand on the evidence base that was used to arrive at this determination. Has the analysis taken account of health issues, as well as the records of deaths and accidents? Do the Government reject the evidence that the prospect of inspections is an incentive for employers to improve?
We have considerable concerns over this blanket approach to designating great swathes of business as low hazard—effectively no-go areas until something goes wrong. As RoSPA suggests, should we not be focused on the risk profile of people’s jobs and not the hazard history of the sector in which they operate? How do the Government intend to monitor and report on this new approach?
Of course, proactive inspection is only one component of the HSE’s and LA’s preventive agenda. Joint working with industry is carried out at the moment and can be developed. The provision of advice and awareness-raising through, for example, safety and health awareness days, and press campaigns such as the Shattered Lives campaign concerning asbestos, have recently been cut back. Given that proactive inspections are to be curtailed, can the Minister say what the future is for these approaches? Is it right that there is still a moratorium on TB advertising, which has been in place since the purdah in the run-up to the general election? IOSH points out that the HSE Infoline is to be terminated later this year, which has provided a valuable source of information as well as a translation service. This has been particularly valuable to SMEs. What is to replace it?
The 21 March document makes it clear that HSE will continue to undertake inspections for enforcement purposes and to follow up on complaints, but seemingly only for those areas of high risk or those of concern. This suggests—perhaps the Minister will confirm it—that there will be no such inspections for those lower-risk areas. Is this right? Is there to be any change to the HSE’s enforcement policy? We obviously await the outcome of the consultation on RIDDOR concerning the manner of reporting, but, in this context, the demise of the Incident Contact Centre, which simplified the process of reporting and reduced admin burdens on business, would seem at least premature.
All this must be seen in the context of the CSR and the requirement for the HSE to achieve savings of 35 per cent over the period—about £80 million a year by 2014-15. Proposals for cost recovery associated with breaches of health and safety law will ameliorate the position to an extent, but it is clearly not possible for the HSE to maintain its current level of operations.
The Government have indicated that cuts can be achieved by administrative savings, but considerable savings have already been made, not least in accommodation costs with the consolidation of the head office in Bootle. What is the number of front-line inspectors projected to be over the CSR period and the capacity of the organisation to carry out even the projected new number of inspections? What are the plans for the construction sector in particular, and is it right that the 20 inspectors on fixed contracts are not to be replaced? The construction sector has come a long way but, as we know, is still high-risk. If not through proactive inspection, how are issues in agriculture, another dangerous industry, to be addressed?
Finally, we have the review of health and safety regulation to be led by Professor Ragnar Löfstedt. We could not object to this, albeit that the starting premise carries the implication of gold-plating despite evidence to the contrary. One hopes that the review will put that myth to bed once and for all, but it would be helpful if the Minister could say when final terms of reference will be available.
Our country has been well served by our health and safety system, by our national and local authority regulators and by that committed and knowledgeable range of stakeholders who are key to past success and future progress. There are those who will continue to misrepresent or misuse the system, sometimes deliberately, sometimes through ignorance. We all have to make the case for H&S, the Government above all.
Lord German
My Lords, I thank the noble Lord, Lord McKenzie, for this debate today, because it gives us an excellent opportunity to pick up on some of the issues which were extensively debated on 25 November last year, when we discussed the report of the noble Lord, Lord Young of Graffham. Since the Government said that they were going to implement the report’s recommendations, the debate gives us the opportunity also to test how far they have gone. I am pleased to see that there has been considerable progress. In particular, the framework document before us, Good Health and Safety, Good for Everyone, lays down a shape for health and safety for the future. However, like all frameworks, it is has skeletal aspects, which give us plenty of opportunity to probe the Minister for some of the detailed answers that we require.
I welcome the appointment of Professor Löfstedt to conduct the review of legislation in this area. He is eminently qualified and it is a welcome step. However, I am somewhat mystified to read that his terms of reference are to be determined by the professor himself. Some of us may think that if you hand someone a blank piece of paper they will write down what their predispositions are, whereas clearly it is the Government’s predispositions which are important. It is not clear from the document but I suspect that the Government have laid out a framework in which these terms of reference are to be placed. As a starting point, will the Minister provide Members of the Committee with a copy of the fully worked-up and detailed terms of reference as soon as possible, together with a timetable for his work, so that we can have an opportunity to look at those matters further?
An overarching principle is that health and safety is not only for companies, workers and the health and safety representative but for everyone. It is for all of us in a working environment and it is not to be seen only as the province of one responsible person. We have gained a great deal in this country from the work that has been done so far, but there is still more to be done. Certainly a great deal of streamlining is necessary, and some of the corners in the system which have been difficult for companies to turn can be made smooth and straightened out.
I suspect that this is about trying to draw the appropriate balance between not having too rigorous a regulatory regime with too great a burden on employers and making sure that we protect individuals at work. This could be seen as a continuum between the risk averse at one end and the risk takers at the other. I prefer to see this as a new way of looking at the “risk intelligent” approach, in which everyone in the workforce—the employers and the employees—need to be intelligent about risk. Intelligence, of course, is a key word for more knowledge, more skill and more training. A better understanding is at the root of this.
At the heart of this new framework, on pages 8 and 9, are the main changes that are to be made. There are two clear focuses: first, on those who flout the rules; and, secondly, on high-risk locations. I shall take them separately. On the first point, it is difficult to know who flouts the rules without inspections; then you can know who is not following the rules. Can the Minister tell the Committee how you know who is flouting the rules? If it is to be through an enhanced whistleblower approach, that is fine by me. However, it needs to be spelled out more clearly because there are difficulties in whistleblowing alone, as people will not want to upset their employer, particularly in a small company where they are fearful for their jobs. We need to be careful and define more clearly how we outline the companies who flout the rules. It is easy, of course, if they have done it once and you know who they are, to come back upon people and to redouble your efforts. Under the terminology in the DWP press release, once these “rogue” companies are discovered and investigated, they will have to pay for being helped to put things right—which is perfectly appropriate—but how do we find the “rogues”?
On the second issue, regarding high-risk locations, I was tempted, and I set my mind to trying, to find a route through to something that is to be described as non-high risk. I came up with an opencast facility in Merthyr Tydfil, where they are moving six mountains; they are digging a hole, taking out the old slag, washing it, putting back the unused minerals and taking the material away for use in coal-fired power stations. The difficulty there is that transport has also been excluded. I happen to have been on that site, where use is made of possibly some of the largest vehicles I have ever seen. If I stood next to the wheel, it would probably have been twice my height—never mind the size of the overall operation. Yet quarrying—which is essentially what that opencast facility is—and transport are excluded. I wonder when and where we will get more definition of how these categories are to be arrived at and what criteria lie behind their choice. It is perfectly acceptable to see them as they are in the framework, but the framework is skeletal and perhaps need to be sketched out somewhat more clearly.
As the noble Lord, Lord McKenzie, has already referred to, in health and safety we concentrate very much upon safety and do not always look at health. I wonder whether that is because words such as stress and mental health are difficult to make tangible in order to understand their impact. For example, could we look at some hazards each year to try to anticipate the sort of changes that one might put within the workplace for those intangible health elements? Of course, there are far more tangible health elements which we now know about but which an employer would not have known about. The example there is asbestos. No one knew about its impact. We had a debate in this Room about mesothelioma, discussing its impact and the swift killer that it becomes based upon asbestos in the workplace. We know of that but there may be other silent killers which we know little about. How is that work to continue and who is going to do it?
Perhaps I might pick up on one particular interest: the loss of the Adventure Activities Licensing Authority, which is being replaced by a code of practice. I well remember why that body was put in place. Noble Lords may remember that it was when there was a series of accidents with children canoeing in a bay in Dorset. A lot of children were drowned when those canoes capsized. It is important that we are absolutely certain that the code of practice will not only be simple guidance but have the enforceability of law behind it, and that there is some form of checking to make sure that the code is put in place because the safety of young people is crucial.
I would like to touch as well upon the accreditation of advisers and consultants, which is very welcome. I went looking to see which of the advisers and consultants who are now on the register live near me. I understand that if you pay the money, you get on the register and there will eventually be an accreditation body to take on that responsibility. However, I would like reassurance that that accreditation body will also be sufficiently independent to examine appropriately whether somebody is doing their job well and to ensure that people are taken off the register if they are not. After all, one element that we talked about in the previous debate was of having people who had lacked the skills and qualifications in that crucial area. We need to ensure the highest possible standards, which it seems to me can be achieved without a great deal of money having to go behind them. However, that will require independence of action by a professional body.
In conclusion, there are still many questions to be asked and actions to be developed. The Government’s current progress is on track and I hope that they will achieve that balance which I spoke of earlier. That will lead to a risk-intelligent society at work in the future.
Baroness Turner of Camden
My Lords, I am pleased that my noble friend has introduced a debate on this subject and I thank him for doing so. Some time ago, we had a debate on a report undertaken by the noble Lord, Lord Young. He is of course no longer the PM’s chief adviser but the Government are apparently still committed to introducing legislation arising from that report. Presumably, this paper from the DWP is part of that policy. I recall saying at the time that if legislation emerged designed to make it more difficult for employees to make claims because of illness or injuries at work, I would do everything I could to oppose it, and that is still my position.
There is apparently a notion that health and safety provision in the UK is the best in the world and that very few people are hurt at work. Unfortunately, that is not true. There are many hazardous occupations, some of which have been referred to by my noble friend Lord McKenzie in his introduction today. Up to 1,500 people are killed every year in work-related accidents and millions are made ill by work-related illnesses. Furthermore, arising from the report of the noble Lord, Lord Young—although this was not maintained in the report itself—the Government, including the Prime Minister, claim that in this country we are suffering from a compensation culture. They say that health and safety costs too much and that there is too much regulation which prevents a growth in jobs, particularly in the private sector. Much of that is not accurate. Less than 10 per cent of workers made ill or injured at work get any sort of compensation at all.
There is actually less regulation now than there was 40 years ago. There are also fewer spot inspections of workplaces, fewer prosecutions and in 98 per cent of major injuries there is no enforcement action taken later by the employers concerned. The Health and Safety Executive has done a very good job over the years on improving health and safety at work, but that is all changing as a result of government cuts. There is a 35 per cent cut in government funds to the HSE which is to take full effect by 2015. As a result, the HSE is now finalising plans to turn into a slim-line, pay-as-you-go enforcement agency that charges for everything, from enforcement notices to routine advice and accident investigations. There is now a voluntary exit scheme which has apparently been oversubscribed, with 250 applicants for redundancy among HSE staff. Enforcement is already in crisis. The number of inspections is to fall and proactive inspections may be abandoned altogether.
In the mean time, the Government are also planning to change the way in which European directives on health and safety eventually become part of UK law. Vince Cable, the Business Secretary, who chairs the Cabinet's Reducing Regulation Committee made it clear that the Government intend to end much regulation so that British business is not put at a disadvantage. It is clear that the Government intend to move to weaker laws and, of course, less protection for British workers. That is dangerous and quite unwarranted. If the Prime Minister is genuinely concerned about the big society and encouraging voluntary organisations, he should be aware that the families of workers who have been killed and injured in work-related incidents have formed themselves into an organisation called Families Against Corporate Killers and are campaigning for tougher laws against what they believe to be preventable illnesses and deaths and for the HSE to have more powers rather than fewer.
The TUC also supports the campaign for improved enforcement. In confidential interviews, many managers and staff have said that they fear reprisals if they raise safety concerns at work, despite the fact that the Labour Government introduced legislation designed to protect whistleblowers. Unions have exposed the scandal of the under-reporting of safety concerns. From the information provided to me, it seems that far from having a compensation culture, there is actually too little reporting of hazards in employment. The TUC is taking that very seriously. There is no doubt that workplaces are safer where unions are recognised and safety representatives are able to do their work. Moreover, union members are more likely to get help if they need to take a case to court because the unions will support cases in order to assist their members.
There is a Workers' Memorial Day, with a rally in Manchester, on 28 April, in memory of those who have died from work-related accidents and to press for a strengthening of enforcement and opposition to the Government’s cuts drive, which will put more employees at risk, and which will involve the NHS and taxpayers in the expense of dealing with the problems that workers encounter because they need attention, benefits and assistance from the NHS. Sometimes employers manage to escape altogether because they do not always carry insurance. I remember that this was another issue that we raised some time ago; the previous Government had undertaken to deal with it, but it does not seem to bother the existing Government very much.
In a number of ways, the Government seem intent on changing the balance between employers and employees to the disadvantage of employees. The Government may very well live to regret that. I have recently had some correspondence from a lady who is very active in the voluntary organisation to which I referred. She is the mother of a son who died in a rather appalling accident at work. She has drawn my attention to the fact that the Prime Minister said, prior to the election:
“So let me make it clear: yes, the Conservatives will reduce the burden and impact of health and safety legislation in our country”,
to which she responds:
“David Cameron’s government intends removing the ‘burden’ on employers of safeguarding their employees, but the real emotional and financial burden is borne by the families of up to 1,500 killed every year by preventable accidents at work”.
That is a very important statement from somebody who has really suffered as a result of inadequate protection in the past. We certainly do not want to make it any worse than it is at present.
Lord Berkeley
If I may contribute briefly before the Minister sums up, I would just like to make two points. I have been on a sort of inspection trip of the railways this morning with Theresa Villiers, the Minister for Transport, looking at some work that Network Rail has been doing. There were a lot of signallers around on the tracks—something had gone wrong—and it made me wonder yet again, if transport as an industry is going to be downgraded in risk, where the railways come in this. Railways are transport and so is road. The difference in the risk to a worker beside a track on the railways is not much different to the risks and exposure of people working on motorways, where the traffic is going extremely fast—probably at much the same speed—and with even less protection. The great thing about trains is that they tend to stay on tracks, whereas cars occasionally wander off the road. So it would be very interesting to hear what views the Minister has on that particular element of transport, because railways are transport and roads are transport and, as my noble friend said in his introduction, so are ports.
That takes me on to my second point. I declare an interest as a harbour commissioner at the port of Fowey in Cornwall. We recently had a visit from the Maritime and Coastguard Agency, which is spending a lot of time at the moment restructuring the coastguard service, as noble Lords have debated on previous occasions. The MCA came to inspect a passenger ferry, which is a little ferry that takes 12 people across the river. The ferry is already approved by the harbour authority and checked every year for safety, as are the skippers. The MCA informed people that the mooring hook that is used to connect to the steps at each end was unsafe. The same hook—a nice piece of mild steel—has been used for the past 60 years, during which there has been no record of any accidents. It is a hook that enables them to leave quickly if the swell gets too strong, but it is very safe and enables the ferry to operate very well. They have now been told to use a snap shackle instead. Some of us who help skippers on occasions know that the snap shackle can pinch your fingers—I know that other noble Lords have helped and also pinched their fingers on that particular shackle—so, if the Government are intent on saving money on some of these safety issues, surely they should concentrate on the important things rather than on coming to tell a ferry skipper which type of shackle he is supposed to use. Quite honestly, it is the skipper’s job to make sure that the ferry is safe, as approved by the harbour authority. I mentioned that to that chief executive of the Maritime and Coastguard Agency when he came to a meeting a couple of weeks ago; I have not had a reply yet.
I hope that the Minister will take that as a real example—and it is a real example, unlike some of these conker fights, which we hear about being unsafe, although I do not really accept that. Let us concentrate on the important things and try to avoid undue and unnecessary inspections of things that have worked perfectly well and will continue to work perfectly well for quite a long time.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, I am grateful, as always, to the noble Lord, Lord McKenzie, for the opportunity to update the House on how the Government’s proposed changes to the health and safety system will encourage safer and healthier workplaces.
I should begin by reiterating why change is needed. Good health and safety is, of course, vital, and the Government are committed to maintaining health and safety protections. That is the whole point—for health and safety to be effective, it must be a protection, not a burden. Health and safety legislation, overzealously applied, achieves nothing. That is exactly the point that the noble Lord, Lord Berkeley, made about snap shackles. Equally, compensation claims, pursued at random, simply breed cynicism. Our challenge is to lift these burdens and—to paraphrase my noble friend Lord Young of Graffham—to let common sense prevail.
Noble Lords will be aware that the Government are committed to implementing the recommendations in my noble friend’s report, Common Sense, Common Safety, and have recently reinforced this commitment. On 21 March, my right honourable friend the Minister for Employment, Chris Grayling, announced the next steps in the Government’s plans for health and safety reform in Britain. These include setting up an immediate review of health and safety regulation, with a wide-ranging remit including exploring the scope for consolidating, simplifying or abolishing regulations. The review, led by Professor Ragnar Löfstedt, director of the risk management centre at King’s College London, is set to make recommendations this autumn. I can assure my noble friend Lord German that the terms of reference will be published on the DWP’s website before the end of May. The overall remit for the review was set out in Good Health and Safety, Good for Everyone. In the mean time, I assure noble Lords that the Government are already making good progress in implementing the recommendations set out in the report of my noble friend Lord Young. Those who wish to can view a progress report on my department’s website, detailing progress against all the recommendations.
My noble friend Lord German expressed concern about whether the code of practice would be enforceable in respect of adventure activities. That code of practice will be consulted on shortly. In practice, current licensing does not cover many of the newer adventure activities—I do not think that it covers coasteering, for instance. Health and safety law will continue to apply and will be enforced appropriately.
I shall focus on two aspects of our strategy today: first, the action that we are taking to change the health and safety culture for the benefit of Britain’s workplaces; and, secondly, our focus on reforming so-called no-win no-fee agreements and other aspects of civil litigation funding and costs.
Culture change, whether in health or safety or anything else, does not happen overnight, but its results can be impressive. Perhaps noble Lords will allow me a personal reflection. I well remember meeting officials from Eurotunnel—for which I was working in a more financial capacity—some 20 years ago and comparing the numbers of fatalities that occurred during the construction phase of that amazing project. There were seven on the British side and two on the French side. The factors involved were many and various, but I was struck and a little shocked by how much the French construction industry had achieved for itself compared with its British counterpart and how much its strong safety culture owed to partnership working.
Happily, in the intervening years, much of the British construction industry has followed suit, and the benefits are plain to see. The industry now has a fatal injury rate of 2.2 workers per 100,000 per year, which is among the best in the world.
Against this background I am delighted to report that the efforts of the noble Lord, Lord Young, and of the Minister for Employment to deliver culture change are already bearing fruit. Following its recent launch by the Health and Safety Executive, already more than 2,000 health and safety consultants have been approved to join the online Occupational Safety and Health Consultants Register. It is not only the noble Lord, Lord McKenzie, who has welcomed the register. We confidently expect more consultants to join the scheme as its reputation grows.
I need hardly explain the importance of the new register. It should spell the end of rogue health and safety advisers. All those on the register will be properly accredited to a professional health and safety body, which is good news for health and safety and, indeed, good news for business.
The consultants register is designed to help employers who need general health and safety advice to find a well qualified and experienced consultant who is able to give that advice. Employers using a registered consultant can have confidence that the consultant belongs to a professional body, has had their experience and qualifications assessed and is undertaking continuing professional development; in short, someone who is committed to providing sensible and proportionate advice and is properly insured.
To pick up on my noble friend Lord German’s point, there will be an annual renewal process to make sure that all those on the register still meet the eligibility criteria. The relevant professional body will deal with complaints and, indeed, could take action to remove consultants from that register. The new register is just one of several online tools launched recently by the Health and Safety Executive, with a view to providing small and medium-sized enterprises, and others, with straightforward guidance on how to manage health and safety.
Health and Safety Made Simple, for example, is a concise and easy-to-navigate website, designed specifically for low-risk SMEs. Similarly, four interactive risk assessment tools have been developed—specifically for offices, shops, charity shops and classrooms—and the HSE has also just published simple web advice making clear that health and safety law is not a barrier to volunteering activities, and explaining clearly when the law applies in practice.
Taken together, these new measures will allow businesses to achieve a basic level of health and safety compliance, and that, again, is good news for everyone. A basic level of compliance means lower-risk businesses delivering on their key health and safety obligations—but not being smothered by red tape, nor health and safety inspections, in the process.
As for my noble friend’s point on asbestos, asbestos clearly must remain a priority. Work to educate and raise awareness of the risk is under way and included in the HSE’s forward business plan.
On inspections, perhaps one of the biggest changes is the focusing of inspection and enforcement on those areas where it is needed most. In the current financial climate, there is no point in claiming that the enforcing authorities can inspect all businesses to the same extent and with the same frequency. On the other hand, why should they? Why should a lower-risk business be inspected as much as a higher-risk one? Equally, why should a business that is in serious breach of its health and safety responsibilities not be charged by the enforcing authorities for putting things right?
Let me be clear: we have no intention of reducing inspections in high-hazard industries. In fact, by the end of SR10, the aim is to have more, not less, nuclear and hazardous industries inspectors. As for unnecessary inspections, an issue raised by the noble Lord, Lord Berkeley, the statement is designed to drive this change of behaviour.
On inspector numbers, as of April 2011, we have 2,500 front-line staff and we are expecting an increase over the next year, with the figures beyond that date dependent. As I said, there is no intention to reduce numbers substantially although, with the reduction in the number of inspections, by implication the concentration on the higher-risk industries will intensify. This is not a net loss but an additional concentration on the higher-risk industries.
The noble Lord, Lord McKenzie, asked about the evidence base for lower-risk classifications of industries. Essentially, it comes from the Office for National Statistics, and trends over that show where sectors are improving their health and safety performance. Higher-risk classifications relate to those industries where performance remains a concern. In agriculture, farm inspections have not proved effective in reducing injuries over the years. The current approach involves new training and education and has proved to be more effective.
As for my noble friend’s point about how to decide who to inspect without proactive inspections, clearly there is a whistleblower element and a follow-up of complaints. More importantly, however, there is also a follow-up of those incidents and an investigation where necessary. Other inspections will reflect evidence of risk and be regularly reviewed.
There was a question about why quarrying and transport have been excluded. It is mainly because of improvements in their performance over recent years.
Given the time constraints, I shall not speak about issues of civil justice. Those issues were not specifically raised so I shall perhaps leave them until another occasion.
Lord Berkeley
The noble Lord has just mentioned quarries and transport, but where do railways come into this? I asked whether railways are part of transport or something else.
Lord Freud
That is currently being looked at within the Office of Rail Regulation. It was separated—I forget exactly when, but, from memory, I think it was 2004—and is now being brought back together and integrated with the regulator.
Baroness Turner of Camden
The noble Lord has not mentioned trade unions once and yet this is a major part of all unions’ work. For many years it was one of my responsibilities within my union to run a scheme that provided assistance to people who had accidents at work. The TUC is very much involved with the prevention of accidents and so on and it is a major part of unions’ work. The Minister did not mention that. Although he referred to the register of people who are giving professional advice and so on, he did not mention unions at all.
Lord Freud
I apologise. That was an inadvertent miss-out. Clearly where there is a more responsive, not so proactive system, the unions would have a role in alerting the HSE where there were concerns. Clearly, the role of education and training in reducing health problems in many of these areas will be important.
One area in which I am most interested is what we will find from the sickness absence review. This has now been launched and will be looking at periods of sickness absence of 28 weeks. Stress-related and mental health-related issues account for around 40 per cent of such absence, and it will be very interesting to see whether we can use the new arrangements for managing sickness absence to ratchet up how employers look after their staff. I know that the sickness absence review team is actively looking at that. Therefore, there is a health and not just a safety angle here.
Lord McKenzie of Luton
I am sorry to intervene again and the Minister may wish to write to me, but perhaps I may clarify two points. First, can he confirm that the evidence base on which the categorisation has been determined takes account of evidence relating to propensity for ill health in sectors, as well as accidents and fatalities? Secondly, in relation to reactive, as well as proactive, inspections, the document, if I read it correctly, says that in both areas—that is, the high-risk areas and areas of concern, but not the low-risk areas—the HSE will continue to undertake inspection for enforcement purposes or to follow up complaints when such an intervention appears necessary. Can the Minister confirm that there is no intention of having reactive inspections for what are classed as lower-risk areas—for example, the transport sector, electrical engineering, and indeed education provision, as we know that asbestos in schools is a continuing problem?
Lord Freud
I am happy to confirm both those points. The first, concerning health, is clearly part of the statistical base that will alert the HSE. Secondly, where there is concern, the HSE will respond whether it is a lower risk or a higher risk, and that is exactly as I understood the section of the document to which the noble Lord referred. It says that in as many words.
Lord McKenzie of Luton
My Lords, perhaps we should pursue this matter outside the Committee, as I do not think that it does. The comment seems to relate to the first two areas—areas of concern and areas of high risk—but not those of low risk. However, perhaps we can deal with that in correspondence.
Lord Freud
I should be happy to write a full letter on that point. In conclusion, I am confident that our health and safety changes are a force for good, ensuring that civil justice and health and safety law are applied sensibly. The emphasis should be on addressing real risks and preventing death, injury and ill health to those at work and those affected by work-related activities. I have said before that we will not make the United Kingdom a safer place by wrapping everyone in cotton wool and avoiding all risk; we will do it by delivering a health and safety system that is fair, balanced and proportionate.
The Deputy Chairman of Committees (Baroness Fookes)
My Lords, the Committee stands adjourned until 4.30 pm.
UN: International Year of Youth
(13 years, 8 months ago)
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Baroness Morris of Bolton
To ask Her Majesty’s Government what steps they are taking in the United Nations International Year of Youth to support young people in the challenges they face, especially in developing countries.
Baroness Morris of Bolton
My Lords, my passion for the well-being and meaningful engagement of young people has deep roots. From my days as a director of Bolton Lads and Girls Club, through my various shadow ministerial roles in education, health, women, children, schools and families, and internationally as a trustee of two charities, I have taken a keen interest in how we develop the enormous potential of young people alongside an aspiration to see a much better life for so many of them. I declare my interests as a trustee of UNICEF UK and of the Disability Partnership.
The United Nations International Year of Youth has served as a timely reminder of the significant importance of young people in the world today. I do not intend speaking about the role of youth in the UK, as this is a vast and important subject on its own, and I know that it will be expertly covered by other noble Lords. Can I just say that I am most grateful to all noble Lords for taking part? It is indeed a glittering cast in today’s debate. I will focus on young people living in the developing world, where 87 per cent of the world's youth live.
The UN International Year of Youth was proclaimed by the United Nations General Assembly, and calls upon Governments, the United Nations and civil society to recognise the contributions that young people make to society and to address the challenges they face. The specific theme of the International Year of Youth is dialogue and mutual understanding, providing an important opportunity to increase commitment to youth, promote youth participation and enhance intercultural dialogue and understanding among young people. The International Year of Youth runs from August 2010, and the progress achieved during the year will lay the foundation for further work in youth development, including the implementation of the world programme of action for youth and contributions to meeting the millennium development goals.
The facts are stark, and for help with this debate I must express my gratitude for the invaluable briefing papers provided by Restless Development on behalf of the DfID civil society organisations youth working group, a network of over 30 civil society organisations and young people that are working to demonstrate the essential role of youth in international development and, at the same time, helping DfID work more effectively with, and for, young people. I am, as always, hugely indebted to and enormously proud of UNICEF.
The demographic reality is this: 87 per cent of young people live in developing countries, 60 per cent of Africa's population are youth, and, altogether, 1.3 billion young people make up the largest ever youth group in history. These numbers themselves need updating following the Indian census announced last week, which indicated another 100 million to be added to that country's population, all of whom are or will become young people.
Whilst young people make up 25 per cent of the working population, they account for 47 per cent of the unemployed and are three times more likely to be unemployed than other adults. One-third of the world's poor—the majority being children and young people—live in conflict-affected and fragile states. There is statistical evidence of a connection between high relative youth populations and risk of conflict when young people are not engaged in a meaningful way in their lives and communities. The youth literacy rate for conflict-affected countries is 79 per cent, compared with 93 per cent for other developing countries. UNESCO estimates that 98 per cent of children with disabilities in developing countries do not attend school, and 99 per cent of girls with disabilities are illiterate. Many development issues disproportionately affect young people; seven out of 10 young people live in poverty, with adolescent girls representing a large percentage of maternal mortality risk. Four in every 10 of new HIV infections occur among those aged 15 to 24. The list goes on.
If this were not enough, there is what I can only describe as a tsunami—an emotive word, which I use with care—on the horizon. Today the world’s population is 6.9 billion; over the next generation it will rise to over 9 billion. The vast majority of these additional people will be born in the developing world, challenging already desperately challenged communities. Where will the extra schools, jobs, healthcare and support for these young people come from? What vision do we have for this coming generation? What hope?
For me, the message is clear: young people represent a largely untapped asset in development. If we do not engage them meaningfully in development, we will fail not only to realise our international goals and commitments but, more importantly, we will fail them. The UN initiative helps us to focus on this important issue.
What can be done and what can the role of our Government be? Here I pay tribute to the leadership of my right honourable friends the Prime Minister, the Chancellor of the Exchequer and the Secretary of State for International Development. It has required foresight and considerable courage, particularly in difficult economic times, to resist the pressure to go back on our international commitment to increase our aid spending to meet the target of 0.7 per cent of gross national income by 2013.
I also pay tribute to the previous Government. DfID has rightly achieved a leadership role within the international development community and in the field of youth. It has also shown some excellent initiatives, of which I shall name but a few: the prioritisation of girls and women in DfID’s business planning, most notably around maternal health; the current DfID programme partnership arrangement, which now includes a consortium focused on working with and for youth; and the recent launch of the international citizen service initiative, providing opportunities for British young people to work alongside peers in developing countries to address important local issues while also learning new skills. These are positive steps, but we can do more.
In countries where DfID has a full-time office, the average percentage of the population under the age of 25 is over 55 per cent. This means that if we are to be successful in our development efforts we must focus our attention more on the needs of this demographic group. One practical and relatively low-cost step that DfID could take to ensure that programmes are age sensitive and responsive to the needs of young people would be to disaggregate performance and impact data by age. Applying a youth lens would enable DfID to measure the impact of its work on young people so that resources can be better focused and interventions are evidence based. This would enable us to see whether our efforts are meeting the needs of young people appropriately.
As the International Year of Youth reminds us, it is crucial not only to address the challenges that the youth of the world face but to recognise the contributions they can make to society. This more asset-based approach, recognising that young people are often the most readily available asset in the poorest countries in the world, leads us to two additional simple steps that we can take. The first step is to promote youth-focused and youth-led development among international and multilateral agencies and international fora. I know that President Obama has stated very eloquently his desire to support young people and perhaps this is something that Her Majesty’s Government could specifically support when the president visits the UK in May, or at the G8 which follows in Paris in the same month. The second step is to create a network of youth champions within DfID. Through regular and meaningful engagement with young people and youth-focused agencies, DfID’s staff could better understand youth concerns and the potential for youth-led development interventions and be able to champion them to senior policy makers at world development agencies. We have pursued this with great success at UNICEF UK.
I am delighted that this debate is being supported by noble Lords across the political spectrum because this fundamental issue affects us all. I heard from the Library that this is the first ever debate we have had on youth and international development. We only have to cast our eyes towards the recent events in north Africa, the Middle East, the Gulf and Côte d'Ivoire to recognise the potency of young people when faced with the alternatives of hopelessness or change. The speed of developments has been breathtaking and the risks of ignoring them are self-evident.
The positive benefits of grasping the opportunity and capturing the energy and idealism of young people are clear for all to see. When President Obama addressed young Africans last autumn, he said:
“Africa's future belongs to its young people … once again, Africa finds itself at a moment of extraordinary promise … it will be up to you, young people full of talent and imagination, to build the Africa for the next 50 years”.
In today’s debate, we extend to young people the world over that positive message of hope and opportunity.
Lord Puttnam
My Lords, first, I thank the noble Baroness, Lady Morris, for making it possible for us to have this debate. What she just said about this being the first debate of its type that the Library can find says everything, yet, to look at it the other way, the notion that we should address this problem and solve it is also utterly self-evident. I declare an interest as the former president of UNICEF UK and as chancellor of the Open University, which I will come on to in a moment. The noble Baroness, Lady Morris, did not mention that she is an utterly invaluable trustee of UNICEF. As someone who I would like to think helped to persuade her to take up the role, I say that it was one of the best day’s work I ever did.
I will not add to any of the horrifying statistics, which are all utterly self-evident. When I was young, there was a charismatic civil rights leader called Eldridge Cleaver who famously said that you are either part of the solution or simply part of the problem. My judgment, certainly from my work at UNICEF, is that young people around the world want to be part of the solution. The truth is that we cannot afford the luxury of not allowing them to be.
If I had a wish list, it would be to take Members of the Committee on just two visits. One would be to get all of your Lordships to a graduation ceremony at the Open University, because there you would see what hope is. These are not graduation ceremonies in the normal sense but triumphs of individual ambition and commitment. I have always believed that, if I could get sufficient parliamentarians to graduation ceremonies, all of my other problems at the OU would be solved immediately. The other, a lot less celebratory, would be to take parliamentarians on a number of the trips that I made to a dozen countries during my year and a half with UNICEF—it was almost two years—looking into the effects and issues surrounding sex trafficking, which is at the other end of the emotional universe.
A million young people a year get sold into either abusive under age labour situations or sex trafficking. It is a global scandal. The UN has taken it seriously and the police in this country have certainly begun to take it seriously, yet it goes on and on. The figures and the apparent appetite do not diminish. It is the only time in my life when I was truly ashamed to be a man. These problems have to be addressed by men and solved by men once and for all. I find it very difficult to deal with the idea that we should live with these problems.
Every now and then, I am helped by dipping my toes back into the world of cinema. Last November, I chaired the jury at the annual Asia Pacific film awards in Australia where, in a period of just nine days, I watched 31 of the most remarkable movies to have emerged from that large and increasingly significant region in just the past year. Rightly or wrongly, I would argue that film makers are particularly good at sniffing out the social and cultural zeitgeist, resulting in what we then refer to as trends. One overwhelming trend that emerged from watching those movies, from 15 different countries, was what I can only describe as intergenerational alienation. The young no longer trust us to do right by them. As a result, they have a serious problem believing many things that we say. Whether we say them in Parliament, in the media or wherever, they are simply ceasing to believe us because, as they increasingly see it, we have stolen their pensions, their food and water security, their future job prospects and their environment.
Precisely the same intergenerational alienation is largely driving the uprisings we have been watching in the Arab world in recent months. That is little wonder, when you look at the mind-numbing numbers of unemployed young people in that region. It is a form of alienation that is given a voice by technology but whose roots run far deeper. When you add to that Wikileaks, it seems to prove that this new and increasingly sceptical generation is right in the suspicion that the dominant players in the political and commercial world have forgotten how to play with a straight bat.
There are those who claim that the intergenerational world has always been typified by suspicion and mutual misunderstanding, to which my response is that never before in history have we been living in each other’s pockets to the same degree—both metaphorically and in reality—aware that a crisis in one part of the world has the capacity to utterly overwhelm those living elsewhere. We are asking young people around the world to switch on their television sets, no matter where they are, to see how the first world lives. They watch programmes about the lives of the rich and famous, so it is little wonder that they look at us and wonder whether we are mad or have lost all sense of imagination about what injustice might mean. The realities and challenges facing today's young people are not those of the 19th or even the late 20th century; the truth is that we may not yet have woken up to the fact but literally millions of young people have, and they do not much like what they see. I find it impossible to blame them.
Baroness Northover
Perhaps I may remind noble Lords—I am very sorry to have to do this in such a key debate with so many speakers—that the debate is strictly time-limited and when the clock reaches four minutes, you have had your four minutes. We want the Minister to have an opportunity to reply to everyone.
Baroness Miller of Chilthorne Domer
My Lords, I am extremely grateful to my noble friend Lady Morris of Bolton for giving us this opportunity to debate this subject. I declare an interest as a co-chair of the All-Party Parliamentary Group on Street Children and as a trustee of one large organisation UNICEF, in common with my noble friend, and of one small charity CMAP.
In the International Year of Youth, I want to highlight a particular category of youth, which is street children. They are very hard to define because they may live on the street, or they may have a home and only go to the street sporadically, or they may live at home and work on the street. The best definition is that they are children for whom the street is the main focus and main point of reference in their lives. By itself, that brings many challenges, dangers and issues. In every country we need to face that, recognise it and resolve it. Societies in any of these countries cannot solve the issues for children but they need to solve the issues with children. What makes street children quite different is that in most countries—including, I am afraid, our own—we often try to solve issues for the children without properly allowing them to participate in the solutions.
What drives these children and young people on to the streets does not vary much from country to country. Whether the country is the UK, India, Brazil, Mexico, Russia or Indonesia, some common threads run through the causes, including violence at home and the presence of alcoholic or drug-using parents, which may lead to violence. However, some things are different. In her introduction the noble Baroness mentioned war, which is a major cause, as are land seizures for one reason or another, or migration from rural to urban areas, which is an increasing phenomenon. In itself poverty does not seem to be an automatic trigger.
For the first time ever, in this International Year of Youth one day—12 April—has been devoted to street children. In the UK, that day will be led by the Consortium for Street Children, which has 60 members, including large NGOs like Save the Children, Plan UK and War Child, and many smaller ones like Toy Box, ICT or International Planned Parenthood Federation. They work away in some 130 countries. For the first time, in many of those countries this international day for street children will mark the lives of street children and will celebrate the fact that they exist and need rights. There will be street parties in Honduras, sleep-outs in Ireland and children in Morocco, Uganda, Guatemala and many other countries will highlight the day.
What in particular needs to be highlighted? The fact is that public servants and authority still really do not recognise that street children have rights like other children whose parents stand up for them. There has been some really good practice. In El Salvador, the social inclusion unit is training public servants in street child rights. In Ethiopia, there has been police training on how to deal with street children in a way that suitably recognises their rights. At the recent UN General Assembly on 24 March in Geneva, there was a very welcome resolution by the UNHCR to expand and affirm this area. So there is much good work going on. I would be grateful if the Minister would tell us which DfID policies are specifically geared to enable street children to realise their rights.
Baroness Prashar
My Lords, I, too, would like to begin by thanking the noble Baroness, Lady Morris of Bolton, for securing this debate and introducing it with such conviction and clarity. I agree with what she has said.
The International Year of Youth is an opportunity to place young people at the heart of our international policy and to promote international development that is responsive to the needs of young people and involves them in planning processes in a very meaningful way. It is equally important that this is done by working with and influencing international agencies and those working in the international arena. One such forum is the Commonwealth—and I should perhaps state at this stage that I am a president of the Royal Commonwealth Society. The Commonwealth is a much undervalued voluntary association of 54 countries that work together towards the goals in democracy and development. It also has a vibrant not-for-profit sector. The Government would do well if they were to work with and through the Commonwealth.
Young people have long been at the heart of the Commonwealth. There are over 1 billion young people in the Commonwealth, and those under 30 years old make up to 60 per cent of the population. As such a significant group, young people are crucial to the strategies to achieve sustainable development. At a time of dramatic technological changes and some of the grave problems facing us, we should work to mainstream their involvement.
