Grand Committee
(11 years, 3 months ago)
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Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012
(11 years, 3 months ago)
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Lord McKenzie of Luton
That the Grand Committee takes note of the Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (SI 2012/2756).
Lord McKenzie of Luton
These regulations are subject to the negative procedure, so the Motion to Take Note is an opportunity for us to bring some focus to these provisions. This follows on from the report of the Secondary Legislation Scrutiny Committee’s 15th report, which draws the regulations to the special attention of the House on the grounds that they give rise to issues of public policy. Indeed they do.
ESA was introduced in 2008 as the replacement for incapacity benefit. It was designed to focus on what individuals could do rather than what they could not, placing emphasis on their functional capabilities. This was all part of the broad consensus concerning the importance of work and of helping people move nearer to the labour market. The introduction of ESA has not been without its challenges, although the basic concept has been validated, but with periodic reviews bringing improvements to the process. However, concerns remain about the process and the role of Atos, so perhaps we can use this opportunity to get an update on some of these matters.
Can the Minister give us an update for last year on how many appeals are entered against decisions, either to access the support group or to the work-related activity group rather than JSA? What is the current rate of success? I probe these points because the quantum of appeals on a success rate is clearly indicative of how effectively the system is making the judgments that it should. It is these judgments, made by DWP decision-makers, which drive the conditionality in the regime and the sanctions which flow from it.
The regulations under consideration introduced from 3 December 2012 a new sanctions and hardship regime. As the Explanatory Memorandum makes clear, the rationale of the change is to align as far as possible the sanctions regime with the equivalent category under universal credit. For those claiming ESA, and in the work-related activity group, conditionality involves attendance at a work-focused interview and undertaking work-related activity. No conditionality of course applies to someone in the support group, but obviously greater conditionality applies to somebody placed on JSA rather than in the WRAG.
These new sanctions have an open-ended period which can be brought to an end when the claimant meets a claimant condition followed by a period of one, two or four weeks, depending upon the number of prior sanctions. The effective date of the sanctions to operate is to be brought forward in comparison with current arrangements. In addition, the amount of the sanction is to be increased; rather than 50% or 100% of the work-related activity component, which is currently some £28, the sanction will be 100% of the prescribed ESA amount, currently £71. This will leave the individual with only £28 plus any premiums to which they might be entitled.
We accept that the regime should involve conditionality and that this implies some form of sanction, but this level of sanction is frankly draconian and unacceptable. Our concerns are about not only the huge reduction of income that it entails but the risks of the system for vulnerable people. There is provision for hardship payments; we can ask about any differences between the regime which is being introduced by these regulations and the existing position in terms of eligibility for payment and the amount of any payment.
The Explanatory Note to the regulations says that in determining whether hardship payments are appropriate, a decision-maker will take the following matters into account: whether a member of the family satisfies the requirements for a disability premium or an element of child tax credit in respect of a disabled child or young person; the household’s likely resources without hardship payments, including whether the claimant can seek assistance from others, such as family and friends; the difference between the claimant’s likely resources and the amount of a hardship payment which can be made; the difference between the claimant’s likely resources and the amount of a hardship payment which could be made; the risk that the claimant’s household will not have access to essential items such as food, clothing or heating, or will have access to such essential items at considerably reduced levels without a hardship payment; and the length of time that these factors will continue.
To what extent does that description differ from the detail of the current regime? I am particularly interested in the suggestion that people have to go outside the household, not only to family but to friends, and that resources that friends may have are taken into account in whether or not the hardship payment is made. We need to know particularly about the protections built into this whole regime. As we have discussed on many occasions, individuals in the WRAG, even if properly judged to be capable of work-related activity, could suffer from a wide range of conditions. There are concerns in particular about those with a mental health condition, with fluctuating conditions, and indeed with hidden conditions. It was the prior intent that nobody with a mental health condition would be sanctioned without a face-to-face visit. Is this still the case?
Can the Minister say something about the process attached to these sanctions and the extent to which it differs from that attaching to JSA? Are the good cause rules identical to the current ones? My understanding is that the following still apply as constituting good cause: if there is any misunderstanding on a person’s part because of learning, literacy or language difficulties, or misleading information given by the benefit authority; attending a doctor’s or dentist’s appointment; difficulties with transport where no reasonable alternative was available; the practice of a religion that prevented attendance at a set time; attending a job interview; the need to work in a business if you are trying to become self-employed; if you or a person for whom you were caring had an accident, illness or relapse; attending the funeral of a close friend; a disability that makes attendance impracticable; and any other relevant data. Are those the rules that still apply? I want confirmation of the extent to which they differ, if at all, from those applying currently. The Explanatory Note makes reference to a comprehensive suite of products being developed for operational staff. This is welcome, provided that the DWP has the staffing resources to cope. For the latest year available, how many individuals in receipt of ESA were subject to a sanction, how many appealed, and what was the outcome of those appeals?
We will be watchful regarding these regulations. We note the monitoring review proposals. Finally, how soon will the revaluation of the JCP offer be forthcoming? I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Lord, Lord McKenzie, for his Motion to Take Note, and for giving us the opportunity to discuss these new regulations. Standing back a bit, I think it is worth saying from the start that there is a widespread consensus that the welfare system in this country is in need of a great deal of change. Clearly some of that change is in the structural area, where we are bringing in universal credit, while some changes address the cost of welfare and the fact that the bill for welfare is unaffordable.
Under the heading of structural change, and building on what the previous Government did and on what the noble Lord, Lord McKenzie, referred to, we are putting the emphasis on helping people to get back into work, and on making sure that those who are able to work and those who have been diagnosed as being unable to work but who may be able to return to work at some point in the future have the support that they need in order to return to the workforce. That is what people want. When they are on benefits and find themselves in the very difficult situation of being out of work, particularly at the end of a long illness, they want to know that there is an opportunity for them, as there is for all of us. We proposed the tighter sanctions regime because we place so much importance on the requirements to help people back into work.
As the noble Lord, Lord McKenzie, said, these regulations came into force on 3 December last year. They provide for a more effective and proportionate ESA sanctions system, but they also preserve the important safeguards and clarity that are required to ensure a fair and balanced system. The regulations make no change to the assessment of who is eligible for ESA or to the requirements placed on ESA claimants. They form part of the wider package of reforms that move the employment and support allowance and jobseeker’s allowance sanctions systems substantially closer to that intended for universal credit, helping staff and claimants to prepare for the new benefit.
ESA is designed to place greater emphasis on what the claimant can do, and on the importance and benefits of moving towards work. I will be clear that we never ask ESA claimants to apply for jobs—only to prepare for work if they are able to do so, and to meet their Jobcentre Plus or other trained advisers to discuss this. Most claimants value this support and meet the requirements placed upon them. It is only fair to those who meet the requirements that the sanctions system places due importance on these obligations and provides incentives for all claimants to meet them.
I will now set out how ESA works. Claimants in the work-related activity group have been assessed as having a limited capability for work and are required to attend work-focused interviews to meet a personal adviser and discuss the support available to help them to take steps towards employment. Claimants placed in this group can also be required to undertake work-related activity where this is appropriate in their personal circumstances, such as attending a training course or updating a CV. Whether these work-related activity requirements are imposed by a Jobcentre Plus adviser or a work programme adviser, they must be reasonable in the claimant’s circumstances and cannot include requirements for the claimant to look for work or undergo any form of medical treatment.
If claimants do not meet suitable work-related activity requirements and work-focused interview requirements without good reason, a sanction can and should be applied. This is not new. Sanctions have been a feature of ESA since the benefit was launched in 2008. The regulations we are discussing today did not change what the claimant is expected to do or who might be sanctioned. But until these regulations came into force, the financial consequences of the sanction did not give sufficient weight to the importance of the requirements they enforced. As the Social Security Advisory Committee found, claimants do not always realise that they have been sanctioned. If claimants are unaware that they are losing benefit as a result of a sanction, there is little incentive for recompliance.
An ESA award for single claimants who have been found to be capable of work-related activity is made up of two elements: the work-related activity component of £28.15 and the personal amount of £71. Until December 2012, when these regulations came into force, claimants who failed to attend a work-focused interview or to undertake work-related activity without good reason received an open-ended sanction that was lifted when they re-engaged. The effect of the sanction was to reduce the work-related activity component of their award—£28.15—by 50%, which meant that their award of £99.15 a week would decrease by £14.17. After four weeks of non-engagement, the sanction increased to a 100% reduction of the work-related activity component, so claimants lost the full amount of the £28 which was on top of the original £71.
Lord Wigley
I will raise another question which has not been covered; it might give the Minister a little more time to get answers to the questions. On the information that has been given to me, it is noted that a full impact assessment has not been published for the instrument because it has no impact on the private sector or civil society organisations. I am surprised that this does not have some impact on civil society organisations. Many such organisations deal with the people who are impacted by these changes. I would be glad of some clarification, to know exactly when impact assessments are made and when they are not.
Baroness Stowell of Beeston
I am afraid that I will have to write to the noble Lord on that one. I do not have the answer immediately in front of me.
I can at least respond to one of the questions put to me by the noble Lord, Lord McKenzie. On appeals against WCA outcomes—the decision as to whether to put somebody in the work-related activity group or the support group—42% of appeals heard by the tribunal in the first quarter of this financial year were successful. What I do not have is the number of actual appeals. Regrettably, I will have to follow up in writing to the noble Lord on the other question that he raised about appeals. That notwithstanding, I hope that I have been able to provide enough information to satisfy the Committee today that these new regulations, which introduce this new sanctions regime, as I stressed at the start, very much emphasise the importance of the requirements on people in the work-related activity group as to how they can return to the workforce at the right time. That is what most people in work-related activity definitely want. It is our responsibility to make sure that they are clear on their requirements and that those requirements help them in that regard.
The Countess of Mar
My Lords, when the noble Baroness mentioned the evaluation review, she said that the department was looking at people’s satisfaction with the receipt of their benefits. Two major ME/CFS charities have done reviews with their clientele, amounting to well over 1,000 people in each case. Would the department be prepared to accept these reviews as part of its evidence?
Baroness Stowell of Beeston
I am sure that if evidence is there that would be relevant to what we are doing, it would be very welcome.
Lord McKenzie of Luton
My Lords, I thank the Minister for her response and for dealing with quite a lot of detailed questions. There is not a difference between us on the importance of encouraging people into work and the difference that that can make to their lives as well as to the economy of our country. The key issue around these particular regulations is how these things operate for a range of people who might have a mental health condition, autism, learning disabilities or fluctuating conditions—a whole range of circumstances—where the approach needs to be particularly sensitive, particularly knowledgeable and sometimes very specific, if not individual. I do not think I got the flavour of that from the response.
The statistics for the appeal success rate, which I thought was going to be declining, are worrying because they seem to suggest that the process under way for people in the WRAG or support group, or left on JSA, is still not working as well and effectively as it should be. It has a chequered history. I think the approach is right—indeed we legislated for that approach—but how it works, and is working, in practice, particularly with Atos, remains a cause for concern. That point is not unrelated to these regulations—it is germane to the starting point, so I have residual concerns about that. Helping people to understand their obligations under the system to take advantage of facilities, work-focused interviews and work-related activity is fine. However, a sanction of £71 a week to concentrate the mind is, frankly, outrageous. For us, it is totally unacceptable.
Over the past 12 months, there have been sanctions for people on ESA, and one of the few questions that was not answered was the extent to which there have been appeals and the outcome of those appeals. That goes to the heart of the resources that the DWP will need to address this regime. I would be very grateful if the noble Baroness, in the fullness of time, could follow up on that. The noble Lord, Lord Wigley, made a very pertinent point about the impact assessment and the impact on civil society. Perhaps the noble Baroness will share her answer on that with Members of the Committee. Having said that, we have had one go at this and will keep it in our sights because it is of concern.
Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013
(11 years, 3 months ago)
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Baroness Stowell of Beeston
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013.
Relevant documents: 12th and 15th Reports from the Secondary Legislation Scrutiny Committee, 8th Report from the Joint Committee on Statutory Instruments
Baroness Stowell of Beeston
My Lords, this order was laid before Parliament on 15 October last year under the powers of the Public Bodies Act 2011. It provides for the abolition of the Disability Living Allowance Advisory Board.
The board provides independent advice to the Secretary of State on matters relating to disability living allowance and attendance allowance. It cannot provide advice unless specifically asked to do so and cannot be asked to provide advice on issues other than those relating to DLA or AA. It is not a representative body for disabled people and plays no role in the decision-making process for benefits.
The Disability Living Allowance Advisory Board Regulations 1991 specified that the board’s function was,
“to give advice to the Secretary of State on such matters as he may refer to them for consideration”.
The Secretary of State usually commissioned work on medical matters relating to specific conditions or illnesses. For example, the board undertook a study of cases where the highest rates of benefit had been awarded under special provisions for people who were terminally ill and not expected to live beyond six months, yet a number of such awards had been in payment for more than seven years. The board was supportive of the fact that special rules exist and should continue to exist but nevertheless it recommended that such cases should be reviewed after three years.
Clearly, the board provided some excellent advice in its time. However, the defined scope and membership of the board means that there is a limit to the type of advice it can provide. In fact, the last time the board was commissioned to do any work was in 2008, two years before the end of the previous Government. Since coming into government, we have found that using time-limited, tailored advisory groups and targeted professional advice—as we did with the Harrington reviews of the work capability assessment—is better than the prescriptive approach of a standing board.
We have used this more dynamic approach in relation to the design and development of the personal independence payment, involving experts and consulting disabled people and their organisations. The Secondary Legislation Scrutiny Committee commended the department for its extensive consultation on PIP, including our work with voluntary organisations that represent the interests of disabled people. I will return to this in a moment.
In its 15th Report of Session 2012-13, the Secondary Legislation Scrutiny Committee made a number of points that need to be answered in this debate, particularly on the tests laid down in the Public Bodies Act. I will address the points in turn. The report is clear that it expects me to use this forum to answer some of the points. I hope that noble Lords will forgive me if it takes me a little while to go through them systematically.
I will start with our decision not to consult on the proposal to close the board. The Secondary Legislation Scrutiny Committee accepted the department’s explanation of why there was no legal obligation for us to consult but it did not consider this to be in keeping with the spirit of the consultation requirements. I should restate that the board was not outward facing and did not have free rein to examine the policy, operation or administration of DLA, being able to respond only to concerns expressed by the Secretary of State. In our view, to offer a consultation to groups with no ability to influence the work of the board would not be in the spirit of meaningful consultation.
