Grand Committee
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Enterprise and Regulatory Reform Bill
(11 years, 9 months ago)
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The Deputy Chairman of Committees (Lord Skelmersdale)
My Lords, if there is a Division in the Chamber, the Committee will adjourn for 10 minutes.
Clause 51 : Sunset and review provisions
Amendment 26EA
“(2A) Prior to the subordinate legislation coming into force, the review of the effectiveness of the legislation as set out in subsection (2)(a) will receive the views of businesses, business organisations, civic organisations and trade unions, and any such organisations which the person considers appropriate.”
Lord Stevenson of Balmacara
My Lords, I hope it will be thought appropriate that before discussing the first amendment, we should take note of the resignation announced today of the Minister formerly in charge of this Bill, the noble Lord, Lord Marland. Most people would agree that the noble Lord added a certain amount of colour and indeed, candour when he was on the Front Bench, and I thank him for his friendliness and assistance in the short period we worked together on this Bill. We wish him well in his continuing role as trade ambassador.
Although he is not in his place, I should also like to welcome the noble Viscount, Lord Younger, to his new brief. I hope that he will enjoy his role on this Bill and, more generally, in relation to the department. We are, as it happens, near neighbours in Buckinghamshire. We sing tenor together in the parliamentary choir, and we also deal with the DCMS brief, although I am not sure whether he is continuing with that. We have plenty of reasons for wanting to keep in harmony and to support each other over the fraught times that we will undoubtedly face over this Bill and on other matters. If he is continuing with the DCMS brief, we will have only a short pause after today because we will be facing each other at the Dispatch Box on the Leveson report. It will not have escaped notice that the noble Viscount is the third person to occupy the position of Minister at BIS this Session, and I hope that he has a tenure more akin to that of his predecessor but one, the noble Baroness, Lady Wilcox, than the noble Lord, Lord Marland, and that we will get though the remaining stages of this legislation without further changes.
Going through Hansard for the first four Committee days I counted 10 issues on which the noble Lord, the former Minister, suggested that a meeting or further discussion with officials might resolve a point raised in debate. Clearly little was going to happen during the Recess, but time moves on and I hope that the change in leadership of the Bill will not derail discussions which have been promised. Therefore, I wonder whether, in the spirit of working together on the Bill and to ensure that we have a successful resolution of the remaining stages, we can have an early meeting of the respective Bill teams. I should be grateful if the Minister will consider that.
Moving on to the amendment, in December 2010, the Government published a policy document entitled Reducing Regulation Made Simple in which they announced their intention that all new domestic legislation imposing a regulatory burden on businesses or civil society organisations would be required to include a review clause and a sunset clause. This reflected a commitment made in the coalition agreement to,
“impose sunset clauses on regulations and regulators to ensure that the need for each regulation is regularly reviewed”.
In March 2011, they announced the publication of Sunsetting Regulations: Guidance, intended to,
“assist Departments in implementing the Government’s commitment to introduce sunset clauses in new regulations”.
The guidance covers the application of sunsetting and reviewing to new domestic regulations that impose burdens on business or civil society, including legislation implementing international regulatory obligations.
The aim of this policy is to remove regulatory burdens on businesses and civil society by ensuring that regulations are: subject to regular review, to determine whether the policy objectives that led to the introduction of the regulations still apply and whether regulation is still necessary in achieving those objectives; and that regulations which are unnecessary or burdensome are removed. We agree with that approach. However, we think that it should go further.
Amendment 26EA deals with the need for stakeholders to be given a statutory role. For example, the British Retail Consortium stated in its written submission to the Committee on the Bill in another place:
“We welcome the intention of the introduction of sunset clauses and other deregulatory measures in the Bill ... However, we are not optimistic that these will all deliver their potential, given our experience with the Red Tape Challenge and One in, One out. We need to see genuine sunset reviews when the term is up, with a formal role for stakeholders”.—[Official Report, Commons, Enterprise and Regulatory Reform Bill Committee, 12/7/12; col. 562.]
Businesses and other relevant stakeholders should surely be able to shape the Government’s thinking on business policy in general and sunset provisions in particular. It is of little help to businesses and the wider economy if somebody in Whitehall decides, unilaterally and without consultation, to apply sunset provisions when businesses or other groups might consider them to be successful or not in need of termination. We need to ensure that business policy is not dictated to businesses, but is produced in full consultation with them. In particular, we need to ensure that SMEs are heard: after all, in many respects, large organisations have the ear of the Government because they can employ public relations or lobby organisations.
It may well be argued that this amendment is unnecessary, as Ministers responsible for legislation and regulation will get the views of businesses, civic leaders and so on continuously. But it is interesting that paragraph 39 of the sunsetting guidance states:
“In carrying out reviews, departments will need to consider how best to gather information and views from businesses, civil society organisations, and others affected by the regulation”.
It goes on to note that, “a formal consultation may”— I emphasise “may”—
“form a valuable part of this process”.
Surely, this should be a duty on government and not left as a question of,
“how best to gather information and views from businesses, civil society … and others”.
It may well be appropriate for a proportionate approach to be adopted but certain minimum standards should certainly be present. We think it is important for businesses, business organisations, trade unions and other stakeholders to be assured that they will be consulted on sunsetting proposals. Business policymaking together, between the Government and relevant stakeholders, will always make for better legislation, regulation and policy.
I shall also speak briefly to Amendment 26EB. Like the other amendment to which I have just spoken, this is pro-business. In my role as a shadow Minister, I speak with businesses regularly and one common thing that businesses say is that, more than anything else, they require certainty from government. Provide businesses with a stable and certain policy environment in which government decisions are made—in consultation, obviously, with businesses and other stakeholders—adhered to and announced with sufficient time for businesses to plan and adapt, and businesses will have the ingenuity, entrepreneurial skill and flair to do their bit to boost the economy, create growth and provide employment opportunities.
Conversely, if there is an uncertain environment in which businesses are unsure of the general policy direction of the Government—if the Government lack a “compelling vision” for the economy, for instance, as the Secretary of State for Business, Innovation and Skills recently stated—and there are ad hoc, knee-jerk and ill thought-through policies announced without due consultation with businesses or sufficient time for them to adapt, investment and confidence will undoubtedly plummet.
In a nutshell, the purpose of the amendment is to ensure that changes to non-urgent regulations, particularly the sunset provisions outlined in the clause, come into force or end their period in force on one of only two dates in a year. We have chosen 6 April and 1 October because these dates are already familiar to businesses from the regulatory environment.
The amendment is needed because the Government are not complying with their own principles. I gather that the April 2011 statement on new regulation did not give three months’ notice for any changes to regulations and that it even included changes which had occurred three months previously. As I understand it, the September 2011 statement of new regulation was backward-looking, hardly giving business time to prepare and providing no prior warning of regulation changes. There was hardly any progress with the April 2012 statement of new regulation, which again included no changes to regulations three months prior to their coming into effect but included some changes that had occurred four months earlier. This means that businesses do not have adequate time to plan, adapt and make use of what is coming along. Statutory muscle is needed here; that is the purpose behind this amendment.
Lord Gardiner of Kimble
My Lords, first, I thank the noble Lord, Lord Stevenson of Balmacara, for his generous and thoughtful opening remarks about colleagues. If I may take the recently appointed Minister’s opinions before the noble Lord knows of them, I am absolutely certain that, knowing his style, he will be very keen to continue meetings and dialogue with all interested Members of your Lordships’ House. I am sure that that will be uppermost in his mind as all Members of this House seek to improve legislation as we go forward.
Turning to the noble Lord’s amendment, I say from the outset that the Government are fully committed to the principle of engagement with stakeholders as part of a statutory review, as set out in the published sunsetting guidance. Reviews should draw on a range of evidence, including from those who are being regulated, the regulators, and those affected. It is already the case that the Minister responsible for the review is, under administrative law, obliged to consider any submissions made to him or her in relation to the review. In the view of the Government, a formal statutory requirement to receive views as proposed in the amendment would not change that position but would risk introducing additional and unnecessary administrative burdens.
For practical reasons, there needs to be sufficient flexibility for departments in deciding how to carry out the review, what evidence to use, and how to engage with those affected by the regulation. That could be inhibited if an additional statutory requirement were introduced. Effective engagement with stakeholders as part of the review can be delivered without additional statutory prescription, in a way that allows for an approach tailored to the circumstances of each review.
The Government are fully committed to the principle of common commencement dates for new domestic regulation affecting business. Where the regulation comes into effect on a common commencement date, the sunset date will, in accordance with the Government’s policy on sunsetting, also fall on a common commencement date. In the Government’s view, there is no need to prescribe this in legislation, as proposed in the amendment. Indeed, in some cases, there may be good reasons for temporary legislation to cease to have effect on a date other than 6 April or 1 October. That would be prevented by the amendment. The Government do not believe that there is a need to recast the statement of new regulation as a formal statutory requirement. There is also a risk that this would act as an unwelcome constraint, and make the statement less responsive to developing needs and priorities.
The most recent statement was published on 17 December, a full three months in advance of the April 2013 common commencement date. It provides a comprehensive summary of all the regulations affecting business that are to come into force in the first half of 2013. Regulations that will cease to have effect as a result of a sunset provision will be included in future statements.
The Government are a deregulatory government. Over the past two years, the Government have reduced the annual burden of domestic regulation on business by more than £800 million. By June 2013, a further reduction to more than £900 million is expected.
Based on the assurances that I have provided concerning the Government’s policy on the use of sunset and review provisions and related matters, I would be most grateful if the noble Lord would consider withdrawing his amendment.
Lord Stevenson of Balmacara
My Lords, I thank the Minister for his comments. I note in respect of the first amendment that, while professing that the Government are fully committed to engagement, he still adheres to the idea that somehow by keeping flexibility in whether departments are required to carry out consultation the door is left open to maintaining a lesser standard than is required by the aspirations that he has expressed. We will need to keep this under review. Although I take the point that including a more formal structure for when regulatory statements start and stop might make it more difficult, there is still genuine feeling among businesses that it would be better if the Government would think more closely about the impact of how regulations apply and are started and stopped. We may need to come back to that, but, given what the Minister has said, I am happy to withdraw the amendment.
Lord Gardiner of Kimble
“( ) providing for any of the following, as they apply for the purposes of provisions mentioned in paragraph (f), to apply with any modifications consequential on provision made under that paragraph—(i) sections 30 to 37;(ii) sections 62 and 63;(iii) Parts 3 and 4;(iv) Schedule 3.”
Lord Gardiner of Kimble
My Lords, government Amendment 26F addresses a recommendation made by the Delegated Powers and Regulatory Reform Committee in its report published on 15 November last year.
The committee recommended that the scope of the power in new Section 26B(2)(g) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which is inserted by Clause 52, should be narrowed. This power enables the Secretary of State to modify any provision of the 1990 Act as it applies in relation to heritage partnership agreements.
Heritage partnership agreements are voluntary agreements between owners and local planning authorities designed to help them to manage listed buildings more effectively and reduce the need for individual consent applications for minor or repetitive works. In response to the committee’s recommendation, Amendment 26F narrows the scope of this power to focus on specific provisions and parts of the 1990 Act which will need to be applied, as modified, in relation to heritage partnership agreements.
Heritage partnership agreements are voluntary agreements between owners and local planning authorities designed to help them manage listed buildings more effectively and reduce the need for individual consent applications for minor or repetitive works. In response to the committee’s recommendation, Amendment 26F narrows the scope of this power to focus on specific provisions and parts of the 1990 Act which will need to be applied, as modified, in relation to heritage partnership agreements.
While on the subject of heritage partnership agreements, I should like to place on record the Government’s response to concerns expressed at Second Reading by the noble Baroness, Lady Andrews, about the application of Section 16(2) of the 1990 Act. Section 16(2) ensures that, in considering applications for listed building consent, special regard must be given to the desirability of preserving the listed building and its setting. Under new Section 26B(2)(f), the Secretary of State has a power to apply or reproduce any provision of Sections 10 to 26 and 28 of the 1990 Act, including Section 16(2), for the purposes of heritage partnership agreements.
I therefore assure noble Lords that we fully intend to reproduce Section 16(2) in the regulations we will be making in relation to heritage partnership agreements. We also undertake to consult on those regulations before they are made. I very much hope that this will reassure the noble Baroness about the points she made at Second Reading. For those reasons, I hope that noble Lords will be in a position to support Amendment 26F. I beg to move.
Lord Stevenson of Balmacara
My Lords, at this stage, I would have expected—and the Committee might have welcomed—my noble friend Lady Andrews to speak to us. She has unparalleled expertise in this area, being chair of the relevant body, and a great deal of experience and knowledge. As the Minister mentioned, she spoke about these issues at Second Reading. Unfortunately, she is struck down with a lurgy. A couple of hours ago, I conversed with her—rather, I spoke and she grunted at the other end of a phone—and I was able to get some assistance in what we might say to the Committee in response to the amendments put forward today.
In relation to this amendment, my noble friend was very concerned that the recommendation of the Delegated Powers Committee should be enacted and I am happy to confirm that I will be able to say to her that that appears to have happened. The recommendation made was quite firm; namely, it considered new Section 26B(2)(g) to be inappropriate. The proposal now put forward seems to satisfy that requirement.
I am also very grateful to the Minister for reading out a section from a letter exchange with my noble friend Lady Andrews which gives the context for how those regulations as regards the heritage partnerships will be applied. I will be able to report to her that they have been indicated as she requested.
Lord Gardiner of Kimble
Lord Gardiner of Kimble
My Lords, first, I am sorry to hear that the noble Baroness, Lady Andrews, is indisposed. I very much hope that she will make a speedy recovery because there will be continuing amendments to which I would like to speak and which would involve the noble Baroness. Government Amendments 26G and 26H improve the operation of certificates of lawfulness of proposed works to listed buildings. This again was a matter raised by the noble Baroness, Lady Andrews, at Second Reading. These amendments reflect the Government’s positive response. Indeed, my noble friend Lord Marland and the noble Baroness, Lady Andrews, have been in correspondence about these matters.
The certificates of lawfulness will provide a simple, light-touch mechanism for local planning authorities to confirm that listed building consent is not required in cases where proposed works would have no impact on the building’s special interest. As currently drafted, certificates could potentially last for ever but, at the same time, they do not offer the owner of the listed building absolute certainty that the works are lawful. This is not the result that the Government intended, which is why we have tabled Amendments 26G and 26H. These amendments provide that certificates last for a period of 10 years, during which time the lawfulness of any works for which a certificate is in force will be conclusively presumed. A new certificate may be applied for at the end of the 10-year period if required and, if the application is for a new certificate on effectively the same terms as an existing certificate, we envisage there being a light-touch reapplication process.
Amendments 26G and 26H will ensure both certainty for owners of listed buildings and flexibility to respond to changes over time in understanding about heritage significance. Amendments 26J, 26K and 26L make minor and technical amendments to Clause 53. They correct an anomaly in the current drafting by providing that the Secretary of State’s powers to prescribe the procedure for appeals in connection with certificates of lawfulness are exercisable by regulations rather than order. I beg to move.
Lord Stevenson of Balmacara
My Lords, I shall be brief about this. My notes from the noble Baroness, Lady Andrews, confirm that the two issues raised here are in accordance with those requested by English Heritage. The change from an indefinite period to 10 years, and the change to ensure that the certificates are lawful, will help considerably in trying to manage the properties with which the body is concerned. The changes allow a long enough period to be useful to the owner but will obviously reflect the fact that our views of heritage and our attitudes to it change over time and that, therefore, after about a 10-year period, it is appropriate for there to be a new application.
The noble Baroness also wanted a number of points to be made in relation to an exchange of letters that I mentioned in the earlier discussion, and I am happy that they have been mentioned here.
Lord Gardiner of Kimble
“( ) Works for which a certificate is issued under this section are to be conclusively presumed to be lawful, provided that—
(a) they are carried out within 10 years beginning with the date of issue of the certificate, and(b) the certificate is not revoked under section 26I.”
Lord Gardiner of Kimble
“ In section 108 (compensation for refusal or conditional grant of planning permission formerly granted by order) after subsection (3E) insert—
“(3F) This section does not apply to the extent that the development referred to in subsection (1)(b) would, while permitted by a development order, have required conservation area consent under the Planning (Listed Buildings and Conservation Areas) Act 1990.””
Lord Gardiner of Kimble
My Lords, government Amendments 26M and 26N make minor and technical changes to Schedule 17 to the Bill. Amendment 26M relates to the policy given effect in the Bill to abolish conservation area consent. At the moment, the demolition of a building, subject to certain conditions, is a permitted development right under the Town and Country Planning (General Permitted Development) Order 1995. In order to implement the policy to abolish conservation area consent and instead require planning permission, we will have to amend this permitted development right so that the demolition of certain unlisted buildings in a conservation area will require planning permission.
However, the withdrawal of a permitted development right can in certain circumstances trigger a right to compensation under Section 108 of the Town and Country Planning Act 1990. The Government’s view is that compensation for withdrawal of the permitted development right should not apply in these circumstances, as owners would have previously needed to obtain conservation area consent and so, in that sense, did not benefit from the permitted development right.
To prevent compensation being claimed in these circumstances, Amendment 26M amends the Town and Country Planning Act 1990 to exclude development that would have required conservation area consent from the compensation provisions. I hope that noble Lords will support that amendment.
Amendment 26N ensures that all the heritage provisions in the Bill will be capable of applying to the Isles of Scilly as if they were a separate county. While the Bill will apply to the Isles of Scilly as part of England, we also need to ensure that all the heritage provisions will be able to apply to the isles as if they were a separate county, as is the case with existing planning legislation. I beg to move.
Lord Gardiner of Kimble
“ In section 92(2)(b) (application to Isles of Scilly), after “Schedules 1, 2” insert “, 2A”.”
Lord Gardiner of Kimble
“ In section 93(5) (orders subject to affirmative procedure), after “section” insert “26C,”.”
Lord Gardiner of Kimble
My Lords, government Amendment 26P changes the procedure for making a national class consent order. Class consent orders will grant listed building consent for certain categories of work or buildings where the extent of the building’s special interest is well understood, without any need to make an application. The Secretary of State will have the power to make national class consent orders that will apply across England. The Delegated Powers and Regulatory Reform Committee recommended that this power should be subject to the affirmative rather than the negative procedure. Amendment 26P gives effect to this recommendation. It will apply the affirmative resolution procedure and ensure that national class consent orders will be subject to full parliamentary scrutiny.
Perhaps I may respond to the concerns raised at Second Reading by the noble Baroness, Lady Andrews, about the scope of national class consent orders. It is our expectation that national class consent orders will be used to describe specific works carried out by specific organisations in specific locations—for example, works to listed structures by the Canal & River Trust for the functioning of a canal. The Government do not envisage that a more generic national class consent will apply to broad categories of work across the board. We recognise the difficulties of identifying wider categories of work that could safely be carried out across the wide variety of listed buildings without causing some unintended damaging consequence. The provisions already contain the safeguard that requires the Secretary of State to consult English Heritage before making a national class consent order. Amendment 26P will provide additional assurance about the use of such orders.
Perhaps I may also address concerns expressed by the noble Baroness, Lady Andrews, that the minimum annual review period for local class consent orders might prove so onerous that it would inhibit their use. The requirements in the Bill are broadly equivalent to those in force for local development orders, and there is no evidence to suggest that an annual review will be burdensome. The form of review will be prescribed by regulations. We intend to make the review a light-touch but important way of ensuring transparency and accountability. We will consult on the regulations before they are made. I hope that the noble Baroness, in her absence, and noble Lords will be reassured. I beg to move.
Lord Stevenson of Balmacara
My Lords, we are pleased with the amendment and grateful to the Minister for his contextual words. The recommendation brings into play a recommendation from the Delegated Powers Committee. It is important because these national class consent orders were very broad. Although the committee recognised that there was a case for using secondary legislation for this, it was concerned that it needed a slightly higher level of consent. The amendment also fits in with the feelings of English Heritage on the matter, so we are in a good place and it was helpful to have the wider context laid out.
In his speech the Minister mentioned local class consent orders, which are not touched on in the amendment. Here we will register our disappointment that the proposal is not to revise or review the regularity of reporting, which will remain annual.
Lord Gardiner of Kimble
Of course I will write to the noble Lord along the lines that he suggests.
Baroness Campbell of Surbiton
My Lords, I must declare an interest, having been a founding commissioner of the Equality and Human Rights Commission and its predecessor, the Disability Rights Commission.
The Government say that the objective of their commission reforms is to focus on the areas where it can add value because of its unique role and functions. I fear that the Government have yet to articulate what they consider this unique role and functions are and the basis for concluding that. Further, I fear that they have failed to explain why a commission with fewer powers and tools at its disposal will be more effective than one with the role and powers bestowed upon it by Parliament only six years ago. Today we are being asked to debate the commission’s role without clarity as to what the Government believe its functions to be. I hope that the Minister can explain this further to allay our concerns.
The Government have described Section 3 as a mission statement and have argued that its breadth has hindered rather than helped the organisation to define its purpose. We must assume from this that the aim of repealing Section 3 is to leave the commission with a narrower and more manageable role. A narrower role may be rightly achieved in two ways—by reducing the scope and issues with which the commission might engage or by reducing the scope of opportunities for the commission to engage with those issues. I see no evidence that the repeal of Section 3 would help to achieve the former.
Section 3 is to all intents and purposes an extrapolation of the duties in Sections 8, 9 and 10 of the Act, relating to equality, human rights and good relations. It plays an important role in binding and focusing the commission’s various duties, but it does not enlarge the canvas on which the commission is to operate. If the Government believe otherwise, I would be very interested to know from the Minister with which equality and human rights issues the commission would no longer be expected to engage.
From Section 3 it is also clear that Parliament did not foresee the task of achieving this vision as one for the commission alone. It envisaged the commission using its powers to provide leadership and to motivate others. The capacity of the commission to identify and agree priorities rests on internal leadership and external expectations, not on the law. So it seems more likely that alongside the wider legislative and non-legislative reforms, the repeal of Section 3 will concern the question of what the commission is empowered to do about equality and human rights. I wholly accept that the commission should improve its strategic focus, but it does not follow that it will be more effective by having fewer tools at its disposal. As Abraham Maslow said, if the only tool you have is a hammer you will see every problem as a nail.
The proposals before us are not simply legislative tidying. Rather, they sit alongside a range of other reforms that would fundamentally change what the commission is able to do. Already, the Government have taken away the commission’s helpline and ceased funding it to provide grants and to arrange conciliation. They have said they do not believe that the commission should provide guidance on the law to dutyholders because its promotional role prevents it doing so impartially.
The Bill proposes to change the frequency of the commission’s reporting on the state of equality and human rights from every three years to every five. It proposes to remove its good-relations duty—the only power that enables it to engage directly in relations between citizens. Separately, the Government have launched a review of the public sector equality duty. The views of the Prime Minister and the Justice Secretary on the Human Rights Act are well known.
We did not wish to create an enforcement factory in 2006, and I would guess that we do not wish to do so now, especially in a Bill to reduce the regulatory burdens on business. However, there is a risk that this is precisely what this package of reforms, including the repeal of Section 3, will result in.
In 2003, the Joint Committee on Human Rights, in its report on the case for a human rights commission, recommended:
“The commission we propose should not be seen as another inspectorate, advisory body, regulatory authority or enforcement agency. Nor should it be a body with an adversarial or litigious approach to its mission”.
Section 3 embodies this idea, placing the emphasis on promotion by requiring the commission to discharge its functions in a way that encourages and supports change—something of which I am very much in favour.
This approach also marked the convergence of thinking from the social model of disability, the Macpherson inquiry into the investigation of the murder of Stephen Lawrence—today’s headlines in the Daily Mail are a potent reminder of its continuing relevance—and the concept behind the Human Rights Act: namely, that if as a society we wish to hold these values, we have to take proactive steps to make them a reality. It confirms the function of the organisation as an agent of social change, empowered to work with others and not tasked simply with answering complaints from those who feel that their rights have been violated—normally the most articulate. As Conservative MP James Brokenshire said in a debate in the other place, one function of the commission is to try to stop litigation and to encourage a culture in which there is not always a need for a litigious approach. I recall that this was one of the DRC’s most effective ways of working. It resulted in a seismic shift away from discriminatory practice towards disabled people, making it less necessary to go down the expensive litigious route.
The EHRC’s more celebrated initiatives derive from its ability to act beyond legal enforcement and to make recommendations on how society should take forward equality and human rights—for example, in its inquiries into the human rights of elderly people receiving care in their own homes, into disability healthcare and into the exploitation of workers in the meat-processing sector. In each case, the commission has identified the problem, investigated it thoroughly, convened the relevant parties to explore what needs to be done and made recommendations for policy and legislative reform.
Uncovering scandals in society that we would not otherwise know about and need to put right is the hallmark of a modern commission. Do the Government view such activity as campaigning? Is it not right that the commission should support progressive legal cases such as that of Sharon Coleman, which secured protection from discrimination for 6 million carers in the UK? Is the Minister suggesting that the commission should not have a role as an adviser to Parliament on equality and human rights implications of public policy and legislation? Should the commission not draw our attention to rights, risks, violations, discrimination or inequality, or propose to us how these might be remedied?
How do we imagine the commission will perform its role as the independent mechanism required by the United Nations Convention on the Rights of Persons with Disabilities, promoting, protecting and monitoring implementation of the convention, if it cannot recommend policy and legislative reform? I look forward to the Minister’s response to all these questions.
The fundamental distinction between a campaigning organisation and the proper role of a body such as the commission is that the latter must act consistently within its statutory authority as mandated by Parliament and in the public interest. Section 3 of the Equality Act exemplifies the values which made me a keen supporter of the commission, and I felt that it was the right time for the DRC to be part of a wider, united enterprise. Those values lie at the heart of what others, too, respect it for.
In their summary of responses to the consultation on reform of the commission, the Government noted:
“The majority of respondents were opposed to repeal and were concerned about losing the guiding principles and values set out in the general duty, which had been debated in Parliament during the passage of the Equality Act 2006”.
In a nutshell, Section 3 says to us, “We are all in this together”. By bringing together equality and human rights, it departed from the idea of people being defined only by their differences—their gender, disability, age or race, for example—to that of people being defined by their common humanity. As the Joint Committee on Human Rights noted, Section 3 echoes the Universal Declaration of Human Rights, which states clearly that,
“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
The inclusion of dignity in the commission’s general duty provides the glue to bind together anti-discrimination and human rights. This is not about equality as sameness and uniformity, but the pursuit of dignity and substantive freedom for each and every individual based on recognising and accommodating difference. The values set out in Section 3 are not new; they are not even contested. As the noble Lord, Lord Boswell, a great campaigner for disability rights, said of Section 3 during the passage of the Equality Act:
“From a one-nation viewpoint, I have no difficulty at all with the general duty in clause 3—that is what most of us are in politics for”.—[Official Report, Commons, 21/11/05; col. 1331.]
They are enduring but adaptable values which help us navigate a path through our modern, open and plural society while staying true to our traditions of family, community, liberty, tolerance and fair play. In these most difficult times, it is more important than ever that we do not cast such values to the wind. My amendment is very simple: it would put Section 3 of the Equality Act back where it belongs. I beg to move.
Baroness Turner of Camden
My Lords, I recently put my name down to this amendment at the instance of the TUC. It is one of the many bodies that have written to us, including the Law Society and other organisations, which are very concerned at the requirement in this Bill to remove the general Section 3 duty from the Equality and Human Rights Commission.
The general duty is very important. It is essential because it requires the EHRC to encourage and support a society based on freedom from prejudice and discrimination; individual human rights;
“respect for the dignity and worth for each individual”;
and on having an,
“equal opportunity to participate in society”,
and a,
“mutual respect between groups based on understanding and valuing of diversity and on shared respect for … human rights”.
A recent report from the European Commission on national equality bodies said:
“In order to … realise their potential in promoting equal treatment for all, equality bodies should develop a vision of their role within the administrative culture and society”.
This is exactly what Section 3 does. Furthermore, it provides a guiding vision for the EHRC that unifies equality and human rights.
Section 3 of what became the Equality Act 2006 was extensively debated within Parliament during its passage and its final drafting, from which this Bill takes a piece away, was agreed by all the parties participating. There is very general agreement around what we are proposing. I hope therefore that the Government will think very seriously about what was set before us so eloquently, if I may say, by my noble friend Lady Campbell of Surbiton. It really is terribly important for all kinds of groups to ensure that the general duty in the Equality Act is maintained in this Bill. To leave this provision in the Bill would threaten a lot of the work that the EHRC has done. That would be an awful shame. Certainly, a lot of bodies have written to us to say, “Please, please don’t let them get away with this. We don’t want this to happen”. I therefore hope that the Minister will listen very seriously to what has been said and accept what we are proposing.
Lord Low of Dalston
My Lords, I put my name to this amendment because I do not support the removal of the commission’s general duty. The Government say that it is too broad, then go on to say that there is nothing in Section 3 that is not sufficiently covered elsewhere in the Act—in other words, that it adds nothing. Yet if it adds nothing, it cannot be too broad. You cannot have it both ways. Again, the Government say that Section 3 is aspirational and that there is no way that the commission can accomplish all that is encompassed in it but, again, that is at odds with the argument that the same ground is covered elsewhere in the Act.
No institution can achieve all that it was set up to do all at once; there would otherwise be no reason for it to go on existing. Yet that is no reason not to have a statement of aims or objectives to indicate the direction of travel or guide the commissioners in framing their actions. On balance, the commission concludes that removing Section 3 is unlikely to have much practical effect. The Government have made great play with that, but the commission agrees that a unifying statement of principle is important and that it is beneficial to have a vision or mission statement, such as is provided by Section 3, for symbolic if not for practical reasons. However, if its inclusion has symbolic value, is it not the case that its removal will have symbolic significance also?
This, I think, is the nub of it. The repeal of Section 3 is just part of the Government’s broader attack on the EHRC. The commission’s statutory remit was the product of cross-party agreement when the Equality Act 2006 was passed. Indeed, the original wording was amended in the House of Lords to take account of Conservative concerns that it was too broad.
What has changed in the past six years to make it no longer appropriate for the commission to have the general duty set out in Section 3? I will tell you what has changed. The Government have changed. The commission is charged with championing the cause of those who are the victims of prejudice and discrimination on the part of those in positions of power and privilege and with promoting a more egalitarian society. This does not always go down too well with those in positions of power and privilege. We all know that anything with the words “human rights” in it is like a red rag to a bull to the right-wing of the Conservative Party. The Government have decided to throw the dismantling of the EHRC as a bone to their right-wing. Labour in another place has described this as abolition of the EHRC by stealth, but I am not sure what is so stealthy about it. Already, in relation to its grant-making function, the commission’s helpline and conciliation functions—the very things which ensure that it remains anchored in the realities of life with which it needs to engage—have been removed. The Bill proposes also to remove its good relations duty—something else which helps it to remain grounded. By 2014-15, it will have had its budget reduced by 62%, a far bigger cut than is being imposed anywhere else in the public sector, and will have lost 72% of its staff.
Separately, the review of the public sector equality duty, one of the most powerful engines for change and progress on the equalities front, has been brought forward. Taken together with those changes, the removal of the general duty can be seen for what it is: part of a sustained attack on the equality agenda in our society and the institutions which exist to promote it. Of course, the Minister will tell us that the Government are fully committed to equality and that the Bill is just about housekeeping and legislative tidying up, but I am reminded of an occasion when I had been rather critical of someone’s organisation. When he challenged me about it, I replied—rather lamely, I fear—that I meant no ill will, to which he said, “But if you tell me something is chocolate pie but it tastes to me like cardboard, what am I supposed to think?”.
The heads of justice, the Fawcett Society, Mind, the Refugee Council, the Equality Trust and others have expressed opposition to those changes in an open letter, stating that they will leave the EHRC a weaker body. In their consultation paper of March 2011, the Government state that Section 3 has no specific legal function, but that is not correct. The eminent lawyer, Professor Sir Bob Hepple QC, who was co-author of the Cambridge independent review of the enforcement of UK anti-discrimination legislation, which is the foundation stone of much of the equality legislation of the past decade, has issued to a memorandum in which he set up three reasons for thinking that.
First, in the absence of a purpose clause in the Equality Act 2010, the courts and others enforcing the Act were able to use Section 3 as a guide to the interpretation of the single Equality Act, enabling them to fill gaps and resolve ambiguities. The absence of a purpose clause in the single Equality Act is less important than it might otherwise have been because of the EHRC’s general duty set out in Section 3 of the 2006 Act. He says that the repeal of Section 3 will deprive those applying the law of interpretive principles and will leave equality law rudderless. It increases the likelihood of inconsistencies in the way in which the single act is applied.
Secondly, repeal will remove the unifying principle linking equality and other fundamental human rights. Respect for and protection of each person’s human right is at the core of the EHRC’s general duty and implicitly underlies the specific rights against discrimination, harassment and victimisation, and the positive duty to advance equality, which are set out in the Equality Act 2010. Professor Hepple cites the noble Lord, Lord Lester, who was chair of the advisory committee to the Cambridge review in the debates on the Equality Act 2006, as emphasising the importance of equality as a fundamental human right to be enjoyed together with other human rights—civil and political, and economic and social—and of promoting a culture of human rights. The Equality Acts 2006 and 2010 seek to overcome the fragmented approach to different strands of discrimination, which Professor Hepple says has characterised British legislation in the past. Repealing Section 3 will undermine the historic unification of equality and human rights law which was achieved under those Acts.
Thirdly, taken in the context of all the proposed changes, the proposed repeals are likely to further weaken the EHRC’s case for accreditation by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, the ICC, as an “A” status body in full compliance with the Paris principles, which Ministers have consistently said is a high priority for the UK Government. The International Council on Human Rights Policy has emphasised:
“The most effective national institutions generally have a broad and non-restrictive mandate … an all-encompassing jurisdiction”,
and “adequate budgetary resources”.
The EHRC’s “A” status is already being questioned. In a letter from the ICC chair, Dr Mousa Borayzat, to the Home Secretary, Dr Borayzat suggests that the Government should use the opportunity of the present Bill not to weaken the EHRC but to strengthen the provisions in the Equality Act 2006 related to the commission’s independence. This letter was part of correspondence between the UN and the British Government, centring on the UN’s concerns that the Government’s approach to the commission might compromise its independence and thus jeopardise its national human rights institution status.
The Government argue that Section 3 does not cover any ground that is not perfectly adequately covered by the EHRC’s core equality and human rights functions in Sections 8 and 9. But there are reasons for thinking that repeal of Section 3 could well have the effect of making the commission’s duties at Sections 8 and 9 more vulnerable to judicial review on the ground of challenges based on the proper statutory remit of the commission, thus handing power to the courts to determine the EHRC’s scope and weakening the influence of Parliament.
Of course, Section 3 is susceptible to judicial review. But the lesson from elsewhere, particularly Northern Ireland, is that the more specific and less general the duty, the more susceptible to challenge it becomes. Related to this point, in the absence of Section 3, there is little by which to judge whether the duties under Sections 8 and 9 are sufficient as they become freestanding and detached from any specified outcomes or overarching purpose, thus making further reform of the commission’s duties and powers more straightforward. This is of particular concern given that the terms of reference of the review of the public sector equality duty include the EHRC’s duties and powers in relation to the duty.
The appeal of Section 3 signifies that the Government have no great love for the EHRC. It is opposed by many highly reputable organisations that are in a good position to know about these things. The courts will be deprived of a road map for interpreting the legislation. That legislation will be stripped of its unifying principle linking equality and other fundamental rights. The commission’s standing as an “A” status national human rights institution will be weakened. The commission will also be rendered more liable to judicial review. In the light of all that, I do not believe that the repeal of Section 3 has anything at all to be said for it.
Baroness Hussein-Ece
My Lords, I, too, support Amendment 27 and associate myself with the noble Baroness, Lady Campbell of Surbiton, and other noble Lords who tabled it. I will try not to repeat anything that has been said. I, too, am dismayed and frankly puzzled that the Government are proposing to remove Section 3 and the general duty on the Equality and Human Rights Commission. This was discussed at some length in 2006. That was before my time in this House, but I followed the debate very closely. It was a relatively short time ago and all parties at the time agreed to these principles. I understand that the objectives were discussed extensively with business, NGOs and others in the field.
I will draw attention to one interesting quote. Eleanor Laing MP, speaking as shadow Minister for women and equalities, said:
“The important thing about clause 3 is that we all admire the aspirational nature of the general duty within it”.—[Official Report, Commons, 30/11/05; col. 36.]
If we fast forward to the present day, we see that having a wide-ranging, aspirational duty is seen as a hindrance to the Equality and Human Rights Commission in carrying out its work effectively. In briefings that I have attended it has been mentioned that the duty is too wide-ranging and that the commission is not able to focus sufficiently on a narrower remit. I apologise for not declaring an interest: I was a commissioner at the Equality and Human Rights Commission for three years until last month.
I would like to know what has changed. I still have not heard any compelling or rational argument about what has changed, and why it is proposed that the commission should no longer have a duty to promote work to eliminate prejudice and hate towards these protected groups. What has changed in our society since this relatively new Act, which is still bedding down, came into force? Are we a more equal society? Has something happened that some of us may have missed? Is racism declining? Is hate crime falling? As the noble Baroness, Lady Campbell of Surbiton, mentioned, just today we read in the newspapers that Stephen Lawrence’s brother has launched a legal battle against the Metropolitan Police, claiming to have been stopped by the force up to 25 times purely because of his skin colour. This is still a very common experience for many black and Asian people. This comes at a time when one in five young men—21%—in young offender institutions identifies himself as Muslim, compared with 13% in 2009-10. We have 60% unemployment among young black men. Race and disability hate crime is unfortunately still rising. What has changed such that we need to take away the general duty from the Equality and Human Rights Commission?
I would also like to know what is wrong with promoting good relations. Why is that now seen as a hindrance to the commission’s work? What is wrong with promoting good relations between different sections of society? No other statutory body has this remit. If it were to be taken away who would do this work? Who would show the leadership that is needed to tackle these issues? Who would understand them? Which non-government statutory body would be able to take this up? I strongly suggest that this is not the time to weaken the Equality and Human Rights Commission’s remit.
Is this the time to be sending out negative signals, which were mentioned earlier, and to be seen watering down and neutering this country’s main race, equality and human rights watchdog? I have heard it said in briefings that this will make no difference. If this is to make no difference, why are we doing it? Surely it is better to have a wider remit that is aspirational and that allows the commission the freedom to tackle some of these issues and carry out in-depth reviews, as has been done before. What is wrong in allowing this to happen? Surely the perception and the signal that not allowing it sends out is that this Government do not value race equality, or equality for disabled people and other protected groups.
On the issue of good relations, it has been repeatedly pointed out in briefings that since its inception the commission has not always functioned properly. There were problems and nobody can duck that, but it has made huge strides in the last few years. The organisation has reformed and slimmed down a lot, and in its work has been far more strategic and effective than in some other reviews that have been carried out. It is important to note that promoting good relations between members of different groups has allowed the commission to work in relation not just to race, but with groups such as Gypsies and Travellers who, sadly, do not have the protection that other groups have. It has been able to look at interfaith relations and hate crimes, as mentioned; causes of violence against women; intergenerational issues; and highly stigmatised groups, such as people with mental health problems or HIV/AIDS. These are serious issues that need to be tackled. The Equality and Human Rights Commission is best placed to understand interracial and inter-religious tensions and advise on the best way that they can be addressed. In proposing the removal of these clauses the Government are doing more damage than they realise.
Baroness Whitaker
My Lords, I rise to support what the noble Baroness has just said. One of the first things that I did when I joined the House of Lords was to speak in favour of admittedly a similar aspiration provision, but in my view appropriately. It might have been on an amendment from the noble Lord, Lord Lester, in legislation in 2000. The concept eventually found its way into the 2006 Act.
When Parliament agreed this provision it was on the basis of discussion with a wide range of organisations. It was widely welcomed. Why? We do not have a fair and unprejudiced society. It may be that everyone in this room is fair-minded, but fairness and good relations between groups do not exist when, for example, Gypsy, Traveller and Roma people are harassed about where they can live. The noble Baroness mentioned that young people now describe themselves as Muslim in larger numbers. Gypsy and Traveller children dare not describe themselves as Gypsies and Travellers, because of the things that have happened to them.
We have a society in which children with disabilities are bullied in school. Members of minority groups that make up our society are denied jobs because of stereotyped expectations. Old people are despised and neglected. The ordinary self-respect that people need, particularly children, is undermined. This is at the expense of social cohesion and an ordinarily decent society. I support this group. I think that it is necessary to give the EHRC a proper strategic approach to help bring about a fair society.
Lord Wigley
My Lords, I am very glad of the opportunity to intervene briefly in this debate and should declare an interest in regard to my involvement with Mencap Wales, Autism Cymru and a number of other disability organisations. I congratulate warmly the noble Baroness, Lady Campbell, on introducing this important amendment. I agree with what she said, as I did with the noble Lord, Lord Low.
I recall the battles in the 1990s to establish disability rights. Those battles were led by Lord Ashley, Lord Morris, John Hannam and others, across party boundaries, because of the importance of enshrining in law the principles of rights. My fear is that we are in danger of a movement backwards today.
The general duty is necessary to avoid regulatory gaps or the effect of overlaps. Rather than being repealed, it should, if anything, be amended to establish more clearly the EHRC’s overriding purpose, powers and duties and to support the focus on being an equality regulator and a general human rights institution.
I have concern also about the proposal to move from a three-year to a five-year progress report cycle. There is a real danger here that if the cycle were to start coinciding with the electoral cycle, we could find many of these issues becoming politicised, which is in nobody’s interest. I have further reservations about the repeal of the conciliation powers, which would amount to the loss of the EHRC’s wide-ranging, background role in monitoring the effects of legislation.
The Government need to make a very strong case for repealing Section 3 as the Bill proposes, and I doubt that they can do so. If they are not prepared to think again between now and Report, we should support similar amendments at that stage in the Chamber in order to give the EHRC and all involved in disability the strongest possible messages.
Lord Lester of Herne Hill
My Lords, I apologise to the mover of the amendment that I was not present when she spoke. I shall be extremely brief, because I explained at Second Reading that nothing in this clause would remove any of the commission’s powers or functions and why I regarded what was being deleted as not harming, but improving, the performance of the commission.
The general duty arose not in the 2010 Act but in the 2006 Act, and the 2006 Act unfortunately put the cart before the horse, as some will remember. Instead of doing what was done in the 2010 Act, which was to reform the underlying discrimination law and bring it all together, the then Government instead put the cart before the horse by setting up a commission without having reformed the underlying law. They put into the 2006 Act this general duty, which is unenforceable and purely aspirational—for those who pull faces when I say that, I remind them of the aspirational language, which is very fine but not capable of being enforced in any court of law. What they did in addition to that, and which is unaffected by the Bill now before the Committee, was to put in Section 8:
“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of equality and diversity … encourage good practice in relation to equality and diversity … promote equality of opportunity … promote awareness and understanding of rights under the equality enactments … enforce the equality enactments … work towards the elimination of unlawful discrimination, and … work towards the elimination of unlawful harassment”.
That is in Section 8 and is unaffected by anything in this present Bill. They then went on in Section 9, also unaffected by this Bill, to provide that:
“The Commission shall, by exercising the powers conferred by this Part … promote understanding of the importance of human rights … encourage good practice in relation to human rights … promote awareness, understanding and protection of human rights, and … encourage public authorities to comply with section 6 of the Human Rights Act 1998”.
Those are completely intact, as are all the enforcement powers given to the commission under the 2010 Act. Rather like the socio-economic disadvantage rhetoric that the Government have rightly not sought to rely on, all that has been taken away in the general duty is the following:
“The Commission shall exercise its functions under this Part with a view to encouraging and supporting the development of a society in which … people’s ability to achieve their potential is not limited by prejudice or discrimination ... there is respect for and protection of each individual’s human rights … there is respect for the dignity and worth of each individual … each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights”.
Everybody in the Committee would agree with those sentiments, but the point that I make as a lawyer, for which I do not apologise, is that none of that is capable of being enforceable in any way. A duty that is written in water—it is clearly aspirational—may make us all feel joyful but it is not sensible to have it in legislation for a commission that in the past, as many in this Room will know, has been distracted by an overbroad and vague mandate. It is time that the new commission, as it were, concentrated on what it is meant to do, which is strategic law enforcement and everything else associated with that. I know that I am in a minority in this Committee but I for one consider that it is perfectly legitimate to get rid of Section 3, while retaining intact all the commission’s powers and statutory functions.
Baroness Whitaker
Does the noble Lord think that there is no place at all in the whole of statute for aspirational or declaratory law? Is he sure that there is none?
Lord Lester of Herne Hill
My difficulty is that I cannot see what is added in Section 3 to what is mentioned in the other sections. Can it be explained why stating general aspirations of the kind that one finds in international conventions on human rights adds anything to the work of the commission? I am talking not about perception but reality; I realise that perception matters but in reality the Committee should face the fact that nothing in this Bill is taking away any of the commission’s functions. The commission itself has rightly said that it does not regard the removal of Section 3 as damaging to its work.
