Grand Committee
(9 years, 7 months ago)
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Deregulation Bill
(9 years, 7 months ago)
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The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells ring. We will resume after 10 minutes.
Clause 58: Exhibition of films in community premises
Amendment 78ZA
Lord Stevenson of Balmacara (Lab)
My Lords, in moving Amendment 78ZA, I shall speak to Amendments 78ZB and 78ZC in this group. These are probing amendments, as I have some sympathy for what is being proposed. As a former director of the British Film Institute, I can hardly object to a measure which is aimed, I think, at broadening access to group viewing of films, which must he a good thing. However, I worry that what this clause proposes is at one and the same time oversimplistic and unsighted about some of the problems of operating such venues.
The clause effectively would create two classes of film exhibitor—one that is regulated and another that is unregulated. In the regulated sector would be the majority of current commercial cinema operators and several dozen existing voluntary and community-run enterprises, such as the Ritz Cinema in Thirsk and the Market Hall community cinema in Brynmawr, which in its 120th year was recently awarded “cinema of the year” at the prestigious Screen Awards—something which we should all celebrate.
In the unregulated sector would be the new “community premises” over which the appropriate licensing authorities would have no control. I suggest that we need some definitions. What are the community premises of which the Bill speaks? Will the Minister spell out today the type of venues these community premises would be? Who can operate these events? New Section 6A(2)(b)(i) to be inserted in the Licensing Act 2003 under Clause 58 suggests that they might be,
“a trade, business or other undertaking (for profit or not)”.
I assume that this might include, for example, a pub, a bingo hall or any other place which would otherwise require a local authority licence to attest to its ability to host a public gathering. Perhaps the Minister will confirm that. If such operators were to organise any other type of event, such as a dance or a charity function, particularly if alcohol was to be sold, would these meet the same definition of “community premises” and would they need to be licensed?
The Government have made the proposal sound like an idea to open up windy church halls to genteel afternoon showings of perhaps classics of the silent cinema or even “Brief Encounter” and the like. However, the clause is so loosely worded as to allow for any operator to exhibit any film without a licence. The clause opens up a world in which any group might exhibit virtually any type of film or video presentation in public. What about children? What is role of the BBFC in this matter? What role will the local authority have in all this? I seem to remember that the wonderful film “Life of Brian” is still banned in some local authority areas.
What is a not for profit venue? The Government suggest that this clause is aimed at not for profit venues but no legal definition is offered. Given that the venue itself could be for profit or not, how does that sit with the wording in the clause, which states that the deregulated film exhibition,
“is not provided with a view to profit”?
What does that mean? Does it mean that the film costs less to hire than the price of entry, that the ticket income does not exceed the cost of any venue hire or that the total revenue for the event, perhaps including food and drink, does not exceed total costs, including contributions to the venue’s heating, lighting, staff and other overhead expenditure? We need more detail on that.
At the heart of all this is the question: why should public safety regulations not apply? An existing commercial cinema exhibitor must adhere to licence regimes covering fire, electrical and heating safety, hygienic food handling practices, noise pollution and local environmental rules, as well as, on occasion, fitness to serve alcohol. Why would the Government want to reduce existing levels of public protection? We should remember that these venues will be capable of holding up to 500 people at such an event. What happens if there is a problem such as a fire?
More generally on the size limit, why is it so high? Will the Minister explain the thinking here? I am informed by the Cinema Exhibitors’ Association, which represents well over 90% of UK cinemas, that there are no more than 60 screens nationwide which can show a film to an audience of 500 persons. Why then should an unregulated cinema be allowed to present films in an unregulated environment to so many? I strongly suggest that the Government consider a much lower maximum attendance figure.
Finally, unregulated film exhibition of the type proposed threatens to significantly weaken controls over piracy, which remains a very real threat to the livelihoods of all those working in the wider film industry. What consultations have the Government held with the industry about this, and what reassurances have they given? Are they content with the situation more generally?
Existing licensed cinema operators have a strong history of offering safe, clean, well managed and fair access; the lack of clarity in this clause is not helpful and we need a lot more detail from the Minister when he responds. In an extreme case—it would be extreme, I recognise that—the Government could find themselves deregulating cinema exhibition for a well meaning purpose but letting unsavoury operators into a market that is currently well regarded, law-abiding and safe for its customers and staff. Quite apart from the health and safety, fire, food and environmental regulations gap, will the Minister say how the Government can be certain that the other necessary public protections, such as child protection, will work in practice?
Undefined “community premises” no longer needing to apply for an entertainment licence would effectively fall off the radar of protection and enforcement authorities. The planned changes, although welcome, appear to put at risk the high standards of safety and child protection that have worked well over the years. There would be little or no oversight of the admissions criteria or content shown at community premises and no real control over who could claim such community status and so avoid enforcement. The level playing field in standards for public protection would be lost.
Our amendments point to the need for further work on the maximum audience size, on the definition of community premises and on defining what “not for profit” means in practice—all aimed at avoiding the creation of an unlevel playing field with existing regulated community cinema providers. Assurances are also needed about the continued regulatory role of enforcement bodies in order to ensure that wider public protections are in place to safeguard customers, with regard to, for example, underage admission, BBFC certification, piracy, public decency and safety standards. I beg to move.
Lord Gardiner of Kimble (Con)
My Lords, I thank the noble Lord for his amendment. It is important that I should start with the definition of “community premises”, because I hope to be able to reassure the noble Lord and your Lordships as to the modest nature of these measures, and the protections included in them.
Community premises, as defined in Section 193 of the Licensing Act, are those premises which are or form part of a church hall, a chapel hall or other similar building, or a village hall, parish hall, community hall or similar building. The Government’s view is that this modest measure relates only to the exhibition of film in community premises as I have outlined. We do not believe that these events will bring in meaningful competition with local cinemas, even where such cinemas operate on a not for profit business model. This is because the deregulation is subject to certain conditions, one of which is that the exhibition is not provided with a view to profit. This includes where the profit is for charitable or other fundraising purposes.
The Government believe that intention is the key factor here. For example, a film society is not set up to exhibit films for profit; its intention is to explore film culture rather than to generate income. We are therefore confident that the test of intention will provide protection against an exhibitor with a profit-making motive being able to exhibit a film legally under this exemption. To assist licensing authorities that are responsible for enforcement, and event organisers, the Government will issue revised statutory guidance on this exemption. Indeed only yesterday the Minister for Sport and Tourism deposited in the House Libraries a working draft of the revised Chapter 15 of the licensing guidance, to assist with Parliament’s scrutiny of Clause 58.
A rather more blunt measure of whether or not profit was made, without reflecting the intention, could have a detrimental effect on community film screenings. I will explain why. For example, people would have to be turned away from an unlicensed exhibition if their attendance could give rise to a profit being made. It would also require the event organiser to know, with the audience already present, whether they had generated more income than the total cost of the exhibition. If they had, then in the absence of a licence or other authorisation the exhibition of the film could not legally proceed.
The whole point of this exercise is that the Government wish to remove the licensing burden for low-risk entertainment activities, such as the exhibition of a film in community premises as defined in the circumstances of Clause 58. The Government therefore consider that the clause cannot be exploited by anyone seeking to exhibit films on a “for profit” commercial basis, without the need for a premises licence.
Amendment 78ZB would limit to 250 persons the maximum audience allowable for an exhibition of a film in a community premises. I know that the noble Lord was particularly concerned about that point. The Government consulted widely in 2011 on a proposed audience limit for all forms of entertainment. The audience limit of 500 is reflective of the wider outcome of that consultation. An exhibition of a film is a lower-risk activity, and having an audience limit of 500 people maximises the cultural benefit for community groups and does not, in the opinion of the Local Government Association and others, give rise to particular public safety concerns. The limit also provides a read-across to the 499 audience limit for an event authorised by a temporary event notice.
This limit is generally regarded by local authorities and the emergency services as an appropriate audience ceiling for these sorts of events. Further, it is consistent with other entertainment activities within the Licensing Act, such as a performance of dance or of live music. Indeed, it would be very odd if community premises could put on a pantomime for 500 people without the need for an authorisation, but could show a film of that pantomime to an audience of no more than 250 people. I also make it clear that key safeguards remain in place; Clause 58 makes no changes to protections already in place in respect of alcohol licensing, health and safety, noise pollution or fire safety.
In more detail, the noble Lord’s final amendment in this group seeks to add a further condition to the qualifying criteria. The Government’s starting point is that regulation should be required only where it remains necessary and proportionate to safeguard the licensing objectives. The licensing objectives—set out in the Licensing Act 2003—are in respect of the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. The issue of an appropriate audience limit relates most closely to the public safety objective. The Government considered those objectives when preparing these proposals, and concluded that licensing film exhibitions in small community premises could not be justified when assessed against the risk to the four licensing objectives.
The four licensing objectives rightly focus, as I said, on the prevention of disorder and ensuring public safety in places where people gather together in numbers for leisure. They ensure that regulation is focused on what is necessary to protect the public. Very importantly, they also avoid duplication with other regulatory regimes, which can increase the cost of regulatory compliance for all concerned. I will take the proposed conditions in turn. The noble Lord posed these questions, and I hope that your Lordships will find the following reassuring.
As regards fire safety, Clause 58 makes no change to the requirement that community premises owners are responsible for fire safety. This is set out in the Regulatory Reform (Fire Safety) Order 2005, which in most cases is enforced by the local fire and rescue authority.
Lord Watson of Invergowrie (Lab)
When this issue was debated in Committee in the other place on 13 March, Toby Perkins MP raised concerns about child protection and asked what action could be taken where there was evidence that someone had regularly allowed children to watch films inappropriate to their age. Tom Brake MP, the Minister, said that he would set out in a letter what actions could be taken. Can the Minister tell me what that letter contained and what actions the Government envisage could be taken in such circumstances? I understand that he may not be able to give me the answer right away, but I would like to have that on the record.
Lord Gardiner of Kimble
I am most grateful to the noble Lord. If some information can be provided to me during my remarks, I will be able to record it here—but, if not, I will make sure that that noble Lord and the Committee know of the response.
The whole purpose of this part of the Deregulation Bill is to make it easier to exhibit films in village halls and other community premises, as I have suggested. We wish to strike a better balance between necessary protections—I hope that I have outlined what will remain and why that is so important—and removing unnecessary burdens. I think that we would all agree that there are too many examples of burdens sapping the will of volunteers and very often soaking up scarce financial resources.
Where the conditions of this exemption are not met, then, rightly, a licence will still be required. Other key protections will continue to apply, such as alcohol licensing and health and safety and noise abatement legislation.
The noble Lord, Lord Stevenson, asked a number of questions relating to fire safety and health and safety. A person who organises a film screening will continue to be subject to a whole range of legal duties on fire safety, safe workplaces and public nuisance. This includes a common-law duty of care towards the health and safety of those attending the film screening.
On the question asked by the noble Lord, Lord Watson, those responsible for the exhibition of a film on community premises must have in place operating arrangements. That would include a suitable child admission policy implementing the recommendation made for that film by the BBFC or local licensing authority. They may operate a membership subscription scheme which pays for entry to all titles in a season and is limited just to adults, or they could sell tickets to the public and ensure that children are permitted entry only in accordance with the age rating for the film. If there is anything further I have on that, I will write to the noble Lord and ensure that other Members of the Committee are made aware of it.
The noble Lord asked about the weakening of controls on piracy and how this could be controlled. Indeed, a film shown in a community premises must be compliant with the Copyright, Designs and Patents Act 1988 in the same way as a film shown in a cinema.
The noble Lord raised a number of questions. I know that these are probing amendments but it is important that all the points the noble Lord has raised are clarified and there are assurances that this proposal is a force for good. Coming from the countryside, I know that very often cinemas are 30 or 40 miles away from communities. I do not believe there is competition in place. This is about communities enjoying films to which those who live in suburbs and towns have a much readier access. That is the whole purpose of the clause—to ensure that communities have the advantages that those who live in cities and towns and close to cinemas enjoy. I have been to many community film exhibitions near to where I live. They are well supported and anything we can do to encourage communities to enable people to enjoy film is desirable. So if the noble Lord would like to discuss anything further with me before further stages of the Bill, I would be delighted. I hope I have been able to reassure your Lordships, and that the noble Lord will withdraw his amendment.
Lord Stevenson of Balmacara
My Lords, that is the first time I have been invited to go to see a movie with a member of Her Majesty’s Government. I will reflect carefully on that. We actually live quite close to each other and there are several local community film venues between our respective villages, so it is feasible to do that. We will think about that.
Film as we see it today is rarely controversial and rarely leads to public disorder but it was not always thus. Those of us who are interested in film history will know that one of the early screenings by the pioneers of cinema—a train arriving at the station in Lyon—resulted in the audience evacuating the hall so fast that it could not be considered safe, because they feared that the train was actually coming out of the screen at them and leapt out of the way to avoid imminent disaster. I do not think even 3D could possibly cope with that. But we should bear that in mind when thinking about what we are doing here.
I will read carefully what the Minister said and may take him up on his idea of a meeting. It is slightly irritating that we did not get sight of the draft licensing regulations. They may have been placed in the Library yesterday but it would have been useful to know that they were around; we could perhaps have saved a few of the questions I raised.
There are three points that I would like to make. First, it is now clear from the noble Lord’s response that the model here is the live music scene—I think he mentioned dances and music—where obviously an upper limit of 500 is perfectly understandable. I do not see this being appropriate in church or village halls or even parish halls, which are not ever going to be as large as that. If that is the restriction, I think the 500 is otiose but I will reflect on that.
Secondly, I still think there is a dichotomy in the way in which this is intended to apply. If it is restricted in operation to church halls, village halls and parish halls but can be run by profit-seeking bodies such as pubs or others, there is still a tension about what is exactly in mind here, but the gap for those who might be wishing to exploit that for profit may not be as bad as I originally feared.
Thirdly, the trick here is to limit the exercise of this to sites that are licensed in the full round of local authority licensing—including fire safety, public health and noise—but the event itself will not be specifically licensed, so that it can be done with a minimum of fuss. I still think there is a tension there about what happens when child protection issues are raised or there are questions about whether the films are certified under the BBFC or by the local authority. We are not quite sure about that. But that is not sufficient to hold back discussions today and I beg leave to withdraw the amendment.
Lord Stevenson of Balmacara
My Lords, Clause 59 mandates the Secretary of State to carry out a review of the alternatives to criminal sanctions for non-payment of the TV licence fee. A television licence is required to watch all live, or nearly live, broadcast television content on any device in the UK. It has become popularly known as the BBC licence fee but that is of course a misnomer—it is a licence to receive a broadcast signal sufficient to be able to watch television or to listen to radio. Nevertheless, the BBC is tasked with collecting the licence fee. The function is subcontracted to a private company under the brand TV Licensing. Failure to have a TV licence is an offence under Section 363 of the Communications Act 2003, punishable by a fine. This clause specifies the timing of a review, which is to commence within three months of Royal Assent and to be completed within 12 months of it beginning. It specifies that a report must be presented before both Houses of Parliament and presented to the BBC Trust.
It is surely an irony beyond satire to have a clause in a deregulation Bill which duplicates what is already happening in the real world. On 9 September 2014, the Secretary of State for DCMS announced his intention to begin a review into TV licence enforcement, which will be independently led, on behalf of the Government, by David Perry QC. The objectives are in fact broader than this clause specifies. They are:
“To conduct a review into the enforcement regime for failure to have a TV Licence to … examine whether the sanctions for contravening this offence are appropriate, fair and whether the regime represents value for money for licence fee payers and tax payers; and … identify and assess options for amending the current enforcement regime, including those for decriminalisation of TV licensing offences, and whether these options would represent an improvement”,
based on certain key considerations.
Mr Perry has to,
“make recommendations to the Government by the end of June 2015”,
which is well within the timescale specified in the clause. He is charged with producing:
“A report setting out an assessment of the current and proposed enforcement regimes, key findings, conclusions and any other supporting information to be submitted to the Government by the end of June 2015”.
The Secretary of State is required to,
“lay this report before both Houses of Parliament and present it to the BBC Trust”.
These requirements are identical, in all but a few words, to the requirements specified in Clause 59. So what, precisely, is the purpose of this clause? It has been overtaken by events, is not required and should be excised forthwith. I look forward to the Government agreeing with me that this clause should not stand part of the Bill.
Lord Gardiner of Kimble
My Lords, at Commons Committee stage, the Government supported the amendments tabled by the honourable member for North West Leicestershire. Clause 59 imposes a duty on the Secretary of State to ensure that a review of the TV licensing enforcement regime is carried out—as the noble Lord, Lord Stevenson of Balmacara, mentioned. This review will identify whether the current enforcement regime is appropriate and proportionate. The review will also ensure that there is a strong, evidence-based case for any potential changes to the TV licensing enforcement regime.
The findings of the review—which has already started—will be completed by June next year and should be considered in the context of the charter review. It will be for the Government of the day to take forward any further actions as they see fit. The current Government are very clear that the review of the licensing enforcement regime is a high priority. Hence, we have taken the decision to commence the review this autumn, in advance of Royal Assent.
If there is potentially an issue with the current regime, it can be of benefit to no one to delay the review or to prevent its findings informing any required change to the existing system. Our overriding aim is to ensure that the system is appropriate, proportionate and fair and that it represents the best value for money for licence fee payers and taxpayers. There was significant support for both of the TV licensing clauses in the earlier stages of this Bill in the other place. We believe that the firm commitments set out by the Government at that time must be honoured, particularly given that strong cross-party support. For that reason, we would not seek to remove the review clause from the Bill.
The current review has clearly defined terms of reference and, although there are no guarantees over decisions that any future Administration may seek to make in this area, particularly if they were minded to go against the will of Parliament as demonstrated in the strong support for these clauses, we do not believe that there should be any delay to the review. However, we think that the retention of Clause 59 ensures that at the absolute latest the review must be completed within a year of having begun. This duty will apply to the future Government and provides a crucial backstop to ensure that this important piece of work completes within the charter review period. That is why, although the noble Lord, Lord Stevenson, made a very interesting point about the Deregulation Bill and I am sure that he will pull my leg about it, the Government believe that this clause should stand part of the Bill. As I have said, strong views were expressed in the other place that we think are important. This provides some backstop to the work of the review. That is why I very much hope that Clause 59 will stand part of the Bill.
Baroness Howe of Idlicote
“(14) Any regulations which may be made under subsection (1) shall not take effect before 1 April 2017.”
Baroness Howe of Idlicote (CB)
My Lords, it is vital that any impact on the BBC’s income is well considered before any potential changes to licence fee enforcement come into effect. For this reason, Amendment 78A seeks reassurance that any proposed changes to licence fee enforcement should not take effect before 1 April 2017.
The BBC’s current licence fee settlement is due to expire at the end of March 2017. Having an agreed licence fee settlement has meant that the BBC has been able to plan its long-term budget and programming. Clearly, any prior reduction to this income will impact services and content for all licence fee payers. The reality is that a change in the way that the licence fee is collected may affect the BBC’s income and, without sufficient time to respond to such change, the BBC could be forced into drastic action such as the loss of key programmes or service closures.
If, for example, non-payment of the TV licence becomes solely a civil matter, collection will become harder to enforce and of course evasion will be likely to rise. Utility bill evasion is currently around 10%; if licence fee evasion went up accordingly, it would cost the BBC about £200 million a year. To put that into context, it is similar to the amount that the BBC spends on programming for CBBC, CBeebies and BBC Four put together. The importance of this amendment—which, as noble Lords can see, has cross-party support—is about getting the timing right and ensuring stability for the BBC and licence fee payers to ensure that it continues.
As the Committee has already heard from the noble Lord, Lord Stevenson of Balmacara, on 21 October the DCMS launched a review into TV licence fee enforcement, independently led on behalf of the Government by David Perry QC and expected to conclude in June 2015. The BBC has said that it looks forward to engaging with the review. Once it has concluded, its recommendations can be considered as part of the charter and licence fee negotiations. This fits with the timing, as the Government have said that they will start to review the BBC charter next year, ahead of its expiry at the end of 2016 and that of the licence fee settlement in 2017. Ensuring that no changes take place before 1 April 2017 will give all parties a chance to think carefully before taking decisions that could have a huge impact on the future of public service broadcasting in this country. Only when the licence fee penalties are considered in the round can the impact be properly measured and assessed.
It is worth remembering that the BBC was given a commitment by the Government when the 2010 licence fee settlement was signed. They agreed to provide,
“a full financial settlement to the end of the year 2016-17. No new financial requirements or fresh obligations of any kind will be placed on the BBC and/or licence fee revenues in this period”.—[Official Report, 7/11/11; col. 4.]
The amendment ensures that the Government can fulfil this commitment.
As we know, the BBC is independent of government and accountable to the licence fee payer. It is therefore right that any changes to the BBC—a British institution cherished and trusted by audiences—should not be made without the public having had their say. The most effective way of giving the public the chance to contribute their views and decide what kind of BBC they want is to look at the impacts and consequences of the decriminalisation review in line with charter renewal.
Before we think about any possible changes to the licence fee, including enforcement, it is worth noting the popularity of the current system. More than half the public support the licence fee as the BBC’s funding mechanism, regardless of the individual’s age or socioeconomic group or whether they are in a Freeview, Sky or Virgin household. This compares to 17% for subscription and 26% for advertising, and has risen significantly in the past decade.
It should also be noted that 96% of the adult population use BBC services each week and it is therefore right that we take the time to ensure that the funding mechanism is efficient, appropriate and proportionate in the best interests of all licence fee payers. It is also right that any licence fee enforcement is fair to those who are paying for its services. One of the benefits of the current system is the universality it provides in regard to payment and services offered.
The BBC currently costs the licence fee payer 40p a day—rather less than a cup of tea or coffee—and it is able to maximise its revenues by having low evasion rates. We should therefore be wary of any changes that would mean evasion rates rise, as the BBC cannot turn off the TV signal to evaders and those paying their licence fee will obviously suffer from a decease in funding for programme-making. Again, we need to take time to ensure that all possible changes are carefully considered in conjunction with all aspects of the BBC’s remit.
I also point your Lordships to a report produced by the Constitution Committee. The committee expressed concerns in its report that Clauses 59 and 60 were not included in the draft Bill and were not scrutinised by the Joint Committee on the draft Bill. The report says:
“It seems illogical that Parliament should be invited to legislate for a review and at the same time for a possible outcome of that review. If it is decided in due course to change the sanctions regime in respect of TV licence violations, the better course would be to introduce a bill at that point, rather than legislating now by means of a Henry VIII clause”.
I echo the concerns raised by the committee, chaired by the noble Lord, Lord Lang, and ask that careful scrutiny be applied to any change made to the current system and that the impacts and consequences be fully considered.
In summary, the BBC is a national institution valued by audiences and admired the world over. It brings huge respect for its contributions to this country. Its independence from government and budgeted funding need to be safeguarded. As the Government’s review concludes in June 2015, assurances need to be put in place to make certain that any potential changes are considered in the round with the charter review and licence fee settlement. I beg to move.
Lord Grade of Yarmouth (Con)
My Lords, I support everything that the noble Baroness has just said. I fully support the review, as bringing some evidence to bear on the issue of decriminalising non-payment of the licence fee would be very valuable. I suspect that the review can conclude only one thing on the evidence: that this is a solution in search of a problem.
The debate around the problem with the criminalisation of non-payment of the licence fee is full of misinterpretations and deliberate misinformation. You do not go to jail for not paying your licence fee; you may possibly go to jail if you do not pay the fine when you are caught, for not obeying the court order to pay. I understand that it is the same in the civil courts if you do not pay your council tax. That is a civil offence, and if you are ordered to pay by the court, you can similarly go to jail. I do not see the great difference in decriminalisation.
The idea that the courts are swamped with licence fee avoiders and non-payers is, again, a myth. The average time that is spent dealing with these mostly uncontested cases is 3 minutes and 13 seconds. That will improve, as I believe there are moves afoot to have a single magistrate hearing these cases. Jail seems to be a last resort. That is not based on empirical evidence, but I think it is generally accepted anecdotally that people who end up having to go to jail are people with a long track record of not paying fines and of disobeying court orders. The licence fee turns up as the last straw in the case, and magistrates lose their patience with the individuals.
There is not a problem in that sense. The problem lies in the decriminalisation issue being used by the enemies of the BBC—the commercial and ideological enemies—to move to a point where the BBC has to move to a voluntary subscription or voluntary payment model. That would totally destroy one of the great glories of UK plc and one of the greatest and most recognised international brands in the world— the British Broadcasting Corporation. It would be severely damaged if the Government rushed into some hasty measure such as decriminalising on the pretext of solving a problem which does not actually exist on the evidence. I am confident that the review panel will come to that conclusion.
It is very serious that the Government of the day could consider changing the basis on which the BBC licence fee is collected and its basis in statute ahead of the charter review. That is the obvious and simple process that has been enshrined and which will give everybody an opportunity to take their time and decide what the best thing to do is in this particular case. I fully support this amendment and I can see no reason whatever to expedite the results or any preview of the results of the review ahead of the charter review. This is a very serious matter. Decriminalisation could become a Trojan horse for those who wish to see the destruction of the British Broadcasting Corporation. I hope the Government will give some assurance today, or maybe at future stages of this Bill, that they understand that issue and that they will therefore not move hastily to change anything, other than through the normal process of charter review.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, I rise very briefly to support the amendment and what the noble Baroness, Lady Howe, and my noble friend Lord Grade have just said. I agree with him in supporting a review. I will quote David Attenborough, whose words exemplify my view of what our broadcasting system, at the heart of which the BBC sits, has achieved:
“The BBC is in my view one of the most important strands in the cultural life of this country … But what could happen is it is diminished”.
If so,
“it would no longer be the BBC and that would be a catastrophe for the country”.
In order for the BBC not to be diminished, it needs a good licence fee settlement. I thought that the previous settlement was rushed through, and I hope that the next one takes a greater length of time. As the noble Baroness, Lady Howe, said, the BBC needs to be able to forward-plan; it needs to know how much money it has. That is one of the commitments that were made during the previous, rushed settlement. Whatever comes out of this review, it is essential that it should not mean that that commitment is reneged on. The amount of money that the BBC has to use should remain the same until April 2017.
Viscount Colville of Culross (CB)
My Lords, I support the amendment of my noble friend Lady Howe, not just because I am a producer in the BBC’s science and history department but, much more importantly, because I am a licence fee payer who very much appreciates and enjoys the wide range of programming offered by the BBC to the people of this country. To me, it is a beacon of education and information, and I fear that Clauses 50, 59 and 60 are a threat to that.
The amendment does not ask us to decide on the pros and cons of the decriminalisation of the non-payment of the licence fee, but it asks noble Lords to support a delay in the implementation of its recommendations until 1 April to ensure that it is incorporated in the full charter renewal process, as the noble Baroness, Lady Bonham-Carter, said.
When thinking about the effect of suddenly introducing the results of the review, we ought to think about the sums of money involved. My noble friend Lady Howe suggested that £200 million could be taken out of the BBC budget. That has been based on research from the Debt Advisory Centre looking at the evasion of utility bills, which I think actually stands at about 8%. However, this situation risks being worse than 8%; after all, research from households shows that the payment of gas and electricity is a very high priority, while paying the licence fee is a lower one. Also, the BBC does not have the option of turning off its signal.
The reduction in income would affect the quality and quantity of programmes that we see on our TV screens and hear on our radios. There are comparisons that can be made internationally. In Finland, which I think is generally seen as a law-abiding country, there is a non-criminal enforcement regime and modest financial sanctions for non-payment of its television licence fee, and the evasion rate there is 12%. In Japan, which is so law-abiding that when I was there people would not jaywalk, there is a 27% rate of non-payment of the licence fee to NHK, the national broadcaster.
Viscount Colville of Culross
As I was saying before the Division, we are talking about the possibility of the income of the BBC being reduced by a further £200 million. The BBC has already suffered a 26% fall in revenue during the last six years of the licence fee, which has been frozen at £145 per year, as well as taking on extra responsibilities. There have been staff efficiencies, with more than 2,000 posts being cut and other efficiency savings, but there have also been huge reductions in what the corporation broadcasts. As both a producer and a consumer of television, I have seen a dramatic cut in production, which I know many of your Lordships value very highly.
BBC News has withdrawn correspondents from bureaux across the world, which obviously affects its ability to report globally. The important investigative programme “Panorama” brought us the investigations into the abuse at Winterbourne View, “FIFA’s Dirty Secrets”—which showed that members of the executive committee had taken bribes prior to the World Cup going to Qatar—and, of course, the “cash for questions” programmes. “Panorama” has had its hours cut from 56 to 48 a year. That is eight hours’ less investigation on our main channel. I know only too well that investigations are very expensive and can take months or years to come to fruition, and sometimes do not at all, but they are a crucial part of the public service remit at the BBC and I would hate to see extra cuts reduce their funding even further.
My noble friend Lord Hall has placed great emphasis on broadcasting the arts, but there have been huge cuts in factual programming on BBC2, which covers arts, science and history. I am sure that many of your Lordships miss the regular “Culture Show” slot. On digital television, BBC Four, which is a bastion of culture and the arts, has also seen cuts in factual programming. History and business have been withdrawn from the channel.
The cuts that have already taken place are huge. As a producer I can confirm that the reductions in production budgets have resulted in many efficiencies, which I am sure your Lordships will welcome. We go out on shoots with smaller crews—sometimes even no crew. However, inevitably this has a knock-on effect on what viewers see on screen. We can film in fewer locations, for fewer days, and often we talk to fewer contributors.
I am not asking for the BBC to be given more money. I am saying only that, given the huge savings that have already been made, to suddenly add another £200 million cut would blow a hole in the corporation’s business plans. Inevitably, programmes that we all love and admire would suffer. We would all be the poorer. The BBC is probably one of the most well known and respected British institutions around the world. In a world sated by superficial entertainments it is a beacon of culture, education and news. I urge your Lordships to support the quantity and quality of its work by supporting this amendment. I fear that failure to do so would have an adverse effect on its programming.
Lord Grade of Yarmouth
My Lords, with your indulgence, perhaps I may correct something: I omitted earlier to declare an interest as an occasional documentary maker for BBC Four. I should also record that there is a bigger audience in this Room than I normally get.
Lord Stoneham of Droxford (LD)
I think most noble Lords who have severe concerns about this clause fear that it stems from some underhand undermining of the BBC by its enemies, and to appease Back-Bench interests. I hope, from what the Minister said earlier, that he can give us full assurances on that: that the national institution that is the BBC, which has wide public appeal and respect, is not going to be foolishly undermined by an inappropriate, hurried action.
Everybody who likes institutions such as the BBC, and who supports the BBC strongly, is in favour of reforming and improving it, because that will keep it and what it does in the public’s favour. We should not be frightened of change, but that change must be considered and phased, and we must stand up for what was originally agreed in the settlement: namely, that there would be no change until 2016-17. If it is done in a considered way, we support it. However, it must not be done in an underhand way.
Lord Berkeley of Knighton (CB)
My Lords, almost before opening my mouth I must declare an interest, having been for many years—more than I care to think of—a broadcaster for the BBC, both on the staff and as a freelancer.
The points being made are important. When we talked about the arts in your Lordships’ House recently, the Government, it seemed to me, were very open to the concept that people need to know their budgets before they forward-plan. At a time when the charter review is coming up and the BBC accepts that there are many problems with the licence fee and current funding and is trying to deal with that, to cut the ground from under it before the charter is properly considered would be very dangerous.
From my own experience, the cuts within the BBC—particularly the cuts to Radio 3—have been draconian. Many people have been laid off; programme budgets have been cut. One of the things I find strange about this is that I subscribe to Sky—I enjoy it; I sometimes watch the BBC on Sky—but for my Sky package, which includes sport, I pay about £46 a month. For the BBC I pay £12 a month. That is a quite extraordinary disparity and it is worth thinking about it. For what the BBC provides—the Proms, the culture, the natural history, sport, Wimbledon: all things for which they are in competition with Sky—the figures hardly stack up. To add this additional burden would be rather irresponsible. I therefore beg the Government to consider delaying. It is not asking an awful lot—not to cancel, just to delay.
Lord Rooker (Lab)
My Lords, I did not come to speak on this—I am a complete outsider as far as the media are concerned—but having listened to the noble Lord, Lord Grade, before the Division, I will.
This is unfortunate. I know that it is fair enough to make the point that we did not have these discussions on the draft Bill; I will not make a serious complaint about that, because things in the Bill have been added since the pre-legislative scrutiny. However, on what I know about the media, I certainly take the point of what the noble Lord, Lord Grade, said, that in the end this is basically all about the attempt to force the BBC to go down to a subscription channel basis, and I fundamentally disagree with that. The BBC has not helped itself in the last couple of years; as an outsider I have watched in the other place some absolutely inept performances in front of that Select Committee by very highly paid people, who on some occasions are inarticulate beyond belief. You can imagine where the groundswell against it comes from.
I fully accept that there has been an attempt to do something about the banker-style salaries. I fully accept that you need the best people, and it is a competitive market. I have nothing to declare, by the way. While Murdoch’s alive, I do not do Sky. I sacrifice Formula 1 and everything for that. There will come a day when I can have Sky, but it is not there at the moment. The fact is that there is a disparity when one sees the cost of what is advertised—but then you do not see the full cost of the BBC, for example. When you turn the radio on in the morning, you expect it to be on, but you do not see the separate figures for that. It is a bit like other services, whether schools or hospitals. When you walk through the door you do not see a price on the top—although now you do with universities, where the cost of walking through the door is nine grand a year. It is not quite like that; it is not put across that way. Therefore you do not have the marketing. The BBC has no interest in having the marketing to compete with the marketing that Sky does to make it seductive.
That is the only point I want to make. There is a conspiracy—no question about it. I freely admit that I was very tempted after it went to the Commons; I was not sure whether it would be put in the Commons or the Lords. When the arguments were first put they were very seductive on decriminalisation. I have friends who are magistrates, and they say, “Jeff, it’s nonsense. We parcel them all up—we do them all together”. On the time argument, the noble Lord, Lord Grade, said that it takes 3 minutes and 13 seconds. That is exactly believable—talk to magistrates. That is the way it is done. There is no time factor in the courts; there is no question about that. If anyone wants to go to jail in this country, it is very easy to do it—just do not pay the fines. Lots of people make a business out of that. Therefore the BBC is an excuse. However, I fully accept that there is an underlying issue. The BBC staff have to up their game when they appear before Select Committees, but we have to bear in mind that at the end of the day there is a seductive and well funded attempt here to force the BBC to go to a subscription service. We ought to oppose that at every step of the way.
Lord Watson of Invergowrie
My Lords, I, too, support the proposition that Clause 59 should not stand part of the Bill. The arguments have been very eloquently made, in many cases by people who are broadcasting professionals of many years’ experience. Of course I have nothing to offer in that sense. However, I fear that this is largely an ideologically driven suggestion. Whether it is intended to end up with subscription fees or not, I do not know, but I believe that it was suggested to fundamentally weaken the BBC by those who, for whatever reason, are not supporters of the organisation. I firmly declare myself a very firm supporter of the BBC in its various forms—radio, television, and not least the World Service, which is a tremendous organisation; what it achieves with the money it has is superb.
I would like to know, if the Minister can say, how decriminalising non-payment would be likely to reduce the number of those who, for whatever reason, refuse to pay the licence fee. I understand that the figure is around 5% on an annual basis. How would decriminalisation be likely to increase the payment of the fee? I cannot see any way in which that would be likely; in fact, the very opposite is almost certain to happen.
The other aspect is that the clause mentions monetary penalties for those who do not pay the fee. I am sorry, perhaps I am missing something, but if someone does not pay the licence fee, how will a monetary penalty imposed for not paying it make it more likely that the fee itself will be paid? I do not see the point of that.
It worries me that the BBC has often been undermined, and not just by the present Government; I have to say that on many occasions my party, when in government, did not exactly hold back from undermining the BBC or attacking its integrity or that of some of its reporters, which I thought was at best unfortunate if not misguided. So I do not make this a particularly party-political issue, although we have the Government that we have for the moment. I very much hope that this time next year there will be another party in government, my party, and that we will be prepared to say that we will not go ahead with decriminalising this offence.
My final point is a word of warning to the BBC’s many supporters in this Room. I suspect that even those who are in favour of decriminalisation are supporters of the BBC. We have heard from a producer today, and that was very valuable. However, anyone who read Olenka Frenkiel’s comments in the Guardian last Friday must accept that there are still problems that the BBC needs to address if it wants to broaden and deepen its support. It needs to treat its female staff—I am talking not so much about presenters as about reporters—in a far better way. I was really taken aback by what Olenka Frenkiel had to say. I thought that recent cases had meant that the BBC had turned round, but it appears that in that respect it has not.
If decriminalisation does go ahead at the end of the review, it will not help the BBC. Those of us who treasure the BBC and what it does, and who want to allow it to continue as far as possible into the future in the face of some pretty fierce competition, need to support the licence fee, what it stands for and what it is used for. If that is what we are going to do, we have to ensure that as many people pay it as possible, and I do not believe that the suggestion in this part of the Bill would achieve that purpose. That is why I oppose it.
Lord Stevenson of Balmacara
My Lords, this has been a very good debate about a very important topic. It is important to pick up that this amendment, signed by all sections of your Lordships’ House, was also spoken to by every side of the Committee, and is therefore reflective of the difficulty that the Government might have if they were to take this matter much further. There would be considerable opposition to the overall concept implied by the two clauses here and strong agreement about the need to ensure that the arrangements that may come out of Mr Perry’s report should not be implemented until at least after 1 April 2017.
We have heard from those who work with and have worked with the BBC, and from those who just watch and absorb its activities. All the contributions were redolent of a feeling that we have created a national institution that is admired and loved widely, not just in this country, and one that, as has been pointed out, needs safeguarding. The words of the noble Lords, Lord Grade and Lord Stoneham, and my noble friend Lord Rooker, about the question of whether or not this is a stalking horse for a much bigger prize, the destruction of the financing arrangements under which the BBC is currently safeguarded—the use by the enemies of the BBC of a Trojan horse—rang true. We must be very careful as we go forward on this matter.
There is of course no objection to the review of the enforcement regime; it is a good thing. It may well be a solution in search of a problem and, as the noble Lord, Lord Grade, said, much is said here that is not accurate in practice. What exactly the offence is that has been committed, and how it is dealt with through the courts at present compared to how it might be dealt with in future, is a very technical issue. It will have wide implications but it is still at heart an issue that needs to be narrowed right down to the precise issue that is being questioned. It would not be wise or sensible to see the review as being something more widely about the BBC; it must be about the question of the collection of a fee for the receipt of broadcasting communications, not the funding of the BBC.
However, the implications of any recommendations, and whether they would generate more income or less as a result of the processes that would follow the review, have to be considered. Of course, it would be completely wrong for the Government to introduce a significant change before the start of the next licence fee period on 1 April 2017—whichever Government were in power.
Lord Gardiner of Kimble
My Lords, this has been a fascinating debate. On occasions it may have strayed to the merits of the BBC rather than the precise clause and amendment in question. But there is no harm in that because, as we all acknowledge, the BBC does extraordinarily good work across a range of issues of which our country can be extremely proud.
The amendment seeks to apply timing constraints to the implementation of any potential—I emphasise that they are potential—changes to the enforcement regime that underpins TV licensing offences. The Government have been very clear on the importance of these issues and of considering the efficacy, proportionality and fairness of the current regime. The amendments concerning TV licensing enforcement, as noble Lords will recall, received significant support, across all parties, in the other place.
As has been mentioned, the Secretary of State announced in September that the review of the regime would be commencing this autumn, and the terms of reference for the review were published and laid in the Libraries of both Houses on 21 October. The terms of reference clearly define the scope of this work. A review will be conducted into the enforcement regime for failure to have a TV licence, examining whether the sanctions are appropriate, fair and represent value for money, and identifying and assessing options for amending the current enforcement regime. It will not consider or assess the licence fee itself or broader issues or options for the future funding of the BBC.