Moreover, disability organisations have shown little interest in the board over the years. Back in 2007 when it was reviewed as part of the normal process of reviewing non-departmental public bodies, more than 100 organisations of and for disabled people were contacted, but only 11 responded. Out of those, three reported that they could not spare the time to comment and the remainder had little to say about the functions of the board.
During the design of the personal independence payment, which as noble Lords know will replace disability living allowance, we undertook three consultation exercises. I acknowledge absolutely that no specific questions were asked about the board during those consultations, but the respondents had the opportunity to raise anything they wanted to about the reform of DLA. We received more than 5,500 responses, and again not one of them mentioned the board. We also discussed the board in both Houses during the passage of the Public Bodies Act, and the department has not received any correspondence or parliamentary Questions on the subject. There have been several meetings between disability organisations and Ministers and officials, and again the future of the board has never been an issue.
Perhaps I may turn to the issue of efficiency and effectiveness, which is another one of the tests under the Public Bodies Act. The department has an existing medical policy team covering a wide range of policy areas who can provide medical opinion or who can commission work by others, if needed. This is a more flexible resource than that provided by a standing board. The team also produces guidance for operational staff, advice on operational issues and audits the quality of outsourced medical advice. It is our view that short-life working groups can be set up quickly when work is needed, which is more efficient and effective than retaining a standing collection of eminent people whose expertise is not necessarily being put to good use consistently. For instance, during the development of PIP, we set up a group to help develop the assessment criteria. The group encompassed a wide range of expertise across health, social care and disability, including from occupational therapy, social work and a representative from Disability Rights UK. Very importantly, we also sought the views of user-led organisations and disabled people themselves through our implementation stakeholder forum. This group involves more than 60 user-led, grass-roots and national organisations working with us to get the design and delivery arrangements right.
Legislatively maintaining the status quo for the board places a burden on the department because the regulations require that the membership contains specifically qualified personnel. Therefore, if a member leaves the board either by choice or because their tenure has ended, the department is required to recruit even though there may be no actual work to do. The recruitment process is expensive, resource intensive and, in my view, verges on being disrespectful to those people who apply for the post. We consider that using time-limited groups is more effective than maintaining a standing body. We continue to use the expertise of other disability groups, and our recently launched Disability Action Alliance has convened a wide range of disabled people and their organisations who will work alongside the department to deliver results in a less prescriptive manner.
I shall move on now to the test of economy. As the Secondary Legislation Scrutiny Committee acknowledges, it is cheaper to run one NDPB rather than two, while Equality 2025 is a body representing disabled people that helps the Government to understand their needs and wishes. It has been in existence since 2006 and there have been no additional costs to that body since the DLA board has not been used. In addition, I can assure noble Lords that the medical policy team has absorbed some of the work previously undertaken by the board at no extra cost. Commissioning independent advice on an ad hoc basis is more economical than commissioning it from board members because they were paid fees for attending meetings and for contributing to reports, whereas the individuals and organisations who advised the department on the development of the PIP assessment did not receive a fee.
The Department of Work and Pensions considers that the use of time-limited groups will increase accountability. The scrutiny committee is of the opinion that accountability remains the same, as the Minister will commission time-limited groups, much in the same way as the board could meet only at the Minister’s direct request; it disagrees with our view that accountability will be enhanced. However, the board’s composition was laid down in statute. It is required to have members with professional knowledge or experience of physiotherapy, occupational therapy, social work, nursing people with disabilities and medical practice, as well as six or more members who are themselves disabled and at least one carer. Now we can target individuals with the specialist knowledge that we require. For instance, if the department wants up-to-date information on people with mental health conditions, it can specifically target mental health professionals who may be better placed to provide that advice.
In addition, the board could report only to Ministers and only at their request. Time-limited groups have the flexibility to engage with and report to a range of parties. For example, in his independent reviews of the work capability assessment, Professor Harrington took evidence from hundreds of organisations and individuals and ultimately presented his report to Parliament.
On safeguards, I do not consider that the abolition of the board will remove any necessary protection or prevent any person continuing to exercise any right of freedom. I say that because, as I have already mentioned, there is a range of ways in which Ministers receive and seek advice, and consult. There have been scores of stakeholders meetings with Ministers and officials. These will clearly continue.
This is a good and sensible reform, formally closing a body which, although of considerable help to the department in its time, has not been asked to give any advice since 2008. Before I close, I pay tribute and offer sincere thanks on behalf of all current Ministers at DWP to the current chair, Anne Speight, her predecessors and all members who have served on the DLA board over the years.
I hope that I have been able to give the Committee the information necessary to demonstrate that, in abolishing the DLA advisory board, we are in no way diminishing the way in which we will consult properly with experts and ensure that all ranges of advice are taken properly into account. I beg to move.
Lord McKenzie of Luton
My Lords, I thank the noble Baroness for her introduction to this order which, as has been described, abolishes the DLA advisory board. I join the noble Baroness in paying tribute to those who have served on the board over the years and all the work that they have done. We acknowledge the extensive consultation that has taken place on the creation of PIP. The extent to which it was always spot on is something we will have the chance to discuss when we discuss the regulations quite shortly. However, we acknowledge that that has been an extensive process.
We have of course debated the proposition of the board being abolished when we considered it during the passage of the Public Bodies Act. Since then, we have had time to reflect on those discussions and the Minister will be aware of the debate at the other end, particularly the strong points made by my right honourable friend Anne McGuire, former Minister for the disabled.
Paragraph 4.6 of the Explanatory Memorandum makes it clear that the board satisfied the three tests of performing a technical function whose activities require political impartiality and needing to act independently to establish facts. Can the Minister say a little more about the assessment that was undertaken to make the judgment that the DWP is better suited to the in-house team of medical advisers? Can we have an update on the size of that in-house team and the range of skills which it encompasses? Paragraph 7.2 of the Explanatory Note refers to “a larger resource”, but how does the range of skills match that which is available to the board? The Minister ranged over the skills that the board has. Paragraph 4.4, on the constitution of the board, sets out the range of skills which the board should have. It should include people from the fields of,
“physiotherapy, occupational therapy, social work, nursing disabled persons, medical practice, and at least one member with experience of caring for a disabled person”.
Baroness Stowell of Beeston
My Lords, I will start by responding to the question the noble Lord asked about why the DLA advisory board could not become what is commonly described as a “task and finish group”. The noble Lord may not have noticed, but I resisted using that phrase in my opening speech because until I had my briefing for this debate I had never come across it—so I asked the officials to remove it. I will answer some of the noble Lord’s other specific questions in a moment.
It is possible that the DLA advisory board could become a task and finish group, but it is set up in statutory terms, which specifically lay out what it exists to do and how it can operate. Instead, we are introducing a regime that is much more flexible and allows us, quite rightly, to draw on the expertise that we need for our work, but to do so in a way that we believe will work better. Indeed, there were current members of the DLA advisory board on a group that was put together to advise us on something recently. It is not that we do not want that expertise; we want to be able to use it in a way that is much more flexible and responsive to immediate needs.
The noble Lord asked what assessment we had made of the PIP assessment development group and the in-house medical policy team, and how they compared with the DLA advisory board in terms of resources and expertise. The department’s medical policy team consists of six officials, all of whom are qualified doctors. The medical policy team has taken on some of the work previously done by the advisory board—for example, producing guidance on medical conditions.
Where the department requires advice from a wider range of professionals, this can be commissioned, as was the case for the development of the PIP assessment. Some of the DLA advisory board members were in that group, as I have said. The group includes people from Equality 2025: Liz Sayce of what was originally Radar and is now part of Disability Rights UK; Professor Tom Sensky, a psychiatrist; Itai Chikomo, a community psychiatric nurse; and Hugh Constant, a social worker—so a whole range of different areas of expertise is covered.
The noble Lord asked who will now advise on attendance allowance and how that would be dealt with. I can confirm that the medical policy advisers in the department are responsible for that and that they will use what he has calls “task and finish” and I call “time-limited” groups, where that specific expertise is needed.
I covered the more general point about consultation in quite some detail in my opening remarks and acknowledge the criticism in the scrutiny committee’s report. However, as I said previously, the board did not attract much comment on how it was operating when we gave that opportunity to a large number of groups. Most importantly, it was not a question of not consulting disability groups because we did not want to hear what they have to say but that the board exists for a specific function, as I have already described, and it would seem almost insulting to consult disability groups about a board over which they have no influence in terms of how it did its work. There was no intention to prevent consultation because we did not want to hear what people wanted to say. We felt that the way in which we were carrying out our general process of consulting on the policies that we were developing was very extensive and that people had the opportunity to influence the design and development of those policies. I take on board the point that he made but would only say again that this is a board that had not met since 2008—so had not met under the last two years of the previous Government, not just during this Government. I am convinced that, in its place, we are putting arrangements which will ensure that we have the right expertise and advice coming to us as we develop policy and that we are consulting widely as we roll out that policy and taking on board the responses and the feedback that we receive.
National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012
(11 years, 3 months ago)
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Baroness Northover
That the Grand Committee do report to the House that it has considered the National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments
Baroness Northover
My Lords, the draft National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012 set out the persons for whom a CCG will not be responsible, where it otherwise would be. We are here to discuss them today because the Delegated Powers and Regulatory Reform Committee recommended that they be subject to the affirmative procedure. The committee advised that the power being exercised to make the regulations, Section 3(1D) of the National Health Service Act 2006, relates to a fundamental provision of the new commissioning arrangements. In theory it could be exercised in such a way that some groups of people were left without a body responsible for commissioning their healthcare services. But I hope to be able to reassure noble Lords that this has never been the policy intention, nor is it the effect of these regulations.
It may be helpful if I first explain these draft regulations in their wider context. As with PCTs, each CCG will cover a geographical area defined in their constitution, and the whole of England will be covered by CCGs, with no overlap. Under Section 3(1A) of the National Health Service Act 2006, CCGs will have continuity of commissioning responsibility for all patients registered with a GP practice member of the CCG, and anyone usually resident in the CCG area who is not registered with a GP practice anywhere. They will be under a duty to commission secondary care health services to meet the reasonable requirements of the people they are responsible for, with the exception of certain services commissioned directly by the NHS Commissioning Board, and those public health services commissioned by local authorities.
Additional provision relating to the responsibilities of CCGs is made in the NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012. This includes imposing on CCGs responsibility for every person in their area in relation to the provision of ambulance services or accident and emergency services. That instrument also makes provision about the services to be commissioned by the NHS Commissioning Board. Taken together with this affirmative instrument, this will ensure that the board and CCGs do not have overlapping responsibilities for particular services or particular patients. There will be no gaps, and a commissioner will not be able to dispose of a commissioning obligation by moving the patient out of area.
It is also important to emphasise that both sets of regulations concerning commissioning responsibilities do not introduce any new policies, but apply the existing principles of PCT responsibilities to CCGs, taking into account, of course, some necessary differences to reflect the responsibilities of the board and local authorities.
These draft regulations for affirmative resolution prescribe, by way of exception, categories of people and circumstances where CCGs will not have the duty to commission services. I will briefly describe the provisions set out in these regulations. Regulation 1 defines the terms used throughout the regulations and sets out a coming into force date of 1 April 2013.
I have already explained that under Section 3 of the 2006 Act, CCGs will have commissioning responsibility for all patients registered with a GP practice member of the CCG, and anyone usually resident in the CCG area who is not registered with a GP practice anywhere. However, within the categories of people for whom a CCG will otherwise be responsible, there will be some for whom, and some circumstances under which, it is appropriate that the responsibility will lie with another CCG or another health body. These are set out in Regulation 2, which has the following provisions.
People registered with a GP in England, but who are usually resident in Scotland, Wales or Northern Ireland will not be the responsibility of the CCG of whom the English GP practice is a member. Instead, under Regulations 2(2)(a) to 2(2)(c), the responsible body will be the health body in the relevant Administration – the Scottish Health Body, the Welsh Local Health Board or the Health and Social Care Board in Northern Ireland.
Where a person, normally the responsibility of one CCG, becomes the temporary patient of another, the first CCG will not be responsible for them; instead, under Regulation 2(2)(d) the patient temporarily becomes the responsibility of the CCG where they access GP services. This is to ensure that the patient can access any subsequent care he or she needs while remaining a temporary patient; otherwise, there could be delays in their receiving prompt treatment. The provision also ensures that the receiving CCG has responsibility for commissioning services to meet the needs of temporary patients—particularly important in CCG areas with significant numbers of such patients, for example in areas containing holiday resorts.
Regulation 2(2)(e) provides that, if a person is provided with primary medical services by a member of a CCG and these do not include essential services within core hours, that CCG is not responsible for that person. Instead, they would be the responsibility of the CCG, a member of which does provide those services, or, if not, the CCG in whose area they usually reside. This reinforces the principle that a core requirement of CCG membership is to be a provider of essential services.
Under Regulation 2(2)(f), CCGs will not be responsible for people detained in an immigration removal centre, secure training centre or young offender institution. In such cases the responsible commissioner will either be the board or another commissioning body such as the Home Office. Under Regulation 2(2)(g), a CCG will not be responsible for people for whom another CCG is wholly responsible under Regulation 4 and Schedule 1 of the corresponding negative responsibilities regulations.
Where another CCG or a local authority has placed a person in a CCG’s area, the second CCG will not be the responsible commissioner. Like the other provisions in these regulations, this continues the current policy under PCTs. This occurs, for example, for the purposes of NHS continuing healthcare, whereby the responsibility remains with the placing commissioner. However, in these cases the disapplication of responsibility relates only to the services for which the other CCG is responsible. For example, where a person receiving continuing healthcare is placed outside a CCG’s area, the placing CCG would be responsible for nursing care but not for secondary care.
Regulation 2(3)(a) makes it clear that a CCG that has responsibility for a person on the basis of GP registration or usual residence in its area is not responsible for securing the provision of ambulance services or accident and emergency services if that person is present in the area of another CCG. Responsibility for this falls to the CCG of that other area. For the avoidance of doubt, Regulation 3 sets out the rules for determining where a person is usually resident for the purposes of Regulation 2.
Noble Lords may have noticed that these regulations cross-refer in places to “the Responsibilities Regulations 2012”. These are the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 that I mentioned. We are not here today to discuss them, but since they are so closely related I will briefly set out the content of relevant parts so that the noble Lords may have the full picture before them.
Regulations in Parts 2, 3 and 4, with their associated schedules, make provision about additional commissioning responsibilities for both CCGs and the board. Regulation 4 and Schedule 1 make provisions effectively mirroring Regulation 2 of the draft National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012, in prescribing the categories of people for whom a CCG will be responsible for commissioning—
Lord Hunt of Kings Heath
My Lords, I am sorry to interrupt the noble Baroness. She said that we were not here to discuss the standing rules today, but are they not subject to the regulations that we are debating? I would like to clarify that.