Baroness Howe of Idlicote
My Lords, it is very seldom indeed that I disagree with my noble friend Lord Lester. I call him my noble friend because he has been a friend for so many years. However, on this occasion I must disagree with him, and my reason for that goes right back to the Equal Pay Act and the Sex Discrimination Act 1975. How long ago was that? It is a considerable number of years. Are we entirely happy with how equal opportunities have proceeded? Has it all been achieved? I would certainly argue not yet. There is a heck of a lot to catch up on and to have accepted.
That is exactly why I recommend very strongly the amendment that has been moved, and spoken to so brilliantly by the noble Baroness, Lady Campbell, and others. The noble Lord, Lord Lester, may well say that it is all written out there, but there is a section that can help the commission to talk to the different groups, get them together, and take them through the processes that might make their advancement as individual groups or as part of the community much more acceptable. That is a strong reason why we should retain this section. I will spend no more time than that on it but I feel very strongly that we need to retain this section.
Lord Ouseley
My Lords, first, I congratulate the noble Baroness, Lady Campbell, on moving this amendment and on her very powerful introduction. I am sorry that the noble Lord, Lord Lester, missed that because it really represents the difference between what the victims of discrimination, whose rights are being eroded, want for a commission, and what a lawyer wants for an organisation that is a highly esteemed body, which can be looked at and admired, but is not reaching the people’s needs. That is what Section 3 and its retention represents for us who sit here opposing what is proposed in this Bill. That also helps to answer the question posed on many occasions about the notion that it would not make any difference.
We do not have any clarity about what the Government want to see the EHRC doing and how that relates to how people in our society—whether they are disabled or on the grounds of age, race, ethnicity or other characteristics—feel about a body such as this not meeting or responding to their needs, or giving any leadership or indications about how society can move forward in healing the problems that are afflicting the many people with those characteristics and who are affected by discrimination and the erosion of human rights.
We already know how far the EHRC has gone backwards in the aspirations that a lot of people had for it. That is not a criticism to suggest that it has not done good work because it clearly has, but it could have done so much more. To a large extent, I do not have any disagreement with what the noble Lord, Lord Lester, has said but I believe that Section 3 is an important aspiration. It is absolutely right to say that it is a statement of purpose and it is very broad. For me, it enables the commission to do the sort of things in a flexible way—notwithstanding the way in which it is required to be strategic—which enable people on the ground to identify with it. That is the worst part of the past four or five years of watching the way in which the predecessor bodies faded into obscurity when the new body came on stream and lost contact with people on the ground. That is where I am addressing my concerns.
I see the general duty as a statement of purpose and a mission statement. In no way do I see it as constraining the EHRC from doing what it needs to do or what it has to do, while recognising the constraints imposed upon it by government and the limitations of its resources. That is the killer constraint, which I think will determine what exactly it will do in the years ahead. No justification has been put forward for removing Section 3, other than the arguments put forward by the noble Lord, Lord Lester.
The loss of the notion of promoting good relations is very serious. I see promoting good relations as a common thread of connectivity across the diverse protected characteristics. It underpins the fundamental requirement of a body such as the EHRC to promote better knowledge and understanding of equality and human rights issues, to counter myths and prejudices with facts and to encourage good community relations across the diverse competing interests, which is quite considerable.
Should the EHRC have no role whatever in challenging policies, proposals and activities that damage community relations? Should it never challenge the Government? Clearly the Government would like an EHRC that never challenged their policies and activities. However, if the commission is not able to challenge, who will do that? This is the politics of madness at a time when tensions are rising, conflicts are on the increase, austerity is feeding prejudices, frustrations and anxieties, and blame and scapegoating are dominant features of everyday culture. Who is seeking to counter any of this? Should the EHRC not take on some of this activity? If not, why not?
The general duty is a binding and unifying concept that intertwines equality and human rights. It guards the fundamental role of the EHRC. The reason for the removal in Clause 56 of Section 3 is to weaken further the EHRC and heighten its impotence in the eyes of many people who need an effective EHRC to champion their rights and assist them in building good relations, tackling inequality and promoting human rights.
Lord Morris of Handsworth
My Lords, one of the disadvantages of being around as long as I have is that you observe the tide flowing in and flowing out—ebbing and flowing. I have followed the equality debate, participated in it and in some instances been a victim of it over many years. Tides such as progress in equality need to be measured. The section that we are debating is as good a measurement as one could get. The progress that we seek will be advanced by the amendment moved by the noble Baroness. She advocates that the retention of Section 3 is an absolute requirement. The question is not just for those outside the debate but for those who are part of it.
Section 3 is the quality control mechanism by which the Act can be judged from time to time. However, it has a much wider purpose. It can be the section by which the Government’s commitment, activity and purpose in this field are judged. The proposal to repeal Section 3 is equivalent to the referee blowing the final whistle before the match has ended. It should not be the case, when debate is still going on and before it is concluded, that the key mechanism by which we can measure progress and draw some conclusions is under threat. That is why it is important that, whatever emerges in legislative terms from the Bill, Section 3 is retained. The message that its removal would send would downgrade all the other aspirations of the Bill.
Many pioneering people have made valuable contributions. However, as we have heard in the debate and read in the press, we have not abolished discrimination on grounds of race, gender, disability or otherwise. There is still a job to be done. I do not believe that at this point removing the general duty would enhance confidence in the Government’s commitment to the whole issue of discrimination. The job is not done. There is much more to do. In the best tradition of the way in which your Lordships’ House is able to engage all strands of opinion, I believe that on this issue the Government should take note and retain Section 3. It is not just a question of how others would be measured; it is a question of how the Government would be measured and judged. I support the amendment.
Baroness Greengross
My Lords, I appreciate the passion and commitment that my noble friend Lady Campbell brought to this amendment and I share her absolute commitment to the aims and objectives of the commission. I have just finished a six-year stint as a commissioner. I was there from the beginning, when the noble Baroness was a co-commissioner with me.
The commission’s aims are beyond dispute and I support them completely, but I share the view of the noble Lord, Lord Lester, that removing Section 3 is not of any great significance. There are things that are much more important in ensuring that the commission’s work will continue, improve and be clearer in the future. I do not think that the section does any harm, but I also do not think that it is terribly important if it goes.
A sad thing is the overriding view that seems to be around now, perhaps in government and perhaps everywhere else, that the commission has failed. I challenge that, as I think that the commission has done some excellent work during the six years that I have been there, in spite of enormous difficulties in trying to meld a whole lot of additional categories of people to be protected, as well as the original protected groups, with the people representing those groups feeling that they were going to be in some way diluted. That has made life very difficult in the commission, but I think that many of those difficulties have been overcome.
Society as a whole still has huge problems—I agree with the noble Lord, Lord Ouseley, about that. We still have racism and there is still a stigma attached to disability and so on. However, there have been major achievements in the recognition of that, in the ability to speak about it and in the protection of many people who were not protected before. There have been a lot of improvements. The work of the commission should not always be criticised as vague and not achieving anything, as there have been some significant achievements. I say that on behalf of colleagues and former colleagues who have done the majority of that work, which I think needs to be recognised.
The fact that the Joint Committee on Human Rights will in future scrutinise the commission’s business plan and there will be increased parliamentary involvement—for example, the pre-appointment scrutiny of the new chair—is a big improvement. We have been looking at all the things that still need to be done as if everything is totally negative, but having experienced six years of the commission I think that quite a lot has been very positive, including greater transparency about the Government’s funding decisions.
It will be sad if the general duty goes, as removing it is not a huge priority, but I do not think that it will affect the work of the commission. To that extent, I do not think that the Government have to worry too much. We have to work hard to ensure that the commission’s aims are met in the future. More specific duties and responsibilities ought to be useful in improving the situation and making sure that the aims are met. I am sorry if I am in a minority here, but I am passionate about what the commission stands for and I want to acknowledge some of the good things that have happened in the six years during which I have been involved in its work.
Baroness Hollins
My Lords, despite the legal view presented by the noble Lord, Lord Lester, I refer us back to some of the words spoken by my noble friend Lady Campbell of Surbiton. She said that the inclusion of dignity in the commission's general duty provides the glue to bind together anti-discrimination and human rights. I think I got that right. I agree with that and other important points that she made in her eloquent speech. Such an approach underpins the accepted goal of living with dignity and independence. As such, Section 3 is critical in providing coherence to the commission’s duties to promote equality and human rights. I was involved with one of the commission’s predecessor organisations, the Disability Rights Commission, in a major inquiry conducted into discrimination in access to health services by people with learning disabilities or mental illness. It indeed found discrimination; it was very effective and led to some improvements in access to healthcare for those groups. It is very important that such issues continue to be seen as a priority and investigated.
I worry that, without Section 3, that priority may be lost. I oppose the removal of Section 3. It has an important role in focusing the commission’s various duties, and I add my support to the amendments tabled by my noble friend.
Baroness Prosser
My Lords, I did not intend to speak in this debate, but I have been fired up by comments made. I start by declaring an interest as having spent six years, until the beginning of December 2012, as the deputy chair of the Equality and Human Rights Commission. I shall be brief. I know that the noble Lord, Lord Lester, and the noble Baroness, Lady Greengross, are not alone in considering that the loss of the section would not cause any harm. Obviously, I respect the right of people to hold a different view, but I make the point that there is a long history in legislative terms of overarching statements of intent being extremely useful to judges and others when determining the meaning of legislation—so, even on that level, it has a value. I run with my noble friend and the noble Lord, Lord Low, especially in his comments that this has a symbolic value. In this country, we are far from being able to consider that there is no further need for symbols, promotion, ideas, excitement or energy about the equality agenda. We are lacking that in great amount at the moment. We need to be as positive as we can about the need for an equality programme within our society. We continue to need to encourage and explain to people the value to society as a whole of the equality agenda.
Finally, having been deputy chair for six years, it is unsurprising that I take exception to some of the comments made about the equality commission, many of which seem to me to be based on myth upon myth. I agree that there have been issues and problems far too complicated and outside the remit of the equality commission to go into here. Equally, I would say that there is a tendency on the part of many to look back at the pre-Equality and Human Rights Commission era and look at the previous commissions through rose-coloured glasses. People involved in each of the three commissions have done that. This has not been a steady or an easy path since the 1960s, when legislation was first introduced to try to address some of these issues. We need to be careful about making comments about the role of the EHRC in recent years without making sure that we are really clear about the issues, why they have arisen and what has been done to try to detract from them. I support this amendment because it is part of a programme of encouragement of a society becoming more equal, understanding and tolerant.
Baroness Thornton
My Lords, it is significant that it has taken an hour and 10 minutes to get to this point. Noble Lords across the Committee feel very strongly about this and I suspect about some of the other amendments that the Government are proposing to this part of the Bill.
We have heard some wonderful speeches this afternoon, including the opening speech from the noble Baroness, Lady Campbell, and sometimes they show aspiration and emotion. The speeches show that these things matter. The noble Lord, Lord Lester, makes some technical analysis about the effects of removing Section 3. I am surprised that such a distinguished campaigner as the noble Lord is out of step on this particular matter.
I do not need to say much more. On these Benches we support the noble Baroness, Lady Campbell, my noble friend Lady Turner and the noble Lord, Lord Low, in these amendments. I expect that the Minister will pray in aid evidence given to the committee that the EHRC has stated that it does not object to these changes in its remit. I confess that I was surprised when I read that. However, we must look at this matter in the context in which those remarks are made. In addition to the proposals to amend the legislative basis of the EHRC, the Government are also undertaking a range of actions that seriously threaten its independence and effectiveness. A few weeks ago the Government published a review of the public sector duty, most of whose members as far as I can see are from either the Conservative Party or the Liberal Democrat party, or they are officials from the GEO. I do not know if they will be taking evidence. If they are, I hope that those who are interested in this matter will tell them what their views are about it.
In the context of this proposal, I ask the Minister if it would not have been better to wait before abolishing the general duties and making these changes to see what the review of the public sector duty proposes, since the Government have used its existence to defend precisely this proposal. Does the Minister think that we are in danger of both these duties being abolished? What effect does she think that will have on the work of the EHRC?
In the Third Reading of the Bill in the Commons, my honourable friend Kate Green said:
“There is still racism and there is still religious hatred. There are still women who … are victims of violence, or who are at risk of it. All those groups continue to suffer from derogatory language, discriminatory behaviour, prejudice and public hostility. It is quite wrong to think that we do not need to continue to protect in legislation a positive duty to promote and improve good relations”.—[Official Report, Commons, 16/10/12; col. 253]
The Minister argued that since the EHRC is bound by the public sector equality duty in Section 147 of the Equality Act 2010, it will still have a duty to consider the need to take steps to promote good relations and activities. Given that we know that the future of this duty is in doubt, I wonder if it is not better to shelve these proposals right now and wait until we see what happens. How is this going to be resolved? If this is taken together with the fact that the EHRC will have its budget cut by 62%, as had been mentioned, and will have lost 72% of its staff compared to when it was established in 2007, these are disproportionate cuts. Further cuts are anticipated in the next spending review and as a result of a zero-based budget review.
Lord Deben
Can I not ask the noble Baroness to go a bit further than that? For that comment by the Secretary of State for Business to be relevant, surely he should have explained why removing this section is helpful. In other words, he seems to have it the wrong way round. It does not help to say, “This section, in its existence, is not being helpful to business”. That is one thing, but it is there. Removing it is a real action. In that case, surely he should have explained why it would be helpful to business to remove this section. I do not see that he has proved that. My problem with this issue is that I do not see why we should not just leave it there, unless there is a good reason to change it. I am old-fashioned enough to believe, “If it ain’t broke, don’t try to change it”.
Baroness Thornton
The noble Lord makes an absolutely perfect point; I wish I had made it myself. I have two final points on the amendments that the Government are proposing in this part of the Bill. One is on the provision of conciliation duties and the repeal of Section 3. Under the Equality Act 2006, the EHRC provides conciliation services and the Government propose to repeal that provision. One particular issue really concerns me, which is that of transferring the complaints service for disabled travellers to the Civil Aviation Authority. I have to say that this astonished me. Apart from concerns arising on the ability of the CAA, which has close ties to the aviation industry, one has to ask: will it act independently and impartially? It seems a remarkable thing to be doing.
Moreover, through forcing private and public sector organisations down the more costly compliance route, rather than that of conciliation, and driving the commission towards a court-led approach as opposed to pre-court conciliation, the repeal of Section 3 directly contradicts the overarching aim of the Bill. I would be grateful if the noble Baroness could explain to the Committee how this can be justified.
Baroness Stowell of Beeston
My Lords, this has been an important and impassioned debate. I must say that, from the conversations I have had with many of the noble Lords who have spoken in this debate, that was what I expected it to be. I say from the start how grateful I am to so many of your Lordships for giving up their time to talk to me. I would also like to place on record from the start my recognition and thanks for what so many noble Lords who are here today have achieved on equalities over not just years but decades. I recognise that. Indeed, I know that I am a newcomer to this issue. As a fairly recent member of the Government, I tend to hear myself saying that I am a newcomer to whatever debate I happen to be responding to. In this area, I genuinely think that the fact that I come to this without any of my own baggage is helpful. I have been very open-minded in my approach, apart from my firm belief in the importance of equality and having an equal society, which I know I share with everybody in this Room.
The debate is helpful because it allows us to talk about this important issue. We will agree on several things and, from the comments made by most noble Lords today, one is that the commission has to date not lived up to expectations. Its initial problems had many causes, including government failings. That said, things have improved, certainly in the past couple of years, as evidenced by its unqualified accounts. Although things have improved, we are not there yet. We can all agree that we want a strong and effective equality body and an A-rated national human rights institution. More than anything else, what we all want, and what the debate is all about, is an equal society free from discrimination. Today is not about the past; it is an opportunity to focus on the future. I noted carefully what many noble Lords said, in particular the noble Lord, Lord Morris, that the job of achieving an equal society is not a job that is done yet. I recognise that and share his view.
I also understand from the comments made and the strong and powerful speeches today that noble Lords want me to be clear about what the Government expect of a strong and effective equality and human rights body. They will want me to spell out what success looks like, which is certainly what I will try to do. As for looking to the future, it is important that the commission has the right relationship with government. Some noble Lords have talked about accountability but we can come on to that in the debates that will follow on later amendments.
For an organisation to be successful, it needs to be clear on its purpose. At its most simple, the purpose of the organisation of the commission is to promote and protect equality and human rights. That is reflected in what I regard as the commission’s core duties at Sections 8 and 9 of the Equality Act 2006. There is nothing passive about these duties. They require the commission to be an agent of change, to promote understanding, encourage good practice and promote awareness. I know that the noble Baroness, Lady Campbell of Surbiton, raised a concern about whether the commission would still be an agent for promoting change in the future. The answer is absolutely yes. While the Government consulted on amending the equality duties in Section 8 of the Act to clearly define the commission’s role as an equality regulator, we listened to the feedback and decided against those changes. We agreed that it was neither realistic nor desirable to expect the commission to regulate every part of society. The commission has quite enough on its plate as an agent of change. We want the commission to monitor our progress in reducing persistent inequalities, conduct inquiries into their root causes, establish the evidence about what works, and make and publicise its recommendations for action. I take this opportunity to point out, as the noble Baroness, Lady Greengross, has just done, that some very important work has been carried out by the commission during the past years. I pay tribute in particular to the disability harassment inquiry and the home care inquiry.
To have impact, the commission must gain the respect of all as our national expert on equality and human rights issues—a body to which everyone can turn and have confidence in, even if its final conclusions will not be supported by all. I heard very clearly what the noble Lord, Lord Ouseley, said. I say to him that, when I talk about final conclusions not being supported by all, I mean that a salutary and sharp nudge in the ribs of the Government is sometimes what we would expect this commission to do.
That is not least because rights are competing. The importance of the commission lies in its ability to advise on how we get the balance right; for example, between the rights of the offender and the rights of the general population to be protected; and between the rights of lesbian, gay, bisexual and transgender people to be protected from discrimination and the rights of religious people to act in accordance with their faith.
The commission cannot be, or be seen to be, the voice of any one group. It has to be guided by the evidence—that is what I think we are all looking to it for. It should not be possible to presume the EHRC’s position on any issue, because its position should be evidence-led. It should not be not an impassioned lobbyist leading emotive campaigns; its role is to be an expert witness, and to make recommendations on the basis of the facts.
As the guardian of our legal rights, it is also the commission’s role to raise awareness of people’s rights under equality and human rights law and to ensure that the law is working as Parliament intended. Where there is a lack of clarity, it should use its enforcement powers where they will have most impact, in a strategic way, to clarify the position; for example, where there appears to be a contradiction between domestic and EU legislation.
Noble Lords are right: the repeal of the general duty will neither stop nor impair the commission’s ability to fulfil its important equality and human rights functions. Nor does it provide a clear statement of purpose. Section 3 is a political statement with no clear legal effect. In many respects, no one can disagree with it. Who does not want to live in a society in which people’s ability to achieve their potential is not limited by prejudice or discrimination? The noble Baroness, Lady Campbell, quoted my noble friend Lord Boswell, and my noble friend Lady Hussein-Ece quoted my honourable friend Eleanor Laing as stating their support for the intention behind the general duty during the passage of the 2006 Act—and that is right; it is something with which we agree. But the problem with Section 3 is that it implies that the commission, uniquely, is responsible for encouraging and supporting the development of such a society. This is patently wrong and arguably insults the efforts that we all make in support of these goals, whether through the work of Parliament, government, the wider public sector, business or the community. We are collectively responsible. We might need the commission’s help, but it cannot achieve an equal society on its own.
We are seeking to repeal the general duty on the commission because it creates unrealistic expectations, positive and negative, about what it on its own can achieve. However, as several noble Lords have said during this debate and as I have already indicated, the statement in that general duty is important and removing it from the legislation does not mean that it cannot be replicated in the commission’s own strategic plan or in the way it wants to set out its own mission. I think that it was the noble Lord, Lord Ouseley, who referred to it as a mission statement. I agree. I think that that is where it is best used and will have most effect.
Baroness Thornton
Will the Minister provide the Committee with a financial breakdown of exactly how the cuts to the commission’s budget have been disbursed?
Baroness Stowell of Beeston
I think that it would be easier for me to provide that in a follow-up letter subsequent to today’s debate.
Baroness Stowell of Beeston
I add that I hope that very soon—indeed, imminently—we will publish the budget that the Government have agreed with the commission. It is important for me to make the point that the setting of the budget is informed by the commission’s core function, its responsibilities and what it is required to do. We are confident from the conversations and discussions that we have had with the commission that the budget that we have agreed with it will properly allow it to fulfil its responsibilities.
During this debate, the noble Baroness, Lady Thornton, and other noble Lords raised the issue of the public sector equality duty. We will come to later amendments where I expect the debate to focus very much around that issue. However, the public sector equality duty review is just that—a review of the public sector equality duty. When noble Lords refer to the general duty in the public sector equality duty, I think that it is worth my responding that that is very different from the general duty that we have discussed today. The two things are very different. Our proposal to repeal Section 3 is not related to the public sector equality duty.
Bearing in mind that there are other amendments where we will be able to continue the debate about accountability and, as I said at the start, the commission’s relationship with government and Parliament, I would conclude at this point and say to all noble Lords who have spoken today—not just those who have put their names to the amendments—with the exception of my noble friend Lord Lester and the noble Baroness, Lady Greengross, to whom I am grateful for their support, that I hope that I have given some assurance which goes some way to giving the Committee the clarity that it is seeking from me as far as what the Government intend in their proposals in this Bill.
Lord Lester of Herne Hill
Since the Minister has been kind enough to refer to me, perhaps I may say to her that I hope it is absolutely clear that my position in supporting the removal of the general duty under Section 3 of the 2006 Act is predicated on there being no regression whatever in weakening the legal powers and functions of the commission. She has already stated that in an Answer to a Written Question from me, which is the basis on which I can support the Government.
Baroness Stowell of Beeston
I am grateful to the noble Lord. I hoped that I had said that in my remarks concluding that the public sector equality duty review is just that. What we are proposing is very much contained in Section 3 and does not relate to what we are reviewing in the public sector equality duty. The decision to remove Section 3 is a decision that we have reached. Now, we are reviewing the public sector equality duty and that is not related to this decision.
Baroness Thornton
If I were the noble Lord, Lord Lester, I might be slightly worried about this. Perhaps the Minister would be wise to take up my proposal to withdraw this. Let us see what the review holds and where we are after the public sector equality duty review. My reading of what the Minister has just said—she has repeated it twice—is that these two things are completely separate.
Baroness Stowell of Beeston
They are separate because the public sector equality duty review, which we will debate when we come to the noble Baroness’s amendment about the equality impact assessment, is about whether the public sector duty is operating in the way in which it was designed. Is it achieving its purpose and its aims? We are reviewing how that operates. We are saying that the core function of the Equality and Human Rights Commission is very much rooted in its responsibilities for equality and human rights. The removal of Section 3 does not weaken its ability to do what it exists to do. Its removal is because we believe that it is a statement which should not sit on its own as a responsibility for the commission but as a responsibility for a wider set of public bodies, including Parliament.
Baroness Campbell of Surbiton
My Lords, I thank the Minister for her genuine attempt to understand and respond to all our arguments against removal of the general duty. I mean that; we have spent time together discussing this in detail. I also thank all noble Lords who have supported the amendment and I hope that they will forgive me if I do not respond to them by name. I am sure that they would want me to save my breath for my response.
I wish that I felt more assured—I really do. For myself and dozens of other people and organisations around the country, the significance of the general duty is quite apparent. I still struggle to understand how the repeal of Section 3 will assist the commission’s future. I do not feel that we have had tangible evidence or examples of what it does now that it would do better if the duty were removed.
We have talked a lot today about perception and mission statements. I was sorry that the noble Lord, Lord Lester, was not with us when I made my contribution. He asked someone to explain to him what is added by Section 3. Perhaps the noble Lord does not believe that the power of perception is as strong as the hand of the law. I say to all noble Lords that in my experience perception, not the law, has been the main liberator and discriminator all my life. I am positive that I am not alone in this.
The Minister also tells us that it is wrong for a statutory body to campaign for law or policy reform and that it should focus on promoting the enforcement of laws agreed by Parliament. I agree but—there is a but—there is so much more to a viable equality and human rights commission that would not, if it lost the general duty, have a mandate sufficient to comply either with the Paris principles regarding the status of national human rights institutions or with EU law regarding the mandate of national equality bodies. The Government need to think about this very carefully. Their view of us is really important in this area. I feel that we need more compelling examples of what will be improved by repealing Section 3 as I have heard none so far.
Although I will withdraw the amendment, I fear that if we do not have anything more convincing we will be back at Report, probably saying the very same powerful things we said today. The noble Lord, Lord Ouseley, rightly said, that this is not just about lawyers and the law; it is about people. It is wrong to say that Section 3 is a political statement. It does not imply to me or others that this is a unique role for the commission. I dare say that all the voluntary organisations in this country would be very hurt by that statement because they take Section 3, the guidance and the authority of the commission and run with it. If it is gone, we will be back to fragmentation. As I said, we are all in this together. Without it I will not feel that I am together with anyone. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Geddes)
My Lords, before putting the Question for withdrawal, it may be helpful to the Grand Committee if I say that I have received advice that in order to take part in discussion on an amendment, a noble Lord must be in his place throughout debate on an amendment, most particularly while the proposer of the amendment is making his or her speech. Thus, with great respect to the noble Lord, Lord Lester, his intervention, although out of order, is, nevertheless, on the record and will remain on the record.
Lord Lester of Herne Hill
I thank the Deputy Chairman of Committees for that, but perhaps I may also say that advice was taken from his predecessor before I spoke, and we received a different view.
The Deputy Chairman of Committees
Indeed, so my predecessor told me, but since then we have had the great advantage of electronic checking and back came the reply just as I have given it. That may be for the assistance of future proceedings of Grand Committee.
Lord Wigley
My Lords, before we leave that point, it would be very helpful if the Annunciator could keep up with the debate, so that we can be here in time, because there are times when it is five or 10 minutes behind in showing the changes of speakers and the issue being debated.
The Deputy Chairman of Committees
With great respect to the noble Lord, that is known as the art of keen anticipation, which I learnt many, many years ago.
Baroness Thornton
“Commission for Equality and Human Rights: accountability to Parliament
(1) The Equality Act 2006 is amended as follows.
(2) In paragraph 1 of Schedule 1, (membership) after sub-paragraph (1) insert—
“(1A) Appointments shall not take effect until such time as they are approved by a Committee of both Houses of Parliament.”
(3) In paragraph 7 of Schedule 1, for sub-paragraph (2) substitute—
“(2) An appointment under sub-paragraph (1)(a) shall not take effect until such time as it has been approved by a Committee of both Houses of Parliament.”
(4) In paragraph 32 of Schedule 1, for sub-paragraphs (4) to (6) substitute—
“(4) The Commission shall lay each annual report before Parliament within 3 months of the end of the financial year to which the report relates.
(5) The Commission shall send a copy of each annual report to—
(a) the Secretary of State,(b) the Scottish Parliament, and(c) the National Assembly for Wales.”(5) In section 4 (strategic plan), for subsection (4) substitute—
“(4) The Commission shall lay the plan and each revision before Parliament.
(4A) The Commission shall send a copy of the plan and each revision to the Secretary of State.”
(6) After paragraph 38 of Schedule 1 (funding) insert—
“38A The budget fixed under paragraph 38 is subject to approval by a resolution of each House of Parliament.””
Baroness Thornton
My Lords, I thank the noble Baroness, Lady Hussein-Ece, and the noble Lords, Lord Low and Lord Crisp, for supporting me on the amendment. This is by way of trying to be helpful. As the Government, in their wisdom, chose to alter our equalities framework, we thought that we would take them at their word and make even more improvements. I suspect that the amendment is not perfect, but I hope that it gives the gist.
I acknowledge, as was outlined by the noble Baroness, Lady Greengross, when she was in her place, that the balance of accountability has already started to shift. I should also say, as a member of the Government who put the 2010 Act on the statute book and supported the Equality Act 2006, that perhaps we did not get it quite right then. This is an attempt to remedy that. The amendment amends the Equality Act 2006 so that Parliament can have a greater say in appointment to the EHRC, its budget setting and its reporting.
The EHRC put forward a proposal that required the commission to lay its business plans before Parliament, achieving, as he put it, an optimal balance between independence, accountability and transparency. I recommend Members of the Committee to read what the commission said in its document of 2011, Building a Fairer Britain: Reform of the Equality and Human Rights Commission. That discusses in detail what the balance between independence, accountability and transparency should be. This amendment is drawn very largely from those proposals.
Parliamentary accountability was recommended also by the Joint Committee on Human Rights, which stated that,
“the standard model of non-departmental public body accountability is [not] a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission)”.
Similar constitutional bodies with a role in holding the Government to account, such as the National Audit Office, report directly to Parliament, as do other national human rights institutions such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament.
Furthermore, the previous and current chairs of the UN International Coordinating Committee endorsed this model. In June 2011, the then chair of the ICC, Rosslyn Noonan, wrote to Theresa May MP and the noble Lord, Lord McNally, stating:
“The challenge is in the nature of the accountability, which should not be, as proposed, to an agency of the government, but should be to the Parliament … Providing an individual government agency (other than the official Auditor) with active oversight powers would undermine the independence of the NHRI in relation to its monitoring of that agency”.
To this end, we tabled this amendment, which seeks to change the balance of accountability of the EHRC in accordance with the Paris principles that gave our EHRC its “A” status.
I hope that this will be seen in the light of trying to start a discussion. The amendment will strengthen the commission’s accountability to Parliament, thereby making it better able to fulfil its mandate as Britain’s equality regulator and national human rights institution. It covers the appointment of commissioners and the chief executive of the EHRC and includes requirements for the commission to lay annual reports and strategic plans before Parliament and for the commission’s budget to be subject to approval by a resolution of each House of Parliament.
The commission has a strategy responsibility to assess how the Government are complying with their domestic and international equality and human rights obligations. It will do that job very much better if parliamentary accountability provides it with the appropriate independence from government. I mean any Government, not just this Government. I include what I hope will be my own Government after 2015. That is the right way to go. It is not always comfortable for Governments to be held to account in this way on their equalities and human rights record, but it is vital that they are.
In addition, this approach will offer long-term consistency of accountability arrangements to the commission. This will overcome some of the major difficulties recognised in the establishment of the commission, which to date has had a number of different sponsor departments. Again, I hold my own Government responsible for the movement of the Government Equalities Office and therefore for the commission. I understand that it is now on the move from the Home Office to the DCMS; a machinery of government announcement was made just before Christmas. Frankly, that is not consistent. We will have a few months of planning blight, because that is what happens when departments have to move their base and find themselves a new home. I do not think that that is a particularly good move, but if the commission is accountable to Parliament for its work, that will help and perhaps, as the future unfolds, we will find a permanent home in government for the Government Equalities Office. That would be a very good idea.
This does not mean that Ministers and the Government do not have responsibility for the overarching policy and the policy framework through which our equalities and human rights legislation should take place. That is not the purpose of this amendment; its purpose is to make the EHRC a more effective and accountable body to our Parliament. I beg to move.
Lord Low of Dalston
My Lords, I support this amendment, which has been ably moved by the noble Baroness. As a minimum requirement, “A” status national human rights institutions must comply with the Paris principles. The key ones among them relate to independence from government, guaranteed by constitution or legislation. Greater parliamentary accountability would also be helpful in this regard.
Parliamentary accountability has also previously been recommended by the JCHR in three reports. In 2003, it stated that the “standard model” of non-departmental public body accountability is not,
“a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission)”.
The proposed single equality body did not exist at that time. Again, it said:
“On the whole we would tend to favour a form”,
of appointment,
“which requires a duty to consult Parliament on the appointment of commissioners as a guarantee of independence and democratic accountability, so long as this was a statutory duty”,
and that,
“as a guarantee of independence … Parliament should be directly involved in the setting of any commission’s budget”.
More recently, the JCHR has agreed the Belgrade principles, which relate to the relationship between national human rights institutions, such as the commission, and national Parliaments. The principles were adopted by participants at an international expert seminar led by the UN Office of the High Commissioner for Human Rights in 2012. The Belgrade principles include several mechanisms for closer relationships between Parliaments and the national human rights institutions: for example, that such institutions,
“should report directly to Parliament”,
and that,
“Parliaments should develop a legal framework for”,
the national human rights institution,
“which secures its independence and its direct accountability to Parliament”.
Again, the principles say:
“Parliaments should invite the members of”,
national human rights institutions,
“to debate the Strategic Plan and/or its annual programme of activities in relation to the annual budget”.
The Public Administration Committee has also emphasised the importance of parliamentary accountability and scrutiny of non-departmental public bodies. As the noble Baroness has told us, many similar constitutional bodies with a role in holding the Government to account, such as the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman, report directly to Parliament. So do other national human rights institutions, such as the Scottish Human Rights Commission, which is accountable to the Scottish Parliament. Other regulators, such as the Office of Fair Trading, also report directly to Parliament with the status of non-ministerial departments. The Government have recently published plans to make the Office of the Children’s Commissioner for England more accountable to Parliament. In future, that office will lay its own business plan before Parliament and will be expected to involve appropriate Select Committee chairs in developing its business plan.
In framing this amendment, we have taken account of many precedents that suggest the appropriateness of greater accountability to Parliament for national human rights institutions, both in terms of the advocacy of the Joint Committee on Human Rights and the Public Administration Select Committee and precedents constituted by the existence of a raft of other bodies, which report directly to Parliament. We have also taken account of the Belgrade principles in framing the matters which we think ought to come before parliamentary scrutiny. I hope that the Committee will feel that this amendment is very much in keeping with the way in which these matters have been developing over the past few years, and that we have framed the amendment by taking full account of the issues which it is suggested should form the subject of parliamentary scrutiny. I am happy to support the amendment.
Baroness Hussein-Ece
My Lords, I, too, have put my name to this amendment to move towards greater direct parliamentary accountability for the Equality and Human Rights Commission. As the noble Baroness, Lady Thornton, said, this could be advantageous as a tidying-up exercise. It needs to be done. Given all the criticisms that the commission has faced from individuals and others, some of which have been about its accountability to Parliament, I am slightly disappointed that the Government, in drafting these various changes, did not take the opportunity to look at making the commission better able to fulfil its mandate as Britain’s equality regulator and national human rights institution in accordance with the Paris principles, as the noble Lord, Lord Low, said.
Unfortunately, the commission has come under sustained attack. Some of that has been quite intense and some of it has been justifiable, but a lot of it has been rooted in the past and has not recognised the work that the commission has done, how much progress has been made and how much the commission has moved on from those early years when the three organisations came together.
In terms of greater accountability, I think that what is proposed would be desirable. It would ensure greater transparency and openness. It would assist the commission in its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations. Parliamentary accountability would provide the commission with more independence from the Government in order to fulfil this role rather more impartially. At the moment, we do not have the best of both worlds. The commission is partly accountable to the Joint Committee on Human Rights and it is partly accountable to the Minister through the Government Equalities Office. As the noble Baroness, Lady Thornton, said, that relationship has not always been positive; it cannot be deemed to have been a successful relationship.
There has been turbulence as a result of reorganisation. With each reshuffle—every couple of years, it seems—the equalities unit and, by virtue of that, the commission have been shunted about. I think that it is on its fourth or fifth government department. As was said, it was initially under the Department of Trade and Industry, then the Department for Communities and Local Government and then the Department for Work and Pensions; then it was standalone and now it is with the Department for Culture, Media and Sport. That does not provide the organisation with the stability and continuity that are needed. These constant changes have in some respects been detrimental to the commission’s work and some of the blame for that has to lie at the door of the last Government, as has been acknowledged.
There have also been problems with the sponsoring department. The commission has never had, certainly in the three years when I served there—others may bear me out on this—the independence to act as other non-departmental public bodies have been able to. For example, permanent senior appointments have always been at the behest of Ministers giving the go-ahead. I found myself in the situation when, after the Daily Mail, the Daily Telegraph and other newspapers criticised how much was being spent on consultants for temporary positions, we advertised at great expense for a permanent chief executive. That was then stopped because, for whatever reason, it was not deemed to be the right time. That meant that there was another delay. The acting chief executive continued and it was a couple of years before we had a permanent chief executive in place. The same has happened with other senior appointments when the commission was not given permission by the Government Equalities Office, through the Minister, to appoint a permanent director for various positions. It was quite unfairly pilloried in the media for wasting public money when it did not have the independence to make such appointments. If we are going to have an organisation which we want to be independent and robust, it has to have freedom in that regard.
In order to retain the commission’s “A” status as a UN accredited national human rights institution, it needs to be assured and shored up. On occasion, there have been letters threatening to remove the “A” status of the commission purely because of activities from government departments that have been outside its control. It is time to allow the commission to have the consistency, the stability and the independence that it needs but also to be robustly accountable to Parliament. Models for other regulators and national human rights institutions have already been mentioned. There are others, including Her Majesty’s Inspectorate of Constabulary, the Parliamentary and Health Service Ombudsman, and the Electoral Commission, which we could look at and which work perfectly well.
Accountability to government would allow the commission to work across government bodies. That has been a problem, particularly when the commission has wanted to look at issues which do not come under the remit of the sponsoring committee or department. There have been problems about working cross-department as well. This proposal would give it the freedom to do that and would satisfy the Cabinet Office test for independence and accountability against which all public bodies are reviewed every three years. It would also allow the commission to formalise relationships and fulfil its mandate as a regulator, which it has not been able to do. I strongly recommend that the Government look at this and I will be very interested in what the Minister says in reply as to whether the Government will look positively at this.
I know that in previous discussions—I am grateful that the Minister has made herself available for discussions and briefings—the Government have not felt that this is an issue and that it should not be touched. It is interesting that for other things legislation is needed, whereas, so far, something that would make this organisation far more accountable is not deemed to be needed, although I am hoping to hear a more positive reaction today. The appointment of the chief executive and of commissioners would be subject to parliamentary ratification. For those who have followed some of these things in the media recently, the last tranche of appointments of commissioners has not been exactly exemplary and probably would not have been tolerated at other organisations.
In terms of the commission being directly responsible, it could respond directly to parliamentary questions rather than the Government responding on the commission’s behalf, which is the problem at the moment. The commission’s budget also could be set by Parliament, rather than the arcane situation that exists. I seem to remember that as late as the end of February/the beginning of March of this year, the commission still did not know its budget for the coming financial year, which would be unheard of at any other organisation. I strongly endorse this amendment and believe that it could strengthen the independent requirement in Schedule 42 to the Equality Act 2006.
Lord Lester of Herne Hill
My Lords, I am sympathetic to the object of the amendment. I just want to supplement that great summary of the history given by the noble Lord, Lord Low, by adding one or two aspects.
When the previous Government introduced the 2006 Act, I was was pressing for something on exactly these lines and I was concerned about the Paris principles. Thanks to the creativity of the noble Baroness, Lady Ashton, in particular, we were able to write into that Act some guarantees of the independence of the commission which are still there and I am delighted to see will remain. We removed all the bossy, ministerial interference provisions that were originally in the 2006 Act and that would have given powers to Ministers to intervene all over the place in the commission’s work. All those were wisely removed by the previous Government. We then introduced an express provision stating that Ministers were not allowed unnecessarily to interfere with the commission—that is still in the 2006 Act. We also introduced an obligation on the Minister to make sure that enough funds were available to ensure that the commission could carry out its work effectively in accordance with its statutory duties. We also introduced a merit requirement for appointments. All those are still there.
One of the great problems, however—it has been referred to by my noble friend just now—is that the commission when it was set up became the orphan of Whitehall; that is, no major government department was willing to take responsibility for or ownership of it to give it the backing that it really needed. I can say as someone who was the unpaid independent adviser to the previous Government’s Minister of Justice and Lord Chancellor, Jack Straw, that I was unsuccessful in persuading the previous Government that the Ministry of Justice should take charge of this area, because, frankly, the civil servants at the time did not want to know. And so, a strange floating kidney was set up instead. It was not a proper department and it did not have any of the power and influence of a major government department. That led to all kinds of managerial and other failings from the beginning through lack of proper back-up within the Administration. This was not just the fault of Ministers; it was more a fault of senior civil servants, including a Permanent Secretary whom I went to, who said that they would rather not want to know, thank you very much, because it was too difficult or too hot a potato.
That is part of the background. As the noble Lord, Lord Low, has indicated, the Joint Committee on Human Rights on which I serve has several times advocated that there be proper parliamentary accountability, not only because of the Paris principles but because it is healthy in a parliamentary democracy with a body of this kind for there to be a proper relationship.
One thing to have changed since we on the JCHR made those reports is the appointment of the new chair, whom I am delighted to see in her place, the noble Baroness, Lady O’Neill. Her appointment was made only after the Joint Committee on Human Rights interviewed her and came to the conclusion that she would be admirably well qualified for the post. Another change is that the Joint Committee will now have the main responsibility for the work of the commission; it will not be split, I think, with the House of Commons committee. We are a Joint Committee of both Houses comprising six Peers and six MPs; we cannot be controlled by Government because one of us is a Cross-Bencher—we are the only parliamentary committee of which that is true—and we are not tribal or party-political in the way in which we conduct ourselves. We have real expertise going back for more than a decade.
Baroness Hussein-Ece
I want to come back on one point, if I may. In 2003 the Joint Human Rights Committee had three reports, and one of the clauses said that,
“as a guarantee of independence … Parliament should be directly involved in setting the budget of the commission”.
Can the noble Lord clarify that he said he could not see the point in that? He seems to be contradicting what the report said.
Lord Lester of Herne Hill
I was talking about an idea that I thought was being suggested—not that there be some kind of consultation but that Parliament itself, or a parliamentary committee, should agree and set the budget, rather than that being done by the Treasury and the responsible government department. Of course, it is possible to have consultation by a parliamentary committee on the size of a budget and how it is to be spent, but under our system of parliamentary government, it seems to me that the ultimate responsibility for deciding on the budget and ensuring proper accountability is through the accounting officer—normally a Permanent Secretary in charge of the department, who is then accountable to Her Majesty’s Treasury and to Parliament. We tried all of that when we looked at the Judicial Appointments Commission; we tried to ring-fence the budget of the Judicial Appointments Commission and of the judiciary as a whole, but failed to do so for similar reasons.
I am sympathetic to the idea of parliamentary involvement and accountability. All that I am suggesting is that the way forward is to encourage the Joint Committee on Human Rights, if it is willing to do so, with the consent of the Government, if they are willing to do so, to develop new protocols that will allow this kind of accountability to occur. I am sympathetic with the object, but I do not think that the amendment is the best way forward. Similarly with regard to annual reports, there is no reason why there should not be a report that is then scrutinised and discussed with the commission by the Joint Committee on Human Rights. It seems to me to be better to have an existing piece of expert machinery than to create a new Joint Committee of both Houses without purpose.
I say all this with no authority; I do not speak for the Joint Committee on Human Rights. It has not considered that; nor do I have any idea of whether the Government is be sympathetic. I am a member of the committee suggesting that as one way forward.
Lord Deben
My Lords, as somebody who is also very sympathetic to the purpose of the amendments, I follow my noble friend’s thoughts. I declare an interest as chairman of the Climate Change Committee. We have a very independent situation—more independent than any of those mentioned earlier by my noble friend. The whole question of budgeting is very delicate and difficult.
If you insist that the budget should be discussed in detail in a nitty-gritty way, it makes it almost impossible to be independent, because independence is about how you use the resources that you have. It is bad enough being at the behest of Government as to how much money you may have—there are always arguments about that. You say, “If I am going to do this job, I need this amount”, and the Government will always want you to do it for less. Those arguments go on, inevitably, because the paymaster is always, in the end, the public purse. I think that my noble friend Lord Lester is right to say that the amendment would add to that yet another inappropriate level. However high-minded a committee may be, it is difficult to understand the balances that have to be made. It is like any business, it is difficult.
I hope that the Government will take on board the concerns which the amendments evince. I hope that they will understand that the proposals added by my noble friend Lord Lester: not only that the role of the Joint Committee will be seen by the Government as useful but that the Joint Committee will turn out to have the same view of its purpose. That seems a sensible way forward. I hope that the amendments, which are a good probing way into the issues, will not be pressed. I have to say how hard it is to be independent and run the system in the best way in the public good and still have to answer to five different sets of people who feel that they have, at least, advice to give. I hope that we will not go too far down this route.
Baroness Stowell of Beeston
My Lords, I am grateful for the opportunity to have this debate about the accountability of the commission. Picking up on what my noble friend Lord Deben said, there is real value in Committee in having probing amendments that allow issues to be discussed and explored. That is the whole point of this stage of scrutiny of legislation. I welcome that and will, with officials, carefully reflect on our debates on all the amendments today.
