Grand Committee
Education Bill
(12 years, 10 months ago)
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The Deputy Chairman of Committees (Baroness Pitkeathley)
I begin as usual by reminding your Lordships that if there is a Division in the Chamber while we are sitting the Committee will adjourn as soon as the Division bells are rung and resume after 10 minutes.
Amendment 1
Lord Northbourne
“Foundation stage
(1) The period in the life of a child between birth and compulsory school age shall be designated as the foundation years for that child.
(2) During a child’s foundation years, the English local authority area of the area in which the child lives is responsible for working with that child’s parents or carers and with relevant services to promote the child’s healthy, physical, social, emotional and cognitive readiness to enter school on reaching school age.”
Lord Northbourne
My Lords, it is fairly apparent that the amendments which we are discussing are probing amendments. They are couched in terms around the importance of school readiness; that is to say children, when they reach compulsory school age, being socially, physically, emotionally and cognitively ready to move into the environment of a primary school. My amendments are intended to raise an important issue: what authority or public body has overall responsibility for providing and for co-ordinating help and support for disadvantaged families and their children during the children’s foundation stage? That is a question to which I hope the Minister may be able to give us an answer because it is far from being clear in the legislation. It is an important question in the context of the Government’s policy to increase equality and social mobility in our schools. I hope that these amendments will provide an opportunity for the Government to outline their policy on this issue for the Committee so that, if necessary, more substantive amendments can be tabled at Report.
There is overwhelming evidence that a child’s parents or carers have a powerful influence on educational attainment and that the foundation years may have more influence on education even than the quality of the child’s school. To improve educational attainment for all we need to improve support for parents in the early years, particularly those experiencing difficulty or bringing up their children in challenging circumstances. Support for families is the task of a generation involving all the agencies which work with children and parents. Local authorities are in the right position to lead and should have, in my view, an explicit duty to do so. If they do not, we have to ask the Government to come off the fence and ask who is responsible for successfully preparing children in the foundation stage.
Recent reports by Frank Field and Graham Allen entitled respectively The Foundation Years and The Next Steps present compelling evidence that investment in early intervention and the foundation years can significantly improve life chances, reduce poverty and at the same time generate potential cash savings which have been estimated at £24 billion or more a year.
My other amendment in this group—Amendment 122 to Clause 40—requires the school inspectorate in proposed new paragraphs (d) and (e) to report on,
“the extent to which the school is working with parents”.
The existing legislation contains awfully little about working with parents, but all good schools should do that; where a school does not, pupils’ chances of success are prejudiced. Parents and Parliament have a right to know which schools are or are not doing their best to harness the contribution which parents can make to their children’s progress. It is interesting to note in this context that a government report that I was reading referred specifically to the success of Chinese children. We all know that Chinese parents are very pushy. They believe in their children, and the results are consequentially very satisfactory.
My proposed new clause addresses the preparation of young people in school, not only for work but for life in the family and in the community. It is intended to ensure that, in partnership with parents, schools pursue active policies so that, as far as possible, pupils have the opportunity at all stages of their school career, in an age-appropriate way, to learn about the exciting opportunities and important responsibilities that will open up to them as they grow up. That includes, of course, at an appropriate age, the joys and responsibilities of parenthood.
The Frank Field report has proposed—I strongly agree—that those issues should be sensitively addressed all through the time of growing up in school. From research he did with pupils in his constituency, he found a strong demand among young people themselves for more help and understanding of the problems that they will encounter as they grow up. Will that recommendation, which to some extent I have encapsulated in the amendment, become part of the Government’s policy or will they sweep it under the carpet?
Lord Peston
I have come specially to support the noble Lord on this. He refers to his amendment as a probing amendment, but in fact he puts his finger on what I regard as the single most important issue of education in our country at this time, particularly with his emphasis on the child’s parents or carers. He referred to the Chinese as pushy, but others of us were certainly pushy when we brought up our children. We were there for them all the time and taught them to read; we read to them first, of course. I am sure that many other parents in this Room have done the same sort of thing, but in this area we really are two nations, because other children’s parents are not like that at all—assuming that their parents or carers are there for them at all. Education is obviously overwhelmingly about personal development, but it also leads to people’s position in a highly competitive society. Too many of these children do not have a chance from the word go.
I hope very much to hear a positive response from the Government. The Government cannot take over the role of the parent—I do not suggest that we live in a society where that would even be remotely contemplated—but they must judge all their policies at least as being supportive in this area of activity. The noble Lord said that he was not going to divide us—of course, we do not divide on such matters in this Room—but we need something rather more substantial in the Bill that corresponds to the spirit of what he said, and that I, and I am sure all my colleagues, would support.
Baroness Warnock
I very much support the amendment for two reasons. I endorse all the things that have been said. First, I hope very much that “foundation years” can be incorporated in the Bill, because it would be useful to have a way of referring to children between nought and school age. Therefore, we might usefully take over that phrase and use it in the Bill. Secondly, and probably much more importantly, the amendment would give a chance for parents and local authorities to make contact with one another. If the local authorities have the duty imposed on them that the amendment suggests, they will know from the outset the position of each child and will be able to co-operate much later on. If the Bill is anything like what it is now, there is a danger that the influence of local authorities will be fragmented, but the amendment would be a start for a local authority to get involved right from the beginning.
Baroness Walmsley
My Lords, we on these Benches very much support the principles of what the noble Lord, Lord Northbourne, is trying to achieve. I am quite sure that this Government will not sweep under the carpet the most important and powerful arguments made by Graham Allen and Frank Field in their excellent reports. I very much look forward to hearing the department’s response to the need for much more early intervention, which I believe will come along the track before very long. Indeed, the Government may decide that another legislative vehicle, which may be before us next year, might be more appropriate for putting forward what the noble Lord, Lord Northbourne, is seeking to do. I absolutely agree with him about the vital importance of the early years, about parents as first teachers and as carers of the child, and the importance of supporting those parents in doing what we all know is the most difficult job in the world.
Lord Ramsbotham
My Lords, I, too, support the noble Lord, Lord Northbourne, in this very important amendment. I also support his suggestion that this will be followed by more substantive amendments on Report.
Clause 1 is more about who things should be done to than what should be done. Here I declare an interest as the chairman of the all-party group on communication and language skills, which has been campaigning for years to try to get every child assessed to see that, in the words of the noble Lord’s amendment, children are ready,
“to enter school on reaching school age”.
I would like to see guidance in the Bill on what assessment should be received by each child to ensure that they are ready and who is responsible for doing it. One problem I have found when trying to get this assessment done is who pays. The people who do the assessment come from the Department of Health, but it is the Department for Education which is putting this through. Some people at the Department for Communities and Local Government are involved, while some are from the Ministry of Justice. Who is going to do this?
The best advice is contained in the excellent report published the other day by Dame Clare Tickell. In paragraph 3.22 of chapter 3, which is entitled “Equipped for life, ready for school”, she recommends strongly,
“that the Government works with experts and services to test the feasibility of a single integrated review”,
at age two to two and a half. That is excellent advice, which I hope will be taken up. Armed with that, then the work can be done to see what needs to be done to make certain that people are ready to back up the tone and the good sense of my noble friend’s amendment.
Baroness Howe of Idlicote
My Lords, the amendment is crucial for everything that follows in education. Frank Field and Graham Allen have set the scene; the sadness is that it has been accepted by all parties that this is the way forward. I am looking at the noble Lord, Lord Elton, who, under the previous Government, was at the forefront of pushing for the early assessment of children to make sure that those who had particular needs, whether special needs or needs related to background, had support. So we have agreement, but we do not have the resources that have been agreed for allocation.
The point that I tried to make in my Second Reading speech is that we must test the effectiveness of this—I do not mean a pilot; it is far too important for that. It must have the back-up of our belief that this is the way forward for such a huge proportion of our young people. The balancing, the nurture groups, and all the things that have been experimented with over the years can be brought into play in this area. We must work on that.
Baroness Massey of Darwen
My Lords, I make one or two comments following up what other noble Lords have said. First, on the Graham Allen report, what struck me was that it talked not just about emotional support, which of course is necessary, but about brain development. We must tackle that issue. Children's brain development happens very early, from the day they are born. If we do not get in there early with interventions, the child's brain will suffer as well as its emotional development. I agree with the noble Lord, Lord Ramsbotham, about the assessment, and with the noble Baroness, Lady Howe, about resources. I believe that the second part of the Graham Allen report will be launched shortly—so the Minister keeps telling me. I wonder whether the Minister has any news on the launch of the second part, which is to do with the resourcing of early years. I hope that he will be able this afternoon to give us some news about that resourcing.
I also want to make a point about stepping back. The noble Lord, Lord Northbourne, has often talked about the need for parenthood education—not just developing children when they are born but stepping back to the generation before and teaching them how to be good parents. That is something that we may pick up on when we talk later about personal, social and health education, or whatever we are calling it. Parenthood education has to be borne in mind when we talk about early intervention for children.
Baroness Perry of Southwark
My Lords, I think we are united on all sides about the importance of the early years. I congratulate the noble Lord on suggesting the designation of the foundation years; that is particularly welcome.
However, I must express considerable concern about subsection (2) of Amendment 1, which puts massive responsibility on local authorities. That is a responsibility for every child born in that the local authority area, including children of parents who are more than competent and motivated to provide all that is necessary for their child, with,
“healthy physical, social, emotional and cognitive readiness to enter school”.
The resources required for a local authority to be able to do that for every child are enormous. Surely those resources should be targeted on children where there is inability—for good or ill reasons—in the family to provide that readiness.
Perhaps it is a matter of wording, but I do not think that we should give responsibility to the local authority for every child born in its area. For every family, every time a baby is born, to have the local authority and its various agencies move to intervene in the raising of that child is neither feasible nor desirable. Let us concentrate our attention where it is needed and not impose those blanket requirements on a local authority.
Baroness Hughes of Stretford
My Lords, I congratulate the noble Lord, Lord Northbourne. It is absolutely fitting and appropriate that the first topic that we are discussing today is support for parents. That is particularly the case given that, in the rest of the Bill, parents are notable only by their absence. Some measures take power and responsibility away from parents. The noble Lord asks which public body has the duty and authority to support parents to ensure that children, especially those from a disadvantaged background, are school-ready, as he said.
The reason that this is so important has just been referred to. Note, for instance, the work of Leon Feinstein: he has shown clearly that a child born with competent potential in terms of both cognitive abilities and development but who grows up in an impoverished environment without enrichment or the stimulation and support from their parents can, before the age of two years, actually fall behind children who are perhaps born with less ability. We get that crossover. That shows how important the years before compulsory schooling are for the development of the synapses, the brain and all the rest of it. They are absolutely critical.
How we support parents is critical in this. While good nursery and early-years provision—we will go on to talk about that—can help to address that imbalance, you cannot sustain those benefits unless you also work with parents to ensure that they understand how children develop and continue in the home what good early education pre-school provision would be doing. In my experience of going round a lot of Sure Start children’s centres, most parents really want both to do this and the support to enable them to do it well. Very few parents do not care about it. Even though parents may not have much understanding or ability, they can be helped to help their children.
At the moment that responsibility to work with parents lies in the mutual co-operation among the children’s services in the children’s trust in each local authority. That is a statutory duty to co-operate. The Sure Start children’s centres in deprived areas have an explicit responsibility to develop services for parents. Many have done groundbreaking work, not only with mothers, which is the normal first port of call, but particularly with fathers as well—that is very important. Local authorities were also given resources and responsibility for developing parental support services and for co-ordinating health and everybody else.
My concern is that all that current apparatus for supporting authorities in developing services is under jeopardy because of both a number of things that have happened and a number of measures in the Bill. In the children’s trust in the Bill, the duty to co-operate by schools from those arrangements is proposed to go. We are all concerned about the future for Sure Start children’s centres, particularly in deprived areas. With the reduction in funding, many local authorities are cutting those services. I do not know what the situation is with local authorities in terms of the parenting support co-ordinators that they were providing resources for. Can the Minister help us today to understand where the duty to support parents will lie following the Government’s measures—those that they have already taken and those that they propose in the Bill? What will be the impact on parenting support of, for example, taking away the duty to co-operate or the reduction in Sure Start children’s centre funding? What commitment do the Government specifically have to support parents and how do they propose to do that? Those are the questions that all noble Lords around the Committee Room today are interested in.
Lord Elton
My Lords, I am not sure that this wagon really needs much more impetus but would like to put in a couple of words. First, on the coat-tails of the noble Lord, Lord Ramsbotham: we both of us looked at prisons—he in much greater and closer detail, I with a much wider scope and rather more briefly. I did three years as Minister for Prisons, among other things. He was Her Majesty’s Inspector of Prisons. We got a binocular view of children when they go wrong, who we saw in vast numbers. It became very clear to both of us that the causes of this come early in life.
I also taught for a time in a slum clearance comprehensive school where I saw dramatically illustrated the effect of lack of love on children in deprived families—not only in deprived ones, as it happens in many families. It is evident that children who do not get enough love early in life do not grow into the people that they ought to be. There can be remedies in a sort of pauline way, but it is a handicap for the rest of most people’s lives. These earliest years are the most crucial.
We then come to mechanisms, which I think are dealt with later. We also come to resources. As many of your Lordships have pointed out, this is going to be expensive as well as complicated. I would like to strengthen the arm of my noble friend Lord Hill for the debates that lie ahead of him—not in Parliament but in Whitehall—and warn him that unless Ministers, and more particularly Ministers’ advisers, can see absolutely, irrefutably demonstrated a cause and effect between a policy and its saving, they are not going to rally to anything which is not already popularly accepted. I found this, first, in running the intermediate treatment fund and then when funding a charity to keep children out of crime. It was at the moment they asked “How much is this going to save?” that we had to say, “It is subjectively perfectly obvious: where this is being done the crime rate has gone down; where it has not been done it has gone up”—and we had many instances of that. However, they can always say, “Ah, but there are other factors that you have not taken into account”.
My noble friend Lord Hill will also meet a local difficulty on which I have great sympathy with him. I can best illustrate it from my experience at the Department of Health and Social Security, as it then was, when I was responsible for the welfare of children other than their health, which meant children in local authority secure accommodation. At that time I had seen a wonderful scheme called the Norfolk Trail, where children who were deprived of love were taken into an organisation and given the close, loving supervision of one adult between four, I think it was, throughout a period of several days and several months. The local justices’ juvenile Bench decided that it would divide into two groups the children who came before them and were convicted of custodial offences: like for like, half would go on to the Norfolk Trail and half would go into custody. At the end of the first year it was evident that there was a considerable reduction in reoffending among those who went into the trail as opposed to those who went into custody.
I took this policy to the Department of Health and said that we should pursue it, and I was asked about the savings. It was pointed out that by the time the savings matured these children would have grown to an age when they were the responsibility of the Home Office and therefore there was no political incentive within the machine for implementing the policy there.
It must be got across to my noble friend and others in government that we must look at this issue entirely holistically and philanthropically, not only in the ordinary world but also in the political world, because the savings in getting it right will be enormous. However, they will also come long after the next two general elections. One has to be disinterested about that because, if we have the welfare of children and this country at heart, the early years have to be put at the top of the agenda.
Lord Sutherland of Houndwood
My Lords, I warm to the spirit of both amendments—who would not? That being said, I want to distinguish between the two. The first amendment is intended to plug a gap that may well develop because of the degree of independence that many more schools will have and the significant risk, therefore, of regarding themselves as islands and apart from other schools and whatever else there is in the community. In those circumstances, it is reasonable to look for where the responsibility will lie for providing what a school reasonably cannot always do, especially before the children come to the school. There is a real issue about where the responsibility lies for this very important prolegomenon to school education.
The second amendment contains three proposed paragraphs about which I have reservations. The amendment relates to what should be inspected and I ask whether we know what we want the Ofsted inspectors to look for in schools. In schools with good middle-class backgrounds, you can do all this; you can see it happening and write your report, and it will be to the benefit of the school. However, in a number of primary schools that I have some association with, which are in very deprived areas of this city and beyond, the head teachers and teachers tell me regularly that one of the main problems is working with parents. That is an intention, a motive and something that they see the need for, but actually doing it is another matter.
For example, one head teacher told me that he had tried everything to get the parents inside the school doors. Inadvertently he succeeded by changing the school diet for a healthy diet at lunchtime; he told the children not to bring Kit-Kats, fizzy pop and so on, and the parents came down to the school in droves to protest. That was the only occasion when he got a significant turnout of parents. In that sort of context, the process of inspection would produce short statements against a series of regulated intentions that were not favourable to the school and would not be helpful to it. If we are going to inspect, we need to do so in a different way.
My primary support therefore is for the first amendment, which tackles the question of where the responsibility lies for taking the school outside its borders.
The Earl of Listowel
My Lords, I support the principles behind my noble friend’s amendments. I pay tribute to the Government for the carefully thought through process that they have begun and for beginning the various reviews—the Tickell review, the Frank Field review, the Graham Allen review—that are proving so helpful now. They highlight and raise the status of early intervention. We have talked for many years, thanks to my noble friend Lord Northbourne, about the importance of early intervention, yet people working in that area are still often the poorest-paid and lowest-status people in this country. The work of my noble friend and others is, I hope, beginning to raise that status. We will hear more about that later in this debate.
I wanted to ask the Minister about the workforce around the child more generally. The previous Government developed a children’s workforce strategy, which was led by Maggie Atkinson, now the Children’s Commissioner. My concern is that for children in their early years, unless one thinks through very carefully what support they and their parents need, one may miss out important branches. For instance, the previous Government were very keen to support children in their early development; they introduced Sure Start and various other measures such as the family nurse partnerships, which this Government are carrying on. These are very welcome, but I spoke with a health visitor in north London who told me, “We haven’t been able to fund our general service for health visitors because the money has been going into family nurse partnerships and Sure Start centres”. So, if one does not have a strategy, the danger is that one can have some very good ideas but Peter ends up robbing Paul. One needs to have some sort of overarching strategy, particularly with regard to the workforce because that takes time to train and develop. I would appreciate a note from the Minister at some point on the Government’s strategy for the children’s workforce.
On the matter of parents and parental support, I am reminded of a visit to a primary school in a deprived area of Windsor, more in the Slough area, that had a large number of children from Traveller families, many of whose parents could not read. The head teacher asked the parents to make a little mark to show that their child had spent half an hour at home doing their homework; the parents did not have to read or help the child, but they ensured that the child sat down and did some work. It is absolutely right that we do all that we can to enable schools to work with parents. Probably the most important thing in my education was the fact that my father sat down and read stories to me, my brother and sister sitting together. That is crucial.
I wonder whether inspection is the best way through. I welcome the push that the Government are making to develop the teaching workforce. The head teacher at Lent Rise, whom I mentioned, was so ingenious in what she did. If we recruit the best people into teaching and give them the best possible training and continual professional development, perhaps they will come up with methods of ensuring that they work with parents—as difficult as that often is.
Lord Laming
My Lords, I will not detain the Committee for more than a moment. I will speak in support of the first part of the amendment moved by the noble Lord, Lord Northbourne. Over the years, we have received report after report—mention has been made of the latest reports by Clare Tickell, Graham Allen and Frank Field—about the importance of early years. Mention has been made of the development of the child's brain. While all the reports are welcome, our record of putting in place the wherewithal to implement the lessons from these reports has not always been good.
The previous Government deserve great credit for the Sure Start scheme. I hope that the Minister will say something encouraging about the continuation of schemes of that kind. The great thing about those schemes is that they are without stigma. Local authorities organised a variety of ways of helping young families. Some of those arrangements were very stigmatised because they were only for children from problem families. Sure Start broke the mould and encouraged all parents to develop their parental skills, learn the benefits of education through play and recognise the importance of child development. I hope that in the spirit of the amendment tabled by the noble Lord, Lord Northbourne, the Minister will say something encouraging about where the Government hope to go in making a practical response to the importance of a child’s early years.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, it is fitting that the first amendment to the Bill relates to the first years of a child's life—and it is doubly fitting that it should be moved by the noble Lord, Lord Northbourne, who has done so much to champion the importance of early years and the role of parents and families. I think that he will be very pleased with the support that he has had for his basic contention from all sides of the Committee. I will do my best to assure him that the Government share his view that the years from birth to starting school are key to a child's life chances.
The term “foundation years” that he uses in his amendment is used by both Graham Allen and Frank Field, and we all recognise the importance of getting children ready for school and ready to learn. So far as concerns the amendment, we do not think it necessary to designate the period afresh in primary legislation because the phrase “early years foundation stage”, established by the Childcare Act 2006, has gained considerable currency in recognition among parents, teachers and other professionals, and we think that we should stick with that.
What would be helpful to parents and to professionals is, I am afraid, another document—this one setting out the entitlement that children and their parents should expect at this crucial stage of development. I say to all noble Lords who raised the point that we will publish such a document in a foundation years statement in the summer. It will build on the Tickell, Allen and Field reviews that a number of noble Lords mentioned. It will set out a clearer strategy, including for workforce development, as the noble Earl, Lord Listowel, requested. I hope that it will provide and bring together a framework and sense of direction that the noble Lord, Lord Northbourne, will welcome. On the question about the second report from Graham Allen, the timing of that is a matter for Mr Allen.
I turn to the second part of the first amendment. As was pointed out by the noble Baroness, Lady Hughes of Stretford, Section 1 of the Childcare Act 2006 already sets out the general duties on local authorities in respect of children in the early years. Local authorities have to “improve the well-being” of all young children in their area and reduce the inequalities between them in relation to,
“physical and mental health … emotional well-being … protection from harm and neglect … education, training and recreation”.
The statutory early-years foundation stage framework sets out the standards of learning, development and care that childcare providers have to make available to all young children in their setting. That framework covers the areas that the noble Lord has identified in his amendment. The Tickell review of the framework has also made some helpful recommendations about how we can improve on its delivery, focusing on the key learning to get children ready for school. The Government have welcomed those recommendations and will publish our full response to them and consult on changes to that soon.
The noble Lord, Lord Ramsbotham, will know that health visitors conduct checks on two to two and a half year-olds, and that we are recruiting over 4,000 extra health visitors by 2015.
It is right for individual providers to support children and their parents through the early-years foundation stage framework rather than local authorities themselves being required to work with individual children and their parents. The existing duties on local authorities, supported by statutory guidance and including duties to support and develop the early-years workforce, are about right. However, it is not just early-years education that affects children’s outcomes. We know that the role of parents and what they do with their children at home in the earliest years is one of the biggest influences on a child’s development; a number of noble Lords have made that point. That is partly why the early-years foundation stage specifies that early-years practitioners must engage with parents and report to them on the child’s progress and achievements. We know from evidence that early-years practitioners find that emphasis in the early-years foundation stage useful for building partnerships with parents and other carers.
The noble Lord, Lord Northbourne, has also tabled an amendment to Clause 40 to raise the important issue of inspection. We will obviously come back to Clause 40 later to debate—I confidently predict—the point around preparation for parenthood and adult life as part of the discussion that we will have on PSHE, so I will keep my remarks on that amendment relatively brief. Noble Lords will know that we are trying in the Bill to sharpen the focus of inspection, to give inspectors the opportunity to look more at some of the core issues—particularly those around the quality of teaching and learning—and to make sure that parents get more meaningful reports. Clause 40 sets out high-level reporting areas and requirements, but beneath that will sit the new inspection framework that Ofsted is developing. Much of the detail will be set out in that document and the guidance to inspectors.
I shall pick up a couple of specific points relating to the noble Lord’s concerns about parental engagement with inspection. Parents will continue to be involved in the inspection process. I assure him that how well the school engages with parents and carers will be an important consideration within the new inspection framework. That will inform the key judgment on the quality of leadership and will take account of engagement with parents on all aspects, including academic and social development. Ofsted is exploring options for gathering views of parents on a continuing basis. I therefore hope that noble Lords will agree that parents have not been left out of our considerations for the new inspection arrangements, which link to the important points made on inspection by the noble Lord, Lord Sutherland. I know that a number of noble Lords have great interest in the detail of how the new Ofsted arrangements will work. The noble Baroness, Lady Morgan of Huyton, has kindly offered to organise an open meeting for Peers with the new acting chief inspector to answer any questions, which I believe will take place next week. I hope that noble Lords will be able to go along to it.
I very much agree with the noble Lord, Lord Northbourne, about the importance of supporting parents’ roles in the educational development of their children. We will be pulling together our responses to these important reviews later in the summer in work led by my honourable friend Sarah Teather. As my noble friend Lady Walmsley mentioned, there is the possibility of further action in future legislation. Through funding for the early intervention grant, increased support for health visitors and doubling the size of the family nurse partnership, we are showing some important financial support in this area.
I hope that I have been able to reassure the noble Lord of the importance that the Government attach to this area. Given the existing statutory framework and the definitions we already have in place, I hope that he feels able to withdraw the amendment.
Lord Sutherland of Houndwood
My Lords, may I remind the Minister that it takes two to tango? Some parents will co-operate—indeed, they may have to be deterred from co-operating—but there are others who, sadly, show no inclination to do so. I hope that in his remarks in subsequent sittings, he will address the question of what, if anything, legislation can do in that area. The co-operation of parents is absent in many cases, difficult to achieve but fundamentally important.
Lord Elton
I urge my noble friend to bear it in mind, and particularly to have it borne in the minds of those drafting the document he promises for telling parents what they can expect in the way of help, that the parents of children we are most urgently wanting to help will have a reading age not much above that of the children. The document must be drafted with an expert eye on the comprehension of the reader.
The Earl of Listowel
Before my noble friend replies, I thank him for the news of the statement this summer and I join the noble Lord, Lord Elton, in asking whether the draftsmen might keep a couple of points in mind. One is the importance of midwives, whom I omitted to mention. In my experience, if a midwife can make a relationship with a mother, particularly a vulnerable mother, there can be many beneficial results in terms of breastfeeding, for example. I am afraid that midwives often feel almost as if they are working in a factory; there is a very mixed experience across this country of what it is to be a midwife.
There is also concern about family support workers because of the cuts in funding to local authorities. I understand that local authorities are living up to their requirements with regard to child protection; they are focusing on the area that is most critical, but there is concern that funding for family support workers is being cut back. It would be good to have information on how that role is being impacted by the recession. Family support workers provide a crucial service for the most vulnerable families, as I am sure your Lordships will agree. I am sure that this will be a part of the statement in any case.
Lord Ramsbotham
May I say how much I welcome the announcement of the foundation years document? Will we have a chance to discuss it in the context of this Bill?
Lord Hill of Oareford
I think that the Committee stage will have finished by then, but I am sure we can find another opportunity to discuss it.
Lord Northbourne
I will not take more than a moment. The Minister said that the Childcare Act 2006 had all the answers, but it does not mention school readiness anywhere. That is what my amendments are about. The noble Lord, Lord Sutherland, raised the question of inspections. I agree that inspections can be traumatic, but if you do not have them, how do you know which schools are and which are not, which local authorities are and which are not, which healthcare services are and which are not? That is a question which needs to be answered.
Finally, I thank the noble Baroness, Lady Perry, for her intervention on the burden that the Bill would place on local authorities. I have to admit that I was tempted to put down a rather wicked amendment that would have suggested that the whole of the foundation years should become the responsibility of the Department for Education—which will benefit whether it is done well or not. On that note, I will of course read what the Minister has said and see whether I want to come back to it.
Forgive me, I have not been well and have a wife waiting outside to take me home. I promise to read Hansard and beg leave to withdraw the amendment.
“( ) In ensuring free of charge early years provision, the local authority has a duty to maximise take-up by groups defined in regulations as disadvantaged.”
Baroness Hughes of Stretford
My Lords, after the debate that we have just had and the unanimous support across all sides of the House from your Lordships for good quality early education, I am sure that the principle of entitlement that exists for three and four year-olds and the proposal that the pilots for disadvantaged two year-olds—which is what this clause actually achieves—are welcome. I certainly have no argument with that.
These amendments seek to do three things. First, since the entitlement for three and four year-olds was first established, we have now reached a benchmark, as noble Lords know, of funding for 15 hours a week for 38 weeks of the year. We believe, in the interests of both parents and certainty, that that level of provision can now be consolidated in primary legislation for the avoidance of any doubt that it could disappear. We also believe that any future changes to the level of provision or to the children who can access it should only be in the direction of improving the provision—unless a future Government want to come back to the House and change primary legislation. Amendments 4 and 5 simply seek to do that.
Amendment 5 would enshrine in the Bill the current level of universal provision—the entitlement of three and four year-olds to 15 hours a week for 38 weeks of the year—so that parents who access it and all the professionals working in that sector know that the Government are absolutely committed to it. This issue was of course raised in the other House. Ministers there gave assurances that they do not intend to reduce that commitment. I accept their word absolutely but they cannot speak for any future Ministers or Governments. In enshrining in primary legislation now this level of provision as the benchmark, we make that commitment clear for parents. If any future Government wanted to reduce that level of provision for three and four year-olds, they would have to come back to the full scrutiny of changing primary legislation. I hope that the Minister will accept that and that other noble Lords can see the logic of what we are trying to do.
Amendment 4 will ensure that any changes in scope to the regulation-making power that the Government have put into the Bill—which will enable provision for two year-olds to be built on—will be progressive. In other words, they will be built on as resources allow. If any changes are proposed that would reduce them, again the Government would have to come back and do so by means of primary legislation.
Those two amendments are important for parents in terms of certainty. They put in statute the direction that the Government have said that they want to proceed in—which I very much welcome. They also start to build an appreciation of the point that the noble Lord, Lord Northbourne, and other noble Lords used in the previous debate that the foundation years are equally important. Parents can now expect at least that free entitlement for three and four year-olds, together with anything further for two year-olds, as part of the process of free education. It is not compulsory before the age of five but it is an opportunity—a free entitlement for youngsters below that age.
Amendments 2 and 7 seek to maximise the impact that this excellent entitlement will have on such youngsters. Amendment 2 seeks to impose a duty on local authorities to maximise the take-up of the free entitlement among groups of disadvantaged children. Noble Lords will know that the take-up of the free entitlement by four year-old children is pretty high—it is well above 90 per cent—but, more importantly, there is a great variance in the take-up among three year-olds in different parts of the country and in different neighbourhoods. Of course, unfortunately the lowest take-up is in the most disadvantaged areas. This is for all the reasons that we have been talking about—the difficulty of engaging with parents and parents being suspicious of what they regard as statutory services, and so on.
In order to improve the impact, particularly on disadvantaged groups—this will have to be done for two year-olds anyway; at the moment, it is a targeted provision—local authorities should be under a duty to maximise the take-up among disadvantaged children whether they are three, four or two years old. In so doing they should make sure that they reach the children who most need it and will benefit most from it but who, at the moment, are least likely to access the entitlement.
Amendment 7 relates to the second big issue that maximises the impact of good early-years education—the quality of provision and the flexibility with which parents can use it. If they are being helped into employment, they should be able to use it in ways that fit in with that employment. However, quality is the main issue. I am concerned that the Government have recently relaxed some of the standards on quality—for instance, the qualifications required by people working in Sure Start children’s centres and the dropping of the qualified teacher status, early-years professional status, and so on.
Amendment 10 seeks to reinstate both the qualification requirements and the ring-fencing of funding for Sure Start children’s centres. This is particularly important and will send a strong signal to local authorities and their partners—in health and elsewhere—that the Sure Start children’s centres will be the bulkhead of the progress that we need to make in early years. It is where some of the best practice has been generated, for example, on multi-agency working, targeting the most disadvantaged children, engaging parents and making a real difference. At the moment the relaxation of the qualification requirement is confusing for providers and the lack of ring-fencing on funding has meant that everything is lumped together in the early intervention grant.
As I have said, we are seeing a great threat to the level of Sure Start provision. This provision is particularly important for the pilots and the development of the offer for disadvantaged two year-olds. Such children require a considerable outreach effort and an engagement with parents—this was funded by the previous Government—because it is not only a provision for getting children into good early-years education but for persuading parents to go along with that. It allows work with parents to continue to enable them to learn good practice in parenting—for example, the importance of reading and singing and all the other things that we have said and understand are important for young children.
Does the funding the Government have set out for the build-up of the entitlement for disadvantaged two year-olds include the cost of the work that was being done through the children’s centres where the early pilots on the two year-old extension was taking place? Does it include the elements of outreach work, parenting support and the communication specialists who are frequently required for these disadvantaged young children? The parents of these children are often teenage single parents who use substances and have all the attendant problems themselves. It is very important that resources are available for working directly with the parents as well as for providing two year-olds with a good quality early education. I beg to move.
Lord Laming
My Lords, there is only one thing that I want to ask the Minister about this. Everything in the Bill is to be welcomed and I strongly support what the noble Baroness, Lady Hughes, has been saying to the Committee. I just wonder what mechanisms the Government are going to employ to ensure that the benefits are going to be felt by those children who come from homes where the parents are least motivated to take advantage of what is in the Bill. In other words, I do not think that we need to worry too much about the highly motivated parents but we need to worry a great deal about the children of the families where the parents have not seen the value of taking advantage of what is in the Bill.
The Earl of Listowel
My Lords, my name is attached to Amendment 10 in this group, on Sure Start children’s centres. I share the view of all your Lordships, I am sure, about the importance of quality of staff, especially when working with vulnerable children in these important early formative years. I look forward to hearing reassurances from the Minister on that point.
I have a wider point about the qualifications of those working with children in the early years, especially if we are encouraging parents to give their two year-old children to these settings. These are very young children at a formative stage of their development. Visiting a children’s centre recently, I was introduced to two young women who had just started. They may well make great Sure Start workers but one of things that the manager had to do, and said that she would be doing, was teach them to speak English. Their accents were so strong—they had not had the best of educations; I think that that is what I am trying to communicate. Because of the low status of the work, women who are attracted to it—and it normally is women—quite often may have had bad life experiences themselves. They need to be carefully chosen and very well supported in these settings
I am led to think about recent reports about care of the elderly, residential care and the care of adults with learning difficulties in residential care. I may be wrong, but we seem to have a problem in this country with giving priority to the workforce working with vulnerable adults or children. I do not know how we manage to do it, but somehow we seem to miss the point that this is the most important job in this society, and we need to attract the best people and reward them correctly. In those cases that related to residential care for the elderly and adult learning, we saw some of the difficulties of relying on inspections, which we rely on heavily to ensure quality. Inspection has an important role, but I imagine that most of your Lordships would agree that recruiting and retaining the best people is the best way to ensure that people are well cared for.
I was speaking on Friday to the manager of a residential care setting for young people. She said that in her experience there was such pressure to cut costs that she was always having to pay people less and reduce the amount of training that she could give them. I understand that the market of early-years provision and nurseries is predominantly a private one. While there are many wonderful private foster care providers, for instance—run perhaps by people who are disillusioned from working in social services by the way that their discretion was fettered and have set up their own company to give a better service for vulnerable young people—it is also the case that some of these companies come to be run by people who have a very close focus on what profit can be made and do not give enough regard to the practitioners and their advice on what direction should be taken.
I am going some way from the amendments, for which I apologise, but this whole issue of quality and the qualifications of the workforce is, to my mind, vital, as is stability. If one has a workforce whose members are not well paid and are not properly trained, it is hardly surprising that there is a high turnover of staff. The key principle that we all recognise young children need, especially very young children, is stability and stable relationships with carers.
My noble friend Lady Massey talked about the impact on children’s emotional development and brain development of not having a stable relationship in their early years. Evidence from research shows that where staff are poorly paid and poorly funded, and there is a high turnover of these young women, the children do not get the opportunity to build a relationship with their carers. In each nursery there is supposed to be a key person for each child. That key person is supposed to carry forward a relationship with that child when the parent is absent and keep that child in mind, perhaps change the child’s nappies and give the child food; that is, pay particular attention to that child. However, given that workers work shifts it is difficult to make that emotional investment in young children; if they do, staff feel distraught when the children leave.
A foster carer who works with young babies recently told me that she cares for young babies who are addicted to heroin, sees them through the first year or so and then has to pass them on to somebody else. It breaks her heart each time she does it. We are asking workers in these settings to act as parents for several hours a day for a long period and they become attached to these children. Unless one supports them in that, they will avoid that attachment. They will sit down with their friends and talk about what they did on a Saturday night, but they will not be thinking about these children.
This is such an important issue that we should insist on entry thresholds that are as high as possible and support the staff working in early years, especially as we are now encouraging parents to put their two year-olds into such care. We should set good clear minimum qualification standards, particularly in Sure Start centres.
Baroness Walmsley
My Lords, I want to pick up the point about staff qualifications. Many of your Lordships will be aware of the EPI report, which was a very rigorous piece of research on the quality of early-years education and its effect on young children. It clearly found that high-quality early-years provision can have enormous personal and financial benefits all the way through the lives of the young people concerned but that very poor-quality early-years provision does not produce any benefit at all and may even have the opposite effect. I am very keen on evidence-based policy-making. That is why we on these Benches have always promoted high-quality early-years provision. Even if the Minister is not prepared to accept any of the amendments that we are discussing, I hope that he will be kind enough to say something about what the Government propose to do to increase the quality of this provision, particularly as regards the qualifications of staff working in early years.
Lord Peston
My Lords, I support my noble friend’s amendments, I note—whether with glee or cynicism, I am not sure—her desire to include this provision in the Bill. I have been in this House for 25 years and if I had a tenner for every time this matter had come up I would be a very rich man indeed. I am sure that the Minister has the word “Resist” on a piece of paper in front of him, and that that was done independently of party considerations because we know that all Governments are perfect and never get anything wrong when drafting legislation. However, I still naively believe that one can improve legislation in your Lordships' House so I totally support my noble friend’s desire to include this provision in the Bill.
Leaving my cynicism mode and getting on to more substantive matters, I note that the word “disadvantaged” appears here. We are not going to remove disadvantage from our society via an education Bill, but I firmly believe—that is why I became an adviser and a politician—that one can improve the society in which one lives via one’s contribution to your Lordships' House. That does not mean that all the disadvantaged will suddenly cease to be disadvantaged, but if we go down this path some of them will cease to be so, and that will be highly productive, both socially and economically, because to the extent that we can improve some young people's lives, they will become the parents of the future and will in turn improve their children's lives. One should not assume that this matter is just about using up resources; we should take a longer view and realise that we will be creating resources by going down this path.
It is broadly my view that if we can achieve anything, it will be a step forward. Although we can nitpick—I am an expert at that if I am in the mood—that is not what we are here for. We are here to make a contribution so that the Bill can be made better and, more importantly, so that the world in which we live can be made a little better.
Lord True
My Lords, I intervene not to spoil the party but to declare an interest as leader of a local authority, so I have an interest in the way in which the amendments are framed. As I declared at Second Reading, my wife is principal of a Montessori nursery school. I agree with almost everything that the noble Earl, Lord Listowel, said. I do not think that he intended to imply—and I certainly could not accept—that private provision is necessarily more to be worried about than some of the bad public provision that I have had occasion to see during my long interest in nursery education.
I apologise to the Committee: I want to take a great interest in the Bill but am involved also in the Localism Bill. If I disappear suddenly after debating the amendments that I am involved with, it will be not because I am uninterested in the clauses that we are discussing but simply because I have tabled amendments to another Bill.
I agree with a lot that the noble Lord, Lord Peston, said about the amendments. We cannot save the world but one should start every day as optimistic as one can be, provided that one does not set oneself unrealistic goals. I am not sure that I would accept the wording that local authorities have an absolute duty, which seems to carry with it a range of potentially legalistic issues. However, of course a local authority will recognise, as we all do, the importance of the early years—that must be common ground here—and will wish to maximise as far as possible the take-up of groups that are defined as disadvantaged. I am sure that most local authorities will voluntarily accept that. The noble Earl referred to Traveller people, who are one example.
I cannot support some amendments so warmly. My problem with Amendments 4 and 5—we will discuss this matter when we come to a later group—is that they are potentially too rigid. Good law should be realistic. As regards so-called pre-entitlement, neither this nor the previous Government willed the resources to make it a reality, and certain consequences have followed which we will discuss later. I see in the financial memorandum to the Bill that the Government are setting aside £308 million to extend provision to the two year-old age group, which all noble Lords in the Committee will welcome. However, the reality is that the country is plunging into debt at a rate of £16 million per hour and we should not set out in legislation things that we are incapable of delivering. That would come outside the definition of optimism that I put earlier.
I agree with what the noble Baroness has set down in Amendment 7. Local authorities will wish to secure high standards and—I have underlined this—flexible organisation. Some other amendments that the noble Baroness tabled seem to be rather inflexible in their constraints: no Government shall ever again change anything that is set down in law. Surely the reality of good early-years provision and good educational provision generally should be flexibility, diversity and a range of provision. So I found a slight conflict in those amendments, but I could welcome the noble Baroness’s amendment if she looked equally kindly on my Amendment 8 in the next group.
The aspiration is welcome but realities on the ground, the speed at which we can go and, frankly, the issues that could potentially be raised by the rigidity of some of the amendments mean that I could not support them in the main.
Lord Hill of Oareford
My Lords, I congratulate the noble Lord, Lord Peston, on his astonishing mindreading powers. We have been here only an hour and already he knows my innermost thoughts and what my briefing is likely to tell me.
It is clear that all sides of the House recognise the crucial importance of investing in the early years. We all know what difference high-quality early education can make in the long term to social mobility and the life chances of all children. That is why I was struck at Second Reading by the widespread welcome that there was for Clause 1, a clause that builds on the legacy that the noble Baroness, Lady Hughes of Stretford, established through the Childcare Act 2006. Because of her experience in this area I listened to what she had to say with a great deal of care. I was also pleased to see that the JCHR welcomed the extension of free early-years provision as a human-rights-enhancing provision.
I think that noble Lords accept the Government’s commitment to improving opportunity for all our children but particularly for the most disadvantaged. I argue that we have shown that in a number of ways—in difficult economic circumstances, as my noble friend Lord True has reminded us. My right honourable friend the Chancellor managed to protect funding for the three and four year-old entitlement and provide additional funding for disadvantaged two year-olds. That additional funding amounts to £64 million in 2011-12, £223 million in 2012-13, £331 million in 2013-14 and £380 million in 2014-15.
In response to the specific question asked by the noble Baroness, Lady Hughes, we have put some additional funding in for 2011-12 through an early intervention grant to 15 local authorities to help prepare for the new entitlement for two year-olds and for helping us to test various approaches to the expansion of places in readiness, with the entitlement to be rolled out in 2013.
We have also seen the introduction of the pupil premium, building up to £2.5 billion by 2014-15. I should also say that the Department for Education—with the Department of Health, as I have mentioned—will be publishing a policy statement in the summer that will set out our joint vision. Part of that will look at the important issue of outreach and family support through Sure Start children’s centres.
Amendment 2 would place a duty on local authorities to maximise the take-up of the free entitlement to early-years education by groups defined in regulations as disadvantaged. As the noble Baroness, Lady Hughes, alluded to, there is already a high level of take-up of the current free early-years provision. The most recent statistics, released last week, show that last January 95 per cent of all three and four year-olds were benefiting from some free early-years education—I think that it is 97 per cent for four year-olds and 93 per cent for three year-olds. That is nearly 1.25 million children, a high figure. However, I agree that we must not forget the small minority of children who are still not receiving that entitlement, particularly since, almost by definition, they are the ones likely to be the most disadvantaged.
Baroness Hughes of Stretford
Does the Minister agree with my point that underneath that figure of 93 per cent for three year-olds there is considerable variance, and that the lowest take-up is in the areas of the greatest disadvantage?
Lord Hill of Oareford
I suspect that that is true. I do not know the precise figures, but that sounds as though it could be true, which is why it is extremely important that we do all we can to make every effort to reach out to those families and to encourage them to take advantage of that entitlement. I will come to that.
We know that children who achieve a good level of development at age five go on to do much better at school. I do not need to rehearse the argument why that is important. There is wide acceptance that extending that entitlement to disadvantaged two year-olds and engaging their parents earlier is a key part of our strategy for taking up entitlement at the age of three and four. If we can do better at the age of two, that will help, in part, to address the noble Baroness’s point about take-up at three.
With that same goal in mind, we are committed to retaining a network of Sure Start children's centres, but with a greater focus on identifying and supporting the most disadvantaged. I completely accept that children’s centre outreach workers play a critical part in reaching the most vulnerable families and are well placed to make them aware of all the support available. As was mentioned in our earlier debate, we have invested funds to create another 4,200 health visitors. I hope that that will also help to spread the message.
