Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Gibson of Market Rasen)
My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes.
Wales: National Assembly Elections
(11 years, 10 months ago)
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Lord Wallace of Tankerness
That the Grand Committee takes note of the Green Paper on the future electoral arrangements for the National Assembly for Wales.
The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, it is a very welcome that we should have this debate, which is an opportunity for noble Lords on all sides of the House to contribute their views on the Green Paper. Since the coalition was formed in 2010, the Government have delivered major reforms to the country’s political system, making it fairer and more representative. In the previous Session, as many noble Lords present will recall, we took forward two major pieces of constitutional legislation: the Parliamentary Voting System and Constituencies Act 2011 and the Fixed-term Parliaments Act 2011. Although the Acts related to parliamentary elections and therefore extended to the whole of the UK, they had specific implications for Wales.
On 21 May, my right honourable friend the Secretary of State for Wales published a Green Paper on future electoral arrangements for the National Assembly for Wales, which sought views primarily on two issues that have arisen as a consequence of these Acts: whether the link between Assembly constituencies and parliamentary constituencies in Wales should be reinstated, and whether the Assembly’s term should change permanently from four to five years. In addition, it sought views on two other issues affecting elections to the National Assembly for Wales: whether a candidate at an Assembly election should be allowed to stand as both a constituency and a regional candidate, and whether Assembly Members should be prevented from becoming Members of Parliament.
The Parliamentary Voting System and Constituencies Act 2011 provided for a reduction in the size of the House of Commons and for constituencies of more equal size, so that a vote in one constituency would be worth the same as a vote in any other. Historically, the boundaries of the 40 constituencies for the National Assembly for Wales have been the same as those of parliamentary constituencies in Wales. The PVSC Act broke this link in order to ensure that fewer parliamentary constituencies in Wales would not mean correspondingly fewer Assembly constituencies and therefore a smaller Assembly.
However, the effect of breaking the link was that there was now no mechanism to review and alter Assembly boundaries in future. We must put in place a new mechanism—Assembly boundaries cannot be frozen in aspic—and in doing so we should consider whether it would be better to retain 40 Assembly constituencies but make them of a more equal size, or to re-establish the link with the boundaries of parliamentary constituencies. The Boundary Commission for Wales will recommend 30 parliamentary constituencies in Wales as a result of the current review, so reinstating the link would mean a change to 30 Assembly constituencies.
Each option has its merits. If we retained 40 Assembly constituencies, many electors would remain within their current constituencies. However, moving to 30 constituencies would retain the relative simplicity of the current arrangements and would enable electors to continue to vote in the same constituencies for parliamentary elections as for Assembly elections. It is important to make it clear that neither option preserves the status quo. If 40 constituencies are retained, they will be made more equal in size—Assembly constituencies are currently highly unequal. The Government’s reforms to parliamentary constituencies are underpinned by the principles of fairness, and we see no reason why that should not also be the case for Assembly constituencies.
A move to 30 constituencies would mean an increase from 20 to 30 in the number of regional Assembly Members, in order to ensure that the size of the Assembly would stay the same, with each of the five regions electing six Assembly Members instead of the current four. The number of parliamentary constituencies in Wales—and in any other part of UK—may change over time. Restoring the link between parliamentary and Assembly constituencies would mean that the number of Assembly constituencies would change when the number of parliamentary constituencies changed. To take account of this, the Government propose that if in the future the number of Assembly constituencies changes from 30 to, say, 29 or 31, the number of regional Members would increase or decrease accordingly to ensure a 60-Member Assembly. These regional seats would be distributed through the Sainte-Laguë method, which is generally acknowledged to be a fair way to allocate seats. The Government make clear in the Green Paper our preference to move to 30 constituencies but, as my right honourable friend the Secretary of State for Wales has indicated, this is not set in stone and we want to hear which option people prefer.
The second major piece of constitutional legislation we introduced is the Fixed-term Parliaments Act 2011, which establishes five-year fixed terms for Parliament. This will prevent a future Prime Minister being able to hold an election when it is merely politically expedient to do so. The date of the next parliamentary election is 7 May 2015. However, this date coincides with the elections to the National Assembly for Wales.
Lord Foulkes of Cumnock
Is it not possible that this Parliament could be dissolved in some other way before that date? That could happen if, for example, the coalition was to split and the Prime Minister no longer felt that he had the confidence of the House of Commons. The general election might then take place on a date other than that which the noble and learned Lord has specified.
Lord Wallace of Tankerness
That is a theoretical possibility, and the provisions for triggering an election are set out in the Fixed-term Parliaments Act 2011. Indeed, I can recall the noble Lord and other noble Lords present today debating those provisions at some considerable length. So it is possible, but the primary position under the Act is that the next election will take place on 7 May 2015.
Lord Wallace of Tankerness
Perhaps I may make a little further progress before I take the intervention.
As I have said, that date would coincide with elections to the National Assembly for Wales. The Welsh Government raised concerns that a parliamentary poll on the same day could overshadow an Assembly election and, following a vote in the Assembly, the Fixed-term Parliaments Act itself deferred the date of the next Assembly elections by one year, to 2016.
Lord Foulkes of Cumnock
The Minister is obviously right if that is what happens, but is it wise to move ahead with other legislation on the basis of something that may not actually happen? It may be the most likely event, but it is not necessarily an absolute certainty. Is it wise to change legislation on the basis of something that may not be final?
Lord Wallace of Tankerness
The essence of a consultation is for considerations of that kind to be imported into the consultation, but the position is that if the law remains unchanged, and if it is the case that the next general election is held on 7 May 2015, under the five-year fixed-term provisions, five years hence from that date would be the first Thursday in May 2020. If the law with regard to the National Assembly for Wales has not changed, then by reverting back to a four-year term, the Welsh Assembly will also take place on the same day in May 2020. That is why we are examining the question of whether the Assembly should move on a more permanent basis to a five-year term. However, that is to accept that at any time either in this Parliament, the next Parliament or the one after that, there could be a situation where the Parliament does not run for its full five-year term. No doubt future Parliaments would have to address the consequences of that. It is also worth pointing out that if we had not had an Act for fixed-term Parliaments and this Parliament, as previous Parliaments have done, ran to its full term, the dates for the two elections in May 2015 would coincide without any prior provision having been made for that.
Lord Elystan-Morgan
I am most grateful to the noble and learned Lord for allowing me to intervene. Am I right in thinking that the five-year term does not mean a period of exactly five years, because the date for the election can be brought forward or delayed by 28 days on either side of the date? In other words, although it is inevitable that if nothing is done, the next Welsh election will take place at about the same time as the general election, it need not take place on the same day. I apologise if I am wrong about this, but I do not think I am.
Lord Wallace of Tankerness
I am trying desperately to think back to the debates that we had. I think I am right—and I am sure that by the end of this debate I will be corrected if I am not—that the Bill was amended in its passage through your Lordships’ House. It removed the earlier provision but maintained the possibility for a later provision. I think it is also the case that the Assembly has some power under the relevant legislation to vary the date. I have no doubt that the former Presiding Officer will be able to correct me if I have got it wrong, but I think I am right that the Assembly itself has some leeway.
The Government are seeking views on whether this temporary move to a five-year fixed term should be made permanent. Moving the Assembly to permanent five-year terms would mean it is less likely—although not guaranteed, as we have been discussing—that parliamentary and Assembly elections would be held on the same day in future, so there would be less chance of a parliamentary election overshadowing an Assembly election and of voters being confused by voting in two elections, using two different electoral systems, on the same day. To clarify the point I made a moment ago, it is in fact the Secretary of State who can vary the date of an Assembly poll by one month—but I think that even with one month there would still be the possibility of overshadowing.
However, combining elections can be beneficial by reducing costs—that is the other side of the coin. Holding the 2011 Assembly elections and the referendum on the alternative vote electoral system on the same day is estimated to have saved around £1 million in Wales. Holding elections on the same day may also help to increase turnout. The Government do not have a fixed view on whether the Assembly should have a four- or five-year term, but we believe that the potential impact on the elector is the most important thing to consider in deciding the length of the term.
As I have indicated, the Green Paper also seeks views on two further electoral issues in Wales. Since the 2007 Assembly elections, it has been prohibited for a candidate at an Assembly election to stand for both a constituency and a regional seat. This impacts disproportionately on smaller parties, whose candidates must choose whether to risk everything by standing as a constituency candidate when they could potentially be elected via the regional list instead. Conversely, it also affects parties who have done better than expected in a constituency election. In time, it is possible that high-quality candidates could be lost to the Assembly through this ban. The Government do not think that this situation is satisfactory, and believe the ban on dual candidacy should be removed.
The Green Paper also considers the issue of “double-jobbing”. The Government note concerns that have been raised over whether elected representatives who sit in more than one elected legislature at a time are able adequately to represent both sets of constituents. Double-jobbing is already prohibited in the European Parliament, as well as countries such as Canada and Australia, and the Government are seeking views on whether Assembly Members should be prevented from standing as Members of the Westminster Parliament simultaneously.
This Green Paper has not come out of the blue. It provides a structure to the debate that has been ongoing for more than a year about the make-up of the Assembly in light of the reforms that the Government have put in place nationally. It seeks to bring this debate out into the open. The consultation runs until 13 August and we are seeking the views of everyone—not least your Lordships—with an interest in the electoral arrangements of the National Assembly for Wales. I hope that this debate will help to explain and put forward ideas and views on these issues. Therefore, in encouraging noble Lords to make their views known, I beg to move.
Baroness Morgan of Ely
My Lords, I thank the noble and learned Lord, Lord Wallace of Tankerness, for his introductory remarks. I have three questions to ask in relation to this Green Paper. First, why does this need to be done? Secondly, who should decide? Thirdly, why now?
The noble and learned Lord, Lord Wallace, has tried to address the first issue. Of course, the Parliamentary Voting System and Constituencies Act has gone through; there is a boundaries review; there is a reduction in the number of MPs from 40 to 30; and of course previously there was this coterminosity between the MPs’ constituencies and the first past the post constituencies in the Assembly. Of course, that meant that there will be a hole somewhere. If we are to carry on with the current arrangements, we would still need to consider the fact that at some point we may need a boundary review in Wales for the Assembly. I therefore understand that there is a legal hole somewhere that we need to fill. There is also a Fixed-term Parliament Act that will have a knock-on effect. It is not a good idea to have a general election at the same time as an Assembly election.
However, my real concern is who should decide. We know that there is a legal right for the UK Government to decide this, as there is a legal right to them to decide if they want to abolish the Assembly if they wanted to—but would they do that? They would not do that because it would be wrong. The will of the people was expressed in a referendum back in 1997, and the package that was then presented to the people included the structure and make-up of how the Assembly is elected. It is therefore possible to impose these proposals and to make them happen, but is it morally right to do so? It should be remembered that in 1997, all three main political parties determined the way that they would like the Assembly to be elected. There is a real question mark there. It is not therefore a good idea to have a referendum to ask the public about this.
At the very minimum, there should be an agreement by the elected representatives of the Assembly that this matter is of critical importance if we believe in devolution. There is a real question mark. What does devolution mean if you can keep on imposing things from London? The principle has been established with the Scotland Act. The matter was not concluded until the Scottish Parliament had spoken. Therefore, my first question to the Minister is, can he give us some kind of assurance that the Assembly will be able to give its view, and that that view will be taken into consideration and accepted by the Government? That is absolutely critical. My understanding is that the First Minister and the previous Presiding Officer were given assurances by the current Prime Minister that the change would not happen without the agreement of the Assembly. It is also worth noting that there is not one Cabinet Member from a Welsh constituency in this Government. It really does look like a throwback to the bad old days of governance of Wales from London.
My second question is one of timing. I recognise that there is need for a legal framework, but why now? Significant reviews are being undertaken at the moment. The first is, of course, the Silk review, which has two phases—the first looking at fiscal powers and the other at broader powers for the Assembly. Then there is the commission on the West Lothian question, which, again, may have a significant impact on the relationships between all these different institutions. And then there is the huge elephant in the room—the referendum in Scotland. We cannot ignore the fact that that will happen and that there will be an impact on devolution in the broader sense, whatever the outcome.
The Assembly has already been given a considerable increase in powers recently, but no increase in the number of Assembly Members. It may be that Silk will come up with a whole range of suggestions of what the Assembly could be doing in the future. If that is the case, there could be a case for increasing the number of Assembly Members. Now is therefore the wrong time to be making the proposed changes.
I should like to speak briefly about the substance of the document. It contains an assertion that the Government do not seek to give advantage to any political party—which is very good. However, is that reflected in the proposed model? What modelling has been done to suggest that no particular party will get an advantage for a change to the current system?
It is worth reflecting on the first Assembly election in 1999 when there were 40 first past the post seats, only one of which was won by a Conservative, and eight Conservative seats were won on a top-up regional list system. We are all au fait with the likely outcome, but what modelling has been done? What has been done so far in terms of looking at what the consequences might be? Who might be the winners and losers if the Government are so determined that no particular party will gain an advantage?
It is also worth noting that, if there is going to be an increase in the size of the Assembly—
The Deputy Chairman of Committees
My Lords, there is a Division in the House.
Baroness Morgan of Ely
My Lords, it is probably worth noting that there is a degree of suspicion on the part of some political parties due to the way in which we have seen the suggested changes to constituency boundaries and the likely political impact.
Lord Anderson of Swansea
Perhaps the noble Baroness will permit me to say that the suspicion is in part because of the effects of the constituency Act, which has borne down most heavily on Wales. Indeed, it has reduced the weight of Wales at Westminster and clearly has important party political implications. That is why, in my judgment, there is a considerable degree of scepticism about the bona fides in this case.
Baroness Morgan of Ely
Another point I want to make is that it was recognised that there might be a change in the size of the Assembly. It was suggested that if that happens, the change could be made up for on the regional basis of the regional list. It could be, therefore, that there are many more members on the regional list than on the first past the post system. That would be a departure from anything this country has previously seen. I believe that what we are suggesting here may have implications for the long term and that at some point, due to changes in the responsibilities of the Assembly, more powers may be given. There may be a need for more support in the Assembly. If so, I would be really concerned that that would be made up on the regional list.
As regards the dual mandates, in principle, it is difficult to serve two political institutions at the same time. However, it can be beneficial to have some individuals also plugged into the national level. There should not be a double mandate, certainly as regards Assembly Members and Members of Parliament, for more than one year. We should encourage a little bit of movement between the two levels of government, but a case could probably be made for the House of Lords. As yet, we do not have individual Members of the House of Lords democratically elected to represent Wales. We happen to be Welsh people, but we do not represent Wales here. It is an accident and we are not speaking officially for Wales in any capacity. However, despite the fact that some individuals would not have a mandate to speak for the Assembly, it would be useful to keep a link and a channel of information open between the different institutions. I have a concern that, as the Assembly settles, we will see less movement between the institutions. Then there is the question of whether you could or should stand on a constituency list in addition to being on a regional list. I can understand how unjust that felt in 2003 in North Wales, when the constituency Labour Member won and each one of his defeated opponents then popped up on a regional list. On the other hand, I felt a little bit sorry for a Tory—which does not happen very often, I can assure you—when the leader of the Tory group, Nick Bourne, was knocked off the regional list; he was rejected because of the success of his party at a constituency level. So I have a degree of sympathy, which does not happen very often, as I said.
My conclusion and my clear message is this: whatever is decided, it should be decided with the blessing of the Assembly. If it is not, it will be perceived as something being imposed from London and that will be simply storing up trouble for the future.
Baroness Randerson
My Lords, I begin by declaring an interest as I am in receipt of an Assembly pension. I am also on the board of the Wales Governance Centre, which is part of Cardiff University and is partly funded by the Assembly Commission.
The point I start from is diametrically opposed to that expressed by the noble Baroness, Lady Morgan. As a Liberal Democrat, I continue to support the recommendations of the Richard commission for the single transferable vote in Wales. However, at the start of the Assembly, we as Liberal Democrats accepted the compromise of the list system as being the furthest we could get towards an element of proportionality, and I certainly accept that we are not going to get STV in the near future. Therefore, in general I welcome the proposals in this Green Paper.
I particularly welcome the acceptance of what will become the 30:30 split under the new boundaries, which is the preferred option of the Secretary of State. That is an acceptable compromise. It produces more proportionality, which is very welcome, but I accept that it maintains the dual system that Liberal Democrats do not believe is ideal.
I was an Assembly Member for 12 years. I am pleased to see three former colleagues here today—in fact, we are in danger of this becoming the old group discussing things again. I was a constituency Assembly Member and it is true to say that the role of a regional Assembly Member is very different. Those differences can cause friction, but there is no proposed change in the system here; we are simply looking at the split between constituency and regional lists.
As well as being more proportional and therefore fairer, I believe that 30:30 would be very much easier administratively. Differing boundaries are very complex, particularly for electors but also for political parties and people who run elections. Incidentally, a longer list in each region would also help gender balance. It would increase the number of women and ethnic minority candidates coming forward. STV lists tend to do that and in this case the list for the Assembly would operate in a similar way. It is obviously easier for political parties but it is important to remember that having coterminous constituencies for Parliament and the Assembly particularly would help civic society and electors by removing an element of confusion. In this I agree wholeheartedly with Peter Hain who was entirely right when he said:
“Having different boundaries creates a great deal of confusion for voters, for parties and for the wider public”.
It would also reduce the cost—more than £2.5 million over 10 years—of having to review different sets of boundaries, first for Parliament and then for the Assembly, making it almost an endless treadmill of boundary reviews.
I totally reject the idea that the 30:30 split could possibly be two-Member wards. That is a Labour Party idea which is designed to remove the element of proportionality. Proportionality was inherent in the offer made to the people of Wales in the vote that they took in the referendum at the end of the last century—a vote that was won very narrowly and that I am pretty certain would not have been won if proportionality had not been there. I believe that 30:30 would be fairer in proportional terms as it would reduce the chances of a party winning a majority of seats on a minority of votes in the ballot box. It is worth noting that in 2011, under the current 40:20 split, the Labour Party won 50% of the seats on just short of 40% of the vote. So when the noble Baroness, Lady Morgan, asks us which party would benefit from a 30:30 split I would answer that no particular party would benefit but one party certainly benefits from the current system and that benefit would be lost under the new one.
I want to talk now about process. The voting system is a reserved matter—that was decided by the previous Labour Government when the Government of Wales Act was drafted. The power to decide the electoral system could have been devolved to the Welsh Assembly but it was not. The Assembly had no say in the previous changes, such as the ban on dual candidacy which came in in the 2006 Act. I know that the Assembly feels it should express an opinion. It is absolutely right that it should do so, but it is important to remember that there are no legally binding results to that opinion. As a strong devolutionist, I would have preferred the system to be written differently but that is the system that the Labour Government gave us.
Lord Elis-Thomas
I am grateful to the noble Baroness for giving way. Would the noble Baroness, Lady Randerson, agree that, despite the fact that there are no legal powers within the Government of Wales Acts for the Assembly to have organised consent, the devolution principle and its constitutional basis must surely point to consent being obtained in one way or another from the National Assembly for changes to its own structure?
Baroness Randerson
That sets an interesting train of thought. As the legislation currently stands, we would move to 30:30 under the current Government of Wales Act. Would consent be needed to adhere to the current legislation? I do not think that would necessarily be the case. The concept of Assembly consent—which has never come up before in this context, so far as I can recall—is desirable and I would hope it would happen, but it does not necessarily follow that it has to be because of the status of the current legislation.
I want to deal with the other issues of significance in this paper. A really important issue is the end of the ban on dual candidacy. In 1999 and 2003, I was a candidate for the list and for constituency seats, along with members of all other parties—including the Labour Party. Dual candidacy ensured vibrant energetic campaigns in individual constituencies. Candidates who knew that they were not likely to win a constituency would nevertheless fight hard in an individual constituency because it contributed to the list campaign. The loss of dual candidacy reduced the level of campaigning, particularly as regards the list vote. As a result, we had a loss of democracy in Wales.
The ban came out of the ether, as far as I could see. It seemed to be a purely political measure introduced in 2006 by the Labour Party, and it clearly penalised smaller parties. Think about the mathematics. A party has to have 40 constituency candidates; and now, under the current system, with a ban on dual candidacy, it probably has to have another 25, with five candidates for each of the five regions. Under the old system, if you stood as a candidate in both a constituency and for the list, you could, as a party probably get away with a slate of 40 candidates. Now you have to have effectively 65. That makes the situation difficult for small parties, and the system was designed to do that.
Lord Foulkes of Cumnock
Surely, if a party cannot manage to get even 65 candidates to stand, it does not deserve to get elected Members? Small parties surely deserve small representation.
Baroness Randerson
I do not agree with the noble Lord at all. In a vigorous democracy, parties have to start to develop and form.
Baroness Randerson
You should not put hurdles in their way. I believe in a developing democracy. I should like there to be a world where the Liberal Democrats were in a majority Government and ran everything. Would it not be wonderful? However, I accept that that is not going to happen on a regular basis in a democracy; and a vigorous democracy should not put hurdles in the way of the development of smaller political parties. One of the joys of devolution has been that new forms of politics have been developing. They may be transitory, but the important thing is that we have more variety in our politics.
It is worth noting—and that intervention was useful—that there has been no such ban on dual candidacy in, for example, Scotland or the London Assembly.
Lord Foulkes of Cumnock
I am sorry to intervene. Does the noble Baroness not know that I have tried twice to get such a ban, whereby Scotland comes into line with Wales? I tried it under a Labour Government, and the noble Lord, Lord Evans—astonishingly—argued for it in Wales and against it in Scotland. I then raised the issue under the coalition Government. I cannot remember but I think it was the noble and learned Lord, Lord Wallace, who argued a different case for different countries. I understand the case for consistency, and the noble Baroness is arguing for it, but the inconsistency that we have experienced has been very strange and has been supported by successive Governments.
Baroness Randerson
I think that good sense clearly held sway in Scotland. I am pleased that the noble Lord is consistent, but it was a matter of great good sense that the ban on dual candidacy was not adopted in Scotland.
The noble Baroness, Lady Morgan, referred to the anomalous results that came as a result of the ban on dual candidacy. Like the noble Baroness, I am not always sympathetic to the Conservative Party and its electoral fortunes. In that situation, the party in Wales went from having a 15% share of the vote to having a 23% share—from nine to 14 Assembly Members. That is a record of success. From one constituency seat to six is also clearly a record of success. As a result, the leader of the Conservative Party, which was so successful, lost his seat. Clearly that will not improve the reputation for fairness of the electoral system in Wales.
The reason given by the Labour Government for the ban on dual candidacy was public dissatisfaction. However, the consultation did not reveal public dissatisfaction on any scale. The Arbuthnott commission in Scotland found that there was no such problem and the Electoral Commission in Wales also endorsed the view that dual candidacy was not a problem.
Finally, I will deal with the remaining issues. We support a move to a five-year term, to avoid a clash with general elections. Inevitably, if we held both elections at once, the Welsh political dialogue would be drowned out by the general election. Welsh politics would be overwhelmed by UK politics. That would not be fair and reasonable. I ask the Minister whether there are plans to move local elections in Wales in a similar way. Is there a move towards a five-year term in local government there?
On ending the dual mandate, it is certainly true that being an MP and an Assembly Member are both full-time jobs. Over the years, I have observed many people in the Assembly who held the two jobs. Some of them chose to spend all their time in the Assembly. I note that the noble Lord, Lord Wigley, who did that in the first term of the Assembly, is here today. However, some decided to abandon the Assembly and spend all their time in Westminster. Westminster coped with five MPs spending their time in the Assembly, but the Assembly, which is a slim body of 60 people, could not cope easily with the dual mandate for an MP and an Assembly Member—it could not cope with being abandoned. One person disappearing from the Assembly sometimes makes a difference to whether the Government win a vote. I recall cases when that was true. Therefore, it is important that there should be an end to that. In relation to the House of Lords, it is not an issue at the moment while we have the luxury of the pick-and-mix approach to when we attend the House. However, once we have an elected House, such a ban should extend to its Members.
Lord Wigley
My Lords, I suppose that I, too, should declare an interest—although it is substantially smaller than that declared by the noble Baroness, Lady Randerson. I am a little worried that I agreed with most of what she said; it may give me cause for some concern later.
I welcome this debate as it focuses on an issue that needs attention in relation to the National Assembly’s electoral arrangements. However, I believe that these arrangements should be matters for our own National Assembly to decide, not for the two Chambers in Westminster. In this regard, I concur with the sentiments of Wales’s First Minister, Mr Carwyn Jones—something that I do not always do—in today’s Daily Post when he said:
“The electoral system for the assembly is a matter for the people of Wales and no one else”.
As noble Lords will understand, I wholeheartedly agree with him on this occasion.
I am glad that my colleague, the noble Lord, Lord Elis-Thomas, is here—for the first time we have been able to spend some time in Grand Committee together. He speaks with the authority of a long-serving, three-term Presiding Officer of the Assembly, who is widely recognised across party divisions as having done an excellent job. No doubt he will be speaking from the context of his experience as Presiding Officer.
I want to outline the position of my party, Plaid Cymru, on these matters. The power to determine the electoral arrangements should indeed be transferred to the National Assembly. I will address the four subjects broached in this Green Paper; first, the voting system. Plaid Cymru supports the STV system mentioned by the noble Baroness, Lady Randerson, a moment ago. It is used in the Northern Ireland Assembly and I believe I am right—the noble Lord, Lord Foulkes, can correct me—that it is used in Scottish local government as well.
Lord Wigley
Yes, indeed. I do not see any reason why it could not be introduced for the National Assembly for Wales. It avoids having two classes of Member, as is inherent in the present system, which was recognised by the noble Baroness, Lady Randerson. The panel chaired by Sir Roger Jones that looked at certain aspects of the Assembly’s work also noted that there were two different jobs being undertaken. The STV system ensures a direct link between the AM and the voters. Incidentally, alongside increasing the Assembly numbers from 60 to 80, STV was a recommendation of the commission led by the noble Lord, Lord Richard, which reported on these matters in 2004. In fact, the amount of legislative work that has come to the Assembly is greater than that anticipated when he made that recommendation.
This Green Paper is very narrow and restrictive. It neither offers STV nor the status quo as options, and I wonder why not. Both options in the Green Paper involve redrawing constituency boundaries. The STV option does not add to the administrative workload at all. Maintaining the 40:20 split between the constituency and regional list AMs implies regular boundary reviews—costing about £1.7 million a time—to equalise constituency sizes. Adopting the 30:30 split involves no greater expenditure as it uses the Westminster constituencies. However, I emphasise that Plaid Cymru has consistently criticised dogmatic equalisation of voter numbers because of the importance of geographic and historic community links, and because it would be very much harder for an AM or an MP to serve some scattered rural constituencies than it would be in an inner-city area because of the scale and mileage involved.
Some people have suggested having 30 constituencies coterminous with Westminster but possibly electing two AMs each. Other colleagues may address this later, but unless the Assembly size is increased to 90 Members, the proportionality explicit in the 1997 referendum and implicit in last year’s referendum would be broken. However, such a change could deal with the gender balance issue as it would provide adequate capacity to deal with the Assembly’s legislative scrutiny role, which is increasingly becoming evident.
An Assembly of 90 Members would still be smaller than the Northern Ireland Assembly of 108 Members or the Scottish Parliament of 129 Members. I repeat that this is not Plaid’s preferred option as we regard the STV system based on 80 AMs as the best way forward. Plaid Cymru will not agree to any change that reduces the proportionality of the Assembly. For change to happen, there should be consensus, and I do not believe that there is consensus in Wales for either eliminating or reducing the proportionality of the Assembly.
On the five-year term, which seems to be the accepted norm at Westminster, we would likewise accept it for the Assembly but ensure that elections for the House of Commons and the Assembly did not coincide. It is not a matter just of the administrative arrangements, which could be complex enough with different constituency boundaries, but a matter of which candidates are speaking on which manifesto. It would become infinitely more complex.
If the present electoral system remains, the ban on candidates standing both for constituencies and for the list should be lifted. A ban is not imposed on Scotland. I heard the noble Lord, Lord Foulkes, talk about this previously in another context in the Chamber. There is no consensus in Wales for the current system. A similar system is operated, I understand, only in the Ukraine—which is not a particularly good precedent. The ban was introduced for glaring party-political advantage by the Labour Government at Westminster and, frankly, it should be scrapped. However, if the STV were to be adopted, there would be no need to get into those problems.
On the dual mandate, I express my personal view. The noble Baroness, Lady Randerson, referred to my experience in the early years of the National Assembly. My noble friend Lord Elis-Thomas may have a different view on this matter—I am not sure. I served for two years, from 1999 to 2001, as both an AM and an MP. Frankly, it was a total nonsense to try to do so, and it was impossible to do both jobs effectively. In the early months, I found myself bouncing back and forth like a yo-yo between Cardiff, Westminster and my Caernarvon constituency—a formidable triangle. That undoubtedly contributed, along with other factors, to the emergency heart operation that I underwent at that time. Furthermore, a real complication arises if the constituency boundaries differ for the two seats—if one is representing a Westminster seat, with one set of boundaries, and a National Assembly seat, with another set.
Candidates may stand on different manifestos for the two legislatures, again causing confusion. The Assembly seat should be made vacant at the point at which an AM takes the Oath as an MP. Taking the Oath should be the determinant, not the rules that are currently applied for other purposes in the National Assembly and of which the Liberal Democrats fell foul in the last election.
I conclude as I began, by reasserting that the Assembly’s electoral system should be a matter for the people of Wales to determine.
Lord Elystan-Morgan
My Lords, perhaps I may say two fairly generous things to start with. The first is how much I welcome the noble Baroness, Lady Morgan of Ely, whom I congratulate on her Front-Bench status. This is the first time that I have had the opportunity of listening to her, and it is clear that she speaks with great authority and immense lucidity. The other not ungenerous thing that I should like to say is that I am delighted that the noble and learned Lord, Lord Wallace of Tankerness, is leading for the Opposition.
Lord Elystan-Morgan
The coalition Government. Old habits die hard. I remember when I was a student, a very long time ago, reading something to the effect that the surname Wallace derives from “Wallish”. Wallish, in Scots Gaelic, meant “Welsh”—so it may well be that some millennium and a half ago we had common ancestors.
Having spoken, I hope not ungenerously, on those two matters, perhaps I may say that the Green Paper has come about because of a massive blunder by Her Majesty’s Government 18 months ago. I refer to the fact that a decision was made without any empirical evidence or research to the effect that the number of Members in the House of Commons should be reduced from 650 to 600—a perfectly arbitrary judgment. It may very well be that there were elements of self-interest in that decision, but I am prepared to accept that that was probably not the case.
It was a slavish pandering to vulgar populism. It you were to put this to an audience in the front bar of most public houses in the United Kingdom, many people would say, “Yes, certainly. Do away with half the so and sos”. It was that motivation that brought about one of the most massive errors of judgment in relation to parliamentary democracy of the past 100 years. The effect was that ancient constituencies—representing very old communities that had been hammered out on the anvil of time—disappeared. Natural boundaries—rivers, mountains, bridges, old county boundaries—melted away. All this was done, according to the Government, to bring greater fairness, greater cohesion and greater certitude. I do not believe that one could have been more destructive of those elements if one had really tried.
Tacitus speaks of generals who laid waste huge areas of land, saying that where they create a desert they call it peace. Here, the Government create chaos and they call it electoral reform. That is what has brought this Green Paper into existence and the necessity of making judgments in relation to these matters.
The Government speak as if they are now stepping in nobly to deal with some sort of crisis created by some utterly external and independent agency—something that has come about without any responsibility on the part of the Government. I remember a report of a case in the assizes about 100 years ago. A person had been found guilty of murdering his mother and father. The allocutor asked him, “Have you anything to say on why judgment according to law should not be passed upon you?”. He said, “My Lord, I throw myself on the mercy of the court. I am an orphan now”. The crisis is entirely of the Government’s own making.
I do not apologise for my short preamble, but I now turn to the Green Paper. I will confine myself to whether there should be 30 or 40 constituencies for the purposes of election to the Welsh Assembly. I agree with my noble friend Lord Wigley and others that there is an overwhelming case for concentrating on 30. It comes about for all the wrong reasons, but I believe it is a fait accompli that one should accept. All the alternatives would be infinitely worse. There would be a lack of cohesion, nightmarish conflicts, unnecessary cost and hassle. One should build on the 30 in any event, but one should go much further than that. The real issue today is not the number of constituencies or any of the other questions raised by the Green Paper; it is the question that is dismissed in one sentence in paragraph 1.1, where the Government state that the number of Members of the Welsh Assembly should remain at 60. That is a massive and utterly existential question.
I believe in my very bones that 60 was a ludicrously small number to begin with and made it impossible for the Assembly to have any real future or viability and promise. That was the situation when the Assembly was created and it is now infinitely more acute since the referendum in March of last year. What we have now, whether or not we call it an Assembly, is a Parliament—a legislature with responsibility for substantial areas of primary legislation. If that Assembly is to be shackled and emasculated to the degree of having only 60 Members, we will deny it the real prospect of life and growth. It does not give me any pleasure to make that point because people in many parties have been saying all along, “For goodness’ sake, don’t talk about adding to the number of Members in the Assembly”. It is about the most unpopular subject that you could raise. To some extent all of us, including Assembly Members, are guilty of that mentality, but leadership must be conducted in an honest and statesmanlike way.
I do not know exactly how many of the 60 will be left to deal with scrutiny, something which has come about in the Assembly for the first time so far as primary legislation is concerned. Unless the Assembly can scrutinise in a detailed, honest and comprehensive way, it might as well not be there. This House and the other place have exercised that privilege and responsibility for centuries, and they earned it the hard way. But at all times they have had an adequate number of people to allow them to do it. By my rough calculation, having taken into account the Ministers, Deputy Ministers, Chairmen of Committees and one or two other functionaries who would be exempt from the exercise of scrutiny, only around 30 Members would be left. Indeed, from what I have heard from the noble Lord, Lord Elis-Thomas, who I think will deal with the exact numbers, that is a gross underestimate. What noble Lords hear from me is advocacy, but what they will hear from him is testimony.
The situation is this. If we want the Assembly to be a real legislature, it has to move away from the shackle of 60 Members. The Richard commission said eight years ago, before the referendum last year, that 60 Members were too few. Noble Lords will remember that the noble Lord, Lord Richard, recommended 80. In my view, 90 would be a perfectly reasonable and adequate figure, and of course it has the blessing of being able to be divided by three. I suggest that 60 should be elected by first past the post, but I would not go to the stake if it were the other way around, with 30 elected by first past the post and 60 under the additional member system. I think it would be wrong, but rather than see the Assembly emasculated and turned into a little puppet government, I would prefer to see that.
On that basis, therefore, I appeal to the speakers in this debate and to all who are concerned about politics in Wales to see to it that that reform is brought about. The Government have made a great error and committed a massive blunder, but the situation is not irredeemable. They can use that blunder to bring about an utterly necessary reform—that of increasing the number to a viable level of 90 or thereabouts. We have been told that Scotland has 129 Members, which is one Member for each 39,000 of its population. Northern Ireland has 108 Members, one for each 15,700 of its population. Wales has 60 Members, which is one for every 48,000 of its population. I hope that those who cry for equality, equity and justice will accept the case.
Lord Roberts of Conwy
My Lords, first, I will compliment the Secretary of State, my noble and learned friend, and those who drafted the Green Paper. It is a model of clarity in its presentation of the choices before us and the arguments for and against them. As noble Lords said, the choices were consequential on earlier parliamentary legislation.
The choices that I make are governed by the principle that the best choices are those that bring the National Assembly and this Parliament closer together, rather than those that tend to drive apart these institutions. Therefore, it will come as no surprise that I favour the proposal that Assembly constituencies should be aligned with their parliamentary equivalents, and that we should follow the 30:30 model of 30 directly elected Assembly Members to complement the 30 Members of Parliament, and 30 Assembly Members elected by STV from five regional combinations of six parliamentary and matching Assembly constituencies. The pattern will lead to less confusion and more clarity among electors, and will appeal to local party organisers; I think that we all know that that is true. It will make life simpler for them—and for Members of Parliament and of the Assembly, who will be able to sort out between them the constituency cases that will belong appropriately to each of them.
I also favour the five-year term for the National Assembly, which will match the parliamentary term. Same-day elections should assist turnout. Its decline over the years has concerned us all. It should not be beyond the wit of most electors to handle three ballot papers simultaneously, especially if they have been warned in advance about what to expect.
Lord Wigley
Does the noble Lord not accept that if the elections for the National Assembly and the House of Commons were on the same day, inevitably the overwhelming attention of the press and media would be on the Westminster election? The paucity of our independent press in Wales underlines that. It would lead to a situation where there was no proper scrutiny of the programme being put forward for government in Wales—something that should be basic to democracy.
Lord Roberts of Conwy
Yes, of course there is a case to be made along those lines. At the same time, I urge the noble Lord to consider the low turnout at Assembly elections. The fact that there is a higher turnout for parliamentary elections could be combined and taken advantage of in order to secure more consideration by the individual elector when he gets to the ballot box of what else there is for him to choose. In practical terms, it may well be that United Kingdom politics would get more attention than local Assembly politics. However, I am not so sure that electors might not have a different view in each case. The fact is that they would be attracted to vote, which is what concerns me, and would make their decisions in the privacy of the voting booth.
I will return to my first principle: that we should endeavour to bring the National Assembly and Parliament closer together. Both institutions are, after all, part of the same democratic state, and one derives its power from the other. I said in the debate on the Queen’s Speech that there had been a strong tendency for the institutions to drift apart. Some would say that that divide has been deliberately promoted and a wedge driven, largely from the National Assembly side, but I would say that wouldn’t I? If so, it has not been particularly beneficial to Parliament, the Assembly or Welsh electors—quite the opposite.
Lord Elystan-Morgan
Would the noble Lord, Lord Roberts, not agree that it may be that a wedge was driven from the other side too? The Prime Minister said, in the first instance, that there would be no question of carrying through proposals for retracing the boundaries of the Welsh Assembly without the agreement—that was the word—of the Welsh Assembly. That was an undertaking given to Mr Carwyn Jones. He said later that it would be done after consultation—a very different matter and a far more colonial prospect.
Lord Roberts of Conwy
The Opposition, as always, put forward their own independent case and I would have to consider what the noble Lord, Lord Elystan-Morgan, has just said. The main drive towards separation has come from the National Assembly. I do not think it has been particularly beneficial to Parliament, the Assembly or Welsh electors. The Assembly has gained more powers following a positive referendum—provided, after all, by central government and on a low turnout with little or no opposition to speak of. Most of us now recognise that, whatever our earlier views, the Assembly is here to stay and our duty is to make the best of it.
There is much more to be gained by collaboration between the National Assembly and this Parliament than from the mock tug of war for more powers than has been the feature of the past. The willing establishment by the Secretary of State of the Silk commission, its membership and remit proves that there is a new, pro-devolutionary spirit abroad and the National Assembly should welcome it. It could begin to reciprocate by improving its communication with this place. I give just one example: last month, the Assembly Government published their first annual report for the Assembly term 2011-16 with a foreword by the First Minister. I obtained a 19-page summary of the report entitled Programme for Government. I was not able to get the full 600-page document: it was not available to us here in the Library or the Printed Paper Office, although I am glad to say that it is available today thanks to the indefatigable industry of Mr Quin at the Printed Paper Office. When I have finished perusing this somewhat substantial document, I shall make sure that it is in the Library for other Members.
Even the summary refers to a number of White Papers, draft measures and strategy documents. They were not available either and I doubt whether they are available now. They may be on the web but they should be as available—and in the same form—as the Green Paper we are discussing now. The least we should have is a list of Assembly publications and their whereabouts.
Lord Elis-Thomas
I am afraid I have been provoked, because we go back a long time in this discussion. Will the noble Lord accept that the National Assembly for Wales is an electronic democracy in which everything is digitally available?
Lord Roberts of Conwy
I agree. Even this tome, which I can barely lift, is available on the web but even the website reference is complex enough. Also, I really do not think that you can read 660 pages easily on the web.