Going back to the original question put to me by the noble Baroness, Lady Thornton, about the “A” status of the commission, I know that she asked me this question in the previous debate and she may well have repeated it in her speech on this debate. I can say categorically that it is important for the commission to retain that status. I recognise that accountability is important to the perception of the independence of the commission, which is important to the status conferred on the commission by the ICC, but it is worth reminding ourselves that the commission has a status under the present arrangements.
All that being said, I think that it is possible to strengthen the accountability of the commission to Parliament. In the Government’s opinion, the solution to strengthening accountability does not lie in shifting roles, it is about responsibilities. It is about being clear and transparent about who is responsible for what and by when, and to invite closer scrutiny of the effectiveness of those arrangements. To say it another way, we want to make it clear who is responsible for what, so that people can see as clearly as possible how we are carrying out our different roles and functions. That is why officials in the Government Equalities Office and the commission spent more than six months agreeing the framework document, which is publicly available on both their websites.
I know that there have been some teething issues in the implementation of the framework document which officials in both organisations are reviewing at the moment, but there is no dispute on the principles that the commission must be free to exercise its functions free from ministerial interference or undue influence and that the commission must comply with the same expenditure rules as every other public body. There is no doubt that progress has been made, as I mentioned in the last debate. Indeed, the commission has laid its first two clean sets of accounts before Parliament; there has been a 75% reduction in the commission’s reliance on expensive interim staff, a point to which my noble friend Lady Hussein-Ece referred; and the commission’s strategic plan was published promptly last April.
As I say, we are working to increase the transparency of the Government’s decisions on the commission to Parliament. For example, the appointment of the new chair—the noble Baroness, Lady O’Neill—to the commission was for the first time subject to pre-appointment scrutiny, and we have committed to send the report of the comprehensive budget review to Parliament, setting out the evidence base for the Government’s funding decisions—and by that I mean the funding decisions for the commission, which includes the funding for the GEO.
We are working with the commission to increase the transparency of its work to Parliament. The commission’s strategic plan, annual reports and accounts and progress reports are already laid before Parliament, and, indeed, Parliament has shown interest in its work, with the chair and the chief executive having been called to give evidence before a number of our committees.
As noble Lords speaking today have acknowledged, the commission reports to Parliament through the Minister for Women and Equalities. Although we support the commission having a closer working relationship with Parliament, we do not think that this requires a wholesale change in the reporting arrangements, which are in line with standard UK practice for non-departmental public bodies. I can refer to some examples where that is the case, including ACAS and the Independent Police Complaints Commission. My noble friend Lady Hussein-Ece referred to HM Inspectorate of Constabulary. I think it is true that that organisation is strengthening its accountability to Parliament. However, I think I am also right in saying that it remains, none the less, an organisation sponsored by the Home Office. The arrangement by which it is accountable to Parliament through the relevant Minister therefore exists there too.
As for how Parliament might strengthen its relationship with the commission, clearly it is for Parliament to decide how much interest it wishes to take in the commission’s work and indeed in the GEO’s sponsorship of the commission. However, we have made it clear that we would support the Joint Committee on Human Rights taking on a greater scrutiny role, for example in examining the commission’s business plan, which was indeed suggested by the noble Baroness, Lady O’Neill, in her pre-appointment hearing.
It is also worth noting the points that my noble friend Lord Lester made. I know that he caveated his remarks by saying that he does not speak for the committee in this context today. However, we certainly support the willingness on both sides for there to be a stronger relationship. We support that in principle and it is something that we would only encourage.
On the specific issue of the commission’s independence, it is worth saying that this is ensured by the Equality Act 2006, which provided that there is transparency around the commission’s role, relationship and responsibilities to government, which my noble friend Lord Lester has referred to. It is because it is enshrined in law that I believe we can be confident that the commission’s independence is properly protected. As I said, we support the strengthening of accountability to Parliament. We have already seen some improvement with the appointment of the chairman and we would certainly support an active dialogue between the chairman of the commission and the chairman of the Joint Committee on Human Rights.
Lord Low of Dalston
Before the Minister sits down, would she reply to the point made by the Joint Committee on Human Rights that the standard model for non-departmental public body accountability is not a sufficiently outward and visible guarantee of independence from the Government to be appropriate to a national human rights commission and, indeed, the points raised by the chair of the UN commission about the need to strengthen the commission’s accountability by making it more accountable to Parliament?
Baroness Stowell of Beeston
The simplest response that I can offer the noble Lord, Lord Low, is that we are in active dialogue with the ICC. My right honourable friend the Minister for Women and Equalities, Maria Miller, has exchanged correspondence with the ICC, as I know has the noble Baroness, Lady O’Neill. This dialogue has been very productive. As I said at the beginning, the commission has a status under its existing arrangements. Its reporting to Parliament has not been questioned when it was given its status. We are retaining its reporting to Parliament via the Minister but we are seeking to strengthen the transparency of its roles and to ensure greater scrutiny of its work, if that is something that the Joint Committee on Human Rights would like to carry out. I think that the combination of both those things will safeguard its status. I am not aware, from the correspondence with the ICC, that that is in doubt.
Lord Lester of Herne Hill
I was the one who above all raised the issue of the Paris principles in relation to the setting up of the commission in the 2006 Act and beyond. I have sat on the JCHR ever since. I have no doubt that it is not the function of the UN Paris principles procedure to prescribe precisely to each member state the nature of each relationship in order to satisfy the requirements of the principles. I suggest that the commission would not be treated in the same way as other public authorities, because it would have a continuous role through its chair and, if necessary, otherwise with a standing committee of both Houses that was expert in human rights and had an oversight function, in addition to its relationship with Whitehall. I would be amazed—although I will ask; we will see whether I am right or wrong—if the JCHR, having considered this, came back and said that it thought that that relationship was inadequate to satisfy the Paris principles. I would say that this is premature at the moment, but perhaps the right thing to do is to put it on the agenda of the Joint Committee on Human Rights next week.
Baroness Thornton
I thank the Minister and my supporters, the noble Lord, Lord Low, and the noble Baroness, Lady Hussein-Ece. I also thank the noble Lords, Lord Lester and Lord Deben. I think that we have made some progress with this discussion, which is what we intended to do.
The noble Baroness, Lady Hussein-Ece, gave us a very useful description of the practicalities and symptoms of the dysfunctionality in the relationship between the Government Equalities Office and the EHRC, and of the way in which it has impacted on the commission’s work and on its ability to do its job properly. It seems likely that the Government Equalities Office and the EHRC share the same budget source. That would be quite wrong, because they are probably fighting for the same resources. I ask that as a question that does not need to be answered now but which is pertinent.
It possibly answers the point raised by the noble Lord, Lord Deben, which I completely accept: that the reason that there were serious management problems was because the two organisations share the same budget line. Despite the assurances put into the 2006 legislation—the noble Lord, Lord Lester, was quite right about them—the relationship simply has not worked in some respects. That has been very important and a source of genuine regret. The discussion is about how we make these things work better and how we make sure that accountability works better.
I hope that the Joint Committee on Human Rights will have this discussion before the next stage of the Bill, because that will help us. If we need to discuss this at the next stage of the Bill, I hope that the discussion will be about what will happen in future and that we will get the discussion on the record.
Baroness Stowell of Beeston
I am grateful to the noble Baroness for allowing me to come back to her in writing on the question of budgets. There was one point on which I was not as clear as I ought to have been. I was reminded of something that my noble friend Lady Hussein-Ece said. I said repeatedly that the commission had “A” status under the current arrangements. As has been made evident in the debate, clearly there were problems in the past in the way in which the commission related to the Government Equalities Office. The relationship did not work as well as it needed to. However, what I sought to say on behalf of the Government was that the relationship had improved and continues to improve. We are in danger of shooting ourselves in the foot. We have “A” status under the current arrangements. We are improving what is wrong. We will continue to improve and put things right, so let us not put ourselves in a situation where we improve everything and then the ICC turns around and says, “We will remove your ‘A’ status because you keep telling us that the arrangements do not work”, when we have been able to show that recently they have started to improve and that we know how to improve them further—which is what we will do.
Lord Lester of Herne Hill
Perhaps I may add that the independence requirements that we wrote in were used by some at staff level on the commission to justify not being properly financially accountable. I was blamed by officials for having introduced the independence requirements on the ground that there was not proper accountability. Therefore, those at the UN who are considering the Paris principles will also consider that independence does not mean a lack of proper accountability. I make that point because that is something for which we all wish—I refer to financial accountability for the way that money is spent.
Baroness Thornton
I was not making that point at all but I absolutely agree with the noble Lord. The remarks of the Minister were helpful. I beg leave to withdraw the amendment.
Baroness Thornton
“Equality Act 2010: Equality Impact Assessment
(1) The Equality Act 2010 is amended as follows.
(2) In section 149 (public sector equality duty), after subsection (6) insert—
“(6A) A public authority shall make the following arrangements for compliance with the duties under this section—
(a) assessing and consulting on the likely impact of its proposed policies on the promotion of its duties under this section; (b) monitoring its policies for any adverse impact on the fulfilment of its duties under this section;(c) publishing the results of such assessments and consultations as are mentioned in paragraph (a) and of such monitoring as is mentioned in paragraph (b);(d) ensuring public access to information and services which it provides; and(e) training staff in connection with the duties imposed by this section.””
Baroness Thornton
My Lords, two of the strongest indications to date that the Government may be rowing back on the issue of institutional discrimination are the reviews of the public sector equality duty and of the requirement to undertake equality impact assessments that are under way. On the public sector equality duty, despite a recent public consultation in which 90% of the respondents were opposed to any change being made to the public sector equality duty, the Government have appointed a steering group to consider whether that duty performs as intended.
We are right to be suspicious. I hope that the Minister will be able to allay those suspicions, but, so far, she has not done so. The removal of that duty could lead to public organisations no longer being required to consider the wider impact of policy on marginalised groups, less than two years after the duty was introduced.
On the issue of equality impact assessments, the Prime Minister, David Cameron, announced at the CBI conference on 19 November:
“So I can tell you today we are calling time on equality impact assessments. You no longer have to do them if these issues have been properly considered. That way policy-makers are free to use their judgement and do the right thing to meet the equalities duty rather than wasting their own time and taxpayers’ money”.
That means that public sector organisations will no longer be required to undertake equality impact assessments as a means to fulfil their obligations as outlined in the public sector equality duty. Instead, those important assessments have been dismissed as unnecessary box-ticking, with no alternative suggested that will enable and ensure robust consideration of the impact of policy proposals on protected groups.
Each of those announcements presents its own challenge, but the two are also clearly correlated and, together, risk undermining the consideration of marginalised groups in policy development altogether. Without a duty “to have regard to”, the risk of neglect must be high. We believe that, instead of destabilising this important piece of legislation further, we should be seeking actively to strengthen it. That is the point of the amendment.
Rather than calling time on equality impact assessments, we should enshrine them in legislation. We therefore call for an additional amendment to be made to the Bill that will require public authorities to assess, consult, publish and monitor the likely impact of proposed policies.
The public sector equality duty, as set out in Section 149 of the Equality Act 2010, requires public authorities to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, as well as to advance equality of opportunity and to foster good relations between people who share protected characteristics and those who do not.
The new duty replaces the former race, disability and gender equality duties, the origins of which date back to the findings of the Stephen Lawrence inquiry in 2000, with a single duty that applies to eight protected characteristics: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. The public sector equality duty requires public authorities to assess the impact that changes to policy and practices could have on different protected groups, ensuring that those decisions are being made in a fair, transparent and accountable way, and in consideration of the needs and rights of different members of the community. It applies to public bodies across Great Britain listed in Schedule 19 to the Act and to any other organisation that is carrying out a public function. It having been in place for less than two years, repealing or significantly changing the duty now would be premature. A much better evidence base is needed before a decision is reached.
An equality impact assessment involves assessing the likely or actual effects of policies or services on people in respect of disability, gender and racial equality. Although equality impact assessments are not legally required, they have been widely adopted as an effective and efficient means for public authorities to undertake proper consideration of equal opportunities and are described by the authorities which use them as,
“a positive force for the delivery of real equality”.
In addition, case law suggests that those assessments provide robust evidence documenting how decisions were reached.
The recent announcement by David Cameron indicates that policymakers will be free to determine how the need to have due regard to equalities issues in policy development should be met. However, without robust alternatives to EIAs, that ambiguity could leave public sector organisations exposed to costly, time-consuming and reputation-damaging legal challenges.
Lord Low of Dalston
My Lords, I have already expressed my concern about the signs of the Government rowing back from the equalities agenda. I do not intend to go over that ground again, though I share the suspicions of the noble Baroness, Lady Thornton, which she has just expressed in moving her amendment.
In support of the amendment, I shall make two brief points. Doing away with the equality impact assessments would be a retrograde step—or “calling time” on them in the Prime Minister’s words. There are two reasons for this. First, they force people to think about marginalised groups who are often overlooked. Far from being a burden, these assessments have often been welcomed by people with responsibility for running organisations and providing services as helping them at the end of the day to provide a better service. Secondly, it is essential for the proper evaluation of the implementation of policy and for accountability that we should continue to have these assessments.
If we think about the role of EIAs in government, it may be convenient for governments to be able to avoid scrutiny, but it is not a very intelligent way to go about the rational development of public policy. It is rather an obscurantist Government who seek to avoid systematic evaluation of the impact of their policies. It would be helpful and a good development if the requirement to conduct equality impact assessments were to be written into statute. I support the amendment.
Lord Deben
My Lords, I have a different view about this. I will try to express it in the way that one does as one tries to run a business and is concerned with public activities as well. There is a danger that these discussions become polarised. There are those who feel that unless you write all this down in a precise way you can easily mix and miss the necessary duty to ensure that what we do in the public and private sectors is properly balanced so that services and provision are accessible to all. I am one of those who think that one has to be particularly careful about disadvantaged groups and those who are most likely to be vulnerable. I lean very much in that direction.
However, there is also the other side of the argument; namely, that sometimes we have got ourselves into so prescriptive a situation that it is very hard for people to get on with the job. I want to give an example which is sufficiently far in the past for it not to be seen as party political. When I lived in Ealing, if you wanted an extension into your roof, which a lot of rather big houses in the area wanted, you could not get the decision from the planning authority until it had been discussed by the sexual orientation committee and the racial committee. Something which obviously had nothing to do with either of those committees had to go through the format to deliver. What worried me was that it was the cause of considerable aggravation for people who just wanted an extra couple of rooms for their family. It did no good for people’s views about either sexual orientation or racial equality.
I have taken that example because it is extreme but it actually happened. It caused real problems and was promoted by the then governing party in Ealing as a wonderful example of how good it was on precisely these issues. I thought that it was a terrible example of how to distort and upset the very careful balance that you have to have between practicality and the important ethical issues with which we are concerned.
Therefore, my concern about the proposed new clause is that it can so easily lead to a simple system of adding to bureaucracy without achieving any end. The important thing is that all of us in our public lives and in our private business lives—leave alone our private lives—should seek to carry through our duties, whatever they may be—familial, business or public—in a way which constantly encourages us to ask, “Is this proposal one which disadvantages sections of the community?”. You have to be pretty careful about how you define those sections because sometimes people get left out. If you are not careful, you get a whole lot of other people added in because someone says, “Oh, you have that list, but there is this lot and another group and another set who we might have missed out”. I am much more interested in framing the legislation in such a way as to encourage people to see their duties in whatever they do in this context.
It is equally difficult to argue that we should have a note in here saying that everyone should carry out their public duties remembering that they have to tell the truth, or should carry out their public duties in such a way that they do not waste money, because, if you say that, you are assuming that people do not think of those two things if they are appointed to public office. I think that most people doing these jobs already consider them in this way. I would much prefer to look for a solution that encourages people’s training and makes sure that they have sensible ways in which to remind themselves of these importances without having these detailed requirements, which very often will be used as a necessary factor in things which really have got nothing to do with the issues that we are talking about.
There is an in-between, a balance, between these two positions. We have to be careful of producing an answer which says, “If you don’t agree with this kind of detailed listing, somehow or other you are less enthusiastic about equality than those who do”. I am very enthusiastic about equality—I have a record of fighting for it all across the board—but I have to say that I also hate bureaucracy: it makes people who are on our side in the first place less on our side because of what they have to do when what they have to do is unnecessary.
Baroness Hussein-Ece
My Lords, I think that it is true to say that there have been unintended consequences in the way that equality impact assessments have been applied in some instances. The views just expressed by my noble friend are widely shared in some quarters. However, I associate myself with this amendment in an effort to reform what we understand by equality impact assessments and to bring to them a sense of balance. I also want to highlight their importance and not lose sight of why we had to have them in the first instance.
Of course, there has been change. The Prime Minister mentioned that these assessments would be done away with, and there has been discussion of changing the terminology used from “equality impact assessments” to “analysis of the effects”. We need to be clear about how terminology is used in decision-making. We should focus less on the production of a document and more on impact. That needs to be clarified. More clarification is needed on intentions because it seems that government policy is veering towards getting rid of these assessments. Are we to understand that there is no longer a wish to know in advance about the impact of policies on different groups of people? If so, that needs to be said clearly.
There are concerns that too much time is taken in conducting spurious or inaccurate equality analyses, and perhaps many people conducting analyses have not always understood them. Proposed new subsection (6A)(e) refers to,
“training staff in connection with the duties imposed by this section”.
There seems to be a bit of a gap between what is expected and what should be produced at the end of the process—what we are looking for as an end result. How can we be sure that government policies do not have the effect of treating some groups of people less favourably than others if there is no evidence of consideration of the likely impact on these different groups?
A recent review of government policy suggested that there was little evidence that the impact on people had been considered when plans and proposals had been circulated. Surely we do not wish to see a return to the situation that prevailed between the late 1970s and the 1990s, when the duty under Section 71 of the Race Relations Act was applied only to local government and not to other public services such as the police. It is important to recall for the record that it was not until the Macpherson report into the murder of Stephen Lawrence that the public sector equality duty was extended to all public authorities and private organisations contracted to deliver services. Asserting that equality is being considered is not the same as providing evidence. The way the evidence is produced may be contentious. I have no problem with it being more streamlined and sensible.
My final comment is to highlight something positive that took place in the past two years. The Equality and Human Rights Commission, using its unique powers under Section 11, conducted an impact assessment on Her Majesty’s Treasury, among other government departments, to assess the extent to which the Treasury had met its legal obligations to consider the impact of the 2010 spending review decisions on protected groups. This was a really positive piece of work and I commend it the Committee—it is on the website and your Lordships can read it in the report. The work was embraced by the Government and government departments that have not done this before. It was a first instance; it had not happened under the previous Government and was the first report on this scale. It gave a set of recommendations for how to target spending to ensure more effective use of public money and greater fairness across government overall. It was a very significant work, so we have some good practice on how it can happen. I urge that we look at ways of reforming but retaining this very important legislation.
Baroness Stowell of Beeston
My Lords, I am grateful for the debate on this amendment. It might be worth saying for the record, and for the purposes of clarity, that the amendment that we are debating now is to Section 149 of the Equality Act and that the Bill in front of us does not propose to amend that bit of the Act. This is of course different from the general duty for the Equality and Human Rights Commission, which this Bill will amend. I say that because, as I said in an earlier debate today, it is important to keep reminding ourselves that the two are different things.
Let me say first that I understand the concerns raised in this debate but that I would put myself absolutely shoulder to shoulder with my noble friend Lord Deben in what he says. Like him, I absolutely support equality but I do not support bureaucracy, particularly because I do not want processes to undermine our ability to extend the support for equality beyond those of us who feel passionately about it. It cannot just be the same people who believe in equality; if we are to improve equality in our society, we have to get everybody on board. We need to be mindful of that in how we design our approach to achieving that end. We all want the same thing: the better consideration of equality issues by public bodies when they are designing services and policies. Where I think we differ, and this is obviously what we are debating, is the method for achieving it. I will explain why I believe this Government’s approach is the right one.
The implementation of the public sector equality duty in 2011 marked a significant change in approach compared to previous equality duties. We wanted to move away from the bureaucratic box-ticking and form-filling to make sure we make real progress on equality. I understand that we in the Government have to deliver on that outcome; that is what we will be judged on. We believe that this amendment would be a regression to the previous practice of too much process and bureaucracy, with not enough focus on real equality outcomes.
Because it has been referred to, let me refer directly to the speech made by my right honourable friend the Prime Minister to the CBI about equality impact assessments. This is really a point in response to my noble friend Lady Hussein-Ece, but what the Prime Minister was saying that day was that EIAs are not and never have been a legal requirement to ensure what we are committed to achieving, which is public services that do not marginalise or discriminate but which ensure that people are treated equally. They are an intensive resource that can take key staff away from planning and delivering better public services.
If that is not bad enough, worse, they are often produced after key decisions are taken, so they can be a sort of reverse-engineering exercise: a decision has been made and the decision-makers then go back and look at the equality impact assessment form, rather than thinking about the effect of their policy on equalities at the time of their forming it. For that reason, departments were asked to call a halt to the production of equality impact assessments. It was not of course to stop in any way their absolute requirement to have due regard to the public sector equality duty.
Public bodies should consider the potential equality impacts of their policies throughout their design and delivery. Records of this can be used as evidence of due regard to the relevant equality aim and there is no need to create additional unnecessary paperwork. The public sector equality review is taking place at this time but it is important to stress, going back to the point made by my noble friend Lord Deben, that we want to make sure that it delivers the outcome that we all seek to achieve. We feel strongly about it and we are absolutely committed to the need for the public sector to deliver policies and services that ensure an outcome in support of everyone. We want to ensure that it delivers that aim.
The noble Baroness, Lady Thornton, asked in a previous debate whether we would be taking evidence. We plan to hold a series of round tables that will allow us to gather evidence from the VCS, legal advisers to public bodies, equality and diversity practitioners, trade unions, inspectorates and the private sector. We are also developing a questionnaire to enable public service professionals to provide their personal experience of working with the duty. The involvement of the Equality and Human Rights Commission in the review is critical and, for this reason, the commission is represented on the independent steering group that oversees the review. We are also working closely with the commission as we develop the evidence-gathering for it. The noble Baroness referred to the Schneider Ross research. In evidence-gathering to date, so far we have focused on analysing existing research and case law, but we will look closely at that research as part of this. I realise that we are keen to make progress, so I hope that in this short debate I have given the noble Baroness enough reassurance for her to withdraw her amendment.
Baroness Thornton
I thank the Minister for her remarks and, indeed, I am also mindful of wanting to make progress. I also thank the noble Lord, Lord Low, the noble Baroness, Lady Hussein-Ece, and indeed the noble Lord, Lord Deben, for their remarks.
Experience tells us—this is partly based on the very wise remarks of the noble Lord, Lord Deben—that while public bodies and people know that they must have financial probity and regard to the truth, they do not always know that they have to understand the impact of their decisions on different groups. We have mountains of experience telling us that people simply do not think about the impact of the decisions that they take on disabled people or other groups. That is why we have this legislation and why it is so important. I will read the comments made by the noble Baroness, and we will then decide what we want to do next. I beg leave to withdraw the amendment.
Baroness Thornton
“Equality Act 2010: caste discrimination
(1) Section 9 of the Equality Act 2010 (race) is amended as follows.
(2) In subsection (5) for “may” substitute “shall”.
(3) After subsection (5)(a) insert—
“(5A) A Minister of the Crown may by order—”.”
Baroness Thornton
My Lords, in moving this amendment I declare an interest as the Minister partly responsible, along with my noble friend Lady Royall, for supporting the amendment to the Equality Act 2010 to give power to the Minister to add caste as a strand of race discrimination in the Act, following a period of research to establish whether caste discrimination exists in the UK and requires a legislative response.
That research took place. It was conducted by the National Institute of Economic and Social Research in 2010. In the past two years, the Government have failed to act. What is even worse—I hope to stand corrected by the Minister if I am wrong—they have failed to discuss with or consult effective groups and organisations in all that time.
The report that I referred to states clearly on page 48:
“Firstly, the overlap between religion and caste. Some of the cases might have been either caste or religious discrimination. This does not mean that caste discrimination laws would be redundant. Ravidassias and Valmikis may be protected under religion or belief discrimination laws. However, low caste individuals of other religions or none will not always be covered, nor would the harassment using offensive caste language. Thus, without legislation specifically prohibiting caste discrimination, such discrimination would only be partially reduced by law”.
Most recently, the EHRC stated:
“The … Commission supports the enactment of Section 9(5) of the Equality Act 2010, which provides that a Minister may by order amend the statutory definition of race to include caste and may provide for exceptions in the Act to apply or not to apply to caste. The Commission notes the findings of the government-commissioned National Institute of Economic and Social Research … paper on caste discrimination. In light of this, the Commission would suggest legal protection under the Equality Act 2010 for those experiencing discrimination in Britain should be as comprehensive as possible”.
During the past two years, despite questions and requests, the Government have ducked the issue. They have said that there is no consensus on it. However, the organisations that deny discrimination—the Hindu Council and Hindu Forum—do not like and have never liked the proposals, and it is not surprising that they resist change. They pray in aid an exchange of letters between the noble Lord, Lord McNally, and the research organisation—I wonder whether the Minister is familiar with it. In September 2012, Dr Hywel Francis MP, chair of the Joint Committee on Human Rights, received a letter from the Minister, the noble Lord, Lord McNally, stating:
“This is an emotive issue in which the considerations as to whether to legislate or not are finely balanced. For instance, as I have indicated, there is no consensus of opinion among the wider Hindu and Sikh communities as to whether such legislation is necessary. You also mention the evidence that is currently available through reports such as the NIESR report from 2010. While the NIESR report considered that: ‘Evidence of [caste] discrimination and harassment was found’ it also acknowledged that ‘proof either way was impossible’. Ministers are therefore considering the arguments presented by a range of stakeholders together with whether legislating would be a proportionate response to the significance of the problem and the scale of the issue domestically”.
I have two things to say on this. First, the letter sent to the noble Lord, Lord McNally, by the director of the research body concerned was completely clear in stating that,
“I think it would be useful to clarify our conclusions from the study, as your two quotes may leave some confusion. Our statement that ‘proof either way was impossible’ was a philosophical point over the nature of knowledge and proof. Unless a discriminator admits to discrimination, one can rarely be certain discrimination has occurred. This equally applies to, for example, race and sex discrimination, the existence of which we do not doubt. Notwithstanding the philosophical point, the evidence strongly suggests that caste discrimination and harassment, including of the type which would fall under the Equality Act, exists in Britain. I hope this clarifies our findings”.
Secondly, the bodies which do not want this legislation are part of the reason why such discrimination exists, so of course they do not want it. I therefore think that the ambiguity in that report has been cleared up.
On the discussions that have taken place, I understand that the noble Lord, Lord Dholakia, hosted a meeting between Ministers and the Hindu Council and Hindu Forum in 2011, soon after the report was published. However, neither the alliance that is fighting caste discrimination, the ACDA, nor, to my knowledge, any stakeholders representing victims of caste-based discrimination were invited to that meeting. I also understand that the response of the noble Baroness, Lady Verma, to Parliamentary Questions—one of which was mine—in which she stated that there was no consensus on using Section 9(5) was based on views expressed at the meeting convened by the noble Lord, Lord Dholakia. I also understand that when the two Ministers—Lynne Featherstone and the noble Baroness, Lady Verma—attended a meeting of the alliance in January 2011, they refused to comment on the report’s findings.
The need for legislation is clear. Existing religious discrimination legislation only partially covers caste discrimination. Reliance on this was deemed inadequate. There is a real danger, if the UK Government do not accept and deal with the issue of caste discrimination, that the problem will grow unchecked, with devastating consequences for thousands of people in the UK. The report by the National Institute of Economic and Social Research contends that relying on the Indian community to take action to reduce caste discrimination and harassment will be problematic. Instead, it recommends that legislative steps be taken to provide redress for victims.
I hope that the Minister will accept the amendment. It is very simple and it would right a great wrong. However, if she does not feel at this point in the Bill that she can accept it, fairness, justice and truth will be served if she agrees, with her ministerial colleagues, to meet the ACDA and other organisations that have been consistent and vigilant in their search for equality for Dalits in the UK. The Government owe them the courtesy of a hearing. I beg to move.
Lord Harries of Pentregarth
My Lords, in supporting the amendment, I remind noble Lords that when Section 9(5)(a) first came before the House, it had significant all-party support. I refer noble Lords to a statement by the noble Baroness, Lady Warsi, on 11 January 2010, reported in col. 341 of Hansard.
The previous Government sensibly decided that they needed to test the evidence. They commissioned the most reputable body in the country to examine the issue. It came up with a clear statement that there was evidence of discrimination on the basis of caste. I will repeat briefly its summary. The study by the National Institute of Economic and Social Research stated:
“The study identified evidence suggesting caste discrimination and harassment of the type covered by the Equality Act 2010 in relation to … work (bullying, recruitment, promotion, task allocation) … provision of services … and … education (pupil on pupil bullying)”.
There is an important qualifying note that states:
“Pupil on pupil bullying is not directly covered by the Equality Act 2010. However, the actions of a school may be covered where it deals with bullying in a particular way because of a protected characteristic (e.g. race, sex)”.
So the most reputable body in the country for this kind of research produced evidence of discrimination; we should be quite clear about that.
What does this mean in practice? I made a point of interviewing somebody who claimed that he had been discriminated against on the grounds of caste. He had trained in India in the medical field and was extremely well qualified. He came to this country and worked in the NHS. Everything went fine for a year with the man’s job. Then he applied to his supervisor for leave to go home for a family wedding. His supervisor inquired where he lived, and who his family and other contacts were. From that moment, the relationship changed totally. The person in charge clearly felt that this man’s family and caste were beyond the pale. Life was made absolute hell for him. He took his case to the trade union, which said that he had certainly been discriminated against on the grounds of caste but that there was nothing in legislation that would enable it to bring a case on those grounds. He had to leave his job. I am glad to say that he got another job in the NHS which has gone extremely well. This person was extremely well qualified and well balanced. I was absolutely convinced that he had suffered discrimination on the grounds of caste alone.
The main question before the Committee today is: why have the Government delayed on this for two whole years? I can quite understand their initial response that they needed time to think about it, but why two years? There seem to me to be three possible reasons. The first is a general reluctance to legislate and the realisation that there is a major educational problem to be tackled. Would not the Minister agree that one major tool of education, as we have seen in the issue of race relations, is good law? No one can doubt that the law on discrimination on the grounds of race has had a powerful educational effect. Secondly, people speculate that there is pressure from India. India has very good legislation in theory about that; the problem there is in implementing it in practice. India has good legislation. I see no problem coming from India. On a recent parliamentary visit there myself, I inquired about that but could find no evidence for it. Thirdly, people say that opposition must be coming from some people. Where is that opposition coming from? I must report that there have been increasingly unsatisfactory replies from the Minister in charge of this area. An expression that keeps occurring in letters is,
“those communities potentially most affected … by the introduction of legislative protection against caste discrimination”,
could affect,
“a wide range of Hindu and Sikh communities, not limited to those of any particular caste.
The noble Lord, Lord Avebury, has puzzled over this. We wondered what the implication of this would be for race relations or abolishing apartheid in South Africa. Are we to say that we should not have abolished apartheid in South Africa because other people in the country might be affected by the legislation? That seems absurd.
A letter from the noble Baroness, Lady Prashar, was answered by the Minister on 17 May 2012 in which she tried to clarify what was meant by that. After the phrase which I have cited, she said:
“The legislation does indeed refer to ‘caste’ in general, not to any specific caste. Its coverage would therefore be significantly wider than simply an alleged discrimination against the people of the Dalit communities by other, higher-caste Hindus and Sikhs. Against this background, I do not feel it is helpful to partition the debate into ‘victim’ and ‘perpetrator’ communities or to read such meanings into the phrase ‘those communities potentially most affected’”.
Very briefly, there are two points to be made here. First, however widely this might be interpreted, we cannot get away from the fact that there are victims and people who are perpetuating this discrimination. That is a fact. Secondly, even if it does extend more widely, if that discrimination on the grounds of caste, by whatever caste or whatever other caste, offends what is in the 2010 Act—issues of education and the public provision of goods and services—it must still be made illegal. Indeed, it could be interpreted more widely, but if discrimination occurs against another kind of low caste, in Indian terms, rather than the Dalits, we surely ought to try to stop it. I find the answers in those letters increasingly unsatisfactory.
Finally, there is widespread support from other communities. The Equalities and Human Rights Commission has made it clear that it supports the amendment. There is strong support from all the UN bodies. I will not cite them because of shortage of time. We have to set this against the worldwide background. My view is that the discrimination against Dalits is an even worse evil than the worst excesses of apartheid. It is even more humiliating in some ways and it is occurring on a much wider scale. There are 270 million Dalit people in the world. We know that in this country there are 200,000. We have to set it against that kind of background. Therefore, it is desperately important that we include in our law in this country, and make it quite clear, that discrimination on the grounds of caste is totally unacceptable. That is the view of the whole range of Dalit organisations in this country.
I very much hope that the Government will be able to claim the credit of accepting the amendment which we are putting forward today.
Lord Avebury
I pay tribute to the noble Baroness, Lady Thornton, for her sterling work in getting Section 9(5)(a) on the statute book. In 2010, I moved the amendment with the full support of the Government after a meeting attended by large numbers of people representing the anti-discrimination organisations up and down the country and at which the noble Baroness, Lady Thornton, was present. I think that she was suitably impressed by the unanimity of the views expressed at that meeting.
I should also like to pay tribute to the noble and right reverend Lord, Lord Harries, for his sterling work as chair of the All-Party Group for Dalits and for the support that he has always given to the promotion of this provision in the Equality Act. I have worked out that it is nearly three years since the House agreed to insert that provision into the Equality Act, giving the Government the power to add caste to the list of protected characteristics. The Anti Caste Discrimination Alliance had presented evidence that caste discrimination existed in the UK, and the Dalit organisations represented by the ACDA and CasteWatchUK had unanimously requested Parliament to act on the matter. Giving the Government this power was a first step, followed rapidly by, as we have heard, the commissioning of the National Institute of Economic and Social Research study, to confirm what the ACDA had already discovered. The results were published on 16 December 2010 and indeed it found the required evidence, although I am sorry to say that the study was a fairly perfunctory exercise. Even so, it produced the required evidence of discrimination.
When the Government were first asked for their reaction to the NIESR report, they were cautious, but immediately indicated that the coalition was looking for ways of avoiding the issue. They said that this was a different Government from the one that had commissioned the NIESR study and that it had to be considered in the context of their own equality strategy. They needed to consider whether activating Section 9(5)(a) would be “reasonable and proportionate”—words that are repeated in most of the Government’s pro forma statements since then—bearing in mind that a lot of people would be affected by it.
Of course, if there is a great deal of caste discrimination, a lot of people would be affected, but we had understood previously that there were doubts about the existence of discrimination. Now there was at least tacit acknowledgement that this “abhorrent practice”, as the Government called it, was occurring here. But the noble Baroness, Lady Warsi, seemed to have already made up her mind that legislation would not deal with the issues behind it. Equally, one could say that legislation did not stamp out the societal roots of racism, misogyny or homophobia. However, it was the main tool for dealing with the overt manifestations of prejudice and a powerful signal of society’s disapproval of the underlying ingrained attitudes of hatred and prejudice against the other.
Having acknowledged that caste discrimination exists, it would be grossly illogical to forgo the use of a weapon against it that is proving effective in the case of all the other protected characteristics in the Equality Act; that is, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, and sex and sexual orientation. I suggest that there would have to be some reason of principle as to why caste should be treated differently from all those other characteristics. Of course, there is none. We have to analyse the statements of Ministers both verbally and in writing to see what the Government’s real motives are.
Lord Deben
This is not a repeat of the same cast on this subject—I did not mean that and I beg noble Lords’ pardon. I say to the Government that the noble and right reverend Lord, Lord Harries, was too kind about the previous Government spending time thinking about whether there was enough trouble here to necessitate legislation. I find it utterly impossible to explain to somebody how it is that in this country we do not apply an absolutely clear rule that people are not discriminated against because of what they are—from people who are homosexual at one end to people who are of a particular colour at the other, or people who happen to have particular views. All of them become vulnerable unless we hold to that view, because we are all a bit odd in one way or another. We expect to be treated perfectly properly whatever our position, background, colour, sexual orientation or anything else.
It is impossible—this is a very difficult thing for a politician to say—to build a case for suggesting that caste is different from any of these other things. Having been a Minister for longer than most, I am always suspicious of Ministers who write letters in which certain sentences are almost incomprehensible. It means that they do not want to write the sentence that they ought to write because they suspect that if it is comprehensible people might think that it is not adequate. I make no such claim in these circumstances. However, those of us who listened to the noble and right reverend Lord, Lord Harries, read out a sentence, had some difficulty in understanding what it meant—whether or not we believed that it might mean something with which we might agree.
All that I say to Ministers is that there are no formulations. Whatever may have been written down, there are no formulations which can get out of the simple statement that it is wrong to discriminate against people on the basis of their caste. I want to say something even tougher. The standards of our nation are not up for grabs. If people want to live in this country according to any system they have to accept the fundamental standards that we have. If you really want to cause difficulties, you do so by saying that “this is a very old view of theirs”, and they have it and it may be pretty nasty: I am afraid that that is not on. In this country we treat everybody equally and properly. That is the basis of our democracy. We cannot accept anything less than that. I do not care what organisation thinks differently.
You could go even further with this argument. You could argue that the positions of all sorts of totalitarian regimes are acceptable, because you can still find some people who support them. But you cannot possibly argue that, and we should not. I hope that the least that the Minister will be able to say is that although this may not be precisely what she wants, she will go away to make sure. I think that there is an overwhelming majority in this House and in the other House who say that caste cannot be treated in any way that is different from race or sexual orientation.
Baroness Stowell of Beeston
My Lords, we have had another powerful debate and the speeches have clearly been impassioned and important. As this issue is so important, the Government have given careful consideration to whether the power in the Equality Act 2010 that would make caste an aspect of race should be exercised.
Let me be clear. We do not think that anyone should suffer prejudice or discrimination, whether because of caste or of any personal characteristic. Such behaviour is wrong. It should not be condoned, whether or not it is prohibited by legislation. However, before bringing in legislation, a responsible Government will ensure that that is the most appropriate way of tackling a specific problem; that the solution does not go substantially wider than the problem that it is meant to address; and that it does not create needless red tape, additional and unnecessary cost burdens for business. That is the essence of what this Bill is about.
Turning to the NIESR research, I am aware that it suggests that some caste discrimination and harassment may exist in areas covered by discrimination legislation. The report also states that it is impossible categorically to determine whether caste discrimination within the meaning of the act has occurred:
“Proof either way was impossible, particularly because evidence was gathered from a single person only”.
That is not saying the same as that there is now a compelling case to legislate. Using the letter of my noble friend Lord McNally, the noble Baroness, Lady Thornton, made her point about whether NIESR had shown that discrimination had occurred. We do not believe that the debate turns on whether there is any discrimination on caste grounds. The debate is about whether legislation is a proportionate response, given the range and nature of the problem.
In response to the noble and right reverend Lord, Lord Harries, we are not resisting legislation in deference to high-caste views. We are wary of adopting a legislative approach, because we are concerned that that would not be a proportionate solution. The noble and right reverend Lord’s analogy, relating as it did to race, is not therefore appropriate. That said, we must consider whether legislation is necessary. There are examples in the NIESR report of incidents, such as vandalising property or threatening behaviour, that may constitute criminal activity and so would already be captured by domestic law.
Your Lordships should—and, I am sure, do—bear in mind that once legislation was enacted, ensuring the prevention of caste discrimination would become the legal responsibility not just of every public authority but of every private employer, service provider and school throughout England, Scotland and Wales, irrespective of their size or location and of whether they had ever encountered caste or even knew what it was. While I understand the arguments made by my noble friend Lord Deben—
Baroness Stowell of Beeston
I will finish the point that I was about to make. It is not that the legislation would catch all of those public bodies; it is that the process of ensuring that they are properly familiarised to comply with the law could, in our view, be disproportionate to dealing with the discrimination that we are discussing.
Baroness Thornton
My point relates to “disproportionate”. We have legislated in our discrimination law about Travellers. There are actually not very many Travellers in this country but they suffer terrible discrimination. There are thousands of Dalits living in the UK who potentially can be discriminated against, so I am not sure what the proportion is that the noble Baroness is referring to.
Baroness Stowell of Beeston
The noble Baroness makes a helpful point in drawing a comparison with Gypsies and Travellers. It is domestic case law, not specific legislation, that has determined what we are discussing for Romany Gypsies, Irish Travellers and Scottish Gypsy Travellers. They are distinct racial groups who are covered by our equality legislation. It is case law that has done that, rather than legislation.
Lord Deben
As the Minister referred specifically to me, I will say that I have great difficulty with “proportionality” here because it seems to me that if one person is discriminated against, I have a duty to protect them. I do not understand proportionality in these terms. If the law does not reach a position in which someone is found to be discriminated against in the serious ways we are talking about, we had better put it like that. To say that it is disproportionate is like saying—let me be very blunt—that if not many people are murdered, we do not actually need to have a law on murder. I am sorry, we do; it is not acceptable. It is the one area where disproportion is not credible. This is what really worries me about this argument.
Baroness Stowell of Beeston
I understand the point that my noble friend makes, but it takes us back to the point about evidence. I refer again to the NIESR research, which suggests that some caste discrimination and harassment may exist but also says that,
“it is impossible to categorically determine whether caste discrimination and harassment within the meaning of the Act has occurred”.
Lord Avebury
I am so sorry to interrupt the Minister again; I know that she has been very patient. However, if the argument is that you do not deal with this problem because very small numbers of people are discriminated against on the grounds of caste, what does she have to say about gender reassignment, which is one of the protected characteristics? Should we have avoided placing gender reassignment on the list of protected characteristics because not many people are affected by it?
Baroness Stowell of Beeston
In simple terms, the protected characteristics are characteristics that we all share; we all have a sex, a race and an age. I think the point in dispute was debated on previous legislation.
I will conclude by saying that we have thought long and hard about this legislative power and about why making this change in a Bill designed to encourage enterprise and streamline regulation would be inappropriate. However, I am very happy to accept the noble Baroness’s proposal of a meeting. We also acknowledge that uncertainty as to what is to happen on the issue of caste discrimination in Great Britain helps no one.
My noble friend made reference to the letter that he received from my right honourable friend Maria Miller and her reference to the fact that we expect to be able to make a fuller announcement on the Government’s intentions on this matter shortly. I certainly will do all in my power to ensure that, as far as is possible, we do so before we get to the next stage of this Bill.
Lord Harries of Pentregarth
The Minister has quoted a couple of times from the report to the effect that it was not clear that this particular form of harassment was carried out on grounds of caste. If she looks at the report, I think she will see that that refers to something quite specific and in no way undermines the overall conclusion that there is clear evidence of discrimination on the grounds of caste. I think she will find that that uncertainty about caste refers to a particular kind of harassment. It does not undermine the main findings. In the light of her reply, I wish to go back to the evidence that I gave just now about my personal interview with someone who clearly had been discriminated against on grounds of caste. When they went to their union adviser, while they were very sympathetic, the union adviser said that a case could not be taken on the grounds of caste because it was not in the law. Will the Minister suggest on what grounds that person should therefore go to law if there is no law at the moment which applies to a person’s being discriminated against?
Baroness Stowell of Beeston
Without the full facts of the case, I am afraid that it is not possible for me to respond to an individual case in that way. The best I can do is, as I have indicated, to say that I am very happy to have a meeting to discuss matters further outside the Committee. However, I know that it is important that we now draw the debate today to a close.
Baroness Thornton
I say a big thank you to the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Avebury, because I am honoured to be fighting alongside them again—the old team is back. I also thank the noble Lord, Lord Deben, enormously for his comments. I remember some issues from when I was a Minister—I think “contaminated blood” was the one that haunted me. The Government just got it wrong: we got it wrong all the way through. This Government came and dealt with it in the way in which my Government should have done. This is one of those issues. The Government are getting this wrong and they need to remedy it. I have enormous respect for the Minister and I am very grateful that she has agreed to have those meetings. I am hopeful that when we have those meetings we will make some progress. I beg leave to withdraw the amendment.
House of Lords
(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text
Participation of Arabs in Public Life
(11 years, 9 months ago)
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Lord Lea of Crondall
To ask Her Majesty’s Government, in the light of the recent census results in which 240,000 respondents described themselves as “Arab”, what plans they have to promote the wider participation of Arabs in public life in the United Kingdom.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, we warmly welcome the contribution of Arabs to public life in the United Kingdom and the formal recognition of this group in the 2011 census. The Government’s integration policy document, Creating the Conditions for Integration, sets out our approach to successfully bringing together local communities. We will continue to support the integration of Arabs and all other groups into mainstream communities and their participation in local life.