As has been referred to by noble Lords, the review of TV licence enforcement will be led by an independent lead reviewer, David Perry QC. It will begin taking evidence this autumn, and Mr Perry will submit a report making recommendations to the Government by the end of June next year. The enforcement review will start gathering views and data this autumn and, as noble Lords would rightly expect, any findings and recommendations will be based on the best possible evidence.
These findings will then be presented to the Government. The Government have been clear that the findings of the review should be considered in the context of the charter review process, which will not begin until the next Parliament. The BBC charter review is the point at which the Government can consider all aspects of the BBC. As has been mentioned, the current charter runs out on 31 December 2016.
I emphasise that if the existing regime needs to be improved—we should make no presumptions about this until Mr Perry’s review has been able to complete its work and to report findings to the Government of the time—surely it does not make sense to apply any constraints that could hinder moving to a new enforcement regime; nor would any such constraint represent the best approach for licence fee payers, or the courts system. Having said that, and in light of the enforcement review now being in its preliminary stages, I must stress again that the Government are keeping an entirely open mind and look forward to the findings of the review, without any preconceptions about whether or when changes need to be made. It is right that the Government of the day must be free to consider the report when it completes in June 2015 and be able to act without unnecessary limitations at that point.
The noble Baroness, Lady Howe, mentioned Henry VIII clauses. If there were any changes to an enforcement regime under this clause, it would be afforded proper scrutiny in this House, as regulations would be subject to the affirmative resolution procedure. The noble Baroness and, I think, the noble Lord, Lord Watson of Invergowrie, referred to the impact on the revenue of the BBC should decriminalisation go ahead and result in reductions in BBC income. Any impact on BBC services will be examined in the review. I can of course make no assumptions as to the outcome of the review. We obviously want an open process which considers all options available to us and delivers for the licence fee payer. All those points clearly will need to be borne in mind.
Lord Stevenson of Balmacara
On the record, will the Minister be clear about my final question? I thought I heard him say that he felt that the outcome of the report should feed into the charter and licence review. In his current speech, he has clearly said that he does not wish to see the Government constrained in any way as to the timing of any changes, if there are any changes. Does that not fly directly against the commitment given when the 2010 licence fee settlement was signed?
Lord Gardiner of Kimble
I do not believe that it does. The Government obviously want to be in a position after the report to consider those matters. I have already said that those matters will play a part in the considerations of the charter review but we need to consider what the QC brings forward in his report. I do not think that it conflicts.
We believe that it would be inappropriate to apply a constraint to the timing of implementation of any potential changes to the existing regime and that it would be unnecessarily restrictive to inhibit any potential future changes to the enforcement regime, should the findings of the review lead the Government of the time to be minded to make them through specifying a date before which any change could be implemented. I emphasise that this is about a review of the enforcement. We make no presumptions about the possible outcome or findings of the review. As I have said, the Government have stated that the review findings will be considered in the broader context of the charter review. After June 2015, these matters will take some time but we do not think that there should be an artificial limitation on timing. On that basis, and with the reassurance that they are to be considered in the broader context of the review charter, I ask the noble Baroness to withdraw her amendment.
Baroness Howe of Idlicote
My Lords, first, I thank the Minister for his reply and all noble Lords who have spoken very passionately about what the BBC means to them, their colleagues in different parts of the organisation and the general public, with whom I certainly align myself.
I think we have heard from around the Room a clear feeling that people are very concerned that there is a conspiracy here. The Minister has done his best to reassure us on that point but that overview will remain in everybody’s minds. Quite clearly we will have to look carefully at what was said, especially by the Minister. However, I am fairly sure that this issue is likely to return and be considered at different stages of the Bill. With that point made, I am prepared at this stage to withdraw the amendment.
Lord Stoneham of Droxford
“Busking deregulation
(1) Omit paragraph 14 of section 54 of the Metropolitan Police Act 1839.
(2) Omit sections 32 to 44 of the London Local Authorities Act 2000.”
Lord Stoneham of Droxford
I rise in the name of the noble Lord, Lord Clement-Jones, who is unable to be with us today. I thought it might be appropriate to provide some musical accompaniment to this debate, but unfortunately I lack the skills to do that and speak at the same time.
Busking is an essential element of street culture in London and many cities. It is often the start of a major career. Eddie Izzard, for example, famously started his career on the streets of Covent Garden. As a leading busking campaigner, Nick Broad, once said:
“Street performance is one of the most noble ways that artists can earn a living: performance first, pay later, and only if you enjoyed the show. Making tips as a busker is a great alternative to making tips as a waiter or bartender: you get to practise, reach an audience and learn what people like about your show while earning a living. No managers. No PR. No cult of celebrity. No Facebook popularity contest. No latest gig app. No entrance fees. No service charges. No security guards or fences. No clever lighting. No razzle-dazzle. No fancy brochures or billboards. No sponsorship deals. No product placements. No middlemen. Just an artist and their audience”.
Live music and street entertainment can enrich a community’s quality of life and generate a positive atmosphere that can be enjoyed by many people. The Mayor of London, too, has rightly been fulsome about the place of busking in London life. Following the work of the mayor’s busking task force, the mayor has approved the creation of Busk in London and provided start-up funding. Together with more enlightened London authorities and busking campaigners, we are well on the way to agreeing a new busking code as a way forward in London, building on the experience in Liverpool. The aim is to implement the busking code of conduct in agreement with the London boroughs and other cities across the UK, to create an interactive map of London’s busker-friendly locations, to pilot the website and to secure continuing funding and sponsorship over the coming six months.
Despite this, not everyone is supportive. There remain great threats from inappropriate use of existing legislation. Therefore, this amendment is explicitly designed to remove Part V of the London Local Authorities Act 2000, which provides for busking licensing schemes at individual London councils’ discretion, so that the licensing of busking under that Act by a growing number of London councils is no longer allowed, and the conflict with the Live Music Act’s provisions on the playing of unamplified music in London is ended.
Camden, under the London Local Authorities Act, has banned street music at any time, amplified or unamplified, except through a special busking licence. The breach carries a fine of up to £1,000. Camden’s approach runs counter to the arguments heard and accepted by government and Parliament during the Live Music Act debates.
We should also remove Section 54(14) of the Metropolitan Police Act of 1839, which was recently used against buskers in Leicester Square. The noble Lord, Lord Clement-Jones, has explained that the King’s Parade, the winners of the mayor’s busking competition, were interrupted by the police mid-song as they performed in Leicester Square and informed that they were in breach of Section 54 of the archaic 1839 Metropolitan Police Act. They were bundled into a van by eight officers and held at Paddington police station for more than six hours. This 174 year-old piece of legislation—which, incidentally, also prohibits kite flying, sleigh riding, doorbell ringing without excuse, causing mischief to cattle, rolling hoops on footways and distributing profane songs—was used to justify the arrest.
Lord Rooker
My Lords, I think that there is only one other person in the Room who sat through three months of the draft Deregulation Bill. I want to make a suggestion to the Minister that he can answer when he comes to reply to that very powerful speech. Given the amount of legislation that we have just had recited to us that is up to date and modern, why has this issue not yet been referred to the Law Commission? We know that there has been a bit of a problem between Ministers and the Law Commission; that was self-evident when we took evidence from both parties about the reform and updating of legislation. Part of that is to do with deregulation, part of it is modernisation and part of it is legislation that is allegedly of no further practical use—there will be a debate on that next week. In this case, though, bearing in mind that we do not make substantive decisions in Grand Committee, what is the reason why the issue cannot be referred to the Law Commission?
Lord Gardiner of Kimble
My Lords, I thank my noble friend for his amendment. The Government are clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people. Regrettably, though, street entertainment can sometimes be a source of conflict between buskers, businesses and residents. Complaints of noise, nuisance and anti-social behaviour can arise, and police and local councils have to respond and try to find solutions.
The Government do not start from the position that busking requires regulation and control. Busking should be about freedom of the individual, and only if necessary should local action be taken to curb certain excesses. To answer the noble Lord, Lord Rooker, although I am still waiting for some advice, there is actually no general legislation on the subject of busking but local authorities can have policies on it, including codes of conduct or permit regimes, and occasionally by-laws and local authority legislation, such as the London Local Authorities Act 2000. That Act enables London councils to license busking. Indeed, it is a matter for London councils to determine whether or not they utilise these powers.
The amendment proposes that a government Bill should seek to overturn private legislation promoted by London local authorities and passed by Parliament. If we were to accept the amendment, the Government would indeed be saying that London councils should not have the option to decide whether or not to license busking based on local circumstances. Indeed, we feel that this is not a subject for top-down government solutions; it is for local authorities to determine fair, reasonable and transparent policies in relation to managing our streets.
As far as the Metropolitan Police Act 1839 is concerned, while Section 54(14) is rarely used, the Metropolitan Police need to retain the provision to give their officers the tactical option of dealing with what they have called “busking-related offences”. We are seeking to strike a balance between freedom to busk and having to control nuisance caused by persons with no musical intent.
Lord Deben (Con)
I have often had discussions with the Metropolitan Police. I find the phrase “busking-related offences” precisely the kind of comment always made when you are suggesting that things might be changed. Perhaps the Minister could describe a “busking-related offence” that is not covered by any other legislation.
Lord Gardiner of Kimble
My noble friend always intervenes to engage the Committee in important issues with his own touch. It is important to say that I know what he is saying but that, at the same time, if the Metropolitan Police need to have the ability to ensure that they have some means by which they can have assistance as regards a certain possible alleged assistance, for all the cynicism that there may be about the Metropolitan Police, we have to place our trust in them.
Lord Paddick (LD)
My Lords, as a former Metropolitan Police officer of 30 years’ experience, I cannot think of any offence that a busker might commit that is not covered by other legislation or requires the use of the Metropolitan Police Act.
Lord Gardiner of Kimble
Of course, I am receiving advice from the current Metropolitan Police, but I very much take on board what my noble friend of very considerable experience has said to the Committee. We are trying to seek a balance between the freedom and the need to control. I still think that if the police are telling us that for operational reasons they need a specific power, it is reasonable and sensible to listen to them. However—I emphasise the word “however” as we are seeking to strike a balance—in saying that the Metropolitan Police have recognised the need to strike the right balance between protecting the public, law enforcement and not restricting reasonable behaviour and activity, the police have said that they recognise the concerns with the recent arrest of members of the King’s Parade band in Leicester Square, for instance, and have taken steps to ensure that their policing response is proportionate and that officers use their powers appropriately. They have indicated:
“Officers in the West End have been advised that they should not be pro-actively using the Metropolitan Police Act 1839 legislation to deal with busking as it is not an offence per se. Officers have been advised that they should engage with those busking if there is a particular issue and deal appropriately. The expectation will be that individuals will not be arrested under this act, unless it is the only available tactical option.”
I would say to my noble friend Lord Deben that, ultimately, the Metropolitan Police wish that this may remain available as the only tactical option that they might have in their locker.
We believe that this is a sensible approach that will ensure that all types of street entertainment are able to thrive and will minimise the need for the use of powers designed to deal with crime, disorder and anti-social behaviour. I hope that my noble friend will accept that the Metropolitan Police have a desire to retain necessary powers. The impending introduction of the code of practice for buskers across London, to which the Metropolitan Police are contributing, will help to preserve good relations between buskers, councils, the police and local authorities. At the end of the day, all of us very much seek to achieve good community relations. I trust that these factors, as well as the Government’s clear support for buskers and street entertainers, are sufficient to address the concerns.
The noble Lord, Lord Rooker, referred to the Law Commission. My understanding is that if legislation is still in use, it is not appropriate for the Law Commission to deliberate on it—but I will reflect on what the noble Lord has said and I might come back to him on that matter.
Lord Rooker
This is the issue that was before the Committee: there are different functions. The commission can look at legislation that might be of no practical use. There is some of that in Schedule 20—none of which was looked at by the Law Commission, I might add; it was dreamed up by civil servants. However, it will also look at modernising legislation. On the basis of the speech given by the noble Lord, Lord Stoneham, the legislation needs modernising, because all the offences are covered by more modern legislation than the 1839 legislation to meet the modern day. So the commission is quite capable of looking at modernising legislation as well as considering legislation that is no longer in use. That is a separate function of the Law Commission.
Lord Gardiner of Kimble
My Lords, I hope it might help the noble Lord, Lord Rooker, if I say that I will specifically make known to my colleagues the observation that the noble Lord has made. However, on that basis, I hope that my noble friend will be prepared to withdraw his amendment.
Lord Stoneham of Droxford
I thank the Minister for his support for busking. I also liked the unexpected but welcome support from the noble Lord, Lord Rooker, and my noble friends Lord Paddick and Lord Deben. Police never willingly give up any powers, and it is a matter for politicians, not the police, to balance freedom and law enforcement. I will withdraw the amendment, but I am sure that my noble friend Lord Clement-Jones will want to return to this at some stage, either in this legislation or in future.
Lord Grade of Yarmouth
“Copyright in broadcast-
Omit section 73 of the Copyright, Designs and Patents Act 1988 (reception and re-transmission of wireless broadcast by cable).”
Lord Grade of Yarmouth
My Lords, I first went into broadcasting in 1973 and remained in and out of it over a period of some 40 years. While all around me the industry changed at a breathtaking pace in terms of technology, industrial practices and the ambition of programme content, one thing remained a constant throughout and remains so today—the inability of legislators to keep up with the changes in the sector. I believe that there is an old saying in Whitehall: “Nothing endures like the temporary”. What we have before us today is exactly such a case, which absolutely proves that aphorism.
This clause we are seeking to abolish sits in the 1988 Act and was designed to stimulate in an analogue world the advance and competitive regime of the cable industry. It was deemed at the time that the dominance of the public service broadcasters—I think there were only four channels at that time—would put them in a position to wreck the fledgling cable industry by demanding ridiculous terms in return for carrying the services. Therefore it was a necessary market correction at the time.
That was 1988. We now have I do not know how many possible channels—hundreds and hundreds. The public service broadcasters, who are commercially funded and free-to-air by advertising, are seeing their market being chipped away at by the online market, which is growing at breakneck speed. I can see no reason whatever why the cable and satellite gatekeepers should profit, through this legislation, from the efforts and the investment made in the British creative industries by the public service broadcasters. This is utterly anomalous and belongs in the days of valves and steam radio.
It is interesting to take note of the United States, which has a very developed television market that has a mixed economy of free-to-air, cable and satellite. We have rapidly caught up with that market; I suspect that we in the UK have as developed a market as the United States has. The carriage fees are at the heart of the 1988 Act; we are trying to establish that satellite operators and cable gatekeepers should pay a commercial rate for carrying the public service broadcasters’ services. In the United States, this is common practice and produces some $3.3 billion of revenue each year for those who are investing in content. Among the happy recipients of those carriage fees is Fox Broadcasting, a division of News Corp, which is one of the largest shareholders in Sky, which over here is objecting to the idea that it should have to pay carriage fees—some mistake here, I suspect. This cannot be right.
We have before us a Deregulation Bill, which is the perfect vehicle for getting rid of this anomaly and making sure that the return that is due to those who invest in British content in the UK is forthcoming and that the market is not inhibited by an outdated measure in the 1988 Act that was designed to stimulate a completely different market. It is now penalising the PSBs.
I imagine that one of the biggest gatekeepers in this country, Sky, will say—as indeed I think it has said—that if you are going deregulate on carriage fees and allow commercial negotiation between the public service broadcasters and Sky for it to carry programmes that the BBC and, most particularly, ITV, Channel 4 and Channel 5, provide, it should be coupled with deregulation of the electronic programme guide, where prominence is an important issue for broadcasters. This is a nice diversionary tactic. While you could possibly say that it comes under a generic term of deregulation, putting the regulation of Sky’s EPG on the same footing as exploiting the investment of British public service broadcasters and failing to allow negotiation of a fair price for carriage are two very different matters. Let us not forget that Sky is a dominant player and gatekeeper—it has some 50% of the market and is in more than 10 million homes now. It has done an amazing job and created new funds to be invested in broadcasting in this country through subscription. However, it is also a service provider—it has its own channels—so there is an innate conflict in being a dominant gatekeeper and a service provider. So it needs to be regulated.
The public service broadcasters have considerable benefits for viewers imposed on them through contract: I am thinking of regional news, prime-time news and all kinds of things that are not commercial that they are required to do in return for their broadcasting licence. In return for doing that, they get some value from the due prominence provisions on the EPG. That is very important not least at the nations and regions level, where nations and regions news is under tremendous pressure from the economics of advertiser-funded broadcasting, which continues to be under threat. So I hope that the Government will not fall for the three-card trick of trying to couple the EPG argument with the deregulation of this section of the 1988 Act.
I look forward to hearing what my noble friend the Minister is going to say in trying to offer some arguments—I struggle to think of any—in favour of not repealing this section. However, if the Minister needs one more argument—just to make sure that we have the full set—I refer him to the fact that, as I understand it, the European Commission has opened a formal infringement procedure against the UK Government, on the basis that Section 73 of the Copyright, Designs and Patents Act 1988 is incompatible with EU law. A formal letter has been sent to the UK Government informing them of this, although so far it is only available to the UK Government. There is, therefore, a serious issue about whether this is compliant—and I can feel the answer floating behind me from the subs’ bench on to the field of play. I look forward to hearing the answer.
It is time that this was booted into touch. Legislative opportunities to repeal creaking, outdated and damaging legislation—as it has transpired—come along very rarely indeed. This is a perfect opportunity to show that the Government are supporting the creative industries and making sure that there is a fair commercial marketplace between the public service broadcasters and the new providers, the new distributors—the cable companies and satellite companies. I look forward to what my noble friend the Minister has to say in support of this creaking anachronism.
Viscount Colville of Culross
My Lords, I put my name down to support Amendment 80 because I believe it is in keeping with the spirit of this Bill, which is to strip away regulation and to open up commercial activity—in this case in the television market. The noble Lord, Lord Grade, has explained the restrictions on public service broadcasters created by this antiquated section. The Secretary of State for Culture, Media and Sport acknowledged this in his RTS speech in September, when he said:
“I will be taking a long, hard look at the balance of payments between broadcasters and platforms … I still want to know whether the amount of regulation around these transactions is really necessary”.
He went on to ask:
“Can we take government out of what should be a private matter between two private companies?”.
The broadcasting of PSB channels on Virgin Media draws in extra viewers, adding to the number of subscribers to the platform. However, Virgin does not reinvest in original British content. Obviously it is doing very well from this arrangement. It is charging its subscribers extra for a new set-top box to record viewers’ favourite shows. They are signing up in record numbers, not least to time-shift their viewing of programmes. ITV estimates that 40% to 50% of viewers record its top-value drama programmes, such as “Downton”, and watch them at a later date. Virgin's new set-top boxes even go on automatically to record viewers’ favourite programmes. Not only does Virgin make extra revenue from this service but the commercial stations increasingly lose advertising revenue from the use of these set-top boxes. Guess what, my Lords: when you have a pre-recorded programme, you whizz through the adverts. So the commercial impact—a major source of revenue—is severely diminished.
The absurdity of this arrangement is revealed by the fact that even though the main channels, ITV1, Channel 4 and Channel 5, cannot charge retransmission fees, their digital counterparts, ITV2, ITV3 and ITV4, and E4, can do so, with great effect. If this amendment becomes law it will open up the regulatory system for the negotiation of retransmission fees, not just for Virgin Media but also for other platforms, such as Sky.
Ofcom has in place a regulatory framework left over from the rollout of digital television. It means that the emphasis is on the value of the programme content for Sky and the platforms rather than for the content providers. Surely that should be redressed at a later stage, but your Lordships need to repeal Section 73 first, which will pave the way for a level playing field between the content providers and the platform operators.
It is hard to say how much revenue will be generated for the broadcasters, but the latest report by Morgan Stanley reckons it could provide between £50 million and £100 million in revenue. Those are very disparate figures, but they give us a clue to the huge sums in play. There are clearly concerns that this extra money will go straight into the profits of the broadcasting companies. However, in the MacTaggart lecture this August, David Abrahams, CEO of Channel 4, said:
“I commit, here and now, that Channel 4 will reinvest all of the proceeds of a fair deal back into commissioning more original UK content”.
Commercial television is a very competitive market. If one channel invests in content and the others do not, they will start losing viewers and market share to their rivals.
Lord Macdonald of Tradeston (Lab)
My Lords, I, too, support Amendment 80, which would repeal the outdated Section 73 of the Copyright, Designs and Patents Act 1988. As my noble friends have already argued, Section 73’s impact on UK television is negative; they have outlined some of the areas in which the provision is damaging. I am concerned about the effect it is having on the commercial public service broadcasters’ spending in the regions. I speak from experience of working for Granada in the north-west of England for 18 years.
The commercial public service broadcasters play a significant role in the English regions, as we have just heard. We have only to consider the very substantial presence they now have at the creative hub of MediaCityUK in Salford. The largest commercial public service broadcaster, ITV, also has other regional bases, such as its studios in Leeds. In fact, ITV employs nearly 1,300 people in the north and its recent capital investments in the north total nearly £50 million.
As well as the English regions, there are the nations of the United Kingdom—Scottish Television in Scotland, Ulster Television in Northern Ireland and the considerable activity in Wales of not just ITV but S4C—which are equally important to what is going on in the English regions and indeed, in terms of cultural identity, probably held in even higher regard in the nations. But it is not about just the broadcasting bases in the nations and the regions. The commercial public service broadcasters are responsible for huge investment and production outside London across the UK. Both ITV and Channel 4 have public service obligations which require that at least 35% of their original programme spend and volume of programming should come from outside the M25. Both exceeded their targets, with ITV reaching 47% and Channel 4 making more than half.
The money that the commercial public service broadcasters invest in the regions has a multiplier effect on the regional creative industries. There are many examples of people working in television in the regions and also working in theatre or film in the same areas. When I was at Scottish Television for 13 years, I saw that as a very decisive factor in the activities that were going on north of the border. The production investment also boosts the wider regional economies, contributing to their economic growth. At a time when we in Parliament are talking about greater devolution to the nations—and now also to the regions of England—which are not well represented on screen, this becomes an important factor.
Some of the regions of England have been marginalised by the metropolitan and international programming that dominates our multiplying satellite and cable channels. I want to enhance the prospects of seeing programmes that reflect the different regional cultures on television. I also want to see strong regional economies where the commercial PSBs can continue to make a full return on their successful content investments. I therefore support this amendment to repeal Section 73. It cannot be right that the commercial public service broadcasters that invest so much in the regions effectively are subsidising Virgin Media. It is owned by the multinational US company, Liberty Global, which makes very little investment as far as I can see in the UK’s creative industries. I therefore urge the Government to accept this amendment.
Lord Holmes of Richmond (Con)
I support the amendment. It is a privilege to speak among such broadcasting colossi. Having grown up in the Midlands when Lew Grade was running ATV, the name Grade lasts long in my memory. Similarly, the noble Lord, Lord Macdonald, presenting “What the Papers Say” gave me my first glimpse into current affairs and an interest in politics. I hope that it will help your Lordships if I start with some clarification of what my noble friend Lord Grade said at the beginning of his speech when he spoke of stimulating cable—I believe that this had nothing to do with the right honourable Member for Twickenham.
Lord Holmes of Richmond
Work with me. This amendment is incredibly straightforward. It goes to the heart of one question: why should terrestrial television in the United Kingdom subsidise Sky, Virgin and other providers? More significantly, why should we as taxpayers put money into the pockets of the owners of those companies? As a nation, our terrestrial television is some of the best in the world, of which we should be rightly proud. We have brilliant drama, fabulous sport and exceptional television across the piece. Just look at what Channel 4 did with the Paralympics in the summer of 2012. For me, it is no more complicated than that. It is an out-of-date clause. One can see why it existed way back when. Now the Deregulation Bill gives us the right opportunity to wipe it out. We should all accept this amendment.
Lord Black of Brentwood (Con)
My Lords, I very much support this important amendment. Although I have no direct involvement with the broadcasting sector, I should draw attention to my media interests in the register. This debate and this amendment impact on the creative economy and the wider media, particularly in relation to news provision. As we have heard, the pace of technological change across the whole of the media is breathtaking. It is relentless and punishing. It is difficult enough to plan for even one month ahead sometimes, let alone one year. As my noble friend Lord Grade said, we need to look very carefully and very warily at legislation binding the media that is 26 years old and is, to all intents and purposes, from a bygone age, especially where it has implications for jobs and investment.
Where legislation is out of date—Section 73 of the 1988 Act clearly is—it should go. If ever I saw a piece of law that should be put out of its misery, it is this one. That is why the debate on this amendment is so important. Central to it is the health of our public sector broadcasters, who are, in turn, crucial to the sustainability and vibrancy of the whole creative economy. These commercial PSBs have a number of important public service obligations, including obligations to broadcast high levels of original content; significant quotas for spending outside London, as the noble Lord, Lord Macdonald, made clear, and on independent production; and the provision of national and regional news services and current affairs.
We had glimpses earlier of the fact that the UK is fortunate in having such a PSB system that guarantees the provision of well resourced, independent and impartial news from the BBC and the commercial PSBs—ITV, Channel 4 and Channel 5. All the evidence shows that viewers expect and benefit from effective competition between providers of TV news at national and regional levels. In the regions, ITV is the only competitor to the BBC and provides services to 16 different regions, including the Scottish Borders, as we have heard, ensuring that viewers across the country receive a relevant and local news service. Regional news is important, not only because it helps to keep people informed about local events but because it is a hugely important part of the UK democratic process.
That is why the amendment is important, and why we need to do everything we can to defend the system. To do so, though, we need to be clear that PSB needs to be commercially successful. There are two keys to that. First, the PSB framework has offered the direct benefit of access to the digital terrestrial television spectrum and an appropriately prominent position on the EPG, as the noble Lord, Lord Grade, said. These benefits are crucial to the continued viability of regional news in particular, which is very expensive to make. Without that direct benefit, it is very doubtful that high-quality regional TV news would be viable commercially.
Secondly, the ability of the commercial PSBs to earn a return on investments in original UK TV content is massively important. It is the commercial PSBs that offer by far the most watched news services in the UK after the BBC, at no cost to the taxpayer, and those services depend on continued commercial success in a wide variety of genres of programming.
I support the amendment because I care about our PSB system and the role of news within it. It is more important than ever that the commercial PSBs can make a successful return on their investments and retain their ability to sustain this hugely important public service. Section 73 of the Copyright, Designs and Patents Act 1988, which was designed in a bygone analogue era, is undermining the PSB system and, in turn, damaging the wider creative economy. I hope that my noble friend will have listened to the arguments and that the Government will consider accepting the amendment.
Baroness Ford (Non-Afl)
My Lords, I, too, support this amendment, which was so ably moved by the noble Lord, Lord Grade. I declare my interest as chairman of a commercial PSB company, STV plc, which of course operates the Channel 3 licence in Scotland.
As almost all the speakers have said, the amendment focuses on a change that is very long overdue. For many years, the current arrangements for television platform access have been wholly inappropriate to secure the continued investment in original content made by all the commercial PSB operators in the United Kingdom. I, too, urge the Government to develop a commercial and market-orientated solution that recognises the real value of this original content to the pay TV operators. The amendment presents a golden opportunity to effect that change. Often throughout my career I have heard Governments say, “We recognise a need to change but we do not readily possess the legislative vehicle to effect it”. That is not so in this case. By repealing Section 73 of the 1988 Act, this time the change could be very readily and swiftly achieved.
In support of the amendment, I offer additional points to reinforce some of the important points already made. I particularly emphasise that the current legislative framework that determines television access arrangements between channel operators and pay TV platforms is, as everyone else who has already contributed has said, totally outdated, completely inappropriate and biased in favour of pay TV platforms. We have reminded ourselves, and the Government must be clear on this, that, as the noble Lord, Lord Grade, said, the current arrangements, based on legislation set out in the 1980s, had the necessary aim at the time of encouraging the rollout of the cable network in the UK to challenge the analogue monopoly that existed at that time. However, the current landscape is totally unrecognisable from that time, and legislation has simply not kept up with industry changes. Sometimes I think at my board meetings that we have enough trouble keeping up with industry changes, so it is not surprising that legislation struggles to keep up. However, here is an opportunity.
For example, the online providers and aggregators of content are using the lack of clarity in the legislation to exploit the content of public service broadcasters in an online environment. This was simply not foreseen at the time of the original legislation. Indeed, the real and potential value of original content was not properly understood at that time, probably by any of us. No one makes that mistake now. So long as commercial PSB operators carry a must-offer obligation within their licences and pay TV platforms retransmit PSB channels without any charge for carrying that content, the net result is that the PSB channel operators suffer a net outflow of value which, as other noble Lords have said, is subsidising large pay TV platforms. This has to change.
Lord Stoneham of Droxford
My Lords, the main arguments have been made in favour of these amendments but I have just one or two points to make. We have to remember how the growth of pay TV is such that its revenues now hugely exceed those of our public service broadcasters. Sky TV’s revenues are more than twice the BBC’s, which gives it huge power. The Government are considering a review of licence fee collection, but are not prepared to accept some changes to this Bill along the lines of this amendment. Why on earth are they not prepared to have a review or consultation on the proposals which stand in this amendment—and the sooner the better?
Lord Deben
My Lords, I believe that my noble friend will realise that my earlier intervention had a degree of mischievousness to it, as I had come in specifically to address this particular amendment. I do so for three reasons. First, sometimes we on this side of the House have been disappointed with the Deregulation Bill, because quite a number of things have been deregulated that really do not seem to have been very important. There has been a tendency to add up the number of things that we have got rid of. On one occasion my noble friend had to justify the removal of a statutory right from someone who was still able to exercise it voluntarily—not, I thought, one of the biggest things that we have ever done in government. I am particularly concerned that when we have an opportunity to make a change that is really worth while, we should do it.
The second reason for my concern is that sometimes one of the ways you can judge the validity of a proposition is to see who opposes it. For much of the time in my period in the House of Commons, there were one or two Members on my own side from whom, when I knew they were in favour of something, I was almost automatically on the other side. I believe that that is true of both sides of the House: we all have bellwethers, who are always extremely useful if we have not quite grasped what is behind the issue. My noble friend’s characterisation of the dual position of Fox News is one that deserves considerable investigation. The reason that people do not want that is because they make money out of it. We therefore have to ask ourselves some very simple questions. Should they make money out of it? Is it in the public interest that they make money out of it? Is it money that could be better spent somewhere else?
That brings me to my third point. Torn aside from all the history, the phrases, the arguments and the discussions, this is a simple matter. We once had a different system, and we had different rules to deal with that system. The system has changed but the rules have not. Would it not be sensible to change the rules now that the system has changed? If there is a big reason for deregulation, and there are several, the biggest of all is that many Administrations suffer from the inability to get rid of good things when they become bad. You can go round the whole Continent of Europe and find all sorts of bits of regulation that were frightfully good at the time when they were put forward but which now get in the way of trade, make it more difficult for people to innovate, and distort the market.
I am not always known for my upholding of the free and unfettered market, mainly because most markets are neither free nor unfettered. However, I wish to say that here there is an obvious way in which a Conservative-led coalition can make the market freer. In those circumstances, seeing as it appears to have the support of the Opposition as well as that of its coalition partners, there is not much reason for saying that this is not a sensible amendment. I therefore hope that my noble friend will find it possible, if not to give way on this occasion, at least to indicate that he has every intention of giving way at a more amenable moment, but before the Bill passes.
Lord Dubs (Lab)
My Lords, I have enjoyed listening to the speeches on the amendment moved by the noble Lord, Lord Grade, who gave a very powerful indictment of the present situation. I do not know what the Front Benches will say to this.
When I was first in the Commons in 1979, a small Bill or measure was working its way through—I cannot remember what it was—and both the Front Benches were passionately in favour of it. I ended up in the Lobby, voting against it with friends, who said, “When both the Front Benches agree, we’d better all be careful”. I do not know about that. However, when Governments are in difficulty, our brilliant officials put forward a number of ideas or thoughts. One is to say, “Accept the principle, but not now”. That is pretty much what Governments do in order not to have to do anything. The other thing they could say to get out of it is, “Well, we’re going to have a review”, because that puts it all into the long grass. Or they can say, “This measure has other implications, and we’ve got to think about those”. Those are all stock excuses that the civil servants, in their brilliant and imaginative ingenuity, pull off the shelf and say, “Here, Minister; these will get you out of the mess you’re in”.
The Minister is in a bit of a mess, because people with far more experience in the industry than me have all united to condemn this anomaly, which, frankly, in logical terms, cannot be defended. I bow to the experience of many Members of this Committee who have far more media experience than I have. I served for a brief time on the ITC and for a slightly longer time on the Broadcasting Standards Commission, but we on the commission certainly did not deal with matters of this sort, so I accept that noble Lords here have far more experience in this than I have.
I suspect that the Minister will say that he accepts the principle, and then there will be a big “But”; I look forward to hearing that. However, we are in a ridiculous position if he does not accept it anyway. We have a brilliant creative industry in Britain; our television creativity is second to none. We are allowing it to be weakened by this anomaly, which dates back many years as a way of protecting a small and up-and-coming cable industry. The time has come to say, “No, there’s no point in this”.
We have to support our creative industries and, in terms of competition, have at least a semblance of a level playing field, which we simply do not have at the moment. We are allowing the public service broadcasters to subsidise the pay TV platforms, and surely that is not right in any approach to competition policy. In a normal situation, one would say that these things have to be negotiated freely between the parties and, where they cannot be negotiated freely because of anomalies, we should get rid of the anomalies. Good heavens, I am in the Labour Party and I am arguing for competition—what is going on here? What we do not want is this partly hidden subsidy.
Of course, as has been said, Virgin Media and Sky are willing to enter into such a process for the channels not covered by Section 73—in other words, ITV2, ITV3 and ITV4. It does not make sense even in those terms, any more than it makes sense in terms of what News Corporation is doing in the United States. There are many ridiculous defences of the present position and they just do not stand up at all. I would argue that Section 73 has outlived its useful life. It defies logic, it defies fairness, it defies competition policy and it might defy even the ingenuity of the Government to defend it.
Lord Stevenson of Balmacara
My Lords, this has been a very interesting and useful debate, again, on this topic. I say “again” because although when the noble Lord, Lord Grade, introduced the topic he said that he could not think of a more perfect vehicle for this amendment, he might like to reflect on the fact that we have had this argument before on four other occasions—this is the fifth time this issue has come up—and every other vehicle has also been seen as a perfect vehicle for this amendment. I rather suspect, although I would not wish to impugn any of his motives, that there are people on a mission to do a particular thing who are looking for any vehicle that comes along to hook their amendment to. That is not necessarily wrong, though; this is a complicated topic.
Section 73 is part of a very complex web of regulations that provides equilibrium in the UK broadcast market—at least it has done for some 28 years, as we have heard. Its focus is on consumers, who have of course already paid for public service broadcasting content through the licence fee or through indirect taxation, paying for advertising costs on the goods that they purchase. It is a question of whether or not the arrangements that were set up in 1988, not on a temporary basis, are still relevant today. It is important that among all the various vested interests that we have heard about today, the consumer interest is kept at the forefront of our thinking.
Obviously, Section 73 is an old clause. It was created when the cable industry was in its infancy. It is also true, as everyone has said, that the industry has changed a lot since then. It is interesting, though, that the reason why this suddenly became prominent in people’s thinking, and why it has been raised in three successive Bills that I have been involved in, is because of a case involving catch-up television that is still going through the courts and therefore perhaps should not be excessively commented on. The point is that the judgment in the first instance will have raised legitimate concerns about the use of Section 73 as a defence for retransmission of free-to-air channels online. That, of course, is radically different from any cable commitments or any negotiations that may take place between Sky, Virgin and others that are involved in this. It is right to have in mind that the reason why this has become so topical starts with that case, which is ongoing.
Of course we would say—wouldn’t we?—that the age of things does not necessarily determine whether or not they still have value, and attempts to delete old things just because they are old cannot give much comfort to Members of this House. Is this not perhaps another candidate for the Law Commission, about which we have heard? There is an issue of whether or not this measure is still relevant and perhaps needs to be reregulated. The right thing to do is to accept that there is a big issue here and to carry out the due process to get it to a point where it is considered by a review to ensure that it still delivers good public policy objectives and is good for consumers. I think that the findings will be very useful in understanding that better.
My understanding is that the Government have announced that they will carry out a review of how Section 73 might be amended. I hope that the Minister will let us know what progress has been made—
Lord Deben
Does the noble Lord notice that he is almost exactly paralleling the suggested answer that was given to him by his noble friend Lord Dubs? I respectfully say that it is supposed to be Ministers who listen to the civil servants giving them those ideas; I thought it was the Opposition who were supposed to get out of that and be free to be able to say, “Well, we may have got it wrong in the past but perhaps we are now on the side of the progressives who have been so far putting forward this case”.
Lord Stevenson of Balmacara
I am always grateful for comments made by the noble Lord, Lord Deben, whose expertise and knowledge are legendary in this House, but, of course, prospective Ministers might also be wise to think about what civil servants are advising.
Lord Macdonald of Tradeston
On the question of our perhaps not discussing this matter because it has been in the courts for some four years already, is my noble friend aware of the Interpretation Act 1978, which speaks of this very issue? It provides that,
“where an Act repeals an enactment, the repeal does not … affect any investigation, legal proceeding or remedy”.
Just to rub in the irony, when the copyright Act came in, in 1988, it was despite related ongoing legislation at that time.
Lord Stevenson of Balmacara
I am not as well briefed as my noble friend Lord Macdonald, but it is also true that the Digital Economy Act suffered from similar problems, which have not allowed it to emerge from the purdah in which it has been placed.
As I was trying to explain before I was accused of being too craven towards the Minister, which is a very unlikely position for me to be in, if a review is already ongoing then we should at least do the decent thing and wait for that. I think that the review will be forthcoming and give us the results.
I still worry about whether we are being told the whole story about this. The noble Lord, Lord Grade, the noble Viscount, Lord Colville, and other noble Lords have suggested that we could expect savings from this area; figures of about £100 million have been mentioned. If that were reinvested in British original content, that must be a good thing—there is no question about that—but what exactly would we see for it? Where has anybody specified in detail what that would be? It would be helpful to have some knowledge of that. Would it be more children’s programming or regional programming, better local news or better investigative work? We do not see quite so much of that as we used to on the commercial channels, and they have PSB ratings and should therefore perhaps be expected to move up to the mark. They need to be a bit more forward about that. I say this because, in September, media analysts at the Bank of America said on this issue that an extra £100 million of revenue for ITV could add about 15% to profits and could be worth 40p a share. I am not saying that that is what is driving this issue, but we might wish to bear it in mind.
I am sure that this issue needs to be resolved. We need a review, which I think has started. It is not right simply to put down an amendment at this stage. We should do this in a proper process, and I hope that the Government will push ahead with their review.
Lord Gardiner of Kimble
My Lords, I thank my noble friend for his amendment, because it has enabled a fascinating debate, the basis of which, I think, is that we all care very much about the creative industries and the public service broadcasting channels. They are of enormous importance to our national life, and there is so much to be done in terms of the economic benefit that they bring to our nation. So the Government come to this with that very much in mind.
Section 73 permits the retransmission on cable of the main public service broadcast channels—it is important to say to my noble friend Lord Holmes of Richmond that Section 73 applies only to cable and not to satellite platforms. The effect of it is that public service broadcasters are not able to charge cable operators for retransmission of their services.
Section 73 is part of a much wider framework that supports the availability of TV and investment in television programming in our country. A variety of rules and regulations affect the production, availability and the ease of discovery of PSB programming and its relationship with the different platforms—cable, satellite and digital terrestrial television—that carry it. These include the obligations on PSBs to offer their content to all relevant platforms, the rules governing payments by broadcasters for “technical platform services” and the powers for regulators to compel these services to carry PSB content, as well as Section 73. This is an area where many competing interests are at large and must be balanced; namely, those of broadcasters, platforms and, of course, viewers. The Government believe therefore that we should not abolish Section 73 without exploring these interactions within the wider framework of regulation that impacts the balance of payments between platforms and PSBs. That is precisely the approach the Government propose to take.