There are a number of initiatives within the Commonwealth which are worth drawing to the attention of the House and the Government. These projects, I believe, can be replicated and lessons learnt from them can be incorporated into future strategies and policies. The first example is about engagement of young people in democratic processes. Through a network of regional youth caucuses, young people contribute to high-level Commonwealth ministerial meetings and to the Commonwealth Heads of Government Meeting, and have their say on the big issues such as education, environment, equality and empowerment. Young people also contribute to election observance missions, when international teams of experts help to ensure that voting is conducted in a free and fair manner.
The theme of dialogue and mutual understanding is a natural fit for a diverse association like the Commonwealth. The Commonwealth Youth Exchange Council has run inspirational two-way intercultural exchanges that have exposed young people to new ideas and helped to build life-long friendships. The value of such exchanges was summed up by one participant as follows:
“Peace and understanding cannot be obtained from a book. You have to venture out and touch other nations”.
This sentiment permeates another Commonwealth initiative called Nkabom, the Royal Commonwealth Society's youth leadership programme, which unites 18 to 25 year-olds from all over the globe to learn first-hand about conflict resolution through exposure to practical projects, meetings with leaders and hands-on learning. Even for the youngest Commonwealth citizens, there are opportunities to reflect on the world and their central role in it. The RCS reaches 50,000 school students annually with its essay, film and photography competitions. These competitions provide a real insight into their world view and their ideas for the future.
These few examples show that, given an opportunity, these young people can make an enormous contribution. They can become active and engaged citizens. Young people are our future. Investment in their education and training and in their engagement in finding solutions is essential and prudent. The consequences of a lack of investment were well put by the World Bank report, which said:
“Given the cumulative nature of human developments, underinvestments in children and youth are difficult to reverse later in life, and the price for society is high”.
I very much hope that this year will act as a catalyst in encouraging Her Majesty’s Government to make a step change which can be sustained beyond one year. The issue of youth is too important to restrict to one year. I very much look forward to hearing what steps are being taken with regard to mainstream policies affecting young people and working with international agencies—in particular, the Commonwealth.
Baroness Armstrong of Hill Top
My Lords, I, too, congratulate the noble Baroness, Lady Morris of Bolton, on securing this debate. It is not often that we get the chance to debate issues of this nature. First, I should declare the interest of the many organisations for which I act as a trustee. The three that are relevant to this debate are the Tony Blair Africa Governance Initiative, the Westminster Foundation for Democracy and Voluntary Service Overseas. I am on the international board of VSO, which is an enormous privilege.
Inevitably, the priorities in much of the developing world are different from ours. Among many policy-makers in this country, the ageing society is talked about as one of the greatest challenges that we face, with questions of how to adapt our public services and so on to meet the needs of that ageing society. However, in the developing world, the absolute opposite is true. I have had the opportunity to go to several countries in Africa. The challenge faced in Sierra Leone is the number of young people involved in the war who have lost their parents and become incredibly emotionally damaged. The question is how to deal with the sheer number of such children and how to find meaningful work and activities for them. I visited Tanzania to work with an education organisation which is working to improve quality in primary education. It has done remarkably well in increasing the number of children going to primary school, and we congratulate it on achieving much of the millennium development goal on education. However, many girls are being taken out of school to do domestic work and so on.
I could go on but I want to talk specifically about the role of the International Citizen Service—the new programme being introduced by the Government that will begin later this year. Potentially, it can play a very important role in development and particularly in providing opportunities for young people, not only in this country but in developing countries, and I hope that the Government proceed with ICS in this manner. This new initiative will be run in this country by six specialist development organisations led by VSO. All six agencies are currently working in development, using volunteers as their main instruments. It is very important that these agencies’ primary concern is development through volunteering, rather than simply giving people from this country a good experience.
More than most in this Committee, I can give testament to the value of volunteering for individuals in this country. It changed my life; the most important two years in my life were the two that I spent in Kenya. However, that is not enough; we have to approach this with the vision of development. VSO will do it through youth exchange, involving young people from the developing world as much as young people from this country. I urge the Government to keep faith with development and not to be tempted to turn this into what some might call gap-year tourism. It is not that. It needs to be a significant experience in development for children and young people in the developing world. I hope that the Government will learn from VSO about how to do this.
Lord Ahmad of Wimbledon
My Lords, it is a privilege to speak in this debate, not least because it has been initiated by my noble and long-time friend Lady Morris of Bolton. We heard previously in Committee about her drive to initiate such a debate. It comes as no surprise to me, knowing her as I do, that she should seek to do so.
As all noble Lords were young once, we can perceive what young people desire. Perhaps I may take a few moments for personal reflection. For a long period before entering your Lordships’ House I was involved with a youth association. Indeed, I had the privilege of leading that association for 15 or 16 years in various capacities from sports secretary to culture secretary, to vice-president and charity secretary. That taught me a great deal. This is—following on from the point made by the noble Baroness, Lady Armstrong—about going from cradle to grave. It is not just about doing something for one bit of your life, learning about things which impact on children and young people; it is, as I learnt, something that one can engage in throughout one's life. It is about harnessing what is important in society and what role you can play.
I remember learning various skills in those early years, such as organisational skills, motivational skills, leadership skills and financial skills. That allowed me to pick up skills which complemented what I learnt in school. These domestic-focused activities—sometimes organising charity walks, or organising feeding for the homeless—instilled in me what we often talk about across your Lordships’ House and the other place: the values that we all wish to instil in our young people. The answer is in these community projects, in youth work.
I remember being engaged in an international sphere during the tragic war in the Balkans. I travelled out there and—despite the devastation, the genocide and the horrors—I was inspired and moulded by the experience. I found inspiration in the young people of all communities from within the Balkans who said, “Yes, we have nothing, but we have our lives and we can start again tomorrow”. My experience of working at home and abroad with charitable organisations such as Save the Children and Humanity First has instilled in me the importance of focusing on youth projects as we build stronger and more cohesive communities. It is important, as I have seen in places as diverse as Ghana and Sierra Leone, to empower young people. What they can do with computer skills is one example. Bringing young people together in the pursuit of common goals instils in them the need to work together and shows them the importance of learning from each other to develop themselves. I therefore welcome the Government’s drive to encourage youth development, including through the national citizen service, which broadens the minds of young people by giving them wider experiences.
In closing I would ask the Minister to tell the Committee the specific policies and funding that are in place or planned for the future to facilitate young people, through schools and voluntary organisations, so that they can learn from and contribute to the Government's big society initiative within the UK and in the developing world.
Baroness Warwick of Undercliffe
My Lords, I, too, congratulate the noble Baroness, Lady Morris of Bolton, on providing this opportunity to focus on young people, particularly in developing countries. It is a timely topic. Today’s generation of young people is the largest in history. Like the noble Baroness, I was stunned by the latest figures. Over 3 billion people, nearly half of the world's population, are under the age of 25, and 90 per cent of them are in developing countries. As many noble Lords have mentioned, girls and boys represent a large proportion of the population in countries that are fragile or affected by conflict. These countries are also likely to be most vulnerable in the face of environmental stress.
In 2000, world leaders established the millennium development goals to achieve, over 15 years, a set of global targets that seek to reduce poverty and promote development. The UK’s Department for International Development has made the achievement of these goals a central strategic objective. Last year, the House of Commons International Development Committee reviewed DfID’s achievements and found that there had been notable progress towards reaching several goals, including those focusing on child mortality and primary education. However, other goals are seriously off-track, including improved gender equality.
I am proud of the previous Government’s commitment and achievement in these areas, and it is clear that the coalition Government have the same commitment—for example, by showing leadership in focusing on women and children's health, as they did at the UN summit last September. However, huge challenges remain. It has been pointed out that many of the millennium targets are based on pretty low thresholds. Even if all the goals are achieved by 2015, many millions of people will remain in dire poverty and lack access to basic needs such as sanitation or basic educational opportunities.
I want to echo the words of Graça Machel, speaking at a UNESCO world conference two years ago, when she asked:
“How can it be that in 2009 we still have tens of millions of primary school-age children across the world who are not in school? … After all these years, why do we continue to have such marked gender inequality in educational access and outcomes for girls?”.
In my brief remarks, I want to emphasise the importance and value for money of DfID focusing its resources on basic education and, in particular, on educating girls. I follow my noble friend Lady Armstrong of Hill Top in mentioning Voluntary Service Overseas in this context. I hope that the Minister will share my pleasure, as life vice-president of VSO, that DfID continues its staunch support of VSO's excellent multilayered approach in education.
Of course it is not just a question of pumping in aid money. A blog on DfID's website stressed that it means tackling inequality, corruption and weak institutions, quoting an example in Nigeria—which I have seen at first hand—where there is a huge, underutilised government universal basic education fund and, at the same time, the largest number of out-of-school children in the world.
Nevertheless, all the evidence shows that basic education is one of the most cost-effective development interventions; and this is not just for the child. It aids economic growth, helps prevent HIV, improves health and prevents conflict. UNESCO’s data show that girls' education lowers infant and child mortality rates, reduces fertility rates and promotes per capita income growth. Each additional year of education completed by a mother translates into her children remaining longer at school
So, education works. Yet Oxfam has estimated that there is a $20 billion shortfall in the $50 billion promised at Gleneagles in 2005. As Oxfam says, this
“is more than enough to get a seat in the classroom for each of the 72 million children who are currently out of school worldwide”.
UNESCO has estimated that the global Education for All programme has a financing gap of $16 billion a year. So perhaps I can end by asking the Minister what the UK Government will do to help bridge this gap.
Baroness Jenkin of Kennington
My Lords, I declare an interest as a long-term supporter and now patron of Restless Development, the international youth-led development agency. I am also an advisory board member of the Global Poverty Project, the aim of which, through education and training, is to increase the number and effectiveness of people taking action so that we will see a world without extreme poverty within a generation.
I have two or three simple messages. First, I have an abhorrence of waste. Whether it is wasting money, food, electricity, water or even wasting time, I cannot abide it in my own life or in society generally. The statistics set out so clearly by my noble friend Lady Morris of Bolton incensed me. We talk glibly about a waste of natural resources in our world, yet the waste of so many hundreds of millions of young lives—a so-called lost generation whose potential is unfilled through no fault of their own—is rarely mentioned. Young people are human beings; they are also assets and potentially the most valuable resource in our world today. They have ideas, they have energy and they deserve a future.
By investing in these young people we have the opportunity to break entrenched cycles of poverty and inequity. There is an undeniable economic case for investing in children and youth today. As UNICEF’s 2011 The State of the World’s Children report states:
“The economic and social progress of nations depends upon harnessing the potential, energy and skills of these young people”.
A recent World Bank report says, specific to Uganda,
“if girls with only a primary education finished secondary school, over their working lives they would contribute economic benefits to their country equivalent to one-third of current year GDP”.
As the noble Baroness, Lady Warwick of Undercliffe, said, educated girls are less likely to marry early and less likely to become pregnant as teenagers. They are also more likely to understand the benefits of nutrition and to have healthy children when they become mothers. They are also more likely then to send those children to school.
What can be done and what can we do? I would like to talk briefly about my experience with Restless Development, having seen at first hand its commitment to working with and through young people in Zambia. Its approach is to train young national volunteers to teach in their schools and communities. Increasingly, it is also working to get Governments and international agencies to recognise that to achieve sustainable success in poverty reduction it is essential to meaningfully engage young people in the process. As I visited several schools in outlying communities in the back of beyond, I was struck by the potency of training young Zambians to provide peer education on livelihoods, leadership and sexual and reproductive health. Messages which older teachers and parents would struggle to get across were readily accepted. I was inspired, too, by the other consequence of training peer educators—that they themselves became young leaders who in due course would go into communities as role models.
I mentioned earlier my abhorrence of waste and my commitment to highlighting the needs of poor young people. As part of this—I hope noble Lords will forgive this advertorial—I will be participating in the Live Below the Line campaign championed by Christian Aid, Restless Development, the Salvation Army and other charities. This will involve me and—I am delighted to note—the noble Baroness, Lady Morris of Bolton, and a number of other colleagues from the House, including the Lord Speaker, living for five days on £1 a day for food and drink. Again, like the International Year of Youth, the aim is to put a spotlight on the lives of 1.4 billion people, half of them young people, who live off this meagre amount every day of their lives.
We all have a responsibility to raise public awareness on this issue and to help those who are working to bring about change. One thing that struck me from my time in Zambia was that whatever poverty young Zambians endured, there is no poverty of ambition. A lesson, perhaps, for some in this country.
Baroness Kinnock of Holyhead
My Lords, I, too, pay tribute to and thank the noble Baroness, Lady Morris of Bolton, for initiating this debate and for calling, as other noble Lords have done, for greater emphasis and a stronger focus on measures intended substantially to increase the participation and the quality of life of young people. The actions and the desired outcomes we have discussed here today, as noble Lords have shown, make absolute and infinite sense.
Young people have potentially a huge contribution to make because of their experience and understanding, which they can add to global efforts to meet the millennium development goals and to fight against inequality and discrimination. There has, quite rightly, been substantial investment in young children, especially those under five. However, that does not mean that there is any justification for giving insufficient attention to the crucial second decade of life, which of course is the focus of the UN International Year of Youth.
Youths continue to be subsumed under the category of children but are too often overlooked in the programming and resources available; it is far more likely that that programming and those resources will be directed to younger children. It means that young people’s contributions are overlooked and neglected. As many noble Lords will know, many of these young people are heads of households, often caring for young siblings, fetching water and preparing food, yet they have absolutely no authority within their community and are excluded from all the decision-making. We now risk jeopardising the gains in early and middle childhood that have been made since 1990 and seeing a deterioration in those advances.
I am reminded of the story of a young woman speaking at a recent UN meeting. She asked the delegates, “How old will you be in 2050?”. The chair of the committee admitted that he would be 110 and therefore unlikely to see the results of our failure to act. The fact is that the kind of world in which that young woman lives will depend both on those who inherit it and on those who bequeath it to them. Noble Lords have talked about young people being our future. I would say that young people are our present too, and it is very important that we remember that.
It has certainly been my experience that all too often young people are not consulted, are not taken seriously and are not given a voice, when the parameters of rights and responsibilities are clearly agreed under the UN Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. Tackling the challenges faced by young women is imperative at this time, as many noble Lords have said.
The Deputy Chairman of Committees (Lord Geddes)
With many apologies to the noble Baroness, a Division has now been called in the Chamber. The Grand Committee stands adjourned until 5.26 pm.
Baroness Kinnock of Holyhead
My Lords, I carry on where I left off. Two-thirds of the 137 million illiterate young people in the world are young women. The noble Baroness mentioned some of the statistics. If you break them down, you see that more than half of HIV-infected young people are young women. That is why tackling the challenges faced by young women is an absolute imperative. Educating girls brings benefits such as delayed marriage, reduced rates of HIV, reduction in unwanted, unplanned pregnancies and maternal mortality, higher family incomes and lower rates of domestic violence. There is a long list of proven benefits. It is clear that talk of social transformation is meaningless unless the culture of discrimination and inequity which so many young women face is challenged. Young women need equal access to secondary education, to health, to employment, to juvenile justice and to identity. Adolescent girls need access to sexual and reproductive health rights. This should be urgently addressed. Complications relating to pregnancy and child birth are a leading cause of death worldwide among adolescent girls between the ages of 15 and 19.
Much of what needs to be done will be achieved only, as the noble Baroness said, if data are disaggregated. They should be disaggregated by age and gender; otherwise, one cannot make the relevant deductions. There has to be engagement across the board, from communities, Governments, the private sector, civil society, religious leaders, NGOs and donors. Everybody has to come behind the messages of this UN International Year of Youth. Many institutional and cultural barriers stand in the way of progress for young people at this time, but this year, which celebrates young people, should be used as a springboard for their future progress and opportunity.
Baroness Verma
My Lords, before thanking my noble friend, I thank all noble Lords for an excellent debate, particularly in view of the time. If I do not succeed in covering all points raised by noble Lords, I undertake to write to them. I warmly welcome the support offered for the Government’s desire to ensure that girls and women remain at the heart of our policies.
I thank my noble friend Lady Morris of Bolton for tabling this debate in the International Year of Youth, launched in August last year. I thank her for her work in supporting children and young people, including in her role as trustee of UNICEF. The work of UNICEF in more than 190 countries around the world is exemplary. That is why the Government have announced a doubling of their funding support for the agency.
The proportion of young people in the world today is higher than it has ever been. More than 3 billion people are under the age of 25, accounting for nearly half of the world's population. They have great opportunities, such as the ability to access information about world events at their fingertips, but they are also faced with new challenges, including those caused by climate change and the global financial crisis. We have witnessed many young people in the Middle East and north Africa calling for freedom, democracy and respect for human rights. These young people will be the leaders and decision-makers of tomorrow. They must have a role in rebuilding these countries and ensuring that the new constitutions uphold and promote human rights.
Experience tells us that we have to tackle the root causes of the development challenges today or we will spend much more time in future trying to deal with the symptoms. Almost 90 per cent of all young people live in developing countries. It is clear that we must harness the full potential of young people in order to guide developing countries towards a prosperous and stable future. The Government are fully committed to achieving better outcomes for young people in the poorest countries. There is a lot of good work under way. For example, in Sierra Leone, UK support has enabled 11,300 people aged between 18 and 28 to be trained as volunteer peer educators to work in schools and local communities to change health behaviours and reduce vulnerability to HIV. In Palestine, the UK is providing support through the Civil Society Challenge Fund to reduce poverty and social exclusion among physically disabled young people in the West Bank.
Young people are not merely passive recipients of aid but can be a powerful engine for achieving long-term development. DfID is supporting a number of international and local organisations to enhance youth participation and voice in development. In Brazil, for example, UK support has facilitated 5,300 teenagers and young people to be involved in monitoring public policy and programmes focusing on education. We supported the CSO youth working group to produce its guidance entitled Youth Participation in Development: A Guide for Development Agencies and Policy Makers. We will continue to draw on its strength to work with youth participation in the countries where we work—for example, as we develop new participatory approaches with young people through our partnership with the Nike Foundation.
In September last year, to mark the International Year of Youth and in the lead-up to the United Nations millennium development goals summit, the Deputy Prime Minister and the Secretary of State for International Development met with over 30 youth delegates from the UK to hear their views about global poverty and their priorities for tackling it.
The Government believe that it is through investing in young people, and in particular in girls and young women, that we will achieve transformative benefits for future generations. Last month, DfID launched a new strategic vision for girls and women, which sets out that the UK will prioritise support to adolescent girls in four areas: to delay first pregnancy and support safe child birth; to support girls and young women through primary and secondary education; to provide girls and women directly with assets and with jobs and access to financial services; and to prevent violence against girls and women.
Educating girls is one of the best investments to reduce poverty, but in sub-Saharan Africa there are only 79 girls for every 100 boys in secondary education. This is less equal than in 1999. We will concentrate on retaining girls in school and enabling girls to progress through to secondary school, where the largest benefits accrue. By 2014 we will be supporting over 9 million children in primary education, of which at least half will be girls, and 700,000 girls in secondary education. Examples of UK support include Tanzania, where we will support 14,000 more female teachers to provide positive role models for girls. In Pakistan, 57,500 lavatory blocks will be built for girls to give them privacy, security and dignity. But we know that education is not enough on its own. That is why, by 2015, we will be helping 2.3 million women to access jobs and 18 million women to access financial services. To support adolescent girls in particular, we are developing pilots through a new programme partnership with the Nike Foundation to increase our access to assets. This will include cash transfers, girl clubs, financial literacy and saving accounts designed for girls.
On the UK’s domestic work to support young people in the International Year of Youth, the Government want all of our young people to aspire and achieve and to be active citizens in their communities and wider society. We want a stronger focus on closing the gap in achievement between the richest and the poorest by supporting the most vulnerable young people. We have ensured that the funding is there to guarantee that more young people stay on in school, restating our commitment to raising the participation age to 18 by 2015. We are committed to the pupil premium and early intervention grant, which will provide targeted support and services for the young people who need it the most; and we have commissioned the Wolf review to make recommendations on vocational education for 14 to 19 year-olds.
The Government are in the process of working with young people and youth organisations to create a new statement of policy for young people that is sustainable for the long term. This will be achievable and has the positive endorsement and buy-in of young people themselves. A youth summit event, “Positive for Youth”, was held on 9 March. The participation of almost 300 people from across all sectors, including more than 50 young people, enabled an open, engaging and productive debate about the key issues that matter most to young people. “Positive for Youth” marked the beginning of a genuine opportunity to do something that is new, different and positive for young people. Tim Loughton, the Parliamentary Under-Secretary of State for Children and Families, has also convened a representative group of young people to advise him directly on the development of the Government’s new policy, and to provide an ongoing forum for youth proofing policies across government.
The Government’s flagship national citizen service programme will be central to increasing the engagement and active participation of young people in their communities. It will offer young people a shared opportunity for personal development and community services through an intensive summer programme. It will also be a catalyst for the greater involvement of community and civil society organisations in providing universal activities, as well as stimulating greater engagement from private organisations.
We are also offering young adults the chance to volunteer on social action projects in developing countries. This new scheme, the international citizen service, will offer a life-changing experience for young people from the UK to improve the lives of some of the world’s poorest people. The ICS will channel the skills, enthusiasm and energy of young volunteers to make a meaningful contribution to a range of development projects. Some ICS volunteers will work alongside national volunteers, who will be supported to continue their work after the UK volunteers have departed and to develop their own skills.
In the couple of minutes that I have left I shall turn to some of the questions raised by noble Lords. The noble Lord, Lord Ahmad, asked what the Government are doing to enable young people to learn from and contribute to the big society in England. The Government want all young people to have a positive and active place in society and to be active citizens in their communities. The national citizen service and the development of the international citizen service are excellent ways for ensuring that young people become engaged. Like the noble Lord, Lord Ahmad, I also learned through my own experience how working with people with so many vulnerabilities at their doorstep makes that a life change for you.
My noble friend Lady Morris asked about disaggregated data. DfID produces youth-disaggregated data where it can. For example, it encourages country offices to produce age-disaggregated data for their programmes. However, for technical reasons, it is sometimes not appropriate to disaggregate all indicators by age because sometimes the beneficiaries are not targeted at that level—for example, the supply of clean water is not age appropriate but is on a geographic basis.
The noble Lord, Lord Puttnam, referred to the problem of human trafficking. He will be happy to hear that the UK ratified the Council of Europe’s Convention on Action against Trafficking in Human Beings in 2008. After considering the views of Parliament, we will see whether we will sign up to that.
The noble Baroness, Lady Prashar, spoke about the Commonwealth and its importance to young people. DfID supports young people in the Commonwealth to engage in international development and build their skills. We provide funding of £850,000 per year to the Commonwealth Youth Programme, run by the Commonwealth Secretariat. This encourages young people’s engagement in international development.
I think that I have run out of time. I undertake to respond in writing to all noble Lords whose questions I have not answered.
Health: Obesity
(13 years, 8 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McColl of Dulwich
To ask Her Majesty’s Government what steps they are taking to reduce obesity in the United Kingdom.
Lord McColl of Dulwich
My Lords, the purpose of this debate is to draw attention to the most serious epidemic to affect many parts of the world. The obesity epidemic will soon involve half the population of this country. It is killing millions of people, costing billions of pounds and the cure is free: eat less and live. The results of obesity cause great distress and suffering and include cancer, arthritis—which often needs joint replacements—and type 2 diabetes, which leads to blindness, loss of limbs, heart attacks, strokes and very much more disability.
The best measure of obesity is the body mass index, BMI, which is the weight in kilograms divided by the square of the height in metres. In terms of body mass index, 20 to 25 is healthy, 25 to 30 is overweight, above 30 is obese and over 40 is morbidly obese.
How is it that intelligent, well meaning leaders of this country have allowed themselves to be hoodwinked into believing the false information about obesity that it is all to do with a balance between the calories that we eat and the exercise that we take? Of course, they have been aided and abetted by NICE—or, under its more recent name, the National Institute for Health and Clinical Excellence. In its document on obesity of January 2010, NICE stated:
“A person needs to be in ‘energy balance’ to maintain a healthy weight – that is, their energy intake (from food) should not exceed the energy expended through … exercise”.
There is its crucial mistake, because the real balance is between calorie intake and the total expenditure of energy in the body.
The simple fact is that only 20 per cent of the calories we eat or drink are used up in exercise, which means that diet is five times more important than exercise in controlling weight. Put another way, if we were successful in doing something which has never been achieved before—namely, getting the population to double the amount of exercise that they do in a day—it would increase energy expenditure only by 20 per cent. If, on the other hand, every plate of food was reduced by half, this would reduce the calorie intake by half.
We have to run 17 miles in order to reduce our weight by one pound of fat. Bearing in mind that as little as 20 per cent of the calories we eat or drink is used up in exercise, where does the remaining 80 per cent of the energy go? It is consumed by numerous activities over which we have no control: the heart beats 2.5 billion times in a lifetime, the kidneys filter 4.5 metric tonnes of blood and there are a myriad of activities in other organs of the body such as the liver, the pancreas, the bones and the alimentary tract. As regards those who believe that the energy from food is all used up in exercise, where do they imagine the energy comes from to run the heart, liver, pancreas, brain and so on? Perhaps they imagine that they run on air—perhaps hot air.
The sad thing is that there are politicians in all parties and people in many well meaning organisations who have also been misled. Most of their publications have adopted the mantra that exercise and diet are the solution to obesity but few, if any, emphasise that diet is five times more important than exercise. Politicians persist in believing that the issue is about having a balance between diet and exercise because that is what the quango NICE says in its publications.
When one examines what NICE published in January 2010, one sees that it recommends exercise and diet on seven pages and on three other pages it puts it the other way round, as diet and exercise. Nowhere does it state that reducing calorie intake is much more important and effective in reducing weight. On page 21, it recommends that obese adults should take more exercise even if it does not lead to weight loss. If treatment is not working, why not try another treatment such as eating less, which is five times more effective? But perhaps the most impractical advice in this paper was that people who have lost weight may need to do an hour and a half of exercise a day to avoid regaining weight. I must say that I would have been very disappointed if any of my medical students had produced a document such as this. But there is good news. I went to see the director of NICE, who has now admitted that the institute got it wrong. I look forward to politicians accepting this new advice that diet is five times more important than exercise.
Why are people willing to turn a blind eye to this problem while millions of people suffer as a result? By saying that taking exercise is the answer, we avoid upsetting the millions of obese people whose excessive weight often prevents them exercising and we give them a good excuse to stay as they are. We deceive them by avoiding the heart of the matter which is that we need to eat less. Of course, those in the food industry are delighted to hear that lack of exercise and sports facilities are to blame for the obesity epidemic as that lets them off the hook.
I have been asked not to be negative about exercise because all the political parties have been campaigning to increase activity and they do not want this momentum to be torpedoed. I understand that. I would never be negative about exercise because it is of great importance for the integrity of the heart and the control of the wrong sort of cholesterol. Exercise also gives a sense of well-being and high morale, but that does not alter the fact that what we eat is five times more important than exercise when we are dealing with weight control.
The subject of obesity is beset with a number of red herrings. Many people believe that obesity is due to genetics, hormones, brown fat, psychological factors, sexual abuse and so on. These factors may help to explain why people eat too much but they are certainly not the cause of obesity. Those factors were around during the war when food was rationed but there was no obesity then, apart from those miscreants who were indulging on the black market.
Over the years, I have had many obese patients who have assured me that they eat very little and sometimes they were speaking the truth. Their obesity was due to their alcohol intake. Noble Lords will perhaps know that three cocktails such as mai tai will contain 1,000 calories. That is another hazard for the unwary.
There is a good deal of confusion about childhood obesity, which is now a very serious problem and getting worse. The organisation Change4Life has estimated that there are 1 million obese children under 16 in the UK, and around the world there are 2 million children under five who are overweight. We are beginning to see earlier and earlier the complications of obesity in these children, such as type 2 diabetes, heart disease, high blood pressure and cancer.
Again we are bedevilled by the obsession that exercise is the solution, but reliable long-term scientific research clearly shows that overeating is responsible and that it starts in the first five years of life. There was a misleading article in the Daily Telegraph on 8 November 2010 headed, “Exercise, not diet, key to obesity”. This was based on a Norwegian study which was fundamentally flawed. However, the same article mentioned the reliable work of Professor John Speakman of the University of Aberdeen, who presented unique data using state-of- the-art technology. He found that rising obesity levels were due to increasingly excessive food intake. The overall physical activity levels have been constant over the past 25 years while weight levels have soared due to the greatly increased calorie intake.
Professor TJ Wilkin of the Peninsula medical school has carried out a unique study, published in Archives of Disease in Childhood in 2009, that included annual measurements of physical activity and body composition over 12 years. This shows that obesity leads to inactivity, but inactivity does not lead to obesity. Furthermore it concluded that the pathway to obesity seems to be,
“set early in life, long before school age”.
This questions the rhetoric around school meals, computer screens, PE time, playing fields and physical activity, which, of course, is unstructured in early childhood. A recent meta-analysis incorporating 15 reports on over 13,000 children concluded that a nine year-old child subjected to intense pressure for 18 months would lose on average just three ounces, or 80 grams.
The obesity epidemic is killing millions, costing billions and the cure is free. Will Her Majesty’s Government embrace the essential fact that reducing food intake is five times more effective than exercise?
Lord Addington
My Lords, the noble Lord, Lord McColl, is consistent. I remember that we have crossed swords on this subject several times. The idea that exercise is a bad way of controlling weight is odd because fundamentally it misses the point. Exercise may make you gain weight. If you take exercise that uses muscle—for instance, my own sport of rugby union or rowing—you will get bigger. If you take these exercises your body will become more dense and solid; if you run, your body will become more solid and you will add extra muscle. The old adage is that if you go to the butchers and ask for a pound of fat and a pound of muscle you will discover which is the smaller unit—it is just there.
We can jump around here but the idea is that you are carrying too much fat. The body mass index is probably the worst measure of obesity and fitness because it throws up the anomaly of the sportsman emerging as the person who is going to die tomorrow. According to the body mass index, I did not make it to 30; neither did anyone else who played my sport at any level; and when Pinsent and Redgrave won their last combined gold medal they were heavily overweight and just missed being obese. These men are six foot five, so you can see how bad it is.
I am aware that I have an inferior medical knowledge but burning fat is probably the worst way to judge the way in which you use calories in exercise—I know I am sticking my neck out in saying this—because you burn up the calories when your body repairs the muscles, over a longer period of time, after exercise has put up your metabolism. This is fundamentally what your body does and different types of exercise will burn it at different rates.
It is also true that you have to take account of the number of calories going in and the number going out. If you live a sedentary life, it is absolutely obvious that you do not need extra calories. Exercise burns up calories, basically by rebuilding, reconditioning or changing muscle. You might burn off 15 calories by keeping fit in the gym but if, for example, you lift weights, you will burn off far more calories by rebuilding your muscles afterwards. However, if you are heavily overweight and eat far too much or eat the wrong thing sat in front of a TV screen, you are going to get heavier.
The fact is that, if we do not take exercise and we sit in front of a TV screen, the vast majority of us will eat or drink cups of tea laced with sugar. The same point applies to sugar in tea as it does to sugar in alcohol. If we spend a great deal of time being sedentary, most of us will consume calories at the same time. Many of us do not have the will-power to sit still for hours doing nothing without consuming calories. We live in a society where these no-need-to-cook, at-your-fingertips calories are easily available: you go to a supermarket and, after you have been good and bought the things that you have to cook, you buy lots of things that you do not have to cook. That is one of the barriers that we face.
How do we try to bring about a balance? The Government’s responsibility deal is a way forward, and I hope that we can get a bit more out of that than we have from some of the other schemes that we have had in the past. Primarily, we are not asking everyone to stop eating convenience foods, but we are trying to make those convenience foods potentially less lethal. However, how this will work, I do not know. Improvements have been made but are they happening quickly enough? There is no silver bullet. The previous Government tried hard to tackle the problem. They made people look at the problem but people still tend to be getting heavier, so which combination is right?
Total abstemiousness may be desirable but it is not something that we follow. Let us face it: we would not have to maintain sports grounds if we all did. Fast food is available to us and it has always been a part of our culture. History shows us that fish and chip shops and pie shops have always been there. All the things we like, such as salt and fat, are available and they give us a nice hit. We have to take that on board and try to educate people further. If people like these types of snacks, we have to try to make them less fatty.
Exercise plays a very important part for many people. If you are active and a reasonably keen amateur sportsman, then, apart from anything else, you are probably going to take slightly better care of yourself. Why would you not do so? Even if you only want to get from the third to the second team in your particular sport, then losing a couple of pounds and eating slightly better may have a part to play in that. When you are playing or running around training one, two or three nights a week, you are not sitting on your behind in front of a TV screen or in the pub. We must look at the issue in the round. The incentive to control your diet is increased by exercise. If you do not eat a great deal and are not carrying an extra few pounds of fairly soft tissue or fat, then, even if you just want to walk gently up a hill on a Sunday, it will be easier and more fun. Everyone enjoys the view more when they are not gasping for breath at the end of their walk and do not have incredible pain in their muscles. That is a fact.
I repeat: we have to look at things in the round. Physical activity and access to physical activity will help, if only as an incentive to eat better. Unless we make sure that that there are incentives to take part in social and physical activity and to think about the foods that we eat and the amount we eat, we are going to miss our targets. Let us make sure that, when we talk about diet, we talk about it in terms not just of consumption of calories but of the correct cycle of calories for activity.
I leave noble Lords with this. Everybody is gobsmacked by professional athletes—not by the amount they train but by the amount they eat. An Olympic gold medallist—I think it was Phelps in the last Olympics—said that he had to eat 4,000 calories a day. That is eight gold medals-worth of burgers. It means that people can actually eat a great deal and be very fit and healthy. I suggest that we need to look at this in the round and not get obsessed by any one activity.
Lord McColl of Dulwich
Before the noble Lord sits down, would he recognise that I did not actually run down exercise? I specifically said it was a good thing. Also, how does he explain the scientific fact that only one-fifth of the calories we eat are expended in exercise?
Lord Addington
My Lords, quite simply, if it is expended in exercise, it is not expended in the rebuilding of muscle. Rebuilding muscle is an important part of exercise—not the actual taking of exercise.
Lord Patel
My Lords, you cannot really find fault with the logic of the noble Lord, Lord McColl—do not eat and you will not put on weight. The problem is that for most of us, if you mention food we want to eat. I am going to focus on strategy, but I cannot find fault in his logic.
The noble Lord has already referred to the fact that obesity is recognised as a major public health problem and that it may well be getting worse. A policy review of several countries, including the United Kingdom, finds common themes. All express concern at the prevalence of obesity, thought to be the result of over-consumption of energy-dense foods and inadequate levels of physical activity. Few countries have specific strategies; instead, obesity is tackled through separate policies of nutrition and physical activity. Policies often in general terms identify sets of actions without any firm commitments—often interventions that focus on schools, workplace and active transport. What is noticeable is the absence, almost, of fiscal and legislative interventions from policies; neither are the policies funded. The interventions are poorly supported by research or evidence. The proposed measurement of the effectiveness of policies is weak and not clearly formulated. The strategy to tackle the so-called “tsunami of obesity”, which threatens several countries in the world, is largely concerned with options for ways to develop policies rather than a set of interventions to reduce obesity.
We have known about the associations of obesity and disease, and the noble Lord, Lord McColl, mentioned some of them. There are some 17 different diseases that we know of that have associations with obesity, costing the health service in England in the region of £4 billion—costs that will exceed health costs due to tobacco and alcohol use. The joint report in January 2011 of the Academy of Medical Sciences and the Royal Society of Edinburgh—and I declare an interest as a fellow of both—made some key recommendations on diabetes and obesity that have implications for policy research and management of patients with obesity and diabetes at individual and population level.
Obesity, as everybody understands, is a condition characterised by an individual having excess body fat caused by higher energy intake than expenditure. Excess energy is stored in the form of adipose tissue. Statistics have already been mentioned and are clear: 25 per cent of the adult population is obese and 65 per cent may well be overweight, while 23 per cent of children at reception in school are obese or overweight and 33 per cent of 10 to 11 year-olds are obese or overweight. Those are important findings from the child measurement studies. The pester power of children and the pushing of calorific foods to children by shops contributes to this. A well-known politician reportedly asked:
“As Britain faces an obesity crisis, why does WH Smith's promote half-price Chocolate Oranges at its checkouts instead of real oranges?”
When he said that, he was much applauded by the population and by the citizens. The politician was David Cameron.
I turn to the current Government’s strategy, or what it might be. We await the publication. The public health White Paper suggests that the Government will take a holistic approach with emphasis on personal responsibility and choice, but they will be reluctant to use regulation or legislation. The focus will be on voluntary agreements with industry through public health responsibility deals. Interventions are likely to be based on strong evidence, but there is not enough strong evidence, especially as NICE is asked to put the obesity interventions review on hold. There are suggestions that the Government will use the famous “ladder of interventions”, beginning with the least intrusive—information, education and so on—but regulation of industry or individuals will be used only if the initial steps of the ladder do not work. That is the well known nudge theory which involves no regulation, prompted choice and co-operation with the private sector, and it will be subject to strict post hoc evaluation.
I ask the Minister: what is the evidence that the nudge theory will work? What is the roadmap to evaluation? What measurements will be used and who will carry them out? A major plank of the policy is the responsibility deal. Who will lead that responsibility deal? Who will be responsible for it? Could the noble Earl comment on the reports that several charities and consumer organisations have withdrawn, seeing it as industry influencing consumers rather than reforming their business practices?
I hope that the Government will take on board in their strategy several issues that have some evidence as to their effectiveness. They are such simple things as a front-of-pack colour-coded labelling scheme for foodstuffs; a ban on advertising on television before 9 pm of food that is high in fat, sugar or salt; a continuation of the national child measurement programme; information on calorie content on all products; a commitment from local authorities to provide, to protect and to maintain the environment that will enhance physical activity; promotion of research into psychology and anthropology of behavioural change; cost effectiveness of interventions; and, lastly, a ban on trans-fats in all foods, as I have said before. Strategies that demonstrate reduction in childhood obesity are key indicators of success and, therefore, the childhood measurement programme should be continued.
Lord Campbell-Savours
My Lords, I would like to intervene briefly to express some marginally politically incorrect sentiments, because I share concerns expressed by Members of the Committee about the scale of the problem of obesity nationally, which I think is huge.
Baroness Garden of Frognal
Perhaps the noble Lord will forgive me, but we were not notified that he had his name on the speaking list.
Baroness Garden of Frognal
I am afraid that there is; this is a timed debate. However, as one of the speakers has scratched, the noble Lord can speak for four minutes in the gap.