We are taking a range of measures to help disadvantaged young children, with the goal of increasing the take-up of free early education and their readiness when they start at school. On the additional duty that the amendment proposes, I believe that the existing legislative framework provides for what the noble Baroness seeks. Section 3 of the Childcare Act 2006 already requires local authorities to take steps to,
“identify parents or prospective parents in the authority's area who would otherwise be unlikely to take advantage of early childhood services that may be of benefit to them and their young children, and … to encourage those parents or prospective parents to take advantage of those services”.
Existing legislation places duties on local authorities to that end.
Amendment 4 is intended to ensure that the existing offer of free early education for three and four year-olds and the new offer for disadvantaged two year-olds continue at least at their current level. The amendment would make the current entitlement the baseline, which is an aim that I understand. We decided to implement the extension of the number of hours per week from 12.5 to 15 hours from September 2010. As the noble Baroness, Lady Hughes, was kind enough to recognise, we have made clear our commitment to continue to fund the enhanced three and four year-old offer and to build to the new two year-old offer during the rest of the spending review period until 2015. I hope that noble Lords will accept that the Government have given absolutely explicit assurances about those priorities.
I appreciate what the noble Baroness is trying to achieve by her amendment, but it could restrict our aspirations, or those of a future Government, to improve the entitlement for parents by allowing it to be taken in more flexible ways. I know that that would not be her intention. As drafted, it is possible that it could prevent future regulations giving entitlement to fewer hours in one year and a greater number of hours in another year, if that suited the family circumstances.
I now come to the point made by the noble Lord, Lord Peston. I believe that we should try to avoid that degree of prescription in the Bill. The Childcare Act 2006 provided for the entitlement for three and four year-olds—both the amounts and their ages—to be set out in regulations. That has worked very well. The original regulations, which I think were signed by the noble Baroness, Lady Hughes of Stretford, came into force in 2008. I argue that now, as then, we should continue to set out the principles in primary legislation and details in regulations.
Amendment 5 would require that regulations made under new Section 7 set out that all children are eligible for free provision from the start of the term following their third birthday. That position is set out in the current regulations.
I will make it as clear as I can that the Government have no intention of removing free provision for every three and four year-old. That commitment, as the noble Baroness, Lady Hughes, said, was made during the passage of the Bill in another place, and I am happy to confirm it today. I am also glad on behalf of the Government to have the chance to build on the current free offer of entitlement by extending it to the most disadvantaged two year-olds. Current legislation would not allow us to target that provision; that is why we need Clause 1.
Amendment 7 deals with the important issue of the quality and flexibility of the early-education settings that offer the free entitlement. I hope that I will be able to assure noble Lords that we take seriously the issue of quality in the early years. Clause 1 provides that, in discharging their duties, local authorities must have regard to any guidance given by the Secretary of State. That mirrors existing legislation under which local authorities must have regard to the code of practice on delivery of free early-years provision. The current code was published in September 2010 and includes sections on flexibility and quality.
We plan to consult in the autumn on revisions to the code of practice on free entitlement, including on provision for disadvantaged two year-olds. The consultation will make proposals and invite views on the issues both of flexibility and quality. We want to hear the sector's views on what we can do to ensure that children can access the free entitlement in a high-quality setting and in increasingly flexible ways that will work for parents and providers. Therefore, it is right that matters such as this are included in the code of practice, where they can be set out more fully and can allow for departure from guidance where local or individual circumstances mean that there is good reason for this, rather than in legislation. That approach has served us well to date.
Local authorities are funded through the early intervention grant to provide, among other things, advice and support to early-years providers to help them to improve their quality. The Department for Education is also grant-funding a range of voluntary sector organisations, including the National Childminding Association, the National Day Nurseries Association, the Pre-school Learning Alliance and others, to provide support to local authorities and providers with the aim of improving quality.
In response to the question of my noble friend Lady Walmsley, I say that we are committed to a high-quality early-years workforce. The Children's Workforce Development Council will continue to deliver the early-years professional status and the new leaders in early-years programmes. We are also considering recommendations made in Dame Clare Tickell’s review and have set up the group chaired jointly by Bernadette Duffy, who is head of Thomas Coram Children's Centre, and Jane Haywood, chief executive of the CWDC. The group will take forward recommendations, including those about improving quality in the workforce.
Amendment 10 concerns children’s centres: their sufficiency to meet local needs and the qualifications of staff working in them. There is broad agreement on the importance of Sure Start children's centres as a way of providing parents of young children with access to services that include family support and healthcare, early-years education, childcare and advice on training and employment. These are the main way in which local authorities bring together these services to improve results for young children and their families. We know that overall there have been improvements in early-years foundation stage outcomes and that children's centres form an important part of that landscape.
Section 5A(1) of the Childcare Act 2006 requires local authorities to ensure sufficient children's centres to meet local need so far as is reasonably practicable. This relates to the points made by my noble friend Lord True. Local authorities must be able to determine local priorities in the context of their many responsibilities and available resources. As the previous Government recognised when they proposed this provision in 2009, “so far as is reasonably practicable” should be included in the wording because local authorities need to be given flexibility. In any financial climate there are always constraints on the resources of those responsible for commissioning services and there are always competing priorities. It was got right back in 2009 and that is where one should rest.
The Earl of Listowel
Before the noble Baroness replies, can I pick up two or three points in what the Minister said? To begin, I again warmly welcome the Government’s commitment to recruit more health visitors. That just seems so vital and may well answer some of the noble Baroness’s concerns.
I mentioned recently a visit to Walthamstow where a health visitor saw a mother with a young infant. She tried to persuade the mother to go to the local children’s centre but only had one bite at the cherry to do so. She had a statutory responsibility to see families something like five times before the age of five. She only had a short period—some 15 minutes or so—to spend with this mother. There was no father; he was absent. The mother’s family was in Africa. The only people she knew in the area were local church people who came and helped her. She was otherwise completely isolated. If we reinforce health visiting and strengthen family/nurse partnerships, people like that mother might be encouraged to use children’s centres and engage. We might reach out to more vulnerable families. I warmly welcome the Government’s commitment in that area.
I may be wrong about my concern with regard to private providers; I reiterate that there are many outstanding private providers in many areas. However, when we discussed the Childcare Act, some of the evidence appeared to indicate a higher staff turnover among some of the private providers. Can the Minister provide information about staff turnover in early-years nursery provision as that seems to me the crucial piece of data? If we can see how private providers compare with local authority providers and voluntary providers, we can get a sense of their performance. Although that information obviously needs to be put in context, I think we all agree that the most important thing for any infant is a stable relationship with their carer. A high turnover of staff in a setting certainly gives cause for concern. I have had the privilege of speaking with a manager of a Montessori centre on a number of occasions and have great admiration for that approach. I am grateful to the noble Lord for his support for the other comments that I have made today.
I understand the Government’s concern not to be overly prescriptive and to avoid rigidity as far as possible as regards setting minimum standards. However, the noble Lord spoke about the health service setting certain minimum standards for its practitioners. If we all agree that the early years are the most vital point in a child’s life and that this measure is a very important way of breaking the cycle of disadvantage, perhaps we need to think a bit more about whether, given the current enormous financial pressures on local authorities, we might do more to assist them to make the best decisions for children in these circumstances. I am sure that we will discuss this further.
Baroness Hughes of Stretford
I thank the Minister for a very detailed response to these amendments. I also thank other noble Lords for their contributions, particularly those of the noble Lord, Lord Laming, and the noble Earl, Lord Listowel, on disengaged parents, the importance of qualifications, how that relates very clearly to quality, and how quality is the key factor that makes the biggest difference to children’s experience of a setting. That is all very positive and I am grateful to them for their comments.
I am sorry that the noble Lord, Lord True, felt that there was a conflict between the various amendments in the group; perhaps I did not explain them well enough. I did not perceive that conflict, but perhaps when we return to the amendments on Report—I think that we will do so—I can iron that out for him.
I want to comment specifically only on the Minister’s response on Amendment 5, which would enshrine in legislation current provision for three and four year-olds. I am very grateful to my noble friend Lord Peston for his comments in that regard. Including this provision on the face of the Bill would consolidate the progress that has been made. I am not requesting that it should be included simply to nail it down; the measure would indicate powerfully to parents and to the private and public sector early-years providers that any future Government who rolled back the provision would be subject to the full scrutiny that is involved in changing primary legislation. As the Bill stands, the regulation that enables provision for two year-olds to be extended also allows the entitlement for three and four year-olds to be reduced if a Secretary of State chooses to do so. It is a lost opportunity not to make clear to parents and providers—
Baroness Walmsley
Can the noble Baroness cite any single word that she has heard from this Government which suggests that that might ever be our intention?
Baroness Hughes of Stretford
No. I made it very clear that I do not doubt the commitments that have been expressed both here and in the other place. I said in my opening remarks that while these Ministers and this Government can speak for themselves, clearly they cannot speak for any future Government. Therefore, to capture this entitlement for parents and children in legislation would protect it and send a signal to both parents and the private and public sector providers that it will take any future Government something other than the diktat of the Secretary of State through the negative procedure of secondary legislation to remove it, which would be allowed under the Bill as currently drafted.
The Minister said that he felt the current wording of our amendment might be too restrictive and would not allow the Government the enormous flexibility they would need if parents were unable to accept the offer of 15 hours over 38 weeks. However, it should not be beyond our wit to find a formulation which would allow us to put the offer in the Bill and make it subject to any subsequent provisions for increasing flexibility. I should like to talk to the Minister between now and Report to see if we can find a way of achieving the spirit of the amendment in a way that does not restrain any future thoughts on flexibility.
The Earl of Listowel
I omitted to ask the Minister whether he could remind the Committee of the present situation on the requirement for a graduate lead provision in early-years settings. I think the Government have introduced some exceptions; can he remind me of the situation or perhaps drop me a line?
Lord Hill of Oareford
I think the absolute requirement that there should be such a provision was removed at the end of last year. However, we expect that there would be at least one early-years professional or a qualified teacher to provide leadership in centres. There would be more local judgment on which people would be appropriate in the setting. However, we will speak further with the noble Earl.
Baroness Hughes of Stretford
My Lords, I am happy to withdraw the amendment in Committee but we shall return to these amendments on Report.
Lord True
My Lords, I do not share remotely the experience of the noble Lord, Lord Peston, who I see leaving. I do not wish to stay him; I merely wish to say that having seen a great deal of legislation coming and going, both in government and Parliament, I expect that “resist” will be on the file for these amendments, too. However, I shall speak to them none the less.
I spoke at Second Reading about the problems faced by many private and voluntary nursery settings as a result of the operation of the free entitlement and the injustice and, to some degree, dishonesty that results from it. I shall not repeat those arguments in Committee.
The reality is that we rely, and will continue to rely, on private and voluntary settings to provide much of the nursery education that people freely choose and that successive Governments have held to be desirable. I wish to see no change in that situation and I hope that that is also the position of the Government. I take as my text a letter written by the Secretary of State, Mr Gove, to a nursery provider when he was an opposition spokesman. He wrote as follows:
“We think it is incredibly important”—
you can almost hear him—
“that parents are given the widest possible choice of childcare. Each family is unique and has unique circumstances; thus they should be able to access childcare that is affordable and flexible to their needs. It is disappointing therefore that the Government”—
he meant the previous Government—
“have not done more to help Private, Voluntary and Independent … nurseries. We believe that at present there is not a level playing field among nursery providers and that the financial pressure on private, voluntary and independent providers is simply not sustainable”.
He called in the letter for the code of practice to be suspended to allow nurseries to charge supplementary fees to parents as a temporary solution. I agree with what the Secretary of State, as he is now, said then about the importance of the private and voluntary sector, but there is still no level playing field. There is still financial pressure on smaller providers and it is disappointing that there is not more recognition of the value and viability of those small, diverse, and, I submit, outstanding settings.
Baroness Morris of Bolton
My Lords, my name is on these amendments as I very much support their purpose and agree wholeheartedly with the views so well expressed by my noble friend Lord True. In doing so, I declare an interest as a governor of Bolton School, where we have a nursery which I helped to establish and which, luckily, is flourishing. That is a matter of luck because, as my noble friend said, it can vary from authority to authority.
In my Second Reading speech, I welcomed the extension of the free provision to disadvantaged two year-olds but sought reassurance from my noble friend the Minister on whether nursery providers had been consulted regarding their ability to deliver the Government’s ambitions. I asked this because under the previous Government—although I genuinely believe that this was never their intention—good, long established, private, voluntary and independent providers either went out of business or reluctantly shut their doors to free provision. They simply could not reconcile the service that they provided with the changing dynamics brought by free provision. That is a tragedy because parental choice should be central to nursery education. Without the diversity that a strong and resilient private and voluntary sector provides, there is no real choice. These amendments seek to redress the unforeseen consequences of free provision. I hope that they will find favour with my noble friend.
The Earl of Listowel
I support my noble friend Lord True in what he said about allowing providers flexibility in what they charge parents. I had a discussion with a manager of a children’s centre—in fact, she had responsibility for 10 children’s centres across London. She said that we need innovative ways of finding the money to keep these services going in the current recession. In particular, she highlighted that we should encourage parents who can pay to pay, so that parents who cannot can get a service. That seemed to be line with what the noble Lord, Lord True, said. It seems sensible. I will perhaps need to look more carefully at his proposal but hope that the Minister will be able to respond positively to what he said.
Baroness Hughes of Stretford
I will make a few brief remarks on these amendments. First, in terms of Amendment 8 and the principle of having a diverse sector, I have personally always strongly supported that—as did the previous Government. It is in the interests of parents and children for us to maintain that diversity and to try to raise the quality right across all parts of that sector. There is no difficulty there.
My problem with Amendment 6 and Amendment 9 is that they would basically allow individual nurseries to charge top-up fees to parents in one way or another. They would either say, “You can bring your children for the 15 hours but then you have to pay an extra X pounds per hour because that is our charge”, or they would apply a condition that the parent had to take more than 15 hours. There would be a very high charge for the hours over 15 so as to cross-subsidise. As the noble Lord, Lord True, alluded to, there are other kinds of conditions as well, such as parents having to pay for certain facilities or other items. This is just a way of getting extra funding in.
I appreciate some of the problems that nurseries have had. In discussing this, we have to recognise what the impact of allowing it would be. Instead of an entitlement with equal access to all provision for all parents whatever their circumstances, we would have a different two-tier system from that which the noble Lord, Lord True, alluded to. We would have a two-tier system in which parents who could pay the extra fees could go to the nurseries of their choice but other parents with less income would be restricted to going to those nurseries that were not charging a top-up—that did not have to. That is in fundamental contradiction to what this entitlement is trying to achieve.
Having said that, I also investigated this at some length. I have long relationships with some of the private providers and great respect for many of them for the work that they do. We commissioned a report to try and understand why some but not all private nurseries were having this kind of problem. That independent report identified two main factors. One was that not all local authorities were distributing the funding allocation quite fairly, and that some were supporting public sector provision, particularly nursery classes in schools—there is a higher cost there—more than the private sector. We introduced, and I think that the current Government are going to proceed with this, a proposal that each area has to agree a single formula for the allocation of funding so that there is parity across private, voluntary and public sector providers.
Baroness Howe of Idlicote
My Lords, I was not going to speak on this but I think I will. I am reminded of what happened under the previous Government regarding diversity and the range of provision. I declare an interest: at this precise moment I have a granddaughter at a Montessori school who is enjoying it very much and doing very well. I am also president of a settlement in Peckham, one of the areas where, when the previous Government did a great deal of spending on nursery provision, that actually had quite an adverse effect; the local authority wanted to provide everything and put the squeeze on settlements and other providers. Although I take the point that some public money already goes towards diversity, training and expertise among early-years teachers, there is more than one side to this issue. We should think of the range of diversity in serving different needs of people right across the board, all of whom increasingly believe that nursery education is important.
Lord Hill of Oareford
My Lords, like a number of noble Lords who have spoken, the Government are sensitive to concerns about the sustainability of private, voluntary and independent provision. I agree with my noble friend Lord True that we want the early-years sector to remain diverse and to continue to provide parents with a range of options for their children. We know that something like 37,000 different providers currently offer free entitlement, and it is good that we have that range and diversity. The PVI sector plays a significant part in that provision and we want to see that continue.
I understand the points that the noble Lord made; as always, he makes his case forcefully and clearly, but I find myself in the same position. The noble Baroness, Lady Hughes of Stretford, set out her concerns about the amendment clearly, and I was interested to hear some of the history of the independent review to which she alluded. The current Government have gone ahead with the early-years single funding formula introduced in April this year. I hope that that will provide greater transparency in how funding for three and four year-olds’ early education is distributed. Greater transparency should help flush out some of these issues.
The noble Baroness recognised that, in the past, there was concern that private providers were not getting a fair crack of the whip compared with maintained sector providers. The single funding formula will help. It will mean that parents and providers should be able to hold local authorities more to account. That formula is based on a common set of principles to ensure that funding is distributed to providers based on clear and common criteria. To increase efficiency and fairness, that funding will be participation-led—it is based on children actually participating—rather than place-led, as it was in the past, whether or not the place was filled. That will also help.
My noble friend's amendments raise the question of whether providers should be able to charge top-up fees. The Government have considered the issue carefully, but we are clear, as were the previous Government, that provision guaranteed by the statutory entitlement must be free to parents. My honourable friend the Minister of State for Children and Families, Sarah Teather, who is responsible for this area, is clear that she does not see top-up fees as an answer to the concerns that some providers have expressed.
Local authorities have a statutory duty under Section 7 of the Childcare Act to secure a prescribed amount of early education free of charge for eligible three and four year-olds. Under Clause 1, we will extend that duty to include disadvantaged two year-olds. There is a danger that allowing providers to charge top-up fees could put the entitlement out of the range of the very people that we most want to help. It would mean that those children who have most to benefit from the early-years help—the most disadvantaged—might be unable to access it. We could not support that.
Amendment 8 would ensure that the guidance issued by the Secretary of State under Clause 1 addresses the issues of sustainability and viability. As I said, we have the early-years single funding formula. The Government's commitment to the free entitlement does not prevent providers charging fees for hours outside the 15 free early education hours per week. We take the view that additional hours and services outside those for which the provider receives funding from the local authority are a private matter between the provider and the parent, and it is perfectly reasonable for providers to charge for additional hours or optional extras, provided that access to a free place is not conditional on taking those options.
Funding for free entitlement places is one part of a broader package of support to which providers have access. Many receive training and other assistance to support improvements in quality and to secure sufficient childcare provision. We want to work with the sector on issues such as this. I recognise the points that my noble friend raised. As he knows, I always listen to what he says with particular care. We have invited sector representatives, including the Pre-school Learning Alliance, the National Day Nurseries Association, the Daycare Trust and the National Childminders Association, as well as local authorities, to discuss with the department some of the issues that he raised.
At bottom, as my noble friend suspected when he rose to move the amendment, we do not want to run the risk of placing barriers in the way of our most disadvantaged families. I therefore ask him to withdraw his amendment.
The Earl of Listowel
I am sorry for tiring the Committee, but just to help me understand better how sufficient the funding is that the Government are providing to providers, could the Minister break it down a little further? I think I missed the figure per hour. How much would an early-years worker get funded to work in a setting? If we strip out the training, how much would we expect them to get paid per hour? How does that compare with someone working at a cash desk in Tesco or a teacher? I recognise that this may be down to the discretion of the setting. Maybe this is something that the Minister would be kind enough to write to me about. How much would one expect the person working on the ground to get out of the sum that is being paid to providers?
Lord Hill of Oareford
My Lords, the short answer is that it will vary considerably from area to area. If I am able to provide any better particulars, I will write to the noble Earl.
Lord True
My Lords, my noble friend will not be surprised that I am immensely disappointed by his response. That will be shared by the many people who have been in contact with me since I raised this matter at Second Reading. I am grateful for the support that was given by the noble Baroness, Lady Howe, and the noble Earl, Lord Listowel. I say to him, regarding the figures that I gave in my speech, that you have only to calculate on the amount of money that is made available to a setting what kind of pay is possible under that if—as the noble Baroness, Lady Hughes, and my noble friend maintain—the total money available should be limited to the free entitlement only.
The only crumb of comfort is the suggestion that the fiction that goes on around the edge—that people can go on charging outside the so-called free entitlement —should go on and we should go on nodding and winking at that. That is very disappointing.
We heard a lot of talk about certainty. There is no certainty in this. The free entitlement is not fully resourced—it never has been—and public policy should not be based on something that is essentially not true. As someone who loyally went through the Lobbies to support top-up fees in universities and would do so again, there is a certain irony in being told that top-up fees in a non-maintained sector like nursery schools would bring the United Kingdom to its knees.
I will reflect on what has been said. I cannot promise my noble friend that I will not return to this matter on Report, but in the interim I am grateful to him for elements of his response and to other noble Lords who spoke. I beg leave to withdraw the amendment.
Baroness Garden of Frognal
My Lords, I suggest that this might be a convenient stage to have a 10-minute comfort break. The Room is quite hot and people might want to top up with water as well.
“Early years schools workforce: Montessori schools
The Secretary of State may issue directions to the Child Workforce Development Council in relation to the training and qualifications of teachers of children under 5 in Montessori-accredited nursery schools, and shall in particular ensure that recognition continues to be given to Montessori qualifications and Montessori training courses, where these are provided by practitioners qualified and experienced in that approach, and use recognised Montessori accredited schools for practical training experience.”
Lord True
My Lords, Amendments 11 and 70 relate to nursery education and are intended to apply pari passu to Steiner schools as well as to Montessori schools. If these amendments or something like them are brought back on Report, they will include protections for the specific training required by Steiner schools. I have made that clear to representatives of Steiner Waldorf Schools Fellowship. They in turn have made it clear to me that they welcome, and feel the need for, the protection offered by amendments such as these.
Both the Montessori and Steiner systems of pedagogy are proven in action, much trusted by the parents who choose them and are undeniably diverse compared with the approaches to learning offered in other settings. Each system has its own set of qualifications; each system polices its own settings; and each system requires that schools purporting to be Montessori or Steiner should reflect their values and approaches.
Most Steiner qualifications are levels 4 or 5. Almost all Montessori qualifications are level 4. They are administered by Montessori colleges, but the Montessori Centre International has an independent board that advises on academic standards and meets three times a year to validate all diplomas. The Montessori Centre International is one of the largest training organisations in the world in its sector. It has around 400 graduates every year. The other three colleges have between them 80 to 100 graduates going into nursery provision. The majority of these graduates are UK or EU-based, although more than 100 come from outside the UK. There are some 800 Montessori schools in the United Kingdom, with approximately 6,000 teachers. Therefore, there is a clear requirement for specific training. I believe that the system works: 88 per cent of Montessori schools have received the highest ratings in Ofsted inspections, which is far higher than the average for early-years settings.
So why change it; why interfere with the training system that is delivering a perfectly satisfactory position; and why do we need the amendments? There is a large quango called the Children's Workforce Development Council, which has a budget in excess of £100 million and a turnover that is larger than all the excellent Montessori schools combined—I definitely prefer the private to the public here. The body advises the noble Lord’s department. For a reason that I am not entirely clear about—although the early-years foundation stage document published in 2008 stated that Ofsted would recognise qualifications recognised in turn by the CWDC—the body set out to create a new, generic qualification at level 3 only, which is intended as the one and only qualification that will be used by everyone working in settings with children.
I understand and share the aspirations of noble Lords who spoke on earlier amendments for high-quality provision and good training. However, the general aspiration should not squeeze out a particular good that is proven. The CWDC says that it has undertaken extensive consultation. This was claimed again at the conference of the National Day Nurseries Association that took place earlier this month. In fact, many at the conference said that they had not been consulted at all, and there was severe criticism of the CWDC, which was reported in the professional press. The Montessori and Steiner organisations tell me that they have not been consulted or approached in a systematic way.
The proposed CWDC qualification is at a lower level than the existing Montessori and Steiner qualifications. It is very basic and focuses as much on policy as on practice—perhaps more. It is considered by many early-years practitioners, certainly in the Montessori and Steiner sectors, as not fit for purpose. However, if Montessori qualifications are not included on a recognised list, Montessori colleges will not be able to train teachers, and Montessori schools will not be able to fulfil their quota need for Montessori-qualified teachers. The same goes for Steiner schools. I submit that that would be absurd. Representatives of Montessori bodies twice sought meetings with the CWDC and asked for exemption from its level 3 course in recognition of Montessori’s unique pedagogy, philosophy and proven excellence. So far, Montessori has had no concrete response except a demand to map its qualifications against the lower-level qualification proposed by CWDC.
Now, I thought that this Government believed in excellence and diversity, which we have all subscribed to today. I thought that they were seeking, as the Bill does, to rein back the influence of quangos and reduce bureaucracy. Will my noble friend consider positively the idea put forward in these amendments to protect both Steiner and Montessori schools and lift from them the fear that is now widespread in those sectors as a result of the unwelcome attentions of the CWDC? In short, if it ain’t broke, don’t fix it.
If my noble friend is not ready to incorporate this into the Bill, it need not be there but it needs to be in black and white somewhere. It needs to be done soon and in a form that leaves no room for doubt that these excellent colleges and schools with their excellent qualifications will continue to be part of our education landscape. I beg to move.
Baroness Morris of Bolton
My Lords, it gives me the greatest pleasure to acknowledge the excellent work of Montessori practitioners by putting my name to this amendment. As my noble friend Lord True explained, that goes for Steiner schools too. Montessori schools have provided solid teaching for the nursery and school workforce for almost 100 years. In the early-years foundation stage, as my noble friend told us, 88 per cent of Montessori schools were judged to be outstanding or good—so much so that the Department for Children, Schools and Families, as it was then called, paid for a booklet saying how good the Montessori method was.
The national framework of accredited qualifications fully recognised the Montessori and Steiner qualifications but, as my noble friend Lord True explained, the Children’s Workforce Development Council appears to want to change this. I am sure that that is not what the Minister would want.
We must ensure that Montessori and Steiner schools, which provide parents with real choice and children with an excellent education, are allowed to flourish. We should celebrate their difference and ensure that a creeping bureaucracy, with its attendant craving to fit everyone in the same box, does not prevail.
The Earl of Listowel
My Lords, I support what has been proposed. I put my name to this amendment because I have spoken on a number of occasions with the manager of a Montessori nursery and been impressed with what I have heard from her about her work. Indeed, she is a very impressive individual, having worked in the private business sector before coming into nursery teaching. Recently she was telling me about her experience of continuing professional development, where she had a senior practitioner observe her in the course of a whole day’s teaching, taking careful notes of what she and the children were doing and of the interactions between the teacher and the children. She learnt from this. The senior practitioner said, “Very good, but you do tend to lift your finger a bit too much”. She said, “Yes, this is what my mother did to me. Aha; I am bringing it into the nursery classroom”. That is the sort of model that I think the Government are proposing more widely in schools generally in their White Paper: classroom-based learning. I would regret if anything were done to the detriment of such a good approach, so I hope that the Minister can be reassuring in his response.
Baroness Perry of Southwark
My Lords, I support the amendments. We are not talking here about some new provider on the block with bright ideas. Montessori is an established, tried and true, long-lasting provider of education. It is of a high quality. In days long ago when it was inspected regularly by HMI, inspectors always came back with very high-standard reports of what was going on. Montessori also has its own system for training its own teachers and staff, which again is of a very high quality and thorough, and produces people who are well versed in the Montessori way. There are many people of all ages, some probably now in their 80s and 90s, who have been through the Montessori experience and can testify to its importance in their own lives. I hope, as others have said, that the Minister will at least give a warm response to the amendments.
Baroness Walmsley
My Lords, I was not able to support the last group of amendments of the noble Lord, Lord True, because I tended to agree with the noble Baroness, Lady Hughes, about the danger of a two-tier system. However, I am very pleased to be able to support this group of amendments enthusiastically.
My knowledge of Montessori is that my grandchildren went to a Montessori nursery. Indeed, my daughter-in-law, their mother, herself already highly qualified with a PhD in biochemistry, was so impressed by the system that she started to train as a Montessori teacher. This delighted me. We need highly intelligent and highly qualified people in the nursery sector and I thought that was excellent.
If we want to offer parents a wide choice of early-years provision we ought to do everything that we can to encourage proven, high-quality systems such as Montessori and Steiner and, if necessary, make them special cases.
Lord Elton
My Lords, what my noble friend’s amendments seek to do is not only desirable but in line with the Government’s policy. The Minister’s problem is not whether or not to agree but how to set about obtaining that end, which may not be as proposed in the amendment. However, the issue is so important that if it is in doubt it should be protected, if not in statute then in supplementary legislation. I hope my noble friend will be able to give reassurance in that direction.
Baroness Massey of Darwen
I, too, have had grandchildren at a Montessori school and I have a great regard for the system. Why are we suddenly throwing in Steiner schools when they are not mentioned in the amendment? I understand that there are good reliable figures to show the effectiveness of the Montessori system; are there such figures for the Steiner system? I simply do not know.
Baroness Benjamin
My Lords, I support the amendment. I, too, have great admiration for the Montessori system because my daughter went to a Montessori school and it got the best out of her. I believe that young children need to be excited by learning, by discovering who they are, by play and by forming their own self-opinion and doing things that are beyond them. The Montessori system is one of the best ways of getting children to understand who they truly are, especially if they then go on to conventional education in schools. It broadens their outlook, it makes them excited about learning and the amendment should be supported by everyone in the Room.
Baroness Hughes of Stretford
I also agree that Montessori offers a high-quality experience for children and one would want to support it. In talking about Montessori and supporting it, I was very keen that more children from disadvantaged backgrounds should be able to access this high-quality provision. What progress has been made in the proportion of children from disadvantaged backgrounds who now attend?
I would not have thought that mapping the qualification is an insuperable problem. I am sure the Children’s Workforce Development Council will be positive in resolving the issue. When the Minister replies, will he enlighten us as to what is going on in the CWDC? It has been doing good work in raising the level of qualifications and ability of early-years professionals, in improving the infrastructure of qualifications and in supporting all parts of the sector going forward. I understand that the Children’s Workforce Development Council is going to be brought in-house and that its annual grant of £110 million has been taken away, as has its non-departmental body status. What are the implications of that for the progress that has already been made in early years and for continuing that progress in raising the level of qualifications and so on which we are all so concerned about?
Baroness Garden of Frognal
My Lords, Amendments 11 and 70 relate to Montessori nursery schools and qualifications of Montessori teachers. I hear what my noble friend also said about Steiner schools and the question of the noble Baroness, Lady Massey, as to whether it is legitimate to add these in to the amendment when they have not already been mentioned. Perhaps we can discuss that at a later stage.
I am grateful to my noble friend for moving the amendment because it gives me the chance to say that we fully understand, as has been reflected in the comments from noble Lords today, that for many parents the Montessori ethos is valued and reflects the early education that they want for their children. The Government are committed to maintaining and supporting a diverse early-years sector and I welcome the continued role of Montessori nurseries within that sector.
As my noble friend Lord True will be aware, Montessori organisations opted out of becoming part of a national qualifications framework which was part of the previous Government’s efforts to raise the quality of the early-years sector. Montessori qualifications would have gone unrecognised by the Child Workforce Development Council as relevant qualifications under the early-years foundations stage if it were not for the previous Government’s decision to give temporary recognition to those qualifications while discussions with the relevant bodies were continuing. This was due to expire in January 2010. These conversations are continuing and Montessori qualifications will be recognised on a temporary basis until January 2012.
The position beyond that point is the subject of discussions between representatives of Montessori organisations, officials at the CWDC and officials at the department. I am sure that they can also include Steiner organisations. I can assure my noble friends that we have not ruled out extending the period of recognition beyond January 2012 and that we are clear that we will not do anything that may disadvantage those who take Montessori qualifications. I am sorry to hear from my noble friend Lord True of what appears to have been poor communication. I understand that the CWDC carried out a wide-ranging communications exercise with local authorities, employer settings and the workforce. The thrust of this was information sent to local authorities tailored for different audiences that should have been sent on to providers including Steiner and Montessori settings. Further discussions need to take place on that.
Amendment 70 concerns Montessori education and qualifications and would require teachers in Montessori schools to have served their induction period in a Montessori-accredited school or any other school approved by a Montessori training body. Later in the Committee’s deliberations, we will consider teachers’ induction periods in more depth but I take this opportunity to provide my noble friend with some assurances on induction for Montessori teachers.
Independent schools, including Montessori schools, can offer statutory induction if they so wish, although there is no legal requirement for them to do so. Should they choose to offer statutory induction, the teacher must hold qualified teacher status—QTS—before they start their induction. The post must of course be suitable and include the necessary support mechanisms. The conditions under which a teacher is employed in any independent school are contractual matters between the employer and the employee. I can assure my noble friend that if a Montessori school wished to employ only teachers who have served statutory induction in a Montessori school or a Montessori-approved institution then that would be a matter for that school, not for legislation. To legislate in such a way would create unnecessary government interference in a very small section of the independent schools sector. Government’s role is to enable the independent schools sector to access statutory induction arrangements rather than to dictate how they should run their schools. Legislation is not the right approach to securing the terms under which an independent school employs its teaching staff.
Briefly, on the future of the Children’s Workforce Development Council, the CWDC will cease to be a Department for Education NDPB as the department will withdraw its investment in the council. The department is now in the process of carefully considering all the current functions of the CWDC in light of the spending review before deciding what will end, what will continue and where responsibilities will lie in the future. Our expectation is that work transfers will be completed by 2012 and that the CWDC as a company and employer lead body will be free to seek alternative funding.
I hope that my remarks have gone some way to giving comfort to my noble friend. In light of this, I hope that he will feel able to withdraw the amendment.
Lord True
My Lords, I am rather happier with that response than with the response to the previous group. I am very grateful to my noble friend for her comments. I apologise to the Committee for discussing Steiner schools when they are not mentioned in the amendments that we are discussing. However, I am sure that they will be grateful to my noble friend for her comments and will pursue the matter separately. Montessori schools will be grateful to noble Lords on all sides of the Committee for their firm support. I am very grateful to all those noble Lords who warmly support this excellent system and these excellent schools.
I note that my noble friend extended the invitation to these schools to continue in existence until 2012. I have sought to express that positively as opposed to describing it as a stay of execution. I hope that as discussions continue, the temporary nature of that arrangement can be lifted and that—
Lord Elton
My Lords, I think that the noble Lord is trembling on the edge of withdrawing the amendment. However, I remain rather anxious about the extension to 2012 and a possible extension after that. I would like to hear from one end of this Bench or the other what the effect of that would be on recruiting people for training in this area of teaching if there is a possibility that the railway will end a mile or two down the line.
Baroness Morris of Bolton
I cannot understand why there has been such consultation given that we are still in a temporary situation. I cannot understand why it cannot be put on a firm footing—I hope before the Bill leaves your Lordships' House.
Lord True
My Lords, I am grateful to noble Lords for those interventions. Having veered away from using the phrase “stay of execution”, I think my noble friend will understand where I am coming from. As there seems to be such universal recognition of the value of this sector, surely we can give certainty to it. I hope that before Report my noble friend will consider further what noble Lords have said in this debate and find a way to extend that period of certainty beyond 2012. Perhaps the word “perpetuity” could come into that. I beg leave to withdraw the amendment.
Baroness Walmsley
Baroness Walmsley
My Lords, in moving Amendment 12, I wish to speak also to Amendments 19, 27 and 32 in this group. My noble friend Lady Jolly will speak to Amendment 20.
Clause 2 extends the power of teachers and heads to search pupils and repeals some of the safeguards in legislation regarding searches in schools. These searches constitute a significant intrusion into children’s privacy which is protected under the UN Convention on the Rights of the Child and under the Human Rights Act. Therefore, there is an enormous onus on the Government to justify them.
I welcome the Government’s commitment to give due consideration to the provisions of the UN Convention on the Rights of the Child when making new policy and legislation. I urge the Minister to ensure that when this Bill leaves your Lordships' House it complies fully with this important convention. I am particularly concerned with regard to Article 28(2) of the convention which states that we must,
“ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention”.
When the powers to search were extended in 2009 to include alcohol, drugs and stolen property, they went ahead without any published evaluation of how the previous powers were working. This is happening again, which causes me great concern. We need a thorough review of these powers with sufficient detail for us to determine whether any particular groups of children are being searched more frequently than others. It is essential to avoid any possible discrimination in the use of these powers.
The first group of amendments concern appropriate training. Amendments 12 and 19 seek to ensure that any member of school staff expected to search a pupil has had appropriate training before attempting to do so. My intention is to highlight the importance of proper training in such matters. When I was a teacher, I would not have dreamt of attempting such a thing without proper training, and I am sure that your Lordships would have felt the same in my position. Many teachers are currently reluctant to use the powers that they already have to search pupils, and would not have the confidence to do so even in the circumstances where it may seem necessary to prevent imminent harm to others unless they had confidence that they knew what they were doing. No teacher or member of staff should be expected to search a child without good-quality training, especially since current legislation allows them to,
“use such force as is reasonable in the circumstances”.
Training is essential, particularly in delicate situations where the pupil has special educational needs or has particular cultural or religious concerns or is of the opposite gender from the person carrying out the search, or there is no other member of staff present—although noble Lords will know that I do not approve of either of those last two situations.
It is not just about training. Information about the child is important too. How is a child who has been touched inappropriately or even abused going to react if someone approaches to search their person? That could escalate a fairly low-level problem into something violent and critical. Training should ensure that searches are conducted in such a way as to avoid harm to the child being searched, as well as to avoid unfounded allegations of improper behaviour by the teacher or lecturer.
Amendments 27 and 32 cover the same matters relating to searches in FE colleges. It is true, however, that most colleges have specially designated and trained security staff who would probably be called in to conduct a search if necessary. There are particular issues in colleges that may need to be addressed differently from searches conducted in schools, as many of the students may well be over 18. The current DfE guidance that was published in 2007, called Screening and Searching of Pupils for Weapons: Guidance for School Staff, mentions colleges only briefly, on page 4, which is insufficient.
Further training and advice are essential in order for staff to understand the powers under this clause. Such training should ensure that searches are conducted in such a way as to avoid harm to the child being searched, as well as to avoid unfounded allegations of improper behaviour by the teacher or lecturer. In colleges there may be only a very few years between the searcher and the searched. Such training could also usefully include managing potentially inflamed situations, identifying particular cultural or religious sensitivities, de-escalation techniques and risk assessment.
I know that the Association of Colleges is not keen on my idea of statutory training; it has said so. It says that unqualified cowboy operations will be set up to provide so-called training and might give teachers and lecturers an unfounded sense of confidence. My answer to that is that the college principal has a duty to ensure that all CPD is of good quality by getting recommendations and feedback and by checking qualifications. The association suggests that bad things can happen if people have been inappropriately trained. My opinion is that bad things can happen if people are not trained at all. We should put this requirement in the Bill. I beg to move.
Baroness Jones of Whitchurch
My Lords, as a number of amendments are in our names, I thought that it would be sensible to get up at this stage and speak on Amendments 15, 18, 26, 29, 30 and 31. In introducing these amendments, I should make it clear that we understand and support the Government’s stated intention to support schools in improving discipline. As noble Lords will know, the previous Government took the first steps towards bringing in new powers to help teachers enforce discipline, and at that time they were broadly welcomed by the profession.
Our concern with what is being proposed today is that, although on the face of it the Bill seems to build on the legislation, it takes away the important checks and balances that had been built in to protect both pupils and teachers. It remains unclear why proposals to extend those powers have been put before us.
Many of our comments echo those of the noble Baroness, Lady Walmsley. Amendment 15 seeks to ensure that staff undertaking searches are appropriately trained to search all pupils, particularly those with special educational needs and disabilities, in a way that maintains the dignity and rights to privacy of everybody, in order to foster a school environment of mutual respect. Amendment 18 also makes it clear that searches should be carried out by a member of the senior management team. In the Commons evidence that we read, this was described as good practice by a number of head teachers.
The Children's Society and the NUT, among others, made a compelling case for staff doing searches to be trained and given advice on the effect of searches on young people, including the effect on their self-esteem and confidence. In addition—I am sure that we will hear more about this—Ambitious about Autism told us that staff require proper training to carry out safe searches on children with autism so that they understand the children's potential issues, for example around physical contact. The Children's Rights Alliance for England reminded us that searches can be very invasive and unpleasant experiences, causing children embarrassment, anxiety and humiliation. In addition, as the noble Baroness, Lady Walmsley, said, children with a history of physical or sexual abuse have a very different experience of searches; there is a need for training in that respect. It is also vital that staff carrying out searches on children with special educational needs and disabilities have an awareness of those issues and make reasonable adjustments for those needs.
We are concerned also that the new powers could put staff undertaking searches at risk. For example, the NUT highlighted a concern that, without training, teachers could be vulnerable to unfounded allegations of “improper behaviour”. Again, this underlines the case that we made earlier for searches to be carried out by someone of sufficient seniority that their intention and authority cannot be brought into question when the searches are carried out. This may be best practice in many schools, but the amendments build in safeguards for all pupils, particularly the most vulnerable, to ensure that their needs are recognised and that they are treated with respect.
Finally, Amendment 26 would require schools to keep a written record of all searches, including equalities information on the SEN, ethnicity and disabilities of the pupils being searched. Just as the police powers of stop and search were found to be disproportionately targeting certain ethnic groups, there is a risk that the same thing could happen unintentionally in our schools. Without proper records, we will not be able to monitor and follow up on the consequences of those trends. This concern has been highlighted by the Runnymede Trust, which stated:
“Runnymede is concerned that this power could result in disproportionate numbers of Black children being searched. If Black pupils are searched more than other pupils or feel unfairly targeted, trust may be undermined, potentially leading to more negative behaviour in the classroom”.
The amendment will enable that record to be kept and research to be pursued to follow up on it, both within the school and more widely, to make sure that unintended consequences do not arise. It will enable us to ensure that minority ethnic groups are not disproportionately targeted, and that groups such as pupils with SEN or disabilities are also not disproportionately targeted unintentionally. I hope that the Minister will acknowledge the sense of the amendments and the comfort that they might bring by protecting the interests of vulnerable groups who are concerned about how the new powers will operate.
Other amendments to Clause 3 in this group—Amendments 29, 30 and 31—mirror the amendments that we laid to Clause 2 but relate to further education. The same arguments apply in terms of checks and balances, but as the noble Baroness, Lady Walmsley, said, because of the potential narrowing of the age gap it is particularly important that teachers are trained to treat the students with respect and be aware of their vulnerabilities.
I have one final quick comment. I am aware that a guidance note is in full consultation from the department at the moment on the powers to search without consent. I am sure that the Minister will say, “Do not worry, because this document is being consulted on”, but it increasingly gives us concern that we are being asked to make legislation now, not further down the line when some consultations will come to fruition. It is asking a lot of us to trust that those consultations will come out with the right answer. We need to ensure that we get the legislation correct now, when we have the chance to do so.
Baroness Jolly
My Lords, I shall speak to Amendment 20, which is narrow in scope but concerns an area that has been completely missed out. It is for those schools—I suspect that they will be predominantly secondary schools—which have security staff on the premises who will be employed, appropriately trained and well fitted to carry out such searches.
One of the most difficult relationships to keep nurtured is one between a teacher and a child. I taught for 15 years. You work really hard, and when they are good they are very good and when they are bad, something such as searching a child cannot help. The amendment suggests that where there is a security member of staff, no other member of staff should be asked to search a child. It would be the role of the security staff to do that. They are appropriately trained; they know what they are doing. That will also help to keep the relationship between the teacher and the child. It will give clarity to all concerned. The children know that if any circumstance crops up, it will not be a member of staff doing that; not only the child but the governors, the head teacher and the parents know; it is crystal clear that a member of staff whose role is security will do that. I ask the Committee to view the amendment favourably. The Minister is nodding, so that is very positive. I hope that he will view this as something that will plug a gap. He says, “No, resist”.
Baroness Massey of Darwen
My Lords, I have real concerns about this part of the Bill. If ever I saw a can of worms—I do not see them very often—this is it. It is contentious and sensitive. Obviously, ideally, we do not want young people to be searched at all, but I want to get over negative and punitive provisions and move on to more positive ones. I will give a couple of examples to illustrate that in a moment.