Lord Lea of Crondall
My Lords, I thank the Minister for her reply. She is particularly well qualified, if I may say so, to help take this sort of issue forward. Perhaps she will comment on two further aspects. First, can local authorities with substantial Arab communities benefit from experiences in different parts of the country of holding seminars and cultural events where Arab participants play a specific part in taking projects forward and generally help to break the ice? Secondly, there are no Arabs in this House. Given the two very special relationships that we have in the Middle East—a topic that we debate endlessly—is not the lack of Arab participation here in very sharp contrast to the strong and indeed excellent contribution made by noble Lords with more affinity with Israel? Both communities in Britain are roughly the same size.
Baroness Warsi
I know that the noble Lord has had an interest in this matter for a number of years, and indeed pushed hard for Arabs to be included as an individual category in the 2011 census. He will be aware from the census data that the majority—just over 50%—of those who self-identity as Arabs reside in the south. The Government do not have a specific policy of engaging with groups purely on the basis of their race or religion. However, the Government do have a policy of creating conditions—both shared spaces and shared experiences—where communities from different backgrounds can come together. In relation to the noble Lord’s second question, I would welcome a member of the Arab community becoming a Member of this House.
Lord Foulkes of Cumnock
My Lords, I agree with the noble Lord, Lord Lea of Crondall, that the noble Baroness is really an excellent Minister to answer this Question. However, does the fact that it is for the Department for Communities and Local Government and she is a Foreign Office Minister indicate that there is some difficulty in recruiting people from the Back Benches to serve as Ministers in the House of Lords? Can she explain to the House why there is such difficulty and when we might expect to see some brave men and women step forward to the front line to defend the indefensible?
Baroness Warsi
The noble Lord clearly does not know me as well as perhaps other noble Lords do. I am a Minister in both the Foreign and Commonwealth Office and the Department for Communities and Local Government, so I am simply doing my job.
Lord Tomlinson
Going back to the serious part of the original Question, would the noble Baroness agree with me if I suggest that the best way for the 240,000 people who describe themselves as being Arab to participate in public life is to go through the normal procedures for gaining citizenship of this country and then participate on the same basis as any other citizen?
Baroness Warsi
The noble Lord will be aware, as will other noble Lords, that there are many people from the Arab community—people who identify themselves as Arab—resident in this country who were born here or are British citizens. Many are extremely successful, such as Dr Hany El-Banna, the co-founder of Islamic Relief; a rower from the Arab community took part in the Olympics. I go back to the approach that this Government have, which is not to engage with communities purely on the basis of their race and religion. It is right for the Government to create the conditions by ensuring that there are no barriers to integration and equipping people with the appropriate language, opportunities and spaces to meet people of different communities and achieve their full potential.
Lord Soley
As chairman of the Arab-Jewish Forum, I think the Minister might agree with me—and I hope she does—that there are a large number of Arabs who participate as local councillors or school governors, and on a range of other issues, but they do not always get recognised. A few years ago, I very nearly got an Arab to be a Member of this House but unfortunately he got squeezed out, as people do given the vast numbers coming in these days. My noble friend, who raised this question, is absolutely right. It would be sensible. There are a lot of Arabs in this country who are full citizens and take part very fully, and it should not be impossible for one of them to be a Member of this House. Even bearing in mind that I go around saying this House is far too big in number, the principle is right.
Baroness Warsi
I agree with the noble Lord that there are many Arabs playing a hugely influential role in large parts of society, including as councillors. I think the noble Lord will also agree that those who identify themselves as Arabs have many different countries of origin, backgrounds and, indeed, religions—there are many people who are Arab and Christian or Arab and Muslim, for example. I agree with him. Another hugely successful Arab is Sir Magdi Habib Yacoub, whom many will know as a world-leading transplant surgeon.
Baroness Gardner of Parkes
Is the Minister aware that under our constitution, only British and Commonwealth citizens can sit in this House? We almost lost the latter but at the last hour of the last Government we managed to reinstate the right of Commonwealth citizens and those of the Irish Republic. Do these questions about Arabs in this House relate to people who still look on their origins as Arab but are now British citizens?
Baroness Warsi
We are talking about people who self-identify on the census as Arab. People identify themselves in relation to nationality, ethnicity and religion. When I filled in the census data, I identified myself as British, of Pakistani origin and Muslim. These are people who are very much integrated into British society.
Taxation: Tax Havens
(11 years, 9 months ago)
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Lord Newby
My Lords, the Government are fully committed to tackling tax avoidance and evasion wherever it occurs. This is an issue of international concern on which we work closely with European Union member states and other countries, in particular through the G20. The G20 focus has been on increasing international tax transparency and identifying gaps in the international tax standard to help better address profit shifting and erosion of the corporate tax base at the global level.
Lord Dubs
My Lords, I have a terrible suspicion that the Minister is saying, in effect, that nothing is happening. Perhaps I may ask him this. If the Government fail to get international agreement quickly, could we as a country at least move forward by doing two things? First, could we take action in those territories where we have power or influence? Secondly, could we change the basis of taxation of those companies that do not claim any profits in this country by basing the tax on turnover rather than on bogus low-profit figures?
Lord Newby
My Lords, the accounting rules are internationally based and it makes sense to change them on an international basis. That is why we, France and Germany, between us, have given €450,000 over recent months to the OECD to come forward with proposals to deal with this issue. Those proposals will come forward and there will be a progress report in February. There is a strong head of steam in this country and in France, Germany and the US to tackle this issue.
Lord Forsyth of Drumlean
My Lords, could my noble friend just remind us what action was taken by the last Labour Government between 1997 and 2010—over those 13 years—on tax havens? Is it not extraordinary that we now have such enthusiasm from the Benches opposite to do something, when they had that opportunity and, I believe, did nothing?
Lord Newby
My Lords, the Government greatly welcome the enthusiasm from the Benches opposite for the initiatives which we are now taking.
Lord Barnett
My Lords, global agreement is clearly important and I am glad that the noble Lord and the Government are seeking it. However, that will take a very long time. Would it not be better to do as I think my noble friend Lord Dubs was saying—to seek agreement among some of the smaller areas where countries are doing these things, such as the Channel Islands and the Isle of Man? Are we doing anything there?
Lord Newby
My Lords, there has been a lot of activity to increase transparency in relation to the Channel Islands and the Isle of Man so that we can now request information about an individual’s tax affairs. A major change is that we are moving towards what is called an enhanced automatic tax information exchange, the first of which was signed with the Isle of Man. This means that every year we will automatically get details of the tax affairs of UK-based individuals with accounts in those countries. We will find out what payments have been made into bank accounts in those countries so that we can make sure that those people are paying adequate amounts of tax. That deals with individuals, however, whereas the Question of the noble Lord, Lord Dubs, deals more with corporates.
Baroness Kramer
My Lords, perhaps I may pick up on the Minister’s comment. On 1 January the Foreign Account Tax Compliance Act, commonly known as FATCA, came into force in the United States. This Act requires all foreign financial institutions—banks, credit unions, pension managers and insurance companies—to find out which of their clients are liable for US tax and to send details of their account balances and transactions to the US authorities. When can we have our own FATCA—and I do not mind if we call it FATCAT—in the UK?
Lord Newby
My Lords, we signed the first agreement based on the FATCA principles with the Isle of Man in December. What is very significant about that Act is that places such as the Cayman Islands will be required to provide automatic information directly to the US about US citizens. We are now in negotiations with all Crown dependencies and overseas territories to see whether we can put in place equivalent provisions with them. If we do, it will revolutionise the amount of information that we get about the affairs of British citizens who are due to pay tax here and who have bank accounts in those territories.
Lord Phillips of Sudbury
My Lords, does my noble friend agree that the root of the problem, beyond discussion and consensus, is a grotesque disparity between the tax authorities and the taxpayers in this country? It is not David and Goliath but David without a sling and Goliath. Unless we do something about that disparity between the numbers and quality of advisers available to unscrupulous taxpayers, on the one hand, and those available to HMRC, on the other, we can forget about the rest.
Lord Newby
Absolutely, my Lords. That is why the Government agreed to put another £900 million during the lifetime of this Parliament into this kind of activity and why we announced in the Autumn Statement that we would add to that another £77 million, which we reckon will bring in £2 billion. The other important thing, in addition to this equalisation of technical expertise, if you like, is that consumers should continue to shine a spotlight on companies that may not be paying the amount of tax that most people would think is reasonable.
Lord Davies of Oldham
My Lords, although I welcome the progress made with the Channel Islands and the Isle of Man, perhaps I may ask the noble Lord on what basis Crown dependencies and overseas territories could refuse information to the Government on this crucial issue.
Lord Newby
As the noble Lord knows, my Lords, any arrangement with any overseas territory or Crown dependency has to be a formal arrangement and agreement. We are not a dictator going into these countries. We are negotiating agreements with them on the FATCA principles and I hope very much that we will conclude those agreements relatively soon.
Lord Brooke of Alverthorpe
My Lords, although the additional £900 million being allocated to HMRC for tax investigations is to be welcomed, will the Minister confirm that the department is also being required to effect very substantial savings which will in fact lead to several thousand staff leaving over the next three years and that this, in turn, could interfere with its means of operating? Is not the root of the issue really about transparency? We should not simply call on consumer groups to seek to get transparency on tax issues—the Government themselves should give a lead to the whole of society in moving towards greater transparency on tax issues. Although my party may not have done that when it was in power, one hopes that some of us may be able to persuade it to do so in future if the present Government will not.
Lord Newby
My Lords, on the latter point, we are doing a lot to try to improve the way in which the system operates. As I said, however, much of the required change in law has to be based on international agreement. As for the resources available to HMRC, it is true that there is a reduction in staff at HMRC. One of the principal drivers for this has been that the way in which HMRC does its business has changed fundamentally given electronic communications—for example, large numbers of people now submit tax returns electronically. The resource needed to deal with that, in terms of numbers, is very significantly less. We are trying to make sure that we beef up those parts of HMRC that collect tax and go after those who have been seeking to avoid it. I think that we are achieving considerable success in that.
Homosexuality in Nigeria and Uganda
(11 years, 9 months ago)
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Lord Lexden
To ask Her Majesty’s Government what representations they have made to the governments of Uganda and Nigeria about legislation regarding the treatment of homosexuals in those countries.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, the British Government are strongly committed to upholding lesbian, gay, bisexual and transgender rights bilaterally and with international partners. We have raised concerns about the proposed anti-homosexuality Bill being considered by the Ugandan Parliament at very senior levels. Most recently, the Minister for Africa raised the issue with President Museveni during a visit to Uganda on 21 November. We have made clear our objection to the Nigerian same-sex marriage prohibition Bill at all levels of government through our High Commission in Abuja and through the European Union Working Group on Human Rights, most recently in December 2012.
Lord Lexden
My noble friend’s strong expression of concern about the treatment of homosexuals in Uganda and Nigeria will be widely welcomed and appreciated. What measures are in place to ensure that violations of the human rights of homosexuals in those two countries are carefully monitored and raised with their Governments? What steps have been taken to ensure that asylum is available here for those fleeing persecution? Given the commitment in the coalition agreement to use our relationships with other countries to push for unequivocal support for gay rights, what success are the Government having, in association with other member states, in encouraging the Commonwealth to work collectively in accordance with its own public commitments for the dismantling of the laws that violate so grossly the human rights of homosexuals?
Baroness Warsi
My noble friend raises a number of important issues. We take LGBT rights very seriously. The matter has been raised publicly and privately by both the Prime Minister and the Foreign Secretary. We also support a number of NGOs on the ground, in both Uganda and Nigeria, that work to support the LGBT community and do work in relation to HIV/AIDS support and information, which relates to those communities as well as others. Asylum applications are considered, as are any other asylum applications, under the convention.
Lord Avebury
My Lords, would the Government consider amending Section 94 of the Nationality, Immigration and Asylum Act to provide that gay men from Nigeria have an in-country right of appeal against refusal of an asylum application, as gay women from Nigeria already do? Before making any further representations to the Government of Uganda, will the Government consult Sexual Minorities Uganda, the umbrella NGO that campaigns for legal and social equality for LGBT people in that country?
Baroness Warsi
As my noble friend is aware from previous Questions, unsuccessful asylum claimants have a right of appeal to the UK courts. Designation under Section 94(5) does not deny a right of appeal to lesbian, gay, bisexual and transsexual applicants from designated countries, including Nigeria. However, claims from nationals of designated countries for non-suspensive appeals that are clearly unfounded must be certified as such and therefore can be appealed only from outside the United Kingdom. There are no plans at this stage to change this.
On my noble friend’s second question, the British High Commission in Kampala is in regular contact with the NGO that he mentioned—Sexual Minorities Uganda—and other Ugandan civil society groups that are campaigning for improved human rights in Uganda. We have in the past provided funding for organisations, including Sexual Minorities Uganda, for training, advocacy and the cost of legal cases related to the protection of LGBT communities and human rights.
The Lord Bishop of Ripon and Leeds
My Lords, will the Minister consult with Lambeth Palace and the incoming most reverend Primate the Archbishop of Canterbury on these issues, since Lambeth has considerable experience of relating to these two countries in particular, and of challenging their human rights records?
Baroness Warsi
We know that the church has networks in both Uganda and Nigeria. Indeed, the Foreign and Commonwealth Office has called upon those networks in discussions in order to use them as influence and opinion-formers in those countries. We will continue to make sure that that contact remains strong.
Lord Pannick
My Lords, at the next Commonwealth Heads of Government Meeting, will the Government support the recommendation of the Eminent Persons Group to the 2011 meeting that all Commonwealth nations should now be required to respect the rights of homosexuals?
Baroness Warsi
The noble Lord will of course be aware of the Commonwealth charter, which specifically talks about the importance of non-discrimination on any grounds, including homosexuality.
Lord Triesman
My Lords, I have now read two reports that indicate that a majority of Commonwealth countries have laws in one form or another that are oppressive towards gay men and, in many of those cases, towards women as well. Supplementing the question of the noble Lord, Lord Pannick, might the Government have it in mind to see significant revisions of the Harare principles so that there is absolute clarity that equality of status is a key principle for all oppressed groups in the Commonwealth?
Baroness Warsi
The noble Lord will be aware that homosexuality is already illegal in Uganda, as are same-sex relationships in Nigeria. We take the position that we do and we make our submissions very clear, but it is important to note that, unfortunately, at present the positions of those two countries are supported by a large number of their parliamentarians and public.
Lord Lester of Herne Hill
Is it useful for the Minister to know that the Joint Committee on Human Rights, of which I am a member, met the recently formed Joint Committee on Human Rights in Uganda last month and we seemed to get somewhere in emphasising that anti-sodomy laws are a most undesirable colonial legacy that an independent African country should move beyond?
Baroness Warsi
My noble friend presents us with an alternative line of argument but I assure him, as I assure other noble Lords, that we use all avenues, appropriate measures and opportunities to make our views clear.
Bahrain
(11 years, 9 months ago)
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Lord Avebury
To ask Her Majesty’s Government what is their assessment of the decision by the highest court in Bahrain on 7 January to uphold life sentences imposed on eight opposition figures and human rights activists.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, we are deeply dismayed by the decision to uphold sentences against this group of political activists. We have previously commented that at the time that these individuals were originally convicted, reports acknowledged by the Bahrain Independent Commission of Inquiry suggested that some defendants had been abused in detention, denied access to legal counsel and coerced into confessing.
Lord Avebury
My Lords, I am grateful to the noble Baroness and to the Minister Mr Alistair Burt for the expression of concern. My noble friend will recall that the Bassiouni commission of inquiry said that the sentences of political detainees should be commuted and that they should be compensated for the tortures that they endured, and the King said that he accepted those recommendations. Why are we not pressing the King to honour his promises? Do the Government recognise that there is not the faintest possibility of dialogue, reconciliation or peace on the streets as long as the martyrs remain in custody?
Baroness Warsi
My noble friend raises an important point. He will be aware that the BICI—the Bahrain Independent Commission of Inquiry—did not consider the National Safety Courts, the special military courts set up to try people arrested during the disturbances, to be the correct method, and therefore recommended a retrial. The current prisoners that my noble friend speaks about were subsequently retried and sentenced. They appealed that sentence but unfortunately it has been upheld. He is right to say that not all the BICI recommendations have been implemented. I met the Foreign Minister in November last year and I can assure my noble friend and other noble Lords that our conversation was frank, robust and honest. I made it very clear that we expect progress to be made in relation to both the BICI recommendations and the recommendations of the Universal Periodic Review.
Lord Campbell-Savours
Will the Minister make it clear to the Bahraini ambassador in London that the sending of hampers from Fortnum & Mason to Members of the British Parliament will have no influence on our judgments on human rights matters? It is not the way that we do business in this country.
Baroness Warsi
These issues are far too serious for anyone—Members of this House, Members of the other place or, indeed, the Bahraini embassy—to consider that matters can be brushed under the carpet or under a hamper.
Lord Deben
Is the Minister sure that the Bahraini Government understand just how seriously we take this? I have a feeling that it will be seen as merely the sort of thing that we do and say because we are that kind of country. I hope that she will enable Bahrain to understand that the future of our relationship depends on its behaving in a civilised way. If it does not, there really must be an understanding that that will change entirely the way that we deal with Bahrain.
Baroness Warsi
My noble friend makes an important point. We have a strong relationship—a strong friendship—with Bahrain. It is because that friendship is so strong that we can have very honest conversations. I assure him that, from the Prime Minister through to the Foreign Secretary and the Minister responsible for Bahrain, and in the discussions that I have had, we do not lose any opportunity to raise these concerns. We get real support from the other side: there is a willingness to move these matters forward. As I said in my recent discussions with the Foreign Minister, the more that can be achieved and the more progress that can be shown in terms of these recommendations from the BICI and the UPR, the better this relationship will become.
Lord Judd
In the Government’s negotiations or conversations with the Government of Bahrain, do they take the opportunity not only to raise this issue in human rights terms but to point out forcefully to the Bahrain Government that to indulge in disproportionate action of this kind is to play into the hands of extremists who seek to capture the desire of countless ordinary people for progress and human rights developments within that country, and that the way to ensure security for their country is to avoid like the plague counterproductive action?
Baroness Warsi
The noble Lord is right that whenever you close down the space for legitimate protest, you start increasing the space where extremism can thrive. Those are the points that we make. But noble Lords may take some comfort from the fact that in the Universal Periodic Review to which Bahrain submitted itself last year, of the 176 international recommendations that came back, 143 were adopted in full and 13 partially. Therefore, progress was made by international concerted action.
The Lord Bishop of Hereford
My Lords, will the Minister give assurances that the strength of the Government’s ongoing protest at these decisions of Bahrain’s highest court will not be compromised or weakened by any other considerations? I am sure that she would agree that it is vital that we are consistent in our speaking up for those suffering injustice, and that we uphold individual freedoms of speech and expression of that, as well as, as has been referred to already, their protection from abuse in detention or anywhere else.
Baroness Falkner of Margravine
My Lords, my noble friend is probably not aware that I raised this matter of Bahraini human rights with the Foreign Secretary as long ago as September 2010, and he assured me that, due to our excellent relations with the Government of Bahrain, these at that point relatively minor human rights transgressions would be sorted out. The situation has only got worse since then. Will my noble friend please go back and suggest that the matter also be taken up with the Saudi Interior Minister, who I understand is visiting the United Kingdom at the moment, and indeed the whole of the Gulf Cooperation Council, because simply talking to Bahrain and hoping that good relations will solve the issue will not do so?
Baroness Warsi
I assure my noble friend that we are not simply talking and hoping, and that some specifics have been put in place. The BICI recommendations are a starting point, and the UPR built on that. We have had some recent progress, in that legislation will be introduced to reduce the ban on associations and assembly. There have also been some specific incidents whereby permits have been given for those protests to take place. So progress is constantly being made; it is not simply a question of our talking and hoping.
Parliamentary Privilege
(11 years, 9 months ago)
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The Chairman of Committees
That the Commons message of 4 December be considered and that a Committee of six Lords be appointed to join with the Committee appointed by the Commons to consider and report on the Green Paper on Parliamentary Privilege presented to both Houses on 26 April (Cm 8318) and that, notwithstanding the resolution of the House of 28 May, the committee should report by 25 April 2013;
That, as proposed by the Committee of Selection, the following members be appointed to the Committee:
L Bew, L Brabazon of Tara, L Davies of Stamford, B Healy of Primrose Hill, L Shutt of Greetland, B Stedman-Scott.
That the Committee have power to agree with the Committee appointed by the Commons in the appointment of a Chairman;
That the Committee have power to send for persons, papers and records;
That the Committee have power to appoint specialist advisers;
That the Committee have leave to report from time to time;
That the Committee have power to adjourn from place to place within the United Kingdom;
That the reports of the Committee from time to time shall be printed, regardless of any adjournment of the House; and
That the evidence taken by the Committee shall, if the Committee so wishes, be published.
Select Committees
(11 years, 9 months ago)
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The Chairman of Committees
That Lord Hill of Oareford be appointed a member of the following Committees, in the place of Lord Strathclyde: House, Liaison, Privileges and Conduct, Procedure and Selection.
Lord Tyler
I enthusiastically welcome my noble friend the new Leader of the House as an addition to all these committees, and particularly to the Procedure Committee on which I serve. However, can the Chairman of Committees confirm that, as presently scheduled, the Procedure Committee is not due to meet again until 18 March? Would it not be appropriate to ask the new Leader of the House whether he would be prepared to come to a special meeting of the Procedure Committee? I am well aware that a large number of issues are outstanding from the report of the Leader’s Group on Working Practices of your Lordships’ House. It is time, after nearly two years, that we took stock of what progress we have or have not made on those issues. No doubt, the new Leader of the House would wish to make sure that the committee was made aware of his own personal approach to these issues and that we should take an early opportunity to do so.
The report from the Procedure Committee which is coming up later in your Lordships’ House deals only very peripherally with some of these important outstanding issues. I am sure that the Chairman of Committees would agree that after nearly two years and some very important work undertaken by that Leader’s Group we should give them the attention that they demand. The input of the new Leader of the House would be very welcome in that respect. Will he please consider a special meeting of the Procedure Committee?
The Chairman of Committees (Lord Sewel)
The noble Lord, Lord Tyler, is, as always, ingenious in the way that he brings matters before your Lordships’ House. I can certainly agree with him that there are matters still outstanding from the Goodlad report that have not been addressed in detail. I should have thought that it would be better to allow the new Leader time to study and reflect before we have a meeting. On balance I think it would be better if we stuck to the scheduled meeting and did not have a special meeting.
Public Bodies (Water Supply and Water Quality Fees) Order 2012
(11 years, 9 months ago)
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Lord De Mauley
That the draft order laid before the House on 22 October 2012 be approved.
Relevant documents: 13th Report from the Secondary Legislation Scrutiny Committee, 9th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 13 December.
Transforming Rehabilitation
(11 years, 9 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice.
“This Government are committed to an ambitious programme of social reform, even at a time of financial constraints. Major changes have already been delivered in welfare and education to tackle the challenge of endemic welfare dependence and educational underperformance, particularly in deprived areas. In the coalition agreement, the Government also promised to introduce a ‘rehabilitation revolution’ to tackle the unacceptable cycle of reoffending, and today I am publishing a consultation paper entitled Transforming Rehabilitation: a revolution in the way we manage offenders. We need a tough but intelligent criminal justice system that both punishes people properly when they break the law and also supports them to get their lives back on track so that they do not commit crime again in the future.
Despite significant increases in government spending on offender management during the past decade, reoffending remains consistently and unacceptably high. In 2010 nearly half of prisoners were reconvicted within a year of release. This rate is even higher for short-sentenced prisoners, the great majority of whom currently receive little or no support.
Failing to divert offenders away from crime has a wide impact. The Ministry of Justice alone spent more than £4 billion on prisons and offender management in 2011-12 and the wider cost of this failure is considerable. The National Audit Office estimated that the economic cost of reoffending by recent ex-prisoners was as much as £13 billion in 2007-8. I am clear that we cannot continue as before. In difficult economic times, delivering real reform requires a dramatically different approach. We cannot afford not to do this.
My proposals seek a new emphasis on life management and mentoring support for offenders in order to address the problems that lead them to turn to crime again and again. For the first time, all offenders, including those serving less than 12 months, will be subject to mandatory supervision and tailored rehabilitation on release from prison. These offenders have some of the highest reoffending rates but currently no statutory provision after the halfway point of their sentence. I want to ensure that persistent offenders do not walk out of the prison gates with £46 in their pockets and little or nothing else.
My vision is very simple. When someone leaves prison, I want them already to have a mentor in place. I want them to be met at the prison gate, have a place to live sorted out and to have a package of support set up, be it training or drug treatment or an employability course. I also want them to have someone they can turn to as a wise friend as they try to turn their lives around.
I intend to open up the market for probation services so that we can combine the expertise that exists within the public sector probation service with the innovation and dynamism of private and voluntary providers. These radical reforms are underpinned by the principles of the big society. Enabling voluntary sector organisations fully to participate in transforming rehabilitation, harnessing their expertise and making the most of existing local links will be vital to delivering the reoffending reductions we need to see.
Providers will be commissioned to deliver community orders and licence requirements for the majority of offenders and will be paid by results to reduce reoffending. They will be expected to tackle the causes of reoffending and help offenders to turn their lives around. And through the introduction of payment by results, providers from all sectors will have a clear incentive to rehabilitate offenders. We will pay in full only for services that successfully reduce reoffending.
Services will be commissioned nationally and delivered across broader geographical areas. I am committed that the new system will continue to make best use of local expertise and to integrate into existing local structures. Potential providers will have to be clear as to how they would sustain local partnerships in contracts and commissioning which will be informed by local intelligence.
Extending rehabilitation to more offenders will introduce new costs to the system and I believe that these can be balanced by drawing more providers into the system. Through increased use of competition we can generate efficiency savings and drive down unit costs across the system, allowing our funding to go further.
The public sector probation service does an important job in protecting the public and the Government are very clear about the value and expertise it brings. We want to use that expertise as we transform our approach to rehabilitation. There will be a continuing critical role for the public sector, which will include advising the courts and assessing the risk an offender poses to the public. Offenders who pose the highest risk of serious harm to the public will continue to be managed directly by the public sector and the public sector will retain ultimate responsibility for public protection.
These proposals will make a significant change to the system, delivering the Government’s commitment to real reform. They will fulfil the coalition commitment to introduce a ‘rehabilitation revolution’ and will realise our ambition to apply payment by results across offender rehabilitation services by the end of 2015.
Transforming rehabilitation will help to ensure that all those sentenced to prison or community sentences are properly punished while being supported to turn their backs on crime for good, meaning lower crime, fewer victims and safer communities. I commend this Statement to the House”.
Lord Rosser
I thank the Minister for repeating the Statement made in the other place by the Secretary of State and offer him my congratulations that he has not apparently joined the current exodus from the government Front Bench. Clearly, he does not yet feel in need of rehabilitation outside this House.
I am also grateful for having had prior sight of the Statement repeated by the Minister, which is more than the courtesy that was extended to my colleague, the shadow Minister of Justice in the House of Commons.
The Government have issued a consultation document but today appear to have made clear their chosen method of achieving what I am sure we would all agree is an important objective: namely, further reductions in the rate of reoffending. The crime rate fell throughout the period of office of the previous Government, which suggests, first, that that Government were effective in addressing the incidence of crime; and that the agencies involved, including the probation service, were doing a good job. The probation service is staffed by committed professionals who help to keep our communities safe. This was recognised by the fact that, in 2011, it was awarded the British Quality Foundation gold medal for excellence and in that year the performance of every single probation trust was rated by the Government as either good or exceptional.
Can the Minister clear up one point? It has been suggested to me that, earlier today, the Secretary of State made the statement that he wanted to professionalise the probation service. On the face of it, that would seem an extraordinary thing to say and I would be very grateful if, when he comes to respond, the Minister could confirm that the Secretary of State made no such statement.
The Minister is a great admirer of the probation service. On 30 October, he told us:
“I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service”. —[Official Report, 30/10/12; col. 549.]
In the light of the Minister’s statement just over two and a half months ago that the probation service is excellent and that he is in awe of the responsibilities that probation officers take on, do the Government’s intentions involve taking any work currently undertaken by probation officers and probation support officers away from them? Or do the Government’s proposals represent an extension of rehabilitation work involving the private and voluntary sectors which will not lead to any noticeable reduction in the number of probation officers and probation support officers?
For some time now, the probation service has been working in partnership with the private sector and voluntary groups. There is already excellent work taking place in partnership around the country. Bringing in outside experience and innovation and working together in partnership to reduce reoffending is not something new. However, to what extent do the Government intend that true partnership continues? To what extent do they envisage the wholesale transfer of key areas of probation service work to the private and voluntary sectors—in other words, straight outsourcing? If the latter is the case, is it the Government’s view that the private and voluntary sectors are more effective and efficient than the probation service—which the Minister so rightly admires and respects—or do the Government believe that it can be done more cheaply outside the probation service, perhaps because those involved in the rehabilitation work will be paid less?
It was with a view to looking for new ways to address the issue of reoffending that the previous Government began a pilot of a payment-by-results model in Peterborough. This was presumably why the previous Secretary of State launched two payment-by-results pilots in probation trusts. It is, of course, right to test properly and try out fundamentally new ways of working, because there is no history in criminal justice of payment by results. Interestingly, however, the Secretary of State chose to cancel the two payment-by-results pilots set up by his predecessor. Can the Minister tell us why? To the best of my knowledge, no proper evaluation has been carried out of the success, or otherwise, of those two pilots. Indeed, no proper evaluation has yet been carried out of the Peterborough pilot. What is the hard, evaluated, published evidence on which the Government are basing their intentions?
The current Secretary of State has form when it comes to introducing payment-by-results schemes that have not been properly tested and evaluated. He clearly prefers gut instinct or ideology over hard evidence. The current Secretary of State was responsible for the Work Programme, which involves payment by results. Payment by results is precisely what we are seeing: a lot of payment and few results. According to the National Audit Office, which presumably has a fair idea of what it is talking about, of the 800,000 people who started the Work Programme, only 3.5% were still in work after six months and not a single provider had hit their target. Indeed, there seems to have been a lot of subcontracting going on in the Work Programme which makes it much more difficult to identify where the responsibility lies for failing to perform. This is a factor that needs to be looked at when assessing the Government’s intentions for payment by results in our criminal justice system. It is also no secret that increasing numbers of smaller companies are walking away from involvement in the Work Programme, and that factor ought also to be borne in mind when considering the Government’s proposals on probation and rehabilitation and an intention to have greater involvement of smaller organisations including those in the voluntary sector. Where will accountability lie under the Government’s stated intentions, particularly in a situation where there may be considerable subcontracting?
The Secretary of State is proposing that only low and medium-risk offenders will be dealt with by private companies. Can the Minister confirm that medium-risk offenders include those who have committed domestic violence and burglary? Why is it that if the Secretary of State has confidence in probation retaining supervision of high-risk offenders, he does not have confidence in it to supervise low and medium-risk offenders? Is it, in reality, all about reducing costs rather than rehabilitation and further reducing reoffending?
Given that one in four offenders’ risk level fluctuates during their term on licence, is the Minister satisfied that the payment-by-results model will be able to take that into account? In that regard, how does he propose that the police and other public bodies share with the private sector their sensitive information about offenders with whom they have dealings?
The Secretary of State is seeking to increase the level and extent of supervisions and rehabilitation of offenders, and no one would disagree with that as an objective. However, is this all to be done within existing budgeted and planned levels of resources, not least financial resources? Or is it the intention at some later date to provide an increase in resources? If it is the intention that there will be no extra resources, what will happen if existing resources prove to be insufficient to achieve the Government’s intentions?
Finally, if the Government move significant chunks of rehabilitation work and reoffending reduction work currently carried out by the public sector probation service into the private and voluntary sector, will that work continue to be subject to the provisions of the Freedom of Information Act, or will the changes that the Government clearly intend to make mean, as far as this part of the criminal justice system is concerned, that we will be moving to a more secretive and less transparent operation, with less information being available in the public domain? Can the Minister give a cast-iron guarantee that in the Government’s proposals there will be no reduction in the areas or extent of activity covered by the Freedom of Information Act?
We support the objective of seeking further to reduce reoffending. However, the devil is in the detail and the means. We will look carefully at the consultation document and hope that it provides reassurances that have been sadly missing from the Secretary of State’s Statement.
Lord McNally
My Lords, first, I thank the noble Lord for those closing remarks of welcome for the initiative. As he quite rightly said, the devil will be in the detail and it is quite right that now and subsequently the House and the public will probe and test these proposals.
The word “professionalise” was in no way a pejorative statement by my right honourable friend—quite the contrary. I think I have mentioned before in the House that I would like the probation service and its work to be recognised as a profession, perhaps ultimately by a chartered institute of probation. It was in that context that the Secretary of State was talking about a professionalised service—the recognition of probation work as a proper profession, which indeed it is.
I took on board points that should be recognised: we are building on existing patterns of partnership that were first established by the previous Government, both in the legislation that we are using—the 2007 Act—and the various pilots that they initiated in their closing years. This question of pilots is very difficult. On my first day in office in 2010, I was told about the Peterborough and Doncaster pilots. Two years later, whenever one was asked about progress in these areas, one would say: “Well, we are still piloting”. There is a danger in policy development that you pilot for ever. You learn lessons as they go along, but at some time there is a need for Ministers to take a decision and develop a policy, and that is what we are doing here.
There is always a kind of elephant trap in any programme of reform. If you claim that there is a need for reform, are you being condemnatory about those who are carrying out the existing policy? The answer is no, as the noble Lord said, and I have been on record in this House about my admiration for the probation service as it is and the work that it does. My noble friend has proposed changes that we believe will bring a combination of greater efficiency and effectiveness and new ideas into the treatment of offenders. That is the thrust of the policy. Whether offenders who are taken under the wing of private and voluntary sector providers have committed “burglary and domestic violence” or something else, what is certain is that whoever comes within that assessment, their risk assessment will have been carefully carried out by professionals before they move into that sector. That risk assessment will be part of the ongoing role of the professional probation service and will be taken into account when it is decided whether a person is suitable for rehabilitation work that involves payment by results.
The noble Lord also asked whether existing resources would be used. The answer is yes; this is the plan, this is the whole point. As I pointed out, we are spending £4 billion—no small amount—per year on keeping people in prison and in keeping people supervised by probation. What the document suggests—and we hope that the debate that it initiates will develop this—that the £4 billion will be spent a lot more effectively than at the moment. We can do so more effectively within prisons and more effectively outside prisons.
One of the things that the Secretary of State was very much influenced by was his work at the DWP—the noble Lord referred to that experience. The DWP was one of the first government departments to take the initiative of going into prisons to enable prisoners to prepare for release and to go on to the Work Programme. That certainly convinced my noble friend that what are termed “through the gate” policies are extremely effective in making rehabilitation possible.
I remember talking to a young ex-offender on her rehabilitation programme in Birmingham, who said to me, “Lord McNally, you cannot imagine the feeling of fear and foreboding when you stand at the prison gates, the gates close behind you, and you have £46 in your pocket and nowhere to go and no friends and you don’t know what to do next”. It is not surprising that we get this high rate of offending.
One thing that has struck me in the two and a half years that I have been in this job is that, when you go around prisons, you find lots of initiatives and ideas that work—for example, a small charity going into prison and helping prisoners to find accommodation before their release, banks being willing to help prisoners to get their finances right, and private sector employers who are willing to put training programmes into place in prisons and then offer work when prisoners are released. It has been put to me before that the best guarantees against reoffending are somewhere to live, a job and a relationship. In a way, what we are trying to do in a holistic way is to bring in other departments to meet those needs and to make sure that there are alternatives.
On freedom of information, the Secretary of State made it clear in answering questions that it will be the providers’ responsibility to set out in contracts a clear commitment to transparency, but this will be considered as part of the consultation. In that respect, the noble Lord made a very valid point.
As I have said before, I hope that the probation service remains intact as a key part of our offender management arrangements, with responsibility for the most serious offenders and with oversight of the performance of those from the private and voluntary sectors who will be involved in this. I hope that the service will see it not as a threat but as an opportunity for it to play an important role in rehabilitation and to work in the kind of partnerships that the noble Lord referred to, bringing out the best of both the voluntary and private sectors and the qualities that already exist within our public sector.
I hope that the House and indeed the country will take this document as an invitation to have a serious debate about a serious problem. I have always believed that prison works but so do a lot of other things, and it is ridiculous for us as a country to spend £40,000 a year on keeping people in prison and for that to be a revolving door process whereby they go back into prison time and again. That is what this document and this debate will be about.
Lord Marks of Henley-on-Thames
My Lords, a major contributor to reoffending in the past has been the lack of support for prisoners on release, who at present often come out with very little money, as my noble friend has pointed out, nowhere to go and usually no work to do. Will the Minister ensure that the really welcome new commitment to mentoring and support for all prisoners on release is quickly implemented, properly resourced and thoroughly monitored by government?
Lord McNally
Yes, I hope so. I hope that one thing that is seen as a real breakthrough in these proposals is that we will be extending support services to those sentenced to less than 12 months. As many studies have shown, those short sentences have often been the source of most reoffending. Again, to make the point that there is a more holistic approach than that, in the Crime and Courts Bill we are trying to make community sentencing more acceptable to the public by putting a kind of punishment element into them so that they are not seen as the soft option to prison. That is another part of what we are trying to do, as is involving other departments such as the DWP and those dealing with health and social services. It is clear that a more holistic approach to rehabilitation is going to get the most results.
Lord Morgan
The statement very properly deals with some very important issues in our society, such as the high rate of reoffending. The great bulk of offences are committed by people who have already offended and this is adding to the pressure in our prisons; there is also the absence of an integrated system to deal with offenders who, as the noble Lord has said, are immediately thrust back into the community with £46 and no other help and very often no hope. The proposals have important merits which we should recognise right across the House. There is a programme for the rehabilitation of prisoners when they are released; they are not just thrown into the community. There is also an integrated proposal for mentoring them in relation to their problems and particular needs; for example, dealing with drugs or alcohol. There are already examples of this kind of approach, notably the Parc prison in Bridgend, south Wales, and this is very welcome.
I would like to ask the Minister two general questions. The policy of payments by results by private institutions is not one, as my noble friend said, that has been universally successful or indeed effective. Perhaps we could be told a bit more about these geographical regions which will be used to assess whether or not the policy of rehabilitation has been successful. Will there be any uniformity of definition about these regions? What will be deemed a successful result? If someone committing a very serious crime is then back in prison for committing a somewhat lesser crime, is that a successful result or not? I would also ask for reassurance for the probation service at a time when it is experiencing great dislocation and demoralisation. Thank you.
Lord McNally
I thank the noble Lord for those questions. He is quite right: of the three parts of this initiative that attract me most, one is the idea of a proper mentoring programme; another is a real acceptance of “through the gate” as a concept of dealing with prisoners; and the other relates to how to deal with prisoners with less than one year’s sentence. This is a consultation; the actual size and shape of the geographic regions have still to be determined, and will be determined in part by the outcome of the consultation. I suspect that my right honourable friend has in mind some fairly large regions to ensure that we get the kind of benefits of scale that large regions can provide. I cannot be firmer on that but we already have some experience of commissioning in London, where a community services contract has recently been signed that is over a four-year period and £20 million less than the existing contract. I think that they will be largish regions but we are open to consultation.
What is success? This is partly a testing of the market to see what kind of organisations are interested and what problems they foresee. It is not easy; is it one year free from reoffending, is it never reoffending and how do you prove that? It is not so simple but that is part of what the consultation process is about.
The Lord Bishop of Liverpool
My Lords, we on these Benches very much welcome the engagement of what is described in the Statement as the voluntary and community services. As the Minister knows, faith groups are already very involved in the rehabilitation of offenders, both inside and outside prison. Can the Minister tell us how the Government will ensure that, by opening up the probation services to the market, the local, voluntary and community sectors will not be eclipsed by the private sector with its much greater resources?
Lord McNally
First, I pay tribute to the right relevant Prelat for both the leadership and the contribution that the churches make to prison chaplaincies and for their support in the wider community. In previous debates I have referred to visits I have made to St Albans and Norwich, where the cathedrals are the centre of community efforts in rehabilitation. He makes a very relevant point about the voluntary sector. A new commitment within the group is that we will make available £500,000 of seed corn to help voluntary groups prepare proper business cases for participation. We will also build into the system for awarding contracts that organisations which include voluntary and local groups, and can clearly demonstrate that they are making full use of their expertise, will probably have a much better chance of winning contracts.
I hope that those two parts of the package—help in preparing a proper business case and a contractual advantage if they are included in bids by larger groupings—will ensure that local and voluntary organisations have a proper participation. Indeed, we would be disappointed if this was not one of the results of what we are doing. We want the ideas, initiatives and commitment that voluntary and local groups can bring to this as part of what we have termed a revolution.
Lord Ramsbotham
My Lords, like the noble Lord, Lord Rosser, I welcome the commitment to reducing the dreadful rate of reoffending. As an aside, I notice that the Minister did not add to his list of the factors that prevent reoffending the one that is said to mean most—a 30th birthday.
I would like to take up two points; first, the point that the Minister made at the end of the Statement—namely, that this is a very serious subject and needs a very serious debate. Will the Government be prepared to allow that debate? So far, we have not had an opportunity to debate the previous consultation which is swept up in this one. There is so much involved that it is terribly important that the issues contained in this should be properly debated in the House, whether at the end of this consultation period or not. I ask him for that.
Secondly, this business of “through the gate” and picking people up is not new. The previous Government introduced a programme called custody plus which was designed to do exactly that, but it was dropped because of fears that it would result in too many people being given short sentences which would be accompanied by this sort of follow-up. I wonder whether that same sum has been done here. The figures at present show an 8.3% success rate above the short sentence in prison rate being achieved by the probation service with short-sentence prisoners, but what we are seeing is a proposal for a complete change, not the reinforcement of success.
My second question to the Minister is this. We are dealing with offenders and offenders are dealt with by people, so offender management must be made the responsibility of someone. We have talked about responsibility for high-risk offenders and the fact that the probation service will be responsible for the initial risk assessment, but we have not had any indication of what will happen during the sentence if a medium or low-risk offender changes the level of risk. Who will be responsible for that? Will the probation service remain responsible throughout this process for the overall management of offenders on community sentences?
Lord McNally
I thank the noble Lord for those questions. I will certainly have a look at what he refers to as the “through the gate” experience and if the Minister responsible is now in this House, I might ask him or her about their experience. Nevertheless, there is overwhelming evidence that through-the-gate help and preparation before prison, along with being met at the gate and helped afterwards, has an impact.
The probation service will continue to have oversight across the piece. Part of the consultation will be about how light-touch that will be in terms of the day-to-day management of offenders, but we are conscious of the evidence that risk can change during the process of supervision and that there may well be a need to move certain individuals from the areas being managed by the private and voluntary sectors back into the public sector. However, that will be built into the oversight provisions that are to be part of the outcome of these consultations.
On the question of a debate, it is a matter for the usual channels, but if the Government prove difficult to persuade, I am sure that my noble friend Lord Dholakia will be able to persuade the Liberal Democrats to give one of their debate days to such a discussion. One way or another, we will have a debate in this House on this matter.
Lord Ahmad of Wimbledon
My Lords, we have yet to hear from the Conservative Benches.
Lord Faulks
I welcome this Statement, particularly its focus on those with sentences of less than 12 months and its identification of that period of vulnerability as young offenders leave prison. One of the particular areas of vulnerability is those offenders who have a previous history of drug addiction who are then prone to taking large doses of drugs which can result in death. I therefore welcome the role of a mentor, although I recognise what the noble Lord, Lord Ramsbotham, has said about the perception of custody plus because I was sitting as a recorder at the time. However, the role of a mentor seems to me to be potentially very important. Can the Minister help the House by identifying who exactly is going to perform this mentoring role and what its scope might be so as to assist in avoiding those traps that I have attempted to identify?
Lord McNally
My Lords, as part of the consultation, we will be looking at the structure of mentoring. However, in the specific terms that my noble friend has referred to—in relation to those who leave prison with problems still associated with drug addiction—one thing we are trying to do, with the co-operation of the health service, is to make sure that people who are on programmes in prison continue to receive those programmes when they leave. One of the barmier aspects of the current system is that people who have been on treatment leave prison and, surprise, surprise, their addiction returns. Part of the programme of release will be to continue programmes like that.
As for mentoring, we will just have to wait to see the response, what kind of organisations come forward with suggestions, and where we build into any mentoring programme the proper training that will enable mentors to be effective in their work.
Baroness Corston
My Lords, given that we are in nearly the third year of this Government and still have no published strategy for women offenders and those at risk of offending, I ask the Minister a short question and hope that his answer will be both short and positive. Will he confirm that the current network of women’s centres, which have done such splendid work in turning women’s lives around and which have spectacular results in reducing reoffending as well as working well with probation trusts, will be an acknowledged part of the new system which he is describing today?