Lord Campbell-Savours
I intend to intervene only briefly. I support the noble Lord, Lord McColl, and congratulate him on introducing this debate. His speech is worthy of passing around our friends and colleagues because it would have made a very good after-dinner speech. Although it was amusing, it dealt with an extremely serious subject.
My noble friend Lord Patel raised the issue of calorific information on food products sold in stores and particularly in restaurants. The other week I went into a Harvester restaurant which I had never been into before. I noticed that every item on the menu had its calorific content in bold lettering, so much so that I cannot believe that people who eat in those restaurants are not aware of and do not take into account the calorific content when they order their food. I am told that in parts of the world, particularly in America, the authorities in some cities insist on calorific information being provided on all menus in restaurants.
I wonder why we cannot do something similar here in the United Kingdom. I know that the Government are not over-wedded to the principle of too much regulation, but when so much is at stake arising out of problems of obesity and their consequences for health service expenditure, why can we not grasp the nettle in this area and introduce a regulatory framework for food manufacturers whereby the general public really do have to sit down and consider what they eat daily? If we were to do that, I believe that it would certainly have some consequence for obesity.
I return to being slightly politically incorrect. There is another problem as well. Families are often simply not prepared to raise the issue internally. There is an embarrassment about fatness. People just do not want to talk about it. Even among one’s colleagues, here or anywhere, we do not talk about whether people are fat or thin. We have to get over that because a huge problem is developing, in part due to an element of political incorrectness which is reflected in how the media and the industry treat the subject.
I am sorry if I did not comply completely with the rules. Having come from the Commons, and as I normally speak only at Report, in Committee and on Third Reading, I am not used to listings during debates.
Baroness Thornton
My Lords, I congratulate the noble Lord, Lord McColl, on his persistence in calling this debate; he is well known for his concern about this issue. I also offer congratulations to my noble friend Lord Brooke on having lost a lot of weight by reducing his intake of food by 10 per cent since June last year. I am not going to tell the Committee what he has gone to or from, but it is very impressive. In a way, that proves a point made in the remarks of the noble Lord, Lord McColl.
I address my remarks to the growing crisis that is childhood obesity. There are high levels of concern about obesity in westernised society, and about obesity in children in particular. The National Child Measurement Programme was implemented in the UK to monitor changes in average body size among children who are starting or about to leave primary education. It showed that, in 2008-09, almost one in 10 children—9.6 per cent—aged four to five was obese, while for 10 to 11 year-olds the figure was almost one in five, or 18.3 per cent. Over the past 10 years obesity among six year-olds has doubled, and it has trebled among 15 year-olds. With such levels of obesity, diseases such as type 2 diabetes are now being seen for the first time in children.
I draw on a recently published report entitled The views of young children in the UK about obesity, body size, shape and weight: a systematic review. It was undertaken for BMC Public Health and published on 25 March, and I commend it to all noble Lords. Among other things, it states that recent research shows that,
“Children are likely to experience immediate physical and psychosocial problems as a result of being obese and are at a higher risk of obesity as they grow older”.
Therefore,
“Children’s attitudes to and beliefs about their bodies”,
including high levels of body dissatisfaction, raise enormous concerns.
I have to confess that so far, taking their rhetoric with all possible seriousness, I am underwhelmed by the Government’s strategy for tackling childhood obesity. It seems that they are intent on removing all the levers that might make a difference nationally. For example, today the school dinner grant loses its ring-fencing and can be used to cover other budgets in schools which, it is safe to say, will lead to a rise in prices of possibly up to 17 per cent and a fall in take-up of school meals. The official national statistics on school lunch prices show that the average price for a two-course meal across primary and secondary schools with catering provided by the local authority was £1.88 in 2009-10. The Observer reported yesterday that more than 30 local authorities plan to increase the cost to children in the coming months, with some schools seeing an increase of as much as 17 per cent to £2.60.
Research by the School Food Trust reveals, not surprisingly, that the uptake of school meals correlates with price changes. According to its studies, a typical lunch brought in from home is not as nutritious as the average school lunch, which must meet national food standards. Packed lunches can also be repetitive. Therefore, despite reports of increased lunch fees in some areas, the School Food Trust says that it is “really encouraged” that many schools have continued to put the same level of investment into their school meals and has welcomed proposals to make it easier for schools to offer price deals such as ‘buy one get one free’ for larger families. Indeed, writing in yesterday’s Observer, Jamie Oliver said that he hopes the Government will continue to invest in,
“quality school food and the integral support and training of kitchen staff”.
However, we then have to add into the mix on school meals that the Welfare Reform Bill is a leap in the dark on this matter and raises the issue of the future of free school meals. Apart from the fact that it may mean children who need them may not get them, it introduces instability in funding.
Food education in schools is also incredibly important. It was made compulsory for children in secondary schools in 2008 and is due to come into schools this September. However, it is already under threat of being removed from the curriculum completely.
On nursery schools, in responding to the publication of recommendations by a government-commissioned panel on voluntary food and nutrition guidance for early years settings in England, Charlie Powell, director of the Children’s Food Campaign, said:
“While we welcome the substance of the recommendations from the Advisory Panel on Food and Nutrition in Early Years, we already know—from years of experience—that more voluntary guidance is almost certain to be largely ignored”.
That is simply not good enough. We should have legal standards for nursery food.
I agree with what Charlie Powell said when the Health Secretary announced the responsibility deals. He stated:
“They are little more than a continuation of schemes that were being done anyway by the Food Standards Agency—until the Government took away its nutrition remit”.
So instead of introducing effective measures to tackle alarming levels of childhood obesity—such as regulation to protect children from junk food marketing—the Government’s pledges require little or no extra work on the part of food businesses, which are delighted by the support they are receiving from the Government.
I urge the Department of Health to ensure that these voluntary commitments are independently monitored and evaluated and to set a timetable for regulation for when, as we expect, they fail to improve public health. As the noble Lord, Lord Patel, said, it is an embarrassment that Diabetes UK and the British Heart Foundation joined alcohol health charities in not signing up to the deal.
Dr Vivienne Nathanson, the head of science and ethics at the BMA, said:
“Children and parents are surrounded by the marketing of unhealthy cereals, snacks and processed meals. This has to stop”.
Two of the partners in the Government’s responsibility deal had the following to say. The Food and Drink Federation rejected the need for restrictions on advertising and a spokesman said:
“Any simplistic scheme that demonises products does not take into account the complexity of people’s lifestyles and the way they eat”.
The boss of McDonalds, Peter Beresford, has made clear that he rejects TV advertising restrictions. He said that McDonalds is not to blame for rising obesity, adding:
“There is no good food or bad food, only bad diets”.
Statistics show that about 70 per cent of commercials shown during children’s viewing are for food and that, of these, between 80 per cent and 100 per cent are for junk food. We are sending the wrong messages to children at a time when we are seeing this terrible increase in weight problems. As noble Lords will be aware, because I promoted a Private Member’s Bill on this matter some years ago, I am strongly opposed to allowing advertising of foods high in fat, salt and sugar during the pre-watershed hours. National Consumer Council expert Sue Dibb has said:
“Anything less than full restrictions on TV ads and promotions for high fat, salt and sugar foods before the 9 pm watershed would be extremely disappointing”.
I agree with that.
On sport and exercise, the Government’s record is again not good. We saw last year the U-turn that they had to make on school sports and the scrapping by the DCMS of the free swimming programme, designed to be a key part of the London 2012 legacy plans. I agree with the noble Lord, Lord Patel, that nudge and suggestion have yet to prove themselves. I have not limited myself to talking about the Department of Health because this is a cross-government matter. I therefore have two questions for the Minister: is there a cross-government approach, and where are the interventions and levers? Although I shall not repeat the questions of the noble Lord, Lord Patel, I add my name to them.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thank my noble friend for raising this important issue, about which he knows a very great deal. I value the insights that he was able to give us in his most informative introductory speech.
Obesity is one of our biggest public health challenges. In England, three-fifths of all adults and more than a quarter of children aged two to 10 are overweight or obese. The noble Baroness, Lady Thornton, reminded us of some other statistics in that connection.
Already, more teenagers and young adults are being diagnosed with type 2 diabetes. Experts tell us that if obesity stays at anywhere near its current high levels the health of the population will deteriorate dramatically in the years ahead. For instance, the National Heart Forum has predicted that, by 2050, the number of people getting diabetes because of their weight will nearly double and those with heart disease caused by obesity will rise by 44 per cent.
Our first thought has to be the human cost. Just as obesity cuts years from a person’s life, it also takes life from a person’s years. Statistics do not really convey the long-term effects of diabetes. They include limb amputations, long-term disability, chronic pain and heart disease, robbing people of their energy, their independence and their chances of a decent quality of life.
The other consideration is financial cost. Obesity already costs the NHS £4.2 billion. That figure is set to double by 2050. The prognosis is simple: make rapid progress or face a personal and financial catastrophe within a generation. As a country, we need to change our behaviour. The White Paper on public health sets out a new approach to improving people’s health that is locally centred, outcomes-driven and professionally led.
New local health and well-being boards will help to bring together the NHS and local government under a shared local strategy. The outcomes framework for public health will provide consistent measures to judge progress, and this includes two potential indicators covering obesity. Public Health England, a new, dedicated national public health service, will provide the resources, ideas and evidence to support local strategies. A specific obesity document will follow, setting out how the new system will work to reduce obesity levels.
However, as important as systems and structures may be, this is also about changing cultures. It is about encouraging greater personal responsibility. We have found that the state does not have all the answers, and the more the state intervenes, the more individual responsibility shrinks back. Rather than nannying people, we must nudge them, as the noble Lord, Lord Patel, reminded us, giving them the support and encouragement they need to look after their own health.
Although the noble Lord, Lord Patel, raised this subject, he expressed some doubts about its efficacy. I simply say to him that the Government cannot change people’s behaviour; what they can do is help people to change their behaviour themselves by encouraging them, rewarding them, making it easier and making it the norm. We can provide information to individuals to help them to make informed decisions about their health and we can provide encouragement, which we are already doing.
The noble Lord was doubtful whether the voluntary approach would work. I share his wish for an evidence-based evaluation of whatever we do. That is a core component of the responsibility deal and we are investing in it. However, as part of our new approach, we will consider what can be achieved through voluntary approaches before considering regulation. People’s lifestyle choices are affecting their health. The Government cannot address that challenge on their own. We believe that collective voluntary effort can deliver more progress and do so more quickly than regulation. Through the public health responsibility deal, we can tap into the unrealised potential of a wide range of resources that can promote healthier lifestyles and support people in achieving them. We have examples of working with industry, and this approach works. Change4Life is a recent example of how we have successfully worked with industry. We firmly believe that collective voluntary efforts can deliver real progress. The responsibility deal and deliverables arising from it have to deliver real improvements to public health, and we are looking at what independent monitoring or evaluation will be needed to that end.
While obesity often has complex social, psychological and cultural foundations, its basic cause is simple. My noble friend Lord McColl spoke about energy balance in its broadest sense. He is right: people become overweight because they take in more calories than is necessary and they do not burn off the excess calories that they do not need. I do not think that my noble friend was arguing against that proposition. It is a point clearly made in the NICE guidance on obesity and being overweight, and it is central to the Government’s approach. The NICE guidelines on obesity address the prevention, identification and management of obesity. They stress the importance of addressing both diet and energy out. The guidelines were based on the best available evidence that NICE had at its disposal at the time. However, my noble friend will be reassured to hear that NICE’s clinical guidelines are updated as required so that recommendations take into account important new information, and the obesity guideline is no exception to that.
My noble friend referred to the work of Professor Wilkin. The department is familiar with the EarlyBird diabetes study by Professor Wilkin. The study makes some useful points concerning the importance of early-life experiences for future health. It provides some useful messages on the importance of a child’s early years and the impact that this can have on the child’s future health and behaviour. However, this is one study which needs to be seen alongside other research with different findings on physical activity and weight.
My noble friend Lord McColl made very clear his emphasis on diet as the more important ingredient in weight loss. However, I think he would agree that any planned weight management programme should be tailored to the person’s preferences—their initial fitness, their health status in general and their lifestyle. The NICE guideline recognises that relatively high levels of activity may be required by certain individuals wishing to lose weight or maintain weight following weight loss. However, it also emphasises that, while an individual’s ability to be physically active may be hampered by their initial level of fitness or comorbidities, physical activity recommendations can be built up gradually, be focused on everyday activities, such as walking, and be accompanied by a reduction in sedentary behaviour. The guideline includes a raft of recommendations for clinical practice on dietary management.
Therefore, what is to be done? First, we need to give people the information and the opportunities so that people can choose to change their diet and lifestyle. A powerful way of doing this is through the Change4Life brand, which helps people to cut down on fatty and sugary foods and become more active. Another is working with industry to guide people towards healthier choices. The noble Lord, Lord Campbell-Savours, asked why we cannot ask restaurants and so on to place calorific content on menus. Through the responsibility deal, we now have 29 partners who are committed to posting calorific content on their menus in more than 4,000 restaurants. The noble Lord, Lord Patel, mentioned trans-fats, and my noble friend Lord Addington also referred to the fat content of food. They are both quite right. They will be pleased to hear that businesses have already committed themselves to removing artificial trans-fats from foods so that people can keep the tastes they enjoy without suffering such negative consequences. We shall continue to work with industry on other measures to help people to reduce their calorie intake, including reformulation. We will say more in the obesity document when it is published later this year.
A second issue is improving access to healthier food. In some areas, local shops simply do not stock healthier options. We are working with the Association of Convenience Stores to make fresh fruit and vegetables more available. The scheme has expanded incredibly quickly, with participating stores seeing a marked increase in the sale of fruit and vegetables. Of course, even if people have fresh produce, they still need to know what to do with it, so education is vital. There are many great local initiatives—involving the NHS, local authorities and a range of partners—which provide cookery schools and other local healthier eating initiatives.
The noble Baroness, Lady Thornton, spoke very eloquently about school food, and I agree with a lot of what she said. The Government are committed to ensuring that pupils can eat healthy, nutritious school food. We are supporting the School Food Trust in its work to help caterers to become more efficient while continuing to provide healthy meals. The schools budget will increase by £3.6 billion in cash terms by 2014-15—the end of the spending review period. Although the school lunch grant will not remain as a specific grant, it will be one of the grants that make up schools’ baseline funding from 2011-12. It will, however, no longer be ring-fenced; it will be for schools to decide how to spend the money.
We have not changed the current rules for free school meals. Therefore, some 900,000 pupils in the neediest families—those without work—continue to receive free meals. We took the difficult decision not to extend eligibility to low-income working families because the previous Government had underfunded this plan by £295 million. The money saved by not extending eligibility will be used more directly to improve the educational attainment of disadvantaged pupils, which is key to extending opportunities for poorer children. We are continuing to support three pilot projects of extended free school meals. We will look at the evidence from these of the costs and benefits of extending free school meals before making any future decisions on this front.
The noble Baroness, Lady Thornton, also mentioned advertising. As she knows, the television regulator, Ofcom, has placed scheduling restrictions on the broadcast advertising of food high in fat, salt and sugar during children’s programmes and programmes of particular appeal to children up to the age of 16. Since January 2009, these restrictions have applied to all channels. The Ofcom review in 2010 showed a 37 per cent reduction in the exposure of children to television HFSS advertising, with the highest reduction for children aged four to nine years, and a fall of 22 per cent in children—
Lord Campbell-Savours
Perhaps I may stop the noble Earl for a moment. In the first few moments of his speech he spelt out the scale of the crisis, yet almost all the measures that he has referred to are voluntary. They are based on an agreement with the industry or with this or that body. If that is not working—and it clearly is not, because the noble Earl himself set out the nature of the crisis—why, at an early stage, cannot we go down a more regulatory route?
Earl Howe
I hope that the Committee will allow me a little extra time in view of that intervention. The answer to the noble Lord, Lord Campbell-Savours, is that if voluntary measures do not work, we will indeed consider regulation. I need to make that clear. We have a ladder of intervention at our disposal. However, as I also emphasised to him earlier, we think that we can make progress faster by means of voluntary measures. The food labelling regulations, for example, are governed by EU law, and the noble Lord will know how long it takes to change EU law. If we can make progress more rapidly by voluntary measures in this country, I am sure that he would welcome that as everybody else would.
On the other side of the coin, although equally important, is physical activity—the calories we burn rather than consume. My noble friend Lord McColl made some strong statements on that aspect of the issue but, as my noble friend Lord Addington indicated, physical activity is important in the wider context of people’s health. The public messaging on this clearly has to be balanced. We are currently reviewing the Chief Medical Officer guidelines on recommended levels of physical activity and we hope to publish those in the summer. Incidentally, I am delighted that my noble friend Lord Addington has underlined the importance of diet and exercise because I still believe that the two should be emphasised.
Finally, we need to make sure that those who need it can get the specialist help to reduce and manage their weight effectively. Weight management providers will continue to play a key role in this area. I believe that through the new public health system, with the responsibility deal and Change4Life, we can truly make a difference over the next few years.
Education: 16 to 18 Year-olds
(13 years, 8 months ago)
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Lord Willis of Knaresborough
To ask Her Majesty’s Government what plans they have to offer support to 16 to 18 year-old students in full-time education.
The Deputy Chairman of Committees (Baroness Fookes)
My Lords, I intervene at this point because we believe that a Division in the Chamber is imminent. We must make a start but once the Division is called, I then have to suspend the Committee immediately for 10 minutes. I am extremely sorry if that interrupts anybody’s flow of speech but I thought it important to mention it.
Lord Willis of Knaresborough
Thank you for that warning.
I am grateful to noble Lords for speaking in this not so packed Room in this short debate on support for 16 to 18 year-olds in full-time education. It is rather sad that the Room is not packed for such an important topic. I am particularly grateful that my noble friend Lord Fink is with us. We are delighted that he is making his maiden speech and we very much look forward to his contribution. I actually sought this debate in July 2010 and it is testimony to the potency of EMAs that, despite last week’s announcement of a very welcome replacement bursary scheme, the question of support for 16 to 19 year-olds remains a contentious issue. Indeed, when the Mayor of London argued on BBC “Question Time” last week that the new scheme did not go far enough, he expressed—
Lord Willis of Knaresborough
My Lords, I am very grateful that we are having this debate on support for 16 to 18 year-olds and particularly delighted that my noble friend Lord Fink has chosen to make his maiden speech this evening. I sought this debate in July 2010 and it really is testimony to the potency of this issue that, despite the Secretary of State’s very welcome Statement last week, the issue of support for 16 to 19-year-olds remains contentious. Indeed, when the Mayor of London—an uncontentious figure—argued on BBC “Question Time” last week that the new scheme did not go far enough, he expressed the views of many of us who believe that the Government produced little sound evidence for ending EMAs and threatening participation, other than the need to save money.
The decision to save £560 million by scrapping EMAs was hardly unexpected. Indeed, given the parlous state of our finances, I appreciate that the money had to come from somewhere. However, the argument for doing so—that this was an ill targeted scheme, that it was unsuccessful and that it had huge deadweight costs—simply did not bear scrutiny. The Government largely pray in aid the 2007 IFS evaluation, claiming that 90 per cent of students in receipt of EMAs would have stayed on regardless. Those are the so-called deadweight costs. Yet the IFS did not make that claim. Rather, it was a somewhat shoddy report by the NFER that surveyed students prior to them even entering post-16 education. In fact, the IFS concluded in 2007 that the EMA achieved its aim of increasing and retaining participation by some six percentage points—the key aims of the previous and the current Governments.
What is more, if deadweight costs are to be key criteria for revenue reduction, what about the winter fuel allowances for the over 60s, many of whom, like those in your Lordships’ House, could well afford their own heating? What about subsidised student loans, which go predominantly to the better-off, not to mention child benefits paid to large numbers of those whose children are not remotely at risk? Indeed, a far more reliable source of evidence about the effectiveness of EMAs came from the CfBT Education Trust 2009 research project, Should we end the Education Maintenance Allowance?, which clearly showed the success of the programme. So does the mountain of direct survey evidence from the AoC, the 157 Group and from schools, demonstrating the crucial part that EMAs have played in providing support for students, especially for travel and equipment and particularly for vocational courses.
However, the Minister will be surprised to hear that I am not calling for the EMA scheme to be retained. The direction of travel announced by the Secretary of State last week is right and I pay tribute both to the Government and to my honourable friend Simon Hughes, the MP for Bermondsey and Old Southwark, for producing an interesting proposal. It passes responsibility to schools and colleges for its execution and secures £70 million of Treasury cash to achieve the welcome but modest £180 million budget for the new scheme. Perhaps the Minister, in his summing up, will confirm that this is new money and that he is not simply top-slicing existing 16 to 19 programmes.
I am calling for the restoration of more of the £570 million that the scheme currently spends so that a wider group of students can be supported. Without a larger bursary fund we cannot start to tackle issues such as travel costs, which are one of the largest obstacles to participation and retention post 16.
Lord Willis of Knaresborough
My Lords, for the third time, I am making the case not to retain the EMA scheme as it stands but to retain a significant part of its budget. However, to make a credible case for retaining resources while still delivering substantial savings to the Treasury actually requires us to think differently. I concede that young people from families with household income of up to £16,200 a year—the maximum income level for free school meals—have largely been protected to some degree by the bursary proposals, although the IFS paper last Tuesday made a different assessment. But if parents have a joint gross income above £30,800, young people at present do not get a single penny of EMA. My concern is that the Government are putting at risk participation by young people from families with incomes between £16,200 and £30,800—hardly the affluent middle classes.
There is a widespread belief that 16 to 19 financial support is simply limited to EMAs; it is not. There are two other significant sources of financial support: 16 to 19 child benefit and 16 to 19 child tax credit, which are treated not as education but as social security. However, at 16 plus, child benefit and child tax credit are not paid to parents for every child. They are paid only on condition that young people are in full-time education or unwaged training. Parents with 16 to 19 year-olds in jobs, apprenticeships, part-time education and those not in education, employment and training—the NEET group—do not receive child benefit or child tax credit. That is, some 15 per cent of all 16 to 18 year-olds.
I am inviting the Minister to view 16 to 19 child benefit and 16 to 19 child tax credit as financial support for education, not simply for social security. Currently, around £1.5 billion is spent on 16 to 19 child benefit and £2.3 billion is spent on child tax credit, which, when added to the EMA spending, amounts not to £700 million but to £4.3 billion of taxpayer support. Is the Minister confident that this entire £4.3 billion pot is being deployed in such a way that maximises post-16 participation, supports students and delivers value for money for taxpayers? No doubt the Minister will argue, correctly, that the Government are increasing the level of means-tested child tax credit, including for families with 16 to 19 year-olds in full-time further education. But at the same time the availability of child tax credits is being scaled back to those with a gross household income of around £26,000 from 2012-13. In any event, the extra payments for those below £26,000 a year were never intended to compensate for the loss of EMA which, as the Secretary of State has admitted, is up to £1,000 a year.
No one can deny that the EMA is not progressive, as payments are restricted to young people from households where less than £30,800 is coming in, but if there are deadweight costs in the EMA, what is the level of deadweight cost in 16 to 19 child benefit? The reality is that 16 to 19 year-olds from better-off families will stay on in full-time education irrespective of whether their parents get £20.30 or £13.40 in child benefit.
A week ago in the other place the Secretary of State argued that,
“there are real questions as to whether it is socially just to pay 45% of students a cash incentive to stay in learning when we could concentrate our resources on removing the barriers to learning faced by the poorest”.—[Official Report, Commons; 28/3/11; col. 52.]
The fact that he made that statement is quite interesting. If that is the case, how can it be socially just to pay child benefit to better-off families with 16 to 19 year-olds who will stay on anyway? So rather than cut £360 million in financial support from the EMA, which risks reducing participation of young people from relatively poor families, the Government should look at finding the £360 million from 16 to 19 child benefit paid to better-off families, which will not put participation at risk. That is the tenor of my argument. At present, the Government have opted to divert EMA funding from the relatively poor to the poorest, rather than divert 16 to 19 child benefit funding from the better-off to the relatively poor. We should debate that argument.
I believe that there is an overwhelming case for decoupling payments of nought-to-16 child benefit, paid to every child, and payments of 16 to 19 child benefit paid only to young people in full-time education and unwaged training. I also believe a common means test should apply to financial support for all 16 to 19 year-olds. I accept that that would extend means-testing. If you are going to target support, you have to have some form of means-testing.
As for balancing the books, my noble friend Lord Sassoon provided Written Answers to me on 7 December about potential savings from restricting 16 to 19 child benefit. For illustrative purposes, if 16 to 19 child benefit was restricted to those with less than £31,500—just £700 above the present maximum threshold for the EMA—the Treasury could save a whopping £875 million. Restricted to those with a gross household income of £37,500, the savings would be £600 million, with the equivalent savings just for England being £740 million and £510 million. I am arguing that there is an alternative way of providing the support for 16 to 19 year-olds, which could be targeted through the bursary scheme hugely effectively following the Government’s proposals, and by thinking differently about how we use the maximum resource rather than having pots of money in silos which do not move.
Lord Fink
My Lords, I thank the noble Lord, Lord Willis, for securing a debate in which I can make my maiden speech. While I have spent the majority of my time in the Lords in the Chamber, it gives me particular pleasure to make my maiden speech in the Moses Room. As well as the ancient ancestral connection, I also feel that the warmth and intimacy of this Room offers a comfortable place for making such a speech. To have the chance to speak in a debate on supporting 16 to 18 year-olds in full-time education is a particular pleasure as it touches on two or three strands of my particular interest and family history.
I thank your Lordships for the warm welcome that I have received from so many of you during my three months in the House, and in particular the staff of the House, who have shown great patience and helpfulness to me. I also thank my introducing Lords, my noble friends Lord Harris of Peckham and Lord Howard of Lympne, for the warmth of their introduction and my mentor, my noble friend Lady Fookes, for the time and patience she has shown me.
My life and family journey have been centred around education, which is one reason I was particularly pleased to make my speech on this subject. Growing up in Manchester in a happy family, albeit of modest circumstances, I never visited the Palace of Westminster, let alone dreamt that one day I would be privileged to attend your Lordships’ House. It is for this reason that I feel both very fortunate and humbled to be standing here.
My main education was at the Manchester Grammar School, where I received a free place to study as my parents could not have afforded to pay the fees. While I remember my early years at school with fond memories, I was acutely aware of the privilege I had in studying my chosen A-level subjects in science, together with free options to study one or two other unrelated subjects. Given how much I enjoyed and benefited from those last two years at school, I would not wish to see any other child deprived of that opportunity for financial reasons.
A law degree at Cambridge was a relatively dramatic change of direction for me but I saw it as a good way to study some arts subjects to balance my more natural skills in mathematics and science. However, being a mediocre lawyer, I was rapidly tempted to move back to accountancy and business, which I did after leaving Cambridge in 1979. Since then, my 30-year business career has spanned time in both industry and banking but, for the most part, I have worked in the world of investment management. I was proud to be able to work at Man Group for over 20 years and to help it develop from a medium-sized commodity trading business into a financial services group.
One of the reasons I left Man in 2008 was that I had suffered from a brain tumour three years earlier which had required major neural surgery. I received extraordinary treatment at the National Hospital for Neurology and Neurosurgery in Queen Square, where I was fortunate enough to be treated and diagnosed by a neurologist who, coincidentally, happened to be a friend from university, together with an incredibly dedicated neural surgeon as well as a fabulous team of nurses and speech therapists, who looked after me for nearly four weeks and helped me to speak again.
Along the way, I always tried to practice philanthropy in the way my parents had instilled in me, starting off in youth voluntary work, which was how I met my wife, Barbara. As well as managing to do some good on visits to the elderly people in Manchester, we made good friends with each other, of course, and with others. As well as supporting community causes, today my real philanthropic passions are the improvement of children’s health and education. I believe that with these two attributes the potential of our children is infinite, yet with poor health or education early lives are sadly blighted. I also never take for granted the joy of being blessed with three healthy and well educated children.
Noble Lords can see that these two main themes strike deep chords with my life experience and hence my commitment and passion. For this reason, I became a trustee of Absolute Return for Kids, which is a leading UK children’s charity focused on children’s health and education issues. That charity has the aspiration in education that every student should have the opportunity to go to university and that we should try to achieve five or more good GCSEs for each student under our care. The charity currently operates about 10 schools, and growing, in some of the poorest inner-city boroughs, mainly in London but, increasingly, in the Midlands.
In a personal capacity, I became a very enthusiastic supporter of the academy schools programme, directly supporting two schools: the North Liverpool Academy and Burlington Danes Academy in Hammersmith. The students at both these schools face enormous challenges and in both cases the ratio of children receiving free school meals is around 50 per cent, which is one of the highest marks of deprivation. Both schools also face non-financial challenges. In the case of Liverpool, it is a dependency culture, with many children coming from homes where there is literally no memory of a successful job. In the case of Hammersmith, it is a school with a large proportion of recent immigrants whose natural language is not English, many of whom are from Somalia.
What I have found so inspiring about the academy programme is that with the help of really committed staff many of the students’ lives have been transformed, while the rate of successful passes at GCSE has improved dramatically over the past four or five years, from less than half the national average to approaching 70 per cent in both schools. It is vital that schools have the ability to keep these less well off students in full-time education until the age of 18, at which point the students can choose whether to go to university or into a relatively skilled job or apprenticeship.
While I recognise and appreciate the necessity of saving public funds during a period of such fiscal constraints, I fully commend the coalition Government for focusing financial support on such students between the ages of 16 and 18 who are most needy, when financing those students makes a key difference in enabling them to remain in full-time education. I also believe and hope that the students who may miss out on the tightened criteria will also continue to proceed to A-level. The drop-out rate of the most able students is a statistic that might be monitored over the next three or four years, in order to see whether the targeting has adverse consequences. The first cohort of students from Burlington Danes Academy is finishing its A-levels this summer and I would be tremendously proud to see the first of these students go to a good university.
In conclusion, I thank all noble Lords for the kindness, courtesy and advice that I have received from all the Members of the House and look forward to being able to make a positive contribution over time.
Baroness Walmsley
My Lords, it is my pleasure to thank and congratulate the noble Lord, Lord Fink, on his maiden speech. Like myself, he comes from the north of England and therefore he and I are very modest. Modesty forbad him from telling your Lordships how successful he was in business. I read that in the 12 years that he was managing director of his Man Group, he managed to increase its assets under management 70-fold. That may be the reason why he was appointed the treasurer of the Conservative Party in October 2010.
Apart from being a committed business person, the noble Lord is also a committed philanthropist and a very successful fundraiser. He has told us about his chairmanship of ARK; he has also worked on the Mayor of London’s charity and Guy's and St Thomas' Charity and was chairman of the 2009 Lord Mayor’s Appeal. But his most successful fundraising was £10 million for the Evelina Children's Hospital Appeal. Your Lordships will have noticed how very passionate he is about education and health, and I am quite sure that it is on those subjects that we will hear very much more from him.
I congratulate my noble friend Lord Willis on his groundhog day speech. He explained with great cogency and passion the point that he makes about the financing of student support for 16 to 18s. I welcome the statement on the EMA replacement and I do not believe that it was a U-turn, as some are saying. Some £110 million was put aside immediately the abolition of the EMA as it stood was announced. Simon Hughes was commissioned to work out how to target that money better, and he has been working on it for months. I do not believe that the EMA had been well targeted. Even Labour acknowledged that it had planned to restructure 16 to 19 financial support anyway in 2013 once participation became compulsory up to 17 and, two years later, 18. It also planned to use the EMA as a replacement for child benefit for 16 to 19 year-olds. I welcome the fact that the poorest students will be better off under this more targeted system and that schools and colleges, which know their students’ needs better than any centralised system, will be charged with distributing the enhanced discretionary funds.
As to the groups included in roughly the 1,200 of the poorest young people who will get a bursary as of right, can the Minister tell me whether they include asylum seekers?
Transport was cited as the greatest issue of concern by many students and colleges. It could be a real attraction if colleges were allowed to guarantee that free transport would be provided to students within their catchment area. Can the Minister confirm that they will be able to do this under the new arrangements?
Colleges need information as soon as possible about how the new system will work so that they can communicate with their students and potential students, who are, at this moment, considering whether they can afford to stay on. Can the Minister say how soon colleges will get the details of the operation of the new system? The consultation is out now but when will the conclusions be drawn?
Although financial support is very important, I should like to take the question posed by the noble Lord, Lord Willis, somewhat wider to include curriculum and careers advice, partly because I could not have addressed the financial issues as well as he did. Two recent reports have commented on these two issues—the review of vocational education by Alison Wolf and the recent report from Demos and the Private Equity Foundation, called The Forgotten Half, about the 50 per cent of young people who do not go to university. Both reports have important points for our consideration in this debate.
There are to be changes to careers advice with the establishment of an all-age service. Schools will have a duty to provide independent advice and Connexions will be scrapped. I am concerned that there will be a 12-month gap between the scrapping of the one and the establishment of the other—a hole through which some young people could fall. Can the Minister say how the Government will avoid this?
Careers advice should be high quality, comprehensive and timely. I think that there should be an entitlement to careers advice which is available face to face and not just online. Alternative paths to work and work with training need to be explained to these young people. Advice about apprenticeships must be given to all young people as of right. An entitlement to this was dropped from an earlier Bill under the previous Government. Do this Government plan to reinstate it?
Work is currently being done on the curriculum. Schools are very affected by the various ways in which they are measured. The latest of these is the EBac. I have concerns in relation to young people aged from 14 to 19 who are disengaged and are more likely to be engaged by a more practical and vocational curriculum. I do not want to see schools making it impossible for young people to choose a combination of courses to suit their needs. Of course, it is important to provide a foundation in core subjects but my view is that the EBac categories are too narrow and will suit only the half that go to college or university. Yes, all our children should study a humanity, a language and a science subject, as well as English and maths, but is it really necessary for them to take a GCSE in all of them? They will already have had eight years of all those subjects before they start on their GCSE courses as part of the school curriculum from age five to 13, so it can hardly be said that they have studied no history if they do not take history GCSE.
The university technical colleges have the right idea. They offer technical training opportunities for 11 to 19 year-olds. Today we are considering 16 to 18 year-olds, in particular, but it is important that they have had the right range of opportunities further down the school.
However, there is no doubt that vocational education requires revision. Alison Wolf quoted it to be,
“sclerotic, expensive, centralised and over-detailed”.
We need to look at the courses that she described as dead-end courses which lead nowhere and which are sometimes currently ascribed as equivalent to several GCSEs. Crucially, we need to listen to employers as to what they need from young people starting work, and it is clearly not just GCSEs that they are looking for. The CBI welcomed Wolf’s focus on English and maths, ensuring that young people continue to study them beyond 16 if they have not achieved a grade C GCSE. I agree with that proposal, but do the Government plan to accept it, too?
The Demos report also focuses on the importance of literacy and numeracy, but it adds three additional “proven labour market premiums” which, it says, provide the best insurance for young people against becoming NEETs. They are: a character premium, which is basically acquisition of the soft or wider skills; a technical premium, essentially a level 3 qualification; and a graduate premium. It calculates that, if you have all five, you stand the best chance of progressing in the labour market. It is on the soft skills that I want to speak finally.
There are many young people who do not get from their home environment communication skills, problem-solving, punctuality, perseverance, conscientiousness, the ability to work in a team, social and emotional maturity, drive and energy, initiative, ability to adapt to change, the skills needed to learn new things et cetera—all the things that make a successful employee. It is important for those young people that schools and colleges provide opportunities to develop all those. This is where PSHE comes in, as well as courses such as the Certificate of Personal Effectiveness, Wider Key Skills and other qualifications developed by ASDAN and other providers. Last week, I was at a function where employers told how, when they interview, they look for young people with these skills as well as the appropriate academic qualifications. That is why these courses are as important to making a child life-ready and work-ready as English, maths et cetera. That is why I would like reassurance from the Minister that the department will discriminate carefully between these high-quality courses and qualifications and those dead-end, over-equivalenced courses that Alison Wolf was talking about. Schools must continue to be credited for these qualifications in the league tables. If we are dedicated to improving social mobility in this country, and this Government are, we must ensure that the most disadvantaged young people, as they approach the end of their compulsory schooling, are given the skills for life that the more advantaged children learn at home.
Lord Watson of Invergowrie
My Lords, I congratulate the noble Lord, Lord Willis of Knaresborough, on securing this debate, not least because it took him nine months and I admire his perseverance. I also join others in congratulating the noble Lord, Lord Fink, on an admirable maiden speech. I am sure that he will make a considerable contribution to the workings of this House and I look forward to witnessing it.
The Government tell us that the EMA has to go because it has not proved its worth. Yet research by the 157 Group has shown that, in some colleges, the EMA has boosted attendance and course completion to more than 90 per cent. Students at Lambeth College in south London who receive the EMA are 13 per cent more likely to pass their courses than those who do not.
In its report assessing the success of the EMA, the Institute for Fiscal Studies found that it resulted in a 20 per cent increase in participation among females and 14 per cent among males. A DfES survey found that the figure was, across the board, some 12 per cent. Surely a policy that increases participation among those groups most prone to chronic underachievement by somewhere in the 12 to 20 per cent range is a successful one, and should be built upon and not destroyed.
Further, given already or soon-to-be implemented cuts to benefits elsewhere, not least in housing benefit, the impact of EMA would increase if it remained in place. Families are surely far more likely to be comfortable about a 16 to 18 year-old staying in full-time education with EMA.
As other noble Lords have said, Mr Gove says that EMA has too much “dead weight” and points to a lack of firm evidence that it makes pupils stay on. However, official government figures estimate that an extra 10 to 12 per cent of pupils stay on. Surely that is a significant number. We are talking about some 60,000 young people who would in the main be unqualified, unemployed and educational drop-outs otherwise. How can something that benefits at least 60,000 youngsters be worth doing away with? I am well aware of the counter-argument, that there are those who benefit from it who do not really need it. But it is a universal benefit like many others. It is a safety net for the less well-off and should not be done away with simply because there are some people who receive it who do not benefit from it. The noble Lord, Lord Willis, highlighted the winter fuel allowance which, like him, I have received. I frankly question its value in the grander scheme of things.
The Government seem to have reacted in some small measure to the widespread criticism of this savage cut by announcing last week an additional £180 million to help students from the poorest families continue with their education. That is to be welcomed because it is being targeted at those students most in need, including those in care and those with disabilities. Yet it means simply that the Government are cutting the resources associated with the EMA by 60 per cent rather than 90 per cent, leaving the support to enable young people to stay on at school or college still far short of the £575 million provided through EMA.