This part of the Bill is likely to result in a lack of dignity for both pupil and teacher or a security person—the person who is doing the searching. Some amendments about boundaries for examination, issuing rules about items for which a search may be made, training of staff and the search being carried out by a senior member of staff, may mitigate all that, but consider the chaos that may ensue.
Many years ago, I went to school as a pupil in Darwen, Lancashire, a sleepy little town in the foothills of the Pennines. It was in the news about two months ago because teachers had gone on strike due to a breakdown in discipline because of confiscated articles. As I said, the town is very sedate, and I could not believe what was going on. They had gone on strike because of discipline issues about confiscating mobile phones, I think. It was about who confiscated what—it was highly subjective—and why they were confiscated. One minute, something was confiscated; the next minute, it was restored. It was absolute chaos.
The other example that I recall from when I was teaching was of a male teacher grabbing a 15 year-old girl’s handbag. A nasty fight broke out, which I could hear from down the corridor. I heard her yelling, “Get your hands off a lady's handbag”. I had to intervene, being her head of year. I said, “What is in the handbag?” She said, “My hairbrush and some personal items”. I merely use that example to show the inappropriateness of a male teacher being seen to interfere with what a girl pupil sees as her private items.
What is in the Bill is more contentious and dangerous than the examples that I have given. It states that staff can go through phones, laptops and delete information,
“if the person thinks that there is a good reason to do so”.
Imagine what that means. It could set up conflicts between pupils and teachers, staff and senior management, staff and parents, pupils and parents, pupils and pupils. All kinds of things could go on. There is the same-sex issue. There are cultural issues, abuse issues and special educational needs issues.
I accept that pupils should not be bringing into school items that can harm others, which are illegal or which can cause chaos in the classroom—for example, mobile phones—but, and it is a big “but”, surely a school must have rules and contracts which do not permit certain items to be brought in or, if they are, insist that they should be placed in the pupil’s private locker. That provision exists in many schools.
I know many schools where searching is not an issue. A head teacher at a school in east London said to me recently, “We have no tolerance of mobile phones, not an issue about searching at all. Pupils understand this; parents understand this”. Much of the provision is heavy-handed and can give rise to real negative, personal, contentious issues arising. Surely an amendment can be thought of which gives schools the power to ban certain items and make that clear to pupils and parents.
Educating to encourage respect for people and property is a must. No doubt we shall come on to that when we discuss personal, social and health education. Discipline in schools is not just about punishment; that does not work. This part of the Bill is about punishment and creating difficulty for parents, teachers, pupils—the lot. I plead with the Minister to look carefully at it again. Otherwise, in searching pupils, schools will provide the catalyst for conflict for young people in any context.
Baroness Perry of Southwark
My Lords, the noble Baroness, Lady Massey, always talks a great deal of sense, and I absolutely agree with her about the can of worms. The whole issue is a can of worms, not just what the amendments address.
It would be wonderful if we could assure ourselves that every school in the country had such excellent discipline that rules about what can and cannot be brought into the school would be instantly obeyed, that children who have been told that they had to put things in lockers would do so, and so on. Unfortunately, in many schools, that is not the reality. There are crisis incidents where a teacher will suddenly become aware that not a child but a large, hulking teenage boy is carrying a knife and bringing it into the classroom at the end of a fight or row outside and there is every chance that he may intend to use it. At that point, a teacher has to take action. Whatever legislation and whatever framework the House or Parliament can produce has to allow for such a crisis for teachers.
Lord Knight of Weymouth
Does not that particular scenario—which is obviously a real and concerning one for teachers in some schools—of a large physical presence with a knife underline the need for proper training? Without proper training, the danger into which the teacher might be putting himself or herself by using force, however reasonable, to try to confiscate the knife could be profound, however great the crisis may be there and then.
Baroness Perry of Southwark
I was about to move on to training. With great respect to the noble Baroness, Lady Jolly, I do not think it could be only one person who is trained because the scenario I was describing could happen to any teacher. It could happen to a very small female teacher like me—I have taught in some tough schools in my time, with some very tough, studded-black-leather-jacket chaps in my classes—and so every teacher needs to be trained. They need to understand how to deal with someone who is carrying a knife in his back pocket, his sock or wherever it is. I would certainly argue for minimal training for all teachers in how to deal with such issues.
However, that is not to make them think that they should therefore be doing searches all the time. Rather than training in how to do a search—although that must be an element—there should be much better training for teachers in when a search is or is not appropriate. I would keep it very much to the crisis situation and to previously known offenders who have tried before to smuggle things into the school and classroom. That is where a teacher’s judgment is the most important thing of all. We are imagining helpless, innocent pupils with aggressive teachers; however, as I have said, it can be exactly the opposite way round. The training needs to give teachers the ability to make the judgment as to when a search is or is not appropriate.
I heartily support the need for training but ask that we reverse some of our mistrust of teachers and our assumption of innocence among pupils and allow for the other way round.
Lord Sutherland of Houndwood
My Lords, I particularly support Amendments 26 and 31 which deal with the keeping of records. It is immensely important that in such situations proper records are kept with the kinds of information specified in the amendments—we could perhaps look at them again—and that these records are available to Ofsted and the governing body. This is quite fundamental and will enable the school to know what is going on and what the balance of activities amounts to.
I certainly support the importance of training but I think that it should be school-wide. Any teacher could run into such a difficulty and be faced with a problem that could be both threatening and frightening if they had not had to formally think about it before.
On Amendment 20 and the reference to security staff, I was left uncertain about how this would apply in small primary schools. If we press ahead with the amendment, small primary schools probably would not have the capacity to have someone specially trained. It would be useful to hear what the intention of the amendment is because there seems to be some variation.
I accept what my noble friend Lady Perry says is critical: there are crisis situations and legislation must allow for dealing with these. A last, doubtless very naive, thought: could some of the problems of intimacy and same sex be dealt with if schools had electronic scanning devices available? These would probably be as cheap as specialist training courses and would pick up electronic implements—phones and so on, which can be a source of great trouble—and weapons. They would not pick up drugs—I accept that—but electronic implements and weapons cause crises which have to be dealt with very quickly. Regulation is very important but the threat that you will be scanned then makes an issue of it. It could be a practical, simple way of taking some of the sting out of this.
Baroness Walmsley
It may be convenient for the Committee if I answer the question just posed by the noble Lord, Lord Sutherland, about Amendment 20. I think that was a slight misunderstanding of the amendment. My noble friend meant that no teacher other than the security staff could be required—in other words, forced against their will—to carry out a search if they did not want to.
Baroness Benjamin
My Lords, I support several of the amendments in this group but would like to focus on black and ethnic minority children. If you ask any black young man how many times he has been stopped and searched in the streets, you will find that it has been more times than his white equivalent. In some cases, there is a just reason to do so and some young people warrant the action of being searched. This does not mean that everyone should be categorised in the same way. Sometimes there needs to be a sympathetic approach towards young people who have what can perhaps be described as a “street attitude” or come from backgrounds where there is little or no parental or family support or guidance. There needs to be understanding of what might be going on in that young person’s life to make them behave in a certain way.
The same can be said about young people in schools today. Stop and search has become an accepted attitude towards many young black children and young people. Sadly, many of them will most likely grow up having to face the same ordeals and indignities as generations before them. This leads to young people feeling worthless, disillusioned and having an anti-social attitude—they act in the way that they believe they are expected to by society. Many look to gang culture to feel safe, accepted and important. It is a case of safety in numbers in order to survive. Those misguided young people need our help and understanding. They do not need to be condemned and vilified.
As touched on by the noble Baroness, Lady Jones, earlier, many are concerned that the power of members of staff to search pupils could result in disproportionate numbers of black children being searched. If black pupils are searched more than other pupils or feel unfairly targeted, trust may be undermined, potentially leading to more negative behaviour in the classroom. Evidence shows that black Caribbean boys in particular are disproportionately excluded from school and routinely punished more harshly, praised less and told off more. Explanations for this cannot be attributed solely to things like culture, class background or home life, and government research concluded that teacher’s attitudes—sometimes subconsciously—towards black children can be a contributing factor.
Given the overrepresentation of black Caribbean children in other areas of discipline, it is likely that they will be disproportionately searched under this new power. As the Runnymede Trust and others have argued elsewhere, institutions are required by law to assess the impact of their policies upon individuals from different ethnic backgrounds under the Equality Act. Given this legal requirement, I plead with the Minister to make sure that careful monitoring takes place of those searched in schools and action is taken to decrease any arising disproportion.
Lord Elton
My Lords, I echo something that the noble Baroness just said. The carrying of a weapon is often an essential part of a person’s sense of security. If he is in a community where everybody else carries a weapon outside, he will bring them into school. We are probably going down the wrong road by treating searching as the response to an emergency. I know as a former teacher that the emergency arises when the weapon has been produced. A knife was produced in a class I was teaching. It was quite a large knife, but luckily the owner of it was slightly smaller than me and there was no struggle. We had a discussion and it ended amicably. I am very much aware of the little thrill of horror that went through me when I first saw it and of the need for teachers to be protected from that.
Searching is preventive. It is not to discover something in an emergency but to prevent the emergency arising by applying the search before the weapon can be used. One way is if the whole school is searched when everybody goes in, as you are at an airport. Another is if the whole class is searched because there is known to be a problem there. But to search individuals can produce exactly the difficulties to which the noble Baroness referred. This needs a good deal more practical thought about what happens on the ground, rather than just legislative thoughts about how easily it could be provided from an administrative point of view. We have not yet got to a point where we should legislate. There needs to be much more discussion, perhaps outside this Room as well as inside it.
Lord Lingfield
My Lords, I apologise to the noble Baroness, Lady Massey, for disappearing for a bit during her contribution. I had to move my car before it was searched.
I do not want to stray too far into anecdote, but I visited a school perhaps two years ago where a woman teacher told me that the previous day she had been in a classroom when a boy had stabbed another pupil with a small penknife, luckily not doing much harm, and had then put it back in his pocket. There was no one else around, so she searched him and took the penknife away from him. She did absolutely the right thing for that particular occurrence.
This brings to mind something terribly important: there were no male teachers in that school at all. We have to remind ourselves that recent statistics suggest that the percentage of male teachers in primary schools has now reached something like 15 per cent, and in secondary schools the figure is around 20 per cent. A large number of primary schools have no male teachers at all. That teacher would therefore have fallen outside the current legislation. As I understand it, the Bill is meant to repair that. Of course training is hugely important, and in that school the teachers had received training—although it was of what you might call the informal kind, as so much training in schools is.
I would not support putting into the Bill a training programme or qualification for searching, but I would support the Government giving high priority to ensuring that guidance for schools suggested that training was hugely important in this area. It is vital that we send out a message to teachers that they are going to be backed when faced with serious discipline problems of this kind. We know that many of the children involved have special needs and are particularly vulnerable but we nevertheless have to send out that message to teachers, and my view is that the Bill will help that enormously.
Lord Knight of Weymouth
My Lords, I support my noble friend Lady Massey and others who have described this as a bit of a can of worms. With all respect to the Minister and his colleagues, I know how this comes about: you hear of difficult incidents in individual schools, you want to satisfy the perception in certain parts of the media that behaviour in schools is dreadful and you want to be seen to be doing something about it, so you move to legislation. As we have discussed, though, once we start to explore the issue we then see that there is a need for training, be it enforced through guidance or through legislation, and we soon arrive at the notion that there needs to be whole-school training. Once you get into training the whole school workforce, if they are going to use these powers, I imagine that many head teachers looking at their budgets would say, “Well, I probably won’t use these powers because I can’t afford the training of the whole school”, and then the legislation would become largely redundant. There are many other cans of worms that could wriggle out, which we could explore if we had time.
What will the powers do that the current powers do not? Paragraph 61 of the Explanatory Notes explains that the current powers under Section 550ZA of the Education Act 1996 allow other prohibited items to be searched for as specified in regulations. I would be interested to hear what Clause 2 does to extend the list of prohibited items from what would have been prohibited previously under regulations that the Government could have deployed using current powers.
I say in passing that it is easy in this debate to write off mobile phones as things that should be confiscated. However, mobile phones in classrooms can be used as very powerful computing devices. I would not want this debate to pass without standing up for the use of mobile phones as handheld computing devices that need to be managed. When I was at school, the pen was abused by many pupils who wrote nasty things about teachers and other pupils, yet nobody suggested that we ban the pen, because it was an important learning tool. Some electronic devices are also useful learning tools in the current century.
My final question to the Minister is: how will an appeals process work if the powers are used by a school? Will the process be governed by the school rules, with pupils and parents being able to go to the head teacher and then, as a final recourse, to the governing body? Many schools will be academies, so there will be no referral to a local authority if parents are dissatisfied with what the governors say. Will there be an appeal to the Secretary of State, or will the parents have to go to court, if they have the resources to do so? It would be helpful to understand how the appeals process will work.
Viscount Eccles
My Lords, I have listened very carefully and tried to think, if I was the head teacher of a school, how I would approach the problem and what I would say to my governors and to the political system. Clearly it is a deeply cultural issue which carries an enormous content of expectations. The idea of the noble Lord, Lord Sutherland, needs to be followed up.
I would try to turn this into a routine exercise—something that is as emotionally and culturally unloaded as it can be. We all go through a form of search whenever we go to an airport. I do not think that we like it. In fact, I remember one or two famous occasions when people did not behave very well when they were crossing borders or going through airports. I have knocked about a lot in the third world, where things can feel very undignified. I remember trying to get into Brazil from Paraguay. The queue was held up for a very long time while all sorts of unpleasant things were suggested by the people at the border. I think they were looking for money, which of course was a different circumstance.
Perhaps we should turn our minds away from bad expectations. Do we not talk too much about disadvantage and vulnerability? Are we really sure that many of the circumstances in which people bring the wrong thing to school are the result of disadvantage or vulnerability? It could be the result of many other things. I urge the Committee to urge the Minister to think hard about the best advice that could be given to head teachers and governors about how to cope with the particular circumstances in which they find their school, and how they could turn the question of controlling the arrival of unsuitable things in their school into a routine matter, so that the measure referred to by the noble Lord, Lord Sutherland, which is terribly important, can be confined to emergencies. I suppose that as a head teacher, one would hope to find no emergencies and no searches resulting from emergencies.
Baroness Howe of Idlicote
My Lords, after listening to the emotions raised, it is quite clear that this is an explosive situation. As to the longer term, after looking at my diary I can see that we have a few more sessions in Committee and then a break. This will give us longer to work out the best solution to the problem for when we get to Report.
All kinds of issues have been raised: race, where there is an element of real concern, the use of phones and the danger to teachers. One view is that phones are good things and can be useful—and no doubt they can be—but you have to adopt a different approach to a situation where children, particularly girl children, have had these phones used to record certain incidents that might be used against them. As president of the NGA, I believe that there is a role for the governors and I intend to ask about the advice given to schools. I would have thought that somewhere between the head teacher, the chairman of governors and the governing body there would have to be a policy anyhow on what happens under these circumstances.
I hope that we can put this off a while. We need a real teach-in, if possible before the end of summer or on one of those splendid occasions when we are dragged back into the building. However, I am ambivalent. I can see some of the problems from the school viewpoint but it will remain a worrying situation until we can draw out something which is satisfactory to all sides.
The Earl of Listowel
My Lords, I want to flag up for the Minister that this might be relevant to his interest in the training and development of teachers more generally and that he might seek confirmation from those of your Lordships who have been in practice in this area whether my concerns regarding the teacher-pupil relationship are right. I know from other settings working with children that it is vital to build a relationship of trust. All kinds of emotions can emerge from that. There can be love, as the noble Lord, Lord Elton, has often said, but there can also be feelings of hate.
I remember observing a teacher—a man in his late 40s, perhaps—working with a 16 year-old girl with Down’s syndrome. We were taking her out on a summer expedition to picnic in the park. She was a lovely girl but she was unmanageable; she would push the boundaries. She would walk away, and what could he do? What could any of us do? As we went back in the minibus I observed him—I may have been incorrect in my observation—start to tease her about her boyfriend who was sat next to her. We are all human and when we are put under pressure certain people get under our skin and certain things come up. The way in which we can avoid taking such things personally is by reflecting on what we are doing—just as that Montessori teacher was helped to observe that wagging her finger at pupils was not helpful and perhaps came from an experience in her past that she does not want to bring about again.
Rather long-windedly, I am suggesting to the Minister that his work in bringing in Charlie Taylor to advise about behaviour and in thinking about how we can better train and develop teachers might be useful in this area—not only to avoid having to bring about the searching of children but the danger that certain children might be targeted by teachers who find them annoying. This might be one way of dealing with that annoyance.
People have always emphasised to me that—I wanted to check this point with those who have teaching experience—little attention is given to the teacher-pupil relationship in teacher training and development and that there is a vacuum in that regard. In the initial teacher training there is very little about child development and how you interact with children. Continuing professional development is also lacking in that regard. Teachers report that it is wonderful to be given training in child development and managing difficult behaviour. Indeed, the training that foster carers say is most valuable to them is that concerned with managing difficult behaviour. I flag up the point to the Minister that the broader issue of the training and development of teachers is involved here. I know that he is doing some work in that area and he may want to say something about that in his response.
Lord Morris of Handsworth
My Lords, as the debate has revealed, this is a very sensitive issue which has to be dealt with with the greatest understanding in respect of the problems that can arise, including the possible disruption of a school. Before this issue arises again on Report, the Minister might wish to consider producing detailed guidance to assist teachers in this area as regards the dos and the don’ts, what is prohibited and, indeed, what is acceptable. One point that has not emerged in the debate is that of who searches who and whether a pupil should be searched by a teacher of the same sex as himself or herself. That issue needs to be addressed; if not, teachers will be left vulnerable and exposed and may be subjected to unfair criticism and accusations. I hope that the Minister will consider bringing forward guidance to support teachers in this respect.
Baroness Stowell of Beeston
My Lords, I echo the points made by my noble friend Lady Perry. I am a member of the Joint Committee on Human Rights, which looked in detail at this clause. We sought to draw a distinction between searching a person and searching belongings. I think that this has been illustrated in our debate today. Certainly from my perspective, the searching of persons is the area which attracts most comment and requires a great deal of care. Notwithstanding the points made by the noble Baroness, Lady Massey, greater latitude and flexibility should be afforded to teachers when searching lockers and bags. I thought that it might be helpful to point that out.
Lord Hill of Oareford
My Lords, it is clear from this excellent discussion that improving standards of behaviour in our schools is a major priority for us all. It goes to the root of how we raise standards and lies at the heart of our determination to close the attainment gap between those from poorer and those from wealthier backgrounds. Most importantly, it goes to the root of how we keep children safe at school and college, particularly the most vulnerable because we know that they are the ones most likely to suffer from a disorderly environment.
I want to say at the beginning how much I agree with the noble Baroness, Lady Massey of Darwen, about the sensitivity of this. She was kind enough to invite me along to the All-Party Group on Children where we debated some of these issues. I agree with her entirely that discipline is not just about punishment. Unfortunately, one of the ways that the various amendments have been grouped means that we are jumping from one strand of the clause to another and have not really had the opportunity to set it out in its context. I will try to do a bit of that. We will come back to some of the more sensitive issues around opposite-sex search, which I know a number of my noble friends and noble Lords will want to raise, and issues more generally such as those to do with electronic devices and deletion—which, again, I know is sensitive. With the agreement of noble Lords, I intend to concentrate on the issue of training, which is the core issue lying behind these amendments.
The Government know, as do noble Lords, that having a clear behaviour policy that is widely publicised and consistently applied, and which includes positive incentives as well as sanctions, is at the core of what good schools ought to offer. We can all think from our experience of schools which demonstrate excellent practice and we want more to do so. One way that we can help with that is to hold schools to account for the behaviour and achievements of all their pupils. Our proposals on Ofsted inspection will relate to that.
We know that, despite good behaviour management, serious incidents sometimes happen in schools. We cannot always predict when they will happen. The measures in the Bill are designed to support teachers’ powers to maintain an orderly environment, building on the measures introduced by the last Government. The powers to search in this clause are likely, thankfully, to be used rarely in most schools and only in serious cases. The overall purpose of the clause is to ensure that teachers, head teachers and principals have the powers that they need to deal with incidents when they occur.
My top-line response to the question from the noble Lord, Lord Knight of Weymouth, as to what the clause does—we will come back to that—is that in general terms it is trying to give schools the ability to respond to local issues and problems that they may face day to day, rather than having to wait for the Government to amend regulations or to sit here considering a whole range of specific issues that we might think that they need to respond to, then renewing the regulations each time in response to every challenge that they face. We are trying to provide a framework so that, if they need to, they can search for any item that can be used to commit an offence, cause injury or is banned by the school rules. We will come back to that.
My noble friend Lady Walmsley raised the important issue of training. In addition to the measures in the Bill, we are clear that we want all teachers to be trained to manage and improve children’s behaviour from the start of their careers. In our ITT strategy, which we published yesterday, we said:
“Improving teachers’ skills in tackling poor pupil behaviour is also vital: no issue is more important when it comes to attracting good people into teaching ... We know that there is some excellent practice in this area, and we will encourage support between ITT providers, so that struggling providers can learn from the best ... We will also help local networks of schools to develop teachers as behaviour specialists”.
On the point raised by the noble Earl, Lord Listowel, the Secretary of State has asked Mr Charlie Taylor—our expert adviser on behaviour—to consider how initial teacher training could give teachers the best possible preparation in behaviour management. Mr Taylor believes that ITT cannot be the end of training on behaviour management. Some of it can only be learned in school. He is also working with the department on our teaching schools programme to look at the issue.
The noble Baroness, Lady Howe, raised the suggestion of a teach-in, which also came up at our APPG meeting last week. I think it would be a good idea to do that. I suggest that we organise a meeting with Charlie Taylor well in advance of Report stage where we can go through all these issues and noble Lords can explore them in detail.
Overall, these powers are permissive—I will come back to the amendment of my noble friend Lady Jolly in a moment—and no teacher can be forced to search a pupil or student. However, we think that it is right that the power should be available for an authorised person to use in extremis. The Bill builds on earlier legislation that recognised the usefulness of teachers having powers to search. In extending that legislation, it is important that we also add safeguards to ensure an appropriate balance between the rights of the individual, of the child and of all the children or students in the school or college.
Lord Elton
I use just a second to pick up one phrase that my noble friend used earlier: discipline is not only about punishment. I hope that the Committee and the Government will bear in mind that in matters of keeping order and quelling disorder, punishment is the last resort. Good order depends on a whole school behaviour management programme understood and operated by the whole staff. We need to remember that that is the prime source of good order and that punishment is what has to be brought in when it fails.
Baroness Jones of Whitchurch
My Lords, I want to make just a couple of quick points, given the lateness of the hour. The first is that the draft guidance that seems to be floating around, the status of which I am sure that the noble Lord will know better than I, explicitly states under the heading of training for school staff that there is no legal requirement for a head teacher or authorised member of staff to be trained before undertaking a “without consent” search. That is a statement of fact because there is no legal requirement, but if you are issuing guidance, would it not make sense to say something like, “But we think it is a jolly good idea”? It is almost a prescription not to bother to do the training. I may have the status of the guidance wrong, but my point is worth taking on board.
The second point concerns the final issue that the Minister raised, which was about keeping records. There was a contradiction with what a number of noble Lords said about the need for consistent record keeping so that Ofsted can check what is going on and the department can have an idea of whether there are unforeseen consequences of the searches. We all want to know what the big picture is, and we can only do that if we have consistent records. The noble Lord said that we should trust schools to keep their own records, but there is a contradiction here—and also with the requirement under the Equality Act that he talked about. I will return to the issue about what schools should be required to do in terms of keeping records to comply with fairness and meet the requirements of the legislation. I do not think that we have fully fleshed that out.
Baroness Walmsley
My Lords, this has been an excellent and wide-ranging debate. I thank all noble Lords who contributed, and in particular the Minister for his reply. Before I make a few comments, I will make one correction. I mentioned that it was the Association of Colleges that was against the statutory requirement for training: I meant to say that it was the Association of School and College Leaders. I am sure that Hansard in its usual inimitable manner will correct that for me.
I will pick up on a few disparate points from the debate. First, a number of noble Lords raised the issue of what would happen if a child were wielding a knife. I believe that a teacher or anybody else in the room would have a common-law right to intervene to protect themselves or any child there: they would not need these searching powers. Anyway, you do not need to search for something that is in full view.
I thank the Minister for his assurance that no teacher will be pressurised into doing a search. I am aware that this was in previous legislation. However, the Government are repealing a number of checks and balances in previous legislation, so I was a little concerned that they might be repealing that.
I very much agree with the points made by my noble friend Lady Benjamin about stop and search. She made her points very passionately. These are things that we must bear in mind. I asked for a very detailed review so that we can make sure that no discrimination is occurring. Of course, if the incidents are reported and recorded, as the noble Lord, Lord Sutherland, suggested, it will be very easy to collect the information. I know that the Government are trying to ease the bureaucratic burden on schools and are not implementing the duty in the previous Bill to record all incidents, but incidents of this nature are really quite serious and perhaps it should be suggested in guidance that best practice should dictate that these sorts of things are recorded under the school’s judgment.
Baroness Hughes of Stretford
Is the noble Baroness aware that in some parallel situations, for instance in children's homes, a written record is required? One can only think that, if it is required there, perhaps it should be required in schools.
Baroness Walmsley
I quite agree with the noble Baroness. We need to have another debate about consistency in the way that we deal with children across the piece.
The noble Lord, Lord Elton, suggested that searching might be a preventive measure. I do not think that this legislation would allow a whole class to be searched as a preventive measure. I may be wrong about that, but I think that it would not.
On the issue of how to search a child safely, I am not suggesting that there should be any kind of qualification—simply that the head should be satisfied that the staff have had appropriate training. The Minister pointed out, when he was talking about not forcing a member of staff to do the search, that the head would have to designate who could do these searches, and I accept that. However, we are making a number of assumptions here about what the head would know about the competence of the teacher. That is why we need something either in the Bill or in statutory guidance to say that, in designating teachers to do that sort of search, the head must assure himself or herself that that person is competent to do that. Without our being too prescriptive about the sort of training, it really is up to the head or principal to ensure that the training is adequate and appropriate. That would probably satisfy me.
The noble Lord, Lord Knight, who is not in his place, suggested that if the CPD was expensive the head would not want to do it, and therefore all the legislation would be redundant. Nothing would make me happier than that. I point out that it was his Government who started down this slippery slope in the first place.
I pass on to the Committee a point that my noble friend Lady Sharp made; she is no longer in her place but was here a little earlier. She has been doing a report about FE colleges and has been visiting a great many of them recently. She said that the proposal in Amendment 30, in the name of the noble Baronesses, Lady Hughes and Lady Jones, would be inappropriate in a big college because its senior management would not want these powers and would very willingly delegate them to the security staff or to other senior staff in the college. The powers in Amendment 30 would not actually be welcomed.
As I said earlier, I would, reluctantly, not oppose these measures lock, stock and barrel. However, it is important that we get this right, which is why I have tabled a raft of amendments about training, gender, witnesses and various other matters that we will come to the next time we meet. With those words, I beg leave to withdraw the amendment.
Lord Hill of Oareford
My Lords, this may be a convenient moment for the Committee to adjourn until Thursday at 2 pm.
House of Lords
Leave of Absence
The Lord Speaker
My Lords, I have been invited to represent the House at the opening by Her Majesty the Queen of the fourth Session of the Scottish Parliament in Edinburgh on Friday 1 July. Accordingly, I seek leave of absence from your Lordships' House on that day.
Olympic Games 2012: Courier Industry
(12 years, 10 months ago)
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Viscount Falkland
To ask Her Majesty’s Government what arrangements they are considering to allow the courier industry to operate as normally as possible during the traffic arrangements for the 2012 Olympics.
Viscount Falkland
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare my interest as president of the Despatch Association.
Earl Attlee
My Lords, arrangements for couriers and traffic regulation during the Games are the devolved responsibility of Transport for London, but the Department for Transport is taking a keen interest in this area to ensure that the UK and London keep moving next summer.
Viscount Falkland
My Lords, I thank the noble Earl for an encouraging reply—more encouraging, I might say, than the courier industry has received thus far from the Olympic delivery committee. Might the Government be able to persuade the Olympic delivery committee, which is in charge of the arrangements, that the courier industry is not the freight industry, which seems to be its only concern? The courier industry’s service is used and relied on by most of commerce and by other organisations. It offers a valued service of 24-hour or same-day delivery. If that is not available during the Olympic Games, many businesses may suffer.
Earl Attlee
My Lords, yesterday I had a meeting with officials from TfL in order better to understand its plans for helping to deliver a successful Olympics and Paralympics. TfL’s structured programme of consultation with the larger trade associations began some time ago. It is not my role to tell TfL what to do, as it is the competent authority. However, I did mention the desirability of allowing all responsible trade associations to be able to engage with TfL, including the Institute of Couriers and the Despatch Association. I also said that the courier industry is slightly different from the freight industry, a point which the officials well understood.
Lord Glentoran
My Lords, does the Minister agree that it is not the ODA but LOCOG which will be responsible for administration at the time of the Games and that if anybody should be working with the transport industry, which of course they should, it should be LOCOG?
Earl Attlee
My Lords, my noble friend is nearly right. On 9 February 2011, responsibility for the 2012 Games travel demand management, Olympic and Paralympic route networks and road freight management programmes in London transferred to TfL.
Baroness Doocey
My Lords, does the Minister agree with me that licensed black taxis should be allowed to use the Olympic lanes during the Games? If they do not do so, a lot of them will have to put their business on hold for the six weeks of the Games.
Earl Attlee
My Lords, I am not absolutely sure of the answer to the noble Baroness’s question, but I am quite sure that TfL has taken this into consideration. Very few routes will be unavailable to cars.
Lord Davies of Oldham
My Lords, the trouble with giving way is that one’s question is then addressed by the previous speaker. Could I just offer to the Minister a word of encouragement and warning? I am hot-foot back from the Olympic site this morning. Everyone who goes there is enormously encouraged by the preparations for the Games, which I am certain will be hugely successful when they occur. But perhaps I may give the Minister this word of warning: I had the misfortune many years ago to introduce the London bus lanes and left out the interests of the black cab trade. I still bear the scars to this very day, so I warn him lest he bear such scars.
Earl Attlee
My Lords, part of the reason why we are in such a good position with the Games is the good planning put in place by the previous Administration. With regard to the use of black cabs, noble Lords will understand that the primary route for getting to the Games should be public transport—buses, the underground and railway systems.
Lord Brooke of Sutton Mandeville
My Lords, given the role of the runner Pheidippides in bringing the news of the battle of Marathon to Athens, could my noble friend see whether there was any way, since he gave his name to the race, that the name of Pheidippides could be worked into the process that he has been recently defending?
Earl Attlee
My Lords, that is an extremely interesting question which I am sure my officials will love researching to enable me to write to my noble friend.
Lord Kilclooney
My Lords, can the Minister assure us that there will be no roadworks in London during the 2012 Olympics?
Earl Attlee
My Lords, when I had my discussions with the TfL officials I was very impressed with the number of different problems they have considered, and I am sure that they will do everything they can to minimise all roadworks where they could cause a problem.
Lord Tomlinson
My Lords, when the noble Earl has his next meeting with TfL officials, if he has any spare time, can he tell them that there was not exactly dancing and singing in the streets at the news of the vastly inflated salaries that they are being paid and the fact that there are now more than 360 TfL officials being paid six-figure salaries?
Earl Attlee
My Lords, I was impressed enough with the TfL officials to think that future meetings would not be necessary on my part.
The Countess of Mar
My Lords, could the noble Earl impress upon the people organising the transport that some people cannot use buses or the underground because they are disabled and they use taxis instead and that these are a very important component of transport?
Earl Attlee
My Lords, the noble Countess makes an important point. The blue badge scheme has been provided for and there will be dedicated parking places for blue badge users. However, they will have to be booked in advance.
Europe Day
(12 years, 10 months ago)
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Lord Anderson of Swansea
To ask Her Majesty’s Government why No. 10 Downing Street and the Foreign and Commonwealth Office did not fly the European flag on Europe Day.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
No. 10 Downing Street and the Foreign and Commonwealth Office take a straightforward approach; they fly the union flag at all times, with limited exceptions mainly for the patron saints’ days for England, Scotland, Wales and Northern Ireland.
Lord Anderson of Swansea
My Lords, this is a change of policy. In what way do such silly gestures serve our national interest?
Lord Howell of Guildford
The noble Lord speaks of silly gestures, but the idea that flying flags is any indication of the policy of commitment, in our case to the European Union, is frankly absurd. If we flew the flag for every relationship with every multilateral organisation, we would be for ever hoisting flags and taking them down again. There is frankly no relationship between our activist and forward position on the European Union—we are playing a major part, as demonstrated by the Prime Minister over the weekend—and the actual flying of flags, which is not the intention of 10 Downing Street.
Lord Dykes
I thank my noble friend the Minister for his renewed commitment to Europe, which he has just expressed. Is it not a pity that we do not fly the European flag a little bit more? The only European flags within the vicinity of this place and Whitehall are on the Slovenian embassy and the former headquarters of the Conservative Party, which is now the European Commission and the European Parliament. That historical irony could now be built on if the Government were bold enough to fly the European flag alongside the union flag, which is the routine of all other member states.
Lord Howell of Guildford
Some departments and some public institutions do fly the flag if they wish to do so. I repeat to my noble friend that the flying of flags is not connected with the very strong policy we have in relation to the European Union, in which we are paying a very active part and dare I say a slightly more successful part in some areas than was the case under the previous Government.
Lord Tomlinson
My Lords, would the Minister accept that the flag that is being talked about should not be referred to as a European Union flag? It is also the flag of the Council of Europe, and it was its flag long before it was adopted by the European Union. In view of the fact that later this year we assume the presidency of the Council of Ministers of the Council of Europe, will he make sure that we do not cause unnecessary offence during our presidency?
Lord Howell of Guildford
Of course one will make sure of that. I do not think I said “European Union flag”; if I did, it was certainly a slip of the tongue because rather than talking about the European flag, I was referring to the union flag of this union in which we live.
Lord Pearson of Rannoch
My Lords, given the growing anger of the British people with our EU membership, do the Government agree that they were, for once, rather wise not to fly the Union flag on Europe Day? Do the Government also agree that the British people are not fools, so they can clearly see that the riots in Greece—and soon elsewhere—are caused entirely by the euro and by the failing project of European integration? Would it not be better to get rid of the wretched flag altogether, especially as it has no legal status whatever?
Lord Howell of Guildford
The noble Lord is making the same mistake as others in associating the hoisting and waving of flags with policy, which is a quite different issue. He also raises broader questions about the position of Greece and the eurozone. Undoubtedly there are major problems, and my right honourable friend the Prime Minister and other right honourable friends have been taking a very active part in working to see that the eurozone system is at least able to stay together for the time being to buy time in order that longer-term solutions can be put in place. It is in our interests that the eurozone should prosper and not undermine the European economic system.
Lord Maginnis of Drumglass
My Lords, in so far as our own national flag can be flown upside down as a sign of disaster, is it not possible that we could apply the same rule to the Union flag and perhaps resolve everyone’s difficulties?
Lord Howell of Guildford
I am not too expert on the art of flags. Indeed, there is a complicated word that I have forgotten to describe the whole philosophy of flag flying. I am sure one of your Lordships will know it. As to flying flags upside down, I think I would recognise when the union jack is upside down but I am not sure I would recognise whether the round stars of the European Union were upside down or the right way up.
Lord Liddle
My Lords, the Minister assures us today, as he has throughout the passage of the European Union Bill in this House, that this is a pro-EU Government. Will he now persuade his Prime Minister to make for the first time a major speech explaining our interdependence with the European Union and the eurozone, and how the stability of our banks and our prospects for economic growth depend on it, instead of saying that we simply will not pay a penny? Is it not time that the Government started to fly the flag for our membership of the European Union in a real sense when they talk to the media in this country?
Lord Howell of Guildford
I do not know where the noble Lord has been these past few days. My right honourable friend the Prime Minister needs no persuading and has made his position absolutely clear. As he pointed out in the other place the other day, the conclusion statement from the last European Council meeting included, at his behest, the crucial words:
“All necessary measures fully consistent with international standards must be rapidly taken to address any possible banking vulnerabilities brought to light by these stress tests”,
and by the developments over the situation in Greece. My right honourable friend is perfectly well aware of the vital importance of maintaining economic stability in Europe and the recovery of the economies in difficulties. No persuasion is required.
Lord Taverne
My Lords, does the Minister not recognise that what he has just recounted is quite different from the kind of major speech that the noble Lord, Lord Liddle, has called for? Is it not true that the Minister has given the impression that we are wonderfully clear of any problems because the eurozone crisis is a matter for the Europeans and that all we are concerned about is not paying any money?
Lord Howell of Guildford
I seem to be finding difficulty in communicating today because I have just given the opposite impression in great detail. I quoted my right honourable friend; I quote many other Ministers and I could quote myself ad nauseam. We are all extremely concerned with the stability of the eurozone. Going back 10 years, I admit it is perfectly true that some of us might not have thought that the idea of the eurozone was going to be perfect sweetness and roses all the way and there has been some proof of that. However, now it is here we have to make this work and see that the southern countries of Europe can overcome their terrible economic difficulties. It is utterly in our interests to do so, as my right honourable friends have said again and again. There is no such alternative impression.
Lord Clinton-Davis
Thank you for that. Many people will regard the action of the Government as rather small-minded and counterproductive. How do the Government see their way to advancing the interests of this country, rather than diminishing it? Is the Government’s attitude not to be deplored?
Lord Howell of Guildford
The noble Lord was a very distinguished commissioner, as we all know, but on this matter he is again associating No. 10’s wish to fly the flags that I described with a symbolism far beyond the reality. The reality is that decisions about flags are one matter and our policy, commitment, strategy and the centrality of the European Union in our foreign policy are another, to which we give the greatest possible importance and adherence.
Parliament Act 1911: Centenary
(12 years, 10 months ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government what events they are planning to mark the centenary of the Parliament Act 1911.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, the Government have no current plans to mark the centenary of the Parliament Act.
Lord Roberts of Llandudno
I am sorry that that is the Minister’s Answer. On 18 August 1911, there was an historic Act that changed the face of Parliament. While we are celebrating all this year the Armada, the Battle of Trafalgar, the Battle of Waterloo and the wives of Henry VIII, is it not time that we thought of the magnificent achievements of the last century in health, education and the extension of democracy? Is it not time that somehow this House and this Parliament were able to celebrate the more recent achievements of Parliament?
Lord Strathclyde
My Lords, I am all in favour of celebrating the achievements of Parliament and indeed of the last century and the many changes that took place. I am not entirely convinced that the Parliament Act was a victory for this House. In fact, it marked the time when we lost considerable power out of the foolishness of our predecessors. However, for those who wish to celebrate, I understand that on Saturday 16 July, from 7 pm to 11 pm, BBC Parliament will show a continuous programme on the causes and effects of the Parliament Act 1911.
Lord Morgan
My Lords, is the noble Lord aware that in 1911 Lloyd George and many other Liberals were totally opposed to an elected House of Lords on the grounds that it would be much more reactionary on social reform by including, as he put it, people like glorified grocers? Apologies if there are any noble Lords who fulfil that description. Therefore, is not the Government’s proposed legislation on the House of Lords a totally inappropriate sequel to the Parliament Act?
Lord Strathclyde
No, my Lords, I could not possibly agree with that. I am surprised by what the noble Lord says, with all his knowledge about Lloyd George. You have only to read the preamble to the 1911 Act to understand that those who passed it clearly wished and hoped fervently for an elected House in due course.
Lord Elystan-Morgan
On the issue of a preamble—I am sure that its words are constantly in the forefront of the noble Lord’s mind—is it not the case that it is a massive misconception to believe there was any reference in it to an elected House? What was anticipated was a more popular House—a much broader concept than an elected House. Is it not the case that 47 years later, with the Life Peerages Act 1958, that was greatly achieved? It created a balance of gender, geography, ethnicity and background which is so necessary for a reviewing Chamber.
Lord Strathclyde
My Lords, I agree with the noble Lord that the passing of the 1958 Act was a significant moment and a significant improvement in the selection of Members of this House. I have no idea whether it was influenced in any way by what happened in 1911. All I know is that at the previous general election all three main parties stood on a manifesto in favour of an elected House.
Lord Barnett
My Lords, will the noble Lord give an assurance that the Government are not using the opportunity provided by the centenary to plan on using the Act for that purpose in the event that they were stupid enough to bring forward a Bill in, say, 2013-14?
Lord Strathclyde
My Lords, that was a very complicated formulation. I think the noble Lord was asking whether we would use the Parliament Act to pass a new Parliament Act. I have said before—no doubt I shall be asked this many times—that the Parliament Act is part of a process when the two Houses disagree over a piece of legislation. There is no such legislation before the two Houses and no disagreement. Therefore, at the moment there is no prospect of using the Parliament Act. However, if such a Bill were brought forward, the Parliament Act would be available.
Lord Cormack
My Lords, could we not be constructive on this? Could we not commemorate the Act by unveiling a plaque in this House to commemorate the wonderful achievements, as Members of this House, of the Earl of Oxford and Asquith and Earl Lloyd George?
Lord Strathclyde
My Lords, if my noble friend were to put forward a proposal to the House authorities, I am sure that the appropriate committee would consider it most seriously. However, 1911 was an interesting year for Acts that we rarely think about. The Geneva Convention Act was passed in 1911, the Official Secrets Act was passed in 1911 and the Factory and Workshop (Cotton Cloth Factories) Act was also passed in 1911.
Lord Grocott
My Lords, I do not want to be accused of driving a wedge between the two parties of the coalition, but will the noble Lord confirm what he appeared to say in answer to the noble Lord, Lord Roberts of Llandudno? There was, in his Answer, a sense of sadness and nostalgia at the passing of the Parliament Act, which diminished the powers of this House. The noble Lord is a leading member of the Government. Is it the Government’s position that they regret the passing of the Parliament Act?
Lord Strathclyde
My Lords, the Government’s position is that we have no current plans to mark the centenary of the Parliament Act. In answer to the Question from my noble friend Lord Roberts of Llandudno, I wondered whether it was appropriate for this House to celebrate the passing of the Act when it removed so much power from us, which might well have been used exceptionally wisely over the succeeding 100 years.
Lord Tyler
My Lords, after their rip-roaring performances in last week’s debate, would it not be appropriate to commission a production of Gilbert and Sullivan’s “Iolanthe”, with starring performances from my noble friend Lord McNally and the noble Baroness, Lady Boothroyd?
Lord Strathclyde
My Lords, I am sure that another outing by my noble friend Lord McNally would be a show-stopper.
Baroness Royall of Blaisdon
My Lords, I am sure that one of the tasks of the newly appointed Joint Committee will be precisely to look at the workings and applicability of the Parliament Act. Might it not be a good idea, to mark the centenary of the Parliament Act with further tangible House of Lords reform, to ask the Joint Committee also to undertake an immediate report on the Steel Bill, which would help the House and Government decide on the best course of action when the House returns in October? I understand that the noble Lord’s Bill might be debated then.
Lord Strathclyde
I am all for debate on that Bill. We should let the Joint Committee do its work. It has its terms of reference. If it feels the need to look at the Parliament Act, it should do so.
Armed Forces: Overstretch
(12 years, 10 months ago)
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Lord Craig of Radley
To ask Her Majesty’s Government what is their reaction to the views, recently reported by the media, of senior serving officers about the overstretch of the Armed Forces as a result of involvement in current military operations.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, the vital expertise of military personnel is fundamental in the decisions made by the Government in operational matters. There are a number of fora at which Ministers and military chiefs routinely discuss operational issues, and the three service chiefs will retain the right of open access to the Defence Secretary and to the Prime Minister. At all levels of the MoD, service personnel and policy staff interact on a daily basis.
Lord Craig of Radley
My Lords, will the Minister confirm that the Prime Minister and the Government are satisfied with the professional military advice of the chiefs of staff on current and future operations? While there can be every expectation that operations over in Libya will continue as long as is necessary, is it not inevitable that shortages of manpower, equipment and finance mean that other commitments may be adversely impacted?