My real point is this. As a consequence, most of us—of course I speak for myself—are pretty ignorant about what goes on in Cardiff Bay, which begs the question: is it right for this Parliament to devolve powers and then wash its hands of the use made of those powers? I do not think it is right. Those powers involve the use of British taxpayers’ money, and we are accountable for how that money is spent. It is irresponsible on our part. We should know what is being done and the National Assembly should be proud to tell us. It may be that we require a sub-committee of the Constitution Committee as the equivalent, as it were, of the Welsh Affairs Committee, to consider developments in Wales. Better communications and a ready supply of documents are only one aspect of improved relationships. There could be more official visits to Cardiff Bay, and I commend the Assembly Government Minister, Edwina Hart, who has been assiduous in cultivating informative relationships with Members of this House through the good offices of the noble Lord, Lord Touhig.
Finally, I turn to the Government’s proposal to restore the right of an Assembly constituency candidate also to be on a regional list, which was the original position. I am in favour of this not only because Arbuthnott found nothing against it in Scotland but because it will help to ensure that the best candidates a party can offer—I am thinking particularly of the smaller parties—have the best chance of securing Assembly membership. We want only the best in the Assembly, and they are not all that plentiful in any party. I am aware of how rivalries between some candidates in Wales led the Labour Government to abolish in 2006 the right to dual candidacy but, as we all know, rivalry is inherent in political life and only to be expected.
Lord Touhig
My Lords, I am sure that noble Lords will be relieved to know that I will do my best not to repeat the excellent arguments that have already been put to the Committee, but I am caused to ask this question: what are we doing? This is only the second specifically Welsh debate we have had in your Lordships’ House during this Parliament, and what are we debating? Are we debating the impact of the double-dip recession on the people of Wales, a recession made in Downing Street? No, we are not. Are we debating the lack of economic growth or high unemployment? No, we are not. Are we debating the mean and spiteful cuts in benefit support for disabled people and the poorest people in Wales? No, we are not. Are we debating the Remploy factory closures, which will see hundreds of disabled people thrown out of work, and who will probably never get another job in their lives? No, we are not debating any of these things. Instead, we are debating constitutional reform again. I feel sure that I can report to noble Lords that in the pubs and clubs of my former constituency of Islwyn, they will be talking about nothing else. While hard-pressed and hard-working families struggle to make ends meet and keep their heads above water, this Government seem to be obsessed with constitutional change.
It was only on 11 October last year that the Welsh Secretary, Mrs Cheryl Gillan, set up the Silk commission and gave it two tasks. First, it was charged with reviewing the case for the devolution of fiscal powers to the National Assembly, on which it was asked to report by the autumn of this year. Secondly, it was given the task of reviewing the powers of the National Assembly, on which it is to report by 2013. Barely six months later, finding that she cannot wait for the commission’s report, the Welsh Secretary has surfaced once again, this time with a Green Paper on the future electoral arrangements for the National Assembly for Wales. How I wish the Welsh Secretary were here to answer the debate this afternoon. Although it is not possible, it would be far better than meeting Peers behind closed doors. However, we are fortunate that the noble and learned Lord, Lord Wallace of Tankerness, will respond. I know that I am not alone in admiring and respecting the Minister, who is held in high regard and with a deal of affection on all sides of the House. I feel sorry for him now that he has been asked to front-up the Green Paper for the Secretary of State for Wales.
I begin by asking the Minister what discussions the Secretary of State had with Paul Silk and his commission before embarking on the exercise of producing the Green Paper. Did she ask commission members what they thought of the idea of producing a Green Paper while they were in the middle of their deliberations? Did the commission consider that the Green Paper would undermine its task? What opinions and advice did the commission give to the Secretary of State? Will the Minister give us a full report of the discussions that took place between the Secretary of State and the commission, and perhaps also publish all correspondence on the matter? I suspect that while the Silk commission was busy carrying out Mrs Gillan’s task, she bypassed it and published the Green Paper.
The Government are obsessed with tinkering with the British constitution while bread and butter issues that affect most people I know are marginalised. For the past two years since they have been in government, this has been their main thrust.
Baroness Randerson
I was very interested in what the noble Lord said. Does he agree therefore that the Labour Party was obsessed with tinkering with the British constitution when it introduced devolution and other significant changes, including to this House?
Lord Touhig
There is a huge difference between what the Labour Party did in government and what this Government are doing. I shall develop the argument and thank the noble Baroness for allowing me to do so. For the past two years, the main thrust of the Government’s legislative programme has been about constitutional change. For a start, we had the biggest act of electoral gerrymandering—the noble Lord, Lord Elystan-Morgan, was more generous than me about this—with the Bill to reduce the number of parliamentary seats. It was all done for party advantage. The legislation was put forward by the Conservatives and warmly embraced by the Liberal Democrats. Government MPs and Peers trooped through the Division Lobbies time and again to reduce the number of representatives from Wales by a massive 25%. While the Labour Party and others valiantly tried to defend Wales, we witnessed the enthusiasm with which the Conservatives and Lib Dems forced through the reduction in the number of Welsh MPs.
How quickly that enthusiasm has evaporated. It evaporated when the Boundary Commission completed its review and produced the first draft of its report on 30 new parliamentary seats in Wales. If the report is accepted, Conservative and Liberal Democrat representation from Wales in Westminster will be all but wiped out. I judge that the governing parties are not as enthusiastic as they were about reducing the number of Members of Parliament for Wales.
The Fixed-term Parliaments Bill was designed to keep this failing Government in office no matter what happened. As a result, it is no longer enough for a Government to lose the confidence of the House of Commons before they lose office. It is now necessary for two-thirds of the Members of Parliament to vote to throw them out of office. The Bill is a blemish and a stain on Great Britain’s long and cherished democratic system of parliamentary democracy.
Here in the United Kingdom, we are proud of our past. We are proud of the fact that we moved from empire to Commonwealth. We see ourselves as the fountainhead of democratic government, which we tell ourselves is the envy of the world. We were encouraged and flattered when many newly independent Commonwealth countries followed our example of a representative parliamentary democracy. However, I contend that if the Government of one of our Commonwealth partners were to use such a blatant act of gerrymandering to stay in office, Great Britain would be the first to challenge and charge them. I have no doubt that the Liberal Democrats would be at the forefront of such a condemnation and would probably want that country thrown out of the Commonwealth. What high ideals and great principles a once great party of liberty has traded for a handful of ministerial red boxes.
In the middle of all this, we have the referendum in Wales on more powers for the National Assembly. I had some reservations about this, not so much about passing over more powers to the Assembly but about the fact that it represented a further piecemeal tinkering with our constitution, chipping away here and there rather than looking at the big picture. Capping this constitutional onslaught, we have the Clegg Bill to abolish your Lordships’ House and give our country 400 more paid politicians, who will have guaranteed highly paid jobs for 15 years, doubtless with a pension. I know people who would like a job—any job—let alone one guaranteed for 15 years. The Remploy workers would certainly like a job guaranteed for the next 15 years.
Finally, as my noble friend Lady Morgan of Ely said, we have the elephant in the room: a referendum in Scotland that could see our union split apart. Will all this constitutional tinkering never end? The Minister could do no better than go away from this debate today, reread this little blue book—I am sure he has already read it—and take up its sound advice. It recommends that we have a constitutional convention looking at the whole of the constitution of the United Kingdom, and stop this piecemeal tinkering with our constitution.
This Green Paper is a bit thin. It poses four questions, but why so few? If we must go through this process, there are many more questions that ought to be asked and answered. As the noble Lord, Lord Elystan-Morgan, said, now that the National Assembly has primary lawmaking powers, is it able to scrutinise the Executive and hold it to account? I am certainly not suggesting more Assembly Members—although I know that some people think we should have at least 80—I am simply asking whether, in view of the major lawmaking powers now held by the National Assembly, its Members can adequately scrutinise legislation. Can the Opposition hold the Welsh Government to account in a way that we would want them to do?
Moving on, should we not be asking about the system for electing Members of National Assembly? Frankly, the present system is barmy. I know it was introduced by my party; then again, madness and being a member of the Labour Party are not necessarily mutually disqualifying. It is a barmy system. In Wales we have 40 first past the post elected Assembly Members. On top of that, we have an electoral top-up system of 20 Members, which gives the party with the most votes no seats and the party with the least votes seats.
Take the last election: setting aside the election of 40 first past the post seats—I know some of your Lordships believe we should have a different system, as has been well articulated today—in the election for the 20 top-up Members of the National Assembly, the Labour Party polled 37% of the vote and got two seats. The Liberal Democrats, with 8% of the vote, got four seats, and the Conservatives, with 23% of the vote, got eight seats. In the North Wales region, Labour got 32% of the vote and no seats. The Liberal Democrats got 6% of the vote and one seat. In South Wales Central, Labour won 41% of the vote and gained no seats. The Conservatives won 22% and gained two seats and the Liberal Democrats, with 8%, got one seat. South Wales West was even more bizarre. Labour won a massive 46% of the vote and did not gain a single seat. The Liberal Democrats, with 7% of the vote, got a seat.
Is it not funny how the Liberal Democrats always gain the lowest vote but always end up as winners? I am sure their Conservative colleagues in government have come to understand that that is their working relationship. Certainly, it is a puzzle to me. I suppose it is what happens when you have coalitions. I just hope that the leader of my party will recognise that those who get the lowest votes often end up on top in these kinds of situations.
The electorate of Wales do not understand the present system, so why does the Green Paper not consult them? Further, if we are to have a PR element— I favour first past the post rather than PR—why do we not split the first past the post election from the election for top-up Members? The public would then vote for the party candidate of their choice in the first past the post election, and the party of their choice in the constituency part of the election, and their choices would be elected. Giving the electorate what they want might seem novel, but at least they would understand what they were being given.
On the whole there has been a negative reaction to aspects of this Green Paper—to what it does not ask rather than what it does. It is a friendless Green Paper. Not even the Conservative leadership in the National Assembly will support it—and if the largest party in government will not support it, why should we?
Lord German
My Lords, I start by saying how much I welcome the views of the noble Lord, Lord Touhig, which I presume do not represent the mainstream of the Labour Party, or the National Assembly would not have been created in the first place. Perhaps it would be useful to trace a little of the electoral history of the Assembly prior to 1997 and 1999. I first declare my interest as being in receipt of an Assembly pension. Also, last week in my absence, I was elected a director of Cymru Yfory, which is campaigning for the proposal of the noble Lord, Lord Richard, to have 80 National Assembly Members elected by single transferable vote. I will say more about that later.
On the history behind the electoral system for the National Assembly, some of us were engaged in discussions prior to the 1997 election of the Labour Government about how the Assembly should be elected. It was clear that those who favoured a National Assembly were not of the view that it should be dominated entirely by one party throughout its existence. Therefore, proportionality was an important facet of the proposals that were brought forward in the Bill of 1998. At the time, we were told by Ron Davies, the Labour leader on Welsh issues in Parliament, that the deal he could get through his party was the one that we ended up with in 1999, and which went into the 1998 Act. There was no doubt that it was fudged so that the Labour Party at some stage would have a majority in the National Assembly, but on most occasions would not. That was the political imperative driving the way in which the system was devised.
As a result, the system is not as proportional as that in Scotland. We must recognise that. We do not have the system of representation that the Scottish people enjoy. I will return in a moment to the noble Lord, Lord Foulkes, because I have a list—of which I would like him to take note—of members of the Labour Party who stood as constituency candidates in the most recent elections to the Scottish Parliament, and also stood as members of their party’s list. I will relate the list in a moment, but that is why we are where we are. Clearly, the campaign that started with the commission of the noble Lord, Lord Richard, was a move towards trying to make those changes.
Of course, some of us would like the changes to be made more quickly, but we are where we are because of other legislation that has come before us. I remind my noble and learned friend—we have been involved in these matters together for many years—that the Government of Wales Act 1998 states:
“The Assembly constituencies shall be the parliamentary constituencies in Wales”.
The Government of Wales Act 2006 states:
“The Assembly constituencies are the parliamentary constituencies in Wales”.
If that is the case, we will have to accept that the number that the Boundary Commission comes up with—which could be 29, 30 or 31—will be the number of parliamentary constituencies in Wales, and we could see a reduction in the total number, because 20 would remain.
The status quo cannot remain even if we retain the current 60 Members. It is quite right and proper that if we are going to hold the current position—and I have talked about where I want to see the position go in future—then we will have to have change. Those who argue for the current position will also be arguing for legislative change. Therefore, we have to consider the Green Paper that is before us.
There are some problems with a dual mandate of people putting their name on both sides of the ballot paper. However, in general terms, all you are doing is giving parties the opportunity to present their best candidates. I refer the noble Lord, Lord Foulkes, to Elaine Murray, Sarah Boyack, Lewis Macdonald, Claire Baker, Richard Simpson, David Stewart, Linda Stewart, John Mackay, Kieron Green, Donald Crichton, Gordon McKenzie, Greg Williams, Jean Morrison and Kevin Hutchens, some of whom were elected to the Scottish Parliament and all of whom were on the party’s regional list as well as being constituency candidates. This is perfectly appropriate and the Scottish Labour Party did the right thing by allowing the best people’s names to be put forward. Some of those people, who were preferred by the Labour Party in Scotland because of their talents, were duly elected to the Scottish Parliament.
The issue of the dual mandate has become somewhat different over the years. At the beginning, some Members of Parliament chose to put their names forward and stand for the National Assembly for Wales. For those who gave and devoted their time to it, it was a very useful and helpful device because parliamentary experience came to the National Assembly at the same time as experience from those who came from local government or who came with no political experience. Since those early days the trend has been the other way and Members have gone from the National Assembly to the House of Commons. As it is a full-time job, it is important that both the National Assembly for Wales and this Parliament should have full-time people elected to one or the other as swiftly as possible. The political parties have themselves been engaged in a regime with their own rules to ensure that this happens as rapidly as possible. The Green Paper proposes speeding this up so that it is dealt with more quickly than the current arrangement of waiting for the next election. There are powerful arguments for saying that if you are elected to do a full-time job, it should be done in one places.
On the balance of regional Members and constituency Members, we have not today raised the respective roles of regional Members and elected first past the post Members. I am the only person in your Lordships’ House who was elected as a regional Member in the National Assembly and I know very well that there are tensions. However, there will always be inbuilt tensions between Members of Parliament of different parties. If in a constituency there is a Member of Parliament from one party and a Member of the National Assembly from a different party, there will undoubtedly be tensions. The reality is that the elector has more choice. We can deliver choice to the electorate through proportionality. Another way is through creating a healthy tension between Members—not always of different parties—by having them elected to represent constituents. I do not see the jobs or the tasks as different, but the ability of the elector to choose and work with different elected Members is very helpful. I am therefore in favour of reinstating the names of regional candidates on the ballot paper.
The issue that we face today is whether we should debate constitutional issues relating to Wales and not other matters. I say to the noble Lord, Lord Touhig, that we will have a debate tonight on the Remploy issue. It is a named debate brought by the Liberal Democrats on an issue where there is unanimous support from all the disability groups named in this document for the changes that are going to take place in Wales. Of course, the only opposition that the independent study found was from the Labour Party and the unions. So we will have the opportunity to have these discussions in the Chamber.
Lord Touhig
Is the noble Lord now telling me that the Liberal Democrats support the campaign to keep the factories open in Wales, or are they going to do as they did before and support closing them?
Lord German
The Liberal Democrats support the policies that are evinced in this document—
Lord German
No—I ask the noble Lord will be patient for just a second. The position is that the Government have provided for groups of employees and their supporters to come together with options for building and retaining their own independent operations. That is what was recommended by the government report, that is what we are supporting, and that is in fact what will happen to a number of factories. If noble Lords want to engage in this debate, they can do so later this evening in the Chamber.
I was going to spend some time talking about the benefits of the Sainte-Laguë formula over the d’Hondt system but I will resist the opportunity to indulge myself. I will talk about five-year terms. I believe that the elections should be on different dates. As the noble Lord, Lord Wigley, said, it is not just about different manifestos but about different electoral systems. The Scottish experience of having an STV election on the same day as an election by the additional member system for the Scottish Parliament was very difficult because there were different arrangements and people had to mark their ballot papers in different ways. On top of the issues of manifestos and focus, it is right that the elections should be separated and that this should be locked in by having a five-year cycle for all.
In conclusion, the Green Paper is a very important document for discussion, and we will have an opportunity to debate it further. It raises crucial issues, all of which must be dealt with because the status quo is no longer suitable.
Lord Foulkes of Cumnock
My Lords, after the powerful declaration by the noble Lord, Lord Wigley, that this is a matter for the people of Wales and no one else, I rise with some trepidation. I do not even have the advantage of a name that can be brilliantly transposed into Welsh by the noble Lord, Lord Elystan-Morgan—
Lord Foulkes of Cumnock
Nor was I going to pray in aid the fact that I was born in Oswestry, because that is three miles over the border. However, as my noble friend said, there are some justifications for me to be able to speak in this debate.
Lord Morgan
Is my noble friend aware that his name actually begins with two little fs?
Lord Foulkes of Cumnock
Not any more, I am glad to say, because that would be very difficult. It is bad enough having a title without having two little fs in one’s name, especially in Scotland.
In an excellent and articulate speech, the noble Baroness, Lady Morgan of Ely, said that this was a matter for the people of Wales—as did the noble Lord, Lord Wigley. I took it that they meant the elected representatives of the people of Wales—we are not going to put everything to a referendum. We live and work in a devolved system and there are representatives of the people of Wales in this Parliament and in the National Assembly. This is devolution. We are not separate. We remain part of the United Kingdom and we still have a responsibility within this Parliament. We must exercise it with caution and care, but we have a responsibility.
This is not a party-political point, so I shall try to put it in a different context. I am genuinely worried that in a unicameral system such as that of Wales, if my party achieved an overall majority in both the Executive and legislature, it could change the electoral system so that it had even more of an advantage on a permanent basis. That would be wrong. We have to remember that checks and balances are needed in what I hope will remain a devolved system. I hope that this Parliament will be the check and balance that ensures that our devolved Parliaments do not do anything anti-democratic.
My second point echoes what my noble friend Lord Touhig and others said about the piecemeal nature of constitutional reform. In deference to the noble Baroness, Lady Randerson, I accept that my own Government did not consider fully the implications of the constitutional reform we undertook. We did it with the best will in the world, and I supported it because I had been a devolutionist for a long time. I campaigned for it as far back as the 1960s and 1970s. However, to some extent we did not work out all the consequences or anticipate some of the unintended consequences. It is important to draw lessons from that. We should learn from experience, and so I say to the current Government: be careful about what you are doing with this piecemeal constitutional reform.
As others said, we have many balls in the air at the moment. In Wales we have the Silk commission with two remits. Scotland will take a monumental decision, probably in 2014, on whether to remain part of the United Kingdom. That will have implications not just for Scotland and England but for Wales and Northern Ireland. Those have to be taken account of as well. We also have Sir William McKay—the other day I called him Bill McKay and was told off—heading a commission on the West Lothian question. We do not know when he will report or what he will say. My noble friend referred to the elephant in the room being the Scottish referendum. It may be the elephant, but we also have the rhinoceros of Lords reform. There are major things that will affect what we are doing. That is why I wonder if it is wise to press ahead so quickly with constitutional change in Wales.
I also wonder whether it is wise because there have been problems with the system. We have ended up with a dog’s breakfast not just with constitutional changes but with the electoral system. For those standing for seats in the European Parliament there is a list system. I shall take Scotland as an example. For the UK Parliament we have first past the post, for the Scottish Parliament we have AMS—which I shall come back to in a moment—and for local government we have STV. I have always been a strong supporter of first past the post. People will accuse me of being a tribal Labour loyalist, but I support it for a variety of reasons. They include stability of government, and the identity and accountability of the elected Member with the constituency. While I recognise that things have moved on, perhaps we should simplify the situation. The noble Lord, Lord Wigley, suggested STV for Scottish Parliament and Welsh Assembly elections. At least that would simplify and improve things to some extent. It should be looked at.
The existing system of AMS is almost the same in Scotland as in Wales. We have constituency Members and additional Members. Like the noble Lord, Lord German, I was a regional or list Member. There are two different kinds of Members. I confess that it was much easier for me as a regional Member to be without the constituency burden. I was a constituency MP for 26 years and I know the burdens. I did not have them as a regional Member. That is one thing that is wrong with there being two types of MSPs or AMs with different roles and pressures.
There is another thing that is wrong, relating to standing for both bodies. We, as a party, for three elections stopped people standing for both; and then we realised that that position was impossible to sustain. What happened was that initially—in 1999 and then in 2003—we held most of the constituency seats. Most of the SNP, our main opponents, were regional Members. The regional Members targeted a constituency seat, set up an office, adopted a candidate for that seat and challenged the local Member. That created problems as regards Members’ relationships with officials, and with MSPs of different parties raising the same kind of questions on behalf of constituents. That certainly created problems.
The other thing that the noble Lord, Lord Wigley, said about bringing in the AMS system was that it was to benefit the Labour Party. I wish to goodness that that had been the case. The Labour Party benefited from the previous system. The noble and learned Lord, Lord Wallace, knows this as one of the conspirators who achieved it on behalf of his party—although he was perfectly entitled to do it—knows that he and the Liberal Democrats negotiated with Labour in Scotland and managed to achieve the additional member system, which was replicated in Wales. I mean no disrespect, but Wales followed on and it strongly benefited the Liberal Democrats. I can understand why they are so enthusiastic about that system.
There are many things that need looking at. Even David Steel—I am sorry, the noble Lord, Lord Steel—who is one of the architects of this system, along with the noble and learned Lord, Lord Wallace, and others, is now disenchanted with the additional member system and thinks that we need to review it. This then relates to the point made by the noble Lord, Lord Elystan-Morgan, and others about the size of the Assembly. We are trying to make an artificial arrangement and assist the Government into having a 60-Member Assembly. It is a system that will not work with 60 Members, and having 80 does not seem to be a great improvement. I must say that a figure of 90 sounds about right. Of course, some people will throw their arms up and say that it will cost more money. I defended MPs’ salaries, which was not popular, but if 90 is the right number, we should have the courage to stand up and defend that view, and say that in order to have proper scrutiny, and a Government and Opposition who operate well, there needs to be more Members—especially if more and more is being devolved to the Welsh Assembly, there should be proper scrutiny of education, the health service and other devolved areas.
Then there is the question of double-jobbing. I had never heard that phrase until I read this Green Paper. I do not know who made it up. I do not think that the Minister had heard that wonderful expression. I think that officials suddenly came up with it. It is right to say that you cannot do both. If you choose an arbitrary point at which you must give up one seat when you get another, you have to be careful. Some degree of flexibility is needed. If there is still the AMS system for constituency vacancies, there must be a by-election. For regional vacancies, the next person on the list takes over. However, what happens for an independent Member? I hope that this never arises, but my lovely friend Margo MacDonald had to retire during her term in the Parliament. There is no mechanism for replacing her. That issue needs to be looked at, and I tried to raise it during our discussions on the Scotland Bill. The whole system needs to be reviewed, but this does not deal with that at all. It makes it worse. It does not deal with any of the problems properly; it makes them a great deal worse.
My plea to the Minister is this: go back to my good friend Cheryl Gillan. She is a Scot as well, which is interesting—
Lord Foulkes of Cumnock
She is an intelligent person. The Minister should go back to her and say that the time is not right to do this. It will make it worse, given all the implications that are looming. I agree with my noble friend Lord Touhig that probably the best and most intelligent thinking on constitutional reform that I have seen in 26 years in the Commons and now six years here is reflected in the alternative report that came out of the Joint Committee on House of Lords Reform. It asked for a comprehensive look to make sure—
Baroness Randerson
Does the noble Lord accept that under the current legislation, you cannot have the status quo without depleting the number of Assembly Members. I cannot recall without a close reading of the Government of Wales Act 2006, but I am absolutely sure that it must provide for an Assembly of 60. You could not have an Assembly of 60 under the current rules. Something has to be done and therefore a consultation is required.
Lord Foulkes of Cumnock
The noble Baroness may be right because she knows a great deal more about the detail of the position in Wales than I. If that is the case, perhaps I can make a plea to do the minimum necessary. Do nothing that will create problems in terms of the other things we are looking at. If it can be done, let us hold back until further consideration has taken place. I say that because the unintended consequences of constitutional reform can be very damaging indeed, as we have found in Scotland. We were told that we had a system of elections in which no party would ever have an overall majority, but of course that is manifestly not the case. As I say, sometimes the unintended consequences can be pretty dramatic, as they have been in Scotland. That is why we should think very carefully before embarking on something that could create many more problems than it is meant to resolve.
Lord Elis-Thomas
My Lords, we are due to finish at around six o’clock and some of us have trains to catch because we are double-jobbers. That is only a passing reference and I do not intend to spend any time on it. However, I do not think that this House should be accused of having people who are double-jobbers if they are also Members of the National Assembly for Wales. Perhaps the noble and learned Lord, Lord Wallace, might have a word with the Secretary of State about improving the quality of the language used in Wales Office Green Papers.
Today we have the advantage of meeting after the National Assembly has debated this issue. I know that the noble and learned Lord, Lord Wallace, will have read carefully on the National Assembly website the record of proceedings. A Motion was debated and there was a clear vote: 43 were in favour, with one abstention and six against the proposition that the National Assembly,
“believes that no change to the current electoral arrangements should be introduced by the UK Government without the consent of the National Assembly for Wales”.
That is the issue I want to pursue in my contribution because we started a very interesting discussion during the exchange at the beginning of this debate. The First Minister made it the main theme of his rather philosophical speech in the National Assembly debate. He linked the idea of the consent of the Assembly to the nature of devolution. He takes a rather different view from that of some of the Labour Members in your Lordships’ House who are taking part in the debate today. He invited the Assembly to agree that there should be no change without consent because he regarded it as a fundamental constitutional principle, as a necessary consequence of a constitution based upon the principle of devolution. My noble friend Lord Wigley quoted similar remarks published in the Daily Post this morning, a fine newspaper for which my noble friend is himself a fine columnist. But we will move on.
I ask the Minister what consideration has been given by the UK Government to the way in which they should proceed when they make changes to the electoral arrangements or other constitutional aspects of a sister institution—an elected legislature. Here we are not dealing even with a local authority, which is the creature of a statute of another place. Of course, the National Assembly for Wales is the creature of a statute of Westminster and could be abolished. However, in reality, because of the way in which elected bodies are established and powers laid upon them, they begin to take on a democratic life and identity of their own. They have powers and affiliations on that basis.
What was interesting and even exciting for me about the debate last week in Cardiff was that there was cross-party agreement on these issues in all the speeches, if not in the final vote. The leader of the Welsh Conservatives, a good friend of mine from the Vale of Glamorgan, said that the Assembly should determine its own boundaries. As one would expect, similar views were expressed by the leader of the Welsh Liberal Democrats, Kirsty Williams, on the importance of the consent of the Assembly. There was a very interesting exchange between the former leader of Plaid Cymru and Deputy First Minister Ieuan Wyn Jones and First Minister Carwyn Jones on an issue that was brought up in your Lordships’ House—the point was made just now by the noble Lord, Lord Foulkes—about how we could ensure that a party with an overall majority would not use a majority of one to change the electoral system against the wishes of the other parties. When Ieuan Wyn Jones asked whether there should be a two-thirds majority of Members of the National Assembly to make any change to the electoral system, the First Minister made a very considered reply. He stated:
“Ieuan asked”—
this is how we speak to each other in Cardiff—
“whether it would be appropriate to have a two-thirds majority of Assembly Members. Better that than no vote at all. Better that than that the Assembly should express an opinion without that opinion being taken into account in any way by the UK Government. I think that that is something that should be considered in the future and that it is something that is crucial and fundamental in terms of the Assembly”.
The First Minister of Wales and leader of Welsh Labour gave an assurance that he would allow consideration of a change to the electoral system only by a two-thirds majority in the National Assembly, in order to ensure that all the views in the Assembly were considered. We should contrast that with what is likely to emerge here. The UK Government will take it upon themselves to make the decision regardless of the views of the National Assembly. We have had no assurance on the meaning of consent. One of the first words that I heard from the Secretary of State and from the Prime Minister when I was in another job in the Assembly was a reference to respect for the Assembly. I am afraid that I do not hear that very often these days. I invite the Minister to use it this evening and to confirm that respect for the Assembly will include no changes to any system in the constitution of Wales without the agreement of the Assembly. If that requires a two-thirds majority, it is clear that the present First Minister of Wales is such a democrat that he is prepared to put the interests of the Welsh constitution well above those of his own party.
Lord Anderson of Swansea
My Lords, I have no interest to declare other than that I have enjoyed going down memory lane, being back in the Welsh Grand Committee and hearing contributions from a number of former colleagues there. Perhaps if I were to follow my good friend the noble Lord, Lord Touhig, I would confess that I was held up at Swansea High Street Station as I was trying to leave this morning by a queue of unemployed young people wanting to lobby me on the provisions of this Green Paper.
I follow the point about respect which is being made by the noble Lord, Lord Elis-Thomas. If we are to change constitutions, we should do so, as far as possible, after full and genuine consultation and on a non-partisan basis. If it were not so, the party which felt aggrieved would feel quite justified in altering the situation after another election. I felt that the reduction from 650 to 600 parliamentary seats was done in a partisan manner. It was a figure pulled out of a hat: it had a disproportionately adverse effect on Wales and will mightily reduce the weight of Wales at Westminster. The National Assembly is now a full and accepted part of the political landscape of Wales and is evolving in a highly mature way. The principle of respect mentioned by the noble Lord, Lord Elis-Thomas, should mean that, for a wholly internal Welsh matter like this one, we have some way of saying “Well of course it is a reserved matter; yes the Parliament here at Westminster has to have overall responsibility; but surely there should be some formula for subcontracting the real work on this to the Assembly”. In the spirit which the First Minister has shown, I am sure that there would be a very rigorous and proper debate there.
At this point in the progress of the Assembly—in a direction we know not where—they should be in the driving seat and we should be allowing them to make their own decisions. I agree with the Green Paper that the spirit is not an absolutist one. On the various issues which have been raised, people of good will can come down easily on one side or the other. To be fair to the Government, although they express their own preference, there is no closed book on this.
On the various proposals in terms of constituencies, we currently have a distribution of 40:20 and an overall number of 60. Whatever the merits of an increase to 80 or 90, I do not think Welsh public opinion would be happy to see this. I hear the arguments about leadership, but there is a strong tide flowing against more elected representatives. In spite of the recent accretion of powers to the Assembly and despite the fact that there will eventually be an overwhelming case for increasing the number, I am not persuaded that we have yet reached that point along the continuum.
I would like to have a personal chat with the noble Lord, Lord Elis-Thomas, on this, but the Assembly meets for two days a week, plus committees, and I do not have the feeling that it is overwhelmed. However, I hear the case that there is inadequate scrutiny and there may be an argument for finding more ways of having checks and balances on whichever party is the leading party in the Assembly. Whereas the House of Lords has a function as a check and balance on the Executive, there is no similar mechanism within the Assembly—but that is another debate for another time.
On the issue of 40:20, I recognise that there has to be a change and the most logical and easy one is to move to 30:30 in the mean time, using the 30 constituencies in Wales. However, I am not persuaded that the reduction in the number of seats to 30 will necessarily take place. If, as is very possible, the House of Lords Bill does not go through, particularly if the guillotine is not accepted—and the current mood among many Conservatives in the House of Commons is not to vote for the guillotine—there may have to be a deal where the Liberal Democrats would lose on the reduction of 650 to 600 and accept a delay on the implementation of the constituencies Bill and the Conservatives will say, “Well, House of Lords reform will go to another day”. If that is so, where are we left in respect of the consequential position in Wales if there is nothing to be consequential to? There is a strong case for not proceeding in haste on this but to see, if there is a deal struck and there is delay on the constituencies Bill, whether there is a case for not altering the status quo at this time.
A number of noble Lords have made the point that perhaps this Green Paper is not radical enough. The whole point of a Green Paper is that it sets out the stall and all the options. For example, it does not set out the possibility of having two Members per constituency in the Assembly, which I am not particularly wedded to but is worth looking at. That would be one means of having a gender balance. The gender balance is very good in the Assembly but it could be a means of institutionalising that. A whole series of more radical proposals could be looked at, which are worthy of debate, some of which I personally do not feel wedded to but at least could solve the gender balance institutionally. There are other, more radical things we could look at; for example, ways and means of having stronger checks and balances on the Welsh Government. The Green Paper is too timid.
On the length of term, the next general election is meant to be in 2015 and the next Assembly election in 2016. I am not a Chartist in favour of having elections every year, but there is an argument for shorter terms, particularly when there is not very much on the governmental side in Wales, to get closer to the people and give them the option of deciding on their representatives more frequently. There is also some merit in having cohabitation and a sort of creative tension between whatever party is in power at Westminster and the party in power at Cardiff. That is one thing that we need to look at.
On the question of the dual-hatting—
Lord Anderson of Swansea
I can see the arguments on both sides. In the 2003 Assembly election, I remember watching the televised results coming in and seeing the result in Llanelli, where the very able Helen Mary Jones was virtually in tears, having lost her seat. An hour later, she had sped down the road to Carmarthen and was rejoicing in the fact that she was elected after all. That is not very democratic. In many ways, I am sad that Nick Bourne lost his seat because he was a very able man, but that is democracy. We have to accept that at Westminster; why should we not accept in the Assembly that it is one of the hazards of political life to lose your seat? I did it in 1970, alas, and it taught me many lessons. But the point about the election in North Wales, where everyone who was defeated in the constituency got in by the back door, is that there is something not totally democratic about people who are defeated by the electorate rejoicing in being accepted by the electorate very shortly afterwards.
I have one quick final word to say on multiple mandates. When I first entered Parliament many years ago before the flood, many people in local government also sat in the Westminster Parliament. I fully accept that that is now impossible because of more pressure on Members of Parliament, including from their welfare role, and because there is more pressure on councillors. I am rather tempted by the concept frequently used in France of having a deputy mayor, whereby someone can be both a parliamentarian and mayor of his village. I would love to be mayor of, say, Llandaff and sit in Parliament. At least such an arrangement would, institutionally, provide an opportunity to listen to the folks at grassroots level and bring their views to Parliament. I agree that it is impossible for a man or woman to serve two masters—to be in both the Assembly and in an elected-Member Parliament. However, the noble Lord, Lord Elis-Thomas, is a prime example of how today and previously he can bring the views of the Assembly to Parliament. In the relevant paragraph of the Green Paper, something should surely have been said about the way in which this House can be used, even in the event of the House being reformed on an 80:20 basis. There is no reason why some of the 20 Members should not be drawn from the Assembly. They could bring the views of the Assembly to Westminster in a more direct way. I can see no objection in principle to that and I echo what many Members who have contributed in the debate have said about piecemeal reforms. Alas, we do our constitution in a very piecemeal way, and this Green Paper is but yet another example of that.
Baroness Gale
My Lords, I thank the Minister for his opening remarks and I thank all those who have spoken. We have had a good typical Welsh debate, and a welcome contribution from my noble friend from Scotland, for which I thank him very much. The speeches set out the often different views of the political parties in Wales, and those of the noble Lord, Lord Elystan-Morgan. I note that the noble Baroness, Lady Randerson, mentioned the remarks of Peter Hain, who said that there could be confusion about the different boundaries. He said that in relation to having elections on the same day, rather than about the confusion of having permanently different boundaries for Parliament and the Welsh Assembly. The noble Lord, Lord Elystan-Morgan, praised my noble friend Lady Morgan of Ely for being on the Front Bench. However, I think he elevated her a little too soon. I have absolutely no doubt that one day she will be on our Front Bench. I asked her if she would like to sit with me to keep me company. Obviously, her great speech made one think that she was on the Front Bench.
Lord Elystan-Morgan
I do not want to elevate myself too high, but sometimes I have the eye of the prophet.
Baroness Gale
I can agree with that. I thank my noble friend for her great speech in which she mentioned that the Green Paper expressed hope that there would be no advantage to any party. The noble Baroness, Lady Randerson, mentioned the voting figures and how things were working out, and raised the issue of party-political advantage. I welcome the Secretary of State saying that there should be no advantage to any political party. However, when one looks at the voting figures and the regional list results that my noble friend Lord Touhig mentioned, one sees that on an all-Wales basis Labour got 36.9% of the vote—the highest percentage—and two seats. The Liberal Democrats got 8% of the vote and four seats.
Baroness Randerson
The noble Baroness overlooks the point of the list system, which is to put right the disproportionality of the first past the post system. In the three recent elections in Wales, the overall proportionality of both list and constituency seats resulted in the three main parties getting roughly the same number of seats as they got percentages of the vote, although the Labour Party always got a higher percentage of seats than of the vote.
Baroness Gale
I thank the noble Baroness for that intervention. Perhaps I may remind noble Lords that it was the Labour Party that brought in devolution and agreed that there would be an element of proportionality. We wanted a brand-new institution in 1999. I and many others in the Labour Party did not want it to look like the old Glamorgan County Council that many of us could remember, which was totally dominated by the Labour Party and had very few representatives from other parties. With the new institution we wanted to involve all parties so that everybody who voted for the smaller parties would have a chance to be represented in the Welsh Assembly. I am very proud that the Labour Party was able to do that.
Gender balance has been mentioned a few times this afternoon. The gender balance in the Welsh Assembly has been pretty good. Again, much of this was brought about by the Labour Party. We guessed that we would win most of our seats in the constituencies, so our policy was to have an equal number of male and female candidates. As a result, a good number of women were elected in the first election, and by 2003 there were an equal number of men and women. It was the first democratically elected institution in the world to have an equal number of men and women. Proportionality does not necessarily mean that you will get more women unless every party puts them at the top of the list.
As my noble friend Lord Touhig said, this consultation paper has been brought out at a time when the people of Wales have much to concern them. Many are concerned about their jobs, or lack of them—young people are worrying about whether they will get a job—and about the lack of economic growth. I refer, for example, to young couples wanting to buy a house. These are the issues worrying Welsh people today. I assure the Minister, as other noble Lords did, that they are not particularly concerned about electoral arrangements for the Welsh Assembly, which must surely come at the bottom of their list of their concerns. Unfortunately, Welsh people have much more important things to worry about.
Since the referendum of 1997 when the Welsh people voted in favour of devolution, all major changes have been made after either a manifesto commitment or a referendum that allowed them to decide how they wanted devolution to evolve. We are not advocating a referendum before any changes are made, but there should be at least a manifesto commitment in the spirit of devolution to allow Welsh people to make their views known.
The Green Paper offers four matters to be consulted on: the size of the constituencies, the ratio of list Members to the constituencies, and the retention of 60 seats, although a number of noble Lords today have mentioned 80 seats. Indeed, I thought I heard for the first time the figure of 90 mentioned. Eighty seats have been talked about in the past, but everyone recognises that this is not the time to increase the number of seats in the Assembly. The Green Paper also asks whether there should be a fixed term of five years, whether candidates should stand for both constituency and regional lists, and whether AMs can also be MPs or Peers.
We already have four-year fixed terms, but it has been agreed that this Assembly will serve a five-year term until 2016 to avoid clashing with the planned general election in 2015. Should we now move to a permanent five-year fixed term? If we revert back to a four-year term, we will get the same problems in 2020 when the general election and the Assembly elections would be held on the same day. I think that the general feeling is to hold the elections at separate times. We all know why that would probably be for the best, but it is right that we should consult on the matter. However, there is a widely held view that the two elections should not clash.
In the Government of Wales Act 2006, the Labour Government did away with what we believed was the anomaly of allowing a candidate to stand both for a constituency seat and in the regional list. That was a manifesto commitment made for the 2005 election. It was something that confused the Welsh electorate. A candidate who was defeated in the constituency could then become a Member of the Welsh Assembly by virtue of being on the regional list. It is now clear that defeated candidates in the constituency cannot gain a list seat; they must make a choice on whether to stand for the constituency or in the regional list.
Should people be able to serve in the Assembly and in the House of Commons or the House of Lords? It will be interesting to see what comes out of this consultation. There is a view that there should be some degree of overlap for a period of time because if someone who is a Member of the House of Commons is then elected to the Assembly, there should be a period of overlap to allow exchanges to take place. That happened in 1999 when a number of MPs were elected to the Welsh Assembly and stood down at the next general election. It also happens the other way around, with AMs being elected to the House of Commons.