We hear that of the £180 million, £110 million is to come from what is described as a contingency fund within the DfES while the source of the remaining £70 million is not clear. It is simply entitled Treasury funds. I am sure that I would not be alone in welcoming clarification of where that additional funding will come from. I would particularly like confirmation that it will not come from other 16 to 19 budgets within the DfES. Now we learn that replacing the scheme will actually cost far more than the additional £180 million announced. Information received by the Opposition from the House of Commons Library reveals that the Government may have to find up to £130 million more to fund a promise to maintain EMA for students who started two-year college courses last autumn and who will receive weekly payments of at least £20 until the end of the next academic year. Because Mr Gove has promised to protect only those on the top rate of £30 a week—a payment that will be cut to £20—it is expected to cost around £130 million on top of the £180 million bursary fund that he announced.
As has also been mentioned, the Secretary of State can apparently anticipate a robust knock on his door from none other than his friend, London’s mayor, who is concerned about a disproportionate impact of withdrawing EMA on young people in the capital. “I don't think we have seen the end of this story”, Mr Johnson told the BBC “Question Time” audience last week. On this point, if on no other, we can only hope that the mayor is correct.
Colleges have welcomed the Secretary of State’s intention to entrust them with maximum discretion to determine how the additional resources are to be spent, as there will be freedom to use them to fund transport, food and learning materials. Following the Secretary of State’s original announcement of the ending of EMA, colleges and students expressed great concern about transport costs, which an Association of Colleges survey had identified as a key barrier to students continuing with their courses. Ninety four per cent of colleges have stated that abolishing the EMA will affect students’ ability to travel to and from college.
Since 2000, colleges and schools have been able to claim so-called entitlement funding, specifically for activities which support a broad education for young people, resources that they use to pay for tutorials, additional courses and so-called enrichment activities such as sport and the creative arts. Colleges use the entitlement funding to directly support student achievement in their chosen courses and qualifications and to help them progress into higher education or employment. The Government’s 16 to 19 funding statement announced a massive cut in entitlement funding from 114 hours to 30 hours, as well as cutting the maximum funding for each student by 10 per cent.
A number of colleges use their entitlement funding to assist students with their applications to university, particularly those groups who are less well represented in higher education. Many activities supported by enrichment funding provide students with additional information for UCAS personal statements which, as I am sure noble Lords are aware, are becoming increasingly important for acceptance into Russell group universities. Some colleges use the funding to provide additional one-to-one coaching for students to prepare them for Oxbridge interviews—the kind of support that students at private schools receive as a matter of course, with long-established outcomes. The Government should reconsider this cut, given the impact it will have on disadvantaged young people in preparing them for an enriching life of post-school education or employment.
One major benefit to flow from devolved government to Northern Ireland, Scotland and Wales is of course that young people in those parts of the UK will continue to receive EMA. That means that, unlike their counterparts in England, those school pupils and college students most in need will not be forced to leave education earlier than they or their parents would wish. Another factor affecting young people in education, along with those who are older, in one part of the UK differently from those in others is the so-called 16-hour rule. Officially, the rule applies across the UK. In response to a parliamentary Question which I submitted last year, Lord Freud replied:
“All Jobcentre … staff are given the same appropriate advice and guidance relating to full-time and part-time study to ensure that the rules are followed consistently”.—[Official Report, 9/12/10; col. WA 80.]
That may be the theory but it is not the practice. What is required most of all on the 16-hour rule is flexibility in the benefits system and the relaxation of its strict application. The previous Government had announced their intention to trial a relaxation of the 16-hour rule in certain areas. This Government have chosen not to do so.
Last year, Scotland’s Colleges—the equivalent of the Association of Colleges north of the border—published a report entitled Back to Work, which concluded that where the 16-hour rule is implemented strictly it acts as a clear disincentive to study and therefore to make a meaningful return to the job market. Students forced to go part time rather than full time are delaying their potential entry into the workforce. Many students want to take up a full-time college place but cannot do so because if they do they will lose their benefits. Colleges would not advise students to come off benefits just to study full time if that meant they would be worse off. As a result, they study part time and claim benefits for longer.
It is not the actual government regulations but the interpretation of full-time education that are the problem. The deciding factor appears to be whether or not a course or qualification has been designated full time or part time by the learning provider. However, there can be flexibility as shown in the way that the regulations are interpreted in Northern Ireland, but a willingness to interpret the rule more sensibly is unfortunately lacking in other parts of the UK.
The benefits system in Northern Ireland is different, although the 16-hour rule still applies there, but education opportunities have been adapted to make studying on benefits possible. A student is classed as full-time for further education purposes if they attend a minimum of 15 hours a week for seven sessions over a 30-week period. This allows the college to receive funding to provide the learning, but students can still collect benefits, as they are available for work and the course is less than 16 hours a week. Why cannot this flexibility be extended across the UK so that all can benefit from it? A blanket lifting of the rule would be preferable but, if that is deemed unacceptable by the Government, I very much hope that there might be, at the very least, selective relaxation to cover areas of high unemployment.
Baroness Hughes of Stretford
My Lords, I, too, congratulate the noble Lord, Lord Willis, on securing this debate. It is an extremely important time to be talking about these issues. He has a reputation from the other place and from his earlier career of being a terrier on these issues, a real champion of young people in education. It is good to see him continuing that.
I also thank all Members for their contributions, particularly the noble Lord, Lord Fink, for his maiden speech. I was very pleased to hear that his priorities as a new Member of the House are the improvement of children’s health and education. They are very fine objectives and I very much look forward to hearing his contributions to future debates.
Among Members right across the House and among teachers, parents and others working with young people up and down the country, there is a growing concern about this generation of young people, particularly those aged 16 to 25. That concern, which in some ways is unintentional, is none the less the cumulative effect of many of the cuts being brought in by the Government and they are falling hardest on that age group. We have seen dramatic cuts in youth services, in Connexions, in services to address teenage pregnancy, NEETs and so on, limitations on the school curriculum, on sports, music and enrichment activities, tuition fees and rising unemployment for young people and for their families. In this context it is even more important that as many as possible of the subset of the 16 to 25 group, the 16 to 19 year-olds, can stay in education or training as long as possible. There are in fact a range of cuts that, taken together, make it more difficult for thousands of young people and they fall disproportionately on disadvantaged young people affecting their ability to stay on. We have seen the scrapping of the September guarantee, the abolition of the diploma entitlement, the abolition of the apprenticeship guarantee, mentioned by the noble Baroness, Lady Walmsley, and the abolition of the EMA. I want to touch briefly on the apprenticeship guarantee before talking about the EMA, as most Members have done.
The additional funding for more apprenticeship places for young people is very welcome, but I wonder whether the Minister understands that in this regard funding is the easy bit. From my experience in government, it is much more difficult to secure high-quality places, engaging employers and matching young people to those placements. The guarantee was designed to put the onus on local agencies and the providers to ensure that the apprenticeship placements were there and to give a guarantee to a young person. I am concerned that if this guarantee is abolished as the Education Bill proposes—the previous Government did not abolish it, they introduced it; the current Government are proposing to abolish it—then, despite the funding, we will not see a substantial increase in apprenticeships.
Baroness Walmsley
The noble Baroness has slightly misunderstood what I said. It was the guarantee for information about apprenticeships that was dropped, not the guarantee of an apprenticeship if suitably qualified.
Baroness Hughes of Stretford
I thank the noble Baroness for her clarification but my point remains valid: there is a proposal to abolish the guarantee itself, which is arguably more important. What are the Government going to do to ensure that there is a sufficient supply of good placements?
Secondly, on the abolition of EMAs, despite repeated promises from the Prime Minister and the Secretary of State before the election that they would not abolish them, and despite the independent evaluation from the IFS, to which my noble friend Lord Watson referred, that EMAs increased participation and boosted grades, even if you accept the Government’s dead weight costs, which are dubious, the cost of EMAs is still outweighed by the financial gain of getting young people into training. Despite all this evidence, there was a rush, without consultation and without any alternative plan in place, to abolish them.
The bursary scheme that has now been announced after fierce public protest and the threat of legal action from students in the middle of courses is not only much reduced, with about a third of the previous level of funding, but also has a number of questions about it which I hope the Minister can clarify. First, on the guaranteed bursary of £12,000 for a tiny minority of the most vulnerable students—less than 2 per cent—the Secretary of State made much of the claim rehearsed by the noble Baroness, Lady Walmsley, that this is more than those students would have received under the EMA. It is more—it is 77p per week more. Does the Minister agree that it is only 77p more per week than those students would have received under the maximum EMA to which they would have been entitled?
Secondly, the Secretary of State also announced two other elements—a discretionary pot of the balance of £165 million for colleges to pay out, as well as transitional protection for those students already receiving EMAs to the end of the course. However, he did not make clear whether both of those elements are to be paid out of the £165 million that is left after the bursary for the vulnerable students. Can the Minister clarify this matter? Does he agree that the transitional protection for existing students at the level announced by the Secretary of State will come to about £130 million, as my noble friend said? Does that mean that there is a balance of only £35 million for the discretionary pot for colleges? They already receive £26 million, so if that is the case it is not much of an increase. If these two elements are not coming out of the discretionary pot, where is the £130 million for the transitional protection coming from and what other services have been cut to pay for it?
Thirdly, the Secretary of State claimed that the poorest students on free school meals would receive more than they do at present, with a potential under the discretionary pot scheme of £800 per annum. Does the Minister agree that with a household income of under £17,000, as the noble Lord, Lord Willis, identified, to qualify for free school meals, these students would be entitled now to the maximum of £1,170 of the EMA and that therefore, under this scheme, they would face a reduction of over £300 a year?
Fourthly, does the Minister agree that many thousands of young people, whose hard-up families have an income of more than the threshold of just under £17,000 for free school meals but less than the threshold of £21,800 for the maximum EMA—let alone the £30,800 to get any EMA at all—will not be guaranteed anything under this scheme and could end up with nothing?
Finally, as the IFS pointed out, after the proposed discretionary scheme—and this is a very important point, notwithstanding the limitations that we have already identified—young people will not know from their colleges whether they qualify for any support from the discretionary pot before they decide to apply for courses. My big concern is that, unless many young people from very hard-pressed families have some certainty that they will get some financial support, they may well not take the chance and sign up for the course.
The noble Lord, Lord Willis, has made an interesting suggestion of diverting child benefit to preserve a larger budget for EMA under the scheme proposed by the Government. I think there were any number of ways, with the right commitment, that the Government could have approached this differently, with careful consideration and a real attempt to keep the main benefits of the scheme for more of those who qualify. As it is, I feel that the Secretary of State acted very rashly and irresponsibly on this, reneged on those pre-election promises and created a great deal of uncertainty and potential hardship for many hundreds of thousands of young people.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, like other noble Lords, I congratulate my noble friend Lord Willis of Knaresborough on securing today’s debate and setting out the issues, which he did quite clearly. I know he cares passionately about supporting young people to continue their education, a passion that everyone here today obviously shares. I also congratulate my noble friend Lord Fink on his speech. He said, rather movingly, that he was taught to speak again after he had a brain tumour. We are all extremely glad that the noble Lord was taught to speak again and we hope that we hear him speak again on many occasions in your Lordships' House.
I shall try to respond to the main themes raised today. There were some specific questions which, if I may, I shall follow up if I do not respond to them all in the time that we have. Like the noble Baroness, Lady Hughes of Stretford, I want to start briefly by setting some of this in a broader context.
I start with the question of why 16 to 18 education matters. It matters for the economy because to compete internationally we need a well trained and well educated workforce. It matters financially for the young people concerned because better-qualified people earn more in their working lives. But, above all, it matters educationally because, regardless of any financial benefits, education is a good in itself. It enriches lives and opens the doors of opportunity. For all these reasons, this Government, like the previous one, are committed to reaching full participation in education, training or employment for all young people up to the age of 17 by 2013 and 18 by 2015.
In difficult financial circumstances we have secured funding for 1.6 million places for 16 to 18 year-olds in education or training, which includes 230,000 apprenticeship places, for 2011-12. Total funding for 16 to 18 participation in 2011-12 is over £7.5 billion, which is a record. I recognise that there are concerns, which have been perfectly fairly spelled out by the noble Baroness, Lady Hughes of Stretford, but overall it is important to emphasise that the commitment to full participation and the funding for 1.6 million places as well as the increase in the number of apprenticeship places—and I shall respond to the noble Baroness’s point on the guarantee—are all there. I do not pretend for one moment that this means that there will not be financial challenges for schools and sixth forms—there will be—but at a time when many other budgets are facing heavy cuts, it is a reflection of the priority we attach to 16 to 18 education.
We know we have challenges to overcome. Despite the best efforts of the previous Government, we have a wide gap in attainment between rich and poor. Half of our 16 year-olds fail to secure five decent GCSEs, including English and maths. As Professor Alison Wolf has shown in her recent report on vocational qualifications, too many of them, sadly, do not seem to be respected by employers and colleges.
I agree very much with my noble friend Lady Walmsley that it is important that we listen to employers. I also agree that some of the soft skills that she talked about—employees turning up on time, for example—are as important as some of the academic qualifications if they are going to get on in life. We also know that we have a group of 16 to 18 year-olds who are not in education, employment or training, although I am glad to say that in the last quarter the number of NEETs in that age group fell by 15,000.
What are we doing to raise standards and increase participation? We know that the biggest determinant of whether students stay on is their attainment at 16, and specifically whether they secure good GCSEs in subjects that universities and employers value. Therefore, we have introduced the pupil premium to try to tackle disadvantage from the earliest years and narrow the attainment gap. The funding for that will grow to £2.5 billion by 2014-15. We have announced a new focus on reading at age six; we have increased our emphasis on tackling under-performing schools; we have rolled out our academies programme; and we have introduced the English baccalaureate.
I take the point made by my noble friend Lady Walmsley about the disengaged. That is why we are also seeking to increase the number of studio schools, which I think can play an important part in engaging children who have not been turned on by what goes on in the classroom. By learning some practical skills—for example, how to lay a wall—they also learn about angles and measurements, so there are many benefits there too. We have announced a review of vocational qualifications and more funding for technical academies and UTCs. We have expanded the apprenticeships programme for 16 to 18 year-olds from 116,000 last year to 131,000 in 2010-11 and 133,000 next year. Given that we are dependent on employers to provide those apprenticeship places, we are not able to give a guarantee on their behalf. If employers will not make the places available, we cannot offer such a guarantee. However, I share my noble friend’s commitment to apprenticeships. I also agree with everything that she said about the importance of securing high-quality places, and we will need to work at that.
We have also switched more funding to tackle disadvantage post-16, building on the pupil premium. Therefore, within the overall budget of £7.5 billion that I mentioned, £770 million is being spent on supporting the education of disadvantaged 16 to 18 year-olds. That is £150 million more than would previously have been available to schools and colleges, and it is specifically for the education of the most disadvantaged 16 to 19 year-olds.
Perhaps I may say a few words to try to pick up the questions raised about the end of the education maintenance allowance and its replacement by the 16 to 19 bursary fund. Clearly, we want young people to stay on in education and training and not to be discouraged for financial reasons. The education maintenance allowance was used by the previous Government to provide an incentive for young people to stay on and I recognise that it led to an increase in overall participation. I do not accept the picture painted by my noble friend Lord Willis of Knaresborough and the noble Baroness, Lady Hughes of Stretford, about the research into the impact of the EMA. This was not research conveniently commissioned by the new Government; it was commissioned by the previous Government to be carried out by a number of different research bodies. It seems that it was found that some 10 per cent of those in receipt of the EMA said that they would not have participated without it, yet it was paid to almost 45 per cent of young people at a cost of around £560 million. It is also the case that since it was introduced—and I recognise the argument that it was an incentive payment when it was introduced—we have moved further and further towards compulsory participation post-16. Therefore, the case for an incentive payment is, I think, reduced.
Rather than paying nearly half of all students an incentive to stay in learning when it is becoming compulsory, we argue that we should concentrate our resources on removing the barriers to learning which are faced by the poorest. Therefore, last week we set out our proposals. We have consulted extensively to ensure that we support those most in need, and we are grateful for the work that Mr Simon Hughes has done in helping us to refine our proposals. In response to the question raised by my noble friend Lord Willis of Knaresborough and the noble Lord, Lord Watson of Invergowrie, I can confirm that there is new money from reserves at the Treasury exactly as was described.
As a result of that additional funding and the funding that we have found from within the DfE budget, 12,000 students—those in care, care leavers and those receiving income support—should receive an annual bursary of £1,200 if they stay on in education. That is only slightly more, I accept, than they received under the EMA. Asylum seekers are not caught by the category of entitlement that my noble friend Lady Walmsley raised, but they would be eligible for support through the discretionary fund which schools and colleges would have at their disposal.
We want those most in need who are currently in receipt of the EMA to be protected. All those young people who began courses in 2009-10 and who were given a guarantee by the previous Government that they would receive the EMA will still receive their weekly payments. Young people who started courses in 2010-11 and received the maximum weekly payment of £30 should now receive weekly payments of at least £20 until the end of the next academic year. In addition, those students will be eligible for support from the new post-16 bursary scheme. That can help to cover the costs of travel, food and equipment, particularly for poorer students and those in rural areas where transport is an issue. One hundred and eighty million pounds will be available for that bursary fund.
Reference was made to the £800 figure in relation to those eligible for free school meals. That was intended as an illustrative figure, to demonstrate the amount of the money, rather than saying that those in receipt of free school meals would be eligible for £800.
Baroness Hughes of Stretford
Can I be absolutely clear? The Minister said that money has come from the Treasury reserves as well. Is the £130 for transitional protection coming from the Treasury? In other words, will the £180 million earmarked for the whole scheme be used exclusively for the two purposes of the bursary scheme and a discretionary pot?
Lord Hill of Oareford
Because the figures are complicated and time is short, I am very happy to set out the position as clearly as I can subsequently. The contribution from the Treasury is to help to cover the steady state of the scheme, and the other costs will be found from within the department, but I will clarify that for the noble Baroness.
Schools and colleges will have the freedom to decide on the allocation of the bursary because, as my noble friend Lady Walmsley said, they are best placed to know the specific needs of their students. We are consulting on the scheme. That will take eight weeks. I know how important it is that young people know what is happening, but it is also important that there should be a consultation.
I am grateful to my noble friend Lord Willis for his ambitious and imaginative proposal. It is probably career-limiting for me to respond in detail to his point, but I know that it is a discussion that he will continue to pursue in his terrier-like way.
In these difficult economic times, we are trying to prioritise the reform and investment that we need, particularly for those aged 16 to 18. We want all children to have the chance to benefit from education or training post-16. We believe that our package of measures and reforms, starting with the pupil premium, working through school, increasing the number of apprenticeships, funding post-16—which has increased—and providing a targeted package of support for 16 to 18 year-olds, will help to bring that greater participation about.
House of Lords
Media: Ownership
Lord Dykes
To ask Her Majesty’s Government what conclusions they have drawn from the recent public consultation on the proposed acquisition of BSkyB by News Corporation.
Baroness Garden of Frognal
The Secretary of State is currently considering all the responses to the consultation and will make a statement after the Recess. He is following a full quasi-judicial process in a fair and even-handed way. It will be his decision. I am sure the noble Lord will appreciate that at this stage I can talk about the process but not the detail.
Lord Dykes
With thanks for that Answer, can I none the less suggest to the Minister that, since there are still very widespread and serious doubts about the non-UK-taxpaying Murdoch dynasty acquiring such extra media power over an already large empire in the UK, it is right that the only outcome here should be referral to the Competition Commission for a serious independent investigation?
Baroness Garden of Frognal
My Lords, the issues of competition and market power were ruled on by the EU Commission on 21 December 2010. I hear what my noble friend says, but the Secretary of State will have options at the end of the consultation: to accept the undertakings, to reject them and refer them to the Competition Commission, or to consult on a revised set of undertakings.
Lord Borrie
My Lords, is the Minister aware that, following the statement that was made on the consultation, I asked a question about how the independent directors of the new company would be appointed? In response to that question, I received a letter from the noble Baroness, Lady Rawlings, in which she said that,
“it is not important exactly how the independent directors are appointed providing that they are indeed independent”.
Is that answer not a bit disingenuous? Surely one wants to know how the independent directors are appointed to determine whether they are truly independent.
Baroness Garden of Frognal
I thank the noble Lord for that. The criteria for the independent directors are listed in great detail in the articles here, which set out the connections that they must not have and the sort of people they must be. They must not, for instance, have close family ties to the Murdochs, News Corp or their advisers. The details of the criteria that those people must meet are set out extensively in the memorandum.
Lord Fowler
My Lords, does this case not show that there is an urgent need to reform the process to which the Minister referred? The decision rests with the Secretary of State but in the past few months one Secretary of State has accepted the assurances of Mr Murdoch, while his predecessor said:
“I have declared war on Mr Murdoch and I think we are going to win”.
Would it not be better for everyone concerned for decisions in these media cases to be taken by politically independent bodies, which are able to judge what is the public interest?
Baroness Garden of Frognal
My Lords, a great degree of independence is built in to the decisions that are taken. My noble friend is absolutely right: it is the Secretary of State who will ultimately take the decision, but it will be based on wide-ranging consultation, and will have the agreement of Ofcom and the other bodies that regulate the media.
Lord Myners
My Lords, I am sure that the Secretary of State will come to regret the very unconventional route by which he has approached this, which has not exposed this very complicated but important matter to a full competition inquiry. However, if the Secretary of State persists in his plan, can he at least give an assurance that the independent directors will be truly independent, the shareholders will not be under any influence from Murdoch and, indeed, that the company will remain an independent company and not see its other shares acquired by a party sympathetic to Murdoch?
Baroness Garden of Frognal
My Lords, the independence of the shareholders and the fact that they will not all be members of the Murdoch family are written into the undertakings. The competition aspects were ruled on by the EU Commission, so at the moment issues of plurality rather than competition are to be discussed. However, if the Secretary of State has any misgivings, he can refer the matter to the Competition Commission.
Baroness Anelay of St Johns
My Lords, it is a rule of the House that for it to be in order only one person should be on their feet at one time. I am sure that noble Lords on all Benches wish to abide by that. I am aware that my noble friend Lord Fowler has recently spoken. Perhaps we should hear from the noble Baroness, Lady Bonham-Carter, before we hear from the noble Lord, Lord Grade, unless another Member of the House wishes to speak first.
Baroness Bonham-Carter of Yarnbury
My Lords, the Secretary of State said last week that the existing check on media plurality,
“may not be as robust as it should be”.
Does the Minister agree that in the upcoming communications Bill rules on media plurality and the merging of media companies should be strengthened?
Baroness Garden of Frognal
My noble friend asks another key question on this. Certainly, the Secretary of State has indicated that there is a potential weakness in media plurality. The forthcoming Bill will indeed provide an occasion to consider this again.
Baroness Jones of Whitchurch
My Lords, does the noble Baroness recognise the weight of opinion against the proposed acquisition? Not only does the latest opinion poll show that 64 per cent of the respondents think that it will give News Corporation too much power, all the media organisations are opposed to it, and virtually all media commentators are against it. Following the consultation, who actually is in favour of this acquisition?
Baroness Garden of Frognal
My Lords, my right honourable friend the Secretary of State has conducted this matter in a totally transparent way and has published all the documents that he could at the time that they could be published. It has been out to consultation and more than 40,000 responses have been received, most of them through an internet campaign. My right honourable friend is considering all those responses, after which he will make a statement. He has not gone into this with a closed mind; he is open to the views that will come in.
Lord Grade of Yarmouth
I have watched dealings between different Governments and News International for 30 years and wonder whether the Minister agrees with me that the process we are going through is one of the most transparent and independent that there has ever been. In reaching a final settlement, what guarantees will the Government seek on the commercial viability of Sky News as an independent entity?
Baroness Garden of Frognal
I thank my noble friend for that question. I do, indeed, agree with him. The guarantees of financial independence are underpinned by the carriage licensing for 10 years, which will guarantee funding and brand licensing for seven years. Those have to be approved by the Secretary of State. We have underwritings throughout this process to ensure that Sky will remain independent and financially viable.
Elections: Armed Forces
(13 years, 8 months ago)
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Lord Wills
To ask Her Majesty’s Government what measures they are taking to improve the timeliness of the dispatch and return of postal ballots for voters in the Armed Forces.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, building on the work done for the elections held in May 2010 by the noble Lord, Lord Wills, the Government have put in place an initiative to support the participation of members of the Armed Forces serving in Afghanistan who wish to vote in the referendum and elections on 5 May.
Lord Wills
My Lords, I am grateful to the Minister for that response about the referendum vote. I hope he will agree that the many service voters who want to vote by post in all elections should be enabled to do so. However, he will recognise that deployment in remote areas, particularly in conflict zones, can create serious problems with achieving the timely dispatch and return of postal votes. Can the Minister tell the House whether his Government have continued the work set in place by the previous Government and agree, with the Front Benches of both the Conservative and the Liberal Democratic parties when they were in opposition, to consult on options for addressing such problems with a view to bringing in any necessary legislation by 2012? If they have not set up such a consultation, why not and when will they do so? If they have been consulting, when did the consultation start and when will they be publishing the results?
Lord McNally
My Lords, we continue to build on the work initiated by the noble Lord. However, as he recognised, there are no simple solutions to the difficulty of servicemen voting in remote areas in battlefield conditions, et cetera, which is why we continue to advise servicemen to use proxy votes where possible as the most efficient way of being able to vote.
Lord Rennard
My Lords, does the Minister agree that what we really need is a slightly longer timetable for conducting our elections in this country, one that would allow a slightly greater time for people to register to vote, to apply for a postal vote and for postal votes to be dispatched and received? That would significantly benefit members of our Armed Forces serving overseas and enable them to participate to a greater degree in our elections.
Lord McNally
My Lords, there is a lot of common sense in what my noble friend says. My honourable friend Mark Harper is considering these issues and the Government will put forward proposals when he has reached conclusions with colleagues. However, as I say, I think there is a lot of sense in allowing more time for elections to be processed.
Lord Soley
Does the Minister accept that he did not actually answer the Question put by my noble friend Lord Wills? I know that there were several questions, but will he answer them and put them in the Library? One of the most important ones was whether the Government are consulting and, if so, when the consultation started and when it finished. I think an answer in the Library would be very helpful because it is a very important matter.
Lord McNally
I am sure it would be and I look forward to reading it. Whether we have followed exactly the consultations initiated by the noble Lord, Lord Wills, quite frankly I am not sure. Nevertheless, we are following all the initiatives that he brought in during that time and some new ones as well. I do not doubt that we want to see the military participating in elections, as did our predecessors. If that consultation is still going on somewhere, I will report it as the noble Lord requested. I assure the House that the various initiatives are still being pressed forward with due vigour.
Lord Roberts of Llandudno
My Lords, at the last general election, of the 10,000 troops in Afghanistan, only 500 were able to register a vote either by proxy or postal vote. This is totally unacceptable.
Furthermore, can we have some consistency in the length of time between, say, nine, 10 or 11 days for a nomination for a general election until polling day, and 25 days for others? Can we work very hard in the immediate future to make sure that we have the same length of time between nomination, close of nominations and polling day?
Lord McNally
My Lords, the call for consistency, which I think was also made by my noble friend Lord Rennard, is exactly the issue that Mr Mark Harper is looking at at the moment. As I said before, I think that there is a lot of sense in getting that kind of uniformity.
As to the turnout by troops serving in Afghanistan the last time, perhaps there were problems in getting to vote, but there is also a low propensity to vote among servicemen. That is something else that we are trying to address in terms of encouraging initiatives in the services by responsible members of each unit.
Lord Foulkes of Cumnock
My Lords, does the Minister not recall that in the Committee stage of the AV and constituency-gerrymandering Bill, this side tabled amendments that would have extended the time for the distribution and return of ballot papers by servicemen and others? However, those amendments were rejected by the Minister—if he was there; he might have been ill at the time, but they were certainly rejected by the Government—and by the noble Lord, Lord Rennard. Is that not the case?
Lord McNally
I do not remember us discussing the Bill that he described. A word in the noble Lord’s description was wrong. As I have said twice in response, these matters are being looked at, and the Government will bring forward proposals. As for the AV and constituency boundaries Bill, the noble Lord lost on most issues, as he will remember.
Baroness Royall of Blaisdon
My Lords, I understand that the noble Lord and his department are consulting on these issues. Can he guarantee that a new system will be in place at the time of the next election, be it 2014 or 2015, because on all Benches we naturally wish to ensure that our service men and women have a greater opportunity to vote, if they wish to?
Lord McNally
My Lords, this is certainly the Government’s intention. As the noble Baroness will know, we are in the process of carrying through a whole raft of constitutional reforms, and I am quite sure that any proposals on this matter will be as successful as the proposals that have been carried, thus far.
Defence: Military Commitments
(13 years, 8 months ago)
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Lord Lee of Trafford
To ask Her Majesty’s Government what assessment they have made of the extent to which the resources available to the Ministry of Defence match the United Kingdom’s military commitments.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Major Matthew Collins and Lance Sergeant Mark Burgan, both from the 1st Battalion Irish Guards. My thoughts are also with the wounded, and I pay tribute to the courage and fortitude with which they face their rehabilitation.
The Government are fully committed to providing our Armed Forces with the resources needed to carry out operations, as has been demonstrated in Afghanistan and more recently in Libya. The strategic defence and security review, while addressing the imbalance in defence that we inherited from the previous Government, established the policy framework for our Armed Forces and the capabilities that they will need to meet future challenges and to achieve success on operations.
Lord Lee of Trafford
From these Benches, I join my noble friend’s tribute. In the light of today’s remarks by the Chief of the Air Staff, is it not clear that we have gone from overstretch to critical stretch, and that the defence cuts have been too draconian? Libya, of course, exemplifies the unexpected. Does not the nation expect that a Conservative-led coalition will put defence as a number one priority? Is not spending 2 per cent of GDP just too tight, as many of us have been saying?
Lord Astor of Hever
My Lords, the Government’s primary responsibility is to ensure national security. Without healthy finances, we cannot create the public services or the national security we need. The SDSR established the policy framework for the Armed Forces and the capabilities that they will need to meet future challenges. Events in Libya have proved how right we were to design adaptability into defence so that we are able to be flexible as strategic threats change. The outstanding work of our Armed Forces demonstrates that Britain remains a key player that is able to project power and influence on the world stage.
Lord Rosser
My Lords, from these Benches, we associate ourselves with the Minister’s words of tribute to Major Matthew Collins and Lance Sergeant Mark Burgan of the Irish Guards. We too offer our sincere condolences to their families and hope that their pain will be eased a little by the knowledge that, in the eyes of the nation as well as of this House, Major Collins and Lance Sergeant Burgan are brave and courageous heroes.
We now have commitments in Libya that were not anticipated or even contemplated in the recent rushed strategic defence and security review, which has not survived its first encounter with reality. As a result, we have aircraft—and certainly one naval vessel—in theatre that were due to be decommissioned. Is it not time for the validity and relevance of the SDSR to be reviewed in the light of what is happening in north Africa and the new commitments that we have taken on? Is it not also the case that, if the Government decide to extend further our operational commitments, they have a responsibility to provide the additional resources and not leave our Armed Forces even more stretched than ever, as appears to be the case from the comments this morning by the head of the Royal Air Force?
Lord Astor of Hever
My Lords, I agree with every word that the noble Lord said about the two brave soldiers from the Irish Guards.
The SDSR states explicitly the need for an adaptable posture to defend our interests in the world. As a result, we have structured and resourced our forces to give us flexibility to conduct operations such as the one in Libya. The SDSR correctly predicted that we would need to carry out civilian evacuations, and rightly assessed that we could mitigate capability gaps resulting from the SDSR through working with allies, overflight and basing rights. We are continuing to develop and refine the SDSR, but it will not be reopened. Finally, the additional costs of operations in Libya will be fully met from the reserve.
Lord Stirrup
My Lords, in his answer to a question on 15 February, the Minister said that the Ministry of Defence was planning on the basis of a flat real-terms budget after 2015. In his Statement on the defence review made in the other place on 19 October last year, the Prime Minister said that the outcome of the review—the 2020 structure—would be affordable only with real-terms growth in the defence budget after 2015. It seems that the Chief of the Air Staff was merely agreeing with the Prime Minister. Will the Minister therefore confirm that the Ministry of Defence is planning on a lower level of capability than that set out in the defence review, and will he tell us what that is?
Lord Astor of Hever
My Lords, the Prime Minister has been very clear that the defence budget will have to increase in real terms beyond the current spending review period to deliver the Future Force 2020 structure set out in the SDSR. Our aim over the next four years will be to put our forces in a position to reach that ambition, given real growth in the later part of the decade. However, we cannot guarantee what the budget will be under the next Government. Spending post-2015 will be a matter for a new spending review and the next SDSR. Until then, the department will need to plan carefully for those new commitments that will entail significant additional expenditure beyond 2015.
Lord West of Spithead
My Lords, it is quite clear how uncomfortable the Minister feels about giving these answers. When the Minister looks at events across the whole Middle East, the ratcheting up of tension off the Falklands with statements made about oil prospecting, tension in Korea and the ongoing war in Afghanistan, is he really saying that the NSC will not put its slide rule over the strategic defence and security review? Everything that has happened must mean that there have to be changes. I cannot believe that this will not be looked at. Is the Minister saying that this will not be looked at by the NSC?
Lord Astor of Hever
My Lords, of course we all want more money for defence. However, if we have financial difficulties in the MoD, we know where they came from. We went 12 years without a proper defence review. We are spending £120 million every day just to pay off the interest on the previous Government's debt. Every department must make its own contribution to deficit reduction, and the MoD is no exception. We have to put the economy on the right track for the sake of our national security, and across government we will do it as a team.
NHS Reform
(13 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the NHS operating framework 2011-12 set out that, to retain effective management capacity in all PCTs until their abolition in 2013, subject to parliamentary approval, PCTs should form clusters managed by single executive teams. This clustering arrangement will support PCTs in preparing for and transitioning functions to GP consortia.
Lord Dubs
My Lords, does the Minister not agree that too much reorganisation is more than the health service can stand? What on earth is the point of abolishing PCTs and re-establishing them in clusters two years before they are going to be abolished? It makes no sense at all unless the Government are going to change their mind about the main legislation.
Earl Howe
My Lords, when we went out to consultation on the White Paper last summer, concerns were raised that the transition could lead to too much disruption and a decline in the quality of services, as well as a loss of accountability, so the department decided to expand the approach to managed consolidation of PCT capacity and establish the clusters nationwide. That has been done already in London and the north-east and will pave the way for the NHS commissioning board to develop its roles. It will maintain accountability and grip during 2011-12 and the subsequent year, once strategic health authorities have been abolished. We are using existing legislative powers and it will help to oversee delivery in the coming two years.
Lord Kakkar
Is the Minister able to confirm that the future GP commissioning consortia will be constituted in such a way that they are obliged to conduct their responsibilities according to the Nolan principles?
Earl Howe
That is a very interesting question. GPs should already be subscribing to the Nolan principles. They are attributes which they would wish to demonstrate in their working lives anyway—having said which, it is the responsibility of every public body to ensure that it takes account of the Nolan principles. Consortia will be public bodies, ergo they will have to take account of the Nolan principles.
Baroness Jolly
Would my noble friend tell the House whether any staff have already been seconded to the pathfinder commissioning consortia, as a result of the clustering of the PCTs?
Earl Howe
We are assigning particular staff to pathfinder consortia. Those staff will remain within the PCT clusters. They will not transfer officially to the consortia because the consortia are not officially in existence yet. The point here is to have staff who are dedicated to supporting the emerging consortia over the next few months. This is already in train.
Baroness Thornton
My Lords, given the progress that has already been made in dismantling the PCTs and the strategic health authorities ahead of legislation, and the millions given to GP consortia to establish their role as commissioners, are the Government not in danger of pre-legislative implementation? Does it not beg the question as to where the role for pre-legislative scrutiny, or indeed any meaningful scrutiny in the House, might be on the matter? Will the Minister assure the House that, when we eventually receive the Health and Social Care Bill, reorganisation will not have progressed beyond the point of no return?
Earl Howe
My Lords, the noble Baroness will know that her own party’s plans included a 30 per cent reduction in administrative and managerial costs throughout the health service. We agree with that and we have got on with it. It is right that, when a Government come in and announce their intentions, as we did, expectations should be managed, as we are doing, and uncertainties should be allayed. The way to do that is to get on with the process.
Baroness Finlay of Llandaff
Can the Minister tell us how the clinical governance arrangements in primary care will be safeguarded during a time of transition, particularly because clinical decision-making can be adversely affected when people are concentrating on many management restructures?
Earl Howe
My Lords, we are clear that the essential functions of the primary care trusts should continue. That includes monitoring clinical governance within primary care. Having said that, I am sure that the noble Baroness will agree that clinical governance in the primary care context has not been all that it might be, which is why we believe that the new arrangements will considerably strengthen that governance.
Lord Naseby
My Lords, does my noble friend agree that it was common knowledge that PCTs needed reorganising because they were not meeting patient needs? Furthermore, doctors themselves found that the PCTs were getting in the way of treating their patients properly. Frankly, had not PCTs also created a huge bureaucracy, so that money was being soaked up in bureaucracy rather than being used for patient care?
Earl Howe
I agree with every word my noble friend said. It is illustrative of the truth of his remarks that, in the final year of the Labour Government, the administrative costs of the NHS rose by no less than £220 million. The rise in administrative costs was exponential. My noble friend is right: at the moment we largely have an NHS that is managerially and administratively led, rather than clinically led. We want to reverse that balance.
Baroness Farrington of Ribbleton
Will the Minister give the House two assurances? One is that the Government have done nothing that is not legal in anticipation of the Health and Social Care Bill being passed. Secondly, although he may not have the figures with him, what are the relative administrative costs of private healthcare providers and the NHS?
Coinage (Measurement) Bill
Export Control (Amendment) (No. 2) Order 2011
Baroness Wilcox
That the orders and regulations laid before the House on 16 February, 1 March and 2 March be approved.
Relevant documents: 17th and 18th Reports from the Joint Committee on Statutory Instruments and 24th Report from the Merits Committee. Considered in Grand Committee on 29 March.
Licensing Act 2003 (Royal Wedding Licensing Hours) Order 2011
(13 years, 8 months ago)
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Baroness Verma
That the draft orders laid before the House on 9 and 14 February be approved.
Relevant documents: 16th and 17th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 29 March.
Public Bodies Bill [HL]
(13 years, 8 months ago)
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17:16 - Division on Amendment 65 - Ayes: 199 / Noes: 212 - Amendment 65 disagreed.
18:38 - Division on Amendment 69 - Ayes: 189 / Noes: 206 - Amendment 69 disagreed.
18:53 - Division on Amendment 71 - Ayes: 158 / Noes: 218 - Amendment 71 disagreed.
Lord Taylor of Holbeach
“(1) A Minister may make an order under sections 1 to 5 only if the Minister considers that the order serves the purpose of improving the exercise of public functions, having regard to—(a) efficiency,(b) effectiveness,(c) economy, and(d) securing appropriate accountability to Ministers.”