Lord Astor of Hever
My Lords, I can give the noble and gallant Lord the confirmation that he has asked for. I cannot praise the chiefs enough. They are showing very strong leadership at a difficult time and when we are fighting two wars. As regards the noble and gallant Lord’s second question, as recent events have demonstrated, we are still capable of making a major contribution to NATO operations. In Libya we are the third largest contributor after the United States and France, while maintaining our efforts in Afghanistan and meeting our other standing commitments.
Lord Rosser
My Lords, in the Statement yesterday on the structure and management of the Ministry of Defence, the Government said that service chiefs would run their individual service and also be accountable for their budgets and delivering strategy. Under the new regime, with greater accountability by service chiefs, are the Government saying that service chiefs will not be allowed to speak out on concerns about the overstretch of the Armed Forces if they believe the resources they have been given do not enable them to implement the strategy commitments they have been told to deliver?
Lord Astor of Hever
My Lords, as I said, the chiefs have the right, whenever they want, to talk to the Secretary of State for Defence and to the Prime Minister—that is the proper way to do it.
Lord Selkirk of Douglas
My Lords, can my noble friend confirm that with regard to Libya, whatever resources are necessary to see the matter through to a successful conclusion will continue to be made available?
Lord Astor of Hever
My Lords, I can confirm that. The Treasury has agreed to meet these costs from the reserves and, as the Chief of the Defence Staff has said, we can sustain this operation as long as we choose. On that I am absolutely clear.
Lord Soley
My Lords, will the Minister confirm that it is a very widely held view in the Armed Forces and elsewhere—and I know him to be a thoughtful Minister on this—that we cannot go on with the assumption that there is no need to review the White Paper on defence? Frankly, both foreign policy and defence issues have changed so much in recent times that not to revisit it would be a disservice to our Armed Forces.
Lord Astor of Hever
My Lords, the SDSR was based on a thorough, realistic assessment of the threats we face now and could face in the future. It ensures that we can continue to conduct operations today while preparing our future force. Our rapid and highly effective contribution to the NATO mission to protect the Libyan people is testament to the flexibility and professionalism of our Armed Forces and proof that the UK has the capability to project power and influence at very short notice.
The Lord Bishop of Wakefield
My Lords, following the question that has just been asked, would the Minister accept that Britain’s ability to resource recent and additional deployments—deployments that would not have been possible a few months later—draws into question the very plans that have been discussed? Is there not now a very good reason why they ought to be reviewed again in light of the increasingly unstable international position?
Lord Astor of Hever
My Lords, the Government will continue to provide sufficient resources to achieve operational success in Libya, Afghanistan and elsewhere. We are quite clear that we can manage what we are being asked to do in Afghanistan and Libya at the present time.
Lord Lee of Trafford
My Lords, last week we welcomed back 16 Air Assault Brigade after its third tour in Afghanistan. One of its officers told me that our kit in theatre is now the envy of US forces—specifically the lightweight helmet, body armour, small rucksack and even boots. Given that each day the MoD unfortunately seems to be getting a kicking on procurement issues, will my noble friend take back to Main Building a good news story, for once?
Lord Astor of Hever
I am very grateful to my noble friend and I entirely agree with him. I know that he was able to inspect with me the latest equipment and clothing issued to troops, including the advances in personal protection, that were on display in Portcullis House earlier this year. This is a good news story, and there is no doubt that these advances, such as those that my noble friend mentioned, are helping to save many lives in theatre.
Localism Bill
(12 years, 10 months ago)
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Lord Taylor of Holbeach
Lord Taylor of Holbeach
My Lords, this is a substantial group of amendments that includes several government amendments. Perhaps I can put our amendments into some context and address the issues raised by the other amendments in this group.
Our amendments set out the requirement for relevant authorities to approve and publish a pay policy statement which, in addition to the measures already in the Bill, must set out an authority’s policies on remuneration of its lowest-paid employees and the relationship between the remuneration of its chief officers and the rest of its workforce. As Will Hutton set out in his report on fair pay in the public sector, published on 15 March, there is value in ensuring that decisions about senior pay are taken in the context of similar decisions on lower-paid staff. Such an approach broadens the debate beyond discussion about salary amounts of top earners and into whether the pay of those individuals is justified.
These measures, therefore, further increase local democratic accountability and transparency over how decisions on pay are made, and embody the commitment given by Ministers to reflect on the measures in the light of Hutton’s report. The measures seek to minimise the potential burden on authorities and ensure that decisions on pay remain ones for individual employers to take locally.
The opposition amendments would take those measures beyond the scope of pay accountability. Our intention, through the provisions in the Bill and our amendments, is to bring greater accountability and transparency to an authority’s approach to remuneration of its own employees. We do not seek to prescribe what the approach should be by requiring authorities to publish a list of numbers, or by roaming about on other matters such as local decisions around recruitment or engagement with providers—which would be the effect of the opposition amendments. Our Amendment 101, in its requirements relating to the remuneration of the lowest-paid employees, is broader than the Opposition’s proposal and will lead to the publication of policies in a rounder way than by focusing on policies relating to total salary costs and numbers of staff, which is what Amendment 101A would achieve.
Amendment 101 would require authorities to disclose their policies on the relationship between remuneration of their chief officers and the rest of their employees, including the lowest paid. We do not feel it necessary to require authorities to break down their policies in this regard in the way proposed in Amendment 101A. Indeed, Will Hutton, in his report on fair pay in the public sector, highlights that, in seeking to measure pay dispersion using a pay multiple, comparison between top and lowest pay is not the most effective approach. As we have made clear, charities, voluntary organisations and businesses—particularly small businesses—have repeatedly called for the amount of regulation and red tape surrounding local government contracts to be reduced. I am sure that noble Lords opposite agree with that general principle. In this context, it is not appropriate to use this Bill to impose further duties on authorities to have policies relating to the pay of those who work for an organisation with which it contracts.
Nothing in the Bill limits the extent of information that an authority may include in its pay policy statement. Authorities may take the local view to include any other policies as they think fit. This could include policies on contracting staff where they have developed them locally. We will undertake to make this clear in guidance rather than set it out in the Bill.
I am grateful to my noble friend Lord True for his work in submitting Amendment 105. Perhaps I can reassure him and other noble Lords that local authorities must always abide by relevant employment legislation when carrying out their duties as employers. This obligation extends to the formation of their policies on pay. Pay policy statements are intended to be an articulation of such policies. The measures that we are introducing do not take precedence over employment law. A pay policy statement could not be lawfully used by relevant authorities to sanction matters that are not in line with their existing legal duties and obligations. Similarly, any changes to policies included in a published pay policy statement, which must be approved by a full council, must also adhere to requirements placed on authorities as employers under employment legislation. We can undertake to reinforce this position in guidance, to which authorities must have regard. We believe that this will achieve the aims of the amendment without it being necessary to remind authorities of their duties as employers as set out in the Bill. I hope that I have assisted the Committee in its consideration of this matter. I beg to move Amendment 99.
Lord McKenzie of Luton
My Lords, first, I thank the noble Lord for introducing the government amendments. Indeed, I thank the Government for bringing forward the proposals, which build on the debate in the other place. I see that he has taken the opportunity to get his retaliation in first on our amendments. I will speak to Amendments 101A, 101B, 102A and 108B.
When these matters were addressed on Report in another place, the Minister, Andrew Stunell, said that Will Hutton’s report,
“made some clear recommendations, particularly about the benefit of setting decisions on senior pay in the context of the pay of the rest of a body’s work force”—
meaning the median earnings, and I accept that point. He continued:
“We are sympathetic to that idea, particularly the potential for linking lower pay with senior pay”—
so the Minister in the other place focused on low pay as well. He went on to say that he did,
“not think it would be helpful to use the Bill to address the pay of contracting bodies”,
which is consistent with what the noble Lord just said. However, he then went on to state,
“That does not prevent a local authority from developing a local policy to ensure that bodies with which it contracts are open about their rates of pay as a matter of contract”.—[Official Report, Commons, 17/5/11; cols. 210-11.]
Although significant growth in executive pay is largely a private sector phenomenon, we support the thrust of greater transparency. We also support the Government’s approach to tackling this in the manner provided, rather than as in the other two options set out in the impact assessment. As the fair pay report also concludes, evaluating these by benchmarking off the salary of the Prime Minister is a nonsense, particularly if you add in the benefits that the Prime Minister gets, which include a central London flat with access to rather a large garden, not to mention the odd country estate. A more realistic figure of his remuneration might be in excess of £0.5 million a year. However, the report also concludes that putting in limits of fixed multiples of lowest pay would, in a sense, be unfair as well.
Lord True
My Lords, perhaps I can speak briefly to Amendment 105 but before doing so, I pray the indulgence of the Committee if the debate is prolonged, as I have amendments to the Education Bill in Grand Committee. I mean no offence if I have to withdraw at some point. I should also say in preamble that, having seen the news yesterday on the transparency of Transport for London and given the matters we will be considering in Clause 206, I wonder whether “a relevant authority” might include Transport for London within the meaning of these clauses.
I am grateful for my noble friend’s remarks, but my concern is about politically inspired resolutions put to local authorities, particularly in the run-up to elections. I accept that the wording of my amendment may not be correct. I am not someone who has argued for extensive regulation but we have seen, even from such an august person as the Secretary of State, that public comment on the level of senior officers’ pay attracts the attention—often very approving attention—of the press. My fear is that, notwithstanding the niceties of employment law and the effective risk of constructive dismissal, in the approach to an election it would be unbearably tempting for a minority party in a local authority to lay a resolution calling, say, for the reduction of chief officers’ pay by 10, 15 or 20 per cent. Why stop there? “Vote for us and we will cut senior officers’ pay”.
In those circumstances it is politically quite difficult for the governing party in a local authority to resist such a proposal if put as a resolution to a council. Any member of a council can put forward a resolution just as any noble Lord can put forward a proposal here. Clause 23(4) makes it absolutely clear that, including after the beginning of the financial year in which a senior officer’s pay statement has been laid, it is perfectly in order for a local authority to seek to change that pay statement. So while I am not calling more regulation down on the heads of local authorities, I warn my noble friend that there is an extremely high risk in the six months before elections of competitive resolutions being laid to reduce the pay of members in authority, which might have pernicious effects and could, in some cases, be contrary to employment law.
Having asked my noble friend to consider the matter, I am grateful for the consideration he has given so far and I am reassured by some of the things he has said on the point, but I hope that, in considering any guidance, he will take very seriously the points that have been made. It would be a great pity to see a rash of resolutions coming out of local authorities asking the impossible of senior officers, who are in most cases distinguished public servants doing their best for local people.
Lord Beecham
My Lords, I understand the noble Lord’s point, but I have to say that it would be a huge infraction on the responsibilities and rights of elected members of councils to indicate what might go on a council agenda and what might not. That is going much too far. Although I expect members to behave responsibly, if they are irresponsible, it would be the task of those answering such a resolution to make the case. We ought to have the self-confidence to do that, so I do not think, with all respect to the noble Lord, that his amendment should progress.
I seek some assurances from the Minister, to see whether I have understood him correctly, apart from anything else. Later—many, many hours later—we will come to the question of the community infrastructure levy and whether or not it should be a material consideration in determining planning matters. There will, I think, be quite strong views about that. I wonder, having heard the Minister, whether it will be permissible for councils to take into account the factors referred to in my noble friend’s amendment as a material consideration in the awarding of contracts. If I understood him correctly, the noble Lord indicated that that would be permissible, although it should not be prescribed, and I can understand that position. Perhaps he will confirm or disabuse me of that notion.
I also ask the noble Lord whether he has a view on the living wage, which has been espoused—I think before an election but certainly after an election, to revert to the point of the noble Lord, Lord True—by no less a person than the Mayor of London, who has adopted the concept initiated by his predecessor of promoting the living wage. Does he accept that it is right for councils, if they choose, to adopt such a policy in respect of their own authorities and to seek to reflect that in the conditions upon which they let contracts?
Lord Taylor of Holbeach
My Lords, this has been a short but very useful debate on a very important aspect of local government policy. I assure noble Lords that the guidance which will be issued will take note of issues raised in this debate. While we may not agree on all aspects, there appears to be a good deal of consensus that the Government’s approach on senior pay is to be welcomed as, indeed, are the requirements of our amendments for a pay policy statement. I am grateful to the noble Lord for lending his support to that concept.
Our amendments build on that approach and will increase accountability for local decisions about the lowest paid in the local government workforce. I say local decisions deliberately. The Government are quite clear that these decisions on pay and reward must remain ones for local determination. I hope that noble Lords opposite will acknowledge that the Government have fulfilled our commitment to reflect on discussions around low pay in the other place and brought forward appropriate amendments, as, indeed, we do today.
The Government did not undertake at that time to consider measures to increase duties on local authorities with regard to their relationship with bodies with whom they can contract. We believe such proposals would be burdensome. Charities, the voluntary sector and business have called for regulation around contracting to be reduced. There is general consensus that in order to achieve greater participation of the voluntary sector and small businesses in local government contracting, we need to make the process of contracting as simple as possible.
Lord McKenzie of Luton
Before we conclude, I thank the Minister for what he said. We accept that from the Government’s perspective, they have fulfilled the obligation they made in the other place. As I said in speaking to my amendments, I do not think they have fulfilled it as fully as we would have liked, but when can we expect to see the guidance in this area? That would help our deliberations and could potentially preclude a return visit to this matter on Report.
In respect of the contribution by the noble Lord, Lord True, who is no longer in his place—I understand he has to be elsewhere—competitive resolutions are not quite the environment I would have expected. It is certainly not how we conduct politics in Luton, but it raises all sorts of interesting questions, not for debate now, about people addressing those resolutions on a predetermined basis.
Lord Taylor of Holbeach
I understand exactly what the noble Lord is referring to, but I hope it has expedited this debate to the advantage of the Committee. I cannot give an answer on when the guidance will be available. If I am able to get that information, I will write to the noble Lord.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
(b) the remuneration of its lowest-paid employees, and(c) the relationship between—(i) the remuneration of its chief officers, and(ii) the remuneration of its employees who are not chief officers.(2A) The statement must state—
(a) the definition of “lowest-paid employees” adopted by the authority for the purposes of the statement, and(b) the authority’s reasons for adopting that definition.”
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Taylor of Holbeach
“(5A) In this Chapter “remuneration”, in relation to a relevant authority and an employee of its who is not a chief officer, means—
(a) the employee’s salary,(b) any bonuses payable by the authority to the employee,(c) any allowances payable by the authority to the employee,(d) any benefits in kind to which the employee is entitled as a result of the employee’s employment,(e) any increase in or enhancement of the employee’s pension entitlement where the increase or enhancement is as a result of a resolution of the authority, and(f) any amounts payable by the authority to the employee on the employee ceasing to be employed by the authority, other than any amounts that may be payable by virtue of any enactment.(5B) References in this Chapter to the remuneration of an employee who is not a chief officer include—
(a) the remuneration that may be provided to that employee in the future, and(b) the remuneration that is to be provided to employees of the same kind that the authority may employ in the future.”
Lord Beecham
My Lords, I expect your Lordships will be familiar with the provisions of the Local Democracy, Economic Development and Construction Act 2009, and specifically all the requirements laid down in Chapter 1. On the off-chance that all its details do not immediately spring to mind, perhaps I might be forgiven for outlining the relevant chapter.
The duties referred to relate to the promotion of democracy, and the Act sets out a number of issues upon which councils have a duty to promote understanding. They include the democratic arrangements of authorities: that is,
“(a) the functions of the authority;
(b) the democratic arrangements of the authority;
(c) how members of the public can take part in those democratic arrangements and what is involved in taking part”.
The duty also includes:
“a duty to promote understanding of the following among local people—
(a) how to become a member of the principal local authority;
(b) what members of the principal local authority do;
(c) what support is available for members of the principal local authority”.
This is obviously designed to encourage greater participation and greater willingness on the part of people to stand for election and to serve as elected councillors.
In addition, the Act requires councils to promote the understanding of and information about a range of other organisations with which local councils are connected: for example, monitoring boards, courts boards and youth offending teams. The Act also requires councils to promote understanding among local people about the magistracy:
“(a) the functions of a lay justice;
(b) how a member of the public can become a lay justice;
(c) what is involved in being a lay justice”.
These are fairly simple tools with which to promote the involvement of people in local governance—using the term broadly—with both local authorities and, as I have indicated and as the Act makes clear, a range of other local institutions that impinge upon the life of the community and are very often dependent on the voluntary participation of members of that community. They are examples of engagement with society which any Government, including the present one, would presumably wish to encourage very strongly. I therefore do not understand why this Bill seeks to remove that duty. This Bill purports to be about localism and local government, about involving people in the decisions affecting their lives and those of their community, about encouraging wider civic responsibility, so why does this clause remove a basic, not particularly elaborate or expensive, duty to promote exactly that? What is this clause doing in this Bill?
Lord Tope
My Lords, the noble Lord began by suggesting that we might not remember the provisions of the local democracy and everything else Bill. Some of us in this House remember it only too vividly. The noble Lord had the good fortune, if I might say so, not to have been a Member of the House then, but I remind your Lordships that we spent many, many hours on this part of that Bill.
The short answer to the noble Lord’s question as to why my noble friends and I rejoice at this clause is prescription. We spend many hours in this House, including on this Bill, complaining about central government prescribing in detail to local government what it should and should not do, what it can and cannot do, and even more particularly how it should do it. That is what Part 1 of the Local Democracy, Economic Development and Construction Bill did in enormous detail. I am sure my noble friend Lord Greaves will remind us exactly how many pages, words and possibly even letters it took to do this. That Bill started in your Lordships’ House and we spent a long time trying to improve that part of it, arguing that it was not the business of central government to prescribe exactly what local government should do and how they should do these things. Of course we should promote democracy. Of course we should encourage all these things. All good local authorities of whatever political control are already doing that. They have been doing it, in most cases very successfully, for many years and will carry on doing so whether there is an Act of Parliament requiring them to do so or not. So I, for one, rejoice at this clause, and this might be one of the few times I say that during this Committee.
Lord Greaves
My Lords, I underline what my noble friend has just said. I am sorry that the noble Baroness, Lady Andrews, is not here to take part in the discussion today because she was the Minister who had to take this nonsense through the House. She did it with great composure and good manners, although I am not sure what she secretly thought about it. The other Minister involved was the noble Lord, Lord Patel of Bradford, who is here. Perhaps he can tell us whether he is quite as appalled that this duty is going as the noble Lord, Lord Beecham, suggested.
I regret to say that I, too, am extremely familiar with the Local Democracy, Economic Development and Construction Act 2009, particularly this part of it, and it is seriously flawed. As an explanation of local democratic involvement, it completely missed out the voluntary sector, local partnerships and so on, which some of us tried to put in but failed. As my noble friend said, it is extremely prescriptive. If it is localism, it is top-down localism of the kind that we are criticising in this Bill, and it is very pleasant to see that this Bill is getting rid of a bit of that.
The effect that this part of the Act has had since it was passed appears to have been zero in most parts of the country. I am not aware of any authority having done anything significant as a result of this legislation, and in two-tier areas it set up a ridiculous bureaucratic system of exchange of information. Again, I have no idea how many councils have actually been carrying out this duty, but I suspect that a lot of them have just been ignoring the legislation because it was fairly useless. So I, too, rejoice that this duty is going, and I wish that the spirit behind this clause was more prevalent in some other parts of this Bill.
Lord Shutt of Greetland
My Lords, I will not please you all but I thank noble Lords who have taken part in this debate. This clause removes the duty on principal local authorities in England and Wales to provide information to people about how local government systems work. This might include providing information on the role of councillors, councils, relevant public bodies, civic roles and so forth. As has been indicated, it was part of the Local Democracy, Economic Development and Construction Act 2009. My noble friend Lord Greaves has not heard much about it is because the duty has not yet commenced and therefore its repeal will have no significant impact on authorities. We therefore wish to remove it from the statute book as it would constitute, if it were to be enacted, an unnecessary burden on local authorities.
The Government are committed to enhancing local democracy, but they also want to guard against adding costly burdens to local authorities. Many authorities are already doing lots of good work to provide information to people about local government systems without having a duty placed on them to do so.
Lord Beecham
My Lords, I entirely agree with noble Lords who reject the notion of overprescription in this or any other part of the Bill. However, removing a duty to promote democracy altogether sends an unfortunate signal. I note that the noble Lord, Lord Greaves, seemed to admit that he wanted to add to prescription when the Bill was originally debated because he wanted to include bodies to which reference is not made, which is a slight inconsistency.
Lord Greaves
In my defence, I should say that there are two lines of attack for Governments, although I should not use that phrase at the moment. The first is that the whole thing should not exist. The second is that if it does exist, we should try to improve it, which is our view on a lot of this Bill. If this was such a wonderful thing, why did the previous Government spend two years after the Bill was enacted not commencing this part?
Lord Beecham
The noble Lord will be aware that, no doubt for good reasons, I was not a member of the previous Labour Government and I cannot answer for them. They did not do everything that we would have wished in local government. Perhaps this matter did not achieve the priority that some of us would have liked. In replying, the Minister is right to point out possible costs of the detailed guidance that his civil servants are so ready to produce. Of course, that does not mean that that degree of prescription is unnecessarily desirable and that the costs will necessarily have been incurred.
If we want to encourage participation in local government and voter turnout, the people standing for election or seeking to serve their community as magistrates need encouragement and information. The community as a whole needs to be informed about what its local authority can and cannot do, and how it might be influenced. Much of the Bill is about those processes going on in different ways at different levels. The duty would have reinforced the thrust of the Bill. With respect, I still do not see why it is being removed.
I note that the noble Lord, Lord Shipley, is not in his place. Perhaps his two colleagues have taken him to one side because he subscribed to my amendment.
Lord Beecham
Indeed, but had he been here, I assume he would have supported the amendment to which he has ascribed his name, and with his long experience of local government—including as leader of the council in which we both serve—I would have thought that might carry some weight with his colleagues, but apparently not.
However, I hope it will be recognised that all of us have a responsibility in public and political life to encourage greater participation. If we are not going to do it under the auspices of a duty, let us at least in our various capacities endeavour to do it more broadly, because local democracy needs that kind of support.
The Bill proposes a different method, which I consider to be less satisfactory and which I believe the noble Lords may also consider unsatisfactory, which is the system of local referendums. We will debate it later today, no doubt. This is a much more elaborate system in a different context, because in that case one is seeking the opinion of a community on a simple proposition, subject to a referendum with little authority, given that there will hardly be a significant threshold to call a referendum, let alone in respect of turnout. This is a much more elaborate and expensive way of doing things than dealing with petitions properly and encouraging them to come forward.
Again, I do not understand why the Government feel it necessary to remove these provisions, accepting, again, that the prescriptive element is otiose and could be dispensed with. Petitions are a better way for the public to draw attention to matters with which they are concerned, and for the public to get a response to those concerns in a reasonably structured way. It is true that in some councils there is a process for public petitions—certainly, in my council there is, and no doubt others as well—but it is not universal, and it is not something which is sufficiently developed. In terms of local accountability and transparency, petitioning is a good method, and preferable to the alternative which is enshrined in the Bill. I ask the Government to reconsider this clause. Even if local referendums remain, which will be debated later, and perhaps a view taken on report, it is not mutually exclusive, and the petitioning process could be left as it now stands in the Bill.
Lord Tope
My Lords, I do not want to disappoint the noble Lord, Lord Beecham, and I will not do so. Once again, I rejoice at this clause and very much wish it to stand part of the Bill, unlike my noble friend, Lord Shipley, and the noble Lord, Lord Beecham. We spent many hours—I have a recollection that it was probably many days—on this part of the Bill. We discussed pages and pages in extraordinary detail, debating how to collect, submit, and process petitions. When the Bill started in your Lordships’ House, the debate seemed to be based entirely on the premise that a petition to a local council was of the same format and standing as a petition to Parliament. In fact, all of us who have been councillors will have seen petitions to councils, and know that they are not usually the most formal documents you are likely to come across. They are of their nature at their best, because they are collected by and within the local community and do not have any formal standing or, often, any formal wording, as was originally suggested in the Bill.
We asked for evidence during all of this that local authorities were not dealing properly with petitions. I find it hard to believe that there can be a local authority of any size in the country that does not receive petitions. I wanted evidence that they were not dealing with them properly. The one merit of our hours of debate was that we discovered that quite a lot of local authorities, including the local authority of the then Secretary of State, did not adequately describe their procedure for dealing with petitions on their websites. The fault was not so much with the procedures of the council as with the adequacy of their websites. My own authority, and I am sure many others, improved their websites considerably as a result. That was a useful outcome, but it justified neither the hours that we spent on it nor the fact that it was all laid down in such prescriptive detail in a Bill.
The other useful factor of the debate was that it addressed the rather more modern issue of e-petitions, to which some local authorities probably had not then given sufficient attention. As a result of the Bill, and subsequently the Act, some authorities, including my own, probably gave them more consideration and put them on their websites.
We do not need an Act of Parliament to do that; we do not need pages and pages of prescription to do that; it is quite simply good practice, which could, possibly was and certainly should have been disseminated by the Local Government Association, in which the noble Lord, Lord Beecham, played such a leading part. I shall not disappoint the noble Lord: I once again rejoice at this clause.
Lord Greaves
My Lords, I cannot resist adding just a little bit to what has been said. I went back to the Local Democracy, Economic Development and Construction Act when I saw Clause 29 stand part on the Marshalled List. There are in it 10 pages of detailed, prescriptive instructions to local authorities about how to receive petitions. Our discussions on that part of the Bill were extremely long, and I hold my hands up and say I was largely responsible for that. I remember my noble friend Lord Tope, having arrived back from one of his European trips, coming into the Moses Room, where we were discussing the Bill in Committee, and saying, “Good heavens! You’re not still on petitions, are you?”. But we were. I again pay tribute to the two then Ministers, including the noble Lord, Lord Patel, who is in his place, for making some effort to improve that part of the Bill. I think that it was 14 or 15 pages when it started off, and we at least got it down to 10.
My view is that very few authorities have taken petitions through this system, and that most petitions to local authorities since the legislation came into operation have continued to be dealt with as they always have been. I do not think that my own council has had a single one. We have had one or two that appeared to qualify. In those cases, we have suggested that the petitioners do what everybody else does and just go along to the area committee, talk to the petition in the normal way, and get it dealt with within days rather than the weeks and weeks of bureaucratic procedure set out in that part of the Bill. So I, too, rejoice that this nonsense has gone. I agree entirely with the noble Lord, Lord Beecham, that we are getting a bigger and more dangerous nonsense, which we will discuss later on today.
Lord Shutt of Greetland
My Lords, I am delighted to respond once more to further rejoicing. I thank the noble Lords for their contributions.
At present, local authorities are required to make, publish and comply with a scheme for the handling of petitions made to the authority. It must include centrally prescribed information, and the scheme and any subsequent changes to it must be approved by a meeting of the full council. Local authorities are also required to provide a facility for making electronic petitions to the authority.
The current legislation means that local authorities must respond to a petition in a certain way and must hold a full council debate if it is signed by the number of people specified in the council’s petition scheme. Senior officers can also be called to account and are required to take part in a public meeting if a petition meets a signature threshold. Petitioners can request that the council’s overview and scrutiny committee reviews the council’s response to the petition if it feels it is not adequate. The prescription and cumbersome bureaucracy this has piled on local authorities is unjustifiable. I am not aware of any evidence that the service received by local people has improved, yet unlike the previous matter it has already resulted in a burden of £4.2 million across the sector, as well as money spent on set-up costs.
Lord Beecham
I thank the Minister for this reply. His council’s example is one that many councils follow and would have followed without the legislation and if the legislation goes will continue to follow it. However, that does not necessarily mean that all councils will do that. This ought to be the general practice. The Minister referred to consideration at a meeting or referral to an overview and scrutiny committee. These are examples of good practice which ought to be universal not optional. Again, taking the point about overprescription in terms of the details of how things are to done, I am sorry that the principle of a universal approach to enhancing local democracy, which the Minister and his noble friends will undoubtedly endorse, will suffer as a result of the removal of this duty. It is of a piece with the inconsistent approach that the Government are adopting in this Bill which, as the noble Lord, Lord Greaves, has confirmed, we will be discussing later and in a form which is certainly worse than the worst allegations that could be made about the section which the Government propose to amend and delete from the 2009 Act.
Lord Beecham
My Lords, this is a different matter. We are now on to a substantive issue which the Government seek to introduce into the law of the land and to bind into the practice of local authorities.
I understand that John Major as Prime Minister was a great devotee of the novels of Trollope, regularly reading them, and I think his predecessor Harold Macmillan was much the same. I am wondering whether the present Secretary of State, Mr Pickles, has become a devotee of Dickens. He seems to be metamorphosing into a fusion of Dickens’ characters—a combination of Wackford Squeers, Mr Bumble and Gradgrind, leavened by a dash of Mr Pickwick. However, he is now developing, and has for some time developed, an obsession with waste and refuse collection. This seems to add Boffin, the golden dustman, to the cast list of Dickens’ characters which he is absorbing into his persona. I have never understood the Secretary of State's obsession with this issue. He has, to put it mildly, irritated local politicians of all parties, including the then chairman of the relevant board of the Local Government Association, Paul Bettison—a leading member of the Conservative Party and a leading figure in Conservative local government circles—by suggesting that charge and waste reduction schemes should not be implemented. He has, of course, opined many times about the number of refuse collections that should take place nationally.
First, this obsession seems inappropriate in any event for a Secretary of State. Secondly, one has to ask: what is a specific provision on a particular service doing in a Bill about localism? The Bill makes considerable play of giving councils a power of general competence and talks about the role of local government generally and of local communities, while Ministers frequently refer to the need to avoid prescription—we have heard that more than once this afternoon already. What could be more prescriptive than banning local authorities from a proposal to deal with waste problems, especially since the prescription that the Secretary of State would apply takes no notice of differences in localities or the implications for environmental issues such as recycling?
It is not as if the proposals about charging schemes were prescribed in their turn or as if councils had to embark on such policies. That would have been equally wrong because, again, different circumstances apply to different places. Even within an individual authority, there are areas where particular schemes would be appropriate and others where they are clearly not. It is obviously a matter for local decision but this Secretary of State, in his obsessive regard to this topic, seems to be intent on ruling out something that not many authorities have actually chosen to do. That is their choice. I do not think that many have gone in for those schemes so, again, the question has to be asked: why is this being inserted into the Bill? If it is to be a matter of political debate, should it not be debated rather than prescribed?
Noble Lords opposite have rejoiced at the abolition of prescription in the two areas which we have debated so far this afternoon. I hope they will join me in rejecting this considerable area of prescription that the Secretary of State wishes to impose on local government with absolutely no warrant at all, on the basis of evidence or of the public good.
Lord Greaves
My Lords, the noble Lord is persuasive in his arguments by suggesting that what is happening here is that the Government are removing the freedoms of local authorities, but it is not quite like that. The freedoms that he is talking about are very prescriptive and if he reads the particular part of the Climate Change Act, he will discover that. These waste reduction schemes are all nonsense, really. I keep using that word but I remember that this is another part of a Bill where I made a nuisance of myself in your Lordships’ House by detaining the House for probably too long while it was being debated and discussed.
The Bill refers to schemes relating to the amount of waste, the size and type of the containers and the frequency of collections. There was what was colloquially known at the time as the chip-in-bin scheme, where a chip in a bin would in some magic way measure the amount of waste being provided. There was the big bin and little bin scheme, where if you had a little bin you were okay and got it for free, but if you had a big bin you had to pay more for it, which affected large families. There was the pound-a-sack scheme, where you had to go and buy approved sacks for a pound each and fill them up—a scheme which was reported to have worked extremely well in Maastricht, but probably nowhere else. There was also a frequency of collection scheme, where you had a weekly collection, but if you wanted it more frequently you had to pay—the pay per day scheme. So these four schemes took on an iconic quality as far as the last Government were concerned, but they have never been brought into effect because they are not the way to go about it.
Rather unusually, what the Secretary of State is doing is championing a waste collection service that is a universal free service. That is what he is championing and I thought the Labour Party used to believe in such things. But not now, it wants the chips-in-bins and the pound-per-sacks schemes and all the rest of it. I am delighted to see this go. I wish we had been able to persuade the last Government that we should not have wasted all that time on legislation that was never introduced.
Lord Shutt of Greetland
My Lords, Clause 30 removes powers that enable local authorities to run pilot waste reduction schemes. We announced our intention to remove these powers in June 2010. We believe that rewards rather than penalties are the best way to encourage people to reduce the amount of waste they produce. We wish to see local authorities helping householders to do the right thing with their waste, rather than punishing them for doing the wrong thing. We also consider that schemes which include fines based on the weight of residual waste left out by householders are likely to result in fly-tipping and other anti-social behaviour.
This Government are clear that rewarding householders for recycling or for reducing waste is to be encouraged; we want to help them to do the right thing. Removing these powers in the Climate Change Act will free up local authorities to use their broader well-being powers or general powers of competence, as appropriate, to provide rewards for waste reduction. Since their introduction there has been little appetite for using the Climate Change Act powers. No local authority has yet applied to take up a charge-and-reward scheme and no schemes will be dismantled as a result of their removal.
This clause simply removes Sections 71 to 75 of Part 5 and Schedule 5 from the Climate Change Act 2008. This will remove the provisions for waste reduction schemes but have no wider effect on the powers of, or burdens upon, local authorities. It is interesting that Royal Assent was on 26 November 2008, two and a half years ago, and no one has sought to bring this in. I therefore beg to move that these clauses stand part of the Bill.
Lord Beecham
My Lords, this is another case of local authorities having the power to do anything they like except what the Secretary of State decides they should not do. It is on a simple point of principle that this amendment is moved. I regret very much that the Minister and his noble friends do not seem to grasp the inconsistency inherent in their position, but so be it.
Higher Education White Paper
(12 years, 10 months ago)
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The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)
My Lords, I beg leave to repeat a Statement being made in another place by my right honourable friend Mr David Willetts.
“With permission, I would like to make a statement on the higher education White Paper. It sets out how our reforms will build on the changes to student support announced last year. We will put higher education back on to a sustainable financial footing. We will put students at the heart of the system, improving the academic experience, with universities and colleges more accountable to their students than ever before. We will also take steps to improve social mobility without compromising academic excellence or institutional autonomy.
We inherited an enormous deficit which required difficult decisions. We could have reduced student numbers, or spending per student, or provided less help with living costs. However, these options would have been unfair to students, to universities and to the country. Instead we are introducing a pay-as-you-earn system that provides more support for students, does not require reductions in student numbers and increases the cash flowing into higher education. We estimate there could be a cash increase in funding for higher education of around 10 per cent by 2014-15. Our reforms ensure that no first-time undergraduate will have to pay fees up front and asks them to contribute to the cost of their education only once they earn more than £21,000.
This increase in the repayment threshold—up from £15,000 under the current system—means that graduates will benefit from smaller monthly repayments than under the current system. For example, someone earning £20,000, the median starting salary for graduates, repays £38 a month under the system we inherited from the previous Government. In future they will pay nothing. At the moment, a graduate earning £36,000, the median salary for all graduates, pays £158 a month. Under our scheme, that falls to £113 a month. Our reforms also recognise that for many people higher education does not mean a full-time, residential degree. Some students want to work or take care of their family while studying. To support them, many part-time students and distance learners will become entitled to loans to cover their full tuition costs for the first time.
I can announce today that my right honourable friend the Secretary of State for Health and I have agreed that, for undergraduate medical and dentistry students starting their course in autumn 2012, the NHS bursary will be increased in years 5 and 6 to cover the full costs of tuition. For graduate entrants starting in autumn 2012, access to student loans will be made available so that there are no additional up-front tuition costs. We will consider arrangements for subsequent years. More information is being placed in the Libraries of both Houses.
These changes to higher education funding enable us to put financial power in the hands of learners. To make that effective we need to liberalise the system of quotas we inherited from the previous Government so that more students can go to universities that offer a good-quality, good-value student experience. The White Paper therefore proposes unconstrained recruitment of the roughly 65,000 high-achieving students who score the equivalent of AAB grades or above at A-level. Quotas for these students will be abolished and funding will go to whichever university offers them a place they accept. In addition, we will create a flexible margin of about 20,000 places to reward universities and colleges that combine good quality with value for money and with average tuition charge, after waivers, at or below £7,500 per year. This adds up to around 85,000 student places—roughly one in four places for new entrants—contestable between institutions in 2012-13. We aim to expand this further year after year.
We will also extend the scope for employers and charities to offer sponsorship for extra places, provided they do not create a cost liability for government and provided, of course, there is fair access for all applicants, regardless of ability to pay, and no sacrifice of academic standards.
These reforms put students in the driving seat. Putting this power to best effect means not just liberalising the quotas regime; prospective students also need to know far more about the academic experience on offer. We will therefore transform the information available to them about individual courses at individual institutions. Each institution will make available key items of information such as contact hours and job prospects. Information will also be available to outside bodies such as Which? to produce their own comparisons. It will lead universities to match their excellence in research with a high-quality academic experience.
We also want our universities to work with business to improve the job prospects of their graduates by providing the knowledge and skills that employers value. The sandwich course, which gives students practical experience of work, declined under the previous Labour Government. We want to reverse that. We have therefore asked Professor Sir Tim Wilson, who made the University of Hertfordshire one of our most business-friendly universities, to review how we can make England the best place in the world for university-industry collaboration. We want our universities to work with business across their teaching and research activities to promote better teaching, employer sponsorship, innovation and enterprise.
Student choice is more real if, as well as liberalising quotas and transforming information, there is a greater diversity of institutions to choose from. We will therefore remove the barriers to more provision from the Open University, further education colleges and private providers. We will simplify the regime for obtaining degree-awarding powers. We will also review the artificial barriers to smaller higher education institutions taking the title “University”.
We want students from a wide range of backgrounds to benefit from these reforms. We are increasing maintenance grants and loans for nearly all students. We are introducing a national scholarship programme and we will strengthen the Office for Fair Access to make sure institutions fulfil their outreach and retention obligations for people from disadvantaged groups. This will not be at the expense of institutional autonomy. The Director of Fair Access will continue to have a duty to protect academic freedom, including an institution’s right to decide who to admit and on what basis.
In order for universities and academics to focus on educating their students, we will strip back the burden of excessive regulation and form filling. We will explore whether it is possible to reduce costs associated with corporation tax returns. HMRC has today announced its consultation on the possibility of introducing a relief to remove some of the VAT barriers which currently deter institutions from sharing costs. We will reduce burdens from information collection. We will give power to students to trigger quality reviews where there are grounds for concern, yet cut back the burden of automatic review for high-performing institutions. The Higher Education Funding Council for England will be the lead regulator, taking on a new role as consumer champion for students and promoter of a competitive system.
We are now inviting people to comment on our proposals as part of a broad consultation. Subject to parliamentary time, this will be followed by a higher education Bill next year, to make the necessary legislative changes to deliver these reforms. This White Paper offers universities the prospect of more funding provided that they attract students. At the same time it saves money for the Exchequer by asking graduates to pay back more as their earnings increase.
Our universities already transform people’s life chances, and we expect them to do even more. We will protect their autonomy and reduce the regulatory burdens they face. Above all our proposals benefit students by driving universities to focus on the student experience. They will have real choice, with better information and a wider range of institutions to choose from. I commend this White Paper to the House”.
My Lords, that concludes the Statement.
Lord Stevenson of Balmacara
My Lords, I thank the Minister for repeating the Statement on higher education made earlier today in another place. This White Paper is the third policy initiative in higher education in recent months, but instead of bringing forward policies to enhance and extend a higher education system which is the envy of the world, the White Paper is nothing more than a hastily put-together rescue package for the department, sheltering behind some vacuous notions of competition and quality.
The truth is that, having taken the disastrous decisions to cut teaching budgets, to cut funds for investing in research, to cut science funding by 10 per cent in real terms over the CSR period, to curtail overseas student visas and to open the way to make university three times more expensive for students than it is at present, the Government have created a funding hole in the higher education budget estimated to be at least £600 million and perhaps as much as £1 billion.
We do not believe that the measures outlined today will put higher education back on a sustainable financial footing. It is surely just wishful thinking to assert that privatising higher education and switching to a higher education voucher system—one of only four in the world—will ensure that student demand is satisfied, that teaching and learning quality is maintained or improved and that research activity is preserved.
The simple truth is that this White Paper has one limited aim, which is to drive down the cost to the public purse of running our higher education system. The direct effect will be to reduce the unit of resource for teaching and hence reduce quality and further reduce the flow of good, qualified graduates into the workplace at the very time we need them most.
In the Statement the Minister mentioned that the Government wanted to take steps to improve social mobility, but the only mechanism mentioned is the plan to strengthen the Office for Fair Access. On demand, the White Paper says that the Government adhere to the Robbins principle, but it is “Subject to expenditure constraints”. I really do not think the Government can have it both ways. Either all students with the aptitude who wish to enter higher education may do so, or they may not. Can the Minister confirm that the Robbins principle is now defunct?
On social inclusion, children within the wealthier sections of society are three times more likely to go to university. Very few pupils on free school meals get three As so they are effectively excluded from applying for the selective universities. How exactly will the proposals in the White Paper boost the number of those from disadvantaged backgrounds going to university, when this is a requirement on institutions, not on HEFCE? There are also regional differences. For example, pupils in north-east schools are far less likely to go to university than those living in the south-east. Can the Minister point to measures that will redress this imbalance?
I turn to some of the more detailed comments. As the Minister said, universities will be able to expand the number of students they take who have AAB grades or better. It is well known that 50 per cent of those who get AAB grades or better are actually from private schools or grammar schools. In practice, virtually all students with AAB grades on entry can already get a university place. This proposal therefore ignores the many equally talented would-be students who do not go down the traditional A-level route, and ignores those from disadvantaged backgrounds. I am advised that the Institute of Physics has already warned that this measure may deter study of the sciences or maths at A-level. Is this a fair outcome?
The Government are going to cut student places at most universities. The places will be put into a central pot from which universities will have to bid for any extra places they want to offer. On what criteria can these bids be judged, other than by their value or cheapness? Of course, in future years, the Government can put more and more places into the central pot, depending on budgetary pressures at that time. It may be worth pointing out that this approach was tried in the early 1990s and resulted in a near-catastrophic reduction in funding per student. We fear that that might be the case this time around.
The proposal to offer loans to students attending private universities shows that the Government have no real concern for the health of the public universities, which are an integral part of the nation’s infrastructure in a way that private institutions are not. There is surely a lesson to be learnt here from the United States, where private universities got rich at the expense of the Government, despite a shocking record on student achievement and employability.
The Government’s higher education plans are unfair, unnecessary and unsustainable. The proposals in the White Paper are a direct response to the black hole in the Government’s higher education budget that was caused by their earlier policy decisions. To encourage economic growth, most of Britain’s competitors are increasing funding for their higher education and research budgets. The Government’s proposal will mean that English universities will have among the highest fees of any public university system in the industrialised world, while being among the worst in terms of public funding. At heart, this White Paper is about depressing demand for higher education and about putting unreasonable competitive pressures on many of our most-admired public institutions. It is already clear that a whole generation of students may suffer because of the Government’s miscalculations and their need to find ways to restrict access to the higher education that people want.
Lord Henley
My Lords, that address by the noble Lord on behalf of the Opposition was rather extraordinary. He started off by making allegations that this White Paper was allegedly “hastily put together”—I think that those were his words. I can assure him that it took a considerable amount of time, and haste certainly did not come into it. As the noble Lord will know, we were hoping to get this out somewhat earlier but, in our desire to get these things right, it was delayed until this day. That is often the way with these things.
The noble Lord then made allegations of cuts to higher education. Yes, we have had to cut the amount of money from the public purse going to higher education. We have had to make reductions in a large number of other departments, but again, as my noble friends and my right honourable friends in another place have done on many occasions, I have to remind opposition Members: whose fault is that? We inherited a deficit of quite stupendous proportions and we had to address that before we could even begin to start—we had to tackle the debt. We therefore had to find some sustainable way of funding higher education, which is a public good, and we have come up with a scheme that in effect, as was made clear in the Statement, will by 2015 increase by some 10 per cent the amount of money available to higher education.