The present arrangement of 40 constituency seats and 20 list seats, a ratio of two-thirds to one-third, is how the Assembly has been elected since 1999. If the boundaries change and the number of constituency and list seats changes from the present ratio of 40:20 to 30:30, this will be regarded as a major change, not just a minor adjustment in how Members of the Assembly are elected. The Secretary of State says in the Green Paper that the Government prefer option 2, to make the parliamentary boundaries and the Assembly boundaries the same. She states that there is,
“greater complexity in having different boundaries for Parliamentary and Assembly elections than the present arrangement”.
However, Scotland has different boundaries, which means that an analysis could be made to see if there are difficulties for Scottish electors when they cast their votes. However, to my knowledge, no analysis has been made. There is no evidence to suggest that there are problems in Scotland and therefore no evidence to justify the case the Secretary of State is making for the 30:30 ratio. We note that the Government are not proposing such a measure for Scotland.
The fundamental point of principle here is that it is for the people of Wales to decide on major changes to their electoral arrangements, either through a referendum or by a manifesto commitment. In a debate on the Green Paper in the Welsh Assembly on 12 June, First Minister Carwyn Jones said:
“I received an assurance on two occasions from the Prime Minister that there would be no change without the consent of the Assembly, and I am on record as saying that. I took that assurance in good faith and I expect it to be adhered to. However, the reality is that Scotland will continue to have different boundaries for Scottish Parliament and UK Parliament constituencies. If it works in Scotland, what evidence is there that it could not work in Wales? None is offered”.
I am very pleased to see the noble Lord, Lord Elis-Thomas, in his place today, taking part in our debate. He has confirmed that when he was Presiding Officer he too received assurances from the Prime Minister and the Secretary of State that there would be no changes to the boundaries to coincide with the Westminster boundaries. What are we to believe regarding commitments given by the Prime Minister as far as Wales is concerned? Last year we had a UK referendum on the voting system to the House of Commons but at least we knew this was a commitment of the coalition Government. Where was the commitment for this Green Paper? As the First Minister said last week, it has come “out of the blue”.
The Green Paper is before us and my party will play a constructive role by making a submission to the consultation. I understand that the Government will publish their response in November. When could we think of having a further debate on the Government’s proposals, and when can we expect legislation? Finally, I ask the Minister: why are the coalition Government reluctant to allow the Welsh people to decide on these matters for themselves? Why instead are they taking this top-down approach? It is our belief that it is for the people of Wales to decide what kind of electoral system they want. Let them decide what they believe is the best system to serve democracy in Wales. I look forward to the Minister’s response.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who took part in this debate, which has been very useful. First, I acknowledge a comment by the noble Lord, Lord Elystan-Morgan. I was indeed aware that the origins of the name Wallace come from the Shropshire-Wales boundary; I think the names are very similar. That only proves to me that we are pretty much a mongrel island and therefore those who would try to artificially break it up should reflect on the fact that peoples have moved around these islands for centuries. That may be one of the things that bind us.
The noble Lord, Lord Touhig, asked why we were debating this as opposed to many other issues. I think it is a red herring to claim that if you are focusing on one thing you are completely ignoring other issues. There is no doubt that the Government are absolutely committed to pursuing the economic objective of recovering the country’s finances from the situation we inherited in May 2010. Very often that is not done by legislation, and just because we are focusing on one or two items of legislation does not mean to say that we are taking our eye off the ball on the fundamental issues of the economy.
I would welcome more debates on Welsh issues, be they economic or otherwise. Having served in the House of Commons, the Scottish Parliament and the House of Lords, the ways in which the usual channels move are mysterious and wondrous to behold, but I am sure that we will try to find other opportunities to debate Welsh issues, and that there will be general support for that on all sides of the Committee.
Lord Touhig
I am most grateful for that commitment from the Minister. As the grandson of Katie Wallace, I knew that I could always trust a Wallace.
Lord Wallace of Tankerness
The noble Lord is my kinsman.
A number of noble Lords raised questions about the voting system and the size of the Assembly, so I should perhaps say at the outset what this consultation paper does not try to do. It was never the intention that it should open up these far more fundamental issues. It was clear from the comments of the noble Lord, Lord Anderson, that there is no consensus on the size of the Assembly. Although this is not an issue for this consultation paper, the speech of the noble Lord, Lord Elystan-Morgan, on the need for scrutiny, and the presidency—or vice-presidency—of the organisation to promote an Assembly of 80 Members elected by STV, to which my noble friend Lord German has recently been appointed, lead me to suspect that it will not go away.
When the Silk commission moves on to Part 2 there will be an opportunity for representations to be made, not on the voting system but on where the responsibility for that may lie. I may want to come back to this issue. It would have been wrong, in this consultation, to have gone into the much wider issues of the size of the Assembly or the voting system. It is intended to address mechanisms because of a situation that has arisen as a result of the two pieces of UK legislation to which I referred.
Lord Elystan-Morgan
My Lords, I was seeking to make the point that there is an inexorable nexus between the issue of a possible 90-Member Assembly and the question of the need for a minimum number of persons available to scrutinise legislation. I was unwilling to nail my argument to any particular number. My understanding is—and my noble friend Lord Elis-Thomas may be able to confirm it—that on one count the number of persons available to scrutinise would possibly be as low as 18. If that is true, one is talking not about the efficiency of an Assembly but about the very existence of an Assembly.
Lord Wallace of Tankerness
The noble Lord raises an important point about scrutiny, which was echoed by the noble Lord, Lord Foulkes, when he spoke about unicameral situations. However, that goes far wider than what we seek to do in this Green Paper. That does not mean to say that the debate will not continue. The matter must be addressed in the Green Paper as a consequence of the Parliamentary Voting System and Constituencies Act and the Fixed-term Parliaments Act. There may have been a slight misunderstanding by my noble friend Lord German. Both the Government of Wales Act 1998 and the Government of Wales Act 2006 stated that individual constituencies for the National Assembly of Wales would be the same as Westminster constituencies. That link was broken under Section 13 of the Parliamentary Voting System and Constituencies Act, so the status quo would be to have the existing 40 Welsh Assembly constituencies plus the 20 regional seats and, as is widely anticipated, the 30 Westminster seats.
We are bringing forward this Green Paper because two choices must be addressed. The status quo is not an option because, under the present arrangements with 40 Members, the constituency of Arfon—which I think the noble Lord, Lord Wigley, represented in the previous Assembly—has an electorate of some 40,000, and Cardiff South and Penarth has an electorate of between 76,000 and 78,000. That is a disparity within Wales and therefore a boundary commission would look at the size of the constituencies even if the number remained at 40. One way or t’other, we are either going to have a boundary commission to look at the 40 constituencies or move to the 30:30 system, as indicated in the Green Paper. It is in that context that we must look at these proposals. I say to the noble Baroness, Lady Morgan, that this is why it needs to be done and why we are consulting on it now.
Baroness Morgan of Ely
I accept that and I hope I made it clear that I understand why it needs to be done. There is a legal hole that needs to be filled. However, I wonder if the noble and learned Lord could address the issue raised by my noble friend Lord Foulkes. Why can we not keep this to an absolute minimum? Why can we not plug the legal hole and look at the broader questions once the Silk commission has reported?
Lord Wallace of Tankerness
My Lords, the primary consultation is about plugging the legal hole, but it is only fair to point out that when we agreed to extend this term of the Welsh Assembly and the Scottish Parliament to five years, I indicated from the Dispatch Box in the Chamber that we would consult on whether that should be a permanent arrangement. It seems an appropriate time to do that. Also, the issues of whether a person should be allowed to stand for the regional list and a constituency or whether there should be so-called double jobbing fit in neatly when a consultation is being undertaken.
Perhaps I may respond to a specific question put by the noble Lord, Lord Touhig, about the discussions between my right honourable friend the Secretary of State for Wales and Paul Silk. The terms of reference for the Silk commission, which were agreed by all the political parties in the Assembly, specifically exclude the Assembly’s electoral arrangements. It would not be appropriate to discuss with Paul Silk a matter that is not within the commission’s remit. However, it is the case that my right honourable friend has regular discussions with Paul Silk, as chairman of the commission, with regard to its progress.
Lord Anderson of Swansea
On the point of commitments, can the Minister tell us today what specific commitment was made to the First Minister by the Prime Minister in terms of consultation?
Lord Wallace of Tankerness
My Lords, I have heard of that before today. I can confirm that the Prime Minister and the First Minister have met on a number of occasions and it is my belief that, among other matters, this issue has been discussed, but I am not aware of any firm commitment on the part of the Prime Minister. I know that the issue has been raised, but I am not aware of the nature of any firm commitment. I cannot go beyond that because it is not a matter within my knowledge. I am aware that the matter has been raised, but I am not aware of any commitment having been made.
Lord Wigley
I am very grateful. The Minister will be aware of the tenor of the representations that have been made not just from this side, but also from certain colleagues on the other side. It should be the wishes of the people of Wales as expressed in the National Assembly that determine the outcome. Will he therefore give an undertaking to those noble Lords who have taken part in the debate today that he will take the message back that this is the expectation of Wales, and that we would like a response to that representation?
Lord Wallace of Tankerness
My Lords, I am coming on to address that point and I accept that it is important. In terms of taking messages back, I can assure noble Lords that these proceedings will be read, it is fair to say, avidly by my right honourable friend the Secretary of State. Not only will I report back, but I am sure that they will be read in the Official Report.
Lord Touhig
I apologise; the noble and learned Lord is being very generous in giving way. I accept what he says about the Silk commission being excluded from looking at the situation in Wales, but the point of my question was this: was the Silk commission consulted about this Green Paper because it has come out of the blue for all of us?
Lord Wallace of Tankerness
My Lords, it is my understanding that the commission was not consulted, but that was because what this Green Paper is about is beyond its remit. Questions have been raised about these deliberations, and I am aware of the debate last week in the National Assembly for Wales. The fact—one that has been reflected by a number of contributors to the debate—is that the electoral arrangements of the Assembly are a non-devolved matter. The matter is reserved to this Parliament. Indeed, the noble Lord, Lord Foulkes, made the point that Wales has two Governments: it has a Government in Wales in the National Assembly and also has a Government here at Westminster. The devolution settlement agreed in the Government of Wales Acts 1998 and 2006, and the distribution of powers that was approved only last year in a referendum, retain the electoral system and arrangements for the Assembly as being matters for the Westminster Parliament.
I accept that those in Plaid Cymru who aspire to much greater powers for the National Assembly for Wales would argue the case that electoral arrangements, and possibly the system, should be devolved—albeit with a two-thirds majority—and clearly that case can be made. The Silk commission does not have within its remit the current electoral arrangements but it does have within its remit the distribution of powers between the Westminster Parliament and the Welsh Assembly. I have no doubt that representations to that effect will be made, but that is not the current devolution settlement.
Lord Elis-Thomas
Will the Minister accept that I was not arguing on behalf of Plaid Cymru—I very rarely do, according to some of my party colleagues—but that I was reflecting the agreed consensus of the National Assembly on Tuesday? The UK Government at Westminster ignore such views at their peril.
Lord Wallace of Tankerness
If I did suggest the noble Lord was expressing a party view, I did not intend to—although I think I rather know where he will come from in terms of the distribution of powers. Of course Her Majesty’s Government will have regard to the views of the Assembly, and of all who contribute. We are very keen for people to contribute. It is not the position at present that we should subcontract to the Assembly—as I think the noble Lord, Lord Anderson, put it—given that there is a settlement that has been voted by Parliament and supported in a referendum. But I repeat that we will have regard to the views of the Assembly.
There is no way we are going to change the constitutional arrangement for responsibilities when I have indicated from the outset that there is a need to do something: either have the 40 seats with the new boundaries, which would require the Boundary Commission to be given responsibility for doing that, or move to the 30:30. Of those who expressed a view, the balance was that there were merits in the 30:30 arrangement. The noble Lord, Lord Elystan-Morgan, said that otherwise there could be conflict or a lack of cohesion. My noble friend Lord Roberts of Conwy said there would be less confusion for electors or party organisers. I think we would all accept that at the end of the day the electors are more important than the party organisers, but let us not forget that the parties and the party organisers help the wheels of democracy to turn and it is important that these wheels are properly oiled. The noble Lord, Lord Wigley, made the point that whatever we do, it should not be less proportional. Clearly 30:30 would not be less proportional, but if 30:30 was doubled up with Members elected by first past the post, that would be less proportional.
The point was made about the position in Scotland. It is fair to say that in Scotland the boundaries for the Westminster constituencies are different, principally because the link was not broken between the parliamentary constituency and the Scottish Parliament constituency. When the Westminster Parliament reduced from 72 to 59 pre-2005, there would have been an automatic reduction in the size of the Scottish Parliament, as intended by the 1998 legislation—I remember the debates—but by the time we got there, there was a view that that was not right, that the parliament should not decrease in size, and therefore the link was broken. That was the history of that. In 2006, the Arbuthnott commission reported that,
“most individual voters surveyed ‘claimed not to care’ about whether constituency boundaries were coterminous, and that it was ‘not an issue which would dissuade them from voting’”.
I appreciate that people have strong views on this issue and that is precisely why we are consulting on it.
On the position of the five-year fixed term, I think that there was a consensus across the Committee, given what has happened and the recognition that it was not desirable in 2015 to have elections on the same day, that the arguments that were persuasive then remain persuasive. With regard to my noble friend Lady Randerson, it is my understanding that local elections in Wales are a devolved matter, but Welsh Ministers have moved the 2016 local elections in Wales to 2017 to avoid a clash with the Assembly election. That matter has clearly been addressed.
As regards the ban on double candidacy—and the quality of any democracy is how it considers a range of parties—the point was made that it impacts more heavily on the smaller parties. The noble Baroness, Lady Morgan, and my noble friend Lady Randerson mentioned the position of the Leader of the Welsh Conservative Party who was rewarded for his party’s success by losing his seat, which seems to be somewhat ironic. It was the noble Lord, Lord Wigley, who said that if international comparisons are to be made, it is probably only the Ukraine that does this. The point was also made by the Arbuthnott report in Scotland that the electorate did not have a problem with people standing in both the individual constituency and the regional list.
On the question of double jobbing—I will certainly report the angst about the terminology—again it is quite clear that there are issues on both sides, and that is why the Government are consulting on this. I was struck by what the noble Lord, Lord Wigley, said about how difficult he found it. We are all declaring interests and, after the Scottish Parliament was established in 1999, I served for two years as both the Member of Parliament for Orkney and Shetland and the Member of the Scottish Parliament for Orkney. I managed to do that because I knew that I was not going to do so beyond 2001. There is an issue as to whether, if we were to go down that road, there should be some flexibility whereby people could see out a term of office to avoid a by-election, particularly if they have only one year left. However, I hear what the noble Lord, Lord Wigley, said about perhaps there being an automatic election; and that is clearly a relevant consideration to take into account in a consultation.
I realise that I have probably not done justice to everyone’s comments, but I hope that I have addressed the main points raised. I assure the Committee that the contributions to the debate will be taken into account, as indeed we will pay proper respect to the views expressed in the National Assembly for Wales.
House of Lords
Telecommunications: Mobile Phone Services
Lord Alderdice
To ask Her Majesty’s Government, in the light of their commitment to ensuring adequate mobile telephony services throughout the United Kingdom, what action they are taking to ensure that mobile phone operators provide and maintain services and coverage to rural populations.
Lord Redesdale
My Lords, on behalf of my noble friend Lord Alderdice and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
Baroness Garden of Frognal
My Lords, in autumn 2011, the Government announced £150 million to improve mobile phone coverage across the UK: the Mobile Infrastructure Project. Analysis has shown that the majority of areas of poor or non-existent mobile coverage are rural. The Government are currently procuring a supplier to build the required infrastructure. Decisions on precisely where to site the infrastructure will be taken once that process has been completed later this year.
Lord Redesdale
My Lords, I thank my noble friend for that reply. My noble friend Lord Alderdice has pointed out that, in April this year, the residents of Glenariff, a rural area of Northern Ireland, had their mobile mast switched off, which left them without coverage. As a resident of rural Northumberland, I am quite aware that whereas the map—and I have looked at it very carefully—will sometimes indicate that you have good coverage, you have very poor coverage or none at all. Is the Minister sure that, despite the £150 million being spent, Ofcom has the power to force companies to improve that service in areas which have no coverage or very poor coverage?
Baroness Garden of Frognal
I thank my noble friend. I am aware of his love of the wide-open spaces, which are quite possibly parts of the country where coverage is poorer. Ofcom will always consult providers to try to ensure that, when the deals are made, the coverage is as substantial as it can be. However, these things will always be subject to commercial and business needs as well.
Lord Trefgarne
My Lords, is the Minister aware that there is another side to this story? While all of us support the need for the best possible mobile communications, including in rural areas, it means that we have to put up with large numbers of hideous masts, sometimes even in urban areas. Will she therefore encourage the mobile telephone companies to develop technology which does not need those masts—for example, using satellites?
Baroness Garden of Frognal
Indeed, my Lords, I am aware that there are those who object to some of these great structures; planning permission and planning requirements are always part of the process when the deals are done. There is certainly ongoing work to look at possible satellite links, which, as my noble friend says, would obviate the need for the large structures. At present, that is still a very expensive option which will doubtlessly come down in price as we go on. However, the structures are currently the main way of getting the mobile frequencies.
The Lord Bishop of Exeter
My Lords, I found the Minister's response very encouraging, and I acknowledge what has been done in extending 2G and 3G roaming. In a place such as Devon, even market towns are pretty well provided for now, but in the most rural areas, not just the most remote ones, coverage is still very patchy indeed. There are large parts of Devon where there are service levels restricted to calls, texts and e-mails with only limited access to mobile internet. That impacts very negatively on both community and commercial life. Would the Government consider amending the reporting requirements to include a percentage of geographical area covered as well as a proportion of the population?
Baroness Garden of Frognal
The right reverend Prelate makes a very apt point. I know the parts of the country to which he refers and how difficult it is to stand on the roof trying to get a signal on one’s mobile. Yes, that could certainly be one of the requirements on the operators in a bid. At the moment, we understand that there are more than 80,000 premises in complete not-spots where you simply cannot receive, and the intention is to cover at least 60,000 of those premises, if we can, with new technologies.
Baroness Jones of Whitchurch
My Lords, does the Minister agree with the Ofcom consumer panel that a pure market approach to the extension of mobile technology has reached its economic limit? Does she therefore agree that in order to ensure the extensive coverage rurally that we all desire, it should be made an explicit condition of the bids for the forthcoming 4G spectrum auction that the operators comply with that?
Baroness Garden of Frognal
The noble Baroness makes a very valid point. As I mentioned earlier, economic requirements will always be part of such bids, but the question of conditions for the forthcoming auction of spectrum to roll out 4G mobile broadband services is a matter for Ofcom, and Ofcom has consulted on options for delivering 4G coverage, including an option that would require either one or all of the 800 megahertz licences to cover 98% of the UK population. The points that she raised will undoubtedly be considered for that auction.
Lord Wigley
My Lords, does the Minister accept that in many rural areas this is not only important for tourism but is often a matter of life and death along our coastlines and in our hills? What obligation is there on Ofcom to consider the question of safety and security in such circumstances?
Baroness Garden of Frognal
Indeed, my Lords, we are aware of that. As I said, it is always a question of taking the balance of the commercial factors, the planning factors and the fact that, as the noble Lord said, in some areas having no signal can be extremely hazardous. Probably, the long-term answer will be the point raised by my noble friend of going to satellite communication for such areas, but at the moment, this is one factor. As I understand it, health and safety is not specifically taken into consideration, but in the overall package of service to the community, that would be part of what Ofcom would look at.
Lord Swinfen
My Lords, what is being done to improve broadband for e-mail in rural areas? I declare an interest, as I run a charity that relies solely on e-mail.
Baroness Garden of Frognal
The issues around e-mail run into the same sort of practicalities as e-mail for mobile. We hope that, as these technologies advance, so the provision for e-mail will become easier as well. Once again, I fully acknowledge my noble friend’s point.
Lord Campbell-Savours
Are we not going a bit soft on some of these operators? They make vast profits, but there are large parts of the country, including large parts of Cumbria, where there is no signal at all. Companies such as Vodafone have got away with it for decades, and the Government should act.
Baroness Garden of Frognal
I do not think the Government are that relaxed. The noble Lord’s point is, of course, absolutely right, but there has to be a balance. Often, putting up the structures to support the sort of reception that he is looking for does not get planning permission in the first place and is commercially expensive when taking into account the handful of people who would benefit. Obviously, all these factors will be taken into consideration when the new generation— 4G—comes on stream, so that communication becomes more possible for more parts of the country.
Baroness Fookes
Has any thought been given to the use of existing tall buildings rather than hideous new masts? I believe there is a right reverend Prelate who is doing rather a brisk business with church towers.
Baroness Garden of Frognal
I was not aware of that, but using churches in high and rural areas may be a great solution. I am sure that all these considerations are taken into account when deciding where to place the receivers.
Apprenticeships: Ethnic Minorities
Baroness Hussein-Ece
To ask Her Majesty’s Government how many people from an ethnic-minority background aged 16 to 24 are undertaking apprenticeships.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, final data for the 2010-11 academic year show that 8.7%—that is, 23,890—of new apprentices aged under 25 were from an ethnic minority background. This figure has increased from 7.2% in 2009-10.
Baroness Hussein-Ece
I thank my noble friend for that reply. However, she will be aware that over 55% of black men aged between 18 and 24 are currently unemployed, a figure which has nearly doubled since 2008; that ethnic minorities are underrepresented in the Government’s apprenticeship schemes in the more prestigious industries such as construction and engineering; and that those who do manage to get on an apprenticeship scheme are less likely to progress to a related job. So although I welcome the review they are undertaking, will the Government address in this review and monitor the number of ethnic-minority people—as well as women and people with disabilities—who are taking up these apprenticeships in order to ensure equal access?
Baroness Wilcox
I agree with my noble friend that there is scope to ensure that apprenticeships better support learners from a wide range of backgrounds. I am aware of her interest and her expertise in this area and her excellent work for the Equality and Human Rights Commission. My colleagues in the other place and I are very keen that the apprenticeships programme should be genuinely accessible to all. I do not have time to go into it all now, but I would welcome the opportunity to meet with my noble friend to discuss any more thoughts she may have that we can take forward.
Baroness Whitaker
Does the Minister know how many Gypsy, Roma and Traveller young people have been offered apprenticeships, and if not could she please find out?
Baroness Wilcox
I heard the question as being about Travellers. I do not have any information on that here with me now but I would be only too delighted to talk to the noble Baroness. We have seen an awful lot of programmes on the television recently about weddings and Travellers et cetera, and I think that we have all become much more familiar with the life they lead and the difficulties associated with that roaming lifestyle. I would be only too delighted to come back with the information, not only for the noble Baroness but for myself.
Lord Naseby
Is it not good news that apprenticeships in general are increasing? Furthermore, the proportion of apprenticeships that are going to the ethnic community is increasing. Is it not a fact that the shortfall is in particular areas of the country? Certainly in the East Midlands, which is the area I know a bit about, the number of ethnic apprentices is, as far as I am aware, pretty competitive, and they are getting good jobs at the end of it.
Baroness Wilcox
My noble friend is quite right: there are things to celebrate. The number of apprenticeships is growing, and we want to ensure that they take people forward to the skills that we require. We have two pilot schemes running at the moment. Diversity pilots are investigating ways of increasing apprenticeship take-up and success, and a final evaluation of these will be done very soon. We have also just started the Richard review into the future of apprenticeships to examine where they are happening across the country and how. So, yes, I agree with my noble friend.
Baroness Wall of New Barnet
Is the noble Baroness aware of the project being run by Unionlearn, which is part of the TUC? It is working with SEMTA and the sector skills councils on equality and diversity and, specifically, on apprentices in the engineering sector. I wonder whether the Minister would like to use that as a good example for use in ensuring that all that has been said previously will take place.
Baroness Wilcox
I am delighted to answer that question. Yes, I do know about Unionlearn, and I know that it is going well. The National Apprenticeship Service and the TUC are planning to carry out research into this issue. The apprenticeship unit has met with the Equality and Human Rights Commission and the TUC to ensure that people from all ethnic backgrounds are able to access apprenticeships and are supported throughout those apprenticeships. I am only too delighted to be working with the TUC.
Lord Willis of Knaresborough
Will my noble friend please tell the House how many apprentices have been recruited to her own department and how many of them, as a percentage, come from ethnic-minority backgrounds?
Baroness Wilcox
My noble friend has asked a very good question which he knows I cannot answer. I would love to have an apprentice or two. Unfortunately, we have cut down on our staff so much—
Baroness Wilcox
Yes, we have. We have had to cut down on the number of staff in BIS to ensure that we can actually be economically viable. However, we would love to feel that we could start taking on apprentices, if we could have enough people to help train them on with us.
Lord Patel of Bradford
My Lords, the noble Lord who spoke earlier mentioned the East Midlands. For several years we were working very hard with the mental health trust in the East Midlands to recruit a number of young people with mild learning disabilities and mental health problems into apprenticeship schemes. Unfortunately, when this Government came in that funding was withdrawn. What is the Minister doing to help young people with mental health problems and learning disabilities get into apprenticeships?
Baroness Wilcox
I cannot give the noble Lord details at the moment but I will of course write to him on what we are doing. Cutting down in any area like this is obviously difficult. No Government want to come in and find that the coffers are so empty that they have to withdraw that sort of help.
Lord Addington
My Lords, can my noble friend assure me that the Government will look at all aspects of the apprenticeship schemes to ensure that people from all walks of society can be included in them? As we know—I have taken up a great deal of the House’s time on this—the biggest disability group, that of dyslexics, was once excluded. Can we look at the basic structure to make sure that there are no more such mistakes waiting to be unearthed?
Baroness Wilcox
My noble friend does wonderful work making sure that dyslexia stays at the very top of my agenda, and he knows that we are working hard to see if we can get the right access criteria for dyslexia. Yes, we will continue to look at any group of young people who are being excluded from work. We cannot afford to have anybody out of work at the moment.
Lord Young of Norwood Green
My Lords, while we support the Government’s objectives in focusing on apprenticeships and the drive to increase their quantity, can the Minister assure the House that the Government will maintain the quality of apprenticeships? I am still waiting for a government response to a Question about a recent “Panorama” programme which showed some rather worrying abuses of apprenticeship programmes.
Baroness Wilcox
As the noble Lord will know following the very good work that he did on apprenticeships when he was a Minister in this department, we have really extended the number and breadth of the apprenticeships that we are doing. I suppose that there is bound to be the odd mistake every now and again, for which we would be very sorry. However, apprenticeships are central to ensuring that our workforce is equipped to help build economic growth and enable companies to compete globally on behalf of us all.
Older People: Health and Social Care
(11 years, 10 months ago)
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Baroness Finlay of Llandaff
To ask Her Majesty’s Government how they plan to implement the recommendations in the report Delivering Dignity.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Government welcome the report from the dignity in care commission and will consider carefully all the recommendations addressed to government. We will respond to the commission in detail in due course. Many of the solutions to the issues in the report lie with the local NHS, social care providers and other key stakeholders. The Government will encourage the sharing of best practice by bringing people together and putting in place the right system incentives to enable providers to increase the quality of their services to older people.
Baroness Finlay of Llandaff
Following the report, Delivering Dignity, which was published today, will the Government instruct Monitor and the Care Quality Commission to require all authorised providers to seek, monitor and act on feedback from patients and their families, and will the Nursing and Care Quality Forum be widened to look at all aspects of care home staffing, root out poor care and ensure that action is taken so that respect of the individual is an “always” event in the delivery of care?
Earl Howe
My Lords, the NHS outcomes framework contains two domains that are highly relevant to this area. The NHS Commissioning Board will be in prime position to monitor those areas of the domains that relate to the patient experience. However, I have no doubt that the CQC will continue to do its work in maintaining essential standards of quality and safety. The Nursing and Care Quality Forum is an independent group and it is therefore for the forum itself to consider how to take forward the issues raised in the recommendation, but I understand that its chair, Sally Brearley, was already planning to consider care homes as part of the next phase of the forum’s work. She has already approached a number of individuals to strengthen the forum’s membership and add further expertise in that area.
Baroness Cumberlege
My Lords, one of the most important levers for change in the Health and Social Care Act is the mandate that has been agreed between the Secretary of State and the NHS Commissioning Board. Does my noble friend consider that one could include some of the principles that are established in this very good report within that mandate?
Earl Howe
My Lords, decisions about the content of the mandate will be made on the basis of a full public consultation, which will take place in the summer. More details on that score will follow in due course so there is a limit to what I can say at the moment. However, as I indicated during the passage of the Health and Social Care Act, the mandate is likely to include expectations for improving healthcare outcomes for patients, based on the NHS outcomes framework. That framework reflects the Government’s ambition for an NHS that provides high quality, safe and effective care, treating patients with compassion, dignity and respect.
Baroness Jolly
What measures will be taken by the national Commissioning Board to ensure that clinical commissioning groups always pay proper attention to dignity when commissioning services for older people?
Earl Howe
I come back to the point that I made to the noble Baroness, Lady Finlay. Domain 4 of the NHS outcomes framework is about ensuring that people have a positive experience of care and reflects the importance of providing that positive experience, including treating patients with dignity and respect. Domain 5, which is about treating and caring for people in a safe environment and protecting them from avoidable harm, also relates to that area. These areas will be centre stage in the way that the NHS CCGs in particular are monitored by the board.
Baroness Wheeler
My Lords, the recommendations of the Delivering Dignity report focus on tackling the underlying causes of poor care in hospitals and residential care. As the Minister knows, there is widespread concern among key stakeholders, including voluntary organisations, care professionals and care providers, about the serious impact that the growing crisis in social care funding is having on providing good-quality care in residential homes. Does this not make it even more vital for the Government to stand by the Prime Minister’s pledge to deal with social care funding and with the recommendations of the Dilnot commission in this Parliament?
The Lord Bishop of Exeter
Given that Delivering Dignity recommends that,
“All hospital staff must take personal responsibility for putting the person receiving care first”,
and that staff “should be urged” to challenge practices that they believe are not in the best interests of residents, what measures have Her Majesty’s Government taken to support staff who whistleblow in this respect?
Earl Howe
My Lords, the right reverend Prelate draws attention to an area that we have focused on quite hard in recent months, and the NHS constitution has been changed to strengthen the areas around whistleblowing. In the care home context, often the care home is looking after someone who is not publicly funded and the arrangements there are often ones that the care home itself has put in place. We believe that the CQC needs to focus carefully on the arrangements in the care homes that it inspects to ensure that staff feel free to speak up if they are aware of any problems of maltreatment or anything of that kind.
Baroness Greengross
My Lords, does the Minister agree with the final recommendation in the report that we need a major cultural shift if we are to get this right? A very simple and straightforward way of ensuring that would be if every person receiving care was protected under human rights legislation. That would simplify this and make it work straightaway.
Earl Howe
The noble Baroness is right. This is about a culture shift and nothing unfortunately can happen overnight. To extend the Human Rights Act to apply to private providers in purely private arrangements in which there is no involvement by a public body would be a radical extension of the Act. The Ministry of Justice leads on humans rights but we will be discussing this recommendation with it and will consider whether further action is needed. However, we need to remember that everyone in a care setting is already protected by the law. I have mentioned to the right reverend Prelate the Care Quality Commission’s registration requirements which set essential levels of safety and quality in the provision of services. Those cover, in a nutshell, the care and welfare of service users, safeguarding service users from abuse and respecting and involving service users. The CQC has extensive enforcement powers to ensure that those standards are met.
Employment Tribunals
(11 years, 10 months ago)
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Lord Hoyle
To ask Her Majesty’s Government what plans they have for the reorganisation of employment tribunals.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
My Lords, the reforms we set out in the Enterprise and Regulatory Reform Bill will encourage more resolution of disputes outside the tribunals system by providing for ACAS to offer conciliation for all potential claims before they proceed to tribunal and by giving parties greater confidence to use settlement agreements. We are also taking steps to improve efficiency across the tribunals system, including considering how we can introduce rapid resolution for more straightforward claims.
Lord Hoyle
I thank the Minister for that reply. Given the present uncertain economic situation, the fear of people losing their jobs and the determination of this Government to weaken the labour laws that protect employees, what message of hope can she give to those who find themselves in this unfavourable situation?
Baroness Wilcox
None of the things that protect people while they are working are being removed. That situation is not changing. However, the immediate rush to a tribunal is changing. The idea is that ACAS, which we all respect, provides for both the employer and the employee to have those discussions and to see whether they can come to an arrangement without having to go to a tribunal, with all the costs and upset that that entails.
Baroness Gardner of Parkes
My Lords, for 20 years, I sat on such a tribunal. Is the Minister aware that there are gaps now? If people work somewhere where ACAS helps them, that is fine. If they work in a job on their own and they are called before a disciplinary committee, they are allowed to have with them only a fellow union member or a fellow worker. If they are in a job where they work alone, they are not allowed to bring a relation or anyone else along even if they need help with reading. This loophole should be looked into.
Baroness Wilcox
My noble friend brings up a very interesting question. I had not really thought that through. This refers to someone who works on their own and is self-employed.
Baroness Wilcox
I will have to come back with the answer to that as I do not have it at the moment. I will make sure that a copy is put in the Library so that everyone else gets the answer too.
Lord Razzall
My Lords, picking up the remarks of the noble Lord, Lord Hoyle, I am sure the noble Baroness will recognise that streamlining the tribunal procedure is a little bit of a sideshow in relation to the fundamental recommendation of Adrian Beecroft regarding no-fault dismissal. Is she prepared to indicate where the Government’s thinking lies on that proposal which, as she knows, her Secretary of State described as “bonkers” in the Sun?
Baroness Wilcox
The idea of compensated no-fault dismissal is one of a wide range of employment law areas covered by the Beecroft report. We are already taking forward several areas set out in the report as part of the employment law review. Of his 23 main recommendations, we are taking action on 17, but we have no plans to take this forward any further.
Baroness Turner of Camden
My Lords, will the Minister comment on the indication we have that the Government intend to remove lay people from tribunals and replace them by a judge sitting alone? Does the Minister not understand that the lay people on tribunals have a great deal of commitment and workshop experience and should not be removed, thus making the tribunals entirely less effective?
Baroness Wilcox
The fundamental review of employment tribunal rules is being undertaken by Mr Justice Underhill. We will have the report on that shortly. I hope that the noble Baroness will be pleased to read it.
Lord Young of Norwood Green
My Lords, we are not opposed to constructive, evidence-based reform; however at a time when 2.7 million people are unemployed, the Government are making completely the wrong judgment in wanting to make it easier to fire rather than hire people. Slashing employee rights is no substitute for a proper growth strategy. Does the Minister not recognise that removing the rights of workers will only increase job insecurity, which is likely to have a damaging effect on workforce morale and productivity? Would she not agree that giving employers positive advice on employee engagement would be more beneficial?
Baroness Wilcox
The Government are committed to a fair and flexible labour market that helps businesses to manage their staff productively. Nothing in the Bill removes individual employment rights and neither should it intend to. It is very important that we encourage businesses to take on more staff. That is what we require. That is what we all need, but we need a flexible workforce and flexible employers so that, as the world changes around them, they can make the changes that they need.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I am afraid that the noble Lord’s time is up.
Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012
(11 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Henley
That the draft orders laid before the House on 10 May be approved.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 13 June.
Statutory Auditors (Amendment of Companies Act 2006 and Delegation of Functions etc.) Order 2012
Office of Qualifications and Examinations Regulation (Determination of Turnover for Monetary Penalties) Order 2012
(11 years, 10 months ago)
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Lord Hill of Oareford
That the draft order be referred to a Grand Committee.
Financial Services Bill
(11 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
15:50 - Division on Lord Hamilton’s amendment. - Ayes: 190 / Noes: 186 - Amendment agreed.
Lord Sassoon
That (a) the following provisions of the Financial Services Bill be committed to a Committee of the Whole House—
(i) Clauses 1 to 4 (the Bank of England);
(ii) Clause 5 (the new regulators);
(iii) Schedules 1 to 3 (Schedules relating to the Bank of England and the new regulators); and
(b) the remainder of the bill be committed to a Grand Committee.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, on behalf of my noble friend I rise, unusually, to move this Motion. Perhaps I may give the House some explanation of the Motion.
As the House will know, last Monday night my noble friend Lord Sassoon invited the House to commit the Financial Services Bill to Grand Committee for its Committee stage. A group of Peers, some of whom had played no part in Second Reading, that night raised objections. In the face of those concerns my noble friend Lord Sassoon rightly withdrew his Motion even though it had the support of both the Government and the Opposition. In discussions in the usual channels preceding the Second Reading debate the Government had suggested that it would be appropriate to send the Financial Services Bill to Grand Committee for its Committee stage, building on the success of the Grand Committee that considered the Budget Responsibility and National Audit Bill in Committee last Session. Unlike that Bill, the Financial Services Bill has received pre-legislative scrutiny. It has also been through all its Commons stages, including a Committee stage off the Floor of the House.
The proposal to commit the Bill to Grand Committee was put to the Opposition and secured their full support. In the usual way, dates had been fixed for each day of Committee in the Moses Room, with the agreement of the noble Lord, Lord Eatwell, the opposition shadow Treasury Minister. On Tuesday we resumed discussions in the usual channels to see if we could reach an agreement, and the Motion today reflects a compromise which was put forward.
We propose to commit the clauses in the Bill relating to the Bank of England and the new regulators to a Committee of the whole House for three days and the remainder of the Bill to the Grand Committee for perhaps a further seven sessions, as previously agreed. The Motion for split commitment is a compromise that seeks to dispel the unease which was expressed last Monday by taking the most high-profile parts of the Bill on the Floor of the House. However, it also reflects representations from other Peers around the House who over the course of last week expressed their wish to see the whole Bill continue to be committed to Grand Committee.
It was the Opposition who suggested that we explore split commitment, and on that basis we put this proposal to them last Tuesday. Last Wednesday morning I myself put it to the noble Baroness the Leader of the Opposition. Late on Wednesday, however, we learnt not only that our original usual-channels agreement had been revoked but that the Opposition had also chosen to reject the compromise without explanation. This morning the Opposition found an explanation—that a report from the Treasury Select Committee of the House of Commons had changed its view. It is unfortunate that they did not choose to reveal that view either in the course of the Second Reading debate last week or in the course of the usual-channels discussions that followed. In any event, it is a curious argument given that the Treasury Select Committee’s core recommendations concern Bank of England governance and the objectives and powers of the new regulators—both of which are covered by the very clauses that we propose in the Motion before the House today to commit to the Floor of the House.
In these unfortunate circumstances, and where usual-channels agreement has not been forthcoming, I believe that it is right for the House itself to decide the fate of the Motion before us today. However, we need to take the decision with some perspective. Three Parliaments ago, on the initiative of my great predecessor from the Benches opposite, the late Lord Williams of Mostyn, we agreed to make more use of Grand Committee in return for introducing rising times at 10 pm, with the aim of reducing the need to scrutinise legislation long into the night. If the House does not support the Motion we will have more Bills competing for time on the Floor and there will inevitably be repercussions. We would need to sit later into the night to conduct our scrutiny after 10 o’clock and we may need to return even earlier from our Summer Recess.
Lord Strathclyde
I know that noble Lords opposite are quite keen on that. Reversing the decade-long practice of sending a reasonable proportion of Bills to Grand Committee is not compatible with retaining our current sitting patterns.
Curiously, I have heard it said that the objections raised to the commitment of the Bill have nothing to do with financial services regulation and everything to do with proposals for reform of this House. I have heard it said that the reason for committing the Bill to Grand Committee is to allow the Government to clear the decks for House of Lords reform. Let me speak plainly. To date, the Government have not introduced a reform Bill. Ministers are doing exactly what this House asked them to do: we are reflecting on the report of the Joint Committee, the alternative report and the debates that we had at the end of the previous Session and the start of this one. This House has an enviable reputation for rolling up its sleeves and getting on with the job of scrutinising legislation—we trade on it. It would be both wrong, and even counterproductive, to put that reputation at risk at just the moment when we are under intense scrutiny, when the House should be showing off its work and expertise at its best.
Furthermore, where we choose to commit this Bill has no impact whatever on whether the Government bring forward a Bill to reform this House. Nor would it affect the passage of such a Bill through Parliament. If a Bill were introduced in the House of Commons in the next few weeks, it would not reach this House for many months. Failing to commit at least part of this Bill to Grand Committee would serve only to delay Royal Assent to a piece of legislation that is of great significance to the financial services industry and our economy as a whole. Disrupting our normal sitting patterns would inconvenience not only us but, importantly, the staff who support us in our work. That is the crossroads at which we have arrived.