The noble Baroness, Lady Ford, referred to the Culture Secretary, who has already announced that the Government are going to look at whether the time is right to remove Section 73 of the Copyright, Design and Patents Act, which could allow PSBs to invest more in high-quality content. We believe that, rather than doing so in isolation, we will look at this in the wider context. I am very conscious that now when I think of the noble Lord, Lord Dubs, I must think of “But”. I know that noble Lords would like the Government to accept this amendment, but we think that it is not sensible to do so in isolation. More work needs to be done and we will examine the framework of regulation that governs the balance of payments between broadcasters and platforms. The Government will examine whether the amount of regulation around these transactions is really necessary.
I should perhaps say to my noble friend Lord Grade that my understanding is that the Government are wholly satisfied that this section is consistent with EU law, but I do not think that I can say much more than that at this moment. A number of noble Lords, including the noble Lord, Lord Stevenson, my noble friend Lord Deben and, in particular, my noble friend Lord Stoneham mentioned the Government’s intentions. They intend to consult by early next year on a proposed approach to Section 73 within the broader framework of the balance of payments debate. We think that that is the right way, given the fact that this matter has complexity. It is not as straightforward as just saying, “Away with this section”. There are intricacies and we need to look carefully at the impact on regulation relating to the must-offer obligations of the PSBs and the must-carry requirements on pay-TV platforms. That is the position and we want to get it right.
I understand that the noble Lord, Lord Dubs, will add another category to his “But” point, but it is for those reasons that I hope that noble Lords will feel that work is about to be put in hand on this area. The Culture Secretary and the Government are serious about ensuring that the work is thoroughly and properly done. For those reasons, I would ask my noble friend if he is prepared to withdraw his amendment.
Lord Grade of Yarmouth
I am grateful to my noble friend for that response. As a long-term Charlton Athletic supporter, I have sympathy for the underdog on any occasion. Given the score here today—an unexpected own goal from the Opposition Benches, but there you go—there seems to be a widespread body of strong opinion in terms of the list of obfuscations and get-out-of-jail-free cards alluded to by my noble friend Lord Deben and as regards trying to complicate the issue in order to avoid it. It is not a complicated issue.
The noble Lord, Lord Stevenson, alluded to public interest and talked about the shareholders of ITV, Channel 5 and so on. I do not know about the figures but if £100 million is sitting somewhere, would he rather that money went to News Corp and Liberty Media than to the shareholders of British companies who control the purse strings of what gets invested under the obligations of their licences to broadcast? I was really shocked by that comment.
Lord Stevenson of Balmacara
If the noble Lord is going to play that game, he must add another one to his list: make an outrageous suggestion which he could not possibly say no to and then ask him to respond.
Lord Grade of Yarmouth
I think that we need to move on. This is a very simple matter which does not need to be complicated in reviews. I am very disappointed that the Government seem determined to let this legislative bus pass by without getting on it and correcting what is clearly an anomaly, an action for which there is widespread support across the House.
In the end, it is a simple matter. If you believe in a free market, in investment in the UK creative industries, in support and competition in regional and national news, and in stimulating employment in areas of the United Kingdom other than London, then the commercial free-to-air broadcasters need to get a fair return, not an unfair return, on the investment and the risk that they take on investment in British production. This section alone prohibits them by law from getting a fair return on their investment. It seems a great shame that a Government who I support and who believe in a properly regulated free market do not seem able to accept the arguments that have been put today from all sides of the Committee. I am sure we shall return to this matter—I look forward to returning to it—and I beg leave to withdraw the amendment.
Lord Mancroft
“Changes in mandatory conditions of lottery operating licence
(1) Section 99 of the Gambling Act 2005 is amended as follows.
(2) In subsection (2), after “at least 20% of the” insert “aggregate annual”.
(3) In subsection (3)(a), for “£4,000,000” substitute “£10,000,000”.
(4) In subsection (3)(b), for “may not exceed £10,000,000” substitute “is unlimited”.
(5) In subsection (4)(b), for “10%” substitute “50%”.”
Lord Mancroft
My Lords, usually when one introduces an amendment in Committee there is a vague prospect that other Members of the Committee will have some familiarity with the subject, having sat through Second Reading and other days in Committee. However, we have already had a gallop through BBC funding, busking regulation and copyrights for broadcasting, so it would not be unreasonable for me to assume that not everybody in Committee this afternoon is intimately familiar with the details of lottery regulation.
I declare an interest as president of the Lotteries Council, which is the trade organisation that looks after 440-plus organisations, most of which are charities or non-profit-making sporting organisations that promote lotteries in this country. The collective revenues are about £350 million a year and they donate, provide or raise for their charitable organisations about £155 million a year, which is quite a significant sum.
Most noble Lords will probably have come across the National Lottery. However, I will forgive them if they have not all come across society lotteries. Society lotteries were introduced following the Rothschild commission on gambling in 1968, which was followed by the Lotteries and Amusements Act 1976, which provided the regulations by which charities, known in law as societies, could raise money for their activities by running small lotteries.
As have many things in this world, they have developed over the years since 1976. There was a significant change in lottery law in this country with the advent of the National Lottery in 1994, after the Bill became law as the National Lottery etc. Act. At that stage your Lordships agreed half a dozen small amendments, not dissimilar to those I am proposing today, to change the 1976 Act to protect society lotteries from the might of the proposed National Lottery. I am delighted that the Government agreed to those amendments, which I had the honour to propose in Committee in your Lordships’ House in the summer of 1994. My noble friend Lord Astor was the Minister who was sitting where my noble friend Lord Gardiner is sitting now. I am delighted that the Opposition strongly supported what we were trying to do then and I hope that they will do so now.
I will not go into all the detail but Amendment 81 proposes five small changes to the regulations. The first one is really the preamble and need not particularly concern us. Subsection (2) of the proposed new clause is in relation to the amount of money that society lotteries are obliged by law to give back to the promoting charity. That has consistently been 20%. However, it is quite difficult for some of the smaller charities when they are starting out to maintain that, and my suggestion is that that 20%—which is quite right, and of course it is the primary purpose of lotteries to raise money for their good causes—should be aggregated over the year rather than in single lotteries. If your Lordships think that amount is too low, it is worth remembering that in the last year for which figures are available, 2012-13, society lotteries actually provided 48% to the societies that were promoting them, significantly more than the 20%. This is just to protect those in start-up when their costs are at their highest and it is more difficult for them. They may not all make use of it but it would be an important change.
Lord Low of Dalston (CB)
My Lords, I am grateful to the noble Lord, Lord Mancroft, for outlining the background to this amendment and the reason for it with such admirable clarity, born of the great experience that he has in this field. As a former chair and now vice-president of RNIB—which interests I declare—I put my name to the noble Lord’s amendment because I have had first-hand experience of the restrictive effect of the current regulatory regime for society lotteries on the charity’s fundraising potential, which I thought it relevant to place before the Committee in its consideration of this amendment.
Society lotteries are minnows by the side of the National Lottery but are nevertheless a useful tool in the fundraiser’s tool-box. They could be an even more useful tool if they were freed from the restrictions and red tape which the noble Lord, Lord Mancroft, talked about and which significantly hobble fundraisers who seek to use society lotteries to maximise their income.
RNIB currently runs two society lotteries: one for RNIB itself and one for Action for Blind People, which is part of the RNIB group. It raises £8 million a year through its society lotteries, which provide valuable funding for vital services such as the RNIB helpline, sight-loss advisers in hospitals—who are there to pick people up at the point when they are told that they are going blind—and talking books, which many people describe as a lifeline.
Society lotteries are a successful fundraising vehicle for RNIB but, as I say, this success could be increased were there to be a relaxation of the limits imposed on prizes, draws and turnover. In particular, the charity is restricted in how much it can generate in charitable income through its society lottery due to the £10 million annual cap on turnover or sales. This is difficult to understand, as the noble Lord, Lord Mancroft, said, because this is the only form of fundraising that is capped in this way. RNIB thus well illustrates how charities can have their ability to raise funds restricted by unnecessary and burdensome regulation.
RNIB also has concerns with the regulatory regime which governs licensing. Society lotteries have achieved strong growth in recent years, reflecting their popularity with the public as means of raising money for good causes. However, if RNIB wants to sell more tickets, and thereby raise more money, it would be limited by the income and ticket sales caps. It would therefore have to register a new society lottery, which would mean that much needed charitable funds would be spent on duplicating auditing, legal, licensing and other bureaucratic costs.
As provided for by this amendment, an increase in the permissible amount of ticket sales for a single draw would enable RNIB to raise more money while at the same time limiting costs. An increase in the annual income cap would enable it to maximise its fundraising. Furthermore, if prize value limits were increased, more people could be attracted to play RNIB’s lotteries, thereby boosting the overall amount raised through tickets sales. In addition, as the noble Lord, Lord Mancroft, has explained, the 80:20 rule, whereby 20% of proceeds have to be returned as profit to the good cause, restricts new product launches and can stifle innovation. For smaller lotteries, such as Action for Blind People’s, the requirement that 20% must always be returned can stifle growth, as it makes it difficult to invest heavily in new acquisitions. This could be alleviated by allowing lotteries to apply the 20% rule to the financial year as a whole rather than to each individual lottery.
Society lotteries are a valuable form of fundraising, not just for the RNIB but for charities across the country. They provide much needed funding for highly valued services, and evidence shows that were modest deregulation to take place, it could allow good causes across the UK to increase the amount that they receive through this popular form of fundraising.
Lord Rooker
My Lords, I would like to ask a question. I know nothing about the detail of this, but I take it that these four elements that the noble Lord has described do not hang as a package. In other words, I am saying to the Minister: just for once, pick one. Okay? The case seems overwhelming. I have spent more time in this Grand Committee than I have done at any time since I was in the Minister’s position, so I know what it is like; because there is no vote, you can stonewall and accept nothing, hoping that, by the time you get to Report, you can wing it through.
Given the figures that the noble Lord, Lord Mancroft, gave, I would also say to the Minister that this is not a threat to the National Lottery. I understand that when the lottery was first formed, a lot of constraints were built in to protect it. For example, someone tried to start a lottery betting on the six numbers, and I think that it was banned because it would drain off other funds. The National Lottery is now so well established that there cannot possibly be any threat to it.
There is another factor here, if I have got it right, and I do not declare an interest but I do the odd lottery myself: this would mean more choice for the player. In the National Lottery you do not get any choice. We know what the overall picture is—it is a public good, we know that massive benefits to sport, culture and our heritage have come from it, and long may that continue—but we do not get any choice. However, with the society lotteries you get a choice. You can make that your key.
I will also say, although I know that these words are not used often these days by the Government, that this is classic “big society”. Does the Minister remember that? All the elements of society lotteries—individual choice, very small beer compared to the National Lottery but substantial benefits to the societies involved—make them the big society. They fit in exactly with what the Prime Minister used to talk about. It was a good idea; he just could not sell it. The fact is that these schemes seem to fit with that.
I say to the Minister: go on, just pick one of them. I am sure that he will still be there when we get to Report—it is too late for reshuffles now—so pick one that is really good and go back to the boss, as I used to do occasionally. I used to go back and say, “Look, we’re going to be defeated on this”, and we did not really want all the mess connected with that. I know that we cannot have a vote on this, but the fact is that on Report this could be a bit tricky at the wrong time of day. It would be a lot better if the Minister showed a bit of willingness, and I think he should be prepared to accept one of them.
Lord Collins of Highbury (Lab)
My Lords, I hope that we are not going to disappoint my noble friend or even the noble Lord in terms of the position of the Opposition. As someone who has spent a lifetime trying to raise money—for causes that were perhaps difficult, like the Labour Party campaign—I understand the importance of lotteries, and the importance of a range of options when it comes to raising money. However, we have to understand that this proposal would considerably change the lottery regulations, and such a change—again, I am glad that my noble friend Lord Dubs is not here—would need detailed study regarding its consequences. Not just the National Lottery but also smaller lotteries may be squeezed by the larger society lotteries that can expand and push the smaller ones aside. The Opposition would want to discuss that in detail before we could consider any changes.
Lord Mancroft
My Lords, the noble Lord says that we do not know. We do know; this has been out to consultation several times. We also have the recent report of the Centre for Economics and Business Research, which, as he knows, was published in February this year and went into this subject in great detail. After carrying out a great deal of research, it made it absolutely clear that all the changes that have been made to society lotteries over the years and the ones that we are proposing today have absolutely no negative effect on National Lottery sales at all. What they can do and have done in the past is to expand the market overall, therefore actively improving National Lottery sales. The biggest increase in society lottery sales was in the past year, which also saw the biggest increase in National Lottery sales. Therefore the argument that he is proposing at the moment has been proven to be completely wrong.
Lord Collins of Highbury
I will come to that point, because in this market the proposals could result in an expansion with unforeseen circumstances and I want to address that. I have raised that with the Minister before, with regard to who may enter that market if we deregulate it. That is one of our major concerns. The principle of the National Lottery is that it was designated as a monopoly to ensure that it generates sufficient income for all the causes that Sir John Major originally envisaged for it. We need to be very careful about weakening the protection of that principle. That is the point that I am making at this stage. My noble friend Lord Rooker quite rightly pointed out that there was a range of proposals within these amendments; I will come to one of them, which could be well worth considering.
We need to protect the principle of the model that has worked successfully over the past 20 years. Measures that could have the potential to undermine that settled principle of one national lottery alongside many small small-scale society lotteries need to be avoided. I shall mention as an example the increase in prize caps for society lotteries. The level of prizes on offer to players is a fundamental differentiator between the National Lottery and society lotteries. When we introduced the National Lottery, we had that in mind. Any substantial increase in prize caps for society lotteries risks fragmenting the money spent by players across all the different lotteries available, which would lead to smaller jackpots, fewer tickets sold and, ultimately, less money for the good causes that were highlighted in the Chamber yesterday.
Lord Rooker
My noble friend is rewriting history. The Labour Party was opposed to a national lottery—I remember the years I spent in the other place when it was being promoted—because it would damage the football pools. That was the argument given. My noble friend is arguing from a monopolistic position. Where is the threat to the National Lottery? It may be a good model for a national lottery, which is fine—the past 20 years have shown that it works—but this is not the National Lottery; these are society lotteries, which are minnows compared to it. We were not always in favour of the National Lottery, just as we were not always in favour of the minimum wage, so I cannot sit here and have history rewritten.
Lord Collins of Highbury
I was not attempting to rewrite history—far from it. That is why I mentioned the debate yesterday where noble Lords referred to Sir John Major’s proposals and their legacy. In the context of the Olympic Games and their legacy, the National Lottery has played a critical role. I think that the Labour Party has learnt many lessons over the years and adopted policies that perhaps it had been concerned about. My noble friend referred to the national minimum wage. I worked for a trade union that opposed that every step of the way, but it has learnt the lesson of reconsidering positions. We are talking here about the outcome of the National Lottery and the huge amount that it has achieved for a whole range of good causes, not just the national legacy causes but local causes and, in particular, the cultural impact. Any change to that principle therefore needs to be considered extremely carefully.
The proposal that the 20% contribution should be spread over a period of time may be one that the Minister will take on board. However, another point that I want to make about any changes, and I have raised this in the Chamber, relates to the loophole that we have seen exploited by the Health Lottery. It is supposedly made up of 51 separate companies yet has the same three directors, the same office and the same branding, in effect enabling it to operate as an alternative to the National Lottery. That is something that the Minister needs to look carefully at, despite the actions of the Gambling Commission in this regard. The amount that goes to worthy causes there is 20% but it is not absolutely clear how it is spent, and its promoters are certainly operating on a commercial basis.
Lord Mancroft
I do not want to enter into a debate about the Health Lottery now, but it is registered with the Gambling Commission. For every single lottery that it does, every single week, it submits a return to the Gambling Commission, which noble Lords can all see online today. There is no hidden money anywhere else. The putting together of a group of societies into one big one, with a lottery operator working above it, was debated and agreed very forcefully in your Lordships’ House 15 years ago. There is nothing secret about it. I accept the fact that Mr Desmond is, for some reason I am not clear about, a very unpopular person, but he has done exactly what the law envisaged and what Parliament intended. I took part in all those debates, and that is exactly what we planned. The Health Lottery has not produced any threat to the National Lottery. Camelot endlessly says that it does but, in the year of the Health Lottery’s birth and rise, National Lottery sales increased at a greater rate than at any time in its history, and long may that be so.
Lord Collins of Highbury
I do not accept what the noble Lord says because that lottery has exploited a loophole which I had hoped that the Government would be able to close. I am not suggesting for one moment that, in the dodgy sense, there is hidden money but only 20% of the money raised by that lottery goes to good causes. That may be seen to be a reasonable return, but it is advertised on Mr Desmond’s channels and in his newspapers, it is competing with the National Lottery and people think that it is a national lottery. It is even called a “national lottery”, which I think is in breach.
Furthermore, if that company can do it, what if Tesco suddenly decides, “This is a market we need to expand into. It’s a worthy cause. We can say to our customers that we’ve the infrastructure and the stores”? I believe that this is why we need to exercise caution. We have a model that has worked. We need to support local societies, even small societies, in terms of enabling them to raise money, and that includes local lotteries. I do not believe that when people buy those tickets they are necessarily thinking, “I need to win £4 million”, but we know the impact and the dream of the National Lottery, which is why it is so important to regulate the area. I am sorry to have banged on a bit on this, but there is a principle here that is worth defending and protecting. If we move forward in any step to deregulate that, we need to understand fully the consequences for the good causes.
Lord Gardiner of Kimble (Con)
My Lords, I thank my noble friend for his amendment and noble Lords for the lively debate that has followed. The effect of this amendment would be to allow society lotteries to offer jackpots of up to £5 million per draw and to hold as many draws as they wish. I know that my noble friend disagrees with this but we do think that this may—and I use the word “may”—present a serious risk to the good causes funded by the National Lottery. We believe that the best way of raising funds is through encouraging people to play by offering them the life-changing prizes possible only through mass participation in a single national lottery.
As the noble Lord, Lord Collins of Highbury, has said, in the past 10 days I have answered two Questions on the Olympics and the importance of the National Lottery. I was asked about the dangers if National Lottery proceeds were to reduce and the impact that that would have on the Olympics. Indeed, it was borne out into the many other aspects of the National Lottery. I am sure that we all agree that the National Lottery has been an extraordinary success, raising over £32 billion for good causes in its 20 years of existence. It has funded everything from large-scale national projects to thousands of small-scale local groups and has had a transformative effect across the whole of the United Kingdom.
It is appropriate today to refer to what the Heritage Lottery Fund has been doing. It has awarded more than £12 million to enable the National Museum of the Royal Navy to turn HMS “Caroline” into a visitor attraction in time for the centenary commemorations of the Battle of Jutland. At the other end of the scale, the Heritage Lottery Fund also awarded more than £5 million to more than 700 projects through its First World War: Then and Now community grants programme.
It is this scale and reach that makes the National Lottery so unique. Ultimately, a total of over £60 million was given to more than 1,000 First World War centenary projects, covering nearly three-quarters of constituencies across the United Kingdom. This is only a fraction of the funding distributed by the National Lottery each year. The Government believe that allowing the sort of direct competition that could result from this amendment goes against the very spirit of the National Lottery. My noble friend makes clear that he does not believe that it puts this at risk, but there are others who feel that it may.
I want to refer to what the noble Lord, Lord Low of Dalston, said about society lotteries. They are undoubtedly very successful at raising funds for good causes and have grown significantly in recent years. We very much welcome that success but we are clear that they are part of a wider good cause landscape and, again, we would not want that to be at the expense of the National Lottery.
Lord Mancroft
My Lords, I was not expecting a different answer but that does not mean that I am not disappointed. As I said when I moved my amendment, I have been down this track before and I have heard all those answers before.
The noble Lord on the opposition Front Bench was talking about a detailed examination. That is a good thing to do, which is why the Government commissioned the Budd report before the 2005 Act. That, of course, came out in favour of this level of deregulation. The report of the joint scrutiny committee on the draft Bill in 2004 said that we should remove these regulations. My noble friend has just referred to the upcoming report of the DCMS Select Committee. Of course, he may wait for that but if he was to look at the previous DCMS Select Committee report on society lotteries, it, too, recommended that these regulations should be removed. The two most recent government consultations recommended that they should be removed. Indeed, fascinatingly, 350 organisations and individuals responded to the Government’s most recent consultation on society lotteries, and 349 of them were in favour of deregulation. One organisation was opposed to deregulation and that, amazingly enough, was Camelot.
What is proposed here is not, as the noble Lord said, an alteration of the principle. There is no alteration of the principle at all here. The first section of the National Lottery Act says there is only one national lottery. That is entirely true. The Health Lottery is not a national lottery. The People’s Postcode Lottery is not a national lottery. Collectively, those two enormous organisations, and the 440 or so other organisations that run lotteries in this country, still have less than 5% of the market. The National Lottery, quite rightly, has 96% of the market. How on earth can that be seen to be a threat? There is an idea that Tesco or Sainsbury might suddenly launch a society lottery. Actually, they tried, but even they, with their massive marketing might, could not take on the might of a 96% monopoly operator.
The principle is odd because, as the Committee will know, Britain and France are the only two countries that have monopoly national lotteries. In America they are state lotteries; in South America they are primary, secondary, tertiary and charity lotteries; in eastern Europe, which invented lotteries, they have provincial, state and national lotteries and even smaller ones; in Germany they are state lotteries; in Ireland and Spain there are three—need I go on? The way that the national lotteries are set up in Britain and France is virtually unique; no one else does it like that. It is recognised in most other parts of the world that secondary, tertiary and charity lotteries actually increase the size of the market, as the noble Lord, Lord Rooker, suggested, and everyone benefits. That is why, I repeat, when the Health Lottery started last year or the year before, it was the best ever year for the National Lottery.
I dare say that we will have the consultation, we will all take part in it, it will come up with exactly the same answer as the previous consultations and the Government will seek to damage it to defend their own monopoly, which they do not need to do. More importantly, they will do the most extraordinary thing: they will maintain the regulation that prevents charities from increasing the funds that they can raise. I know of no other piece of law, in this country or anywhere else in the world, whereby a Government prevent charities from raising funds for their own charitable causes. It is a pity, but no doubt we will return to this at a later stage in the Bill. In the mean time, I beg leave to withdraw my amendment.
Lord Sharkey (LD)
My Lords, Section 15A(2) and (3) of the Social Security Act 1998 require the Senior President of Tribunals to publish an annual report on the standards of decision-making in the making of certain decisions of the Secretary of State against which an appeal lies to the First-tier Tribunal. The Joint Committee on the draft Bill, of which I was a member, noted that most cases presented to the First-tier Tribunal relate to the employment and support allowance and the disability allowance, which of course are being replaced by universal credit and personal independence payments under the Welfare Reform Act 2012.
The committee also noted that concerns had been raised about the timing of this repeal, which comes at a time of very significant changes to the benefits system and an increase in the number of appeals. It also comes at a time when almost half the appeals against DWP rulings have been successful. It is not surprising that the Commons Justice Committee pointed out that the repeal,
“comes against a background of disapprobatory reports published by the Senior President of Tribunals on the standards achieved by the Department of Work and Pensions and … Atos”.
The Joint Committee heard evidence that the transparency and accessibility of the current system, and the fact that it offered an acceptable route for the judiciary to comment, were arguments to retain the duty to report. The Government, in evidence, argued that the report was unnecessary because there were alternative methods for providing feedback. It was also suggested that the report was expensive to produce.
The Government expanded on this in their formal January 2014 response to the Joint Committee’s report. In four short paragraphs in the formal response, the Government made four points. First, they asserted that they had mitigated the risks involved in repeal at a time of significant changes to the benefits system and a rise in the number of appeals. This was simply an assertion; no evidence was offered in support. I would be grateful if the Minister would outline the evidence that supports that assertion.
Secondly, the Government claimed that it was important, during the introduction of benefit appeals, that feedback was as timely and useful as could be, and new initiatives such as the introduction of summary reasons reflected this. It is important to note that this is not an argument in favour of repealing the duty to report annually; it is an argument for additional reporting, one that is in fact promoted in the senior president’s annual reports.
Thirdly, the Government assert that the removal of the duty to report on DWP decision-making standards is not an attempt to remove transparency or accountability in the assessment of decision-making standards. Rather, it represents an attempt to reform the way in which decision-makers receive feedback from the tribunal, to ensure that the feedback is as useful as possible.
Again, this is not an argument in favour of repeal of the duty to report annually. If anything, it is an argument in favour of more frequent data-sharing, something the senior president’s reports have been in favour of and have arguably, even, brought about. More importantly, even if the proposed repeal is not an attempt to remove transparency or accountability, that would certainly be its effect.
The Government’s fourth point was that statistics, including volume and overturn rates, would continue to be published quarterly. These statistics would not, of course, benefit from commentary or analysis from the Senior President of Tribunals. They would simply be data.
Those were the four points advanced by the Government in response to the Joint Committee’s report. They make no mention of cost. However, cost was a reason for repeal mentioned in evidence the Government gave to the Joint Committee. It was also given as the first reason for repeal by Mr Vara in a Commons Written Answer to Mr Timms. Mr Vara said:
“The duty is to be repealed because of the high cost of producing the report and because of developments of alternative methods of providing feedback to the DWP which make the report unnecessary”.—[Official Report, Commons, col. 900W, 18/10/13.]
He goes on to give only one example of these alternative methods: the introduction of summary reasons for decisions in employment support allowance cases. This means that judges explain via one line in a drop-down menu box why a decision has been overturned on appeal. Mr Vara claimed that this provided the DWP with an effective feedback mechanism. He also says that he is not aware of the DWP receiving representations on the removal of the duty. That last point is perhaps not very surprising: there was no formal consultation on this clause and no impact assessment. When the Minister responds, I would be grateful if he could say whether the senior president and the other tribunal presidents were consulted about the repeal, and if they were, what the response was.
However, I return to the issue of cost, which was advanced by Mr Vara as the first reason for repeal and by the Government in their evidence to the Joint Committee. Cost was not mentioned in the Government’s response to the Joint Committee’s report so it is reasonable to ask if the Government still think that the cost of producing the annual report is a reason for its repeal.
In a Written Question tabled 10 days ago I asked the Government to specify the actual cost of these reports. The Minister’s reply said:
“Preparation of the report costs approximately £20,000 in judicial time each year; however this is within their salaried hours, so there is no additional cost beyond their salary. There are some associated printing costs, but records of these are not held centrally”.—[Official Report, col. WA 273, 06/11/14.]
In the light of that answer, perhaps the Minister can say whether the Government still consider the cost of the annual report to be an argument for repeal, and if they do—given the figures—why they do.
The second broad argument the Government use for repeal is that there are alternative methods for providing feedback. Given the enormous increase in appeals over social security and child support, this need for alternative methods of feedback is hardly surprising. In 2011-12, there were 371,000 such cases. In 2012-13, there were 507,000 such cases—a 37% increase. In the first six months of 2013-14, from April to September, there were 290,000 appeals. The sheer volume of cases demands that the DWP does not wait for a year to find out why its decisions have been overturned.
In fact, in the latest Senior President of Tribunals’ annual report, published in February this year, the author notes that a scheme was introduced in July 2012 whereby the tribunal would notify the department, in each case where it overturned a departmental decision, of the principal factors leading the tribunal to allow the claimant’s appeal. That is the drop-down menu box, one-line summary that Mr Vara referred to as an effective feedback mechanism. However, after running that drop-down menu approach for a year, the DWP concluded that a more narrative explanation by the tribunal would afford the department greater insight into any shortcomings in the process of departmental decision-making. In other words, narrative was valuable. Narrative is, of course, provided in the annual report.
Lord Rooker
My Lords, I will briefly add to what the noble Lord, Lord Sharkey, has said. In the original draft Bill that the Joint Committee scrutinised, the Ministry of Justice was the only government department that brought forward proposals of which none had been formally consulted on—not one. Although we are debating Clause 61, Clauses 62, 63, 64 and 65 are all MoJ clauses and none of them has ever been consulted on formally. This is a Christmas tree Bill with 100 different subjects—we could not look at everything, and looked at stuff on the basis of evidence. It was unique in the sense that we had one department that brought forward a range of proposals that it had not consulted on. In a way, this is given away in Clause 61 itself. Line 5 refers to,
“an annual report on standards of decision-making”.
That is the giveaway really. I have to say that the Government’s response was a bit unsatisfactory.
We need to have this short debate, however few minutes it lasts, because, to the best of my knowledge, this is where the defects arise because there is so much going on and this Bill is now much more massive than it was. I have no complaint about that; I am just stating a fact. As parliamentarians, we need further and better particulars. We did not get many to start with, which is why we did not deal with a lot of the Bill. We also had little time to do our job because we were constrained by having to report back to Parliament by 16 December.
The Ministry of Justice appears to be a bit flaky on the administration of justice in a way. That is how I would sum it up, not just on this issue but on others as well, although I am not going to go down the route of listing things. Cost was used as an argument on this, but we never had any costs or alternatives, even though, given the number of changes in the benefit system, that would have seemed a good idea.
As far as I am aware, in the representations we had from the authors of these reports they did not say that it would be a good idea if they did not have to do them. I have not checked all the evidence on the issue I raised last week, but the fact is that the Ministers have been more up-to-date than us. I thought it was worth raising that issue in this Committee, and I am grateful to the noble Lord, Lord Sharkey, if only for flagging this up for Report.
There is an issue here. There were one or two issues on which the Joint Committee did not spend a lot of time, but expressed a bit of concern. Last week the debate on marine accidents showed that as well. It was not a massive issue in the committee, but as time has gone on, it seems as though the importance of the legislation is crucial; obviously I agree with deregulation. The Bill is therefore an opportunity that we should not miss. However, in this case the Government will have to come forward on Report with a much better argument for keeping Clause 61 than they have given so far.
Baroness Donaghy (Lab)
My Lords, I promise that I will be very brief. I was thinking of Lord Newton of Braintree when the noble Lord, Lord Sharkey, moved this amendment—I am sorry that there is only one Conservative in the Room. As Members will know, Lord Newton was chair of the Council on Tribunals, and later chair of the Administrative Justice and Tribunals Council. He argued very strongly against the government proposal to abolish the Administrative Justice and Tribunals Council. I only wish he was alive today, and I hope he is looking down at us. I am sure that he would have been delighted by the way in which the noble Lord, Lord Sharkey, moved this amendment. I am sure that I am not alone in this House in missing him. When I was chair of ACAS I worked very closely with the then senior chairman—as they were called in those days—of the Employment Tribunals Service, my noble friend Lord Noon. He was part of the administrative tribunals system, and I also met Lord Newton on a number of occasions when he was performing the duties of the senior president.
This is part of the chipping away of tribunals. It may not seem very much on its own, but it is part of squeezing the tribunals together—which had totally different functions and history—cutting them back and now not even allowing transparency of decision-making. Also, as a former member of the Committee on Standards in Public Life, I believe that this fails the test of transparency and openness. It is extremely worrying that we have these kinds of developments. It may seem a very small part of a very large Bill, but I hope very much that the Government will reconsider this in the name of transparency and good decision-making.
Lord Kennedy of Southwark (Lab)
My Lords, the noble Lord, Lord Sharkey, and my noble friends Lord Rooker and Lady Donaghy have carefully outlined why this clause should not stand part of the Bill, and I very much support the points they have made. I pay tribute in particular to the noble Lord, Lord Sharkey, who made an excellent contribution with some excellent points. All I will say to the noble Lord is, if we do not get the answer he wants today, I hope he will come back to this on Report. If he presses it to a vote, he will find plenty of support on our side of the House and, I am sure, on the Cross Benches as well. This is a very bad clause.
I very much agree with the comments my noble friend Lady Donaghy made about Lord Newton, who would certainly have been on his feet in this Committee and in the Chamber, opposing this, as he did the many other things the present Government brought in regarding welfare.
To remove the duty from the Senior President of Tribunals to produce an annual report on the standard of decision-making by the DWP on appeals to the First-tier Tribunal is a matter of much regret. I am sure that the noble and learned Lord, Lord Wallace of Tankerness, will tell the Grand Committee—as his friend in the other place, Mr Vara, told my right honourable friend Mr Stephen Timms, as was outlined by the noble Lord, Lord Sharkey—that it is all to do with the high cost of producing the report and that the development of alternative methods means that getting feedback in is much easier now and it is all going to be fine. I am sure we are going to be told that the introduction of summary reasons for decisions in employment support allowance cases means that judges can explain why a decision has been overturned on appeal and provide feedback to the department in an effective way, and that this is not necessary.
I was going to ask the noble and learned Lord about costs but the noble Lord, Lord Sharkey, jumped in and put down a very good Parliamentary Question. I think that the issue of costs has now been shot down completely. We are talking about a very small sum.
My noble friend Lord Rooker also mentioned what went on at the DWP Committee. I saw the comments by His Honour Judge Martin in his evidence to the committee. He pointed out the problems and errors that are repeated year after year, with no sign that anyone in the department takes any notice of feedback from tribunals, and that concerns are just not dealt with.
I think the real reason for the clause is that the report has become an embarrassment for the Government. They want to sweep it away—as my noble friend Lady Donaghy said, this is not transparent—so that the annual assessment is not there and they do not have to look at it or address it. That is a really bad thing to do and they need to come back on that.
If the issue is the £20,000 cost of the report, did the Government look at any other ways that this could be done? Does it have to be a glossy report? Can it not be, as the noble Lord suggested, a more regular communication—a letter, perhaps—where the tribunal could highlight the problems it has seen coming forward? It could be every three months or six months. It could be made public. If the Senior President of Tribunals sees problems, there must be a way for him to communicate that to the department and not just leave it to people who will look at judgments and make a decision. That seems a wholly ineffective way of doing that. Perhaps the noble and learned Lord could reflect on that before we come back.
This is a bad clause. Obviously, it cannot be voted on today. I hope that if we do not get an answer today, the noble Lord, Lord Sharkey, will come back to this on Report. As I said, he will have our support.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank my noble friend Lord Sharkey, the noble Baroness, Lady Donaghy, and the noble Lords, Lord Rooker and Lord Kennedy, for their contributions to this clause stand part debate. It is only right and proper that we are challenged as a Government as to why we want Clause 61 in the Bill. I will certainly seek to address the issues and will reflect on the points that have been raised. But there is a good basis for why we might wish to remove this particular, very limited, form of reporting.
Clause 61 repeals a specific and separate duty placed on the Senior President of Tribunals to report annually to the Secretary of State for Work and Pensions on the standard of certain decision-making by the Department for Work and Pensions; namely, decisions whose associated appeal rights are resolved at the First-tier Tribunal: Social Security and Child Support. The duty was introduced in 2007 and replicated an equivalent duty on the then President of Appeal Tribunals, who had produced a separate annual report since 2000.
I cannot agree with the charge that the underlying motivation for this is to reduce transparency. I say to the noble Baroness, Lady Donaghy, who made that charge, that in fact Section 15A of the 1998 Act applies only in two other small respects. One is where ministerial responsibility for certain decisions about national insurance contributions by carers was transferred from the Department for Work and Pensions to Her Majesty’s Revenue and Customs. The second relates to decisions converting certain previous entitlements to employment and support allowance. Otherwise, there are no other areas in this field where a separate statutory duty applies to the Senior President of Tribunals. It is very limited in its application and I will come on to say why I think there are other measures that are effective and provide for proper transparency, which I agree is important. I am confident that we can remove this requirement in a way that narrows our focus without compromising necessary improvements which previous reports have highlighted and meets the concerns that have been raised should it disappear.
Lord Kennedy of Southwark
I am not convinced by the idea that this is some huge burdensome amount of work for the Senior President of Tribunals. If the senior president, having been relieved of this burden if this provision becomes law, picks up on matters that they feel that they need to write to the department about—maybe annually, every couple of years or so on over time—what would the Government’s response be? Would they make that letter public? There may be concerns here that the provision would not address. It would be useful if the Minister could comment on that.
Would the Minister also comment on the £20,000 saved in judicial time? If they took some action on some of the points that have been raised by the tribunals, it might save far more than the £20,000 that is being talked about for this report.
Lord Wallace of Tankerness
The points that the noble Lord raises are fair ones. He asks what happens if the Senior President of Tribunals has problems reported to him. We have indicated that there is now a process by which the department, through the drop-down menu scheme, does get regular indications of where there are problems, so they can be addressed. As I also indicated in my remarks, if the senior president thought that the DWP was systematically ignoring all of them, or if he thought that he had written a letter to the department and the department was still ignoring it and was not making it public, there is a separate statutory power available to him in paragraph 13 of Schedule 1 to the Tribunals, Courts and Enforcement Act 2007 to lay representations before Parliament—before noble Lords and in the other place—of any,
“matters that appear to him to be matters of importance relating … to the administration of justice by tribunals”.
If he thought that there were systemic problems that were not being addressed and that his representations, or those from others within the tribunal system, were being routinely ignored, there is quite an important provision there which allows him to, as it were, leapfrog the Government and come directly to Parliament.
The noble Lord’s second question was about the £20,000 of judicial time that can be freed up. I am sure that it is not the only thing that can be done and that it does not come at the expense of other things. I am sure that there are many ways in which better decision-making through the mandatory reconsideration process should, hopefully, reduce the number of cases that are going forward and therefore allow such cases as are put forward to be dealt with more speedily. I hope that reassures the noble Lord.
Lord Sharkey
Obviously the opinion of the Senior President of Tribunals is very important and has a direct bearing on the debate today. However, because it is important—the Minister has prayed it in aid a couple of times—it is slightly surprising that this opinion did not appear in the Government’s response to the joint committee’s report. I wonder whether the Minister is able to tell me when the Senior President of Tribunals was asked for his opinion on repeal and on the workload of the other tribunal presidents.
Lord Wallace of Tankerness
If I can I will certainly answer my noble friend’s question. I did ask previously whether it was before we included this clause in the Bill and was advised that that was the case. However, in February 2014, when he published his report, he did say that this particular provision that we are debating was of practical value. Although the Government maybe did not pray that in aid in response to the joint committee, the president did put on the record that he did not think there was much practical value when he reported in February 2014.
House of Lords
Mediterranean: Refugees and Migrants
(9 years, 7 months ago)
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Lord Hylton
To ask Her Majesty’s Government what steps they are taking with Mediterranean states and other relevant organisations to address the problems of migrants and refugees attempting to cross the Mediterranean.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the Government are working closely with other EU member states to address this distressing situation. It is important to find solutions that tackle the root causes. We are, therefore, focusing our efforts on enhancing co-operation with source and transit countries, including strengthening protection in the region and disrupting the activities of traffickers.
Lord Hylton (CB)
My Lords, I thank the noble Lord for his reply. Does he agree that since this issue was last raised in your Lordships’ House, it has become clearly unacceptable to allow some people to drown to deter others from risking their lives at sea? In this situation, will the Government seek to get safe sea lanes agreed between Africa and Europe? Will they mobilise all possible technology—for example, drones, radar and satellites—to supplement the work of rescue ships? In the long run, will they work to get interviewing done in Africa before migrants and refugees leave?
Lord Bates
The noble Lord asked about surveillance. We are part of the general effort, through Eurosur, which is the surveillance component of Frontex. We have offered to provide additional services if they are called upon. Eurosur is doing a lot of work in that area through drones, exactly as the noble Lord suggests. Through our partnerships in-country, particularly in Syria, we are trying to head this off at source by making people aware of the Syrian resettlement programme and other UNHCR resettlement programmes, of which our Government are a part.
Lord Campbell-Savours (Lab)
My Lords, the country in the front line in dealing with this problem is Italy. In so far as many of the people crossing the Mediterranean are intending to come to the United Kingdom, what support are we giving the Italian Government to deal with the problem?
Lord Bates
Yes, it is the Italian Government, as well as the Spanish and the front-line Mediterranean states, including Greece. They are part of the Schengen arrangement. The Frontex programme and organisation is behind them. We have said that we will offer support as required. We have already assigned one liaison officer and the Home Secretary is meeting with her Italian counterpart. She has said that if they need additions, we are prepared to look at that.