The Earl of Listowel
My Lords, in relation to the question of the right reverend Prelate and also regarding mentors, will the Minister recognise the concern about the continuity of care for these people, and consider whether in his consultation there might be preferred providers? For instance, if a small voluntary body proves to have a good track record, they would not have to renegotiate after three years and spend a lot of money and time to keep that ability. The mentors that they develop would also be kept on and not left in suspense as to whether their contract will be renewed in a year or so. Certainly, in my experience, good mentors can be undermined by the lack of certainty about their future and the future contract for their organisation.
Lord McNally
I take that very wise advice and will do my best to ensure that there is continuity.
Lord Phillips of Sudbury
My Lords, will my noble friend give an assurance to the House that in the consultation—for which we are all very grateful—the Government will be open-minded about the issue of the private sector, and the notion that it is appropriate that this extremely difficult task be dealt with by competition and the profit motive? Are the Government open-minded to the prospect that after the consultation this be omitted from the new scheme?
Lord McNally
That is always a possibility. In a way, we are all on payment by results, even Ministers—fortunately, we have to wait until 2015. Obviously, we are bringing forward a programme which builds on initiatives from the last Government and which suggests that some kind of payment-by-results incentive programme encourages efficiency and innovation. We do not bring forward proposals with the anticipation that they are either going to be rejected or are going to fail. I hope that they will bring forward really constructive responses. There has been a good and constructive response from the Opposition today. I am sorry that we squeezed out the noble Lord, Lord Myners, because I am delighted that he is the new chairman of the Howard League and I look forward to working with him on this and other areas. As always, almost by default as a Liberal Democrat, I enter this period of consultation with optimism.
Procedure of the House
(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text
The Chairman of Committees
That the 3rd Report from the Select Committee (HL Paper 81) be agreed to.
The Chairman of Committees (Lord Sewel)
My Lords, it may be helpful if I say a word about the structure of the debate. When I finish my opening speech, the Question will be put on my Motion for the first time and then the noble Lord, Lord Lea of Crondall, will be called to speak to his amendment. At the end of his speech, the Question is put on his amendment for the first time, at which point it would be appropriate for all the other amendments to be debated as well as that of the noble Lord, Lord Lea. At the end of the debate, I shall respond to the whole debate and then the noble Lord, Lord Lea, will reply and decide what to do with his amendment. Each of the other amendments will then be called in turn and can be moved formally, to enable your Lordships to decide on any of them, should any of their proponents so wish. After all the amendments have been disposed of, the Question is then put on my Motion, or my Motion as amended. I trust that that is clear.
The report covers various matters but given that five amendments have been tabled to the committee’s recommendation on the tabling of Oral Questions, I hope the House will forgive me if I focus on this point and set out the reasoning behind the committee’s recommendations in some detail.
It may help the House if I explain how we have got to this position. Last October, at the request of the committee, the Clerk of the Parliaments brought forward a paper covering a wide range of issues around Oral Questions, Topical Questions and Private Notice Questions. The paper touched on the option of moving to a ballot for Oral Questions, and the committee unanimously supported the principle of a ballot. At the same time, the Clerk of the Parliaments was asked to prepare a further paper setting out in greater detail how a ballot might work. The committee considered this second paper in December. At that meeting, two members of the committee, quite justifiably and rightly, asked that their reservations about the detailed implementation of the proposal be minuted, but there was no challenge to the principle of a ballot. So the committee has had two full discussions on these issues, during both of which there was unanimous support for the principle of a ballot.
So why a ballot? We all know that the House is too big. However, the size is compounded by the fact that the House—or rather individual Members—are much busier once they get here. That generally must be welcomed, but it causes some problems. A House that numbered well over 1,000 in the 1990s did not cause any difficulty because the rate of attendance was so much lower. In 1990, the average daily attendance, out of a House of more than 1,200 Members, was 321; last year, out of a House of 800, it was 490.
We also work a lot harder. In 1990, just under 1,200 Written Questions were asked, almost exactly one per Member; in 2012, the figure was approaching 7,000, or nine per member. With Oral Questions, unlike Written Questions, the number available does not increase in response to Member demand: we are limited to a maximum of four a day. In 1990 there were 577 Oral Questions; in 2012, with fewer sitting days, the number had actually fallen to 503. What has happened is that noble Lords wishing to table Oral Questions have often found themselves queueing for longer and longer outside the Table Office. I am told that recently one noble Lord sat in the corridor outside the Table Office for no less than three hours in order to secure an Oral Question. On most days one or more Members queue for more than an hour. It is not surprising, therefore, that a number of complaints have been made to me and my predecessor as Chairman of Committees. The truth is that the current system favours those who do not have outside jobs or other commitments, who live in London, are here every day and are sufficiently determined, as well as physically robust enough, to spend their lunch hour sitting on a not very comfortable chair in the corridor.
The facts tell their own story. If we discount balloted Topical Questions, 410 Oral Questions were tabled in 2012. Of these, no fewer than 111—or 27%—were tabled by just 15 Members of the House. Those Members each tabled between six and 10 Oral Questions—10 being, in effect, the maximum, given that Members are allowed to have only one Oral Question in House of Lords business at any one time. On the other hand, Members with outside employment or other commitments, including the Lords Spiritual, have found it difficult—sometimes impossible—to table two Oral Questions. Just two Oral Questions were tabled by Lords Spiritual in 2012, both by the right reverend Prelate the Bishop of Wakefield.
The committee feels that the time has come to try—I emphasise “to try”—a different approach: a daily ballot for Oral Questions. Instead of being required to queue for a two o’clock start time, Members would have a six-hour window, from 10 till four, in which to enter Questions in the ballot. We hope that this will encourage diversity, increase the number of new voices at Question Time and encourage noble Lords with outside commitments, who cannot afford to spend an hour or more queueing four weeks ahead of time, to table Oral Questions.
Ballots are familiar in both Houses. They are used in the Commons for allocating Oral Questions and at this end they have been used for decades to allocate Back-Bench Thursday debates. We also have a ballot for topical Oral Questions. Ballots work well and are fair to all. I accept that a ballot for Oral Questions raises slightly different issues and I am conscious, as I have indicated, that some members of the Procedure Committee, while supporting the principle, have expressed reservations about the detailed working of the proposed new system. However, I emphasise that we are proposing a trial, and only a trial. The report proposes that this trial should start on 8 January—indeed, it should have started on 8 January, but time has moved on. So if the report is agreed, I propose that the trial should begin with the submission of Questions from Monday 14 January and run until the Summer Recess. That will give all noble Lords ample opportunity to try out the new system, to make their views known, and for any wrinkles to be ironed out.
Let me make it absolutely clear: if the ballot is unpopular, if it turns out to be a failure, or if it leads to abuse, then we will revert to the current system with effect from the autumn. The ballot will not become permanent unless the House agrees a further recommendation from the Procedure Committee to that effect. There is a guarantee on the process.
I sense that there is dissatisfaction across the House with elements of our working practices, particularly given the increase in numbers since 2010. Our Code of Conduct states that Members of the House are not full-time professional politicians and that we,
“draw substantially on experience and expertise gained outside Parliament”.
We should encourage new and fresh voices to contribute to Question Time. This report is a small step in that direction.
Before concluding, I will touch on the five amendments. The noble Lord, Lord Lea of Crondall, whom, in passing, I congratulate on securing the first Oral Question on today’s Order Paper, proposed that the first Oral Question on any given day should continue to be allocated on a first-come, first-served basis but the remainder allocated by ballot. The noble Lord, Lord Naseby, wishes to increase that to the first two such Questions. I cannot support either amendment on two grounds. First, they would mean that the four Oral Questions on a Tuesday, Wednesday or Thursday were tabled by three different methods and I fear that that would produce confusion. Secondly, if we have Members queuing for up to three hours when three or four Questions are available, how long will they have to queue if there are only one or two Questions available? I cannot support these amendments.
The amendment tabled by the noble Lord, Lord Kennedy of Southwark, is more straightforward. It would delete the relevant recommendation from the report, thereby leaving the system of allocating Oral Questions unchanged. I accept that not all noble Lords welcome the change we are proposing. Not surprisingly, some of those who have made their opposition clearest, including some noble Lords who have tabled amendments today, are those who thrive under the current arrangements—those here every day and willing and able to queue on a regular basis. If the noble Lord, Lord Kennedy, presses his amendment, the House will have a straight choice. I have tried to explain why I personally support the recommendation and believe it will help encourage diversity and allow us to hear from a wider range of voices during Question Time. Because of this, I will not support the noble Lord’s amendment but of course that is a decision for the House.
The amendment tabled by the noble Lord, Lord Grenfell, would have the same effect as that tabled by the noble Lord, Lord Kennedy, but add an instruction to the committee to reconsider and report again on the procedure for tabling Oral Questions before Easter. As I said in my opening remarks, the committee has twice discussed this issue in the past six months. Both times, the committee unanimously supported the principle of these proposals, although in December two Members expressed reservations about the detailed working. I know that the noble Lord, Lord Grenfell, seeks to be helpful in trying to find a way through the difficulty but I do not see much benefit at this stage in instructing the committee to look again at the issue. In order to justify taking it back, it would be necessary for the House to give some fairly clear indication of the direction in which it wants the new proposals to be developed. We have made a recommendation for a trial period to be followed by a review. Surely that is the time to reconsider the issues. If noble Lords are adamant on a matter on principle that they oppose a ballot, the sensible thing is to support the amendment of the noble Lord, Lord Kennedy. A vote for his amendment will at least give us a clear decision, one way or another, so that we can then move on knowing the view of the House.
Finally, the amendment tabled by the noble Lord, Lord Berkeley, would instruct the committee to consider increasing the time allowed for Oral Questions from 30 to 40 minutes and increasing the number of Questions from four to five. The House experimented with five Oral Questions lasting 40 minutes in 2002—that is but yesterday in House of Lords terms. The experiment was not felt to be a success and was discontinued in 2004. I recognise that things have changed since 2002 and 2004. There now might well be an appetite for a longer Question Time and more Questions. I am quite prepared and happy to take on board that suggestion and make sure that the Procedure Committee discusses that at its next meeting. That does not require the moving of a specific amendment: we will go back and look at it.
There is more to the report than Oral Questions, but they have generated the most interest in the report, which is why I have confined my remarks to this one issue; I have not mentioned collects or Prayers. I heartily commend the report to the House. I beg to move.
Lord Lea of Crondall
At end to insert “except that on any day on which oral questions are asked the first such question shall be allocated according to the procedure currently in place”.
Lord Lea of Crondall
My Lords, the House will wish to thank the noble Lord the Chairman of Committees for his report. My remarks are addressed to the written report before us, which is astonishingly short; indeed, I submit that it is inadequate. It is ostensibly a report to the hugely experienced Members of this House, but actually it does not appear to be addressed to the House for discussion; it seems almost to inform us of a decision which they would wish us to take or leave. That is in sharp contrast to the careful exposition that other committees take care to engage in when presenting reports to the House. We have two sentences on this matter. I wonder whether the procedures of the Procedure Committee need to be looked at side by side with the procedures for tabling Oral Questions.
Leaving aside the culture of the Procedure Committee and its transparency, or lack of it, if the six-month trial period survives this afternoon’s debate and votes, there will at least be an opportunity with my amendment, or that of the noble Lord, Lord Naseby, to have some retention of the first-come-first-served principle, the merits of which I will touch on in a moment. Indeed, it would have the advantage of the Procedure Committee being able in this six-month period to see the two systems side by side and asses their merits and demerits.
I am not arguing that the three points in paragraph 1 are not perfectly arguable, but so are three or more points on the other side of the equation. The noble Lord the Chairman of Committees says that this has all been presented to the House before. That may be but we are not psychic and it is not easy, unless these points are consolidated, to know what the rationale is for some of the things that are proposed. It is certainly not clear in this report.
On the rationale for my own amendment, I will obviously be influenced by speeches from around the House in the next hour or so before deciding whether to request that the House divide. No one knows at this point how much support there will be for other propositions, including the general reference back of my noble friend Lord Grenfell, which has just come on to the Order Paper. However, I hope that if it does come to that, colleagues will think about the advantages of voting for my amendment. If it is carried, at least there will be a chance of this element in the mix being considered. Those wanting to support the general reference back will at least have some engagement with the various alternatives, even if the general reference back is lost and other amendments are carried.
Another feature of the report is that some of the reasons given have the strange quality of a throwaway line to them. I refer, for example, to the first sentence in paragraph 2 about queuing. Of course we do not form a queue in the usual sense, snaking out across the Palace of Westminster on to Westminster Bridge. People cannot be long in this House before they know the score. There are three seats outside the door of the Minute Room and you are out of luck if all three seats are occupied. The worst that can happen is that you must come back a little earlier the next day. As soon as you go to the Minute Room and find all three seats occupied, that is it, you have not been successful. If you are successful, you sit down for three hours in a corridor. It has the same central heating system as the rest of this building and you can catch up on your e-mails, read the Financial Times, catch up on Gibbon’s Decline and Fall of the Roman Empire or read the speeches of the noble Lord, Lord Tomlinson, which on occasion I find even more contradictory than my own.
The second point relates to Members finding it difficult to come to the Palace at lunchtime, but that is already what we do on Thursdays or Fridays, including those people with outside jobs. As a matter of fact, I think that most of us now are working Peers and it is a strange argument that the tail of people with interests in the City is going to wag this dog.
On this question of the balance of convenience for Members, one might add that there will be frustrations with the new system, which could potentially be far more frustrating than the present system. One such frustration will obviously be that day after day after day you can fail to win a place in the ballot. It follows, as night follows day, that you have no way of ever being able to put down a particular Question on a day chosen in advance. This is one of the great strengths of the current procedure. Those colleagues who have been in the House of Commons can all see that this is a unique feature of the House of Lords—that you can put down a particular Question in advance, even two months ahead. You can tell people that you will table a Question on women’s rights, for example, on 1 May or whatever day is appropriate, and you can guarantee that you will do that. I do not know why that point has been presented so ambiguously.
The lucky dip system is intended, I trust, to ensure that no one should have any anxieties about the merits of the content of a Question being scrutinised. But surely the criterion should be, to use an American expression, “If it ain’t broke, don’t fix it”. The only things that seem to be broken at the moment are the present procedures of the Procedure Committee. There has been no Green Paper or feedback from Members about this that I recall; it is all coming from within the arcane world of the Procedure Committee. I find the details of how it works quite obscure.
Let me finally—
Lord Lea of Crondall
This is less than 10 minutes to introduce an amendment, which is quite in order. I am on my last point, if Members would be courteous enough to shut up for a minute and let me make my point.
Finally, let me give a defence of even a partial retention of the current system. People in the rest of the country looking at our agendas can know well in advance that something will be coming up. It would have been very much to the credit of the Procedure Committee if it had recognised in terms in its report that there is no perfect system in the sense of fulfilling all conceivable objectives. But it is surely axiomatic that we need a careful analysis of the pros and cons of each system, and one would expect that from a senior committee of this House. I beg to move.
Lord Naseby
My Lords, the purpose of my amendment is to have two Questions balloted and two as tabled at the moment—and, frankly, the chair is perfectly comfortable. The purpose of Questions is for the Back Benchers in your Lordships’ House to try to bring the Government of the day to account. To do that, they need to think a little bit and plan ahead, as my noble friend opposite said. I shall give two examples. I have asked a number of Questions on the pirates in Somalia, and slowly but successfully the policy has changed. It is my belief that not just my contribution but those from all over the House, not least from the noble Lord, Lord West, and others, who have detailed experience, have put pressure on the Government to change our policy. Secondly, I started a hare running just before Christmas on the National Lottery and the challenge that it faces from the Health Lottery. It would be my intention to table a further Question to see what progress has been made in three or four months’ time, but if it is done on a ballot there is absolutely no hope of that happening.
I do not live in London; I live 50 miles out of London, and I commute. If I can make the effort on one day a month—and that is all we are talking about—to get here at an earlier hour than two o’clock, I do not think that that is asking too much of anyone. I recognise that my noble friends from all over the House who come from Scotland and the north of England face a huge problem on a Monday, so a second balloted Question on that sort of day is entirely appropriate. I recognise that other noble Lords, also from Scotland—when I look around the Chamber I see that there are a number here—understandably leave on a Wednesday night if there is minor business on a Thursday, so a second balloted Question would be entirely appropriate there.
Therefore, my amendment offers some equality on both sides. I do not have any concern for those who have outside interests. I have some outside interests and, at some times of the year, they are very exacting. Again, though, all I have to do is organise my diary for one day to get here. If I am unlucky that day, as the noble Lord, Lord Lea, says, I will look at who was there and what time I guess they got there and be a little more astute the next day, or the day after. That is what we are here for. We are here to question the Executive and service the nation. We are not here to accommodate people’s outside interests and whether or not they think that they can get here
I also say to the Chairman of Committees that there should be no way at all that any party other than a Member can table a Question—no researchers of any sort, approved or otherwise. It has to be the individual Member who makes the effort and produces a Question that makes the Minister of the day think and thereby enhances our nation and this Parliament.
Lord Harris of Haringey
My Lords, I rise now because I was particularly taken by the point just made by the noble Lord, Lord Naseby, about who else can table Questions. The reality is that, although a great deal of effort has obviously gone into this paper from the Procedure Committee, it is extremely obscure as to how the system would operate.
I have no brief either way on whether we should go down the road of balloting or not balloting. I would simply like to understand the rules. I rather thought that when proposals were brought before this House it would be clear how they would work. Under paragraph 3 we have a series of bullet points that set out how this system is supposed to work. The first tells us that there would continue to be four weeks’ notice. Did the Procedure Committee not wonder whether four weeks’ notice was necessary? At present, when you table a Written Question, the expectation is that you will get an answer within two weeks, so why is four weeks being retained?
The second bullet point is more substantive. It says:
“Members will be able to submit an oral question to the Table Office, in person or by telephone”.
I am not, personally, a good mimic, but I have a number of colleagues who are. How do we—and the Table Office and the clerks there—know who they are speaking to? I appreciate that arrangements are in place which permit this to happen, but when we talk about what could be quite a controversial process in the future, I wonder whether this is something that should be examined.
However, it does not stop there. The report goes on to say:
“Questions will not be accepted by post, email, fax, or via third parties such as researchers, unless the text is also confirmed by the member in person or by telephone”.
This raises several questions. When will the Member be asked to confirm it—after they have been successful in the ballot or before the Question goes into the ballot? If it is after the ballot has been concluded, then you would get a phone call from the clerks telling you, “You have been successful in the ballot”. “Oh”, you reply, “I didn’t know I had put one in—oh yes, that’s fine. Thank you very much indeed. I am delighted”. Again, this raises some serious issues. I hope that the Procedure Committee will look at that issue again, as to what in fact that sentence is intended to mean.
The next bullet point is the clearest of all of them. However, we then go on to read:
“As is already the case for balloted topical questions, no more than one question on a subject will be accepted for inclusion in the ballot”.
Let us assume that 40 Questions arrive. The clerks are organising this ballot, and they have to go through them and decide whether any are on the same subject. How will they decide this? Suppose that I tabled a Question on cycling lanes in London—although it is unlikely—and my noble friend Lord Berkeley had tabled a Question on Crossrail in London, and another noble Lord had tabled a Question on airports on London. They are all about transport in London. Is this then about one subject or three? Somebody over there says “three”. However, on a good day, we can have a Question about cycling in London and some of the more ingenious Members of your Lordships’ House would manage to get on to the subject of airports without any difficulty at all.
Let us say, therefore, that it is one topic. However, is it one topic or two, if one Question is about cycle lanes in London, and another is about whether or not you can take bicycles on commuter trains in London? They are, in fact, two very different topics. Are they one Question or two? How will those decisions be made, who will make them, and who is accountable for making them? If these decisions are inherently difficult to make, why do we say that they should be made before inclusion in the ballot rather than after it? I understand that if three or four Questions emerge which are on very similar subjects there might be some negotiation, but why bother doing that in advance of having the ballot itself?
Members will not be able to roll Questions over—I can see the point of that. However, in the final bullet point you have:
“If, by 4 pm, fewer questions have been submitted than there are slots available, from that point the remaining slots will be allocated … on a first-come-first-served basis”—
even if they are on the same topic. So I am not successful in getting my Question down on bicycling in London because a cycling Question has already been put down, but because not all the Questions have been tabled that day it is possible to put one down about another aspect of cycling.
The point I am trying to make is that this is very unclearly drafted and that there will be all sorts of problems and complications. I hope that before we start an experiment we have some clarity as to how it is intended to work.
Lord Kennedy of Southwark
My Lords, I wish to speak to the amendment in my name. I am disappointed in the Procedure Committee’s report. I thought long and hard about it, the issues raised and what Questions are for. Ever since I came into your Lordships’ House two and a half years ago, on most occasions I have had to queue to table Questions. That is a symptom of the House having expanded and the number of Members wishing to table Questions having increased. I am disappointed that the Procedure Committee’s report has not looked for a cure to that problem.
The Companion to the Standing Orders is quite clear. It states that the purpose of Questions is to,
“elicit information from the government of the day, and thus to assist members of both Houses in holding the government to account”.
In recent times, we have on many occasions discussed the role of this House in advising the Government, scrutinising their actions, challenging them, approving or rejecting Motions in respect of delegated legislation and participating in the legislative process. I fail to see how introducing a ballot for every Question enhances our ability to fulfil our role as a second Chamber in this respect. If the problem is the pressure on people wanting to ask Oral Questions, that is what needs to be addressed. This report does not do that. The amendment of my noble friend Lord Berkeley tries to address that issue.
There could be other ways to deal with the pressure for Members to ask Questions of the Government. Perhaps we should seek to do something that is a bit different or radical. One thing I have thought of is having themed Question sessions in the Moses Room on a particular subject for an hour a week whereby Members could table a Question and ask a supplementary question. It would not ping-pong round the House and in that way we would get 20 Questions on a particular subject answered each week with no problem at all. That is one idea only, but one that attempts to deal with the pressure on Question slots which the Procedure Committee’s report fails to address. If we approve the report in its present format, we are just shuffling the chairs, the pressure will not have gone away and noble Lords will not be satisfied with the situation in which we find ourselves. We will be no further forward.
Lord Grenfell
My Lords, I wish to explain very briefly why I have tabled my amendment. Many years ago, a young Italian opera singer made his debut at the Naples opera house. At the end of his first aria there was very loud applause and shouts for an encore, which he obliged. After his second rendition there was even louder applause and even more cries for an encore. However, seeing the conductor shaking his head, the young opera singer stepped forward and said to the audience, “Thank you very much indeed but I think that we must now get on with the opera”, at which there came a loud shout from the gods, “You don’t understand us; we want you to go on until you get it right”.
I have not so far had the pleasure of hearing the Lord Chairman of Committees in full operatic flow and I certainly left the Procedure Committee far too long ago to recall whether we closed our meetings with a live version of the “Toreador Song” or anything like that. However, we have to get this matter right. Oral Questions are the oxygen that enables the Back Benches to participate in the day-to-day business of holding the Government to account. I do not think that at present we have a perfect system. The discussion we have had so far this afternoon makes that perfectly clear.
The present system is not perfect in many ways. I am not going to go through that again because we have heard plenty of it already. I will mention one obvious point in relation to queuing. I always thought that the British were a nation much inclined to queuing and regarded it as an honourable tradition; I was a wartime baby. I spend much of my time in a country where queuing is regarded as an assault on the Darwinian principle, and it may be that I have not kept up with changing sentiments. However, I sense that the House is uneasy, to say the least, with this report and about the proposals that have emerged from the Procedure Committee, and that unease has been apparent in the discussions this afternoon. Can the Lord Chairman tell us whether any of that unease was apparent within the committee itself?
The Lord Chairman has reminded the House that all that is being sought is a trial run of these proposals up to the Summer Recess. I am not against trial runs, but it depends on how credible and potentially acceptable the process being tested is. If, at the end of a trial run based on the proposals before us, the House is minded to find them not fit for purpose—which I feel is quite a strong likelihood—then I would rate rather high the chances of further consideration being consigned to the long grass for a very long time, if not forever.
Would it not be better for the Procedure Committee, between now and Easter, to have one more try, aided by wider consultation within the House, at finding a more acceptable process for tabling Oral Questions than the one that has been put before us today? This could then form the basis for a trial run with a stronger prospect of acceptance by the House and, above all, by the Back Benches.
Lord Berkeley
My Lords, I will be as brief as I can. I congratulate the Chairman of Committees. Although I do not necessarily agree with what is in the report, I think he presented it very clearly. As other noble Lords have said, it is for a trial period and we will hold the committee to that. My worry is that, as the noble Lords, Lord Naseby, Lord Kennedy of Southwark and Lord Grenfell, have said, the purpose of these Questions is to hold the Government to account. We need the certainty of timing of the Question as part of that process; other noble Lords have given examples. If an event is coming that one knows could be a problem for the Government, it is nice to have a Question on that day.
The Countess of Mar
My Lords, it is my understanding that the Chairman of Committees was prepared to accept the noble Lord’s request and has said that there was no need for an amendment. Unless the noble Lord wishes to proceed with it, would he accept what the Chairman of Committees has said?
Lord Berkeley
With respect to the noble Countess, I was not sure whether it was in the Chairman’s gift to accept it or whether it was for the Committee. May I carry on for a little bit longer and then we can debate that?
Timing is very important. We started this debate an hour later than most of us thought would happen and we have had to spend an hour doing something else. We are all good at time management. Queuing in a nice soft chair once a month is not a big problem compared with the time management of all the other things happening in here. As my noble friend Lord Harris said, balloting could be a problem. Perhaps the solution is to trial going back to five Questions a day. The Chairman of Committees said that this was tried in 2002, and I remember it well. He said it was a failure, but if there are not enough Questions to fill the five, you have four Questions and you carry on with other business.
I do not know what the statistics are for the 10 years between 2002 and now, but I suspect that it would not be difficult to fill five Questions on most days when we have Questions. That would be a reasonable way to go forward. Before making massive changes to balloting or part-balloting, let us try five Questions over 40 minutes for a period and see how Members react to it. If they have to queue for half an hour rather than an hour, so be it. I do not think it is a problem, which is why I propose this amendment.
Baroness Butler-Sloss
My Lords, perhaps I may give an opposite point of view. I have been in this House since 2006 and have not yet put down an Oral Question. The main reason was that the procedure of queuing, whereby I might not get there in time and there were all these other noble Lords who wanted to table Questions, led me to the view that perhaps mine was not so important and I had better let other people table them. I would be likely to put down a Question and take my chance if there were a ballot. I am perhaps a lone voice but I support the Chairman of Committees and the Procedure Committee’s proposal.
Lord Richard
My Lords, I take the opposite view to the one just expressed by the noble and learned Baroness. The evil that the Procedure Committee is trying to redress in its proposal is that there are now too many people in this House, Question Time is more interesting than it used to be, more people want to ask Questions and there is therefore a blockage in the way in which the Questions get on to the Floor. I accept that. I do not accept that the Procedure Committee’s proposal is the right way of dealing with the problem.
There are various ways in which the problem could be dealt with. An extension of the length of Question Time is a desirable proposal that we ought to consider. The issue of whether there should be 40 minutes for five Questions or three-quarters of an hour for six is a matter of detail that we can no doubt talk about at some future date. However, the fact of the matter is that if you extend Question Time, there is an opportunity for more people to put down Questions and for more people to participate in the process of Question Time.
The disadvantages of the ballot have been expressed primarily by the noble Lord, Lord Naseby. You need a degree of certainty when it comes to Question Time. Back-Benchers need some degree of certainty that what they want to ask the Government and to hold them to account for, if Members are prepared to make the effort to put down the Question, will actually be tabled, and provide them with an opportunity to put the Question and demand an explanation from a government Minister. If you have a ballot, the chances are that that certainty will go. That will disadvantage this House and diminish the value and effectiveness of Question Time.
As my noble friend Lord Harris said, there are various uncertainties—to put it mildly—on the details of how the ballot would be conducted, which again makes me slightly dubious about it. A third alternative is that suggested by my noble friend Lord Kennedy, whereby it may be possible, using the Moses Room procedure, to have ways of questioning the Government in relation to specific ministries on specific days—ways that are not available at Question Time but that would nevertheless fulfil the responsibilities of this House in holding Ministers and the Government to account on specific matters that Members of this House think are important.
There are a number of ways in which this problem may be dealt with. My difficulty with the Procedure Committee’s report is that it has considered only one option—an option that is dignified by the name “ballot” but that is, in fact, a good old honest raffle. You dip into the hat, and with any luck your name is pulled out and you get the opportunity to ask a Question. That process in itself will diminish the way in which Questions are put in this House. On the whole, Question Time is a plus for this House. The Questions that are put down are, on the whole, relevant, and the way in which they are dealt with is, on the whole, equally relevant.
My view is that this is not the way in which we necessarily have to proceed. I do not say that it is the way in which we necessarily do not have to proceed, but before we go down this particular route, even for a limited period, there are a number of alternative ways of approaching this problem that the Procedure Committee has not considered, and which, I say with great respect, it should consider.
Lord Greaves
My Lords, the first thing that has to be said is that Question Time is a very important part of the functioning of this House. It is the time on most days when the House sits when there are a lot of people here and when the House has an identity. It is full, over-full nowadays, and it is very important indeed that we do not go ahead with a pilot of more than six months that might get things wrong. Six months is a long period of time. We have to be quite sure, even for an experiment of over six months, that it is right.
The second point is that enough points have been put forward this afternoon to show that even if an experiment with a ballot is the right way forward, not enough of the detail has been worked out. There is certainly not enough consensus in the House to go ahead with this for six months.
It is unfortunate that the noble Baroness has not put forward questions, and she should do so straightaway, whatever system we have now, because they will be good questions. The problem of queuing has occurred only in the last two years or so because of the increased size of the House. It is not a problem of the system as such; it is the problem that the House is now too big for the system that we now have to work efficiently.
Thinking about the detail, one point that I picked up is the suggestion that there should be a ballot, and that if not enough questions are put forward for a ballot on a particular day, it should then be put out to first come first served. That is not a sensible system. I can see that one or two of the fanatics among the people who attend Question Time—I include myself at various times, and perhaps the noble Lord, Lord Lea of Crondall, and others—might be hovering around every day to see whether there are enough Questions and pouncing like vultures. Then what do we do if there is only one? This does not seem to be a sensible way to go ahead. Who will know, who will be told, and how will they be told?
I was here in 2002 when the experiment took place. I think, from memory, that it was only one day a week—I think it was Wednesdays, but I am not certain about that. It was abandoned because it was felt that Question Time on that day was running out of steam and did not have the sense of people jumping up and down and trying to compete or the atmosphere of today’s Question Time because of the numbers of Members at that time. In the present circumstances, there are a lot more people at Question Time who would like to get in but are unable to. Once a person has asked the Question and someone from the opposition Front Bench, someone from the Liberal Democrats and someone from the Cross Benches has asked a question, no one else is able to get in. The way in which it has gone is unfortunate.
One advantage of going to five Questions of eight minutes is that it is easier to time them. One of the problems at the moment is that the Clock does not measure half minutes, it only measures full minutes. If all the Questions are in demand, we tend to get a Question of eight minutes and a bit more and then one of less than seven minutes, because it is coming up against 15 minutes, and another longer one of eight minutes and a bit. The last Question is very often squeezed to five or six minutes. At least if every Question ended on a full minute, it would be easier for the House to time itself by the magic of the self-regulation that takes place.
Lord Laming
My Lords, I declare an interest as a member of the Procedure Committee that has presented this report to your Lordships, and congratulate, if I may, the Chairman of the Committees on the very thoughtful way in which he presented it. The way in which he handled this left no doubt that the committee gave a great deal of detailed thought to this matter over a number of meetings and received advice on various possibilities at each one.
It is important to recognise that the committee did not come upon this matter by chance or in any way to be mischievous. In fact, it was responding to concerns of your Lordships. It came on to the agenda because concern was expressed to the committee about how the current arrangements work.
Lord Hunt of Kings Heath
I should just like to ask the noble Lord a question. At any time during the committee’s considerations, was any thought given to consulting Members of the House before the Procedure Committee came to a conclusion?
Lord Laming
Yes, my Lords. There was consideration of consulting Members of the House. I urge your Lordships to look at the front sheet of the report and at the membership of the committee that considered this matter. Leaving me aside, if noble Lords wish, the membership represents a remarkable degree of experience in this House. The committee considered a number of issues and not only of the kind mentioned by the noble Lord, Lord Hunt. Therefore, this matter was taken—
Lord Brooke of Alverthorpe
I have seen the names of the people who participated in the Procedure Committee and I wonder whether my noble friend Lord Hunt’s question can be answered. Was thought given to a survey among Members?
Lord Laming
The answer that I gave the noble Lord, Lord Hunt, which I shall repeat, is that the committee considered a number of possibilities and decided that each one of them had considerable flaws and was time-consuming. The committee therefore went ahead and produced a thoughtful document, which is now before your Lordships. The reason—
Lord Naseby
The point that the noble Lord does not seem to have taken on board is: what consultation was there with Back-Benchers? Questions are put down by Back-Benchers. The vast majority of members of the Procedure Committee are not Back-Benchers and they do not put down Questions. On the whole, I question whether they really know what the procedure is and what really happens.
Lord Laming
The committee considered the representations that had been made to them by Back-Benchers and those representations fell into three clear and unambiguous categories as far as the committee was concerned. One is to simplify the procedure; the second is to recognise that not all Members are free to form a queue at two o’clock and not all Members find it a dignified process; and the third and most important point is whether it is possible to arrive at a recommendation that enables a wider range of Members to table Oral Questions.
The committee made these recommendations in the belief that it had addressed the objectives set for it. The committee not only made the recommendations on that basis but recognised that any change has its advantages and disadvantages, many of which have been aired today, and those were considered by the committee. It therefore decided that, if there is going to be a change, which is clearly a matter for the House, why not introduce it on an experimental basis, as set out in the report, so that we can all learn from experience? In the light of that experience, we can either modify what has been recommended or it can be scrapped and we can go back to what is presently in operation.
This House has demonstrated its willingness to look at its procedures. It has demonstrated through the Leader’s Group and other means that it is willing to consider changes in its procedures if it seems that they can be in keeping with the current pressures on the House. As I am sure all noble Lords will agree, it is not a dramatic change to introduce a ballot for matters of this kind. However, I urge the House to consider that, if we accept the amendment of the noble Lord, Lord Lea, we will end up with three different procedures to determine four Questions. I have to say that that is not a system that would appeal to me; nor do I believe that it would simplify the matter.
Lord Lea of Crondall
I must clarify what I said, which was not what the noble Lord attributed to me. A comparison could certainly be made during this six-month period but it would not be a permanent arrangement of having three different systems.
Lord Laming
It is a matter for the House. I warmly commend the report to the House and I hope the House will take it as seriously as the committee did.
Baroness Knight of Collingtree
As I understand it, this is an occasion on which we can express our views on the changes suggested. I am particularly worried that the new system, as proposed, would mean us losing the opportunity of asking a well-timed Question. I do not know whether we would have to put our names down for a Question at any time, but it may not be a time when we have in mind a very relevant and important Question that needs to be answered. I do not see how you get around that. We currently have a system which allows us to do that. I would also say, with the greatest respect, that it is wrong to talk about three-hour waits. I do not put down Questions all that often but when I have done I have never waited for more than an hour. You know perfectly well that if you get there at 1.55 pm and the wait finishes at 2 pm then you have lost. We all understand that. All of us have our difficulties but there are chairs provided and if we really want to put down a very important Question then we can do it. We can do it easily and it is no real problem. It is not a three-hour wait every time you put down a Question. To say that this new system would encourage diversity is an argument I cannot follow. We have great diversity at the moment. In the Commons they deal with one subject on one day whereas we pop from one subject to another with alacrity and great ingenuity. I am extremely worried about a system which would rob us of a very good and timely ability to question the Government.
Lord Barnett
My Lords, I declare an interest. I have occasionally put down Questions. Much of what has been said I entirely agree with. I certainly agree with the noble Baroness. I have never had to wait for three hours to put down a Question and I have put down a fair number of Questions. I have also been very interested to hear that it is all a matter for Back Benchers. Perhaps my noble friends on our Front Bench would note that.
My noble friend Lord Harris made the very important point that if we were to accept this it would not be a fair trial. It is totally confusing. I congratulate the Chairman of Committees on what he said. The present situation is not ideal. There is not an ideal situation available and it is going to get worse. If the rumours I hear are correct—that the Prime Minister is going to introduce another 100 Peers because having lost Lords reform they are now going to destroy us by numbers—it will make the situation even worse and is another reason for the committee to rethink. I hope that the Chairman of Committees will have listened to what has been said today. We cannot expect an ideal solution and I do not expect the committee to come up with one. However, I do expect it to reconsider this. I hope the Chairman of Committees will think very carefully and not press this to a vote. He should take it back for reconsideration. That would be the ideal solution today and I ask him to do just that.
Lord Touhig
My Lords, if I can be forgiven for telling the House, Aneurin Bevan once said that our principles remain constant but our policies have to be reinvented with every generation because policies, like tools, get worn out with use. I want to get across the point that I am not against the idea that we should look at how we table Questions. I am just not sure that this is the right way to be going about it. The work of the House committees is so wrapped up that most of us do not know what is and is not discussed. Some very good ideas have come across the Chamber today but we do not know whether the Procedure Committee has actually considered them. The Chairman of Committees said that two reports were prepared by the Clerks on this matter. Where are they? Are they not available to Members? If we are not members of the Procedure Committee, we are not allowed to go in to listen and see what happens, so we do not quite know what has been discussed.
In my brief remarks I shall confine myself to a few questions. Paragraph 3 states:
“Members will, as at present, be able to submit oral questions four weeks before the sitting day on which they are to be asked”.
Why four weeks? Why not five weeks, or six weeks, or the first Monday after the next full moon? What is the logic about four weeks? Why can we not table Questions for next week? Has this been considered? I do not know.
Following on from the point made by my noble friend Lord Harris, the second bullet point in paragraph 3 states:
“Members will be able to submit an oral question to the Table Office, in person or by telephone, at any time between 10 am and 4 pm on that day. Questions will not be accepted by post, email, fax, or via third parties such as researchers, unless the text is also confirmed by the member in person or by telephone”.
So researchers can table Questions on behalf of Members—it says so here. It is quite confusing. How on earth are we going to resolve the problem if researchers and others are able to phone in or send in fax or text messages? How do you check whether or not a text message is from a Member? I know many colleagues who allow staff to access their own e-mail addresses. How will you know? This causes me some concern.
I assume the Clerks will conduct the ballot. Will we be able to observe the ballot? Will the list of the ballot be published immediately afterwards? These questions might have been considered by the Procedure Committee, but I do not know and I do not know whether other Members of the House know. This is why I am inclined to support the amendment of my noble friend Lord Grenfell and say, “Go back and have another look at this”. I do not know whether the idea of themed Questions suggested by my noble friend Lord Kennedy and others, and the suggestions of the noble Lord, Lord Naseby, have been considered, but they are all worth considering.
Coming back to the point I made at the beginning, I am not against the change. However, I want to know how we have arrived at this position because I am somewhat doubtful that this is the right way to go about changing the procedure for submitting a Question.
Lord Scott of Foscote
My Lords, the attraction of the scheme put forward by the Chairman of Committees is that, on the one hand, it would do away with the need for queueing—on that I have nothing to say because I have never tried to put down a Question and so I have never had to queue—and, on the other hand, the balloting alternative would be fair to all Members who wished to ask a Question. It is that part of the recommendation that I have been considering while the debate has been going on.
It would be fair only if there were a strictly enforced rule that no Member could put into the ballot more than one Question at a time. If a Member drafted 10 different Questions and popped them all into the ballot box, he or she would increase by a factor of 10 his or her chance of success. You can multiply that: if you put in 100 Questions the factor would be 100. There would need to be a strictly enforced rule that only one Question per Member could be put in. How that would be done and enforced, I really do not know.
Lord Howarth of Newport
My Lords, the existing system of first come, first served involves some minor inconvenience and frustration but, on the whole, it works fairly well, certainly if you judge by results. Our Question Time is, by general acceptance, a good occasion: the Government are held to account, there are lively debates and it is a collective occasion for the House as a whole. Therefore the onus is on those who want to change the present system to make the case that it is so unsatisfactory that it needs to be altered.
I am not, however, necessarily opposed to experimentation with an alternative system with a ballot, but I have some anxieties about it. One of my anxieties is that if the process of tabling a Question becomes easier and if, at the same time, the statistical odds that your Question will be successful in the ballot are remote, I fear that the quality of questioning may deteriorate—that people will not take the same trouble to formulate their Questions and we will lose the more forensic and purposeful Questions of the kind that the noble Lord, Lord Naseby, referred to. It is very important for the performance and reputation of this House that we continue to table Questions that are of genuine and broad interest to the generality of noble Lords, that open up important issues and that probe the Government. On the whole, the House at the moment does those things rather well.
Another concern I have was dealt with engagingly by my noble friend Lord Harris. How is the definition of a single subject to be arrived at and who will determine whether a subject is a single subject? I fear that, because of the uncertainty about this, noble Lords will be tempted to game the system and table Questions that are intentionally somewhat vague, highly generalised and lacking in specificity. Again, that will not be good for the House and it will make things unreasonably difficult for Ministers. We need to be sure that we have a proper solution to that issue.
My main concern is that a balloting system in which it is easy for people to put down Questions will be almost irresistibly tempting to the Whips of all the parties. I am not aware, and I have certainly not been subject to blandishments and importunings, that the Whips seek to organise and control Question Time in this House as they do in the House of Commons. That is one reason why the character of Question Time in this House is, to my taste, more satisfactory than the character of Question Time in the House of Commons. What goes on in the House of Commons suits them and is part of the daily drama of the nation, but we have a different culture and style. Personally, I think it would be better for us to continue to conduct the party politics that there inevitably will be in this House sotto voce and in a relatively restrained style, as is our custom and practice, and not seek to emulate the customs and practices of Question Time in the other place. We should be wary of anything that allows the character of Question Time here to drift away from the way it is at the moment and more towards how it is in the other place.
I favour the amendment tabled by my noble friend Lord Grenfell. Before this experiment is initiated, further thought ought to go into it, and I am delighted that the Chairman of Committees has spoken favourably of the amendment in the name of my noble friend Lord Berkeley.
Baroness Gardner of Parkes
Perhaps I may contribute briefly to the debate. Although the noble Lord, Lord Greaves, referred to some of us as fanatics, I would rather think of those of us who ask Questions as enthusiasts. If I had to choose one amendment, I would go for that tabled by the noble Lord, Lord Kennedy, which retains the status quo, but I am impressed by the arguments we have heard about the different problems. One which sounds quite fair is: why on earth should Questions be tabled at 2 pm? If people really cannot get here from Scotland or wherever, they could be considered at some other time.
The question of the ballot is not at all clear. I am opposed to a ballot because it is, as has been said, a raffle or a lottery. The other difficulty with it is that when we ballot for topical questions, we are limited in how many we can ask in a year. There is no clarity as to whether, if we ballot for these Questions, we would be limited in that way. It has been said that the most Questions anyone has tabled is 10 in the past year, so that person must have been pretty conscientious. The idea that it is easy to secure a Question is quite wrong. You have to be there bright and early and you have to queue; you are making an effort and a personal sacrifice. It is better when the next two people arrive. I have found it to be one of the most wonderful places to have a cross-party conversation. When you are waiting there, you may be one of three representative groups, each asking a Question. I find that the present system is excellent.
In his very good presentation of the report, the Chairman of Committees said that we want to encourage new voices. I am all for that, but tabling a Question is only part of the process, and the opportunity to ask supplementary questions is available to any new voice who wants to join in. I know that I am at an advantage because I sit quite far forward and no one behind can disturb me if I stand up. It is a great advantage not to know if someone is trying hard behind you, but there are opportunities to join in. In fact, over the years, many of the questions I have asked have been about things that I had not thought about until I came in. You listen to the exchanges and suddenly you think, “That is something I’d be interested to know about”, and I believe that the new voices can intervene in that way, as well as queueing up for a balloted Question.
I favour the amendment of the noble Lord, Lord Grenfell, because this House’s one big reputation is for thinking again. There is no disgrace whatever in taking this report back for thinking again: that is in full consideration of the traditions of this House. Improvements could be made that must be fair to all Members. A six-month trial would be an appalling waste of time and would not be helpful. That is a personal view, and I know that some people are in favour of the balloted system; I am not. I am, however, in favour of the amendment of the noble Lord, Lord Grenfell, and I hope that it will be carried by the House.
Lord Brooke of Alverthorpe
My Lords, I will speak on the same theme. As a previous member of a Leader’s Group, I want first to make a plea to the Chairman of Committees, who made an excellent presentation in the circumstances. I plead with him to reflect on his decision not to call an earlier meeting of the Procedure Committee and leave it as presently scheduled. We should have an earlier meeting, and he should reflect on that.