Baroness Northover
My understanding—no doubt I will get clarification on this—is that the Delegated Powers and Regulatory Reform Committee picked up certain elements of this and thought that they should be subject to the affirmative procedure. What I seek to do here is lay that out, but also lay out a fuller picture so that noble Lords can set it in context. I will continue and seek clarification. It is to give that fuller picture, which I hope will help noble Lords, that I am outlining this.
Regulations in Parts 2, 3 and 4, with their associated schedules, make provision about additional commissioning responsibilities for both CCGs and the board. Regulation 4 and Schedule 1 make provisions effectively mirroring Regulation 2 of the draft National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012, in prescribing the categories of people for whom a CCG will be responsible for commissioning health services in addition to those set out in the 2006 Act.
The list in Schedule 1 includes people placed by their local authority or a CCG in a care home, children’s home or independent hospital outside the CCG’s area. It also includes two other categories of person: the first is all persons in the CCG area who are resident outside the UK and who are not provided with primary medical services by a member of any CCG. The second is all persons resident in Scotland, Wales or Northern Ireland and present in the CCG’s area who are “qualifying persons” within the meaning of Section 130C of the Mental Health Act 1983 and who are not provided with primary medical services by a member of any CCG. Qualifying persons are broadly those persons detained under the Mental Health Act 1983, conditionally discharged restricted patients, those subject to guardianship under the Act and supervised community treatment patients.
Paragraph 6 of the schedule also includes provision for continuity of responsibility where a PCT has made arrangements and is then succeeded by a CCG. Part 3 of the regulations sets out additional services that will be commissioned by the board under Section 3B of the 2006 Act. Under Regulation 6, the board will commission all hospital and community dental services; a list of the hospital services is included in Schedule 2.
Regulation 7 provides that except for emergency services which are, of course, the responsibility of CCGs, the board will be responsible for all secondary and community services for members of the Armed Forces and their families where they are registered with Defence Medical Services. This includes fertility treatment services. Regulations 8 and 9 require the board to commission fertility services for those who have lost their fertility in service, generally due to injury caused by a blast, and are in receipt of compensation from the Armed Forces Compensation Scheme.
Regulation 10 sets out the requirements for prisoners and other persons detained in prescribed accommodation. The services concerned are, except for emergency services, all community and secondary services. The prescribed accommodation includes all prisons, whether public or private, all but one young offender institutions and, as specified in the schedules, some secure children’s homes, secure training centres and immigration removal centres. Regulation 11 and Schedule 4 require the board to commission specified specialised services for rare and very rare conditions. Regulation 12 requires the board to make arrangements for the continued provision of services currently provided by certain independent sector treatment centres under contracts currently held by the Secretary of State. Regulation 13 requires the board to commission specialist mental health services for people who may pose a risk to prominent people or locations.
Finally, Regulations 14 and 15 require CCGs and the board respectively to commission mental health aftercare services for certain groups of people who have been detained in hospital for treatment of their mental disorder after their discharge from hospital; this is under Section 117 of the Mental Health Act as amended by the Health and Social Care Act 2012. These regulations make it clear that the responsibility for commissioning aftercare services should, wherever possible, sit with the CCG commissioning services to meet that patient’s other healthcare needs. However, the board would be responsible for commissioning services as part of a person’s aftercare under Section 117 if it, rather than any individual CCG, would otherwise be responsible for commissioning the NHS part of the aftercare package.
I realise that I have described these regulations at some length, but I hope that I have demonstrated that CCGs’ commissioning responsibilities under the 2006 Act, when looked at as a whole and as supplemented by regulations, form a coherent set of responsibilities. I commend the draft regulations to the Committee.
Baroness Jolly
My Lords, I shall be brief. The main purpose of this secondary legislation is to transfer responsibilities for patient care and commissioning from the PCTs and SHAs of the old world on to the CCGs and the National Commissioning Board of the new. It seems complicated, but it is relatively straightforward. I note as well that some individuals are actually covered by the board, and I welcome developments such as the board’s responsibility to fund fertility treatment for members of the Armed Forces. I shall be asking the Minister for assurance and clarification in a few areas.
I note that care needs to be taken at the borders of Wales and Scotland as far as residence is concerned so that the appropriate arrangements are made with the NHS bodies in Wales, Scotland and Northern Ireland.
I note that my noble friend said that the commissioning groups would be responsible for commissioning ambulance services and accident and emergency services. If there is a major disaster in a CCG area, how is that covered? It would certainly be a big, unexpected hit on a CCG’s budget so I would assume that the board might pick that up. I would welcome clarification on this.
I note, too, that the board has responsibility for those in immigration removal centres, secure training centres and young offender institutions. My noble friend also indicated that some services might actually be commissioned by the Home Office. Can she give the Committee some assurance that in all these areas the mandate will be adhered to and reported, that health inequalities will be addressed and that governance will be transparent, so that reporting would be available on an annual basis as to what is commissioned in each of these establishments, and the outcomes?
In Committee on the Health and Social Care Bill, and elsewhere, we were all very concerned to ensure that everybody was going to be covered by CCGs. There was a lot of debate about people who are at the margins: Gypsies and Travellers; those who are homeless; people with chaotic lifestyles, substance dependence, mental health issues, and so on. I am sure that these groups are now swept up into these regulations.
I welcome the clarification on temporary patients. In Cornwall, our population rises by several hundred thousand during the summer and it is welcome news that it is really clear how that is going to be commissioned.
In conclusion, clearly much work has been done in this piece of secondary legislation to ensure that everybody is covered. The way that it is laid out is very complex. I would be grateful if my noble friend could explain who is the arbiter in future should either a category of person or a certain individual not fall into any of the areas covered in this secondary legislation. Who should decide who should commission these services?
Lord Hunt of Kings Heath
My Lords, I, too, thank the noble Baroness for her explanation of the two statutory instruments that are covered in the Explanatory Memorandum that we have received. I particularly noted her reassurance in relation to temporary arrangements, which is very helpful, as I do not think the instrument itself is particularly easy to follow.
As far as the affirmative instrument is concerned, perhaps I could ask the noble Baroness about the situation with regard to patients from Northern Ireland. Indeed, some of my remarks would apply to patients from Scotland and Wales as well. Regulation 2(2)(a) refers to,
“a person usually resident in Northern Ireland who is provided with primary medical services by a member of the CCG”,
and says that for such a person,
“a CCG does not have responsibility in relation to its duty to commission services”.
But what if the person who comes from Northern Ireland, Scotland or Wales needs services that a GP cannot give—for example, in a hospital—and this is regarded as secondary care? Who has responsibility for commissioning secondary care services in such circumstances?
I would like to ask the Minister about abortion services, because I have asked a number of questions recently about the eligibility for abortion services in England of people normally resident in Northern Ireland. On 8 January, I received a response from the noble Earl, Lord Howe, which referred to the fact that the Secretary of State,
“has a duty under Section 3 of the National Health Service Act 2006 to provide a variety of secondary care services to such extent as he considers necessary to meet all reasonable requirements. This duty is delegated to primary care trusts … in Regulation 3(2) of, and Part 2 of Schedule 1 to, the National Health Service (Functions of strategic health authorities and primary care trusts and administration arrangements) (England) Regulations 2002”.
The noble Earl went on to say:
“Regulation 3(7) of the regulations sets out who a PCT is responsible for exercising functions (including the Section 3 duty) in respect of. Under Regulation 3(7), there are two sets of limited circumstances in which PCTs would be able to exercise their delegated functions to provide abortion services to women resident in Northern Ireland. The first is set out in Regulation 3(7)(a)(iii), which provides that a PCT shall exercise its delegated functions in so far as those functions consist of the provision (or securing the provision) of certain services to ‘qualifying patients’ resident in Scotland, Wales or Northern Ireland who are present in its area and do not fall under the responsibility of another PCT. This essentially covers persons resident in the above countries with serious mental illness who are present in a PCT’s area. The second is set out in Regulation 3(7)(b)(i), which provides that a PCT must exercise its delegated functions in so far as those functions consist of the provision (or securing the provision) of accident and emergency services for the benefit of all persons resident in its area”.
He then said:
“A PCT’s functions under Regulation 3(7)(a)(iii) will clearly be exercisable only in respect of the limited number of women who fall within that provision. A PCT’s functions under Regulation 3(7)(b)(i) will be exercisable in respect of any person present in the PCT’s area”.
He then went on to say, I think rather controversially:
“There is no absolute right for a patient to receive particular treatment under the NHS. A PCT has delegated powers to provide abortion services to a woman who is ordinarily resident in Northern Ireland but present in the PCT’s area in so far as that provision falls within Regulation 3(7)(a)(iii) or (b)(i) and is considered by the PCT to be necessary to meet all reasonable requirements”.—[Official Report, 8/1/13; cols. WA 1-2.]
I am well aware that of course the noble Earl was referring to the current legislation and that the 2012 Act made amendments to the 2006 Act, including changing the words around “reasonable requirements”. However, I hope the noble Baroness will be able to reassure me that women coming to England from Northern Ireland for an abortion service will continue to be able to be eligible to receive that service. I would be very grateful for any reassurance she can give me on that.
I now want to come on to the standing rules. The noble Baroness said we were not debating these this afternoon but I must confess to being a little surprised, because the two had been put together in one Explanatory Memorandum and the noble Baroness has referred to them, so I had assumed we would be able to discuss them. I will ask four questions and see how we go.
First, there is the issue of consultation. Paragraph 18 of the standing rules says that the board “must consult” persons specified, including Healthwatch England. The noble Baroness will probably know what is coming. She will know that, in a week or so, we are debating the NHS bodies and local authorities partnership arrangements. This relates to the issue of whether local Healthwatch organisations can campaign. There has been some controversy. Healthwatch England has not made any public comment on the regulations. Did it respond to them? If so, why did it not publish its response? The noble Baroness responded for the Government and said that there was a great deal of debate. She assured us that Healthwatch England, despite coming under the CQC, would be independent. So far, we have seen very little sign of that independence. Will the Minister reassure me that when the board consults the CQC, CCGs, Healthwatch England, Monitor, the Secretary of State and such other persons as the board considers it appropriate to consult, those submissions will be published?
My second question relates to the issue of commissioning and relevant bodies in paragraph 34. This concerns the duty of any relevant body in respect of the funding of the commissioning of drugs and other treatments. The noble Baroness will know that this can often be a controversial area. She will also know that there is continuing concern about the local accountability—or lack of it—of clinical commissioning groups. They can, in accordance with the Act, make judgments about whether a treatment will be available to local people. Will the Minister consider amending the rules to make sure that when a member of the public wishes to appeal against a decision of the commissioning body, a panel must be convened to hear the appeal? I noted from paragraph 23(3) of the standing rules, which relates to decisions about continuing healthcare that are equally controversial, that panels must be established to hear appeals by people who do not agree with the decision reached about their eligibility. Why is it not considered necessary that a similar arrangement should be put in place when it comes to commissioning decisions either by the CCG or by the NHS Commissioning Board?
CCGs are about to start work formally. In Birmingham, I have been very impressed with the leadership of the two CCGs with which I am in contact. However, nationally I do not think that the public have heard very much about them. I do not get any sense that clinical commissioning groups feel that they are accountable to the local population when it comes to making commissioning decisions. If a CCG turns down a request for a certain drug or treatment to be given to a patient, surely there ought to be a way in which that member of the public can challenge the decision.
My fourth question relates to paragraph 39, which covers the important issue of patient choice. Can the Minister say anything about how that choice is to be exercised? In particular, what information needs to be given to any member of the public to make a choice, and who will be available to offer advice to that patient? It is all very well talking about patient choice, but we all know that that is very difficult to exercise unless there is a mechanism by which a member of the public can obtain help and advice in exercising it.
My final question relates to Schedule 5, which I am sure all noble Lords have studied with great care. It relates to the panels that must be established to review decisions about continuing healthcare. Schedule 5(1) disqualifies a number of persons from being a chair, CCG member or social services authority member of a review panel, including a Member of Parliament, a Member of the European Parliament and a member of the London Assembly. Can the noble Baroness tell me why that is so? Why is it deemed okay for Members of the House of Lords to serve on such a panel while Members of Parliament may not? I would be grateful for a response to that.
Baroness Northover
My Lords, I thank my noble friend Lady Jolly and the noble Lord, Lord Hunt, for their consideration of what I have presented. Perhaps I may clarify for the noble Lord, Lord Hunt, that the Delegated Powers and Regulatory Reform Committee recommended that only the National Health Service (Clinical Commissioning Groups—Disapplication of Responsibility) Regulations 2012 should be subject to the affirmative procedure, and that is why they are before us today. The NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 are subject to the negative procedure, which is why they do not form part of today’s debate. However, I sought to set out all the elements so that noble Lords could see what we are looking at in context. Noble Lords may table Motions on negative regulations, should they wish to do so, although I am happy to answer questions as far as I can. However, it may be that in these other areas the noble Lord, Lord Hunt, may either wish to flag them up in future or we will write comprehensively to answer any questions that I have not responded to satisfactorily.
My noble friend Lady Jolly asked about a major disaster in a CCG area. I want to assure her that all NHS organisations are required to maintain preparedness to respond safely and effectively to a full spectrum of significant incidents and emergencies that could impact on health or patient care. From April 2013, all NHS organisations will be required to contribute to co-ordinated planning for emergency preparedness and service resilience through their local health resilience partnerships. No doubt she will also be pleased to note that the board has a duty under Section 252A of the 2006 Act to take steps as it considers appropriate for ensuring that each CCG is properly prepared for dealing with an emergency, and funding is a matter for the board.
My noble friend also asked about the arbiter in terms of patients. As set out in the NHS Commissioning Board’s guidance as to who pays, the underlying principle is that there should be no gaps in responsibility, and obviously she knows that. The NHS Commissioning Board expects that all disputes would be resolved locally, ideally at the CCG level, but in cases that cannot be resolved at that level, local area teams of the NHS Commissioning Board should be consulted and should arbitrate where necessary.
My noble friend asked about the mandate in terms of reporting on this and on inequalities. We will of course be using a range of evidence in addition to the NHS outcomes framework to assess the performance of the board and CCGs against the objectives and legal duties, including asking CCGs and other stakeholders for their feedback. As she will know, the first mandate between the Government and the NHS Commissioning Board was published in November. It states that the NHS Commissioning Board is under specific legal duties to tackle health inequalities, and the outcomes framework will be used to help monitor that.