Lord Ashdown of Norton-sub-Hamdon (LD)
My Lords, the whole House will recognise that my noble friend is doing a manful job defending a completely untenable position. May I change tack a little? Why does the Government’s policy seem to be to support measures that can have only one result—to drown more refugees in the Mediterranean—rather than a policy whose aim is to lock up more people traffickers? Only one has ever been arrested—in Egypt, which is one of the main departure countries. Does my noble friend remember a few years ago when Her Majesty’s Government used all the resources at their disposal, including Special Forces, to rid the Caribbean of drug smugglers? Why can we not do the same thing to rid the Mediterranean of people traffickers?
Lord Bates
My noble friend hits the nail on the head. We need to tackle the traffickers who are exploiting this situation by placing vulnerable people in unseaworthy vessels and setting them afloat in exchange for €2,000 or €3,000 a head. That is absolutely morally outrageous. They are responsible for the deaths. That is why the National Crime Agency is working with Frontex and other organisations to bring them to justice. The legislation that your Lordships’ House passed in the Serious Crime Bill, and will pass in the Modern Slavery Bill, will help in that effort.
Baroness Lister of Burtersett (Lab)
My Lords, the Minister referred to the Syrian resettlement programme. Will he tell your Lordships’ House how many people have been resettled under that programme?
Lord Bates
I do not have the exact numbers today but we accept that they are small. However, the numbers for the general gateway resettlement programme are around 750 to 1,000. That is a pinprick. However, this Government have a proud record of being the second largest donor of bilateral aid to Syria, giving £700 million to try to tackle the problem at source so that Syrians do not have to travel.
Lord Dobbs (Con)
Why does my noble friend believe that so many of these refugees decide to come to this country, rather than staying in Italy, France or Spain when they arrive in Europe?
Lord Bates
I suppose the short answer is that you would have to ask them why that is. I am sure that there are a number of draws in this country; we all agree that it is a wonderful country. The problem is that those people who are seeking asylum have the responsibility to claim that asylum in the first country they reach, which in this case is often a Mediterranean country.
Baroness Smith of Basildon (Lab)
My Lords, this is an extremely serious issue. The whole House should be grateful to the noble Lord, Lord Hylton, for raising it today and for first raising it in a Written Question. I agree with the noble Lord that this issue should be tackled at source in the countries affected and that they should look to tackle people trafficking and the reasons why people want to leave their homes. However, last week, I asked the noble Lord—the noble Lord, Lord Hylton, raised this as well—whether the Government really believe that this needless loss of life, with people drowning in the Mediterranean, will ever act as a deterrent to the criminals trafficking people or to those desperate enough to get into small boats and leave. He failed to answer the question then. Will he answer me now?
Lord Bates
I have tried to answer it. These are very early figures but there is some evidence from Frontex, in a briefing that we received in the past 48 hours, that the trend is turning. We should remember that the relevant figure went up from 70,000 per year to 150,000 and that the number of deaths went up from 700 to 3,000. We think that there are between 300,000 and 600,000 people in Libya waiting to make a crossing. The indications are that the numbers fell in October. There could be other reasons for that and we are following the situation closely. This is something we take very seriously indeed and are trying to abate.
The Earl of Listowel (CB)
My Lords, does not this Question illustrate the wisdom of the Government in dedicating a larger proportion of GDP to international development than any other developed nation and in recognising that we need to support countries following conflict, and prevent them entering conflict, to avoid the terrible suffering that we are now seeing in the Mediterranean?
Lord Bates
I am grateful to the noble Earl for his question. I am incredibly proud to be part of a Government of a country that is the first major economy to honour its 0.7% pledge and to provide £11.46 billion in aid to the most vulnerable and conflict-torn countries in the world. That is a record we all ought to be proud of.
Low Pay: Resolution Foundation Report
Lord Haskel
To ask Her Majesty’s Government what is their assessment of the report by the Resolution Foundation Low Pay Britain 2014.
Lord Ashton of Hyde (Con)
My Lords, the Government note the report and conclusions, particularly the recognition of the economic recovery. The economy is on the road to recovery as a result of the Government’s long-term economic plan. There are now more people in work than ever before, more people able to support their families with the security of a regular wage, and we have seen the first above-inflation increase in the minimum wage since 2007.
Lord Haskel (Lab)
I think that this is the Minister’s first Oral Question, so I welcome him.
Lord Haskel
Is he aware that in responding to this Question he has two audiences. He has this Chamber; and what he has said may satisfy noble Lords. However, does he agree that to his other audience—to the people in this report whose lives and jobs are on a downward trend, and whose lives are becoming much more difficult—his response is irrelevant? In fact, they may even say that his response is complacent. Does the Minister have any words to connect with them?
Lord Ashton of Hyde
I thank the noble Lord for the first part of his remarks welcoming me. I am sorry that he already thinks I am going to seem complacent. The reason we address those people who we acknowledge are in the difficult position that the report has mentioned, is that we believe that the economy is the foundation for increasing personal wealth. In fact, the Office for Budget Responsibility forecasts that real household disposable income will rise every year to the end of the forecast period 2018-19.
Baroness Gardner of Parkes (Con)
Does this report cover the issue, which I have raised in the House before, of people in jobs such as carers being paid nothing at all for travelling between work, and whose pay therefore comes out at about £2 an hour? Sometimes it is even worse, particularly if they are self-employed. There is a minimum wage if one is employed but if one is self-employed or working for any of the agencies, one is not covered in any way. Is it covered in the report?
Lord Ashton of Hyde
I think that it is covered, but the position on workers such as those mentioned by my noble friend is that if one is working as part of one’s job, one should be paid the minimum wage. People who are travelling should be paid the minimum wage. If they are not, that is a question of fact, which should be taken up at employment appeal tribunals. That would determine whether they are paid the minimum wage.
Lord McFall of Alcluith (Lab)
My Lords, we are in an economic era of falling unemployment but falling wages, with the number of people earning less than £7.69 an hour at a record 5.2 million in the United Kingdom. Do the Government recognise that economic growth alone will not solve this problem and that we need new policy initiatives in the labour market so that we do not end up with a working society of haves and nearly-haves?
Lord Ashton of Hyde
I completely agree with the noble Lord. It is not just the economy itself but the other things that need to be done to address this issue. We need to create jobs, reduce the tax burden on the lower paid—in that respect, 3.2 million in this Parliament have been taken out of income tax—and invest in skills.
The Lord Bishop of Peterborough
My Lords, now that the economy is picking up, will the Minister comment on the living wage and on whether the Government believe that the minimum wage really is enough?
Lord Ashton of Hyde
The right reverend Prelate is right to bring this subject up. The minimum wage is a minimum as a catch-all; the Government support people and businesses paying above that, if they can pay the living wage, but only when it is affordable and not at the expense of jobs. In BIS, the department I represent, we have recently increased the pay of the lowest-paid workers in the department so that everyone receives the living wage. We support that as long as it is not at the expense of jobs.
Lord Young of Norwood Green (Lab)
My Lords, I welcome the Minister’s last point—that BIS is paying everybody in the department the living wage—but it would be even more welcome if he could give us a guarantee, as the Government say they support the living wage, that every government department should pay its employees the living wage. Also, should there not be a condition that people who have the advantage of gaining a public sector contract should be paid the living wage as well?
Lord Ashton of Hyde
The noble Lord is being a bit mischievous in trying to get me to give guarantees on behalf of every government department. I agree with him that it is a recognisable and suitable aspiration and we would like to do that.
Lord Stoneham of Droxford (LD)
My Lords, after the success of the coalition Government in raising employment and tax thresholds, is the next priority to raise the contribution rate for national insurance?
Lord Ashton of Hyde
I am not in a position to answer that but I will write to my noble friend.
Baroness Hollis of Heigham (Lab)
My Lords, in his Answer the noble Lord commented that the Government had ensured for people the security of a weekly wage. How does he ally that with the growth in zero-hours contracts, when more than 1.5 million people do not know on Friday what hours—and, therefore, what earnings—they will get on Monday?
Lord Ashton of Hyde
We have looked at the position of zero-hours contracts. We think that all workers, regardless of the type of contract they have, are entitled to core rights. We think that the flexibility offered by zero-hours contracts will suit some workers. Interestingly, the research from the CIPD found that those on zero-hours contracts say that they are equally satisfied with their job, but we are going to deal with some criticisms and problems with zero-hours contracts, such as exclusivity clauses and lack of transparency. That will be dealt with very soon in the business Bill.
Defence: Budget
(9 years, 7 months ago)
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Lord West of Spithead
To ask Her Majesty’s Government whether they intend to ring-fence the defence budget in the same manner as the international aid and National Health Service budgets.
Lord Newby (LD)
My Lords, the Government have set departmental budgets for the remainder of this Parliament. No departmental budgets are set beyond 2015-16, including for health, international aid or defence. However, the Government are committed to ensuring that we have properly funded Armed Forces, which continue to be the second biggest contributor to NATO, and to growing the defence equipment programme at 1% above inflation each year until 2020-21.
Lord West of Spithead (Lab)
My Lords, I thank the Minister for his Answer, as far as it goes. However, the defence cuts since 2010 are the largest since Options for Change in 1990, which were taken against a much bigger set of forces. On this very special day—I know that all of us are thinking of those who have given their lives for this country—it is a hard thing to say, but as Plato said, “Only the dead have seen the end of war”. Are the plethora of experts and, indeed, the Chiefs of Staff correct when they say that the structure of Future Force 2020 planned by this Government cannot be achieved without the injection of extra funding, which was promised by the Prime Minister in 2010?
Lord Newby
My Lords, I support the noble Lord’s comments about the importance of today. We must work endlessly to promote peace, which of course is partly the result of the defence budget, but is also something we do via our political, economic and aid budgets. There are many views on the appropriate level of the defence budget. All parties are considering what they believe an appropriate level of defence expenditure should be as they begin to think about the spending review, which will be conducted early in the next Parliament.
Lord Trefgarne (Con)
My Lords, is it not the case that the size of our defence forces ought to relate to the threat that we face? Is the noble Lord satisfied that the present size of our forces is sufficient for the new threats currently appearing?
Lord Newby
My Lords, the threats that we currently face are obviously very different from those that we have faced in the past. We have accepted that we would have a smaller but more flexible defence force, enabling us to deliver one enduring operation or two non-enduring operations. We are still committed to that. We are also spending increasingly more on cyber expenditure, including some £210 million next year on the national cybersecurity programme.
Lord Bilimoria (CB)
My Lords, following on from the remarks of the noble Lord, Lord West, does the Minister agree that the SDSR in 2010 was means before ends? It was negligent in that we had unpredicted events, one after the other—Libya, Iraq, Syria, Ukraine—and our Armed Forces cannot even fill Wembley Stadium. Will the Minister assure us that we will stick to the 2% spending commitment to NATO and that we will not cut our Armed Forces any more?
Lord Newby
My Lords, the Government are committed to that 2% for the remainder of this Parliament and into the next Parliament and to keeping the defence equipment budget growing. Any commitments in the medium term beyond that are commitments that the parties will be making in their manifestos.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, I am sorry for taking up time in the Chamber, but it is actually the turn of the noble Lord opposite.
Lord Liddle
My Lords, has the Minister read the analysis in Monday’s Financial Times which shows that, on the basis of what at least the Conservatives are proposing, the implications in the next Parliament for non-protected departments will be a budget cut of one-third? What might be the impact of this analysis on the defence budget? Does he believe that the Prime Minister’s assurances to the defence community carry any credibility whatever?
Lord Newby
My Lords, I did read the Financial Times article. It is fair to say that all the parties going into the next election will have different views about how to bear down on the deficit. The Conservatives have one view and the Liberal Democrats have a different view as to where the balance between expenditure cuts and tax rises should fall. I have no idea what the Labour view is.
Lord Palmer of Childs Hill
My Lords, I want to be more specific. The Government’s original plan was to purchase 138 F-35B joint strike fighter aircraft. This was reduced to 48 and it has been further reduced to 19. How will this commitment be affected by budget requirements and how will budget requirements and the needs of the defence of the realm be balanced?
Lord Newby
My Lords, at this stage of the Joint Strike Fighter programme, aircraft are being procured via a rolling programme of annual contracts which confirm customer requirements two years ahead of purchase. We will make further announcements on new contractual commitments in due course. The overall number of F-35 joint strike fighter aircraft to be purchased will not be determined before the next strategic defence and security review.
Lord Davies of Oldham (Lab)
My Lords, as on this day we look with sadness on the past, should we not also be constructive about the future? Does the Minister agree that the strategic defence and security review should be put on a statutory basis, brought before Parliament to ensure that it is robustly scrutinised, and that this process should take place once in each Parliament, as my party is proposing?
Lord Newby
My Lords, that is an interesting idea. However, the key thing is the content of the review, rather than the procedure.
Lord Stirrup (CB)
My Lords, the Minister referred to the fact this country is still the second largest contributor to NATO. Sadly, that is not a terribly high bar to clear these days. At the recent NATO summit in Wales, the Prime Minister stressed the importance of alliance members contributing at least 2% of their GDP to defence. While no one can commit the next Government, does the Minister not think that, were the current Prime Minister to form the next Government, it would be utterly bizarre if he and his party were not to adhere to this principle which he so strongly espoused so recently?
Lord Newby
My Lords, I really cannot comment about what the leader of the Conservative Party might think after the next election.
EU: Free Movement of Labour
(9 years, 7 months ago)
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Lord Taverne
To ask Her Majesty’s Government what assessment they have made of the recent remarks by the Prime Ministers of Sweden and Finland at the annual meeting of Baltic and Nordic leaders in respect of the free movement of labour within the European Union and its relationship with the internal market.
The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)
My Lords, the Government recognise the importance of free movement in relation to the internal market, but free movement is not an unqualified right. We are working with other member states to tackle abuse of this right and to ensure that we prevent sudden and uncontrolled migrations of the kind seen following previous accessions of new member states.
Lord Taverne (LD)
My Lords, the Prime Minister found himself isolated from his supposed friends and allies at the Helsinki meeting in his approach to the question of placing limits on the free movement of labour in the European Union. Does he recognise that, by his continuous appeasement of UKIP and by what the Economist called his recent “railing” against the institutions of Europe, he is setting Britain on the path of exit from Europe? Can the Minister assure us that there will be no more appeasement of UKIP before or after the Rochester by-election because, unless he changes course, in the event that he should become Prime Minister again after May he could go down in history as the Prime Minister who did more to destroy British influence in America, among our friends in Europe, in the Commonwealth and in the rest of the world than any of his predecessors?
Baroness Anelay of St Johns
My Lords, the Prime Minister was certainly not isolated when he met Prime Ministers at the Northern Future Forum. There was a strong and constructive discussion over dinner about many subjects, with migration clearly being an important one. Although it was a private meeting, the result was that when those present met the next day for their press conference, the Prime Minister was able to say in front of them and with their agreement that:
“I think there was common ground on a number of points”.
Some “problems and issues” had been identified in relation to welfare and benefits but,
“all of the countries around the table last night said that was something that should be looked at”.
He was supported in that by the Finnish Prime Minister, Mr Alexander Stubb, who thanked us for opening our borders in 2004, but also said that we should see what we could all do about the situation to try to alleviate it. In arguing for the interests of this country, the Prime Minister can find those of a like mind who see that a strong Europe addresses the problems that all states are facing. That is because it is to the benefit of all the states of Europe to ensure that we have a system of migration which is not an unqualified right, but is founded in the right to work, contribute to the economy and assimilate into society.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend agree that the Prime Minister, in seeking to ensure that we have control of our own borders, is not seeking to appease UKIP but is reflecting the views of the vast majority of people in this country? The failure of the Liberals to understand that may explain why their support is evaporating.
Lord Deben (Con)
Does my noble friend accept that it would be a good thing if both the Government and the Opposition spent a bit more time explaining why and what immigrants from the rest of Europe contribute to our economy, how much good they are doing here, and how valuable it is for us to have the free movement of our labour into the rest of the European Union?
Baroness Anelay of St Johns
My Lords, the Prime Minister is the first to explain how membership of a reformed EU is for the benefit of this country. I think that he did rather tease the Lithuanian Prime Minister by pointing out that 6% of the population of Lithuania now lives in the United Kingdom, so clearly we all have different problems with migration. My experience over the years has shown me that migrants form a very valuable part of our society. It is clear, though, that the increase in EU migration has caused some stresses and strains in some areas of the country on services such as health. That should be of concern to us all. We need to put that right to ensure that, when migration works, it is to the benefit of everybody.
Baroness Morgan of Ely (Lab)
My Lords, can the noble Baroness clarify whether the Government are still committed to reducing net migration to the tens of thousands by the end of this Parliament—no ifs and no buts? That is despite evidence, as the noble Lord has just suggested, that EU migrants alone make a £20 billion contribution to the UK economy. Can the Government confirm whether they are still committed to capping the number of EU migrants to Britain irrespective of the comments of the Prime Minister’s so-called allies? How does he intend to convince them that this would be a good idea?
Baroness Anelay of St Johns
My Lords, the latter point referred to by the noble Baroness, Lady Morgan, is of course not part of government negotiations. It is something that may be proposed in the future in a manifesto. On her first point, on television this morning the Home Secretary made clear our commitment to ensure that the numbers are reduced.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
If we are all very brief, we should be able to get in a question from the Cross Benches and a question from the Liberal Democrats.
Lord Bilimoria
My Lords, everyone would agree that we should clamp down on illegal immigration and those who come to take advantage of this country. However, is the Minister aware of a recent poll ranking the contributions of immigrant communities? One of the countries that came highest for a positive contribution was the Polish community, with 44%. On the other hand, the Bulgarians were on just 18%, although the Bulgarian ambassador pointed out that only 1,000 Bulgarians were on benefits. Why, then, do we not appreciate the contribution of immigrants from the European Community as well?
Baroness Anelay of St Johns
My Lords, we do indeed appreciate the contribution of those who come from the EU to work here. The problem relates to those who come and decide that they will not work. That is why we made changes to the benefits system; that is why Germany is in the process of doing much the same.
Baroness Ludford
My Lords, does the Minister welcome the judgment of the European Court of Justice just this morning, as I do, confirming that benefit tourism is not part of the free movement scheme, which is indeed a right to move for work? It has also confirmed the three-month wait period before even those genuinely seeking work can claim benefits. Does she agree that it is entirely in the UK’s interests to support the single market, including liberalisation of services, of which the free movement of people is a part? Cherry picking is therefore not in our national interest.
Baroness Anelay of St Johns
My Lords, I am grateful to my noble friend for drawing the attention of the House to a judgment that was handed down only this morning. It related to a case taken against the German Government and, in effect, the judgment confirmed that EU migrants who do not have sufficient resources to support themselves and would become an unreasonable burden cannot access national welfare systems. This really highlights that the EU needs a clearer legal framework, clarifying the original treaties and allowing member states to retain control over their own national security systems. It is an important judgment and we will look at it carefully. It will have ramifications across the EU and we will have to consider all matters in much more detail as a result.
Prime Minister (Limitation of Period of Office) Bill [HL]
Consumer Rights Bill
Baroness Jolly
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 60, Schedule 1, Clauses 61 to 63, Schedule 2, Clauses 64 to 70, Schedule 3, Clauses 71 to 75, Schedule 4, Clauses 76 and 77, Schedules 5 and 6, Clauses 78 and 79, Schedule 7, Clause 80, Schedule 8, Clauses 81 to 85, Schedule 9, Clauses 86 to 92.
Wales Bill
(9 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
13:47 - Division on Amendment 1 - Ayes: 146 / Noes: 215 - Amendment 1 disagreed.
Lord Elystan-Morgan
“Reserved powers for the National Assembly for Wales
The Secretary of State shall, within six months of the passing of this Act, lay a report before both Houses of Parliament on further legislative steps needed to establish a model of reserved powers for the National Assembly for Wales, which shall include a detailed timetable for implementation of this new model.”
Lord Elystan-Morgan (CB)
My Lords, this amendment, which stands in my name as well as the names of the noble Lord, Lord Wigley, and the noble Baroness, Lady Morgan of Ely, is dedicated to streamlining the constitutional transfer of authority to Wales and to making clearer the boundaries which, to some extent at the moment, are obfuscated. The effect of the amendment would be to place the constitutional transfer of legislative and other parliamentary authority to Wales on a reserved basis, rather than a confirmed basis.
The meaning of that in lay terms is, as I am sure nearly every Member of this House appreciates, that there are two ways in which a sovereign parliament can transfer power to a sub-parliament. One is to transfer the totality of a subject heading and then say that there will be certain reservations, spelling them out—A, B and C—so that one knows exactly where that boundary is drawn. The other way of doing it is less simple and far more cumbersome: transferring piece by piece different legislative powers or, in a much wider way, describing certain subject areas but without setting out in detail exactly what they mean. The latter is what governs the situation in Wales, I am afraid.
Following the referendum of March 2011, and under Schedule 7 to the Government of Wales Act 2006, there are 20 subject headings ranging from agriculture to the Welsh language. They are not intended to be definitive of the powers that are transferred; they are more descriptive. Then, they are qualified—again, in a general way—rather than setting out exactly with ruthless correctitude what reservations and exemptions there are. One cannot overemphasise the difference between those two systems. One achieves the very best that devolution can achieve. The second brings out most of the weaknesses in the situation and guarantees great difficulties in future.
The Welsh Assembly has seen a number of developments over the past 16 years of its existence. It started off as, essentially, an executive body with very limited powers of delegated legislation. I think only 4% of the time of its plenary sessions was spent in the examination of legislation. Then, with the Government of Wales Act, things changed considerably. There was the provision under Schedule 3 that enabled what might be called the “salami slices” of authority to be conferred. Indeed, some such transfers did occur. But the fundamental change occurred, of course, following the referendum of March 2011 with those 20 areas of authority. They are very considerable in totality. The calculation of the Silk report is that they represent somewhere between 50% and 60% of the total expenditure of government in Wales. The area of jurisdiction is very considerable.
However, the system falls down on the question of ascertaining swiftly and clearly exactly what has been transferred and within what limits. I have used this expression before and do not apologise for it: it is such as to create a constitutional neurosis among those who practise the vocation of law in Wales. That of itself may not be a bad thing but it means that you have to chase little pieces of legislation almost like confetti. You have to trawl through various instruments and legislative provisions to get the truth. Even then, you may not be absolutely certain that you have covered everything that might be relevant. In addition, the exemptions are in such general terms as to be ineffective —and, indeed, perhaps downright dangerous, because of the dubiety created in such a situation.
The amendment therefore asks for a complete transfer, clearly and specifically, of a subject heading, and then a remorseless description of every exception that can operate. That is no more than the Welsh people deserve, and I believe that a solid body of consensus has grown around it by now. It would mark the further maturity of the National Assembly for Wales, and would remove the areas of dangerous dubiety that exist. It is on that basis, and with some confidence, that I ask for support for this most necessary amendment to the constitutional situation in Wales. I beg to move.
Lord Morris of Aberavon (Lab)
My Lords, it is with pleasure that I support the amendment tabled by the noble Lord, Lord Elystan-Morgan. There are three reasons why I do so. First, the Welsh Assembly has won its right to a new and better model of government, and its right to be granted, like Scotland, all the powers not reserved to Westminster.
Secondly, with experience, it is now indefensible, within a small kingdom, to have different forms of government —for Scotland, Northern Ireland and Wales. Hence my firm belief, which I have advocated for some time, in the need, particularly post the Scottish referendum, to appoint a constitutional convention, with greater authority than the Kilbrandon royal commission because it would have party leaders on it, to give it maximum authority. Royal commissions have fallen out of favour; Kilbrandon itself was inconclusive. The thrust was there for devolving government, but the options were many.
Thirdly, with the symmetry of equality of powers for the three Governments, we could then consider the part that England would play in a federal state. I explored the proposals of the MacKay commission in my National Library Archive lecture last November, and surmised then that there would be a great deal of agonising before any agreement was reached. I trust that my party will take a statesmanlike view and a broader perspective than short-term number-crunching, and will make the good governance of the whole of the United Kingdom paramount.
The arguments against my noble friend’s amendment, which I have learnt from the considerable time that I spend in Spain, my favourite European country, amount to “mañana”—or, to paraphrase St Augustine, “Oh Lord, make me good—but not yet”. However, I am confident that the ever efficient Whitehall machine has already done a great deal of the spadework. Indeed, it had done that as far back as the devolution Bill of 1976, of which I was the architect—and, I suspect, also did it as part of the work on the schedule of powers in the most recent Act, to which my noble friend referred. Those powers were not delineated lightly. So, from my experience of legislating, my noble friend’s proposal of six months seems a perfectly reasonable time within which to bring forward proposals.
At Second Reading, we heard some quite ill informed criticism of the present arrangements. As the architect of Harold Wilson’s Bill, I plead guilty, together with the other members of the Government I was proud to serve. I was warned then that this was a novel and untried proposal, and that reserved powers would be much simpler. Let me enumerate briefly the realpolitik facts—they can be proven historically—about why the decision was taken on granting powers as opposed to reserving powers.
First, we were spoilt for choice by the many proposals of the Kilbrandon commission, which deserve rereading. Secondly, the first draft of the Queen’s Speech in 1974 did not include any devolution proposals. I was warned in the first few days of the new Government to send an amendment to No. 10 to include devolution, and I did so—as it happened, from my sick bed. The reason for the omission was that the Cabinet Office drafters thought that a reforming Labour Government would have other, more general, priorities in the first year of government.
Thirdly, my great fear was that there would be a Bill for Scotland but not for Wales—mañana again. Wales might come at the tail end of a Parliament. My mission was to hang on to the coat tails of Scotland and, if necessary, compromise my ambitions to ensure that there would be contemporary Bills in the early years of the Labour Government.
Fourthly, the Labour Party was split, and many of my colleagues lacked appetite for any kind of devolution.
Fifthly, the Cabinet was split. The Prime Minister was the main protagonist and appointed his two deputies in turn, Ted Short and Michael Foot—such was the importance of the committee—to chair the Cabinet committee dealing with the day-to-day work of drafting the Bill. The difficulties, fears and doubts of all Whitehall departments were paraded in the twice-a-week meetings of that committee.
Eventually, one of the greatest and most intellectual civil servants, Sir Michael Quinlan, a distinguished future Permanent Secretary in the Ministry of Defence, was appointed to head the Whitehall machine. I tend to gauge the prospects of success of a particular policy by the quality of the civil servants appointed to run it. I knew with the appointment of Sir Michael—he was Mr Quinlan then—that we would get the proposals over the hurdle of the Cabinet legislative committee.
If anyone wants intellectual analysis of our political difficulties, I invite him to read or reread the admirable diaries of the period written by my noble friend Lord Donoughue, who had a ringside seat at many of the all-day meetings in Chequers and elsewhere. They are historical proof of the difficulties resulting from the different views of the Cabinet. The opposition changed from meeting to meeting: Roy Jenkins, Denis Healey, Elwyn Jones and so on—all big beasts. At one time, my noble friend says, they were quarrelling like monkeys at Chequers. It was only the steadfastness of the Prime Minister that got us through, and I am eternally grateful to him.
The intellectual defence of our proposals, which we now find inadequate, was that we proposed what we thought we might get away with in the party, in the House of Commons and in Wales. That was the realpolitik. In the event, we were proved wrong because of, as Mr Macmillan once said, “Events, dear boy, events”. Now is the opportunity to right the wrong. I, for one, marvel, now that everyone—well, almost everyone—is a devolutionist, how far we have moved in the 55 years of my parliamentary life.
Lord Wigley (PC)
My Lords, it is a delight to follow the noble and learned Lord, Lord Morris of Aberavon, and to learn some aspects of this question that I had not been aware of before. I am very glad that he has added his considerable expertise and weight to support the amendment. I am delighted to support the words of my noble friend Lord Elystan-Morgan and I am grateful to him for putting this amendment forward. I pay tribute to him for his consistent advocacy for the maximum self-determination for Wales within the framework that we are discussing.
I moved a very similar amendment to this in Committee, supported by my noble friend Lord Elis-Thomas. I do not intend to repeat the arguments that I put forward then, but I would like to highlight two points. First, the basis for having a reserved powers model is that it would be similar to that in Scotland and Northern Ireland, so it at least has arguments of symmetry in its favour as well as the practical arguments that have already been outlined. Secondly, the reserve powers model was unanimously recommended by the Silk commission, which included people from all four parties in Wales. There were some discussions before coming to that conclusion, and clearly it is something that should carry weight.
The principle of that amendment in Committee was supported by noble Lords on all Benches. It was supported by the noble Lord, Lord Crickhowell—I was delighted at that time to hear his words—and by the noble Baroness, Lady Morgan of Ely, the noble Lords, Lord Thomas of Gresford, Lord Rowlands, Lord Richard and Lord Anderson, as well as my noble friends Lord Elystan-Morgan and Lord Elis-Thomas.
In her response to that amendment, the noble Baroness, Lady Randerson, said:
“I am delighted that there is now a broad consensus that moving to a reserved powers model of devolution is desirable”.
She assured the Committee that the Wales Office was,
“working proactively on how we go forward to a new reserved powers model … we must … ensure that sufficient work is done on the reserved powers model so that there is cross-party agreement”.—[Official Report, 13/10/14; col. 26.]
She was then challenged by the noble and right reverend Lord, Lord Harries of Pentregarth, as to why the reserved powers model,
“cannot be accepted in principle in the Bill, with all the details to be worked out in due course”.
In reply, the noble Baroness said that she would,
“take it away and think about it”.—[Official Report, 13/10/14; col.28.]
She invited me to withdraw my amendment, saying that events were moving on very rapidly. It was on that basis that I withdrew the amendment that I had put forward.
Well, we are now at Report stage. I warmly invite the noble Baroness, Lady Randerson, now to indicate that the Wales Office has indeed worked proactively on this matter and can now accept the amendment and tell the House of the anticipated timescale to get the constitutional change put into effect.
Lord Crickhowell (Con)
My Lords, I very much enjoyed the history lesson that we received from the noble and learned Lord, Lord Morris. It was a revelation of what life was like in the Labour Cabinet at that time. I also have a great deal of sympathy for what he said about the need for a commission to look at the whole devolution package of constitutional change, and I have also expressed my views on that.
As the noble Lord, Lord Wigley, has reminded the House, I have already expressed sympathy for the reserved powers model. I have just one point to make, which arises from the phrase in the amendment,
“within six months of the passing of this Act”.
The noble and learned Lord, Lord Morris, has said that a great deal has no doubt already been done and it should be possible to get a measure together within about six months. We have heard that the Wales Office has probably been doing some work on it. However, this Bill is likely to pass into law quite quickly, and I am a little concerned, if more work needs to be done, that the implementation of this proposal might be required almost exactly at the time of the general election—or perhaps even worse, in the interesting period that may follow it, when attempts are being made to form a coalition Government.
It does not seem to me to be very wise that a new Government in those circumstances should be required, almost as their first act, to bring in this measure. My concern is that by using that phrase “within six months of the passing of this Act”, the noble Lord may have inadvertently created an unnecessary obstacle and difficulty. I would be happy with the general thrust of the amendment if we had a rather more relaxed timescale so that, if the matter has to go beyond the general election, it would enable it still to be dealt with expeditiously but not in the immediate aftermath of that general election.
Lord Elystan-Morgan
The six months is not set in stone at all. I think it necessary to have some idea of a timetable to concentrate the mind, as Dr Johnson might have said. However, I do not think that six months is sacrosanct. If a manuscript amendment or any such change was appropriate, I would willingly be prepared to make such amendment.
Lord Crickhowell
But the fact of the matter is that this is a requirement, as the amendment is now drafted. It would be necessary to find some way, perhaps at Third Reading or in some suitable way, to give the flexibility that he is prepared to allow.
Lord Thomas of Gresford (LD)
My Lords, I, too, was very much interested in the historical statement that we had from the noble and learned Lord, Lord Morris of Aberavon. His was a very important speech, which I am sure will find its way into the history books of the time.
I indicated in Committee that, in the Bill that I drafted in 1967, we had a reserved powers model which was presented by Lord Hooson in the Commons and by Lord Ogmore in this House. Shortly after that, I gave evidence to the Kilbrandon commission and called for a reserved powers model. When the Government of Wales Act was going through in 1998, I was calling for a reserved powers model. If this amendment today were for a reserved powers model, I would be in very considerable difficulty. However, the amendment tabled by the noble Lord, Lord Elystan-Morgan, is one of timing and, as he has just indicated, he is prepared to be flexible about that timing. In such circumstances, I am prepared to defer to the views of my noble friend the Minister, who I know shares my views on this issue.
Lord Howarth of Newport (Lab)
My Lords, I thank the noble Lord, Lord Elystan-Morgan, for his amendment and for the flexibility that he has just expressed. As he says, we have now achieved critical consensus in support of a reserved powers model, which is a result of the growing esteem in which the reputation of the Welsh Assembly is held and the maturing of time.
I think that it now strikes almost everybody—I hope that it strikes the coalition Front Bench—that it is a matter of simple equity between Wales and Northern Ireland and Scotland that devolution should be reconfigured for Wales so that it is on a reserved powers basis. That must make pragmatic sense because it is highly undesirable that questions of policy jurisdiction should have to be resolved in the courts. This is a policy for which the time is ripe. Whether it will be precisely ripe in six or nine months’ time is something that we can consider, but the noble Lord is drawing attention to a matter upon which we should now seek to precipitate universal agreement.
I was fascinated by the historical excursion of my noble and learned friend Lord Morris of Aberavon and I would demur in only one respect. It is presumptuous for me to do so, given his vast experience of these matters, but I am apprehensive about his proposal for the scope and make-up of a constitutional convention. It has suddenly become very fashionable to favour a constitutional convention, since the dramatic and very difficult events that occurred in Scotland—indeed, in the United Kingdom—only a few weeks ago.
I am not against a constitutional convention, and I think it would be a good idea to have senior politicians as members of such a convention along with academics who are deeply expert in these matters, constitutional lawyers, appropriate representatives of civil society and so forth. However, I think it would be a very bad idea for party leaders to be members of such a convention. They would be prudent to keep their distance from the convention, because the problem for a convention is that, toil as it will and wise as its members may be, almost certainly they will get it wrong. As my noble friend acknowledged, the Kilbrandon royal commission was inconclusive. I think he even said of himself and his colleagues and partisans in that Labour Cabinet, “In the event we were proved wrong”.
The complexity and scale of potential constitutional change is such that even the wisest are most unlikely to hit upon a blueprint for the future of our constitution that will prove as universally beneficial as they hope and stand the test of time. Even the preternatural wisdom of those who met at Philadelphia seems now to be tested by events. Many people consider that the constitution of the United States of America has become pretty dysfunctional. Well, it has served its purpose very well for a very long time. But there are many other instances of constitutional conventions that have started off in a blaze of optimism and ended in a blaze of political destruction, so we should be very cautious about this. Constitutional change occurs most benignly when it is incremental and incrementalism has been the approach for constitutional change in Wales.
The amendment of the noble Lord, Lord Elystan-Morgan, proposes one more phase of incrementalism. It invites us all to acknowledge that the moment has come for devolution to be reconstituted on a reserved powers model. Let us be content with that as we think further and feel our way forward on some of the more difficult aspects of all of this.
Lord Deben (Con)
My Lords, I rise because I feel that there ought to be an examination of what the noble Lord has just said. I am very unhappy about this amendment although I agree with it in terms of the next increment. I just think that we are fumbling around in constitutional discussions without taking things in the round. It is all right talking about increments but there has been no constitutional incrementalism as far as England is concerned. That is our problem and we ought not to allow ourselves to continue with these bits—a bit here, a bit there—with no real consideration of the totality of the United Kingdom.
We are fumbling in the dark and I very much hope that my noble friend will not accept this amendment, not just because of the time but because I hope she will go back to the coalition Government and say that, although it may be tough, there comes a moment in a nation’s life when it has to consider what its constitution ought to be as a whole, not just in bits, and what happens to the other bits when you change some of them. We must face up to it. I know it is not going to be perfect and I know it is going to be very difficult but if the choice is between randomness and trying to work something out, I am in favour of rationality. I want people to think this through and try to discover what the balance ought to be.
As the son of a Welsh-speaking father I have some reason to congratulate the Welsh people on the way in which devolution has worked in the Principality. I am not speaking against this because I do not think that it should continue; I am merely saying that the United Kingdom matters too much for it to be left—
Lord Cormack (Con)
I am most grateful. I am very much in sympathy with what my noble friend is saying. Does he agree with me and others that a royal commission might well be the answer here?
Lord Deben
Well, it would seem the obvious answer, but the real question is that the United Kingdom matters too much for it to be the result of a series of random decisions about each bit of it. We ought to start the other way round.
Lord Thomas of Gresford
Does the noble Lord not agree that if it were not for the pressure for change in Scotland and Wales in particular, and perhaps in Northern Ireland, England would do nothing? Therefore, if we do not have that pressure, there is no incentive. Rationality is all very well, but you need to do something.
Lord Deben
I quite agree with my noble friend, but that pressure is there. It has been there, and it has meant that we have had to do things. I have always believed that we should have worked this out rationally before we were pressurised into it, but pressurised we have been. It is not going to stop now. Let us make the answer rational. Let us not just say that we will add another bit here and another bit there and hope that the result is something sensible. I believe the moment has come to grasp this nettle, not to say that it is too difficult. Let us do it as well as we can. It will not be perfect, but I suggest to the noble Lord that it is more likely to be closer to perfect if it has been thought through rather than if it happens accidentally.
Lord Richard (Lab)
My Lords, I did not intend to speak in this debate until I heard the speech from the noble Lord, Lord Deben. I shall make two points. First, he is absolutely right that the constitution of the United Kingdom as a whole needs a good looking at. There is no question about that. It needs looking at rationally, sensibly and at a very high level. Therefore, I have for a long time been in favour of some kind of convention or royal commission which would do precisely that task. That is one issue.
The other issue is what you do about Wales now. You cannot mix the two up and pretend that the Welsh issue is not an issue that has to be dealt with before the royal commission begins to sit. The position with the Welsh Assembly at the moment is that it has—to use the noble Lord’s phrase—an irrational system whereby it is entitled to legislate. I would have thought that the noble Lord would agree that perhaps some rationality should be brought into the Welsh system. You would then at least have conformity between Wales and Scotland.
The relationship between the devolved Administrations and the centre is precisely the issue that then has to be looked at by a royal commission when it comes to consider the constitution as a whole. I do not think you can just pretend that the situation in Wales does not really exist and wait for the deliberations of a royal commission, which may take some time, as they usually do, and when it reports, the report usually takes a long time to be properly considered. I think there is a distinction there.
Lord Elis-Thomas (PC)
My Lords, I am a little reticent to enter the debate on the basis of rationality because I once had to resit an examination in logic, happily in the university of which I am now the chancellor, so some things work out. This has been an extremely illuminating debate for all of us, not least because we have had further highlights from the memoirs of the noble and learned Lord, Lord Morris of Aberavon, which I am sure many noble Lords have already read. I remember those days in the 1970s very vividly. I pay tribute to him for his consistency in this matter and for his consistency at that time. He has pointed out how he was so keen to ensure that there was not a flanker movement on the part of the Scots, as there always is in politics and occasionally is in sport. He ensured that the issue of Wales stood alongside the issue of Scotland at that time. We had a few cups of tea, and other things, at that time to discuss these matters, and we are where we are today because of the way that he stood firm.
If this is the day of the eulogy of the conferred powers model, I want to say some positive things about it. I was elected Presiding Officer in the Assembly, and I had to work with the three constitutions we have had so far: the executive period; the transitional period of the late lamented—perhaps not—requests for permission to legislate; and now the period post the 2011 referendum on the conferred model conferring full legislative powers with exceptions.