I hope that I have set out the options clearly and fairly and trust that the House will weigh the arguments carefully. I invite the House to support the Motion to commit part of the Financial Services Bill to a Committee of the whole House and part to Grand Committee. In concluding, I very much hope that the noble Baroness, Lady Royall of Blaisdon, will consider the position that she has got us into with great care.
Lord Strathclyde
I invite her to tell us that, on reflection, we can count on her support for the Motion before the House today.
Amendment to the Motion
Lord Hamilton of Epsom
As an amendment to the above Motion, to leave out from “that” to the end and insert “the Bill be committed to a Committee of the Whole House”.
Lord Hamilton of Epsom
My Lords, I have been on a pretty steep learning curve about the procedures of the House since last Monday. When the Motion to put the whole Committee stage of the Financial Services Bill into Grand Committee was withdrawn I imagined that the will of the House would be respected, that that would be the last we heard of it and that there would be no question of our now having to talk about some compromise on all this—namely that the Bill should be split, with some of it debated in Grand Committee and some on the Floor of the House.
Therefore, I talked to the Clerk of the Parliaments about it, realising that perhaps I did not totally understand. He explained that when the Government withdrew the Motion, it did not mean that they could not bring back another. I said, “What should I have done about the Motion that was put down originally?”. The Clerk said that that Motion should have been amended; it could have been amended at the last minute by a manuscript amendment, but he said that that was not much approved of in this House. However, I am afraid that that is what I have been forced to do today for the simple reason that the Motion was tabled on Friday, when the House was not even sitting. There has been no opportunity to table a proper amendment to it; it has to be a manuscript amendment. I apologise to the House for that but I did not see that I had an alternative.
I reiterate: we are talking about the Financial Services Bill. It is a major piece of legislation which has been drafted to reorganise our financial institutions completely and regulate them properly. I do not think that the people of this country would understand it if we were to put any part of this Bill in Grand Committee. This extremely important legislation needs very serious consideration by your Lordships. As well as that, this Bill brings out the best of your Lordships’ House. There is a tremendous amount of expertise here which needs to be brought to the fore. That can be done much better if the whole of Committee stage is debated on the Floor of the House.
I ask the House to consider seriously whether any of this Bill should be committed to a Grand Committee. As a noble friend said to me earlier, if we do not discuss the Committee stage of the Bill on the Floor of the House, which other Bills will we consider on the Floor of the House? It seems that the Government have a desire to put everything into Grand Committee. It is for us to stand up against that and say, “No, we want the whole of this very important Bill to be considered on the Floor of the House”. I hope that the House will support my amendment.
Baroness Royall of Blaisdon
My Lords, we have before us a very important matter. As the noble Lord, Lord Hamilton, has said, how we regulate our financial services and the financial services sector is vital to economic and financial stability. What our banks do and how they do it is important for the prospects for growth and employment in this country.
We on these Benches had not seen the terms of these Motions before today and we certainly had not agreed to them in the usual channels. I had a private meeting with the Leader of the House on Wednesday morning at which we discussed this matter and I told him in all honesty that I could not agree to the terms of the Motion, that I needed to have further consultations and discussions with my colleagues and that I would come back to him and the usual channels in due course. That I did first thing on Thursday morning, since when we have heard nothing about the Motion before us today. As for the Opposition’s role on this Bill within the usual channels, I wrote to the Leader of the House this morning, once we had seen the terms of the Motion before us. I would be happy to provide noble Lords with a copy of that letter.
My concern, much more than accusations from the Leader and the ins-and-outs of the usual channels, is what Members of this House want. When the Government tried to put the whole of the Bill in Grand Committee a week ago today I thought that the statements made by Members from across the whole of this House made clear what the majority of them wanted. At a very late hour, during that debate on the Floor of this Chamber, Members made it abundantly clear that they wanted the whole of the Bill to be considered by a Committee of the whole House. What Members of the House were telling the Government was clear.
Last Tuesday I had discussions with the Government about splitting the Bill and taking some parts on the Floor of the House and some in Grand Committee. I could see some merit in that approach, which is why we were prepared to consider it constructively in discussions within the usual channels. Yes we discussed it, but no we did not agree on it—precisely because I had to have discussions with my colleagues on the Benches behind me, which is the right and proper thing to do. In any case, we would not have agreed to the split that the Government now propose. Neither would we have agreed to only three days in a Committee of the whole House. We do not think that that split works. We also think that it was wrong not to include Part 4, on the mechanisms to deal with current issues, for consideration by a Committee of the whole House.
This House is self-regulating and on matters such as this it is for this House, and this House alone, to decide what it wishes to do. From our soundings, most Members on the Benches behind me want the Bill to be considered by a Committee of the whole House, which is what I believe many Members from all across the House want to see. That is precisely what the amendment in the name of the noble Lord, Lord Hamilton of Epsom, proposes.
I therefore look forward to this House, not the Government, deciding what it wants to do. From these Benches, we do not believe that the Government’s proposal is the right approach. We believe that the House should reject it and accept the amendment proposed by the noble Lord, Lord Hamilton. I hope that the Government will listen to the House when it makes its decision today.
Lord Grocott
My Lords, in the light of the assurances made by the Leader of the House on the Motion, I am genuinely puzzled as to why it is being brought forward. He has told us that it has nothing whatever to do with the decks being cleared for a House of Lords Bill. If that is the case, I simply do not know why the Government are so anxious to put preferably the whole of the Bill and at worst a significant part of the Bill into Grand Committee. I remind the Leader and the House that it is a pretty rare procedure in this House—less so in the other House—to split Bills between Grand Committee and the Floor of the House. Frankly, it is done for the best reasons, as I have said on occasions in the past, when the Government are under tremendous pressure of time.
Believe it or not, I have some sympathy with the Government when they claim that they are under tremendous time constraints. However, this simply will not wash in the current Session, when we have the smallest number of Bills and the lightest legislative programme of any Session in recent political history—certainly lighter than at any stage for the last 20 years; I have not gone back any further. There are, I believe, some 15 Bills this Session compared with an average of 30 Bills in a normal 12-month Session, so I cannot accept that there is any tremendous pressure on time for the Government, particularly when we finished a day or two early before the Spring Jubilee Recess, which was announced at the last minute. We even finished rather early before Prorogation of the last Session of Parliament, so the Government have cried wolf somewhat on the matter of time and without real justification.
As for the Leader of the House persuading his Back-Benchers, I imagine by saying, “Gosh, if we do not get this Motion through, it will be late night after late night”, I can only say that life gets tough at times. However, I cannot accept that argument, given that the Government are making all sorts of random decisions about having longer recesses than normal and not sitting when the House of Commons is sitting, which again is not normally the case. My argument is therefore really one of bafflement about the pressure on the Government’s time and, frankly, the Government not being able to accept that it means endless late-night sittings.
Lastly, I hope that the Leader of the House will at least acknowledge that it is not a very satisfactory way to treat the House to introduce this Motion on Friday night. I knew absolutely nothing about this Motion going down on the Order Paper until 10 o’clock this morning, like everyone else in the House—perhaps apart from some on the government Benches, I dare say. Anyone who wanted to put down an amendment had no option other than to put down a manuscript amendment, as the noble Lord, Lord Hamilton, did—and I am very pleased that he did. Are we going to have to face this sort of government management of business in the future? Not knowing even a day before what could be a very important decision for the House to make really is a very unsatisfactory way to manage government business.
I appeal to the Leader of the House to listen to what I believe is a very strong view in the House. If he was desperate to put this Motion down, can he please explain the time pressures on him and why it had to go down today? What was wrong with tomorrow? I do not want to sound Machiavellian and suspicious, but the slight feeling is that perhaps the Motion went down on Friday and various people were telephoned over the weekend to the effect, “Please come along and support the Government so that you do not have to sit late at night, night after night”. I do not think that is a very credible argument, so I hope that the Leader of the House will give a satisfactory answer to those questions. If he cannot, he really should withdraw this Motion.
Baroness Kramer
My Lords, I speak as someone who is going to be going through this Bill in great detail. I assure the noble Lord, Lord Grocott, that I had no idea that this Motion was going down until today, so I am not part of any great conspiracy that he might imply. I looked at this legislation with the understanding that Grand Committee was not meant to be a second-rate or second citizen process but was one for dealing with highly technical Bills. Having tried to do an interview with the BBC on the latter parts of the Bill, I know that it is extremely technical. I assure the noble Lord that it passes the “eyes glazing over in agony” test. I have seen Grand Committee, thanks to the consumer insurance Bill, and seen how effective it is in being able to get and exchange a great deal of information very quickly on highly technical issues, so I would have supported the whole Bill being in Grand Committee.
I can understand the desire for some of the most prominent parts of the Bill to be debated in the Chamber as recognition of the level of concern following the financial and banking crisis of 2008 and the need to look again at the architecture of regulation—for some of those key issues to be addressed here. However, it is more in order to satisfy that kind of recognition of the level of concern rather than to give us almost the best practice for going through the Bill in detail, so splitting the Bill strikes me, as someone without much of an axe to grind in this matter, as a very appropriate mechanism and a sensible and practical one. That is how I have always viewed this House—as sensible and practical and willing to take on the issues simply as they are and to come to a solution. I spent time in the other place, where one might say that the principles are not the same—and I know that this House dislikes the kind of principles that the other place operates on.
The Earl of Erroll
My Lords, I can remember when the whole Grand Committee thing started, and the first assurance was that only non-controversial Bills would go to Grand Committee. The whole point was that in the old days—not that they are so very long ago—we used to divide on matters of principle in Committee, which meant that we tidied up on Report, and that was much more efficient. The challenge with Grand Committee is that it delays everything, and then we have a huge argument on Report that goes on interminably.
Then we have the problem with the limited rules on amending at Third Reading. Before, we would divide on principle in Committee and tidy up on Report, with half the length of debate. Then at Third Reading we would discuss things only when there had to be a final little adjustment because a mistake had been made. It was very unusual to put forward amendments at Third Reading, which is why they were so restricted. With the new procedure of going to Grand Committee, you can have wonderful debates but then you have to do it all over again on Report, which causes problems at Third Reading. We must either have yet another reading to tidy up before Third Reading or go back to dividing in Committee. We should remember that not only the person putting forward the amendment in Committee has the option to divide; anyone in the House can call a Division on an amendment that is proposed. So if noble Lords think that someone is wasting time by withdrawing an amendment in Committee to bring the whole thing back on Report, I suggest that someone stands up and calls for a Division.
Baroness Farrington of Ribbleton
My Lords, having sat next to my much missed friend Lord Williams of Mostyn, I wish to set the record straight. I am sure that the Leader of the House did not wish in any way to mislead the House, but having sat next to Lord Williams of Mostyn through all the discussions on the introduction of Grand Committee procedure, I fear that he would be appalled that there was Division in the House over the issue. He was a man committed to sensing the House’s mood, reaching a compromise and avoiding this sort of unseemly debate in your Lordships’ House.
Secondly, it is my understanding—this is not my area of expertise—that the noble Earl, Lord Erroll, is absolutely right about what happens at the different stages. It is confusing for everyone if some parts of the Bill can be voted on in Committee and others cannot and if rules apply to certain parts of the Bill at Third Reading but not to others. I think that will lead to confusion. It is also my understanding that the Bill tackles a serious problem; if sizeable numbers of people in your Lordships’ House—I am not talking about majorities—feel unable to support the compromise, to use the Leader’s words, surely it would be better to accept the proposals of the noble Lord, Lord Hamilton of Epsom, and work in the way that I know Lord Williams of Mostyn would have wanted.
Lord Myners
My Lords, at Second Reading last week nearly 40 Peers spoke. It was an excellent debate that was very skilfully handled by the Minister, notwithstanding the fact that the Whips endeavoured to cut some speakers short, even though that is clearly not accepted at Second Reading. I think that that tells us something about the Government’s attitude to trying to rush this process.
This is not a controversial Bill in a party political sense. However, it is controversial in the detail, not just in the first five clauses but throughout the Bill. It would be wrong to believe that Clause 6 and later clauses do not themselves deserve very close scrutiny, handling, as they do, matters such as consumer affairs and protection and banking resolution. The noble Earl was correct to point out that the procedures in Grand Committee are very different from those in a Committee of the Whole House. As a Minister, I took legislation through Grand Committees and through Committees of the Whole House. The argument that officials in Grand Committee are seated in the Box behind the Minister and are therefore immediately available to provide assistance is much overstated. This is a very important Bill. It creates, in the office of the Governor of the Bank of England, the most powerful unelected person in the country and deals with a problem that has beset the economy for four years. The nation would expect the Bill to be publicly debated on the Floor of the House. For that reason, I support the amendment of the noble Lord, Lord Hamilton.
Lord Barnett
My Lords, I do not want to talk about the other parts of the short debate that we have had but rather about where the Bill should go and where it would be best scrutinised. I know that the noble Lord, with whom I normally disagree, is very keen to see the Lords Reform Bill go through. He has always made that clear, but it is irrelevant to what we are discussing.
I am bound to say that the Government’s management of the lengths of recesses and the business of the House has not been of the best. My noble friend Lord Grocott was right to deal with those issues. The important issue for me, as it was when I spoke in the relevant debate, is where the Bill will best be scrutinised. I have a little experience of taking two Finance Bills a year through the Commons over five years, and did so with great difficulty. A major part of the scrutiny of those Bills was taken upstairs in Committee in those days. Now Governments of all parties are very keen to guillotine Bills in the Commons, and they are rarely properly debated. In fact, when we get Bills here, especially large ones, they have rarely been properly scrutinised at all. Therefore, the really important issue for me is not all the other stuff that we have talked about briefly today but where the Bill will best be scrutinised. The Bill is important; I do not deny that.
As I have said before, giving a huge amount of powers to the Bank of England is not unimportant. However, for me the question is: where will the Bill be best scrutinised? I have no doubt whatever that that will be in Grand Committee. If any Member of your Lordships’ House has great expertise and wants to speak, there will be no difficulty in them doing so in Grand Committee.
One has to understand that in Committee this House does not normally vote on the Floor of the House or in Grand Committee. On top of that, the Bill will come back to the House for Report, when votes can and do take place, and again for Third Reading. As I said, personally I prefer a Bill to be properly scrutinised in Grand Committee, and this is a rare occasion when I feel bound to speak in support of the noble Lord, Lord Strathclyde.
Lord Wakeham
My Lords, I do not often intervene in these matters, and no one could expect me not to understand the position of the usual channels, but I have listened to this debate with some horror. In my view, these matters should have been resolved by the usual channels and it is very disappointing that the Front Benches are unable to find a sensible and satisfactory agreement. Often, finding such an agreement means persuading their Back-Benchers to do something that initially they may not want to do. If I may say so, the job of the Front Benches is not to be the cheerleader for the Back Benches; it is to find the best solution for the House. When there is no agreement between the Back Benches, the question arises of what the House should do. In my view, the responsibility then falls on the Leader of the House to do what he thinks is best for the whole House. Without going into the details, where there is a disagreement between the usual channels, the House would be right to support the Leader of the House in what he proposes.
Lord Naseby
My Lords, I just make an observation as a former Chairman of Ways and Means and as someone who was responsible for the Finance Bill for five years in another place. In my experience, each Bill was very different. Sometimes the usual channels, and indeed individual Members, chose to make representations that certain clauses should be taken on the Floor of the House, with others—often the majority—being taken in Committee. I remember one occasion when a great deal of a Bill was taken on the Floor of the House, mainly due to representations from the minority parties that went against the proposals from the usual channels. Nevertheless, I reflect that last Monday night the key issue to come out was unanimity across the House that this was the most important financial Bill that this House had seen in probably the living memory of anyone here. The second thing that came out was that it was not a partisan Bill—there was no inter-party challenge—and that this House, with its width of experience, was best able to debate the Bill in depth.
I deeply regret that now, on the first Monday since then, what I thought had been settled by the usual channels in the normal way is not settled. That is a very unsatisfactory situation, and maybe my noble friend, as the Leader, will either follow what my noble friend Lord Wakeham said or recognise that the House as a whole may need 24 hours to quieten down a little. Looking at the noble Baroness, Lady Boothroyd, on the Cross Benches, I am reminded that she once said to me, “You didn’t give them long enough to settle it, Michael”.
Lord Strathclyde
My Lords, the reason we have the usual channels is precisely to avoid the sort of debate that we have had this afternoon. It is a personal sadness to me that the usual channels broke down, which means that the House must make a decision.
The other reason to have usual channels is that we can have these debates behind closed doors where no one sees them. When the public look at this debate and listen to it on the radio and television, what will they see? They will see that the question is a very simple one: either we should have the debate on the Floor of this House or the very same people debating the very same issues should take their debate about 25 yards down that Corridor. That is all this debate is fundamentally about. This is against a background where, until a week ago, the Opposition and the Government were totally unified, as the noble Lord, Lord Barnett, said so well, on the basis that scrutiny would be better placed in Grand Committee rather than here on the Floor of the House.
Before the House is drawn into the seductive speech of the noble Lord, Lord Grocott, noble Lords should recall that only last week he said that this House should always sit when the House of Commons is sitting. I took a view earlier this year, having taken soundings around the House, that the overwhelming view of your Lordships was not to sit in September. I do not mind sitting in September—I have done it in the past and I shall be here—but noble Lords must recognise that if we do not send Bills to Grand Committee and have them on the Floor of the House, we will need more sitting days of the House in order to complete our business. It is a very simple proposition. No one is suggesting sending another major Bill to the Grand Committee.
Baroness McIntosh of Hudnall
Will the Leader of the House clarify that? I have to confess my ignorance on this matter, but I understand that the Grand Committee sits for much shorter sessions in Committee than when a Bill is on the Floor of the House. Therefore, I am not entirely sure why he is suggesting that it will take fewer days to get this Bill through in Grand Committee than on the Floor of the House.
Lord Strathclyde
My Lords, let us assume that it would take exactly the same hours on the Floor of the House and in Grand Committee. The fact that it was on the Floor of the House would mean that we would be unable to progress on other Bills, which would have to wait their turn. We would therefore need to find other days in which to complete our business.
Like the noble Earl, Lord Erroll, I remember when we used to sit until 1 or 2 am. We got a lot of business done in the early hours of the morning. Before I get another lecture from the noble Baroness, Lady Farrington of Ribbleton, I had endless discussions with Lord Williams of Mostyn about this. He would get quite heated on the subject. He said that it was wrong for legislation to take place late at night or in the small hours, and it was on that basis that we had a Grand Committee. The reason why the House now needs to take a view is that if we are going to go against the practice of the past 10 years and not send complex Bills to Grand Committee, which we have done many times before, we will have to revisit this subject in the Procedure Committee.
Finally, Labour's legislation on the Financial Services and Markets Bill, which was a substantial and weighty piece of legislation of two volumes, was passed through this House in Grand Committee.
Baroness Farrington of Ribbleton
My Lords, before the Leader of the House sits down, Lord Williams of Mostyn was absolutely clear that Grand Committee procedure was for non-contentious Bills. His view was that the House should be able to make that judgment. The Leader of the House has failed to tell the House which major pieces of legislation are waiting in the wings that will now not be able to be debated, because we are not aware of them.
Lord Strathclyde
I urge the noble Baroness to read the record of the debates that we had at the time. If she can find the evidence for that, of course I will withdraw everything that I have said about Grand Committees. I assure her that when I was Leader of the Opposition, we understood perfectly well that Grand Committees were for all or any Bills, and that only constitutional Bills would sit on the Floor of the House.
Lord Hamilton of Epsom
My Lords, I share the concern of many Members of this House about all these massive Bills that will come through in the future to be debated on the Floor of the House. I am not at all sure what they are, but I know that one of them will not be the Civil Aviation Bill because that will be going into Grand Committee when this business has been dealt with.
I very much take the point made by the noble Lord, Lord Grocott, that this is a thin parliamentary Session and that for a Bill of this importance to be shoved into the Grand Committee Room would be absolutely wrong. It will not be understood by the people of this country. It is a major Bill of great significance. I do not accept the view of the noble Lord, Lord Barnett, that somehow these issues are better debated in the Grand Committee Room. I think that the place to debate them is on the Floor of the House. I suspect that the debate would go on much longer on the Floor of the House, but that would improve the Bill at the end of the day and would be for the good all round. It is critical that the Financial Services Bill is got right by your Lordships’ House, and I therefore wish to test the opinion of the House on my amendment.
Civil Aviation Bill
(11 years, 10 months ago)
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Civil Aviation Bill
(11 years, 10 months ago)
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Earl Attlee
That it be an instruction to the Grand Committee to which the Civil Aviation Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 13, Schedule 1, Clauses 14 to 30, Schedule 2, Clauses 31 to 47, Schedule 3, Clauses 48 and 49, Schedule 4, Clauses 50 to 55, Schedule 5, Clauses 56 to 59, Schedule 6, Clauses 60 to 72, Schedule 7, Clauses 73 to 76, Schedules 8, 9 and 10, Clauses 77 and 78, Schedule 11, Clauses 79 to 82, Schedule 12, Clauses 83 to 91, Schedule 13, Clauses 92 to 99, Schedule 14, Clauses 100 to 112.
Crime and Courts Bill [HL]
(11 years, 10 months ago)
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( ) There shall be a Director General, who is to be one of the NCA officers, and who shall be responsible for the exercise of the NCA’s operational and administrative functions.
( ) Schedule (The NCA Board) has effect.”
Baroness Smith of Basildon
My Lords, in many ways this is quite a difficult Bill to scrutinise fully. Some information relating to the Bill is missing today: we do not have the framework document, which would be extremely useful as your Lordships consider how the NCA board will operate.
Our amendments today are intended to bring some sense to the Government’s words, which is not necessarily reflected in the Bill, and to ensure that the new National Crime Agency has operational independence. The Government have quite rightly gone to great lengths to emphasise that the NCA—the body that takes over from the Serious Organised Crime Agency, the National Policing Improvement Agency and CEOP—will be operationally independent, but I am somewhat puzzled about how this is going to operate. SOCA was, of course, a non-departmental government body, or NDGB. The NCA has been classified as a non-ministerial department, or NMD, and that is similar to other bodies such as the Crown Prosecution Service and Her Majesty’s Revenue and Customs, as the Home Office fact sheet identifies. This is significant and appropriate because, as a rule, NMDs are considered to be more independent of Government. I quote from a research paper on the Public Bodies Bill from the House of Commons Library, which says that they,
“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.
Examples given by the Library in the other place are Ofgem and the UK Statistics Authority. Both the Crown Prosecution Service and HMRC, which the Government give as models for the designation of the National Crime Agency, have corporate governance structures which have a strategic direction and strategic accountability exercised by a board, and that board reports to the Secretary of State. That is true currently for both SOCA and the NPIA. The benefit of that is that it ensures and preserves the agency’s independence from Government, but it also maintains, quite rightly, the ultimate strategic oversight by Government.
In this Bill, the Government seem to be proposing a departure from that. Under current proposals, the NCA will have no board and instead will be governed by just one individual, the director-general, who will report directly to the Home Secretary. The Home Secretary’s responsibilities are to set the strategic priorities for the NCA. He will authorise the director-general’s annual plan of strategic and operational practices and priorities. The Secretary of State has the power to appoint and fire the director-general and the power to designate the director-general’s operational powers on the direction of an advisory panel, and we shall return to both those issues in later amendments.
It seems to us that this kind of structure is not conducive to operational independence and is at odds with other NMDs that the Government have set up and support. Compared with Ofgem, the Financial Standards Authority, the Serious Fraud Office, the Office of Fair Trading, the CPS and HMRC, the National Crime Agency would be unique in its level of direct ministerial oversight and influence. There seems to be some contradiction within the Bill and within the Government’s priorities because although they are talking about devolving operational power to the police, they seem to be retaining more power, but without responsibility, to the Secretary of State. The Bill does not seem to do what the Government have said they intend, which is to put power in the hands of the police force. It is very much a top-down structure and, if one were being unkind, one could say that the Secretary of State is happy to devolve responsibility but, at the same time, is centralising power.
The amendments that we have tabled today have two impacts. Amendment 1 will remove the responsibility for direction and control of the NCA from the director-general, and instead the NCA board will have responsibility for the strategic direction and control of the NCA, while the director-general will be responsible for the exercise of the NCA’s operational and administrative functions. Amendment 4, which is quite long, sets out the structure of the new NCA board and is modelled on the existing governance structure of SOCA. We would be quite happy if, at some later stage, the Government were to bring back this amendment to look at the detail of it. There may be items within it that are not as appropriate for the NCA as they are for SOCA. However, broadly speaking, it seems to us that the governance arrangements for SOCA, with a board structure, would be more appropriate for the National Crime Agency than the sort of direct-line accountability to the Secretary of State for one individual, the director-general.
I suppose we are seeking answers to a number of questions from the Minister, in trying to understand why the Government have proposed this structure. Can the noble Lord explain why the Government believe that there are benefits to the National Crime Agency from not having a board? The organisations that are to become part of the National Crime Agency have had boards, so the Government should really explain that and justify their reasons for having a different governance structure in this case. Why does the NCA have to be directly accountable to the Home Secretary, unlike the Serious Organised Crime Agency? Again, that is a departure from current practice.
Given that the Government have rightly changed the structure from that of the Serious Organised Crime Agency, which is a non-departmental government body, to a non-ministerial department, can they give any indication of the model that they used for the NCA? I am not aware of any significant body that is a non-ministerial department and that has the same kind of structure reporting directly to the Secretary of State, but not through a board. In looking at these areas, it would be very helpful if the Minister were to give some explanation of those issues and say whether he will consider looking again at governance and introducing a board, which we think would be the appropriate way to manage and run the agency.
Baroness Hamwee
My Lords, we have tabled Amendment 5 in this group. The amendment, in my name and that of my noble friend Lord Thomas of Gresford, does not seek to change the architecture of the proposal—I thought I would get that in quite quickly because my noble friend hates the term. It is not a governing board and accountability would still be that of the Secretary of State. However, it is good practice to provide infrastructure and support in this sort of situation.
The Home Office itself has a supervisory board. I would have taken my amendment from that, had I been able to get into the Home Office website at any time when I tried over the past few days. The form and function of the model is, I suppose, not very different from that of other government departments, so I looked at CLG, another department with which I am fairly familiar. The description of its roles seemed to be very much what I was looking for. It tells us that:
“The Board’s role is to advise and support ministers on the operational implications and effectiveness of policy proposals, focusing on getting policy translated into results”.
It refers to leadership, effectiveness, accountability, and sustainability—that is, sustainability in the sense of taking a long-term view about what the department is trying to achieve.
“The board advises on, and supervises, five main areas: Strategic Clarity … Commercial Sense … Talented People … Results Focus … and … Management Information”.
Those are listed with descriptions that I will not trouble your Lordships with this afternoon, because I think the CLG website is pretty accessible. I am not wedded to any particular model but I am wedded to good governance. In 2012, as has been the case for some years, the private and voluntary sectors have had to focus very much on governance, and I think that a new government agency should focus on it too.
Lord Condon
My Lords, I would not seek to challenge the architecture in the Bill for control and accountability, but it is not a question of all or nothing—there can remain clear direction and control by the director-general and clear accountability to the Home Secretary and onwards to Parliament. Nevertheless, I hope that the Minister will find ways to reassure your Lordships’ House and the wider public that in this day and age notions of good governance demand that there should be something more than just that naked architecture of the DG in control and the Home Secretary being accountable. It would be good to have reassurance around the notion of a management board, a supervisory board, an advisory board or some board mechanism that allows both stakeholder interest and independent voices to contribute to the health and well-being in the future of the NCA so that issues such as value for money, good governance, priorities and so on could somehow be part of a wider debate within that family than just between the DG and the Home Secretary. I understand that the Bill and this agency will deal with some of the most challenging criminal matters facing the country. Should terrorism subsequently also be transferred as a responsibility to the NCA, I understand that there must be very clear direction, control and accountability, but a committee-type model does not fit well with those demands. Nevertheless, there is ample scope for reassurance around the notion of a management board that involves stakeholders from the police service, the emerging police and crime commissioners, the wider local authority family and the business community. I hope that the Minister, today or subsequently, will be able to give us some reassurance that the Bill will be able to move us in that direction.
Lord Harris of Haringey
My Lords, I certainly do not want to fall into the trap of automatically accepting the Government’s architecture for these proposals. However, the amendment put forward by my noble friend does not necessarily undermine that architecture. The key point of this part of the proposed legislation is the creation of a new National Crime Agency. That is the key concept, and in this group of amendments we are dealing with some of the accountability mechanisms and the arrangements that will be put around the agency to ensure that its governance is of an appropriate and effective standard.
Let us be clear why this is important. The National Crime Agency, as proposed, will be a tremendously significant organisation. It will be responsible for ensuring that as a country we deal effectively with the most serious types of crime. In due course, it may be responsible for dealing with terrorism. This is not some minor government body; it is an extremely important part of the arrangements that we put in place to ensure that our citizens are properly protected against serious crime.
The other fundamental part of the architecture of the Bill, if you are wedded to that architecture, as no doubt the Minister is—no doubt we will come onto this in due course—are the provisions within the legislation that enable the director-general to require from police services around the country various things to happen. There is a potential power of direction—and certainly the expectation in terms of individual operations—that local police forces will work with the National Crime Agency to ensure that certain operations proceed. The relationship between the director-general and individual chief officers of police will be a fundamental one. That is precisely why, when we look at the governance structures and the arrangements that will be put around the director-general, we need to ensure that there are appropriate mechanisms for chief officers of police and those responsible for their governance, in terms of police and crime commissions, to be adequately represented within them.
The Government have to put forward a clear justification as to why this very lean approach to governance has been included in the Bill. As a number of your Lordships have already indicated in Committee, there is a virtue in having a proper governance structure, a group of non-executives and a group of individuals to whom the director-general must report or explain or expand on his or her proposals on how the agency goes forward. That is not to decry the direct accountability to the Home Secretary because it will be the Home Secretary who will, whatever is written into the Bill, have to answer to Parliament as to whether this new structure works. It supports that function and gives the Home Secretary reassurance that all the processes and procedures that any sensible Home Secretary would expect to be around the director-general are in place.
I am not suggesting that the Home Secretary is incapable of providing adequate supervision of the agency. I am simply saying that it is not necessarily the most effective or efficient way of doing it and that some board structure supporting that process is better and more likely to be successful. I have looked for precedents for this sort of one-to-one relationship between the Home Secretary and significant agencies. For 175 years the Home Secretary was the police authority for London and at the end of those 175 years the Metropolitan Police was so well governed, despite the excellent leadership at that stage provided by the noble Lord, Lord Condon, that it did not have a system in place—it was a £2 billion business at the time—for telling whether it had paid a bill more than once. I rather suspect that had the Home Office—I absolve previous Home Secretaries from day-to-day responsibility for this—been doing its job properly proper accountancy systems would have been installed within the organisation. However, the supervision of the Home Office and the Home Secretary was quite properly on the main policing issues, which would have been advised by the noble Lord, Lord Condon, and his predecessors as Commissioner of Police of the Metropolis. This was not about the way in which the organisation was run, administered or governed. That is the natural tendency. Home Secretaries are busy people. They have broad responsibilities. They are not going to be involved in day-to-day issues about the robustness or otherwise of governance structures. The history of the Metropolitan Police is not a sound precedent.
More recently we have the precedent of the border agency. Here, the opposite problem seems to have occurred. You seem to have a Home Secretary—perhaps successive Home Office Ministers would be a fairer way of putting it—who wanted certain things to happen and applied pressure on the border agency to do so. You then end up in arguments about what was said to whom by whom because of that one-to-one relationship. In all the fuss that there was a few months ago about whether certain expectations were being bypassed to let people into the country and remove queues, would it not have been better for there to have been a supervisory board between the Home Secretary and the chief executive of the border agency where there would have been a record, minutes, and perhaps an opportunity for dissent to be expressed? All that would be missing in the arrangements for the National Crime Agency, which raises the question of whether we are not in danger of creating a structure where the Home Secretary has too much of a role in respect of a policing body.
In this country, we have always expressed real concern about politicians having direct operational control of policing. That is part of the reason why there was a little bit of debate about the creation of police and crime commissioners, but that debate has moved on and we are now well into the process with the Labour Party having today announced a selection of candidates for those positions that includes my noble friend Lord Prescott. The Labour Party will clearly have an excellent set of candidates and we wait to see whether the Conservative list will be quite as exciting or interesting. The reason that there was some concern about that and there is even more concern about a national agency directly under the control of a single politician is the danger that that power is abused. I am certainly not accusing the present Home Secretary of having any desire to abuse that power. I am simply saying that we are creating a structure where such an abuse is possible and that it might happen in future.
Imagine occasions when there is a considerable threat from some organised crime group or a terrorist organisation, if that is the direction that the new agency goes in, and it is the responsibility of the Home Secretary to direct what the agency should do. The guarantees in the Bill for operational independence do not amount to very much in those circumstances. There is no place for control freakery here. This has to be about a proper system of governance. In a few years’ time, I would not want people to be making all sorts of sinister connections between policing operations that happen under the auspices of the National Crime Agency and saying that there are sinister implications that they have been personally directed or required by the Home Secretary, but that is the danger of the governance model that the Government have created.
My final point returns to what I mentioned in passing earlier. A critical part of this new agency will be the ability of the National Crime Agency to say that it wants local police forces to carry out or collaborate on particular operations. The danger of having a National Crime Agency that is divorced from the rest of the police structure is very real. I recall the discussions that took place over several years to try to get a system that worked on counterterrorism with primacy for one force and the ability to make operations happen across the country. It was not an easy process. The Government are making it more difficult for the director-general of the National Crime Agency if there are not police and crime commissioners or chief officers of police playing an active part in the governance of this new organisation. If they are there, if they are around the table and able to say, “This is a better way of doing that”, or to encourage the director-general to do things in a way that ensures their collaboration, that is surely going to mean that it is more likely that this new agency will succeed.
My noble friend’s amendments, which address precisely those points, are very welcome. There is a slight drafting error in that they make no reference to London, but I am sure that could be adjusted when we return to this at a later stage. The key issue that the Minister has to explain today is why this particular governance model has been put forward and why it is genuinely an improvement on a supervisory board which involves, for example, chief officers of police and police and crime commissioners.
The Minister of State, Home Office (Lord Henley)
My Lords, I hope that in due course I will be able to answer those points, in particular those final questions from the noble Lord, Lord Harris. I begin, though, with two points. First, my noble friend Lady Hamwee referred to “architecture”. I think that the noble Lord, Lord Condon, and the noble Lord, Lord Harris, also used that word. My noble friend did not particularly like the term and I agree with her. I find it inelegant, but as a form of shorthand, it is quite useful on this occasion. Therefore, I suspect that architecture is something that might be referred to. Secondly, I make a brief apology to my noble friend about the website.
I was discussing the Home Office website with the noble Baroness, Lady Smith, earlier during the Division that took place. We have had some problems with the Home Office website. This is true of other government departments, all of which have been targeted. I hope to write to the noble Baroness in due course and I am more than happy to copy my letter about the problems we are having with the website to my noble friend Lady Hamwee. It can be difficult for all noble Lords if, in trying to discover what the Home Office is doing—or any other department for that matter—they cannot get into our website. Obviously, that is the means on every occasion by which we learn what is going on. There have been problems and we hope to address them. Perhaps for the first of many times, I give way to the noble Lord.
Lord Harris of Haringey
My Lords, since the Minister raises the issue of the website, I believe that the Home Office’s explanation of why booklets will not be issued about the election of police and crime commissioners is that people will be able to access the information about candidates from the website. When the Minister writes to my noble friend, what reassurances will he give that the elections will not be interfered with by the same sort of malign intervention on his website?
Lord Henley
My Lords I am not sure that these booklets will come from the Home Office website. I will double check and make sure that I get an appropriate response to the noble Lord. All I am saying is that it is within the Home Office website that we have been having this problem. We want to get it right and are desperately keen to be open and fair. We want to get things across, and that is why I want to make sure that I can deal with all these matters and why I will write to the noble Lord’s noble friend, copying it to my noble friend and no doubt copying it also to the noble Lord, Lord Harris, and others who wish for a copy. We might discuss this later.
It might be useful if I set out—I hope not at excessive length—what we are trying to do with the National Crime Agency, where we are trying to get and why we think the Government’s arrangements are appropriate. Then we shall listen to the response from the noble Baroness. As she is aware, the National Crime Agency will be operationally focused, with a demanding mission to fight serious and organised crime and protect the public. We considered carefully how we would get the right governance arrangements for this agency to make sure that it maximises its effectiveness, accountability and, of course, minimises bureaucracy. That is something that the noble Lord, Lord Harris, did not stress, but might have done.
We have drawn up in the Bill the arrangements which we firmly believe achieve that right balance. Ever since I came to the Home Office, I have been talking about balance and it is important that there is the right balance between strategic oversight by the Home Secretary and effective operational leadership of the agency by the director-general. The director-general will lead and direct the agency and be directly accountable to my right honourable friend the Home Secretary and through her to Parliament, because she is answerable to Parliament. I must make it clear that this is entirely consistent with the tried and tested arrangements in place at many non-ministerial departments, of which there are a number. Let us, for example, take two that have a Home Office focus: law enforcement agencies such as the Serious Fraud Office—despite what the noble Baroness said—and the Crown Prosecution Service. As she will be aware, there are others outside what we could call the Home Office family. For example, there is the Food Standards Agency, which is chaired by the noble Lord, Lord Smith, and is answerable to the Department of Health or Defra—I forget which. Again, it is a non-ministerial department that responds to a department.
The noble Baroness proposes creating an NCA board, headed by a non-executive chairman, which would lead and direct the agency and to which the director-general would report. Instead of an operational crime-fighter, the Opposition want to put a non-executive chairman and board in charge of the NCA. Instead of the director-general being directly accountable to the Home Secretary, he would report through the board, which would inevitably be a slower and—I stress—more bureaucratic process. That is not the best governance model for a law enforcement agency that has to respond quickly and decisively to threats to protect the public. It would be like having your local police force, for example, run by a committee instead of by the chief constable.
In that example, chief constables must be held properly to account on behalf of the electorate, as must the director-general. However, people want to see effective accountability, not bureaucratic accountability. Creating more quangos, which is, in effect, what the noble Baroness suggests in her amendment, is hardly the way to protect the public from crime. Chief constables will be accountable to a single, directly elected police and crime commissioner in their force area. He will be visible and able to be held to account by local communities. In the same way, the director-general will be accountable to the Home Secretary, who can then be held to account by the taxpayer, noble Lords in this House and colleagues in another place. It is the Home Secretary who ultimately has responsibility for ensuring that the public are protected from crime and who will come before Parliament to account for the performance and impact of the NCA. Inserting a predominantly non-executive board and chair between the director-general and the Home Secretary will not increase accountability; it will just create more bureaucracy and more officeholders.
The amendments suggested here essentially replicate the arrangements that were put in place for the Serious Organised Crime Agency, which are more typical of non-departmental public bodies. However, SOCA is the only law enforcement agency with the sole responsibility of fighting crime that has this quango structure. It was always an anomaly. I do not know why the previous Government thought it was necessary, compared to, say, the Serious Fraud Office or the Crown Prosecution Service. Putting that non-executive chair and committee in charge of SOCA has inevitably led to more bureaucracy without adding to accountability. It has reduced the clarity over who is responsible for what.
In saying that, I make no criticism of the current SOCA chair and board members, who are distinguished professionals in their fields and who have done a very good job as a committee. However, I do not believe that it was the right structure for a law enforcement agency. The NCA is an agency that will have the power and responsibility to investigate serious and organised crime, and the officers of which will, like the police, be able to use coercive and intrusive powers. In its work to protect the public, there must be absolute clarity of accountability. What the noble Baroness proposes in her amendments would do away with that clarity.
Amendment 4 further specifies that the NCA board should include representatives of police and crime commissioners in England and Wales and of the police service. They are obviously key partners for the National Crime Agency and the director-general will want to work with them. However the Bill already clearly provides that these key policy partners will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency. Clause 3 requires the Home Secretary and the director-general to consult strategic partners before determining the strategic priorities for the NCA. Clause 4 also provides for these partners to be consulted on the agency’s annual plan.