The noble Lord, Lord Hunt, asked a series of questions. I would like to write to him with a response on abortion services in Northern Ireland.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Baroness and I realise that it is a complex question. However, I am concerned about this order going through the House without me knowing the answer. The key question here is whether, under these regulations, CCGs are allowed to provide NHS services for persons normally resident in Northern Ireland, including abortion services. It is a very important question. I do not know when this order is going back to the Chamber, but if it goes back tomorrow it does not give me very much time to decide whether or not to call for a debate in the Chamber. It might be a matter for the usual channels to deal with. I accept that the noble Baroness will need to write to me, but the question is: how soon?
Baroness Northover
I would like to be able to give a fuller answer. I hope that BlackBerrys are buzzing behind me and that, perhaps while I respond to his other questions, I will be given a fuller answer because I would prefer that. I will speed along any such response, bearing in mind what he has just said.
Lord McAvoy
Would the Minister be good enough to copy me into that correspondence as I also have an interest in the subject?
Baroness Northover
I shall be very happy to copy it to anyone who would like to see it.
I think I may not have answered fully my noble friend Lady Jolly—I hope that I did—when she asked about where a patient might come in terms of who is responsible. I would like to emphasise what I said in my introductory remarks, that the default position is that the 2006 Act applies, covering everybody. So a CCG where the person’s GP is a member would be responsible for them, and if they are not registered with a GP, it would be a CCG in which the person usually resides. Perhaps I may emphasise, in relation to temporary patients, that if a person is registered with a GP in England but is not resident here, the Scottish, Welsh or Northern Irish body commissions secondary care, assuming the person is in one of those areas.
I am seeking answers to some of the other questions. The noble Lord, Lord Hunt, flagged up the point about Healthwatch England, and I remember very acutely giving the assurance that Healthwatch bodies could campaign. He asked whether any public comment on regulations has been published. I am looking for an instant answer to that, which seems not to be coming. I may need to return to him on that in a moment.
In terms of local accountability, the noble Lord wanted to know whether a member of the public might be able to insist on an appeal if certain treatments were turned down. CCGs will be under a statutory obligation to arrange for provision of care to meet the reasonable requirements of the people for whom they have responsibility. The CCG must work closely with the local authority through the health and well-being board to assess local needs and to develop a strategy to meet them which will inform their commissioning plans. Where a CCG chooses not to commission a service, as in the kind of instance the noble Lord is talking about, it would have to be satisfied that it was not necessary to do so in order to meet the reasonable requirements of its patient population. The CCG will be under a duty to involve patients in the planning of their commissioning arrangements. The noble Lord will be aware that not everything is possible under the NHS and never has been, but obviously, as before, it is important that all reasonable requirements are provided for, and the CCGs, just like the PCTs, have that responsibility.
The noble Lord asked about the membership of panels. Again, I am hoping that a light bulb will suddenly come on and I will be able to inform him as to why there should be those differences and answer some of his other questions.
To clarify further on Northern Ireland and the issue about abortion, but unfortunately I have some difficulty reading writing that is not as clear as it might be, so I do not think I will provide that answer in case it is not what it is supposed to be. I can assure the noble Lord that I will not move the approval Motion until he gets his response.
Lord Hunt of Kings Heath
My Lords, that is very helpful. I thank the noble Baroness.
Baroness Northover
The noble Lord is extremely welcome.
I am hoping that clarification will suddenly appear in my brain for the answers to the other questions that the noble Lord has put because I would like to be able to answer as much as I possibly can. My brain is moving very slowly, I am afraid, and I will write to him to address anything that is outstanding. We will not expect anything to be finally agreed until we have those answers for the noble Lord. I hope that, with those reassurances, noble Lords will accept the regulations.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Baroness. Of course, I do not want to detain the Grand Committee any longer. The issue of the panels that are to be convened to hear appeals by members of the public against decisions to restrict treatment made by clinical commissioning groups is something that I hope will be given further thought. CCGs are different from primary care trusts. A CCG is essentially a group of professional people. Most CCGs will have only a limited number of lay people who could be said to represent the public interest. If those CCGs make decisions that restrict drugs or treatment, there should be some mechanism whereby a member of the public can refer such a decision to an independent panel. I hope that this will be given some consideration by the noble Baroness’s department.
Baroness Northover
I am very happy to take the noble Lord’s suggestion back for it to be given further consideration.
Control of Donations and Regulation of Loans etc. (Extension of the Prescribed Period) (Northern Ireland) Order 2013
(11 years, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Randerson
That the Grand Committee do report to the House that it has considered the Control of Donations and Regulation of Loans etc. (Extension of the Prescribed Period) (Northern Ireland) Order 2013.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson)
My Lords, this order was laid before the House on 5 December 2012. Put simply, it will extend the period in which donations and loans to political parties in Northern Ireland can be made confidentially.
Noble Lords will no doubt be aware of the significant difference in the rules that apply to political parties in Northern Ireland compared with those elsewhere in the UK; namely, that donor and lender identities be kept confidential. Otherwise, the rules governing the reporting of donations and loans in Northern Ireland are the same as those that apply elsewhere in the United Kingdom, as set out in the Political Parties, Elections and Referendums Act 2000. It is the Government’s firm intention, set out in our January 2011 consultation response, to modify the law in the primary legislation to be introduced when parliamentary time allows and to make more information available about donations and loans to political parties in Northern Ireland. We intend to publish draft legislation on this matter next week.
The draft Bill will create a power to expand what can or must be disclosed by the Electoral Commission. The power will allow us to permit information about past donations and loans—the amount, the nationality of the donor; whether they are a corporation or an individual—to be published, but not information that reveals identities of donors. In relation to future donations and loans, the power will allow us to increase transparency incrementally. If and when it is appropriate to do so, the Government are committed to achieving full transparency of donations and loans, consistent with the position in Great Britain. However, that Bill is for another day.
As far as this order is concerned, the reason for extending the current regime on donations and loans is simple. The existing legislation providing for confidentiality of donations and loans made since 1 November 2007 falls on 28 February. The Secretary of State for Northern Ireland has considered carefully whether it would be appropriate to allow the current arrangements to lapse. While there is a strong case for increasing transparency about donations and loans to political parties in Northern Ireland, she came to the conclusion that it is right to extend the current regime for two reasons.
First, the identities of those who made donations or loans during the prescribed period—that is, since 1 November 2007—would be revealed if we were to let the provisions lapse without introducing primary legislation to provide retrospective anonymity. The guidance given to donors and lenders at the time they contributed did not make this clear and it would be wrong to release their identities retrospectively when they had a reasonable expectation at the time the donation or loan was made that this would not be the case. We therefore need to introduce primary legislation to provide for continuing anonymity for donations and loans made since 1 November 2007 until it can be made clear to donors and lenders that, if they choose to make a donation or loan, their details could potentially be published.
Secondly, the general threat level in Northern Ireland remains at “severe”. As recent events have shown all too clearly, there remain those who are willing to use violence against individuals with whose political views they disagree. PSNI statistics show that there has been no general reduction in the incidence of violence or intimidation since this matter was last considered in 2010. Indeed, in light of recent events in Belfast, it is highly likely that the overall number of incidents will have increased. Any decision to publish the personal details of donors and lenders will need to be made by the Secretary of State taking into account up-to-date information about the risk of intimidation of donors and lenders at any given time.
As I have set out, I believe that there is room to increase the transparency of the donations and loans regime without compromising the security of individuals or businesses. However, this requires the introduction of primary legislation to allow the donations and loans regime in Northern Ireland to be amended in a way that creates future transparency while protecting those who have made donations in the past. At present, the regime does not allow for that flexibility. The Secretary of State is only able to decide between maintaining and removing the current regime.
I am sure we all agree that transparency and accountability in matters relating to the financing of political parties are important to ensure that fraud and corruption can be avoided. The publication of donations and loans made to political parties supports democratic decision-making by enabling the electorate to know how and by whom candidates and elected officials are funded. However, we need to consider the security of individuals and businesses in Northern Ireland, and to ensure that we do not create a deterrent to political donations that damages the ability of political parties to contest elections and unduly restricts the choice available to voters.
This decision has not been taken lightly. We all wish that the situation in Northern Ireland had improved sufficiently that the measure would not be necessary. The Electoral Commission was consulted prior to the order being laid. It confirmed that it was content with the proposal to extend the prescribed period on the basis that forthcoming legislation will address the question of protecting the identities of those who have made donations and loans since 2007, and that no further extension of the prescribed period will be necessary.
I have the greatest respect for those who argue for the utmost transparency in electoral finance in Northern Ireland. The Government agree that a transition to the system used in Great Britain is essential. However, we believe that the transition to that system will be managed most effectively through a gradual increase in transparency, reflecting a security situation that is still very difficult.
The existing legislation will fall on 28 February, and the provisions ensuring that reports of donations and loans in Northern Ireland remain confidential need to be extended for a further period to allow time for primary legislation to be introduced. The order will extend the current regime to allow for this. I hope that noble Lords will agree this piece of legislation. It will enable us, in time, to increase the transparency of donations and loans in Northern Ireland. I commend the order to the Committee.
Lord Lexden
My Lords, this order is plainly necessary, and I thank my noble friend for explaining it so fully and clearly. As she said, it would be entirely inappropriate to make changes that would oblige the political parties of Northern Ireland to divulge to the public at large full details of their donations and loans when the state of politics in the Province is so unstable and the security situation so fraught. In today’s volatile circumstances, those Northern Ireland parties that feel strongly that the identities of their donors and lenders should continue to be protected must remain free to protect them—certainly for the time being. I know that that remains the view of the Ulster Unionist Party, which is the party to which I have always felt closest during the 45 years in which I have taken a keen interest in Ulster’s politics. This interest was sharpened in the late 1970s when I worked as an adviser to Airey Neave.
At the same time, unionist principle demands that as soon as possible the same general arrangements for the disclosure of donations and loans should apply throughout all parts of our country. That, rightly, is the Government’s aim, as it was the aim of their predecessors. Understandably, the independent and highly regarded Electoral Commission, to which my noble friend rightly paid tribute, is pressing for that aim to be accomplished as soon as possible. In 2010, a full consultation exercise took place in the Province. Research carried out by the commission last year suggested that only 7% of the public there favour the retention of confidentiality, with nearly two-thirds supporting disclosure and over 30% declaring themselves happy with either. Nevertheless, I am sure that the Government are right to hasten carefully and slowly in this matter. As in so many other areas, decisive action needs to follow the emergence of widespread consensus among the local parties in accordance with the principles of the Belfast agreement. It does not exist at the moment.
Let us hope that, proceeding with patience and understanding, our Government are able to move forward on the basis of consensus when this order expires at the end of September next year. In the mean time, those Northern Ireland parties that wish to publish information about their donations and loans, and have the agreement of those involved, are of course at perfect liberty to do so. Such steps may well help hasten the overall pace of change.
Much controversy naturally attaches to the question of retrospective disclosure when this order is replaced by new legislation in due course. The Electoral Commission, the advice of which is valued so highly, is all for it, while retaining the confidentiality of information that would enable individual donors and lenders in years gone by to be identified. For my part, I am deeply sceptical about the expediency of any retrospective disclosure. Would it not be best to draw a line under earlier years and apply new rules of transparency and disclosure from the point at which they are introduced?
I support the order wholeheartedly. Along with my noble friend Lord Bew, who cannot be here this afternoon, I look forward eagerly to the forthcoming legislation that will replace it, providing for fuller transparency in future.
Lord Lyell
My Lords, I support the forthright comments of my noble friend Lord Lexden. He mentioned a period of 45 years. My period of nearly five and a half years in Northern Ireland was luckily not connected too much with financial provisions in politics; I got into quite enough trouble with agricultural financial provisions.
I seem to remember taking part in this debate the last time we discussed this, probably in 2010. I take on board everything that has been said by my noble friend Lord Lexden about the need to continue being discreet, secret or reasonable about donations and where the money comes from. I hope nothing much has changed gravely in that time.
Might the Minister be kind enough to explain the significance of the date of 30 September 2014? It seems odd. Is it the end of what is expected to be the parliamentary Recess? Is the Assembly going to be dancing with delight? Are we to be in here? I am curious as to why that particular date was chosen— “19 months”, as it is spelled out.
The Minister could write to me later on the second line of the Explanatory Note. It starts with, “Special provisions”, et cetera, and then refers to,
“loans and donations made to political parties and,”—
I love this phrase—
“other regulated recipients (such as members of political parties and holders of elective office)”.
I am curious. Has anything changed since this last was defined, or is anything new? Would I be a recipient as a past officeholder in Northern Ireland? Would I be regulated as a recipient? Fortunately, I would keep my oar out of Northern Ireland political donations. I would be grateful for guidance from my noble friend as to what has changed, particularly since we last discussed this. Again, can she clarify to me the significance of 30 September 2014? I hope that I shall still be around, active and not brain dead, in your Lordships’ House. When we come to discuss this again, I hope to be able to congratulate the Minister, my noble friend Lord Lexden and all those who come to speak. I am grateful for the Minister’s clear exposition this afternoon.
Lord McAvoy
My Lords, I, too, thank the Minister for her clear and full explanation of the order. I think that it was appreciated by everyone. The forthright contribution made by the noble Lord, Lord Lexden, and the fascinating speech made by the noble Lord, Lord Lyell, which took us down memory lane, did no harm to our discussions. I think that everyone in this Room understands why the legislation was passed in the first place, and while there is a desire for uniformity throughout the United Kingdom, the kingdom is also flexible and realistic enough to know when it has to bend, when it has to manoeuvre, and when it has to bring forward different legislation for different parts of the country. Unfortunately and tragically, this legislation was necessary, and indeed most folk would deem that it is still necessary. The Minister has mentioned the recent events which serve to underline the fact that when it comes to measures like these in Northern Ireland, the word to use must be “caution”. We have to be very careful that we do not introduce any unintended consequences.
Let me state right away that the Official Opposition support the Government in their position on this order. We hope, of course, that we can move as quickly as possible to a situation of full transparency regarding these donations, but nevertheless it is clear that that will have to be a gradual process. As has been mentioned, the Electoral Commission is much respected and the Opposition is practically foursquare with its views on the order. We want to see it amended as soon as possible so that voters can see how parties are funded, but as I mentioned earlier, caution must come first. I also welcome the announcement about the timing of the draft Bill to see how quickly it is envisaged that we can move forward.