That must be a good thing, but we have to ask the serious question as to who should be paying for higher education as a whole. I got the impression—and I should be very interested to hear from the noble Lord or one of his noble friends whether this is the case—that it is now the policy of the party opposite that all the funding should come from the taxpayer and none from those who benefit from it. Under the scheme that we are proposing, a great deal of money will come from the students who benefit from the higher education they receive. However, in addition—because in the end we will get back only a certain amount of the money—a great deal is coming from the public purse. There is a balance between the public benefit we get and the private benefit that the individual students get. I was rather surprised by the tone of the noble Lord’s response, which seemed to suggest that all funding should come from the taxpayer. That was how I understood it and I imagine how it was supposed to be understood by most people listening to it. The noble Lord’s party did not do that when it was in government and I would be interested to know whether that policy has changed.
The noble Lord then asked a number of detailed questions. I will look at those in due course but I will comment on one or two of them. He pointed out regional differences in terms of access to universities. That is unfortunate. We have to look at the schools. Again I am grateful for everything that my right honourable friend Mr Michael Gove is doing in the Department for Education to improve education. It is by improving education before students get to universities that we will improve access to the universities. It is not by magically saying, “You must take in X, Y or Z, however badly educated they have been”. We must get it right at an earlier level, and that is exactly what my right honourable friend is addressing in the various reforms that he is bringing to education.
The noble Lord then talked about plans to allow universities to attract more of the AABs or equivalent. I think he slightly misunderstood what was set out in the Statement. We know that most people who achieve AAB or above, or the equivalent, will go to university, but we want the universities to be able to compete as to how many they can get. There should be no artificial cap on the numbers, and that is what the White Paper sets out.
I was rather saddened by the noble Lord’s attack on the private sector within education, which includes principally the private universities but also other institutions offering degrees. They offer a valuable service and we should not back away from that. We should continue to support them and I am very glad that my right honourable friend has found a means of doing that.
Lastly, the noble Lord alleged that the whole scheme was designed to depress demand for access to higher education. That is not the case. The Government are still committed to encouraging as many people as possible to go to university within the current restraints on the public purse—and we know whose fault that is. The noble Lord will know that things have changed a great deal over the years since he and I were at university, when about one in eight of us went to university. If we go back to our parents’ generation, the proportion was probably about 2 per cent—of course, it depends on the age of your parents. Now the percentage is in the high 40s. We believe that is a good thing, but obviously it does change the way one has to think about how university should be paid for.
There are other, more detailed points that the noble Lord put to me. I will look at precisely what he said later and, if necessary, write to him.
Baroness Sharp of Guildford
My Lords, I thank my noble friend for repeating the Statement, which has been extremely useful. It clears up a degree of uncertainty that there has been around universities for a very long time. As the noble Lord said, it has taken a long time for the White Paper to come to us, rather than a short time. I also welcome a number of other aspects of it. The opening up of the university system and the creation of a far greater diversity of routes for higher education are thoroughly good things for this country. As many noble Lords around the House will know, I have for a long time advocated the facilitation of the part-time route so that those who want to earn and learn can do so and have access to support equivalent to that for full-time undergraduates. That is extremely important. The Minister will know that one or two minor issues arise here and I will raise them with him in due course. However, on the whole I think that this is a thoroughly worthwhile development. I also welcome the reintroduction of sandwich courses.
Can the Minister provide clarification about the AAB issue, which the noble Lord, Lord Stevenson, raised? At the moment, as I recall, we provide somewhere in the region of 350,000 undergraduate places every year. As I understand it, 65,000 of those places are going to be put into a pot to be bid for by any university, according to what students want to do, and a university will then be allowed to exceed its quota if an AAB student wants to attend. The other 20,000 places are for institutions that charge less than £7,500 per year. This is not creating new places; they are existing places. In effect, as I said, 65,000 places are being taken out of the pot at one end and 20,000 at the other end. I worry about that slightly. The noble Lord is quite right that the problem is that our secondary schools perhaps do not produce enough AAB students. However, there is a real problem here. There was an experiment by King’s College in which medical students worked with local secondary schools in south-east London, bringing forward pupils who were not achieving at that level. However, by the time those pupils had been through the degree course, they achieved just as highly as the others, which shows what potential there is. Universities need to have flexibility in that sense. There is a danger that we shall expand the universities taking the top-achieving students, thus depriving some of the lower-achieving students. I confess that that worries me.
Finally, the noble Lord, Lord Stevenson, referred to the cost. As the White Paper says, the Government reckon that by 2014-15 the scheme is going to cost more. As the Minister will know, the cost of loans is going to be very considerable, and it looks as though the Government may well end up spending more on the loan scheme than they are putting in at the moment in direct grants.
Lord Henley
My Lords, I am very grateful for the comments of my noble friend Lady Sharp, particularly regarding the fact that the White Paper has cleared up uncertainty, and for her emphasis that we—or, rather, my honourable friends in another place and in BIS—have taken time over it. I am also grateful for what she said about the need for diversity in higher education. We should always remember that higher education is not just hallowed colleges in Oxford or Cambridge but a whole range of different things. I was grateful that she mentioned part-time students at the Open University and matters of that sort. I think that something like a third of all students are part time, although I shall have to check that figure. I was trying to find it in my briefing pack but could not. I was also grateful for what she said about the fact that we want to put more emphasis on sandwich courses. We will certainly look to see what Sir Tim has to say about that.
On the AAB cohort which we were talking about and which I mentioned in the Statement, the figure that I have is of the order of 300,000 students coming in each year, not 350,000, but we will not quibble about 50,000.
Lord Henley
Well, we will try not to quibble about 50,000 but I can see the odd accountant sitting opposite me. Of those, 65,000 are AAB students. We are not creating new places for them but we are allowing the HE institutions to compete for them. Therefore, the University of X might want to expand certain courses by bringing in more of those students, but that would mean, by definition, that the University of Y might lose out. However, we think that it is necessary to bring in that element of competition. The 20,000 places that I added to that are not for AAB students but for those where universities offer value for money with their courses coming in on average, after waivers and so on, at or below £7,500. Again, it will be open to universities to compete for those places. It is not a question of creating new places at this stage. However, if matters were to become more contestable, we would certainly want to look at that in the future, and, as I made clear in the Statement, we aim to expand the scheme further year after year.
I noted what my noble friend said about the cost of loans. Obviously loans are expensive but they would be considerably more expensive if they were not arranged by the Government. The Government can, after all, borrow at considerably cheaper rates than individuals.
Lord Wills
My Lords, I am grateful to the Minister for repeating the Statement made in the other place. He will be aware of widespread concerns about the damage that these reforms pose to the position of the humanities in higher education. I wonder whether he shares those concerns and if so, what he will do about them. If he does not share those concerns, why not?
Lord Henley
I simply do not accept those concerns, as was made clear in the debate we had some six months ago when we debated the original announcement about student loans. It will be up to the universities to attract the right students. Those students will bring the money with them that will pay for the courses.
Lord Krebs
My Lords, I thank the Minister for introducing the Statement. It will obviously take time to absorb the details. I declare an interest as the principal of Jesus College, Oxford, and say that from the perspective of those of us in the higher education sector the Government’s approach seems slightly schizophrenic. On the one hand we hear about creating a market, liberalising the university sector and deregulating, but on the other hand we hear of increasing constraints imposed on us in reporting, access and the level of fee that we can charge. As I said, there is a slightly schizophrenic approach.
I have a particular question to ask the Minister. If, as he has indicated, the aim is to place the student in the driving seat to create a market where student choice and wishes determine the outcome, that leaves open the question of where the university sector will end up. We know from the report from the Royal Society a couple of years ago that this country suffers from a serious shortage of students educated in engineering, the natural sciences and mathematics. Do the Government have a view on what proportion of students should study STEM subjects? If so, why are they leaving it to the market and student choice? Students may well choose to study subjects that do not require such a rigorous entry as mathematics, physics, chemistry and engineering, and universities may well choose to teach subjects that are cheaper to lay on. Do the Government have any view about the provision for STEM graduates, or is that simply a matter for the market?
Lord Henley
I accept what the noble Lord, Lord Krebs, said, and obviously much in this White Paper needs to be discussed. After all, it offers up the idea of consultation on a number of subjects, which is a matter that we will take on board. He then suggested that we had a slightly schizophrenic approach. I remember being castigated on many occasions by my late noble kinsman Lord Russell on the question of academic freedom and attacks that the previous Conservative Government were allegedly making on institutions. We are very anxious, as we make clear in the Statement, to preserve academic freedom and to leave the decision-making to universities. Obviously, when public money is involved—and considerable amounts are involved—it is right that we should make our views known.
The noble Lord then talked about the STEM subjects. He gave an example of the shortage of engineers and asked what our approach should be. We have to be very wary of government setting down specific targets for this or that number of engineers. The noble Lord will remember that the former Soviet Union produced a very large number of engineers, no doubt at the sort of central direction that some noble Lords opposite might like—but look where it got them. I seem to remember the expression, “Upper Volta with rockets”. That is not a route that we would want to go down. What we are setting out is probably a better approach.
The Lord Bishop of Wakefield
My Lords, I, too, thank the Minister for his Statement and for the further thinking that the Government are clearly doing following the earlier Statements and papers on higher education. Perhaps I should begin my question analogically. In honour of the millennium, I was offered finance to pay for a stained glass window in the cathedral over which I then presided. Alarmed that I had already commissioned an artist, the donor asked me whether I had gone for three competitive quotes for the window as he had done in the previous year when he was repairing his garage roof—in other words, economics came before creativity. Value for money in higher education is obviously crucial, but can the Minister assure us that the pursuit of enterprise, competition and, indeed, a focus on business will not lead to utility triumphing over a liberal education, removing breadth of curriculum and marginalising not only the arts and humanities but other less obviously utilitarian disciplines?
Lord Henley
My Lords, in the debate before this Statement, the noble Lord opposite castigated my right honourable friend Mr Pickles as a Gradgrind figure. We obviously want to be wary of aiming just for value for money, but we have to be very careful to make sure that public money is spent appropriately. I do not think, bearing in mind what I said about preserving academic freedom and the ability of higher education institutions to decide for themselves how to do things, that the approach we are setting out does that in any way at all. We want to make sure that any public money is spent appropriately.
Lord Lucas
Does my noble friend agree that the practice of cross-subsidisation must now end? It may have been acceptable, when it was just government money, to take £5,000 from the money provided for a humanities course and give it to a student doing an engineering course. Now, when we are asking a humanities graduate to pay £9,000, it is surely totally unacceptable to take half that money and spend it on an engineering student.
Lord Henley
Again, I want to leave this as a matter for the higher education institutions themselves. It is up to them; they do not have to charge the same amount for each student if those students are doing different courses. If students are doing a humanities subject, there is no reason why the institutions should not charge less than for other, more expensive subjects. It must be a matter for them.
Lord Young of Norwood Green
I, too, thank the Minister for repeating the Statement. I will respond to a couple of points that he made in reply to my noble friend Lord Stevenson. We do not deny the deficit; our counteraccusation to Her Majesty’s Government is that they are dealing with the deficit too far, too fast. Of course, we have not retreated to the position that all funding should come from taxpayers; we recognise the challenge of expanding higher education—indeed, we introduced student fees. This is about the level of them. I share the welcome given by the noble Baroness, Lady Sharp, to support for part-time students, and I hope that we will see an expansion of sandwich courses—and that response from business.
In the beginning, when the Government responded to the Browne report and put the figure of £9,000, there was a lot of confidence that not all universities would rise to that figure. Yet currently more than 80 per cent of universities have indicated their intention to charge £9,000. I was interested in the response to the previous speaker that there might be a variation, but the current public position is charging £9,000. Will that be a deterrent to potential graduates when they see the potential size of their loan increasing so much—figures of £40,000 are not exaggerated? I know the response will be that there is no upfront payment. Nevertheless, people will see a loan that eventually has to be repaid.
Lord Henley
I am very grateful for the noble Lord’s admission on behalf of his party that it does not deny the deficit. I am also grateful that he has recognised that funding must come from the beneficiaries of education as well as from the taxpayer—from both sides.
The noble Lord turned to the Browne report which, as noble Lords will remember, did not recommend a maximum. However, we felt that it was probably right to fix it at £9,000, particularly as the noble Lord, Lord Browne, suggested that he did not see why universities could not provide a good education for a figure of, I think he said, round about £8,000. The noble Lord, Lord Young, says that the reports are that virtually all institutions are going for the maximum of £9,000. We will not know the final figure until it has all been confirmed next month, but I can assure him that although a lot of them are going for £9,000, that does not mean that everything in that university, that institution, will be £9,000. There might be different rates for different courses and, as the noble Lord knows, there are a number of waivers, and they will be offering bursaries and other things that will help to bring the cost down, particularly for some of the less well off.
The noble Lord also asked the very valid question: are we worried that the perceived level of debt might put off a number of individuals because they see themselves ending up with a debt of £27,000-plus? That is a genuine fear and we must address it. That is why only last week my right honourable friends Vince Cable and David Willetts sent a letter setting out what we are doing to get information across. They have set up a new independent task force on student finance information, headed by Martin Lewis and Wes Streeting, a former president of the National Union of Students, to try to get the information over that it should not be looked at as a debt but, in effect, as a sort of graduate tax, except that it is not a graduate tax; you start paying only when you start earning above a certain amount and you pay at quite a low rate over a long period of time. It is not the burden that people have when taking on other forms of debt.
Lord Butler of Brockwell
If I heard the Minister aright, he said that the purpose of strengthening the role of OFFA would be to ensure that the universities fulfilled their obligations about outreach. That will create no difficulties for the universities because I am convinced that all the universities I know want to widen the area of society from which they draw children of talent. However, he also said, if I heard him correctly, that there will be no interference in the academic freedom to make that selection on the basis of merit. Can he therefore assure us that the quotas that have been talked about for students to be drawn from different areas of society or different backgrounds in education will not now be pursued?
Lord Henley
My Lords, I am very grateful for that intervention from the noble Lord, who speaks with considerable authority as a former master of University College, Oxford. I must add that I have enjoyed his hospitality there on a number of occasions; I declare that as an interest. I am also grateful that he welcomes the fact that there is encouragement to fulfil greater opportunities for outreach, which is what all institutions should be doing. I also stress that there will be no interference in academic freedom. As I said earlier, I bear on my back scars from the late Lord Russell about alleged attacks on academic freedom, and I do not want to reincur them. Quotas are not the right way to set about this. Each institution in discussions with OFFA, after it has proposed a level of fees above £6,000, should look at what it can do to try to improve fair access to all areas of society.
Baroness Brinton
My Lords, I, too, thank the Minister for the Statement. I want to ask two specific questions. The first is on simplifying the regime for obtaining degree-awarding powers and making sure that the qualifications and assessment process for FE colleges and private providers will be the same as it is for universities. One of the strengths of the sector at the moment is the qualification assessment basis, and it would be a shame if it were lost in a diversification of the sector. Secondly, I declare an interest as I was bursar of a Cambridge college for a decade. I am delighted to hear that HMRC is consulting on changing the VAT regime. I am slightly concerned that the Statement refers to “some of the VAT barriers”. That has been a considerable issue to higher education institutions over the years. It has cost them a lot in administrative terms, and the accountancy profession has earned an enormous amount of money by advising universities. Can we be assured that there will be real change in the VAT regime for universities?
Lord Henley
I shall be very brief, bearing in mind the time. I think I had better write to the noble Baroness about what we want to do about simplifying degree-awarding powers. As for HMRC’s consultation on VAT, I am always very wary of ever making any commitment that involves the Treasury, so again I think it would be wise if I wrote to my noble friend on that matter.
Localism Bill
(12 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Greaves
“CHAPTER 8Appropriation and disposal of landAppropriation and disposal of land by local authorities
(1) The Local Government Act 1972 is amended as follows.
(2) For section 122(2)(b) substitute—
“(b) the council has complied with section 127A, as inserted by subsection (7) below.”.(3) In section 122A for the words after “appropriating the land” substitute “the council has complied with section 127A”.
(4) In section 123(2A) for the words after “disposing of the land” substitute “the council has complied with section 127A”.
(5) In section 126(4)(b) for the words after “appropriating the land” substitute “the council has complied with section 127A.”
(6) In section 126(4A) for the words after “appropriating the land” substitute “the council has complied with section 127A”.
(7) After section 127 insert—
“127A Conditions attaching to certain appropriations and disposals of land
(1) When a local authority appropriates or disposes of land under this section—
(a) the local authority shall give notice of its intention by advertisement in two consecutive weeks in at least one newspaper circulating in the area in which the land is situated, on the authority’s website and by notices on the land, and shall serve a copy of the notice on every other local authority and planning authority whose area includes or is adjacent to that area, (b) the notice shall indicate the location and boundaries of the land and of any land to be given in exchange, and where further information and plans may be inspected or copies obtained,(c) subject to subsection (2), unless the land to be appropriated or disposed of does not exceed 250 square yards (209 square metres) land must be provided in exchange that is not less in area and is equally advantageous to the public, to be vested in the local authority subject to the like rights, trust and incidents that attach to the land to be appropriated or disposed of,(d) the notice shall provide for a period of not less than 28 days from the date of the first advertisement during which objections can be made to the authority,(e) if the authority decides to amend its proposal these shall be subject to further notices in accordance with paragraphs (a) to (c),(f) a proposal that remains subject to objection and is not withdrawn by the authority shall be referred to the Secretary of State for decision.(2) If the local authority considers that land in exchange for that appropriated or disposed of under this section is unnecessary wholly or in part, the notice must state this and give the reasons for the statement.””
Lord Greaves
My Lords, Amendment 109A, which is on its own, is a long and apparently complex amendment, but it need not take us too long. It is about open space and what happens when open space is disposed of by local authorities. The amendment seeks to amend the Local Government Act 1972 to return it to something like its original form before it was amended in 1980.
The substance of this amendment comes from concerns raised by the Open Spaces Society, which argues that protections are insufficient, particularly around publicity, consultations and the requirement to consider objections. It is about urban open space in particular, which is precious and increasingly recognised as vital to life in towns and cities. The coalition agreement and government promises have made proposals for new designations and protections for green spaces in urban areas, although we have not yet seen the details. It would be a good time to strengthen protections for existing open space in these areas.
When we discussed a related amendment, Amendment 24, the Minister suggested that we might have a meeting to discuss the technicalities and see what substance the Government thought there might be in these proposals. Does she agree that perhaps we can discuss this amendment at the same time? On that basis, I beg to move.
Lord McKenzie of Luton
My Lords, I am grateful to the noble Lord for moving this amendment. We were not quite clear what was behind it but he has been very clear about the thrust of the amendment. We support its general direction, which is about protecting open space, particularly urban open space. I do question the use of the phrase “equally advantageous to the public”. I do not know if that is an existing term used in other legislation, but one of the requirements of the amendment is that it must be “not less in area”—understood; that is quite easy to determine—and is “equally advantageous to the public”. There will not necessarily be a single approach by the public as to the advantage of a particular piece of open space: it might be the tranquillity of the view or the opportunity for some recreation pursuits or indeed somewhere to walk the dog, whereas an alternative piece of open space may not be able to satisfy people in the same proportion or mix. I am sure that that issue could be overcome but I would be grateful if the noble Lord, when responding to the Minister, might expand a little on that test; the Minister may also have some views on that. However, I do see the thrust and the benefit of this amendment.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham)
My Lords, I thank both noble Lords for those short contributions—short, I suspect, because I have indicated that I would be happy to have discussions with the noble Lord about this. This amendment has appeared quite late on in proceedings. I do not quite understand its place in the Bill. I think it has found its way in by a devious route. It would be more helpful for the House to see exactly what lies behind the anxiety of the Open Spaces Society about this.
In acceding to speaking to the noble Lord about it, I have to say that we have particular reservations about paragraph (c). As the noble Lord, Lord McKenzie, has just pointed out, that requires a council to provide land in exchange for that appropriated or disposed of unless they can provide reasons under subsection (2) of the proposed new section. This is a difficult area. In order to provide an alternative piece of land, it is possible that the local authority would have to compulsorily purchase another bit of land in order to fulfil this obligation. So we would have considerable doubts and that is one area that I would expect to have a sharp discussion on. Having said that, I am happy to talk about this and come back to it at a later stage if the noble Lord will withdraw his amendment for the moment.
Lord Greaves
My Lords, I am grateful to the Minister for that reply and I will, of course, withdraw the amendment on that basis. I am not sure what she meant by “devious route”. This appeared on the agenda. It consisted of me sitting at my computer and typing out the amendment and then taking it to those excellent and helpful people in the Public Bill Office who give advice on exactly how things can be done and whose office is one staircase below mine. So it was not very devious at all. This is a good moment to pay tribute and thank the people in the Public Bill Office who are extremely helpful to all of us in putting amendments down.
“Equally advantageous” and “exchanged land” are not alien concepts. Similar language is fairly frequently used as far as open space is concerned in relation to planning applications, particularly where people wish to develop on a common. I would have to check the Commons Act 2006 and the Planning Act 2008 to see what the exact wording is. I am not suggesting the wording in this amendment is perfect but I am putting it forward to get the problem discussed. I am grateful to the Minister for agreeing to do that and on that basis I am happy to withdraw the amendment.
Lord Wigley
“( ) Only a Welsh Minister may require a local or public authority located in Wales to make a payment of an amount determined by the Welsh Minister in respect of any EU financial sanction imposed on the United Kingdom.”
Lord Wigley
My Lords, Amendment 110, in my name, introduces a significant group of amendments on the fundamental issue of passing on European fines to local authorities generally. I must admit that I have some grave reservations about the generality of Clause 31 and Part 2 in totality. Amendment 110 is a probing amendment by which I hope to receive adequate clarification of and assurance from the Minister on the Government’s intentions with regard to Wales. However, other amendments in this group may well need to be pressed or at least the option kept open to return to these issues on Report if an adequate response is not forthcoming from the Government.
The basic question behind my amendment is whether these fines can be imposed on Welsh authorities. Clause 36 is quite explicit that Part 2 powers concerning European fines apply only to local government in England. I flagged up at Second Reading the fact that I understood from the Welsh Local Government Association that a letter was sent to a Midlands MP by the Local Government Minister Greg Clark confirming that, under the Bill, the fines apply only to England. Is that the case? If the intention is to apply fines to Welsh local government, by what mechanism is this going to be achieved? There is the possible scenario that Westminster Ministers might impose fines on Welsh local authorities in Wales over the heads of Assembly Ministers.
There are valid reasons to be fearful of the dangers that might arise if central government can pass European fines willy-nilly on to local government when a local authority might not have caused the problem generating the fines or where it might genuinely believe that it was acting in line with UK or devolved government policy in pursuing the action that might have led to the fines. Other amendments deal with these more general issues. Amendment 114A proposes a framework of arbitration that is certainly worth consideration. If no satisfactory response is forthcoming, there will be an opportunity to vote on the clause stand part to delete these European aspects from the Bill.
I do not resile from the concept that if any local authority has behaved in a totally cavalier manner and has through its actions brought fines and penalties on the UK, it is right that those who act in that way might be open to suffer the consequences. However, fines are usually imposed through the system of courts with a proper system of checks and balances to ensure fair play. The Government of Wales have recognised that in rare circumstances the question of such fines might arise, but they understandably feel that the responsibility for passing on any fines to local governments in Wales should be with Welsh Ministers and that they themselves should need to be persuaded that such an action is appropriate.
There are constitutional and practical reasons for the Government of Wales’ approach. In constitutional terms, the National Assembly has full responsibility for local government in Wales and should take any umbrella responsibility on matters such as these. In practical terms, the Assembly has responsibility for ensuring the financial settlements for local government in Wales and so should be involved in any discussion. Furthermore, issues that could generate fines, such as non-compliance on issues such as air quality or waste, are within the responsibility of the Assembly. There is also a need for any passing on of fines to be seen as reasonable and proportionate. Local government in Wales may feel that its circumstances will be better understood by those in Cardiff Bay compared with those in the Treasury in London.
Finally, there is the general question that it is inappropriate to punish local authorities when they are not party to direct discussion with the EU on such matters. They do not have a direct voice in negotiations with the EU in a way that influences EU law. If the National Assembly has the responsibility to implement any such fines in Wales, can we have an assurance that the UK Government would not block Welsh government Ministers from having a direct interface with the EU on such matters? At the end of the day, it would probably be fairer if all these matters were not in this Bill. I beg to move.
Lord Tope
My Lords, as well as speaking to Amendments 110A and 186B, I shall speak particularly to Amendments 114A and 115A. Before doing that I should declare some interests that I have not previously needed to declare. I am a member of the Local Government Association’s European and International Programme Board. I have been a member of that and its predecessor bodies for more years than I care to remember. I am also a member of the Committee of the Regions, the EU body established in 1994 under the Maastricht treaty to be the voice of regional and local government in the European Union. Since the Greater London Authority has some interest in these matters as well, I should mention that I was a member of that authority for its first eight years of life and chaired the European sub-committee of the Metropolitan Police Authority.
Amendments 110A and 186B would make sure that any fine could be passed on to a council only in respect of an EU instrument that has been specifically designated by both Houses of Parliament through affirmative resolution so that Ministers would not have carte blanche to pass down any fine. The amendment, which happens to come first on the list, is fairly limited and restrictive.
The substantive amendments before us are Amendments 114A and 115A, tabled by my noble friend Lady Eaton. First, I need to pass on her apologies. She was keen to introduce these amendments but she cannot be here. Today is the first day of the Local Government Association’s annual conference in Birmingham, at which my noble friend has to make what she describes as her farewell speech as the outgoing chair of the LGA. She has therefore asked me to speak on her behalf, which I thought was a very brave decision. I said that I will gladly do so but that I will remain responsible for the words that I use. Therefore, any concern expressed should come only to me.
In the measured terms that we customarily use in your Lordships’ House, it is rather hard for me to express the surprise—the shock, even—anger and concern that were felt in the local government world over all this. The surprise was because the first the LGA knew—this must have been the first any local authority knew—of this being an issue of concern, or indeed an issue at all let alone a proposal, was when the Bill was published. I understand that there had been no prior warning, no prior discussions, no attempts to see whether the problem, if indeed there was a prospective problem, could be resolved in a more satisfactory way than by the inevitably rather blunt instrument of legislation tucked away in Part 2 of a very substantial Bill. I regret that, because it is not generally the way in which any Government in this country have worked on these matters. I do not know how or why it came about, but that was apparently the first that the LGA, and indeed local government generally, knew of such matters.
For that reason, local government and many other organisations would much rather remove Part 2 of the Bill altogether. That was why my noble friends and I put down clause stand part debates for all of Part 2. It remains my view that it would be better if this part was not in the Bill at all. If the Government foresee difficulties and problems of this nature, they should discuss them with the LGA and other interested bodies and find a more satisfactory way of resolving them. I suspect that we are not going to lose Part 2, but I still urge the Government to do that.
My noble friend Lady Hanham was, like me, a member of the Committee of the Regions for many years, and she will be familiar with the practice adopted a few years ago by the European Commission which it chooses to call, in true Eurospeak, “systematic dialogue”. “Systematic dialogue” is more or less what it says; they meet and discuss with representatives of local government and regional government throughout the European Union any issues of concern, issues that are coming up and so on. That ought to be the good practice adopted in this country, and I hope, regardless of the outcome of our discussions on this Bill, that government will undertake to do as we used to do some years ago—I remember going to some of the meetings myself—and discuss issues such as this with local government representatives so that this part of the Bill never needs to be used. I think we would all accept that if we ever get to the stage when government is imposing or passing on EU fines, something somewhere along the line has failed to work. We should not get to that stage, and I therefore hope that the Government will agree to work with the LGA in a spirit of systematic dialogue, of willing co-operation, to try to ensure that that does not happen.
My first contention is therefore to remove Part 2 altogether. If that is not to happen, and the Government insist that this issue needs to be dealt with in this way, through legislation, we need to look at how that is done. The concerns of the LGA and other bodies are that these proposals are unfair, unworkable, dangerous to council budgets and unconstitutional.
I want to deal today with what is described as unconstitutional. The issue is that the Minister, under this legislation, is set to act as judge and jury in this matter, and to be not only the final arbiter but the only arbiter in determining what fines are passed on, in what proportions, how, in what way, and so on. That cannot be right, and more importantly perhaps, it cannot be sensible. It is hard to imagine anything being more open to judicial proceedings because it is so arbitrary and unfair. If we are to proceed with Part 2, we have to look for a system of arbitration that is, first, seen to be entirely independent of the Minister—in other words, the arbiters should not be appointed by him or act as an advisory body—and is, secondly, fair and accepted by both sides.
Baroness Gardner of Parkes
My Lords, I shall speak to Amendments 111 to 114. Part 2 makes it possible for a Minister to require a local authority to make a payment in relation to an EU financial sanction imposed on the UK by the Court of Justice of the European Union if the Minister is satisfied that the authority caused or contributed to the infraction of EU law. The amendments in my name, Amendments 111 to 114, would amend Clause 31, which among other things sets out the requirement for the Secretary of State to publish a statement of policy setting out the general principles on how the power to pass on all or part of the EU financial sanction will be exercised and the amounts determined. Many of the points that I am going to cover were covered also by the previous speaker. For that reason, there is quite a bit that we have in common.
Amendment 111 would amend Clause 31(4) to require the policy statement also to contain details of the arrangements for the appointment, constitution and operation of an independent review panel. Amendment 112 would require the Minister to take into account relevant determinations of the independent review panel when exercising his functions under this part of the Bill. Amendment 113 would make an EU financial sanction notice subject to the new clause as introduced by Amendment 117. Amendment 114 would determine the relevance of any determination issued by the independent review panel.
Amendment 117 would insert a new clause into the Bill to allow local and public authorities which have received an EU financial sanction notice to refer the notice to an independent review panel, as mentioned by the noble Lord, Lord Tope. The new clause sets out the grounds on which such a referral can be made and provides that the independent review panel may review any finding of fact on which the financial sanction notice was based. These grounds include if a Minister,
“failed to exercise a power conferred by an enactment, and that failure contributed to the infraction of EU law (whether directly or indirectly or by impeding any local or public authority in its attempts to comply with EU law)”,
or,
“did not follow the procedures set out in this Part or in the warning notice before giving the financial sanction notice”,
or,
“ought to have exercised any discretion under this Part or the warning notice differently”.
The new clause requires the independent review panel to determine the validity of the grounds of the referral and to provide a copy of its determination to the Minister who issued the EU financial sanction notice and the local or public body which received it. These amendments stem from the significant amount of concern, already mentioned, that has arisen from the provisions in this part of the Bill since it was first published last December. Throughout the Bill’s passage these concerns have been voiced by Parliamentarians of all parties and are shared by the Mayor of London, the London Assembly, London Councils and the Local Government Association.
Understandably, the main area of concern has focused on the ability of a Minister to pass on a fine without any form of judicial or independent oversight. The need for independent oversight is particularly vital when one considers the complexity of the factors leading up to any infraction, not least in the area of air quality—I must here declare an interest in that where my home is in London is the most polluted air in the whole of the UK—and the fact that it is more than likely that one of the parties responsible for any breach will be the Government themselves. This concern was voiced eloquently by Jeremy Smith, barrister and former Secretary-General of the Council of European Municipalities and Regions, in the Municipal Journal in February. He said:
“There is, however, a wider point of concern about Part 2 of the Bill. There is no independent decision-maker. The minister takes the decision to make the local authority pay—even though central government may be partly or largely responsible for the infraction in the first place, for example, through delayed action, poor drafting, or for myriad other reasons. This means the minister may be simultaneously prosecutor, judge, jury—and co-defendant. This is surely not a healthy legal precedent … Therefore, Part 2 of the Localism Bill needs fundamental rethinking. If there is to be a claw-back provision at all, it should not be ministers who decide, since central government is almost certainly an interested party. The process should be for the minister to refer the matter to the High Court, or independent arbitrator, to determine any fair apportionment of the Article 260 fine imposed by the ECJ. The independent decision-maker can then take into account every party’s share of responsibility”.
The complexity of any infraction process and the need for independent oversight has been reinforced by my noble friend Lord Attlee in this House only recently. In response to an Oral Question from the noble Lord, Lord Berkeley, on air quality during the 2012 Games and who is responsible for this matter, my noble friend Lord Attlee responded:
“Everyone is responsible: the Government, the mayor, TfL, LOCOG, the ODA and, most importantly, individuals who make their own transport decisions”.—[Official Report, 23/5/11; col. 1583.]
While I thank my noble friend Lord Attlee for his frank assessment of a complex situation, his words highlight not only the difficulty any Minister would have in apportioning responsibility, and a subsequent fine, for any infraction but also the fact that the Government will, in almost all instances, be an interested party, as I mentioned previously.
It is for this reason that I believe these amendments provide us with a way of building in the safeguards that are so vital to making this part of the Bill acceptable both to your Lordships’ House and the broader community of local government beyond; a community that we must remember has no role in negotiating the very European legislation which could, if these clauses remain unchecked, be presenting them with a very substantial bill. Such a bill would be unpalatable at the best of times, let alone in the current financial landscape.
These amendments do not undermine the principle of this part of the Bill—a principle which was first outlined by the Government in Defra’s consultation documents on the natural environment White Paper last summer—but they begin to build in the safeguards that will be necessary for the relevant stakeholders to have confidence in the process outlined in the policy statement. It is vital, therefore, that local or public authorities have the ability to refer any EU financial sanction notice to an independent review panel; a panel to whose written determination the Minister must have regard. I understand that the Government have already been in discussions with the GLA, the LGA and London Councils on the formulation of a draft policy statement and I hope that these amendments will facilitate further discussions on getting that statement right. It is vital that any arrangements for,
“the appointment, constitution and operation of the independent review panel”,
as provided for by Amendment 111, are sufficiently transparent and robust to garner the support of those who will be subject to this regime. I hope that the Minister will view these amendments as a helpful way of building consensus, something which your Lordships’ House likes to achieve. They are essential if all parties are to have confidence in this part of the Bill.
Baroness Greengross
My Lords, first, I declare an interest as the vice-president of the Local Government Association. I decided to table Amendments 115 and 116 in this group because there is such widespread fear, some of which we have heard about today, in many local authorities and in other areas that this clause relating to the imposition of EU fines could be used as a mechanism for the Government to unload their own responsibilities onto those same authorities. That fear is absolutely understandable.
In her amendments the noble Baroness, Lady Gardner, suggests an ingenious mechanism for operating the system. Yet I am sure she would agree that, like other suggestions that have been made—for example, by the noble Lord, Lord Tope—it is a mechanism and no more. That leaves open the basic principles upon which the mechanism would operate. It is a bit like establishing a court of law without establishing the laws upon which it will base its judgment.
To my mind, those principles are very clear. Some people, in addressing this problem, have been arguing that EU fines should never be payable by local authorities. I find that a rather strange argument. In so far as it is prompted by the fear that a future Government might seek to use the legislation to pass their own responsibilities onto local authorities, it is, as I said, understandable but the solution is not the mere deletion of the clause. For local authorities the upside of the Bill is that, at long last, they get the powers that they should have. I totally agree with that but if they have the rights and the powers, they must surely accept the responsibilities that go with them. It must be right that if a local authority does something which, in part or in whole, results in the imposition of an EU fine it should, to that same extent, bear the responsibility. That is all this amendment calls for.
The amendment is merely a clear statement of the principle upon which the mechanisms for deciding the issue will operate. If I might be clear again: it merely says that if it can be proved,
“beyond reasonable doubt that the infraction of EU law has arisen, wholly or in part, as a direct result of the actions of the local … authority … that … authority should be responsible to that extent”.
Lord Beecham
In terms of proving “beyond reasonable doubt”, would the noble Baroness accept that the arbitration procedure would be a legitimate forum within which that burden of proof would need to be discharged or is she suggesting some other mechanism, including the courts, by which that test would be applied?
Baroness Greengross
I am not suggesting the detailed mechanism now. I agree with the noble Lord that we have to get this clear but I am just trying to clarify the issue. I agree that the phrase “beyond reasonable doubt” actually does no more than bring with it a number of legal arguments and problems. Because this is a difficult thing to prove, if the Minister were to indicate, for example, that she would support such an amendment subject to those words being deleted, I would be happy to omit them.
Baroness Scott of Needham Market
My Lords, like many other noble Lords I share the concerns expressed about these provisions. I want to start by asking the Government to give us an absolute assurance that they are confident that legally an EU fine levied on a member state can then be passed on to a local authority. I am not entirely sure that that is the case and would appreciate being given some comfort that it is true. My personal preference would be to see these clauses deleted, because I am not sure that the Government entirely realise what a can of worms they are opening. The noble Baroness, Lady Greengross, talked about where it is clear who is to blame, but EU fines would be levied only for a huge infraction—for example, in connection with air quality. It is almost inconceivable that it would be easy to point a finger and say that a particular person or organisation was responsible.
In fact, a large number of organisations would be responsible. Seeing the noble Lord, Lord Berkley, reminds me of the situation within the rail industry, where there are hundreds of people employed to do nothing but allocate blame. Every time a train is late, they go into a little huddle and work out whether it was the fault of Network Rail or the operator. When I am stuck on a train, I do not much care. This Bill is supposed to connect people with local politicians. We could have a situation where legal arguments drag on for years and cost millions of pounds while arbitrators try to sort out exactly who is responsible for the air quality of London. In that case, who will pay the fine? The public will look with bemusement while this goes on and they will rightly ask, “Why on earth did you not spend that money trying to deal with air quality rather than have this huge legal battle?”. I hope that the Government will think carefully about exactly what they are trying to do here.
Finally, it is a great pity that the whole dialogue and ethos of fining goes against everything we should be trying to do in terms of relationships between central and local government. It should be about looking at the best ways of resolving problems, not about allocating blame in this way and certainly not about allocating fines.
Lord Jenkin of Roding
My Lords, a number of us mentioned this matter at Second Reading. One of the longest lists of noble Lords spoke in that debate and addressed the problem of these EU fines. I do not want to repeat what has already been said, but the most important factor we are dealing with is that the Secretary of State is an interested party, whether he or she likes it or not. Therefore, it cannot rest with the Secretary of State to decide how to deal with this EU fine if it emerges. It has never happened yet, but it may one day. It was my noble friend Lord Teverson, I think, who said the Secretary of State was not just judge and jury, but prosecutor and executioner. That puts it extremely well.
I have put my name to the amendments moved and spoken to most eloquently by the noble Baroness, Lady Greengross, and to the longer amendment tabled by my noble friend Lady Gardner. Both recognise, first, that there can be no allocation until there is responsibility, and, secondly, that it cannot be the Minister who does that; there has to be a process of arbitration. We are in the middle of a negotiation outside this House between local authorities, led to some extent by the Greater London Authority and the London boroughs and the department. What we hope to hear from my noble friend on the Front Bench is exactly what is happening there; what stage have these negotiations reached? Are we in the process of getting some sort of reasonable settlement? Clearly in Committee like this we do not take a final decision when we are, as the Romans said, “in medias res”. We are in the middle of the affair, so we need to know what the Government have in mind and what negotiations have been going on, where they have got to and when they expect to reach a reasonable conclusion.
I share the view of the noble Baroness, Lady Greengross, that the solution is not to delete the whole part of the Bill. I heard what my noble friend Lord Tope said on this, but the fact is, bluntly, if there is a serious infraction of a European directive, whether on air quality, water quality or whatever else, is it to fall solely upon taxpayers in general, even if it is perfectly possible to point the finger at the individual authority? At Second Reading, I quoted the example of a directive on waste and the position if a particular local authority was consistently failing to comply. Is it really being seriously suggested that the general body of taxpayers should contribute to the fine?
Of course, the purpose of all these things, as my noble friend Lady Scott said, is to encourage authorities and everybody else to comply with the regulations. That is what is intended but, as I asked in my Second Reading speech, as regards the problem of Heathrow, who is responsible for the air pollution? Noble Lords will have seen reports in the press today of the increase in stacking over Heathrow in the four stacking areas, which is materially adding to air pollution in London. They said it is because Heathrow has been forbidden to expand. I and I think most noble Lords actually support that. Successive Governments and parties have taken that decision, but who is going to pay if it leads to an EU fine? It seems unfair that the whole body of taxpayers should pay.
There has to be some reasonable, fair, proportionate solution and it is my understanding that that is what the discussions are trying to find. I hope that my noble friend on the Front Bench is going to be able to help us. I am sure I am not the only one who received a paper from the Greater London Authority with a document saying “possible policy statement text” with a summary and a number of key principles. It says:
“The use of these provisions must be fair, reasonable and proportionate. There will be an Independent Review Panel. There will be no surprises, and authorities will have opportunities to make representations. Decisions must be evidence-based and transparent”.
It goes on:
“Authorities will not be held responsible for breaches that were not within their power to avert and will only be fined if they have demonstrably caused or contributed to the fine and can afford to pay”.
I find it rather a difficult document to absorb but it sets out a substantial flow chart, which I am sure other noble Lords have seen, that shows the number of stages—opportunities for appeal, occasions when notice must be given and so on—whereby an authority might become liable. We need to know more about this. However, I am inclined to agree with those who say that it is not sufficient simply to send it all away. We must recognise that if there is a fine, there must be some mechanism for dealing with the matter.
I refer briefly to Amendment 117A in my name, which was suggested to me by one of the big water authorities. These are now private undertakings and have expressed concerns as to whether Clause 36 applies to them. It is a question of whether a water authority that was found, for instance, to have breached the urban waste water treatment directive—possibly as a result of the discharge of sewage into the Thames—would be liable to having a fine imposed on it. I understand that the Government are quite sympathetic to this and that it is not the intention that private undertakings should bear any part of this. Part of the reason for this, which was explained to me by the water companies, is that they are already subject to stringent regulatory controls by the Government. If they comply with those controls, they should be within the law. If they fail to comply, it is open to the regulators to take proceedings against them to make them comply.
Thames Water, for example, has long been concerned about the amount of sewage that can periodically overflow and run into the Thames, with discharges the whole way along. As a result, Thames Water is now planning—work is well under way—to establish a long sewage pipeline under the Thames, for most of its length, which will eventually discharge into the sewage treatment plant at Beckton. This is a huge project, which involves lengthy tunnelling and must avoid all the other tunnels that pass under the Thames. Thames Water is doing what it feels is justified. Therefore, it feels it would be a monstrous infraction to have to pay an EU fine because of a breach of the water directive. I hope my noble friend will be able to give me some comfort on that.
Lord Best
My Lords, I support the two amendments in the name of the noble Baroness, Lady Eaton. She has to be at the LGA conference today, which will miss its usual presidential address because I am here. I was much convinced by the noble Lord, Lord Tope, and the noble Baroness, Lady Scott, who said that we should avoid this whole issue. It will get us into an awful lot of trouble and legal hot water. However, I suspect that that will not prove an acceptable course of action and there will have to be an apportionment of blame to decide who the polluter is when the polluter must pay. That leads us to worry that that apportionment of blame cannot be undertaken by the Secretary of State at the Department for Communities and Local Government or Defra. They would be parties to the case and it would offend natural justice if they were the ones to decide how blame should be apportioned.
Baroness Valentine
I declare an interest as chief executive of London First, a not-for-profit business membership organisation that includes developers, infrastructure providers and others who may have an interest in the practical implications of the Bill.
As a general point of principle, it is unreasonable to transfer the financial sanctions that emanate from European law to a subsidiary body unless that body has been given adequate powers and resources to meet the law and, furthermore, the UK Government have fully discharged their own obligations. Fairly attributing responsibility for who has infringed the law and the extent to which they have done so is not simple, as other noble Lords have already pointed out. Therefore, I support Amendment 117, which would introduce an independent panel to determine such matters. However, the amendment still leaves the final decision about who will pay the fine with the UK Government. I should like to see the powers of the panel taken a step further, with it being given the power to make this decision. The legitimacy to do so would be derived from its independence, which is not something that the UK Government can claim to have.
In London, this has been raised as a matter of particular concern in the context of the air quality and waste water directives by the GLA, local authorities and private organisations that exercise public functions. Who, for example, is to blame for poor air quality at Marble Arch? Is it the GLA, Westminster City Council, taxi firms or the bus companies? These are complex issues that require independent consideration and a panel with the power to determine who should pay the fine.
While on the subject, I am also concerned about the provisions in this part of the Bill that relate to EU fines, which would allow the UK Government to transfer liability to local and public authorities that exercise a public function. This is an issue addressed by the noble Lord, Lord Jenkin, in Amendment 117A, which I support. The problem is that, for the purpose of the Bill, public authorities include private organisations that are already subject to existing government legislation and the power of independent regulators. Private organisations may also be subject to contractual obligations, including financial penalties, for providing services outsourced by the public sector.