The noble Lord, Lord Harris, put forward the idea of the importance of non-executive directors to be part of the internal governance of the NCA. He referred to the framework document, which will be issued in due course. In accordance with the principles of good governance set out by the Cabinet Office and the Treasury, in that document we will set out what those internal arrangements must be. They will include the role of potential non-execs, which we will consider carefully as regards the NCA but not in the manner suggested in the noble Baroness’s amendments. We will make an outline of that framework document available to Parliament in due course, as I think I made clear at Second Reading, to make sure that we can discuss these matters at later stages of the Bill.
Turning to Amendment 5, my noble friend Lady Hamwee is right to emphasise again the importance of good governance for the NCA, with which we agree. We will set that out in the framework document in due course. But the supervisory board proposed by my noble friend is a step too far. As I have said, we believe that the NCA should be led by the operational head, the director-general. Unlike the Opposition’s amendments which we have just discussed, this amendment sensibly leaves the director-general as the person responsible for “leadership and control” of the agency as set out in Clause 1.
However, creating a supervisory board headed by the Home Secretary muddies the waters over the director-general’s line of accountability. Therefore, I do not think that I can give it much support at this stage. I hope that those explanations are sufficient to deal with the concerns raised by noble Lords about the governance of the NCA. Obviously, we will discuss other more detailed matters on some later amendments. No doubt, we will come back to this issue at later stages of the Bill. I hope that I have largely dealt with most of the concerns put by noble Lords as regards this amendment and that the noble Baroness, Lady Smith, will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before the noble Baroness tells the House what she proposes to do with her amendment, perhaps I may raise with the Minister the way in which references to the framework document are set out in Schedule 2. We are told that the document will deal with ways in which the NCA is to operate, including how it,
“is to be administered (including governance and finances)”.
No doubt the Minister and his officials will consider further the points that have been made today—I am by no means certain what should happen after this stage on this issue—and at least they will consider whether the term “administered” covers the issues of governance which noble Lords have raised. To me, governance is not something which is included in administration; it is an issue on its own. To include it within administration downgrades its importance.
Lord Harris of Haringey
Before my noble friend responds to the debate, perhaps the Minister will also tell us precisely when we are likely to have this framework document. Clearly, he is saying, “Don’t worry your heads about the governance arrangements because when you see the framework document you will be entirely satisfied and it will all be all right. Therefore, this amendment is unnecessary.”. We are in Committee and have not yet seen the framework document. The Government announced their intention to create a national crime agency nearly two years ago, so it is quite extraordinary that this fundamental piece of the jigsaw is not available to us. It would be very helpful to have it.
Incidentally, while the noble Lord was speaking, I checked on the Food Standards Agency. As far as I can see, it has a fully functioning board; I believe that the noble Lord, Lord Rooker, is its chair rather than the head of the agency, but that is a mere detail.
Lord Henley
My Lords, I apologise to the noble Lords, Lord Rooker and Lord Smith. The noble Lord, Lord Harris, is absolutely right to say that it is the noble Lord, Lord Rooker, who chairs it. I was just giving it as an example of one of those boards that is slightly different in the way in which it reports to Ministers.
The noble Lord is also right about the importance of when we will be publishing the framework document. We want to share an outline of that document with Parliament in due course and I hope that we can do that before we get to the Report stage of the Bill. I remind noble Lords that the Bill started in this House so we have quite a time before it goes through both Houses. As the noble Lord will be well aware, in terms of the timetable, we will not even finish Committee stage until we return in the autumn, when I think we will have one day of Committee to deal with some matters. I believe it coincides with the Conservative Party conference, which, sadly, I will have to miss, but one often has to make enormous sacrifices in the course of duty and I will be deeply upset to make that sacrifice. However, I will try to ensure that the noble Lord gets the framework document in due course.
I also note exactly what my noble friend said about the importance of making sure that we distinguish between administration and governance. I think that she is right to stress those two points. I hope that noble Lords will bear with me and be prepared to wait for the framework document, which I hope we will get in due course.
Lord Condon
Can the Minister confirm that he is not excluding the notion of key stakeholders being drawn into a formalised relationship with the new NCA, even if it is not a supervisory board or a strategic board? He is acknowledging that the framework document may well create a role for key stakeholders to have a formalised relationship with the new NCA, something more than just being a vague consultee, who receives a letter saying, “What do you think of … ?”.
Lord Henley
My Lords, as the Bill makes clear, it is quite obvious that we want those key stakeholders to be involved. How formalised that should be is another matter. I would hope that the noble Lord would be prepared to wait for the framework document and how we consider it. It will be for all of us to decide how formal, formalised or informal that is, and what is the right balance—again I use that great Home Office word. It is getting the balance right.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful regarding the framework document. However, I hope that he understands how difficult it is for your Lordships’ House to consider properly the governance arrangements when we are told that we are going to get a lot of the information later, probably at Report. He said that we will not complete the Committee stage until after we return from the Summer Recess, with his great sacrifice of missing his party conference. The only reason the Committee stage is finishing so late is that in another part of the Bill the consultation, which will inform the clause in the Bill, has not yet been completed. As I said at Second Reading, I wonder whether this Bill should have come before your Lordships’ House at this stage or whether it would have been better, in order to consider properly the governance arrangements and the later clauses on community sentences, to have had that information with us now. We have already heard from the noble Baroness, Lady Hamwee, and my noble friend Lord Harris of the difficulties of trying to make suggestions and looking at exactly what the Government are proposing when we do not have a lot of the information with us today. I am slightly disappointed by the Minister’s response because even without the framework document being available to noble Lords he dismissed the idea that there could be a more formalised structure for involvement in a governance board, as the noble Lord, Lord Condon, said, before we had even had a chance to look at and consider the framework document.
I have listened to comments from around the Committee and there seem to be several points of agreement. There is a general recognition that the NCA is a big beast, taking on what the Minister called a “demanding mission”. It is clear that noble Lords want it to succeed in tackling some of the worst and most difficult crimes in our country. The only reason why we would discuss governance structures at all is not to make the Minister’s life more difficult or deny him the opportunity to attend his party conference, but because we want those structures to reflect the importance of the organisation and ensure that it has the best possible information, advice and governance to be adequate to the task that it faces. As other noble Lords have said, nobody is wedded to any specific structure, but there has to be some recognition that it is not really satisfactory to have a relationship whereby the director-general responds and reports to the Secretary of State, who sets the guidelines that the director-general works under.
The Minister mentioned some kind of advisory body. There is provision in legislation for that, but with a very limited capacity. That is not particularly clear, either. My noble friend Lord Harris referred to the importance of the relationship between the director-general of the NCA and policing bodies and PCCs across the country. The power of direction in the legislation is something that the Minister has said will be used in exceptional circumstances and that agreement would be sought at all times. Surely, if there is a board or some kind of body of which the director-general is part and to which he reports, which involves the police and the police and crime commissioners, among other people whom the Secretary of State may choose, that makes those relationships and understanding of the work of both much better and, therefore, more effective.
I take the Minister’s point about bureaucracy, but I do not think that that should be an excuse to remove good governance processes and practices, which have proved themselves in other regards. As my noble friend Lord Harris said, the Minister gave the example of the Food Standards Authority, which has a board. I asked what the benefits were of the NCA not having a board, why it needed to be accountable directly to the Home Secretary and what the model was for the organisation. I did not really get an answer to those questions in the Minister’s reply.
I have another point that I would like the Minister to think about a bit more. He said that one concern that he would have if there was a board was that the response from the director-general would be slower, and that it would be more bureaucratic, when he had to respond quickly and decisively to any threats. The role of the board as we see it would not be an operational one but strategic and about giving advice. I would not expect the director-general to consult the board every time he thought that he or his colleagues had to respond to a specific threat. That would clearly be unacceptable. We are talking about the role in the legislation that the Minister and the Government intend for the Secretary of State, and our suggestion is that it should be the board’s role. When the Government create bodies such as police and crime commissioners, we have to look at how they are brought into the general architecture of how the police and other law enforcement services work. It is unhelpful to good working practices to sideline them as they are in this Bill.
I would like to take this matter away and reflect on it. I do not intend to pursue it further at this stage. There may be more opportunities as we go through the Bill and debate other clauses around the issue of governance. At some stage, we will have a framework document, but I hope that it comes some time before Report. This House cannot do its duty of scrutiny as well as it should when we do not have such information. To suggest that it will be there for the Commons stage and that therefore we do not need it is unsatisfactory. I am sure that we will return to the issues of governance and, depending on how things go in the course of the debates in Committee, we will decide whether or not to return to them at a later stage. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I wish to speak also to Amendment 3. These are both probing amendments.
Amendment 2 seeks to remove Clause 1(10) from the Bill. That subsection excludes prosecution from the NCA’s crime reduction function. Is the point simply what the NCA itself can do? If so, why cannot it prosecute on its own behalf? The crime reduction function is defined and includes activities to combat crime listed in Clause 1(11), which refers to prosecution. If the NCA cannot itself prosecute, how is it anticipated that the process will work? Common sense tells me how it will work but I would like to hear that from the Minister. Why cannot the NCA have the option of prosecuting instead of commissioning prosecution, as it were?
Amendment 3 seeks to understand what is intended by the activity of mitigating the consequences of crime. Of course, that is not something to which I am in any way opposed, but can the Minister expand on that? Is it expected that the NCA will work in partnership with the many organisations which deal with mitigating the consequences of crime such as the Restorative Justice Council and Victim Support? I was pleased but a little surprised to see that referred to and would be glad to have some flesh put on those bones. I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, has explained, she is, as I understand it, seeking an explanation of why the National Crime Agency is precluded from pursuing its own cases. Presumably, the National Crime Agency would pursue only more serious and organised offences although there is provision in the Bill for NCA officers to become involved in dealing with any crime, so perhaps that is not necessarily the case. Subject to the Minister putting me right, I assume the Government consider that the Crown Prosecution Service would become involved in pursuing most cases. If I am right in thinking that, one advantage is that the Crown Prosecution Service is able to take an independent look at the evidence available to support a charge, and make a decision on whether there is sufficient evidence to put before a jury with a reasonable prospect of success, whether it is in the public interest to proceed and whether the charges being brought are the appropriate ones in the light of the evidence.
One can argue that where an agency or body which is the one that has investigated the case and produced and collated the evidence is also the one that makes the decision on whether the evidence is sufficiently strong to make the charge stand up, there is a possibility that that agency or body may be too close to the case and too involved to make the necessary judgments in an entirely objective manner. We will listen to the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee, and to the explanations that she is seeking. My only further comment is that independent agencies do not always seem to have a high reputation when it comes to pursuing cases successfully. Some might raise the Serious Fraud Office in that context.
Lord Henley
My Lords, I am grateful to my noble friend for putting forward these amendments and for making it quite clear that they are probing amendments. I hope that I can deal with some of her concerns.
I start with her first amendment, which simply suggests leaving out subsection (10). As I said, she put it forward as a probing amendment and I understand what my noble friend is seeking to ask. In setting out the expectation that agency investigations will lead to prosecutions, it is necessary to provide clarity on the role that the agency will take in relation to prosecutions—hence subsection (10), which provides that the agency does not have the function of prosecuting offences or, in Scotland, the function of instituting criminal proceedings. Rather, the agency will work closely with the prosecutors—that is, the CPS in England or the Lord Advocate in Scotland—to ensure that the right criminal justice outcome is achieved. I think it is right that those two agencies should do that, along with, in Northern Ireland, the Public Prosecution Service for Northern Ireland. Therefore, there is no inconsistency here. The NCA will not itself undertake prosecutions but will work with others to undertake activities to combat serious organised crime. Such activities must, quite rightly, include the prosecution of offences.
I turn to my noble friend’s Amendment 3, which would insert at the end of subsection (11)(d),
“in conjunction with other appropriate persons”.
I am very grateful to her for indicating that she also wanted to get over the fact that this is important in terms of the relations of the victims of crime. We have been clear that the reason for establishing the National Crime Agency is the need to respond to the changing nature of the threat posed by serious and organised crime—it has changed and will continue to change—and to ensure that our response keeps pace with the changing threat now and into the future.
As we are all well aware, where there is a crime, there is also a victim of crime. If we are committed to the agency tackling some of the most serious and pernicious forms of crime that we face, so too we must be committed to the agency playing an important role and working with other agencies and the voluntary sector to support the victims of crime. I suspect that my noble friend would like the reassurance that the agency will be able to work with any partners as it deems necessary to carry out its work. I can certainly give her the assurance that the agency’s primary relationships will be with other law enforcement partners but it will also be important for it to build wider partnerships with the private and voluntary sectors.
I hope that that assurance goes as far as my noble friend would like. I want to assure her that in due course the agency will take its responsibilities for all people, but particularly for victims, very seriously. With that, I hope that she will be sufficiently satisfied and will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I am glad of that reassurance. I expected it but I am glad to have it. Indeed, there is something of a change in the nature of crime and the need to recognise what is required to assist victims of crime. We will no doubt come on to that in more detail with the next group of amendments.
I remain a little perplexed as to why it does not remain an option for the NCA to undertake prosecutions. Indeed, one might have thought that this was something that the framework document would address and give some explanation of, as it is about the way that the NCA is to operate. However, I have heard what the Minister has said and beg leave to withdraw the amendment.
Lord McColl of Dulwich
“( ) In this Part a reference to organised crime or serious crime includes crimes and activities related to trafficking in human beings.
( ) The NCA shall take the measures necessary to ensure that the UK meets the following obligations under the EU Human Trafficking Directive—
(a) persons, units or services responsible for investigating trafficking in human beings are trained accordingly,(b) effective investigative tools are available to persons, units or services responsible for investigating trafficking in human beings,(c) there are services available for the protection, assistance and support of adult and child victims of trafficking in human beings.( ) “The EU Human Trafficking Directive” means Directive 2011/36/EU of The European Parliament and of The Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.
( ) “Victims of trafficking in human beings” has the same meaning as in paragraph 32 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”
Lord McColl of Dulwich
My Lords, a number of speakers at Second Reading raised the question of how the Bill will impact on the work of combating human trafficking and on wider child protection issues. I was grateful to the noble Lord, Lord McNally, for his responses in the debate. However, as we all know, the devil is in the detail, so my amendments seek to explore further how the work of the Child Exploitation and Online Protection Centre and the UK Human Trafficking Centre will be incorporated into the National Crime Agency and be built on.
I want to put this issue in context. One of the current organised crimes under investigation occurred in Oxford. In March, Thames Valley Police arrested 12 men on various charges including trafficking, in relation to the sexual exploitation of 24 girls aged 11 to 16. In the press release issued by Thames Valley Police that day, the work done by CEOP and the UKHTC was also acknowledged. There have been subsequent arrests of individuals in association with this operation, which is known as Operation Bullfinch. That was in April and May and last Friday of this month.
Last Thursday, 14 June, CEOP published its assessment of the danger of those in possession of indecent images of children committing further crimes against children. The report suggested that such images are,
“becoming more extreme, sadistic and violent”,
and becoming much more available because of the internet. It states:
“In 1990, Home Office estimates of the number of individual, hard-copy [indecent images of children] in circulation stood at approximately 7,000 … Today, the number of unique [indecent images of children] in circulation on the internet runs into millions, with police forces reporting seizures of up to 2.5 million images in single collections alone”.
The report concludes that a link has been identified between possession of indecent images of children and,
“the contact sexual abuse of children”,
although more research is required to assess and quantify that link. The recommendations in the report include making possession of indecent images of children a high priority for UK policing, thus ensuring,
“the identification and safeguarding of a greater number of victims of contact child sexual abuse”.
Last Thursday, CEOP also released details of Operation Tharsely, which was conducted on 12 and 13 June with more than 40 police forces and officers from the Serious Organised Crime Agency who were targeting suspected and known child sex offenders. In the press release, CEOP said that 78 offenders had been arrested and 80 children protected. CEOP has a dedicated child trafficking unit that provides a specialist child-focused and protective approach to tackling child trafficking. The unit produces a national strategic intelligence picture on child trafficking every year.
As I said at Second Reading, the UK Human Trafficking Centre is a multiagency operation whose,
“role is to provide a central point of expertise and coordination in relation to the UK's response to the trafficking of human beings”.
The UKHTC has an important prevention remit, including disrupting traffickers, working with partner NGOs, raising awareness and disseminating intelligence. The UKHTC has worked on the Blue Blindfold campaign to raise awareness of trafficking among police forces, professionals and the public, as well as the campaign with the rather unfortunate title My Dangerous Loverboy which was designed to raise awareness of internal trafficking among children in the UK.
The UKHTC,
“works with UK and international law enforcement agencies to pursue and prosecute those responsible for human trafficking”.
It provides expert advisers who provide support and advice 24 hours a day to police forces and government agencies to support pre-planned operations, advise on the disruption and prosecution of identified offenders and help in determining whether individuals may be trafficking victims. It is also one of the UK’s two competent authorities to determine whether an individual is a victim of trafficking under the national referral mechanism and is the central collection point for NRM data.
I hope that my brief review of the functions of these two agencies will convince the House of the importance of the current work. Yet, we cannot be complacent. We need to ensure that this work continues within the NCA and that the UK’s effectiveness in tackling this terrible crime is improved further. I hope that noble Lords will be able to support my amendments to bring a “combating human trafficking function” within the work of the NCA in Clause 1. Amendment 3B would ensure that the functions of the Human Trafficking Centre and CEOP will be part of the NCA under statute. Amendment 3A would ensure that human trafficking would be recognised as a serious organised crime for the purposes of this Bill.
We have international obligations to prevent and police human trafficking and to support victims under the European convention on human trafficking and the European directive on human trafficking. My Amendment 3A would require that the NCA take necessary measures to meet particular obligations under the European directive. There would be an obligation to provide training for investigations and for effective investigative tools to be available. That would meet Article 9 requirements. Similar requirements are also set out in Article 29 of the European convention.
The UKHTC already has a remit to provide services for protection, assistance and recovery of victims of trafficking. It works,
“closely with partners across the public, private and voluntary sectors to coordinate the provision of a full care, end-to-end programme for the victims of human trafficking”.
I am concerned that this important function should not be lost in the crime reduction and criminal intelligence functions of the NCA that are set out in Clause 1. The obligation in Amendment 3B would place that protection function in statute and seek to meet the obligations of Articles 11 to 16 of the directive. Similar requirements are also set out in Article 12 of the European convention.
I should make it clear to noble Lords that this amendment does not intend that the NCA should be undertaking provision of services, but that the overseeing role of the UK Human Trafficking Centre should continue and, in carrying out its duties, that there is intentional action to ensure that the UK is meeting its international obligations.
The amendment specifically states that there need to be services for both adults and children. A number of concerns about the impact of the NCA on current resources tackling human trafficking were raised at Second Reading. The need to care for trafficked children has been debated by the House on numerous occasions. The debate ranges from specific measures if they give evidence in court to educational needs and much more besides.
I was grateful to the noble Lord, Lord Henley, for giving a commitment in February to look into the case for appointing legal advocates for trafficked children, I and look forward to the outcome of that work. I was also grateful for his letter of 13 June, a copy of which is in Library, reminding us that the NCA will have a statutory duty to safeguard and promote the welfare of children across all its functions and duties. It would be helpful to know how he thinks this will change the current work and approaches of the UKHTC and CEOP.
Baroness Butler-Sloss
My Lords, I strongly support these amendments and Amendment 22, to which I assume the noble Baroness, Lady Doocey, will speak in a moment. Two All-Party Groups have today published their Report from the Joint Inquiry into Children who go Missing from Care—I am relieved that it came out today so that I can refer to it. In doing so, I need to declare an interest. At least I hope that it is an interest, because I should at this moment be at the annual general meeting of the All-Party Parliamentary Group on Human Trafficking, where I hope the group will decide to retain me as co-chair. However, I thought that it was more important that I should be present here to speak to the amendment of the noble Lord, Lord McColl.
The report from the joint inquiry makes some extremely important and worrying comments and recommendations in relation to trafficked children, many of whom are foreign children trafficked into this country. It has found from having heard a lot of evidence that it is estimated from,
“the patchy and incomplete data that is available on trafficked children”—
which is one of the most worrying aspects of this report—
“that 60% of suspected child victims of trafficking in local authority care go missing”.
The noble Lord, Lord McColl, referred particularly to sexual exploitation, but the finding of the parliamentary groups is that:
“Being exploited for labour is the most common form of exploitation for trafficked children, followed by sexual exploitation, cannabis cultivation, domestic servitude, benefit fraud, street crime and forced marriage. Many of the victims are subject to multiple forms of exploitation”.
Among their key recommendations is:
“A completely new system of reporting incidents of children going missing from care, which combines data from both the police and local authorities”.
Although the Minister might be wondering why on earth I am talking about what he might think is a matter for the Department for Education, this issue affects the NCA just as much it affects local authorities through the Department for Education. One of the major problems is that the police are not given information about children going missing from care homes where they have been placed, either because the local authority does not have that information or because the children are in another local authority which is not the local authority concerned with the children. It is a crying scandal that nobody knows anything about large numbers of missing children in this country except the place from where they went. Those data are not passed to the police. The police must be proactive in finding out what is happening to children.
The figures that local authorities give are peanuts compared with the figures that the police give. Local authorities say that it is about 900; the police think that it is probably about 10,000. Some of those children are trafficked children. I am very concerned that the United Kingdom HTC at Birmingham, which is doing sterling work, does not receive all the relevant data. One of the great problems here is the lack of a national rapporteur, or an equivalent mechanism under Article 19 of the directive. No organisation, even the UKHTC, seems to be given all the relevant information about children and adults who are the victims of trafficking. Data are crucial. The Dutch rapporteur has come to this country from time to time explaining how, in Holland, she is responsible for all the data, which she can give to the relevant police authorities. That is an extremely important aspect.
Amendments 3A and 3B—and, indeed, Amendment 22—would remind the NCA of an overriding obligation to deal with one of the most important and worrying crimes in this country, which is the receipt of foreign people who are trafficked and the internal trafficking of our own children. The police need to be proactive. The NCA needs to make sure that police, right down the scale, are aware, so that if they see a child in an odd situation, they should find out whether that child is missing from a care home or foster home or, perhaps more importantly, wonder whether the child is a trafficked child.
The point made by the parliamentary group is that most child victims go missing within one week of being in care, often before being registered; and almost two-thirds of trafficked children are never found. One reason that the non-British trafficked children go missing from care is that they have been groomed by their traffickers not to let anybody in this country know about it, either because they are frightened of the police or, much more likely, because they have been threatened with what may happen to their families. They are not immediately obvious, but that does not mean that we do not have, and that the NCA should not have, an absolute obligation to seek out those children and adults who are in a similar position—in particular, if I may come back to it, to deal with the inadequate and patchy data. That is something that the NCA should have responsibility for in passing all the information it has to the UKHTC in Birmingham, if that is the best place.
I wonder whether the Government should rethink where national data should be placed to ensure that they are all produced—what CEOP, the NRM and everyone else, in particular local authorities which may end up with information about the children they take, have. The Department for Education should be working much more closely with the Ministry of Justice, police and local authorities. I believe that the only way in which it will work more closely is if it is stated in primary legislation what should be done.
Baroness Doocey
My Lords, regarding Amendment 22, I am concerned at the failure of the Bill to deal adequately with the problems of child trafficking. I was also concerned at Second Reading that the Minister’s only reference to child-related crime was a mention of the exploitation of children for sexual purposes. This is not the same as child trafficking; the two are separate issues and dealing with one does not necessarily deal with the other.
Because the Bill is silent on child trafficking, it is unclear where responsibility is going to lie. Will it be with CEOP or the new operational command for border policing and immigration crime, or will it be divided between the two? I very much agree with the comments made by the noble and learned Baroness, Lady Butler-Sloss, that the difficulty is we really need something that deals exclusively with children. The ideal solution would be the establishment of a child-focused operational command within the NCA that could deal with all problems pertaining to child-related crime, including all forms of child trafficking and child exploitation.
Amendment 22 would not force the NCA to establish such an operational command since that is clearly a policy decision. However putting the words “child trafficking” on the face of the Bill would make it abundantly clear that this was a prime duty that the NCA had to address.
From the official statistics, which are woefully inadequate, we know for certain that in the past two years more than 600 children were trafficked into the UK. However, this is likely to be the tip of the iceberg because it is almost impossible to get the real figures. One reason for this is because trafficking legislation requires evidence sometimes called double intent, which means that it is necessary to prove both an intent to transport and an intent to exploit. Often, evidence exists of one or the other, but seldom both. For example, trafficking legislation cannot be used if a child arrives in UK with an adult but there is no evidence to prove that the same adult will exploit the child during its time in the UK. Such cases are usually prosecuted under immigration legislation. They are then not recorded as child trafficking, they do not go into the official statistics, and the official figures therefore hugely underestimate the problem.
The types of child exploitation are varied. Domestic servitude is a major issue and always has been, but looking after cannabis plants—I think it is called “cultivation”—is a major issue for children, particularly those brought in from Vietnam. Vietnam has consistently ranked in the top two countries for child referrals since 2009 when the national referral mechanism began. Despite this, there has not been a single prosecution under UK law for the trafficking of children for forced labour in cultivating cannabis, although Vietnamese children are regularly arrested and prosecuted in the UK for drug-related offences.
I urge the Committee to support this amendment. If we can get the words “child trafficking” on the face of the Bill, it will elevate the problem to a major responsibility of the NCA and something that has to be taken very seriously, that cannot be split between different operational commands and cannot just be pushed to one side. This is a very serious problem and it needs to be seriously addressed.
Lord Neill of Bladen
Will the noble Lord, Lord McColl of Dulwich, say that his amendment is essential in relation to the directive? In other words, if his amendment were forgotten about or did not exist, would the Bill contain provisions that have the same effect, or are his provisions critical to the UK’s ability to carry out its duties under the 2011 directive?
Lord Hylton
My Lords, we have now heard some very powerful speeches in favour of these two amendments. I would add two further examples of trafficking which have not so far been mentioned. There is some evidence—and there are certainly some strong suspicions—that, first, some English-born children have been trafficked from place to place within England and that, secondly, some children who have been taken into the care of local authorities but have run away or escaped, or taken avoiding action, have then been trafficked out of this country to overseas destinations for unknown purposes.
Lord Harris of Haringey
My Lords, we are all grateful to the noble Lord, Lord McColl, for introducing the subject of child trafficking into the Committee today. One reason why it is so important that we look at what should or should not be written into the Bill about child trafficking, human trafficking, child exploitation and so on is the concern that there will be, from those who are concerned with these issues, that somehow these matters will get lost in the new National Crime Agency. I recall the concern expressed when SOCA was set up about what was to happen to the high-tech crime unit. It appeared to disappear completely. Because that unit had disappeared into the new agency, it was not apparent to those who had been working with it whether those activities were still continuing as time went on. There is a very real concern that some of these issues about child exploitation, human trafficking and so on may disappear or not be given the same priority.
Part of that comes back to what I suspect may not be included in this much vaunted framework document, which is: what governance and external-facing relationships is the National Crime Agency going to have? CEOP, for example, has a highly regarded partnership structure that relates to other organisations which are active in the field. It relates to those technology companies and to all sorts of organisations which need to work with it to help deal with child online exploitation. The danger is that unless we are told explicitly that these activities will carry on and that those relationships with external agencies will continue, some of them will disappear. There is a real fear about some of these activities and relationships as far as CEOP is concerned, which is why we are seeing amendments such as the one before us that are trying to pin down what the responsibilities will be on issues such as trafficking and child exploitation. I hope that the Minister can give us some reassurance that these issues will be dealt with explicitly in the framework document, so that we can be reassured that the National Crime Agency will continue to have robust external relationships on this range of issues.
Lord Rosser
My Lords, the noble Lord, Lord McColl of Dulwich, has long championed the issue of child victims of human trafficking, having had, I believe, a Private Member’s Bill in the last Session and an amendment to the Protection of Freedoms Bill to introduce a system of guardians for child victims who enter the system. His amendments today, however, relate to including in the NCA’s statutory functions a duty to fulfil the requirements of the EU directive on human trafficking. They also provide that the functions of the National Crime Agency would include the functions of the UK Human Trafficking Centre and of CEOP. We support this group of amendments as a means of strengthening the requirement on the Government to implement the directive fully and of providing clear roles and responsibilities for the NCA on trafficking, including child trafficking, since there is a serious problem that needs to be addressed, as the noble Lord and others have said.
The Home Office has itself acknowledged that some 32% of child victims went missing from care between 2005 and 2009, with many being abducted back by their traffickers. The guardians system, which was the subject of the amendment tabled to the Protection of Freedoms Bill, is advocated by UNICEF and leading children’s charities as a means of ensuring continuity of care and continuous oversight of trafficked children who have been taken into care by the state. At the Report stage of the Protection of Freedoms Bill, as I recollect it, the noble Lord, Lord McColl, did not move his amendment, which would have placed a duty on the Secretary of State to introduce the guardians system for child victims of human trafficking, because of assurances that the noble Lord, Lord Henley, gave that the Government would commission a report by the Children’s Commissioner into ways to improve retention of child victims in care.
As has been said, this is a particularly topical issue as the Children’s Minister has accepted that the system is failing in preventing children in care going missing, as revealed in the report published today by the All-Party Group on Runaway and Missing Children and Adults, to which the noble and learned Baroness, Lady Butler-Sloss, has already referred. Its report stated that vulnerable young people are being systematically let down. The Children’s Minister has, I believe, promised urgent action to address the problems that have been identified. It seems that there are big discrepancies between police and Department for Education figures, as has already been said. The DfE last year said that 930 children went missing, whereas the police estimate that 10,000 children in care went missing. We need accurate and reliable figures, since going missing is regarded as a key indicator that children are open to the risk of abuse. Indeed, one of the main reasons that the all-party group felt led to children running away was that 46% of children in children’s homes were placed away from their home town.
Considering today’s report by the all-party group and statement by the Children’s Minister that children are being “systematically let down” by the care system in failing to prevent them going missing, are the Government going to introduce a system of guardians or legal advocates for child victims of human trafficking, who are among the most vulnerable children in our care? The Government declined to accept the amendment to introduce guardians for child victims of human trafficking at Report on the Protection of Freedoms Bill, which is now of course an Act. Instead, they said that they would commission a report from the Children’s Commissioner to investigate measures to mitigate the number of trafficked children who go missing from care. When will the Children’s Commissioner actually report, and what steps are the Government intending to take in the mean time to protect these children and reduce the substantial number who go missing from care?
There is also the question of how this Bill and its provisions will help to address the situation that many of your Lordships have so eloquently identified already in this debate. Under this Bill, the National Crime Agency absorbs the Child Exploitation and Online Protection Centre. Can the Minister spell out how the Government believe that this will improve the situation? How will CEOP retain its own identity and operational independence and what assurances can the Government give that its integration into the National Crime Agency will not adversely affect its ability to protect children or to continue its multiagency approach, which might be put at risk if the National Crime Agency were seen as primarily a policing organisation? Which areas will CEOP continue to lead on in future in relation to trafficked and missing children and will there, as has already been asked, be any split of related functions in this area within the National Crime Agency that might lead to some cases falling between two stools, or rather between two agencies or organisations?
I repeat that we support these amendments and I very much hope that in his reply the Minister will be able to address the many points that have been raised.
Lord Henley
My Lords, I thank my noble friends Lord McColl and Lady Doocey for bringing forward their amendments and for highlighting just what we are dealing with in bringing to the attention of the House the appalling crime of trafficking, particularly the trafficking of children. I underline the points made by my noble friend Lord McColl during the passage of the Protection of Freedoms Act. In saying so, I say to the noble Lord, Lord Rosser, that we are still awaiting the report from the Children’s Commissioner. The timing of that will have to be a matter for the commissioner herself, and I cannot give him any further assurance about timing at this stage.
I also thank the noble and learned Baroness, Lady Butler-Sloss, for her references; I think she was the first contributor to refer to the all-party group. I got rather confused as she referred first of all to a committee and then to something else, and I finally worked out that she meant the report from the all-party group, which came out only today—or was it a bit earlier? In due course there will have to be a response to that, and I very much hope that colleagues in the Department for Education with primary responsibility will lead on that.
I thank all noble Lords who referred to the work of CEOP in this field. I have visited that agency since becoming a Minister in the Home Office, and I am sure that other noble Lords have done so and know just what an effective job it does and how well it can do it. Again, I assure my noble friends and other noble Lords, as my noble friend Lord McNally did when he wound up the Second Reading of the Bill, that we believe that the NCA will have a key role to play in building on the existing arrangements for dealing with trafficking, using its enhanced intelligence capabilities and co-ordination functions to target both organised criminal gangs involved in perpetrating these crimes and others, wherever they are.
It is my job today to deal with the specific amendments, beginning with Amendments 3A and 3B moved by my noble friend Lord McColl, that deal with the functions of the National Crime Agency in Clause 1. I am satisfied that the functions set out in Clause 1—we must also refer to Clause 8—are sufficiently broad to encompass human trafficking. The important point that we need to deal with is whether we need a specific reference in the Bill to human trafficking, particularly in the light of what is available in Clause 8. I remind noble Lords that there are specific references in Clause 8(1) and (2) to Sections 11 and 28 of the Children Act, which make clear that the agency has to discharge its functions in a way that has regard to the need to safeguard and promote the welfare of children. We need to discuss whether we need to bring in my noble friend’s amendments or whether we have taken a sufficiently broad approach to the agency’s functions.
The broad nature of the functions is also critical to ensuring that the agency has the flexibility necessary to respond to the changing threat in future. One needs to be wary of taking an overprescriptive approach to the listing of specific crime types, as this amendment starts to do, which might undermine the approach that we have taken to the functions as set out in Clause 1. Amendment 3A then seeks to go further and add to the agency’s functions by placing on it a specific responsibility for ensuring that the UK meets its obligations under the human trafficking directive, to which I think my noble friend and the noble Lord, Lord Neill, referred. As I hope I made clear on earlier occasions—during, I think, the debates on the Protection of Freedoms Act—we are satisfied that we will meet the requirements and be compliant with that directive. Her Majesty’s Government have had discussions with the Commission about that matter.
I do not consider it appropriate for the agency to have the responsibility for ensuring that wider obligations are met. The agency should be combating human trafficking, not checking that other organisations—which there will be, on this occasion—are meeting their obligations. However, my noble friend is right to highlight the important obligations. Once again, although I am not persuaded of the need to add to the agency’s functions in this way, I do not wish to diminish the importance that the Government place on that directive or the obligations that it places on the United Kingdom.
Amendment 3B seeks to ensure that the functions of the United Kingdom Human Trafficking Centre and CEOP are included within the functions of the National Crime Agency. My noble friend set out the important role that these bodies have in tackling human trafficking. I repeat what other noble Lords have said, just as I said at the beginning, in underlining the valuable work that they do in this area. I categorically assure my noble friend that CEOP and the Human Trafficking Centre, both currently part of the Serious Organised Crime Agency, will continue their important work as part of the National Crime Agency in future.
Baroness Butler-Sloss
I am extremely grateful to the Minister for giving way. Will there be any reference, in any documentation such as the framework or anything else of significance for the NCA, to human trafficking?
Lord Henley
I refer the noble and learned Baroness, as I did at the beginning, to Clause 8 and its reference to the Children Act, which does not refer to trafficking but makes quite clear that the interests of children should be taken very seriously. That said, I do not believe that it is necessary—this is what I have been trying to explain to the noble and learned Baroness and to the rest of the House—to refer to it specifically in the Bill in the manner she suggests. Further, I take her back to the references that have been made to the EU directive. We believe that we will be compliant with that and it is very important that that is also there.
I see that I must give way again to the noble and learned Baroness.
Baroness Butler-Sloss
I apologise to the Minister, but it is just possible that he misunderstood me. I was asking whether, if these amendments were not accepted, there would be anything—not in primary or indeed in secondary legislation but at least in either the framework or other instructions to the NCA—to make very clear the importance of dealing with the trafficking of children and adults and the other points that we have made so that it was known in writing rather than being a general admonition.
Lord Henley
I take the noble and learned Baroness’s point and I will certainly consider a specific reference when it comes to the framework documents. I was dealing with what was in the Bill, which I think is very important due to the reason that I set out—the changing nature of crime. For example, 10 or 15 years ago we had never heard of cybercrime. Now we have. Things change and move on and the danger of listing things in primary legislation in the manner that she suggests is that it may confine us unnecessarily and is not the best way of dealing with these matters.
I hope that those assurances are sufficient for my noble friend to feel able to withdraw his amendment. We might want to have further words and noble Lords and noble Baronesses might want to see more in due course, but for the moment I hope that he is satisfied. I await what he has to say with interest.
Baroness Hamwee
Following up the noble and learned Baroness’s point, surely one would expect, among the strategic priorities that the Secretary of State has to address and determine under Clause 3—she will have to report to Parliament—the issues of child and adult trafficking to which she referred and the different purposes of trafficking.
Lord Henley
My Lords, I look forward to my right honourable friends setting out their strategic priorities and to reports in due course. Whether I am the one who has to respond in this House when they appear is another matter. I am sure that the sort of pressure that my right honourable friend will be coming under will be such that she will certainly take on board what the noble and learned Baroness has had to say.
Lord McColl of Dulwich
My Lords, as a Scot I do not like wasting words and paper and so on and I understand that we cannot have lots of things in the Bill, but this is such an important issue. It is even more important than I thought it was until the noble and learned Baroness, Lady Butler-Sloss, brought out the figure of 10,000. When we were talking about 300 children missing, perhaps the Bill would have been big enough to cope, but 10,000 children missing is appalling. This House and the country as a whole do not understand just how terrible the situation is. In answer to the noble Lord, Lord Neill, I must say that these amendments are essential and that we really have to press forward to do something about these appalling facts. Children are being brought over here and made to work on cannabis farms. They are then arrested and taken to court, which they do not understand, and then sent to prison. It is appalling. Something really has to be done.
I thank the Minister for all his help. We have been to see him on several occasions and we feel that we are moving forward. I thank him for his helpful reply, which we will certainly reflect on. I beg leave to withdraw the amendment.
“(1) It is the duty of the Secretary of State to ensure that the NCA is provided with sufficient resources to enable its functions to be discharged effectively and efficiently.”
Baroness Smith of Basildon
My Lords, the reason for this amendment is not dissimilar to the reason for the previous amendment that I spoke to: the contradiction that I find at the heart of this Bill around the role of the Secretary of State and whether it is strategic or operational. We are very firmly of the view that it should be and must be a strategic role. As I indicated in my earlier comments on governance, it is an issue of power and responsibility: who holds power and who takes responsibility. We have seen it in other Bills and on other issues.
We are very clear that funding is a strategic role for which the Secretary of State should have responsibility. By way of example, I remind the Minister of a question I asked him on police and police cuts with reference to my own county, Essex. We now have no 24-hour police stations. A number of police stations are open only part-time or during the day, and we have lost or are due to lose several hundred police officers. When I queried him on the Government’s policy on this, he referred me to the chief constable and said it was his responsibility not the Government’s. Surely, the chief constable takes such decisions only in light of the funding laid down by the Government.
I want to make it quite clear in this amendment that the responsibility for the funding of the National Crime Agency is a very strategic role and one for the Secretary of State to ensure that the agency has the funds to do all the work that it needs to do to be effective.
The national plan states that the National Crime Agency,
“will not exceed the aggregate of the Spending Review settlement for the precursor organisations and the cost of the fully funded functions it is agreed should migrate into the NCA”.
That is helpful in many ways, and the Government have since confirmed that the NCA budget for 2014-15 will be around £400 million.
While we understand that the Government are saying that the budgets will migrate with the organisations, which we certainly welcome, in reality we have to look at the cuts that those organisations have already sustained and the loss in their budgets and the savings they have found, in many cases to their credit. The National Policing Improvement Agency has found, I understand, around a £100 million reduction in its budget. Its headcount has gone from 2,200 to 1,400 and it is facing further deep reductions to its budget over the remainder of the financial review period. Clearly, if the NCA is to operate in the same spending envelope as its predecessors, it is unclear how it can manage what it does now and be the co-ordinating body for the organisations that have been moved under its control.