When it comes to the draft Bill, I want to put one inquiry to the Minister today. Will that Bill raise the issue of double-jobbing? I am not quite sure about all the intricacies, but I have been told to put the question and to get a response. As I say, we support the order and the retrospective principle contained in it. It is only right that there should be retrospection, apart from any information that would enable donors and lenders to be identified. It has to be a mixture of innovation and caution. In Northern Ireland matters, that is always the right thing to do.
Public opinion research shows consistent support for the introduction of transparency into the funding of political parties in Northern Ireland. The Electoral Commission has informed me that the most recent survey, carried out in December 2012, found that 62% of the respondents felt that information about who donates to political parties should be made available to the public. Some 7% said that it should remain confidential while 31% did not mind either way. That sounds like a familiar figure. We need to deal with this situation so that the Electoral Commission is not legally bound to publish something. We would like to see a fully transparent scheme, but surely we all understand why we are moving slowly on it.
In conclusion, as I have said, the Official Opposition support what the Government are doing here. Our Front Bench Members have discussed these matters with the Government and we are prepared to support an extension of the prescribed period, it is hoped for a final time, having received the assurances announced by the Minister that very soon there will be moves to bring Northern Ireland into line with the rest of the UK in terms of transparency around political donations. There needs to be a change, but we acknowledge that there is no agreement between the political parties in Northern Ireland about thresholds and the amount of information to be made available on individuals, security matters and other issues. However, they are not drawbacks or obstacles but opportunities to further advance the situation in Northern Ireland so that it comes more into line with the rest of the United Kingdom. We support the order.
Baroness Randerson
I thank all noble Lords who have contributed to this debate and welcome the fact that the order has received so much support. I shall endeavour to answer as many points as I can.
The noble Lord, Lord Lexden, accepted that there should be a move to full transparency in time, and I believe that that feeling is shared around this Room. Both the noble Lord, Lord Lexden, and the noble Lord, Lord McAvoy, pointed to the 2010 consultation, in which two-thirds of respondents supported disclosure and transparency. I liked the comment that we should proceed with patience and understanding.
I believe that it was the noble Lord, Lord Lexden, who made the important point that political parties can publish, if they wish, these details. It is my understanding that the Alliance Party has commenced that process. Once some political parties start to publish, I believe that others will follow—the Alliance has started; others will follow—and I hope that that will hasten the eventual move to full transparency.
Several noble Lords referred to retrospective disclosure. To avoid confusion in relation to whether disclosure will apply to past donations or future donations made during the extended prescribed period—that is, until September 2014—we intend to provide that the identities of those who have made donations or loans in the past without knowing that their details might be released are not published when the prescribed period ends. People donating now, during the current prescribed period, will not find their names and details published. Retrospective disclosure is therefore addressed and dealt with and will not apply.
The Government are, however, committed to the disclosure of other information which would not identify donors. That information might include whether the donation came from a corporation or an individual, the nationality of that individual and the amount of the donation, but none of those would identify the name or address of the individual.
It is important to emphasise that the Electoral Commission does very rigorous checks in Northern Ireland on donations and loans. Although the general regulations on disclosure to the Electoral Commission are the same as those in the rest of Britain—beyond the publication, of course—the checks that the Electoral Commission does in Northern Ireland are more rigorous than in the rest of Britain. In other words, it goes to greater lengths to satisfy itself on the genuineness of the information that it is given.
The noble Lord, Lord Lyell, asked about the significance of 30 September 2014. Its significance is that it is the earliest possible date. The Electoral Commission requires that the system moves to greater transparency as soon as possible. That needs primary legislation. The estimate is of how quickly primary legislation can go through this House and the other place and, following that, how quickly the regulations can be implemented. Responses to the Electoral Commission are made quarterly and that is the end of the quarter when this can reasonably be expected to happen. As I said, and as noble Lords will have noted, a draft Bill will be published next week.
The noble Lord, Lord Lyell, also asked about the definition of “regulated recipients”. It is defined in Schedule 7 to the Political Parties, Elections and Referendums Act 2000. It applies throughout the country, including Northern Ireland. It covers members of political parties, members of associations and holders of elected office, so I think that it probably would apply to the noble Lord in his previous life and career.
I am pleased that the noble Lord, Lord McAvoy, has pledged his support. It is important that we have the widest possible support, particularly cross-community support in Northern Ireland. I am pleased that he accepts that the process will be gradual. He asked a specific question about whether double-jobbing would be addressed in the draft Bill. The issue was covered in public consultation last year and, although I cannot at this stage reveal the contents of the draft Bill, it is clearly on the agenda of the Secretary of State for Northern Ireland.
I am pleased that the order has received such a warm welcome, which I hope will ensure its speedy acceptance in the Chamber next week.
Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013
(11 years, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Randerson
That the Grand Committee do report to the House that it has considered the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson)
My Lords, these regulations were laid before the House on 19 December 2012. They form part of a package of statutory instruments that will enable local authorities in Wales to enforce bus lane and some moving traffic offences. Similar civil enforcement provisions under the Traffic Management Act are already in force in Wales in respect of parking contraventions. The package of legislation will enable enforcement in Wales to be carried out by civil enforcement officers acting on behalf of local authorities, in addition to police officers and traffic wardens.
By way of some background, Part 6 of the Traffic Management Act 2004 provides power to the “appropriate national authority” to make regulations for the civil enforcement by local authorities of parking and waiting restrictions, bus lanes and some moving traffic offences. In Wales the appropriate national authority is Welsh Ministers. The Act also confers powers on the Lord Chancellor to make regulations dealing with the notification and enforcement of penalty charges, representations to the enforcement authority, appeals to an independent adjudicator by those on whom penalties are imposed, and the appointment of adjudicators. Section 89 of the 2004 Act provides the Lord Chancellor with express powers to make different provisions for Wales.
The regulations before the Committee set out procedures whereby persons upon whom civil penalties have been imposed for parking, bus lane or certain moving traffic contraventions in areas where civil enforcement applies, or persons whose vehicles have been immobilised on account of such contraventions, can make representations to the relevant enforcement authority against the imposition of the penalties in particular cases and can appeal to an independent adjudicator if their representations are rejected by the local authority in Wales.
Lord Jones
I will be brief. Does the noble Baroness have any intention, in the course of these proceedings, to give the Committee any statistics on the number of appeals and representations under the regime that is to be replaced by new legislation?
Baroness Randerson
It is not my intention to do so. As I will make clear later when responding to the questions and comments of noble Lords, it is very difficult to know the extent to which this will spread throughout Wales, because it will be a devolved issue and not one for your Lordships’ House.
I will return to what I was saying in introducing the regulations. Persons who have received penalties can make representations to the relevant enforcement authority against the imposition of the penalties in particular cases and can appeal to an independent adjudicator if their representations are rejected by the local authority in Wales. The regulations set out the grounds for making representations and for appealing, and the schedule contains rules for the conduct of proceedings before adjudicators.
Using their executive powers in the Traffic Management Act 2004, Welsh Ministers propose to expand the range of offences for which civil enforcement may be used by local authorities in Wales to include bus lane contraventions and some moving traffic offences; for example, restrictions applying to cycle lanes, left or right turns and box junctions. These specific regulations are necessary to ensure that persons on whom civil penalties have been imposed in Wales can make representations against the imposition of the penalties and can appeal to an independent adjudicator if their representations are rejected by the local authority in Wales.
The regulations should be read in conjunction with a further set of regulations, the Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013. Assuming that the regulations before the Committee today are approved, these regulations will be made by both the Lord Chancellor and Welsh Ministers and laid before both Parliament and the Assembly, subject to annulment. A copy of the proposed regulations is attached as an annexe to the Explanatory Memorandum.
The general provisions regulations must be signed by both the Lord Chancellor and Welsh Ministers. They provide detail in relation to the service of penalty charge notices and the immobilisation of vehicles. They also prescribe requirements in relation to the use of income generated from penalty charge notices and deal with the appointment of adjudicators by enforcement authorities.
Welsh Ministers will need to make several sets of regulations in addition to both these sets of regulations, subject only to Assembly procedure, to complete the package of legislation. The first of these, the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) Removed Vehicles (Wales) Regulations 2013, deals with the appeal process where a vehicle owner does not agree that a vehicle should have been removed and/or disposed of by the local authority in Wales.
The regulations dealing with appeals against removed vehicles were laid in draft before the Assembly on 19 December and are subject to a resolution of the Assembly before being made. A further set of regulations subject to annulment in the Assembly is expected to be laid in due course. The Civil Enforcement of Road Traffic Contraventions (Approved Devices) (Wales) Order 2013 will deal with technical specifications for devices used by local authorities in Wales to capture road traffic contraventions; for example, camera enforcement. My department continues to work closely with the Welsh Government on the delivery of the overall package.
In the interests of simplifying this area, the opportunity is being taken to consolidate the law. Provisions relating to civil enforcement of parking, bus lanes and moving traffic offences are being consolidated throughout the package of statutory instruments.
Under the Tribunals, Courts and Enforcement Act 2007, parking adjudicators are a “listed tribunal” which is required to be consulted on these regulations. We have therefore consulted the Administrative Justice and Tribunals Council on the draft regulations and the council has confirmed that it is content.
The regulations before your Lordships today are entirely in line with the division of responsibilities between the Lord Chancellor and Welsh Ministers for civil enforcement provided for in the Traffic Management Act 2004. The regulations have been considered by the Secondary Legislation Scrutiny Committee, which has determined that the special attention of the House need not be drawn to them. They have been considered also by the Joint Committee on Statutory Instruments, which has approved them without comment.
The Government’s role in bringing the regulations forward demonstrates our commitment to observing devolution arrangements and, where appropriate, to collaborating with the Welsh Government to enable them to deliver their commitments in Wales. I beg to move.
Lord Anderson of Swansea
My Lords, I have reassuringly good news for the Minister: I think it unlikely that these regulations will be contested. Clearly they are, as she said, part of a package of representation and appeals procedures that appear to be eminently sensible. Obviously, the regulations are not controversial. There is a strong consensus in favour of the regulations in Wales. As the Minister has said, they are part of a process of devolution, and of working together at both London and Cardiff levels.
I also agree with the Minister that the mischief aimed at is very clear. It is the assessment of the Welsh Government that the heavy workload of the police in Wales means that a relatively low priority is given to the enforcement of the bus lane offences. Therefore, the case is made that local authorities, which clearly have an interest in the enforcement of these regulations if they so choose, are likely to lead a more speedy and effective enforcement process. Indeed, the process is likely to encourage a greater use of buses. It is relevant and related to the good work of the Assembly done over “park and ride”, for example. It may well lead to a reduction in congestion, along with many other measures in the urban areas.
Briefly, to put this in context, bus lanes are by definition overwhelmingly relevant to urban areas. However, we have just heard that the financial support for buses and rural transport has been substantially reduced. The Assembly has just announced that in the coming financial year, 2013-14, the sum available for rural transport and buses is £25 million, whereas in the current year it is £33 million. That is a more than 25% reduction and obviously has implications not only for the increasing isolation of rural areas but for the elderly and low-income groups within those areas. It has relevance, too, to young people seeking jobs.
I obviously have a few questions for the Minister. Looking at the process which she has outlined, based on the 2004 Act, it is clearly highly convoluted and lengthy. I would be grateful if she could indicate whether she agrees with that, and what proposals she has for cutting that down. One obvious conclusion is that the involvement of the Ministry of Justice and the Lord Chancellor is really a fifth wheel to the coach. This is a series of decisions which should properly be made in and for Wales. There is no real contribution. Think of all the forests in Finland which have been cut down and the time wasted at the Westminster level for this type of regulation. I hope that the Minister and the Wales Office will be considering how best one can streamline these procedures. That, I am sure, would be much supported in Wales.
Lord Wigley
My Lords, I am not sure whether this is the first order that the noble Baroness, Lady Randerson, has brought to the Committee as part of her responsibilities for Wales—I know she has done it for Northern Ireland before—but I cannot imagine that she was waiting in awe for the excitement of this order when she took up her responsibilities in the Wales Office.
To pick up the point made by the noble Lord, Lord Anderson, it really is beyond belief that we need to apply ourselves to this sort of detail at Westminster. If devolution means anything, surely this sort of detail should be handled down the road in Cardiff. I understand that they had a committee that looked at it for all of 30 seconds and that those who have looked at it up here have no comments to make on it. It is all detail that, no doubt, was appropriate for consultation, but it is beyond belief that a consultation on something like this should take three years. If a consultation is to be meaningful, one would imagine that all the interests would have been taken on board, including those of people who run shops.
Lord Anderson of Swansea
The consultation did not take three years; that was the period following the end of the consultation.
Lord Wigley
I understand fully that it took about four months to receive comments from the consultees and then three years to digest what came back. If it is taking that long, surely interests such as those of shopkeepers should be taken on board. If bus lanes have an impact on anyone, it is on shopkeepers. There can be serious problems for people who need to stop and pick up their purchases.
Let me pick up the point about finance. We are told that this is self-financing. Do we therefore assume that those involved are keeping some of the money arising from the fines that are imposed? If so, who gets the money? Is it the local authority or the National Assembly? If the money is not adequate for the costs of running the new system, who pays the difference? Is it the local authority? Who pays for the appeals, for which no doubt there will be a cost? At a time when there is a tremendous squeeze on local authorities, I would have thought that the last thing they want is additional costs.
We are told that Welsh Ministers can extend the range of contraventions and are involved in the mechanics in a pretty fundamental way. Therefore, at an appropriate time—I realise that this goes beyond the scope of what we are debating today—should we not consider transferring this matter lock, stock and barrel, so that it can be handled in Cardiff without taking up our time in this Chamber?
Lord Jones
My Lords, I will be brief. I am grateful to the Minister for her considerate introduction to the regulations. However, do we have no statistics whatever from 2010 or 2011 on the number of immobilisations or appeals? Has the Welsh Local Government Association made no representations to the Government or to the Welsh Assembly Government? Is there an estimate of the amount of work that we are passing to local government in Wales? Do we have any insight into what the four constabularies have put on record about this change? It would be helpful for the Committee to know the scale of the work that we are passing on. That seems to be a foundation question.
Baroness Gale
My Lords, I thank the Minister for bringing these important regulations before us today. We welcome them, as they are what the Welsh Government have requested and have been working on for some time. The package gives powers to local authorities effectively to manage traffic, which will help to reduce delays and tackle congestion. I am aware that the Welsh Government have worked closely with local authorities, the British Parking Association, the police, the UK Government and their legal services in preparing the regulations, which will complement and consolidate the powers that local authorities were given on 31 March 2008 to take civil enforcement action against parking contraventions.