Secondly, through the noble Lord, I would like to make an appeal to the new Leader of the House, too, to take into account what has been said today and to have the guts to take it away, to have a look at it, and see if we cannot come back and get the whole House moving together as one. Thirdly, I appeal to those Peers who are perhaps inclined just to vote with the report to see that there have been a number of points made today that really need further examination.
It also reflects to a degree some of the frustrations in the House about the slow progress in implementation of a fair number of the recommendations in the previous Leader’s report. I was one of those who argued for a Leader’s report and for changes in the way that we run Questions. Under the previous Government, we experimented with Questions on particular subjects. That has now gone; it has just been ditched. Previously, we had recommendations that the Leader of the House should present himself, maybe once a week, to answer Questions. That, again, was in the evidence that went to the previous Leader’s Group and nothing has happened on it.
As the noble Lord, Lord Laming, has said, while the committee has given a good deal of attention to the subject already, there are two or three other topics related to it, both directly and indirectly, that need to be brought together and examined in one go. We can then come up with something that will be acceptable to the House overall. I support the amendment of the noble Lord, Lord Grenfell, for a reference back to the committee and for a fairly early response to the House in the spring.
Lord Reid of Cardowan
My Lords, having listened to and participated in Questions in the other House for almost a quarter of a century, please allow me to inform your Lordships that Question Time in this House is more interesting, more varied, usually more relevant, certainly much more of a discourse, and provides more information than what so often turns into a tennis match in the other House, with most Members cheering either one side or the other. The most disconcerting thing that I found on coming to this Chamber was that people actually listen to what one says. If they miss it, they read it in Hansard. This diminishes the rhetoric and contributes much more to the discussion.
My only advice is to be very careful before proceeding to a ballot. Inevitably, it would enhance the partisan nature, and the Whips, being Whips—like the scorpion, it is what they do—would circulate Questions. There would therefore not be the fairness expected, because there would be pro forma circulated Questions that 40 people, rather than one, would be asking. It would be less informative and a backward step for this House. The discourse here is one of the advantages that we have over the other House.
I have one other comment on one of the points made. The idea that queueing is somehow undignified is an intriguing and novel suggestion. I wonder if there is a committee that will consider our voting in light of this new animosity towards queueing.
Lord Stoddart of Swindon
My Lords, I have a very brief question. I have sat through the whole of this debate and must say that, except for one contribution, there has been no support at all for the committee. Given the absence of support, I would like to know exactly how many people made representations to the committee and how many of them did it in writing.
Lord Empey
My Lords, I thank the committee for at least trying to address some of the issues that some of us have over this. I am a relatively new Member—although if the information given by the noble Lord, Lord Barnett, is correct, I may very well soon be able to describe myself as a veteran Member. The Chairman of Committees raised a point about distance. Whether people perhaps realise it or not, the House is very London-centric. The noble Lord, Lord Naseby, was able to say that he is 50 miles away but, as far as I am concerned, that is down the road. It takes me at least four hours door to door, plus the time before that to get up and so on. On a Monday, I find it extremely helpful to have a morning at home when I can work. That means that it is virtually impossible for me, without a lot of effort, to put a Question down then. However, I have tabled some Oral Questions and do not have an antipathy to queuing, as the noble Lord, Lord Reid, has said.
We have heard several Members here today say that they have not put Questions down because they do not particularly like the system. Those who said it are noble Lords of very great standing in your Lordships’ House, and I personally would like to see Questions coming from them. One statistic that the Chairman of Committees gave us was that a significant number of the Questions were asked by a very small number of noble Lords. Enthusiasm is a great thing but, whether we like it or not, the risk highlighted by the noble Lord, Lord Reid—of the Whips becoming involved in the Questions—has to be offset against not many people having a kind of a cartel that corners the Oral Question market. It is a question of getting a balance between those different things, and the committee has tried.
There are many more experienced Members here than me and I do not want to do anything that would make government less accountable. Question Time is one of the very good things in this House, but the proposal from the noble Lord, Lord Berkeley, is one that should be revisited. All the suggestions—such as that the Leader of the House should answer Questions, whether that is here or in a committee—are perfectly valid, and there is a whole range of things that we could look at. However, what we have now is not the perfect solution and it may not even be the best. One has to take account of why so many Members are prepared to participate in debates and become involved in legislation, and yet suddenly there is a very significant number who do not participate in Oral Questions. There is a whole reservoir of skill and ability out there that clearly does not seem to be content with the system. I presume that that is one of the reasons why the committee took the decisions and made the recommendations that it did.
We are making a bit too much heavy weather about a ballot. We already run ballots in this place. The other place and the devolved Administrations run ballots. Indeed, I spent quite a number of years, as have other noble Lords, answering and writing questions on the basis of ballots. It is not impossible to find a mechanism that will work. It is important that there is a consensus on the value and importance of the questioning process, but there appears to be a reticence among those who have participated in this debate to consent to the proposal of a trial. If we are going to change the system, it will inevitably have to be trialled—you would run a trial to iron out the gremlins. I thank the committee for making the attempt to take account of the concerns of some of us who travel from a distance.
Lord Northbourne
My Lords, I will speak just for a moment from the point of view of a Back-Bencher on the Cross Benches without political commitment. Many noble Lords in my position—other colleagues, although perhaps not all—believe that the best way that we can serve the House is to have a specialist interest which we take a deep concern in and spend a great deal of time studying and following. Mine happens to be disadvantaged children and parenting, but there are others. If I come across a situation in which I believe a Question needs to be asked of the Government, all I have to do is give up my lunch, go in an hour earlier and I will be at the front of the queue. If we had a system of ballots there would just be a pot of Questions there and people would put down a Question on the odd chance of it coming through. The value of the Questions would not be so good because they would not be pressed by the deep interest and commitment of the noble Lords asking them. I would plead for a continuation, if necessary, of queuing, but not for a ballot.
Lord Hunt of Kings Heath
My Lords, I am sure that the House will be anxious to come to a conclusion. This is of course a matter for the whole House and not for the Opposition or the Government. I have attended Oral Questions regularly for 15 years now and I echo the point raised by my noble friend Lord Reid—that the quality of Question Time at the moment is of a very high order. It is the focal point of our day: Ministers are held to account, the House is full and Members are attentive. I believe that one should be very wary of changing a part of our daily life that is so successful. I wonder whether the Chairman of Committees—having heard the debate today and that there is some disquiet, to say the least, about this change—would agree for his committee to be asked to give further consideration to this matter.
I carefully intervened on the noble Lord, Lord Laming, whom I respect enormously, on the question of whether this has been subject to a consultation with Members of the House. I think his answer was that the members of the committee are broadly representative of the House. However, given today’s debate, surely it would be entirely appropriate for the committee not only to set out its proposals but to pick up some of the very useful suggestions that noble Lords have made about how Question Time could be enhanced in the future and to engage in a proper consultation with Members of the House. At the end of that process the committee would be well able to reach conclusions, come back to the House with suggestions and arrange for a trial period. We would then see that this process has had the ownership of all Members of the House. I am very wary of a situation where a major change is made to the way we are allowed to table Questions but which clearly does not have ownership among a significant number of Members of the House. On that basis, it would surely be appropriate for the committee to be asked to think again.
The current quality of Questions is particularly high. Looking through the list of Questions, one sees that they are almost all of a very high order and on key issues of the day. As a number of noble Lords—such as the noble Lord, Lord Northbourne, and the noble Baroness, Lady Knight—have suggested, there is a clear pathway to asking Questions on a certain day. On International Women’s Day, World AIDS Day or similar occasions, it is entirely possible for there to be a Question that was put down four weeks before. We will lose any way of doing that in the future. Choosing Questions out of a hat is no guarantee that we will have high-quality Questions and the House may well end up debating second-order issues of little interest to members of the public or your Lordships’ House. I will not go through all the questions that have been raised about the practicalities of balloting but will just make three points.
First, it is not at all clear why research assistants should have any role to play in this matter—I see the shaking of heads. However, it is clearly set out that Questions will be accepted from researchers if the text is also confirmed by the Member in person or by telephone. Why does a research assistant have anything to do with this at all? My understanding is that in December, when the committee discussed this matter, it was stated clearly that Questions would not be accepted from third parties.
The second area, which my noble friend Lord Harris raised, is that of no more than one Question on a subject being accepted for inclusion in the ballot. This follows the current practice for topical Questions. However, the topical Question is different: a bar is set that it has to be topical. We are talking here about all Questions being subject to this test, presumably set by officials in the Table Office, as to whether the Question is a general one which can be accepted—
Lord Barnett
Has my noble friend also thought about the problems this would give the clerks, who would have to choose? I assume that the clerks have other work to do; this complex arrangement would give them rather a lot more work.
Lord Hunt of Kings Heath
More than that, I suspect that it would involve the clerks in judgments which might lead to questions about the way in which they conduct themselves. It would be very unfortunate. We uphold and admire the clerks and I do not think that they should be asked to make those kinds of judgments.
As for queuing, my noble friend Lord Barnett kindly mentioned to the House that I am occasionally able to have a Question on the Order Paper. It is true that I do not mind queuing: I do not understand what the problem is with it. It is a bit much for some of the distinguished Members who have spoken today to say that they do not feel able to put a Question down. I have queued, and I have recently had some very enjoyable conversations with the noble Baroness, Lady Gardner of Parkes. It is not a three-hour queue; very often it can be half an hour. Frankly, those of us who put Questions down accept the system and it is not a problem. It seems that a few people have complained and that the Procedure Committee has suddenly said, “This is a major problem which concerns many Members of the House”. That is not the case.
However, the most substantive point to be made to the Chairman of Committees, whom we all respect and admire, is that there is not a consensus view in your Lordships’ House. To change Questions—the most important focal point of our daily activity—without consensus, seems to me to be an unfortunate way to go about things. I hope that the noble Lord, with all his wisdom and experience, will agree to take this matter back.
The Chairman of Committees
My Lords, it is customary on occasions like this to say what a good debate it has been. I would like to say what a supportive debate it has been, but that would be somewhat inaccurate. It is clear that there are deeply held and different views on how we should go forward with Question Time. I detect a common view that something needs to be done; that is generally recognised throughout the House. The proposals before the House today were produced by the Procedure Committee in a context not of a sustained campaign from anyone to complain about or change Question Time; it was just a drip, drip, drip of comments made that the whole conduct of Question Time was a matter for complaint. When I have held my fortnightly drop-in sessions, every week someone mentioned something wrong with Question Time. It is not the great, wonderful occasion that we like to think it is. Many Members feel that they are excluded from taking part in Question Time because of the way in which it proceeds, and that is a pity.
I shall get one thing out of the way straight away. First, I assure noble Lords that the proposal by the noble Lord, Lord Berkeley, to extend the number of Questions and lengthen Question Time will be addressed by the Procedure Committee within the next one or two meetings, so there is no need to progress that at this stage.
Secondly, a lot has been said about the consultation. That is something that I take very seriously. It is very important that a gap does not develop between Members, particularly Back-Bench Members, and the domestic committees of this House, and I have tried my best to narrow that gap. I have not completely succeeded in closing it, but I hope that it has been narrowed to an extent. In passing, it should be said that no one has come to me to complain about the proposals in the Procedure Committee report, but never mind; let it be.
However, on the issue of Question Time, when I went round to the three party groups and the Cross-Bench groups, I mentioned four topics for consideration in the near future. One of those was Question Time. So it was flagged up to all Members—if they attend their various group meetings—that this subject would be given consideration.
Lord Harris of Haringey
I am grateful to the Lord Chairman; I promise that this will be the only time. I recall that, because I chaired a meeting where one of the party groups was addressed. There are lots of issues about Question Time. The biggest one, which has been referred to several times in passing, is about the slight “bear garden” tendency, where strategic deafness and sitting in the second row is often a very good tactic, as the noble Baroness, Lady Gardner of Parkes, has told us. However, if I recall correctly, when the noble Lord raised the matter of Question Time, it was not about the tabling of Questions; there were other issues about which some Members, quite rightly, feel uneasy.
The Chairman of Committees
I cannot remember word for word what I said, but I think that I flagged up the issue of queuing as something that ought to be considered. The committee recognised that, if we make this change from a queuing system to a ballot system, there will be matters of detail that will most likely be difficult to identify initially. There may well be unintended consequences and there is the possibility, as a number of contributors have mentioned, that the system will be abused. If that happens, we have the opportunity to identify it during the trial period and either modify what is taking place or completely abandon it.
Lord Barnett
On the question of a trial, when I spoke recently about the trial run for access to the House by Members, I was told that it was only a trial. Now we have got it permanently and those of us who have to come by car or taxi will know that the trial and the continuation of it have not been very good.
The Chairman of Committees
I said in my opening comments that I give an assurance that the trial would not be extended beyond the end of this Session, unless this House voted in a deliberate way to continue with it. There would have been no sleight of hand or just allowing continuing practice to develop; it would have required a definite decision by this House.
Lord Reid of Cardowan
I am grateful to the Minister. On this question of a ballot, you do not need a crystal ball when you can read the history book. All you need do is look at the House of Commons. Whether you regard it as a misuse or abuse or as greater openness for democracy, the reality is that if you introduce a ballot every Member of this House will be inundated with pro forma Questions not just from the Whips but from every lobby group, think tank and organisation wishing to push a particular point of view. That will not necessarily mean that they will have more than one Question on the Order Paper, but there will be an almost inevitable process of noble Lords tabling that Question because it is to hand and has been formulated for them. The fairness supposedly attributed to the ballot procedure will therefore be completely undermined. You do not need a trial to see that. It is not just a common-sense matter of anticipating the future; it is the reality of what happens, which could be easily discovered by looking at the Order Paper in the other House and, further, looking at the top 100 Questions that are tabled there. On occasion you will find that, by a remarkable coincidence, a large number of them have exactly the same wording as 20 or 30 others.
The Chairman of Committees
First, I thank the noble Lord for referring to me as “the Minister”. That was some long time ago, when I was a very junior Minister in the department of which he was Secretary of State. My own little story of Question Time refers back to that period. On one occasion I was asked a supplementary question that was rather arcane. As I got up, I made a rather sotto voce comment, as I am tempted to do from time to time. When I sat down, the then Leader, the late Lord Williams of Mostyn, turned to me and said, “John, remember there’s a nation of lip-readers out there”. Some lip-reading could have gone on this afternoon.
Let us cut to the chase. I recognise that there is concern but there is a willingness to change. We have to do a more deliberate piece of consulting, but that places a responsibility on individuals and groups to come forward with suggestions so that they can be assessed by the committee. I am afraid that it is no good thinking that this is a means of kicking the issue into the long grass, where it will die a death and not see the light of day again. I suspect that there is a two-stage process involved in the future of Question Time. One deals with how Questions are put down and the other with the whole conduct of Question Time, which needs serious examination. That will require a difficult piece of voting. On that basis, the usual wisdom of the noble Lord, Lord Grenfell, has shone through yet again and guides us in a way that I think commands the general acceptance of the House. What is important in the noble Lord’s amendment is the deadline of Easter. That is a very important discipline that we have to accept in order to get things moving.
Lord Lea of Crondall
My Lords, I think the procedure is that we all withdraw our amendments in favour of my noble friend Lord Grenfell’s amendment. This has been a very interesting debate and I am glad that I put down the first question before Christmas because it has led to a flood of questions, leading ultimately to my noble friend’s amendment. I am very glad to beg leave to withdraw the amendment.
Lord Naseby
At end to insert “except that on any day on which oral questions are asked the first two such questions shall be allocated according to the procedure currently in place”.
Lord Kennedy of Southwark
At end to insert “with the exception of the recommendation on tabling oral questions contained in paragraph six of the report”.
Lord Grenfell
At end to insert “with the exception of the recommendation on tabling oral questions contained in paragraph six of the report, and that this House instructs the Committee to consider and report again on the procedure for tabling oral questions before the Easter recess”.
Lord Berkeley
At end to insert “and that this House instructs the Committee to consider and report on whether the number of oral questions should be increased from four to five each day, and the time allowed increased from 30 to 40 minutes”.
Public Service Pensions Bill
(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Newby
Lord Newby
My Lords, this is an extremely long group of government amendments. I preface my remarks with an apology to noble Lords who have taken an interest in the Bill. The letter that I circulated about government amendments was done at an extremely late stage. There is nothing Machiavellian about that: it flows directly from the fact that we are having this debate two days after the end of the Christmas Recess. The Bill team, myself and others were not working over Christmas to the extent that would have permitted us to get the amendments down earlier and inform noble Lords about them. However, I hope that in most cases, if not all, noble Lords will find them helpful and so will forgive me for that.
I start by noting that I will not move government Amendment 3, which relates to Northern Ireland civil servants. On reflection, that amendment is considered unnecessary because Amendment 9 to Schedule 1 does what is needed to remove Northern Ireland civil servants from the scope of the Bill.
In line with the recommendations of the noble Lord, Lord Hutton of Furness, the Bill was drafted to provide a legislative vehicle for the reform of all public service pension schemes in the UK to make them fairer and sustainable. However, legislative competence for some of the pension schemes is devolved to the Administrations in Northern Ireland, Scotland and Wales. We have always been clear that the devolved Administrations would have the final decision as to whether or not the Bill should apply to their devolved pension schemes.
On 26 November, the Northern Ireland Executive announced their decision to bring forward their own legislation to reform the pension schemes of their public servants. These schemes will be based on the recommendations of the noble Lord, Lord Hutton. This will affect schemes relating to Northern Ireland civil servants, the devolved Northern Ireland judiciary and, in relation to Northern Ireland, local government workers, teachers, health service workers, fire and rescue workers, and police and public bodies whose pension provision has been devolved.
On 28 November, the Scottish Executive announced their decision to exclude the small schemes for which they have legislative competence from these reforms. This will affect a small number of members of the junior Scottish judiciary and some Scottish public bodies whose pension provision has been devolved. The Bill will still make provision for Scottish schemes for which Scottish Ministers have executive, but not legislative, competence. These are schemes relating to teachers, health service workers, firefighters, police and local government workers in Scotland. Consequently, I beg to move these amendments that will collectively ensure that the Bill is disapplied from those pension schemes for which the Northern Ireland Executive and the Scottish Government have legislative competence.
Amendments 102 and 109 relate to the Scottish Government’s wish to extend a power in the Police and Fire Reform (Scotland) Act 2012 to enable pension and other benefit schemes to be made for Scottish police cadets and special constables. This will be done by way of an order made under the Scotland Act 1998 which will be laid before Parliament shortly and is expected to commence in 2013. In anticipation of that order, these amendments will ensure that these pension schemes will be included in the reforms legislated for in the Bill. As such, the new pension schemes made for Scottish police cadets and special constables will be reformed in the same way as the other public service pension schemes in Scotland.
The amendments also ensure that any compensation or injury benefit schemes made under the extended powers will not be subject to the reforms. This is consistent with the Bill’s treatment of compensation and injury benefit schemes in other areas of public service, such as the main police schemes. I am sure that noble Lords will agree that such equitable treatment is fair and proper, and I beg to move these amendments to the Bill.
Lord Eatwell
My Lords, I am grateful to the Minister for introducing his amendments, and for his apology with respect to their late arrival. It is of course understandable that this comes after the holiday period, although I was slightly taken aback to hear just now that the Northern Ireland announcement was made on 26 November. What has been happening since then? Christmas started a month later. I am very surprised that we now have Northern Ireland effectively removed from the Bill on the day before Committee, and the House not being informed about this when the team apparently knew of it a month and a half ago.
Before commenting on these amendments, I myself apologise to the House for being unable to be here for Second Reading. I am grateful to my noble friend Lord Davies for having stood in on that occasion.
In considering the Bill most broadly, the first thing that strikes one is the list of professions under Clause 1. These people are the very bedrock of our society. It is crucial to ensure that they have the best conditions, including the best pensions, that are affordable. At the same time, we have to recognise the pressures that an ageing society places on pension provision. The key to squaring the circle is trust; this is going to be a theme in discussing all the amendments to come. We need to incorporate into the Bill a framework that provides clear assurance so that people who perform the public services on which we all depend can face the future with confidence. That means that the Government must place clear, unambiguous commitments in the Bill—not vague promises of Ministers—about what they may really intend. Ministerial promises are simply not good enough, because these measures are intended to be long-term. In the long term, Administrations change and no Administration can bind its successor, so in the long term ministerial assurances are virtually worthless. But if future Administrations are faced with clear primary legislation, then change can be made only by returning to Parliament.
It does not assist in the building of trust when the Government table well over 100 amendments on the day before Committee. Most of these—although not all, as the Minister pointed out and I will demonstrate—arise from the refusal of the Northern Ireland Administration to pass a legislative consent Motion in respect of the Bill. In effect, as we have heard, Northern Ireland is being written out of the Bill. It would be interesting to know what Northern Irish colleagues in this House feel about this. Moreover, given that an important objective of the Bill is to manage the cost of pensions, what implications does this last-minute decision have for the public finances? Presumably this will increase long-term deficit projections—by how much?
More importantly, what negotiations are under way with the Northern Ireland Administration about the future shape of pensions in Northern Ireland; and, indeed, with the Scottish Parliament about the future shape of pensions in Scotland; and, indeed, with the Welsh Assembly, which we are told is still to consider the matter? This Bill has passed the Commons and we do not even yet know who is to be included in it because the Welsh Assembly has not reached its decision.
I am astonished that we have this brief note, circulated the night before, with amendments. We have this brief introduction from the Minister when the Bill has been changed in such a radical and fundamental way. What are the Government going to do now about both Northern Ireland and Scotland? What are they going to do about Wales if the Welsh also refuse to pass a legislative consent Motion? Given that the terms of devolution are different in Northern Ireland, Scotland and Wales, the result of all this is going to be a confused plethora of pension conditions throughout the UK—exactly the sort of confused melange that the admirable report by my noble friend Lord Hutton sought to eliminate. Indeed, it was my noble friend’s recommendation 24 that the Government should introduce primary legislation to adopt a new common UK legal framework for public service schemes. This is clearly what the Government are failing to do.
The reference to Scotland is important, because not all the amendments in this group refer solely to Northern Ireland. The Minister referred to Amendment 96, to a “holder of devolved office”. That therefore applies to Northern Ireland and Scotland. Interestingly, the noble Lord did not refer to Amendment 148, which, in defining what a “devolved office” might actually be, excludes Wales. What will happen to Amendment 148 if the Welsh now refuse to accept being included in national procedures? We really ought to be told to whom this legislation is actually going to apply.
Amendments 102 and 109 expressly include Scottish schemes, established under the Police and Fire Reform (Scotland) Act 2012, within the scope of the Bill. Amendment 139 on the approval of new schemes again refers to all devolved Administrations. What does that mean? It certainly does not mean what is defined by Amendment 148, because we do not know what the Welsh are going to do.
What we have here is a bit of a mess. The Minister must tell us how this mess is going to be resolved. How are we going to try to have some degree of consistency in public pension provision in which people can have confidence throughout the United Kingdom? We can go two particular ways. One is to attempt to negotiate an all-UK structure, which has the sort of simplicity and clarity that was suggested by my noble friend Lord Hutton. The Minister should then tell me what negotiations are proceeding to establish that common UK structure, given the devolved responsibilities of the devolved Governments and Assemblies. We should be completely clear that pensions in Northern Ireland are different from pensions in Scotland, different from pensions in Wales and different from pensions in England, and that the relevant authorities have responsibilities for their particular jurisdictions. However, of course, we do not have that. In Scotland, we have a mixture: some pensions are the responsibility of the Scottish Parliament and some are not.
Our Amendment 28A—which noble Lords may have noticed is buried in this group so that it is almost undetectable, but it is there, although the noble Lord did not deign to refer to it in his opening remarks—seeks to make some sense of this mess by recognising that regulations relating to local government workers in Scotland should require the approval of the Scottish Government. I am well aware that local government pensions are a reserved power under the Scotland Act. In the past, as the noble Lord said, Scottish Ministers have had executive responsibility for making regulations for public service schemes, but they require Treasury approval. But these have typically concerned minor matters. There has not been any big issue which has been likely to bring about a significant difference of opinion between the Scottish Parliament and the Treasury.
However, this Bill completely transforms the situation. It is a framework Bill that will be followed by regulations that are very substantial indeed. Moreover, the local government workers’ schemes in Scotland, like those in England, are funded schemes. It is important, given the extensive powers of interference conferred on the Treasury by this Bill, that the Scottish authorities have appropriate responsibility for decision-making on those funded schemes.
Since, as I understand it, the UK Government have not used their reserve power on Scottish local pensions in the past—in other words there has not been any disagreement in the past, although I am quite willing to stand corrected as it is quite difficult to research these things—it is surely inappropriate to do so now. It is surely right that the Scottish authorities should be responsible if we are going to go for this devolved structure of pensions and give up on the idea of my noble friend Lord Hutton’s proposal for a common UK scheme.
Far from being technical, this huge swathe of amendments raises major questions over the scope of this Bill and introduces complexity where there was once consistency. If the devolved Administrations are to have entirely separate schemes, so be it, but make it clear, rather than this hotchpotch of amendments and qualifications. If we are to have a Public Service Pensions Bill, not a “some people in the public service and some others not” pensions Bill, the Government must reach agreement with the devolved Administrations. They must bring back to this House a proper, comprehensive structure so that we can understand the relationship between those schemes that will obviously be national, such as the schemes for the Armed Forces, who are of course servants of the Crown, and those schemes which are to be devolved. If we are to have a common scheme, let us get on with the negotiations and bring the common scheme to this House. Last-minute changes as far-reaching as these are entirely unacceptable.
Baroness Donaghy
My Lords, when I was chair of ACAS, one of my jobs was to try to read between the lines of documents like this, which is very difficult to absorb at such short notice. In reading between the lines—I am only guessing—it seems possible that the Minister has been placed in a difficult position in terms of timetable, which might not be entirely under his control.
I want to make a slightly narrower point than that made by my noble friend Lord Eatwell and probe a little on this issue of Scotland. When the Minister was summing up at Second Reading, he indicated that the Scottish Government had accepted the “generality” of the Government’s proposals, which he said were very much based on those put forward by my noble friend Lord Hutton. In terms of the more detailed proposals, the noble Lord informed us that,
“the Chief Secretary has written to Scottish Ministers inviting them to propose amendments if they feel the provisions of the Bill are not suitable for the Scottish pension scheme”,
and that as of 19 December, no such amendments had been proposed. He concluded that:
“Any regulations made by Scottish Ministers will be subject to the procedures in the Scottish Parliament”.—[Official Report, 19/12/12; col. 1585.]
I am setting this scene because the point that I want to emphasise is that the Bill is based upon negotiations—these are not technical points that I am trying to make. The Bill is based upon negotiations in England and Wales and has not been subject to the same level of negotiations in Scotland. I am talking about the parties involved in the local government scheme there. I may not know much about the detail of the relationship or the liaison between the Chief Secretary and the Scottish Government, but I do know about genuine involvement and consultation. If you invite someone to a party that is in full swing, they are entitled to feel various emotions, and one of them will almost certainly be resentment that they were not invited earlier. I cannot expect the Minister to be completely frank in the Chamber, but I am slightly puzzled about why the invitation was delayed.
This Bill prescribes the design of Scottish schemes in a way that current UK primary legislation does not. It is vital that the Scots be fully involved in this process and that the Bill should be amended to maintain the powers of the Scottish Parliament to design and regulate the public service pension schemes that are devolved to Scotland. I know that this is a slightly different point from that made by my noble friend Lord Eatwell, but as we are where we are on this. I just want an assurance that the parties involved in this are being fully involved. I hope that the Minister will accept Amendment 28A.
Lord Newby
My Lords, I hope that I can clear up some of the confusion in the mind of the noble Lord, Lord Eatwell, about this, and I am very pleased that the House has not been deprived of his Second Reading speech.
The noble Lord asked about what this meant in terms of the differences in the way in which the schemes will be applied across the various component parts of the UK. I will deal first with Northern Ireland. I point out that I made it clear at Second Reading that the Northern Ireland Executive were intending to proceed in the way to which these amendments give effect. We were not hiding anything from the House. The other point is that the Northern Ireland Executive have accepted the principles of the report of the noble Lord, Lord Hutton, and therefore we would expect that where we end up in Northern Ireland will be very similar to where we are in the rest of the UK.
However, this is a decision for the Northern Ireland Executive, not for us. The Government would have been very happy to include Northern Ireland in the Bill; indeed, that is the basis on which we started, that it would be easier to take something out than to put it in. But it is their decision and their power as a devolved Administration.
In respect of public sector pensions in Scotland and Wales, the areas for which the Scots and Welsh have complete devolved authority are very small. In Scotland, we are talking about part of the judiciary—I gather it involves six judges—and certain public bodies. For the generality of public servants in Scotland, 98% to 99% of them will be covered by the Bill. Those that are being excluded are these small numbers. Equally, in Wales, the number of people for whom the Welsh Assembly has total authority is very small. I think, although I may be wrong, that it only involves councillors and Assembly Members. Again, the vast bulk of the public servants in Wales will be covered by the Bill even as amended. I do not think that we are going to have quite the hotchpotch that the noble Lord is concerned about.
Baroness Donaghy
If this covers so few people—and I come back to Scotland again—why did this not emerge in the Second Reading debate? Why was the House left with the impression that the Scottish devolution issue would cover more than just the few public servants referred to? A slightly misleading impression was given, if the Minister does not mind my saying so, because there is a feeling that the public servants in Scotland have been left behind on this. I emphasise that the negotiations that took place in England and Wales did not take place in Scotland. This is a very important point. I am sorry to keep going on about it, but it is all very well to hide behind technicalities about how many people are involved—I am really quite shocked that it has emerged today that so few people were involved. I just wonder whether this would not have led to a bigger debate at Second Reading.
Lord Newby
The distinction between the very small numbers that I have been talking about and the rest of the public servants in Scotland is that the rest of the public servants in Scotland are covered by the Bill. The schemes established under the Bill for public servants in Scotland were still negotiated in Scotland, but the framework for public sector pensions in Scotland, with the exception of those very small numbers, will be the same as in the rest of the UK. There is devolved power to the extent of the scheme negotiations within the framework of the Bill.
Lord Eatwell
In using the word “power” there, is the Minister aware that it will still require Treasury approval?
Lord Newby
I shall come to that in dealing with the noble Lord’s Amendment 28A. I did not fail to refer to it in any slight meant to the noble Lord. I thought that it was more courteous for me to allow him to make his case and then for me to reply to it.
Amendment 28A would change the current devolution settlement. I know how much importance many noble Lords across all sides of the House attach to devolution matters, but a Bill on the reserved matter of public service pensions is not, in the Government’s view, an appropriate vehicle for reworking the devolution settlement put in place by the Scotland Act 1998 or for rewriting the long-standing Sewel convention. I hope that I can explain what I mean by this.
Part II of Schedule 5 to the 1998 Act makes it clear that, with minor exceptions, this Parliament has exclusive competence to legislate for public service pensions in Scotland. This includes the local government pension scheme in Scotland. Requiring the approval of the Scottish Government in relation to reserved matters would run counter to the principles of the Sewel convention. In constitutional terms, approval of the Scottish Parliament in relation to primary legislation on Scottish local government pensions is not needed under the convention. Furthermore, as the Scottish Finance Minister told the Scottish Parliament on 28 November, the Bill does not contain any provisions,
“over pensions for local government, the national health service, teachers or police and fire staff—that would trigger the Sewel convention”.—[Official Report, Scottish Parliament, 28/11/12; col. 14014.]
I can reassure noble Lords that, although the Bill sets a legislative framework setting the parameters for pension scheme designs, Scottish Ministers have the freedom to decide on many of the details of scheme regulations relating to Scottish local government workers. This includes how generous the scheme is. The Treasury has not set a cost ceiling for any of the Scottish schemes. The cost of Scottish schemes will have to be met from the Scottish block grant. Furthermore, Clause 3 explicitly states that Treasury consent is not needed for Scottish local government scheme regulations. When pension regulations are made for the Scottish local government sector, the Scottish Government will design the terms of those pensions under the framework of the Bill, and will put them before the Scottish Parliament. That is how legislation on this topic falls to be dealt with under the devolution settlement. It would be a novel and unhelpful step to make the application to Scotland of legislation that is reserved to Westminster, subject to the prior approval of the Scottish Government in the way suggested by this amendment.
I hope that goes some way to explaining to the noble Baroness, Lady Donaghy, what the situation is in Scotland and why it is not for the Westminster Government to set out or agree the details of the schemes. It is for us to set out the framework and then, under the devolution settlement, for the Scottish Government to have negotiations that will lead to detailed scheme provisions.
Lord Newby
Lord Newby
Lord Newby
(a) the Secretary of State, in relation to an office with a jurisdiction exercised exclusively in relation to Scotland, or(b) the Lord Chancellor, in any other case. (2) An order under sub-paragraph (1) may only specify an office in or as regards Scotland or Northern Ireland if the office is not a devolved office.”
Lord Eatwell
“(d) the Defence Fire and Rescue Service”
Lord Eatwell
My Lords, I shall speak also to Amendment 15. These amendments concern the position within the pensions system of Ministry of Defence firefighters and police. Clause 9 provides that the normal pension age of a person under the scheme must be the higher of the person’s state pension age or the age of 65, but three categories of workers are exempted from this provision—fire and rescue workers who are firefighters, members of the police force and members of the Armed Forces. Paragraph 6 of Schedule 1 defines fire and rescue workers as being persons employed by,
“a fire and rescue authority in England and Wales … the Scottish Fire and Rescue Service, or … the Northern Ireland Fire and Rescue Service Board”.
However, none of this includes firefighters who work for the Ministry of Defence. This issue seems not to have been noticed in another place when the Bill was considered there. Amendment 13 would rectify this omission by including the Defence Fire and Rescue Service in the definition of fire and rescue workers. Amendment 15 does the same job with respect to Ministry of Defence police.
We should make it clear that we are not seeking to extend the exemptions provided under Clause 9 but merely to rectify what appears to us to be an oversight and to ensure consistency of treatment across the same profession. In my years in this House, it has always puzzled me that when very obvious oversights appear in the middle of the discussion of a Bill, somehow Governments of whatever party think it necessary to defend their original position as if it was an ultimate truth and not admit that occasional oversights are made.
Let us turn to the fire and rescue service. There are two aspects to the job of defence fire and rescue service firefighter. They work at home on domestic military bases and other MoD premises and they work abroad when they are deployed in war zones. In the UK, defence fire and rescue firefighters deal with fires, accidents and floods, and firefighters deployed to war zones deal both with fires and the general catastrophic aftermaths of conflicts. The nature of the work they do—I am sure that the House will appreciate its physicality—is very similar to, if not beyond, that to be expected of a domestic firefighter.
The oversight became evident when the Government were contacted by an MoD firefighter in relation to this issue. In their reply, the Government justified—I was going to say invented—their decision to exclude MoD firefighters from the exemptions in the Bill as follows. First, they said that firefighters are covered by the Principal Civil Service Pension Scheme, and so the benefit structure and contribution rates which apply to MoD firefighters are those of that scheme and not those of the Firefighters’ Pension Scheme. The Civil Service unions accepted an increase in the normal pension age to 65 for all staff joining since 2007 for that general Civil Service scheme. On that basis the Government claimed that MoD firefighters are already subject to the normal pension age of 60 or 65 and so the recommendation of the noble Lord, Lord Hutton, to adopt the new pension age does not apply. The final proposed agreement issued by the Government to the unions on 9 March 2012 includes transitional protection for PCSPS members so that any member who is within 10 years of normal pension age on 1 April will see no change when they retire. However, beyond that there is the proposed tapering arrangement. Although there are many similarities between local authority and MoD firefighters, the Government claimed that the terms of employment, as well as the roles performed, are not identical. Here the Government are correct—the roles performed are more arduous in the MoD than they typically are for domestic firefighters.
During the Second Reading debate, which I had the chance to read, the Minister said:
“The noble Lord, Lord Davies, asked about MoD firefighters. MoD firefighters are in the Civil Service Pension Scheme at the moment. They will have their pension age linked to the state pension age to ensure consistency within the scheme. The Bill does not move any groups from their current schemes. Indeed, these MoD firefighters have always had different terms and conditions from other firefighters. This already includes a pension age of 65 for new joiners as a result of changes implemented by the previous Administration”.—[Official Report, 19/12/12; col. 1585.]
I will make a number of points about the Minister’s statement. First, I am afraid that he misspoke. It is not true that the Bill does not move any groups from their current schemes—it does. Clause 28 closes public body schemes listed in Schedule 10, and the Government have the power to move people from those schemes to schemes established under Clause 1 or to create new public body schemes for them. It is not true that people are not moved from one pension scheme to another in this Bill.
Secondly, there is no reason why the Civil Service scheme rules cannot provide for a different retirement age for MoD firefighters as well as for police. Why can that not simply be put into the Civil Service pension scheme rules?
Thirdly, the fact that MoD firefighters have always had different terms and conditions from other firefighters does not mean that their retirement age should not be aligned with that of local authority firefighters in the light of the recommendation of the noble Lord, Lord Hutton, that uniformed services should have a normal pension age of 60. To quote the noble Lord:
“The exception is in the case of the uniformed services where the Normal Pension Age should be set to reflect the unique characteristics of the work involved. The Government should therefore consider setting a new Normal Pension Age of 60 across the uniformed services”.
MoD firefighters are uniformed, as are the MoD police.
Fourthly, as it stands, the MoD firefighters who have joined since 2007 come under the new rules established then and have a normal pension age of 65, while the rest have a normal pension age of 60. It is true that we on this side of the House, when in Government, introduced the change in 2007, but that was well before the report of the noble Lord, Lord Hutton. In the light of his recommendations, which we accept, all firefighters, including MoD firefighters, should have a pension age of 60.
Finally, in his interim report, the noble Lord, Lord Hutton, said:
“The current public service pensions structure was not designed for modern working patterns and has been unable to respond flexibly to changes in this area and to demographic change over the past few decades. This has led to … unequal treatment of members within the same profession”.
That is what the noble Lord, Lord Hutton, sought to correct. The position of the MoD firefighters is a prime example of the growth of unequal treatment which we now have the opportunity to correct.
It is unfair for firefighters who serve our Armed Forces to have to work for up to seven years longer than other firefighters, remembering that they can—and do—serve in war zones. I hope that the Minister will listen to these concerns, recognise that the physical demands on these firefighters are equivalent to or indeed greater than those on other firefighters, and accept this amendment.
Turning to Amendment 15, I will not repeat all the issues that apply to the MoD police. However, I remind the House that MoD police officers are required to carry weapons and wear body armour in many of the areas in which they serve. The physical demands on them are significantly greater than the demands made on most of our police officers. It is true that some of our normal police officers also carry weapons and wear body armour, although it should be noted that the MoD police often carry heavy machine guns. It seems to me that there has simply been an oversight. Will the Government not own up, say that there has been a slip or oversight here, and accept that MoD firefighters and police, as a uniformed service, should have a pension age equivalent to that of other uniformed services? I beg to move.
Baroness Harris of Richmond
My Lords, Amendment 15 is grouped with that of the noble Lord, Lord Eatwell, and the noble and learned Lord, Lord Davidson of Glen Clova. I am most grateful to them for adding their names to my amendment. I, too, apologise for not having taken part at Second Reading when I might have raised these particular concerns, which I am very grateful to the Ministry of Defence Police Federation for drawing to my attention. As I have only just started to speak on this matter, I declare an interest as a former member and chair of a police authority and a current member of the Independent Police Commission, which is chaired by the noble Lord, Lord Stevens of Kirkwhelpington.
As we have heard, the commission chaired by the noble Lord, Lord Hutton, recommended that the normal pension age for members of public service pension schemes should be the same as their state pension age, which means that those on the scheme should retire at 65, rising eventually to 67 or 68. As the noble Lord, Lord Eatwell, said, it was also recognised that those who were in the uniformed services—the Home Office police, fire and rescue service personnel and, of course, the Armed Forces—should have a retirement age of 60, but that this would be kept under regular review. The Government were happy to accept this recommendation. However, as the noble Lord, Lord Eatwell, reminded us, for some unaccountable reason, the Ministry of Defence Police are not treated in the same way as Home Office police as they are members of the Principal Civil Service Pension Scheme.
I contend that it is reasonable to say that someone on that scheme would be fairly limited to doing mainly desk work, unless, of course, they are James Bond. However, that is most definitely not the case with members of the Ministry of Defence Police. The reason the noble Lord, Lord Hutton, felt that the age for uniformed service personnel should be 60 in future was to recognise the unique and physically demanding nature of the work that they do. However, because the MDP were lumped in with the Civil Service pension scheme—the reason for which I have never really understood—they were never considered separately in his proposals. Indeed, the MDP were not even consulted on this when the Council of Civil Service Unions negotiated the age increase for all other civil servants. As the noble Lord, Lord Eatwell, eloquently laid out, it seems wholly unfair on a number of grounds that they should be treated differently from colleagues who do very much the same sort of work: namely, Home Office police, fire and rescue personnel and our Armed Forces. The Ministry of Defence Police have a pay structure linked to that of Home Office police forces, so why are they to be treated differently in pension terms?
As we have heard, all MDP personnel are required to be armed. They have to wear heavy body armour and equipment which weighs more than four and a half stones and is removed only when they have meal breaks. This means that in a 12-hour shift, they carry that amount of weight around for 11 hours. This can be even more physically demanding than general policing. Unlike Home Office police forces, MDP officers have no option for to move to unarmed work, should they no longer be able to cope with the physical demands of the job. They either have to retire early, as there is little scope to offer easier work assignments, or they could be dismissed on grounds of inefficiency. That is not much of a state thank you after serving in such high-profile roles.
It is a fact that the MDP’s main role is that of counterterrorism. It is easy to see that their officers, who are routinely armed, are exposed to danger every bit as much as their Home Office colleagues. Indeed, MDP officers continue to serve in Afghanistan and other overseas theatres in support of the Foreign and Commonwealth Office, as well as protecting sites of critical national infrastructure. Did noble Lords know that our Home Office police are not expected routinely to carry guns beyond the age of 55? I certainly did not know that; perhaps I should have done. Therefore, it seems to me even more urgent that this anomaly in pension age provision is hastily cleared up.
The national state pension age is already due to rise to 67 and could well go to 70 and beyond in the future. There is provision, I understand, for negotiation for the normal pension age for MDP officers to be reduced by three years, but I submit that this could still leave a situation whereby officers in their late 60s are expected to carry firearms and their associated equipment weighing four and a half stones. As I say, at the moment, the Government have the power to vary the retirement age from the state pension age by only three years. Therefore, the older these officers are allowed, or expected, to retire, the greater the health and safety issues will become. I urge your Lordships to consider that dilemma.
Like the noble Lord, Lord Eatwell, I would also like consideration to be given to similar arguments relating to the Defence Fire and Rescue Service, where operational firefighters are to be asked to work until they are around 68, whizzing up ladders, rushing about putting out fires and wearing breathing apparatus. As we have heard, they can also be deployed to war zones. Their concerns also urgently need to be addressed.
If this amendment is accepted, it would not reduce the normal pension age for MDP officers to 60 but would allow the Defence Police Federation to continue to negotiate on behalf of its members. I feel that that is a right and proper thing to do. A review of terms of service is being undertaken and the Government will have the power to make a separate decision on the MDP retirement age, if they choose to do so. My amendment simply asks for time to allow those negotiations to continue. Even if my noble friend cannot accept my amendment, I ask him at least to agree to his officials meeting the Defence Police Federation to explore this matter further. However, I hope, of course, that he will accept the amendment.
Lord Newby
My Lords, these amendments seek to add members of the Ministry of Defence Fire and Rescue Service and the Ministry of Defence Police to the categories of “fire and rescue workers” and “members of a police force” set out in the Bill.
I would like to begin by setting out the current situation before responding to the proposals for change. First, as the noble Lord, Lord Eatwell, pointed out, members of these forces are civil servants who currently, and historically, have access to the Civil Service pension scheme. This scheme currently has a pension age of 65. The principle of working beyond 60 for the MoD fire and police services is already established and has existed for a number of years, while the retirement age for the police and fire services has been well below 60.
Secondly, we should remember that the Civil Service scheme is an extremely good pension scheme with benefits which are far beyond the aspirations of many in the private sector. The scheme has provisions in place to ensure that any individuals who face ill health can be provided with their pension early. Alongside this there is, of course, the option for individuals to retire before their retirement age on an actuarially reduced pension. The value of the Civil Service pension scheme is shown in the fact that DFRS and MDP staffing levels remain good and that individuals in this force have already taken employment on the basis of the package of terms and conditions currently in force. The Government do not believe that there are significant recruitment and retention issues associated with the continued use of the Civil Service pension scheme.