As I mentioned in Committee it is important to say that in constitutional theory, as far as I am concerned, conferred powers with reduced or no exception, bring us to the same place as reserved matters. It means that the subject set out in Schedule 7—the latest and most relevant model—and Clause 108 of the Government of Wales Act 2006 gives us those powers as defined. There is no ambiguity there.
Lord Empey (UUP)
My Lords, far be it from me to intervene in a discussion among the representatives of the people of Wales on their devolution, but I wanted to make an observation. As someone who was involved in negotiating a reserved powers model some years ago, I can tell noble Lords that it is not the Valhalla that they expect it to be; it has its downsides as well as its upsides.
I wanted to comment on some of the remarks from the noble and learned Lord, Lord Morris of Aberavon. First, on the consistency issue throughout the United Kingdom, I do not think that it will be achievable to have an entirely consistent model everywhere. Indeed, why should we necessarily have one? The famous vow issued immediately before the Scottish referendum had a section in it that almost supersedes devolution, by almost implying that the Scottish Parliament will be a totally free-standing and permanent institution that is not in future perhaps capable of being legislated over by this Parliament. That is one interpretation of the vow.
The noble Lord, Lord Deben, made a significant point when he said that the people of England may feel left out of the constitutional debate. There is quite a bit of substance in that, but I point out to him that it is the Government who have brought forward in this year alone the Northern Ireland (Miscellaneous Provisions) Act, which brought more powers to the Northern Ireland Assembly, as well as the Scotland Act, which gave more powers to Scotland—and now they are bringing forward the Wales Bill. Parliament can respond only to the legislation that the Government of the day bring on to the Floor of the House—and it is the Government who are bringing forward these Bills.
Lord Deben
The noble Lord is saying what I said—that this is how it is being approached and I think that it should be approached in a different way.
Lord Empey
The noble Lord will get no argument from me on that. How we are going about our business is a tragedy in many respects. Obviously, this Government have tried hard on the economic front, and so on, to help us recover, but their Achilles heel has been how they have dealt with constitutional matters. This is only part of it; there are other examples from the earlier days of the coalition Government, when things were brought forward that were not successful. So there is no question that we need to get a grip. There are those with much more parliamentary experience than me—and, whether it is through conventions or royal commissions, we have got to get a grip on this.
I see that the noble Lord, Lord Sewel, the Lord Chairman of Committees, is in his place. The question of how this Parliament relates to the devolved institutions has not been satisfactorily resolved. The Minister will know that on a number of occasions I have raised issues about the fact that the Sewel convention operates in a particular way; it was a product of its time. By removing this House from anything to do with the day-to-day running of the devolved regions is a mistake. It was a historic mistake in my own part of this country because, if Parliament had had some engagement between 1920 and the late 1960s, we might not have ended up in the position we were in. Noble Lords should not believe that it is not possible for something similar to happen in Scotland, Wales or any other form of devolution. This Parliament cannot absent itself, because it is voting on how the resource, in very large measure, will be dispensed by these devolved Administrations.
In our devolution debates, I said that there was a risk that the devolved institutions would become giant ATM machines, and that local people would see all this money flowing out and the local politicians all at it, cutting the tape. I am sure that the Minister has had her day of glory doing that, as did many of the rest of us who were devolved Ministers. The fact is, if we run out of money or do not have enough, as is the position at home, the evil Westminster Parliament is to blame. We cannot have our cake and eat it, so there is an issue to be resolved on how the people of England are dealt with. They are becoming frustrated and angry, which cannot be right. That cannot be good for the United Kingdom.
I also just observe on this amendment that, as the noble Lord, Lord Elystan-Morgan, has already conceded, the six-month deadline is neither practicable nor realistic. I am sure that he will bring forward proposals to amend that in due course.
The Government are continuing to introduce these Bills, and they are being brought forward in a totally independent process from looking at the wider constitutional issues. The more Bills on devolution, the less consistent the United Kingdom becomes. That only exacerbates the position of the people of England, which must be resolved. It is entirely inconsistent that the regions get these powers, if indeed that is what they want; if anybody thinks that the people of Northern Ireland are queuing up for more powers, with the sole exception of corporation tax, I have to say that that is not our position. On the idea that we have income tax powers devolved to Stormont, for instance, I do not particularly look forward to paying 99p in the pound. I think that is where we would end up. At the moment, I believe that the incremental process is the right model to follow. I hope that we get off the blocks, whatever we do in England, but things cannot be left as they are. I think that everybody knows that.
Lord Hunt of Wirral (Con)
My Lords, in declaring my interest as recorded in the register, I mention in particular my chairmanship of the Society of Conservative Lawyers. In an attempt to satisfy my noble friend Lord Deben, I refer him to a very detailed report on devolution as a result of a group headed by a senior barrister, Anthony Speaight QC, which concluded that the time has come to move from a conferred powers model to a reserved powers model in Wales. That should be put in the context of other necessary changes.
I greatly welcome the consensus which exists, and which I have heard in this House today for us to move forward on the reserved powers basis in Wales. I, of course, agree with my noble friends Lord Crickhowell and Lord Thomas of Gresford that the timetable set out here is unrealistic. I look forward to hearing from my noble friend how we should proceed. My message is simply that the time has come, and let us now move on.
Lord Cormack
I shall be very brief. The noble Lord, Lord Empey, made an interesting speech and I have much sympathy with so much of what he said. He said that you cannot have your cake and eat it, but of course you can; you cannot eat your cake and have it. We should get that aphorism right in this House. We are in danger of getting things in a real muddle if we are not careful. My noble friend Lord Deben, as always, made an extremely persuasive, articulate and convincing speech, and I think that we have to move to a royal commission very soon before we get more tangled up in constitutional change that has not been properly thought through. When we were debating the future of this House, time and again people were saying that form must follow function. That is right. We have to determine what the respective Governments within the United Kingdom do before we make final decisions on how they relate to each other. While I accept that the Bill before us—one of a series of random Bills, as my noble friend Lord Deben said—has to be dealt with, I infinitely regret the constitutional incoherence with which this coalition Government have behaved over the last four years. They have not served the commonwealth in any way whatever.
Baroness Morgan of Ely (Lab)
My Lords, it is wonderful to listen to noble Lords who worked so hard to establish the Welsh Assembly and have the battle scars showing the history of all that went on. The establishment of the Assembly was a gift to my generation and the generation that follows it. Even more importantly, people support it and, indeed, are asking for more powers for the Welsh Assembly. However, it is worth noting that the appetite for independence in Wales has dropped to an all-time low of 4%.
I have a degree of sympathy with the position adopted by the noble Lord, Lord Deben, as this hotchpotch of constitutional efforts to put things together lacks any consistency or coherence. That is the way we have traditionally done it and that is why the Labour Party supports the establishment of a constitutional convention. However, if you follow the logic, you would have to throw out the whole Bill and I do not think that we would like to see that happen. There is an appetite for the Bill to go through. We want to see some important points in this legislation being adopted, particularly the ability for the Welsh Assembly to have borrowing powers. Having said that, it is also important to draw attention to the fact that the constitutional model on which the Welsh Assembly is established has passed its sell-by date. This amendment seeks a massive simplification and clarification of that system of governance over the current so-called conferred powers model.
At present, it is not at all clear what is devolved to Wales. As the noble Lord, Lord Elystan-Morgan, pointed out, if you want to be absolutely sure about that, you have to consult countless Acts and be an expert on constitutional law. That does not help transparency or accountability, both of which are important when there is a clear problem about the way in which people relate to politics. At the very least they need to know who is responsible for what. The introduction of a reserved powers model would help that.
On two occasions, the Welsh Government have been challenged in the courts in relation to their power in certain policy areas. On those two occasions, the UK Government lost the case against the Welsh Government, most recently in relation to the retention of the Agricultural Wages Board in Wales. Thankfully, even the Government have now seen sense and recognise the need to change to a reserved powers model. In Committee, the Minister suggested that a lot of proactive work is already being done on how to move towards a new reserved powers model. We look forward to hearing more detail of how the Government intend to do that. However, the Minister also suggested that pushing for this now would prolong the process and cause serious problems for the Bill in the other place. I do not concur with that assessment because we know that there is a cross-party consensus for this position. We know that much of the work has already been done, as was indicated by the noble and learned Lord, Lord Morris, so we do not understand why the Bill cannot refer to the reserved model and accept in principle that which we all agree with. It makes sense to be given clarification on this prior to the general election and the Assembly election. We understand that there may be a problem with the timing but we are looking for clarification. It makes sense to lay the report before the end of the six-month period; you do not have to take six months in its entirety. There is no reason why we cannot get on with it before then.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)
My Lords, there has been a strong sense of history here today and I would say that this Bill adds its little bit to that history.
Amendment 1, in the name of the noble Lord, Lord Elystan-Morgan, would require the Secretary of State to lay a report before both Houses six months after this Bill has received Royal Assent, setting out a timetable of the legislative requirements for a move to a reserved powers model for the National Assembly. As many noble Lords have said, Amendment 1 reflects the general consensus that a move to a reserved powers model for Wales is desirable. The noble Lord, Lord Elystan-Morgan, explained the disadvantages of the conferred powers model and the noble Lord, Lord Elis-Thomas, referred to working with that model. As a Minister in the Wales Office working with that model on a daily basis, I am well aware of the issues. Several noble Lords have provided us with a vivid analysis of the weaknesses of the current model. The noble and learned Lord, Lord Morris, said of the 1970s model that the Government proposed what they thought they could get away with. One may possibly make the same judgment of the late 1990s model, which is the one that was used to establish the Assembly. It is reflected, of course, in the conferred powers model.
A change to a reserved powers model would provide much needed clarity in the devolution settlement—clarity which would make further referrals to the Supreme Court less likely. The Government fully agree with the underlying intention of the noble Lord’s amendment, if not with its detail. Rather than waiting for Royal Assent of this Bill, the Government intend to take forward work over the next few months to produce a reserved powers framework for Wales. Through cross-party discussions and discussions with the Welsh Government, my right honourable friend the Secretary of State and I intend to produce that reserved powers framework and a set of commitments to further devolution agreed by all the parties by St David’s Day 2015. This will be a comprehensive look at the whole picture. Several noble Lords have discussed the need for a constitutional convention. I am sure noble Lords will recognise that this is not something for today. However, in respect of Wales, the Secretary of State—
Lord Cormack
I apologise for interrupting my noble friend but I am very troubled about these artificial symbolic dates. Fixing something by Burns Night or by St David’s Day does not march well with the constitutional consistency and coherence that I talked about.
Baroness Randerson
The noble Lord possibly does not recognise the importance of St David’s Day in Wales. However, the day is chosen not simply because it has significance within Wales but because it falls conveniently before the next election and before the start of the campaign proper of the next election.
Lord Anderson of Swansea (Lab)
The Minister has made a very important concession. Clearly, the Government have listened very carefully to what was said in Committee, but the problem remains of what vehicle will be used to bring this new consensus into operation. The noble Baroness will know how difficult it is to find a slot in the legislative programme. It is also very difficult, obviously, for the Government to give any firm undertakings. How does she respond to that?
Baroness Randerson
The noble Lord makes an important point. By moving forward on a cross-party basis, it is the intention to ensure that there is commitment across the four parties in Wales to ensure that the Bill can come forward in the early stages of the next Parliament.
Lord Forsyth of Drumlean (Con)
I apologise because I had to leave the Chamber for part of this debate. I do not understand. If my noble friend is talking about doing this by St David’s Day, which I think is in April—
Lord Forsyth of Drumlean
In March; forgive me or I shall ask people to tell me when Burns Night is. If my noble friend is talking about doing this within six months, why on earth is she against the amendment?
Baroness Randerson
The amendment refers to starting within six months of Royal Assent to this Bill—and, of course, that will not take place for some time yet, even assuming that it has a swift passage through the other place.
Lord Morris of Aberavon
I may have misheard, or it may have been a slip. Did the noble Baroness say St David’s Day 2016 or 2015?
Baroness Randerson
I will of course look at the record but I was firmly intending 2015. I think noble Lords understand that.
Perhaps I may have a moment to flesh out a little further the plans that my right honourable friend the Secretary of State and I are attempting to achieve. We are determined to achieve a comprehensive approach to the next stage of devolution in Wales and to achieve cross-party consensus. The simple fact, therefore, is that the noble Lord’s amendment is unnecessary.
The Government are committed to taking forward an ambitious programme for Welsh devolution and to achieve that programme through agreed, cross-party discussions. It is an ambitious timetable—much more ambitious, certainly, than that proposed in the amendment —but it is achievable and the Government are committed to delivering on it. Indeed, it is important to note that we are already working on this.
In this context, I urge the noble Lord to withdraw his amendment because the Government are determined to deliver on these commitments. We want to establish a common set of commitments that all parties in Wales have signed up to for the 2015 general election. This is an historic opportunity to achieve a major step towards a lasting and fair devolution settlement for Wales so that we are not constantly, year in and year out, having an ongoing discussion about what the next powers to be devolved to Wales should be. We want to settle this for the foreseeable future. I therefore urge the noble Lord to withdraw his amendment.
Lord Elystan-Morgan
My Lords, seldom have I been so proud to be a Welshman and a Member of this august House. It has been an excellent debate. Many issues have arisen—some of them bordering on the philosophical, if not the metaphysical. One could spend many hours on the matters raised by the noble Lord, Lord Deben. All I say to him on the issue of the survival of the Anglo-Saxons, as far as the parliamentary institutions are concerned, is that he can sleep quietly, peacefully and happily in his bed. There is no danger that they will be swamped by the Celts on the fringes of the United Kingdom. It is an old question. It was raised in Gladstone’s time in 1893. The difficulties then were regarded by him as being insurmountable—of dividing a purely English issue from those matters that were directly or indirectly relevant. That will be the whole question. However, that is a matter for another day.
We have had an excellent debate and I am very grateful indeed to everyone who has contributed to it. The hallmark of the debate was unity. The consensus on this matter transcends every political boundary. That has not come about by accident. I have already paid tribute to the noble Lord, Lord Bourne of Aberystwyth, and to the noble Baroness for the work that they have done over a long period in laying the foundations of such a consensus.
The Minister has graciously told the House of plans that the Government already have to bring about these changes. Clearly, work has been done already. It would not have been possible for the seventh schedule to the 2006 Act to be contemplated—the 20 different areas of authority—without considering with some care exactly where that left one. However, I still think, with the greatest respect to my noble friend Lord Elis-Thomas, that there are massive ambiguities. However, it is not for an ex-circuit judge to try and animadvert on the wisdom or otherwise of the attitude of very senior judges in this matter.
The offer made by the Minister is generous but turns on many contingencies. Presumably, the work will be done by 1 March—not 1 April—2015. Then it will be for the next Government to decide exactly when and how the proposals will be brought into law. Who will the next Government be? Is there a Delphic oracle who can tell us? Can anyone read the runes or look at the entrails and tell us who is likely to succeed? If we pass the amendment—I will ask the House to divide on the matter—we will be giving the noble Baroness strength vis-à-vis Her Majesty’s Government. We will be placing solidly and clearly, and with total resolution, exactly where we stand. I say “we” because I hope that I can speak for the people of Wales in this matter. There is unanimity and a sense of urgency. Time is of the essence. Therefore, I hope that the noble Baroness will not think me churlish. It is as much to strengthen her arm and in no way to frustrate her position that I ask the House to divide.
Wanless Review
(9 years, 7 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, with the leave of the House, I shall repeat in the form of a Statement the Answer given by my right honourable friend the Home Secretary to an Urgent Question in another place. The Statement is as follows:
“On 7 July I told the House that the Home Office Permanent Secretary had commissioned Peter Wanless and Richard Whittam QC to conduct a review of two existing independent reviews into how the Home Office had acted—or failed to act—on information it had received in the 1980s about child abuse. The full report by Peter Wanless and Richard Whittam QC has been published today. A copy has been placed in the House Library. I want to place on record my gratitude to them for their thorough work.
In terms of the first review considered by Wanless and Whittam—which was about the extent to which the Home Office acted on the ‘Dickens dossier’—they say,
‘we found nothing to support the concerns that files had been deliberately or systematically removed or destroyed to cover up organised child abuse’.
In terms of the second review considered by Wanless and Whittam—which was about whether the Paedophile Information Exchange ever received any funding from the Home Office—they say,
‘we have seen no evidence to suggest that the Paedophile Information Exchange was ever funded by the Home Office because of sympathy for its aims’.
Wanless and Whittam have made three sets of recommendations for the Home Office, all of which relate to the way the department deals with sensitive allegations, how officials pass such information on to police, and how the details are properly recorded. The Permanent Secretary has accepted all three sets of recommendations.
I want to make sure that we leave no stone unturned when it comes to the work Peter Wanless and Richard Whittam have undertaken. So I have written to them today to seek further reassurance that the police and prosecutors acted appropriately upon receiving information relating to the Dickens dossier or related matters from the Home Office. I have also asked them for similar assurance about any such information that was passed to the security services and if any such information was passed to them.
I should also make clear that the Wanless and Whittam work is about how the Home Office responded to information relating to the Dickens dossier, how the police and prosecutors acted on any information passed their way, and—because of concerns expressed by many people including Members of this House—how the security services also responded to that information. Their work does not relate to wider allegations about child abuse or the failure of institutions—including police, prosecutors, security and intelligence agencies and government departments—because those are matters for the panel inquiry which I have established and whose work is now under way.
Many people who have made allegations relating to child abuse and the failure of the authorities to prevent abuse have been ignored for too long. Some have even been written off and traduced as conspiracy theorists. I want to be absolutely clear that nobody with any information about child abuse should be ignored, nobody should be written off or dismissed, and nobody should be left to themselves. If we want to get to the bottom of what has been going on in our country for far too long, we need to come together, to work together and to listen to what survivors and witnesses have to say. That goes for all of us in positions of responsibility—the police, prosecutors, government officials, Members of Parliament, public servants in a whole range of institutions and beyond.
The Home Office Permanent Secretary commissioned Wanless and Whittam to establish what the department did and did not know and does not know. Their work shows that the original reviews did not cover anything up, but neither do they prove or disprove that the Home Office acted appropriately in the 1980s. Likewise, they do not prove or disprove that public money ever found its way to the Paedophile Information Exchange. This is no fault of Peter Wanless or Richard Whittam, who have been investigating all files, many of which seem no longer to exist. I know that this is a cause of frustration for everybody, but this is not the only aspect of this case. As several honourable Members have said, there are other allegations, other lines of inquiry and other possible evidence that needs to be considered.
The right place for the consideration of these matters—apart from the live criminal allegations which should be dealt with by the police—is the panel inquiry into child abuse that I have established. That inquiry will be comprehensive in looking at institutions in this country, accessing all relevant paperwork and taking evidence from survivors and witnesses, so we can expose what has been going on. It may take time, and I know we have slipped twice in our attempts to get this right, but I am determined that we will succeed in doing so—and I know the whole House shares with me that determination”.
My Lords, that concludes the Statement.
Baroness Smith of Basildon (Lab)
My Lords, I am grateful to the Minister for repeating that Statement but I am sorry that the Government did not choose to make a Statement to Parliament today. We had to request one in the other place through an Urgent Question.
These are very serious matters. We do not know how many children and young people’s lives have been damaged through sexual abuse—damage that was then compounded either because their accounts were not believed or, worse, because of a failure to investigate followed by a cover up. That makes openness, honesty and transparency all the more essential. I hope that the noble Lord will take this message back to the Home Secretary and that he can assure us that, as this matter progresses, any Statements will be made orally to your Lordships’ House to give noble Lords the opportunity to question and to clarify points on which they may seek assistance.
It was appropriate that the Home Secretary added her thanks to Peter Wanless and Richard Whittam QC. Clearly, they answered their responsibilities with great care and dililgence. I note their comments about not having been involved in the drawing up of their terms of reference and about public confusion around the inquiries. We need to make the distinction that the reviews we are talking about are reviews of evidence previously examined and not a full inquiry, although they did seek further information and were clear that they were not hampered in doing so.
Has the Home Secretary had further discussions with Mr Whittam QC and with Mr Wanless about whether there were areas outside their terms of reference that they now feel should be examined further? I am curious about paragraph 5 of the Statement that the noble Lord repeated. Although it is welcome, I seek some clarification. The Home Secretary said that she has written to Peter Wanless and Richard Whittam,
“to seek further reassurance that the police and prosecutors acted appropriately upon receiving information relating to the Dickens dossier or related matters from the Home Office”.
She has also asked for some reassurances from the security services.
I have had only a brief opportunity to read through some of the first report because it has not been available for long. It states how hard it is to establish the truth because acquiring evidence as to whether information has been destroyed or whether it was filed in the first place is extremely difficult. Is the noble Lord able to tell us whether the Government consider that other sources of information should now be made available to Mr Wanless and Mr Whittam, and have they asked for greater access? I would be interested to know how they can offer further reassurances because they seem to have been thorough with the information which has been made available to them. Is more information being made available or will there be greater access? I am just asking how they can offer a further assurance.
The Government’s inquiry, when it starts properly with a new chair, is to be overarching and wide-ranging. These reviews into the previous reviews seem to highlight a slightly different issue. What is needed are investigations into, first, the cover-ups, and secondly, the destruction of evidence. Is the noble Lord satisfied that these issues will be fully addressed?
Lord Bates
I am grateful to the noble Baroness for welcoming the Statement. We have had a number of Statements on this issue, which I think is indicative of the fact that, as other noble Lords have put it, we are very much lifting the stone here. We are gradually becoming aware of the scale and scope of what has been going on in our country for far too long. I suggest that there will probably be many other occasions when, sadly, we will have to discuss these matters in our effort to get to the root of them.
On the noble Baroness’s point about cover-ups, it is important to say that Wanless and Whittam did not find any evidence to prove either that there had been or there had not. We are not trying to say that there were no cover-ups, only that thus far there is no evidence to show that there were. We also need to remember that Wanless and Whittam were asked to undertake their work after the Permanent Secretary at the Home Office had conducted his own internal inquiry into suggestions that had been made about the so-called Dickens dossier. The terms of reference were narrowly defined for the specific purposes of speed and to give the public confidence that the investigation by the Permanent Secretary had been carried out thoroughly.
In response to the specific point about other agencies that might have been involved, this has led the Home Secretary to write today to Peter Wanless and Richard Whittam to ask them not just to look at what happened within the Home Office but to satisfy themselves about information that was passed to the police and to the then Director of Public Prosecutions. Within that ambit, which relates to the specific point about the security services, there was a suggestion that copies of these documents may have been held by the security services, and that this was simply a follow-up by the Home Secretary who wants to be absolutely sure about all these issues. This is an unfolding story and it will be well within the scope of the independent inquiry to take evidence from any of these people and to pursue any lines of inquiry that may come out of the additional information.
Baroness Walmsley (LD)
I thank my noble friend the Minister for the Statement and I particularly welcome the assurance that, in future, files in relation to child abuse will be marked with the significance they so richly deserve, because they are about such a horrible crime. In relation to the last paragraph of the Statement, does my noble friend recognise that the inquiry panel is not the only opportunity for the survivors of child abuse to make their views known? Is he able to tell me when the public consultation on mandatory reporting will be launched? If not, I am sure he will write to me. Finally, is the Home Office working with other relevant departments to consider how budgets should be deployed in the future? I ask this because, as we carry out all these inquiries, it is absolutely certain that a whole lot more child abuse that was previously hidden will be exposed through the sanitising effect of daylight. That means an awful lot of survivors will require services, which will cost money in the short term but save it in the long term.
Lord Bates
I am grateful to my noble friend, and I shall respond to her with three brief points. The first is on record-keeping. Very specific recommendations were made by Richard Whittam and Peter Wanless, all of which have been accepted. We are looking to improve the system. The second refers to mandatory reporting. We were discussing this with officials just yesterday and we are looking to work with my noble friend on the terms of the inquiry and will seek her expertise on how to set it up. On budgets, the Home Secretary has said that she recognises that, as we lift this stone, additional burdens will be placed on many agencies, chiefly the police in the first instance. She is discussing that with the national policing lead, and by inference she remains open to the statement that the police may need more resources.
Lord Lexden (Con)
Does my noble friend have any information about the criteria that were used in the past to determine which files should be destroyed and which preserved?
Lord Bates
I do not have the information to hand, but it is a good question and I shall make sure that we write to my noble friend on that point.
Baroness McIntosh of Hudnall (Lab)
The noble Lord and his right honourable friend the Secretary of State are placing great reliance on the upcoming independent inquiry. I believe that he said in the Statement he has just repeated that the inquiry had already begun its work. Can he give us any up-to-date information on whether it is likely that a chairman for the inquiry will be announced any time soon, and who is chairing it in the mean time?
Lord Bates
The panel is working together as a team without a chair at the moment. The members are requesting pieces of information. Effectively, in the research context, they are conducting a literature review and requesting evidence. The Home Secretary set out the process to try to ensure that this time we get the appointment of the chair absolutely right. That involves meeting with victims’ groups, which is happening this week. It also involves going through the Home Affairs Select Committee of another place, and that will be followed up. A long list of names is emerging and I am very grateful to Members of your Lordships’ House for suggesting some very well qualified people.
Wales Bill
(9 years, 7 months ago)
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Lord Wigley
“Powers of the Assembly to extend the franchise to younger people
(1) The Assembly may legislate to extend the franchise for Assembly elections to every person in Wales aged 16 and over on the date of the election.
(2) The Assembly may legislate to extend the franchise for elections to local authorities and for any Welsh referendum, whether held throughout Wales or locally within Wales, to every person in Wales aged 16 and over on the date of the election.
(3) No resolution to extend the franchise to people aged 16 and over, under this section, will be valid unless supported by at least two-thirds of the Assembly members participating in the voting on such a resolution.”
Lord Wigley (PC)
My Lords, Amendment 2, tabled in my name and that of my noble friend Lord Elis-Thomas, seeks to enable the National Assembly to extend the right to vote to 16 and 17 year-olds. A number of amendments have been grouped with this one and they point in the same direction. If the amendment is passed, the Assembly would be empowered to determine whether those aged 16 and over could participate in Assembly elections, Welsh local authority elections and any Welsh referendum that may be held. Subsection (3) of the proposed new clause ensures that no such change could occur unless,
“two-thirds of the Assembly members participating in the voting”,
support the provision. As might be expected, the amendment was drawn up partly in response to the decision of the Scottish Government to empower 16 and 17 year-olds to vote in the September referendum, and having noted the outstanding take-up of that right in Scotland. By polling day, 109,533 16 and 17 year-olds had registered to vote in the Scottish referendum. The impact of that referendum has understandably been felt keenly in our debates on the legislation before us. Whatever people’s politics may be, I hope that I would be correct in asserting that the decision to allow those aged 16 and over to vote in that referendum was commendable and opened up democracy for a new generation. The sheer level of engagement in the referendum was staggering, and if we in Wales and indeed across the United Kingdom can try to emulate such engagement in politics and public life, that will be a tremendous success.
In terms of principle, I believe that there should be no taxation without representation. Young people aged 16 and 17 can have left school, be working and thus paying tax. They should have the right to vote on their representation in Parliament and the Assemblies which determine any such taxation. In 2012, the National Assembly for Wales voted in favour of lowering the voting age to 16, but at present, of course, it does not have the necessary powers to implement that decision. Amendment 2 would give it the powers to do so.
Voting at16 is common practice in many European countries, including Austria, Germany and Norway, as well as in Latin America, in countries such as Argentina and Brazil. I would like to see Wales lead the way in this matter, especially as Assembly Members have already signalled their intention to introduce such measures. My party, Plaid Cymru, is committed to this, and I know that other parties in Wales are also committed.
The other amendments in this group have the same objective. I realise that if the amendment is carried, the Government might want to tidy it up in another place, although the advice that we were given was that the wording was both effective and clear. At the very least, I hope that the Government will realise that there is a widespread wish for this to happen and will not stand in the way of such progress. I beg to move.
Lord Tyler (LD)
My Lords, in speaking to the amendments in my name in this group—Amendments 3 and 19—I can be relatively brief, since I proposed similar improvements to the Bill in Committee, as those who participated then will recall. The principle of including 16 and 17 year-old fellow citizens in the franchise is now an accepted fact. All parties in this Parliament have endorsed this change. Contrary to the doom mongers’ forecasts, a very high proportion of this age group registered to vote in the Scottish independence referendum—nearly 110,000, which is a remarkable figure. Incidentally, I received the Answer to a Question today indicating that nearly 500,000 young voters in the age group 16 to 18 are currently registering under the new system, so this is a success story under IER.
On 18 September, a very large percentage of those—thousands of them—voted in the actual referendum. In the words of the Intergenerational Foundation newsletter,
“16 to 24 year-olds actually favoured staying in the union by a small margin (35% to 33%) ... the idea that the vision of an independent Scotland would appeal to an iconoclastic streak among the youngest members of the electorate appears to have been misplaced”.
That is putting it mildly. Curiously, it seems that middle-aged men, not women, were the most influenced by the fantastical claims of the separatists. Therefore, if we were to exclude the less mature, the less well informed and the less rational, we might wonder just which cohort we should be excluding from the franchise. It is not the most young; it is others.
There was another testimony from the noble Baroness, Lady Liddell of Coatdyke:
“Does the Minister agree that the quality of debate among 16 and 17 year-olds during the referendum debate was astonishing? I admit I was wrong; I was one of the people who thought that it was wrong for the franchise to reduce the voting age to 16. I was comprehensively proved wrong. I heard some of the best debates I have ever heard in a lifetime in politics from 16 and 17 year-olds”.—[Official Report, 16/10/14; col. 295.]
My noble friend Lord Cormack, whom I am pleased to see in his place, made a similar confession on 29 October:
“My eldest grand-daughter voted at the age of 16. I do not necessarily agree with the noble Baroness, Lady Liddell, on that, but I know that my grand-daughter and all her classmates took this matter exceptionally seriously”.—[Official Report, 29/10/14; col. 1261.]
Lord Cormack (Con)
Of course they did, and I will say something about that if I have an opportunity later. However, I did not, do not, and do not think I ever will, agree with extending the franchise to 16 year-olds universally.
Lord Tyler
My noble friend is the personification of constitutional rectitude, so I will not be surprised if he finds my argument absolutely conclusive, that having extended the franchise to this particular group in one part of our United Kingdom, we should look at the relevance of that to other parts. That brings us to the heart of the matter: it is surely unthinkable that this hugely successful precedent could or should be simply overturned. I ask my noble friend to think about this: if my brother, long-since resident in Wales, had a grand- daughter aged 16, and there was a similar referendum vote there, which Member of your Lordships’ House—including my noble friend—would deny her the franchise? Which noble Lords would dare to suggest that Welsh young people are less mature, less well informed or less rational than their Scottish counterparts?
Anyone who still doubts that we have moved on—that the dam has broken—should read the excellent Youth Select Committee report, published last week, entitled, Lowering the Voting Age to 16. With remorseless logic, the committee examined all the familiar arguments and then arrived at this clear conclusion:
“We recommend that the Government introduce legislation to set the age at which people become eligible to vote in all elections at 16”.
As the Select Committee makes abundantly clear, we are no longer discussing theories. Any of my Conservative friends who retain misgivings must now accept the facts: the time to resist on principle has passed. The precedent is unanswerable.
My two amendments deliberately distinguish between elections to the Welsh Assembly, on the one hand, and any future significant referendum in Wales on the other. The latter, of course, is even more relevant after the Scottish experience than the former.
Lord Forsyth of Drumlean (Con)
My noble friend is making a very strong argument in principle for 16 year-olds benefiting from the franchise, but why not extend that to allowing them to stand for election? Why not extend it to the general election? Where is the principle here that he is applying?
Lord Tyler
My Lords, I do not know if my noble friend heard some of the discussion earlier about the piecemeal way in which we are attacking these problems. It would just be inappropriate—as he will know, as a very distinguished parliamentarian—for me to try to insert this into this particular Bill, so I am not trying to do so.
Since Committee, the Minister and her officials have responded most helpfully and with continuous attention to the points I raised then. She has been fully committed to the positive answers that she gave to me and the rest of your Lordships’ House, and I am enormously grateful to her. I note that in Amendment 2, noble Lords opposite have taken up a suggestion I made in Committee, that the referendum issue should be treated on a similar basis as that in Scotland. Imitation is the sincerest form of flattery. There is clearly a strong case for the decision to be taken in the Assembly, but we believe that a strong steer from this Parliament is appropriate on something as crucial as the franchise.
Here I would like to refer to the similar exercise that took place before the Scottish referendum. In the Edinburgh agreement, in paragraph 10, there was this statement:
“The Scottish Government’s consultation on the referendum also set out a proposal for extending the franchise to allow 16 and 17 year-olds to vote in the referendum. It will be for the Scottish Government to decide whether to propose extending the franchise for this referendum and how that should be done. It will be for the Scottish Parliament to approve the referendum franchise, as it would be for any referendum on devolved matters”.
That was not the end of the matter, and I would be grateful if the Minister would consider this point, because there was then a vote on the Scottish Independence Referendum (Franchise) Bill in the Scottish Parliament on 27 June. There was a vote, and the Deputy Presiding Officer told the Parliament that the result of the Division was: 103 for; 12 against; abstentions, nought. I think we should record abstentions in this House, because abstentions would usually outnumber those attending, but that is a different matter for a different occasion. The reason for mentioning that is, of course, that that was a simple majority in the Scottish Parliament, and I would like the Minister to give some consideration to that in her response to this group of amendments.
The main point, which I hope the Minister will now accept, is that the case in principle is unanswerable. I hope that she therefore will be able to give us a very positive response to these amendments today. I hope that, if we are not able to conclude the matter today, we can do so before the Bill leaves your Lordships’ House.
It would be surely be constitutionally improper, in what has now been reinforced as a United Kingdom, to differentiate between the basic civic rights and duties of citizens here, simply on the basis of their area of residence. If, as I believe, the franchise is the foundation stone of our representative democracy, then discrimination on that basis must surely be totally unacceptable.
As a footnote, on 11 November 2014, we can recall that young men and women gave their all in two world wars to secure true representative democracy. This is just one more step to advance that cause and prevent unfair discrimination between our fellow citizens.
Lord Crickhowell (Con)
My Lords, the noble Lord spoke with great passion but he is not right that all political parties are committing to going down this particular road. As far as I know, my own party has made no such commitment. I am still quite open-minded about the basic question. I have not made up my mind and am not necessarily hostile to it. I will listen with great care as the merits of the case are debated over the wider field. I may well finish agreeing with him that votes should go to 16 year-olds, although I have not got there yet.
I am brought to a halt, so to speak, for the same reasons that my noble friend Lord Deben referred to in his speech earlier—as did the noble Lord, Lord Empey. They spoke about devolution bit by bit and a series of random decisions. My problem is that, although I understand of course that these particular proposals are to apply only to votes in the Welsh Assembly or Welsh referendums, once you put 16 year-olds on the register and raise their expectation that they will have a vote it is very difficult to see how you can then say to them, “Oh, but you are not going to have a vote in general elections”. It also seems essential in a sensible democracy that if we are to move to a franchise at 16 for elections to the Westminster Parliament, that should be on the basis of all-party agreement and after proper consultation and consideration, not just because we have to keep up with Scotland or Wales.
I find myself contemplating the possibility that it is somehow not possible to take the 16 year-olds off the register when we come to general elections. I, in the Monmouth constituency, would find myself elected by an electorate that includes 16 year-olds, while in Herefordshire, across the border but 500 yards from where I currently live, the Member of Parliament would be elected without 16 year-olds voting. That would be an intolerable situation and totally unacceptable. Once again, we come back to all those who argued for some kind of proper consultation, whether it be a royal commission or whatever form it takes, in which we can reach a consensus and an all-party way forward rather than saying, “Oh, well, the Scots have done it and therefore the Welsh have to do it”. They can do it in their own Assembly, and that is fine by them, but we are not really saying—or are we?—that it is going to happen in general elections in Scotland and Wales, too. We are on a very dangerous path. I am perfectly happy to go down that path on the basis of proper deliberation and consultation, and agreement by the political parties. I am not prepared to go down it on the basis of ad hocery and “Gosh, we must keep up with the other chaps”.
Lord Howarth of Newport (Lab)
My Lords, I am a little less worried than the noble Lord, Lord Crickhowell, about the prospect of different rules applying for certain elections between Monmouthshire and Herefordshire. I tend to be of the view that a constitution breathes through its anomalies. Anomalies can give a kind of flexibility and help us cope with day-to-day developments in politics. Of course, I am not at all against the search for a wider coherence but it is very hard to find that ideal coherence. In the mean time, it is right to be responsive to the democratic aspirations of people, differ as they may in different parts of the country.
I am much in sympathy with the purport of this group of amendments. I recall that sixth-formers in my constituency of Newport in south-east Wales were curiously diffident about voting at 16. I used to ask them whether they thought it would be appropriate and there was a good deal of hesitation. However, if all the parties in Wales think that introducing this is the right thing to do, it is not for us to stand in their way. Wales should have the power to set its own electoral arrangements for elections that are strictly Welsh elections. We can look again at the wider issue of arrangements for general elections across the United Kingdom. I take the point made by the noble Lord, Lord Tyler, that the principle of no taxation without representation implies that the voting age should be reduced to 16 for elections to the Welsh Assembly. After all, we are contemplating in this legislation the possibility of income tax raising powers being devolved to Wales. It seems to me that that should probably follow.
Lord Crickhowell
The difficulty about that proposition is that the bulk of the money is still going to come to Wales from grants voted for in the Parliament at Westminster. Indeed, every change in that alters the position of grants going to Scotland. It is very difficult. If you want to start with the argument that you must have votes at 16 for everyone voting for the money, then you have decided that it has to go to the Westminster Parliament as well. Until that happens, you really cannot carry that argument too far.
Lord Howarth of Newport
The noble Lord is absolutely right about the significance of grants that I hope would continue to be made from the Government in London—the Government of the United Kingdom. I have some anxieties that the conferral of tax-raising powers on Wales may be the prelude to a rather drastic withdrawal of redistributive taxation and grant giving across the United Kingdom as a whole. The noble Lord is quite right that these are very difficult issues. I acknowledge the force of what he said on that particular point.
Where I have a reservation about this group of amendments is that they seem to envisage perpetual referendums. There is a reference in all of them to referendums. Personally, I very much hope that the people of Wales will not reach a point in their politics when they conduct a referendum on independence for Wales. I do not want to contemplate that. Nor would it be a good idea if the people of Wales developed the habit of conducting a series of referendums on ad hoc issues. To the extent that we resort to referendums to solve tricky issues in our domestic politics, we tend to undermine representative government and the Parliament of Westminster. I will just finish the point and then give way to the noble Lord, Lord Tyler. We would equally undermine the authority of the Welsh Assembly if it became a habit or reflex to have referendums, however populist that might be.
Lord Tyler
I just wanted to draw the attention of the noble Lord to the fact that there is of course a very considerable section of the Bill dealing precisely with referendums—or referenda, as I prefer to describe them. The noble Lord will have to accept that these are entirely relevant to the Bill and therefore a very likely prospect in Wales at some point.
Lord Howarth of Newport
They are relevant to the Bill but the fact that the Bill deals with referendums does not make referendums any more desirable. On the question of gerunds and gerundives, I hope that there is perhaps a noble Lord in the House who can resolve this issue between the noble Lord, Lord Tyler, and myself, and tell us whether they should be referred to as referenda or referendums.
Lord Cormack
My Lords, I am not rising to resolve that particular problem. Though I am by nature and inclination a referenda man, do not let us go too far down that line. I frequently agree with the noble Lord, Lord Howarth, who is a friend of long standing, but I cannot go along with him on much of what he said, although I agree with him emphatically that—I hope—the Welsh people will not wish to vote on independence. At the moment, the polls indicate that only 4% of them are inclined to move that way. Somebody interjects to say it is 3%; the proportion is going down by the minute.