It is important to note that these powers will not stop the police from taking action where necessary, although the main rationale for the changes is that the police are not able to make the enforcement of bus lanes and road traffic contraventions priorities for action. I can give the example of Cardiff where there are bus lanes which, of course, only buses should be using. However, Cardiff Council is unable to take action against other vehicles using those lanes because they do not have the enforcement powers to do so. The Welsh Government believe that these regulations will help improve the punctuality and appeal of local bus services because if the bus lanes are clear, the buses can get to their destinations a lot more quickly. The Welsh Government think that this will help to further the sustainability of bus services, which we know are so important to many of our communities in Wales.
This is a key part of the Welsh Government’s economic and social objectives and is consistent with their national transport plan which was published in December 2011. However, it is important that these powers are used appropriately and that the public can trust the decisions made by enforcement officers. The enforcement of the bus lane and road traffic contraventions will be based on evidence captured on camera and other approved recording equipment and devices. Another set of regulations will be brought forward to deal with those, as the Minister has explained.
The Welsh Government are in discussions with the Vehicle Certification Agency on the terms of the technical service agreement to certify on behalf of Welsh Ministers that the cameras and associated equipment used to enforce parking restrictions in bus lanes and certain road traffic contraventions are fit for purpose. It is important that local authorities are accountable for their decisions and that residents know how the money raised from fines is used, a point made earlier by other noble Lords.
In terms of accountability, the local authorities using these powers will be required to send copies of their income and expenditure accounts to Welsh Ministers as part of an annual report about their enforcement activities. This will highlight the impact on journey times along key routes. It is also important that the appeal system and the independent adjudicator are set up, which is what we are dealing with today. The regulations specify the procedure for making representations and ensure that people given a penalty charge will be able to see the evidence against them and are given the opportunity to challenge it. For example, they may not have owned the vehicle at the time the penalty was incurred.
Following the results of the consultation, the regulations stipulate that local authorities must be responsible for handling representations themselves rather than the responsibility being contracted out. That is to be welcomed as it ensures that people will know that they can go directly to their council, thus maintaining a direct and transparent link. It is planned that the regulations will be backed up by statutory operational guidance that will provide more detailed advice on the use of the new powers. It is important that that guidance is well publicised. The Welsh Government are planning to work closely with local authorities, the British Parking Association and others to prepare the guidance, which they plan to publish this year.
These are sensible regulations that should make a difference to road travel in Wales, especially in town centres and other busy areas. In supporting these plans, I understand that the Welsh Government are anxious to go ahead with implementation at the earliest opportunity. Can the Minister tell us when the regulations will be put before the House of Commons, as I understand that no date has as yet been fixed? Will she also agree to use her influence to ensure that there are no further delays in order to enable the Welsh Government and local authorities to move forward quickly on the implementation of these regulations? In the mean time, I thank the Minister for placing these regulations before us, and of course we fully support them.
Baroness Randerson
My Lords, I thank all noble Lords for their contributions. I will preface my remarks and my attempts to answer all the questions—of which there were many—with a key point that I must stress. It is important to recognise that under the Traffic Management Act, the decision to expand the civil enforcement regime in Wales falls within the executive competence of Welsh Ministers. They have concluded that they should now make use of their powers under the Act in relation to bus lane and some moving traffic offences. That decision having been made by Welsh Ministers, these regulations are necessary to ensure that people upon whom civil penalties have been imposed are able to appeal to an independent adjudicator if their representations are rejected by a Welsh local authority. In other words, we are here today—as several noble Lords pointed out—to carry out the desires, wishes and policies of the Welsh Government, but we are doing so within the framework of UK legislation.
The noble Lord, Lord Anderson, called attention to the Welsh Government’s view that the police give low priority to traffic and bus lane offences because of their heavy workload. That is undoubtedly the case. I recall the police saying to me on several occasions when I was an elected representative that they did not have the time or resources to pay attention to such issues. It was one of the more frustrating parts of my role as an elected representative to try to deal with the concerns of local residents about things that were very important to them but which the police did not regard as a priority—for good, logical reasons in the larger scheme of law enforcement. The noble Lord referred to the fact that bus lanes are issues in urban areas. He called attention to the reduction in financial support for bus routes within Wales. I must point out that this is a budgetary decision entirely of the Welsh Government.
The noble Lord rightly pointed out that this is a lengthy and complex process. The intention is that all four instruments to which I referred will be made simultaneously, once Parliament has approved the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations, and the Assembly has approved the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) Removed Vehicles (Wales) Regulations 2013. The general provisions of the regulations will come into force a minimum of 21 days later.
The process is complex because both the UK and Welsh Governments are involved. Noble Lords expressed frustration about this, which I understand. Perhaps I may gently point out that the Silk consultation is ongoing, and if noble Lords wish to make representations on this issue to the commission, that would be entirely in order in terms of the work that it is doing.
The noble Lords, Lord Anderson and Lord Wigley, referred to the considerable length of time since the consultation exercise was concluded. The time lapse can be explained by further work which was undertaken to develop the regulations with the adjudication service, with the British Parking Association and with local authorities. However, as noble Lords have said, this is a complex issue. We are working here entirely to the timetable of the Welsh Government. This is the Welsh Government’s policy. We are working with them to implement that policy. I am sure that we would all wish that it is now implemented as soon as possible.
Statistics were raised by the noble Lords, Lord Wigley and Lord Jones. These are, of course, new enforcement powers which local authorities will be able to use. Previous statistics do not fit these powers. The previous traffic offence statistics which exist are supplied by the police. They are not supplied on the same geographical basis. They are not, as far as I am aware, broken down into individual offences—although I will check that out and write to noble Lords if I am incorrect. Of course, those statistics reflect a police service which has said that it does not have the time to do this job as effectively as it would wish. Any previous statistics are therefore of relatively little application to the current situation. Of course, the police will continue to have the powers to do this, as they have at the moment. We are looking at local authority enforcement, but there will be a two-strand approach, as the police will also continue to enforce.
Lord Anderson of Swansea
The police will still have the powers but it is fair to assume, given the low priority, that in most cases they will try to pass this on to the local authority. There must be some guesstimate in government of how many additional employees there will be among the local authorities, otherwise one is totally in the dark on this.
Baroness Randerson
Annual parking enforcement reports are already in existence on the enforcement activities of those authorities which have civil enforcement of parking. In future, these annual reports will include bus lane and moving traffic offences. Although the concern for statistics is entirely correct, and although I am saying to noble Lords that the current statistics are of limited use, in future the desire to get more statistics will be fully satisfied. There will be annual reports.
I will review what is available and consult the Welsh Government over this. If I believe that they can add anything useful to our discussion today, I will write to noble Lords. However, from what I know of the statistics that exist, they will be of little relevance when applied to the future.
On the Lord Chancellor’s powers, it was thought appropriate that provision about appeals, notification and adjudication should be made by the Lord Chancellor. This is not a devolved matter. The UK Government have worked closely with the Welsh Government to introduce the package together. The process of co-operation between the two Governments has worked well in this case. The noble Lord, Lord Wigley, asked about the estimated cost passed to the local authorities. There is no estimate of the cost. The enforcement is not being entirely transferred to local authorities, because, as I have already said, the police will retain enforcement alongside local authorities. However, I emphasise that local authorities have welcomed the opportunity to enforce these contraventions. It is expected that the schemes will be self-financing within a year.
Lord Wigley
If there is no estimate made of the cost, how on earth can they say they are self-financing?
Baroness Randerson
That is the basis on which the provisions, in terms of the parking regulations, have been applied. This is not an entirely new scheme, in that this approach applies already in London, so there is the example of London to be followed. But there is also the example of how the parking enforcement has worked, and that has been very successful. For example, in Cardiff it has been possible to apply that self-financing approach very effectively. In the event of there being a surplus generated by civil enforcement at the end of the year, it must by law be spent on transport purposes. Those purposes are listed within the regulations, so it is very tightly controlled.
Local authorities have welcomed the opportunity to enforce these contraventions. They believe that it will lead to a more effective and efficient bus service and an easier traffic flow. It is not an approach that would immediately attract rural areas, perhaps; we are talking primarily about urban areas. I emphasise that local authorities are not obliged to take up these powers; they do so only if they wish. It is for them to determine the suitability of the scheme.
The noble Lord, Lord Anderson, referred to the bodies which were sent the consultation documents. The Welsh Government’s consultation documents are published on their website and were issued to numerous organisations. If the noble Lord wishes I can ask Welsh Ministers for a copy of their consultation circulation list.
Lord Wigley
I am sorry to delay the Committee, but I cannot allow this point to go by. Will the noble Baroness refer to page 21 of this document, where at the bottom of the Explanatory Note there is a reference to the Welsh Government’s website? Will she look at it and decide for herself whether “www.xxxxxxxx” is an appropriate address?
Baroness Randerson
I assure the noble Lord that I will deal with that as a matter of urgency after this debate finishes.
Lord Jones
When the noble Baroness looks at that, will she see if there are any statistics?
Baroness Randerson
I will respond to noble Lords in general afterwards on any issues that arise from this debate.
Finally, when I write about the statistics, noble Lords should bear in mind that we do not know how many local authorities are going to opt in to this scheme, so it is difficult to talk about the statistics.
The noble Baroness, Lady Gale, asked when the debate in the House of Commons would be. It will be on 12 February. As the noble Lord, Lord Wigley, said, it may not be a cause for great excitement. I am a citizen of Cardiff. The noble Baroness, Lady Gale, gave a very good example of Cardiff lacking the power to take action on bus lanes. I remember the South Wales Echo featuring a heated debate as to whether Cardiff Council should have the power to enforce parking restrictions. It was probably one of the most heated local debates within the Welsh capital city in many years. It is important to remember that these issues may seem to us relatively minor, but they are of considerable importance not only to local residents but to bus companies, commuters and, of course, the democratically elected councils that run our cities and towns and try to make sure that we have an effective and efficient transport system. I commend the regulations to noble Lords.
Legislative Reform (Hallmarking) Order 2013
(11 years, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text
Viscount Younger of Leckie
That the Grand Committee do report to the House that it has considered the Legislative Reform (Hallmarking) Order 2013.
Relevant document: 10th Report from the Delegated Powers and Regulatory Reform Committee
Viscount Younger of Leckie
My Lords, the primary purpose of the draft order is to enable the UK’s assay offices—that is, the bodies which test and hallmark articles of precious metal—to set up hallmarking operations in offshore locations. The Hallmarking Act 1973, which governs hallmarking in the UK, currently prohibits such operations, limiting the striking of UK hallmarks by the assay offices to within the territory of the UK.
The Hallmarking Act makes it an offence, during the course of trade, to describe a non-hallmarked article as being wholly or partly made of gold, silver, platinum or palladium, or to supply, or offer to supply, it with such a description attached. Section 2(4) of the Act defines a non-hallmarked article as one which does not bear the “approved hallmarks” and a sponsor’s mark. The definitions of approved hallmarks in Section 2(1) include one to the effect that approved hallmarks are,
“marks struck by an assay office in the United Kingdom, whether before or after the commencement of this Act, under the law for the time being in force”.
This imposes on the UK’s assay offices a geographical limitation, preventing them striking UK hallmarks in overseas locations. It places them at a serious competitive disadvantage to certain EEA competitors whose law does not prevent their assay offices from operating offshore.
The draft order is designed to remove this geographical limitation, thus redressing the competitive imbalance by enabling the UK assay offices to operate offshore, thereby helping to ensure their future viability and, in the longer term, protecting UK jobs. A feature of the scheme to permit offshore marking is that the British Hallmarking Council will authorise offshore-struck marks, which will be clearly distinguishable from the existing domestically struck marks. In order to make clear the distinction between the two sets of marks, the council will also issue guidance to the new offshore marks. This will help to introduce clarity for consumers, retailers and the enforcement community alike.
The market in articles of precious metal, and the hallmarking of such goods, has moved on. It is now a global business in which vast amounts of high-volume, low-cost jewellery are produced, mainly overseas. In order to capture this market, some of our EEA competitors have been busy setting up hallmarking operations within or in close proximity to manufacturers’ premises. They are able to do so because their national laws do not prohibit it. The advantages to both parties of such an arrangement are obvious and it is equally clear that failure to adapt to this changing market will pose an ever greater threat to the existence of the UK assay offices.
In addition to the main change to the Act, two other changes effected by the draft order are directly related to the broadening of the scope of the Act. The first concerns the widening of the choice of marks for sponsors and manufacturers, referred to in the Act as a “sponsor’s mark”. These are unique marks which identify the person or organisation submitting an item for hallmarking. Currently such marks must include the initial letters of the name of the sponsor. As there are only so many permutations of letters possible, these are beginning to run out. The order will therefore remove this requirement, making it easier for sponsors to register their marks. To ensure that some sort of rationale applies to the extended range of marks that will become available, the British Hallmarking Council will be issuing guidance on the limits that will apply to such marks.
The other change corrects an anomaly in the Hallmarking Act whereby articles of silver, gold and platinum cannot be coated with platinum without the written consent of an assay office. The change will permit articles of silver, gold and platinum to be coated with platinum without having to obtain such consent.
Why are these changes being made only now, given their obvious value to the UK hallmarking fraternity? The answer is severalfold. The changes being effected by this order represent the culmination of a lengthy journey. It has its origins, in fact, in the previous Administration, which began the process back in 2009 under the stewardship of the noble Lord, Lord Drayson. The Government of the day had to ensure that the legislative process they chose to pursue was the right one. As noble Lords will appreciate, such a process takes time. In addition, it was essential to secure the agreement of the British Hallmarking Council, which supervises the activities of the UK assay offices and includes assay office representatives, as to the detail of the approach to be taken. By 2010 this had been achieved and the order process was set in motion.
In the intervening period, the Government have necessarily focused on making sure that the order is fit for purpose, which has involved clearing a number of legislative and parliamentary processes designed to do just that. The important issue is that the order that has been forged from all these processes will achieve our original aim of opening up new opportunities for the UK assay offices.
In conclusion, a simple accident of drafting has led the assay offices to the situation in which they now find themselves. It is sobering to think that four words in the original drafting of the Hallmarking Act—“in the United Kingdom”—have led to this unfortunate situation. Were it not for that, the assay offices would be competing on level terms in overseas markets and we would not be having this debate today.
The UK hallmarking community has been the driving force in the case for legislative change. The consultation also revealed strong support from the trading standards community for the proposed changes. If the order becomes law, it will provide invaluable support to the continuation of hallmarking in the UK, which has centuries-old traditions. By so doing, it will have the potential to protect UK jobs while helping to ensure that the British public and retailers can continue to rely on a domestic market offering jewellery and other similar articles of precious metal bearing predominantly UK hallmarks. I commend the draft order to the Committee.