Thirdly, it is worth remembering that the employment status of those working in the Defence Fire and Rescue Service and the MoD Police is very different from those working for fire or police authorities. Members of the DFRS and the MDP are direct employees of the Secretary of State for Defence and their remuneration package is managed in a different way. The kind of changes that are suggested by the amendments would make most sense only as part of a fundamental restructuring of not only the terms and conditions of these forces but their roles and responsibilities and they way in which they are managed. They are currently part of a single scheme that is administered at a national level. There would be significant logistical and administrative difficulties in moving them to be part of a locally administered scheme. The Government do not believe that such a restructuring is a way forward.
Having said that, I should point out that, within the new Civil Service scheme, the flexibility will exist for the impact of the later retirement age to be mitigated for certain groups, should this be felt to be justified. This could, for example, be through fully funded early retirement or more generous early retirement factors.
As the noble Lord, Lord Eatwell, pointed out, these issues were not discussed substantively in another place and the amendments have gone down only in very recent days. However, I can give an assurance that the Government will give these matters extremely careful consideration between now and Report. We are very happy to meet members of the Ministry of Defence Police and the Defence Fire and Rescue Service if they would like to do that. I will be in a position to give a more considered response to movers of the amendments and to the House as a whole on or before Report. I therefore urge noble Lords to withdraw their amendment today.
Lord Eatwell
My Lords, I am grateful to the noble Baroness, Lady Harris, for her remarks. I rather pre-empted her discussion of Amendment 15 and I apologise for that. It was, after all, her sensible, balanced and valuable amendment to which we added our names rather than the other way around. I must, of course, accept the Minister’s offer of further consideration. In looking at further consideration, I urge him to put aside the canard of logistical and administrative difficulties. The phrase “logistical and administrative difficulties” is a wonderful excuse for doing nothing on all occasions. As an academic, I recognise that very clearly. It is the doctrine of unripe time: the time is not ripe and therefore we must not do anything. Logistical and administrative difficulties fall into the same pattern.
Nor is the recruitment argument a terribly good one. In this country, where we have 2.8 million people unemployed, it is not hard to recruit people in many professions. The idea that a lack of recruitment difficulties is somehow a justification for maintaining something that is manifestly unfair is not very good. I am delighted that the Government will take this away and consider it. I look forward very much—as, I am sure, does the noble Baroness, Lady Harris—to the Government taking a fair and balanced approach to this issue, which will result in amendments to the Bill that are akin, if not identical, to those we have put down. In the mean time, I beg leave to withdraw the amendment.
Lord Newby
Lord Newby
Lord Newby
Lord Eatwell
Lord Eatwell
My Lords, we now turn to Clause 3, which I believe to be the most unfortunate part of the Bill as drafted. Everything else, broadly, can be dealt with reasonably straightforwardly but this, I am afraid, goes a bit further. The clause undermines everything that was achieved by my noble friend Lord Hutton in building understanding and trust. It would give any Government of the day unprecedented powers over individuals’ property rights—powers which no ministerial assurances or blandishments can dilute.
The damage is all done in subsection (3) of Clause 3. In Clause 3(3)(b), scheme regulations may,
“make provision by amending any legislation (whenever passed or made)”.
It is no wonder that the Delegated Powers Committee of your Lordships’ House objected so strongly. It made the perfectly balanced and reasonable suggestion that Clause 3(3)(b) be limited,
“so far as it confers power to amend primary legislation, to amendments of Acts passed before the end of this session … and to making only consequential provision or provision that is necessary to ensure consistency”.
Our Amendment 26 is designed to do just this by eliminating the offending Clause 3(3)(b) and allowing Clause 3(2)(b) to take the strain of,
“consequential, supplementary, incidental or transitional provision”.
If the Minister has an alternative way of implementing the proposals of the Delegated Powers Committee, we on this side will be happy to support it. However, as the matter stands, the Henry VIII powers in Clause 3(3)(b) really cannot stand.
Of even greater moment is Clause 3(3)(c), which states that scheme regulations may “make retrospective provision”. Just like that: unqualified, unlimited, they may make any retrospective provision, including the withdrawal of previously accrued rights. A central tenet of pension provision is that benefits that have already accrued are deferred earnings and cannot be reduced. To do so would be akin to taking back a proportion of an employee’s wages that has already been paid.
Indeed, it may well be that Clause 3(3)(c) is actually contrary to the European Convention on Human Rights. The Government acknowledge this in the Explanatory Notes, where they say:
“Clause 3: Scheme regulations. This allows for scheme regulations to contain provisions with retrospective effect. Such retrospective changes … may constitute an interference with property within the meaning of Article 1 Protocol 1”.
The noble Lord, Lord Newby, signed the Bill as being not in contravention of the European Convention. It is striking that the Explanatory Notes devote several pages to discussion of this particular issue. Pages 44, 45 and 46 of the Explanatory Notes give detailed legal arguments and case citations on the issue of property rights as protected by the European Convention. Ministers have asserted consistently, both in another place and at Second Reading, that they have no intention of removing accrued rights and that this notion of retrospective legislation will never be used to reduce accrued rights. If that is so, why is there all this stuff in the Explanatory Notes about accrued rights? Why do we have all this material here if it is not relevant because Ministers have no intention? If they have no intention, why is that provision in the Bill?
Lord Lester of Herne Hill
I was not expecting to be on my feet at all, but the answer to the noble Lord, Lord Eatwell, is that the Joint Committee on Human Rights, to which I belong, has for many years persuaded successive Governments to be as full as possible in explaining compatibility statements to enable us to scrutinise whether or not those statements are, in our view, accurate. That is why we welcome the fact that any Explanatory Notes are as full as possible in explaining the Government’s view as to whether or not a Bill is compatible with convention rights. I hope that that is a helpful explanation.
Lord Eatwell
I am grateful to the noble Lord because he has reinforced my point in a very satisfactory way. My point is that the issue referred to here is the compatibility of the threat to accrued rights. That is what the full statement is about, and that is why I am so interested that the Explanatory Notes deal fully with the question of accrued rights. The noble Lord is quite right to say that the Explanatory Notes are full and comprehensive, but why are they there if accrued rights are not in any way under threat?
I return to the discussion of this issue. As the Bill proceeded in the Commons, the Chief Secretary to the Treasury asserted very clearly that the Government would not reduce accrued benefits, having previously said, in a speech on 20 June:
“I also want to make it absolutely clear that we are fully committed to protecting the pension that has been earned to date”.
That is great, but it is inconsistent with Clause 3(3)(c). When he was asked about the retrospective provisions in Clause 3 by Mark Durkan MP, the Chief Secretary replied:
“The hon. Gentleman will know that the provisions in the clause to which he refers mirror directly those in the Superannuation Act 1972, which this Bill in many cases replaces. It was passed in the year I was born”—
he is younger than me—
“and it has been used by a number of Governments to make adjustments to public service pensions … The provisions to which the hon. Gentleman refers are in fact more limited than those in the 1972 Act”.—[Official Report, Commons, 29/10/12; col. 60.]
However, I am afraid that Mr Alexander misspoke. Section 2(3) of the Superannuation Act provides that accrued benefits can be reduced but only with the consent of affected members. However, the Bill as it stands allows for the reduction of accrued benefits without member consent. As such, it does not mirror the Superannuation Act, as the Chief Secretary said.
Amendment 28 gives effect to the Government’s intention for the Bill to mirror the Superannuation Act 1972 by providing exactly the same protection for members that Section 2(3) of the Act provides. As such, it is difficult to see how the Government could object to this amendment.
I move from the discussion in another place to the debate here at Second Reading. The noble Lord, Lord Newby, said:
“There is a lot of suspicion about this that is misconceived. Pensions legislation has historically contained such powers”—
actually, it has not—
“which have been seen to be necessary for the lawful and efficient operation of the scheme. They are generally used for minor and technical changes, for rectifying errors and making changes for the benefit of members. The intent of the Bill is simply to allow for these minor changes. There is no sinister intent”.—[Official Report, 19/12/12; col. 1584.]
If there is no sinister intent, why is Clause 3(3)(c) maintained in this wide form? Why is there no qualification? If this is indeed the way that pensions legislation has historically contained such powers—and I presume that the noble Lord, Lord Newby, was referring to the 1972 Act—why are there not the same protections for members as those contained in that Act?
It is also worth noting that the noble Lord, Lord Hutton, said:
“In relation to retrospectivity, the Government have a serious problem. We have to be mindful if there are to be DB schemes in the public sector. We know that there are fewer in the private sector, but those 2.6 million people in the private sector who still have access to a defined benefit scheme know for certain, because of the current law that their accrued rights cannot be changed”.
Accrued rights in the private sector cannot be changed unless members give their consent to a change, perhaps to deal with minor technicalities or deficiencies, which would ultimately improve the quality of their scheme. The noble Lord continued:
“The same rules should apply in the public sector. I do not believe that we can have a different set of rules in relation to accrued rights for people in public sector schemes”.—[Official Report, 19/12/12; col. 1582.]
Therefore, the scope of Clause 3(3)(c) is unreasonable, unethical and directly undermines the trust that is essential to the effective implementation of the Bill. Amendment 28 achieves what the Government claim they wish to achieve. If the Minister has another suggestion for better achieving the same goal, we will be happy to support it. However, I ask him: why is Clause 3(3)(c) written in these unqualified, global terms? Why do we have a clause in the Bill that states:
“Scheme regulations may … make retrospective provision”?
That is unqualified. Why is that provision there? Why is it not qualified in the way that it has been in previous legislation? I beg to move.
Lord Whitty
My Lords, I have several amendments in the group that all relate to the same issue of retrospection and the way in which there should be consultation and negotiation on any such change.
Like my noble friend Lord Eatwell, I was not here at Second Reading, for which I apologise, but I thought I should make absolutely clear my overall view of the Bill and my approach to it in my amendments. It can be summarised simply: I do not like the Bill. I do not like the campaign that the Government and their media allies have conducted against the public sector workers who serve them, and against their pension entitlements. In many ways it has been a despicable campaign. In more technical terms, I do not like the way in which the Government have interpreted my noble friend Lord Hutton’s recommendations in terms of attempting to achieve a commonality of approach across all public sector schemes—an ambition in which, as it happens, they have singularly failed because we have ended up with a complete hotchpotch of schemes. The history of all these schemes is different. They relate to different sectors, different industries, different patterns of negotiation and different kinds of jobs. It was therefore difficult to get to commonality. Nevertheless, the Government have attempted to reach that commonality and have made a hash of it.
I have sympathy with all public servants who are detrimentally affected, prospectively and currently, by aspects of the Bill. I have sympathy with firefighters, teachers, civil servants, health service workers and so on. I even have some slight sympathy with the judiciary. However, I am going to focus all my subsequent remarks on the local government scheme. One of the differences between the schemes that exist currently in the public sector is that the local government scheme, unlike the vast majority of other schemes, is a fully funded scheme and always has been. It is therefore on a different basis and the Treasury should approach it differently from the way in which it is attempting to approach the other schemes. Ideally, I would like to exclude the local government scheme entirely from the Bill. I recognise we are not at that point, but it would be the more logical outcome.
Baroness Hollins
My Lords, much concern has been expressed about the Bill’s granting of sweeping powers to the Government to make future further changes without adequate public or parliamentary scrutiny. Clause 3 grants extremely wide and retrospective powers to the Government for further radical public sector pension changes adversely affecting public sector employees’ pensions. This undermines the Government’s claim that this would be a “settlement for a generation”. It is generally accepted that public sector pensions represent an element of deferred public sector pay. Clause 3 is an extreme example of a Henry VIII clause. It is one that gives successive Governments the power to make unilateral and retrospective changes to accrued benefits in public sector pension schemes, changing the retirement age without effective parliamentary scrutiny.
This clause should be severely limited, in the view of the BMA, in which I should declare an interest as president, and other health unions. It has expressed concern about the wide scope of powers and has called for limits. The provision runs directly contrary to the Government’s pension guarantee for no more reform for at least 25 years, safeguarding the current generation of public sector workers, and that the Bill protects the benefits already earned by members of existing public sector pension schemes. Instead of protecting accrued rights and making a once-in-a-working-lifetime change to public service pensions, the Bill allows for those very rights to be undermined, throwing public sector workers into uncertainty surrounding their future financial security, even those who will shortly reach retirement age.
The powers granted to the Government in the Bill go beyond the stated purpose as set out in its Explanatory Notes, which is to make changes where legislation is inconsistent with, or requires modification as a consequence of, scheme regulations. Instead, and without justification, this clause allows the Government to make radical changes—for example, to reduce accrued final salary rights without the need for primary legislation and with minimal safeguards of the affirmative procedure, and to drastically change the design of pension schemes and scheme regulations—for instance, making different provisions for different cases or descriptions of persons without having to come back to Parliament to debate primary legislation. It would allow any person to exercise a discretion that was not defined in the Bill, and to breach the 25-year guarantee with no effective means of resisting any breach. The power to retrospectively amend means that accrued pension rights could be affected, which would likely result in a challenge under the Human Rights Act 1998 and may well lead to a declaration of incompatibility and other legal challenges.
During the debate on the Bill in another place, the Government stated that most changes affecting members’ rights would be minor and technical, but the Bill is not explicit in this regard. If the Government intend the changes to be minor and technical, then the Bill should say so to avoid this or any future Government having the power to undermine the 25-year guarantee.
Baroness Donaghy
My Lords, I know that the Minister thought that I overdid it a bit at Second Reading when I said that the confidence of public servants was shattered by two successive large sets of negotiations on their pensions. However, I think that this comes back to an issue of trust, and obviously everyone is going through the Bill line by line to see where that trust might be undermined in future.
I support everything that my noble friend Lord Whitty said. As currently drafted, the Bill would allow scheme regulations to make retrospective changes. I made it clear that in principle I did not disagree with that. However, the absolute crunch would be that scheme members or their representatives should agree to any retrospective change and the Government’s commitment that accrued rights up to the date when the scheme was changed would not be reduced. As has already been said, this would simply ensure that workers in public service pension schemes enjoyed the same protection in relation to their accrued pension rights as exist for workers in the private sector under pensions law.
I was concerned about the noble Lord’s reply on this issue at Second Reading. I understand that there is no set standard of protection across the current schemes, as he said. Apparently the Government have chosen not to carry across the protections in retrospectivity that can be seen in previous legislation, such as the Superannuation Act 1972. They are concerned that what the Minister referred to as the “most extreme” of these protections—member consent locks—is not the way forward. The Government say that they are trying to strike the right balance between the protection of members and the efficiency of the scheme, and no one can disagree with that. However, I cannot help thinking that this obsession with member consent locks is all about not getting unanimous agreement to the deal, and that is throwing out the baby with the bath water. What these very reasoned amendments do is codify the Minister’s precise intention. He said that he would take this issue back and further consider the provisions of the Bill, and I hope that he will give the reassurances that we are seeking.
Lord Newby
My Lords, I begin by saying that I completely agree that we are dealing with extremely important provisions in the Bill, particularly with regard to retrospective and legislation-amending powers. I should also say that I am sympathetic to the concerns that have been expressed. I should like to go through each of the amendments in order, and I hope that I will not detain the House for too long.
Amendment 26 is the first of the two amendments in the name of the noble Lord, Lord Eatwell, dealing with retrospection. I should begin by explaining that some powers of retrospection are needed because of the way that pensions legislation is typically split between primary and secondary provisions. This Bill exemplifies that combination. It sets the core framework in primary legislation while the scheme design details, such as the accrual rate, will be set out in secondary legislation. When future changes are made to the secondary legislation, which typically happens in most years to ensure that they run smoothly, it can be necessary to bridge any gaps to the underlying primary legislation, as well as adjusting existing secondary legislation to ensure that it remains consistent. By allowing scheme regulations, which are themselves secondary legislation, to make necessary changes to primary legislation via the affirmative procedure, we believe that we are striking a sensible balance between member protections and parliamentary scrutiny. This approach is commonplace in existing pensions legislation.
However, the Government have listened to what noble Lords have said and have read with interest the 10th Report of the Delegated Powers Committee, which calls into question aspects of the scope of the proposed power. In particular, the report recommends that the power to amend primary legislation should be restricted to amending Acts that have already passed and to making only consequential or consistency provision.
We are considering the recommendations of the Delegated Powers Committee very carefully and on Report I hope to be able to bring forward amendments on this issue that will satisfy noble Lords’ concerns. I was extremely grateful to the noble Lord, Lord Eatwell, for saying that if we are able to do so successfully, he will support those amendments. These are important but complicated issues and we are determined to get them right. In responding to the individual amendments that have been tabled, I hope that I can tease out some of the complications and ensure that we do indeed get these issues right.
Lord Whitty
I am not referring to what is in this Bill or what the Minister or any of his colleagues have said. I make that clear. I am talking about the campaign that has been run decrying and denigrating public sector workers and their pension schemes, calling them “feather-bedded” and “gold-plated” and trying to divide public opinion against public servants. It is that aspect of the political operation that I object to, not anything in the Bill.
Lord Newby
I am very relieved to have that qualification. However, I briefly repeat what I said at Second Reading. The schemes that are now going forward, covered by the legislative framework of this Bill, are, in our view, extremely sensible and generous provisions that reflect the importance that the Government attribute to the work undertaken by all the public servants covered by the schemes.
Having got that out of the way, we quite like the amendment of the noble Lord, Lord Whitty. It has the advantage of simplicity and would allow schemes to make minor and technical changes in the interests of efficiency but restrict changes that were materially detrimental to members. The wording that he has used in the amendment and the sentiments contained in it will certainly form part of our consideration of what we ourselves table on Report.
Amendment 28 deals with member consent locks. I should be clear, as my colleague the Economic Secretary was in the other place, that the Government have significant concerns about the consent locks contained in the amendment. We do not believe that this is the right way forward. I have previously mentioned that there are a number of options in terms of how to facilitate retrospective powers, and in our view consent locks are very much at the extreme end of this spectrum. We do not think that it is appropriate to give members, employers or anyone else the power unreasonably to hold each other or the Government to ransom and to inhibit changes for the greater good. There have been some damaging examples of this in the past. Therefore, the application of universal consent locks is not an avenue that we intend to investigate as we develop our amendment on this subject for Report.
Lord Eatwell
My Lords, perhaps it will assist the Minister if I point out that this is not a universal consent lock; it refers purely to accrued rights and indeed, as I said, it reflects the Superannuation Act 1972.
I am the chairman of a private sector pension fund; I did not declare an interest because, as this is about public sector pensions, there is no particular interest for me to declare. With regard to the extreme end of the spectrum, we have used consent locks in the private sector while negotiating various reforms of rights and have always found that negotiations with members are fruitful and produce generally positive results. I therefore do not think that so-called consent locks should be seen as extreme; they are simply the fruitful basis of consensual reform of a pension scheme.
Lord Newby
I hear what the noble Lord says and I hope that our amendments can satisfy him in this area; I suspect they will do so without having consent locks. However, it will be a good outcome if he is happy at the end.
On Amendment 30, discussed by the noble Lord, Lord Witty, as part of the debate about retrospective powers, our view is that it simply does not do that. Clause 3(5) deals with the generality of Treasury powers and this amendment would loosen up the area that the Treasury would have to consider. The Treasury would not then look at changes to schemes that were revenue-neutral. Our view is that in order to meet the requirement by the noble Lord, Lord Hutton, that we need a greater degree of consistency across the schemes, it would be sensible for the Treasury to look at changes, whether or not they have a financial implication, to try to ensure that we maintain consistency to the maximum possible extent.
Moving to Amendments 116 and 119, which deal with consultation, this takes us back to a debate in the other place about the appropriate statutory consultation requirements for changes in scheme regulations for the new schemes. In the other place the Government set out the reasons why it is not appropriate that primary legislation should require that all consultation on such changes be carried out with a view to agreement. As made clear in the Government’s consultation principles, consultation can have a number of purposes, including garnering views and preferences, understanding possible unintended consequences of a policy or getting views on implementation. The Bill already goes further than those consultation principles, not to mention the arrangements in place for a number of the existing public service pension schemes, in requiring that all changes to scheme regulations would undergo statutory consultation. However, such consultation must be proportionate; it would not be right for us to establish today that all consultation must seek to reach agreement, as that will not always be possible, or indeed the aim of the exercise.
Amendment 119 goes even further, requiring that all changes to scheme regulations should undergo not only consultation with a view to reaching agreement but also a parliamentary reporting process. In the case of changes to the protected elements set out in new subsection (6), scheme regulations could be changed only by agreement. We believe that this is an impractical measure. Changes are required to scheme regulations for the most minor of reasons. Surely it cannot be right or sensible that such an exhaustive consultation procedure be put in place for every such minor instance. Instead, the Government have established a balance in their consultation requirements. Clause 19 puts in place a statutory requirement for consultation. Clause 20 goes further than this and puts in place more onerous requirements for those situations where a future Government may seek to amend the core elements of the new schemes. This already goes further than some feel is appropriate in binding the hands of future Administrations. However, the Government are determined that this protection should remain in order to give confidence to members of those schemes that the Government are committed to the scheme designs that have been negotiated.
Amendment 119 also makes changes to the protected elements set out in Clause 20. These are the core elements of the schemes protected by the extra consultation requirements in the clause. The Government have included the career-average nature of the schemes, member contribution rates and benefit accrual rates in these protected elements, and are convinced that including these elements strikes the right balance between giving reassurance to members and ensuring that schemes are flexible enough to operate in the real world. Finally, Amendment 119 also seeks to require agreement through consultation to any change to the protected elements before such a change could be made.
The Government are committed to the reforms to pensions set out in the Bill and in the separate documents that describe the details of the new schemes that have been negotiated with member representatives. We have put a great amount of time and resource into developing these schemes and have come to what we believe are the right outcomes in the designs that have been established. However, it would be irresponsible and frankly unrealistic for this Government to seek to bind the hands of all future Governments within the next 25 years, as this part of the amendment would seek to do. Instead we have sought to put in place a more onerous process that would cause any future Governments seeking to fundamentally change these pensions to properly consider the impact of their actions and to justify the need for such changes to those affected and to Parliament.
Amendment 120 is intended to be consequential on some of these other changes and would amend the provision in Clause 21 to specify that scheme regulations will be subject to the negative procedure unless otherwise specified. However, the amendments in question do not propose any change to the procedure around scheme regulations, and therefore we believe that the amendment is unnecessary. I hope that in view of the assurance I have been able to give about amendments coming forward on Report, noble Lords will feel able to withdraw their amendments.
Lord Eatwell
My Lords, I am grateful for the support from around the House for the propositions that I advanced with respect to Amendment 26. I am grateful to my noble friend Lord Whitty, who had his own very sensible amendments, to the noble Baroness, Lady Hollins, to my noble friend Baroness Donaghy and to the noble Lord, Lord Newby. Those sympathetic noises and/or general support are most encouraging. I was also delighted to hear sympathy from the noble Lord, Lord Newby, for Amendment 27 and especially Amendment 28. As currently drafted, Clause 33(a) and (c) disfigure this Bill and we look forward with great interest to hearing the Government’s proposals. It would be enormously helpful if there could be a degree of consultation with those Members who have spoken from these Benches as well as, if she wishes, the noble Baroness, Lady Hollins, prior to those amendments finally being tabled. I hope that the Minister will be able to give the commitment that, whether or not there is consultation, the amendments revising these important clauses will be put down at least one week before Report to allow Members to consider what may be quite complex amendments with some care and be able therefore to respond effectively and appropriately on Report.
I am delighted these remarks have received a sympathetic response, and on that basis I beg leave to withdraw the amendment.
Lord Newby
Rape in Armed Conflict
(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Lester of Herne Hill
To ask Her Majesty’s Government what is their strategy for ensuring that United Kingdom government-funded medical care for women and girls impregnated by rape in armed conflict is non-discriminatory and includes abortion services where they are medically necessary in compliance with international humanitarian law.
Baroness Garden of Frognal
My Lords, the next debate is timed and the timing is very tight. Would noble Lords who have six minutes to speak make sure that they sit down as the clock hits six—or, preferably, momentarily before—to ensure that the Minister has as much time as possible to reply to the points raised in this important debate?
Lord Lester of Herne Hill
My Lords, the central question that this debate seeks to clarify is the Government’s strategy for ensuring that UK-funded medical care for women and girls impregnated by rape in armed conflict is non-discriminatory and includes the provision of safe abortion services where medically appropriate and necessary. This is the Government’s obligation under international humanitarian law, including the medical mandates of the Geneva conventions. Despite these legal mandates and the life and health-threatening nature of many pregnancies arising out of war rape, girls and women raped in armed conflict are routinely denied safe abortions in humanitarian medical settings, including those funded by DfID.
I am grateful to the international NGO, Global Justice Centre, and its dynamic president, Janet Benshoof, and her staff, for providing me with background information for this debate. I am also grateful to the Minister and her advisers for meeting me to discuss the issues in depth. The Minister has a strong commitment to equality for women and respect for international humanitarian law. I look forward to her reply, which may be influential well beyond this country and enable the UK to provide strong international leadership.
Sexual violence against women is a global evil. In its most pernicious form, rape of girls and women is used as a weapon of choice in the majority of today’s armed conflicts. All rapes are terrible, but rape used as a weapon of war is often fatal. About 70% of conflict-related rapes in the DRC are gang rapes, most accompanied by mutilating injuries to women, including deliberate HIV infection. One-third of the victims of war rape in the DRC are girls under the age of 18 and, as many are raped in the context of sexual slavery, they incur the greatest risk of pregnancy.
Girls and women subject to rape used as a weapon of war are persons “wounded and sick” in armed conflict, guaranteed absolute rights to non-discriminatory, appropriate and necessary medical care under the Geneva conventions. Yet these women war victims are routinely denied, by blanket exclusions, life and health-saving abortions in humanitarian settings, leaving them with the terrible “choice” of risking an unsafe abortion, suicide or being forced to bear the child of their rapists.
War rape is torture. Denying a rape victim an abortion when there is medical need is also capable of amounting to a form of torture. In a recent statement, the World Organisation Against Torture, the largest global network of NGOs working against torture, said:
“To prevent a rape victim from access to abortion is contrary to the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment”.
The right at stake is not a right to abortion; it is the right of everyone “wounded and sick” in armed conflicts, including women, to appropriate and necessary life and health-saving medical care. Plastic surgery, blood transfusions, amputations, prostheses, dental treatment and penile reconstruction surgery are all medical procedures protected by international law when needed by persons “wounded and sick” in armed conflict. The same applies, or should apply, to the termination of pregnancies where the continuing of a pregnancy creates a serious risk to the life and physical and mental health of the raped woman or girl.
Why are women raped in war being denied access to appropriate and necessary medical care by means of safe abortions where the continuation of the pregnancy threatens the life and health of the woman or girl? Two powerful forces perpetuate the anti-abortion medical protocols and sweepingly broad exclusions imposed on the provision of healthcare to women raped in war—the United States Government and the ICRC, the International Committee of the Red Cross. The United States imposes a “no abortion” total ban in its foreign aid, requiring all recipients, including foreign Governments, the ICRC and UN entities, to pledge not to discuss abortion or provide abortions with US funds. The US has eliminated previously existing exceptions allowing abortions for rape or to save the life of the woman.
The United States and the UK largely fund the same humanitarian organisations. Only one of the top 10 recipients of DfID humanitarian funding, the World Health Organisation, segregates its US funds from DfID and other donor funds to ensure the integrity of its abortion-related work. The ICRC, whose largest single donor is the United States, is clear in its internal operational guidelines for ICRC staff treating women victims of sexual violence in armed conflict that its medical staff “do not perform abortions”. The guidelines further discourage abortion referrals on the ground that making such referrals might impair the reputation of the ICRC in the conflict country.
The ICRC is DfID’s partner of choice in conflict situations and the largest recipient of DfID aid to humanitarian organisations. I was one of 43 British parliamentarians, including three former leaders of my party, who wrote to President Obama in February 2012 recalling the absolute rights of girls and women raped in war to non-discriminatory care, including abortions, under the Geneva and torture conventions. We requested the President to lift the US abortion ban on aid to war victims. To date, he has not yet done so. Denying medically needed abortions for victims of rape in war, including girls targeted for forced pregnancy as an element of genocide, is barbaric. Our Government should fill the vacuum of global leadership on this issue by ensuring that DfID’s humanitarian aid advances, and does not undermine, the rights of women raped in war to non-discriminatory medical care, which includes abortions.
The issue has been raised in Parliament since 2010. The Government have expressed their concerns about the US abortion ban, noting that it now prohibits abortions in cases of rape or to save a woman’s life. However, the Government appear neither to have taken steps to ensure in practice that UK funds are not used to support facilities that provide discriminatory care for women raped in war, nor requested the US to lift the ban on victims of war rape.
DfID’s aid programme apparently defers to local anti-abortion laws. This breaches the UK’s international humanitarian law obligations when the aid is supporting medical care for war victims. DfID-funded humanitarian entities such as the ICRC do not even provide abortions for war rape victims in conflict countries where abortions are legal for rape victims, as in the Sudan.
The Minister’s Written Answers and those of the honourable Lynne Featherstone MP on this issue are inconsistent about whether international humanitarian law is trumped by incompatible national law. Time prevents me from citing the inconsistent answers but I have given the references to my noble friend the Minister. I ask her to clarify the apparent contradiction in those answers and to explain the following points: first, how DfID policy implements UK law, as set out in the UK military manual, that national laws are relevant in conflict situations only so far as they do not conflict with international humanitarian law mandates; secondly, whether DfID monitoring or assessments of the performance of funded humanitarian entities includes, when applicable, assessing their compliance with the medical mandates of international humanitarian law; thirdly, whether DfID is engaged in any discussions with the ICRC on the question of the ICRC segregating its compromised US funding from that of DfID and other donors to provide abortions for war victims, or whether in any other way the ICRC can ensure that women war rape victims treated by the ICRC are able to have access to abortion services from non-ICRC medical providers. Fourthly, do the Government have any plans to make a request to President Obama to lift the abortion ban on women raped in armed conflict as a matter of US compliance with the Geneva conventions?
Finally, can the Minister confirm that excluding access to abortions for women raped in war where such medical treatment is appropriate and necessary is discriminatory and likely to breach the Geneva conventions and, most important, that international humanitarian law takes precedence over conflicting national laws which authorise torture or serious ill treatment by banning medically necessary abortions for the victims of rape in armed conflict?
Baroness Kinnock of Holyhead
My Lords, at the outset I want to pay tribute to the noble Lord, Lord Lester, for initiating this debate so convincingly and eloquently and for raising concerns about what clearly are life or death issues. Over many years I have been visiting conflict-afflicted fragile states where I have met and talked to women who have suffered the agony of brutal rape and where sexual violence is the shocking and specific consequence of conflict. These women are traumatised, stigmatised and often ostracised by their families.
I firmly reject the notion that dealing with rape is down to culture, custom and religion and that that somehow excuses the denial of the right to safe abortion for women who have often endured mass rape which has scarred them both physically and psychologically. They are attacked while they go to fetch firewood or food for their families. In Darfur some women told me that they had to choose between the threat of rape and feeding their families. It is time for us to assume responsibility and to go beyond simply condemning the perpetrators of rape and instead to take steps to end it. Indeed, we must recognise, as Hillary Clinton has said, that it is not cultural, it is criminal.
In 2010, I visited the Panzi Hospital in Congo run by Dr Denis Mukwege and I talked to three women who only the day before had been attacked and raped several times as they walked home from the market with their children. They were traumatised, but their fortitude and strength were overwhelming. I could barely hold back the tears. Their main concern was not to talk about their suffering but to ask for a search to be made for their children whom they had encouraged to run away when the attack took place. I feared that they may be pregnant and would need terminations, but abortion is illegal in Congo.
In addition, as the noble Lord, Lord Lester, pointed out, US abortion restrictions mean that humanitarian aid managed by the International Committee of the Red Cross cannot be used for the victims of rape. These draconian restrictions prevent Governments, NGOs and humanitarian aid providers such as DfID and ECHO, the European humanitarian aid office, from providing the option of abortion to women and girls who have been raped. The UK is completely compromised by the no-abortion prohibition put on US humanitarian aid which prevents all humanitarian entities funded by the US from speaking out about abortion, or indeed from providing abortion services—even a life-saving abortion for a very young girl raped in conflict. This flies in the face of both international humanitarian law and the Geneva conventions, which say that victims of rape are entitled to,
“receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition”.
Similarly, US domestic law requires such a response through the Geneva Conventions Act and the joint services manual of armed conflict.
I have three specific questions for the Minister. Norway has made a bilateral request to the US to ask it to lift the abortion ban on humanitarian aid for women raped in war as a matter of US compliance with the Geneva conventions. Why has the UK not followed Norway’s example? In fact, as I have said, the ban actually compromises the UK and, of course, it also affects the ICRC, MERLIN, the UNFPA, UNICEF and others engaged in humanitarian work. In countries such as Sudan and the DRC, countries that, incidentally, receive high levels of UK aid, women raped in war are denied the abortions to which they are absolutely entitled as persons who are “wounded and sick”. They may take their own lives or risk an unsafe abortion. Given the US stance on abortion, surely the UK is the country with the clout that can make a difference. The UK is a substantial donor through its involvement with ECHO and its own development and humanitarian assistance. This country must take global leadership on this matter. It is clear that women raped in war are persons who are wounded and sick in armed conflict, and UK law is also clear that the medical care rights of all persons wounded and sick in war are absolute.
A major problem is that it is DfID’s practice to lump all rape victims together and thus fail to give women and girls who are rape victims their special rights under the Geneva conventions as war victims. Tonight we are discussing a failure of will to bring about the changes that will deliver some justice to all women who have endured such suffering.
Baroness Flather
My Lords, this important topic needs to be discussed more often and at a time when many more Members are in their place. For me this is a very distressing subject because, as I get older, I find that less value is placed on women, not more. Recently we saw the most appalling incident of rape in Delhi. During the war between Bangladesh and Pakistan, some 2,000 women were kept in cages. They were not given any clothes because they would use them to hang themselves. They were used by the soldiers. Appalling things are done to women during conflict and in war situations. But a woman who becomes pregnant because she has been raped, perhaps many times, is supposed to have the baby. What is that baby going to do for her? Is that baby going to be a child of love? It will be a child of hate and a reminder for the rest of a woman’s life of what happened to her. How can we inflict that kind of situation on any woman anywhere?
We are very protected in this country; we are sitting in a cocoon, but other countries are not so cocooned. The Americans are more cocooned than anybody else in the world and I do not think they understand what the real world is like. I do not think they understand what happens to women during conflicts in poor countries. It is appalling that they cannot see the need.
Many years ago, during the Bosnia conflict, Marie Stopes International held a function in this place. Other NGOs were saying that they could not perform abortions because there was not enough time for counselling and there were no proper operating theatres. My goodness, those women had been raped from morning till night. They did not want counselling or proper operating theatres, they just did not want to bear the children. That is the bottom line. Why should a woman be forced to bear a child that she never wanted and could not want?
The only way forward is for DfID to separate itself completely from all the US-funded agencies and concentrate on abortion and women’s health. Why bother with anything else? Women comprise half the population and they do not get much attention in this world. It is time that we in this country decided that all our money should go to save and to serve women. This is what I would like to see. It is time to stop pussyfooting around and to do something about it.
Baroness Uddin
My Lords, I add my thanks to the noble Lord, Lord Lester, for his dedication. I also pay tribute to the Global Justice Centre for its long leadership.
In 1971, as a 12 year-old in Bangladesh, I met women who were raped with impunity by Pakistani soldiers. These women were mothers, daughters and sisters, often abandoned on the streets or left to die. I have always regarded this as a brutal rape of a nation. Most women did not receive any medical or social support or intervention and were forced to bear the pregnancy. Since then, many more wars have continued to blight our world. In the 36 most recent conflicts, mass rape has been documented, yet the level of service and support remains unacceptable and inadequate. It is a barbaric practice of targeting girls and women for forced pregnancy as an element of genocide, as has been said. The denial of necessary abortion for victims of rape in war must itself be considered barbaric and entirely uncivilised. The Geneva Convention requires non-discriminatory medical care to be provided, whether by the state in conflict or by others.
Thirty-three years ago, the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination Against Women, which included the prevention of all forms of violence against women. This treaty was signed by the UK Government on 22 July 1981, and Members of this House should recall that it was ratified on 7 April 1986. The United States, on the other hand, has the questionable honour of being in the company of six other countries—Iran, Sudan, South Sudan, Somalia, Palau and Tonga—that have all so far refused to ratify this treaty which is vital for the fair treatment of women around the world.
In many societies, a culture of patriarchy and the fear of an unenlightened civic and religious leadership lead to the stigmatisation and marginalisation of women who are left unable to report rape, let alone to have treatment and see justice served. One incident of hope is being witnessed in India and may be a path for those voices which have until now suffered in silence—those who have felt compelled not to report rape and violence, fearing repercussion from their attackers as well as from within their family. This is where the law and law enforcement is critical. It is not just in India; violence against women is a global epidemic of immense magnitude, most brutally and mercilessly executed within our homes, witnessed by our family members and our children. Our coercive and collective silence is responsible for its continued menace, in our homes or during war and conflict. I accept that it is difficult for many countries to grapple with these issues, not least where religious guidance supersedes humanitarian consideration. In such grave circumstances, women should have recourse to preventive care and non-discriminatory medical care on the basis of the mother's life or health being in danger.
When I stood before this House on 7 October 2010, I said that rape as a weapon of war leads to the deaths of thousands of girls and women. A year later, the UN Secretary-General’s special representative on sexual violence in conflict said:
“Sexual violence has become a tactic of choice for armed groups, being cheaper, more destructive and easier to get away with than other methods of warfare”.
That little has changed since we both spoke up on these matters is a damning indictment. We cannot be subject to the policy of a nation that has refused to ratify a treaty eliminating all forms of discrimination against women when we have ratified it.
We must, as a society and as a civilisation, reject all forms of violence against women. Where used as a tool and a weapon of war, it is specifically designed to impede the advancement of women and to maintain their subordinate status. By allowing the destruction of the lives of women, we allow them to continue not to have a stake in society. This, I humbly suggest, is something that our Government cannot support. I hope that we will not compromise our legal obligation at the behest of any other nation, even one with whom we have our closest ties. It cannot be right that the policy of a single nation can compromise the legal obligation of the United Kingdom. In the light of this discussion, what response will the Minister make in terms of the representation that the Government make?
Baroness Kennedy of The Shaws
My Lords, I join others in paying tribute to the noble Lord, Lord Lester, who has for many decades been a great champion of women’s rights. I am glad that he has raised this issue tonight. It is only recently that rape has been acknowledged as one of the hidden elements of war. Rape in war was always portrayed historically as a sexual and personal matter that was somehow about military men’s need for sexual gratification, when in fact it is now recognised as a tactic of war and a threat to international security, and is a recognised war crime. The Geneva Conventions expressly prohibit rape. In recent decades, we have seen a growing understanding of the function and effects of rape.
A great woman in the law is Judge Navi Pillay, the main judge in the Rwandan war crimes tribunal. I remember hearing her describing the rape in Rwanda of 500,000 women as the destruction of the spirit, of the will to live and of life itself. She described it as being about social control and as a process of destroying the Tutsi as an ethnic group. The reason it was seen to be so much about destroying life was because it was a question of making your enemy’s women carry your children. When her court found Jean-Paul Akayesu guilty of genocide, it held that rape and sexual assault constituted acts of genocide in so far as they were committed with the intent to destroy in whole or in part a targeted group. Rape is often about ethnic cleansing, or the ethnic reconfiguring, of a population. We saw it in Rwanda, and have seen it since in Congo and Darfur: tens of thousands of rapes, and women profoundly traumatised as well as physically damaged internally, mutilated and infected with disease. We have heard the descriptions of the tearing of organs and the vagina. They are unbearable to hear and to read.
For those women and girls who become pregnant, their suffering is prolonged. They face increased rates of maternal mortality, and when they are forced to resort to illegal abortion it often leads to infection, scarring, sterilisation and frequently death. If left pregnant by the enemy—we must think about this—the women are often ostracised by their own communities, abandoned by their spouses, and experience physical violence from parts of their communities who are ashamed of them and who see them as the carriers of the enemy’s seed. The children produced are despised as the product of the enemy. We must see this as being carried on through generations. What these women suffer, as the noble Lord, Lord Lester, said, is torture—cruel and inhumane treatment. Women must be able to make choices about their lives after such unimaginable horror. They need good medical care, and advice must be afforded to them. None of us should be the people who decide whether they should have an abortion. It must be a matter for them.
The United States of America is still putting abortion restrictions on humanitarian aid, as other people have said. It is for that reason, one can be sure, that the Red Cross is falling in line with its policy, because it is anxious not to alienate major players in the international field. I am afraid that the United States holds that trump card. It must be persuaded by partners—by other nations like our own—that what it is doing is an affront to international law. It is a violation of women’s rights under international human rights and humanitarian law, including under the Geneva Conventions.
When I speak to women of religious conviction and describe to them the testimonies that I have heard from women—just as my noble friend Lady Kinnock described—I never hear from them that women in extremis should be denied the right to make a choice. It is for those individual women to make peace with their God, and not for us to do it on their behalf.
The United Kingdom Government should be pressing for change in the US policy, and should have a very clear position with regard to our policy and those of the organisations that we fund in these terribly conflicted parts of the world. This is not just about humanity and compassion; it is about violations of rights and international law. If the rule of law means anything, we must be upholders and champions of it throughout the world.
Baroness Tonge
My Lords, I congratulate my noble friend Lord Lester for not only securing this debate but having the courage to raise what is a very contentious issue. It is difficult to estimate how many women have been raped during armed conflict, but a survey in the American Journal of Public Health a year ago estimated that in the Congo, over 1,000 women were raped every day. We know that rape is a weapon of war and, as the noble Baroness, Lady Kennedy, said, is also a step to genocide.
Closer to home, I was fortunate—or unfortunate—enough to be in Tirana in the spring of 1999 when the people of Kosovo were fleeing from the Serbs. I was fortunate because I witnessed the unquestioning and generous help that ordinary Albanians were giving the refugees, mostly total strangers to them. However, it was harrowing to visit one of the hospitals and hear the stories of some of the women who were brave enough to tell what had happened to them. Some had been gang-raped by soldiers, some had been brutally raped and then abused with rifle butts, broken bottles and, in one case I heard of, with burning plastic bottles. Noble Lords can imagine the suffering.
The trauma is suffered on many levels. There is appalling physical injury and infection to be dealt with. There is great mental suffering. Children may have witnessed the rape of their mothers and are deeply traumatised as well. Husbands may reject or leave a wife who has been raped. There is social exclusion from the group, and shame heaped upon the victim by the community. Many women do not admit what has happened to them because of this.
If pregnancy results from the rape, support and counselling will be needed for the victim, although I think the idea of proper counselling in conflict zones is just pie in the sky. The majority of women will want safe abortion; without safe abortion provision, women who have been raped will try to end the pregnancy by unsafe means. The International Conference on Population and Development, held by the UNFPA in Cairo as long ago as 1994, stated in its programme of action that human rights abuses occur when a woman is forced to carry an unwanted or unviable pregnancy; this is degrading and causes mental suffering especially when the pregnancy is the result of rape.
I was not going to repeat the legal arguments but I think we have time to remind ourselves. As my noble friend has told the House, under the Geneva Convention, women who have been subjected to rape as a weapon of war fall into the category of “wounded and sick” and should have equal access to medical treatment. The UN Convention Against Torture recognises that safe abortion is a necessary element of complete medical services for injuries resulting from torture. Rape is torture, and the denial of correct medical treatment after rape is therefore, in itself, cruel and inhuman treatment—torture, in other words.
The purpose of this debate is to try to clarify just what treatment women can get from the humanitarian programmes provided by DfID. Despite President Obama’s lifting of the “global gag” rule when he came in office, abortion is still effectively banned as part of US humanitarian aid, as we have heard, which ignores the fact that the USA recognises girls and women raped in armed conflict as victims of torture. The UNFPA receives funding from the USA and would lose its funding from that source if it was using money from other donors, such as us, for abortion in the same field of operation. The UK Government have been exemplary in recognising the need for safe abortion as a necessary part of treating women who have been raped in conflict, but some of us have had confusing replies when we have tried to establish whether the USA ruling is preventing other countries doing this work when funds are pooled by agencies such as UNFPA.
On a slightly different matter, I also ask my noble friend the Minister to what extent emergency contraception—hormone—pills are used after rape. Emergency contraception is not abortion; it prevents ovulation. It can be taken up to two days after intercourse; five days for some of the new products which are becoming available. Intra-uterine devices can also be used up to five days after sexual intercourse and will prevent ovulation if they contain copper. These methods are very easy to administer. They are cheap and do not carry quite so much baggage as surgical abortion for people working in the field.
If the evidence is lacking, will research be commissioned urgently so that we can live up to our legal and moral obligations to minimise the terrible suffering of victims of conflict and sexual violence?