In relation to EU fines, private organisations should not be held accountable for something that it is not wholly, or even largely, in their power to achieve. It is the UK Government who negotiate with the EU. It is their role to ensure that EU directives are transposed effectively into UK law, and that the right policy and regulatory framework is in place to achieve that. I would welcome any reassurances that Ministers can provide on that matter.
Lord Berkeley
My Lords, I support all those who have spoken so far to express concern about this group of amendments. I thought it would be interesting to examine just how many of these directives, infraction proceedings, reasoned opinions, pilots and so on are likely to be in place at any one time. I start with those relating to transport. In a Written Answer on 7 June the noble Earl, Lord Attlee, said that 21 transport proceedings under Article 258 are currently unresolved. We do not yet know how many of those will result in a fine. One hopes that very few or none will, but that is the kind of number that we are talking about in transport. Therefore, one could suggest that there would be several hundred across the whole Government. Perhaps the Minister will be able to tell us how many are at stake across government.
The next thing I am concerned about is who this should apply to. The noble Lord, Lord Jenkin, mentioned private water companies and he is quite right. It would be useful to look at some examples. I have two examples. The first is the Channel Tunnel, which I spent 15 years helping to build years ago. The Commission has a pilot, which is the first stage of these proceedings, against the British and French Governments alleging failure to implement European legislation. The two Governments subcontract, if that is the right word, the regulation of the Channel Tunnel to something called the intergovernmental commission, which is actually part of government, which is meant to regulate the infrastructure manager in order to comply with the legislation. In the first stage of that situation, the Government would have to fine themselves. They would then have to fine the intergovernmental commission. Perhaps the intergovernmental commission would then pass it on to the private sector infrastructure manager. It sounds a little complicated to me and I do not think that it would work legally. The same could be applied to Network Rail, which is in the private sector, if the Government decided to follow the line suggested by the noble Baroness, Lady Kramer.
The figures are big. Many speakers have talked about the air pollution problem in London. The figure I have heard from the Commission is that the likely size of fine could be £300 million. Whether it was the present mayor—it could not be the previous mayor even though he came from a different party—the present TfL, the Government or whoever else, £300 million is a very big figure. We should bear this in mind when we talk about how this should be resolved.
The other example I have is an interesting one because it applies to most local authorities in this country. It is the first stage in the complaint from the Commission that local authorities are not complying with the green vehicle procurement rules. The directive—2009/33—came into force on 4 December 2010 and it,
“requires the public sector to use its purchasing power to promote clean and energy-efficient vehicles. Every time they purchase a vehicle for public transport services, they must take into account energy consumption”,
and so on. The obligation extends to all purchases of road transport vehicles by public authorities or transport operators. There are many experts in your Lordships’ House who know how many local authorities there are in this country—in England anyway, and Wales if Wales is included in it. However, working out a £300 million or £200 million fine between all those local authorities and then allowing each one to take this arbitration route, which I hope will be implemented unless the clause is lost completely, is just unthinkable.
I shall be interested to hear from the Minister how the Government will deal with that kind of failure to comply with the green vehicle procurement rules which apply to every local authority. How do they propose to apportion the fine even before it gets to arbitration? How much would this arbitration cost each time it was used? We all know who is going to pay for it. It will be the taxpayer in the end or the local authority ratepayer, depending on whose side you are on or who gets legal aid. With this kind of enormous scope for potential failure, before one starts apportioning blame, the whole thing should be scrapped.
Earl Cathcart
My Lords, as this is the first time I have spoken in Committee, I should declare that I am a landlord, a landowner, I have been a councillor in Norfolk for a number of years, and I am chairman of my parish.
When I first saw these provisions, I did wonder who on earth had dreamt them up. It is all too easy and tempting to blame Brussels, but in this instance, I do not think we can. I do not know of any other EU country that is bringing in similar provisions. Here I am confused. If it came from the British Government, which I think it did, why does it apply only to English councils? Why the urgency? What have English councils done, or rather, not done, that merits these provisions?
We all know that Britain gold-plates all EU directives so that Britain complies, or rather, overcomplies, with all directives, unlike some member states. Why are these provisions necessary? After all, Britain has never been fined by the EU. Are the Government worried that we are about to be fined? If so, given that we gold-plate all EU directives, it must be that we face a possible fine for something we have signed up to that has been impossible to deliver. In that case, why penalise local authorities? After all, they were not party to the negotiations with the EC. This makes me wonder whether a fine will apply to things that have happened, or rather, have not happened, in the past. Will these fines be retrospective or will they apply only to future events and future non-compliance? The EU treaty quite clearly states that only Governments are liable for any fines. Here we have provisions that allow the Secretary of State to lay off the blame and the fine onto local authorities.
If the Government persist with Part 2 of the Bill—I hope that they do not—and they are successful in pinning the blame on local authorities, the big question is how local authorities are going to find the money. We know that local government finance is already under tremendous strain. To have to pay an EU fine might mean cutting front-line services. That cannot be the right answer and I do not believe that would be acceptable. After all, local authorities already have big enough trouble cutting their budgets. To do so again to pay an EU fine would be untenable.
How are local authorities going to find this extra money to pay the fine? They could increase council tax, but again that would be unacceptable. Why should households be penalised for something that is totally out of their control? Anyway, any increase in council tax can now be challenged. The only other source of income that local authorities have is from the central government grants. That would be like robbing Peter to pay Paul. There are provisions in the Bill that require the Minister to take account of the effect of any fine on a local authority’s finances. So presumably, if a local authority is strapped for cash—and they all are—then no doubt central government will end up picking up the tab. Here we have a situation where the Government pass on their fine from the EU to local authorities which they, the Government, may well end up having to fund themselves.
Why bother with all these procedures: the Secretary of State publishing a statement of policy and then determining how the amounts are to be paid; apportioning the blame across various local authorities; giving warning notices; issuing a final EU financial sanction notice; the appeal process; the protracted legal battles between local authorities and the Government; and perhaps an independent arbitration system to ensure the Minister is not, as other noble Lords have said, judge, jury, executioner and co-defendant? There is all this protracted bureaucracy and legal wrangling when, at the end of the day, the final bill will probably be picked up by central government anyway. All because in the past the Government have signed up to something with the EU that they cannot deliver, because if they could deliver, we would already have gold-plated regulations.
Therefore, rather than squabbling among ourselves, would it not be better if the Government concentrated their efforts and firepower on challenging any fine, if and when one is imposed? They should renegotiate with Brussels, if necessary, and, in future, ensure that Britain does not sign up to anything that is not in our interests or that we cannot deliver. As things stand, I cannot see the point of all this. It is a clear case of cutting off one’s nose to spite one’s face.
Lord Empey
My Lords, I wanted to speak briefly to Amendment 110 and to make a few other comments, but it would be a brave Ulsterman who would take on the noble Lord, Lord Wigley, on a Welsh amendment. However, I assure him that I want merely to talk about the principle here. Although the Bill does not apply specifically to Northern Ireland, the Northern Ireland Local Government Association has asked me to raise some matters of principle, because if the principle is established in the Bill that local authorities will or could be liable for EU fines, sooner or later it will have national significance. While some EU directives may often have specific geographical implications, others have wider national implications.
I do not have a problem with the principle that the polluter pays, but it has to be understood that local government throughout the United Kingdom is not a universal picture. Local authorities in Northern Ireland have far fewer powers than those in the rest of the United Kingdom. They also raise most of their own money—more than 80 per cent—by rates. Consequently, they do not have a large central government grant, as is the case in England. Therefore, it is not possible for the Government simply to reduce the grant that local authorities in Northern Ireland receive in order to take the money off them, because they do not get it in the first place. If you impose a fine on a Northern Ireland local authority, you impose it directly on the ratepayer. That has to be understood.
The other matter is that the powers of local councils vary considerably. The Department of the Environment in Northern Ireland is largely responsible for local government, but other groups and public bodies will perhaps share policy implementation with local councils. Air and water pollution have been talked about. Local councils obviously have or could have an environmental health role in this, but other public bodies might be responsible for other aspects, including water pollution, sewage and so on.
The Northern Ireland Local Government Association, in consultation with other local government bodies, including the LGA, has expressed concern—not only because they have not been consulted about the measures, but because, although the Bill does not directly affect them at present, they believe that sooner or later it will. That is because EU fines have a national implication, as well as a local one. It was, I think, the noble Lord, Lord Berkeley, who said that he was not aware that EU fines had started to be imposed. I can assure him that they have, because I know, at home, our Department of Agriculture is being fined very heavily over issues concerning mapping. Grants were being distributed on the basis of maps, and now we have armies of planners who, as a result of not having much to do during the recession, are poring over aerial maps, because in the designation of fields, the boundaries of areas of rough ground may have become unclear. Brussels is now saying that people have been double claiming and doing all sorts of things. I can assure the noble Lord that fines are being imposed, exemplary damages are being applied, and the fines are vastly in excess of the amount of money that may have been inappropriately spent or given to a particular claimant. The Government are being fined millions of pounds above that. We are talking about substantial issues.
Lord Berkeley
I should like to say that it was not me who suggested that the British Government had not been fined.
Lord Empey
I beg your pardon; I may have picked up a comment from someone else.
When the Government are finalising what they are going to do on this issue, they need to take into account the significant regional disparities. One understands that the Government are trying to establish the point that the polluter pays. However, the big issue with all this is that we send representatives to Brussels—and I do not know whether the late-night hospitality and the all-night sessions are to blame—decisions can be forced through at 4 am and our representatives keep putting their hands up to approve them. Then, five or six years later, they blame Brussels for enforcing those decisions when it is they who have agreed to them. I have to say: beware the late-night hospitality. We should pick representatives who are good at doing this at night. In a negotiation, I fear that the officials will know full well that a certain Minister has to get away to an event somewhere else, perhaps at 1 pm the following day, and know that if they push for a decision at 3 am or 4 am, the Minister will put their hands up and agree to anything. I seriously suggest that we be careful what we agree to, because it comes back to haunt us many years later.
I accept that the provision in the Bill does not apply to Northern Ireland, and it is not entirely clear as to whether it applies even to Wales. The Minister may answer that this is an England-only Bill, but while local government is a reserved or devolved matter in certain areas, EU fines are, of course, a national issue or a reserved matter. The interface where these issues collide is not entirely clear to me, and I sincerely hope that the noble Baroness will take this into account when she replies.
Lord Newton of Braintree
My Lords, it is probably rash of me to intervene in a debate that has so far been dominated largely by great gurus of local government, another of whom is yet to speak. However, it must have become obvious, at least to my Front Bench, that I am one of those who become more rash, rather than more cautious, as the years advance. I have endlessly declared my wife as an interest, in respect of Braintree District Council. I hasten to add that she has not told me to say anything about this issue. The council is well conducted—and I say that not just because she told me that. However, I support the noble Lord, Lord Tope, and say that the concern is confined not just to his Benches. That has admirably been made clear, but having geared myself up to speak, I decided that I would do so—albeit very briefly.
First, the noble Lord, Lord Tope, was right to say that this issue should have been discussed with local authorities, not just bounced out with the publication of the Bill. Secondly, I have every sympathy with what my noble friend Lord Jenkin said—whether or not something like this survives, the Secretary of State should not be judge, jury, prosecutor and executioner. That leads to my interest in some of the amendments in the group, including that of my noble friend Lady Gardner of Parkes. I noted that the noble Lord, Lord Best, who knows as much about all this as anyone, said—although he did not use this phrase—that the Government were opening a can of worms. The whole of the rest of the debate has demonstrated that it is indeed a can of worms, not least in the speeches of my noble friend Lord Cathcart and the noble Lord, Lord Empey. It may be too late to put the lid back on it, but my noble friends ought to contemplate whether they can squeeze it down a bit or at least make it a more palatable lot of worms.
I do not have much more to say, but I have two questions that link with the points made in recent speeches. I want to put them very directly. First, as was initially raised in uncertain terms by the noble Lord, Lord Wigley, just where does this stand in relation to the devolved Administrations? Since the noble Lord spoke, I have checked Clause 213 on the extent of the Bill. If I read that correctly, this lot does extend to Wales; but it does not extend to Scotland and, as we have just heard, it does not extend to Northern Ireland. Therefore a fine from the European Union would be imposed on the United Kingdom Government. We are the members of the European Union, not Scotland, even if it would like to be, or Wales, even if it would like to be, or Northern Ireland—I do not know whether it would or not. That means that in certain circumstances the United Kingdom Government could be fined, but if the fine related to a local authority in Scotland, the European Union could do nothing about it. Only an English council could have a knock-on fine under these proposals. If I got that wrong, I would be glad to be told; but that appears to me to be the meaning of the Bill and I do not think it is satisfactory.
Secondly, as was touched on by my noble friend Lord Cathcart, is this or is this not retrospective? I could just about understand it if councils knew what they were getting into when they made a decision that might lead to this risk. However, unless I have read the Bill wrongly, this is a backward-looking proposal. A fine could be imposed that related to something that had already happened, in circumstances in which a local authority had no reason to suppose that there would be a penalty. Most of us would regard that situation as deeply unsatisfactory, and I do not regard it as satisfactory on anything that I have heard today.
From what the noble Lord, Lord Best, said the other day, we know that this clause was one of the top three targets of the Local Government Association, which is why he is here today, no doubt. He was very kind, and rightly so, to my noble friend Lady Hanham on the Front Bench for having been so conciliatory on its other two main targets—one was the issue of mayors, the other I cannot remember. I urge my noble friend to be conciliatory on this one as well.
Baroness Kramer
My Lords, I am afraid that I am a local government novice rather than a local government guru. However, I want to add a few words because in some of the last speeches there was a dangerous drift, I thought, towards implying that this was all the fault of Brussels and I think that has to be countered quickly. As a Londoner, I am very grateful that there is an EU air quality directive. The Mayor of London and his draft air quality strategy assess that PM10 particulates play a part in the premature deaths of more than 4,000 people per year here in London. In fact, if you look at the impact on heart disease, it is probably closer to 8,000 people. If we had that number of premature deaths from food poisoning, I would guess that there would be a very big response. The fact that it comes from air poisoning seems to have drifted past an awful lot of British Governments. As a Londoner, I suspect that many of us are reasonably concerned about that.
I agree with all the arguments that the Government cannot possibly turn around and pass these fines off to other authorities to act as judge and jury. That is against natural justice and it is important that we say so. However, this whole conversation that we have had today has made it clear that arbitration is complex, expensive and protracted; the wisdom of Solomon would rarely be adequate to make sure that proper allocation followed. In those circumstances, this strikes me as a classic piece of the gold-plating that we mention when we talk about how our country handles directives from Brussels. Going back to the original proposition, to simply eliminate this clause would be the far cleaner way in which to act. The Government have often said that they do not expect us to ever get any EU fines, in which case the argument is even stronger for simply eliminating all of this rather than following the gold-plating strategy that seems to be under consideration.
Lord McKenzie of Luton
My Lords, I speak to Amendments 117ZA and 117ZB, to Amendments 110A and 114A, to which we have added our name, and to the other amendments in this group. This has been a fascinating debate but there seems to be one very clear strand that I think that pretty much everyone who has spoken has signed up to, which is that, if these provisions proceed, the Secretary of State cannot be the final decision-maker in respect of these fines. I am on the side of those who hope that these provisions go in their entirety. I will just touch upon the point raised by the noble Lords, Lord Wigley, Lord Empey and Lord Newton. According to the Notes to the Bill, my understanding is that these provisions relate to England only, so it seems to me entirely reasonable to ask the Minister whether there is going to be any proposition that will extend them somehow to Wales, Northern Ireland and Scotland. If the answer is no, then I say good luck to Wales, Northern Ireland and Scotland. Nevertheless, how do you address the point that the noble Lord, Lord Newton, made, that you could have an EU penalty that, you might argue, is the responsibility of a number of local authorities, some in England, some not, so that under these provisions an English authority would be forced to cough up and authorities in Wales and Northern Ireland would not have to? If that is the proposition, that is simply a nonsense and cannot be right.
If I may say to the noble Earl, Lord Cathcart, I think this issue around gold-plating of EU directives is, frankly, a myth. Every time an exercise is done to try to identify where that happens, the answer pretty much always comes back that it is very difficult to identify. I agree with the noble Baroness, Lady Kramer, that this is not about laying blame at the feet of Brussels. As I said a moment ago, I am on the side of those who believe that we should remove these provisions from the Bill in their entirety, along with the noble Lord, Lord Tope, the noble Baroness, Lady Scott, and others, for the reasons that the LGA touched upon; namely, that they are,
“unfair, unworkable, dangerous for local economies, and unconstitutional”.
The noble Lord, Lord Tope, spoke to that, and other noble Lords made the point that it is the UK Government who have EU obligations, not local authorities. If there is an issue about recalcitrant local authorities, surely it has to be addressed by more effective regulation by powers of intervention that central government could take, not by this nonsense of trying to apportion fines on some basis with all the complexities and problems that noble Lords have identified today.
My understanding is—and the LGA briefing touches upon this—that the concerns are particularly around air quality, public procurement, services and waste. As a start, can the Minister confirm that those are the particular areas that the Government are concerned with? Can he also tell us at what stage potential infraction proceedings have reached over these various areas or others that might be under way? My noble friend Lord Berkeley gives instances of several hundred in relation to transport. If we cannot get these clauses out of the Bill, and if we are to try to work out the best process to deal with this, it is worth reflecting on what I understand to be the process leading to infraction proceedings and the raising of a penalty.
Looking at the more formal arrangements in Articles 258 and 260, it has to start with an informal letter of inquiry from the Commission, then a formal letter presenting an opportunity to respond to an alleged breach of Community law, followed by reasoned opinion, which is the 41 notice from the Commission advising a member state that it is in breach of its obligations, followed, if there is no satisfactory response, by an application of the Commission to the ECJ for a formal ruling.
Following that, if there is a determination that there is a breach, there will be a letter requesting information on the steps taken to put an end to the infringement. If there is failure to comply, there will be formal notice that the member state has failed to comply, following by a reasoned opinion, which is the formal determination by the Commission that the member state has failed to comply with the ECJ judgment, followed by a financial penalty.
Therefore, the process is extensive, and there are a number of occasions when member states can challenge the existence of a breach or attempt to rectify it. Indeed, is it not the case that, even before these processes occur, there will in practice be opportunities to discuss with officials any suggested breaches of the treaty, with an iterative process to try to reconcile matters? This can extend over many months, if not years. Is it not the case that they are not clear-cut issues and that compromises may have to be reached along the way? That is why it seems fundamentally unacceptable that under the Government’s proposals an authority will be formally engaged with an EU financial sanction only when it has become a reality.
I shall run through some of the amendments in a moment. I do not think that any of them separately encompasses what we now consider to be a robust fallback position in removing these provisions, but I believe that in aggregate they present a cocktail of suggestions which I hope the Minister will digest, as he has time to do between now and Report.
In our view, any retention of these provisions—our preference is for them to be removed and we will not give up on that yet—must include safeguards which make it clear that the consequences of a failure of transposition of directives into UK law can never be visited on local authorities. There must be a requirement for the Government to use all the powers at their disposal to ensure compliance with ECJ rulings, whether they are powers relating to regulation or powers of intervention. Perhaps on that latter point the Minister would write to me setting out what powers the Government have over the various areas of concern and the extent to which they have been deployed to date or are planned to be deployed to avoid or mitigate any EU breach.
There must be a statutory opportunity for authorities whose actions or inactions are considered by Ministers to have potentially contributed to a breach to be notified at an early point, and certainly before the start of the processes set out in Article 258, with a right for such authorities to be kept up to date with developments and negotiations, and to be able to make representations to government about the conduct of such negotiations and to be given an opportunity to rectify any contributory breaches. There must be protections for authorities which do not wilfully and deliberately set aside a power or responsibility and where they have taken all reasonable steps to bring about compliance. There must also be a right for authorities affected to have access to some form of independent review, judicial or otherwise—and there seems to be strong support for that—which assesses not only whether the proposed levying of the fine received by the UK is fair but whether the processes and engagement leading up to the end result have been appropriate and consistent with the principles that I have set out.
The collection of amendments before us covers much of that ground and, as I said, provides some of the key ingredients for a fallback position. While we will continue to argue for the removal of these clauses, we will consider supporting a fallback position if it is sufficiently robust. The onus is now on the Minister and his colleagues to take note of the mind of the Committee, although I suggest that it is pretty clear. I believe that he has a decent time to do that before Report and I urge him to do so.
Lord Beecham
My Lords, I entirely endorse the observations made by my noble friend Lord McKenzie. I was happy to ascribe my name to the amendments moved by the noble Baroness, Lady Eaton, and indeed I congratulate her on tabling them. I think the Committee would wish to join me in congratulating her on her tenure of office, which ends this week, as chairman of the Local Government Association. She has been a very distinguished representative of local government. She has been quite unafraid to express the views of the local government family to Governments of all three political colours over the past few years, and we look forward to her playing an even greater role in your Lordships House than she has felt able to pursue so far because of a slight feeling of a conflicted position.
My noble friend Lord McKenzie referred to the position of Wales and Northern Ireland, and he seems to be absolutely right. I obviously have every sympathy with the noble Lords, Lord Wigley and Lord Empey. One would not wish to see these fines imposed on either Wales or Northern Ireland, or indeed on Scotland. However, it would be ridiculous if they were excluded from and England were included in certain situations. For example, if the Tweed or the Severn were polluted from the north or the west of the relevant borders, the Welsh or Scottish authority involved might be exempt and an English authority held liable. That would seem quite absurd.
My noble friend Lord Berkeley and the noble Earl, Lord Cathcart, asked about the number of potential breaches. Noble Lords may recall—although probably not—that at Second Reading I referred to a Written Question and Answer in relation to this matter. The Question was what estimate the Government have made,
“of the potential liability of the United Kingdom to pay fines to the European Union; and what proportion they anticipate would fall to be paid by local authorities under the provisions of the Localism Bill”.
The Answer from the noble Lord, Lord Sassoon, was:
“The United Kingdom has never incurred a financial penalty under Article 260 of the Treaty on the Functioning of the European Union”—
or under the former articles—
“and no such fines are anticipated”.
I suggested at Second Reading that it was a little curious that in that case there should be provision in the Bill at all. However, the Answer went on:
“In the event of such a financial penalty, it is not possible to anticipate what proportion would fall to local authorities under powers proposed in the Localism Bill”.—[Official Report, 24/5/11; col. WA 419.]
Therefore, it could be a very large or a very small sum. In that context, I ask the Minister to indicate whether it is correct, as the Local Government Association believes, that the Government are considering fines relating to four specific EU laws so that councils could be forced to pay up to £1.2 billion in fines. It is alleged that the UK is facing a potential £300 million EU fine for breaches of air-quality targets. Is that correct?
Furthermore, a slightly worrying feature of the fines proposal is the reference to the breach being “caused or contributed to” by a local authority. A contribution can go from a small proportion to a very large one. What is the Government’s thinking about the situation that would arise if it were not wholly the responsibility of an individual local authority or a number of local authorities? In those circumstances, how would the fine be apportioned and who would determine it? Presumably, on the basis of the Bill as it stands, it would be the Secretary of State.
I recall money being lost to the United Kingdom, and particularly to the region from which the noble Lord, Lord Shipley, and I come, not through the fault of local authorities but through the negligence of civil servants who failed, for example—this was in the days of the previous Government—to transmit bids for EU funding in sufficient time for the money to be allocated and received. The money went missing but unfortunately there was no question of the local authorities fining the Government for that negligence. It seems that this is a one-way street. When it comes to money being lost to the UK, only local authorities seem to be scheduled to be in the firing line.
There are real problems here with the processes. The noble Earl, Lord Cathcart, talked about Ministers signing up successive Governments to regulations, and he was right to say that. In particular, Governments have signed up to these regulations without consulting local government, upon which under the Bill and indeed perhaps more generally responsibilities would lie. The position now seems to be that if the Bill goes through unamended local authorities will be faced with decisions made on the basis of targets, deadlines and laws dating back more than 10 years—again without any consultation along the way.
Earl Attlee
My Lords, I thank the Committee for the time, effort and thought that has been put into the amendments on these clauses. I particularly welcome some of the sensible comments of the noble Lord, Lord McKenzie of Luton, after he gave me his fairly firm strictures. We welcome such constructive contributions. I have taken on board the strictures of the Committee and I accept that there is much more that we need to do on these clauses. I also believe that the House is well placed to find a solution. Given the significance of these provisions, I intend to give a full reply. However, I will avoid getting involved in a debate about the EU or the desirability of any particular directive. On any relevant points that I do not answer, I will write in due course.
The basic principle is, I think, sound. The aim is to encourage authorities not to incur fines for the UK in the first place and, in the unprecedented circumstances that the UK is fined for an infraction, to achieve compliance quickly. We do not want to pay escalating fines to Europe. As many noble Lords have pointed out, we have never incurred fines for an infraction and do not see these provisions as a prelude to being more relaxed about infraction proceedings or fines. My noble friend Lord Tope, in his speech, accepts that it is very unlikely that EU fines will be incurred. The whole point of the policy is to avoid the fines in the first place.
My noble friends Lady Gardner of Parkes and Lady Scott of Needham Market, the noble Baroness, Lady Valentine, and others raised the issue of the air quality directive and the difficulty of apportioning liability to certain types of directive. The amendment of my noble friend Lord Tope deals with this problem in conjunction with the amendment of my noble friend Lady Gardner, although I have to caution that it may have unintended consequences in this respect, so further consideration is required. The noble Lord, Lord McKenzie, asked whether these clauses are aimed at just a few specific EU directives. I go back to my point that that is not the case; they are about avoiding problems in the first place.
Lord McKenzie of Luton
I understand that point. My specific question was whether those four areas that I identified are of particular concern at the moment, and in respect of those areas, how far, if at all, the early stages of infraction proceedings have got.
Earl Attlee
My Lords, I think I will be able to give the noble Lord some comfort later in my speech. The noble Lord, Lord Berkeley, rather exaggerated the spectre and size of related fines. He will recognise that most EU states are experiencing difficulties with the air quality directive, particularly in respect of NOx, but I will not weary the Committee with the technical reasons for that.
We should focus much more on preventing fines. I am therefore very interested in the amendment proposed by my noble friend Lord Tope and by the noble Lord, Lord McKenzie of Luton, on the Benches opposite. Taken together, as the noble Lord, Lord McKenzie, suggested, these would target and give a very clear warning only to authorities that are putting us at risk of a fine from Europe and just for the specific breach in question. That also deals with the point raised by the noble Lord, Lord Berkeley, about the potentially very large numbers. Actually, the numbers directed would be very small. This would involve a parliamentary process. The issues or any culpability could be clearly debated here and in the other place. In considering the merits of these amendments, we need to ask whether naming specific authorities could result in a greater desire on their part to comply and avoid any fine. This, as the Committee is aware, is the Government’s overriding aim.
Listening to the debate it seems to me that noble Lords believe that a particular advantage of the amendments is that prior to a directive being designated, all concerned can concentrate on solving the problem rather than taking legal advice and protecting their position. That deals with the point raised by my noble friend Lady Scott of Needham Market. In other words, the meter is not running until the designation order has been approved. As such, noble Lords may consider that these amendments deal with the issue of retrospectivity raised by my noble friends Lord Cathcart and Lord Newton of Braintree and the noble Lord, Lord McKenzie. However, I make it clear that the Bill’s clauses would have to apply to existing directives, not just new ones.
We must also ensure that the mechanism used as a last resort to recoup any fines works, otherwise there will be no incentive to avoid a fine.
Lord Newton of Braintree
My noble friend has been very reassuring on general retrospection and I think I understand the point about existing directives, but in respect of an existing directive, would the potential fine apply only from the date of the designation under an amendment along the lines that he appears to be discussing, because if it applies backwards it remains retrospective?
Earl Attlee
My Lords, I believe that that is the intention of my noble friend’s amendment; the meter would run only from when the directive was designated.
The process must be fair, reasonable and proportionate. I therefore warmly welcome the draft policy statement from the Greater London Authority, mentioned by my noble friend Lord Jenkin, arising from discussions with the Government. A copy has been placed in the Library and I would welcome any comments on it. I was also very interested to see the amendments of my noble friend Lady Gardner of Parkes.
Lord Jenkin of Roding
I am sorry; my noble friend is clearly doing his best, but the draft statement was obviously drawn up after the discussions had got so far with the department. Are those discussions still going on?
Earl Attlee
My Lords, I will be delighted to deal with the noble Lord’s point later in my speech.
I was very interested to see the amendments tabled in the name of my noble friend Lady Gardner of Parkes. In considering the merits of these, we would need to be certain that any panel would provide additional value on top of the existing availability of judicial review. Amendment 114A, tabled by my noble friends Lady Eaton and Lord Tope and the noble Lords, Lord Beecham and Lord McKenzie, would take this a step further. I do not feel, however, that arbitration is appropriate. This is not just about deciding between disputing parties on a breach of contract; it is a complex matter that involves myriad decisions, including on the apportionment of resources and most importantly on the ability to pay. It is not appropriate for a single unelected individual to make such decisions, any more than it would be for them to decide the local government finance settlement.
The noble Lord, Lord Beecham, made a point about the revenue support grant. I go back to my point that it is not about raising money; it is about avoiding the fines in the first place.
Lord Berkeley
The Minister mentioned ability to pay. If a council has no money, does that mean that the Government will not have to pay?
Earl Attlee
Not quite, my Lords, but the decision-making process will have to ensure that what the council pays is affordable. It may hurt them, but there is no intention to bankrupt a local authority, which I think would concern noble Lords. There has to be an affordable fine. However, if an amendment similar to the one tabled by my noble friend Lady Gardner of Parkes were put in place, it would be hard for Ministers to ignore its advice without making themselves vulnerable to judicial review. I am very grateful for the clear way in which my noble friend explained her amendments.
I welcome the tone of the speech by the noble Baroness, Lady Greengross, and I can confirm that we will make clear in the policy statement our commitments to the principles of fairness, reasonableness, proportionality and no surprises. This is why I find the draft document from the Greater London Authority so helpful. Unfortunately, the amendment, which seeks to put tougher tests on culpability by using the criminal standard of law, causes some real practical difficulties. Unfortunately, the European Court of Justice proceedings are based on civil standards of proof. Rather than rerunning the European procedures here in the UK to the higher test, it is better to use a court’s finding to focus on quickly achieving compliance.
My noble friend Lord Jenkin of Roding seeks to ensure that the Government cannot designate any private company. I agree that we should not penalise companies for their private services and functions. I believe that this amendment needs further consideration. We need to ensure clarity as to who is to be covered by these provisions.
Finally, to the noble Lord, Lord Wigley, whose amendment we are debating, I suggest that there is no need for his amendment. Clause 36 sets out that the powers apply only to English authorities exercising public functions in England.
Lord Wigley
As I flagged up at Second Reading on 7 June, the Minister in another place said that this is likely to come into force in other parts of the United Kingdom. If that is the Government’s intention—and as the noble Lords, Lord Newton and Lord Empey, and others have said, it would have implications if it did not and it has implications if it does—at what stage would we know conclusively that this part of the Bill was not going to be changed to include us? If it is to be changed, can it be changed in time for us to table amendments as necessary on Report to deal with the consequences of this being applicable to Wales, Scotland or Northern Ireland?
Earl Attlee
I am coming to that. The noble Lord, Lord Wigley, asked whether the Government will give an assurance that the UK Government would not stop the Welsh Assembly Government from negotiating with the EU. The UK Government recognise that the devolved Administrations will have an interest in European policy-making in relation to devolved matters, notably when action by them may be required for implementation. The UK Government will involve the devolved Administrations as fully as possible in discussions about the formulation of the UK’s policy position on all EU and international matters that touch on devolved matters.
The noble Baroness, Lady Scott of Needham Market, asked whether we are confident of our legal position. Parliament is sovereign and can give powers to Ministers to pass on EU fines in accordance with the law as passed by Parliament.
The noble Lord, Lord Berkeley, asked about the number of transport directives in difficulty. I cannot confirm his numbers. However, he will be aware that many problems are relatively minor and easily dealt with and some of these matters are progressing faster than others.
My noble friend Lord Cathcart talked about gold-plating, but we cannot be infracted for doing additional things. He also made the important point, which the noble Lord, Lord Berkeley, touched on, about the effect of any fines. As I said previously, the Secretary of State has to take into consideration the effect on a local authority of fines, and any arrangements that were put in place as a result of the solution that we devise would obviously have to have that effect.
My noble friend Lord Newton of Braintree and the noble Lords, Lord McKenzie and Lord Wigley, asked about the extent of these clauses. England and Wales are one legal jurisdiction, which is why the extent is England and Wales. However, the application of the clauses is to English authorities, but we are in discussions with devolved Administrations about how the clauses may be relevant to their areas for reserved matters, and we will be prepared to look at their requests very carefully indeed.
Lord Newton of Braintree
I had actually decided not to intervene, because it seemed almost unfair. There is nothing more certain, I would judge, than that if the UK Government approach the Scottish Government—I do not know about the Welsh—and say, “We have this policy and if we get a fine that applies either north of the border or across the border, will you pay your share?”, they will tell us to get stuffed.
Earl Attlee
My noble friend Lord Jenkin asked where we are in negotiations with outside bodies. He is of course, correct in what he surmises. However, your Lordships and another place will have to decide what is to be done in the end. In conclusion, I would like the opportunity to consider, in consultation with ministerial colleagues, those suggested amendments which could provide a way forward and a solution.
While I am clear that putting the decision-making in the hands of a single unelected individual is not helpful, I am very willing to take away the other suggestions from noble Lords. I believe that together we can develop good solutions in time for Report. While I cannot accept a veto, I am very happy to continue discussions with outside bodies and noble Lords in order to develop this good solution before Report. In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Berkeley
Will the Minister explain his last reference to the different types of organisations that might be covered, which the noble Lord, Lord Jenkin, and I raised, be they water companies or railway companies? Is the Minister going to write to noble Lords who have spoken with more detailed responses to all these things, or is he going to recommend that we put down amendments on Report about which should be covered and which should not?
Earl Attlee
My Lords, I am very happy to enter into detailed discussions with any noble Lord.
Lord McKenzie of Luton
Noble Lords will be grateful for the response that the Minister has made because he has indicated that this is very much open and there is scope for a lot of further detailed discussion. Can I be clear that included in that discussion will be issues around the point at which local authorities will be notified of possible infraction proceedings and the opportunity to engage in the iterative, informal discussions and negotiations that go on before we get to an Article 258 situation? Any review and assessment of the outcome would cover that early engagement and its legitimacy as well as just looking at the divvying up of the fine that may result at the end of the day. Can we have the opportunity to engage with the Minister along the way so that we will have no surprises when we come to Report?
Earl Attlee
My Lords, the noble Lord will know that infraction proceedings are a very long process, even after the Lisbon process, which, I understand, makes it a little shorter. The designation procedure suggested by the noble Lord, Lord Tope, would provide a very clear signal. One of the questions that my noble friend would have to answer—and we can do this offline—is: at what point would you designate a local authority? I would suggest that it would be after you get to a difficult stage in negotiations with the EU. I would be very happy to discuss that point with the noble Lord.
Lord McKenzie of Luton
I know the Minister has gone through a lot this evening on this. It is not just a question of designating so that you know that you are potentially in the frame; it is an opportunity for a local authority to engage with the Government, who are obviously responsible for the negotiations. Since it is a negotiation, and a deal is often struck at the end of the day, where that deal is struck could affect a particular local authority or group of local authorities in ways that are different from the way others are affected. Therefore, that chance to impact on that process early seems vital if people are going to be assured that there is a reasonable process going forward. It is not just being designated; it is being designated at a point where you can engage with the ongoing pre-formal process of the infraction proceedings.
Earl Attlee
My Lords, the noble Lord makes an important point, but the amendment tabled by the noble Lord, Lord Tope, deals with it because until the directive has been designated, the Government can deal and negotiate freely with the Commission and with the affected local authorities to try to find a solution to the problem. Most of the time, we will be able to achieve compliance relatively easily. I hope we will never get to a situation where we cannot achieve compliance.
Lord Tope
Before the noble Lord, Lord Wigley, tells us what he is going to do with his amendment, which, as we were reminded just now, is the one we are supposed to be debating, I thank the Minister for his conciliatory response to us tonight and for recognising—indeed, after nearly two hours, he could hardly fail to recognise—that the clauses as drafted are not quite perfection and that more needs to be done. We are, of course, very willing to engage in constructive discussions to try to find a solution and a way through this. I think he will have heard many times during this debate that to have the Secretary of State as prosecutor, judge, jury and executioner is simply not acceptable to your Lordships, and he has made the point that a single unelected arbiter is not acceptable to the Government. Therefore we need to find some solution: an arbitration that is seen to be fair on all sides. That is perhaps where we should concentrate.
As my final word on this subject, I ask the Government to consider seriously the can of worms that others have referred to and which has been spoken of many times in this debate. I suspect that the Government did not fully recognise it when drafting this Bill. Given all the potential difficulties that are implied in all this, should the situation ever arise, is it really worth pursuing Part 2? I think it has been said on all sides of the Committee that our preference would be not to have Part 2.
Lord Tope
I think that came from all sides of the Chamber. The Government have perhaps recognised that shadow mayors are not to be pursued. It may be time that they should also have the courage to consider whether Part 2 is worth all the trouble that it may potentially cause and whether the best solution to the dilemma we have spent the past two hours debating might be just not to pursue it at all.
Earl Attlee
My Lords, inspiration has arrived regarding one of the questions asked by the noble Lord, Lord McKenzie. He asked at what point local authorities would be notified that there is an infraction proceeding. They are made aware via relevant departments from the outset of formal proceedings—so, from an Article 258 letter of formal notice.
Lord Wigley
My Lords, I shall not detain the Committee very long in winding up this fairly substantial debate. I thank the Minister for the movement that he has indicated in response to representations on the generality of the problems arising with local government. The concerns of the Welsh Local Government Association are very similar to those of the LGA and the extent that Part 2 can be amended between now and Report to meet those concerns will be equally as welcome in Wales as elsewhere, if the Act, as it will be, is to be applicable in Wales.
I concur entirely with what the noble Lord, Lord Tope, said a moment ago about doing away with Part 2 in its entirety. That would avoid all the problems, but judging from the comments made by the Minister in responding to the debate, it seems that there is still an intention to have a Part 2, albeit amended. If that is the case, I hope that the message will be taken loud and clear from this Chamber that the Minister made it clear that by virtue of Section 36, the Act will apply in England only as things stand now. That will be heard particularly by my good friend Mr Alex Salmond and by others as well, as will the comments of the noble Lord, Lord Newton, about the response if there were attempts to take money from local authorities in Wales, Scotland and Northern Ireland in relation to this Bill. I entirely understand that noble Lords from England will feel that there would be inequity if that was the case, and that is why I suspect that at some point in time we will find a formula that brings in Wales, Scotland and Northern Ireland.
If that is the case, it needs to be in the Bill. It needs to have an opportunity to be discussed and debated and to have all the opinions from those three areas brought on board before a final conclusion is reached in relation to the legislation. I very much hope that between now and Report, if there is to be movement away from what the noble Lord said—that it does not apply, as it presently stands, to the two nations of Wales and Scotland and to the Province of Northern Ireland—that can be made known to us in good time so that there can be discussion, if necessary, and discussion with the authorities in the devolved Administrations so that on Report we can address this in a way that will be acceptable, at least in terms of debate, discussion and parliamentary process, by those who have to live with the consequences. I beg leave to withdraw the amendment.
Baroness Kramer
“Tax increment financing
(1) The Business Rate Supplement Act 2009 is amended as follows.
(2) After section 1 (power to impose a BRS) insert—
“(1A) A BRS may be in the form of tax increment financing.”
(3) In section 14 (chargeable amount: supplementary) in subsection (2) after ““A” is” insert “for any form of BRS other than tax increment financing”.
(4) In section 14, after subsection (2) insert—
“(2A) For tax increment financing “A” is—
(a) the increase in the rateable value on the chargeable day attributable to the project to which the tax increment financing relates, or(b) if section 12(2) applies, the rateable value of the occupied part of the hereditament on that day.”.”
Baroness Kramer
My Lords, we have just been through a very important debate that has taken a good two hours. I sense that the House is absolutely exhausted, so I will try to be very brief in moving Amendment 118. I will speak also to Amendment 118ZA. Since the latter is the smaller, I will address it very quickly now.
This arose because my colleague and expert lawyer, the noble Baroness, Lady Hamwee, looked at the Bill and realised that there was a serious question in the wording of Clause 38(7), which refers to business rate supplements and makes various amendments. It says:
“The amendments made by this section do not apply in relation to a BRS imposed before the date this section comes into force”.
That is an important date because on one side of the date of raising a business rate supplement there is in many cases no requirement for a ballot, and various other conditions are different, and on the other side of that benchmark the conditions are entirely different. It is absolutely necessary that any authority affected by business rate supplement rules knows when that date occurs. I apologise if we have made a mistake, but neither the noble Baroness, Lady Hamwee, nor I can find any definition to determine when “this section comes into force”. This is an attempt to do that by replacing those words with the word “enacted”. It seems that if this clause should pass and become part of the Bill in its final form there has to be some clarity from the Government. This is a technical issue but it could lead to an awful lot of confusion and litigation if it is not clarified.
Amendment 118 covers the issue of tax increment financing. I will take a moment or two to explain what tax increment financing is. I am sure many Members of this House are very aware of it but there might be one or two who are not. I will then explain why I have raised this in this Bill and at this point. Tax increment financing was first used in the 1950s by California and is now part of the framework statutes of every state of the United States bar Arkansas, as well as of various continental countries, in various forms. Essentially it is a mechanism that recognises that where regeneration takes place or where there is new infrastructure, land values consequently rise. Therefore, business rates associated with that increase in land values are attributable to the existence of the project. In effect, it allows the relevant local authority or other body to borrow against that predicted increase in the business rates that results from the construction and existence of the project.
In this country we have a great problem in building infrastructure. People often use the example of the London Tube system and the Jubilee line. We get the cost upfront—in the case of the Jubilee line, about £3.5 billion—but there is a huge benefit at the far end when the project is complete. The increase in benefit to landowners around the various stations on the Jubilee line is estimated at about £13 billion. In other words, huge value is created, but we rarely find any mechanism to let us capture that value in order to get the financing to build the project in the first place. This happens on a small scale as well as a large scale. Knowing the cash that is coming out at the end, are we going to take the steps to allow us to find a mechanism to tap that in order to get the project built?
In the United States, this is not often used on large-scale projects. It is used typically on small, local regeneration projects in blighted areas, but it need not be limited to that application. The Deputy Prime Minister, Nick Clegg, announced in September 2010 that the coalition would at some point allow local authorities to use tax increment financing to finance infrastructure projects. In a sense, this is a probing amendment to find out where on earth we are in this process. I speak partly as a Londoner because I know that so many infrastructure projects are necessary in this city, but it has to apply to the whole of the country.
This issue is relevant because of the various new clauses in the Bill that apply to the business rate supplement. I am conscious that a review is under way of local government revenue-raising powers and that tax increment financing is likely to be discussed as part of that. However, a problem arises from Clause 38 because of the new constraints that are applied to local authorities in raising business rate supplements— notably that a ballot is now necessary for every business rate supplement. Under the existing rules, no ballot is necessary if the business rate supplement provides less than one-third of the total cost of the project.
Crossrail was passed through a special hybrid Bill but the business rate supplement plays a significant part in the financing for it. Had all the businesses in London that are covered by this rate been balloted, they would not have passed the business rate supplement because many of them do not benefit from the existence of Crossrail. I am sure that this will be true on a small scale as well. It will become very difficult to achieve a business rate supplement when many businesses will look at the project that is very beneficial to the community but say that it does not benefit them directly. The joy about tax increment financing, if that were to be the basis on which businesses were balloted, is that you pay it only if you have benefited. You will pay a tax increment levy only if you have seen the increase in property values that comes because the project has been created. That, presumably, is something that businesses capture through rent or through the sale of property or in various other ways, but it is in their interest to make sure that the project happens.