I raise this issue because we want to see the NCA succeed and to be able to do the work that it is going to do, but I wonder whether it would have been cheaper and more cost-effective just to have the organisations working more closely together and to mandate closer working between existing agencies.
Lord Condon
My Lords, at Second Reading I raised concerns about the resourcing of the NCA, not in the sense of special pleading for the police service in general or for the NCA in particular, but having now been around policing for just over 45 years, I have never encountered a time when individual police forces were under such rigorous challenge as regards their resources and their budgets. I totally accept that, as part of the wider challenge that we face economically as a country, there is no element of special pleading in what I am saying, and I am most grateful to the Minister, who very kindly agreed to a meeting last week, at which the new director-general of the NCA and officials were also present. I was reassured, as I knew I would be, by the energy, intelligence and commitment of all those present to give the NCA the best possible start, but having spent over 35 years in and around policing as a serving officer and then over the past 10 or more years as a very interested spectator, I am still left with concerns that the remit for the NCA is going to be tough to deliver against its budget.
Although the Minister may not feel able to concede much on this amendment or be able to put anything similar in the Bill, there is a pragmatic challenge about how the new NCA, with all its co-ordinating tasks, new tasks and the demands put on it, will be able to deliver against the background of its budget. It will work smarter and do more for less, but my experience in both the public and the private sectors is that sometimes you have to spend to save, to get economies of scale, to get new, smarter ways of working and to get synergies. There are start-up costs, and I would like to think that there will be some flexibility around the budget, even if this amendment is not accepted. Like others in this House, I want the NCA to get off to a very good start, and I would not want anxiety around some, relatively speaking, small resource issues to undermine the potential for it to be such a force for good.
Lord Henley
My Lords, I quite understand the concerns expressed by the noble Lord, Lord Condon, and we understand that very difficult decisions have been made by different police forces up and down the country about where they are going to rein in expenditure, just as all agencies of the Government of one form or another are having to make very difficult decisions, but we believe that the cuts that they face are manageable. We also believe, and I think this is something to get over, that merely throwing money at a problem does not necessarily, as we discovered before 2010, solve problems, and increasing budgets does not always bring improvements in the service that the public have a right to expect from all services that the Government and taxpayers provide in one form or another.
It will, no doubt, be difficult for the NCA, which, like SOCA, will have to live within its budget and the review settlement. The NCA’s budget will be based on the budgets of the precursor organisations. It will have to deliver that wider remit through enhanced intelligence, tasking and co-ordination arrangements that I hope will make more effective use of its resources—its own assets and those of others. Creating the agency will also provide opportunities to rationalise some functions, remove duplication in others and generate efficiencies.
Turning to the amendment of the noble Baroness, Lady Smith, and her question, in effect, about the responsibility of the Home Secretary, the important point is that the Home Secretary is ultimately accountable to Parliament for public protection. She has a vested interest in ensuring that the National Crime Agency has sufficient resources to deliver the priorities set for it. The Home Secretary will want to make sure that sufficient resources are therefore provided for the important work of the NCA when she negotiates with colleagues in the Treasury. The noble Baroness knows exactly what this is like and I look at other Ministers who have negotiated these things in the past. Sometimes those negotiations can be difficult, but it is something that the Home Secretary will have to address after the next spending review.
Importantly, she will remain responsible and answerable to Parliament after those decisions have been taken for making and setting the strategic priorities for the NCA. Again, the Home Secretary will consult others, whether it is the director-general of the NCA or whomsoever. The director-general will be able to provide that operational understanding of the resources required to deliver in this area. He will also need to ensure that the resources are allocated in the most effective and efficient manner. The important work of the NCA will need to be delivered within the budgets of its precursor bodies in those first years of operation. The budget constraints for the remainder of this Parliament will obviously continue to remain challenging. That means that the NCA, like many other bodies, will look closely at identifying duplication of effort and maximising opportunities for savings. I believe it will be able to ensure greater efficiencies by more effective prioritisation and smarter use of its own assets and those of others.
It is in the interests of the Home Secretary to work with the director-general to ensure that there are adequate resources for the National Crime Agency. The fact that my right honourable friend is answerable to Parliament means that the amendment is unnecessary and I hope that the noble Baroness will feel able on this occasion to withdraw it.
Baroness Smith of Basildon
I am grateful to the Minister, but I wonder whether saying that the Home Secretary is accountable to Parliament is adequate. He will recall that I asked him a question about Essex police. Obviously he is accountable to Parliament, but he told me that it was the responsibility of the chief constable. If the Home Secretary is questioned about funding not being available or adequate to the task, will she merely say, “That is an operational matter for the director-general”? Allocating funding within the organisation would be a matter for the director-general, but it is the overall envelope of funding that puts pressure on him. I am encouraged by the comments of the noble Lord, Lord Condon, which I share, that he is reassured by the intelligence and commitment of those who will be involved in running the NCA. However, the Minister has said that it is going to be difficult. Hearts must sink when people go into a new organisation, really wanting it to succeed, but they are told that it will be difficult to make it work within the budget.
I am also disappointed by the Minister’s comments that we cannot just throw money at a problem. I do not think that anyone has suggested that money be thrown at a problem, but there could well be a problem if the resources for the NCA are not adequate for the task that it has to undertake. If the NCA starts by struggling for funds and not being able to fulfil its obligations, it will lose credibility. I understand the point that he makes and I do not think that he is going to concede as regards looking at the funding or funding additional responsibilities that the NCA will take on. I wonder whether there is a case for reviewing the expenditure and operation after one year. Perhaps a Select Committee could undertake that role and we might return to it. For now, I take on board what he has said and I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
My Lords, this is a probing amendment. It deletes paragraph 5(1) of Schedule 1 which states:
“For the purposes of the discharge of NCA functions which relate to organised crime or serious crime, an NCA officer may, in particular, carry on activities in relation to any kind of crime (whether or not serious or organised)”.
These words are similar, but not the same, as those relating to SOCA in the Serious Organised Crime and Police Act 2005. Could the Minister explain the significance of the changed wording? On the face of it, the power in paragraph 5(1) of Schedule 1 could be very wide ranging, particularly in the changed world of the new and more powerful National Crime Agency, with the director-general able to direct chief officers of other forces to perform tasks, and in the world of elected PCCs. It would be helpful if the Minister could put on the record how the Government intend that power to be used by the new agency, and in what sort of circumstances and on what kind of occasions.
The functions of the National Crime Agency are set out in Clause 1 of the Bill and refer to combating organised crime and serious crime. Equally, there are references in that clause to combating,
“any other kind of crime”,
and combating,
“crime (or a particular kind of crime, such as organised crime or serious crime)”.
This indicates that the role of the more powerful and influential NCA could be wider than just organised and serious crime. Paragraph 5(1) of Schedule 1 suggests that the power of the NCA and its officers in relation to any kind of crime relates only to occasions when they come across such other crimes when they are involved in dealing with organised and serious crime. If that is the case, no doubt that will be the thrust of what the Minister will say when he responds. However, this clearly could be something of a grey area which presumably could mean National Crime Agency officers becoming involved in dealing with the kind of crime that might be a matter for other police forces rather than the National Crime Agency.
Who, then, will make the decision on whether a National Crime Agency officer should carry on activities in relation to another kind of crime when it is neither serious nor organised? Will it be for individual NCA officers on the spot to decide or the director-general of the NCA? Will the director-general decide but require the consent of the Secretary of State, or will it be a matter that can be undertaken only by NCA officers when there is prior agreement between the chief officer of the police force that would normally deal with such a crime and the director-general of the National Crime Agency?
There is a possibility that this particular provision in Schedule 1, allied to the provisions of Clause 1, could be used by the director-general of the new, more powerful and influential National Crime Agency to seek to extend his or her wings and influence. The director-general could take the view that a range of other crimes could,
“relate to organised crime or serious crime”,
and be addressed by the National Crime Agency and thus could and should involve National Crime Agency officers. It might well be that the Minister may say that this will not happen, but what is to stop it happening under this Bill? Bear in mind that the director-general of the new National Crime Agency has wider powers and responsibilities, including stronger powers of direction than have previously applied in relation to chief constables of other forces.
There is potential for friction between the National Crime Agency and police forces in England and Wales, particularly with elected police and crime commissioners on the scene, unless some very clear guidelines are provided on the kind of circumstances in which the powers of the National Crime Agency to become involved in dealing with any kind of crime, in addition to organised crime and serious crime, can and should be used. I hope that the Minister will be able to set out how the Government see this power in paragraph 5(1) of Schedule 1 being exercised by the new, more powerful and influential National Crime Agency and its officers under the terms of this Bill. I beg to move.
Lord Henley
My Lords, I am grateful to the noble Lord for explaining what lay behind his probing amendment. I hope that I will be able to set out what paragraph 5(1) of Schedule 1 is about. It makes it clear that the National Crime Agency can undertake the widest possible operational activity to maximise its impact on serious and organised crime. Clause 1 sets out clear expectations for the range of operational activity that it will be necessary for the agency to be able to undertake. Paragraph 5 goes further, making it clear that the agency can undertake operational activity,
“in relation to any kind of crime (whether or not serious or organised)”,
if it will ultimately deliver its crime reduction function. This includes disruption activity.
We are clear that the agency needs to be focused on national crime threats. That is why the crime reduction function has been drafted in the way that it has. This is not about interfering in local policing or taking over the work of individual police forces. Rather, the National Crime Agency will work with and support the work of local policing and police forces nationally to tackle crime that warrants a response beyond the boundaries of a local police force. It is also not about broadening the remit of the agency, but strengthening the ability of the police to respond to the serious and organised crime threats that face every community in the United Kingdom every day.
Criminal gangs have networks that can span from street-corner drug-dealing to the international importation of drugs and firearms. Therefore, it is important that the agency is able to take action against such gangs and other serious criminals along the whole spectrum of crime across which they can operate, from that very local level up to national and international levels. This amendment would therefore significantly curtail the effectiveness of the operational activity that the agency could undertake. It is right that the agency’s efforts should be concentrated on serious and organised crime, but the Committee will recognise that sometimes the most effective way of disrupting a crime network is to tackle the lower-level, seemingly less serious crime to have the greatest impact and stop the crime group operating. For example, an agency officer may want to use their powers to arrest a suspect for a possession-of-drugs offence to disrupt a much larger operation that involves a number of people in the supply of illicit drugs.
In all cases, the activity of the agency should be directed towards its core role of protecting the public from serious and organised crime. That is already written into paragraph 5. Where an agency officer is tackling crime that is not serious or organised, it must be to deliver the agency’s function of tackling serious and organised crime.
Finally, I point out to the noble Lord that there is a very similar provision in Section 5(3) of the Serious Organised Crime and Police Act 2005. The previous Administration accepted the need for such a provision. I appreciate that this is a probing amendment but I hope that the noble Lord will see that it is unnecessary and, in effect, a replication of what was there before. With those assurances and that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Rosser
My Lords, I thank the Minister for his response, which has clarified the Government’s intentions behind the wording “any kind of crime”. I referred to the fact that there is similar wording relating to SOCA in the Serious Organised Crime and Police Act 2005. I commented that it was not the same wording as appears in the Bill and asked the noble Lord to explain the significance of the change, which he has not done. Maybe the wording has been changed for a good reason but at the moment I am not clear as to what that is.
I am not entirely surprised by the Minister’s response. I understand his point that, in addressing serious and organised crime, there may come a need or a necessity to address other kinds of crime in the course of those investigations. In moving the amendment and asking those questions, I was simply pointing out that it depends on the extent to which this power is used and how it is used. Although I posed the question, I am still not clear as to what the Government’s intentions are in respect of who will decide whether the powers in paragraph 5(1) of Schedule 1 should be used. I asked whether it would be the NCA officer on the ground, the director-general or the director-general with the clearance of the Secretary of State, or whether it would be a matter for agreement between the director-general and the chief constable of another force. I have not had a specific response to that point either. Does the Minister wish to intervene?
Lord Henley
I will intervene if the noble Lord will give way. On his point about the comparison between the 2005 Act and the Bill, I will look carefully at what he said. I do not have the wording of the 2005 Act in front of me and it does not stick firmly in my head. However, I am sure that there are very wise words in the Act. Our intention was to replicate what was there. If there are differences in the wording, there is no intention to do anything different. The intention was to achieve the same object. It might be worth my looking again at the precise wording of the 2005 Act and what we have here and writing to the noble Lord, just to make it clear that our intention and that of the draftsman—remember that over seven years the style of drafting will change—was to achieve the same things. Is the noble Lord happy to accept a letter from me on that matter?
Lord Rosser
Yes, I would certainly accept a letter. I do not wish to imply that there are major differences in the wording but it is not precisely the same. However, if the intention is that it should mean the same, that is fine. If the Minister could write to me, saying that, it would clear up the matter. In the light of the Minister’s reply, I beg leave to withdraw the amendment.
“( ) the relevant Departmental Select Committee of Parliament,”
Baroness Smith of Basildon
My Lords, we return to the recurring themes of governance and operational independence, this time in relation to the provisions of Schedule 1 on director-general appointments and resignations. I entirely agree with the Government that the NCA should preserve strict operational independence. That is why the director-general should not have such a close relationship with the Home Secretary as the one proposed in this legislation, including in Schedule 1.
Looking at Amendment 10 first, it would mean that the director-general would be employed by the National Crime Agency board. The terms and conditions of employment would remain determined by the Secretary of State, which would preserve the ultimate accountability to the Secretary of State but avoid the direct oversight that is currently envisaged in the legislation. Amendment 8 would require pre-appointment scrutiny of the director-general by the Home Affairs Select Committee. In these amendments, I have tried not to be just my normal, moderate, reasonable self but also to look at bringing the wording broadly into line with the Government’s thinking as well as in line with the direction that they have indicated they wish to travel. The Government have indicated that scrutiny of appointment by Select Committee is appropriate and could be best practice. In this case, allowing the Home Affairs Select Committee to do pre-appointment scrutiny would offer an opportunity to consider issues such as skills. Later in the debate, we will look at a schedule on designation and the designations that will be given to the director-general by the Home Secretary. It would be helpful for a body such as the Select Committee to look at issues prior to appointment rather than the Home Secretary making that decision post-appointment.
Lord Henley
My Lords, I hope that I can deal relatively briefly with the amendments in the name of the noble Baroness. I can assure her that in moving the amendment she was, as always, her usual moderate self, for which I am very grateful. Perhaps I may deal first with Amendments 9 to 13 and then deal with Amendment 8 in more detail. Since Amendments 9 to 13 deal with discussing these matters with the chairman of an NCA board and so on, and since we have already dealt with an amendment on which I made it clear that we are not minded to have an NCA board—the noble Baroness will no doubt want to come back to that on Report—it seems somewhat artificial to discuss this issue at this stage. In the absence of a board and the absence of our desire to have a board, discussing such matters is possibly, dare I say, a waste of time.
As regards Amendment 8, I repeat again that the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is therefore right that she should be responsible for appointing and, if necessary—although I hope that it will not happen—dismissing the director-general. She will make any appointment on merit following a fair and open competition and will consult, as the Bill makes clear, her counterparts in the devolved Administrations, reflecting the fact that the NCA will be a UK-wide agency. Under Amendment 8 the noble Baroness seeks to ensure that the selection and appointment of the director-general is subject to scrutiny by the relevant Select Committee, which in this case would be the Home Affairs Select Committee.
We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them. I should remind the noble Baroness that the Liaison Committee considered this issue in its July 2011 report on public appointments. It argued for a role for Select Committees where the post exercised one or more of three types of function, including,
“scrutiny of government over matters of propriety, ethics and standards in public life … uphold and defend the rights and interests of citizens; and/or … stand in the shoes of Parliament by exercising direct scrutiny or control over the activities of Ministers”.
None of those criteria apply to the NCA. Perhaps I may add that, for example, the director-general of the Serious Organised Crime Agency was not on the Liaison Committee’s list of appointments to be subject to Select Committee scrutiny.
The Home Affairs Select Committee obviously will have a role in scrutinising the work of the agency in the same way as it has scrutinised the work of SOCA. I believe that it is in that capacity that they can best contribute. But in line with the advice of the Liaison Committee, we do not believe that it is necessary for the Home Affairs Select Committee to have a role in the appointment of the director-general. That is a matter for the Home Secretary. I repeat, and I will probably have to repeat it again, that the Home Secretary is responsible to Parliament and it is right that she should be. Therefore, I hope that the noble Baroness will feel able to withdraw Amendment 8.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for his explanation. When we put forward Amendments 9 to 13 it did not occur to me that he would not accept our amendment for an NCA board with open arms. We thought that it would be a welcome suggestion and that we were being very helpful to him. We may return to those particular issues as I am disappointed with his response.
There seems to be ambiguity in Schedule 5 regarding the skills and abilities required of the director-general and those requirements can change. Given the provisions of Schedule 5, to which we will come later, some oversight by a Select Committee would be helpful to a Home Secretary in making appointments. I take on board what the noble Lord has said at this stage. Perhaps we may return to it when we discuss Schedule 5. I beg leave to withdraw the amendment.
Earl Attlee
Earl Attlee
My Lords, in moving government Amendment 14, I shall speak also to Amendments 18, 19, 52 and 53. I can be brief with these technical amendments. The Bill already makes provision in relation to people who volunteer as police special constables who become NCA officers or NCA specials. These amendments will extend those same arrangements to members of the Police Service of Northern Ireland Reserve. That includes ring-fencing the powers of an NCA officer or NCA special, so that where a person is both an NCA officer or NCA special and a member of the Police Service of Northern Ireland Reserve, any powers conferred on him or her in the former NCA capacity cannot be exercised when the person is acting in the latter—the PSNI Reserve—capacity. I beg to move.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Earl for his explanation. I ask him to clarify a couple of points. Have these amendments had the approval of the Northern Ireland Executive and the Justice Minister, or the appropriate Minister, in Northern Ireland? The only point I can make generally about this Bill on the relationship between the NCA and the PSNI is that there can never be a situation where a police officer or special in Northern Ireland is subject to direction and control from London without the same accountability as officers in Northern Ireland, whether they are part of the National Crime Agency or not. That would also apply to the specials that the noble Earl is talking about. I seek some guidance from him that this has been discussed with the Northern Ireland Executive and that Northern Ireland Ministers are content with this amendment.
Earl Attlee
My Lords, I cannot answer that point for certain, but it is inconceivable that the Government would table such an amendment without the agreement of the Northern Ireland Executive. If I am wrong, of course I will write to the noble Baroness.
Baroness Hamwee
Baroness Hamwee
My Lords, I can be extremely brief on this. Paragraph 13 of Schedule 1 provides for secondment to the NCA. My amendment would allow for secondments both ways. I felt that it was an issue worth raising because I think that secondment can often be extremely helpful to both organisations involved. It may be that the Minister will tell me that it is not necessary to provide for NCA officers to be seconded to a UK police force because that would be covered by some other existing police legislation. If it is covered, that is well and good; if it is not, why not? I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, said, this amendment makes provision for National Crime Agency officers to be seconded to a UK police force, as well as for persons to be seconded to serve as National Crime Agency officers. I would like to raise two points on this paragraph in Schedule 1. It refers to “persons” being seconded to the National Crime Agency to serve as National Crime Agency officers. There is no qualification before the word “persons”. Could it literally be anybody and still be within the terms of the statutory provisions of the Bill? I ask that because paragraph 7(2) of Schedule 1 says:
“A person may not be appointed as Director General unless the Secretary of State is satisfied that the person—
(a) is capable of effectively exercising operational powers; and
(b) is a suitable person to exercise operational powers”.
In other words, if the Secretary of State makes an appointment that stretches credibility, and the Secretary of State could have satisfied himself or herself on the points referred to, presumably the appointment could be challenged under the provisions of the Bill. There is, however, no apparent requirement on the part of the director-general to satisfy himself or herself on any point in relation to “persons” seconded under the Bill as it stands, or indeed to National Crime Agency officers seconded under the terms of the amendment, although one could take the view that if they were existing National Crime Agency officers there ought not to be a problem.
Can the Minister say why there is no requirement in the sub-paragraph that we are discussing for the director-general to have to satisfy himself or herself that any person seconded to the National Crime Agency has to be, for example, appropriately qualified, bearing in mind that the Bill lays down requirements on the Secretary of State over the appointment of the director-general?
Finally, can the Minister say what the definition is of a National Crime Agency officer? Is it anyone employed by or working for the National Crime Agency, or does it refer only to certain kinds of posts or activities being undertaken within the National Crime Agency?
Earl Attlee
My Lords, I am grateful to my noble friend for moving this amendment. I appreciate that she is keen to encourage the exchange of staff both to and from the National Crime Agency. Indeed, interchange in both directions will be key to ensuring that the NCA benefits from the collective experience of policing as well as sharing its knowledge and specialist skills with UK forces.
SOCA officers regularly operate alongside operational colleagues in the police service, and it is vital that NCA officers are able to do the same. It is for this reason that the Bill provides for police officers to be seconded to the NCA and to be designated with the powers of an NCA officer during the period of their secondment. Two-way assistance provisions in Schedule 3 allow for NCA officers to operate under the direction and control of the chief officer of a UK police force and vice versa. However, there may be some merit in providing separately for more formal arrangements whereby NCA officers could be seconded to a UK police force for a sustained period of time. This might allow forces to benefit from the experience of NCA officers on a longer-term attachment.
If my noble friend will agree to withdraw her amendment, I can undertake to consider the matter further in advance of Report. At this stage I cannot commit to bringing forward a government amendment, but I agree that we should explore this issue in more detail. I will, of course, write to her once we have reached a conclusion.
The noble Lord, Lord Rosser, asked me a few technical questions. I suspect that I will have to reply to some of them in writing. He asked whether any person can be seconded to the NCA. The answer is yes. There is no reason why any person could not be seconded. However, there must be clear arrangements for the use of powers. It is worth pointing out that a person can be an NCA officer, but various powers can be designated for that person. Of course, it is important that powers are designated only where the person is properly qualified to exercise those powers.
Baroness Hamwee
My Lords, the less I speak, the more concessions we get, and I am very grateful to the Minister for that. Of course I will seek to withdraw the amendment. When the noble Lord, Lord Rosser, was raising some perfectly valid questions, it seemed to me that the terminology of paragraph 13—that the director-general “may make arrangements”—was likely to cover qualifications and scope. “Make arrangements” is a pretty broad provision.
Earl Attlee
My Lords, on the need for qualifications, the director-general will want to be advised of the suitability of potential secondees. They will be treated as NCA officers and will need to satisfy the usual criteria in order to be designated with powers.
Baroness Hamwee
My Lords, I look forward to talking to the Minister further about secondment and I am grateful for his offer. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Pitkeathley)
Before I call Amendment 16, I must tell your Lordships that if it is agreed to, I cannot call Amendments 17 to 19 for reasons of pre-emption.
Amendment 16
Baroness Smith of Basildon
My Lords, this is a probing amendment to clarify and understand the role of specials in the NCA and what they will do. When I read this clause, I thought I understood the role of specials. I went to my favourite police force—Essex—and looked at its website and at the government factsheet on specials in the NCA to try to tie the two together.
The government factsheet says that volunteers will be,
“similar to the police Special Constabulary”,
with,
“some or all of the policing powers available to”,
the NCA. It describes specials as,
“civic-minded volunteers in … public protection work … who may have particular specialist skills … in the fight against serious, organised or complex crime”.
Yet in all the information that I can find regarding the recruiting of special constables in the police force, not one mentions specialist skills or experience. In fact, it talks about special constables being unpaid volunteers and says that they are,
“a manifest sign of partnership between the public and the police”,
with key responsibilities of, for example, performing,
“police duties at public events eg. airshows, concerts and county shows to complement the regular police provision”,
and in emergencies performing,
“additional police duties to assist regular officers”.
It talks about how they have a range of skills, but mainly it is about having more visible policing on the streets.
I would like an explanation of how this translates into specials with the National Crime Agency. Will the agency seek to recruit only specialists—and, if so, what kind of specialist, and how would it seek to recruit them? Surely the work of the NCA is very different to that of a local police force. It is investigative and is to do with serious organised crime, with very complex issues. Police specials have to do a minimum of four hours a week; it is quite difficult to understand how a special in the NCA could fulfil any meaningful function in that time. The Bill refers to part-time specials, but then paragraph (14)(3) says that they can be “otherwise than … part-time”—and the only definition that I know of that is full time. I am not clear why someone would be regarded as a special if they were seconded or taken on a full-time role.
I am happy to be reassured and am looking for reassurance, but I am slightly uneasy as to how this would look across a range of functions and different commands within the NCA—with border control, for example, or CEOP. Did any of the constituent bodies previously use volunteers or specials in this way? Did CEOP do so, for example? Those who wish to abuse children are sometimes very cunning and intelligent in many cases in trying to get to the place where they can get information. Have volunteers been used in the past—and if an NCA special volunteer worked in one area, would that volunteer be allowed to undertake work across the range of NCA functions and responsibilities? What will they do exactly? Also, given the relationship with the PSNI, has there been a discussion with the Northern Ireland Executive on this part of the NCA’s work there? I am a bit puzzled as to how this would work in practice, and any information that the Minister can give would be greatly appreciated.
Lord Henley
My Lords, the noble Baroness pays tribute to her favourite police force in Essex, so I will say a word or two in relation to specials in Cumbria. I mention them in the other end of the country purely to make a point. Two Saturdays ago, I went with them to Appleby for the horse fair, where a very large number of the travelling community descend on a very small town and there are quite serious public order issues. It is the biggest issue in the Cumbrian police force’s annual list of events; from a very small police force it has to provide something like 200 officers over the course of that week on duty to make sure that things remain under control. As a result, I am very proud to say, they make enormous use of their specials in Cumbria, as I am sure that Essex would do in its events. We should all pay tribute to those who give their efforts unpaid and voluntarily as special constables for the work they do and how effective they can be. The role of the NCA specials will be somewhat different than for ordinary specials—if you can call them ordinary—in Essex or Cumbria or wherever.
It may be useful if I set out in some detail how we see the specials developing and the NCA recruiting its own cadre of NCA specials. Enabling the recruitment of NCA specials will build on the approach that has worked effectively for many years in the Police Service. Like ordinary police specials, NCA specials will be unpaid and part time. But we expect many to be recruited on the basis of particular specialist or technical skills that they can offer, such as an understanding of complex financial products to aid the NCA’s counterfraud efforts or expertise in information technology and the internet to help tackle cybercrime. This is not that different from how reservists are often used in the Armed Forces. The noble Baroness will know that there are many specialities that it would be impractical for the Armed Forces to keep in large numbers, in full employment the whole time. But it is worth while having reservists that they can bring in to act as doctors, as they do in Afghanistan.
Like other NCA officers, NCA specials would be able to be designated with operational powers to play a full role in the agency’s work to tackle serious, organised or complex crime. Again, like other NCA officers, NCA specials would be required to be suitable, capable and adequately trained before being designated with the appropriate powers, which, for NCA specials, will be limited to the powers and privileges of a constable, in England and Wales only. NCA specials will not have operational powers in Scotland or Northern Ireland. So there is a distinction there.
The terms and conditions of NCA specials will be for the director-general to determine, but the Bill sets out some core principles. Although NCA specials are NCA officers, they will not be covered by every provision applying to other NCA officers. It will not be possible for the director-general to delegate his or her functions to an NCA special, and they will not form part of any group of NCA officers provided by way of assistance to another law enforcement body. That means that NCA specials will always operate under the direction and control of the NCA director-general. An NCA special will also not be able to form part of the advisory panel designating the director-general with his or her powers.
As unpaid volunteers, NCA specials will not be provided with a wage, a pension or allowances, and will not be covered by the no-strike provisions, which no doubt we will deal with later, for paid NCA officers. They will not form part of the Civil Service. But they will be reimbursed for expenses, and provided with the necessary subsistence, accommodation and training needed to perform their role. They will be able to receive payment to compensate for loss of salary in the event of injury or death resulting from the performance of their duties.
Finally, we have provided for the powers of an NCA special to be ring-fenced so that when a person is both an NCA special and a special constable or Northern Ireland reservist, any powers conferred on him or her as an NCA special cannot be exercised when acting in the latter roles.
We believe that these measures on NCA specials will represent an attractive opportunity for individuals who want to volunteer and to contribute to protecting the public, as well as bolstering the expertise of the National Crime Agency across its remit. The idea behind it is to bring in expertise that might not otherwise be available. They will form an important part of the agency’s stronger co-operation with the private sector, harnessing skills that exist, and are constantly refreshed, in the private sector.
I hope that that explanation is sufficient for the noble Baroness and that we will in due course see them performing as valuable a role as specials in the rest of the police force, although obviously that will be rather a different role bearing in mind their expertise and the nature of the NCA.
Baroness Smith of Basildon
I am grateful to the noble Lord for that explanation, which is certainly helpful, although I do not think that it necessarily answers all my questions. From what he said, I assume that the unpaid people employed,
“otherwise than on a part-time basis”
could be on secondment. If they are to be full time, as he said, this could involve a partnership with the private sector to bring in expertise that is useful to the NCA.
I am slightly puzzled to note that paragraph 14(4) refers to reimbursing the expenses of specials and providing for their subsistence and accommodation. However, if they have left a job to give some of their expertise and time to the NCA, I would expect their salary to be reimbursed unless there is an arrangement with their employer to continue paying their salary as if they were on secondment. However, paragraph 14(4)(c) provides that they can be compensated for loss of salary only if they die or are injured in the course of their work for the NCA. Therefore, unless the Government have an arrangement with the employer of the person who is on secondment to compensate the relevant person for loss of salary in such circumstances, that person will not receive compensation. I partly understand the provision but perhaps not all the details have yet been worked out because, given the pressures on the private sector at the moment, I cannot see how private sector employers would release staff with skills that would be useful to the NCA unless there is an arrangement in place, including a financial arrangement—perhaps it will be exclusively financial in some cases—to encourage them to release these staff.
I think that we are talking only about specialist staff and not volunteers coming to help in the office or with investigations, if I have understood the noble Lord correctly. However, there is still doubt about how those specialist staff will be attracted to work for the NCA. Therefore, I am partly reassured but still slightly puzzled.
Lord Henley
As I said, they will be unpaid in exactly the same way as existing specials are. We hope that we will find volunteers but the NCA is looking to find people with the relevant expertise. Until I came to this job I was not aware that specials were unpaid. I presumed that they were in exactly the same position as my noble friend Lord Attlee, who has had long and distinguished service in the Territorial Army, where he would have been paid for the days that he served and the weeks and months of service when he was on Operation Telic and other such matters. However, the specials have always been treated differently; they are unpaid. We are leaving them in the same position. Just as the ordinary police—I should not say “ordinary”—can manage to get specials who will do this work unpaid, for which we are very grateful, we believe that the same will be true of the NCA. The NCA will be looking for the specialist expertise that it needs which some people—for example, those who are experts in IT—might feel that they can offer in their spare time. That is much the same process as happens with specials at the moment except that they are not offering that expertise.
Baroness Smith of Basildon
I still have some doubts that this process will work although I hope that I am wrong. It might be helpful if the director-general includes in the annual report something about the role of specials. I hope that the noble Lord will write to me on the following question, which he did not answer: namely, whether any of the organisations such as SOCA or CEOP have had specials working in this way. I understand that specials are unpaid, a bit like shadow Ministers in your Lordships’ House. Incidentally, I am happy for him to write to me on the other point as well.
Lord Henley
I can give the noble Baroness a partial answer. There is no comparable scheme within the Serious Organised Crime Agency. However, I understand that some police forces have made use of specialists as specials; for example, the City of London police do so for some fraud inquiries. I think that the same is true of the Metropolitan Police e-Crime Unit, which makes some use of specials in this way: that is, in bringing in expertise. However, as I said, within the precursor organisations, SOCA certainly has not had the ability to do that. I do not know about CEOP and others but I will find out and write to the noble Baroness.
Baroness Smith of Basildon
I appreciate that. CEOP is the body about which I have the most concerns and queries. However, given the Minister’s explanations and his offer to write to me, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
This amendment concerns the same paragraph of the Bill with regard to specials, whom I am beginning to think of as the National Crime Agency’s equivalent of interns.
Paragraph 14(4)(c) provides that the NCA is not prevented from,
“providing for the payment of sums to, or in respect of, current or former NCA specials to compensate for loss of salary attributable to injury or death resulting from the performance of duties as NCA specials”.
This is a probing amendment, the aim of which is to seek a better understanding of the provision. I assume that we are talking here about salary from their normal job, as it were, given that they are not being paid for being specials.
I was prompted to table the amendment by the thought that any claim that is made following injury or death in the course of a special’s employment is likely to be for far more than his salary. I am not sure that it is possible to exclude a claim for the normal areas of compensation that would arise in the event of injury. It certainly seems to me that it is not proper to do so. Why is this provision required? Is it as narrow as I have understood it to be? If it needs to be stated because the powers of the NCA would not be adequate if it were not, should it not be stated in full in the way that I have indicated? I beg to move.
Lord Thomas of Gresford
I speak in support of this amendment. When I looked at it, I thought that I would not advise anybody to become a special in the National Crime Agency as not only do you not get paid but even if you are injured or killed in the course of your employment as a special, you get nothing other than compensation for salary. Therefore, if you are not a salaried person—for example, if you are self-employed—you get nothing. You get nothing for the injury itself. Presumably, the Government have in mind that you would sue somebody, whether it is themselves or the criminal concerned who caused the injury or death. Do they have in mind that a person should go to the Criminal Injuries Compensation Board to recover compensation? Putting in compensation for salary is so limiting that there must be some purpose behind that wording. I look forward to hearing it.
Earl Attlee
My Lords, I am grateful to my noble friend for moving her amendment. It is, of course, important that the National Crime Agency is able adequately to provide for the rare and very sad occasions when an NCA special is injured or killed in the line of duty. I would like to point out that when I joined the TA I did not know that I was going to be paid. I suddenly started receiving giro cheques when I was at school which were double the recommended term’s pocket money. I spent about 18 years in the TA as a junior NCO. If, sadly, I had been injured, I would have expected that a war pension would be paid on the basis of my rank, which stayed very junior for the first 18 years. Given the different status of NCA specials within the agency, the Bill expressly provides for the NCA to be able to pay sums by way of compensation for loss of salary in such an event. The details of that scheme will need to be drawn up over the coming months.
I suspect my noble friend will find that the inverse speaking time law applies to this amendment as well. She questioned whether the compensation should be limited to loss of salary alone. That is a fair question. An NCA special injured in the line of duty could, I accept, suffer other financial loss. If my noble friend would agree to withdraw her amendment, I should be happy to consider this point in more detail over the summer. At this stage, I cannot commit to bringing forward a government amendment on Report but I can certainly assure her that we will carefully consider the points she has raised and let her know the outcome of that consideration in advance of the next stage.
Baroness Hamwee
My Lords, the Government need have no fear that their schedule for getting through this Bill in Committee is in any danger, because I think that we will speak for briefer and briefer periods. I am grateful to the Minister and look forward to seeing how this goes. I beg leave to withdraw the amendment.
Lord Henley
Lord Alderdice
“(1A) If the order proposed by the Secretary of State would confer an NCA counter-terrorism function which applies to Northern Ireland, the Secretary of State must, before laying the order, consult and have due regard to the views of the First and Deputy First Ministers of Northern Ireland and the Minister for Justice of Northern Ireland.
(1B) Subsection (1A) does not limit Schedule 16.”
Lord Alderdice
My Lords, at Second Reading I raised a number of questions: for example, how it was possible in the context of Northern Ireland to deal with serious organised crime without having some counterterrorist function, given the involvement of so many paramilitary organisations in serious organised crime, and given the failure of SOCA to demonstrate a real advance with the Assets Recovery Agency and other predecessor functions; whether the NCA would be a real advance in dealing with serious and organised crime in Northern Ireland; and whether, given the Border Policing Command function, there had been direct consultations with the Department of Justice and Equality in the Republic of Ireland, with which we have our only land frontier within the United Kingdom. I was not hugely reassured by the responses that I had from my noble friends at that time, but the purpose of this probing amendment is to press on a different issue.
Its purpose is to clarify whether Her Majesty’s Government are content that they have the support of the Northern Ireland Executive for a legislative consent Motion, which will be necessary if the component of the Bill that refers to Northern Ireland is passed. My understanding is that at this stage the Executive have not even considered the question. There have been substantial discussions with the Minister for Justice. As I said at Second Reading, the Secretary of State, the right honourable Owen Paterson MP, has worked extremely hard with the Home Office and with Justice Minister David Ford to seek improvements to the Bill, and I think we have already seen evidence in government amendments that improvements have been made. However, the question is not simply whether Minister Ford is entirely satisfied but whether the First Minister and Deputy First Minister and their parties are satisfied, because, frankly, without their support a legislative consent Motion will not be forthcoming. The reason for my probing amendment is to press on this issue.
Frankly, I doubt whether Committee stage will be completed before the autumn, given the current timetable for the Executive, other things that happen at this time of year in Northern Ireland, the process of the Bill, and recesses and so on. However, we are proceeding with this Bill and its applications to Northern Ireland but we have not yet received clarification that there will be an upcoming legislative consent Motion. Given the sensitivities of the intelligence agencies and their involvement in Northern Ireland in dealing with serious organised crime and, even more particularly, with terrorist organisations in the past, I suspect that reassurances will be sought, perhaps in addition to those that have already been sought by Minister David Ford. Although my amendment is a modest one that refers simply to the consent of the Minister for Justice, the First Minister and Deputy First Minister, I should not be surprised if some reassurance of that kind were required before the Assembly passed a legislative consent Motion. I suspect that my noble friend the Minister will, with the advice of draftsmen, point out that I have indulged in a belt and braces exercise by asking for consultation and having due regard, because consultation is often considered in legislation as meaning “having due regard”. However, I think that more reassurance may be needed in Northern Ireland that the consultation means having due regard to the views of the First Minister and Deputy First Minister of Northern Ireland and the Minister for Justice.
As I said, this is a probing amendment because I want to hear from my noble friend whether the consultations have extended beyond the Minister for Justice and how far he has been assured that the Assembly will come forward with the necessary legislative consent Motion. I beg to move.
Baroness Hamwee
My Lords, I have Amendment 21 in this group and it concerns a more general point. I do not know whether—how did my noble friend Lord Attlee coin it?—the law of inverse speaking time will apply here but I think that it should.
Clause 2(4) provides that:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
My amendment, which may not be perfect in its drafting but is, I think, clear enough in its intention, would add,
“for the purposes of counter-terrorism functions”.
My noble friend Lady Thomas of Winchester is here for the next debate and I had not warned her about this, but I will set her, as chair of the Delegated Powers Committee, on to the Minister if the Government do not acknowledge that there is something in this.
Baroness Smith of Basildon
My Lords, I listened to the noble Lord, Lord Alderdice, with some care. As noble Lords know, I have maintained an interest in Northern Ireland issues, having spent a number of years as a Minister there. I find it very difficult to understand how the Government can proceed with issues that affect Northern Ireland, particularly in this area, if there is not agreement from the First Minister and Deputy First Minister or discussions have not been held with David Ford, the Minister for Justice.
This is a sensitive area and I appreciate that, as the noble Lord, Lord Alderdice, said, these things can take some time to resolve when the Executive in Northern Ireland meets. Decisions by the Executive may not always be speedy, but the passage of the Bill will not be speedy either in that the Committee stage will continue after the Summer Recess. I hope that the Minister will take on board the comments of the noble Lord, Lord Alderdice, which we support. We think that the First Minister and Deputy First Minister should have an opportunity to comment on this and I hope that some agreement can be reached prior to moving forward with these clauses.
Lord Henley
My Lords, there are possibly two issues here. The first is the wider one on the order-making power in Clause 2, to which we will come later when we deal with whether the clause should stand part of the Bill. I trust that that will happen after we have broken for dinner, which may be convenient because I suspect that, in the light of the Constitution Committee’s report published today, it is a debate on which a number of noble Lords will want to speak and one on which we may want to take a reasonable amount of time.
The duty of the Home Secretary to consult Northern Ireland Ministers before laying before Parliament a draft order on counterterrorism functions is important. I hope that I can give some reassurance about the consultation that we are undertaking, who we have discussed these matters with and where we are at the moment. I am sure that my noble friend knows as much as I do about where this is with the Executive at the moment.