I come at this from a slightly different angle: I believe that among the things that should be common to the United Kingdom as a whole is the franchise. That is why I was critical of the Prime Minister and others, who conceded to Mr Salmond votes at 16 for the referendum in Scotland. I have mentioned my highly articulate and intelligent 16 year-old granddaughter in this Chamber before. Of course, because 16 year-olds were going to have the vote, I engaged with her, and through her with others, on the subject, because it was of such significance. That was far more important than any single vote I have cast in over 50 years of having the franchise; when I was able to vote for the first time it was at the age of 21.
We did concede to Mr Salmond that 16 year-olds should have the vote—and I entered into the spirit of it within family and so on—but I regretted that we had done so. We must consider carefully the wisdom of giving the vote to 16 year-olds. After all, there are so many other areas of life we could talk about in terms of what people can do at 16; some will work and pay taxes and some will not.
Only yesterday in this House the noble Earl, Lord Listowel, introduced an amendment that the Government accepted. He made an exceptionally moving speech, and the Minister gave an extraordinarily generous reply. The substance of that amendment was that 17 year-olds apprehended by the police should be treated in a similar way to 16 year-olds. He advanced an extremely convincing argument, which the Minister accepted.
A 16 year-old cannot drive a car, and is not legally allowed to take a drink. There are, and I think there should be, rites of passage. I believe that there is a danger in giving votes to those who are in full-time school education—I distinguish clearly between school education, and university and further education. We ought to treat this matter extremely carefully. My noble friend Lord Crickhowell made a generous speech in which he said that he was not necessarily against the idea, but that it should not be dealt with as yet another piecemeal reform. We heard quite a lot about those in our earlier debate on this Bill today.
There I entirely agree with my noble friend. This issue has not been dealt with on a UK-wide basis; it has just grown, like Topsy. If we are to move in this direction, with all the implications for the age of majority and everything else involved with it, we should do so only as a result of comprehensive debate and discussion within both Houses of this Parliament. It should also be part of the remit of the constitutional convention or royal commission. A royal commission is the option that I personally would favour, and the noble Lord, Lord Richard, who is not now in his place, also came down on that side. Any such move should be part of the remit of any such convention or commission. We would not be serving the people of Wales, or any other part of the United Kingdom, well if we continued with this piecemeal approach.
Lord Wigley
I am grateful to the noble Lord for giving way to me; he knows that I have very much respect for him. Does he not accept that, in its own way, this entire Bill is, in his terminology, piecemeal reform, in that it is reform for Wales and not across the United Kingdom? If we were to go down his road in all matters relating to devolution, we would not be able to do anything for Wales, Scotland or Northern Ireland unless it was also acceptable in the regions of England, or in England as a whole. Is that really what he is advocating?
Lord Cormack
The respect is mutual, may I say. My noble friend—I shall call him that—and I have known each other for a very long time. We have travelled together and talked together on a whole range of issues, and frequently found ourselves in agreement, not least about the fact that his wife is one of the most accomplished harpists in the whole of the United Kingdom.
Lord Tyler
Does my noble friend not accept that, if there is to be a comprehensive exercise involving a royal commission, a convention or whatever, it will take quite a long time? I think that he and I will both wish to make representations to it, and on past form the whole process could take several years. Would my noble friend be kind enough to address the question that I put specifically to him and to others in the House: if there is to be any sort of referendum, in the terms of the Bill, within that period, is he prepared to deny to my notional great-niece in Wales what his granddaughter experienced, enjoyed and took such good advantage of in Scotland? During the period before the comprehensive exercise is complete, is a 16 year-old in Wales to be denied what has been permitted to 16 and 17 year-olds in Scotland?
Lord Cormack
I do not favour votes at 16, so I would be hypocritical in the extreme if I said, “Yes, of course”, to the idea. I think that we made a mistake in Scotland, and the whole thing needs looking at very carefully. If, as a result of that careful deliberation, the consensus solution—as my noble friend Lord Crickhowell puts it—is votes at 16, so be it. But I do not wish to move further in that direction at the moment. I do not think that is a necessary part of this Bill; that is a further answer to my noble friend Lord Wigley. I therefore hope that the Government will resist these amendments, however persuasively they have been put by people for whom I have real regard and affection.
The Earl of Listowel (CB)
My Lords, I thank the noble Lord, Lord Cormack, for his kind comments about me. May I return the compliment by saying that the families, particularly, and also the campaigners, including myself, were most grateful to the Government, the Home Secretary and the Minister for moving more swiftly than we had expected yesterday and bringing about that change, which will protect children—17 year-olds—in future far better than they are protected now. We are all very grateful to the Government for what they did yesterday.
I would like to raise some concerns in this debate, but first may I apologise for arriving so late to the debates on this Bill? I should manage my time better, and I apologise for entering the discussion at this late stage. Perhaps I may be slightly forgiven because it is a Welsh Bill, and perhaps I may have thought that, because I am not Welsh, I might not—I am digging a hole for myself, so I shall stop there.
There is much to be welcomed in the proposition made by those who have tabled these amendments, in relation to hearing the voice of young people. However, I am concerned that they betray a certain difficulty in the English-speaking world in terms of understanding child development. If one looks to those who treat people best, one might look to Italy, France or Spain for the way that they care for families and children. I should be interested to learn how far discussions there have gone in this direction.
Let me stress the good things about the proposal. It is so important to hear the voice of young people. Visiting schools, I heard young people talking about the withdrawal of the education maintenance allowance. Many young people felt passionately about that, and the proposal would give them an opportunity to vote on the matter. One could talk about school uniforms and concern about their cost and other issues for young people that they could push harder if they had the vote. Giving young people more responsibility is a well recognised way to help them to develop in maturity. In the care system, for foster children and children in children’s homes, it has been recognised how powerful it has been as a tool to improve outcomes to allow young people’s voices to be heard, particularly by those who make the decisions about allocation of resources—putting those people in the same room.
The principle is much to be welcomed, but—I know that this has been raised before—I am particularly concerned about a misunderstanding of child development and of human development. For instance, the noble Baroness, Lady Kidron, is shortly to have a debate about children, the internet and social networking. I hesitate to presume what she may say, but I think she will say that we have been unkind to children. We have not given them any guidance; we have released this technology on them and expected them to deal with it. We have treated them just as if they were little adults, and we need to do better and give them better guidance.
There are welcome improvements in the criminal justice system, particularly in what the coalition Government have done to remove so many young people from custody, but in general, we are still far harsher to children who misbehave but are also troubled than they would be in France, Germany and other continental countries. As in America, the English-speaking world has difficulties in this area. The age of criminal responsibility in this country is 10; on the continent, the average is probably between 12 and 14.
What is the issue about the rate of human development? There is probably a biologist who may help me here, but the distinguishing feature of humanity is that we allow our children so long to grow up. Most animals have to face a hostile world from a very early stage in their lives. They may have to leave the womb and be walking within minutes. It may be one reason why humanity is so sophisticated that we allow our newborns, our children, our young people, to grow up and mature over a considerable length of time. In Denmark, for instance, children do not start primary school until the age of seven. The Danes feel that it is right to allow young people to enjoy their infancy and young childhood for longer.
First, I am concerned about people arguing for us to be harsher on children and using the fact that the voting age moves to 16 as a means to say that we can punish young people and keep the age of criminal responsibility at 10. I know that young people can marry at the age of 16, so it can be argued the other way.
I am taking too long, but let me give your Lordships one more example: the Rochdale sexual abuse of children. The Times reported last week or the week before that the police were saying, “The girl knew what she was doing; she wanted to be in that relationship”, about a 13 year-old. That highlights confusion within the police, but perhaps more generally—a difficulty about judging when a child or young person can make the right decisions for their age. I am concerned about the general principle of reducing the age and allowing young people to vote at 16. I fear that that reflects a general misapprehension. We do our children wrong when we ask them to act as adults too soon.
At the end of the 1960s, the renowned child psychotherapist, Donald Winnicott, wrote a book the final chapter of which dealt with the revolution in the 1960s. He said that it is right that children and young people should revolt. Teenagers should be kicking against adults and against the system. That is absolutely right; if they do not do that, they will not mature properly and become proper individuals as adults. But it is adults’ duty to stand against that, to set boundaries for children and young people. As difficult as that is—in particular, not to be overly punitive, not, because children challenge them again and again, to start locking them up or physically beating them—we must find ways to contain them.
As I said, I worry that this move reflects a misunderstanding on our part of the need to allow young people to grow up gradually over time. I cannot support the amendments. Again, I apologise for coming to this debate so late.
Lord Forsyth of Drumlean
My Lords, if I had had the vote at 16, I would have voted Labour, but I grew out of it. I grew up and I grew out of it. The experience of the Scottish referendum was remarkable. I guess that those on my Front Bench probably want me to make a short speech. If I was to make a short speech, I would say: “I told you so”.
When we agreed that the Scottish Parliament could decide the franchise for the referendum, we gave up the argument. It became impossible to resist the argument for referenda in other devolved areas. We did that, I believe, without giving the matter proper consideration. We have not at any stage had a debate on the franchise. I asked my noble friend Lord Tyler whether he would extend it to general elections and candidates, and he gave me a politician’s answer. He did not answer the point; he said that it is not relevant to the Bill; but it is, it seems to me. If we are to give 16 year-olds the vote, why should we not allow them to stand as candidates for the bodies for which they have the vote as councillors or Members of the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly? Why should we limit that?
Other issues arise. Why do you have the right in Scotland to decide to break up the United Kingdom but not the right to buy a packet of cigarettes? We need to have a considered debate about what rights should apply to 16 year-olds. My noble friends Lord Crickhowell and Lord Cormack emphasised earlier today that you cannot proceed with constitutional reform on a piecemeal basis; it must be looked at in the round.
I am becoming desperately alarmed at the way in which the political parties are now engaged in a competition to use constitutional reform to get votes. That is disastrous. I was brought up in a tradition where constitutional reform was something which you did not do unless you had consensus, unless you could show precedent and unless you had taken a considerable time to consider the implications and unintended consequences, which always follow from constitutional reform. I am very much in the camp of the Labour Party in wanting a constitutional convention, a royal commission, or something to look at all the issues in the round, recognise how far we have gone so far and do something about it.
We are engaged in highly dangerous stuff. If you do not believe that, look at the opinion polls in Scotland today. We have just won a referendum. We won the argument decisively. What has happened? The unionist parties have seen their support slump. According to the opinion polls, Labour is looking at having only four seats in Scotland. The Tories have our lowest ever recorded share of the vote—that is saying something—at 8% to 10%, and the nationalists are romping ahead. Why? Because of that last-minute promise made of extra powers, not defined, and the consequences that have followed from that. We are in grave danger of dismantling our British constitution like some fine clock, taking out the wheels and finding that we no longer know the time of day.
Lord Tyler
Perhaps I may take my noble friend back from his party-political forays to the issue of principle, with which I have sympathy. He said that two things were essential: consensus and precedent. Does he accept that there was consensus? The Prime Minister led the consensus that the Scottish Parliament should be permitted to include the franchise for 16 and 17 year-olds. He may not agree, but there was one between the parties. Secondly, the noble Lord must accept that there is now a precedent. Young people in Scotland have exercised the vote in a referendum. We know that the commission—or conventions or whatever it may be—that will look at the constitution in the round will take some time. In that intervening period, does he not recognise that for young people of comparable age in Wales, in a comparable referendum, the precedent is established?
Lord Forsyth of Drumlean
No, I do not accept that there was a consensus—a consensus between whom? The last-minute promise made in the referendum to which I just referred was dreamed up by three party leaders and the editor of the Daily Record. Not even the leaders of the parties in Scotland were consulted about it. That is why the Labour leader in Scotland resigned—because she had not been consulted. That is not a consensus. That is a kind of dictatorship. That is people deciding, for political effect, to make changes that have not been properly discussed and considered by everyone—not just the party leaders or people in Westminster, but people in local government, in civic society and people not engaged in politics at all. These are important matters that are central to how we govern our country and the extent to which we carry the support and consensus of the people. That is what I am complaining about. I am complaining about people making changes to our constitution because they see some short-term political advantage, which is brought forward on a piecemeal basis without considering the consequences.
The second part of this intervention asked whether I accept that the precedent had been created by giving 16 year-olds the vote in Scotland in the referendum. Of course I do. By the way, that is why I spent hours boring this House by arguing that they should not do that. I argued that the Prime Minister should not have allowed Alex Salmond to decide the franchise unilaterally, because it had implications for the rest of the United Kingdom and its constituent parts. In the same way, it is irresponsible, frankly, to have as we have at the moment, the noble Lord, Lord Smith, sitting with the party leaders to find some deal that they think they can sell to Scotland without considering what the consequences are for the rest of the United Kingdom and without involving the United Kingdom in that process. They should be doing it in a considered and timely way, and not doing it in the heated months and weeks before a general election when the parties are competing for votes. It is not the proper way in which to go about our constitutional reform.
So, although I accept my noble friend’s point that having given 16 year-olds the vote in the referendum in Scotland it is impossible to resist it in Wales, I am simply saying that, if we are to save our United Kingdom, we should look at the issue of the franchise across the piece, but in the context of what we are going to do having embarked on this process of devolution without thinking through the long-term consequences. This is serious stuff and I hope that my noble friend will resist this amendment but accept some of the points that have been made. Change is necessary, but it is change that has to be agreed across the United Kingdom in a considered manner through some kind of Speaker’s Conference, constitutional conference or royal commission. Call it what you will but it must be something that will put a brake on this and get us to look at the thing in the round.
Lord Harries of Pentregarth (CB)
I fully support the noble Lord’s desire and call for a royal commission but royal commissions do not always achieve what they set out to achieve. I was fortunate enough to be a member of the royal commission on the House of Lords, chaired by the noble Lord, Lord Wakeham. We came into that commission with totally divided views and we ended it unanimously in favour of a particular scheme, which we all know has not been settled and we have had virtually no reform since then. The fact of the matter is, I am afraid—we have only to look at the reform of the House of Lords in particular—that, historically, changes in this country take place incrementally due to particular pressures at the time. That is the particular genius of our political system, whether we like it or not. I fully support the royal commission; we should have one, but should not think that it will necessarily solve anything, even if people are agreed on it.
Lord Forsyth of Drumlean
I entirely accept that. Incidentally, I thought that the report that was produced by the royal commission had a great deal of merit in it, but it failed because it did not carry a consensus down the Corridor. Members of the House of Commons realised that they would be threatened by the changes that were proposed in this House. I am not suggesting for a moment that a royal commission, a constitutional convention or whatever body we set up will come up with the answers. I am suggesting that we should make sure that we consider these matters in the round, so that all the arguments are understood. Then it is for Parliament to decide. Parliament should not be deciding these matters in a kind of cheese-paring way without looking at the knock-on consequences—sorry, if I am mixing my metaphors.
I was assured from the Front Bench that giving the Scottish Parliament the right to decide the franchise for the referendum would not be a precedent and would not result in pressure for change elsewhere. That assurance has not lasted six months. I entirely agree with the noble Lord that the best way is to proceed incrementally. In doing so, however, it is a good idea to know in which direction you are setting forth and where you are going to end up.
Lord Thomas of Gresford (LD)
My Lords, the most striking feature of the Scottish referendum was that there was an 86% turnout and that the political life of Scotland was energised. Those of us who followed the debate in Scotland closely were aware of the contribution that was made by young people—16 and 17 year-olds—to the debate. As one looked at how the campaigns were developing, there were arguments breaking out within families, between young and old, and between friends. In the debates on television, young people were considering very carefully the issues that were put before them. They were articulate. When one looks at the result, they voted in a sensible way, as we would have thought, with a majority for no. They considered all the arguments. Contrast that with the political system that we have at the moment in Westminster. There is a lack of energy and an imbalance between the elderly part of the population and the younger part. When the next election comes along, all the political parties will be aiming a considerable part of their campaign at older voters. Why? Because older voters vote more regularly than younger people.
The campaign for votes at 16 and 17 is based on the idea that, having given young people their education in civics, politics and the political system up to the age of 16, why should there then be a gap which results in low turnouts among those aged over 18? Why should they not be given the responsibility when it comes to a devolved Assembly? What are young people most interested in? As the noble Earl, Lord Listowel, said, they are interested in educational issues; they are interested in job opportunity. They are less interested, perhaps, in health because they expect their health is for ever, but they are certainly interested in housing. These are issues that young people are considerably concerned about and they are issues that are devolved to Wales: jobs, education, health and housing. Why should young people at the age of 16 not exercise the responsibility they have been trained to accept?
Baroness Gale (Lab)
My Lords, we have had a most interesting debate and it has been good to hear noble Lords from different parts of the United Kingdom taking part on the Bill today. That does not happen often; when we have had Welsh matters in the past, there have been just a few of our Welsh Peers here, so it is great to have everyone taking part here today.
I shall speak to Amendment 11, which deals with votes for 16 and 17 year-olds in Welsh elections. The Labour Party is committed to lowering the voting age, so that 16 and 17 year-olds will in future be able to vote at all elections throughout the United Kingdom. We will have a manifesto commitment at the next general election to this end.
There is plenty of evidence now to show that 16 and 17 year-olds would like to have the vote. The British Youth Council’s Youth Select Committee for 2014 recently published a report Lowering the Voting Age to 16, so here we have young people making out an excellent case for lowering the voting age and for them to have the right to vote. The Power commission, established by the Joseph Rowntree Charitable Trust, reported in 2006 on how participation in British elections and politics could be increased. In its report, Power to the People, its recommendations included that the voting age should be lowered to 16. The Welsh Government established the Sunderland commission in 2002 on electoral arrangements. Having looked at local government electoral arrangements, it recommended a reduction in the voting age to 16. Those are just three examples of where the case has been made for votes at 16.
Lord Cormack
Is it also the view of the Labour Party that young people of 16 should be allowed to drink and to drive?
Baroness Gale
We certainly have not agreed to that at all. I am absolutely positive that we have not, but I take the noble Lord’s point.
The Welsh Labour Government believe that lowering the voting age would demonstrate a strong commitment to effective democracy in our nation. Engaging and encouraging young people in this way would help to improve voter turnout, as the recent experience in Scotland has shown. Lowering the voting age would also clearly demonstrate to young people in Wales that they are being taken seriously and their views are listened to. The Welsh Government support and value strong, effective democracy and recognise that the involvement of young people in the democratic process is essential to achieving this. However, the Welsh Government do not currently have the power to legislate on the voting age for elections held in Wales, as the UK Government retain responsibility for the conduct of elections and for the franchise. So while the Welsh Government do not have the power to lower the voting age in Wales, in decision-making they encourage young people’s participation. That has enabled them to have an important voice in our society in Wales.
I believe that there is a strong case for 16 and 17 year-olds to have the right to vote in all elections in the whole of the United Kingdom, but today we are dealing with matters relating to Wales and the Welsh Assembly, which has no legislative powers in this field. Your Lordships’ House could give full voting rights in Wales and, if this amendment is accepted, it would mean that at the next Welsh Assembly elections in 2016, 16 and 17 year-olds would have the right to vote.
I ask the Minister: if this coalition Government are unwilling to lower the voting age, then why do they not give those powers to the Welsh Government, who are committed to doing so? If the Welsh Assembly had such powers, I have no doubt that it would use them. There is now such strong evidence that this would be a popular move and that young people would welcome it. I trust that the Minister can now accept the evidence and, although there are different views, the force of the debate. I really look forward to what she has to say.
Lord Forsyth of Drumlean
Before the noble Baroness sits down, can she tell me whether the Labour Party’s position is also to allow 16 year-olds to stand as candidates and, if not, why not?
Baroness Gale
My Lords, that is a very good question. It was only in recent years that we lowered that age to 18. I know that when the last Labour Government did that, people had doubts as to whether 18 year-olds should stand as candidates. I know, as most of us probably do, that 18 year-olds now have the right to stand as candidates and I know of 18 year-olds who have been elected to local councils and are doing a really good job. However, we have not discussed that, so I am afraid that I cannot answer the noble Lord today on that question.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)
My Lords, Amendments 3 and 19, in the name of my noble friends Lord Tyler and Lord Thomas of Gresford, and Amendment 11, in the name of the noble Baronesses, Lady Gale and Lady Morgan, would reduce the age for voting in an election to the National Assembly for Wales and any referendum held under Clause 12 from the age of 18 to 16. Amendment 2, in the name of the noble Lord, Lord Wigley, would devolve to the Assembly the power to lower the voting age to 16 for elections to the Assembly and local authorities, as well as referenda.
The debate around whether the voting age should be lowered has of course been given fresh focus by the independence referendum in Scotland. As many noble Lords have made clear in their remarks here today, that was the first major poll in the UK in which 16 and 17 year-olds were able to participate. Whether your Lordships regard that as a mistake or not, it was a very successful mistake. Taken as an exercise in civic engagement, it was extraordinarily successful. As a long-time supporter of lowering the voting age, I very much welcome the fact that so many young people took advantage of the opportunity offered to them to have their say on that vital question on the future of Scotland. I share the joy of my noble friend Lord Tyler that so many of them appear to have voted to preserve the union.
However, I recognise that lowering the voting age is in itself no magic bullet. For example, in the Isle of Man the voting age is 16 and it still suffers from very low turnout rates. I say to the noble Earl, Lord Listowel, that children do not grow up overnight and that there is a period of transition when young people are trying out their wings, if I may put it that way, in which they need support and proper civic education. Yet it can work well, as the Scottish situation has proved.
The Government have recognised the strength of feeling in the House, expressed in Committee and by a number of noble Lords this afternoon, that 16 and 17 year-olds in Wales should have the same opportunity to participate in the income tax referendum that their counterparts enjoyed in Scotland. The ability of 16 and 17 year-olds to vote in that referendum represented the will of the Scottish Parliament, answerable to the Scottish people. It was not a decision made in Westminster, as Amendments 2, 3 and 19 would be. That is why I can today commit that, at Third Reading, the Government will bring forward amendments to enable the Assembly to decide whether 16 and 17 year-olds should vote in the income tax referendum, whenever it is held.
My noble friend Lord Tyler referred to the vote of 103 to 12 in the Scottish Parliament; noble Lords can do no better than to read the debate on this issue in the Assembly record of 24 September to gain an impression of how the Assembly would vote on this issue. There is overwhelming support in the Assembly for votes at 16.
Lord Tyler
I am extremely grateful to my noble friend and to her officials for all the discussions that have taken place since Committee. I want to ask her one particular question. She referred to the Scottish Parliament decision which I read. The Scottish Parliament does not have the same internal regulations about the nature of the vote. It was a simple majority. Am I right in thinking that in the Welsh Assembly there is a precedent for decisions of this sort to require a two-thirds majority? That is an important difference. In giving a lead to the Assembly at Third Reading, as she is proposing, we may want to consider that matter.
Baroness Randerson
I may stand to be corrected by the noble Lord, Lord Elis-Thomas, whose experience of Assembly Standing Orders is much more recent than mine, but I believe that the two-thirds majority would still stand on issues such as this. I can see that he is nodding so there would be a requirement for a two-thirds majority, which is an Assembly Standing Order requirement.
I think we would all agree that this is a significant step in terms of Welsh devolution.
Lord Forsyth of Drumlean
Why is this being restricted to the referendum and not extended to votes for the Assembly?
Baroness Randerson
There is no feeling in the Government that the Bill is an appropriate vehicle for establishing a different franchise for Wales from that for the rest of the United Kingdom. There is, as the noble Lord has argued several times today, a need for consistency across the United Kingdom on certain franchise issues and it is important that we do not take a decision in relation to one part of the country without considering the other nations and regions.
Lord Cormack
My understanding is that the noble Baroness’s party is strongly in favour of a constitutional commission or convention. Surely the amendment that she is going to table at Third Reading will pre-empt any decision or recommendation that such a body might make.
Baroness Randerson
The noble Lord does not seem to be entirely taking into account the considerable length of time that a convention would take. If it were going to do its job well, it would take a number of years to reach its conclusions and for those conclusions to be implemented. If there were to be an income tax referendum in Wales—I emphasise the word “if” because it is not a foregone conclusion—I hope it would take place before the outcome of any convention were decided.
Lord Anderson of Swansea (Lab)
A constitutional convention or royal commission could take a very long time. However, the referendum on income tax may never happen at all as the First Minister has said that he is not very interested in this concession. Therefore, what appears on the face of it to be a significant step on the part of the Government may in fact not be a step at all because such a referendum in respect of income tax provisions is not likely to take place.
Baroness Randerson
If the noble Lord is telling us here today that the Labour Government in Wales have already decided that under no circumstances would they call an income-tax referendum, I am very disappointed. The line I have heard from the Labour Party up to now is that it is open-minded to it as long as there is progress on other issues connected with devolution. I want to take this opportunity to repeat that the UK Government believe that there should be a referendum on income tax powers in Wales as soon as possible. That is something we would strongly encourage in Wales. We regard this as a significant step in Welsh devolution because we are planning to bring forward an amendment at Third Reading on this with the intention that it should be used.
Lord Elis-Thomas (PC)
The wording of the National Assembly’s resolution on the future of devolution emphasised that a referendum on tax-varying powers should reflect the view of the people of Wales. The Minister is as able to interpret that as myself and my noble friend, so I think the position is as the Minister described it.
Baroness Randerson
I thank the noble Lord for his intervention. I interpreted that phrase to mean that the decision should be made in Wales and that is what we will be seeking when we bring forward the amendment.
The Government do not accept that it would be right to impose on Wales a new franchise for elections to the Assembly or to local government as Amendments 3 and 11 seek to do, nor do we agree that this Bill should be the vehicle for devolving that power to the Assembly as Amendment 2 seeks to do. Devolving to Scotland the decision on whether 16 and 17 year-olds were able to vote in the referendum had no automatic read-across to the franchise for elections. As I have already mentioned, my right honourable friend the Secretary of State has made it clear that he intends to begin discussions to seek cross-party consensus on the way forward for Welsh devolution. Electoral arrangements in Wales will form part of those discussions. That is the appropriate context for discussing these issues.
Lord Forsyth of Drumlean
I apologise for interrupting my noble friend once more and I promise that I will not do it again. Can she be clear about what the principle is? I take her point about consistency across the United Kingdom. Is the principle that 16 year-olds will be able to vote in referenda which are concerned with devolved bodies, or is it a principle that is to be generally applied to all referenda? In other words, would 16 year-olds have the vote, for example, in a referendum on our membership of the European Union, should that ever arise, or is it solely limited to devolved bodies?
Baroness Randerson
My Lords, the amendment we are in the process of drafting specifically relates to this referendum on tax-raising powers because there are discussions still to be had across all parties—I suspect there will be lively discussions during the coming general election campaign—on whether votes at 16 should be adopted on a much wider basis.
Lord Howarth of Newport
Will the Minister also explain the difference of principle which makes it appropriate for people to vote in this particular referendum at 16 but not to vote in other elections in Wales at 16?
Baroness Randerson
There are various strands to that question. One point is that there must be a consistency in franchise across the United Kingdom in ordinary elections. It is also important to bear in mind that a referendum is in many ways a useful way for young people to be able to express their point of view in a very clear-cut manner. A referendum campaign is a very tight and straightforward campaign.
In the light of the Government’s commitment to bring forward amendments at Third Reading enabling the Assembly to decide whether 16 and 17 year-olds can vote in the income tax referendum, I urge the noble Lord to withdraw his amendment.
Lord Wigley
My Lords, I am very grateful to the considerable number of noble Lords who have taken part in this important debate. A number of issues have come out that go well beyond the Bill we are discussing. I welcome the statement made by the Minister. It is a step in the right direction. One issue has come out loudest and mostly clearly. It started to raise its head in the earlier debate. It is the extent to which there is acceptance in this Chamber and at Westminster that we are now living in a pluralist democracy. By virtue of having devolved Governments and of having accepted devolution as a means of acting not only in Wales, Scotland and Northern Ireland but in London as well and possibly within England, we have accepted that things will be different in the different areas. There is no point whatever in having devolved structures if one does not accept the consequence that decisions will differ from area to area. The question that then arises is about which of the matters that we discuss here really do need to be decided on a UK level because of the basic nature of those decisions and which decisions can be devolved without making a considerable difference to what some Members of this Chamber would regard as the essential unity of the United Kingdom. That is something that has to be decided before one goes down the road of looking at commissions, conventions and all the rest.
I picked up one point that the noble Lord, Lord Forsyth, made. He referred to a convention slowing matters down. Perhaps he used those words inadvertently, but they were the words that he used. I can understand, possibly, from his point of view, that that is how people would want to see it, but if that is the general approach of establishing a commission or a convention, it would also raise a lot of questions, not least in Scotland, if there are ideas that all this is going to slow down the whole process that has been so focused on in recent weeks.
Lord Forsyth of Drumlean
I ought to be old enough not to have fallen into that trap. I was suggesting that, rather than rushing to solutions on a piecemeal basis and in a pre-election period, these issues need to be considered carefully. I have no desire to delay this matter. The sooner we stop talking about the constitution and concentrate on the issues that matter to our country, the happier I will be.
Lord Wigley
Many of us believe that getting the right devolution package is essential to all the countries of these islands in order to enable us to go on tackling the problems of day-to-day life in the economy, education, the health service and all the rest. That is basic. That is the purpose of it. I accept entirely that one does not make rushed decisions, particularly on constitutional matters, but neither should one be delaying them because delay is what causes frustration and sometimes brings the structures of government in these islands into question. We need to be able to take the proper decision on the right basis in a timely manner and in a way that carries people with us.
With regard to issues such as voting in referenda in Wales—I was very grateful to the noble Lord, Lord Cormack, for his kind remarks which I will pass on to my dear wife Elinor, who will be very grateful—I see nothing wrong in deciding these things in Wales. That applies to local elections or referenda that relate to matters purely within Wales. I understand that we could not decide in Wales alone to have votes at 16 for a UK election because that is the nature of the body. I was therefore very grateful to the Minister for the commitment to bring forward an amendment at Third Reading. I welcome the fact that that amendment will give the Assembly the right to take the decision with the two-thirds majority to which my noble friend Lord Elis-Thomas referred. That is the right approach. The decision should be there, but there should be safeguards. The two-third majority builds in that safeguard.
I regret that there is no willingness to look at this question in terms of elections. I hope that at some future stage, possibly in the context of a broader debate, that matter can be given further consideration. On the basis of the very significant step taken by the Government in this matter, I beg leave to withdraw the amendment.
Lord Anderson of Swansea
“Role of National Assembly for Wales
All matters pertaining to the electoral arrangements for the National Assembly for Wales contained in this Act shall be subject to agreement by the Assembly before implementation.”
Lord Anderson of Swansea
My Lords, Amendment 4 stands in my name and that of my noble friend Lady Morgan. It states that all matters pertaining to National Assembly for Wales electoral arrangements contained in this Bill must be subject to Assembly agreement before implementation. It has been grouped with Amendment 5, in the names of the noble Lords, Lord Elis-Thomas and Lord Wigley. It is more comprehensive than my amendment in that it extends to its constitution, structure, membership and elections and suggests that they should be decided by a vote of the whole Assembly by a majority of no less than two-thirds of voting Assembly Members.
I make only this comment on the two-thirds supermajority. I know there is apparently precedent for this, but I call on the knowledge of the noble Lord, Lord Norton of Louth, that traditionally in jurisdictions that require a two-thirds supermajority it has been a recipe for inertia. It has led to gridlock and immobilism. In this sort of matter, to impose the necessity for a two-thirds majority suggests that there will be no reform at all as it is very difficult to find an issue on which there is that level of majority, but I defer it. Perhaps the noble Lord will write to me suggesting that it is almost certainly true.
I have been impressed by what the Minister has said thus far in respect of the two amendments which have been before us. She has shown a readiness to listen and, certainly, to respond. On the previous amendment, in particular, she argued that this is a matter that should be left to the Assembly because there is a consensus among the various parties in the Assembly. My submission in respect of this amendment is that it is certainly a matter that should be left to the Assembly. I would have thought that there is no doubt whatever that all parties in the Assembly would agree to this. If the Minister is prepared to say at this stage that she will follow what she said in relation to the previous amendment in relation to this one and that she will move an appropriate amendment at Third Reading to let the Assembly decide its own electoral arrangements, I can save this House a lot of time by sitting down and saying, “Thank you very much”.
Lord Anderson of Swansea
I have given the Minister the opportunity to truncate my speech, but perhaps I should set out the terms of the amendment, otherwise I shall be truncating myself. My broad proposition is that we are devolutionists now. We may disagree on the pace of devolution and on the terminus, the end station, of devolution, but there is a broad spirit of agreement, particularly post the Scottish referendum, and a new spirit of seeking to allow the assemblies of the nations and of the parts of the United Kingdom to make their own decisions—or, as they would say in colonial times, to make their own mistakes. In some cases, central government has shown itself reluctant to relax the reins, and this matter has, thus far, been one of them, but I nurture the hope that, consistent with her previous responses, the Minister will make a more positive response to this.
The proposition is simple and clear. It is absurd that in Westminster we should be laying down rules on how the devolved Assembly in Wales should organise its own elections, irrespective of its views. Surely it is the expert in this field. It has the experience of fighting elections on the current rules and we should listen to it with respect. If decisions, at least for the moment, are not left to the Assembly, as is suggested in the other group, at least its agreement should be necessary to any proposals. Even our local authorities have a degree of discretion currently not left to the Assembly.
It is difficult to see how this can be opposed, save on grounds of inertia, as there would surely be no opposition in the Assembly itself. There is a taste otherwise of “Westminster knows best”, from high to low, delivering electoral arrangements like tablets of stone to a grateful Assembly. Surely we should all accept that we are dealing with a mature Assembly? I am sure that my friend, the noble Lord, Lord Elis-Thomas, would be the first to concede that there were some initial teething problems, but now the Assembly has settled down very well indeed, and has gained the support and approval of the overwhelming majority of the people of Wales. They should be allowed to decide for themselves how they wish to be elected. Currently there is not even the statutory obligation to consult them on these arrangements.
Do we really know best? Do we wish to continue to impose our wisdom on the Assembly? Have we no trust in the Assembly on such matters, which should be wholly within its own domain? I leave this question to the Minister and the House: how can it be reasonable not to allow the Assembly to make decisions on such electoral arrangements, not as a matter of generosity, but as a matter of law? I beg to move.
Lord Elis-Thomas
I thank my friend the noble Lord, Lord Anderson, for continuing to move his amendment. I was afraid at one moment that he was seeking to withdraw it before he had actually proposed it, and that would have been entirely disorderly.
I am delighted with the progress of our discussions today. I had a list of three issues that I wished to raise on behalf of myself and my noble friend Lord Wigley, and our colleagues of all parties in the National Assembly. This is the third issue. The response to the previous two has been extremely good, so I am expecting an even better response to this one.
In addition to the points that had already been covered on the reserved powers order and on the recognition for a decision involving tax-raising powers reflecting the agreement of the people of Wales, part of the resolution that was passed unanimously by the National Assembly two weeks ago was a call on the UK Government to give the National Assembly the power to determine its electoral arrangements. The Minister indicated in an earlier response that this might indeed be a matter that would be looked at in the great deliberation before St David’s Day. We are very keen that these arrangements should be agreed before the next Assembly elections so that we are able to benefit from any changes that will take place.
I will call in aid no greater authority than my friend in the Assembly, and a neighbour of my family in the Vale of Glamorgan, the leader of the Opposition. He is not yet the right honourable Andrew RT Davies, but no doubt will be at some stage. He argued strongly on this resolution and said:
“I find it bizarre that we have an institution that has primary legislative competence and that Ministers are appointed by the Crown, but, ultimately, the electoral arrangements for this institution do not reside in this institution. I do believe that that would be a relatively simple Act to undertake”.
I hope the government Front Bench in this House will agree with that analysis.
This issue was also discussed more recently last week, when we had the Constitutional and Legislative Affairs Committee’s report on the inquiry into the disqualification from membership of the Assembly. Both the First Minister and the very distinguished Deputy Presiding Officer, David Melding, agreed entirely with the view that the Assembly should indeed be in charge of its own electoral arrangements.
Baroness O'Neill of Bengarve (CB)
My Lords, before we go any further, I might not be the only Member of your Lordships’ House who detects an ambiguity which we need to clarify before proceeding. Is the proposition that electoral arrangements shall be subject solely to the agreement of the Assembly, or are electoral arrangements for the National Assembly for Wales subject indeed also to legislation by this Parliament, and in addition to the agreement of the National Assembly for Wales? That has not become clear and I have been listening very carefully to both noble Lords who have spoken. If it is the case that it is to be solely subject to the agreement under the special provisions—which I hope I understand—then this amendment is probably pre-empted by the undertaking that the Minister has already given, and we should not be discussing it. If, on the other hand, the assumption is that it is to be understood that electoral arrangements are solely a matter for the National Assembly for Wales, it would be very helpful to have that clearly stated. Is the agreement of the Assembly additional to the agreement of this Parliament, or is it solely the agreement of the National Assembly for Wales?
Lord Elis-Thomas
What we have here are two amendments, appropriately grouped together, but with two different principles. The amendment in my name and that of my noble friend calls for powers on electoral arrangements and constitutional aspects to be devolved to the Assembly through Schedule 7 to the Government of Wales Act 2006. Under the subject National Assembly it becomes an additional action that the Assembly is unable to legislate upon in that area. That is the way that it is phrased in this particular discussion, although we had a different discussion on this principle in Committee.
The principle that my noble friend seeks is statutory consultation—
Lord Elis-Thomas
Yes, agreement with the Assembly on the outcome—a need to negotiate an agreement. So there are two principles there. Indeed, the noble Baroness is right that this has been overtaken by the undertaking given earlier, but I did not even dream that we would have so many undertakings, so I tabled the amendment in expectation rather than in hope—and now my hope is about to be fulfilled.
Lord Howarth of Newport
My Lords, I would be disappointed if the more radical interpretation of Amendment 4 that the noble Baroness, Lady O’Neill of Bengarve, has adumbrated were not to be the case. The National Assembly for Wales should have power to determine the electoral arrangements for the people of Wales whom it represents, in exactly the same way as the Parliament of the United Kingdom, subject to experts and objective advice, determines electoral arrangements for the United Kingdom.
I do not understand this paranoid insistence on standardisation in electoral arrangements. It could be that using the Scottish Parliament, the National Assembly for Wales and the electoral body in Northern Ireland as laboratory experiments would enable us to learn how better to conduct our electoral affairs and democracy. After all, this Parliament has foisted, or intends to foist on the people of Wales, the most absurd reorganisation of constituency boundaries. It would be much better for the people of Wales as far as possible to be able to determine their own electoral arrangements.
Lord Crickhowell
The noble Lord’s remarks have prompted a question in my mind. What is the role of the Electoral Commission in this connection? When we are dealing with constitutional affairs here, the Electoral Commission has a very important role. If this matter is being handed over in this way, is it going to have a role in relation to the Welsh Assembly?
Lord Howarth of Newport
The Electoral Commission has certain duties that are defined under statute and it offers authoritative advice. However, ultimately, these matters remain to be determined by the elective bodies in question, and that is how it should be.
I want to say a word about Amendment 5, proposed by the noble Lord, Lord Elis-Thomas, which seems to ask no more than that the National Assembly of Wales should take responsibility for its own standing orders. How could we possibly deny it that?
Baroness Morgan of Ely (Lab)
My Lords, I add my appreciation of the fact that we have seen some significant movement during this debate, and I hope that we can continue in that vein for the rest of the day. I want to talk specifically about the agreement or necessity for the Assembly to agree to electoral arrangements. That is very much where the Labour amendment comes from. We have a proposition in this Bill, and we think it would be incorrect for the Assembly not to have a say.
In Committee, the Minister underlined the fact that the majority of the electoral proposals contained in this Bill had been discussed and agreed by the Welsh Government. That is important; there is an important principle here that should be respected. But the principle of devolution also means that it should be a formal process; the Assembly needs to agree to these measures formally and legally rather than have them handed down, even if it is through an agreement that is not as formal as we would like. It is important for us to move to a more legislative approach, and that is what we seek to do with our amendment.
It is also important to note that the Scottish Parliament has the power to make arrangements about Scottish parliamentary elections. That is a divided power between Scottish Ministers and the Secretary of State. So we are simply asking for a degree of consistency. This is a discussion that will go further when we come to Silk 2 and other arrangements. In the context of what we are talking about here the electoral arrangements being proposed should formally and legally be approved by the Assembly.