Lord Taylor of Holbeach
My Lords, government Amendments 60A, 69A and 69B in this group are an important contribution to the Bill. They are designed to respond to the criticism of the Delegated Powers Committee that the Bill as drafted did not sufficiently define the purpose for which orders might be brought forward. In challenging the Government to provide such purpose, the committee sought a safeguard against the abuse of the powers that the Bill would grant to Ministers. I am happy to be able to respond to that challenge.
Amendment 60A establishes a purpose for the use of the main order-making powers of the Bill by amending Clause 8. If the amendment is accepted, Ministers will be able to make an order only if they consider that it,
“serves the purpose of improving the exercise of public functions”.
In making that assessment, a Minister would be required to have regard to the matters listed in paragraphs (a) to (d) of the amendment.
While I appreciate that the purpose as defined in Amendment 60A is relatively broad, I trust that noble Lords will appreciate why this is the case. During the numerous debates in Committee and on Report on the bodies listed in the Bill, the Government have demonstrated their intent to take forward a wide range of reforms. These include the cessation of unnecessary functions and bodies, the mergers of bodies to improve efficiency and the delivery of some functions outside the state sector, including through charities. What links these otherwise disparate reforms is the Government’s clear imperative to create a rationalised public bodies landscape in which necessary functions are delivered in an appropriate and effective manner. The purpose of Amendment 60A is to articulate this goal and to ensure that an order cannot be brought forward for a purpose outside the intended scope of the Bill as debated fully in Parliament.
Amendment 61ZA, tabled by my noble friend Lord Maclennan of Rogart, would require that Ministers could bring forward an order only if they were satisfied that it met one of the objectives in subsection (1). I am not able to support this amendment because, as I have described, there is a single overarching objective in that subsection. However, I can assure my noble friend that Ministers will be required to have regard to each of the matters listed in paragraphs (a) to (d) of the subsection when making an order.
Amendment 60B, tabled by my noble friend Lord Phillips of Sudbury, would remove efficiency from the list of matters to which a Minister must have regard when considering whether an order would meet the purpose specified in Amendment 60A. I understand the noble Lord’s argument that, in practice, efficiency and economy are closely linked. None the less, the Government envisage circumstances in which an order might increase efficiency in the exercise of functions while not producing a significant economy. For example, the merger of the Pensions Ombudsman and the ombudsman for the board of the Pension Protection Fund will not produce a significant cost saving, as the bodies already to all intents and purposes operate as a single entity. However, their formal merger in statute will support a more efficient public bodies landscape by streamlining the legislative basis for their retained functions.
Amendments 69A and 69B provide a mechanism through which the Government would be held accountable for meeting the requirement in Amendment 60A. They add a requirement to the procedure set out in Clause 11 that will require the Explanatory Note accompanying any order to explain why and how the Minister considers the order to meet the purpose described in Amendment 60A. I hope that these amendments will assist the committees of both Houses in considering whether the orders made under this Bill fit the criteria that the Bill now describes.
Amendment 60AB has been tabled by my noble friend Lord Newton of Braintree. I am afraid to say that my noble friend is not very well and cannot be with us today, but I hope that the House will excuse me if I address the issues that he raised because I am sure that he wants to know the Government’s reactions to his amendment. The amendment’s intentions are laudable and, as the noble Lord pointed out in Committee, at the heart of the coalition Government’s approach. The amendment would add fairness, openness, transparency and justice to the list of matters to be considered under Clause 8(1). I remain unable to support the amendment’s inclusion in the Bill simply because we believe that it would add an additional and, for the purpose of legislation, quite abstract evidential burden.
Baroness Hayter of Kentish Town
My Lords, I start by paying tribute to the Minister, because this Bill has improved enormously since Second Reading. We have obviously lost Clause 11 and Schedule 7. I think that we might have achieved what my earlier amendments in Committee and on Report sought to achieve: namely, that in using these powers in the Bill the Minister should have regard to the purpose for which any bodies that are going to be abolished or changed were created in statute. I therefore very much welcome government Amendment 60A, which lays out that powers may be used only,
“if the Minister considers that the order serves the purpose of improving the exercise of public functions”.
However, perhaps there should be a couple more tweaks. Amendment 60AA, the first of the two amendments in my name, might appear to be about drafting, but its intention is to make it clear that the “public functions” that are to be improved should relate to the bodies that are going to be covered in those orders. That might be the case, but I seek a little more assurance about what is in the Bill, otherwise it is not clear; it could mean any “public functions” of a government or anything else. I think the purpose is meant to be the purpose of the bodies that are being merged or amended or whose funding is being changed.
Amendment 60C would require the Minister to have regard to,
“the aims and objectives of the body where these are specified in legislation”.
I have reiterated a number of times that I do not believe that every body must exist for all times in the same form. In the words of the legal draftsmen, I think it concerns “having regard to” rather than being an essential part of what the Government are doing. Will the Minister therefore confirm whether what I regard as the objective of “having regard to” really is covered by the words “public function”? I shall give a couple of illustrations, to which perhaps the Minister could respond. First, something of the overall purpose of a body—for example, the Marine Management Organisation—could, if it is not considered properly or given regard to, be undermined by a change in funding. The Minister will be pleased to know that I have no complaints about it being in Schedule 4, but unless my Amendment 60A is accepted it would seem to be quite legitimate for its funding to be taken over by, for example, an oil company that was intent on deep-water drilling, since the Minister would not be required to consider the wider objectives of that body. Provided there had been consultation, the Minister could do what he will without regard to the original purpose and objectives for which that body was created.
Secondly, Consumer Focus has statutory powers to demand information across all sectors of the economy. Is that a public function? If not, again there is nothing in the Bill to ensure that those statutory powers remain. Thirdly, a duty is placed on Consumer Focus to promote sustainable patterns of consumption, an area of growing importance given the Government’s targets on carbon reduction. Noble Lords will be well aware of the work done by Consumer Focus—for example, on smart metering and the Green Deal. Again, is that duty a public function? If not, it would need Amendment 60C to protect it. Fourthly, does the statutory duty of Passenger Focus to represent the interests of the travelling public count as a public function?
Finally, I am pleased that, after some hesitation, Ofcom has agreed to its communications consumer panel continuing until at least April 2012. However, the uncertainty that surrounded its future for many months, and the consequent risk of an advocacy gap for consumers, shows how important it is that during the passage of the Bill, but also when it becomes law, there should be no weakening of vital protections for consumers. I hope that the new formulation will ensure that there is never a lacuna between the ending of one body and the start-up of its functions elsewhere. Will the Minister give those assurances and consider, particularly on funding, whether certain things could be retained without having regard to the objectives set down in statute? I beg to move.
Lord Soley
My Lords, I will speak to Amendment 60A. I am a member of the Delegated Powers and Regulatory Reform Committee, which has given considerable thought to this. However, I speak for myself and not the committee—as is always the case, of course.
I remind the House that the committee’s 11th and 12th reports are in the Vote Office now. Paragraph 12 in the 11th report states:
“If these expansive powers are to be delegated by Parliament to Ministers, it is important that, as a minimum, the general purposes for which Parliament expects the powers to be used should be set out on the face of the Bill, and this is not currently the case. The Committee therefore concludes that, as they stand, clauses 1 to 5 remain inappropriate delegations of legislative power”.
Quite rightly, the Minister has indicated that that is what Amendment 60A seeks to address. I am sure that he has put his usual effort into it, because I agree very much with my noble friend Lady Hayter that the Minister has gone a long way to improving this Bill—not least with the sunset clause, as the Delegated Powers and Regulatory Reform Committee recommended, which is a very important move. Indeed, I suspect that if the Minister had control of this Bill from the beginning, it might not have been such a mess in the first place. He must take some credit for that. Whether that helps his career or not is another matter, but I am afraid I cannot handle everything from here.
The amendment still deals with the issues under which the Minister may make an order. It refers to these fascinating words:
“efficiency … effectiveness … economy, and … securing appropriate accountability to Ministers”.
I always wonder how courts cope with things like this. Presumably if a body, an organisation, or an individual for that matter, chose to challenge a decision, it would first have to show that it was focusing on one of these issues. Then, if the court were asked to adjudicate, it would have to adjudicate on that basis.
This is where we come to the second issue. In its 12th report—the latest one that came out the other day—the Delegated Powers and Regulatory Reform Committee says in paragraph 8:
“It is for the House to consider whether Amendment 60A provides an effective indication of the purposes for which Parliament will expect Ministers to use their very broad powers under clauses 1 to 5”.
I would like a little more from the Minister on that. I am not sure how anyone is to interpret the phrase:
“improving the exercise of public functions”,
and,
“efficiency … effectiveness … economy, and … securing appropriate accountability”,
without either giving up in the face of a stronger government position or challenging it in court. I do not think that I am not alone in having concerns over many years, and over many Governments, about this increasingly blurred area between what Parliament says and means and the courts having to interpret it, which gets harder by the day.
The phrase,
“improving the exercise of public functions”
could be used in almost any circumstance. You could put it into almost any Bill, stand by it and say, “This is what the Government have decided and we will now have the powers delegated to us to carry it out in the way we think fit”. We should remember that when we delegate powers in this way, we are handing very broad powers to Ministers, which was the issue that concerned the committee. I would also argue that these powers are not clearly defined, so I would like a little more explanation from the Government. Indeed, I wonder where the words,
“improving the exercise of public functions”,
came from. I have a sneaking suspicion that, having read the 11th report, the Minister or his staff decided that they had to come up with something better. Since there is nothing in the Bill, the best they could manage to come up with is this phrase. Again, it could appear in almost any Bill, but if we go down this road we will start producing Bills that will hand over even more power to the courts to interpret. It is a bit late in the day, but I wonder whether the House is really happy about Ministers having this much power delegated to them in increasingly difficult areas of definition.
Lord Phillips of Sudbury
My Lords, I shall speak to Amendment 60B. I cannot resist following up the compliments of the noble Baroness, Lady Hayter, and the noble Lord, Lord Soley, but when I recall that my noble friend Lord Taylor comes from Holbeach, he is now known for ever in my mind as the “Lincolnshire poacher” because he is the man who took the wretched Schedule 7 right out of the Bill. I thank him for that.
My amendment is designed to try to make the addition to the Bill proposed by the noble Lord, Lord Taylor, a little more manageable for the user, if I can put it that way—and I am not thinking of the judges. My noble friend anticipated what I might say by giving the example of two pensions bodies for which he felt the proposal might be efficient but not economical. He studiously avoided referring to the other epithet to be found in his amendment: “effectiveness”. My claim is that “effectiveness” covers precisely the point that he is seeking to maintain.
I am concerned about the duplication created by the words “efficiency” and “economy”. Indeed, I looked up all three words in the dictionary, and “efficiency” is part of the meaning of “effectiveness”. Given that the law of the land is that Parliament does nothing in vain, I wonder whether we are not creating a problem in the repetitive nature of “efficiency, effectiveness and economy”. Instead of eliminating “efficiency”, I suppose I could have eliminated “economy”, but I feel strongly that this is a bit like saying of the Minister that he is strong and powerful and effective. Someone reading those attributes might say, “Well, it is the sheer muscle power that must rule the roost in that description of his virtues”. What concerns me a little is that the same sort of approach may be taken not by a court but by a Minister himself or herself: namely, that efficiency and economy are the overriding requirements. In fact, I believe that effectiveness is always the most important virtue of the three. Effectiveness surely goes to the achievement of the purposes to which the effectiveness relates. You can be as economical and efficient as you like, but effectiveness is key.
I shall not labour the point, but I would like the Minister to consider what I have said about the example that he gave and, if he can—here I challenge him—to come up with an instance in which the elimination at Third Reading of the word “efficiency” or, if he prefers, “economy”, would in any way encumber a Minister in what he or she has to do under this very important clause. I beg to move.
The Lord Speaker (Baroness Hayman)
It might be of assistance to the House if the noble Lord would choose whether to move his amendment at the appropriate point. At the moment we are still considering Amendment 60AA, moved by the noble Baroness, Lady Hayter, as an amendment to Amendment 60A.
Lord Woolf
My Lords, I will intervene briefly on Amendment 60A to add to the paeans of praise from other noble Lords on the way that the Minister has promoted the Bill. I was deeply concerned about the way that it was originally drafted, not least from the point of view of many judicial or quasi-judicial bodies that could have come to a summary end if amendments had not been made. I hope that this is not misunderstood but the Minister has showed exemplary understanding of the concerns expressed on all sides of the House. I know that the noble Lord, Lord Phillips, was not concerned for the judiciary but perhaps I may put myself in a different category: I was concerned for the judiciary as it was. The Bill is now in immeasurably better form. Other noble Lords have said this afternoon that they would like the Minister to amplify on this or that comment, but I see no practical difficulty in regard to the Bill as it now stands.
Lord Maclennan of Rogart
My Lords, I would like to add my words of appreciation to those that have already been made to my noble friend Lord Taylor of Holbeach. When a Bill of such complexity and importance is produced early in the lifetime of a Parliament, it is perhaps not entirely surprising that the drafting would give rise to great concern. That concern has been reflected in the reports of committees of this House. Those committees—the Constitution Committee and the Delegated Powers and Regulatory Reform Committee—are due warm appreciation because, although there was no prior, pre-legislative scrutiny, they have given it most careful scrutiny. I am particularly grateful for the 12th report from the Delegated Powers and Regulatory Reform Committee which set out the matter that is to some extent covered by Amendment 60A, moved by my noble friend Lord Taylor of Holbeach.
The Minister referred to Amendment 61ZA standing in my name and to which I draw the House’s attention. That was intended to respond to the observation of the Delegated Powers and Regulatory Reform Committee that certain matters set out in Clause 8 are simply ones to which the Minister must have regard or consider. It was a particular criticism based upon the wider concern that the purposes of the Bill and the powers to be used by Ministers had not been adequately set out, and that this was a power of delegation to be embodied in the Bill which needed greater justification in terms of its purposes. I am grateful for what the Minister has said. The language of his amendment appears designed to tackle this gap, at least in part. There are certain differences between the drafting of my amendment and Amendment 60A.
Lord Elton
It may be of some interest to noble Lords who have the same print of the Marshalled List as I have to know that Amendment 61ZA to which the noble Lord refers is the one immediately after the withdrawn Amendment 61. I think that the number, 61ZA, has not been printed.
Lord Maclennan of Rogart
I am very grateful to my noble friend Lord Elton for making that clear. There is a difference; in fact, there are at least two differences which may be of some significance, between government Amendment 60A and my Amendment 61AZ. The first is that in my proposal the Minister should be permitted to make an order only if he considered that,
“the order will achieve one or more of the objectives in subsection (1)”.
That embodies two points; first, that there should be an expectation on the part of the Minister that the power, “will achieve” one of the purposes; and, secondly, it does not require all the purposes to be achieved by the use of the power.
The Minister referred to my amendment as being in some ways less than his, in that it refers to,
“one or more of the objectives”,
whereas, in his amendment, the Minister has to consider,
“that the order serves the purpose of improving the exercise of public functions, having regard to—”.
It appears to me that the listing of,
“efficiency … effectiveness … economy, and … securing appropriate accountability to Ministers”,
is a collective, not a single test, or even one to be applied to two of these criteria. Therefore, I felt that the amendment that I had tabled was, in some ways, more realistic because it is quite often the case that effectiveness and economy are not necessarily the same and not necessarily both achievable by a measure of government. That is, it is desirable that they should all be achieved, but it cannot be certain and if there is a choice, it ought to be possible for the Minister to make that choice.
This is not a form of words, as I understand it, which just bows in favour of motherhood and apple pie; it is, as I see it, an opportunity for the Government to indicate, in the report that they will produce before Parliament considers the legislation, what it is that is moving the Government. I think it reasonable that, if they could demonstrate greater efficiency, greater effectiveness or greater economy, they should be able to say so and not necessarily have to tick all four boxes. However, this is probably a matter for construction by greater legal brains than mine and consequently, I hope that the matter might be reconsidered at a later date. I am very grateful to the noble Lord, Lord Taylor, for the changes he has proffered to the House, which are a substantial improvement on what went before.
Lord Pannick
My Lords, I, too, warmly welcome the amendments brought forward by the Minister. I, too, associate myself with all the tributes paid to him. I hope that the praise from your Lordships’ House does not cause him any embarrassment back at the ministry. I am a little disappointed, however, that he did not feel able to respond positively to the amendment in the name of the noble Lord, Lord Newton of Braintree, who all noble Lords will wish to see back in his place as soon as possible. That amendment would add fairness, justice, openness and transparency to the list of factors to which the Minister must have particular regard. The Minister suggested in his opening remarks that to add such concepts to the clause would impose what he described as an “abstract evidential burden”. I am sure that on reflection he will recognise that the concepts introduced by the noble Lord, Lord Newton, are no more abstract than the concepts of efficiency, effectiveness, economy and accountability that are included in his own very welcome amendment. I ask him to reflect further on the criteria in the amendment of the noble Lord, Lord Newton.
Lord Whitty
My Lords, I support the amendments in the name of my noble friend Lady Hayter, specifically Amendment 62. I do not want to dissociate myself from the general praise for the Minister, the noble Lord, Lord Taylor; he has been the most flexible of Ministers that we have yet seen in this coalition Government, and we are all extremely grateful to him, not least for his Amendment 60A. However, it is still slightly lacking; if the Minister is now the Lincolnshire poacher, where does that leave the gamekeeper? Parliament is the gamekeeper, but with the whole of the Bill Parliament is letting go the central principle that primary legislation can be amended only by other primary legislation. If we are to do so—and I understand the logic and the safeguards that are beginning to be built into the Bill—then we need to be quite explicit about how we are letting it go.
My noble friend Lady Hayter’s amendments make it clear that, when the aims and objectives of a particular body are specified in existing primary legislation and when any Minister wants to activate one of these mergers, abolitions or changes in function, then as part of the process the Minister must go specifically through those aims and objectives and explain how they will be achieved in the absence of the body or after the proposed changes to the nature of the body have been made. In the terms of the noble Lord, Lord Pannick, that means a bit more discipline. It requires Ministers to put before this House what the original primary legislation required of the body and how that will now be carried out. If that is to be transferred, that needs to be explicit; if that is to be merged with the requirements of another body, that needs to be explicit; if that is to be transferred to a private body, that needs to be explicit, with the other complications that arise from that; if that is to revert to the Minister, that needs to be explicit; or, if that is to disappear into the ether, Parliament needs to be clear what is happening. When we agree to these safeguards—and the Constitution Committee has now accepted that, broadly speaking, these safeguards meet the criteria—we need to ensure that the process runs through a check of what was set out in the original legislation. My noble friend’s amendment would take us a significant way towards achieving that and exerting that degree of discipline on the future use of this legislation by Ministers.
Baroness Butler-Sloss
My Lords, I add my praise to the Minister, which the noble and learned Lord, Lord Woolf, expressed so well. Even so, some tweaks might be provided, as the noble Lord, Lord Pannick, was saying. I entirely agree with him. I speak particularly in relation to Amendment 62 tabled by the noble Baroness, Lady Hayter, because the World Wildlife Fund, which I think the whole House will agree is an extraordinarily sensible organisation, is concerned for the Marine Management Organisation to which she referred. However, she referred to it in the earlier amendment and not Amendment 62. The problem the World Wildlife Fund sees as set out in the briefing I received—I am sure many noble Lords will have received it—requires at least some clear indication by the Minister that the Marine Management Organisation is not at risk. The bodies listed in Schedule 4 could have their funding arrangements changed by secondary legislation and the World Wildlife Fund is concerned that some degree of pressure—for instance, from drilling organisations—might imperil the Marine Management Organisation. It seems to me, if I may respectfully say so to the Minister, that either the amendment of the noble Baroness, Lady Hayter, should be accepted or at least the Minister should give a very clear policy decision that this could not possibly happen.
Baroness Royall of Blaisdon
My Lords, it is my turn now to pay tribute to the Minister. This is a greatly improved Bill and it is with grateful thanks to our Minister in this House that those profound changes have been made. Amendment 60A is a testament to one of the big changes in the Bill.
The noble Lord, Lord Maclennan of Rogart, was right to point out that many of the problems relating to the Bill came from the speed with which it was introduced. There was no excuse for that because the Bill should not have been introduced so expeditiously. I in no way blame the Minister for that and he has been exemplary in the way in which he has engaged with Members on all sides of the House.
In relation to Amendment 60A, I appreciate that the Government have moved substantially in setting the criteria for making an order. We particularly appreciate subsection (1) of the amendment:
“A Minister may make an order under sections 1 to 5 only if the Minister considers that the order serves the purpose of improving the exercise of public functions, having regard to”.
We believe that to be particularly important but I still think that improvements could be made. It is clear, as my noble friend Lord Soley and others have said, that there is still a nebulous area over which more discipline could be exercised and which could feed the fees of lawyers and be long debated in the courts. It would be good if there could be a little more clarification.
The Delegated Powers Committee said:
“It is for the House to consider whether amendment 60A provides an effective indication of the purposes for which Parliament will expect Ministers to use their very broad powers under clauses 1 to 5”.
I think the House will probably agree that the noble Lord has met the necessary criteria. However, as noble Lords have said, perhaps one or two tweaks could be made. I pay tribute to the noble Lord, Lord Newton of Braintree, who we miss greatly today, because I think he has done a fabulous job on this Bill; not just because he happens to have agreed with some of the things we have said but because he has been courageous to be a Member of the government Benches and to stand steadfast on things in which he passionately believes. His amendment, which we are discussing today, is particularly important. As the Minister himself said, the intentions of the amendment are laudable and at the heart of the coalition Government’s approach. I do not know why the Minister would not feel comfortable with having regard to the objectives of achieving fairness, justice, openness and transparency being in the Bill. As the noble Lord, Lord Pannick, said, other words have been included in the Bill that the noble Lord, Lord Phillips, might say were otiose. It is a “belt and braces” approach. We would feel a lot more comfortable if the Government were able to accept the excellent amendment of the noble Lord, Lord Newton.
In relation to the amendments tabled by my noble friend Lady Hayter, she has also done some sterling work during the passage of the Bill. Something that she has pressed for throughout is for Ministers to have regard to the purpose for which the bodies were created in statute. The Minister has moved a long way towards that and it has largely been accomplished. I, too, have received some excellent briefing from the World Wildlife Fund, especially in relation to its concerns on behalf of the Marine Management Organisation. We should like to have further clarification from the Minister on that point.
Lord Lester of Herne Hill
Unfortunately, I was not able to be here when the Minister spoke. Therefore, strictly I am being unmannerly in saying anything at all, but if he and the House will permit me to make a couple of brief remarks, I would be grateful to do so. No one is looking cross, so I will continue, briefly. I regard Amendment 60A as an important step forward. I do not think that Amendment 61A on independence will be necessary in the light of the changes that we made in Committee and the safeguards that we put into Clause 16 on restrictions on ministerial powers. Those deal with the necessary independence criteria and seem to be adequate.
With regard to the amendments of the noble Baroness, Lady Hayter, I should be grateful if the Minister could clarify whether when his Amendment 60A refers to,
“improving the exercise of public functions”,
it is intended to mean the functions as defined in the legislation creating the body. If that is right, then it seems that what the noble Baroness, Lady Hayter, is seeking to achieve, with which I agreed at Second Reading, is achieved. The Minister, in making the order, will have to have regard to the aims and objectives of the body as they are specified in legislation. For example, the Equality and Human Rights Commission’s aims and objectives are defined in the Equality Act 2006. I assume that, when any change is made in relation to that body by delegated legislation, the Minister, in having regard to improving the exercise of the commission’s public functions, will have regard to those public functions as prescribed in the equality legislation. It could not really be otherwise because the functions are those defined by Parliament in that Act. If he could clarify that that is so, I do not think that the amendment of the noble Baroness, Lady Hayter, would be necessary.
On Amendment 60AB, in the name of the noble Lord, Lord Newton, again, it seems that openness and transparency are meant to be dealt with by the super-affirmative procedure itself and the requirements that the Minister makes. I thought that we had dealt with fairness and justice in the changes that we made to Clause 16 when we were dealing with restrictions on Ministers’ powers, which were to achieve the rule of law and fairness in doing so. I do not regard those as necessary amendments. I am grateful to have been listened to.
Lord Taylor of Holbeach
I did not want to object to my noble friend contributing to the debate but I felt like asking him whether he was going to be helpful. However, he has been helpful, and so have all noble Lords who have spoken. This debate has been illustrative of the discussions we have had on the Bill and gives me an opportunity, in winding up, to answer some of the questions that have been raised. I am pleased with the general welcome that has been given not only to changes made to the Bill, for which I am extremely grateful and modestly so, but also to the amendments that we are considering today.
The Bill team has been much exercised about the changes to Clause 8; it has not been an easy thing to get together. There is always a gap between precision on the one hand and abstract concepts on the other. We do not want the clause to be a prison which makes it difficult for the Bill to be used to reform public bodies, which I think is desired across the House, nor do we want it to be open to challenge. I have a slight interest in music. I always like triplets; they add something to things. This triplet of alliterative words can be seen as being a duplication of meaning or as being an extension of meaning across a range of measurable indicators to which Ministers will have to have regard. That cannot be said of the amendment of my noble friend Lord Newton of Braintree, in which he introduced his more abstract concepts. There is a difficulty in that sense in that the definitions would be harder to pin down and more open to challenge than would be the case with those enshrined in Amendment 60A. It is true to say that even these are broadly defined precisely because the Government are proposing a wide range of reforms. However, the important point to note is that Ministers will be required explicitly to set out in an explanatory document accompanying any order why they believe the order will improve the exercise of public functions. I think the House agrees that that is very important and a great step forward.
I know that the noble Lord, Lord Pannick, was disappointed that we were not seeking to adopt my noble friend’s amendment but the breadth of the definitions involved would complicate the exercise of functions under the Bill. The most important thing is to ensure that, in exercising functions, we have the right checks so that Parliament can judge the issue using more measurable indicators. I say to the noble Lord, Lord Soley, that the measure does indeed impose an abstract evidential burden. However, there is a discipline on Ministers, and that is very important. The key here is the explanatory document in which a Minister must justify why he considers that the order meets the objective in Clause 8.
I hope that I have explained to my noble friend Lord Phillips why I would like to keep in all three words. They merge and blur into each other. The English language lacks precision in relation to things such as economy, efficiency and effectiveness but, like most things, we know them when we see them. They can be defined by an observer who is skilled at looking at them. Therefore, I hope that my noble friend will accept that I am not able to accept his amendment.
I would say to my noble friend Lord Maclennan that we do understand that he believes that any one of these things is sufficient. However, the fact that the three together have to be accounted for to Parliament in any order is the key to why we believe that Amendment 60A is sufficiently highly defined to assist Parliament in judging the orders when they come along.
I think the most interesting amendment to debate is the one tabled by the noble Baroness, Lady Hayter. Indeed, I, too, received the briefing from the World Wildlife Fund. I have been on its mailing list ever since I challenged the noble Lord, Lord Hunt of Kings Heath, on the Marine and Coastal Access Bill and, before that, on the Climate Change Bill. He and I know all about the Marine Management Organisation. It was something very close to my heart. Were the Marine Management Organisation to make an unreasonable decision that was not consistent with its aims and objectives—for example, if it showed bias—like any public body it would be subject to judicial review. My noble friend Lord Henley is here with me. I know that Defra does not propose to make sufficient changes to the basis of the MMO’s funding. Any changes made would be subject to the processes that the Bill sets in place. This would include, for example, any changes to the MMO’s funding.
The noble Baroness asked about functions in connection with Consumer Focus. Public functions are defined in Clause 25 as the statutory functions or functions under a royal charter. The order on Consumer Focus under Clause 1 will relate to its functions, including its statutory functions. Therefore, the purpose set out in Amendment 60A will apply. The Minister must consider,
“that the order serves the purpose of improving the exercise of public functions”.
I hope that I have managed to reassure noble Lords on the matters that have been raised. I beg to move Amendment 60A.
The Chairman of Committees (Lord Brabazon of Tara)
The amendment before the House at the moment is Amendment 60AA in the name of the noble Baroness, Lady Hayter.
Baroness Hayter of Kentish Town
My Lords, I thank the Minister for his reply. Clearly we are not worried about what present Ministers will do to the funding of the MMO; it is what any future ones might do that we distrust. However, I am grateful for the assurances and explanations that the Minister has given. I beg leave to withdraw the amendment.
Lord Henley
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)
My Lords, in moving the amendment in the name of my noble friend Lord Taylor, I shall speak also to Amendments 64, 73 to 82, 84 to 87, 88, 89B, 90, 92, 93, 95 and 99. I understand that within this group we will also debate Amendments 83 and 87A in the name of the noble Lord, Lord Rowlands.
The Bill contains a number of clauses that confer powers on Welsh Ministers. These clauses have been requested by the Welsh Assembly Government to enable them to give effect to possible institutional changes flowing from their ongoing review of how environmental policies are delivered in Wales. This review is linked to wider policy proposals to develop a more integrated ecosystems approach to managing the natural environment in Wales.
These proposals were set out in A Living Wales, the Welsh Assembly’s natural environment framework, which was subject to recent public consultation. The consultation specifically raised the issues of reviewing institutional arrangements. The Assembly Government rightly want to ensure that they have the most effective and efficient institutional arrangements in place to deliver the proposed new policy approach. More than half the responses to the consultation addressed the question of institutional arrangements and the majority of those responses were supportive of a much more integrated delivery approach, including the possible establishment of a new environmental delivery body.
The Assembly Government have looked at a range of options as part of the initial stages of the review and have now asked for more detailed work to be undertaken on the purpose and function of establishing a single environmental body for Wales and assessing the benefits and costs of establishing such a body. Any final decision to implement changes to the way in which environmental policy is delivered in Wales will be a matter for the incoming Assembly Government, following the National Assembly elections in May. However, I assure the House that it is the Welsh Assembly Government’s intention to hold a full public consultation on any proposals to revise delivery arrangements. Amendment 88 places a duty on Welsh Ministers to consult on orders under Clauses 12 to 14.
I turn to the detail of the amendments. A number of them serve more accurately to reflect the boundary between devolved and non-devolved matters. Amendments 87 and others widen the circumstances in which the consent of the Secretary of State or another UK Minister will be required. They also constrain Welsh Ministers’ powers in Clause 12 to modify or transfer functions of environmental bodies in relation to Welsh devolved functions. Amendment 82 seeks to amend Clause 13 and further to safeguard the interests of the United Kingdom Government by ensuring that Welsh Ministers cannot modify the constitutional funding arrangements of any cross-border operator, not merely the Environment Agency and the forestry commissioners.
Amendments 73, 77 and 79 serve to extend Welsh Ministers’ order-making powers in Clauses 12 and 13 to regional flood and coastal committees whose areas are wholly or mainly in Wales. This would allow the Assembly Government to modify or transfer the functions of these committees in light of the conclusions of the Assembly Government’s review of environmental bodies.
Amendment 80 aims to give Welsh Ministers order-making powers in relation to a short list of bodies that are wholly or mainly in Wales—namely, agricultural dwelling house advisory committees, agricultural wages committees, the Environment Protection Advisory Committee, regional and local fisheries advisory committees and forestry regional advisory committees. The amendment also provides Welsh Ministers with powers to modify the funding arrangements of drinking water inspectors and powers to modify or transfer the functions of internal drainage boards that are wholly or mainly in Wales, as well as powers to modify their constitutional arrangements. This is necessary in respect of the Welsh devolution settlement, because the bodies listed exercise devolved functions and are constituted in Wales or relate to areas within Wales. These powers are equivalent to those of United Kingdom Ministers under Clauses 1 to 6.
The intention is that those Welsh bodies will be abolished at either the same time as their English counterparts or in accordance with any programme initiated by Welsh Ministers as a result of the review that I mentioned of the principal environmental delivery bodies in Wales—the Environment Agency, the Countryside Council for Wales and the forestry commissioners. The purpose of the power to modify the funding arrangements of the Drinking Water Inspectorate is to enable inspectors to establish a charging scheme to recover the costs of its regulatory functions from water companies, while the powers relating to internal drainage boards are linked to the outcome of the review of environmental delivery bodies. It may, for instance, be the case that, if a new environmental body were established, the functions of the boards might be transferred to that body.
Amendments 63 and 64 are necessary to reflect the outcomes of the referendum on Assembly powers. They ensure that United Kingdom Ministers have a duty to seek the consent of the National Assembly for Wales when they wish to make orders under Clauses 1 to 6 of the Bill that may encroach on the Assembly’s legislative competence. Amendments 88 and 89A build in the same safeguards to the exercise of the powers of the Welsh Ministers as apply to the corresponding powers of Ministers of the Crown—that is, the duty to have regard to certain objectives and to consult on the exercise of order-making powers. Finally, Amendment 89 establishes a procedure for the National Assembly for Wales to consider orders of the Welsh Ministers that mirrors the equivalent parliamentary procedure for orders made by United Kingdom Ministers.
These new clauses and amendments have been developed in close consultation with the Welsh Assembly Government. Furthermore, the National Assembly considered and agreed a legislative consent motion for the Bill on 8 March, noting that it is content for Parliament to legislate in areas of its devolved legislative competence. I beg to move.
Lord Rowlands
My Lords, I will speak to my amendment, which would delete Clause 13, and to Amendment 87A, which suggests that parliamentary consent should be added to that of the Secretary of State for powers under the clause. I will preface my remarks by saying that my record shows that I have been a fervent supporter of transferring legislative competence to the Assembly through the procedures that we have had in the past. I refer to the legislative competence orders that were in Part 3 of the Government of Wales Act and to individual framework clauses in Bills that have come before the House in the past two or three years. I supported them because this was an important and useful way in which to transfer legislative competence until the referendum decided that the Welsh Assembly and Government should have full legislative powers. I am not an opponent of such transfers.
However, when I saw Clause 13, I thought that it was a step too far. This House has many times reflected deep concern and uneasiness about sweeping, ill defined powers granted to Ministers. The report of our Regulatory Reform Committee stated that the powers in Clause 13 were “insufficiently limited”. The committee made the same objections that it had made to Clauses 1 to 6, which was that Minsters were given,
“unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.
There have been many changes to the Bill, but the fundamental issue of the sweeping nature of the powers in it has caused serious concern. Henry VIII looks like a parliamentary democrat when one considers the powers that we are giving to Ministers in the Bill. I still feel extremely uneasy that an Act of Parliament is bestowing these powers on Welsh Ministers. This should be the National Assembly’s responsibility now that it has the power to do so after the referendum; that would have been a better process.
My second point, to which the Minister made no reference even though it is the reason for yet another new clause in the Bill, is that our Regulatory Reform Committee also drew attention to an extraordinary aspect of Clause 13. The committee states:
“The net result of what is proposed here is that Parliament should delegate to Welsh Ministers the power to amend Acts of Parliament in matters as respects which Parliament has not delegated to the NAW the power to amend Acts of Parliament by enacting measures, and all subject to no Parliamentary control at Westminster whatsoever”.
In other words, we were seriously blurring in Clause 13 the division of responsibilities between devolved and non-devolved powers. I accept that, since then, amendments have been made that clearly define the nature of the devolved functions and the powers that Welsh Ministers will have in Wales in relation to this Bill. I welcome that. However, in the Government’s response to this fundamental criticism that they were blurring the division of responsibilities, lo and behold the only two precedents that could be dredged up to justify such a power were the European Communities Act 1972, which everyone recognises is unique to say the least, and a subsection from planning legislation of 1998. I have looked at both and I do not think that they are comparable in any shape or form. Fortunately, it seems that, as a result of the pressures that have been applied and the criticisms that have been made, the clause defining the devolved and non-devolved powers relating to Wales has now been reasonably satisfactorily resolved.
What is remarkable is that here we are, post referendum, with power having been transferred to legislate in Cardiff on this and other issues, yet in a Bill of this House we are writing out in detail the procedures that Welsh Ministers have to go through to justify and consult. In other words, we are writing into Welsh Ministers’ responsibilities the super-affirmative procedures that we are applying to UK Ministers. Putting aside the general merits of the issue, I think that it is quite extraordinary that at this moment in time we are seeking to write into a Bill a remarkable clause that lays out in great detail the responsibilities of Welsh Assembly Ministers to consult. Again, I respectfully suggest that that should be the decision of the Assembly.
The Minister’s reply is that on 8 March we suddenly had an approval of all these proposals by the Assembly. Although the powers in Clause 13 have been evident since last October, it is quite clear that Assembly Members have not endorsed the original clause. That is why I have sought to remove the clause. I accept that since then there have been changes. Obviously the conversations that have gone on between Welsh Ministers and UK Ministers and officials have clarified the position in a number of important respects since I tabled my amendment, but I think that we ought to be wary about offering such powers at this stage to Welsh Assembly Ministers. They should seek them themselves from their own Assembly. Having said that, I accept that at this stage in the proceedings it is going to be difficult to turn back. Miss Jane Davidson, the Environment Minister, has fulfilled that portfolio with vision and commitment. She has now retired but I understand her desire to have these types of powers.
Finally, I hope that, if nothing else, the Minister will accept my Amendment 87A. Changes to these bodies will have consequences across the border. Quite rightly there is a provision that the Secretary of State has to consent to any changes made, just as consent has to be sought from the Assembly Ministers and the National Assembly to any orders that could affect Welsh devolved powers in relation to these bodies. However, in this case, only the Secretary of State’s consent is required. I accept that that consent is necessary on any cross-border issues, but surely both Houses here should approve such changes as well. Just as Assembly Ministers and the National Assembly are expected to confirm their consent to changes that might be made by a UK Government, I honestly believe that we should also insist that both Houses of Parliament should approve any Secretary of State’s consent that could alter and change the role, functions and money of the bodies that are covered in these clauses.
I accept and understand that now, because Clause 13 has been transformed and additional safeguards have been put in place, there is a clear distinction between devolved and non-devolved powers in the Bill, but I press the Minister to agree to Amendment 87A, if nothing else, so that this House and the other House have to approve the consent of the Secretary of State in relation to the clauses.
Lord Wigley
My Lords, I pick up some of the points made by the noble Lord, Lord Rowlands, which will no doubt exercise the House again in future because they touch on the lack of symmetry with regard to devolution. The powers in Scotland and Northern Ireland are different from the powers in Wales, even after the referendum that took place on 3 March. One of the arguments in favour of the changes that came through that referendum was transparency: people must be able to see clearly where responsibility lies so that the Government taking the decision can be judged and held to account. As the noble Lord, Lord Rowlands, said, anything that blurs that question undermines the intent of the devolution settlement.
There is also the more general question of the way in which orders are used to effect changes. When one has the capability in democratic fora, such as the National Assembly for Wales, to do things more openly and transparently than when everything is done by order, that should be used. None the less, I take the noble Lord’s point that some concessions and changes have been made to try to meet some of those points as the Bill has progressed.