Lord Hodgson of Astley Abbotts
My Lords, I thank my noble friend for his careful and detailed explanation of the order, and I thank the officials in his department for the very extensive explanatory document they have provided. Before I go any further I have to declare an interest. I am a liveryman of the Goldsmiths’ Company, but I should make it clear that I am not speaking for the company; indeed it does not even know that I am going to make this speech and I am not sure that it will much like what I am going to say anyway.
I understand the reasons for the regulation. As my noble friend has made clear, this is about removing the restrictions on hallmarking within assay offices in the UK because they put those offices at a clear competitive disadvantage. The explanatory document talks about Thailand, India and Holland, so I quite understand that. I also understand, particularly when wearing my hat as a goldsmith, the extensive and high reputation of the UK assay offices; indeed, the word “hallmark” has a much wider use in the English language than merely being applied to the issue of jewellery made of silver, platinum and so on. It has become a word used to denote quality everywhere. So far, so good, but I want to probe a couple of issues.
We have two sets of people with different objectives as far as this regulation is concerned. The assay offices wish to increase the hallmarking model and they do not much care who does it, while UK jewellery manufacturers are anxious to build and develop their trade and who, by having an absolutely clear and unequivocal UK hallmarking standard, may have some competitive advantage. Because it is not tackled very clearly in the explanatory document, I would like the Minister’s reassurance that we are not in danger of hollowing out the UK industry in our efforts to protect the position of the assay offices.
Paragraph 9 on page 12 of the explanatory document reads:
“The Government agrees that it is likely that some jobs will be lost as a result of the setting up of hallmarking operations by the UK Assay Offices in overseas locations”.
That is surely true because elsewhere in the document it says that 35% of the jobs are going to be lost, or at least that is one of the estimates. Further on, paragraph 12 states:
“The Government therefore rejects the notion that no benefit will accrue to the UK as a result of the proposed changes to the Hallmarking Act. The unanimous expression of support for change by both the BHC and Assay Offices is a reflection of the fact that the demand for change emanated in the first place from within the hallmarking community”.
Of course it did, because it is looking for ways to boost its trade. It is not going to say anything other than just, “Right on, Government”. We need to be careful that we do not, by advancing the position of the assay offices, remove the competitive advantage from our manufacturing industry—an important industry.
My second point is the potential loss of quality and reputation. This is going to be an interplay between individual assay offices, the British Hallmarking Council and the international hallmarking convention. It would be helpful if my noble friend could say a little about this when he winds up the debate. The British Hallmarking Council is made up, I hope, of representatives from the assay offices; I think I heard the Minister say that. Is there a third party? Are representatives of manufacturers and others involved in this industry part of the hallmarking council? I ask because there must surely be a danger of some regulatory capture if only the assay officers are represented on the Hallmarking Council. In turn, how does it relate to the international hallmarking convention, which obviously only some countries belong to, because it is referred to in the explanatory document?
Lord Stevenson of Balmacara
My Lords, I thank the Minister for his very clear and interesting opening remarks and for setting out the background to this order. I am also grateful to the noble Lord, Lord Hodgson, for us being not just a duet. We have not only an extra speaker but somebody who actually seems to know a little more about this. I may be taking a step in the wrong direction to say this but neither I nor my opposite number have anything like the expertise that has just been displayed. I have a number of points to make and would be very interested to hear how the Minister responds to the points made by the noble Lord, Lord Hodgson, particularly on the worry he has about regulatory capture, which I certainly recognised as a worry from reading the notes.
The noble Lord also asked about who actually benefits from this. It is apparently being done for the benefit of the four assay offices, but possibly at the cost and expense of those who design, make and sell excellent quality jewellery and related articles within the UK. We need to have regard to that. One could imagine a scenario in which this legislative reform order was not required because a strong, export-led provision of services dominated the world markets and the quality of hallmarking and assay services offered in Great Britain was sufficient to make the rest of the world take us as the standard without inventing others. However, that clearly is not happening.
It is interesting to note that hallmarking is one of the oldest forms of consumer protection. As the notes make clear, it has been in existence in the UK for some 700 years. The main thrust of my argument is about protecting consumers. As I understand it, hallmarks serve three functions: they are distinguishing marks struck on articles, such as items of jewellery, that are made of platinum, gold, silver and now palladium, which guarantee to the world the purity of the precious metal content of the article; they are an indication that the articles have been independently assayed; and, currently, they confirm that, in the UK, the assaying and hallmarking of precious metals has been carried out by one of the four assay offices, which are located in London, Birmingham, Sheffield and Edinburgh.
The law that governs hallmarking in the UK is the Hallmarking Act, as we have heard, and a number of pieces of subordinate legislation. The draft order contains a number of proposals to amend the Hallmarking Act, but the main one is to enable offshore hallmarking by the UK assay offices and for items bearing those hallmarks to be treated in the same way as items bearing hallmarks struck in the UK. It is on this issue that I wish to respond.
When the Minister responds to the debate, I would be grateful if he could answer the following questions, as well as those asked by the noble Lord, Lord Hodgson. The explanatory document provided by the National Measurement Office, dated November 2012, points out in paragraph 16 that,
“the proposed change to existing law represents a radical broadening of the hallmarking operations currently legally permitted (UK-based only) to the striking of UK hallmarks on, potentially, a global basis”.
Notwithstanding that the consultation process revealed widespread support for this change—although “widespread” has to be interpreted carefully, given the volume of consultees who were approached—the document goes on to explain that it was “the Minister” who decided that the order would be taken under Section 17 of the Act, using an affirmative resolution process, and not under the super-affirmative resolution process that is provided for in Section 18 of the Act. However, the document is rather vague about what evidence was used by the Minister to justify the decision to utilise the Section 17 procedure? Can the noble Viscount enlighten us further on that point?
One of the main risks to this proposal is that control of the hallmarks in the offshore locations will be lost, which might lead to the possibility that all UK assay office marks will be become so tainted as to be devalued. Will that not require continuing and intensive supervision by the Hallmarking Council and indeed by HM Government? Has any assessment been made of that risk? If it is thought to be a real risk, why has no continuing cost been ascribed to it? All we have is the rather small sum of £25,000 allegedly for set-up costs.
Given that hallmarking is at heart a consumer protection measure, as I said, what steps will the Government take to make sure that consumers are aware of these changes? We are, after all, talking about a global trade, worth about £4 billion per annum within the UK at present, with articles increasingly being produced and hallmarked in low labour-cost countries such as Thailand and India. Hallmarks authorised by EEA counterparts will also be sold in the UK. To compound it all, our current style of marks is being changed. It seems to me that this will call for a major, proactive consumer information programme. Who will lead on that in the absence of Consumer Focus? Will it be Citizens Advice? What sort of budget are the Government thinking of? I would be grateful for more information on that, if possible.
The main responsibility for enforcing the Hallmarking Act lies with local authorities through their trading standards departments, although often assisted by the assay masters, as the document puts it. As one of the accompanying documents says, and it puts it rather well:
“Trading Standards Departments have a wide brief, but limited resources, as a result of which the level of surveillance and enforcement activity has reduced over recent years”.
No surprise there. Clearly it is vital now, and even more so if this LRO is passed, for all concerned to ensure that hallmarking law is enforced for the benefit of consumers and, indeed, the trade.
The Minister will be aware, though his work on the ERR Bill and elsewhere, of a number of additional responsibilities that are being transferred to trading standards departments, so I would be grateful if he could confirm that the additional workload on these departments has been adequately assessed. For example, they will need to keep up to date on the number of new offshore assay offices being established, the new marks that are being introduced and the impact of the other changes in this order. It is clearly important that adequate funding and training are provided. I could not see this item in the otherwise very comprehensive impact assessment, so will the Minister spell out the situation?
Finally, there are currently four UK assay offices permitted to apply the UK hallmark. According to the document they all work independently of one another, and, being based in London, Edinburgh, Birmingham and Sheffield, they are apparently very different organisations. What steps will the Government be taking, if any, to ensure that we do not get a glut of offshore hallmarking offices around the globe, perhaps competing against each other? The mind boggles at the prospect of seeing UK assay office London, UK assay office Sheffield, Birmingham, Edinburgh—noble Lords will get the point—in direct competition in gold and silver factories across the globe, when we are in essence talking about a UK standard.
As my noble friend Lord Hodgson asked, will job losses in the UK offices—a risk pointed out in the document—not adversely affect UK-based designers and manufacturers? The British Hallmarking Council is in the lead here and we have to take its advice, but the council’s role is only to advise government on hallmarking policy and any need for legislative change, so the buck stops, I respectfully point out, with the Government. I would be grateful for the Minister’s comments.
Viscount Younger of Leckie
My Lords, it has been a somewhat lonely debate, but I am most grateful to the noble Lord, Lord Stevenson, and my noble friend Lord Hodgson for their considerable contributions. The paucity of contributors to the debate has been counteracted by the considerable number of questions, notably from the noble Lord, Lord Stevenson, and I will do my best to answer them all. If I cannot, I will of course follow up in writing.
I also thank the noble Lord, Lord Stevenson, and my noble friend Lord Hodgson for their acknowledgement of the risks facing the UK hallmarking regime. I am particularly pleased that the efforts of the hallmarking community in helping bring about this order have not been in vain. The Government’s task in opening up fresh opportunities for UK hallmarking is nearly complete. It is now for the UK assay offices to grasp such opportunities as they wish and as their commercial judgment deems desirable. As I see it, the most important outcome of this whole venture is that there will be a level playing field between the UK assay offices and their competitors in the European Economic Area, now that the metaphorical bonds tying the hands of the assay offices have been undone.
Also worth mentioning is the widening of choice of sponsors’ marks. This is in its own way a radical step. It is also an eminently sensible one, in that it will make life easier for sponsors, who range from craftsmen operating a small business to large manufacturers. Anything which simplifies the presentation of articles of precious metal for hallmarking is to be wholeheartedly welcomed.
My noble friend Lord Hodgson, supported I think by the noble Lord, Lord Stevenson, raised the issue of the cost benefits of this exercise and change. It is best to be frank and to make the point that it is expected that a limited number of new jobs will be created where assay offices choose to set up offshore hallmarking operations, which is good news. Having said that, the hallmarking community itself acknowledges that there are likely to be some job losses in the UK as a result of the setting up of overseas hallmarking operations.
However, my main point is that the alternative would be far worse. Failure to grasp the opportunity to tap into the demand for offshore marking of high-volume jewellery would further reduce the competitiveness of the UK assay offices, which are already losing business to those competitors who are able to hallmark offshore. For example, one assay office has already lost about a third of its core staff—15 people—with this figure likely to increase to some two-thirds of existing staff, simply because of the inability to compete. Ultimately, failure to change the UK hallmarking law could lead to the closure of one or more assay offices and even greater job losses.
My noble friend Lord Hodgson raised the important question of the potential loss of reputation, as he put it, or loss of quality, as a result of the changes. I can reassure him that different marks are required to distinguish between onshore and offshore hallmarking operations. No diminution of reputation or quality is foreseen, as the British Hallmarking Council is responsible for all hallmarking operations.
My noble friend also raised the issue of the removal of the competitive advantage of UK jewellery manufacturers. Again, I can reassure him that UK manufacturers are mainly bespoke manufacturers, whereas overseas manufacturers focus mainly on the mass produced market, so there is no removal, as I see it, of competitive advantage.
The noble Lord, Lord Stevenson, asked why the procedure was not super-affirmative. We do not consider that the changes being made by this order are of such significance as to require the use of the super-affirmative procedure. There was general agreement among consultees on the proposals. Moreover, a committee in the other place concluded that the affirmative resolution procedure was appropriate. The Delegated Powers and Regulatory Reform Committee of this House did not call for the order to be subject to the super-affirmative procedure.
The noble Lord also raised the issue of state aid and funding for change; in other words, with the changes, whether there would be some state aid. The assay offices are entirely self-financing and, as such, no government money will be used to effect this change.
Lord Stevenson of Balmacara
I do not think that I can let that pass. Unfortunately, I have just given away my notes, but I am sure that a close reading of Hansard will show that I never said such a thing and I did not raise that point. It is an interesting one and I am grateful to have heard it, but I did not in fact make that point.
Viscount Younger of Leckie
I do apologise; I was under the impression that the noble Lord had raised that issue.
The noble Lord, Lord Stevenson, raised the issue of how to inform consumers about these changes. The procedure is that a dealer’s notice is required to be displayed in all premises selling hallmarked items, and this will include both the onshore and the offshore marks.
Finally, the noble Lord asked about the representation of the British Hallmarking Council. The council consists of 19 members covering eight assay offices, 10 government appointees and one chairman. The 10 government officers include four from industry, while the others are from consumer protection and the independents. I hope that that answer helps the noble Lord.
In conclusion, although there may well be some other questions that need to be answered—
Lord Hodgson of Astley Abbotts
I thank my noble friend. I do not doubt that his officials will be able to answer my question very quickly. Am I right in reading from the explanatory document that the profit expected from this is £400,000 a year? Have I read the explanatory document right? It seems to be an incredibly small sum of money for us to go through all this, but perhaps I have misunderstood or misread the explanatory document.
Viscount Younger of Leckie
Indeed, I have read the document and I can confirm that that is in the notes that I have read. I believe that it is an estimate, but I note what my noble friend has said in terms of the actual sum of money.
In conclusion, I hope sincerely that the introduction of this order will mark a turning point in the fortunes of UK assay offices, and I commend the order to the Committee.
Immigration and Nationality (Fees) (Amendment) Order 2013
(11 years, 3 months ago)
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Lord Taylor of Holbeach
That the Grand Committee do report to the House that it has considered the Immigration and Nationality (Fees) (Amendment) Order 2013.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, this is a draft amendment to the Immigration and Nationality (Fees) Order 2011. The order concerns charging for visa, immigration and nationality services and it enables the UK Border Agency to specify applications, processes and services for which it intends to set a fee. I thank the noble Baroness for attending this debate, which is playing to a rather empty Room this evening. However, that does not belittle the importance of the measure, because specific fee levels will be set in separate legislation to be brought before this Committee in due course. For applications and services where we charge more than the administrative cost of delivery, the regulations are subject to the affirmative procedure. Noble Lords will have the opportunity to ask questions about the fees themselves in the debate which follows that second piece of statutory legislation.