Lord Collins of Highbury
My Lords, I, too, pay tribute to the noble Lord, Lord Lester, for initiating this important debate. Wartime sexual violence is one of history’s greatest silences. However, as my noble friend Lady Kinnock described, since the 1990s there has been an increased awareness of sexual violence in wartime due to the significant impact of armed conflicts on civilian populations. According to UN Women, 90% of casualties in contemporary conflicts are civilians, and the majority of those are women and children.
Sadly, the effects often continue beyond war. Post-conflict studies from Rwanda, where up to half a million women were raped during the conflict, show a spiral of continuing violence against women. The same cycle is being repeated in Syria right now, with reports from organisations like Human Rights Watch of Syrian government forces and militias sexually abusing girls as young as 12.
This country needs to live up to its commitment to protect women. Violence against women as a tool of war remains one of the least prosecuted crimes; we have to do better to ensure action against the perpetrators. However, we must be tough not only on the crime but its causes. This means that we must tackle the underlying problems of lack of empowerment, education and inclusion.
The unanimous adoption 12 years ago of Resolution 1325 on women, peace and security was a landmark decision in which the situation of women in armed conflict was specifically addressed. The resolution called for their participation at all levels of decision-making on conflict resolution and peace-building. The UN recognised that women’s exclusion from peace processes not only contravened their rights but weakened the prospects for sustainable peace. Since the adoption of Resolution 1325, four supporting resolutions have been adopted by the Security Council. All focus on three key goals: strengthening women’s participation in decision-making; ending sexual violence and impunity; and providing a system of accountability. Together, the resolutions provide a powerful framework and mandate for implementing and measuring change in the lives of women in conflict-affected countries.
As a member of the UN Women executive, Britain has a responsibility to help ensure that UN Women has commitment both from us and the international community. I hope that the Minister will reassure the House that the Secretary of State for International Development, Justine Greening, will make that a priority. UN Women has great potential, but that potential will not survive without our support. Currently it does not have the long-term backing that everyone agrees is necessary for the organisation to take off. The aim is to join up the work that is done across the UN on gender equality and women’s empowerment, pooling resources and effort to increase its impact and reach.
As we have heard from the noble Lord, Lord Lester, and others in tonight’s debate, girls and women who are raped and become pregnant have rights under the Geneva Convention to have full medical care, which must include their choice of an abortion. I repeat the clarification sought by the noble Lord on what appear to be contradictory statements previously made to the House by the Minister. Due to time limits I will not repeat the exact quotes, but it is vital that we have clarification on this issue.
I also want to repeat the question and the point made by my noble friends, in particular my noble friend Lady Kinnock. Will the Government follow the call by Norway to seek changes in the American Government’s attitude on this important issue?
Baroness Northover
My Lords, I thank my noble friend Lord Lester for securing this debate and for all his work in this area. I also thank noble Lords for their contributions.
The Government have put women and girls at the heart of their international development work. Our Strategic Vision for Girls and Women sets out our strategy on delaying first pregnancy, support for safe childbirth and the prevention of violence against women and girls. We recognise that violence against women and girls is widespread, with high prevalence and devastating consequences. It has often been hidden and accepted for far too long. The noble Baroness, Lady Kinnock, is right to quote Hillary Clinton: rape is not cultural; it is criminal. It is brutal, as she and the noble Baronesses, Lady Flather and Lady Uddin, and others, have said.
My right honourable friend the Secretary of State for International Development has made it clear that tackling violence against women and girls is a central part of the UK’s development policy. My honourable friend Lynne Featherstone continues her very active efforts in this area as champion of combating violence against women and girls. My right honourable friend the Foreign Secretary has made the prevention of sexual violence in conflict countries a key priority for the UK’s G8 presidency this year.
The noble Lord, Lord Collins, is right to highlight the causes of the abuse of women and the assumption of the inequality of women. Millions of women and girls have no control over the circumstances in which they become pregnant. Every year 47,000 die as a result of unsafe abortion; millions more are permanently injured. I assure the noble Baroness, Lady Flather, that the UK is one of only a handful of donors willing to tackle this contentious issue, and we will continue to do so. I assure the noble Baroness, Lady Kinnock, that we are taking a lead here and will continue to do so.
This year we have major opportunities to secure greater international commitment to eliminating violence against women and girls. Key here are the Commission on the Status of Women, and our presidency of the G8, where for the first time the Foreign Secretary’s preventing sexual violence initiative will put this issue before G8 Foreign Ministers. Sexual violence causes physical and psychological damage to millions of women and girls and in the worst cases results in loss of life, as we have just seen in the terrible cases in India referred to by the noble Baroness, Lady Flather. A number of women and girls who are victims will be faced with an unwanted pregnancy. They may seek abortion, even when these services are not safely or legally available. In these situations the UK policy is clear: UK aid can be used, without exception, to provide safe abortion care where necessary and to the extent allowed by national laws. I can assure noble Lords that UK aid is not in any way influenced by the restrictions in place on US funding. Women and girls who are survivors of rape should have access to sensitive and high quality care that includes counselling and emotional support. I can assure my noble friend Lady Tonge that this includes access to emergency contraception—we recognise the importance of that—and presumptive treatment against sexually transmitted infections including post-exposure prophylaxis for HIV prevention.
My noble friend Lord Lester is flagging here the particular circumstances of sexual violence in armed conflict. Rape being recognised as a war crime was a landmark achievement. It has long been held that women are entitled to equal protection under international humanitarian law to that received by men. As we know, and as the noble Baronesses, Lady Kennedy and Lady Kinnock, and others said, rape is used as an extremely effective weapon of war. Let me address the central question of UK-funded medical care for women and girls raped in conflict. Parties to an armed conflict are obliged to provide all wounded and sick victims of armed conflict with humane treatment. To the extent practicable and with the least possible delay, they are obliged to provide the medical care and attention required by the given condition without discrimination except on medical grounds. This includes appropriate life-saving medical care which, in our view, may include the provision of abortion to women raped in conflict if it is deemed medically necessary.
The UK military manual sets out the UK’s interpretation of international humanitarian law applicable to the operation of our Armed Forces. While it does not itself apply to aid funding, it is a useful interpretation of the international humanitarian law context in conflict zones. As the manual notes, and as my noble friend Lord Lester pointed out, where there is a direct conflict between national law and the fundamental obligation on parties to a conflict under Common Article 3 of the Geneva Conventions, the obligation is to comply with Common Article 3. That article provides that those not participating in hostilities should be treated humanely. It prohibits murder, torture, humiliating and degrading treatment and, of course, rape, and requires that the wounded and sick are collected and cared for. The denial of abortion in a situation that is life threatening or causing unbearable suffering to a victim of armed conflict may therefore contravene Common Article 3. Therefore, an abortion may be offered despite being in breach of national law by parties to the conflict or humanitarian organisations providing medical care and assistance. Clearly, this service provision very much depends on the facts of each situation but I state clearly that it is our view that there is no blanket ban on such medical help when covered by international humanitarian law even if national laws might be at variance with that.
I also assure my noble friend Lord Lester that DfID requires that all UK-funded humanitarian partners abide by humanitarian principles, including non-discriminatory provision of assistance. In conflict situations, DfID expects all medical humanitarian agencies to observe and abide by international law, including international humanitarian law, in the activities that they provide. DfID’s monitoring of projects focuses on how the agency has contributed to saving lives and alleviating suffering, and these findings inform our funding decisions. To be clear, in all funded humanitarian activities, the UK requires all its humanitarian partners to adhere to widely agreed international principles of humanitarian action: those of humanity, impartiality, independence and neutrality. All humanitarian assistance is provided on the basis of need and without discrimination on any grounds.
My noble friend Lord Lester also asked whether DfID has asked the ICRC to segregate its US funding from that of the UK. DfID respects the mandates and independence of its humanitarian partners and we do not ask the ICRC to segregate funds as it is fully aware of its obligations to different donors. We have flagged and will continue to flag the UK’s position to the ICRC.
My noble friend asked about the engagement with the United States on this matter, as did other noble Lords. DfID officials are in regular dialogue with both USAID and US-based international NGOs with regard to improving access to sexual and reproductive health services and rights. This includes reducing recourse to unsafe abortion. We recognise the challenges faced by the US Administration in reopening the interpretation of the Helms amendment, but I am happy to assure my noble friend and other noble Lords that we will flag this debate, with its forceful concerns expressed about the reproductive rights of women raped in armed conflict, to US colleagues. I can tell the noble Baroness, Lady Kinnock, that we are exploring further the Norwegian position with our counterparts there. I can also assure the noble Lord, Lord Collins, of our commitment to UN Women. We recognise the importance of that, and DfID has been a strong supporter since the very beginning.
I was asked by the noble Baroness, Lady Tonge, about research. There is a fund of up to £25 million for research and innovation, which will focus on the prevention response to violence against women and girls in conflict and humanitarian situations. However, I think that the noble Baroness was asking whether research was needed in order to produce clarification. I trust that I have produced the clarification that noble Lords were seeking.
This debate goes to the heart of our responsibility to protect women and girls around the world, and especially when they are at their most vulnerable in places and times of conflict. As we have heard, rape is so terribly often used as a weapon of war. I assure noble Lords that the UK will continue to work to prevent violence against women and girls and to improve access to appropriate non-discriminatory medical care including services for abortion care in situations of armed conflict.
Public Service Pensions Bill
(11 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Whitty
“Local Government Schemes: exclusion
Nothing in this Act shall be taken as allowing the Treasury to de-fund any individual fund in the Local Government Pension Scheme or to transfer the fund’s assets to HM Treasury and the liabilities to the ONS national accounts.”
Lord Whitty
My Lords, this is an amendment that reflects some of the anxiety in local government and other circles about what the Treasury’s ultimate intention is in relation to public sector schemes. The Minister may be gratified to know that I do not expect him to accept the amendment wholesale tonight, either in this form or in some other form within this Bill, but I hope that he will give sufficiently reassuring words that the matter dealt with in the amendment is not the intention, and that there will be some way of making sure that it is not.
The anxiety stems from a number of things. We all know that the Treasury likes to control things. We also know that the Treasury does not like to see the possibility of costs that it does not control but that will count against the public borrowing requirement—albeit that that definition is ludicrously wide compared to most other countries. The Treasury also likes to see large sums on the asset balance sheet. On the other hand, the Treasury likes to deal with liabilities on a pay as you go basis rather than on a long-term funded basis. When looking at the attempt to corral the local government scheme into the same box as the unfunded public sector schemes, where the funding has gone up and down significantly over the decades, all these things might suggest the possibility that if any of the 89 different local government schemes were seen episodically to be failing, the Treasury might take the opportunity to step in and take it over, or perhaps to take over large chunks of the local government scheme.
Local government schemes consist of 89 different schemes, mostly local authority. By and large, they are well run, professionally organised and based on very solid professional advice, and generally they take steps to ensure that the income is changed if the long-term prospects alter significantly. But, of course, in the current economic climate there has been some serious turmoil. The local government scheme of which I was recently chair went from a funding position of 114% down to something under 70% and back up again to 90% in the past four years, which was almost entirely due to the way in which the world stock markets have gone down, with the value of equities and other stocks, and also—and I shall return to this in a subsequent amendment—to the way in which liabilities are valued. At times, it looked as if there was danger of those funds not being sustainable even in the short term.
There is a possibility of the Treasury not liking to face the possibility that it is seen as the underwriter of last resort, which currently it is, although I notice that the noble Lord, Lord Flight, who is not in his place, is attempting to remove that position later on in the Committee’s consideration. In reality, there have been no historic examples of default, but nevertheless there could be an opportunity of the Treasury stepping in, saying that the fund is badly run and that it is going to take it over, count the assets against central government assets and push the liabilities into the long grass.
There is a precedent for this situation, and a rather large one—that of the Post Office pension scheme. Both Governments are guilty of this, although the current Government actually implemented it. It was a very large scheme and, because of previous pension holidays taken by the Royal Mail pension fund, it was somewhat underfunded. Somewhat to our surprise, the Treasury agreed to take over the scheme directly. Part of that was to soften people up for privatisation, but another part of it was that it immediately got the Treasury £26 billion on the asset side of their balance sheet, whereas the liabilities, although they are still there legally and contractually and will have to be met, actually disappear from that balance sheet in the general fund.
If that could happen in a scheme as large as the Post Office scheme—and there is the possibility of a predatory Treasury down the line—then it could happen in relation to failing or allegedly failing local government schemes. The reality is that the boards of the local schemes and the national board would need to take steps within the LGPS to ensure that such schemes did not fail, or that if they failed they would merge with other local government schemes. That responsibility to intervene at the first sign of danger rests within the LGPS, not with the Treasury.
There is a serious suspicion that the blurring between an independent local authority-based wholly funded scheme, and this scheme’s provisions for greater Treasury surveillance, could go further, and that it could allow the Treasury to seize control of a local authority fund in the circumstances that I have described, but possibly in other circumstances as well. I have put this amendment down for the resolution of that suspicion. As I have said, I do not necessarily expect the Minister to accept this amendment, but I would like, in the course of either this or the next stage, an unequivocal declaration or a different form of words in the Bill that make it clear that the Treasury would not act in this way in relation to local government schemes. I beg to move.
Lord Newby
My Lords, this amendment seeks to provide assurance that the Treasury could not take away the assets of the pension funds or place the liabilities of the local government pension schemes on to the Government’s books. I hope that I can reassure the noble Lord, Lord Whitty, that the Government have no intention of doing so, and for a very good reason.
The noble Lord, Lord Hutton, considered the funded nature of the local government pension schemes and concluded that they should continue on that basis, and we agree. Local authority pension funds allow local government to manage its liabilities efficiently and ensure the solvency of the scheme both at a local level and as a whole. Moving to an unfunded model in the local government schemes would risk greater volatility in the costs, and therefore the demands on local taxpayers. In practice, taking on the assets of local government schemes would also mean taking on the liabilities, which would have a greater cost for central government and would therefore make no economic sense. Neither would winding up any of the existing funds make economic sense. That would cost the Government far more in making provision to secure annuities for rights already built up than it would gain the Government in terms of assets.
Furthermore, there are significant legal barriers. It took explicit powers in primary legislation to move the pension assets of the Royal Mail. There are no such explicit powers in this Bill. For the avoidance of doubt, any suggestion that the Government took on the pension fund of the Royal Mail in order to improve the figures, knowing as they did that they were incurring a very significant liability in the long term, is simply misplaced. It was, as the noble Lord put it—although I would not put it in quite the same terms—part of the necessary process of preparing the Royal Mail for privatisation.
When debating closure we have said in your Lordships’ House, in another place and outside Parliament that we have no intention of winding up the existing schemes. Indeed, we have amended the Bill on a number of occasions to allay these fears. The Government, therefore, have no intention of defunding the local government pension schemes, for the very good reasons that I have set out.
I hope that I have reassured the noble Lord, Lord Whitty, that any fears that he might have about the LGPS funds are entirely unfounded, and that this amendment is therefore not necessary.
Lord Whitty
My Lords, I thank the Minister for that reply, which provides a fair degree of assurance. I will read the precise words then consult colleagues in local government as to whether that is sufficient. However, I thank him for his reply. I agree that the Post Office was a bit more complicated, but on the other hand there are suspicions out there, and it is part of the distrust to which reference was made earlier that such fears are around. The Government have to ensure that they pacify those fears. I hope that the Minister’s words will help to do that. Meanwhile, I beg leave to withdraw the amendment.
Lord Whitty
Lord Whitty
My Lords, in moving Amendment 33, I will refer also to the other amendments with which it is grouped.
Clauses 4 and 5 provide that scheme regulations must provide for a person to be responsible for managing or administering a public service pension scheme set up under Bill powers, and any other statutory scheme connected with it. In the case of the LGPS, the agreement reached between the unions, the LGA and the DCLG specified the need for a national board, as proposed in the report of the noble Lord, Lord Hutton, in order to give it a national focus in line with the treatment of other public service schemes. The national scheme board would have concerns for the scheme at national level, with a central focus to ensure efficient and effective overall management of the LGPS. Therefore, the LGPS effectively requires two boards—one at the national level and one at the local scheme level—to ensure effective separation of responsibilities.
We need to clarify this. In commitments given in another place and elsewhere, the Government have already attempted to clarify that this would indeed be the case. However, we would like to see the clause amended or strengthened to separate clearly the role of scheme manager and scheme board—that is the other point of these amendments—which would be achieved through Amendments 36 and 44. Separating the roles through these amendments should provide for more robust management of any conflict of interest. As I say, the Government have reassured me to some extent on this point. It is possible that government Amendment 45, which we will come to later, will provide some clarity in terms of the distinction. I will respond to the Minister, if necessary, when we reach that amendment.
Amendment 126 to Clause 23 deals with contributions to other pension arrangements. Clause 23, as drafted, implies that there is an ability for scheme employers to make contributions to private occupational schemes virtually as an alternative to the schemes set up under the Bill. If that were a general power, it could result in scheme employers offering those schemes rather than the LGPS, which would have serious consequences, including knock-on effects on contributions for employers and members of the LGPS. There would also be demands from other employers running separate schemes for crystallisation payments from those who have transferred or did not take up the LGPS scheme. The ability of employers to pay into other schemes is available in exceptional circumstances but this clause as drafted seems to make it a general provision. However, I think that it needs to be available only in exceptional circumstances, as it is under the existing regulations.
Amendment 127 deals with Schedule 8 and revaluation methodology. The schedule contains relatively minor and consequential amendments to primary legislation. Pensions payable by the LGPS are revalued using the scheme set out in the Pensions (Increase) Act 1971. The amendment is required to enable the same methodology to be used for revaluation during service to continue once a scheme member is in receipt of their pension. That would provide the clarification needed to ensure that members’ benefits are revalued correctly in retirement. I beg to move.
Lord Eatwell
My Lords, my noble friend has made some interesting and important points. One of the issues that really need to be faced, on Report in particular, is that in the negotiations that followed the Hutton report, Local Government Employers, the unions and the Government managed to formulate what could be called a “deal” about the way in which pensions were to go forward. Regrettably, elements of that deal do not appear in the Bill. In response to challenges in the Commons, Ministers gave assurances on a number of occasions but, given that this is expected to be a Bill lasting 25 years, covering several Administrations, these assurances should be in the Bill. A deal is a deal and simply going back to assurances is, at least partially, reneging on the deal.
Having said that in support of my noble friend, I will now speak to Amendment 35, which is also in this group. My noble friend Lord Hutton’s report recommends:
“Every public service pension scheme (and individual LGPS Fund) should have a properly constituted, trained and competent Pension Board, with member nominees, responsible for meeting good standards of governance including effective and efficient administration.”
One can understand why my noble friend recommended this given that, as my noble friend Lord Whitty has commented, there are 89 local government pension funds, with over £150 billion of assets under management, as well as the other pension schemes. Clause 1 currently provides for the establishment of a pension board for a scheme but leaves it completely unclear whether there is a requirement for one pension board for each fund in the Local Government Pension Scheme. Under the clause as drafted, it would be perfectly possible to have one pension board for all 89 pension funds—that is not ruled out. The Minister in another place said the combined effects of Clauses 4 and 5 rule this out. I have studied these clauses carefully and have taken advice, and have been assured that they do not rule this out. Indeed, one could have various combinations of boards servicing the 89 LGPS funds and other schemes.
Given that, as the Hutton report says,
“all scheme members deserve to know that their scheme is being properly run”,
it is entirely desirable to make clear in the Bill that a pension board for each pension fund is a prerequisite, both as a measure of efficient management and to give confidence to the members of individual schemes that they have a board that they can identify with and have access to. I will, in due course, ask the Minister to consider carefully taking on board Amendment 35 to give suitable clarity to what is meant by the establishment of pension boards and ensure that there is a pension board for each scheme.
Lord Newby
My Lords, the noble Lord, Lord Whitty, has proposed Amendments 33, 36, and 44, which are concerned with ensuring that there is a scheme manager and pension board for each local authority pension fund. The amendments also provide for national pension boards in the Local Government Pension Scheme. Amendment 35, tabled by the noble Lord, Lord Eatwell, raises much the same issue.
Both noble Lords seek assurance that there must be a pension board for each local authority pension fund within the local government scheme. I can reassure them on that point. Police, fire and local authorities will be scheme managers in respect of their part of the pension schemes for those workforces. The effect of Clause 5 is that the scheme regulations must provide for a pension board to assist each scheme manager in that role. It follows that there will be a pension board for each scheme manager.
Noble Lords may say that Clause 4 does not in explicit terms require there to be a scheme manager for each local pension fund, and hence a pension board also for that fund, but that is the purpose of Clause 4(5). The intention is also clear from Clause 5(6). This anticipates that the scheme managers of locally administered funds will be the local authority or a committee of the authority.
Amendment 36 is also concerned with requiring national pension boards to be established in the Local Government Pension Scheme for England and Wales, and the one for Scotland.
Lord Eatwell
I ask the noble Lord to return to the point he just made, because it is similar to a point made in another place. There is a scheme manager for each scheme. Clause 5(1) states:
“Scheme regulations for a scheme under section 1 must provide for the establishment of a board with responsibility for assisting the scheme manager”.
That does not suggest that there should be a board associated with each scheme manager. It does not say that, but a board might be just one gargantuan board that serves a variety of scheme managers. I quite understand that the noble Lord is sympathetic on this issue and wishes to assure us that that is what the Government mean but it is not what they say.
Lord Newby
My Lords, that is what we mean and I am advised that that is what the clause says. I will look at it again and if there is any further clarification that I can give the noble Lord, I will write to him. I think that we just have a difference of view about what the current provision states.
Amendment 36 would require national pension boards to be established in the Local Government Pension Scheme for England and Wales, and the one for Scotland. We cannot support these amendments but, as the noble Lord, Lord Whitty, will be aware, we have tabled Amendment 45 to deal with that issue, which we will consider in due course. When we do, I hope that the noble Lord will be persuaded of it.
Amendment 115 concerns Schedule 7, which sets out the mechanism to maintain the final salary link for service in the current schemes. The schedule is designed to allow public servants’ final salary benefits to remain fixed to their final salary on leaving pensionable public service, even after they enter the new schemes. This was a key part of the recommendations of the noble Lord, Lord Hutton, and a vital aspect of the reform deal for public servants. The mechanism also includes provisions for this link to be maintained even if the person moves between public service schemes or leaves public service for periods of not more than five years. Again, this is exactly in keeping with what the noble Lord, Lord Hutton, proposed.
This approach allows public servants the flexibility, for example, to take carer’s leave or gain experience in other sectors, without being inhibited from doing so by the detrimental impact on their final salary pensions. This is consistent with a wider objective to modernise public service terms and conditions, and it smoothes movement between different sectors and departments to enable the sort of skills-sharing that is required for a modern-day workforce. Amendment 115 seeks to remove this flexibility for those in the Local Government Pension Scheme by stipulating that the link is maintained only if the person remains in pensionable service for the purpose of the new local government scheme.
I am not sure that the amendment delivers on its purpose but, none the less, I must oppose it on principle. It would leave in place a movement barrier that we wish to dislodge and be inherently unfair to local government workers. It would lead to the unfair scenario where a teacher who moves to local government for a period before returning to teaching would maintain their final salary link, whereas a local government worker who moves to the education sector before returning to local government could lose their final salary link. That would not be right.
I reassure the House, however, that the Bill does not impose any new liabilities on the funded local government scheme while a person is not in local government scheme employment. Under paragraph 2 of Schedule 7, the link applies only where someone who leaves the local government scheme transfers their rights to benefits from the old scheme, and therefore the liability, to their new employer’s final salary scheme.
Amendment 126 seeks to remove local government pension schemes from the powers set out in Clause 23, which allows pension payments to be made outside schemes that will be established under Clause 1. Although the pensions that will be made under the Bill will continue to be among the best, not every last person working in the public sector will want to be part of them. In these circumstances, it is important that alternative provision can be made so that public servants can continue to save for their retirement, where the scheme manager or employer considers this appropriate. The clause therefore allows for pension payments, or other benefit payments, to be made outside the new schemes to people who are entitled to join the schemes made under this Bill.
An example of an alternative arrangement would be the employer making contributions to an individual’s personal pension scheme where that individual is on a short-term contract and does not wish to be part of the public service scheme for just that short period. This is nothing new across public service schemes as a whole. The power already exists for some of the current schemes; for example, in Section 1 of the Superannuation Act 1972.
However, I recognise that there is some concern, expressed by the noble Lord, Lord Whitty, and no doubt shared by others, that these powers may be used to override eligibility for the schemes that will be established under Clause 1. I can reassure noble Lords that the clause will not allow eligibility for the main scheme benefits to be overridden. The scheme regulations will spell out who is eligible to be a member of a pension scheme made under the Bill. This scheme could not be used to remove these eligibility rights. In short, while this clause could allow alternative arrangements to be offered, where these suit an individual’s personal circumstances, it does not allow schemes and employers to make such alternative arrangements mandatory. I hope I have reassured the noble Lord, Lord Whitty, that any fears he has about the operation of Clause 23 with regard to the LGPS are entirely unfounded, and that this amendment is not necessary.
Finally, Amendment 127 seeks to remove the reformed Local Government Pension Scheme from the provisions of the Pensions (Increase) Act 1971. This Act provides for the indexation of pensions in payment across the public sector. The amendment would mean that the provisions of that Act would not apply to the CARE element of the LGPS, instead, indexation of CARE pensions in payment would be linked to the revaluation of active member benefits, which is provided for under this Bill.
I understand that this amendment has been tabled to overcome a perceived problem with the Pensions (Increase) Act, which creates difficulties for uprating pensions in the year the member retires. However, this amendment is both unnecessary and undesirable. It is undesirable in a piece of framework legislation such as this to carve out one particular scheme for special treatment. This is especially the case when the revaluation of CARE benefits in the year of retirement is a calculation that will have to be made by all the new CARE schemes established under the Bill.
Furthermore, it is unnecessary. I am pleased to be able to reassure the noble Lord that the Government already run a CARE scheme: the Nuvos section of the Principal Civil Service Pension Scheme, which makes provisions for civil servants. This issue was addressed when that scheme was introduced, and is dealt with via the scheme rules. Should the noble Lord care to look at the detail of this, I refer him to rule C.9—the retirement index addition—in the 2007 rules for the existing civil service scheme. The reformed schemes set up under this Bill, including the LGPS, will also be able to overcome any technical difficulties with appropriate provisions in scheme regulations. There is no need to make any further provision in the Bill to allow them to do so.
With these reassurances, I hope that the noble Lord will feel able to withdraw this amendment.
Lord Whitty
My Lords, on that last point, I should be grateful to receive a letter or note from the Minister or his department because that is different from what is understood by those who currently administer the scheme. I agree that it is a minor point but, as a minor point, it should really be dealt with in the scheme regulations rather than in the Bill. Therefore, if the noble Lord would be good enough to let me have more detail on that, I should be grateful.
I have a similar point to make in relation to payments into other schemes. In all the circumstances that the Minister referred to, I am in favour of what local government schemes already do, which is to provide for payments into other schemes for the purposes of temporary absence, short-term contracts and all sorts of other things. However, that is not part of the scheme; it is an arrangement between the individual and so forth. The fear or concern about Clause 23 is that it is written in very general terms. It is written as though a local authority or the pension manager thereof could, as a matter of course, offer an alternative parallel scheme to the local government scheme, which would undermine the finances of the local government scheme. I can envisage circumstances where that might happen. That does not mean that there should not be provision for somebody who wishes to invest in a different scheme themselves, and of course there will also be the complication of automatic enrolment. Therefore, there are circumstances where the current situation allows employers to invest in other schemes, which they do. My concern relates to the generality of the clause and I should be grateful if the Minister could have another brief look at that.
As far as the main amendments in this group are concerned, like my noble friend Lord Eatwell, it seems to me that if the Government mean that there should be two levels of board in a local government scheme, they should say so and make that quite explicit. Of course, there is an additional problem if this matter is left vague. If there is a national scheme, then what happens at local level could vary. There is another problem which I think probably exists in the current local government scheme to some extent because it is unclear. There should be a clear separation between the employer as the employing authority and the body and personnel that deal with the management of the local scheme. That is required by the private sector regulations under the Pensions Act and by the European directive. If what goes on at the second tier is left vague, there is the possibility that the employing authority will simply decide that it will also be the administrator of the scheme. If it is a committee of the authority with clear powers, that is a different matter, and that is often the case with local authority schemes, but there has to be a differentiation. I fear that if we do not spell out in the primary legislation that that is the structure that we are looking for, then a range of possibilities could ensue at the local level.
I have also looked at Amendment 45, which seems to deal with some of the anxieties behind the non-stipulation of a two-tier board scheme, but it does not deal with all of them. I am also somewhat mystified by the fact that the amendment refers to an “advisory board”. What we and the Hutton report are looking for is a governance board, and to call it an advisory board immediately dilutes its potential role. I could not find a lot wrong with the wording of the proposed new clause in the amendment but the heading made me feel that it did not fulfil all that I was hoping for from the Government. Perhaps the noble Lord could ask his officials to get in touch with me and with the LGA to provide some clarification on this front. In any case, I would advise him to be clearer in the terminology in relation to the two boards. However, for the moment, I beg leave to withdraw the amendment.
Lord Sharkey
“(1) Scheme regulations for a scheme under section 1 must provide for the establishment of a board, at least one third of whose members must be members of the scheme or their representatives, with responsibility for assisting and making recommendations to the scheme manager in relation to the following matters.”
Lord Sharkey
My Lords, this amendment has two purposes. The first is to put into the Bill the requirement that pension boards have at least one-third of their members who are members of the underlying scheme. The second is to make certain that these pension boards universally have some influence and are not entirely to be emasculated by the scheme regulators. The drafting of the Bill leaves the exact powers and responsibility of the boards to be defined by the scheme regulators, saying only that the boards are to assist the scheme manager. As I said at Second Reading, the word “assist” is virtually meaningless in this context and that is why this amendment also gives a board the explicit power to make recommendations to the scheme manager.
The question of scheme members being members of their scheme’s pension board should not be controversial; as the noble Lord, Lord Eatwell, mentioned a moment ago, recommendation 17 of the report of the noble Lord, Lord Hutton, says explicitly that every public service pension scheme and individual LGPS fund should have a properly constituted, trained and competent pension board with member nominees. The Government agree with this principle. In Committee in the Commons, the Minister said that Lord Hutton recommended that each pension scheme local board should have a pension board and the board should include member representatives. We agree.
Lord Hutton, on pages 125 and 126 of his report, explains what factors led to this recommendation. He notes that there are currently boards where members are sometimes not formally represented. He notes with approval that the majority of local authorities have some form of member representation in their governance arrangements. However, he also noted that it seemed that only a very small minority of member representatives had full voting rights. He quotes evidence given to his commission by UNISON that,
“by 2009 only seven of the 89 England and Wales Fund authorities had allowed voting by scheme members of pension committees”.
That is not representation, that is tokenism. It is still tokenism even after Government Amendment 40 in this group. All this amendment does is to require that members of a scheme must be represented on the scheme’s pension board. It is entirely silent about the size of this representation.
This whole issue of size of member representation on pension boards was discussed in some detail at Committee stage in the Commons. There, Chris Leslie proposed an amendment that would have resulted in one-third of pension board members being scheme members. The Government declined to agree. The Minister said:
“There is no objection in principle to having scheme-member-nominated representation on pension boards. That is our policy. Our objection is to applying a private sector standard to the public sector schemes without considering whether that is appropriate given the different structures and contexts of public schemes. Unlike the private sector, the public schemes span large work forces and multiple employers”.—[Official Report, Commons, Public Service Pensions Bill Committee, 8/11/12; cols 267-68.]
This refers to a provision in the Pensions Act 2004; Section 241 of this Act requires pension boards in the private sector to have at least one-third of their members to be members of the underlying scheme. The Minister’s arguments, that what the private sector is forced to do by statute is not appropriate as a statutory provision for the public sector, seems to me to be on very weak ground. I would specifically ask the Minister to explain in detail why we can happily have a one-third rule in statute for private pension schemes but not for public pension schemes.
In the Commons, in Committee, the Government attempted to resolve the argument over the size of member representation in part by saying:
“I can tell the hon. Gentleman that for various schemes, there is already extensive work going on draft schemes and draft policies … Once he sees that, he will see that a lot of the concerns that he understandably has about representation will be addressed”.—[Official Report, Commons, Public Service Pensions Bill Committee, 8/11/12; col. 269.]
The Minister said he was happy to release some of those drafts. Could I ask the noble Lord the Minister to make those drafts also available to this House to help us in our deliberations? It may be that, as Sajid Javid said, these drafts will in fact help. But until we can see and discuss them, I think that the Minister must explain from first principles why it is wrong to guarantee significant member representation on pension boards by writing this requirement on to the face of the Bill. I beg to move.
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, if this amendment were to be agreed I could not call Amendment 35 due to pre-emption.
Baroness Donaghy
My Lords, I identify with every word that the noble Lord, Lord Sharkey, said on that issue. In doing so, I shall speak to my amendment about the European directive, which is related to the structure and governance of schemes. In view of the time, I shall give the short version because it is a rather technical issue.
Of course the European directive was intended to have a minimum EU-wide standard for security of benefits, but that was not its sole objective. It was also aimed at improving standards of management and allowing pension fund schemes to play a full part in investment markets. All funded schemes should meet these objectives whether government guaranteed or not.
On the question of legal separation, at present the funds in England and Wales of the Local Government Pension Scheme are not legally separated. They are under the control of the councils that administer them. Most are run by a council committee under local authority legislation. On the issue of the Local Government Pension Scheme meeting the requirements of Article 18, the article states:
“Member States shall require institutions located in their territories to invest in accordance with the ‘prudent person’ rule and in particular in accordance with the following rules … The assets shall be invested in the best interests of members and beneficiaries. In the case of a potential conflict of interest, the institution, or the entity which manages its portfolio, shall ensure that the investment is made in the sole interest of members and beneficiaries”.
Therefore, the Local Government Pension Scheme has its own investment regulations. They do not contain any requirement to the effect of the prudent person rule or to invest in the best interests of scheme members and so are non-compliant with the directive in this respect.
Let me make clear that I am not making any outright criticism of the Local Government Pension Scheme. It has been well run and has the trust of its members. I am aware, of course, that the Minister has said that, in his view, the Government are already fully compliant with the directive. The previous Government, which implemented these articles, also believed that they were fully compliant. I simply make the point that I do not think that is entirely accurate.
The investment regulations of the Local Government Pension Scheme do not contain any requirement to the effect of the prudent person rule or to invest in the best interests of scheme members and so they are non-compliant. Even with the benefit of the directive’s existing legal framework, which is not present in the Local Government Pension Scheme, Parliament has seen the need to provide further protection for members’ interests in particular by requiring the appointment of member-nominated trustees or trustee directors, imposing obligations to provide information to members, requiring trustees to be informed and trained so that they understand their responsibilities, and requiring trustees to appoint professional advisers, whose duty it is to act only for them in situations where there may be a conflict of interest with the employer imposing restrictions on the amount of permissible investment in the employer.
The position under the Local Government Pension Scheme, as matters stand, is completely different. The equivalent of the trustee is the administering authority, which is likely to be a major employer in relation to the fund it manages. Not only that, all decisions taken about investing the fund are taken by councillors, officers and employees of the administering authority or representatives of other employer bodies. There is no provision in the legislation which replicates the duty that trustees owe to their beneficiaries. On the face of the legislation as it stands, therefore, there is nothing to stop the administering authority from taking decisions on investments which prefer its interests and the interests of other employers over the interests of members of the Local Government Pension Scheme. My amendment is therefore necessary to ensure that reform of the Local Government Pension Scheme should address the provisions of the IORP directive.
Lord Eatwell
My Lords, before speaking to the amendments in this group tabled in my name and that of my noble and learned friend Lord Davidson of Glen Clova, perhaps I may associate myself most heartily with the words of the noble Lord, Lord Sharkey. That should not be surprising as the first part of my Amendment 41 is virtually exactly the same as his amendment, but I must say that he put the argument beautifully. The idea that one could not accept the notion that one-third of pension board members are nominated by members of the scheme seems extraordinary. One-third is a lower limit which should certainly be accepted.
On the pension fund board which I have the honour of chairing there is one independent member; namely, myself. Otherwise one half of the remaining members are nominated by the members of the scheme and the other half by the employer. It is just under 50% because of one independent member. If that can be the case in what is, I hope, a harmonious pension scheme, I do not see why it cannot be appropriate for public sector schemes. The argument that the public sector is widely spread over different locales and can cover lots of different activities is clearly spurious as a private scheme for a very large company would be doing the same thing. That is the argument which was presented in another place, but it has been dismissed by the noble Lord, Lord Sharkey, and he was absolutely right to do so. It really has no substance at all.
I shall deal briefly with the amendments tabled in my name. Amendment 38 is all about transparency and effective governance. Under Clause 6(2)(c) pension boards are obliged to publish information about,
“matters falling within the board’s responsibility”.
As we can see in Clause 5(2), these include compliance with a whole series of aspects of the scheme’s regulations, whether it be an unfunded scheme, a defined contribution scheme or, indeed, a funded scheme with respect to its investment strategy. All the amendment seeks to do is ensure that the financial information associated with the running of the scheme is available to the board members so that they can comply with the requirements set out elsewhere in the Bill. If they do not have all the financial information they need, how can they fulfil the responsibility of ensuring that the scheme complies with regulations and other legislation relating to governance? Surely having knowledge of the financial structure and oversight thereof is key to this. We learnt from the Financial Services Bill that oversight does not mean control of but simply access to information about, so if this Bill is to be consistent with that Bill, oversight here would mean access to information that will allow the board to fulfil its responsibilities.
Amendment 39 similarly is devoted to transparency and requires that a policy governing the appointment of board members should be published. High quality board members are absolutely essential if public service pension schemes are to be well run. It is vital that the process for appointment is clear and well considered. It is therefore important that this is a transparent process so that members are reassured as to the quality of their board members. This will also promote fairness in appointments. Given that under Clause 5(4) scheme managers have an obligation to ensure that board members do not have any conflicts of interest, a clear and open appointment process with established criteria for appointment will aid scheme managers in fulfilling that statutory obligation. All Amendment 39 does is say, “Publish your policy on your appointment so that everybody knows what the criteria are, how they can apply, and so on”.
Regarding Amendment 41, I have already referred to the part which deals with the one-third of board members, and the noble Lord, Lord Sharkey, has put it better than I could. Amendment 41 also includes the requirement that there be one independent member. It is enormously valuable to have independent members, who often have professional expertise, to assist on pension fund boards. The report of the noble Lord, Lord Hutton, made it clear that it would be desirable for pension boards to have independent members. The amendment seeks to ensure that the recommendation of the noble Lord, Lord Hutton, is taken into account.
Finally, Amendment 42 uses exactly the same definition of member nominee and independent board member as the Pensions Act 2004 and provides for a nomination process for board members. In that respect, it simply mirrors the Pensions Act 2004, and in particular mirrors the definition of an independent board member, referring specifically to the nature of their independence. The criteria set out in Amendment 42 are those which we have already accepted for the private sector, and it seems entirely appropriate that they should fit here. These amendments are to provide transparency, which will enable the boards to do their jobs better. Transparency over an appointments process and a nomination process will enable the boards to be better constructed.
Lord Newby
My Lords, I begin by speaking to government Amendment 40. It deals with matters related to those that have been raised by the noble Lords, Lord Sharkey and Lord Eatwell. Amendment 40 delivers the Government’s policy commitment for scheme members to be represented on pension boards. Our amendment explicitly requires scheme regulations to provide for members of a public pension scheme, and any connected scheme, to be represented on the pension board. Unlike the amendments proposed by the noble Lords, Lord Sharkey and Lord Eatwell, it does not specify a proportion of board members that must be member representatives, nor does it say how member representatives are to be appointed to the pension board.
The noble Lord, Lord Sharkey, asked whether draft regulations could be made available to Members of your Lordships’ House. I confirm that we will make them available to all Members who have spoken in the debate today. In our view, these matters are rightly left to scheme regulations. In their amendments, the noble Lords have broadly sought to replicate the requirements that relate to boards of trustees in other occupational pension schemes. Amendments 34 and 41 seek to adopt the requirement for at least one-third of board members to be members or their representatives in trust-based schemes. Amendment 42 seeks to adopt a similar process for nominating member representatives to the board.
The noble Lord, Lord Sharkey, asked me to explain our rationale from first principles. I am not sure whether I shall go quite that far back, but I will attempt to explain it. We believe that the amendments fail to recognise the major differences between the public service pension schemes and the trust-based schemes that these provisions were designed for. For example, the effect of Amendment 42 would be to require Norfolk County Council to allow every member of the local government pension scheme in England and Wales, directly or indirectly, to participate in the selection of member representatives to their pension boards. The same would apply to each of the other 88 funds in the Local Government Pension Scheme. This is clearly unintended but it serves to highlight the fact that the public service schemes are indeed different. A one-size-fits-all process for nominating member representatives to pension boards would not, in our view, be appropriate, nor is it appropriate to set a quota. The public schemes are not directly comparable to trust-based pension schemes. The public service schemes are significantly bigger than most occupational pension schemes and many involve multiple and diverse employers. For example, there are over 5,000 employers in the LGPS in England and Wales. Those are not just local councils but also local charities and housing associations. That broad range of interests needs to be represented on the public service pension boards too.
Consequently, our view is that imposing a requirement for one-third of pension board members to be members, or their representatives, could lead to them being the largest interest group on the pension boards. Of course this is not an issue in private sector schemes, where there is often only a single employer to accommodate on the trustee board. The Bill already provides the necessary flexibility for the details to be agreed in each scheme, following consultations with members and other interests. This approach will allow the pension board membership to be tailored to the varying structures of each of the public schemes. The pension boards will then be able to appropriately reflect the range of employees and employers in each scheme. We believe that this is the right approach.
One of the other amendments in the name of the noble Lord, Lord Eatwell, relates to public pension boards having an independent member. The noble Lord, Lord Hutton, did indeed say in his report that it was important that pension boards include independent members. Although we accept that independent members can play a role in pension boards, we do not see a case for mandating each pension board to have such members. The reasons for mandating independent trustees in the private sector do not, in our view, flow through to the public sector schemes. Independent trustees reinforce the separation of pension schemes from the employer in the private sector and, as we have discussed previously, we are not convinced that this is required in the public scheme.
Amendment 39 would require a scheme manager rather than scheme regulations to determine the policy governing the appointment of pension board members. Clause 5 provides that it is the scheme regulations that would provide for the establishment of a board. Within that, schemes are likely to set out the detail of a board appointment process in the scheme regulations. If schemes determine to delegate this matter to scheme managers, then scheme regulations could require the scheme manager to publish these matters. It would be wrong for the Bill to prejudge the outcome of scheme-level discussions about how to best constitute and appoint pension boards in each of the schemes.
Having said that, we agree with the sentiment of the amendment. Pension boards must be transparent and representative of the interests of stakeholders, both members and employers. That is why Clause 6 already requires the publication of details of pension board membership and the board’s responsibilities.
In responding to Amendment 37 from the noble Baroness, Lady Donaghy, I hope she will not mind if I repeat what I said at Second Reading: the Government believe that the Local Government Pension Scheme,
“is fully compliant with Articles 8 and 18 of this directive. We believe this compliance is achieved by the high standard of legal security that applies to LGPS funds and benefits”.—[Official Report, 19/12/12; col. 1586.]
I am well aware that Unison has long argued that the scheme is not compliant with the European directive, and I recognise that it feels strongly on this issue, but we simply do not agree. The reasons why have been set out in a number of letters from Ministers to Unison over the past five years, not just the past two.
The previous Government implemented EU directive 41/2003 through the Pensions Act 2004. As that Act relates to the governance and administration of pension funds, that legislation is therefore already within the scope of Clause 5(2). I assure the noble Baroness that Amendment 37 is therefore not necessary. I hope that she will feel reassured and not press it at the appropriate time.
The final amendment in this group is Amendment 38, tabled by the noble Lord, Lord Eatwell. This amendment was considered in another place and resisted on the grounds that its application would be inappropriate. One of the key concerns that we have with this amendment is that it seeks to give the pension board of a funded scheme responsibility for the oversight of investment management. The existence, performance or level of any local authority pension fund has no bearing on the benefits that members receive.
Lord Sharkey
I thank the Minister for the promise to give us sight of the draft scheme regulations; that might be very helpful. I continue to believe that it is a mistake to leave the number of member representatives to the scheme regulations. Who protects the interests of the scheme members as the regulations draw up the plan for these boards? Consultation does not do that. Consultation is very well and fine and should take place, but it does not necessarily protect the interests of the scheme members.
I also wonder what mechanisms will prevent or cure the non-voting tokenism identified in evidence by the noble Lord, Lord Hutton. I find that I am unconvinced, on the whole, by the Government’s responses on this issue. It is clear, however, that there is substantial concern in the Committee about this whole area and I expect that we shall return to the question on Report. In the mean time I beg leave to withdraw the amendment.
Lord Newby
“( ) requiring members of the scheme and any connected scheme to be represented on the board.”