That is why I have raised the matter in this context, although there is a more general Bill to come. It seemed to me that if we were going to see in this Bill new difficulties for using business rate supplements, we at least ought to have some discussion of mechanisms that would be put in place to give confidence to local authorities that they could proceed with infrastructure projects, regeneration and other necessary developments. They would then have some assurance that mechanisms would be coming their way that would allow them to achieve that. At a time when we talk about the importance of economic growth, infrastructure is perhaps more important than ever, so there is an urgency in clarifying this issue. That is why I have brought forward the amendment. I beg to move.
Lord McKenzie of Luton
My Lords, we understand why the smaller of the amendments has been introduced tonight. Doubtless the Minister will be able to give satisfaction on the date that these provisions enter into force for the reasons the noble Baroness has outlined. We also understand better now why she has attached tax increment financing to these provisions. As she said, a ballot is now required in all circumstances, whatever the level of funding, and there may be difficulties in securing that in the future.
Tax increment financing is about raising more money upfront by committing revenues which would not have arisen but for the project going ahead. We accept and support the importance of focusing at this time on tax increment financing when capital resources for local authorities are especially tight and the private-sector nervousness about the state of the economy means fund raising is extremely difficult. The noble Baroness will be aware that the previous Government set up a working party to examine this and an enlarged group has been working with the coalition Government. What I am not sure about is the grafting of these provisions on to the Business Rate Supplements Act 2009, which is about levying a supplement on the NNDR. It involves consultation arrangements and a ballot of those existing ratepayers affected. In concept, TIF is about ring-fencing additional business rates and almost hypothecating those to fund a borrowing arrangement. The current position is set out in the local growth document which the Government issued recently. That talks about introducing new borrowing powers to allow tax increment financing. It will be interesting to hear from the Minister what the mechanism is for those borrowing powers to be introduced to facilitate tax increment financing. I do not think grafting it on to the Business Rate Supplements Act provisions will be the right way to achieve it. It looks as though the Government already are focused on changes to borrowing arrangements which will facilitate it and obviously, subject to the detail of that, it is a principle and a project which we would support because it is important to get this source of funding under way at the current time.
Lord Shipley
My Lords, I want to add a word from the perspective of English core cities. The proposals around tax increment financing put by the eight largest English cities to Government three to four years ago have gradually been working their way through a number of committees, particularly in the Treasury. In the past 12 months added impetus has been given to tax increment financing. I hope that what my noble friend Lady Kramer is proposing here does not cause any delay to the move forward with the Government’s proposals because tax increment financing is urgently needed to enable cities, in particular, and all councils to be able to borrow against future business rate income growth. At present local councils have the power to borrow prudentially, but prudential borrowing requires there to be an income stream guaranteed to enable that borrowing to proceed. Tax increment financing enables borrowing to be made against future growth and projections of that business rate income, as my noble friend Lady Kramer rightly pointed out.
These are not separate issues and they can sit happily together but we are looking for some clarity from Government that tax increment financing as a principle will go ahead as speedily as the Deputy Prime Minister announced that it would last year. Local authorities are waiting for the powers to be implemented and it could well be a further 18 months to two years before those powers come forward. They are urgently needed. Otherwise infrastructure funding that requires a capital investment based on borrowing on the markets needs to be progressed. Without it that investment will not take place. I look forward to my noble friend the Minister clarifying the speed with which tax increment financing can be introduced and how then that proposal lies with this proposal in the name of my noble friend Lady Kramer.
Lord Beecham
My Lords, the noble Lord, Lord Shipley, is quite right to refer to the support for the principle from the core cities and also, in general, from the Local Government Association. I endorse that. To help me understand the implications of this measure, can the Minister refer back to the point that she raised about this being more acceptable to business ratepayers because they will benefit from the projects that are being financed through this mechanism as opposed to something like Crossrail where they may not have done? This does not necessarily constitute an objection to the proposal, but I wonder whether that is right. The rates are borne by the occupier of business premises. The value effectively goes to the owner and they are not necessarily the same. We have had over many years in local government finance the position where property owners contribute little to the regeneration of cities and the like. The financial burden falls on the tenants through the rents and they also pay the rates. I wonder whether she is not being a little optimistic in assuming that the occupiers of premises that may benefit from these developments will be as enthusiastic as she might suppose, although, as I say, that does not vitiate the validity of the proposal as a means of financing investment.
Lord Shutt of Greetland
My Lords, I hope I can be helpful on this but, while thanking all noble Lords who have spoken, I revert to the point that my noble friend Lady Kramer made in her initial remarks about this being a probing amendment.
The Government have committed to introduce tax increment financing but we should not pre-empt the outcome of the local government resource review that will conclude in July. The review is looking at both local retention of rates and tax increment financing as we need to make sure that tax increment financing proposals are consistent with our wider proposals on business rates retention. The amendment appears to increase the rates liability of businesses, whereas tax increment financing, as generally understood, does not increase the business rates that would otherwise be levied but uses those rates to repay the borrowing that helped to deliver a piece of infrastructure. The business rate supplement and proposals for tax increment financing are two separate models that are structured differently. Rather than integrate them, there is no reason why they could not be used alongside each other to facilitate the funding of infrastructure to support economic growth.
The amendment seems to create two types of business rate supplement. The first type is a traditional business rate supplement of up to a 2p levy on business rates payers within an authority area that occupy property rated above £50,000 for an economic development project. The second type is a business rate supplement for where tax increment financing has delivered some infrastructure project of up to a 2p levy within an authority area but is restricted to the increases in rateable value of properties rated above £50,000 as a result of some infrastructure that has been implemented by tax increment financing.
The amendment appears to be defective in a number of ways. There is no definition of tax increment financing. The amendment would also create some practical concerns. The tuppence maximum will apply to the area, so in London the proposal could not apply as the tuppence limit reached by the Crossrail business rate supplement has been dealt with. Applying the increase to the rateable value to adjust the impact of the tax increment financing project would require a second ratings list to be set up for all properties with rateable values both prior to and after the tax increment financing project delivery. A consequent increase in administrative costs is highly subject to challenges over the extent of any rateable value increase as a result of the tax increment financing project or other factors—refurbishment of a property, for example.
The tax increment financing scheme does not increase the business rates that would otherwise be levied but uses those rates generated by the infrastructure to repay borrowing. Under existing arrangements, 100 per cent of business rate revenues collected by local authorities are pooled for redistribution to local authorities in England. By considering options to enable councils to retain their locally raised business rates, the current local government resource review provides an opportunity for significant changes in the way in which councils are funded. Such an approach could help to set free many local councils from dependency on central government funding and provide incentives for them to promote economic growth. The review is considering how we could manage the distributional impacts of any new arrangements. More deprived councils will continue to receive support.
Last September, the Deputy Prime Minister announced that the Government were committed to take legislation to allow for tax increment financing. Then, the local growth White Paper, issued in November, set out the Government’s intention to carry out a resource review. The terms of reference for the resource review were published in a Written Ministerial Statement by the Secretary of State on 17 March 2011. The resource review will look at local retention and tax increment financing in the round and will conclude in July. The aim is then to move as quickly as possible towards implementation, taking into account the need for primary legislation.
I appreciate the spirit of Amendment 118ZA, which aims to ensure that any business rate supplement where the levy raises less than one-third of the overall project cannot be imposed between Royal Assent and the commencement order without a ballot. However, we do not think that bringing forward commencement of that part is necessary as we are not aware of any proposals for any new business rate supplement planned to be imposed—that would fund less than one-third of the overall project—as we have not seen an initial prospectus or consultation. The business rate supplement for Crossrail has already been imposed and would not be affected by the amendment. I should like to offer reassurance that the Government will bring into force the proposed change that will ensure a ballot for all future business rate supplements regardless of whether it funds more or less than one-third of overall costs.
Clause 38 will come into force following a commencement order to be made by the Secretary of State. We will look to make that commencement order for a date no earlier than two months after Royal Assent in line with convention that legislation is brought into force earlier only where necessary and in exceptional circumstances. I trust that that is a fair response to the noble Baroness and that she will feel able to withdraw her amendment.
Baroness Kramer
I thank the Minister. I am not sure that we are a whole lot clearer on the commencement date but perhaps the Government at the earliest possible opportunity will make that date clear to allow local authorities to handle their affairs in the most effective manner. I accept that I am not likely to get a clearer answer than that.
There are no absolute rules on tax increment financing. There is no absolute requirement that TIF applies only to the standard business rate. There is no rationale that says that it should not apply to a special business rate, which is what we might call the business rate supplement. If this begins to be a widely used measure, many communities and many business communities might rather see a special rate for a project that they consider to be particularly beneficial rather than forgo the project. I would be sad if the Government were ruling out flexibility around TIF from the beginning and going only with the very plain vanilla simplest form of TIF as they look at the various options in front of them.
The noble Lord, Lord Beecham, raised the point that very often the person or the business paying the business rate is not necessarily the one that benefits from the increase in value. I take his point. However, as the Minister pointed out, with the standard vanilla TIF, this would not be an issue because one is looking just at the standard business rate and it would be only where there was a special levy in order to create the project. It will depend on whether that increase in value results in increased benefits to the occupier. For example, a shop that suddenly finds there is much more traffic coming through the door may be very pleased to support the higher rate payment because, in effect, their business has benefited. I would say that that is not an absolute.
I would hope that local authorities are given the maximum amount of flexibility to be able to design projects around the needs of their community—and the benefits that will come to their community—to negotiate much of this with local business. I hope very much that as the Government deal with this issue, they will not try to be prescriptive but will allow that kind of financial flexibility which local authorities, I suspect, are best positioned to understand in detail.
I very much confirm that this was a probing amendment. I was rather flattered by the Minister’s attempt to deal with some of it on a line-by-line basis. It was not written with that in mind. I very gladly beg leave to withdraw the amendment.
Carbon Budget Order 2011
Lord Marland
That the draft order laid before the House on 24 May be approved.
Relevant document: 33rd Report from the Merits Committee
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Lord Marland)
My Lords, I beg to move that the Carbon Budget Order 2011, for the fourth carbon budget level, laid before the House on 24 May, and the Climate Change Act 2008 (Credit Limit) Order 2011, for the second budget period credit limit, laid before the House on 7 June, be approved.
I suggest that the two statutory instruments on the Order Paper in my name be considered together. Both instruments have been laid in accordance with the Climate Change Act which puts the UK at the forefront of the challenge to reduce emissions and the move to a low-carbon economy. The first order relates to the requirement to set the level of the fourth carbon budget. The five-yearly carbon budgets provide an effective framework for monitoring and delivering emissions reductions required to achieve our 2020 and 2050 targets. The second order sets the limit on the net amount of international carbon offset units that may be credited to the net UK carbon account for the second budget covering the period 2013 to 2017. I thank both the Joint Committee on Statutory Instruments and the Merits Committee for carefully considering the two orders before us. The Joint Committee on Statutory Instruments cleared these instruments without comment. The Merits Committee drew the special attention of the House to the draft order setting the fourth carbon budget on the grounds that it gives rise to issues of public policy likely to be of interest to the House.
I begin by introducing the first order, relating to the fourth carbon budget. This is the total permissible level of the net UK carbon account for the period 2023-27. The Act requires that this is set by 30 June 2011. The level in the Carbon Budget Order 2011 is expressed in units of million tonnes of carbon dioxide equivalent, the standard for measuring greenhouse gas quantities. It amounts to a 50 per cent reduction on 1990 emissions in the 2023-27 period. The proposed level of the fourth carbon budget, of 1,950 million tonnes of carbon dioxide equivalent over the period, ensures that the UK is on an optimum pathway to comply with the 2050 target of at least an 80 per cent reduction in greenhouse gas emissions. In proposing the level, the Government have taken into account, and agreed with, the advice of the Committee on Climate Change, published in December 2010. The Government aim to meet the proposed fourth carbon budget figure of 1,950 million through reducing emissions domestically as far as practical and affordable. But given the high number of factors that can affect emissions we also intend to keep open the option of carbon trading to retain flexibility. This is a pragmatic approach when considering the uncertainty involved in looking so far ahead.
I draw your attention to the Government’s policy statement that I announced on the Floor of this House on 17 May, where I referred to a review of this carbon budget in 2014. Let me explain our reasoning behind this. The level of emissions reductions we achieve in the power and heavy industry sectors is dependent on the level of ambition in the EU ETS, which sets a cap on emissions for these sectors. Meeting the proposed fourth carbon budget would require a tightening of the EU ETS cap from its current trajectory. It is therefore right that we come back to this issue in a few years’ time to assess progress at the EU level in moving to more ambitious targets. If at that point our domestic commitments place us on a different emissions trajectory than that of the Emissions Trading System agreed by the EU, we will, as appropriate, revise our budget to align it with the actual EU trajectory, pending advice from the Committee on Climate Change and taking into account the views of the devolved Administrations. In the mean time we will continue to push as strongly as possible for greater ambition at the EU level. This brings me on to the second instrument we are debating today, the Climate Change Act 2008 (Credit Limit) Order 2011.
The Act requires there to be a limit set on the net amount of carbon credits that can be used for each budget period. This order sets the limit for the second budget period, covering the period 2013 to 2017, at 55 million tonnes of carbon dioxide equivalent in total. This must be set by 30 June 2011. Use of these credits would only apply to the non-traded sector; in other words, those sectors not covered by the EU Emissions Trading System. This proposed limit is consistent with the flexibility mechanism under the EU legislation covering the non-traded sector from 2013, which allows for limited use of international credits to help meet annual reduction targets set under the EU Effort Sharing Decision. There are already limits on the use of credits by participants in the EU Emissions Trading System through the EU ETS, which guarantees that at least 50 per cent of the emissions reductions between 2008 and 2020 will take place in Europe. Let me make it clear that we already have a robust policy framework in place to meet the first three legislated carbon budgets, and emissions projections show that we expect to meet these domestically without recourse to the purchasing of credits. In proposing the 55 million tonnes limit, the Government are just choosing not to rule it out at this stage; this is simply a contingency. I commend these orders to the House.
Lord Reay
My Lords, these orders are required under what I view as the Climate Change Act 2008. The Carbon Budget Order sets the limit for our permissible CO2 emissions for the fourth carbon budget as much as 12 to 16 years away, and the credit limit order states the proportion of our second carbon budget, from two to seven years away, that may be met by the use of so-called carbon credits, whereby we pay people in developing countries to do the emission reduction while we carry on doing the emitting.
The Explanatory Memorandum for the fourth carbon budget order has its usual quota of manifestly untrue assertions, including that on page 1:
“there is an overwhelming scientific consensus that it”—
that is, climate change—
“is being caused by human activity”.
There is certainly no consensus. On page 19 there is the statement:
“The scientific evidence for recent global warming continues to strengthen year on year”.
In fact there has been no global warming for the last 10 years, so even with an elastic definition of the word “recent”, that sentence makes no sense.
The order prescribes what the United Kingdom’s CO2 emissions for the five years from 2013 to 2018 are to be on the way to achieving an 80 per cent reduction by 2050, over 1990 levels. The report of the Merits of Statutory Instruments Committee draws attention to the fact that the chances of the United Kingdom staying within that budget will depend on the degree of take-up of the Green Deal, and on early investment in carbon capture and storage. In fact it is quite likely that the public will find the Green Deal unattractively expensive, and where take-up does occur, it may well result not in CO2 emissions savings, but in people choosing to live in warmer homes. CCS is a rash punt by the Government on a scientific breakthrough that will enable it to be rolled out to scale economically. Meanwhile, of course, China rolls out a new coal-fired power station every week, quite uninhibited by any need to wait for carbon capture and storage to be oven-ready. The Merits Committee adds that,
“a key development will be the package of measures to help the energy-intensive industries adjust to the low carbon industrial transformation while remaining competitive”.
This refers to the further contortions that the Government have to make in response to protests from the industry concerned in order to try to offset the effects on them of the carbon tax which the Government propose to introduce. So complicated is that process that the Government want to have until the end of the year to try to work out what to do.
The greatest chance of the Government being able to meet their distant carbon emission targets, including the 80 per cent target in 2050, ironically depends on the failure of the economy to revive. The Climate Change Act, and the policies adopted as a consequence, are doing their very best to bring that about. The Government must sometimes wonder, when by themselves, whether this outcome will please the general public when it becomes apparent and whether this pleasure might ever express itself in the ballot box.
The credit limit order relates to the second carbon budget starting in two years’ time. The Government state in the Explanatory Memorandum that they expect the budget to be met comfortably by territorial emission reduction; that is to say, by emissions calculated to have been reduced on United Kingdom soil and that, therefore, there is likely to be no need to purchase ICUs—international carbon units. The provision in the order is therefore, as my noble friend the Minister said, purely a contingency.
The Government seem almost wistful about this, regretting this missed opportunity to give support to another foreign aid scheme. On page 6 of the Explanatory Memorandum, they state: “This option”—referring to one of the policy options, policy option 1, which is not the one in effect adopted—
“could signal an increased commitment by the UK government to purchase emissions reductions from developing countries, which would form part of the overall demand signal to the private sector to help drive investment in new projects overseas”.
In fact, the system just introduces new scams and corruption opportunities to developing countries, as if enough were not provided already by our aid budget.
It is not that the opportunities seem confined to developing countries. It was reported in the press that the legislature in Australia was giving consideration to awarding carbon credits for the funding of the extermination of Australia's 1 million-odd feral camels on the grounds that they were substantial emitters of methane gas and no doubt were a noxious pest in many a constituency in the Outback.
Our Government state, sadly, that they are strongly supportive of the international carbon credit system, notwithstanding the similarity that it seems to bear to the pre-Reformation church, when indulgencies could be bought from Rome to permit sinning at home with a clear conscience. Kyoto is the new Vatican.
The Climate Change Act should be repealed, its panoply of carbon budgets abandoned, all the agencies such as the climate change committee which drips its advice into the Government's ear sent packing, and a chance given to our economy to resurrect itself. Otherwise we have a grim and, very likely, a dim future.
Baroness Worthington
My Lords, I should declare my interest in this topic. While I worked at Friends of the Earth, I instigated the campaign that secured cross-party support for a new legal framework to tackle climate change in the UK. That campaign was based on a policy document where I argued in favour of a series of legally binding carbon budgets to deliver a steady trajectory of emissions reductions over time.
While on secondment to the Office of Climate Change, I was made part of the team tasked with drafting the Bill. There, the concept of carbon budgets was further developed and other elements were added, most importantly the creation of the independent Committee on Climate Change, an expert body set up to advise government on crucial aspects of the implementation of the Bill including, most importantly, the levels at which future budgets should be set.
It will come as no surprise, therefore, that I am a passionate defender of this world-leading legislation. I should also state that I am a director of a not-for-profit organisation that is a watchdog on the carbon market.
Lord Teverson
My Lords, I sometimes wish that I agreed with my noble friend Lord Reay on a number of issues because he speaks so eloquently and so certainly, although what he says is usually the direct opposite of what I think. However, there is one area on which we agree on this debate, which I will come on to later.
One of the great things about the Committee on Climate Change report on which the Government’s decision was based—and I absolutely welcome the Government’s decision to adopt the fourth carbon budget—was that the report did not just say what the committee thought should happen but actually went through from the basics: it looked at the 80 per cent target for 2050 and said that was still right; it looked at areas such as the 34 per cent reduction by 2020; and it then looked to see whether the evidence was still there that global warming is happening. Where I deviate very strongly from the speech of the noble Lord, Lord Reay, is that I accept that the report showed very clearly: that ocean levels are rising and have been rising consistently over the past decade; that temperatures at sea level and in the atmosphere are rising; and that the number of square kilometres of ice cover in September—I do not know whether it is a particular conspiracy that September of each year has been chosen—has gone down. There are various other indicators but those are the key ones, which show that this is really happening. That is the reality on our planet.
I sometimes think that the noble Lord, Lord Reay, sees the whole climate change strategy as a car accident in slow motion or waiting to happen, whereas I look at him as aiming for it and putting his foot on the accelerator, and I am sad that is the case. It seems to me that the science is there. I agree that there is perhaps less scientific evidence on whether global warming is created by the human race and all the industrialisation that has taken place, but there too I believe the evidence is very strong indeed. Whether we do something about climate change now or wait another couple of decades to see whether it really has happened is not an option we should consider. I agree that there is a difficult global consequence even though, as the noble Baroness has said, we sometimes underestimate the amount of work that other countries—whether developing or having intermediate income levels—have done and are doing in this area.
There will be a number of challenges in meeting these targets. I still treat with some scepticism the argument made by the Committee on Climate Change that the effects on GDP of implementing these measures will be less than 1 per cent. I always think that is a fantastic bit of statistical evidence. Over that time period, the margin of error is probably something like 5 per cent either way. However, it is good to read that and there is evidence on that.
There are big challenges. The climate change report notes that we need something like £10 billion a year of energy investment—something that I recognise from Ofgem reports. I know the Government are very aware of this as well, even though over the past decade and more investment in the power sector has been under £2 billion per annum. That is a fivefold increase that we are looking for in our energy investment. Therefore, anything that we can do through smart grids, demand management and especially schemes such as the Green Deal to bring down energy usage will improve that figure quite considerably.
For this fourth carbon budget, which is 12 years ahead when it starts and 17 years ahead when it finishes, it has to be a good decision by the Government that we are nailing our flag to the mast and that, as with the first three budgets, we are at one with the recommendations of the Committee on Climate Change. That will be difficult, given the need for electric cars. By 2050, more or less all transport will have to be non-fossil-fuel based. That will require a major change, both technically and culturally—which in many ways may be far more difficult.
I disagree with my noble friend the Minister, very unusually, on carbon credits. I argued very strongly during the passage of the Climate Change Bill that we should not be able to borrow from and lend to other periods and budgets; we should not be able to trade credits if we do not meet domestic demand. I am sad in a way to see that proposal. Another issue on which there is perhaps some change from what the Committee on Climate Change would have liked is reassessing the budget in the future, when we look to see what Europe is doing. I think that that is completely sensible, as we cannot ignore the rest of the world and I am sure that, by the time we get to the budget period circumstances will change—they are entirely unpredictable now and we will need to look at the viability of the budget then. However, at the moment the policy is in that way.
I agree with my noble friend Lord Reay that carbon credits are wrong—but probably for completely different reasons—because they allow an out that we should not be able to have. I think that it is wrong that, with the agreement of the Committee on Climate Change, we should allow credits forwards and backwards under the EU Emissions Trading Scheme in terms of our accounting—even though that clearly happens in terms of a commercial reality, which I welcome. What that means is that, for about 40 to 50 per cent of our emissions, which are under the EU Emissions Trading Scheme, even if our greenhouse-gas intensive industries perform better than budgeted the UK does not get any benefit because we count that as exported credits and we still end up with the same amount, which means that all the pressure comes back on the rest of the sector. That is the only area where there is a real problem with carbon budgets as currently proposed.
My final point is that, although it is not mentioned in the Committee on Climate Change report, the committee has some sympathy with measuring our carbon footprint in terms of consumption as well as carbon production and the standard way that the Kyoto protocol looks at the carbon footprint for each nation. I would like to think that we would start to have carbon budgets, or at least carbon measurement, in terms of carbon consumption, where embedded carbon is taken into consideration, as well as the traditional way.
I congratulate the Government on their courage and good sense in agreeing to the fourth carbon budget. There is a very big task to be undertaken, on which we are providing leadership. We can have pride in that, but we desperately need to bring the rest of the world along with us and that, I agree, is not an easy proposition.
Lord Turnbull
My Lords, there is a strong danger of shooting the messenger here. One cannot criticise the Minister for bringing forward these orders at this time. They are mandated by the Climate Change Act 2008. Equally, one cannot expect the Government to do other than accept the bulk of the advice from the Committee on Climate Change since, otherwise, what would be the point of having it? However, we should not simply wade through these orders—I certainly do not want to—without registering the increasing concern in this House and outside about people becoming profoundly disillusioned by the whole framework created by the Climate Change Act.
The Duke of Montrose
My Lords, I am very interested to follow the noble Lord, Lord Turnbull. He talked about agnosticism and it seems that we are in the area of faith. The Americans believe “In God we trust”, as they say on their dollar, while here we are saying, “In certain elements of science, we either trust or we do not trust”.
I am grateful for the explanations offered in the notes and I was interested to see the estimate given of the cost that might be incurred by this fourth budget. It is stated as a least-cost path of £1.9 billion with a top figure of £7 billion, if we attempt to reach it purely through cutting emissions within the UK. I do not know whether this is of any comfort to the noble Baroness, Lady Worthington, but the 55 million tonnes that are mentioned in the Explanatory Note on the credit limit order—in a sort of back-of-the-envelope calculation, as far as I can see—are about 5 per cent of the total non-EU carbon credits that will be required. That is a pretty marginal effort.
However, that raises a question about the statement in the Explanatory Memorandum, which states that we are,
“currently working with EU partners to try to secure an EU 2020 reduction target of 30%”.
The noble Lord, Lord Turnbull, brought that up. I would be interested to know whether my noble friend the Minister could tell the House what stage that has reached. I hope he might accept that the marginal abatement cost goes up with each increase in the reduction target. Are there any figures of what they estimate this beefed-up target might incur? There is a question as to whether this credit limit on non-EU certified emission reductions includes any allowance to accommodate the revision in the EU target. As we said before, it is such a small element of the thing overall but it might have to be part of the review that has been mentioned.
Lord Prescott
My Lords, I shall make a brief intervention in view of the time. The noble Lord, Lord Turnbull, was in fact my Permanent Secretary at one stage and was the Cabinet Secretary when we established the lead on Kyoto and a legal framework. Clearly, he has done some rethinking on this matter since he joined this House and I look forward to further debates. Let us be clear, however: the previous Government established a lead, and we were proud of it. To be honest, this Government are continuing it. My main worry is: what if you do not achieve the legal framework that you are after? There is not a chance in hell of getting a legal framework. I am one of those who have advocated it, but China will not have it and the Americans cannot deliver it. Quite honestly, you might think that the Europeans are going to go to 30 per cent from 20, but I predict that is highly unlikely.
What worries me about that is that it will feed all the pessimism of people who feel that this will be a failure and run costly to our industry, but we must maintain the momentum of the Kyoto principles. That is important, but we should recall that 2012 is the end of the Kyoto period. Is it going to continue with a legal framework? No, it cannot do that by 2012, or you will find that the Kyoto framework will fall—as the Americans would want—and there would be renegotiation. I hope that the Minister has a plan B here. If we are having plan As and plan Bs, one of them should be to recognise that we will not get a legal framework by 2012, yet the Kyoto principles should not fall.
There will be great division between the developed and the developing countries. It is already on the cards that way so if that is not going to be achieved, what will happen then in Europe? Many of those in the central European belt and coal areas will say that they are not going to go to 30 per cent. There is a great possibility that we will not now be able to deliver on the Europe promise, which with courage the Government have said they will do. They are now going for an 80 per cent project, which has little chance, frankly, of being achieved, but then most of us will not be around by then to say whether we were right or wrong. There is a certain amount of posturing going on around this, which can undermine the momentum we have with the Kyoto principles.
I think I said this when there were Questions in the House: I fear we will then step back and say that we were the ones who led the way, but if we cannot get the others to follow, then blame them not us. There should be a plan B. We should already be thinking about how we carry on beyond that period. It is not unusual for Europe to stop the clock: it did it all through negotiations and continues to do it. It sets a timetable. Let me suggest that in plan B we go beyond 2012, perhaps to 2015. The voluntary framework agreed in Cancun and now being discussed in Durban is difficult enough to implement in all its many manifestations and we have to make sure that we have another plan in mind or it will collapse.
My fear is that we will get up and say that we were the ones who were leading, but we have got no army and nobody is following us. Then everybody will say that Kyoto 2 has failed; that you cannot get an agreement and that will damage the momentum to deal with the problem of climate change. In conclusion, I ask the Minister whether we have got a plan B. The Minister has already said that if we do not get Europe with us on 30 per cent we will reconsider the position. Is that right? We could still continue the legislative framework, if that is what we choose, while most of the world stays on a voluntary one. Have we alternatives so that we do not damage the possibility of a Kyoto 2?
Lord Grantchester
I thank the Minister for his introduction today to these two orders. It builds on the fourth carbon budget statement on 17 May. It is important that the objective to reduce emissions of greenhouse gases by 80 per cent of 1990 levels by 2050 has been enshrined in legislation. It underlines the commitment shared across the political divide—excepting the noble Lord, Lord Reay, and others I admit—over the long-term approach required to combat the effects of climate change. It sends a clear signal to the international community that the UK is committed to the low-carbon economy.
The noble Lord, Lord Teverson, has put forward a strong case that climate change is happening and I know many are frustrated at the low level of action by other governments. It is important that we also recognise the work of the Committee on Climate Change, that it is a crucial part of the assessment of the latest climate science, the evolving international framework and the critical pathways required. I pay tribute to it for its expert advice to Government.
That is not to say that these orders are not controversial. Indeed, the Minister may recognise that the importance of the imperative to make early progress across Government required the intervention of the Prime Minister. It has also not gone unnoticed that for the first time the CCC’s recommendations have not been accepted in full. While it is recognised that the first three carbon budgets were set after the EU had already agreed the 2020 target, the fourth carbon budget is being set in advance of any EU decisions and without any overarching EU framework being in place. In the light of this, will the Minister outline the reasons behind the justification to reject the tightening of emission targets in the second and third carbon budgets covering the years 2013 to 2022?
I enjoyed and look forward to the contributions in your Lordships’ House from my noble friend Lady Worthington. She brings great knowledge on these issues. She has asked the Minister about the size of the carbon offsets under the second order that were are debating today and the signal it may give. While it is understood that the Minister would like to have these credits as a fallback position, is he able to say why he fears these may be necessary, bearing in mind that the CCC recommended that they should not be relied upon and the budget should be met through reduced emissions?
Lord Marland
My Lords, I offer my appreciation for the contributions of those who have spoken on these orders, even though I do not necessarily agree with all of them. At one point my noble friend Lord Reay was a soothsayer but at another point a prophet of doom. He was very emphatic that there is no global warming, that the Green Deal is unattractive to the consumer and that the CCS is a rash punt. We shall see what happens. I do not agree with him and I am very happy that in the cities I have visited recently there is serious intent to take up the Green Deal. It will be of great value. I do not agree that it is unattractive to the consumer.
I pick up on a very good point made by the noble Lord, Lord Teverson. He always makes good points on these matters, although I was disappointed that he did not agree with everything I said, which does not go down too well. He said that it is all about demand management. The Green Deal will produce more effective demand management and will, we hope, be a way of reducing the amount of energy we use.
I congratulate the noble Baroness, Lady Worthington, on her first contribution on this subject. I am extremely wary of engaging with someone of such great knowledge but I welcome her to the debate. She made the point that we are the world leaders in this legislation due to her efforts and those of the noble Lord, Lord Prescott. I was about to call him my noble friend, given some of the nice things that he said. The noble Baroness made the point that at times we have ignored the advice of the Committee on Climate Change. Believe it or not, the Government do not always do what everyone tells them. We get advice and then determine whether it is applicable to the world that we live in. We must be seen as a pragmatic Government, and pragmatic is what we fully intend to be. That does not mean that we will not show leadership on this subject. Putting down the marker of a 30 per cent reduction in carbon to Europe shows genuine leadership and that we are moving forward while other countries in Europe are moving backwards. However, as the noble Lord, Lord Turnbull, said, we cannot walk out of tune with Europe. We have to exist within Europe and we are bound by European legislation, as the noble Lord, Lord Prescott, knows because he was very much part of it at the time.
We are on target for our credits. Having those credits is only a contingency. The noble Duke, the Duke of Montrose, was close; it is a 3 per cent, rather than a 5 per cent, contingency. There are great brains behind me, calculating every word I say. It is only a 3 per cent contingency, so it is not very large. We are committed to reviewing it in 2014. It is right that we should review these things. It is not right for us to commit this country to long-term things when we live in a fast-changing world.
The noble Lord, Lord Turnbull, was, I suggest, slightly sceptical about what we are embarking on. He looks at these things wearing a Treasury hat. My goodness, in government we quake at the thought of the Treasury hat. It is based on pragmatic and often cynical views on some of our inspirational plans. However, we recognise that the noble Lord comes from a pragmatic position and welcome his views. However, he would not deny that in government one has to show leadership. That is the way the previous Government and the current Government have determined the course and we intend to show leadership. I would take issue with him on the subject of green jobs or investment. We have to invest, as the noble Lord, Lord Teverson said, £10 billion in the infrastructure of this economy—not just low-carbon economy, but the economy. With investment—and even the Treasury and great officials from the Treasury would admit this—generally comes jobs.
I was surprised that the noble Lord, Lord Prescott, who has more experience in this field than I have in my little finger, asked about consideration. As he well knows, the Climate Change Act allows us to reconsider our position. It was actually set in stone by the previous Government. We are saying only what was laid down in the Act—that we do intend to reconsider our position.
The noble Lord, Lord Grantchester, quite rightly invited us to comment on whether the EU ETS trading platform is fit for purpose. We know that in certain parts of Europe the platforms were not right. We have shown leadership in this area because we have a robust platform—that does not mean we are being complacent—which must be tightened up but can show leadership to Europe of how this platform should operate. The noble Lord asked me a number of questions about ROCs and other things which, with all due respect, I will not debate now because I do not think them relevant to these orders. I also know that noble Lords are looking forward to a drink and something to eat so we will get on. However, the fundamental point he makes and wants me to answer is on the energy-intensive industries. We cannot just ignore them. As he rightly says, we have to work in co-operation with them and show them the pathway to improving their business. However, in the mean time, we must not destroy them because we are looking at very substantial employers who, for many years, have been the backbone of the country. We need to work with them. We must also recognise the role of the consumer and that everything we do is for the consumer’s benefit. With that, my Lords, I commend these orders to the House.
Lord Moynihan
Before the Minister sits down, I wish to pursue the point made by the noble Lord, Lord Prescott, in recognition of the Climate Change Act. In the Explanatory Memorandum, it states that Government must, in making decisions on carbon budgets, take into account the estimated reportable emissions from international aviation and shipping emissions. It further states that international aviation and shipping are not currently included in the scope of carbon budgets but they may be included in the future. I wonder whether my noble friend the Minister could give the House his wisdom and say when the Government intend that to happen, if at all.
Lord Marland
I have just been told by my noble friend that if I pan this answer out for another two minutes, we will not have to adjourn during pleasure for another two minutes. I will try my best but the noble Lord has asked such a very straightforward question. The straight answer is 2012. I am sorry but I cannot carry this answer forward.
Lord Turnbull
Perhaps I may help out the noble Lord by responding to a comment from the noble Lord, Lord Prescott, my Secretary of State for a year in 1998. It was a wonderful experience working for him. He asked “What has changed?”. I think it was Keynes who said, “When the facts change, I change my mind. What do you do?” The temperature in 1998 was probably the peak. Since then, contrary to what the noble Lord, Lord Teverson, said, there has been no rise in the temperature. If you go into the HadCRUT 3 series and go into that little bit called global, you will get the deviation from the baseline month by month, and the yearly average. In fact, 2011 was probably, in the 13 years since 1998, the second or third coldest and the first four months have been just as cold. That is the principal evidence that has caused me to change my mind.
Lord Marland
It is wonderful to hear such harmony and I am very grateful for this scientific question. I think we are now down to half a minute. What was the question that the noble Lord, Lord Moynihan, asked?
Lord Moynihan
My noble friend the Minister gave an extraordinarily perceptive and astute answer to my question. In the context of that answer, it is important that it enables the Minister to state clearly whether that decision will enable us to be consistent with a pathway to the 2050 target set out in the Act.
Lord Marland
The short answer is that we will be reviewing this in 2012. I want to thank noble Lords for this very entertaining and engaging debate. It has been a real pleasure and privilege being present tonight. Shall we go to the other place?
Climate Change Act 2008 (Credit Limit) Order 2011
Lord Marland
That the draft order laid before the House on 7 June be approved.
Localism Bill
(12 years, 10 months ago)
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Lord McKenzie of Luton
Lord McKenzie of Luton
My Lords, I shall also speak to the other two amendments in the group. These are probing amendments, at this stage. We are on record as supporting the thrust of these provisions. They would allow local authorities complete discretion to offer business rate discounts to other hereditaments of their choosing, in particular to support businesses. However, the cost of these discounts will be met, one way or another, by the local authority. Under existing arrangements, the local authority can provide discretionary rate relief in a number of restricted circumstances—for example, by topping up the 80 per cent mandatory relief given to charities and providing 100 per cent relief to other non-profit-making bodies. The cost of existing discretionary rate relief is shared between the local authority and central government.
My first question to the Minister is: whether or not a local authority uses the opportunity to offer discretionary relief, will the cost of ongoing relief to existing types of hereditaments be shared on the same basis as now—partly by central government and partly by the local authority? Is there any change to that regime? Clearly, there will be little appetite for any new discretion, given that the costs will in effect have to fall on council tax payers, with referendums constraining council tax increases.
This leads to our first amendment. The relief can be granted when the billing authority is satisfied that it is reasonable to do so, having regard to the interests of persons liable to pay council tax set by the authority. However, we know that the Government are considering localisation of the business rate, which was discussed in the amendment we considered before the dinner break, and that a resource review is under way. If another potential source of income were to come about, with another group of peoples’ interests to consider, would that be one of the factors to be taken into account, or are the Government saying that those people can be ignored for these purposes?
The second amendment seeks only clarification—although I accept that it relates to a pre-existing form of words—of what is included in the definition of “fine arts”. This is relevant for the purposes of identifying who is eligible for discretionary relief. In the Bill, non-profit-making bodies include:
“each of whose main objects are charitable or are otherwise philanthropic or religious or concerned with education, social welfare, science, literature or the fine arts”.
Having read that, I was genuinely unclear as to the dividing line between fine arts and other arts. The House of Lords Library helped a little and referred me to Stroud’s Judicial Dictionary of Words and Phrases. It refers to a judge, who said at one stage:
“I am prepared to accept the wider meaning assigned to the ‘fine arts’ in the definitions and to treat them as including, for example, poetry, eloquence and music, as well as such ‘arts of design’ as painting, sculpture and architecture. We are indeed bound for the present purposes to include music amongst them. It is possible that dramatic art should also be included”.
However, can the Minister help with perhaps a more contemporary definition? I am aware that his noble friend Lord Taylor has a very keen and current interest in carnival arts, for example. Would that be included? This might seem a somewhat frivolous point, but there is a real issue about why the word “fine” is attached to the arts here. Perhaps the Minister can help me on that.
Our third amendment just deletes the Secretary of State’s powers to issue guidance. Surely this is about local discretion, and local authorities can make up their own minds about how they go about it. However, if the noble Lord seeks to defend the inclusion of that provision, perhaps he might elaborate on the type of issues that would be encompassed by the guidance.
These amendments do not seek to undermine the thrust of the clause. There are issues about how valuable discretionary rate relief might be. There is some evidence that landlords eventually factor the reduced rates into increased rents. There are some issues about authorities undercutting each other; indeed, the result of that can reinforce the inequality of resources that exists at the moment, making those worse, although lower business rates can lower the entry barrier for certain businesses. This is important at the current time because reports, for example in Sunday newspapers and earlier this week, about the challenges that high streets face are very real.
Action on rents may be needed as well as action on business rates. I note the concerns of the right reverend Prelate the Bishop of Exeter, who is going to speak on this issue in a moment. I presume that those concerns are focused on the fact that the wider discretion is allowed and whether that will undermine the support given to existing recipients of the benefit. However, I do think that we have to allow discretion to local authorities in the hope that they will do the right thing but also balance the issue of benefits in the medium and longer term, perhaps forgoing some revenues in the short term. Having explained the thrust of these probing amendments, I look forward with interest to the noble Lord’s reply, particularly to his definition of “fine arts”.
The Lord Bishop of Birmingham
My Lords, it might help to progress the debate if I admit that I am speaking on behalf of my right reverend friend the Bishop of Exeter and that I fly under the flag of Birmingham, although I share a Scottish name with the noble Lord opposite.
My right reverend friend the Bishop of Exeter gave notice of his intention to oppose the question that Clause 39 stand part in order to seek an assurance from the Minister on the future of discretionary relief for charities from non-domestic rates. I probe, from these Benches, the Government’s intention in this area.
Currently, under the terms of the Local Government Finance Act 1988, buildings used by charities qualify for a mandatory 80 per cent discount on their non-domestic rates. In addition, as already mentioned, local authorities have discretion to waive some or all of the remaining 20 per cent. Clause 39 deals with the exercise of that discretion. The clause appears to be largely a simplification measure. It removes a series of detailed conditions that must currently be applied when deciding whether to grant discretionary relief. In effect, it appears to replace those detailed conditions with a simple “yes” or “no” exercise of discretion by the billing authority. However, under the terms of new subsection (5A),
“the billing authority may make the decision only if it is satisfied that it would be reasonable for it to do so, having regard to the interests of persons liable to pay council tax set by it”.
We all know that local authorities are currently under severe financial constraints and I am aware of fear among some in the charity sector—here, I declare an interest in several charities with which I am associated as a trustee, president or patron, but hope that noble Lords will excuse me from listing them all now—that the discretionary relief is under threat because cash-strapped councils are looking to make any possible savings that they can. The change proposed in Clause 39 might of course be totally innocuous, but what worries charities is that it might be the green light to cease granting discretionary relief. What does the phrase,
“only if it is satisfied that it would be reasonable for it to do so”,
mean in this situation? Is this what might be called the traditional Wednesbury “reasonable” from 1947 or is it a milder test? My question is very simple: do Ministers expect councils to continue giving discretionary relief or are the Government trying to make it easier for councils to refuse such requests? If the DCLG is trying to make it easier for councils not to give the 20 per cent discretionary relief, how does that square with the big society agenda? Looking to the future, how secure is the 80 per cent mandatory relief?
I very much hope that the Minister can reassure us on both the general intention of this clause and the precise meaning of the words to which I have referred.
Lord Cameron of Dillington
My Lords, I support the right reverend Prelate in his intention to oppose the clause standing part. In so doing, as this is the first occasion on which I have spoken in this Committee stage, I declare all my interests as a landowner and farmer and, in this instance, as chairman of the Charities’ Property Association, whose membership includes many charities that either have property as part of their core business as a charity or own property as part of a wider portfolio. I have been asked by my members to probe the Government’s intentions here and, without repeating what the right reverend Prelate has said, I hope that we get some encouraging words from the Minister.
Lord True
My Lords, I intervene briefly from the perspective of a local authority. I think that most local authorities would have enormous sympathy with what the right reverend Prelate has just said. I am generally very suspicious of definitional creep. I do not think that the charity world has necessarily been helped by the major attempt to redefine a charity after doing away with the great simplicity and proven law of the Elizabethan statute. Therefore, I hope that we are not going to move down another definitional road.
I would not want to see local authorities not being able to have constructive dialogue with charitable organisations, because I think that discretionary relief is extremely important. On the other hand, sometimes premises are certainly not used as efficiently as they might be. It might be for the general good if two or three charities shared offices that might be improved, and I would not want to see that kind of exploration forbidden. Therefore, I, too, should like to hear from my noble friend, but I certainly feel that this is a provision that local authorities would like to stay long in law.
I could speak for a long time on the subject of the fine arts but I do not think that I will. The noble Lord, Lord McKenzie, referred to eloquence and I wondered whether his much admired contributions to these debates meant that debating was a fine art as well. If so, he should be part of it.
Lord Shutt of Greetland
My Lords, I thank the noble Lords who have contributed to this debate. It might be easier if I start with the right reverend Prelate the Bishop of Birmingham on the whole business of relief. The message is that there is to be no change in relief for charities. Whether it is mandatory or discretionary, the answer is, “No change”. There is no element of change in this provision. To me, the words that the right reverend Prelate is concerned about are a bit convoluted, but that convolution is because of the business rate element. For charities, however, I repeat that there is no change.
I return to the three amendments. Amendment 118A would require an authority to have regard to the interests of business rate payers as well as council tax payers. When the noble Lord, Lord McKenzie, spoke to the amendment, he was looking at contingent events rather than where we stand now. The words,
“only if it is satisfied that it would be reasonable”,
are included because the local authority that wanted to assist a business rate payer would have to realise that the council tax payer would in effect be funding it. The Bill is saying that a local authority has to be certain that it is reasonable, bearing in mind who will carry the burden.