In accordance with our legal powers, this amendment to the Immigration and Nationality (Fees) Order 2011 sets out new applications and services for which we intend a fee to be paid in future, and clarifies the powers under which some existing fees are set. The amendment enables the UK Border Agency to simplify its current charging structure for optional premium services and to widen the scope to develop and offer new optional services in the future. For example, there are currently two fees specified within the regulations for each application type made in the UK, depending on whether a migrant makes a postal application or one at a public inquiry office. Instead, there will be a single application fee and a single additional uplift fee payable for optional premium services that an applicant may wish to take up, such as making their application in person or seeking an expedited consideration of their application. This means that about 30 fees will be removed from the regulations, thus simplifying the legislation as well as giving greater flexibility to how the services are provided.
We want to extend the premium services that we offer to sponsors, and this change will give us greater flexibility to tailor services to meet sponsors’ needs. Rather than specifying applications for a change in the status of a sponsor licence, we want to clarify these as requests for optional services. As a first step, we will then look to extend premium sponsorship to tier 4 sponsors, building on the premium offer already available to those in tiers 2 and 5.
We also want to take the opportunity to make several clarifications. First, we wish to put on an appropriate statutory footing the basis on which fees are charged for tests administered for the purposes of the Immigration Rules. In addition, we are adding a power to set fees for the process of enrolling biometric information. We consider defining this as a process rather than as an application better fits the terminology used in the legislation that deals with the enrolment of biometrics.
We continue to value the economic, cultural and social contribution made by legal migrants to the UK and seek to ensure that the fees for visa, immigration and nationality services demonstrate that the UK retains its position as an attractive destination to work, study or visit.
As I have said, this order provides the enabling powers to set fees and we will return to Parliament in due course to debate further regulations, under the affirmative procedure, specifying the fee levels that rely on the powers in Section 51 of the Immigration, Asylum and Nationality Act 2006 and additional powers in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, as amended by Section 20 of the UK Borders Act 2007.
Noble Lords would want to ensure that the immigration system is paid for in a fair and sustainable manner, balancing the contribution made by taxpayers and those who use and benefit most from the system. The amendment contained within this statutory instrument will ensure that we can continue to strike the right balance, and I commend it to the Grand Committee.
Baroness Smith of Basildon
My Lords, I thank the Minister for his very thorough and helpful explanation of the order. He need not worry; I have no fears of not playing to a full house. One thing I have learnt in my short time looking at immigration issues in your Lordships’ House is that these matters are always widely read afterwards. I am sometimes taken aback by the number of e-mails and the amount of correspondence that follows any legislation in your Lordships’ House relating to immigration. That is very helpful because it helps to inform our debates.
I do not disagree with the noble Lord’s comments. He is right when he talks about balancing the contribution between those who use the system and the taxpayer. I have a couple of questions about the order which perhaps he can help me with. First, looking at the policy background, the Minister made it clear that the key part of delivering the immigration system which the public expects is acquiring the necessary resources to fund delivery and improvements in the services we offer.
We are all aware, particularly from the reports of John Vine, about the backlog and the delays in the system and how urgently improvements are needed. The Minister may have heard a Mr Hearne on Radio 4 the other morning, who is about to celebrate—if that is the right word—his first wedding anniversary next month and yet his wife, having gone over the various hurdles that people should when seeking to make their home in this country, still has not had a final decision about whether they can live a normal married life together. I have had an e-mail today from a couple who were told that they would have to wait six months for a decision; they have now been told it will be another five months. It is those delays in the system that bring it into dispute. I do not blame entry clearance officers, the people making the decisions; I think it is a resources issue. If the Minister is able to say anything about when he thinks we are going to see some improvements in the length of time it is taking to make decisions and the ability to clear the backlog, that would be very helpful, given that it is specifically referred to in the Explanatory Notes.
Another point I am unclear on, looking again at the helpful Explanatory Notes to the order, is that under the heading “Legislative Context”, in paragraph 4.1, the first bullet point says that the purpose of the instrument is,
“to allow the UK Border Agency to set fees for providing optional arrangements for processing immigration and nationality applications (currently the cost of such services is reflected in the relevant application fee)”.
If the cost of those services is currently reflected in the application fee, is the Minister proposing to reduce the current application fee and have a separate fee, or will there be an additional and separate fee? The fourth bullet point says that,
“currently such fees are treated as part of the application fee”.
This seems to mean that there is going to be an additional cost on something that is already included. I am not quite clear about what it means.
The third bullet point says that the purpose of the instrument is,
“to put arrangements for charging fees for tests administered by the UK Border Agency (or those acting on its behalf) for the purposes of the immigration rules on a statutory footing”.
Who are those who would act on behalf of the UK Border Agency? It is something that I should be aware of but perhaps the Minister can enlighten me. I am not clear which organisations or individuals would act on behalf of the UK Border Agency.
It is entirely reasonable that there should be charges. When we look at the level of the charges, that may be an issue to debate as well, but I appreciate that that is not before us today. If the Minister is able to clear up those points I would be very grateful.
Lord Taylor of Holbeach
My Lords, I am very grateful to the noble Baroness, Lady Smith, for raising these issues. She is quite right that in this area performance lies at the heart of everything. I am very grateful for the work being done by John Vine. He is driving improvements in the service by identifying points of weakness and the processes and individual cases about which the noble Baroness has communicated with me—and of which I was myself aware—in which there were delays in the consideration of someone’s personal position. Consideration has often been deferred, putting people in uncertainty.
The driver behind these changes is to make sure that the income that can be generated by fees is used to improve the service. This accounts for the pursuit of a premium service—which, I hasten to add, is not at the expense of the normal service but enables people for whom this is very important to have their cases dealt with in the most efficient way to suit their personal needs. It is exactly what we want to turn UKBA into: a consumer-oriented organisation that seeks to serve the people who wish to use its services.
I turn to the issues on which the noble Baroness questioned me. Most of the backlog in marriage cases was accounted for by people who had been refused by the normal process but were trying to circumvent the formal appeals process—the noble Baroness will know that there is an appeals process—by requesting an informal reconsideration. The 2,000 cases that were identified as requiring a decision have now been dealt with. The details of those who requested an informal reconsideration are being passed to Capita, who will contact them on behalf of the UK Border Agency as part of the work to ensure that those with no right to remain in the United Kingdom leave the country. If they refuse, I am afraid that their removal will have to be enforced.
Baroness Smith of Basildon
I appreciate and fully understand that. I was not suggesting that somebody who is not entitled to remain in this country should be able to do so. I am a little concerned about the Minister’s reference to circumventing the process. My understanding is that the process by which people were refused and then looked to have their case reconsidered was part of the system. They were not going against the rules, but acting within them.
Lord Taylor of Holbeach
I accept that. That is why we were concerned about it and why John Vine was right to draw the attention of Parliament to the situation. We are very concerned to make sure that it does not continue. This statutory instrument is about trying to engage the involvement of the consumer in the payment of fees, to strengthen the service that can be provided by UKBA.
The noble Baroness asked which companies act on behalf of UKBA. Within the UK, the Post Office uses biometrics and provides a check-and-send service. Overseas, two commercial providers offer assistance with processing applications and premium services. I cannot provide the names of those organisations now, but I will drop a line to the noble Baroness. She also asked why the fee was not included as part of the application fee. That is because the UK Border Agency awarded the contract for the provision of the third-party biometric service to the Post Office. I hope she will understand that that is separate from the fee that is charged for the application.
Baroness Smith of Basildon
I am sorry; perhaps I was not quite clear. I understood why, at the third bullet point, it says,
“arrangements for charging fees for tests administered by … those acting on its behalf”.
My point is about it including the relevant application fees on the first one, whereas at the moment it says,
“the cost of such services is reflected in the relevant application fee”.
I am not sure why legislation is needed to have a charge if it is already included in the current application fee. It is the first bullet point.
Lord Taylor of Holbeach
Yes, I agree with the noble Baroness. It might sound like a tautology but I am sure that it is relevant. I hope that the noble Baroness will excuse me if I do not explain the full details of that. I will certainly write to her about it.
The noble Baroness asked about the backlog of cases. The UKBA’s website would accept a reconsideration request if it was submitted before November 2012, when the question first arose. I hope that the noble Baroness is content with those responses. I have given an undertaking that I will write to her. I will do so, and put a copy in the Library. I commend the order to the Grand Committee.
Misuse of Drugs Act 1971 (Amendment) Order 2013
(11 years, 3 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Taylor of Holbeach
That the Grand Committee do report to the House that it has considered the Misuse of Drugs Act 1971 (Amendment) Order 2013.
Relevant document: 15th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, this order, which was laid before Parliament on 8 January, fits within the Government’s drug strategy and policies to tackle the threat posed by new psychoactive substances sold, in popular parlance, as “legal highs”. The Government welcome the recent contributions made by Parliament to inform our considerations in this area of our work. We are indeed much engaged in discussions and reviews of our policies.
Keeping our drug laws up to date remains a key element of this Government’s drug strategy to reduce drug harms, and we make no apologies for our third drug control order since coming into power. The order will implement the Government’s decision, in late 2012, to accept the advice of our independent experts—the Advisory Council on the Misuse of Drugs—to control a number of new psychoactive substances as class B drugs. The order will amend Schedule 2 to the Misuse of Drugs Act 1971 accordingly.
It will add O-desmethyltramadol to the list of class B drugs. This compound, currently sold as a legal high or as an undeclared but active ingredient in similar products in Europe, has not been detected in the UK. However, the ACMD advises that it poses a serious health threat. It has been associated with a number of deaths in Sweden. We agree with the ACMD that there is compelling evidence of harm to justify pre-emptive control to protect the UK public.
Noble Lords previously considered the 2009 drug control order on synthetic cannabinoids. These are man-made chemicals that mimic the effects of cannabis but also present similar harms. Over 140 of these compounds became controlled class B drugs. This was achieved by using a generic definition comprising five chemical families to capture these drugs. As these have mostly disappeared in the UK, as far as we can identify, new compounds have emerged. We have been monitoring them with the ACMD through UK and EU drugs early-warning systems.
The order will update four of the five chemical families identified in 2009 and increase their number to eight so that the generic definition captures more of the chemically related compounds. These include AM-2201 and MAM-2201, which have been identified in samples of the legal high products going under the brand names—if that is the phrase to use—Black Mamba and Annihilation, which have been linked to several hospitalisations.
The order will also make methoxetamine a controlled class B drug, as recommended by the ACMD. Noble Lords will recall that this drug has been subject to a temporary class drug order since April last year. The ACMD has also provided a generic definition to control the drug so that similar compounds which could replace it in the legal high market are also controlled.
The order will be complemented by two negative instruments in relation to the designation and scheduling of the drugs which will become controlled under the Misuse of Drugs Regulations 2001. In line with the ACMD’s advice and following consultation with the healthcare sector and industry, they will be designated as schedule 1 drugs, meaning that activities relating to them will be permitted for research or other special purposes subject to the relevant Home Office licence.
The Government take seriously the protection of public health, and protection against the threat posed by potentially harmful emerging drugs in the UK and abroad is necessary. I commend the order to the Committee.
Baroness Smith of Basildon
My Lords, I feel that I may have been a little unkind to the Minister last week when I suggested that he might have to read out in full the names of all the drugs that we would be looking at today. It is perhaps more useful to use the street names, which are, for good reason, a lot easier.
I suspect—if it is not a very bad pun—that there is not a cigarette paper between us in looking at what we can do to end the scourge of drugs and the damage that they cause to so many young people in society. We therefore welcome the order and support action to protect young people from these substances. It is always wise, as is evident in the order, to act as early as possible. I welcomed the temporary ban placed previously on “mexxy”—MXE. The Minister may be aware that when we considered the relevant order—I appreciate that he was not the Minister at the time—I raised a couple of issues. Despite our full support for the order, we were concerned that it had taken a long time to get to your Lordships’ House. We were behind a number of other countries, such as Russia, which had already taken action. We welcome the fact that O-desmethyltramadol is being added to the list of class B drugs before any evidence is widely available in the UK. We know that the drug travels across Europe and that young people get it, and it is right that, based on the evidence of the danger that it causes, action should be taken as soon as possible.
When discussing the previous order, I asked about the Government’s relationship and co-operation with the European Monitoring Centre for Drugs and Drug Addiction—EMCDDA. We were concerned then that the EMCDDA had identified 90 new substances in 2010 and 2011 and, I understand, even more in 2012. At that point, the Home Office’s early warning system had identified only 11 of those drugs. The noble Lord, Lord Henley, the Minister at the time, was unable to answer that point in Committee—I appreciate that the Minister may not have information today, but, again, I would be happy for him to write to me. I am concerned that we should not lag behind what the EMCDDA is doing. In the case of O-desmethyltramadol, it is clear that the Government are not lagging behind, but given that 90 new drugs were identified up to 2011 and even more in 2012, it would be interesting to know how many of them have been identified by the Home Office’s early warning system. How do the Government and the Home Office co-operate with the EMCDDA? It is quite clear that if the centre has information that is useful to us and allows early action to be taken, as with this particular drug, it would be very welcome.
Lord Taylor of Holbeach
I thank the noble Baroness very much indeed for her support. The drugalyser is rather a focused piece of kit at the moment and deals with drugs that are commonly available and well recognised as impairing people’s ability to drive properly. I have no doubt that we will have an opportunity in future to debate how that particular piece of equipment will be used. It is a Department for Transport area of activity but of course we are very much involved and, indeed, it was included in the Crime and Courts Bill, which was led by the Home Office. We will continue to monitor it. The short answer is, of course, that such a piece of equipment will be unable to pick up all drugs, but that does not invalidate its introduction as a useful piece of equipment to monitor people’s misuse of drugs while driving.
This order has two elements, which are innovative and have been recognised and welcomed by the noble Baroness, the first of which is the pre-emptive strike. To pick up on the example of the chemical O-desmethyltramadol, we are making clear, before it gets here, that this highly damaging drug is illegal within this country.
The second is generic protection. As the noble Baroness said, this is difficult to put into legislation. However, I must say that page 2 in particular is an impressive piece of drafting. I had a modest education in organic chemistry and can see exactly what the drafters of the legislation sought to do. Almost all the manufactured, synthetic drugs are based on organic chains with psychoactive elements. The legislation recognises the derivation of these compounds, and their reassembly and reformulation to get round the ban will be very much more difficult through the construction of this generic, family-type ban. It will be very useful.
The noble Baroness asked a question to which I do not have the answer, although I should have had. She asked about the progress being made on the internet sale of drugs. I will find out if I can update her on that. Clearly it is an area where illegal marketing goes on. This is of concern and we would want to take every measure to try to stamp it out. I hope that noble Lords can see that this measure is particularly useful in addressing the advent of these legal highs, and I commend the order to the Committee.