I believe that Ministers in the National Assembly are broadly content with the provisions and that the Presiding Officer, the noble Lord, Lord Elis-Thomas, is likewise content. I have not tabled any amendments, but two or three issues would benefit from further clarification. First, can the Minister give an assurance that in every instance where matters are devolved, it is the Ministers in Wales who have the full powers with regard to any implementation of the Bill applying to Wales? I believe that that is the case, but I would be grateful if we could have that confirmed from the Dispatch Box.
Secondly, where there are cross-border issues, to which the noble Lord, Lord Rowlands, referred, can we be assured not only that, when there is an initiative in Wales, Welsh Ministers should consult first with their Westminster counterparts, but that, likewise and equally, when Westminster Ministers propose changes that have a cross-border implication, they, too, will consult Welsh Ministers before taking any action? That again concerns symmetry and transparency and ensures that there is harmonious co-operation on such issues.
Thirdly, when Bills or orders before either Chamber in Westminster have an implication for Wales in matters that are devolved, can we have an assurance that consultation will take place much earlier in the process as the Bills or orders proceed through their scrutiny in Parliament? That earlier consideration would be very valuable, as it would have been in the context of S4C, for example, which we have debated under the Bill.
This applies not only to matters that are devolved; there are also matters that are not devolved or not fully devolved where there is specific relevance for Wales. I would imagine that, in the spirit of the co-operation described in the amendments, there will be full consultation on those matters also. I press that any such consultation should take place as early as possible so that there is full engagement and the response to consultation can be built into that process. With those few comments, I look forward to hearing the Minister’s response.
Baroness Gale
My Lords, first, I thank the Minister very much for explaining in detail how we reached the amendments, the redrafting of several clauses and the addition of five new clauses. I understand that all of these new clauses are in relation to the powers of the environmental bodies, the consequential provisions and delegations, the restrictions on ministerial powers and cross-border issues. Like other noble Lords, I am glad to learn that there has been consultation with the Welsh Assembly Ministers. As the noble Lord, Lord Wigley, said, consultation is important and the earlier we can have it, the better. I understand that the consultation involved Jane Davidson, the Environment Minister, who is retiring. As my noble friend Lord Rowlands said, she has been an excellent Minister and has the environment at heart. She is stepping down from the Welsh Assembly, but I am sure that she is going on to other things. I wish her well in the new journey that she will be undertaking. She played a big role in the environment and in these discussions.
The amendment tabled by my noble friend Lord Rowlands is what Welsh Ministers have been asking for. It gives Ministers in the Welsh Assembly the tools to do the job in matters relating to Wales. The changes clarify where responsibilities lie and certainly make it clear what the responsibilities are at the Welsh level. This Bill and the amendments before us enhance the way that the Assembly will be able to work in future. It is another step on the devolution journey, giving Welsh Assembly Members the power to act for the people of Wales on these matters.
Amendment 89B inserts a new clause after Clause 14 which deals with the procedure for orders by Welsh Ministers. Subsection (11) states:
“An order may not be made by the Secretary of State … unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament”.
Amendment 87A, tabled by my noble friend Lord Rowlands, is an amendment to Amendment 87. It is similar as the Secretary of State’s consent is required for an order under Section 12. Should there be a requirement for the approval of both Houses similar to that in subsection (11) in Amendment 89? What does the Minister feel about that? I support what my noble friend is saying in that amendment. We welcome the Government’s amendments. They respond to the wishes of the Ministers in the Welsh Assembly.
Lord Henley
My Lords, I start by making an apology to the House and correct something that I said in my opening remarks. I misspoke when I referred to Amendment 89A; I meant Amendment 86A. When I referred to Amendment 89 I meant Amendment 89B. I say this just for the sake of the record. Because so many amendments have been withdrawn and then redrafted, it is rather easy to make mistakes of this sort. I hope that the House will accept that apology and that minor correction.
I am relatively new to Welsh matters, but as always it has been a joy to be taking part in this debate. I hope that I can satisfy the various concerns that have been put forward by noble Lords. I will start with the noble Lord, Lord Rowlands. I accept that he is not averse to transferring greater powers to the Welsh Assembly Government, but does not like Clause 13. He feels that it goes too far and gives too much to the Welsh Assembly Government rather than to the Assembly. He also talked about a blurring of the lines but accepted that some of our amendments improved on that. I assure him that there has been considerable consultation between us and Welsh Assembly Government Ministers. Like the noble Baroness, Lady Gale, I pay tribute to Jane Davidson, who is retiring. I met her only recently on cross-border issues, and I wish her well in her new role.
There has been a great deal of consultation on these matters, importantly not just between us and the Welsh Assembly Government, but also the National Assembly itself. As the noble Lord, Lord Rowlands, will be aware, that National Assembly passed a Legislative Consent Motion for the Public Bodies Bill on 8 March, to which I referred. Such a Motion is required because some of the provisions of the Bill come within the legislative competence of the National Assembly rather than of Welsh Assembly Government Ministers. In passing the Motion, the National Assembly has indicated it is content for Welsh Ministers to have executive powers on the lines proposed in the Bill.
I do not quite understand the noble Lord, Lord Rowlands, objecting to the Welsh Assembly Government gaining too much power, but he also appears to object to certain constraints placed upon them by this Bill. These matters have been discussed and we believe, as does the National Assembly, that there is a degree of agreement.
The second amendment of the noble Lord, Amendment 87A, requires the approval of both Houses of Parliament following the consent of United Kingdom Ministers under the new clause that will come in under new Clause 14. This is unnecessary because of the procedures already outlined by my noble friend. I hope, therefore, that he would feel able to withdraw or not move that amendment.
I turn to the various concerns raised by the noble Lord, Lord Wigley, who raised three points. The first was the question on devolved matters and whether that would be a matter for Welsh Assembly Government Ministers; I can assure him that he is correct. Secondly, on cross-border issues, he asks whether there will be consultation between us and the Welsh Assembly Government Ministers, or the other way around. I can assure him there will be consultation going both ways according to how the cross-border issue happens to run. Thirdly, I can give no concrete guarantee about when consultation will happen on any given issue but we would always hope to get it started as early as possible. If consultation between the two sets of Ministers is going to be effective, it is important that it takes place as early as possible. All I can say is that we very much hope that this will happen and, having said so from the Dispatch Box, that we or our successors of whatever political persuasion or Government will bear this in mind.
From what has been said by the noble Baroness, Lady Gale, I have the impression that these amendments meet a great many of the concerns that have been put forward. I therefore hope that noble Lords will accept these amendments, which set out in greater detail the powers and duties of the Welsh Assembly Government Ministers in dealing with these matters.
Lord Rowlands
I listened to the Minister’s reply with great interest and I would like to put two points to him. First, on consent, Clause 9 provides that when UK Ministers want to make orders which could encroach on the Assembly’s legislative competence, they must seek the consent of the National Assembly for Wales, not just Welsh Ministers. If an Assembly Government issue orders which change or alter the law relating to those bodies and affect the cross border, is it not reasonable that not only should the Secretary of State’s consent be sought but also the consent of both Houses? If Clause 9 requires the approval of the Assembly, rather than the Ministers in the Assembly, would it not be a sensible procedure to require the reverse procedure? If, where the Assembly is making orders which could have considerable cross-border effects on the operation of that organisation and which therefore quite rightly require the consent of the Secretary of State, surely it should also require the consent of both Houses in just the same way.
My noble friend Lord Wigley asked about it. As he will see under Clause 9, there is a two-way process. UK Ministers have to seek the consent of the Assembly if they wish to bring in orders which could affect the performance of bodies in Wales. I would still like to press him on my Amendment 87A. I accept the changes that have now been made in relation to the other issues that I raised. He said that he could not quite understand why I seemed to object to the super-affirmative resolution. My objection is one of the principle of legislating in detail on the way in which Welsh Ministers should consult, when that should be determined by the Assembly. He says that that is covered by the 8 March decision. Before we conclude, perhaps he could tell us whether that decision included the reference to super-affirmative resolutions, because this clause has been introduced very late. Was it put before the Assembly? Was it part of the approval of the legislative consent process on 8 March? Before I decide what I will do about my Amendment 87A, will he respond to those points?
Lord Henley
My Lords, we are at a relatively late stage of this Bill. I appreciate that there is one further stage, Third Reading, and that there are limitations on what we can and cannot do. It probably would be right if I took away the points that the noble Lord has made on Amendment 87A and his secondary point. I am not sure whether I will be able to satisfy him but I am more than happy to consider these matters in consultation with colleagues in other departments. On his second point about the 8 March decision, I can certainly give an assurance that specific reference was made as part of the memorandum and that it did come up in the debate. On that, I think that he can be satisfied.
On his point in relation to Amendment 87A, it might be worth the noble Lord, colleagues in the Welsh Office and me having further discussions. I do not think that what he is looking for in Amendment 87A is necessary, so I make no promises. In the light of his generally very reasonable behaviour on these matters, I will give him those assurances for the moment. Therefore, I hope that he will accept that we can press forward with the amendments as they are.
Lord Henley
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, earlier in our debate noble Lords paid tribute to the noble Lord, Lord Taylor, for his conduct of the Bill, which I would certainly echo. He has brought forward some welcome amendments, which have strengthened the effective scrutiny of the Bill. I urge him to go one step further and respond positively to my amendments in this group. There is no doubt that, with Clauses 8 and 16 and the strengthening of Clause 10 on “Consultation”, there have been welcome additions. Will the noble Lord, Lord Taylor, agree to strengthen the Bill a little more as regards Clause 10? Essentially, what I would like to see is that, when a Minister proposes to make an order under Clauses 1 to 6, under Amendment 65, the public must always be consulted. Under Amendment 66, in relation to Clause 10(1)(a), I am suggesting that the body or the holder of the office to which the proposal relates ought to include staff and trade unions. In this Bill—despite the modifications that the noble Lord has brought, including one or two that we have voted upon—considerable powers still rest with Ministers to deal with the bodies contained in Schedules 1 to 6. In view of that, it is right that there should always be formal public consultation when an order is used under this Bill.
Lord Maclennan of Rogart
My Lords, this group of amendments touches a matter that has been very extensively discussed. I hope that there will be an open mind on what can be done. I realise that we have now reached a late stage in the deliberations of the Bill, and the Government have given a great deal of thought to this. It appears that part of the concern about explicitly requiring public consultation is that it may lead to unnecessary overkill in involving a great deal of expenditure, but that depends on the way that the consultation is carried out. I recall a debate that a number of Members in this House will perhaps also recall prior to the dissolution of the previous Parliament, in which the responsible Minister, the noble Lord, Lord Davies of Abersoch, laid out the work of the Cabinet Office in respect of public consultation. It was clear that, notwithstanding a code for public consultation, there were enormous variations in the way it was conducted. The issue requires to be readdressed not only because that debate revealed that the code was not being followed in terms of the time being taken to reply and the great variety of practices between departments, but also because in some cases a much longer period for consultation is appropriate than in others. I hope that the Government will give some positive and practical thought to how that might best be achieved.
So far as public consultation is concerned, with modern methods of communication, particularly the availability of a website, it is possible that it could be done involving quite limited public expenditure. Of course it could lead to a deluge of replies, but that is unlikely in the case of some of the bodies we have considered in the course of our debates, which have not functioned for perhaps five years.
Although the Bill and the amendments are quite specific in indicating who should be consulted, referring in particular to people who appear to be representative of interests substantially affected by the proposal, there can be other individuals who could usefully be consulted beyond those who may have a direct interest. It is perfectly possible, given that these are public bodies, that people who have served on them—some of them may be in this place—may have some knowledge of how they might be made to work better. Those are the sort of people whose opinions, I believe, would be worth paying some attention to, even though they are not specifically mentioned in the listed categories.
We are making good strides in respect of consultation, but I think that there is scope for a little more reflection and I hope, before the Bill is enacted, that such reflection will be given. I hope that the Government will not feel that this is an attempt to stymie their measures or simplify the process unreasonably. Rather, it is to avoid the possibility of these important matters being introduced to Parliament with the opinions of those who could suggest useful improvements being left out of the consideration. As a consequence, I am broadly supportive of Amendment 65 in the name of the noble Lord, Lord Hunt of Kings Heath, and I hope that the Minister will be able to give some practical thoughts about it in his reply.
Lord Kennedy of Southwark
My Lords, I support Amendment 65 moved by my noble friend Lord Hunt of Kings Heath, and in doing so I shall speak to Amendment 67 tabled in my name, although I will not move it separately. This amendment, along with all the amendments in this group, seeks to improve the consultation process that holds Ministers to account by Parliament. Amendment 67 would place a duty on Ministers to consult with the relevant local government body and any relevant local authority. Who could be against that? I do think that Clause 10(1)(b) and (g) are specific enough on their own because they leave too much in doubt about what is happening. You could say that we are being left sitting in a ministerial fog when what we need is clarity. My amendment would give that clarity by placing a clear and unambiguous duty to consult local government where those functions which are going to be subject to an order have a bearing on local government.
I shall be interested to hear what the Minister has to say. I think that my amendment will help the Government along towards working more closely with local government and should cause no problems. It could even be said that it moves the Bill a bit further along the localism road that the Government say they are so keen to promote. I shall leave it there. I echo the comments of my noble friend Lord Hunt of Kings Heath in saying that I hope that the noble Lord, Lord Taylor of Holbeach, will feel able to move a little on this point.
Viscount Eccles
My Lords, I should like to take this opportunity to pay tribute to Lord Colville of Culross. Lord Colville was serving on the Merits Committee when I joined it some five years ago. I am not serving on it now, of course, because I did my four years and then got cycled off. Lord Colville taught me an enormous amount about consultation. It was his subject: he knew it from A to Z.
The Merits Committee of your Lordships’ House considers more than 1,000 orders every year. It looks at the Explanatory Memoranda. I can tell you for sure that the members of the committee usually go first to paragraph 8, the consultation paragraph. There is an enormous amount of expertise in your Lordships’ House in assessing not only whether consultation has been properly done and whether the 12 weeks were sufficient but also what has been left out or might have been elided. Noble Lords are extremely skilled in going back to departments and questioning the presentation of these paragraphs. That also applies to the paragraphs in the impact assessment, if there is one required.
I imagine that the orders in the Bill, when it becomes an Act, will be submitted to a committee of this House as well as, presumably, to a committee of the other place—that is clear from the language in the Bill. This clause includes, as well as paragraphs (a) and (b), paragraph (g), which says,
“such other persons as the Minister considers appropriate”.
If I am allowed from the Back Bench to give an assurance, I can give noble Lords a little Merits Committee assurance that, if a committee of your Lordships’ House considers that the Minister has missed out on who it is appropriate to consult, then his department will be pretty sharply told. I hope that we do not underrate the capability of this House to make sure that consultation is done in a really workmanlike manner. Of course, it is never satisfactorily done because there are winners and losers at the end of consultation. Nobody is completely satisfied for ever that the consultation has been properly done but if there is a way of monitoring consultation it certainly exists in your Lordships’ House.
Lord Pannick
My Lords, I support Amendment 65, in the name of the noble Lord, Lord Hunt of Kings Heath, for three reasons. First, these remain very broad and extensive powers to abolish or modify a public body. It seems essential that there should be the broadest of consultation obligations so that the Minister is properly informed before a decision is taken. Secondly, public consultation does not require considerable expenditure if modern methods of communication are used—the point already made by the noble Lord, Lord Maclennan of Rogart.
Thirdly, if these powers are to be exercised in relation to public bodies—we are talking about public bodies—surely it is right and proper that the Government should consider the comments of all sections of the public who feel that they have something to say. Indeed, if there were to be no specific consultation duty in relation to members of the public and nevertheless a member of the public, knowing of the proposal, submitted representations to the department, then I assume that the department would consider them and take them into account in reaching its conclusion. With respect, I do not share the view of the noble Viscount, Lord Eccles, who drew attention to Clause (10)(1)(g), which provides that the Minister must consult,
“such other persons as the Minister considers appropriate”.
It seems to me highly desirable that there should be clarity in the Bill that there is an obligation to consult members of the public rather than leaving it as a discretionary matter.
Lord Whitty
My Lords, I support the amendment in the name of my noble friend Lord Hunt and indeed the one referred to by my noble friend Lord Kennedy but I want to speak specifically to Amendment 66. First, I thank the Minister. At the last stage in this Bill, I moved an amendment relating to TUPE procedures. I had a quite lengthy meeting with the Minister and his officials and received a fairly clear letter, given that this is a complex area of law. Although there is still a bit of a grey area, I will the leave the issue of the exact procedures at that.
Amendment 66 relates to the staff of the public bodies we are referring to here and to the trades unions that represent them. However amicably we deal with the Bill, the Government must recognise that there is a suspicion out there that this Bill, which relates to quangos, is part of a more general attack on public sector employees, their terms and conditions, and their organisations. The Minister may deny that, but pronouncements by some of his colleagues and the media which support the present coalition give at least some justification to that concern. Therefore, a straightforward clause which makes it clear that when we are changing the nature of these bodies, there will be consultation with the staff and their recognised trades unions before the proposal is brought back to Parliament, would be a wise precaution. Like the noble Lord, Lord Pannick, I do not think that the general formulation effectively covers the need to ensure specifically that there is consultation with the employees and their representatives.
Lord Taylor of Holbeach
My Lords, this has been an interesting debate that has built on the progress that we have made since the Government started tabling amendments in Committee, way back in November when consultation was first discussed. I thank the noble Lord, Lord Hunt of Kings Heath, for moving Amendment 65 to set up the debate and the noble Lord, Lord Kennedy of Southwark, for his amendment on local government.
In speaking to Amendment 65, I will also try to deal with the other amendments in this group, Amendments 66 to 68. Amendment 65 would insert a requirement that the public are consulted on all proposals before an order is brought forward under the powers in the Bill. The Government support the principle behind this amendment, which is to ensure that the public are given an opportunity to make their views heard on the reform of public bodies. In many instances it will be entirely appropriate and desirable for the public to be consulted on the reforms that we are delivering using the powers in the Bill. As the noble Lord, Lord Hunt, will know from first-hand experience, the Government publish guidance for departments on best practice in consultation, the current code having been issued under the previous Administration, of which he was a part.
The one-size-fits-all approach in Amendment 65 would not result in a better deal for the public. Where a full public consultation is appropriate, the Government will undertake one. Clause 10 does not preclude public consultation, which will be undertaken where the Government consider it appropriate, followed of course by the extensive parliamentary scrutiny required under new Clause 11. The evidence on whether the Government will act in a responsible and proportionate way is already there for your Lordships’ House to see. Take, for example, the consultation document on reforming the Equality and Human Rights Commission. This has been published in full on the Government Equalities Office website, has been laid in Parliament and will stay open for responses for three months. This is very clearly a reform that affects the public at large, which is why the Minister for Equalities and the Home Secretary decided to run a full public consultation.
However, the noble Lord cannot in all seriousness claim that it would be appropriate or proportionate for a full public consultation to be undertaken on the announcement and detailed implementation of the proposal to abolish Food From Britain, with all the associated costs of ensuring that such a consultation was accessible, widely distributed and adequately publicised, in line with best practice. That is why the Government believe that there should be adequate discretion in Clause 10 for the Minister to be able to carry out a consultation that is proportionate for a particular reform. I am not advocating complete discretion, and the Government have made it clear repeatedly in Committee and on Report that the powers of the Bill should be offset by clear and meaningful standards. Clause 10 plainly sets out these safeguards by defining a statutory minimum that the body or office-holder, and where appropriate the devolved Administrations, and the Lord Chief Justice must all be consulted.
My noble friend Lord Maclennan of Rogart rightly emphasised the importance of this consultative process. The Minister must comply with the Clause 10 requirements, and the details of the consultation must be included in the explanatory document that accompanies the draft order and proposal for Parliament to scrutinise. This is the point that my noble friend Lord Eccles made when he acknowledged his debt to the late Viscount Colville in the scrutiny of statutory instruments in the Merits Committee. It is not absolute discretion but, importantly, it builds in sufficient flexibility to ensure that on defunct bodies the Government are not compelled to run meaningless public consultations that incur unnecessary costs when we can least afford it.
Amendment 66, in the name of the noble Baroness, Lady Royall, runs into two similar issues in that it would put into statute something that in many cases is unnecessary. First, there are cases in which consulting staff would not be appropriate, such as where the proposal is a change to constitutional arrangements that would alter the name or method of appointment of the chair. In this case, Amendment 66 would add an additional burden without producing a meaningful improvement in the consultation process.
Secondly, the noble Baroness’s amendment cuts across existing requirements to consult and inform in specific circumstances. This includes TUPE and redundancy—the noble Lord, Lord Whitty, referred to the discussions that we have had on these—where there is already a requirement to consult trade unions, which was designed to build in a statutory guarantee for the situations in which such a requirement is appropriate. The problem with the amendment is that it would go beyond already well established requirements and codes of practice without considering whether such an additional burden was appropriate. I seek to reassure the noble Lord, Lord Whitty, that the Government are mindful of our obligation to consult trade unions where it fits the requirements of the Bill and to account for that in the explanatory document that we produce with the statutory instrument.
It is a similar story with Amendment 67 in the name of the noble Lord, Lord Kennedy. There would be clear cases in which the groups and organisations captured by his amendment should and would be consulted. However, that does not mean that putting such a provision into the Bill would change the instances in which such groups or organisations are consulted in practice.
Amendment 68 in the name of the noble Lords, Lord Hunt of Kings Heath and Lord Judd, and my noble friend Lord Greaves—neither the noble Lord, Lord Judd, nor my noble friend are here, and I continue to wish my noble friend a speedy recovery—would require a Minister to publish the proposed reform on their department’s website, in the event that a full public consultation was not required.
I do not believe that such a requirement is necessary in the Bill. There are a number of ways of seeking input from interested parties that may or not include publication on a departmental website. It would obviously be a very effective way in a major consultation, but it would be likely to vary over time. It is therefore not possible or appropriate to place these as a statutory duty in the Bill. The code of practice—the noble Lord, Lord Hunt of Kings Heath, is very familiar with it—encourages departments instead to,
“be clear about the reasons why the methods being used have been chosen”,
and further guidance supporting the code provides useful information on alternative forms of engagement that extend beyond simple publication on a website and that may be seen as a soft option when active engagement with stakeholders is preferable.
Consultation is an important issue and one about which the Government feel strongly. We believe that the amendments tabled and adopted in Committee, and which now make up Clause 10, represent a sensible and proportionate way to manage the diverse array of reforms that are being facilitated by the Bill. The amendments in this group, each in their own way, reduce the flexibility of the way in which consultations can be run, in many cases without substantively improving the quality or breadth of consultations.
Amendment 65 specifically requires that all consultations are full public consultations, regardless of whether such a consultation is necessary. It would therefore guarantee that all consultations incurred substantial costs without providing any meaningful improvement to the legislative scrutiny process. Clause 10, as drafted, provides a proportionate obligation to consult on the proposals to reform public bodies. I hope I can reassure the noble Lord, Lord Pannick, that it also provides that Ministers are accountable for that consultation process in the Explanatory Memorandum that they lay with any statutory instrument. Unless the noble Lord feels that the public need to be consulted, for example on the abolition of the already defunct Food From Britain, I urge him to withdraw his amendment.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Lord, Lord Taylor, and all noble Lords who have spoken in this debate. My noble friend Lord Whitty made some very important points about staff and trade unions, as did my noble friend Lord Kennedy about local government.
The noble Viscount, Lord Eccles, referred to the Merits Committee. As the first chairman of the Merits Committee I echo his remarks and the tribute he paid to the late Viscount. I recall that looking at the consultative process undertaken by departments was a very important part of that scrutiny. I certainly take his point that any order that a Minister wished to make under this Bill, when it becomes law, would go through scrutiny by committees of your Lordships’ House. His argument would have more power were the noble Lord, Lord Taylor, to intimate that he is prepared to accept my later amendment on the use of the super-affirmative procedure, but, alas, I do not see the noble Lord quite ready to intervene on that point.
The noble Viscount is certainly right about Clause 10(1)(g). It allows a Minister to consult “such other persons”, but should that be left to ministerial discretion? As the noble Lord, Lord Pannick, said, the powers contained in the Bill are considerable. As a result, there need to be safeguards. I believe that automatic public consultation is one of those safeguards.
The Minister said that he supported the principle behind my amendment and that in many instances it is entirely appropriate and consistent with best practice, but he also said that there may be circumstances in which public consultation is not appropriate, and he instanced an organisation that may have been in abeyance. Surely the response to that comes from the Minister’s friend, the noble Lord, Lord Maclennan, and the noble Lord, Lord Pannick, who say that consultation in those circumstances can be proportionate. Therefore, there could be a very modest public consultation in those circumstances.
Lord Hunt of Kings Heath
“( ) Where the responsible Minister considers that the changes proposed do not warrant a full public consultation under subsection (1), the Minister must publish a copy of the proposal on the website of the relevant government department or make it otherwise publicly accessible.”
Lord Hunt of Kings Heath
My Lords, in the light of the debate, given that this is a very modest amendment, would the Minister consider accepting Amendment 68? I beg to move.
Lord Pannick
I support the noble Lord’s observation. The Minister, in his response to the previous amendment, agreed that a full public consultation would be highly desirable in many, if not most, circumstances, but in some cases it would not be appropriate to have a full public consultation, and it seems to me that Amendment 68 deals precisely with that point.
Lord Taylor of Holbeach
My Lords, I am under instructions to resist—I think that is usually the phrase that is used. However, I understand the arguments that have been put forward by noble Lords to have a requirement, where public consultation does not take place, that at least the proposal is put on the website. I think that the Government are in a position to consider this and, if necessary, will bring forward an amendment at a later stage.
Lord Hunt of Kings Heath
My Lords, that is very handsome of the Minister and we look forward to coming back to this on Third Reading. I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, we come to a very important group of amendments that is concerned with the procedure-making processes in Parliament when it comes to an order. As we have already debated, it is very important, when a Minister seeks to make an order, that it enjoys stringent parliamentary scrutiny. We welcomed the Minister’s amendments to introduce greater scrutiny than was envisaged when the Bill was first drafted. There is no doubt that what he describes as extensive parliamentary scrutiny is an advance. However, I want to encourage him to go a little further.
The Minister will, of course, be aware of the advice that your Lordships’ House has received from the Delegated Powers and Regulatory Reform Committee, which reported to the House on four occasions. I refer noble Lords to the committee’s report of 7 March that reminded the House of the key differences between the noble Lord’s amendment that has been made to the Bill and my amendment. The report said that there are two key differences between the Government’s enhanced procedure and the provision in the Legislative and Regulatory Reform Act 2006 that introduced the super-affirmative procedure on which my amendment is based.
The committee said that under the 2006 Act,
“if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself”.
The committee also reminded us in March that under the 2006 Act,
“a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received”.
The committee pointed out that this matter would also enjoy enhanced scrutiny.
When we discussed this matter in Committee, at col. 1723, the noble Lord, Lord Taylor, essentially said that because Schedule 7 had been removed, the scope of the Bill had been significantly narrowed and a more restrictive scrutiny procedure was therefore required than that in the regulatory reform Act. I understand where the Minister is coming from, but I do not agree with his conclusions. Even with the safeguards that the Minister has introduced and the removal of Schedule 7, the Bill still gives considerable powers to Ministers. When one looks through the Bill, the powers to abolish, to make changes to the financial arrangements, and to change the governance arrangements are considerable. The use of the super-affirmative procedure is, therefore, entirely appropriate.
I know that the noble Lord’s department has said that it believes that the super-affirmative procedure that I propose would risk derailing the Government’s reform programme, but I want to make it absolutely clear that I support the regular review of these public bodies. I have never had any difficulty whatever with the principle of the Bill. No public body should believe that it is entitled to exist for all time. It is right that public bodies should be reviewed. I have no problem at all with that principle in the Bill. However, we come back to the point of ministerial powers. I remember being reminded, when I was sitting or standing where the noble Lord is sitting at the moment, that ministerial powers need to be fettered. Under the Bill, many organisations doing public work can be affected by the use of ministerial power. Parliament needs and deserves the most stringent scrutiny powers possible. The super-affirmative procedure is not new. It is used within the confines of the Legislative and Regulatory Reform Act.
The noble Lord says that if we were to pass such an amendment, it would have an impact on the other place and its procedures. My argument is: let us see. Let this House pass the amendment, agree to the super-affirmative order and see how the other place responds. We are not at the last point of this Bill’s journey through Parliament and it would not be unreasonable for noble Lords to express the view that orders under the Bill should be considered under the super-affirmative procedure. I beg to move.
Baroness Thomas of Winchester
My Lords, I hope that the noble Lord, Lord Hunt, will forgive me if I do not go down the path of discussing his amendment in detail, as I am the chair of the Delegated Powers and Regulatory Reform Committee. However, I will say that this group of amendments gives us the chance to discuss the wider issue of parliamentary scrutiny arrangements of orders made under the Bill.
The House should not try to pin down the Minister today on exactly how scrutiny under the Bill should be conducted, particularly as the other place has yet to consider the Bill. However, it is important to set out a few questions that should be asked at this stage. Under the Bill, every draft order has a 40-day period during which a committee of either House looks at it. This committee must report on the order within 30 days. Under the revised Bill, the committee can require an order to undergo a full, enhanced scrutiny procedure. At present, the Lords committee charged with looking at all orders coming before the House is the Merits of Statutory Instruments Committee, which has been spoken about a lot this afternoon. It may draw orders to the attention of the House either because they may be of interest or because they may imperfectly achieve the policy objective. The committee is already busy and meets nearly every week. The first question might be whether this is the right committee to look at orders made under the Bill, whether under the enhanced scrutiny procedure or not.
In the Delegated Powers Committee’s fifth, sixth and 11th reports, the enhanced scrutiny procedure on orders under the Bill was compared, as the noble Lord, Lord Hunt, said, to the super-affirmative procedure in the Legislative and Regulatory Reform Act 2006. As this is the nearest procedure to the one we are discussing, it may be worth restating that legislative reform orders come before the Delegated Powers Committee, but are significantly different in character from orders under the Bill. The two main differences are that the LRO procedure is not used for highly controversial matters, and that if a committee of either House recommends that no further proceedings are taken on a draft order, then proceedings are automatically stopped unless the House decides otherwise. The committee has looked at only 12 LROs since the 2006 Act.
However, the Bill is likely to generate a lot of work—and, at some point, an entirely new procedure. Therefore, it must be decided quite soon which committee should undertake the enhanced affirmative procedure if it is required. Although this will, of course, be a matter for the Procedure Committee and ultimately for the House, I believe it is worth thinking about now.
There are some fundamental questions to be asked about how a committee should carry out its work before either House decides on a suitable committee structure. Should it simply review the evidence taken during the consultation? Should it take evidence itself? That could be an expensive process. The only purpose in the Bill is, as we heard this afternoon, to improve the exercise of public functions, although it must have regard to the objectives of achieving increased efficiency, effectiveness and economy—the Minister’s triplet—and securing appropriate accountability to Ministers. Suppose the committee decides that the broad purpose of improving the exercise of public functions is not met, will the Minister think again? After all, he only has to have regard to a committee’s recommendations. Obviously the order will have to be passed by both Houses and there is always the possibility of it being voted down. That this House is reluctant to do this should not be taken for granted.
Turning very briefly to the procedure in the other place, the two Houses have different ways of looking at statutory instruments and different committee structures from each other. The only joint committee in this area is the Joint Committee on Statutory Instruments, which just looks at the vires of an instrument with the parent Act. Although a superficially attractive idea, a joint committee is very difficult to establish. I understand that this is too early for any hard-and-fast decisions on how orders made under this Bill are to be scrutinised by Parliament, but it is not too early for Parliament to be thinking hard about the implications of the proper scrutiny of the delegated powers in this Bill.
Lord Phillips of Sudbury
My Lords, my Amendment 69AA is the second amendment in this group. I think that there has been some inadvertent misgrouping in this complicated Bill and I suspect that this amendment would have appeared more happily in the first group of amendments, alongside government Amendment 69A. However, with your Lordships’ indulgence, and since I have no intention of putting this to the vote, I will proceed to seek to persuade the House that this small amendment would serve a large purpose.
In the first group of amendments, the Minister laid great stress on the fact that no order can be made unless there is an Explanatory Memorandum produced so that Parliament can judge what is going on with regard to the order. Earlier today, the Government got through this House with approbation Amendment 60A, which changes Clause 8 and introduces various specific qualities that must be met by any order before it can be enacted: effectiveness, efficiency, economy and securing appropriate accountability to Ministers. Those are quite expressly, by the provisions of Clause 11, to be included in the Explanatory Memorandum. Not included in the Explanatory Memorandum, but a fundamentally important aspect of the protections in this Bill, are the provisions of Clause 16(3). I will read it because it is quite short. It simply says:
“Provision made by an order under the preceding provisions of this Act must be proportionate to the reasons for the order”.
I do not think that anybody sitting here tonight will need convincing that proportionality is one of the most important pillars on which good legislation is built, but there is no reference to proportionality in the provisions of the Bill dealing with the Explanatory Memorandum.
That is still the case after the amendments have been read into Clause 11. Clause 11 as amended requires the explanatory document to introduce and give reasons for the order. The first of those in the earlier government amendment is that,
“the order serves the purpose in section 8(1)”.
There is no reference to Clause 16(3). In simple terms—I do not think that this is contentious; indeed, it seems to me to be an improvement in the Bill, whichever way one looks at it—I want a requirement that the Explanatory Memorandum must also include the Minister’s justifications in terms of proportionality for introducing the order, so that that can be considered along with efficiency, effectiveness, economy and accountability. Whichever way that plays out in the Bill as it will emerge tonight, I hope that my noble friend will accept the amendment in principle so that it can be brought back at Third Reading in the proper place.
Lord Dubs
Amendment 96 is in my name and I feel that, if the mood of the House were different, I could have pushed it pretty hard. I shall briefly explain why I think that it is a matter of importance to the Bill and to our general approach to orders. At the moment, with almost no exceptions, orders are unamendable in this House. If we are unhappy about them, we can only vote them down, in which case we are breaching the convention that we should not undermine something that has come from the Commons where the Commons cannot have a second say. As your Lordships know, if we vote an order down, that is the end of it and the House of Commons has to start the process again. That is an unsatisfactory position on orders and something to which—unless the Minister accedes to the amendment today—I am sure the House will return when we consider Lords reform. The way that this is operating is not right.
When I was a Northern Ireland Minister, most legislation was done by order. Sometimes, the House would be faced with an order 40, 50 or 60 pages long—longer than many Bills—and yet it was totally unamendable. People in Northern Ireland were pretty fed up, saying, “There is a major change in our housing policy and it is going through without an opportunity for it to be debated properly here”. Now, of course, they can do it as they wish in Stormont.
We know that many orders are to give effect to EU legislation. If I understand the Government’s EU Bill correctly, there will be fewer of those in future, as they will be replaced by primary legislation. The EU Bill has not gone through and perhaps that part of it will not—I hope that it will not. If orders to give effect to EU legislation were amendable, we would save the Government a lot of effort with the need to have primary legislation and, at the same time, achieve the objective of giving this House a proper say.
I think that these arguments are pretty sound. I remember that, when I was in the Commons, we found a Bill under which there was an order-making power and, for reasons that totally escape me today, it was possible to amend that. We wondered at the time why Parliament could not amend orders. This seems a very reasonable proposition. I do not think that it would open the floodgates and it would make sense—nowhere more so than in this Bill. A lot of the argument about this Bill is due to the fact that, when the day comes and the Government table the order to give effect to changes to many quangos, we will have no chance to amend it. There may be consultation beforehand or other methods, to which my noble friend Lord Hunt referred, but, on the whole, we will not be able to make an amendment. This is such a simple proposition that I do not understand why it has not been adopted long ago and why it cannot be adopted in the Bill.
Lord Adonis
Can my noble friend clarify one important point? As I understand the amendment in the name of my noble friend Lord Hunt, proposed new subsection (10) in effect gives the House the power to amend an order by agreeing to a recommendation by a committee that an amendment should be made. Does that not meet the point that my noble friend is trying to make in his amendment?
Lord Dubs
It does partly, but Amendment 96 is a little stronger, as it would mean that, when faced with an order, we could simply amend it without any preconditions. If I understand it correctly, the other amendment has a precondition in it, whereas this one does not. My argument is that that would be right not just for this Bill but for the run of orders.
Lord Lester of Herne Hill
Amendment 69 seems unexceptionable. I do not understand why the word “may” is included in Clause 11(1) and the word “must” is in Clause 11(2). I do not understand why there is a need for any discretion in that area. The clause refers to a situation in which,
“after consultation under section 10 the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.
If he is satisfied with all that, he or she should have the obligation to lay a draft order and explanatory document before Parliament. Unless the Minister has some special reason why he needs to retain a discretion, I agree with the noble Lord, Lord Hunt of Kings Heath, on that narrow amendment.
My noble friend Lord Phillips of Sudbury’s Amendment 69AA is on proportionality. This is a bit complicated, but I hope that I have got it right. I like to think that the noble and learned Lord, Lord Mackay of Clashfern, and I are godparents to Clause 16 and, especially, to including proportionality. The principle of proportionality simply teaches that you must use necessary and proportionate means to accomplish a legitimate aim. The Minister is proposing to leave out from Clause 11(2) the words,
“including reasons relating to the objectives in section 8(1)”,
so that it would just state,
“introduce and give reasons for the order”.
Another amendment changes Clause 11(2) to include a reference to purpose in what will be Section 8(1).
The Minister will explain all this, but the reason for leaving out the words,
“including reasons relating to the objectives”,
in Clause 11(2) is presumably that they are unnecessary, because the reasons will be the reasons and, once the reasons are given in the Explanatory Memorandum and otherwise, one has in the Bill the point that my noble friend is making—the Minister will have to state the reasons for the order and then under Clause 16 he or she will have to comply with the principle of proportionality. It therefore seems to me that, subject to drafting points, the substance of what my noble friend Lord Phillips is seeking is already catered for. The principle of proportionality is fully embodied in the Bill because it requires the Minister to state the reasons. When the Minister legislates by order, he or she must do so in a way that is proportionate to achieving the legitimate aims in the reasons. I hope that that is more or less intelligible. I think that I know what I am saying, but others may not. Anyhow, that is the best I can do.