The Minister spoke in Committee about the danger of a piecemeal approach to devolution and said specifically in relation to elections that there was a need for a “comprehensive approach” across the UK for powers and conduct of elections. That is precisely what we are asking for here—a similar system to that which already exists in Scotland. We do not quite understand why there is a reluctance on this. Could the Minister specify whether there is a principled objection to this or whether this is a question of timing?
Baroness Randerson
My Lords, I fear that I might be about to disappoint one or two noble Lords by not being able to make the leap in one bound to the position that they would like us to be in—but I am pointing roughly in the right direction.
Amendment 4 would prevent electoral provisions in this Bill being implemented until they were agreed by the Assembly, and Amendment 5 would devolve to the Assembly powers over its constitution, structure, membership and elections. As the noble Baroness has just said, the electoral provisions in the Bill arise from consultation undertaken by the Government on the Green Paper that they published in May 2012, and it is fair to say that a lot of devolution debate has flowed under the bridge in the past couple of years. That consultation sought views on, among other things, permanently extending the term of the Assembly to five years; preventing Assembly Members from sitting simultaneously as MPs; and overturning the ban on dual candidacy. In response to that consultation, all parties in the Assembly, including the Welsh Government, supported the permanent move to five-year fixed terms. There was also general agreement that AMs should not be able to sit simultaneously as MPs. The one area of disagreement was on the area of dual candidacy, to which we will undoubtedly return later this afternoon.
There is widespread support in the Assembly for the majority of the electoral provisions in this Bill. It would be wrong to delay the commencement of these provisions as Amendment 4 seeks to do purely because of the desire in the long term apparently to hand over a power.
Amendment 5 would put electoral arrangements among other things more generally in the hands of the Assembly by devolving competence over these issues to the Assembly itself. I am more sympathetic to the intention underlying that amendment. It is a characteristic of most mature legislatures, as the noble Lord said, that their composition and electoral arrangements and the conduct of their Members are issues that are decided on and legislated on by the legislature itself. The Presiding Officer of the Assembly has made similar arguments on a number of occasions, and the Silk commission made a number of recommendations about the Assembly and the statutory restrictions that currently apply to it.
The constitutional debate in the UK at the moment presents an historic opportunity to achieve a clear, stable and lasting devolution settlement for Wales by moving forward together on the basis of consensus. The proposals in Amendment 5 should therefore be considered as part of the cross-party process that I have already mentioned. One or two noble Lords anticipated that point. I ask noble Lords to forgive me for saying once again that this Bill is not the appropriate vehicle for taking them forward. They can be taken forward at this very time in the cross-party discussions that will take place over the next few months and should reach a consensus and agreement, because it is obvious that there is a lot of cross-party agreement that the Assembly should ultimately be responsible for the conduct of its own internal affairs and for issues such as elections.
Baroness Randerson
Then I very much hope that the noble Lord expresses his joy by not moving his amendment.
Lord Anderson of Swansea
My Lords, I was hoping for a more positive response. As I may have said earlier, once upon a time I was a civil servant. In Whitehall there is a little book called something like 1,001 Ways of Avoiding a Decision. “Yes Minister” is in that same vein. The argument put forward is that this is not the vehicle; this is not the time. I would argue that it is the vehicle and it is the time. The Minister’s speech could have been made a month or two months ago. My noble friend Lord Elis-Thomas indicated that there have been two recent developments in the Assembly—the resolution and the response to committee recommendations—which suggest that there is all-party agreement in the Assembly.
Baroness Randerson
Does the noble Lord accept that discussions are going on at this time on whether these issues should be devolved to the Assembly? His amendment would simply have the effect of delaying things which have been agreed some considerable time ago as a result of the normal form of public consultation.
Lord Anderson of Swansea
The last thing I would argue for is delay. There is surely a case for delay if there are genuine differences between the various parties in discussion, but I understand that there is no lack of consensus, as indicated in the points made by my noble friend Lord Elis-Thomas. If the argument is that I may be seeking to delay, I can say that I am certainly not doing that. If the argument is that my amendment may have the effect of delaying, I would respond: what is the effect of what the noble Baroness is saying?
Will there be some agreement in time for Third Reading on this matter, on which there is substantial agreement and on which we have the precedent of the relationship between the Scottish Parliament and Westminster? Why the difference? If there is agreement why cannot it be done now, as indeed on the concession that the Government made in respect of the voting age? Is the Minister prepared to say, given the consensus, that this can be remedied and changed at Third Reading? If not, I think it is unfortunate but I would certainly not wish to proceed with the amendment, and I beg leave to withdraw it.
Lord German
“( ) for subsection (4) substitute—“(4) The list must not include more than six persons (but may include only one).
“(4A) The list of those persons so nominated shall be printed on the regional list ballot paper.””
Lord German (LD)
My Lords, I am pleased to move this amendment standing in my name and that of my noble friends Lord Thomas of Gresford, Lady Humphreys and Lord Roberts of Llandudno. I do not wish to repeat what I said in Committee but it would be worth outlining the two purposes of this amendment. First, it would reinstate the names of the candidates on the regional ballot paper; and secondly, it would reduce from 12, as it is now, to six the maximum number of names on the ballot paper.
The first of those objectives requires an order which, of course, can be tabled within six months or so of the next elections to the National Assembly for Wales. But, of course, the second of those matters requires primary legislation and was a block in the 2011 Assembly elections. I remind noble Lords that the names of candidates appeared on all the ballot papers for the regional ballot in Wales for the National Assembly for Wales, except at the very last elections in 2011 when they were removed.
I have three reasons for bringing the amendment forward in this format again. The first is to establish what progress has been made on the proposal. Originally it was that of the Electoral Commission—to reduce the number of names on the ballot paper from 12 to six and to examine timing issues. The second reason is to see whether it is possible, in this debate, to establish the views of the political parties towards the proposal that names of candidates should be on the ballot paper. The third is to try and establish accurately the reasons why candidates’ names were removed from the ballot paper and judge on that basis whether these reasons can be looked at afresh. Like many noble Lords, I would not want an acceptable solution ruled out because of the lack of primary legislative time.
On the first point on progress, I have read the consultation letter from the Electoral Commission, and much of what it says is that the barriers to putting the names on the ballot paper are to do with the interests of the administrators rather than the voters. It is to do with the fact that it takes some time to unfold them, lay them out flat and count them. Having stood in the regional ballot for the National Assembly for Wales, I do not think that I ever got away from a count before 7 am the following morning. That was in 2011 when I was present, as it was for the previous three elections. I do not think that it is markedly any different in time depending on the way in which the ballots are counted. That is not a reasonably rational solution. It is curious that in the letter which the Electoral Commission sent out to all the political parties and interested parties on this matter in its consultation recently, it did not mention the need for primary legislation to implement one of its proposals, which was its proposal back in 2009.
I have seen a letter to the Minister, which was copied to me by the Electoral Commission, which would lead us to believe that once the Secretary of State at that time had ruled out reducing the number of names on the ballot paper, that primary route was no longer a possibility. As my noble friends who put their names to this amendment will know, and as noble Lords here will know, we are reviewing the whole position of the way in which the National Assembly is treated. It seems to me that this is a real opportunity to examine the issue once more. I am sure that noble Lords would not want a recommendation from the Electoral Commission’s recent consultation which effectively said the same as it did in 2009—that the solution of only six names is not possible because, as at that time, the Secretary of State says that primary legislative parliamentary time cannot be found.
I turn now to the second point, which is the views of the political parties. The Electoral Commission’s evidence-gathering session has ended and all political parties in Wales have made their positions clear. I know the position of the Welsh Liberal Democrats. As noble Lords can see, the amendment follows closely my party’s policy, so I am happy to move it. I guess from the sympathetic words I received in Committee from the noble Lord, Lord Wigley, that Plaid Cymru supports putting the names back on the ballot paper. Perhaps my noble friend can tell us in her response whether her discussions with the Secretary of State indicate that the Conservative Party supports placing the names on the ballot paper. The position of the Labour Party still remains a mystery to me, but I am sure that I will be enlightened in the course of this discussion.
Lord Wigley
Before the noble Lord concludes his remarks—I support his general thrust—does he accept that if the noble Baroness, Lady Randerson, as Minister, moves ahead with the undertakings that she gave on the earlier group of amendments, her provisions may well allow the Assembly to decide this issue for itself, as opposed to us taking the prescriptive decision in the way in which it is laid down in the amendment?
Lord German
I understand, but I repeat what I said in Committee—that it is a matter of timing. We are talking about a decision for the 2016 elections, which require an order some time between six and nine months before those elections take place so that ballot papers and everything else can be put in place. But importantly, if the Electoral Commission were to think that it needed primary legislation, this may well be the only opportunity to have it in place before 2016, given that you need to have it in place well in advance of the elections. I remind noble Lords that the current legislation states that a political party can place a maximum of 12 names on the ballot paper. However, there are only four vacancies. I am not wedded to six persons but it seems fairly reasonable that, if you had a candidate who had held a seat on the regional ballot, you are not likely to get five deaths in a row which would mean that you had nobody left on your list to fill that vacancy. Certainly, that was the view of the Electoral Commission.
Finally, I tried to establish why the names were removed in the first place. There is something of an inconsistency in the letters from the Electoral Commission on this matter that I have received and seen. It said that there was no legislative time available and therefore its recommendation of having only six names maximum in order to have a shorter ballot paper—one that was easier to manage and easier for voters to see without the print being so small that you could not read the names—was rejected by the Secretary of State because there was no time in which to introduce primary legislation. The second letter I have seen does not say that in such stark terms. It simply says that the Secretary of State rejected this proposal. I wonder whether anybody can throw any light on that issue. If we are going to put the names of candidates back on the ballot paper, we should not have a restriction placed upon us by virtue of primary legislation.
In the first three elections to the National Assembly, when the names were on the ballot paper, postal voters could also see the names and see who they were electing. In those early elections there was the possibility of candidates being on both ballot papers at the same time—a position which will be re-established under the clause we are debating. That meant, of course, that people could see the read-across from both ballot papers and make their decision accordingly. In other words, if the same names were on both ballot papers, that provided more information to the voter. Taking the names off, of course, meant that the postal voters could not see the names of anyone and would not have a clue who they were electing, which is a fundamental process in our elections, as it is for the European elections in Wales, where we do see the names of candidates on the ballot paper.
In conclusion, I would like to ascertain what progress has been made, try to establish the political parties’ views on this and ask my noble friend what progress we can now make to bring back the names on the ballot paper, especially in relation to the other parts of Clause 2 which are so relevant to this amendment.
Baroness Randerson
My Lords, as the noble Lord has just said, Amendment 6 would provide that the names of candidates standing on a regional list in an election to the Assembly must be printed on the ballot paper and that the maximum number of candidates that a party can nominate for inclusion on the regional list would be reduced from 12 to six.
The Government of Wales Act 2006 provides that a party may nominate up to 12 candidates for each electoral region. As the noble Lord said, until 2011 in the Assembly elections the names of all those candidates were included on the regional ballot paper. However, following the 2007 Assembly election, the Electoral Commission reported that electoral administrators were concerned that including the names of all these candidates on the ballot paper was making ballot papers unwieldy in size and potentially confusing to voters. As a result, the names of candidates for the electoral region were removed from the ballot papers for the 2011 elections, although the names were still required to be displayed in polling stations. However, it is clear from the Electoral Commission’s report that there were problems with that display of names in a number of cases. In its report, the Electoral Commission committed to consult on whether candidate names should again be printed on regional ballot papers. This consultation recently closed and I have had a meeting with the Electoral Commission since the close of that consultation.
Once the commission has made its recommendation to the Secretary of State for Wales, the Wales Office will consider this as part of its wider work in drafting amendments to the conduct order for the 2016 Assembly election. My right honourable friend the Secretary of State is taking a keen interest in this. He understands the powerful arguments for maximum transparency, which is obtained by having names on ballot papers. There will, of course, be consultation with the Electoral Commission, the Welsh Government and electoral administrators as well as political parties in Wales. The final order will be subject to agreement by both Houses of Parliament. This is a tried, tested and robust process which will ensure that a wide range of views, including those of political parties, will be taken into account before a decision is made.
My noble friend’s amendment refers to the reduction to six names on the ballot paper. I point out that this could be achieved by simple agreement across parties. In fact, efforts were made to reach such an agreement last time. I hope that in the interests of voters and their understanding of the election it will now be possible for discussions to take place that would achieve that agreement. In that case, if we can get cross-party agreement that there should be only six names on the ballot paper—parties could not be prevented from fielding up to 12 candidates because that is their legal right—it would enable shorter and easier to manage ballot papers for the administrators of elections.
In the light of that additional information, I urge my noble friend to withdraw the amendment.
Lord German
I thank my noble friend for her remarks. I have only two comments to make. At the outset, I said that I would like to establish the views of the political parties to see if they were represented. I now know that this is getting a sympathetic hearing from three political parties, but the fourth—the Labour Party—was silent. We will therefore have to wait and make a judgment accordingly when we see its written submissions when they are made public.
However, as my noble friend said, the issue of getting consensus and agreement means that a political party that does not agree could go ahead and field 12 names. I hope that my noble friend will agree that, should the majority of political parties putting forward candidates for the 2016 National Assembly elections agree in that consensus, we will go ahead with putting only six names on the ballot paper and not allow a single party to veto that happening on behalf of all the other political parties in Wales, given that we have such a broad, strong principle, and where there are precedents in all previous elections to the National Assembly for Wales, bar one. Is my noble friend prepared to go ahead on those terms? I do not know whether that is possible.
Baroness Randerson
It is important that the noble Lord takes account of what I have just said. I will certainly ensure that this debate is drawn to the attention of the Secretary of State, who has the power to make the decision and present the measure to both Houses of Parliament in due time.
Lord German
I thank my noble friend for that and, on that basis, beg leave to withdraw the amendment.
Lord Anderson of Swansea
Lord Anderson of Swansea
Amendment 7 stands in my name and in the name of my noble friend Lady Morgan. My initial submission is that the area covered by the amendment should be a matter for the National Assembly and that it should not be for us to intervene. I note the two-thirds, super-majority suggestion. Given that the current membership of the Assembly is 40 directly-elected Members and 20 elected on the list system, that proposal would mean that the list system—even if it were deemed to be inappropriate—could not be judge because, on the “turkeys not voting for Christmas principle, those on the list system would be unlikely to vote for it to end.
The Government saw in the Bill, quite properly, a way in which to implement Silk 1. Clause 2 stands as an eccentric—something outside Silk 1. These are the only matters that deviate from the Silk recommendations, and one is constrained to ask why this is used as a vehicle for this important change. I shall not cover the same ground that we covered at Second Reading, although we did not consider this matter in Committee. However, I wish to counter the charge of naked partisanship that was used. Your Lordships may recall that I mentioned the significant comments of leading Conservative and Liberal Democrat spokesmen. It is significant that their comments were made freshly after the actual experience of dual candidacy. Perhaps memories are now fading; for example, regarding the experience of the Clwyd West constituency election in 2003. It was won by Labour’s Alun Pugh. However, three of the other candidates—Brynle Williams, Conservative; Janet Ryder, Plaid Cymru; and Eleanor Burnham, Lib Dem—all became Assembly Members as a result of the regional list. It was a certain Alice in Wonderland world in which everyone was a winner; everyone had a prize.
To the suggestion that this is new and that the only country in the world to have had a similar ban on dual candidacy is Ukraine, Professor Roger Scully said in his evidence that a number of Asian countries have a similar ban. I cite Taiwan and South Korea. New Zealand, New Brunswick and Prince Edward Island in Canada have in recent years considered bans on dual candidacy. It is not, as has been suggested, confined to Ukraine. It is best surely that the normal rules should apply. If someone is rejected by the electorate in an election, that same person should remain rejected by the electorate and not come in by the side door and be on a par with other candidates.
The implication in suggesting that there should be dual candidacy is that we have a dearth of suitable candidates in Wales. That is not my experience. I recently watched a selection in my former constituency as an interested observer. I have seen many other candidate selections and there is a very good list of quality candidates who are ready and available for selection. We demean Welsh politics by suggesting that we do not have sufficiently able, competent people available.
I note the submission of the Electoral Reform Society Cymru, which is, if I have interpreted it correctly, that it wishes to rescind the ban on dual candidacy but impose a supermajority. Obviously we must respect its view, but equally recognise that this is not an ex cathedra statement. Yes, we respect it, but we in this case are the cathedra: it is we who dispose. The arguments against dual candidacy arising from the experience prior to 2003—I cited in the past not just Clwyd West, but the position of Llanelli—are sufficiently cogent for us to say that this matter should remain as it is. We should continue the ban on dual candidacy. It is, after all, in the interests of democracy that if someone is rejected by the electorate they should remain rejected by the electorate.
Lord Howarth of Newport
My Lords, I want to say a word or two in support of my noble friend Lord Anderson. The principle that party-political candidates stand as individuals should not be ignored. People are not simply representatives of their parties: they are individuals and characters. Electors form judgments about their individual suitability to represent them in the Assembly. That is why I think that the permission to offer dual candidacy is wrong in principle.
Happily, the National Assembly for Wales has not been subject to the same pressure of scandal and disgrace as the House of Commons in respect of expenses, but there can be no doubt at all that when electors voted in the 2010 general election they formed their judgment, in the case of certain candidates, on the basis of those candidates’ personal records. That is the background to the introduction of the recall legislation. It is against that spirit to say that a candidate is no more than the representative of a party and that if that candidate does not win the first past the post part of the election that same individual candidate can acceptably come back on the list.
Even if it was not for that consideration, voters feel that it offends against an instinctive sense of political propriety that people should run as candidates under first past the post, lose the election and then turn up an hour or two later elected on the list system. That was offensive, and it was absolutely right that the previous Labour Government remedied the error that they had made in the original devolution legislation. The Government of Wales Act 2006 removed the possibility of people standing as candidates twice in the same election. It is regrettable that the coalition—here it is a coalition not just of Conservatives and Liberal Democrats, but also of Plaid Cymru—is seeking to restore a system that is designed by them to be advantageous to minority parties. It is entirely acceptable that under the electoral system we have for elections to the National Assembly for Wales extra provision is made to ensure that minority parties are represented there. However, we must avoid what was generally taken in Wales to be an abuse, whereby defeated candidates come back and reappear, contrary to the clearly expressed wishes of electors.
Lord Thomas of Gresford
My Lords, mistakes were made by the Labour Government in the first place with the electoral system that they chose. First past the post had to be maintained under any conceivable circumstance and the only way in which proportionality could be introduced was by way of the list system. Certainly, you can abolish the list system and replace it with the single transferable vote. We, on this side of the House, who argued for that in the first place, would willingly go along with it. One of the consequences of the Labour Government choosing, in 1998, to put in the system that they did was that a person could then stand both as a list candidate and as a constituency candidate. It is all very well talking about being rejected by the electorate. Where you have a first past the post system, you can have a political party with substantial following throughout the country—I am thinking about an up and coming party at the present time—which may win no seats at all. The system that was introduced in 1998 of being able to stand in two places was simply as a result of the Government at that time rejecting our argument for the single transferable vote. The sooner we get to that system, the better.
Lord Elis-Thomas
My Lords, before the noble Lord sits down—perhaps he has already sat down—does he agree with me that, if we went for a single transferable vote system throughout Wales, that would immediately make the regions the constituencies rather than the present constituencies because, clearly, for STV to work there would have to be a broader area of representation?
Lord Thomas of Gresford
I accept the logic of that. We have always argued for it and will continue to do so.
Baroness Gale
My Lords, I speak to this amendment in support of what my noble friend Lord Anderson said. When the Welsh Assembly was set up as an elected institution, it was the Labour Party that introduced PR for the regional list—along with the traditional first past the post system—which was in direct opposition to its own political interests. It is only a few years ago that we had a referendum for the people of this country to decide what system of voting they wanted. Overwhelmingly, they decided that first past the post was the best system.
Removing the ban on dual candidacy would mean that candidates who have been rejected by the electorate under first past the post could get into the Assembly via the back door. We believe that that is subverting the will of the electorate. The majority of people responding to the Government consultation on this issue disagreed with the Government’s position. We share the wider concerns of the public that removing the ban would be anti-democratic. As my noble friend Lord Anderson clearly illustrated, it would allow losing candidates to be elected by the back door. It is not what the voters want.
As I said on Second Reading, it is not surprising that two significant surveys carried out on dual candidacy have both found a clear majority in favour of a ban. One was the Government’s own consultation and the other the Bevan Foundation study. According to the Government’s own consultation, there was a small majority in favour of the ban. It does seem strange that the Government are completely ignoring their consultation—I assume because it did not give them the answer that they wanted.
The Explanatory Notes on the Wales Bill say that this change will be made to the benefit of the smaller parties in Wales. They say that studies by the Electoral Commission and others,
“have demonstrated that the prohibition has a disproportionate impact on smaller parties who have a smaller pool of potential candidates to draw upon”.
If that is the case, we are changing the law in order to help smaller parties because they cannot find enough candidates. I have seen no evidence of that. At every election, every party in Wales fields a full slate of candidates, so to me there seems to be no problem. If that is the reason for changing this, it does not hold up very well because no party has had any candidate vacancies.
There should be strong democratic reasons for a change back to dual candidacy, but I do not think that the Government have produced any. I can give a commitment that if Labour is in power after the general election, and if this is carried through, we will reintroduce the ban on dual candidacy.
Lord Bourne of Aberystwyth (Con)
My Lords, Amendment 7 tabled in the name of the noble Lord, Lord Anderson, would remove Clause 2 from the Bill. The clause overturns the ban on dual candidacy by the previous Labour Government, thus reversing their own position as set out in the Government of Wales Act 1998. Dual candidacy refers to the situation at an election where a candidate stands in both a single member constituency and on a party list at the same time. Perhaps I may say first that the amendment seems to be supported only by the Labour Party. Indeed, the noble Lord, Lord Howarth, referred to the fact that the three other parties are very much against this change, which should suggest to noble Lords that this is something of a partisan manoeuvre on the part of the Labour Party; it would seem that everyone else is out of line except for that party.
Let us look at some of the arguments which have been put forward. The noble Lord, Lord Anderson, knows that I respect him immensely, but I cannot understand the argument that when people go into a polling station and cast their vote, they are voting against candidates. They are voting for a candidate. There is no evidence to suggest that when people voted in Clwyd West they were voting against Brynle Williams, Eleanor Burnham and Janet Ryder; they were voting for Alun Pugh. Unless noble Lords on the other side are suggesting that some candidates have more validity than others or some Members have more validity than others, it is hard to see their objection to people being elected on the proportional list who have been candidates for constituencies. I cannot follow the argument that people are voting against candidates; they are voting for candidates when they vote.
Lord Anderson of Swansea
There may or may not be validity in what the noble Lord is saying. Some people may vote positively for a candidate while others, knowing certain candidates, will vote against. It is not a question of either/or.
Lord Bourne of Aberystwyth
This comes back to the amendment put forward by my noble friend Lord German where the candidates’ names are on the list. I should like to see the evidence that people are voting against candidates; none has been brought forward that I have seen.
When the last Labour Government introduced the ban on dual candidacy in the Government of Wales Act 2006, Ministers claimed to have done so as a result of the general public’s “considerable dissatisfaction” with dual candidacy. I have heard it suggested again today that an overwhelming majority of people are against it. Let us look at the two surveys referred to by the noble Baroness, Lady Gale. I turn first to the Government’s Green Paper. It was suggested by the shadow Secretary of State in another place that an overwhelming majority of respondents to the consultation were opposed, but in fact the summary of responses published by the Wales Office in 2012 notes only a small majority—in fact, it was a majority of one.
Let us look at those who actually submitted to the consultation. The majority in favour of removing the ban were Labour AMs with responses written in remarkably similar language. I would ask noble Lords to look a little more closely at the evidence before they assert, as was done in another place, that an overwhelming majority of respondents thought that it was right to have the ban. Frankly, that is not the case. It is true that the 2006 paper produced by the Bevan Foundation found that a small majority did consider it to be unfair, but the foundation went on to say that any change should be “based on sound evidence”.
Perhaps I may take noble Lords with me to look at some of the evidence. Independent bodies such as the Electoral Commission have disputed the change. They have suggested in evidence to the Welsh Affairs Committee that the view is clear that prohibiting dual candidacy in Wales is not something that they are in favour of and is not supported by evidence as necessary. It seems to me that no evidence has been brought forward since then that suggests that such a change is necessary.
An acknowledged expert on this issue is Professor Roger Scully—who has already been mentioned—from Cardiff University’s Wales Governance Centre. I do not know his politics, but I know that he does not vote for the Conservative Party. He said:
“No substantial independent evidence was produced at the time of the GOWA”—
the Government of Wales Act 2006—
“(or, to my knowledge, has been produced subsequently) of significant public concern about dual candidacy. The claims made about dual candidacy ‘devaluing the integrity of the electoral system’, and ‘acting as a disincentive to vote’ therefore remain wholly unsupported by solid evidence”.
It is a fact, and one recognised by the Arbuthnott commission established by the last Labour Government, that dual candidacy is a feature of mixed-member proportional electoral systems the world over; yet of all the countries that use this system, it is only Wales that has such a ban.
That brings me to the point made by the noble Lord, Lord Anderson. Taiwan, which I believe he mentioned, Thailand and Ukraine all have a different system where they have two completely separate lists that do not interact; so it does not apply in the same way. In New Zealand, whose system he also recommended, the Electoral Commission has urged against introducing such a ban, so there is very little evidence elsewhere out there that this ban is desirable.
I come to a point that has not been touched on—rather significantly—that, apparently, at the same time as we were saying that this ban was so necessary for Wales when it was introduced for Wales at Westminster, for some strange reason it was not introduced in relation to the Greater London Assembly or to Scotland. At the time, of course, both bodies had regional members who represented the Labour Party, whereas in Wales there were no regional members for the Labour Party. Cynics might suggest that there is something to read into that, but we have not heard any mention of why the ban is only something that is right for Wales, but not right for Scotland or Greater London.
Baroness Gale
If one looks at the votes that are cast for the regional lists and the constituencies, Labour tops the poll in each of them. Because of the way the proportions are divided out, Labour does so well in the constituency section that it cannot—under the d’Hondt system—get many seats in the list system. This time around, we had two seats, even though we topped the poll in the regions. In the whole of Wales, Labour got 36.9%, the Conservatives 22%, Plaid Cymru nearly 18% and the Liberal Democrats 8%. As far as Wales is concerned, therefore, Labour tops the poll in the regional lists and in the constituencies, so we are grateful to the people of Wales for showing their support for us. I cannot see the validity of what the Minister is saying.
Lord Bourne of Aberystwyth
I thought that the noble Baroness was going to address the point about Scotland and the Greater London Assembly, but she did not. In relation to what she has just said, she has just expressed the essence of a proportional system. Nobody needs to explain to me that, the better a party does on first past the post, the more likely it is to lose seats on the list. I certainly know that to be the case, but that was the essence of the system that the Labour Government introduced, and I applaud them for it—it is a proportional and fair system. However, the question the noble Baroness did not address is why it is right to have the ban in Wales, but not right to have it in Scotland and London. I leave Members to ponder that one.
I return to the point that this, as I see it, is a partisan measure—I am afraid I have to say that because that is what I believe—and I cannot see other than that, particularly in light of the fact that in Scotland and Greater London it seems to be all right by the Labour Party to continue the system. Therefore, although I have the greatest respect for the noble Lord, Lord Anderson, I cannot agree with him on this point, and I invite him to withdraw his amendment.
Lord Anderson of Swansea
My Lords, first, I welcome the noble Lord, Lord Bourne, to the Front Bench for the first time on a Bill. Let us warmly welcome him. He has made a major contribution, not least to constitutional matters in Wales.
On what the noble Lord, Lord Thomas of Gresford, said on STV, this is certainly worth debating. It would get around the dangers of dual candidacy. Of course, the problem is that people can identify with a constituency but are less able to identify with a region, but it certainly would be more democratic and would remove the dangers of this particular proposal from the Government.
On the evidence, I concede that it is not overwhelming, but the surveys that have been mentioned all point one way. There is no popular demand for this and there is a slight majority in the relevant two surveys showing that there is opposition to the dual candidacy—for good reason.
What puzzles me is that the Bill is broadly non-controversial and has been made even more palatable by the concessions made today by the Government. Yet, the Bill essentially puts into practice the recommendations of the Silk commission except for this provision. If you were a geologist you would call that eccentric and something outside that. One wonders why the Government have added this to what is essentially a non-controversial Bill.
This is not a partisan amendment in any way on my part. I have mentioned before that the leading spokespeople of both the Conservative and Liberal Democrat parties earlier opposed dual candidacy—for good reason. They had seen it in practice during the first Assembly. I gave quotations at Second Reading to show that, since this had been introduced by a Labour Government, the amendment could hardly be deemed partisan. As the rejection was supported by these two leading spokespeople, it again could hardly be deemed partisan. In my judgment, this is an unwise inclusion in what would otherwise be a non-controversial Bill. The Labour Party has pledged to reverse this when we get into government. Having made my point and looking forward to that reversal—
Lord Elis-Thomas
My main concern about this whole issue is the constitutional situation where the electoral system for the Assembly is to be changed whenever there is a change of United Kingdom Government. Quite frankly, I find that reprehensible. We require stability in an electoral system. Would my noble friend agree that it is better that this matter is devolved to the Assembly, so that we can create an electoral system that would be responsive to the people of Wales and would be established by only a two-thirds majority?
Lord Anderson of Swansea
I have argued in the past that all the electoral arrangements, including this one, should be devolved to the Assembly, but I am less inclined to accept the latter part of my noble friend’s submission that there should be a two-thirds majority. It would not be a two-thirds majority but a one-third blocking minority, so it would be minority rule. Given the fact that under the current system a third of the seats are on the list, I suspect that nobody on the list will vote for any change. On the whole, we should let the Assembly makes its own decision on this. I therefore wholly accept the view of my noble friend. I beg leave to withdraw the amendment.
Lord Norton of Louth
Lord Norton of Louth (Con)
My Lords, Clause 3 is straightforward. It disqualifies Members of the House of Commons from sitting as Members of the National Assembly for Wales. The provision implements recommendation 40 of the 2009 report of the Committee on Standards in Public Life, MPs’ Expenses and Allowances. The committee’s recommendation derived from consideration of the position in Northern Ireland, where all the parties with representatives at Westminster wanted to bring multiple mandates to an end.
The clause also appears to be supported by the main parties at Westminster. At Second Reading in the other place Owen Smith, speaking for the Opposition, said that the Labour Party welcomed the provision, as the party had,
“always had an internal party position whereby it does not support people having dual mandates”.—[Official Report, Commons, 31/3/14; col. 618.]
What, then, is the basis for outlawing dual mandates? The argument appears to be that one cannot do the job of an MP while also holding another mandate. It was that conceit of the European Parliament that led to the EU prohibiting members of national legislatures from serving as Members of the European Parliament. We had to legislate to exclude Members of this House who were elected as MEPs.
The Committee on Standards in Public Life also contended that a dual mandate did not meet the conditions it prescribed for MPs holding other jobs—namely that it did not interfere with the primary role of the MP, was completely transparent to electors, and did not present a conflict of interest. The committee conceded that the second of these did not apply to a dual mandate. There is obvious transparency.
I am not persuaded that the other two conflict with holding the dual mandate either. I do not see a conflict of interest—not, at least, if one is representing the same constituents. The point about interfering with the primary role of the MP brings us, in essence, back to the practical argument. I am not clear that a case has been made that it interferes with the primary role of the MP. One could argue that it introduces an element of cross-fertilisation of benefit to both bodies.
Last week I had the honour of attending, indeed of chairing, the Speaker’s Lecture, given by Nick Raynsford, a former Minister for Local Government, who drew attention to the decline, which he regretted, in the number of MPs who serve concurrently as local councillors. The numbers have decreased significantly in recent decades, to the point where there are now virtually no MPs who also sit as local councillors. As he pointed out, this is in stark contrast to what happens in a number of our European neighbours.
Supporters of the clause will doubtless argue that it is no longer possible to do justice to the job of an MP while also serving as a local councillor. Some seem to manage—but that is not my point. The argument ignores a fundamental issue of principle. If one is to have a public office filled by election, one should not infringe the freedom of choice of the electors. If electors wish for a particular candidate to serve them in more than one assembly, that is a matter for them. It may be difficult or near impossible to serve in both, but that is not a sufficient basis for prohibiting voters by law from electing whoever they wish to represent them.
The late Lord Bannside was well known for having a triple mandate, never mind a dual mandate. Fulfilling all three roles may have been overly demanding. He may not have served his constituents effectively—although I am not saying he did not. My point is that it was a matter for him, and for those who elected him. His constituents put him in those positions. They knew what to do if they felt he was not representing them effectively.
I have a principled objection to restricting by law the choice of electors. I do not regard it as our role to say who electors should or should not elect. It is for that reason that I supported lowering the age at which one could stand for election to public office. I have no problem with that age being lower than the voting age; it used to be the other way round. If you lower the voting age to 16, you empower 16 year-olds. If you lower the age at which someone can stand for election to 16, you empower electors. My view is that we should be widening the choice of electors, not restricting it.
There are some positions that are incompatible with elected office. Those are generally already provided for, but we should keep them to a minimum. I see that in Amendment 10 my noble friend Lord Thomas of Gresford wishes to exclude any,
“member of the legislature of any country or territory outside the Commonwealth (other than Ireland),
from being eligible to be elected to the National Assembly. I suspect the chances of any member of such a legislature standing are pretty slim, but why should we legislate to prevent that? If political parties wish to have internal rules to limit such dual candidatures, that is a matter for them, but we should not be using the statute book to forbid it. If an AM wants to stand for election to the House of Commons or an MP seeks election to the National Assembly, that should be a matter for them and for the judgment of electors.
As I said, my objection to the clause is one of principle. We should apply stringent standards of scrutiny to measures of constitutional significance, not least those that place a restriction on electors. That is what, in effect, the clause does. It is important to get this on the record. We are in danger of creating a patchwork quilt of restrictions through bans on a dual mandate. We need to be more alert to the implications. If we are to proceed with the clause, we need to have on record a clear, principled justification for it. I invite both Front Benches to address the issue of principle engaged by the provision. There is no need to address the practical implications; we know what those are. We need to have the principle underpinning the ban that trumps the right of electors to elect the candidates of their choice. I beg to move.
Lord Anderson of Swansea
My Lords, I hear what the noble Lord, Lord Norton, says. He argues on a point of principle that the choice of the electorate should not be channelled in any way in respect of dual candidacy. He mentioned the position on the continent. He will know that the stream is moving strongly against an accumulation of mandates on the continent—certainly in France, which I know reasonably well. When I represented Swansea, I would have loved to be the Mayor of Swansea at the same time and, perhaps, to have had another mandate. That would have been very useful in cross-fertilisation and no doubt added to my local standing. I work on the simple principle of practicality. People tend to vote for the party, which stands against the principled point which the noble Lord enunciated. Also, no person can serve two masters. My experience in the other place was that, if done properly, it was a full-time job. Equally, as we add to the responsibilities of the Assembly, if an Assembly Member is to do the job properly, that is also a full-time job, and the electorate should not be short-changed by allowing a person to do the two jobs. They will do one well and the other not.
Lord Howarth of Newport (Lab)
My Lords, we should be grateful to the noble Lord, Lord Norton of Louth, for inviting us to reflect on the principle involved here. When he comes to respond to the debate, perhaps he would give us the benefit of his thoughts on how his principle would apply if, as has been proposed, there should be a senate of the nations and regions of the United Kingdom. Admittedly, I understand that the proposition is that members of the senate should be indirectly elected: they should be sent from the Assemblies and Parliaments of the nations and regions of the United Kingdom. However, I should be grateful for the noble Lord’s guidance as to what principle ought to apply there: whether he considers that a dual mandate in those circumstances should be permitted by law, discouraged or something that the rules of the political parties should embrace—or would he advise a degree of caution in the matter?
Baroness Morgan of Ely
Briefly, it is a good idea in principle for there to be a cross-fertilisation of people from Westminster to the Assembly. That principle was particularly important when the Assembly was set up. However, there is a recognition that there is a time commitment to both the institutions. We now have a situation where the people in the Assembly already do not have the time. We will be talking later about possibly needing more Assembly Members. We do not have the people to do the job at the moment. My point back to the noble Lord is that, although I understand that there should be a principle that the electors can choose who they want, there are other principles that need to be considered. There are the practicalities of how that would work but also the needs of the institutions themselves. Those points should also be taken into account.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Lord, Lord Norton, for his amendment, which allows us to discuss a clause in the Bill that we have not touched on in our previous discussions. I should also say that this is an additional matter that was not covered in the Silk report. The noble Lord comes to this debate on Report with an enviable and well deserved reputation on constitutional issues. I listened very carefully to what he said.
The noble Lord touched on the 2009 report from the Committee on Standards in Public Life, which did indeed recommend that the practice of Members of the House of Commons holding a dual mandate with a devolved legislature should be brought to an end by 2015 at the latest. As my noble friend has set out, that has so far prompted action additionally in relation to Northern Ireland.
The committee questioned whether it was possible for someone sitting in two legislatures simultaneously to do justice to both roles. The Government share the committee’s concern, and listening to noble Lords across the Chamber, it seems that this is a widely shared concern. I very much agree with the comments of the noble Baroness, Lady Morgan, that this is not just about serving the needs of constituents, although, of course, that is important; it is also about the ground rules and the practicalities of what is going on in the institutions concerned.
No Assembly Member is currently an MP but, historically, a number have been so. Indeed, we have two distinguished ones here today who could probably speak to the difficulty—near impossibility, I think—of doing both roles, certainly on a sustained basis. In the Government’s 2012 Green Paper, Future Electoral Arrangements for the National Assembly for Wales, the Government consulted on whether the practice of having multiple mandates should be brought to an end. A large majority of respondents—this time a reliable sample, I think, and a very large majority of respondents—agreed that it should, including opposition parties in the Assembly and the Electoral Reform Society.
Although the Welsh Government did not consider legislation to be necessary, at the Bill’s Second Reading in the Commons the shadow Secretary of State agreed with the proposal, as my noble friend Lord Norton affirmed. Following consultation, in March 2013 the Government announced that we would introduce legislation to prohibit multiple mandates between the House of Commons and the National Assembly at the earliest opportunity. This clause provides that membership of the House of Commons automatically disqualifies someone from sitting in the Assembly, subject to specific exceptions.
If a sitting Member of Parliament is subsequently elected as an Assembly Member, they are given eight days’ grace in which to vacate their seat in the House of Commons, by requesting appointment to a disqualifying office such as the Crown Steward and Bailiff of the Chiltern Hundreds. The eight-day period also applies if parliamentary and Assembly elections are held in close proximity and a candidate is elected to both legislatures. This is to allow them to decide which post to take up. Similar provisions apply in Northern Ireland.
No grace period is given to an Assembly Member who is elected as an MP except where a scheduled Assembly election is expected to take place within a year, the maximum possible period actually being 372 days between parliamentary and Assembly elections. In this instance, an individual will be able to retain both seats for that limited period of time to avoid a costly Assembly by-election when a scheduled Assembly general election is relatively imminent. The draft Wales Bill allowed for a six-month grace period, but following pre-legislative scrutiny of the draft Bill, the Welsh Affairs Committee recommended that the period be extended to one year, and the Government have accepted this recommendation. This clause does not apply to the House of Lords, where there are no constituency interests to represent.
This clause will ensure that an Assembly Member will be able to concentrate on representing the constituents and can contribute significantly to the institution. There was cross-party agreement on these proposals in the House of Commons, and I would therefore ask my noble friend Lord Norton to withdraw his amendment.