I recognise that the amendment seeks clarity on the relationship between the NCA and arrangements in Northern Ireland if a decision is made in the future—I stress if such a decision is made in the future—that the agency should have that counterterrorism function. That has been at the forefront of our consideration of these arrangements, not just for the order-making power but in relation to the agency as a whole, balancing the need for an effective United Kingdom response while respecting the important accountability arrangements for policing in Northern Ireland.
We recognise the particular sensitivities of the arrangements in Northern Ireland which is why in this clause we have already provided specific arrangements that recognise the responsibilities of the chief constable of the Police Service of Northern Ireland, who has operational responsibility for the police response to terrorism in Northern Ireland. It is absolutely vital that we are clear about the relationship between the NCA and the Police Service of Northern Ireland in the event that the agency were to take on the counterterrorism function. That is why Clause 2(2) provides such clarity by stipulating that the agency may carry out counterterrorism activities in Northern Ireland only,
“with the agreement of the Chief Constable of the Police Service of Northern Ireland”.
Furthermore, any draft order will be subject to the super affirmative process, which includes a requirement for the Home Secretary to consult those persons whom she considers will be affected by the draft order. Again, we will discuss that in somewhat greater detail when we get to Clause 2 stand part, which it would be appropriate to leave until after dinner, if everyone is happy with that suggestion.
Seeking clarity on the consultation requirement in relation to Northern Ireland is understandable and the broad nature of the consultation requirement in Schedule 16 could, of course, include the devolved Administrations—that applies to Scotland as much as it does to Northern Ireland—as well as operational partners, government departments and others. I do not think that we have a gap there.
As the House will be aware, under the terms of the Northern Ireland Act 1998, national security is an excepted matter and the National Crime Agency will be a reserved matter. A duty to consult on excepted and reserved matters therefore sits uncomfortably with the devolution settlement as it relates to counterterrorism matters. I recognise that counterterrorism policing in Northern Ireland cannot be divorced from the generality of policing which is, of course, a transferred matter. Indeed, the National Crime Agency itself will undertake a mix of reserved and devolved activity in relation to its serious and organised crime remit. That is why the provisions in Part 1 of the Bill will require the Northern Ireland Assembly to adopt a legislative consent Motion. That is also why there are provisions throughout the Bill which provide for the necessary checks and balances to reflect devolution at certain points. Obviously, there needs to be consultation with the Department of Justice in Northern Ireland.
I understand that the Justice Minister and the Justice Committee of the Assembly—I am sure that my noble friend knows as much as I do—have agreed in principle to take forward a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book.
I hope that my noble friend Lord Alderdice will accept that we are making progress. We will continue to do more and continue to discuss this with my right honourable friend the Secretary of State for Northern Ireland and others. We will carefully reflect on my noble friend’s points between now and Report, which will not happen until some time in late October or thereabouts.
I will quickly say a few words about Amendment 21. It seeks to limit the extent to which an order under Clause 2 may be amended or otherwise modified by the Crime and Courts Act and other enactments. I can give an assurance that Clause 2 is already limited purely to counterterrorism functions. While that is not restated expressly in subsection (4), the effect of that subsection when read with the clause as a whole is to limit the power to make amendments to primary legislation to those that are consequential on conferring counterterrorism functions on the National Crime Agency. Again, I suspect that that is a matter that we will discuss in greater detail when we come to the Clause 2 stand part debate. It was considered by the Delegated Powers and Regulatory Reform Committee. The committee made no recommendation in respect of that power in its report. In fact it went so far as to state that the idea of adding to a statutory body’s functions by subordinate legislation subject to parliamentary procedure is well established. I hope that my noble friend will feel that her Amendment 21 is therefore not necessary.
Going back to the original amendment of my noble friend Lord Alderdice, I hope that what I have said gives him the appropriate reassurance. We fully understand the sensitivities in this area and I hope that he will therefore feel able to withdraw his amendment on this occasion.
Lord Alderdice
My Lords, I am grateful to my noble friend. He said—I think I have the words correctly—that given that some of these powers were excepted matters, it sat uncomfortably to require the Home Secretary to consult a devolved institution. I understand that from a London perspective, but with regard to these very matters, the Good Friday agreement and the Anglo-Irish agreement require a sovereign Government to consult another sovereign Government about precisely these matters. That is something that sat uncomfortably with many people. I rather think on many issues that some people in Whitehall have not quite worked their way through to understanding what this really means. To me, the way things were presented not by my noble friend tonight but in the initial proposal for the Bill suggest a failure to understand the sensitivities and requirements under international treaty now to engage.
However, this is a probing amendment. I will read my noble friend's words carefully, but I think that he has spoken with considerable openness, candour and straightforwardness about the difficulties of finding our way through this issue. I am happy to withdraw the amendment at this point. I may find it necessary to come back to this question, not to create difficulties but for wholly the other reason of trying to assist the Government by pointing out issues that will be a problem down the road if they are not fully addressed. I have tried to give some kind of indication as to where they need to be addressed. I hope that I will not need to come back to this at a later stage and that the Government are successful in the difficult discussions to which my noble friend referred. At this point, I beg leave to withdraw the amendment.
Mental Health: Access to Work Support Service
(11 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Thomas of Winchester
To ask Her Majesty’s Government what steps they will take to promote the Access to Work mental health support service.
Baroness Thomas of Winchester
My Lords, in this Shakespeare celebratory year, I have been reflecting on the mental health of some of his most colourful characters, and in particular the mental state of perhaps his most villainous king—Richard Ill. Here is part of what he says about his own appearance:
“I, that am curtail’d of this fair proportion,
Cheated of feature by dissembling nature,
Deformed, unfinish’d, sent before my time
Into this breathing world, scarce half made up,
And that so lamely and unfashionable
That dogs bark at me as I halt by them”.
Richard clearly could have done with the help of Access to Work mental health services in view of his very singular and ruthless method of accessing his particular vocation.
The House will be glad to know that that brings me to the purpose of this short debate on how the Government can promote this most laudable service, which seeks to help those with mental health conditions to remain in work, including self-employment, take up a job offer or start a work trial. But before leaving Richard Ill entirely, there is one more point which is relevant. The passage is, of course, from Richard’s opening soliloquy. Richard does not voice his self-loathing when others are present so no one knows about his deep distress. In keeping those destructive thoughts to himself, he has much in common with the vast majority of people with mental health problems today.
The Mental Health Foundation points out that Access to Work will really only succeed when the culture within organisations—whether office, factory, hospital, shop, school et cetera—is more open about, and less stigmatising of, people with mental health problems. This is backed up by a survey of 2,000 people across the UK by the Chartered Institute of Personnel and Development. About half of respondents said that they would not feel confident disclosing unmanageable stress or mental health problems to their employer or manager, and less than half were satisfied at the way in which their employer supported employees with mental health problems.
The Access to Work scheme in general is not well enough known, although things have certainly improved in the past few years. It is run by the DWP through Jobcentre Plus, and provides practical advice and support—mainly at present to disabled people and their employers to help them overcome work-related obstacles. Although help for employees with mental health problems has been available for a few years now, it was only in January of this year that the Government awarded seven contracts to run this particular intervention throughout the country to Remploy Employment Services.
We know that mental health problems account for more non-manual workers being absent from work than any other cause, and the figure is even higher when those with a secondary mental health diagnosis are included. This is well covered in the booklet Models of Sickness and Disability, written by Waddell and Aylward, which looks at the whole picture of common health problems experienced by the working-age population. They say that if current trends continue, within a few years mental health problems will be the main cause of all long-term sickness absence, incapacity for work and ill-health retirement, and will cost the UK even more than the estimated £40 billion to £48 billion per annum that it already costs. We are not talking here about severe conditions such as schizophrenia, but mild to moderate conditions such as anxiety-related or depressive disorders and stress. The authors’ conclusions are stark. They say:
“There is therefore an urgent need to improve vocational rehabilitation interventions for mental health problems. Promising approaches include healthcare that incorporates a focus on return to work, workplaces that are accommodating and non-discriminating, and early intervention to support workers to stay in work and so prevent long-term sickness”.
That is exactly what Remploy’s vocational rehabilitation consultants—VRCs—are trained to do. The key question is: who knows about this service and how do they find out about it? It is entirely a self-referral service for employees, although employers can seek advice. The sort of interventions VRCs might suggest are time management, organisation, planning or communication. Perhaps an employee needs help in making an employer aware of an existing mental health condition and would welcome the intervention of a VRC to help with the disclosure conversation. If the employee consents, then the VRC might talk to the employer about how the condition could be managed without the employee having to take time off. We all know that the longer a person is off work, the harder it is for them ever to return. The sort of changes and workplace adjustments that might be suggested include a change to working hours, flexible working, changes to the work environment, the introduction of a workplace mentor or buddy, or even additional training.
So, are there any downsides to the whole programme? The Mental Health Foundation does not think that the scheme is nearly ambitious enough. The three-year contract will cost £4.8 million and is estimated to help up to 1,600 individuals per year. Mind also believes that the service has the potential to be so valuable that funding should increase and the scheme be much more widely promoted. It also takes the view, and is not alone in this, that assessments and agreement of funding should take place before someone secures a job, so that people can go to an interview with the Access to Work offer in place, and for packages of support to be portable.
I have been conducting my own extremely unscientific survey for a few months now and have discovered that some large firms with HR departments know about and appreciate the scheme, but many smaller employers, even if they have vaguely heard about the original Access to Work scheme, do not know about its application to mental health problems. This comment from a retailer in the north of England with 30 staff bears this view out. He says:
“We are aware of the scheme generally, but would never have considered using it to help someone with mental health problems”.
Another comment, from a firm of accountants with seven employees, was that:
“I would have thought we were too small to use the scheme”.
Here is another comment, from a builder with fewer than 10 employees:
“Wouldn’t a person’s doctor recommend it? Surely an employee would have to be diagnosed with a mental health problem to qualify for help”.
The answer, of course, is no. Here is another comment on a similar theme from a fleet hire company:
“If we did have someone diagnosed medically, I would expect the GP to advise the correct solution”.
That shows a touching faith in the medical profession, which is interesting in view of the report out only today from the LSE, fronted by the noble Lord, Lord Layard, which found that three-quarters of those with depression or anxiety conditions get no treatment. Another employer, with about 40 staff, said that he had never heard of Access to Work at all, and usually got his information about employment matters from ACAS. He wondered whether the scheme would have helped with an employee with an alcohol problem. Yes, it could have helped there.
Finally, I accept that there is a much wider debate to be had about the whole question of health at work, and another about services for those with mental health problems. I hope that the Access to Work scheme will become much better known and prove so successful that it will be able to expand with a much bigger budget in the years ahead. I look forward to the rest of the debate and to my noble friend’s reply.
Baroness Bottomley of Nettlestone
My Lords, I congratulate the noble Baroness on securing time to raise such an extraordinarily important and practical topic. During almost 30 years in this and another place, I have never ceased to take up opportunities to identify the critical importance of mental health. How excellent it is that so many in this House take this topic seriously.
In their strategy document entitled No Health without Mental Health, the Government made a strong statement on the importance of mainstreaming mental health. We all know the traditional stigma whereby if you had schizophrenia you would say that you had depression and that if you had depression you would say that you had flu, but you would do anything to avoid declaring openly that you were suffering from any form of mental health difficulty. How warmly I congratulate those many Members of Parliament who, in a recent debate in another place on the Mental Health (Discrimination) Bill, were able to discuss the mental health problems that they had faced. Such a debate would have been quite inconceivable when I first became a Member of Parliament. I congratulate them, as I do the many celebrities who use their celebrity status to talk about their own mental health problems, because the first challenge is to get people to talk about this issue which will face perhaps one in four people in their lifetime.
That brings me to the topic of today. I have a very high regard for our Minister. The merits or otherwise of bringing people out of the real world—I am not sure whether banking is the real world—into government are often discussed. What I have noticed about the Minister for Welfare Reform is that he has a forensic, tenacious approach to topics and brings his form of thinking not only to analysing the problem but to finding practical solutions. Ever since his independent report of 2007, Reducing Dependency, Increasing Opportunity, on the welfare-to-work system, he has seized the issues where a practical step can be made. People facing mental health problems lack confidence, lose their skills and feel isolated and stigmatised. Only today, in a reception given in another place for the campaign to fight hate crime, Mencap spoke of people with learning disabilities who are ridiculed, humiliated and made ever more isolated.
I have campaigned over many years on issues such as discrimination against women in the workplace, racism—we still do not have enough of our top managers from ethnic-minority backgrounds—and disabilities of all sorts. In some of the early meetings that I had with many people with mental health problems, I tried to suggest that one of the dilemmas for mental health is that employers do not understand it, particularly when there is a condition that may fluctuate. If you have a broken leg, a cancer or many other conditions, the employee’s behaviour can be predicted and the employer knows how to respond. The dilemma for mental health so often is that, with the best will in the world, the employer simply does not know how they should respond—“Is this going to get better? Is it going to get worse? Should I be sympathetic? Should I be more bracing and challenging? Should I be encouraging? Should I be empathetic?”. What is this all about for somebody who, because of the nature of society, does not understand how to assist for the best?
Here is a practical scheme. I join the noble Baroness in saying how delighted I am that Remploy is responsible for it, because it, of all organisations, has an excellent track record. Again I say that I so admire the way in which the Government set up an initiative and outsource it to an appropriate provider who can take forward practical schemes.
It is quite amusing, when we look at the figures produced so far for the number of people helped by the Access to Work scheme, to note that 580 people had mental health conditions, but that some 4,500 had difficulties in hearing or seeing and that 3,000 people had back or neck problems. The noble Baroness is of course absolutely right that we should do all that we can to ensure that as many people as possible understand this excellent scheme.
How much I commend the other organisations which are beginning to take a part. The noble Baroness mentioned the Chartered Institute of Personnel and Development, but the CBI—another great leader in the employment field—in its Healthy Returns? Absence and Workplace Health Survey 2011, stated:
“Mental health conditions emerge as the single most widespread cause of long-term absence amongst both manual and non-manual workers. When respondents were asked for the five main causes of long-term absence in their organisations … non-work related stress, anxiety or depression emerged as the most widespread health problem”.
Interestingly, that was the case among very many more of the non-manual employees than the manual employees.
There is no excuse for us now not to give priority to this issue. The biggest single reason for claims for incapacity benefit, now employment and support allowance, is mental and behavioural disorders. There are nearly 1 million recipients in that category, accounting for some 40% of total incapacity benefits.
Like the noble Baroness, I hope that more can be done to promote the scheme, particularly among small employers. It is easy for large businesses with global brands, stakeholder relationships and great concern for corporate social responsibility to set up excellent initiatives, but smaller employers often simply do not have the resource and the ability to deliver in practice.
I look forward to hearing the comments of the noble Baroness, Lady Meacher, on her husband’s excellent report for the mental health policy group at the LSE’s Centre for Economic Performance.
Lord German
My Lords, I, too, congratulate my noble friend on giving us an opportunity to air this topic in such an interesting but also practical and informative debate in your Lordships’ House today. I shall take a practical approach to my questioning of the Minister and to some of the issues which have been raised.
The gateway to the mental health support service, now run by Remploy, is the Access to Work scheme, so it is essential that that gateway is not only open but welcoming. The focus must be on achieving a greater number of people passing through that gateway and a much greater understanding of what that portal means.
Looking at the literature around this whole area, I have found that some people will conflate—though they may treat them separately—learning disability and mental health issues. Will the Minister make it absolutely clear whether this mental health support service is for mental health issues or includes people with certain forms of learning disability?
The ONS figures with which we have been provided show us that only some 500 people were helped by the scheme in the first nine months of the past financial year. We are told, again by ONS, that the number of people who have mental health conditions could be in the region of one in six of our people. You would expect the number of people helped to approach that one-in-six figure, but 580 is just 0.2% of the total, so there has not been a huge impetus in the programme as it stood at the beginning of the year to get more people with mental health conditions into the programme.
The 2009 evaluation of the Access to Work programme states:
“AtW does not appear to be widely marketed and awareness of the programme seems to be fairly low”.
Liz Sayce, in her report entitled Disability Employment Support Fit for the Future, puts it more succinctly, saying:
“Access to Work should be transformed from being the best kept secret in Government to being a recognised passport to successful employment, doubling the number of people helped”.
My final question to the Minister, which I shall put to him again at the end but say it early enough to give him time to think about an answer is: if I were to ask this question in 12 months’ time, what would my noble friend view as being a measure of success? Would it be doubling the number of people who are helped? Would that be sufficient or would my noble friend wish to go beyond that aspiration? To achieve that, we need to raise awareness of the programme.
I need to say just a word or two about the other part of Remploy’s work, which is of course the Remploy factories, which have also been the subject of discussion and debate. It was interesting that only 6% of the employees of the Remploy factories have mental health conditions, compared to a quarter of the people to whom Remploy employment services are giving assistance, so we are looking at a different range of people here. Can my noble friend tell us—assuming that some of the 6% will not need to be in the programme because co-operatives, mutuals or employee buyouts may mean that some of those factories will continue—what special measures have been put in place for them? Are they being transferred automatically and directly to the Access to Work programme, and are they being given additional support beyond that which we now see within the programme?
The second issue relates not to the factories but to the broader workforce, and has already been mentioned: promotion and development of the Access to Work programme with employers and the broader workforce. It is all about perception, is it not? The National Health Service produced a figure that about one-half of people with mental health conditions would feel uncomfortable about discussing them with their employers. That is a slight improvement over the past decade, but the improvement has been very slow.
What can the Access to Work programme do to help employers and the workforce in general to understand mental health conditions and how they should be treated as an illness like any other? How can increased promotion to both employers and the workforce in general take place? In the notion of having the portal—the gate—open and accessible, it is crucial that awareness is raised.
Finally, I ask my noble friend: apart from numbers as a measure of success, is there anything that he would like to see in 12 months time about the manner in which the whole Access to Work mental health support service has been carried out?
Baroness Meacher
My Lords, I, too, applaud my noble friend Lady Thomas for tabling this important debate and for her rather pertinent quote from Shakespeare.
The Department for Work and Pensions indeed has an enormous challenge if it is to condense the vast numbers of claimants of employment support allowance. The objective at one stage was to reduce those numbers by 1 million over 10 years; I do not know whether that remains true today. Perhaps the Minister will correct me if that is not right these days. We know that nearly one half of all claimants have some form of mental health problem. If the department is to achieve any sort of target, it clearly has to make a major impact on the number of people who are not in work because of mental health difficulties.
The noble Baroness, Lady Bottomley, referred to my excellent husband. Perhaps I am allowed to refer to the excellent LSE report issued today, entitled, How Mental Illness Loses out in the NHS. It underlines the challenge for Access to Work as regards mental health. For example, the report points out that among under 65s, nearly as much ill-health is mental illness as all physical illness put together. That is a striking fact. We think of one single physical illness, but mental illness equals pretty much the whole of physical illness, and mental illnesses are, in general, more debilitating than long-term, chronic physical disabilities. I do not think that people fully appreciate that.
As others have mentioned, only one quarter of people with mental illness are in treatment, while pretty much everyone with any kind of serious physical problem is in treatment. It is a completely different landscape. To prepare those sick and untreated benefit claimants requires the DWP to work closely with the providers of improved access to psychological therapy services, because those services are evidence-based. At last, we have evidence-based mental health services; we have never before had effective evaluations. The commission has been given £400 million to roll out increased access to psychological therapy and, by next year, 900,000 people should be receiving those services.
In my view, DWP clients should be at the front of the queue for those services if the Government are to achieve what they hope to. May I be so bold as to challenge the Minister to contact his colleagues in the Department of Health to persuade them of the importance of ensuring that that £400 million is in fact devoted to increase access to psychological therapies and is not diverted to other parts of the system, because the money is not ring-fenced? If the DWP is to succeed, it must have that money spent where it is supposed to be. Otherwise Access to Work as regards mental health will have to pick up the pieces.
Of course, effective treatment is only the beginning for many such clients. The people we deal with need volunteering opportunities, help to improve skills, skilled employment support and all sorts of things which, in the secondary sector, we provide, but there are people not in the secondary sector mental health services who will need some of those services—probably not all of them. Many with mental health problems, unlike physical health problems, will need help once they have gone into a job. That is crucial, and employers and bosses will need some help as well as they do not understand these things. The need for special Access to Work as regards mental health is clear. That certainly came out of the Institute for Employment Studies’ evaluation of the main Access to Work programme. I have to say that its results are dismal. Others have mentioned the figure of 580 people receiving help through the Access to Work programme, compared to 27,000 altogether. One of our colleagues referred to 0.2%, I calculated it as 2%; but anyway it is a very small percentage compared with nearly 50% of all people who suffer from mental health problems.
Access to Work as regards mental health is therefore, as I said, so important, but we have only three offices for the entire country—one office for the whole of south-east London, I read in a document circulated by the Library. The only way to get these services is by a postal system so you have to write. Oh dear. As another colleague mentioned, it is the best kept secret. I talked to some employment specialists in east London who work with these issues all the time. They had never heard of Access to Work mental health. They had just about heard of the main programme, but, as they said, it does not deal with our people; they do not understand our clients at all.
So we have a long way to go. Clearly, the three offices will not touch the problem, if that is still the case today and that was the only briefing that we were given. I put one plea to the Minister. If the DWP really wants to achieve something, it needs one really good mental health specialist in each DWP office and a budget that they can allocate specifically to the personal needs of each individual with mental health problems. Many years ago when I went to Stockholm, Sweden had the lowest unemployment levels of any western European country and they had that budget. That was the key, alongside the skills of the individual.
I know the Minister well understands these issues and I respect his ability to come up with practical solutions, so I hope that he will respond positively to the practical proposal that I have just offered.
Baroness Browning
My Lords, I too would like to thank my noble friend Lady Thomas for bringing this debate to the Chamber tonight. I know that she feels passionately about this subject. She is ever diligent in making sure that we all keep up to speed with what is happening and she knows when to prod the Government if she feels that more needs to be done.
I have been quite encouraged lately by some of the television advertising that has taken place. It has depicted a situation where people have been away from an employment environment because of mental illness and has shown the way in which they and their colleagues deal with the subject. To have that kind of public information being broadcast on the subject of mental health is a breakthrough and I hope that my noble friend will agree that we need to keep up the momentum with that type of information as it goes to the heart of what we are debating tonight. There is still a stigma attached to mental health, not least in the workplace, and it is important that we ensure that employers and those who work with people who are known, or perhaps just suspected, to have had absences due to mental health problems, learn to understand the condition.
I was rather concerned, as others have been, about the statistics that have been provided for this debate. People have mentioned the Access to Work statistics of only 580 people with a mental health condition. I want to draw the Minister’s attention to the very bottom of that column on page 9 of the statistics, where it says “Other: 3,380”. Perhaps I am being imaginative, but I wonder whether among that 3,380 are people who have mental health problems but perhaps also have another diagnosis as well. Often these very complex, dual or sometimes triple-diagnosed conditions make it more difficult for people to obtain help.
My noble friend will not be surprised to hear me mention, along with mental health conditions, the condition of autism. Although autism is not a mental health condition or a learning disability, it is quite common for people with autism, particularly for the more able people on the autistic spectrum, to have mental health problems and to be under the care of the mental health services. In reply, could my noble friend say whether such people with multiple diagnoses are eligible not only for the Access to Work programme, but also for the very important service that Remploy offers? Remploy’s contract has not been in place long enough for us to evaluate properly just how much of a difference it has made. Could my noble friend share with us tonight what discussions were held around the issuing of that contract regarding expected outcomes, not just numerically but in terms of those people who have not only a mental health diagnosis but other diagnoses as well?
I am sure my noble friend is familiar with the work of companies such as BT. I remember going to a presentation by BT at least three to four years ago, when the work that they had done to create a proactive policy of deliberately recruiting people with a mental health diagnosis was outlined to Members of Parliament. They wanted to make it mainstream throughout the company. It is a big company, but one where the HR department and other employees were trained in how to work with and support people with mental health problems in the workplace.
It seemed to me that it was an exemplar that would warrant some encouragement from the top to take it more widely around other companies and, as we have also heard tonight, the public sector. The public sector is a huge employer of people and if you can do it in BT, I should think you can do it in every government department and agency around the country. If you did that you would cover quite a wide percentage of the population.
We are talking about two areas here: one is getting people into work and the other is maintaining people in work who perhaps have had an absence. A range of conditions come under the umbrella of mental health, but the biggest thing that goes when someone has had a mental illness is confidence. That often happens with due cause because such illnesses can recur. Having had one incident, there is a fear that it will happen again, and that causes people to lose confidence as individuals. The service that Remploy can offer to that group is particularly important.
Lord Kirkwood of Kirkhope
My Lords, I am very pleased to follow my noble friend Lady Browning. She is an expert in these things, and I agree with what the noble Baroness, Lady Bottomley, said earlier about the expertise available to us in this House.
I do not consider myself to be a great expert in this subject, but I want to say in passing to my noble friend Lady Thomas that I do not know how many sessions of cognitive behavioural therapy Richard III would have needed, but it would certainly have spoilt the plot. She should stop going to literary book festivals, because this is all above my literary pay grade.
Reading up for this debate, the subject really took me back. Some of these statistics are quite startling. I did not realise that the trends had been so dramatic. I think, therefore, that it is something that we as a House and as legislators need to keep a careful eye on, which is why I am so pleased to take part in the debate this evening, brief as it is.
I agree very strongly with Liz Sayce’s report. Liz Sayce is an excellent person. She did an excellent piece of work for the Government, and we are all in her debt, but the bit of the report that captured my imagination and which picks up on what my noble friend Lady Browning has just said is the bit that says that what we really need is confident, well-informed disabled people with confident well-informed employers and an enabling state. That was the essence of where Liz Sayce started from, and I agree with that. Confidence is a very important element in all this.
I perfectly understand that we have come a very long way since the mid-1990s on the role of work, the support that is necessary and the active labour markets. Provision and support for people with disabilities going into work is much more accommodating than it used to be. Of course, there is still a huge amount to do. I just want to point out in passing that we have to be doubly careful about mental illness because we are putting greater pressure on people to go into work. I say that neutrally. We have to be careful because we get into conditionality and there are some real problems with that, because if we do not acknowledge and deal with mental illness we can suddenly find we are penalising people in ways that are contrary to natural justice. There is a real necessity to get this right.
One other point that I would like to put on the table is that I am still not confident we have enough capacity—broadly defined as occupational health experts, the medical profession, specialist services and employment support services—to deal with the explosion of need that we may face if some of these assessments are right. We must think very carefully about that.
I also agree with the point about co-ordinating commissioning services. The noble Baroness, Lady Meacher, rightly said that £400 million is being spent in the health service. The health service people need to talk to the skills people, to employers and to Jobcentre Plus—to all of them. If we do not do that, people will fall through the gaps.
I was interested in what my noble friend Lady Browning said about the public service. The Minister will put me right about this but I do not think that Access to Work is capable of being deployed in the public service. I may be completely wrong about that. If I am right, however, I do not begin to understand why that is not the case if it is true. People in the Civil Service may, the argument runs, have enough employment support and capacity in their own departments to be able to provide an equivalent service anyway, but the Minister would help me enormously if he could clear that up. I may have misunderstood, but if I have not I join my noble friend Lady Browning in saying that public service absence rates are far higher than they should be. We really need to address them as soon as we can.
I will make two final points in the two minutes left available to me. Everyone has said this, but I hope that the Minister takes this message back to the department: raising awareness is key and has to happen. If we are short of budgets, as we always are on these things—no one finds it easy to find money in these straitened financial times—I do not understand why the professionals in Jobcentre Plus and indeed in Remploy, or any others who are actively engaged in this important area of public policy, do not engage employers and deploy the business case for supporting mental illness and reducing absence rates. I have talked to employers in my time who think that absence rates are nothing to do with them. They said that it is for doctors to sort out, which is so old-fashioned as to be positively dangerous. There is a business case, which again the Sayce report clearly makes, that if we get this properly done, well-being can be increased and the public purse can be better off.
My test for the improvement suggested by my noble friend Lord German was whether more Jobcentre Plus people were engaged with more business people—particularly managers, if I can mention them. If you really capture the imagination of managers in their workplace, not only do you deal with the individual case in front of them but the whole workplace can become transformed and it is much better value for money.
Finally, in the weeks and months as we go on, I would like to continue to explore how regional variations pan out, because I deduce from the fact that there are quite big variations in some of these policy roll-outs that best practice is not being shared. That is another thing that Jobcentre Plus could do. This is a very important subject. I confess that I had not realised just how important it was until I started looking at some of these stats. I am sure that the Minister is on the case and very much look forward, as other noble Lords are, to hearing his response to this important debate.
Lord McKenzie of Luton
My Lords, I add my thanks to the noble Baroness, Lady Thomas, for securing this debate, which is especially timely given the report released today by the Centre for Economic Performance’s mental health policy group, to which I think every noble Lord has referred. It very much sets the context for our debate by pointing out the massive inequality in the NHS in the way in which mental illness, as compared with physical illness, is treated. It also stresses, as the noble Baroness, Lady Meacher, said, the importance of completing the national roll-out of the Improving Access to Psychological Therapies programme.
We know that the costs of poor mental health are huge: costs to individual businesses in absenteeism and presenteeism and costs nationally in lost output and tax revenues and increased benefits, but costs to individuals in the aspirations blunted, the careers interrupted, the income lost and the social interactions diminished. We know that around 10 million people in the UK are affected by a mental health condition at any time. The Centre for Mental Health suggests that only about a quarter receive any treatment and that only about 19% of people with a mental health condition are in employment. In response to Dame Carol Black’s review of the health of Britain’s working-age population, the previous Government acknowledged the need to create a new perspective on health and work, that being in work is in general good for health, and that worklessness leads to poorer health. This is as much the case for mental health as for physical health and is, I believe, an agenda that is shared with the coalition Government.
We know that poor mental health is the main cause of absence from work and that with the right support individuals can be productive and fulfilled employees. This strand of thinking led to the piloting of the placing of employment advisers as a core component of the IAPT programme. Perhaps the Minister could give us an update on this. Before this evening, someone—I cannot recall who—referred to Access to Work as one of the previous Government’s best kept secrets, and we did not have many. The opportunity to shine some light on it, especially the newly commissioned service, is therefore to be welcomed. I think the noble Lord, Lord German, referred to the 2009 DWP evaluation of the programme as it was then organised, before the business model for delivery was changed. As he said, the evaluation concluded that awareness of the programme was patchy among Jobcentre Plus staff and that there was no evidence to suggest that customers found out about the programme in any systematic way, so the question posed by this debate is very relevant.
We know that this is currently a very difficult labour market and that this will continue for some time to come. Addressing the challenge that this presents for those with a mental health condition has been and will continue to be a recurring theme of our deliberations around welfare reform: the descriptors for the WCA; the fit for work, WRAG and support group determinations; the Harrington changes; the application of universal credit; and the Work Programme. In all this, the application of Access to Work for people with mental health conditions is of course to be welcomed. By definition, it applies to those who are in or close to the labour market. To get support, an individual must be in paid employment or have a confirmed start date, and the support must be needed when starting a new employment to reduce absence from work or to stay in work. The support is further available for the self-employed and for those about to start a work trial. As we have heard, the service has been contracted to be delivered by the vocational rehabilitation arm of Remploy.
If I may, I have a few questions for the Minister’s forensic approach. According to the specification, the indicative numbers for the service over the three-year contract period are between 0 and 1,615. Contrast this with the data for Access to Work as a whole, which identify 35,000 people having been helped in 2010-11 alone, of whom over 13,000 were new customers. Contrast it also with plans to make 1,500 people compulsorily redundant from the closure of the first wave of Remploy factories. If the numbers for the mental health service are realistic, that suggests just a scratching of the surface. Where will the funding come from if the take-up is to be higher?
What will the funding be for Access to Work for the current spending review? What additional resources are being made available for the new mental health service? There is seemingly a switch of funding amounting to some £15 million from the Remploy closures, but it is not clear how this is to be allocated. Under the specification, the support to be provided is limited to a maximum period of six months for any individual referral. Clearly we recognise the need to deploy limited resources in a targeted way, but given what we know, particularly about fluctuating conditions, will the Minister explain why this precise cut-off is used? How does this sit alongside the Work Programme? Is there a route for those on the Work Programme to be referred for support under this programme or indeed the existing Access to Work arrangements? If so, who bears the cost?
The contract with Remploy has been running for just six months, so these are therefore early days, but if there are any data on take-up and outcomes so far it would be helpful to know them, including the extent to which, under the right to control, customers have availed themselves of providers other than Remploy.
We welcome and support the new service, which will help some to access and some to retain mainstream employment. It is a small but important step.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, I thank my noble friend Lady Thomas, as has everyone else, for raising this important issue. I am grateful for the important and thoughtful contributions from other noble Lords today. I have listened very closely, and I shall take the opportunity to outline how the Government are supporting disabled people into work, especially those with mental health conditions, and in particular how we are promoting the Access to Work service.
I assure noble Lords that I feel very strongly about this issue. Over the years there has been a huge change in how we think about mental health and work. Evidence shows that being in good work generally leads to improved outcomes for people with both mental and physical conditions. Returning to work often has a therapeutic effect. The workplace offers an important opportunity for people to build resilience and to develop social networks and their own mental capital. The Government aim to improve employment outcomes for people with poor mental health by supporting them to gain and sustain employment and to remain in suitable employment, and to ensure that they are treated equably in the operation of the reformed welfare benefits system.
We know that we need to do more. The employment rate for disabled people is just over 46%, compared with an employment rate for non-disabled people of around 76%. For people with mental health conditions, the employment rate is much worse at around 15%. This is a great loss, not least for employers. For example, people with autism—I accept that people with mental health conditions have something else, but this is related—can have exceptional talents and prove a tremendous asset to business. That is why we asked Liz Sayce to carry out a review of specialist employment support, and why we consulted on her recommendations that were published in June 2011. The responses to the consultation strongly supported the idea that money to support disabled people into employment should follow individuals, not institutions, and that government-funded segregated employment is not the way forward for disabled people.
Liz Sayce’s report recommended that Access to Work be expanded so that it can support more people. She suggested measures such as opening it up to internships and making it easier through, for example, an internet portal. On 7 March we published our response, in which we repeated our commitment to protecting the £320 million budget for specialist employment support but to spending it more effectively so that it could support thousands more disabled people into work. In answer to the question from the noble Lord, Lord McKenzie, there is a £15 million increase in Access to Work to help an additional 8,000 people, along with other efficiencies.
We announced in our response that we would accept all the recommendations on Access to Work and that we would work with disabled people to get these right. In particular, we announced the extra £15 million, and we will also recycle money freed from Remploy into Access to Work and other programmes to enable more disabled people to meet their aspirations and remain in work.
My noble friend Lord German asked what I would consider an additional measure of success in 12 months. It basically comes down to an increase in the number of people with mental health issues using the service. As we have sorted out, slightly under the carpet, 2%, even if that is more than 0.2%, is simply not enough.
Over the next 12 months, we will deliver a rolling campaign to build up a strong profile internally and externally with the aim of increasing the take-up from underrepresented groups. In particular we will build operational awareness of the Mental Health Support service. This service was established to allow Access to Work to meet the longer-term objectives of increasing the numbers of customers with mental health issues who gain assistance from the programme. The contract began in December 2011 and is due to run for three years. It offers additional support for individuals with a mental health condition.
In answer to the question from my noble friend Lord German on how it supports individuals, work-focused mental health support will be tailored to the individual. The other types of support that it offers include assessment of an individual’s needs to identify coping strategies; a personalised support plan detailing the steps needed to enter, remain in or return to work; suggestions for reasonable adjustments in the workplace or in working practices; advice and guidance to enable employers to understand mental ill health fully and how to support employees with mental health conditions; and signposting to other external support services and networks.
My noble friend Lady Browning asked about multiple diagnoses. Yes, that is part of this service as long as mental health is a factor in the need for support.
My noble friend Lord German asked whether the focus is on mental health or people with learning difficulties. It is on mental health.
Alongside this we will look at how we can inject more expertise in mental health into the employment support offered by the department. On the Work Programme, which is our biggest welfare-to-work programme, all providers have pledged to develop their expertise to support people with mental-health conditions to find, enter and remain in employment.
In response to the question from the noble Baroness, Lady Meacher, each Jobcentre Plus district has a mental health and well-being partnership manager. We are also looking carefully at how best to bolster the knowledge and confidence that Jobcentre Plus staff have about mental health, including close working with primary care trust mental health counsellors to enable the fast-tracking of customers for counselling.
The Government are considering their response to the health at work review—an independent review of sickness absence—which makes recommendations to help people who can work stay attached to the labour market through periods of ill health, while ensuring those too sick to work receive support quickly.
The review recognises that mental health in the workplace is poorly understood by employers and the public and that much needs to be done to eliminate the stigma. It makes a number of recommendations, including the establishment of a state-funded independent assessment service. The Government are considering their response to the report and will make an announcement in November. My own ambition for this response is that we take advantage of it as a key vehicle to expand medical capacity, particularly in the area of mental health, where capacity is scarce, and to provide support for people who work for smaller companies. I do not think that they will ever get the kind of support that a company such as BT offers, because BT is an extraordinary exemplar in this area. However, we can pull them a long way from the complete lack of support that happens to too many people in that area.
To close, I shall answer one of the questions asked by the noble Lord, Lord McKenzie of Luton, but I shall have to write about the others as there were too many for me to deal with in such a short time. The IAPT programme is being rolled out across England by March 2015.
I again thank the noble Baroness for raising this issue. It is critical because roughly 40% of people who end up in that state or who are on sickness absence have a mental health issue. To get our strategies right for people, we need to get our mental health strategies right.
Crime and Courts Bill [HL]
(11 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser
My Lords, Clause 2 modifies National Crime Agency functions. It enables the Secretary of State by order to make provision about National Crime Agency counterterrorism functions and, in particular, to make provision conferring, removing or otherwise modifying such functions. It also provides for such changes to be subject to the super-affirmative procedure, which is referred to in Schedule 16. This is an important issue about who should be responsible for counterterrorism activity, which the Metropolitan Police is currently involved in. That organisation has considerable expertise in this field. There would have to be a strong case to move such responsibilities away from the Metropolitan Police or, indeed, to move them away from the National Crime Agency if such responsibilities rested with that body.
The Government clearly recognise that this is a sensitive issue because, having decided to make changes to National Crime Agency counterterrorism functions by order, they have proposed that the super-affirmative procedure should apply. The super-affirmative procedure is a less comprehensive procedure than primary legislation. Changes in the responsibility for counterterrorism and changes to the structure for meeting that threat should not be easily or quickly made without the full and proper consideration that can be given by Parliament through primary legislation. Primary legislation enables a change in the law to be considered in detail and amended through consideration in Committee and on Report. The Government cannot stop that happening under current practice and procedures but, under the super-affirmative procedure, that will not be the case, as even the more limited procedure for considering government proposals in paragraph 4 of Schedule 16 will not apply if the Government are able to use their effective majority in each House to approve their draft order without even going through the procedure in that paragraph.
We are talking about an issue of substance and concern: where responsibility for counterterrorism should lie. It should not be dealt with by the Government by order, super-affirmative or otherwise; it should be open to the normal and full parliamentary procedure for approving, amending and making changes in statutory arrangements—namely, through primary legislation after full debate, with the Government being compelled to accept the Bill if and as amended by Parliament.
This matter has been considered by two committees. I imagine that until today the Minister was probably not unhappy with the situation, since the committee report that we then had in front of us was that of the Delegated Powers and Regulatory Reform Committee. Its view was:
“The idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.
However, this is not just about adding to a statutory body’s function; it is also potentially about taking it away from another body, in this case the Metropolitan Police. Nor is this any function; it is the counterterrorism function, on which the lives and security of the people of this nation depend.
We have now seen the report of the Constitution Committee, which has taken a rather different line. It refers to the fact that Clause 2 concerns the possible future extension of the National Crime Agency’s remit into counterterrorism and points out that currently the counterterrorism command of the Metropolitan Police has the lead national role in counterterrorism policing. The committee goes on to point out that Clause 2 would give the Secretary of State an enabling power,
“to ‘make provision conferring, removing, or otherwise modifying’ NCA counter-terrorism functions”.
If that was applied,
“the Home Office would be in a position to have the option of assigning or transferring relevant functions to the new agency”.