Lord Adonis
The case made by my noble friend Lord Hunt in respect of the super-affirmative procedure is extremely strong. There is a fundamental point of principle here: do we take ourselves, the House of Lords, seriously as a legislature? If we do, I do not believe it right that we should delegate the degree of power that we are delegating to the Executive without retaining more of the power of control simply to debate and amend the proposals that come forward in respect of the merger, abolition or reconstitution of public bodies. The critical factor at stake is that all these bodies were established by statute. They are all important bodies—you just need to read the schedules to see the importance of the bodies listed—and they were all subject to lengthy debate in Parliament when they were established. All that my noble friend Lord Hunt is seeking to do, with the full authority of the relevant committee of the House, is to give the House a somewhat larger power to amend orders and to require proper debate and a proper account by the Government to Parliament where they are not minded to take account of that debate and any amendments that are proposed. It seems to me that, if we are not prepared to stand up for the rights and responsibilities of this House to that extent, we are quite wrongly denuding ourselves of our proper responsibility as a legislature.
Lord Whitty
I can only agree with what my noble friend Lord Adonis has just said with regards to Amendment 71. However, I rise in the regrettable absence of the noble Lord, Lord Newton of Braintree, to speak to Amendment 69D. This refers to the functions of those bodies that are to be abolished in Schedule 1 and would require the Government to give a clear indication of which functions are to be retained and by whom they are to be carried out.
I draw attention to this and have become active on this Bill because of an interest of mine as the former chair of Consumer Focus. Consumer Focus is still in Schedule 1, but, as I have previously argued, that is probably the wrong place, in that the Government have indicated that they want to transfer its functions rather than to abolish them. While Consumer Focus remains as a body to be abolished, it is right that the legislation should require the Government to specify to whom its functions should be transferred. The Government’s current indication is that they wish to transfer the majority of its functions to Citizens Advice and some of its functions to a body relating to Northern Ireland law, the Consumer Council for Northern Ireland. Citizens Advice is a charity incorporated under English law and separately under Scottish law. It is not at all clear that the Government will actually transfer all those functions to Citizens Advice or, pre-empting an amendment that the Minister will move in the last group, whether Citizens Advice would necessarily agree to take on those responsibilities; as an independent charity, it has a right to refuse to do so.
Developments in Scotland and Wales may well also result in somewhat different arrangements being set up after the forthcoming elections. Indeed, arguments relating to the regulated industries are different from the general run of consumer issues. Given all that uncertainty at this stage when we are passing the primary legislation, it is surely incumbent on Ministers or future Ministers to give a clear indication to Parliament of where the current functions set down in primary legislation are going to go or whether they are going to lapse. The amendment in the name of the noble Lord, Lord Newton, would achieve that objective and therefore I see no reason why the Government should not accept it, if not tonight then at some later stage.
In the mean time, I endorse the general view expressed by my noble friends Lord Adonis and Lord Dubs and by the noble Baroness, Lady Thomas, that at some point we are going to have to look at the way in which we deal with the secondary legislation under this Bill, because the normal form of so doing will not be adequate for many of these changes.
Lord Blackwell
My Lords, I am not convinced that the additional procedures set out in Amendment 71 are necessary. I should stress that since I am a member of the Delegated Powers Committee, and a board member of an organisation that is referred to in the Bill, I am speaking in a personal capacity.
Because of the way in which the powers of the Government have been limited as the Bill has passed through the House and the Government have introduced amendments, the proposal that is now set out in the Bill for an enhanced affirmative procedure does what is required. It gives committees the opportunity to state issues and make the House and the Government aware of those issues, and gives the Government the opportunity, which they do not have normally, to amend the order to take account of those concerns. That is an appropriate and proper amendment.
However, I am nervous about transferring more power to any committee for it, of itself, to seek to amend these orders. Moving power from the Floor of the House to those committees would take the role of committees further than it should be taken. As I see it, the role of the committees works well when they are advising the House and they are raising issues. Generally, they deal with such contentious areas—
Lord Adonis
Would the noble Lord be prepared to give that power to the House as a whole, because at the moment there is no other means of amending a statutory instrument? If he is not prepared to give that power to the House as a whole or to a committee, he is not prepared to accept that the House has any power to amend a statutory instrument, which is the central point of principle at stake in this amendment.
Lord Blackwell
I thank the noble Lord for his intervention. I was going on to say that, if there were to be a change in procedures, the change would out-favour the one recommended by the noble Lord, Lord Dubs, to enable that debate to take place on the Floor of the House. However, I am reluctant to see a committee venture into areas that became highly controversial and that moved outside the narrow debate around the appropriateness of the regime and its constitutionality, and end up, in effect, having votes in committees that should be votes on the Floor of the House. It would be a wrong step to try to move committees into taking that view.
Given the way in which orders are dealt with, there is an argument for considering the suggestions made by the noble Lord, Lord Dubs. A more significant issue is whether we ought to have and exercise the power genuinely to vote on these orders. Frankly, if we do not, it is all a bit of a charade anyway. Therefore, I support those who have suggested that it is worth, in the wider scope of things, looking at reforms to procedures to allow amendments to be made and voted on on the Floor of the House and reconciled with the other House. However, that is not achieved by the Opposition’s amendment to move to a super-affirmative procedure, which would create undesirable complications. The way in which the Government have proposed to deal with it is the best compromise within the existing structure of orders.
Lord Mackay of Clashfern
My Lords, on Amendment 69 and “must” instead of “may”, it is a normal convention on the whole that Ministers, if they have the power to do something, are left with that, but it is not a major point one way or the other. However, as for the enhanced procedure and the super-affirmative procedure, that is primarily a matter for Parliament to consider generally, not just in relation to the Bill. The way in which I have seen this Bill develop suggests to me that everyone in the House is agreed that there should be a procedure for a review of public bodies from time to time. The noble Lord, Lord Hunt, has made that very clear in moving this amendment.
We have gone a long way to developing that kind of procedure for the future, because the Bill has in it the power to continue with amendments to the schedules. It now provides for certain entities in the schedules to drop out after a time—a type of sunset clause for the schedules. Therefore, you can always bring one in. If and when another review is required—who knows, it might not be until another Government come along—the procedure that has been laid down here would work perfectly well simply by introducing a public general statute to amend the schedules. It might be among the shortest statutes ever proposed, which of itself would be a good thing.
Here we have a situation whereby, before the procedures start, you have to get the body in question into a public general statute such as the one that we are considering now. Parliament has already used its power to allow that; what the procedure should be thereafter is a matter to work out in practice as the Bill goes forward. I am not in favour of enacting the super-affirmative procedure where Parliament has already decreed the particular subject matter of the Bill. I prefer that that is left. As the noble Baroness, Lady Thomas of Winchester, suggested, this whole subject needs to be considered in due course, but not as part of the present Bill. After all, we have done a fair amount on the Bill already and there is a limit to what is practically possible.
Lord Neill of Bladen
My Lords, the noble Lord, Lord Adonis, expressed the view that there should be an opportunity for parliamentary review when the Minister has decided that the situation is one in which he wants to make an order. Imagine the situation; there has already been consultation with whoever are the proper people to be consulted and, in the light of that, the Minister has concluded that it would be appropriate to make an order. What we are contemplating now, under Amendment 69, is the fact that under the Bill the Minister has time to consider whether he will tell Parliament what he wishes to do, complying with the obligation of setting out an explanation of what he is up to and what the evidence tells him, or whether he will just not tell the Houses what his intentions are, if this is going to be embarrassing or if he does not have the time. That is a discretion that ought not to be conferred. If the consultation has led the Minister to a particular conclusion and he is about to make an order, it is entirely appropriate that we, as Parliament, retain the power to look at his reasons and form our own view about the matter.
Lord Phillips of Sudbury
Is the noble Lord suggesting that Clause 11(2), which requires an explanatory document to be produced to Parliament before the order is laid for consideration, is different from what he is suggesting?
Lord Neill of Bladen
No, my Lords. The word “must” is already in Clause 11(2), and attention has been drawn to that fact. There is no “must” in line 3 on that page, which is where there ought to be a requirement. That is what the amendment is dealing with.
Viscount Eccles
My Lords, I think it was Hegel who got us all into the categorical imperative of “must”. I have certainly tried to organise my life on the basis of using the word as infrequently as possible, but I defer to more expert opinions as to whether it should be “must” rather than “may”. I would like to emphasise the point, which was made much more elegantly than I can by my noble and learned friend Lord Mackay of Clashfern, that we are considering this Bill. I, too, have very strong views about the way in which orders and statutory instruments are laid and the way in which the House considers them.
In thinking about that, my mind goes back to home information packs and the big casino in Manchester. It is not unknown that this House decides that it is not going to live with what at that time was an ordinary affirmative order rather than a super-affirmative order, but Amendment 71 is in danger of over-elaboration. If both Houses of Parliament take Clause 11 as it is in the Bill at present, they have the opportunity for full and adequate scrutiny and, by the recommendations of committees, to put Ministers in the position where they will have to bring forward an amendment.
On the question of amendments, the point is well illustrated by the Bill. Not many amendments are moved by Members of this House that, even if they are approved, remain as they were on the day of approval. They need to go back to the parliamentary draftsmen. The committees of this House do not have parliamentary draftsmen. As an amending and revising Chamber, we do our best work when we persuade the Government that they should take an amendment away and make it into something that will really work as legislation.
Very briefly on the matter of over-elaboration, the amendment of the noble Lord, Lord Hunt of Kings Heath, would make us go back to the consultation and the representations made in that consultation three times—not just the first time because the Minister must lay it out a second time and then, as in the proposed subsection, a third time. That is overly repetitious, because unless it is also specified that something should be put out to a new consultation, the process will be overly elaborate.
I should like to make one other point. If a draft order is referred to committees of both Houses and those committees have the power to put forward amendments but those amendments are in disagreement, it will take a very considerable time to sort out that kind of disagreement between the two Houses. Given that many of the things that will be done when this Bill is enacted are in fact pretty straightforward, simple and not very controversial, to over-elaborate the process is a mistake.
Lord Maclennan of Rogart
I rise briefly to say that I agree with my noble and learned friend Lord Mackay of Clashfern. The issue raised by Amendment 71 is of great importance and ought to be considered in the wider space of the practices of the House as a whole. It does seem anomalous that we cannot amend secondary, subordinate legislation, and therefore it would be attractive if proposals could be referred to committees for consideration because it could be a time-saving approach. It would allow committees to consider in detail matters that cannot effectively be considered in a debate on a statutory instrument that lasts one and a half hours. However, we have some of that process in the House already.
The wide-ranging effects of Amendment 71 would delegate too much power to committees. I take the view that a case still has to be made that committees should have binding authority to prevent legislation being considered on the Floor of the House. That, as I understand it, is what this amendment could result in. It is also not entirely clear if the committee considering whether or not a draft order should be approved under proposed subsection (9) would be an existing committee that took it upon itself to do so. I think that more than one committee has that power, or a power to consider draft orders. It might be the intention of the noble Lord who has moved the amendment that this should be for a special ad hoc committee and not for the Select Committee on Delegated Powers and Regulatory Reform. That is not made clear. However, if an ad hoc committee had to be set up, that would be another stage in the process of deciding whether the measure was of sufficient importance to require that to be done.
This is not a matter to be decided on Report, however important it may be—I am quite clear that it is immensely important. It should be referred for wider consultation in the House, perhaps by the Procedure Committee. This is also a matter that should be considered in conjunction with another place because both Houses have an interest in it. It might make more sense to do that in a Joint Committee.
Lord Taylor of Holbeach
My Lords, this has been an important debate and probably gets to the nub of how this particular Bill can be handled by Parliament and how the secondary legislation which it empowers can be properly scrutinised. I thank all noble Lords who have taken part in it.
In particular, I hope I can reassure noble Lords that the bespoke scrutiny process that the Bill provides for is the proper one for Parliament, giving Parliament proper input into the shape of the secondary legislation. As noble Lords will know, it has been specifically designed for the Bill and included in government amendments. I am grateful for the support of my noble and learned friend Lord Mackay of Clashfern, who has been prepared to give advice on the Bill and the particular constitutional challenge that it has presented, and for the support of my noble friends Lord Blackwell and Lord Eccles for the way in which they have recognised that the process that now exists in the Bill provides for a proper scrutiny process.
I start with Amendment 69, which was first debated in Committee on 9 March. I do not apologise for in effect repeating my remarks from that debate as this amendment is quite technical in nature. It would make it explicit that a Minister wishing to make an order following a period of consultation “must” lay before Parliament a draft order and explanatory document. While Clause 11 states that a Minister “may” lay a draft order and explanatory document, it would in practice not be possible to make an order without following this procedure. Our current drafting reflects the fact that, following a period of consultation, the Minister is not obliged to proceed with the proposal. To my mind, this appears right and proper. I think my noble friend Lord Lester of Herne Hill indicated that this was his interpretation of the current wording.
On Amendment 69AA, tabled—
Lord Lester of Herne Hill
My Lords, I am grateful to the Minister and sorry to interrupt. I was trying to grasp why one needed a discretion, and the Minister has indicated that one needs one because not every order will be required to go through this procedure. That is why it says “may” and not “must”. If that is the position, then I understand it.
Lord Taylor of Holbeach
My Lords, I can confirm that every statutory instrument will have to be accompanied by an Explanatory Memorandum. That is very important if a statutory instrument is proceeding under this Bill.
Lord Hunt of Kings Heath
My Lords, I am sorry, too, but would like this to be clarified. At the moment, the clause says:
“If after consultation under section 10 the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.
The Minister has already decided, in the light of consultation, that he is going to proceed with the order. That is not now in doubt because he,
“considers it appropriate to proceed”.
Surely it should then say that the Minister “must” lay that before Parliament. I do not understand why it is not “must”.
Lord Taylor of Holbeach
I make my point quite simply: if he does not lay an order, he will not get it approved. It is as simple as that; that is the nub of the issue. In order to get the change he requires, he has to lay an order and “may” is the correct word to use, in parliamentary terms, as the noble Lord will know.
Lord Hunt of Kings Heath
The next subsection uses “must”. I know that this is a very familiar argument, but it is quite clear that “must” is often used in legislation and I do not see why it is not used in this case.
Lord Lester of Herne Hill
I am in more of a muddle now than I thought I was. Clause 11(1) proceeds on the basis that,
“the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.
That is the premise. If that is the premise, surely the Minister will have to lay a draft order and an explanatory document. If that is the position and there is no scope for discretion at that stage—because he or she has already made the determination that it is appropriate to proceed—I do not understand why it does not say “shall” or “must”. It says “must” elsewhere and it seems to me that it is a situation where it is a “must” and not a “may”. Maybe I have got it wrong.
Lord Mackay of Clashfern
My Lords, the point that is covered by “may” rather than “must” is that, in the light of the consultation, even if the Minister wants to make an order, he may well think it is right to do something else first; for example, have further consultations and make modified proposals before he proceeds with the order. That is why, in this context, the word “may” is often used when many of us might have thought it was going to happen anyway. That is the reason and I believe it is a good reason.
Lord Phillips of Sudbury
My Lords, I hate to disagree with a noble and learned friend and former Lord Chancellor, but I have to disagree with the noble and learned Lord, Lord Mackay. It is quite clear that this is posited on the basis that, having had the consultation, having considered all things, the Minister then considers it appropriate to proceed with the making of an order. That is perfectly clear. He is then en route to making an order. It then goes on to say,
“the Minister may lay before Parliament”,
but surely, once the Minister is committed to making an order, he must lay it before Parliament.
Lord Mackay of Clashfern
I am sorry to respond, because this is Report and it is the last thing I want to do, but it seems to me that the point is that it says, “make an order”, it does not mean to say that it is an order in anything like the form that is thought of so far. The consultation might well open up new possibilities altogether. The Minister wants to make an order, he wants to proceed, he may do it this way or he may do something else in the way of further consultation and then go ahead with an order different in substance from what he had proposed in the original consultation. That is the reason for it.
Lord Taylor of Holbeach
As it is Report and we are not supposed to be arguing in this way on these matters, I hope the House will accept what I said. This is the advice that I have received and, indeed, the House has received from a number of noble and learned Lords—well, one noble and learned Lord and other noble Lords who might also be learned, but not in the parliamentary sense.
I move on—I will be on safer ground, perhaps—to look at Amendment 69AA, tabled in the name of my noble friend Lord Phillips of Sudbury. It would require an explanation of why a Minister considers the order to be compatible with Clause 16(3), which refers to the need for an order to be proportionate to the reasons for it. We have not included such a provision within the Bill on the grounds that the explanatory document accompanying an order will set out the reasons for that order as a requirement of Clause 11. It will then be for Parliament to decide whether to approve an order and, if necessary, for the courts to assess subsequently whether an order is proportionate in relation to the reasons given.
As we know, my noble friend Lord Newton is not here, but I am pleased that the noble Lord, Lord Whitty, spoke to my noble friend’s amendment, because Amendment 69D would require a Minister, when bringing forward an order under Clause 1, to set out whether any of the functions of a body to be abolished would continue and if so, where they would be exercised in future. I consider this amendment to be unnecessary as such information would as a matter of course form part of the consultation on the proposal required under Clause 10 and the reasons for the order required by Clause 11(2)(a), so we are back to the process of consultation and the explanatory document providing for that.
In connection with Consumer Focus, I remind the noble Lord that Clause 1 allows for the transfer of functions. We will be consulting on our proposals specifically in respect of Consumer Focus, as I have explained, later this year.
The effect of Amendment 96 in the name of the noble Lord, Lord Dubs, would be to clarify the date at which an order made under the Bill, if amended by Parliament, would come into force. I remind the noble Lord that there is currently no facility in the Bill for orders to be amended by Parliament, and I do not propose that such a facility should exist. However, I remind him that, under the enhanced affirmative procedure contained in the Bill, a Minister is at liberty to lay a revised order following the 60-day period. The Minister can take account of representations from Parliament and elsewhere in considering the form of the order as it proceeds.
The wording of Amendment 96 appears to be drawn from the Civil Contingencies Act—that was well spotted by someone, but not me—which was designed to create a framework for dealing with emergency regulations that necessarily circumvent the usual channels of parliamentary scrutiny. In such a specific circumstance, the argument for the amendability of orders is of a different order, but I do not believe that the Public Bodies Bill is of a comparable nature.
I turn to the question of the mechanism by which Parliament will scrutinise these orders, and specifically to whether the very unusual form of super-affirmative procedure proposed by Amendment 71 in the name of the noble Lords, Lord Hunt and Lord Rosser, and the noble Baroness, Lady Royall, is an appropriate mechanism for the Bill. When we last debated this matter in Committee, the noble Lord, Lord Hunt, noted that I had been “forthright” in rejecting this proposal. I would not take issue with that assessment; I have told him privately of the red line that I see on this issue.
I am sure that by now the noble Lord is fully aware of the reasons why the Government will not accept this amendment. Accordingly, I ask the noble Lord to reflect on how far the Bill has come since we first debated this issue during the first Committee session. Since that time, a combination of the expert scrutiny of the committees of this House and a genuine willingness on the part of the Government to engage have led to a series of changes that have significantly restricted the scope of the powers that the Bill gives to Ministers. Government amendments on consultation and procedure have been accepted and now form part of the Bill, ensuring a robust and thorough scrutiny process. Clause 16 now firmly and objectively protects the necessary independence of some public functions—precisely those functions that had caused this House such concern during the early debates on the Bill. Schedule 7 and Clause 11, as was, have of course been removed, dramatically reducing at a stroke the scope of the Bill. The entries in the Bill’s schedules will now be sunset after five years, ensuring that bodies do not remain subject to the Bill’s powers in perpetuity. Lastly, and I take this to be most crucial, this House has thoroughly debated, in primary legislation, whether it is appropriate for each of the bodies in the schedules to be subject to the powers in the clauses to which those schedules apply. In some cases, this House has exercised its right to remove bodies from the schedules.
Lord Hunt of Kings Heath
My Lords, I am sure that we are all very grateful to the noble Lord, Lord Taylor, for his extensive response to this debate. I will make three short points. The noble Baroness, Lady Thomas, is right to raise the wider question of how secondary legislation is dealt with in your Lordships’ House. The Royal Commission on Lords Reform looked at this extensively. One of the outcomes was the development of the Merits Committee but I am sure we need to go further. I hope that when draft legislation on House of Lords reform finally reaches us, we will see that there has been some discussion of that matter. I do not believe you could elect a second Chamber, or make proposals to do so, without looking at the implications for secondary legislation.
On the question of “may” and “must”, I have looked again at the wording of Clause 11. This order falls to be made only after the Minister considers it appropriate to proceed with the making of an order. On that basis, the word should be “must”. On the question of Amendment 71 and the super-affirmative procedure, I accept that the noble Lord, Lord Taylor, has tabled several welcome amendments to improve the Bill and allay many concerns. I just say to him that, none the less, this Bill gives Ministers considerable powers to amend primary legislation through what can be dramatic changes to a number of the public bodies listed in the Bill. On that basis, it is right that Parliament should assert to itself the ability for strong and robust scrutiny. My super-affirmative proposition allows that to happen. I very much hope the House will support me in that regard. I wish to test the opinion of the House.
The Deputy Speaker (Lord Faulkner of Worcester)
Before calling Amendment 69A, I must advise the House that if this amendment is agreed to, I cannot call Amendment 69AA for reason of pre-emption.
Amendment 69A
Lord Taylor of Holbeach
Lord Taylor of Holbeach
“(i) the order serves the purpose in section 8(1), and”
“( ) if the order contains provision made by virtue of more than one entry in Schedules 1 to 5, explain why the Minister considers it appropriate for it to do so, and”
“(7) If, after the expiry of the 60-day period, the Minister wishes to make an order in the terms of the draft, the Minister must lay before Parliament a statement—
(a) stating whether any representations were made under subsection (6)(a); and(b) if any representations were so made, giving details of them. (8) Subject to subsection (10), the Minister may after the laying of such a statement make an order in the terms of the draft if it is approved by a resolution of each House of Parliament.
(9) A committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (7) and before the draft order is approved by that House under subsection (8), recommend under this subsection that—
(a) the draft order should be approved in its current form;(b) the draft order should be amended;(c) no further proceedings be taken in relation to the draft order; or(d) it is more appropriate for the proposals raised in the draft order to be progressed through a bill rather than a statutory instrument, having regard to—(i) the public interest in the functions or decisions of the body;(ii) the need for a body to act independently of government or ministerial direction;(iii) whether the body considers issues of national importance.(10) Where a recommendation is made by a committee of either House under subsection (9)(b) in relation to a draft order, the House may not proceed unless the recommendation is in the same session—
(a) rejected by a resolution of that House; or(b) the House has approved the order as revised by the committee.(11) Where a recommendation is made by a committee of either House under subsection (9)(c) or (d) in relation to a draft order, no proceedings may be taken in that House under subsection (8) unless the recommendation is in the same session rejected by a resolution of that House.
(12) If, after the expiry of the 60-day period, the Minister wishes to make an order in the terms of the revised draft with material changes, the Minister must lay before Parliament—
(a) a revised draft order; and(b) a statement providing details of—(i) any representations made under subsection (6)(a); and(ii) the revisions proposed.(13) The Minister may, after laying a revised order and statement under subsection (12), make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.
(14) However, a committee of either House charged with reporting on the revised draft may, at any time after the revised draft order is laid under subsection (12) and before it is approved under subsection (13), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(15) Where a recommendation is made by a committee of either House under subsection (14) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House unless the recommendation is, in the same session, rejected by resolution of that House.
(16) For the purposes of subsections (8) and (13), an order is made in the terms of a draft order if it contains no material changes to the provisions of the draft order.”
Lord Taylor of Holbeach
“(b) the Welsh devolved functions of the Environment Agency,(c) the Welsh devolved functions of the Forestry Commissioners, or(d) the functions of a Welsh Flood and Coastal Committee.”
“(3A) The Welsh Ministers may by order transfer any function of a Welsh Flood and Coastal Committee to—
(a) a new body,(b) the Welsh Ministers, or(c) any other person exercising Welsh devolved functions.”
“( ) In this section “Welsh Flood and Coastal Committee” means a Regional Flood and Coastal Committee established under section 22(1)(c) of the Flood and Water Management Act 2010 for a region wholly or mainly in Wales.
( ) The Welsh Ministers must consult the Secretary of State before making an order under subsection (1) or (3A) relating to a Welsh Flood and Coastal Committee for a region not wholly in Wales.”
Lord Taylor of Holbeach
“Powers relating to other bodies
(1) The Welsh Ministers may by order abolish any of the following—
(a) an agricultural dwelling-house advisory committee for an area in, or consisting of, Wales;(b) an agricultural wages committee for an area in, or consisting of, Wales;(c) the Environment Protection Advisory Committee established pursuant to section 12(6) of the Environment Act 1995 (Wales);(d) the regional and local fisheries advisory committee established pursuant to section 13(5) of that Act (Wales);(e) a regional advisory committee maintained under section 37(1)(b) of the Forestry Act 1967 for a conservancy in, or consisting of, Wales.(2) An order under subsection (1) may include provision transferring functions from the body being abolished to—
(a) the Welsh Ministers, or(b) any other person exercising Welsh devolved functions.(3) The Welsh Ministers may by order modify the funding arrangements of inspectors appointed by the Welsh Ministers under section 86 of the Water Industry Act 1991 (assessors for the enforcement of water quality).
(4) In subsection (3),the reference to modifying funding arrangements has effect as if the reference in section 4(2)(a) to a Minister were to the Welsh Ministers.
(5) The Welsh Ministers may by order do any of the following in relation to an internal drainage board for an area wholly or mainly in Wales—
(a) modify its constitutional arrangements;(b) modify its functions;(c) transfer any of its functions to—(i) the Welsh Ministers;(ii) any other person exercising Welsh devolved functions;(iii) a company limited by guarantee;(iv) a community interest company;(v) a body of trustees or other unincorporated body of persons.”(6) The Welsh Ministers must consult the Secretary of State before making an order under subsection (5) relating to an internal drainage board not wholly in Wales.”
Lord Taylor of Holbeach
“(2) Where an order under either of those sections transfers functions, the power in subsection (1) includes power to make consequential or supplementary provision—
(a) to modify the constitutional or funding arrangements of the transferor or transferee (subject to subsection (4)),(b) to modify functions of the transferor or transferee, or(c) to confer powers of direction on the Welsh Ministers in relation to functions transferred.(3) Where an order under either of those sections modifies functions of a body or office-holder, the power in subsection (1) includes power to make consequential or supplementary provision to modify the constitutional or funding arrangements of the body or office (subject to subsection (4)).
(4) Subsections (2) and (3) do not confer power on the Welsh Ministers to modify the constitutional or funding arrangements of—
(a) the Environment Agency, (b) the Forestry Commissioners, or(c) any other cross-border operator.(5) In subsections (2) to (4) references to modifying funding arrangements have effect as if the reference in section 4(2)(a) to a Minister were to the Welsh Ministers.
(6) The Secretary of State may by order modify the constitutional or funding arrangements of a person referred to in subsection (4)(a) to (c) in consequence of an order made by the Welsh Ministers under section 12 or (Powers relating to other bodies).
(7) The reference in subsection (6) to modifying the funding arrangements of a person includes modifying the extent to which the person is funded by Welsh Ministers, but the Secretary of State may only modify the extent to which a person is funded by the Welsh Ministers with their consent.”
Lord Taylor of Holbeach
“(1) A person to whom this section applies may make arrangements with another such person for—
(a) a Welsh devolved function relating to the environment exercised by one to be exercised by the other;(b) co-operation in relation to the exercise of their respective Welsh devolved functions relating to the environment;(c) the provision of administrative, professional or technical services by one to the other for purposes relating to the exercise of functions in or as regards Wales.(2) This section applies to—
(a) the Environment Agency;(b) the Forestry Commissioners;(c) any other person exercising Welsh devolved functions relating to the environment.”
(a) the Environment Agency,(b) the Forestry Commissioners, or(c) any other cross-border operator.”
Lord Taylor of Holbeach
“Purpose and conditions for orders made by Welsh Ministers
(1) The Welsh Ministers may make an order under section 12 or (Powers relating to other bodies) only if they consider that the order serves the purpose of improving the exercise of public functions having regard to—
(a) efficiency,(b) effectiveness,(c) economy, and(d) securing appropriate accountability to Welsh Ministers.(2) The Welsh Ministers may make an order under either of those sections only if they consider that—
(a) the order does not remove any necessary protection, and(b) the order does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.”
Lord Taylor of Holbeach
“Consent of UK Ministers
(1) The Secretary of State’s consent is required for an order under section 12 or (Powers relating to other bodies) which transfers a function to, or confers a function on—
(a) the Environment Agency,(b) the Forestry Commissioners, or(c) any other cross-border operator.(2) The Secretary of State’s consent is required for an order under section 12 or (Powers relating to other bodies) made by virtue of section 13 which in any other way modifies the functions, other than Welsh devolved functions, of a person referred to in subsection (1).
(3) A Minister’s consent is required for an order under section 12 or (Powers relating to other bodies) which transfers a function to, or modifies the functions of, the Minister.”
Lord Taylor of Holbeach
“Consultation by Welsh Ministers
(1) Where the Welsh Ministers propose to make an order under sections 12 to 14 they must consult—
(a) any body or person exercising public functions to which the proposal relates,(b) such other persons as appear to them to be representative of interests substantially affected by the proposal, and(c) such other persons as they consider appropriate. (2) If, as a result of consultation under subsection (1), it appears to the Welsh Ministers appropriate to change the whole or part of the proposal, they must carry out such further consultation with respect to the changes as seems appropriate.
(3) It is immaterial for the purposes of this section whether consultation is carried out before or after the commencement of this section.”
“Procedure for orders by Welsh Ministers etc
(1) If after consultation under section (Consultation by Welsh Ministers) the Welsh Ministers consider it appropriate to proceed with the making of an order under sections 12 to 14, the Welsh Ministers may lay before the National Assembly for Wales—
(a) a draft order, and(b) an explanatory document.(2) The explanatory document must—
(a) introduce and give reasons for the order ,(b) explain, in the case of an order under section 12 or (Powers relating to other bodies), why the Welsh Ministers consider that—(i) the order serves the purpose in (Purpose and conditions for orders made by Welsh Ministers)(1), and(ii) the conditions in section (Purpose and conditions for orders made by Welsh Ministers)(2)(a) and (b) are satisfied, and(c) contain a summary of representations received in the consultation.(3) The Welsh Ministers may not act under subsection (1) before the end of the period of twelve weeks beginning with the day on which the consultation began.
(4) Subject as follows, if after the expiry of the 40-day period the draft order laid under subsection (1) is approved by a resolution of the National Assembly for Wales, the Welsh Ministers may make an order in the terms of the draft order.
(5) The procedure in subsections (6) to (9) shall apply to the draft order instead of the procedure in subsection (4) if—
(a) the National Assembly for Wales so resolves within the 30-day period, or(b) a committee of the Assembly charged with reporting on the draft order so recommends within the 30-day period and the Assembly does not by resolution reject the recommendation within that period.(6) The Welsh Ministers must have regard to—
(a) any representations,(b) any resolution of the National Assembly for Wales, and(c) any recommendations of a committee of the Assembly charged with reporting on the draft order,made during the 60-day period with regard to the draft order.(7) If after the expiry of the 60-day period the draft order is approved by a resolution of the National Assembly for Wales, the Welsh Ministers may make an order in the terms of the draft order.
(8) If after the expiry of the 60-day period the Welsh Ministers wish to proceed with the draft order but with material changes, the Welsh Ministers may lay before the National Assembly for Wales—
(a) a revised draft order, and(b) a statement giving a summary of the changes proposed.(9) If the revised draft order is approved by a resolution of the National Assembly for Wales, the Welsh Ministers may make an order in the terms of the revised draft order.
(10) For the purposes of this section an order is made in the terms of a draft order or revised draft order if it contains no material changes to its provisions.
(11) An order may not be made by the Secretary of State under section 13(6) unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Taylor of Holbeach
“(1) An order under the preceding provisions of this Act may not transfer any function to—
(a) a charity, or(b) a person not otherwise exercising public functions who is not a charity,unless the charity or person has consented.”
Lord Taylor of Holbeach
My Lords, it is a great pleasure to introduce this final group of amendments of what has been an excellent Report stage. In moving Amendment 91 I shall speak to the remaining amendments.
Noble Lords will know that considerable concern has been expressed in debate about the relationship between the Bill—and the proposals arising from it—and charities. I am pleased to be able to confirm that the amendments mean that the consent of charities to receive functions as a result of activities under the Bill will have to be sought under the legislation. The amendments are designed to effect that change and I hope that the House will be prepared to accept them.
Baroness Royall of Blaisdon
I thank the Minister for responding to the concerns that we have expressed throughout the Bill about charities. We think that these amendments fit the bill.
Lord Taylor of Holbeach
“(3A) A transfer scheme may not transfer anything to a charity unless it has consented.”
Lord Taylor of Holbeach
Lord Taylor of Holbeach
““charity” has the meaning given in section 1(1) of the Charities Act 2006;”
““cross-border operator” means a person exercising functions or carrying on activities in or with respect to Wales (or any part of it) and England (or any part of it), but does not include—
(a) an internal drainage board, or (b) a Regional Flood and Coastal Committee established under section 22(1)(c) of the Flood and Water Management Act 2010;”
““Wales” has the same meaning as in the Government of Wales Act 2006;
“Welsh devolved function” means—
(a) a function conferred under an Act or Measure of the National Assembly for Wales;(b) a function which is exercisable in or as regards Wales and could be conferred by an Act of the Assembly;(c) a function in relation to which a function (other than a function of being consulted) is exercisable by the Welsh Ministers, the First Minister or the Counsel General to the Welsh Assembly Government,and references to a person exercising a Welsh devolved function do not include a person exercising such a function by virtue of arrangements under section 14”
“( ) For the purposes of subsection (2) in relation to an order laid before the National Assembly for Wales, no account is to be taken of any time during which the Assembly is dissolved or is in recess for more than four days.”
NHS Reform
(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, with the leave of the House, I shall now repeat a Statement that was made in another place this afternoon by my right honourable friend the Secretary of State for Health. The Statement is as follows:
“With permission, Mr Speaker, I should like to make a Statement about NHS modernisation. At the outset I should say that modernisation of the NHS is necessary, it is in patients’ interests and it is the right thing to do to secure the NHS for future generations.
The Health and Social Care Bill is one part of a broader vision of health and health services in this country, which are among the best in the world, where we have world-leading measurement of the results that we achieve for patients, where patients always experience ‘no decision about me without me’, where national standards and funding secure a high-quality, comprehensive service available to all, based on need, not ability to pay, and where the power to deliver is in the hands of local doctors, nurses, health professionals and local communities.
The House will know that the Bill completed its Committee Stage last Thursday. I was also able to announce last week that a further 43 GP-led commissioning consortia had successfully applied to be pathfinder commissioning groups. We now have a total of 220 groups representing 87 per cent of the country; that is 45 million patients whose GP surgeries are committed to showing how they can further improve services for their patients. In addition, 90 per cent of relevant local authorities have come forward to be early implementers of health and well-being boards, bringing democratic leadership to health, public health and social care at local level.
This progress is very encouraging. Our desire is to move forward with the support of doctors, nurses and others who work in the NHS and make a difference to the lives of so many, day in, day out, but we recognise that this speed of progress has brought with it some substantive concerns, expressed in various quarters. Some of those concerns are misplaced or based on misrepresentations, but we recognise that some are genuine. We want to continue to listen to, engage with and learn from experts, patients and front-line staff within the NHS and beyond and to respond accordingly.
I can therefore tell the House that we propose to take the opportunity of a natural break in the passage of the Bill to pause, listen to and engage with all those who want the NHS to succeed and subsequently to bring forward amendments to improve the plans further in the normal way. We have, of course, listened and improved the plans already. We strengthened the overview and scrutiny process of local authorities in response to consultation and in Committee we made amendments to make it absolutely clear that competition will be on the basis of quality, not price. Patients will choose and GPs will refer on the basis of comparisons of quality, not price.
Let me indicate some areas where I anticipate that we will be able to make improvements in order to build and sustain the support for the modernisation that we recognise to be crucial. Choice, competition and the involvement of the private sector should only ever be a means to improve services for patients, not ends in themselves. Some services, such as A&E or major trauma, clearly will never be based on competition and people will want to know that private companies cannot cherry pick NHS activity, undermining existing NHS providers. That competition must be fair. Under Labour, the private sector got a preferential deal and £250 million was paid for operations that never happened. We have to stop that. People want to know that the GP commissioning groups cannot have a conflict of interest, are transparent in their decisions and are accountable not only nationally but locally through the democratic input to health and well-being boards. We, too, want this to be the case. People want to know that the patient’s voice through Healthwatch and in commissioning is genuinely influential. Doctors and nurses in the service have been clear that they want the changes to support truly integrated services, breaking down the institutional barriers that have held back modernisation in the past.
As I told the House on 16 March, we are committed to listening and we will take every opportunity to improve the Bill. The principles of the Bill are: that patients should always share in decisions about their care; that front-line staff should lead the design of local services; that patients should have access to whichever services offer the best quality; that all NHS trusts should gain the freedoms of foundation trust status; that we should take out day-to-day political interference through the establishment of a national NHS Commissioning Board and through strong independent regulation for safety, quality and effectiveness; that the public’s and patients’ voice must be strengthened; and that local government should be in the lead in public health strategy. These are the principles of a world-class NHS that command widespread professional and public backing. All these principles will be pursued through the Bill and our commitment to them as a coalition Government is undiminished. We support and are encouraged by all those across England who are leading these changes nationally and locally and we want them to know that they can be confident in taking this work forward. Our objective is to listen to them and to support them as we take the Bill through.
No change is not an option. With an ageing and increasing population, new technologies and rising costs, we have to adapt and improve. Innovation and clinical leadership will be key. We want to reverse a decade of declining productivity. We have to make productive care and preventive services the norm and we must continue to cut the costs of administration, of quangos and of bureaucracy.
The House knows my commitment to the NHS and my passion for it to succeed. To protect the NHS for the future must mean change—not in the values of the NHS but through bringing forward and empowering leadership within the NHS to secure the quality of services on which we all depend. Change is never easy, but the NHS is well placed to respond. I can tell the House today that the NHS is in a healthy financial position. Waiting times remain at historic low levels, as promised under the NHS constitution. Patients with symptoms of cancer now see a specialist more quickly than ever before. MRSA is at the lowest level since records began. We have helped over 2,000 patients to have access to new cancer drugs that previously would have been denied to them. This is a testament to the excellent work of NHS staff up and down the country and we thank them for their efforts to achieve these results for their patients.
This coalition Government are increasing NHS funding by £11.5 billion over this Parliament, but the service cannot afford to waste any money. We can sustain and build on these improvements only by modernising the service to be ever more efficient and effective with taxpayers’ money. The Bill is a once-in-a-generation opportunity to set the NHS on a sustainable course, building on the commitment and skills of the people who work for it. Our purpose is simple—to provide the best healthcare service anywhere in the world. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Thornton
My Lords, I start by thanking the noble Earl for repeating the Statement. I have to confess that this is a very puzzling moment. I do not recall a Statement in the middle of the proceedings of a Bill—a Bill that has only just finished in Standing Committee in the Commons. I would be grateful if the noble Earl could tell me whether there has ever been a Statement announcing a break, natural or otherwise, in the middle of the passage of a Bill. I wonder what might happen in this natural break, whatever that is. Perhaps the Minister can define this new parliamentary term. How long will it be? Why is it really necessary? What is likely to take place during that period? What exactly are the Government intending to do during that period? It seems to me that the things that the Government have said that they are going to do during that period should have happened anyway before the Bill was introduced and that they should have been ongoing. This should not be necessary.