Lord McKenzie of Luton
Just so that we can tick off this item as we go along, my amendment to include the business rate would still be qualified by “set by it”. It would not cover NNDR, which are set nationally by the national multiplier, and would come into effect only if circumstances arose in which there was local discretion on the business rate. Just as council tax is set by it the business rate would be set by it. My amendment sought to include those circumstances and the interests that had to be considered when applying discretionary relief. It was not meant to include NNDR as currently constituted.
Lord Shutt of Greetland
I understand that this is in order that the national business rate can be relieved by local government saying, “This is a bill that you don’t have to pay or that can be reduced”.
Lord McKenzie of Luton
I am sorry. I promise not to interrupt the noble Lord again, well maybe no more than once. I accept that what are being relieved by this provision are NNDR—the business rates—but the clause requires that when making judgments about discretionary relief there must be,
“regard to the interests of persons liable to pay council tax”.
Currently, they are the people who bear the cost of the discretionary relief. Should not the Government localise the business rate so that it is set locally in the future, it is another source of income set by the billing authority, and the interests of the persons involved in that are reasonably taken into account?
Lord Shutt of Greetland
My Lords, that may well be the case, but that is for another day. This clause makes it clear that the council tax payer in effect foots the bill, and it is for the local authority to say, “Look, be careful, the council tax payer is going to have to suffer this. Are you certain you are doing the right thing?”.
On Amendment 118B, I, too, have been having trouble with the definition of “fine arts”. All I know is that the “fine” is not the same “fine” that my noble friend Lord Attlee was having difficulty with. It is a different use of the word. The best thing to do is to go back to the Local Government Finance Act 1988. I have it here because I dug it out. The first thing I thought about 1988 was that it was the year after 1987. Actually I am thinking of 1997 and the previous Government, but it was a long time ago. That Act refers to premises,
“whose main objects are charitable”—
which in itself covers many arts organisations—
“or are otherwise philanthropic”—
which may also well cover arts organisations—
“or religious”—
which may also cover arts organisations. It then says,
“or concerned with education, social welfare, science, literature or the fine arts”.
We are exactly where we were before. The Bill does nothing to disturb, in a positive or a negative way, what can be done so that charitable, et cetera, bodies do not have to pay the full rates. I think that is a fair position. Others may well still have to consider the precise recognition of a fine art that does not happen to be charitable or philanthropic, or indeed whether it is an art that does not happen to be charitable or philanthropic, but many people will find a way of discovering that they are charitable or philanthropic. There is no reason why a local authority could not give grant relief to any arts organisation, provided that it considers the interests of council tax payers and fund the relief itself.
Under Amendment 118C, there would be no statutory duty on authorities to have regard to any guidance. If the Secretary of State chooses to issue guidance, it is likely to be largely administrative in nature, covering such matters as state aid issues and the relationship between billing authorities and precepting authorities. Such guidance may well be welcomed. Of course, authorities would only have to have regard to the guidance; they would still be able to grant relief in accordance with the law as they see fit.
I hope that I have responded to those three amendments and, indeed, the major matter of the integrity of the position on rate relief that remains for all sorts of charitable and other bodies. Therefore, I trust that the noble Lord will be able to withdraw his amendments and, indeed, that we will be able to stick to this clause.
Lord McKenzie of Luton
I am very grateful to the Minister for his full explanation and for dealing with these points. In particular, he reassured me and, I am sure, other noble Lords—I apologise to the right reverend Prelate the Bishop of Birmingham for referring to him as the Bishop of Exeter—that there is no change to the existing system of mandatory relief and sharing costs for the current categories of relief that are shared between government and the local authority. That is a very important thing to have on the record. I do not think, with respect, that the noble Lord has fully dealt with the point—although I do not propose to pursue it further—about having to include the prospect in the future, because if we had a local business rate, then, in a sense, they are excluded from these provisions and I am not sure that that is very wise.
I accept that the term “fine arts” is not new—it has been used before—but I would hate that definition to exclude circumstances that, in the modern era, with the development of arts over the years, was not necessarily thought of when these definitions were established. However, I do not think that this is the most important matter that we are going to debate in the Bill. I very much take his point about guidance. He reminded us, of course, about the issues of state aid: that discretionary relief could amount to state aid. It is for individual local authorities to work their way through that treacle, that minefield. That could, in itself, be quite a significant deterrent, but I can see that local authorities would welcome some guidance and help from central government. I beg leave to withdraw the amendment
The Lord Bishop of Birmingham
My Lords, I am grateful for the Minister’s categorical, firm and straightforward support for charities in this connection and do not wish to test the mind of the House at this moment, although, considering the possible changes in the sources of funding, discretionary funding or mandatory funding relief in the future, we may want to come back to this on Report.
Lord McKenzie of Luton
“( ) A billing authority in England must promote the opportunities provided by small business rate relief.”
Lord McKenzie of Luton
The thrust of Clause 40 is to automate the small business multiplier to improve uptake of the small business rate relief. We support this, but there are two components of the relief. Fundamentally, it is obtained by a small business multiplier—essentially the rate of tax—which is applied to the rateable value of a property, but, additionally, properties with rateable values of less than £6,000 are entitled to a further 50 per cent relief, with properties between £6,000 and £12,000 getting tapered relief. Currently, before the change proposed in the clause, the benefit of the multiplier and the further relief depend generally on a business occupying only one property as well as falling within the rateable value thresholds. In addition, a business has to make an application to that effect.
To make eligibility more automatic, the provisions of Clause 40 do away with the requirement for a business to make an application, and for the purpose of the small business multiplier, it is no longer necessary for a business to occupy just one property. However, for the further discounts to apply, it is necessary for the business to occupy just one property. Clearly, this latter component cannot be delivered automatically, and our amendment seeks to address this quite narrow and particular point. There is no formal requirement to make an application and, according to the impact assessment, it is left to each authority to determine how it goes about identifying those who are eligible. In essence, we consider that there should be an ongoing obligation for billing authorities to promote the small business rate relief. Noble Lords will be aware that the amendment has the backing of the FSB. Authorities will be helped in this by having on record prior applications concerning eligibility based upon single property occupancy. Noble Lords will be aware that the benefit of the relief is met by increasing the multiplier on other properties, so it is not met by government, but by other occupiers of hereditaments. I trust the Minister will be able to support this modest amendment. It is not a cost to government.
I shall close with two questions. Removing the requirement for single occupancy for the small business rate multiplier will lead to large as well as small businesses being able to benefit. Before, single property occupancy was equated with a small business, but now you can occupy lots of low rateable value property and still benefit from the relief. Have the Government made any estimate of the additional cost associated with large businesses now being able to access the benefit of this relief? Is single occupancy judged on an individual company basis, or are there rules which require matters to be dealt with on a group basis? I shall be grateful if the Minister is able to deal with those points. I beg to move.
Lord Shutt of Greetland
I thank the noble Lord for moving this amendment. Authorities are already under a statutory duty to provide information about small business rate relief with bills every year, and last year, we also requested authorities to write to all ratepayers with rateable values below £12,000 to remind them that they may be eligible for the relief. Take-up of the relief is already high, and the changes we are making will be able to push it even higher.
This amendment would therefore just place another unnecessary duty on authorities, which is something to which this Government are strongly opposed, and it would be one which central government would have to fund, so I cannot agree the amendment as such.
Lord McKenzie of Luton
My Lords, I am grateful to the Minister for that response. It would be helpful if he could write with some of the numbers so we have some clarity on the record. If some regulations are coming through shortly perhaps we will have another time to dip into this. I do not know whether they are affirmative or negative but one way or another we will try to get a debate around them.
I simply do not follow the point about imposing an extra burden on local authorities. If they are promoting the small business rate relief at the moment, having a provision in the Bill that requires them to do it does not seem to be an extra burden, but that is a matter for another debate. I beg leave to withdraw the amendment.
“( ) The chargeable day must not fall outside the period 1 April 2005 to 31 March 2010.”
Lord Tope
My Lords, Amendment 118E is fairly clear and straightforward. In view of the time and in order to make progress and get on to the next part of the Bill, I will move this amendment formally so that the Minister can reply and we can have the reply on the record. I beg to move.
Lord Shutt of Greetland
My Lords, from day one, the Government have been committed to providing meaningful help to businesses hit by certain backdated rates bills, such as some businesses in ports. Despite the financial situation that we inherited, we have honoured our commitment to find a permanent solution to the problem and safeguard jobs and businesses. We are taking the necessary powers through Clause 41 of the Localism Bill to cancel these bills.
I welcome the spirit behind the amendment, which aims to clarify that only backdated rates liabilities between 1 April 2005 and 31 March 2010 can be cancelled. However, the current draft achieves this by limiting the cancellation to the 2005 rating list which applies only to chargeable days between 1 April 2005 and 31 March 2010, as the new 2010 list would apply from 1 April 2010. The draft regulations are clear that only an alteration to the rating list that occurred on or before 31 March 2010 can qualify for the cancellation. The amendment is not needed. New Section 49A(2)(a), as inserted by Clause 41, limits the cancellation policy to properties entered in the 2005 rating list, so the current draft already achieves the aim of the proposed amendment. I trust that this will be sufficient for the noble Lord to be able to withdraw the amendment.
Lord McKenzie of Luton
Does the noble Lord have a figure for the extent to which those who are getting the benefit of the removal of the imposition of backdating under the eight-year agreement have already discharged in whole or in part their obligations?
Lord Shutt of Greetland
My Lords, I have several papers here but that figure is not within them. I imagine this was raised when we discussed this a year or two back. However, I will write to the noble Lord and see that a copy of the letter is placed in the Library.
Lord True
My Lords, I rise to speak to Amendments 119, 120 and technical Amendment 121 in my name. I also support Amendments 123, 124,125,126 and 129 in the name of my noble friend Lord Cathcart. This is an exploratory group to whose question other noble Lords have come forward with other potential solutions, but it goes to the heart of a critical question relating to the purpose and the workability of this Bill. Accepting that there may be a right of referendum by the people to a local council, and I made clear at Second Reading that I see a case for that, I am asking what the appropriate triggers for a referendum are and how we restrain potential mischievous use of the power and the risk of escalating costs? I freely admit that the solutions that we are offering may not be the right ones. In terms of the numbers concerned, other noble Lords have tabled amendments, and the amendments tabled by my noble friend Lady Hanham in the following group raise interesting questions and may well offer some answers from the Front Bench.
I do not think that the Bill, as currently drafted, has set the threshold high enough to trigger a referendum in any local authority in this country. Authors of the Bill perhaps underrated also the political difficulty of refusing a request for a referendum. Although the power is given to do so, it is not necessarily that easy a power to exercise, particularly as an election approaches, even in the case of those types of proposals described in Clause 47(6) as “vexatious”, which in itself is a dangerously justiciable word. The reality is that, in practice, if a referendum is requested, the local authority lies under a legal duty to hold it under the original Bill unless it can find cause for exception. As I have just said, it would be quite difficult for some referendums to be refused. My Amendment 119 builds the presumption of discretion in if we are to retain in the Bill thresholds as low as they are now set, and I note that the Government appear to be moving in that direction in relation to special petitions. I should say that 5 per cent might be 300 or so voters in an urban ward, or perhaps a few dozen in a rural community, but these figures are not very hard to make with a minimum of political organisation. Some of these proposals benefit political organisations more than they may members of the public. I suggest that as a potential compromise a local authority should have discretion on whether to hold a referendum on a petition at that low level. I feel that the Government may be moving in our direction.
There are many other ways to respond to a petition from the public, which need not be put in legislation or regulation but often could be dealt with, and indeed are dealt with, under a local authority’s standing orders. A local authority might simply do what the petitioners ask, at least in some modified form. That was how this Parliament came into being: the Commons came to Westminster, or to wherever the Parliament was meeting, to petition the Crown and noble Lords to hear their complaints on particular subjects. Very often, the Crown readily responded without a referendum. In the end, it saddled itself with the other place, but that perhaps is a subject we should not go into.
It might have a debate in council, which would be a perfectly reasonable way to respond. It might hold public meetings to explore the purpose of a petition. It might set up a process of consultation. All these might get to the desired end quicker than a referendum and sometimes in a far less divisive way than in circumstances, say, which one can readily envisage, where in an urban area 300 people wanted a controlled parking zone introduced or perhaps removed and a couple of hundred others were implacably opposed. One can see the whole formal process of the referendum ending in dividing rather than uniting a community.
However, I recognise the Government’s wish, which I support, to make some petitions inescapable. We therefore suggested in these amendments that the referendum should be mandatory, subject to Clauses 46 and 47, if 20 per cent of the electors in an area ask for it. The noble Lord, Lord Beecham, has suggested a figure of 10 per cent. I believe that the noble Lord, Lord Greaves, with that plebiscitary fervour of the Liberal Democrats, has suggested that 25 per cent might be the threshold. I certainly would not want to come between the noble Lords, Lord Beecham and Lord Greaves. Certainly, 20 per cent might not be the right figure but it is a figure that we offer.
The reality is that well above that level of electors participated in a recent contested referendum in my authority, so I do not think that 20 per cent is an impossible figure to reach. But I equally accept that it may well be too high and we in this Chamber would want to hear arguments for other figures set down in other amendments and other proposals, including interesting ones from my noble friend which we will consider later.
The purpose of laying these amendments originally was to enable your Lordships to consider in Committee another way of approaching the difficult question of the trigger. I will get out of the way to allow your Lordships to do that shortly. I certainly do not want to anticipate the speech of my noble friend Lord Cathcart but I would, from a local authority standpoint, like to draw your Lordships’ attention to the potential difficulties of Clause 42(3), taken with Clause 45. As I read it, this means that in a typical three-member ward in a politically split urban area, two members from a minority party might be able to provoke a referendum without any significant local support and with no particular effort to collect signatures. I might have found that power rather tempting in the past in opposition but I am sure that I would have resisted the temptation.
This provision is very open to political exploitation with members seeking referendums that they do not really want, perhaps just to make a political point or even one that has salience outside their own ward by challenging the local authority to refuse a referendum. I do not think that that is a wise, helpful or even very localist provision. My noble friend Lord Cathcart suggests that such a proposal would have to be supported by at least 5 per cent of the electors in an area. Without going over the issue of the appropriate level again—I hope that my noble friend will forgive me for anticipating that important amendment, which I support —that additional trigger would avoid short-term political exploitation. I beg to move.
Earl Cathcart
My Lords, my noble friend Lord True has ably spoken in those amendments where he is the lead name, and he has also talked to some of mine. I will not go over the ground of his amendments again. I would like to discuss those amendments where my name appears as the lead name.
At Second Reading, I, too, questioned whether 5 per cent was too low a threshold. I believe that 5 per cent is far too low, and would give rise to a plethora of referenda. Five per cent for a referendum for a whole district, or a whole London borough, might seem reasonable. With an electorate of somewhere over 100,000 people, 5,000 or 6,000 signatures might seem like quite a lot to get. But look at electoral areas that are smaller than those. The electorate for a market town might be between 15,000 and 20,000, so between 750 and 1,000 signatures would be required. Far more likely, a petition would come from a single ward, within the town, or London borough, requiring signatures from only about 350 electors.
It will not be difficult to get signatures. “Let’s put it to the vote—sign here—it’s democracy at work, and anyway, it’s not going to cost you anything, because the council will pay”. If you go further down the chain to parishes—they are, after all, a single electoral area—many villages in Norfolk have only a few hundred electors, so that a village of 300 electors would require just 15 signatures to request a referendum. Even more ridiculous would be my parish, which has just over 50 electors, so that just three people could request a referendum.
Amendment 123 raises the percentage to 20 per cent. I see that there are amendments in this group that increase the threshold to 10 per cent and 25 per cent, and I will be interested to hear those noble Lords’ arguments. The Government should consider raising the bar; otherwise, there will be a plethora of referenda, at huge cost to local authorities.
Amendment 124 increases the threshold to 20 per cent, but only to 15 per cent where the number of electors is above 10,000. The idea is that we want the Government to consider different thresholds for different numbers of electorate, so that the larger the electorate the lower the threshold needs to be. At Second Reading I gave the example of the recent referendum in West Norfolk, over a proposed incinerator near King’s Lynn. That cost the council £80,000. I believe that referenda will certainly be called on all the contentious issues, and where the size of the electorate is relatively small, on nearly all the other issues—and why not? Let democracy prevail. This will cost councils an arm and a leg, at a time when they can least afford it.
That brings me on to Amendment 129, which allows the local authority to recover the cost of the referenda from the electorate in which they are held. Note that we use the word “may”, which leaves it optional for local authorities. It would be relatively easy for a local authority to recover costs by putting the cost on each parish or ward precept for the following year.
The last two amendments—Amendments 125 and 126—relate to the idea in the Bill that every councillor can request a referendum. This may be unwise without some brake. If you are a councillor in a minority group, this is manna from heaven. Imagine what fun you could have. After all, although you can be heard at council meetings, no one listens to you, you are always outvoted and the local press never report what you say. What better way to raise your profile, ensure that you are reported in the press and irritate the ruling party than to call a referendum? To prevent any abuses and mischief, the amendments say that a councillor can call a referendum provided that the petition is supported by a small percentage of his or her electorate —we have put in 5 per cent.
I do not expect the Government to accept the amendments, but I would like them to consider the arguments. I would like them also to consider my belief that 90 per cent of referenda will be held on planning issues. I note that, later on, amendments to Clause 47 propose that we exclude planning issues. If the Government, having listened to the arguments, agree that we should exclude planning, then 5 per cent may be the right answer. But if they say that they will not exclude it, we must increase the threshold from 5 per cent.
Lord Rennard
My Lords, I should declare an interest as a recent vice-president of the Local Government Association. Perhaps I should also say that I am a member of your Lordships’ Select Committee on the Constitution. Therefore, I wish to consider this evening some issues of principle about when referendums are appropriate.
On 12 October last year, we debated the Select Committee’s report on the principle of referendums. I said that,
“the Select Committee was right to see significant drawbacks to the widespread use of referendums”.—[Official Report, 12/10/10; col. 428.]
The House expressed many reservations about holding referendums in a representative democracy.
Many noble Lords who spoke in that debate quoted powerful evidence given to the Select Committee about the problems of referendums. They included: people potentially voting on issues different from those on the ballot paper, or voting for or against a Government rather than on a specific issue; problems with getting sufficient turnout for any result to be legitimate; problems with ensuring that both sides of an argument had sufficient resources to make their case; and problems with undue influence being exerted by dominant media groups or party machines.
The case against widespread use of referendums was made very strongly. My noble friend Lord McNally said that he had not found a committee report that had been so much respected by officials and Ministers. He said:
“This is not a report that has been put on the shelf and forgotten”.
My noble friend drew attention to the fact that in his official response to the report, Mr Mark Harper, on behalf of the Government, agreed that,
“referendums should be exceptional events”.—[Official Report, 12/10/10; col. 471.]
These were seen as being required only for major constitutional changes such as to abolish the monarchy, to leave the European Union, or for any of the nations of the UK to secede and so on.
The question must now be asked whether we should have similar concerns about local referendums. Should they become common or should they be rare? On what sort of issues should they be held, and how easily could they be triggered given all these potential problems? There seems at the very least to be a possibility of an allegation of double standards being made if national government are saying that their policy programme should be subject to a referendum only on major constitutional issues, but that all issues decided by locally elected representatives should potentially be subject to referendums, with all the problems that we know about of conducting referendums fairly.
No national Government have ever suggested, for example, that their powers of taxation be subject to a referendum. Many national controversies have been debated in this House, the other place and across the country without the suggestion that national government should resolve the issue by putting it to a referendum.
Since that debate last October we have also had experience of a national referendum. Many of those on the no side in that referendum campaign argued that a reason for voting no was simply the cost of holding the referendum, even though these costs were minimised by holding it at the same time as many other elections. Those who argued this case on the no side must now argue why local referendums should be conducted at the expense of council tax payers in addition to the cost of electing local councillors.
If such local referendums are to be held, then we should be much clearer about when they are appropriate than is outlined so far in this Bill. There must be substantial proven public demand for them locally. They should not simply be a device that either a local council or the Secretary of State can use to avoid the sort of considered judgment that should be taken by elected representatives and be subject to examination at election times.
There may be problems with some council administrations being unrepresentative of the areas that they serve. Some councils are effectively one-party states. The answer is to make those councils more representative—not to make each of their decisions potentially subject to a referendum.
Lord Greaves
My Lords, I am grateful to my noble friend for turning up in time so I did not have to deliver his speech, which he did far better than I would have done. I just want to add one or two things and speak to the specific amendments which my noble friend and I have put forward.
The noble Lord, Lord True, and the noble Earl, Lord Cathcart, spoke about how opposition parties and opposition councillors might well use referendums to promote their own interests. In my own local political career I can think of major issues where I would have had, in the words of the noble Lord, Lord True, a great deal of fun. We would have made useful political points but it would have cost people a lot of money and it would not have been the right way to do it.
What concerns me more than what opposition parties and opposition councillors might do is the way in which parties in control, or mayors or anyone else with the ability, might use referendums to manipulate the political and electoral process by launching referendums on populist issues to entrench their own local power. I am not suggesting that all such local leaders would ever do that but, without naming names, I can think of one or two around the country who might regard this as manna from heaven. You organise a referendum on a good populist issue or a bad populist issue to coincide with the year of your re-election and have it on the same day as your re-election to turn the referendum campaign into your election campaign and—Bob’s your uncle—you are probably back. As I understand the Bill, there will be no limits on referendum expenses so it would blow a huge hole in the rules for local election expenses.
People organising referendums—whether they are organising a petition for it or whether they are persons in power trying to use it for populist purposes—may be goodies. They may be doing it for benign purposes but they might not: they might be malign extremists movements or commercially motivated and commercially biased or politicians seeking re-election, as I just said. Whatever it is, there is a severe risk that they undermine the processes of representative democracy, which rely a great deal on proper procedures, democratic deliberation, debate and compromise and the role of the council as a mediator in the community—which I think the noble Lord, Lord McKenzie, was talking about last week.
You cannot compromise in a referendum. Everything is black and white; everything is yes or no. It polarises the community and, while it might be a lot of fun for people taking part in it, it simplifies what are often quite complex issues and runs the risk of undermining the whole process of liberal democracy in the local community. We are generally sceptical about the value of Chapter 1 of Part 4 of the Bill and if it is to remain, we believe it needs a much stricter tying-up so that the number of referendums which can take place are relatively few and are on appropriate subjects.
Lord Shipley
My Lords, I shall speak to Amendment 122 and briefly make the case for a 10 per cent trigger. There seems to be general agreement in your Lordships’ House that 5 per cent is too low. That is for two reasons. First, when you have an actual referendum—as opposed to simply a petition on an issue—you ought to have a clear demonstration that there is significant public support for the question. Secondly, referendums cost money and if there is going to be a substantial cost to holding the referendum, it is legitimate to expect that a higher threshold than 5 per cent is generated to merit the cost of holding the referendum.
Seeing this now from the perspective of those who are gathering the petition, is it reasonable, given that there could be a referendum, to ask people to collect more than 10 per cent of the relevant area? That would be quite hard to do. First, I believe that 10 per cent is a reasonable figure in all the circumstances. If it was 20 per cent and all the people signing it were in favour of the referendum question, a turnout of 40 per cent would mean that in effect the 20 per cent was almost a majority. Presumably some people would sign for a referendum even if they were unsure which way they might vote, but I think 10 per cent is a reasonable trigger.
Perhaps more importantly, it strikes me that if people can gather 10 per cent it is actually not that difficult for them to gather 20 per cent. You might just as well accept the fact that at 10 per cent the trigger has been achieved. That is my view and that of some other noble Lords.
The other method of triggering a referendum is through members, then a petition and potentially a percentage threshold. I do not understand why members are treated differently from the general public. We should have a single system and as a rule of thumb the best and most reasonable figure that I could think of is that 10 per cent would be publicly understood as a reasonable number in all the circumstances, whether or not members are involved.
Lord Beecham
My Lords, not for the first time Newcastle is united in connection with the amendment in the name of the noble Lord, Lord Shipley. A working figure of 10 per cent is probably about right. The figures suggested in some other amendments are on the high side; 25 per cent is more than half the average turnout in a council election. It is asking a lot to postulate a requirement for a petition to have as high a signature rate as that.
I tabled amendment in this group in relation to the areas from which a referendum might be called. The Bill provides for the whole authority or one or more electoral areas, provided they are contiguous within it. That sounds plausible, but if you take, for example, Birmingham, you have wards with an electorate of about 20,000. That argues a population of something like 30,000. It is in effect a small town. That is big enough to contain more than one discrete and substantial community. My amendment simply suggests that in addition to the two criteria laid down in terms of area in the Bill, there could be a further provision, namely,
“such area as may be determined by the authority”.
An authority could say: go and petition the area, we acknowledge it is not the whole of the ward, but we are prepared to accept a smaller area than an electoral division. It gives a degree of flexibility which I think might be reasonable. That is the effect of Amendment 120J.
I was interested to hear the observations of the noble Lord, Lord True, who was emphatically endorsing the principles of petitioning as an alternative to referendums. I wish he had been here to support me and the absent noble Lord, Lord Shipley, when I proposed this afternoon that the provision that would strike out the petition procedure should not be supported and that the provisions of the 2009 Act should continue to apply. Be that as it may, he is right to prefer petitions to referendums; they are undoubtedly better. I pay tribute to the noble Lord, Lord Rennard, for his analysis of the defects of referendums, taken at large, and his reference to the report of the Constitution Committee last year.
He and other noble Lords are right to point to some of the dangers that can arise and the mischief that can be made. In the next group of amendments, we shall come to the point about members of councils calling referendums. I agree with the noble Lord, Lord Shipley, about that and support his amendment. However, one can clearly see a variety of difficulties. For example, in my own ward there is currently a proposal for a historic building, which has been acquired by the Muslim community, to be made into a school and community centre. The BNP is already stirring up hostility to that proposal. It is not just a planning proposal; it is a proposal for a school and so on. The amendments on planning would cover the planning side but it goes beyond that. One can clearly see the difficulties that could arise from the referendum process, a public vote and so on.
I put another case: tomorrow we shall debate elected police commissioners. If you wanted to stand to be an elected police commissioner and were building up your campaign, it would not be difficult to orchestrate a series of referendums across the area—which might be a single county or an area bigger than that—in the run-up to the election. A local election does not have to be a straightforward party political contest. There are all sorts of ways in which the system could be used and manipulated, which underlines the need to be very careful about substituting plebiscitary democracy for representative local democracy. As the noble Lord, Lord Greaves, said at some length and with some eloquence in our first debate on the Bill, the core principle in a series that he enunciated is that of support for local representative local democracy. There is danger even in non-binding referendums. There may then be pressure for binding referendums, although not from the Government, except in one particular. You can see that outside the major political parties, there could a build-up of pressure for binding referendums to be held on the Swiss or Californian models, nether of which are very persuasive as instruments of good government.
With the characteristic generosity that marks the political approach of the Opposition, we support most of the amendments proposed by the Liberal Democrats in this group. However, with respect to the noble Earl, Lord Cathcart, and the noble Lord, Lord True, their proposed figure is too high and difficult to justify.
We shall probably just have time to move on to the next group of amendments. I note with some alarm one amendment in the name of the noble Baroness, Lady Hanham, which would reduce the percentage to 1 per cent and fix it at that, which strikes me as going much too far. We shall come to that this evening or on Thursday. We are not voting tonight but I invite the noble Lords to continue to convey to the Government their concerns about the way in which these proposals have been made. I hope the Government will take another look, particularly at the threshold figures if they are not prepared to depart from the principle of promoting referendums. I look forward to our debate on Report and to a response that reflects the views that have been expressed tonight.
Lord Greaves
Before the noble Lord sits down, will he comment on the view that in many cases, whether or not a referendum is mandatory, if it has been high-profile and hard-fought, it will be very difficult—certainly for a district council—to go against the decision? In practice, and in political reality, they will have to abide by it.
Lord Beecham
It will be a real test of political leadership to withstand populist pressure of that kind. One of the concerns expressed by many of us during discussions on the Bill is that it gestures too much in the direction of populism and will make life more difficult, particularly, as the noble Lord says, for smaller local authorities that are likely to come under greater pressure than those in bigger urban areas or counties.
Earl of Lytton
My Lords, as this is my first contribution at this stage of the Bill, I declare an interest as the president of the National Association of Local Councils, which noble Lords may know as the national body for parish and town councils. I am also president of the Sussex Associations of Local Councils. I will limit my declaration of interest to those two because they are most relevant.
I appreciate the way the noble Lord, Lord True, introduced this particularly important set of issues. He started off with the question of triggers. That led the noble Earl, Lord Cathcart, to comment on triggers for parish and town councils. It may save time if I deal with an aspect of that by way of illustration. We will later get on to a question in relation to paragraph 18 to Schedule 12 of the Local Government Act 1972. Subsection (4), which relates to parish councils, states:
“A poll may be demanded before the conclusion of a parish meeting on any question arising at the meeting; but no poll shall be taken unless either the person presiding at the meeting consents or the poll is demanded by not less than ten, or one-third, of the local government electors present at the meeting, whichever is the less”.
As one can readily see, that is a very low trigger. I am aware of a situation where a coastal parish council considering an extension to its village hall found the process hijacked by a small group of people who raised the 10 minimum. As the matter then proceeded to a parish poll, they were faced with the cost of something approaching £4000 for conducting that, because it had to be dealt with by the principal authority under the normal rules.
One gets a sense that this is devoid of proportionality. We have talked about the gravity of the subject, but there has to be some sense of proportion. I know that there is an amendment in the Minister’s name about this. There are other issues concerning overlaps. I think the noble Lord, Lord Beecham, referred to this, sort of, in code. By overlaps, I mean the possibility of a referendum being used to countermand the other duties of a principal authority. We cannot be having that many bites at this particular cherry. Mayhem lies down that route.
Regarding the cost-benefit and cost-burden, if there is no proportionality, it is a free bet in economic terms and we will have free riders, people who have an agenda and who want to take charge. This could be the moneyed who have moved into an area or whatever it happens to be, or some particular cause célèbre. The noble Lord, Lord Greaves—or it may have been the noble Lord, Lord Rennard—referred to the fact that the run up to an election might be a good time to trigger something that would get in the local paper, or whatever it happens to be. Democratic coherence is at stake here. We are talking about localism and about having the elective democracy, to which the noble Lord, Lord Beecham, referred. We cannot bypass that by a process of sectoral interests.
Why do I mention this? It is because I strongly believe that when it gets down to the parish pump level, it is important to have something that is proportionate, cannot unduly fetter the operation of parish or town councils’ affairs, and respects the principle that when you elect a body of people to represent your interests they must to some extent be given a free hand. The test is at re-election. That is not to say that there are no matters that lie outside the normal voting pattern, but there must be a clear way of making sure that they do not cut across one another.
Lord Taylor of Holbeach
My Lords, I thank my noble friend Lord True and, indeed, all other noble Lords who have spoken on this important subject and on the innovative development of this aspect of community empowerment. We are rather constrained by the rules of debate in the sense that these amendments are primarily about the threshold, but of course the threshold needs to be taken in connection with a series of government amendments and measures in the Bill that protect the whole process of referendums. While I shall try to focus principally on the threshold, I hope that noble Lords will be mindful that when we meet again to discuss these matters we will have further opportunities to debate a complex subject that runs across several aspects. I hope that what I have to say at least places the Government’s position in some context.
One of the most important aspects is the risk of populism. That was the theme of a number of speeches. To those who fear populism, I should say that leadership in institutional local government has nothing to fear from populism. If it strengthens leadership in local government, this innovation will, in itself, be important. We are quite clear that people should be able to trigger a local referendum by submitting a petition to their council containing the signatures of 5 per cent of the electorate. My noble friend Lord Cathcart and the noble Earl, Lord Lytton, mentioned the problems of this low threshold in connection with parish councils. I should emphasise that the Bill’s provisions in this area do not provide for referendums relating to parish councils, which are not part of the Bill. We will have an opportunity later to discuss parish councils.
A large number of amendments have been tabled that seek to amend the figure from 5 per cent. Figures of 10 per cent, 15 per cent, 20 per cent and, indeed, 25 per cent have been suggested. As the noble Lord, Lord Beecham, said, I am thinking of turnouts and of my experience as a canvasser. I think how many households one can actually canvass and how many voters one actually speaks to. Collecting signatures is no mean task. I say that as a political activist. All noble Lords will have had experience of that and we should put the 5 per cent figure in that context.
There is a question as to whether there should be a higher threshold for small electoral areas. Clause 209(2) of the Bill provides for different arrangements in different areas to be made by regulations, if there is a need. I am not persuaded that there is a need, but the Bill does provide for that if becomes evident that a higher threshold is necessary. We believe that 5 per cent is a fair threshold, building on the established precedent. It appears to us to strike the balance between setting a fair and achievable threshold for issues in which local people are seriously interested but at the same time a high enough hurdle to deter potentially frivolous campaigns. I think the whole Committee would wish to see that. I would say to my noble friend Lord Greaves that, for example, a 25 per cent threshold in Pendle would require the signatures of some 17,000 people. That is an enormous threshold for any campaign to secure. Indeed, one could argue that if one secured 17,000 votes in a referendum, the result was a foregone conclusion.
I can give other examples and I hope to persuade the Committee that 5 per cent is no mean figure. Noble Lords will be aware that the figure of 5 per cent in the Bill is based on the petition threshold for binding referendums on council governance, introduced 10 years ago. In using this figure, we recognise that these referendums are far wider in scope, so we will want to monitor the threshold to see if it is the right one in practice. That is why we have included a power for the Secretary of State to amend the threshold by order if experience shows that the 5 per cent threshold is not quite right. Amendment 124C seeks to remove this power, so it leaves the Bill without that flexibility.
The debate that we have had today and the various thresholds put forward in the amendments show just how difficult it is to agree an appropriate petition threshold. In this area of referendums the Government are listening to these debates and want to get it right. We want a workable system that will reinvigorate community politics without at the same time making representative government difficult and threatened in the way that some noble Lords have implied. Therefore, getting the balance right is very important. We have taken the established threshold of 5 per cent, as I have said, to provide consistency. While we do not rule out a change to the threshold in the future—that is why we have included the power to vary it in the Bill—it would appear sensible to wait and see whether a variation is necessary.
Amendment 120J would allow local authorities to change the area in which a referendum is being held from the one stated in the petition. We believe that the amendment is unnecessary. If a council wants to hold a referendum throughout the area of the authority, it can resolve to do so irrespective of whether a petition has been received with the requisite number of signatures to trigger a referendum in just part of the area. Indeed, the council can resolve to hold a referendum of its own accord, separate from the issue of the petition threshold. We take the view that if a referendum is to be held in just part of an authority's area, it is right that the people in that part should have a say in whether there should be a referendum. They can do this either by joining in the petition or getting the councillors for that area to request that a referendum in their area be held.
Amendment 121, in the names of my noble friends Lord True and Lord Cathcart, seeks to retain the duty on authorities to provide facilities for the hosting of petitions in electronic form. In fact, the provision that the amendment seeks to omit is essentially a technical one. It attempts to deal with the situation that might arise if the referendums provisions that we are currently debating are brought into force before the petitions provisions in the Local Democracy, Economic Development and Construction Act 2009 are repealed.
In practice, we intend to abolish those petition obligations as soon as possible. I think it is fair enough for us to debate the principle of whether it would be right to impose a new obligation on councils to host electronic petitions calling for referendums. However, I cannot say that from anything I have heard today I am persuaded that that is a necessary imposition. The Government’s view is that it should be up to local authorities to decide whether they provide for this, and our provision in Clause 43(4) makes that clear.
There has been a lot of concern about councillor requests for referendums and how they might impact on local campaigning and perhaps be extremely disruptive. Amendments 125 and 126 would provide safeguards against inappropriate calls for referendums by councillors, and I can certainly support the intention behind those amendments. In fact, we have already provided what I believe to be an important safeguard in Clause 49. I believe that the safeguard we have in place—that, following a request from a member, a referendum may not be held unless the full council has resolved that it be held—is a better check. These amendments would make a councillor call for a referendum redundant, as, if a petition is supported by 5 per cent of local voters, there will be a referendum in any event.
Finally, my noble friends propose in Amendment 129 that local authorities may recover the cost of a referendum from electors in the area in which the referendum is held. The amendment is, however, silent on how the cost would be recovered. My noble friend has voiced his concerns about the frequency of referendums—indeed, many noble Lords have thought that the numbers might be excessive—as well as the resulting cost burdens.. He is concerned that some areas within a council will, through the legislation, have all the opportunities to vote in a referendum, while the cost of the referendum will come out of the council’s overall budget, meaning that those who are not part of the referendum will bear some of the cost. Their amendment seeks to ensure that the costs of holding a referendum are spread across the area over which it is held. However, our approach already enables that to happen. It puts in place a scheme that enables referendums to be held in the relevant council area for the issue at hand. Therefore, if it is a district council matter or a matter over which the district council has influence, the referendum can be held at the district council level, whether it be across one or more wards of the district or the entire district council area.
I should now like to refer to the comments of my noble friend Lord Greaves, who was concerned that the rules should be rigorous. The rules on referendum petitions relate to when a council must hold a referendum. A council has discretion to hold a referendum whenever it wishes on any subject it feels to be appropriate. Thus, if a council believes that it is right to have a referendum on any subject, it can do so, irrespective of how many people sign a petition, and indeed irrespective of whether there is a petition. The noble Lord, Lord Beecham, worried about the 1 per cent threshold, the concern having somehow been lodged that the Government had tabled amendments to change the threshold to 1 per cent. We are not reducing the threshold to 1 per cent but in the case of London, in addition to the 5 per cent requirement, each London petition should contain the signatures of 1 per cent of the electorate in each London borough to demonstrate London-wide support for the petition. This is a safeguard; it is not meant to be a lightening of the burden regarding petitions.
There has been some concern that, by doing away with petitions and introducing the concept of referendums, we are destroying something positive and useful. We think that local referendums are more effective for two basic reasons. First, they have greater visibility than a petition. It is difficult to create the same impact with a petition than with a local referendum where every elector gets a chance to give their view. Petitions are essentially about one voice; referendums are about two voices, so that those who do not agree have the opportunity of voicing that. We must not assume that every referendum that is presented automatically results in a positive vote. Secondly, the effect of a referendum is almost certainly that more people will be engaged. If more people are engaged in holding a referendum the local authority will benefit as a consequence.
Lord Jenkin of Roding
My noble friend said earlier that the Bill gives the Government power to alter the minimum numbers for a referendum by order, and helpfully he referred to Clause 209. It may be that I am totally misunderstanding it, but Clause 209(1) says:
“Any power of the Secretary of State … to make an order or regulations under this Act is exercisable by statutory instrument”.
The next subsection is the one to which I think he was referring, which states:
“Any power of the Secretary of State … to make an order or regulations includes … power to make different provision for different cases, circumstances or areas”.
I sense that my noble friend was rather relying on that for his proposition that the Secretary of State would be able to change the figures in the Bill by order. Nowhere in the Bill on the question of the minimum levels is there any power to make an order. It just does not apply. There are regulation powers towards the end of the part dealing with voting in and conduct of local referendums. Clearly, that would invoke Clause 209. Unless I have completely misunderstood, Clause 209 applies only where the Bill contains a power to make orders, unless in relation to these minimum figures it does not. It may be that my noble friend already has an answer. I went on long enough to ensure that perhaps he would. If I have misunderstood, I am happy to be corrected. I am not clear that my noble friend stated the provisions of the Bill properly. Perhaps he can reply before he finishes the point he was making.
Lord Taylor of Holbeach
I thank my noble friend. One can rely on one’s noble friends to provide the testing question. Clause 44(2) on page 39 of the Bill states:
“The Secretary of State may by order amend subsection (1) to specify a higher or lower percentage than the percentage for the time being specified in that subsection”.
Perhaps I ought to have relied on that provision rather than the more complex structural arrangement.
Lord Jenkin of Roding
I am extremely grateful to my noble friend. He was quite right when he said originally that Clause 209 would allow the Secretary of State, as he has an order-making power, to make different orders for different figures, different areas and different sizes of electorate. I am greatly relieved to know that he was able to get an answer as quickly as he did, and I am very happy to be assured.
Lord Taylor of Holbeach
My noble friend is not the only one to be pleased to have got the answer as quickly as that. Throughout the Bill noble Lords will discover that the residual powers vested in the Secretary of State are frequently to be able to modify the provisions of the Bill in the light of experience because, as noble Lords will know, it is intended that the provisions of the whole of the Localism Bill will indeed be subject to review under the terms of the Bill.
What I was going on to say was really by way of peroration. We will be debating amendments to Clause 47 when we meet again and they limit to some extent the number of referendums that may be held. Councils will be able to refuse to hold referendums on issues for which there is already a statutory process—a planning application and the right of appeal and issues such as planning or licensing applications. Repeat referendums may be refused if within four years of the original, and councils will have discretion to refuse if the costs of holding a referendum are disproportionate and above certain limits.
I hope that, taken in the context of the debate we have had this evening and future debates we are going to have on this subject and the approach of the Government, which is, indeed, to take note of the issues raised by noble Lords, my noble friend will feel free to withdraw his amendment.
Baroness Byford
Having listened very patiently, I have a very short question for the Minister. In his response he said that it obviously does not affect parish councils and I appreciate that it does not at this stage in the Bill. However, Clause 56 clearly does look at parish councils. I hope I am not too out of order—it is only a quickie—but will there be any trigger as to a percentage that would have to be considered for parish councils to able to hold a referendum? It is not clear; nothing is laid down in the Bill. I simply wonder, as we have been looking at the various percentages to trigger things, whether he has any information on that.
Lord Taylor of Holbeach
I am not able to give a specific answer to that. All I can say is that the noble Baroness will be aware of the current situation in respect of parish polls and we will be consulting on the parish regime and, no doubt, consulting the noble Earl, Lord Lytton, in particular.
Lord Greaves
I have just a couple of points. When we get to Clause 56 on parish councils we will have a stand part debate. It would be extremely helpful if the Government had some fairly clear ideas on where they are going on parish councils because those are the questions we will be asking.
The Minister said that the Government thought that it was right that people in an area should have a say on whether or not there should be a referendum, but if there is a petition signed by 5 per cent of the people to have a referendum, why should that prevail over an alternative petition in the same area signed by 10 per cent or 20 per cent of people who do not want a referendum?
Lord Taylor of Holbeach
My noble friend poses a complex question at this hour of the day and I am sure he will forgive me if I do not give him a full answer to the conundrum. The decision on whether or not to hold a referendum—on the basis of a petition, or on the basis of a councillor requesting a referendum—can be taken only by a full council agreeing to hold that referendum. The power to hold a referendum is vested in the council concerned. That is the most important provision, which would take care of that difficulty.
Lord True
My Lords, I am very grateful to my noble friend for his very thoughtful and considerate response to the debate and also to all noble Lords who have taken part. It is an important matter. I apologise to the noble Lord, Lord Beecham, for not being present when petitions were discussed—I was in proceedings on the Education Bill—but I can assure him that if a petition were presented to my council, it would be considered under the standing orders of the council at the next council meeting.
As far as the debate is concerned, I take the point that seeing it only from the point of view of the opposition was a defect in what we said—perhaps it comes from being under the control of my noble friends for 23 years—but I think the point made about the temptation on parties in power to procure referendums is important, and I hope my noble friends will consider it. Equally, the point made about the BNP by the noble Lord, Lord Greaves, was important, and I hope my noble friends will consider it further.
I did not comment on the amendment tabled by the noble Lord, Lord Beecham. I shall comment on it further when we come to neighbourhood planning matters, but in the processes that we have undertaken, local people have defined areas that they believe are their communities which are different from ward boundaries or electoral area boundaries. I believe that they could be capable of being recognised in petition and referendum procedures. I hope that my noble friends will consider that matter and that flexibility further because I have amendments down in relation to neighbourhood planning.
My noble friend and I did not seek to find the final answer on the issue of the threshold. The triggers in terms of ward councillors and, I still think, for a mandatory referendum—potentially a percentage—are too low in certain circumstances. I will reflect very carefully on what my noble friend said. I welcome the fact that he said he would reflect on the position of potentially having different thresholds for different quantities of population, as suggested by my noble friend Lord Cathcart. I thank all noble Lords who have taken part in the debate. I beg leave to withdraw the amendment.