The Constitution Committee has described the enabling power in Clause 2 as,
“an order-making power of the ‘Henry VIII’ type, so empowering the minister to ‘amend or otherwise modify this Act or any other enactment’”.
Those words are found in Clause 2(4), where the Bill states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
It is indeed a wide-ranging power. The Constitution Committee comments on the proposal in respect of the super-affirmative procedure and says:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
The committee says that its approach to Henry VIII clauses,
“is based on the constitutional principle that it is for Parliament to amend or repeal primary legislation. The use of powers allowing amendment or repeal of primary legislation by ministerial order is therefore to be avoided, except in narrowly-defined circumstances. A departure from the constitutional principle should be contemplated only where a full and clear explanation and justification is provided. For assessing a proposal in a bill that new Henry VIII powers be conferred, the Committee has adopted a two-fold test”.
That test is:
“Whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill, and, if so, whether there are adequate procedural safeguards”.
The committee goes on to say:
“We are not persuaded that clause 2 passes the first test. The subject-matter of the proposed order-making powers—the allocation of functions and attendant responsibilities and accountabilities of counter-terrorism policing—is of great importance and public interest. The House will wish to consider whether the constitutionally appropriate vehicle is primary legislation”.
We agree with the views of the Constitution Committee, which was not persuaded that Ministers should have the power to change the statute book for the specific purposes provided for in this Bill in respect of the allocation of functions and attendant responsibilities and of the accountabilities of counterterrorism policy. We are opposed to the question that Clause 2 should stand part of the Bill.
The Minister of State, Home Office (Lord Henley)
My Lords, I hope that I can respond to the noble Lord’s points. I agree with him that this is an important issue, which we need to take very seriously. The noble Lord raised two questions: should counterterrorism move to the agency and, if so, how? They are two distinct questions and we want to consider them in due course. I will consider them in that manner. He also feels that it is a matter on which there should be a full debate in Parliament, relating to the second question: “If so, how?”. I have to say that this is possibly not the best example of such a debate. As the noble Lord made those expressions immediately after dinner, perhaps he felt some embarrassment over what an empty House we have as we discuss what I, like him, consider a very important issue to which I hope we will do justice. We might have to come back to it at a later stage because of its importance.
As the noble Lord knows, the functions of the NCA have been drafted in fairly broad terms to ensure that it is able to tackle all the crimes in which organised crime groups are involved. However, it will also be important for the agency to be able to react quickly to any changes in the threat picture. In particular, careful consideration has been given to how best to future-proof—an expression I do not particularly like, but it is quite useful here—the National Crime Agency for a potential role in counterterrorism. The Government have been clear that there will be no wholesale review of the current counterterrorism policing structures in England and Wales until after the 2012 Olympic and Paralympic Games and the proper establishment of the NCA. It is only then that it will be right to look at how counterterrorism policing is co-ordinated across England and Wales and to decide where it is appropriate for national responsibility to sit. Such a review should sensibly consider whether the National Crime Agency might play a role and, if so, what it might be.
I think that the Home Affairs Select Committee agrees with us. In its September report, New Landscape of Policing, it said:
“We agree with the Government that responsibility for counter-terrorism should remain with the Metropolitan Police until after the Olympics, not least because the National Crime Agency will not be fully functional until the end of December 2013”.
It went on:
“However, we recommend that, after the Olympics, the Home Office consider”—
I am very grateful that it used the word “consider”—
“making counter-terrorism a separate command of the National Crime Agency: there should be full co-operation and interaction between the different commands”.
I give an assurance that any decision that we make will be made after that time and will be considered very carefully. It is not a decision that we need to make at this stage.
I move on to the order-making power, which looks very drastic. It is a Henry VIII clause. I remember being introduced to Henry VIII clauses by my noble kinsman Lord Russell, since deceased, who was the first to spot their increasing use by the previous Government—it was a long time ago—when we were trying to expand the use of these things gradually. They should rightly always be looked at with very great care by all Members of both Houses of Parliament. It is quite right that Parliament should do these things in the proper way.
Clause 2 provides an order-making power so that the Secretary of State can confer, remove or otherwise modify the functions of the NCA in relation to counterterrorism. The order-making power is limited to changing the functions of the NCA. The noble Lord again got very worried about Clause 2(4), which states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
Most simple lawyers, such as me or, possibly, the noble Lord, Lord Beecham, would immediately assume that that meant anything in the world, that we could do what we wanted and that this was a wonderful thing. I am advised by those who are much greater than me and are not just simple lawyers that, if you read the clause in full, subsection (4) does not give that power. Because this has to be taken as a whole, the power is confined to counterterrorism functions and it is only on those that the Secretary of State could act. Having said all that, I accept that it is important to address these issues.
Baroness Butler-Sloss
My Lords, I am sorry to say that I have been rather slow on the uptake and have only just read the report of the Constitution Committee. Since this is Committee stage, I believe that I am permitted to speak even though it is after the Minister.
I support what the noble Lord, Lord Rosser, has proposed. I can see that there may well be great advantages in the National Crime Agency one day taking over the role of the Metropolitan Police. Nevertheless, as I understand it from what the Minister said, there will be a review as to whether this is the appropriate way to do it. I cannot see why the Government could not deal with this in one of two ways—I speak, of course, as a novice in the procedures of this House compared with the Minister and, indeed, with the noble Lord, Lord Rosser. If the Government are fairly clear that this is what they want to do, I cannot see why they cannot put it firmly in Clause 2 that they will transfer to the NCA from the Metropolitan Police, but not until 2013 or 2014 so that it does not come into force until after the Olympics and the Paralympics. Alternatively, if they do not know for certain that this is what they want to do, why on earth can they not just put in a very short Bill to deal with counterterrorism? That should not take an enormous amount of time going through both Houses, if it does not have added to it all the stuff that tends to be added to almost every Bill by any Government. It is possible to pare it down to just this point.
I share with diffidence, but none the less quite firmly, the concerns of the Constitution Committee set out in the first part of its report. Since the noble Lord, Lord Pannick, is not here, I thought it was important that a Cross-Bencher should express a view so that it is not seen just as a party political manoeuvre of any sort.
I think that there are a number of disadvantages to using the super-affirmative procedure. First, although it is perhaps at the highest ranking of subordinate legislation, it is not primary legislation. Perhaps more importantly, if anything is wrong with the drafting—drafting is not always perfect—we cannot tease it out in debate. It stands or falls in its entirety. We can have amendments to primary legislation that we cannot have when using the super-affirmative procedure, even as I would understand it.
I share the concerns of the noble Lord, Lord Rosser, but I particularly share the concerns of the Constitution Committee. I just wonder whether the Government are right to try to proceed this way on what seems to be a clear Henry VIII clause. Perhaps it is almost time that Henry VIII was put to bed.
Baroness Hamwee
My Lords, I like the notion of Henry VIII being put to bed. He used to say that of others, did he not?
It will be clear to the House from my amendment before the dinner break that I am merely an ordinary lawyer. I am probably what my noble friend Lord Roper calls a “cooking solicitor”, the analogy being cooking sherry. I am glad to have understood a little better how these things work.
I did not want to come in before the Minister spoke, because I wanted to hear what he had to say. Like the noble and learned Baroness, I am a little confused about the rationale for postponing this measure when we know that this Bill will still be in Committee in this House—it will not even have reached the other House—after the Olympic and Paralympic Games. Like her, I am not sure why that is the case, unless the Government have some reason to feel that it would undermine the authority of the Metropolitan Police during the Games. I cannot see it, given that somebody who is being dealt with under some terrorism charge is not going to thumb their nose and say, “Yoohoo, you’re not going to have this function for much longer”. That is not life, is it? So I remain confused about that.
Like the noble and learned Baroness, I feel that although the super-affirmative procedure clearly gives more opportunity for debate and response than the simpler secondary legislation procedures, the response to what the Minister proposes is almost a nuclear option, because it would mean the whole order being rejected rather than dealing with small parts of it. On such a serious matter, which I know that the Government have thought about very seriously, I am reluctant to say—but I do say it—that I am not convinced. I expected the Minister to tell the Committee that legislative time was short, and so on. I do not think that he has prayed that in aid, but had he done so I would have said that this was so important an issue that time needs to be made for it.
Lord Henley
My Lords, first, I take up a point that my noble friend Lady Hamwee took up when commenting on the remarks from the noble and learned Baroness, Lady Butler-Sloss, when she said that it was time to put Henry VIII to bed. She might find that that remark appears in The House magazine fairly soon as quotation of the week. But I leave it for her and the editors of that magazine. It was a very good remark and we all knew what she meant.
I want to make it very clear, as I hope that I did in my opening response to the noble Lord, Lord Rosser, that we do not want to address the issue as to whether counterterrorism should go in at this stage. My right honourable friend the Home Secretary has made that clear the whole way through. No decision has been made.
The noble and learned Baroness suggested two alternatives, because she was unhappy with the use of Henry VIII powers. She suggested that we could put the provision into the Bill with a delaying clause and enact later, but that would imply that we have already made up our minds on this. This is the point that I want to get over—that no decision has been made, and we do not want anyone to assume that a decision has been made. She then said that, if we did not want to do that, there was the route of primary legislation. On that point, I am grateful to my noble friend Lady Hamwee, who said that you could always find a slot for primary legislation. I can tell her that in my experience in government and opposition, that is simply not the case. The noble Baroness, Lady Smith, nods at me. We all know the difficulty of finding those slots. Very occasionally, if it is an emergency and you have agreement from all sides of the House, you can move very quickly. But finding legislative slots is very difficult. That is why in the end we thought that going down a route where we used the super-affirmative procedure provided the right level of scrutiny by both Houses. I appreciate that it still means that there is not the ability to amend in other ways, but with the super-affirmative procedure there is considerably greater examination of what is in front of both Houses than with an affirmative model or a negative resolution. That is probably why I rather cynically said at the beginning that we could have offered the negative resolution procedure and then in one House offered the affirmative as a concession and then moved on to the super-affirmative. As it was, we considered this very carefully and decided that the super-affirmative was appropriate. We think that we have probably got it right. I hope that we have and that the House will accept that.
I appreciate that the Constitution Committee disagrees with our view. I received its report this morning as I came in and have seen what it had to say at paragraph 7. However, I pray in aid the fact that another equally great committee of this House, the Delegated Powers and Regulatory Reform Committee, has looked at the measure and felt that it was not inappropriate. Therefore, there can be differences of view. I go back to the phrase that I have used on many occasions in relation to the Home Office—in the end one has to find the right balance. I hope that we have found the right balance on this and that the House will accept that Clause 2 is necessary so that we can consider this matter in due course. As I said, I leave it to the noble Lord, Lord Rosser, to decide how he wishes to proceed.
Baroness Hamwee
I wonder whether we have fallen into the trap of seeing this matter through the lens of parliamentary procedures. However, there is another way of looking at it—namely, looking at how the NCA actually operates. If we are undertaking legislation setting up a new agency, which is not designed from the start to deal with counterterrorism—we must assume that that is the case, and I do not expect the Minister to respond to this as I am putting it rather rhetorically—should we not let it be formed, see how it operates and consider the addition of a very serious function when we know something more about how it is functioning? As I say, we are inevitably looking at this in terms of the way we operate, but we have left out that rather serious consideration.
Lord Rosser
My Lords, I thank all noble Lords who have taken part in this debate and thank the Minister for his response. It is clear that the Government are seriously thinking about making this change although I accept that the Minister has said that no final decision has been made. However, it is clear that the Government are seriously contemplating this change; otherwise, they would not have included this clause in the Bill. If the Government have reached the stage of seriously contemplating the change, although I accept that no final decision has been made, as I said, the odds are probably on the Government making that change; otherwise, they would not have gone so far as to put this clause in the Bill.
However, as I said, this is not just about adding to functions, which is how the Delegated Powers and Regulatory Reform Committee looked at this matter; it is also about taking those functions away from a body that has had them for some time and has expertise in that field. The Government may be able to make out a strong case for doing so, and I would not want my comments to be taken as meaning that I have decided that they cannot make out a strong case for making the change. Perhaps they can; we will have to wait and see. However, the issue concerns what is the appropriate way in which the matter should be dealt with. Should it be dealt with on the basis of a super-affirmative order, which restricts the amount of debate and discussion which takes place, or should it be dealt with on the basis of primary legislation? If no final decision has been made—and I accept what the Minister says—then clearly this matter could be left and be dealt with in further primary legislation once a decision is made to change the present arrangements.
The Minister addressed that point in part. I may have written down incorrectly what he said and, if I have, I apologise. I wrote that he said that primary legislation is a lengthy process and quite difficult. However, in a parliamentary democracy that does not seem to be a very good argument for not making a change of this magnitude through primary legislation. Saying that primary legislation is a lengthy process and quite difficult sounds like a plea that all Governments of whatever colour have probably made over the years. However, as I said, that is not an argument for dealing in this way with an issue of this magnitude and importance.
The Minister referred to Clause 2(4), which states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
I had not assumed that it extended beyond counterterrorism but, even though it relates purely to counterterrorism, the fact that:
“An order under this section may amend or otherwise modify this Act or any other enactment”,
is still a fairly extensive power.
I sincerely hope that the Government, through the Minister, will rethink this issue, although at the moment the Government clearly take the view that the super-affirmative procedure is appropriate. At this stage, I conclude my comments by again referring to the Constitution Committee, which said:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
I hope that the Minister and the Government will reflect on that. In the mean time, I do not intend to pursue my opposition to Clause 2 standing part of the Bill.
Baroness Hamwee
“(3) Upon a determination under this section, and any variation of the determination, the Secretary of State shall lay a report before Parliament setting out the strategic priorities.”
Baroness Hamwee
My Lords, I think that Amendment 23 can be dealt with quite shortly. Clause 3 provides for the Secretary of State’s determination of the NCA’s strategic priorities, and our amendment would provide for her to lay a report before Parliament upon such a determination.
Schedule 2 deals with publication of the framework document and annual report but the strategic priorities seem to be of a sufficient importance that reporting them should not wait for the annual report. I cannot immediately see that they would be part of the framework document, although I may have misread that. Perhaps the Minister can reassure me about publication of the strategic priorities, which I assume will be a matter for public consumption. If this is not done through the sort of arrangement that my amendment proposes, how will it be done? I beg to move.
Baroness Smith of Basildon
My Lords, I have some sympathy with the noble Baroness’s contribution because the strategic priorities seem to be a bit of a puzzle. A key part of what the NCA does must be that the public and everyone else can understand the strategic priorities of this organisation. When you look through the Bill to see what the role of the NCA is, the description is extraordinary broad. It has the function of,
“gathering, storing, processing, analysing, and disseminating information that is relevant to any of the following … activities to combat organised crime or serious crime”,
and,
“activities to combat any other kind of crime”,
or “exploitation proceeds investigations”.
That is an extraordinarily broad area. It covers all kinds of crime, yet the strategic priorities are a very small part.
I looked to see whether there was something about the strategic priorities within the framework document. Like the noble Baroness, Lady Hamwee, I could not see it there. I am not questioning the right of the Secretary of State to determine those priorities: the Secretary of State should have that strategic oversight. But I am not clear what scrutiny there is and what form of publication there will be. Clause 3 states:
“The Secretary of the State may determine strategic priorities”,
including whether he or she wants to have priorities or not, and will consult strategic partners, the director-general and anyone else the Secretary of State thinks appropriate. It is extraordinarily broad.
If we then look at operations, it is clear that the strategic priorities play an enormous role in what the director-general then sets out in the annual plan of what the organisation is to do. I feel that we need more information about this. Will the Minister say something about the relationship between the strategic priorities of the NCA and the framework document? I am not clear how the two work together. If we look at Schedule 2, the framework document seems to describe the,
“ways in which NCA functions are to be exercised”,
and the,
“ways in which the NCA is to be administered”,
but that will depend on what the strategic priorities are. Some guidance and enlightenment from the Minister would be useful.
Lord Henley
My Lords, I hope that I can help and can be relatively brief. The important thing for my noble friend and the noble Baroness, Lady Smith, to do is to look at Clause 3 and Clause 4 together. If they do that, things become somewhat clearer. The amendment would place a duty on the Home Secretary to lay a report before Parliament following her determination of the strategic priorities. Clause 4 of the Bill already requires that the agency’s annual plan be published and include a statement of the strategic priorities determined by the Home Secretary. That is clear in Clause 4(2)(a), which refers to,
“any strategic priorities for the NCA (see section 3)”.
This is a new way of drafting that makes these Bills a lot easier to understand. The draftsmen are moving ahead. So there is a mechanism in the Bill for ensuring that the strategic priorities are published.
Moreover, the Bill also provides for the agency’s annual report to be laid before Parliament and for such reports to include an assessment of the extent to which the annual plan for the year has been carried out. So this again provides a mechanism for informing Parliament of the strategic priorities and how the agency is delivering against them. It would then obviously be a matter for both Houses to determine in a way that I do not understand but I am sure the noble Baroness does. We were discussing the usual channels much earlier in the Chamber. They will decide how these matters will be debated and discussed and how the Home Secretary will be held to account on these matters in both Houses. That is something that will happen in due course.
Given those provisions, I do not think that it is necessary to have a further procedure for laying the strategic priorities before Parliament as provided for in this amendment since Clause 3 interpreted with Clause 4 and read backwards again seems to do exactly what is sought. I hope that my noble friend will feel that the matters that appear in her amendment are covered by what is already there. I hope that I have also dealt with the points raised by the noble Baroness, Lady Smith.
Baroness Hamwee
My Lords, I am grateful to the noble Baroness, who articulated my concerns rather better than I did. I will, of course, think about what the Minister has said but I remain a little anxious. Given that the strategic priorities may be determined and modified to a new set of strategic priorities out of synch with the annual plan and will therefore become known through the mechanism of the annual plan possibly many months in arrears, I wonder whether that is appropriate. It seems to me that they are so important as to justify some form of publication in their own right. However, I will think about what the Minister said. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this amendment would remove the requirement on the director-general to gain the consent of the Secretary of State for the annual plan. The amendment suggests that it should be undertaken by the National Crime Agency board. I know that the Minister will say that there is no board and no response to be made. However, I want to explore the broader issue. I am somewhat puzzled as to why the Secretary of State would sign off and have to give consent to the publication of an operational document. There has been no question or disagreement in the House that the Home Secretary should retain the ultimate strategic oversight and overview of the NCA. At the same time, it is vital to preserve the operational independence of the National Crime Agency and the director-general from government.
I believe that that is the Government’s intention but there are several places in the Bill where that is not as clear as it should be and it becomes a little confused. There are lots of documents and we are unclear about what they contain. There is a framework document that we have yet to see; there are strategic priorities that the Secretary of State will publish; there is the annual plan which the director-general will publish; and then there is the annual report which gives an indication of how far the director-general has been able to achieve the annual plan in that year. There will be some overlap and there needs to be clarity as we proceed.
The director-general has a statutory obligation to ensure that the annual plan meets the strategic priorities as determined by the Home Secretary. However, the annual plan itself seems to give operational effectiveness and direction to the strategic priorities. So the strategic priorities are for the Secretary of State and the annual plan will be for the director-general. Yet, the clause states:
“Before issuing any annual plan, the Director General must obtain … the consent of the Secretary of State … the consent of the Scottish Ministers … the consent of the Department of Justice in Northern Ireland as it relates to activities in Northern Ireland”.
I do not understand it. If we could remove the consent of the Secretary of State or politicians to the annual plan, that would make it clear that there is no political interference in the operational determinations of the director-general. The Bill is unclear as it stands and allows for the opportunity for political interference in operational matters, which I know the Government are keen to avoid.
This is not directly related to the amendment, but the clause states:
“The Director General must arrange for each plan to be published in the manner which the Director General considers appropriate”.
We may wish to give more guidance to the director-general over a matter that he thinks is appropriate. From our previous conversations, the Minister will know of my concern that it might end up on the website and not be seen by anybody at all, so we will have come back to that one. This is a clear case of the Secretary of State having to give consent and thereby being involved in operational decisions. That is not what Ministers have said throughout debates and discussions on the Bill or indeed at Second Reading. I beg to move.
Lord Henley
My Lords, I should first make it clear that there is no board, but we discussed that at an earlier stage and will no doubt do so again in due course. The proposed amendment would remove the requirement for the Home Secretary and the devolved Administrations to consent to the annual plan. I shall briefly address why the plan should be subject to their consent. The noble Baroness said that she wanted to get rid of what I think she referred to as “political interference” in these matters; I would refer to it as the Home Secretary being accountable to Parliament.
The annual plan will be important to ensure that the agency is open and transparent. Together with the annual report, it will provide the key mechanism by which Parliament and the public can hold the agency to account. Foremost, however, it is the place where the director-general will set out how he intends to deliver the NCA’s objectives for the coming year. It will be against those plans that the NCA’s performance is assessed, not least in the annual report at the end of the year.
As such, the annual plan must accurately reflect the strategic priorities which the Home Secretary has set for the NCA, as well as the wider national picture on organised crime and policing. The Home Secretary will ultimately remain accountable to Parliament for the national response to serious and organised crime and, indeed, for the performance of the agency.
It is therefore important that the NCA’s success is measured against the objectives that the Home Secretary has set for it. The requirement for the Home Secretary’s consent provides the most appropriate means of ensuring consistency between the annual plan and her strategic priorities. It also gives reassurance to Parliament and the public that she is content with the director-general’s approach to delivering those priorities.
The devolved Administrations in Scotland and Northern Ireland will also play an important role in shaping the fight against organised crime, and will therefore be consulted by the Home Secretary when she is setting the NCA’s strategic priorities. Given their accountability to their own electorates for the fight against organised crime, they will rightly have a role in agreeing those aspects of the annual plan which affect Scotland and Northern Ireland.
The annual plan will be an important document in measuring the effectiveness of the NCA. It is important that its contents are agreed—not, as the noble Baroness put it, interfered with politically—by those who will ultimately be accountable for that fight against organised crime at the national level. I appreciate that the noble Baroness put down the amendment to probe, but I hope that she will feel happy to withdraw it.
Baroness Smith of Basildon
My Lords, I hope—and thought—that I said that the amendment would remove the potential for political interference or any suggestion of it. I still think that that is a danger in the way that the clause is drafted. I fully accept the Minister’s explanation that there is no intention for there to be operational control or involvement by the Home Secretary; but by having to consent to the annual plan, she would have an oversight role in operational matters.
I do not intend to press the matter at this point. Lots of consultation and reports will occur as a result of the Bill—I wonder how bureaucratic one Bill can get. I will listen to what the Minister says on this and other clauses but, for now, I am happy to beg leave to withdraw the amendment.
Baroness Hamwee
“NCA and freedom of information
In Part V of Schedule 1 to the Freedom of Information Act 2000, at the appropriate place insert—“The National Crime Agency established under the Crime and Courts Act 2012.””
Baroness Hamwee
I have also tabled Amendment 65 in this group, which is essentially consequential on Amendment 26. Amendment 26 would make the NCA subject to the Freedom of Information Act. I know that this is a matter that Ministers have considered very carefully, and they have taken the view that so much information would be exempt under the Act that it is more straightforward not to bring the NCA within the scope of the Act.
I do not intend to say a great deal at this stage, because it is really for the Minister to justify the exclusion of the NCA rather than for me to justify its inclusion. I appreciate that there are important provisions in the Bill requiring the director-general to publish information and material, including the annual report and the Secretary of State’s laying of the annual report before Parliament, but we will not know what the director-general and the Secretary of State have chosen to omit. If one makes a freedom of information request, the very fact of the recipient relying on an exemption sometimes gives some sort of clue, and the override regime provides for the application for a decision by the Information Commissioner and an appeal to the tribunal.
However many reports the director-general and the Secretary of State are required to publish, the public can only react to them. They cannot ask questions. Members of Parliament can ask questions and instigate debate, but in some cases that may be unnecessarily cumbersome and a bit less incisive. The freedom of information regime gives a proactive tool to the citizen. I remain to be convinced—I look forward to being convinced—that it is appropriate that that tool should not be available to the citizen in the case of the National Crime Agency. I beg to move.
Lord Rosser
Our Amendment 66 qualifies the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012, which I believe was the date on which the NPIA functions were transferred to SOCA. Schedule 8 provides that the NCA will be exempt from freedom of information legislation. However, the functions of the NPIA and the UK Border Agency, which the Bill proposes to be covered by the NCA, were not previously exempt from the Freedom of Information Act. As yet, we have had no real explanation or justification for that exemption, especially as an extensive exemption regime already exists under the Freedom of Information Act.
SOCA, of course, is exempt from the operation of the Freedom of Information Act, but, as I said, as the National Crime Agency’s functions extend beyond those undertaken by SOCA, so the extended exemption provided for in the Bill is significant and needs justification. Police, immigration services and customs are not exempt and the National Crime Agency will effectively be covering the work of these agencies, so there must be an argument for not exempting from the operation of the Freedom of Information Act additional functions taken on by the NCA from the NPIA and the UKBA that were not previously exempt from the Act.
Lord Henley
My Lords, I am grateful to my noble friends and to the noble Lord, Lord Rosser, for explaining what was behind their amendments—Amendments 26 and 65 from my noble friends and Amendment 66 form the noble Lord, Lord Rosser. Obviously, each is approaching this in a slightly different manner. The noble Lord’s party exempted SOCA when it was in government and brought it in. It wants to continue that exemption but do not want exemption for the other bodies that are coming in. I will deal with that in due course but—as always, using that word “balance”—it is a situation where we have to get these things right, and we have considered it very carefully.
I also want to make it quite clear to the noble Lord that we have a commitment—and the commitment is clear on the face of the Bill—that, as with SOCA, the NCA’s strategic priorities, annual plan and annual report will be published and will even go beyond that. We provide in Clause 6 that the director-general must,
“make arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA”.
We want to make it clear that we want to be open.
We considered very carefully whether the agency should also be subject to the Freedom of Information Act. As I have just made clear, we are all aware that SOCA is exempt from that and was exempt from it when it was created back in 2005. We concluded that it was right to maintain the status quo. To apply the Freedom of Information Act, as these amendments from my noble friends set out to do, would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. Like SOCA, the NCA will handle large volumes of operationally sensitive information, including intelligence material, which could have a detrimental impact on national security if released. Naturally, the Freedom of Information Act exemptions would apply to much of this material so that it could be protected from release, even if the agency were subject to FOI, but two key risks would remain.
First, the National Crime Agency will depend on the absolute confidence of its partners so that they share all the information they can with the agency. That is what will give the agency its superior natural intelligence picture, which in turn will enable it to pursue and catch the criminals who are the threat. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more reluctant to share that information with the NCA in the first place.
Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activity. There is the danger that they would be likely to use the Freedom of Information Act to acquire information about the NCA’s operational tactics, disrupt its operations and evade detection. While the exemptions might again apply to some of this information, that might not always be the case. This is obviously also a concern for the private sector. Organised criminal gangs could identify and then target vulnerabilities in private sector companies working with the NCA.
In short, the National Crime Agency’s operational effectiveness could, we believe, be materially weakened by application of the Freedom of Information Act, and it would be quite wrong to apply such a handicap to the new agency. I have to make that quite clear—and I suspect that the Opposition, in their attitude to SOCA and the Act that created it back in 2005, are in agreement on a large part of it. As I said, it would be wrong to place such a handicap on it. We are committed to ensuring that there is no loss of public transparency as a result of this decision, but we expect the agency to publish more information than its predecessors because of the open, proactive publication that it aims to adopt.
The noble Lord, Lord Rosser, seeks in his Amendment 66 to preserve the status quo by applying this exemption only to the functions of the agency that are being transferred from SOCA. There will clearly be precursor units joining the National Crime Agency, as I think he made clear, from the National Policing Improvement Agency and the Metropolitan Police, which are currently subject to the Freedom of Information Act. This amendment would provide that, in respect of those functions, FOI continued to apply.
I recognise the motivation behind the noble Lord’s amendment, and I am sure that he is sincere in it—I hope that he is just probing on these matters—but I am afraid that applying the Freedom of Information Act to some parts of the agency but not to others would simply not be a workable option. I do not want to make remarks about curate’s eggs, but this is one of those occasions when the curate’s egg principle really would work. You cannot have an egg that is only partially edible, and I have a sneaking feeling that what the noble Lord seeks on this occasion is the same.
The NCA is being designed as an integrated whole to ensure a free flow of information and intelligence between the central intelligence hub and all parts of the agency. This is essential so that it can effectively map, analyse and task action against serious, organised and complex crime. It would defeat the purpose of this integrated approach and seriously weaken the agency’s effectiveness—
Lord Henley
Can I just complete the sentence before I give way to the noble Lord? It would weaken the agency’s effectiveness if we had to cordon off individual parts of the agency that were subject to the Freedom of Information Act.
Lord Rosser
In the light of what the Minister has said, is it the Government’s case that all other agencies or bodies are either completely covered by or completely exempt from the Freedom of Information Act, and that one does not find in any other organisation or agency that some of the activities are covered by the Act and some are exempt?
Lord Henley
Without notice, I do not think that I can answer that question, but I will certainly look at it. The point that I was trying to make is that the noble Lord is trying to make something rather peculiar here: SOCA is completely exempt and is coming into the NCA, but other bodies that are not exempt are also coming in and they are then all one whole. In effect, he has created something that, when I mentioned the curate’s egg, I probably got exactly right. You cannot do it in a curate’s egg way because the whole egg will be bad once one part of it is bad. That is why we want to do it our way.
Obviously some bodies could be exempt, but on this occasion we think that it is right to create the new agency, as I am sure noble Lords opposite would have done if they were creating a new national crime agency to build on SOCA, just as they did with SOCA itself. It is for those reasons that we would like to preserve the exemption for SOCA for the new agency, and we think that what the noble Lord is suggesting is illogical or worse, and certainly not the right way to go about it. I hope that my noble friend will feel able to withdraw her amendment and that the noble Lord will consider carefully what I have said, particularly in the light of, as my noble friend and others might remember, the debates on the Bill that created SOCA back in 2005.
Baroness Hamwee
My Lords, the Minister started his reply by talking about balance. I have always thought that that was what the Freedom of Information Act exemplified within itself; it does not provide that everything can be subject to a FOI request but provides the exemptions.
I do not believe that the general reporting requirement to which the Minister has referred will cover the same sort of functions as FOI would do. I am not arguing against the exemptions, but there are different ways of dealing with issues of transparency and they produce different results. We have heard that the NCA depends on the confidence of its partners and that organised criminals could exploit FOI. Well, this would not be the first organisation that had to be very careful about what it disclosed. If there is an issue of that sort, maybe after this evening, and possibly in private, the Minister could give us some examples of where police forces, which are subject to FOI, have been caught out in the way that he suggests would be a danger if the NCA were subject to the provisions.
SOCA is exempt because of its particular functions. I am afraid that I remain unconvinced that the NCA—extending, as the noble Lord, Lord Rosser, has said clearly, to other functions—should be exempt in its totality. What I draw from this is the anxiety of the intelligence agencies not to let anyone else be in a position where they might take decisions that the intelligence agencies would not like. I shall withdraw the amendment today, but this issue justifies further examination. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) The framework document shall include—
(a) a protocol regarding the conduct of relationships between the NCA and each of the persons referred to in section 5;(b) a protocol regarding the conduct of relationships between the NCA and each of the persons referred to in Schedule 3; and(c) a protocol regarding the co-ordination of training of members of the NCA and of the forces and agencies referred to in section 5 and the inter-operability of the equipment used by the NCA and those forces and agencies.”
Baroness Hamwee
My Lords, Amendments 31 and 46A are also in this group. I will speak to Amendment 31 and my noble friend Lady Doocey will speak to Amendment 46A.
I need to credit Amendment 27A to my noble friend Lord Thomas of Gresford who, I think at Second Reading, asked the Minister—I am not sure that the idea did not come to him during Second Reading—whether there should be some sort of protocol to govern the relationships between the various agencies—I use that term in the widest sense—that will be affected by the NCA. We had a similar notion that was pursued during the passage of the Police Reform and Social Responsibility Act.
Clause 5 deals with relationships between the NCA and other agencies. The NCA can request or require them to undertake a task or indeed can itself be tasked, and there are those with which it has a duty to co-operate, to exchange information and to give or be given voluntary or directed assistance. All of that is easy to say and probably less easy always to implement. These relationships can be tricky. The different organisations will have different, inevitably competing, priorities. They will all have different governance structures. You cannot require people to co-operate with one another. Having said that, I think that the Police Reform and Social Responsibility Act did require that and I never quite understood how you could insist on co-operation. There will be different views, not just as to what is to be done but also how it is to be done. All of this suggests that there will need to be protocols—I have referred in the amendment to matters which I know my noble friend will take up, in particular training and the interoperability of equipment—and a mechanism to bring the different agencies together.
Amendment 31 deals with consultation in the preparation of a framework document including the protocol. I thought it was appropriate to bring it in at that point as well. I am not wedded to the arrangements being as I have spelled them out but we need to understand how the Government envisage these things being put into practice rather than just being, as I say, fairly easy words on paper. I beg to move.
Baroness Doocey
My Lords, I would like to say a few words about three issues. The first is training. Most of the training that is currently done with police forces tends to be computer-based training. There is a place for computer-based training but mainly to deliver knowledge or awareness. The NCA is going to be a very major body with huge responsibility, and most of the training the officers are going to require will impact on attitudes and behaviour. Therefore, I believe it needs to be done on a one-to-one basis. I urge the Government to consider putting some money into this aspect of the training. I know that one-to-one training is much more expensive than computer-based training but I believe, first, that it is absolutely essential and, secondly, that it will pay dividends because just doing computer-based training will not provide the sort of officers that will be needed for this role.
The second issue is IT. There is no doubt about the IT requirements of the NCA. The intelligence hub that will be at its centre will require major IT and the functioning of the hub will be vital to the functioning of the NCA. There have been many interoperability problems, not just within local police forces but between national police forces. I remember the fiasco when the Metropolitan Police tried to upgrade its mobile data terminal with in-car automatic number plate recognition, which resulted in huge problems. Systems collapsed and had to be rebooted every time the police got into a car. The problem was eventually resolved, but there were basically no systems for several months and there were great costs. I believe that the lessons learnt from that ought to be required reading for anyone who is going to have anything to do with IT for the NCA.
Airwave, the system whereby police radios should speak to each other, is another issue. After many upgrades and after many millions of pounds have been thrown at it—I was very involved in this—there are still problems. There are particular problems with, for example, the Met talking to forces next door. For example, where I live in Hampton, the problems with Met Police radios trying to talk to Surrey Police radios have not yet been resolved. There are going to be teething problems at the very least.
Multiple keying bothers me particularly. Most police systems are antiquated and require the input and reinput of data time and time again. I am not convinced by anything that I have read so far that the Government have looked at this in sufficient detail and given it the priority that it really deserves and needs to resolve these problems. I urge the Government to set up a small specialist group to look specifically at IT interoperability systems before they go much further and certainly before the passage of the Bill through both Houses.
Finally, I turn to Schedule 4 and the regulations about equipment. I would be very interested to understand what this means because it seems to suggest that the Secretary of State is going to determine what equipment the NCA should use. It seems at odds with the idea of setting up a very large organisation under a director-general then to prescribe and insist that it uses particular equipment. That seems to be totally against the spirit of everything else in the Bill. I would welcome some additional information on that.
Baroness Smith of Basildon
My Lords, again, I have some sympathy with these amendments. I have resisted the temptation of putting forward amendments on different issues that should be included in the framework document, but the noble Baronesses, Lady Hamwee and Lady Doocey, are right that not having the framework document and having only very limited information about what will be in it means that, at this stage, the Committee has to seek assurances about things that we consider it important should be in the document. So far I have resisted the temptation, but if we got to Report and did not have the document, that temptation may be given free rein.
The issues that have been raised are extremely important and perhaps these amendments do not go as far as we would have gone. They talk about protocol relationships, which is slightly weaker than some of the things that we would have suggested, in terms of how the relationships would work and what should be in the framework document. However, I say to noble Lords that if they do not want to accept these amendments, they have only themselves to blame. We really need to see this framework document as a matter of urgency. Debating this Bill without it means that we will be having some debates not once but two or three times, because not only will we have to debate the issues now but when we get the document we will want to debate them again. It is in the interests of good governance and good progress of business in this House that we have the framework document as soon as possible.
I am also interested in what the Minister has to say about Amendment 46A. Like the noble Baroness, Lady Doocey, I inferred from that that the fact that the Secretary of State would be making decisions and regulations on the equipment to be used seems a highly operational matter. I am not convinced—though the noble Lord may have information to the contrary that will convince me—that it is an appropriate involvement in operational details of NCA work or why the Secretary of State wants that power. I would be interested to hear what the Minister has to say about that amendment. On the other amendments, we need to ensure that these kinds of issues are going to be determined in the framework document. Any enlightenment that he can give us would be extremely helpful.
Lord Henley
My Lords, I am grateful to both my noble friend and the noble Baroness, Lady Smith, for all that they have said on this group of amendments. My noble friend is right to draw attention to the need for the agency to work closely with its law enforcement partners. Obviously such co-operation will be essential. The conduct of the agency’s relationships with other law enforcement agencies, however, is already underpinned by the clear provisions of Section 5 and Schedule 3 to the Bill. This includes the two-way duty to co-operate in paragraph 1 of Schedule 3. By contrast, the purpose of the framework document—I appreciate that the noble Baroness, Lady Smith, and others are still waiting to see it—is to set out clearly and transparently how the Home Secretary and the director-general will work together and the ways in which the NCA is to be administered.
The document is expected to include the agency’s corporate governance arrangements, the high-level arrangements for financial accounting and reporting, and how the agency will discharge its duty to publish information and promote transparency, including the cost of information that will be published by the NCA. That framework document, when it appears, will set out the relationship between two people: the director-general and the Home Secretary. They are the only people required to have regard to the framework document. This duty will not apply to others and, given the nature and purpose of the document, we do not consider it to be the appropriate place to go into the minutiae of the operational relationship between the NCA and other agencies. I recognise that there may be a need for detailed operational protocols between the agency and its law enforcement partners, but we would expect these to be agreed separately between the director-general and the agency or agencies concerned. I accept the principle behind Amendment 27A, but I respectfully suggest that the framework document is not necessarily the right place for such detailed operational protocols.
I also note the particular reference to including a protocol regarding integrating training and interoperability between the NCA and its partners. Obviously these are matters that the director-general should consider when looking more broadly at how they can deliver the NCA efficiently and effectively and how they can work well with partners. I also agree that the agency will need to ensure that its IT and communications systems are interoperable with others. I should also note that the NCA is taking on many of the assets of its precursor agencies and, as such, is not starting from a clean sheet. Also, it is expected that the director-general will focus the training and equipment requirements of the NCA to ensure that it is fully capable of delivering its priorities, working with others such as the new police professional body. The director-general needs flexibility to make the right operational decisions about these issues to address the ever-changing threat from serious crime. However, I am sure that considering best practice as well as the requirements and assets of partners will inform the decisions that he takes.
The Deputy Chairman of Committees (Lord Geddes)
We have reached Amendment 27A. Is the noble Baroness, Lady Hamwee, withdrawing it?
Baroness Hamwee
My noble friend mistook my mouthing “Do you want to say anything?” to her for my requesting her to withdraw the amendment. Perhaps I may respond to some of the comments that we have heard. I am perfectly prepared to accept that the framework document is not the appropriate vehicle for minutiae. It will be easier to assess that when we have seen a draft. The same goes for the consultation, which is the subject of Amendment 31. The Minister is saying that, under the amendment, the people I have suggested should be consulted will not be subject to the framework document.
I am afraid that this response is a little circular. I am not convinced that there is not scope for a protocol elsewhere. As I have said, the framework document may not be the right place for it. We tabled these amendments partly in order to get points about issues of equipment training and IT on the record, because they are important. Again this may not be the best way to do it, but it is important that the issues are raised.
Like my noble friend and the noble Baroness, Lady Smith, I was puzzled by the reference to equipment and the Secretary of State’s role, which seems to be an involvement which should be, as it were, below her pay grade. A protocol may not be the best way in which to deal with these issues, but however much good will there is around all this, it must be better to have ways of resolving differences rather than simply relying on good will or a duty to co-operate. To me, that begs the question of how that duty will be enforced. However, for the moment, I beg leave to withdraw Amendment 27A.