However, I welcome the recognition in this Statement of the concerns that people have about the speed of change. I question the use of the word “continue” in the Statement in the context of listening and engaging. Frankly, if Mr Lansley had been listening and engaging, this Statement would probably not have been necessary. However, if it means that the Secretary of State really is going into listening mode, I welcome that and look forward to seeing it.
I welcome the fact that the Statement touches on the areas that are of concern to people. I also welcome the recognition in the Statement of the 10 years or so of investment by my Labour Government, which is why the NHS is as successful as it is today. However, I also note that the Statement, just like Andrew Lansley’s Second Reading speech when the Bill was introduced in another place, elides the question of Part 3, which gives great powers to a utility regulator—the new economic regulator, Monitor. Therein lie many of Mr Lansley’s problems, because people have worked out what the implications of that part of the Bill are for the NHS. When will Mr Lansley start to listen to the concerns that have been expressed by the Health Select Committee, all the royal colleges, the health regulators, all the bodies representing employees and staff in the NHS, including the BMA, the patients’ organisations, his partners in this Government, the Liberal Democrats, many of the voluntary organisations involved in health—those concerned with diabetes, heart disease, cancer, asthma and dementia, for example—and, in particular, organisations concerned with long-term conditions?
We can build a picture of what has happened in the past week or so. First, the Prime Minister was wrong-footed by Ed Miliband on 16 March on whether the health service would now be subject to European Union competition law. It seems to me that he went away, found out about it and confirmed that that was the case. Will the Minister confirm that? There has been a stream of media stories reflecting serious concerns about the Health and Social Care Bill. Most recently, in the Daily Telegraph, Sarah Wollaston MP urged her party to drop plans for the radical reorganisation. On 1 April, Elizabeth Rigby, chief political correspondent of the Financial Times, reported concerns about the rapidity of change.
On 2 April, the Telegraph said that the Prime Minister was drawing up key changes to the Bill and planning amendments. This article is remarkably detailed about meetings at Downing Street with David Nicholson, the head of the NHS, and Mr Lansley. It says that Mr Lansley was not for compromising and that reforms had gone too far to be undone, which was the subject of a question that I asked in Oral Questions only today. I ask the noble Earl to confirm whether that is the case.
The Statement also reflects the fact that Mr Lansley is very firm about the Government’s intentions for the NHS, but it is not consistent with the stories in the media about the activities at No. 10 Downing Street. Will the noble Earl tell us who is correct about these matters? I will draw a veil over what the noble Lords, Lord Owen and Lord Tebbit, have said about this matter in the past few days.
I am concerned about exactly what will happen during this natural break, which brings me to my final questions. My concern is that this break is being taken in order to strike a deal. I can just imagine a possible conversation between Nick Clegg and the Prime Minister. Nick Clegg says to the Prime Minister, “We want local accountability strengthened”, which I think many of us here would agree with. The Prime Minister then says to Nick Clegg, “Okay, but your people in the Lords must deliver Part 3 of this Bill to establish the economic regulator, Monitor, without dilution of its powers”. There is no doubt that that would be the prize for the Conservatives. It has been recognised by the noble Lords, Lord Owen and Lord Tebbit, and by the noble Baroness, Lady Williams. I fear that this is about keeping the coalition together rather than any assessment of what the NHS might need at this moment. The past few days have seen David Cameron conceding that he and the Health Secretary have failed to get their message across. There have also been anonymous briefings from No. 10, to which I have referred.
I am further concerned that this is about playing politics with the NHS. Will the Minister reassure the House that that is not the case? This is too important to be used as a political football or to see decisions taken about the NHS simply to save David Cameron’s face or Nick Clegg’s face. What is required now is a rethink, a pause in the legislation and some root-and-branch changes.
Earl Howe
My Lords, I am grateful to the noble Baroness for her not entirely critical response, in that she acknowledged that we are listening to the concerns that have been expressed. I am almost tempted to remind the House of that dictum of Oscar Wilde or at least to modify it: if there is one thing worse than not listening, it is listening.
I believe that it is right for the Government to take advantage of a few weeks where Parliament is going into recess in order to take stock of some of the criticisms that we know are being voiced about the possible effects of the Bill; indeed, some arose in last Thursday’s debate in your Lordships’ House.
Let me answer the noble Baroness’s points in turn. We are clear that the modernisation of the NHS is a necessity and not an option. There is significant evidence that our reforms across the country, as evidenced by the pathfinders mentioned in the Statement, are welcomed by general practitioners. We have been engaged in a continuous process of listening and engaging. The consultation process following the publication of the White Paper, our response to that and our clarification of the kind of competition that we wish to see in the health service are all examples of that approach.
We remain completely committed to the principles of the Bill that patients should be involved in decision-making about their care, that there should be a stronger patient voice and that there should be stronger clinical leadership in the way in which services are commissioned. We are completely committed—I hope that the House will hardly need me to say this—to the founding principle of the NHS: universal access free at the point of use, regardless of the ability to pay. Indeed, that is what the reforms are about. They are about protecting the NHS now so that it can survive into the future.
This pause—and that is all it is—is about taking advantage of the short break in the parliamentary process of the passage of the Bill as we go into the Easter Recess by listening to how these measures are being received on the ground and taking stock of the feedback that we get. It is about ensuring that those implementing the changes on the front line have everything that they need to help the NHS to improve for the better.
We have listened and we will continue to listen. The noble Baroness was a little doubtful that the Government had ever been in listening mode. I hope that she will recognise that, in response to the White Paper consultation last summer, we made a number of changes to our proposals: strengthening the role of health and well-being boards; creating a clearer identity for Healthwatch England; increasing the transparency in commissioning by requiring all GP consortia to have a published constitution; and changing our proposal that maternity services should be commissioned by the NHS Commissioning Board. All those were a response to feedback that we had had. When we introduced the Bill in January, we amended it in a number of ways to respond to particular concerns that had been raised in another place. I have already mentioned competition only being on the basis of quality and not price. We are continuing to listen to the messages that have come out of Committee stage in another place.
It is a pity to hear the noble Baroness criticise our plans for an economic regulator, as that is the way in which we see a fairer playing field emerging for providers to the NHS. We do not have the guarantee of a fair playing field at the moment. As the Statement pointed out, her Government—for the best of motives—engaged the independent sector in providing services to the NHS, but they did so on very preferential terms, which in my book were unfair to and disadvantaged the NHS. We want the system to be blind to the ownership of providers so that patient choice and the quality of services determine where care is provided for the individual patient and so that there is no bias, or as little bias as possible, in the system. You can achieve that only through independent regulation.
It is not true to say that we want a market free-for-all; that is far from the truth. Again, however, this listening exercise will enable us to take stock of opinions on that score. Moreover, if there are some unintended consequences emerging from the Bill as worded, we will certainly address them. We have no wish to get this wrong. As the noble Baroness said, this is too important a matter to get wrong. I hope that, despite her scepticism of and opposition to much of what the Government are seeking to do, she will seek to engage constructively in order to ensure that we take advantage of the opportunity that we now have to drive further efficiencies and quality in the way in which care is commissioned in the NHS. We want to put the patient truly at the centre of healthcare and thereby create a more cost-effective service for the taxpayer. I believe that we will come out of this period of reflection stronger, because no doubt we will have some clear messages that we will need to reflect and act on.
Lord Alderdice
My Lords, I am grateful to my noble friend for repeating the Statement made in another place and I will not rehearse our support on these Benches for reform of the health service. Some of those reasons were wonderfully spelt out by the noble Lord, Lord Turnberg, in his debate on the NHS last week. However, it is no secret that Members on these Benches do not regard the Bill as it presently stands as perfect. Despite the fact that it did not receive a great deal of attention in the speculative narrative of the noble Baroness, Lady Thornton, it is known that my colleagues want to see changes and indeed have welcomed some of the changes that we have already seen.
I wonder if I may press my noble friend on two issues. The first was also raised by the noble Baroness—the timescale. My noble friend indicated that he sees the timescale as using the Recess, but the Health Secretary wishes to engage and consult with a substantial number of people. Given that, when the Bill comes back after Report in the other place with amendments, which we would welcome, can we expect it to come to this House before the Summer Recess or will the natural break take us a little further? That may be necessary, and some clarity would be helpful, if my noble friend can provide it.
Secondly, in repeating the Statement my noble friend mentioned increasing accountability,
“locally, through the democratic input to the Health and Wellbeing Boards”.
I and my colleagues welcome this, but can he spell it out a little further? At present, the locally elected democratic input to health and well-being boards is extremely modest, so we would be keen to see an indication that something rather more substantial might be possible.
Earl Howe
I am grateful to my noble friend. In answer to his first question, it is likely that the period of listening and engagement will extend through the Easter Recess and beyond. The precise duration of the intermission has not been fixed yet because much will depend on the volume of feedback that we receive. While I have not spoken to the usual channels about this, I am still working on the premise that your Lordships’ House will receive the Bill prior to the Summer Recess. I believe that, if the House agrees, we can thereby reach the Bill’s conclusion within a reasonable space of time. That will enable us to adhere to the current timetable for the implementation of our proposals. But that statement does come with what I might call a health warning because we are clear that we want to listen to the opinions of everybody who counts in this, and it could be that the period of reflection may extend into the late spring. But no doubt I will be able to enlighten him further in due course.
My noble friend mentioned the democratic input at health and well-being board level. This is one of the issues that we will want to receive opinions about because I know there has been disquiet on this front. He knows that his party was instrumental in building into our plans the democratic element of health and well-being boards and the fact that they should be situated at local authority level. That was a very positive contribution made by the Liberal Democrat Party which has, by and large, been widely accepted. If there are ways we can bolster that democratic accountability without cutting through the core principles that we have articulated for decision-making in the health service, then we are willing to look at them.
Lord Touhig
My Lords, the Minister said that the NHS was in a healthy financial position and that the Government intend to increase NHS spending by £11.5 billion over the life of this Parliament. Yet, in the last financial year, the NHS had an underspend of £5.5 billion and the forecast this year is a further underspend of another billion. The Chancellor has said that he intends not to hand this money over to the NHS but to keep it in the Treasury. The Nuffield Trust says that this is a retrospective cut in health spending. Does the Minister agree?
Earl Howe
My Lords, the noble Lord needs to bear in mind that the forecast surplus for 2010-11 represents a very small proportion of the department’s budget. It is greatly to the credit of the health service and the department that they have managed to come in on the right side of the line and by a margin that, in the scheme of things, is not significant. I say that without being at all blasé about the figure of £1.4 billion. I suggest to the noble Lord that that represents good financial management. Yes, the money that represents the surplus cannot be carried forward into the subsequent year but that is not the same thing as saying that providers, for example foundation trusts, may not use their carry-forward balances. That is still possible at provider level. I hope, on reflection, that the noble Lord will not think too badly of the way the service has been run in the past few months.
Lord Blackwell
My Lords, I am sure the Minister must be correct that, in a reform of this scale and magnitude, it is right to take as much advantage as possible to listen to those who can help in the implementation and timing of the reforms. I hope he can also assure the House that the Government will not be diverted from the essential purpose of these reforms by those who have never accepted that public services do not need to be run by a central organisation in a public monopoly. As my noble friend will be well aware, we were already some way down this road in 1997 with GP fundholder practices. We wasted five years when the then Government reversed those changes and went back to a centralised organisation before realising that that would not work and had to restart the process of introducing delegation and alternative providers into the NHS.
We are now 10 years further on from that and it is important that the changes are not lost in the voices that will always oppose changes that are necessary to reform the way that the NHS works. I hope that, while listening to those voices, the Minister can assure us that these essential reforms will be carried through and that the period of uncertainty for the NHS will not be any longer than it needs to be before we can get to the kind of reformed NHS that we all want to see.
Earl Howe
My Lords, I am grateful to my noble friend and can give him those assurances. He is right: we have somehow got ourselves into the position of having a National Health Service that is, in essence, managerially and administratively led instead of being clinically led. That has happened by a process of accretion and slow and steady development. We need to get back to one of the principles that the incoming Labour Government articulated in 1997 when they introduced primary care groups. That was an attempt by them to do exactly what we are trying to do: to have clinically led commissioning in the health service. Unfortunately, to my mind, primary care groups morphed into primary care trusts and thereby became administrative units which became more and more divorced from clinical decision-making.
I can reassure my noble friend that we do not want to dilute the principle of clinically led commissioning. We believe that it is right and that we can build on the experience of the past; not just primary care groups, but also the good parts of fundholding, which had some good elements, and practice-based commissioning groups, which the previous Government introduced. This is an important opportunity, as I said earlier, to capitalise on the NHS as it now is and to shed some of the unhelpful elements that get in the way of driving quality and patient care.
Lord Patel
My Lords, the Statement suggests that the Government are satisfied with the performance of the health service, both fiscally and in the quality of care it provides. It is therefore surprising that the Statement also says that we need to improve productivity and quality. How does an economic regulator promote competition based on quality?
Earl Howe
The economic regulator will do two things. It will fix prices for the purposes of the tariff and it will preside over the marketplace—such as it exists—in healthcare so that anti-competitive conduct will be prohibited. It will bear down upon conflicts of interest and anti-competitive practices of all kinds and, in conjunction with the NHS commissioning board, it will ensure that the pricing system in the NHS incentivises quality. There are, as the noble Lord knows, a number of levers that we can use to do that through the tariff.
Lord Warner
Is the Minister aware that many people are concerned about whether the Government will listen excessively to those who make the greatest noise among some of the vested interests that the Bill tries to tackle? Is he aware that many people wish to look at the Bill forensically to make sure that changes in commissioning lead to more competent commissioners, something we have not achieved in the past: that we start to dismantle some of the barriers to entry in order to create more diverse providers; and that we look very seriously at the pricing system to make sure that it does not just put money into the pockets of acute hospitals, but brings more care closer to home?
Earl Howe
I am grateful to the noble Lord, Lord Warner, whose book, I may say—without indicating that I am in receipt of a commission for saying so—deserves reading by every thinking healthcare commentator. He is right, of course; we need to ensure that the vision that I think is shared by many in this House, regardless of party, can be successfully implemented. I recognise the implication of his question, which is that this House is eminently capable of examining the Bill forensically. When it comes to us I have no doubt that we will do that however long it takes, and I look forward to that. However, it would be a rather cloth-eared Government who were insensitive to the voices that have been heard in recent days outside this Chamber and another place. We need to dispel many of the misunderstandings that exist as well as address some of the genuine misgivings that people have. It is right that, without losing too much momentum in the process, we take these few weeks to do just that.
Lord Ribeiro
My Lords, I thank my noble friend for repeating the Statement. The health reforms are necessary because they address the complexity and cost of medical care, which are growing daily as our population also grows. Our elderly population is growing simply because of the improvements in healthcare over the past few years. Here I acknowledge the unprecedented funding provided by the previous Government to stimulate the health service in its development. This Government have agreed to enhance that funding.
The noble Lord, Lord Darzi, signalled a change from process management to service delivery based on quality. This Government have accepted the challenge to pursue a quality agenda, knowing that, although quality care is costly, at the end of the day—particularly in my speciality, surgery—there is no question that good quality care, particularly the use of minimally invasive surgery, leads to early discharges of patients and better outcomes. I hope that this principle of quality is something that the Government will pursue. Is it my noble friend’s intention that the emphasis in health reforms should remain on quality outcomes being the bedrock of the reforms?
Earl Howe
I can reassure my noble friend Lord Ribeiro instantly on that. He will know, I am sure, that the acronym that was coined by the previous Government, QIPP, which stands for “quality, innovation, prevention and productivity”, is symbolic of a whole series of workstreams not just in the Department of Health but throughout the health service to ensure that quality is maintained and enhanced in the service. Unless we deliver higher quality to patients, the service will not be sustainable. Some people say that higher quality care costs more money but, as my noble friend will know from his own craft speciality, the better the care that you deliver the less costly it often is because care that is delivered in a substandard way often results in unintended consequences, such as patients returning to hospital with complications. We need to drive safe care and right care in the system.
Many of the levers that we have to improve quality are not in the Health and Social Care Bill at all—for example, the need to roll out the information agenda, without which there can be little transparency of quality. Those activities are being pursued with energy and drive in my department.
Baroness Northover
My Lords, I think that we have time for both speakers. It is time to hear from the Labour Party and then the Cross Benches.
Lord Beecham
My Lords, months after the Bill was launched upon an unsuspecting world—including, apparently, the Prime Minister—it seems to have been admitted to the fracture clinic if not to the intensive care ward. A number of questions arise from the Statement itself. For example, the Statement says:
“Some services, like A&E or major trauma, clearly will never be based on competition”.
Is not the implication that other services will be based on competition? Will the Minister comment on the predominant role of Monitor as a promoter of competition, as opposed to being simply an economic regulator?
On the GP commissioning groups or consortia, will the Government look again at the composition of those groups as well as their degree of local accountability? Will he also look at the powers of the health and well-being boards? Does he have any views about those in addition to the question of their composition?
As for the NHS being in a healthy financial position, does the Minister have any comment on tonight’s story in the Evening Standard about people who were made redundant last Friday having to be re-engaged by PCTs and other organisations, at considerable cost to the NHS?
Earl Howe
My Lords, those who have been re-engaged by the health service, having taken redundancy or early retirement, will forfeit their redundancy pay because there is a clawback arrangement in force, as I told the House the other day.
The noble Lord asked a number of questions. I want to be very brief because I am aware that the noble Baroness, Lady Masham, wants to get in before the time is up. Monitor was described as a promoter of competition. Expressed in stark terms like that, it sounds as though its job will be to go around drumming up competition where there is none already. That is not a correct reading of its functions; it is there to bear down on anti-competitive conduct and to ensure fair competition. The composition of consortia is a concern that we have heard about, and we will listen to that concern. It is now up to the pathfinder consortium to think about this kind of question. The early implementers of health and well-being boards are starting to think about those powers and how they can be used and we will listen to whatever they have to tell us.
Baroness Masham of Ilton
My Lords, is the Minister aware that patients very often cannot get an appointment with the GP of their choice so there is no continuity? If GPs have to undertake administration on the consortia, will this not get worse? Would it not be better if the consortia consisted of a mixture of GPs, specialists, nurses, administrators and patients? Working together would surely be better than working in conflict.
Earl Howe
The noble Baroness is absolutely right about working together, and our vision for good, clinically led commissioning is that all clinicians, not just GPs but everyone with a stake in the patient pathway, should join together and determine what good care looks like. However, she is mistaken in her first assumption. We are not asking thousands of GPs to become administrators. It will take only a very few to took after the commissioning of care in consortia, and the administration will be taken care of by management employed by the consortia.
Draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010
(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Neville-Jones
That the draft order laid before the House on 20 December 2010 be approved.
Relevant document: 9th Report from the Joint Committee on Human Rights.
The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, the purpose of this draft remedial order is to abolish the certificate of approval scheme to prevent sham marriages. A certificate gives migrants written permission from the Home Office to marry. I am grateful to the Joint Committee on Human Rights for its support in this matter.
In its first report on the order published on 16 November 2010 the JCHR agreed that the scheme should be abolished. It also agreed with the Government’s approach in using this order to achieve abolition. The Government laid a revised order in December 2010 making minor technical changes recommended by the JCHR. In its second report published on 14 March the JCHR recommended that Parliament now approve this order.
The Government want to bring this order into force subject to your Lordships’ agreement. We are doing so for two reasons. First, the domestic courts have declared that the scheme is incompatible with the European Convention on Human Rights. Abolishing the scheme will remove this incompatibility. Secondly, changes made following rulings from the domestic courts have weakened the scheme and the Government do not consider it any longer to be an effective method of dealing with sham marriages.
The certificate of approval scheme was introduced in 2005 by our predecessors to protect the immigration system and marriage laws from abuse, in particular from those entering into sham marriages. The scheme did not and still does not apply to Anglican marriages taking place in England and Wales and this different treatment for non-Anglicans is at the heart of the judgments against the scheme. The House of Lords ruled the scheme unlawful in the case of Baiai by making a declaration of incompatibility relating to the discrimination between civil and Anglican marriages.
The scheme has been modified in several ways to comply with court rulings. This included allowing people who had been excluded from the original scheme to apply for permission to marry—for example, illegal immigrants—and we also suspended the application fee. However, the current scheme is now frankly a shadow of its former self. It is ineffective as a means of preventing sham marriages and we believe that there is no merit in continuing with it. The Government therefore intend to end the scheme, subject to approval, on 9 May. Your Lordships may ask what the effect will be. Indeed, it is hard to know. There is a risk that reports of sham marriages from registrars will rise when the scheme ends. Common sense indicates that this could well be the case. The Government will do their level best to combat the risk with the remaining powers at their disposal, which I am about to outline.
Reports of sham marriages are already rising. In 2009, there were 561 reports of suspected sham marriages; in 2010, there were 934 such reports. We do not know the extent to which this constitutes a real rise or simply better reporting. Either way, there is a problem here to tackle, which must be of concern to everyone in this House. Therefore, when the scheme is abolished, the UK Border Agency will use the powers it still has to tackle sham marriage abuse. It is looking at ways in which it can use them more effectively to stop what is obviously covert immigration. It will obtain sham marriage information from the register office.
The registrars will play a very important role in the future. It is already a key role and it will become even more important. Civil registrars will continue to exercise their duty to report any suspicious marriage to the UK Border Agency, under Section 24 of the Immigration and Asylum Act 1999. The existing rise in the number of reports reflects the work that is already being undertaken by registrars to focus on tackling this abuse. This work will be intensified. It will also ensure that migrants will still be permitted only to give notice to marry at one of a number of designated register offices throughout the UK. This will mean that the UKBA can focus resources on a limited number of locations.
The UK Border Agency will also act on information so that immigration officers will be able to disrupt sham marriages scheduled to take place in churches. The UKBA is building on existing relations with the Anglican Church so that suspicions about sham marriages are reported by clergymen and clergywomen. The UK Border Agency has developed training for members of the clergy to help them identify potentially suspicious marriages. Immigration officers and police will continue to work together to arrest facilitators, brides, grooms, witnesses and guests—anybody who is involved—at ceremonies across the country that are, in fact, sham.
The aim will be to destroy a criminal business if one is taking place. We have already had some notable successes. In the north-west, for instance, seven Czech nationals were recently sentenced to between 16 months and five years for their part in facilitating sham marriages, some of which were also bigamous. Two of the group also received custodial sentences. An operation in the Midlands has so far seen 13 people convicted, with sentences totalling 20 years. Last month the agency mounted its largest sham marriage operation to date, which saw officers swoop on geographically spread addresses in London, Birmingham, Nottingham, Devon and Kent, while a simultaneous operation took place with the Dutch police in Rotterdam and Tilbury. There have also been a number of successful operations where churches have supplied information when they believed a marriage might be suspect. This included the conviction of an Anglican vicar, Alex Brown, and his two co-conspirators, who were recently found guilty of facilitating more than 300 sham marriages.
The UK Border Agency will also prevent a person who has entered into a sham marriage acquiring any immigration rights. The legal position is clear. Those who enter into sham marriages are not able thereby to rely on that marriage to obtain leave to remain or to acquire the right to reside in the UK as the spouse of an EEA national. Third-country nationals wishing to enter the UK on the basis of a marriage to a British citizen or person settled here are and will remain subject to our Immigration Rules. If we believe a marriage to be a sham, an application for leave to remain under the Immigration Rules will be refused. That still has to happen. Those who are discovered taking part in, or facilitating, sham marriages will be prosecuted.
We are closely scrutinising the marriage route to the right to remain and looking at measures to tighten it. We have already announced that we intend to consult on extending the spouses’ probationary period before settlement beyond the current two years. An additional period would allow a longer time to test the genuineness of the relationship. As I said, the Government will do their best to combat the abuse of immigration through sham marriage. I commend the order to the House.
Lord Avebury
My Lords, of course we welcome this order, which corrects a serious error of judgment by the previous Government. We also welcome the Minister’s careful explanation of its purpose and consequences. She said that there was evidence of an increase in the number of sham marriages in the figures for 2009 to 2010. If I have the correct figures, the number of sham marriages increased from 561 in the first of those years to 934 in the second. However, is it not a fact that people do not acquire any additional rights to remain as a result of a marriage when they have entered the country for some other purpose? It would be interesting to find out what the subsequent immigration experience of the people was whose marriages were reported as possibly being sham. I am sure that the UK Border Agency carefully followed up all the reports that the Minister has mentioned. For future reference it would be useful to know how many of the people were subsequently prevented from remaining in the country because it was established that the marriages were not only suspected of being sham but were actually false.
The Minister also spoke about the experience of the police in detecting particular cases. She mentioned the Czechs who were convicted and sentenced to between 16 months and five years for facilitating sham marriages, and said that in some cases those marriages were proved to have been bigamous. Obviously, an offence was committed by those people quite apart from the immigration offence and they would have quite properly been convicted for that reason.
When the Labour Government introduced certificates of approval for marriages between people, either or both of whom were subject to immigration control, there were immediate warnings from those with experience of immigration law and the European Convention on Human Rights that the scheme was discriminatory. The Immigration Law Practitioners’ Association briefing to your Lordships for the Third Reading of the Asylum and Immigration (Treatment of Claimants, etc.) Act said that the provisions on sham marriages did not apply to those who marry in the Church of England and were therefore discriminatory against all other religions, a point that was taken up by the Joint Committee on Human Rights in its report of 30 June 2004 and by every single court that subsequently ruled on the matter.
The incompatibility with the convention was identified by the domestic courts as early as 2006, so the remedial order that we are now considering, which is intended to be “fast track” corrective action following a declaration of incompatibility, has taken five years to mature. Not surprisingly, the Joint Committee on Human Rights regrets the substantial delay. Having set out their intention to use a non-urgent remedial order under Section 10 of the Human Rights Act 1998, this Government acted as quickly as possible to abolish the certificate of approval scheme in response to the House of Lords judgment in the case of Baiai, which had been delivered on 30 July 1998. Will my noble friend say whether it would have made any difference if the matter had been treated as urgent? Does she think that there is any way of speeding up the process generally in any future cases, of which, fortunately, there have been very few so far?
The lesson to be learnt from this episode, however, is that it is dangerous to rush solutions to immigration problems through Parliament towards the end of the proceedings on a Bill without any consultation and in the face of reasoned criticism. The clauses embodying the certificate of approval scheme were introduced on recommitment, a wholly unsuitable mechanism for radical proposals that affect the very institution of marriage, as we said at the time. We were not satisfied that the scheme was effective, proportionate and compatible with the ECHR. The failure of the previous Labour Government to listen to the warnings by the Liberal Democrats, the JCHR and the Immigration Law Practitioners’ Association has cost the taxpayer perhaps hundreds of thousands of pounds in litigation and compensation, and there may be further claims still to come. In particular, there is one case before the European Court of Human Rights, and the JCHR proposed in its 31st report of Session 2007-08 that where there are multiple claims for compensation, the Government should adopt an approach that minimises the burden on the court and expense for the taxpayer. The Government do not consider that there is a significant risk of multiple repeat cases because potential litigants have had plenty of time to challenge the certificate of approval scheme since it was ruled to be unlawful.
There was a scheme for reimbursement of the certificate of approval fee of £295, or £590 where both partners to a marriage were subject to immigration control, but only where the payment caused the applicants real financial hardship at the time of payment. Of the 1,213 requests for repayment of the fee, only 170 had been granted and 49 remained outstanding at the end of January this year. In his letter to the JCHR of 21 December 2010, the Minister said that ILPA was wrong to say that the test for repayment was difficult to satisfy, because anyone able to meet the financial hardship test would qualify. However, the point that ILPA was making was that there was a four-and-a-half year interval between the introduction of the scheme and the date on which the UKBA first made arrangements to reimburse those who had suffered financial hardship. Most people do not keep records for that length of time and might well be unable to produce the evidence required. It does not seem to have occurred to the Minister that this could partly explain the relatively small number of applications for repayment and the 82 per cent failure rate of the ones that were made. I would be grateful if the Minister could comment on that measure.
Lord Rosser
My Lords, this order removes the requirement, known as the certificate of approval scheme, for those who are subject to immigration control to obtain the Secretary of State's written permission to marry in the UK. The Minister has set out the Government's reasons for terminating the scheme on 9 May this year, namely that our courts have ruled that the scheme is incompatible with the European Convention on Human Rights, and the changes that were made following those rulings have significantly weakened the effectiveness of the scheme.
The certificate of approval scheme was introduced in 2005 and clearly had a not inconsiderable effect on addressing the issue of sham marriages. During the life of the scheme there were 120,000 applications for a certificate of approval, of which 5,463 were refused. As has been said, under Section 24 of the Immigration and Asylum Act 1999, civil registrars have a duty to report any suspicious marriage to the UK Border Agency. In 2004 there were 3,578 reports of suspected sham marriages. Following the introduction of the certificate of approval scheme in 2005, reports fell to 452 in 2005, or one-eighth of the total in the previous year, and stayed below 400 cases each year until 2009, when 561 reports were made.
In the light of the court judgments, we support the order, but we need to know a little more than the Minister told us about the measures that the Government are now taking to address the issue of sham marriages, and why they believe that those measures will be successful. The Government have said that the increase in 2009 and the further increase in 2010 to 934 reports of suspicious marriages is an indication of the work that they have undertaken with registrars to focus on this issue. In other words, if the figure increases, we are having more success. However, the figure reduced dramatically when the certificate of approval scheme came in during 2005. That would suggest that a reduction in the number of reports, rather than an increase, indicates success. It could well be, in the light of the current Supreme Court ruling that has reduced the effectiveness of the current scheme, that those involved in sham marriages have started to become somewhat bolder again, and that the increase in the number of reports in the past two years is because of a significantly larger increase in the number of sham marriages.
It would be helpful if the Minister could say why she believes that the possible scenario that I have painted to explain the increase in the number of Section 24 reports is not likely to be the case, and that the scenario that the Government have painted to explain the increase in the number of Section 24 reports is correct. Mr Damian Green MP, the Minister for Immigration is on record in Hansard as saying that the increase in the reports of suspected sham marriages in 2010,
“shows that the certificate of approval scheme was becoming less effective, as well as the success of our crackdown on sham marriage and the subsequent publicity”.—[Official Report, Commons, Fifth Delegated Legislation Committee, 29/3/11; col. 4.]
That could be the case; but if it is, what is the hard evidence that shows that the recent work by the UK Border Agency is actually having an impact on reducing the number of sham marriages, as opposed to simply scratching the surface of an increasing problem?
The Minister for Immigration also referred at the end of last month to more than 130 operations having been carried out over the past 10 months, leading to more than 150 arrests. There is, of course, a big difference between being arrested and being charged, and between being charged and being convicted. Of the 150 arrests to which the Minister for Immigration referred, how many led to charges and how many then led to convictions in relation to sham marriages? Are we to assume from the comments of the Minister for Immigration that the number of people being charged and convicted for involvement in one way or another with sham marriages has increased in the past couple of years as the number of reports of suspicious marriages has started to increase again?
If the number of sham marriages being reported is increasing, how many more years can there be, with figures increasing year on year, before the noble Baroness is no longer convinced that more reports are a reflection of the work done by the UK Border Agency and instead that the increase in reports could be because the measures the Government are pursuing are not as effective as the certificate of approval scheme, and that the problem of sham marriages is getting worse?
I appreciate that targets have gone out of fashion as far as this Government are concerned, but how do they intend to measure the success or otherwise of the measures they are taking to combat sham marriages that were set out in the letter dated 21 December 2010 from the Minister for Immigration to the chair of the Joint Committee on Human Rights? I should also be grateful if the noble Baroness could say something about resources available to combat sham marriages, both human and financial—particularly since sham marriages are a route for illegal immigration—and that dealing with sham marriages is a declared priority for the Government. What will be the number of full-time equivalent staff at the UK Border Agency at the end of this year dealing with sham marriages, compared to the number of full-time equivalent staff in the agency doing so at the end of last year? Is the number projected to increase or decrease in future years? Is the Minister satisfied that sufficient resources are being devoted to this issue to prevent an increase in the number of sham marriages, and is there a plan B if there is compelling evidence that the number is increasing?
For the reasons that I have mentioned, we support the order, but I hope that the Minister will respond to some of the points I have made.
Lord Martin of Springburn
My Lords, I take an interest in these matters because I believe that when I represented the constituency of Glasgow North East there were more asylum seekers in my constituency than in any other in Scotland. That must have been the case, because when I held surgeries on a Friday night after I had finished Speaker's work and come to Glasgow, I used to finish at 8 pm, but when the asylum seekers came in large numbers, it was more like 11 pm.
If I understood the Minister correctly, she said that approved register offices would accommodate immigration officers. It should be remembered that the marriage of a young local girl to someone from abroad is in most cases a time of celebration. Often, friends and relatives want to come along to witness the marriage. If the dedicated register office for the young lady and her new husband to get married in is a distance away from where that person lives, it will create a social difficulty and mean that relatives cannot come along to the marriage.
There is something else that I would like to know. I keep hearing the term “sham marriages”. I understand what is meant by it, but I would rather use the term “suspect marriages”. Has the Minister given any thought to arranged marriages? I have experience of situations where a young girl who is a member of a family that comes from the Indian subcontinent has left her native city of Glasgow and gone back to marry a young man. In the eyes and in the tradition of that family, it is a genuine marriage: the family would not call it a sham marriage. However, the groom may have ideas of getting into the country as a married man and, at a later stage, will perhaps apply to join his bride. They have not been married in this country but abroad. Has the Minister given any thought to arranged marriages where these circumstances often arise?
The second paragraph of the Explanatory Note refers to,
“persons who are subject to immigration control”.
I well understand that someone who is an asylum seeker is subject to immigration control. However, my experience as a Member of Parliament was that often the asylum seeker was refused the right to remain. Sometimes he exhausted the appeal process but stayed in the country for longer than the period when he was applying for asylum. In other words, he stayed on as an illegal immigrant for longer than he had enjoyed the legal status of being an asylum seeker, in the hope that the community would support him or that he might find a lawyer who would find a new way of allowing him to remain in the country. What about the person who has been refused, having exhausted all legal applications and tribunals to stay, but decides to remain? It has been my experience that, in some cases, those who have remained after exhausting all the procedures have sometimes stayed three or four years in the country. Is that person subject to immigration control or is there another category for them? Sometimes before a couple get married they enter into a partnership which may produce children before the actual marriage takes place. What consideration is given to the children of that union and the opportunity for a father or a mother to visit their children in this country?
Baroness Neville-Jones
My Lords, a number of points have been raised. I will deal first with those raised by the noble Lord, Lord Avebury. He is right to say that no additional rights are acquired by this conduct. On the question of the measures that we might be putting in place to deal with the absence of the certificate, I will say two things. The noble Lord asked whether we could have done this more speedily. We laid the orders within three months. The other thing is that it is wise, in order to limit the extent of the abuse and the absence of having the certificate scheme, to intensify and put in place really effective measures. One of the things we have been doing during the time between laying the order and being able to bring it to the House is ensuring that the measures that we have in place are as effective as we can make them. So the time has not been wasted. We have been as fair as we can be about the question of payments and when there has been a question of hardship the money has been refunded. The reason why there are relatively few applications, as the noble Lord said, is that people have had good warning. We do not believe that there is going to be a great splurge of demands following the repeal of this order.
The noble Lord, Lord Rosser, misquoted me and then asked me to approve a whole lot of assertions that I had not made. I did not say that I had a strong belief or confidence that our remaining powers would be effective. It is most unfortunate that the previous Government put in place, as the noble Lord, Lord Avebury, rightly said, a scheme which they were warned would be discriminatory and which has now been struck down. It would have been better if they had put in place one that was capable of continuous implementation. What I said was that it was hard to know what the effect of the abolition of the certificate would be. I also commented that we did not know the extent to which the rise in numbers was attributable to better reporting or to increases.
Lord Rosser
The quote I gave was actually from Mr Damian Green, the Minister for Immigration, who is on record in Hansard as saying that the increase in the reports of suspected sham marriages in 2010,
“shows that the certificate of approval scheme was becoming less effective, as well as the success of our crackdown on sham marriage and the subsequent publicity”.—[Official Report, Commons, Fifth Delegated Legislation Committee, 29/3/11; col. 4.]
So the person to whom I was attributing the success of the Government’s measures was not the noble Baroness but Mr Damian Green, the Minister for Immigration.
Baroness Neville-Jones
My honourable friend in another place was pointing to the efforts that the Government are making to compensate for the absence of a scheme that, had it not been discriminatory, might still exist. Great efforts are being made to ensure that the hinge position now occupied by registrars will be effective. That is why the links between UKBA and registrars’ offices are being increased and intensified, why guidance is being issued to the clergy and why registrars’ offices are being given training to ensure that they can recognise an application for a suspicious marriage if it comes their way.
We have to intensify all those methods. It is difficult to know at this stage whether that will be effective. The Government will do our very best, because it is important and in the public interest that this should not be a route for covert immigration, which it has been becoming—people have been engaged in what we can only call organised crime to get people into this country via that route. We have conducted two publicity campaigns, as my honourable friend in another place mentioned, designed to alert both those who enforce and those who may try to abuse the system that measures are being taken against that.
I say to the noble Lord, Lord Martin, that in Scotland all register offices are designated, so the issue of having to travel does not arise. Only the application has to be made through approved offices. For people who marry abroad, other immigration rules still apply, including an English-language test, so not all the barriers against abuse fall away as a result of the absence of the certificate scheme. The answer to the noble Lord’s question—is a failed asylum-seeker subject to continuing immigration control?—is definitely yes. Anyone without status that enables them to stay will certainly be subject to immigration controls.
No other route will arise from the absence of the certificate scheme that will make it easier for people to abuse the system. We are doing our very best to ensure that the absence of the certificate scheme does not render either the sham marriage route—the suspect marriage route—or any other route to abusing the immigration system any easier to operate. As a general proposition, I think that the House would agree that there is increasing effort both to publicise the fact that the Government intend to act against abuse of the system and to put in place effective measures to ensure that, having said that we will do that, that is the outcome.
Although there is some anxiety in the House, which I share, about our ability to control the situation, we will be monitoring it carefully and making our best efforts to ensure that that route is not used. I hope that the House will feel it necessary to abolish the scheme and, on the basis of the Government putting in place the best methods that we can to control this, approve the order.