Lord Norton of Louth
My Lords, it is precisely because there was cross-party agreement that there is a valuable case for raising the issue. I am grateful to those who have spoken. The noble Lord, Lord Howarth, invites me to digress somewhat on to the proposal for a senate of the regions and nations—the words “back of an envelope” come to mind. In terms of the principle that would apply, it would be that which I have enunciated. He talked about caution, but I think that caution should apply to the very proposal for such a senate, rather than the method by which its members should be chosen.
On the points that have been raised, the principal argument deployed from both Front Benches against the amendment is, in essence, that being an MP is a full-time job. There are two problems with that. It was not accepted by the Committee on Standards in Public Life in its report, where the challenge was a conflict with the primary role, not an argument about its being a full-time job. It is also belied by the fact that the House of Commons is not unable to function because MPs are doing other jobs. It is quite possible for an MP to fulfil the functions of a Member of Parliament while being a Minister of the Crown, for example. I really do not see the argument that—
Lord Anderson of Swansea
While there is a difference between being a Minister and a Member of Parliament, they are in the same building at the same time. I invite the noble Lord to consider the example of someone who is a Member of the Assembly and yet is called to vote in the House of Commons—as the Prime Minister was yesterday, in full evening dress—and therefore neglects what might also be an important vote in the Assembly. A number of conflicts will arise in that way and a Member of Parliament or a Member of the Assembly will have to choose which he would prefer.
Lord Norton of Louth
My Lords, I recall that, particularly pre-devolution, we had Ministers who were responsible for different parts of the United Kingdom and who had to spend an awful lot of time not being in London. If there are challenges from being in both assemblies, that is a matter for the Members. Certainly, at times Members have managed to achieve that. Let us not forget that when we talk about a dual mandate, we are referring only to the House of Commons. There are Members of this Chamber who have a dual mandate, including one who is present at the moment.
Lord Bourne of Aberystwyth
Perhaps I could remind the House that, after the Minister has spoken, it is only the mover of the amendment who can speak.
Lord Norton of Louth
In that case, I will not be able to anticipate what my noble friend Lord Crickhowell may have been about to raise with me. My point is that the objection to what I am bringing forward is one of practice. I am challenging whether, in effect, one can really do that. Essentially, when your Lordships think about it, those who are making that case are saying: “We know best”. That is not an argument for restricting the freedom of electors. The task may be difficult. It may be close to impossible, which is the point being put forward, in which case it is open to those people not to stand and put themselves up to fulfil those dual roles and it would be open to the electors to make the decision not to elect them. As the Committee on Standards in Public Life made absolutely clear, there is at least transparency in this respect. You know what you are getting into, at least on whom you are electing, because of the positions that they hold, so I think that that principle holds.
The other argument put by the Committee on Standards in Public Life is that of a conflict of interest. However, I do not regard that as being persuasive either, because Members of Parliament have at times a conflict of interest between what their party wants and what they see as the interests of their constituencies. I suppose that the logic of that would be to ban MPs from being elected on a party label, which I think is not what the parties particularly want.
In response to the arguments put forward, there is a practical argument, but I do not think that it is sufficient to overcome what is a fundamental issue of principle. We are restricting the right of electors and it is important to get that on the record. That may not suffice today to prevent such rights from being restricted but I hope that it may help to give thought and prevent such incursions in the future. In the mean time, I beg leave to withdraw the amendment.
Lord Thomas of Gresford
“Government of Wales Act 2006: exceptions and relief from disqualification
In section 17 of GOWA 2006 (exceptions and relief from disqualification), omit subsections (3) and (4).”
Lord Thomas of Gresford
Listening to the last debate, I was reminded that in 1998 the original Government of Wales Bill did not include a provision for dual membership of both the House of Commons and the Welsh Assembly. I was leading on Welsh matters and I acceded to a request from the then Secretary of State to have my party support the inclusion of an amendment that permitted the Secretary of State and others to belong to both bodies. The argument then was that it was necessary to have some Members of Parliament who had the experience to assist in the setting-up of the new Welsh Assembly, using their experience to good ends, so it is interesting that we have come to the point where the Government wish to reverse that decision.
What is also interesting is that in Clause 3 a Member of Parliament who is returned at an election as an Assembly Member has a period of eight days beginning with the date of his being returned to resign as a Member of Parliament to avoid disqualification for being an Assembly Member. That is pertinent to Amendments 9 and 10, which I am moving and speaking to on behalf of myself and my noble friends Lady Humphreys, Lord German and Lady Walmsley. It is unfair and unduly restrictive that a person should be required to give up a public position, or even paid employment, simply to stand as a candidate in an election. That is the basic principle.
There is a conflict between the provisions of the Government of Wales Act 2006, which deals with disqualification, and the National Assembly for Wales (Representation of the People) Order 2007, dealing with aspects of electoral law. That conflict needs to be resolved. It led to problems that I outlined in Committee. In the last elections to the Welsh Assembly, two Liberal Democrats were disqualified as a result of being members of public bodies that appeared in the list of disqualified bodies in the 2007 order. Arising out of that controversy, the Constitutional and Legislative Affairs Committee of the Assembly, at the invitation of the First Minister, considered the issue under the chairmanship of the Deputy Presiding Officer. It took evidence and obtained a legal opinion from the Counsel General. Its report, published in the middle of last July, made a number of recommendations which my amendments reflect. In particular, the committee felt that the disqualifications should be spelt out without reference to the legislation dealing with Westminster elections.
The noble Lord, Lord Norton of Louth, referred to the fact that in paragraph (2) of my Amendment 10 there is reference to a person being disqualified because he is,
“a member of the legislature of any country or territory outside the Commonwealth (other than Ireland)”.
It seems rather unlikely, but that is the current position because the previous Act simply incorporated the House of Commons Disqualification Act 1975 and the disqualifications that were contained in that schedule. Accordingly, when the committee of the Welsh Assembly said that these disqualifications should be spelt out in Welsh legislation rather than in a reference to the 1975 Act, I followed that recommendation. The amendments are quite simply as the committee suggested.
Lord Hope of Craighead (CB)
The disqualification list includes judges in subsection (2)(a). We understand perfectly well from the provisions in the Constitutional Reform Act that members of the Supreme Court, for example, cannot speak, sit or vote in the House. That is well understood. However, there is something much more fundamental about this. It is not simply the practicality of holding a judicial office and serving as a Member of the Assembly, which has all the important work that the noble Baroness, Lady Gale, reminded us about a few moments ago. It is also the issue of principle. I cannot imagine any member of the senior judiciary engaging in party politics at all, because of the great risk of compromising his or her independence. I know of at least one case in which a judge in Scotland who was a Member of this House and was involved in presenting legislation was regarded as disqualified from sitting on a case that involved that legislation because of his previous involvement in debates in this House on related issues. Judges in the senior judiciary tread into great danger if they engage in politics at all and even more so if they become a Member of an Assembly. I cannot imagine any of them wanting to compromise their judicial position by doing so. I am open to correction about whether this is really necessary, but I express great surprise at seeing members of the senior judiciary in this list.
Lord Thomas of Gresford
I assure the noble and learned Lord that they appear in the schedule to the House of Commons Disqualification Act 1975. Indeed, Scottish judges are listed in that schedule, none of whom I would have thought would have had the least intention of standing for Parliament, but they are there, and that is why the list has been repeated in this amendment, without the Scottish judges.
Lord Hope of Craighead
I am grateful for that intervention. I noticed the absence of the Scottish judges. I wondered whether perhaps there was a message that they would be welcome in Wales. I am afraid that distance might make it rather difficult for them to participate, but I think that there is a much more fundamental point, which is the extent to which we now understand the importance of judges remaining completely separate from legislatures, wherever they happen to be.
Lord Thomas of Gresford
I entirely agree with the noble and learned Lord’s point of view.
Baroness Randerson
My Lords, it seems that the exchange between the noble Lord and the noble and learned Lord has amply illustrated that there are two issues here. There are some offices, such as being a judge, for which standing even as a candidate would fundamentally undermine public confidence in their impartiality. A judge may be an obvious example, but there could be others at the edge. People might ask whether the Auditor-General for Wales, or a member of his staff, would be able to stand. On balance, people would probably agree that they should not be allowed to. But beyond that group there is another group, often consisting of councillors, and usually councillors representing political parties, who are nominated in their role as party members or as councillors elected on a party-political ticket to bodies funded by the Welsh Government. Therefore, their candidacy is not a problem. Everyone knows that they are there because of their political position, and their election to that position. But we would not wish them to remain on whatever board or group it is that they have been nominated to once they become Assembly Members, because the Assembly funds that organisation, so it is not appropriate for them to be both funder and funded.
Amendments 9 and 10 would implement a number of the recommendations, as my noble friend made clear, made in the report by the Constitution and Legislative Affairs Committee of the National Assembly for Wales. Amendment 10 would set out a list of disqualifying offices in this Bill, and provide that a candidate who holds a disqualifying office would not be banned from membership of the Assembly so long as they resigned that position within eight days of having been elected. As a result, Amendment 9 would also remove the power of the Assembly under the Government of Wales Act 2006 to resolve that a disqualification may be disregarded in specified circumstances.
When we debated similar amendments in Committee, I sympathised with noble Lords’ concerns that someone would need to step down from a disqualifying office in advance of nomination, even if, for instance, they were listed 12th on a party list and therefore had no realistic prospect of being elected. However, amending electoral legislation can be an immensely complicated affair, so making changes to the way in which Assembly Members are elected requires considerable discussion before it can be implemented—not least because, as my noble friend has indicated, this approach to disqualification is not limited to the Government of Wales Act but applies across all UK legislatures.
In fact, in its response to the report of the Constitution and Legislative Affairs Committee published last month, the Welsh Government recognised that:
“It is not likely to be possible to secure amendments to these provisions before the next Assembly elections in 2016”.
But in a debate on this issue in the Assembly just last week, the First Minister committed to working with the next Government to consider changes to the Assembly’s disqualification regime ahead of the 2021 Assembly election.
There is a good case for including,
“only those offices for which there is a strong case for inclusion”,—[Official Report, 13/10/14; col. 104.]
on this list. I am pleased that, following Committee, the First Minister wrote to the Secretary of State for Wales to give the Welsh Government’s assurance that this is indeed the approach they will follow in drafting the order. I therefore look forward to a very much slimmed-down list of disqualifying bodies whose members cannot stand for election. This is in the interests of attracting the strongest possible field of candidates, because, after all, those people well qualified and prepared for being candidates to the Assembly are very often those who already serve their communities on a number of such bodies.
The Wales Office will, of course, be working closely with the Welsh Government as they prepare their draft disqualification order. Further discussion will be required on the wider topic of disqualification from the Assembly. I thank my noble friend for introducing these amendments, as it has enabled us to shine a spotlight on this important issue and to liaise with the Welsh Government. There are agreements between the Welsh and UK Governments as a result of the amendments introduced here and of the report from the Assembly’s committee. Those two events have moved the debate on this issue on. Although action may not be taking place as quickly as my noble friend would like, we have the First Minister’s commitment that he will bring forward appropriate measures after the general election. I therefore urge my noble friend to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am most grateful to the Minister for the work that has obviously been done in the Wales Office on this issue. Anyone standing as a candidate in the 2016 election will be very much on notice of this problem, and I hope it will not arise again. On that basis, I beg leave to withdraw the amendment.
Lord Elystan-Morgan
“National Assembly for Wales: increased membership
The total membership of the National Assembly for Wales (Cynulliad Cenedlaethol Cymru) shall be increased to 80 members.”
Lord Elystan-Morgan
My Lords, in moving this amendment that stands in the name of my noble friend Lord Wigley and myself, I can summarise the situation very briefly. The case for adding to the present 60 Members of the Welsh Assembly is irrefutable, because the Assembly is already badly understaffed as regards membership. That was the situation from the very start, but it did not matter a very great deal because in the first instance, in 1998, the Assembly was not essentially a legislature, as has already been mentioned in this debate. It dealt only with delegated legislation and spent only 4% of its time reviewing legislation; it had a tangential function with regard to legislation—but things are very different now. Since the referendum of March 2011, a wholly new situation has been developed.
Without wishing to overstate my case, I would say that it was ludicrous to consider that the small number of Members that constitute the membership of the Welsh Assembly can possibly carry out the task of scrutinising legislation properly. Put in other words, if we wish to limit the Assembly to nothing much more than an Executive and a talking shop, all we have to do is nothing. We will emasculate the possibilities of it being a legislature because it does not have the critical mass to be that.
Lord Wigley
My Lords, I am delighted to have added my name to this amendment and very much support what the noble Lord, Lord Elystan-Morgan, said. At an earlier stage of the Bill, we had an opportunity to go into this issue in some detail. I will not repeat that or repeat the arguments that he has put forward. I will just underline that, ideally, I would like to see the control of the number of seats, as with other aspects of the Assembly, in the hands of the Assembly itself. However, an amendment on that will not be forthcoming now, which is why I am very glad to support this amendment.
Although noble Lords made persuasive cases at an earlier stage for the membership of the Assembly to be more than 80—to be 100 or even 120, as the noble Lord, Lord Elystan-Morgan, said—I accept that 80 is a logical number to go up to now. As my noble friend can confirm, the design of the building is such that it can expand to accommodate 80 Members without too great difficulty, so that at least avoids any additional cost in that regard.
As an elected Member of the Assembly in the first four years, I found the work pressure enormous. I accept that the nature of the work was a little different then. There were probably more committee meetings and they have been rationalised, possibly because of the pressure on Members’ time. I was on five committees and I was finding that very difficult indeed. Sometimes people say, “Ah, well, you should be there from nine o’clock on a Monday morning onwards”, but that does not overcome the problem of a shortage of Members to sit on all the committees.
An increase to a membership of 80 would also allow for the possibility of having a greater range of expertise in the Assembly cohort. I know from my time there of the benefits of having Members with first-hand medical experience; I think of Dr Dai Lloyd. All parties have people with various types of expertise. Clearly, the more Members you have, the better chance you have of getting a full balance of expertise.
I felt the pressure when there was no more than a secondary legislative role for the Assembly. To do justice to the increased workload of a full legislative role, and not having a second Chamber to go through the detail—I am not arguing for there to be one—much more attention needs to be given to scrutiny of legislation on a line-by-line basis. That requires people with the time, commitment and ability to do the job.
I very much hope that the Minister, if the proposed new clause is not accepted, can indicate that this question will be taken on board between now and St David’s Day.
Lord Howarth of Newport
My Lords, the noble Lord, Lord Elystan-Morgan, made his case in masterful fashion and has given a political explanation of why he confines his proposal for an increase in the size of the Assembly simply to 80, not a higher number.
As the noble Lord, Lord Cormack, said in the debate on an earlier amendment, in constitutional change form should follow function. A rigorous analysis is needed of the functions that the National Assembly for Wales already has to perform and the functions that are increasingly to be devolved to it. This legislation provides that the Assembly should take control to a significant degree of income tax and borrowing. The obligations that will fall upon the Members of the Assembly are not therefore solely in terms of additional legislative scrutiny but invigilation of public expenditure, authorising expenditure, and controlling and examining its quality. Whether the National Assembly for Wales would wish to replicate the sort of committee structure that we have in this Parliament, such as the Public Accounts Committee in the House of Commons, I do not know. That should rightly be a matter for the Assembly. However, what is beyond doubt is that the scale, range, complexity, difficulty and importance of the tasks that the Assembly has to undertake have been growing, are growing and will continue to grow.
Therefore, following the example already given by the Electoral Commission in Wales in certain respects, further analysis should be made of the membership required in order for the Assembly to manage to perform the tasks that the people of Wales, and indeed the United Kingdom, will expect it to carry out. For that reason, I very much welcome the spirit of the amendment. I would be happy if it were to be accepted but it would be seen only as a provisional step. It might be preferable that further work be carried out on this proposition, so that we can see exactly where, in practice, it should take the National Assembly for Wales.
The noble Lord, Lord Wigley, wisely and realistically observed that there is a constraint on physical space in the Assembly building. However, we should not be unnecessarily deterred by that factor. After all, when the House of Commons was reconstructed after the war, Winston Churchill, as Prime Minister, thought it appropriate deliberately to recreate a Chamber that would be a pretty tight squeeze for all its Members. That works rather well so we should not be worried.
Lord Elystan-Morgan
The words Churchill used were, “a sense of crowd and urgency”.
Lord Howarth of Newport
The noble Lord always has a sense of historical drama. He imports that even to these very proceedings. We are grateful to him.
Lord Richard (Lab)
My Lords, I support the noble Lord, Lord Elystan-Morgan. As long ago as 2004, when the commission that I had the honour of chairing looked at this issue, we came to the conclusion that there was a need—not just a desirability but a need—for the number of Members of the Assembly to be increased. We based that conclusion on the fact that not enough Members were untouched by government—if I may use that phrase—to man the committees in a neutral and oppositional way. If that was true then—and I firmly believe that it was—it is even truer now, and will increasingly be in the future.
The first debate we had today was on whether the Assembly should move to a constitution based on reserved, rather than devolved, powers. Remarkably, the House agreed that we should move to a reserved powers model. Not only that, the Minister gave some pretty strong undertakings that she and the Secretary of State for Wales also took that view and were holding talks to achieve it. If the Assembly moves to that model then the need for an increase in the number of Members of the Assembly is increased. I hesitate to use lawyers’ phrases, but, a fortiori, the argument is underlined and indeed is strengthened.
Lord Rowe-Beddoe (CB)
My Lords, I support the amendment most warmly. I do not wish to rehearse the Committee stage of the Bill, but I moved a very similar amendment at that time, supported by the noble Lords, Lord Elystan-Morgan and Lord Richard. I now have a mnemonic for the situation, PRAT. It works something like this: increased powers—which is what I focused on in Committee—brings increased accountability; increased accountability produces a necessity for greater transparency. I think those are totally linked. It is therefore important that we put a marker in the Bill. I agree with the noble Lord, Lord Elystan-Morgan, that this may well be determined in future by the National Assembly for Wales. In the mean time, a marker should be put down to recognise that we all feel—I think there is consensus in the House at this moment—that there are not enough Assembly Members to do the work that will be put on them by the powers they will be given by the Bill. I strongly support the amendment.
Lord Norton of Louth
My Lords, I, too, have sympathy with the amendment. I was recently in Cardiff Bay, speaking at a conference organised by the Welsh Government centre looking at the challenges facing the National Assembly. I focused on the challenges that derive from the fact that it is devolved, relatively new and small. Size does matter; it is especially important in a parliamentary system. As we have already heard, it affects the committees that are operating, not least because, with the small number of Members, there are problems setting up a comprehensive series of investigative committees where Members are not stretched by having to serve on several. That limits the capacity of the legislature to effectively scrutinise the Executive.
The other point about size is that the proportion of the Assembly that forms the Executive tends to be somewhat greater than with larger assemblies. The National Assembly is nowhere near the position in Gibraltar, where there are actually no Back-Benchers at all. However, the proportion of Ministers in the National Assembly is greater than it is in the House of Commons. In order for it to fulfil its functions effectively, you need members who can do that and to ensure that the Executive are not too prominent as a proportion of the Chamber itself. For these reasons, I have considerable sympathy with this amendment.
Lord Bew (CB)
My Lords, I support Amendment 12 in the name of my noble friend Lord Elystan-Morgan and the noble Lord, Lord Wigley. I am compelled to do so as a matter of natural justice because I come from a region of the United Kingdom where the local Assembly has 108 members on the basis of a significantly lower population than that of Wales. Even if it is the case, which is widely rumoured in Belfast, that the Assembly will be reduced in size to 90 before too long, there will still be a significant anomaly in relation to Wales.
I have never been an uncritical admirer of the Northern Ireland Assembly. I am currently the chairman of the Committee on Standards in Public Life. As has been referred to by the noble Lords, Lord Bourne of Aberystwyth and Lord Norton, that committee has made significant criticisms of some of the practices of the Northern Ireland Assembly. Those criticisms are nothing to do with its size. The better features of the Northern Ireland Assembly are its greater size and, I submit, a greater variety of opinion and debate. It also has a greater representation of parties and politicians who would not normally find their way to that Assembly in the face of the large battalions of local politics.
The argument has been eloquently made in favour of the need for the Welsh Assembly to have more members in order for it to deal with the volume of business in a more effective way. That is not the only argument, although I fully support it. There is also the argument that the larger Assembly will contain more variety of opinion—and therefore more vitality—and that can only be to the benefit of the people of Wales.
Lord Hope of Craighead
My Lords, I want to add a few words in support of the amendment. With great respect to the noble Lord, Lord Elystan-Morgan, I do not think that he overstated the case in moving the amendment. I say that against the background of such experience as I have of the Scottish Parliament which is operating under the reserved powers model. If we cast our minds back to 1998, when these figures were being devised, the structures of these various legislatures played a part in deciding the numbers of members that were thought to be appropriate to staff them. One can well understand how the figure of 60 was arrived at for Wales. We have watched how the powers of the legislature have expanded and, no doubt, if it moves to the reserved powers model, we shall find that these will be built on even further, as they are being in Scotland.
There may even be a case for thinking that the membership of the Scottish Parliament is too small, given the immense pressures on the committee structure within which it operates. The more powers that are devolved, the more these committees are being stretched. One cannot simply live with the expanding system and increased powers of these legislatures without remembering that the figures were struck in a different world. It is quite absurd to be stuck with those figures which were devised originally under a different system.
There is an immense amount behind what the noble Lord has said and behind the other points that have been made. Like others, I hope that serious consideration will be given to a way in which that figure may now be increased to recognise the reality of what is going on and the requirements that it imposes on the individual members.
Baroness Gale
My Lords, once again we have had an interesting debate, as we did in Committee. There was general consensus then that the number of Welsh Assembly Members should be increased. Indeed, over the 15 years of devolution, many calls have been made to increase the number. Different reports have been produced, including by the Electoral Reform Society Cymru. The 2004 Richard commission supported an increase, and we know that the current presiding officer, Dame Rosemary Butler, has said the same. The Richard commission said that there should be 80 seats, while the Silk 2 report said that the,
“size of the National Assembly should be increased”.
In 2013, the Electoral Reform Society and the Changing Union project published a report recommending that the number of AMs should be 100. The noble Lord, Lord Elystan-Morgan, asked how many Members we should have. He also pointed out the small number of Back-Benchers, at 42. It means that the ability to scrutinise legislation is curtailed, as is holding the Government to account, which is really important in a democracy. As legislation becomes more complex, it is necessary for politicians to develop areas of specialist expertise, but that is difficult for most of the Back- Benchers because they are spread so thinly and they have to do lots of different things. The Minister will have experience of that and obviously she understands everything we are saying in this debate.
The debate today shows that there is consensus around increasing the number of AMs. I do not think that the Minister will be able to make a commitment because we need more discussions in order to decide exactly what would fit the bill, as it were. The Senate was built to cater for 80 Members, so someone must have been thinking ahead, but I do not think that that would be a restriction if the consensus declared it should be 80 or whatever number we come up with. However, I am sure the Minister will agree that there is consensus on this point and generally there is a feeling in Wales that we need to increase the number of Members of the Welsh Assembly.
Baroness Randerson
My Lords, Amendment 12 would increase the size of the Assembly to 80 Members. In Committee we had amendments from across the House on increasing the size of the Assembly. The noble Lord, Lord Rowe-Beddoe, spoke in favour of an increase to at least 80, as he did today. The noble Lord, Lord Richard, agreed but suggested that there might be 100. My noble friend Lady Humphreys also spoke of having 80 Members after the 2016 election and then 100 in 2021. The noble Lord, Lord Elystan-Morgan, spoke of a desire for 120, although, as I mentioned, his amendment today calls for 80.
I say all this because it illustrates in a nutshell the problem with any debate on the size of the Assembly. Even if everyone agreed that the number of AMs should be increased—I suspect that there would be a good deal of agreement among politicians—there is no consensus on how many more Members there should be. And, of course, among the public there may not be that consensus and agreement. The noble Lord, Lord Anderson, said in Committee:
“‘Any advance on 80? Any advance on 100? Any advance on 120?’ Where does one stop?”.—[Official Report, 13/10/14; col. 65.]
I should say to noble Lords that discussions with Welsh party leaders both here and in the Assembly will deal with all the recommendations made by the Silk commission, and it is right that we should try to seek consensus on this issue, as we will on the other issues set out in the Silk 2 report.
The noble Lord, Lord Howarth, made a very important point: form should follow function. Surely, the size of the Assembly should be decided in the light of how many additional powers it will get and exactly how significant those powers are. Once that part of a cross- party discussion and debate has taken place, it would then be the appropriate time to address the issue of the size of the Assembly. It is important to settle this discussion rather than agree on a certain number of additional Members now and then in two years’ time talk about more again. That is not easy for the general public to appreciate and bear with. It is important to make sure that the size of the Assembly fits the job it has to do. As for the timing, as part of the four-way discussions, I suggest that it is for the political parties to set out their views in their manifestos, which would give the parties the opportunity to put to the test whether the electorate believes that the Assembly should be made larger. I therefore ask the noble Lord to withdraw his amendment.
Lord Elystan-Morgan
My Lords, for at least the second time today, the angel of good will and of progressive tolerance has been with us, and I am deeply grateful to all who have spoken and for the tone of each contribution. I appreciate, in the case of the noble Baroness, that we are clearly looking in the same direction. She does not challenge the basic tenets of the argument. I would respectfully suggest that once one does that there is an inevitability as to the conclusion that a person should eventually reach. It is not only a matter of absolute necessity for the future of the Assembly. The second Silk report of March this year has this sentence which encapsulates it all:
“Good scrutiny means good legislation and good legislation pays for itself”.
Be that as it may, I have no doubt that we shall, on many occasions in the future, be debating this matter, but I hope that it will be in a spirit of the near inevitability of progressiveness here and the acceptance of indisputable realities. I was not able to accept the undertaking so generously given by the noble Baroness today in relation to Amendment 1. I explained to her my reasons and I hope that she accepted my sincerity in the matter. However, on this occasion, I am very happy to withdraw the amendment.
Lord Roberts of Llandudno
“Part 1AVoter registrationPower of Secretary of State to make regulations for data sharing
(1) The Secretary of State shall by regulations impose a duty on government bodies requiring those bodies to provide specified information to registration officers in Wales for the purposes of electoral registration.
(2) Regulations under subsection (1) must include as government bodies the Driver and Vehicle Licensing Agency, the Department for Work and Pensions, HM Passport Office and the National Health Service.
(3) Regulations made under subsection (1) shall include the provision of data collected by specified government bodies by virtue of specified applications, which must include applications for new or renewed driving licences, Disability Living Allowance, Jobseeker’s Allowance, Employment and Support Allowance, new or renewed passports, and to register with a GP (as applicable to the specified government body).
(4) Registration officers shall use the specified information received in relation to a person—
(a) if the specified information received contains all of the information required, to register that person on the appropriate electoral register or registers; or(b) if the specified information does not contain all of the information required, to make further enquiries of that person to receive the information required to register that person on the appropriate electoral register or registers.(5) For the avoidance of doubt, nothing in this section shall give any government body the power to share any information about a person without that person’s consent.
(6) In this section—
“electoral register or registers” means the registers in section 9 of the Representation of the People Act 1983;
“specified applications” means any applications made by a person potentially eligible to be registered to vote as are specified in regulations made under subsection (1); and
“specified government bodies” means any government bodies specified in regulations made under subsection (1).”
Lord Roberts of Llandudno (LD)
My Lords, we very much appreciate the work of all those who have been involved in the Welsh Assembly in different ways. It has been a struggle sometimes, I am sure. Some have their reward when they reach this place and we appreciate what they have done in the other place as well.
I spoke at some length on these amendments in Committee, so I am not going to go over most of those arguments, but I would like to say now that people, especially young people, feel completely alienated from Parliament and from every authority that we exert here. They say: “They do not belong to us”; “They are a different crowd”; the “Westminster bubble” or “those people in Cardiff”. Somehow, we must build that bridge between, especially, young people and the political life of our country. This is the most important thing: to involve our young people especially and to involve them as early as we can in active engagement with the lives of their communities and their country.
How can that be done? Of course, it depends a lot on schools and colleges. This is where we need inspirational teachers able to bring great determination and a feeling of “We, too, want to be involved” to the young people they teach. First, we need that involvement of schools and colleges in preparing our young people for political life and a full life in their communities. Why do we bring up this amendment? At present, not many of our young people are involved or register to vote when they are able to do that. I am told that only 35% of 18 to 24 year-olds voted at the last election. Somehow, we need to bring the others into feeling, “We, too, want to be involved. This is our country, our Parliament, our Assembly.” To do that, we must get as many of those people as possible on the electoral register.
Amendment 13 is a very substantial amendment that I hope we will be able to discuss at some stage. Amendment 14 is a very small amendment and provides that each electoral registration officer should go to every school and college in his or her area at least once a year in a voter registration drive. This is not asking a lot. It is a very simple thing. We want young people to vote. Where do we register them but at the schools and colleges where they are? There is nothing in this that is at all suspicious or that noble Lords might feel is a threat. It is the simplest thing. That is why this amendment is so straightforward. We ask that it be included in this new Wales Bill. There is no reason whatever why that should be denied. The electoral registration officer would be under an obligation—it would not just give him an encouragement—to ensure that every single school and college had at least the opportunity once a year to register.
The amendment is very simple and has been approved by many. Even today, there is another letter from the leaders of the four parties in the Welsh Assembly: the Conservatives, Labour, Plaid Cymru and Liberal Democrats. They all signed it. They want this. Who are we or the Electoral Commission to deny the people of Wales what they themselves want? I am so delighted to see the right reverend Prelate the Bishop of Coventry with us today. I think he will speak on behalf of the Archbishop of Wales, Barry Morgan. The Church is behind this. Every single organisation approached has given it their support—every single one. Not a single voice will deny this. So why on earth can we not see this amendment included—happily, without a great arm-twisting or anything like that—in this Wales Bill? I leave it there but remember: if we deny the people of Wales, the Parliament of Wales and the organisation of Wales a voice, then who knows what the consequences might be. I beg to move.
Lord Lexden (Con)
My Lords, these amendments deserve, and indeed enjoy, wide support. I added my name enthusiastically to them, just as I backed my noble friend’s previous amendments in Committee. Surely it is our duty to do everything we can to help raise the low level of electoral registration among our young people. In one part of our country in which I take a particularly deep interest, Northern Ireland, a striking success has been achieved. Under its schools initiative programme, officials working for the chief electoral officer visit the best part of 200 schools each autumn.
The Chief Electoral Officer for Northern Ireland, Mr Graham Shields, has described the initiative as,
“very successful in improving the rate of registration amongst our young people”.
As a passionate unionist, I believe strongly that success in one part of our country should be emulated in others. Indeed, what should any sensible person do, having seen positive evidence of success? The answer surely has to be, “Copy it”. Mr Shields himself has told us that he has,
“no doubt that our success will be similarly replicated in Wales”.
As my noble friend has reminded us, across the political spectrum in Wales the feeling is unanimous. “Give us the means to get more young people on the electoral register”, the parties in Wales say—and surely we must heed them.
The case is overwhelming, and I urge the Government either to adopt the amendments or to take action themselves to achieve the objective embodied in them. Franklin Roosevelt said,
“The real safeguard of democracy is … education”.
Where more obviously to advance education about democracy than in our nation’s schools, particularly now, when—here I look at my noble friend Lord Tyler—the extension of the right to vote to 16 year-olds is an idea whose time may be coming?
Baroness Grey-Thompson (CB)
My Lords, I shall speak to Amendments 13, 14 and 15, which have my name attached to them, and in support of the noble Lord, Lord Roberts. I commend the noble Lord’s persistence in his work in this area. I also thank the Minister for meeting us last week. We had a good opportunity to explain the reasoning behind our amendments.
My thinking on this issue has been brought to the fore because of the number of young people I speak to about their involvement in politics. Some of it has been formed by the work I do with the House of Lords outreach programme, and I commend the work of the Lord Speaker’s Office on that. I also support the work of Bite the Ballot, a non-party-political organisation, and I have been to a number of its events here in the Palace of Westminster, where we see the change in young people when they realise that their voice and their vote matter. We see what happens when they become engaged. I am concerned about the number of young people in the wider world who just do not see the value. We can argue that perhaps it is their fault, or their parents’ fault or lots of other people’s fault that they are not engaged. But we have to find a way to ensure that young people see the value that they have.
Because of the lateness of the hour I shall limit my speech, and just ask a few questions for clarification. I shall be happy if the Minister wishes to write back to me on these matters. The noble Lord, Lord Roberts, has already raised the 35% turnout in the Assembly elections. For me what is most worrying, in terms of engagement, is that only 12% of 18 to 24 year-olds say that they are certain to vote. As the levels are so low, I ask the Minister what action she sees as necessary to bring about change.
Is it not right to instruct the EROs to go into schools and colleges—first, because that that is where young people are obliged to be; secondly, because in Wales, owing to its rural nature, other registration methods cannot be as effective; and thirdly, in view of the success in Northern Ireland, where the chief electoral officer has said repeatedly that this is a “no-brainer” and that he expects Wales to be as successful? It makes absolute sense to go where young people are.
As everyone acknowledges that there is a problem, and everyone praises the Northern Ireland schools initiative, there are two options. Either this is about funding or it is not. If it is about funding, should not the UK Government and the Welsh Assembly sit down with the CEOs of the 22 Welsh local authorities and ensure that there is money available? If it is not about money, I do not understand why we do not put the duty on the EROs. We give them a duty to go door to door to register adults. Surely it is an awful lot easier to go into schools, where young people already are.
Are we really saying that we do not trust these people to register attainers? I am not a revolutionary, but we need a registration revolution in the UK. That process can and should, I believe, start in Wales. Registering all young people in schools and colleges should be a question of when, not if. There is lots of support for this measure. I think that most Members have today received a letter listing the Assembly Members and party leaders who support it.
Finally, has the Minister spoken to all four leaders to ascertain their level of support? In the light of the positive response earlier this afternoon about votes at 16 and the amendments to come forward, perhaps she will favourably consider the amendments.
Lord Wigley
My Lords, I am very pleased to follow the noble Baroness, Lady Grey-Thompson, and to indicate that there is all-party support for the amendments. Noble Lords will be aware of the letter which has been circulated by Bite the Ballot, signed by all four party leaders in Wales and pressing the importance of the matter.
We have heard in several debates about the degree of consensus in Wales, and this is another example of it. Where there is such consensus, we should build on it. The fact that education is a fully devolved matter and that it will now be possible, as the Minister indicated earlier, for those aged 16 and 17 to take part in the referendum on income tax, when it comes, underlines the need for us to maximise registration.
I very much hope that the Government will be able to respond to the points made and look forward to hearing the Minister’s response.
The Lord Bishop of Coventry
My Lords, it is 94 years since the voice of the bishops in Wales has been heard in this House but, as my noble Lord Roberts implied, I thought it right to consult the Church in Wales, and the Archbishop of Wales in particular, about the amendments, which seem to me to have a great deal of merit, to see whether their voice might be heard today indirectly, as it were. As a result, I can say that the Archbishop of Wales has asked me to convey to your Lordships’ House that the bishops of the Church in Wales are very supportive of the amendments. Indeed, I understand that they also support the extension of the franchise, as was proposed and discussed earlier, but I chose to concentrate my consultations on these amendments.
As are Members of your Lordships’ House, the bishops in Wales are very conscious of and concerned about low levels of political engagement in Wales. The Church in Wales has been working hard on its own structures to increase participation in its governance, especially among young people, so it is very glad to give its backing to the amendments as practical steps in national government both to encourage a higher level of voter registration, especially among young people, and, as a necessary corollary, to further political education in the schools and colleges of Wales.
On a more personal level, I believe that the bishops of the Church in Wales are right to support the amendments. I hope that what is done in Wales will model ways forward—somewhat along the lines described by the noble Lord, Lord Howarth—as laboratories of best electoral processes for the whole of the UK, as was underlined by the noble Baroness, Lady Grey-Thompson. We need ways to improve levels of voter registration and to educate and, moreover, inspire young people in the responsibilities and opportunities of political engagement.
The amendments seem to me to be of great help in hooking young people into the political process, so that when they are entitled, they are primed and ready to go.
Lord Tyler
My Lords, I am delighted to be a cosignatory of Amendment 15 in the name of my noble friend and others. I want to take issue to a very limited extent with both my noble friend and the noble Baroness, Lady Grey-Thompson, who I think are being slightly too pessimistic about the level of interest of young people in registration. The Scottish example is wonderful in that respect, but it is also true that Bite the Ballot, to which reference has been made, has made some real progress this year. It has been by making sure that it there is peer-to-peer encouragement—I do not mean Peer in the sense of Members in this House, I mean the real reference of young people to young people of the issues that are at stake. I have today had an Answer to a Question from the Minister for the Cabinet Office. My Question was:
“To ask Her Majesty’s Government what action they are taking to improve electoral registration rates among those attaining the age of 18”.
I will not read the whole Answer because it is substantial, but just two important paragraphs:
“To support the transition to Individual Electoral Registration, the Government has invested £4.2 million in 2013/14 shared across every ERO in Great Britain and 5 national organisations to support the costs of activities aimed at increasing the rate of voter registration.
The Government has also introduced online registration in Great Britain. As of midnight 28 October, 478,177 16-24 year olds had registered online”.—[Official Report, 10/11/14; col. WA 4.]
In a relatively short period this is a success story. I do not think that we should be too depressed or pessimistic about this problem.
As the Minister will know, I have sat for some time on a small cross-party informal group advising the Electoral Commission. Therefore I take very seriously indeed the guidance it gives us. In its note on this part of the Bill and the amendments to the Bill, it says:
“We strongly support the principle of EROs—
that is obviously electoral registration officers—
“visiting schools and talking to young people about democratic participation. This should form part of their local strategies to promote electoral registration generally and to target those groups who are least likely to be registered to vote … All 22 EROs in Wales have specific plans in place highlighting how they will work with schools and the further education sector in order to engage with attainers and young people”.
I think there is a consensus across the House—certainly among all those who have already spoken—that this is an important issue. Maybe, however, the concern some of us have is whether it is appropriate for statute. Is it appropriate to be in the Bill to this extent and in this detail? Hence the very brief amendment that I endorse.
I accept, however, that my noble friend the Minister may well feel that the Government are already committed —in supporting the Electoral Commission financially, and in terms of guidance and instruction where that is appropriate—to make sure that what we are seeking will happen with or without this amendment. I therefore look forward with interest to hearing how the Minister feels that we can best achieve the objectives which I think we share throughout the House.
Lord Howarth of Newport
My Lords, is it not a principal purpose of education to enable young people to think for themselves, to form views on informed and discerning bases and to take good decisions? In no sphere of life is this more important than democracy. Education should be a preparation for democracy. That is why I support these amendments, and very particularly Amendment 14.
Lord Bew
My Lords, I support Amendment 13 very much in the spirit of the noble Lord, Lord Lexden, who has already explained the successes in electoral registration which have characterised the situation in Northern Ireland. I add one word of caution: in the last general election, 14 of the 20 constituencies with the lowest turnout were in Northern Ireland. There is still plenty of work to be done. The Assembly, I am glad to say, now has a good outreach programme. Only yesterday my colleague at Queen’s University, Belfast, Professor Rick Wilford, spoke to representatives of 50 schools in Stormont itself. The Electoral Commission is attempting to engage radically with young people.
The noble Lord, Lord Tyler, will not be surprised to learn that there was a great spike in the interest of young people in response to the Electoral Commission’s efforts after the decision was announced that votes would be available to those aged 16 in Scotland—a very obvious and clear spike of interest.
Broadly speaking, the noble Lord, Lord Lexden, is correct. There have been successes in the registration programme in Northern Ireland which are quite remarkable. I can see no reason why similar methods cannot work in Wales. I simply add that in struggling against the alienation of young people, a number of approaches will be necessary.
Baroness Gale
My Lords, I am again pleased to take part in this debate and it seems that, once again, consensus reigns across your Lordships’ House. I support these provisions because the idea is to empower our citizens to register to vote. We know that turnout in Welsh elections has been lower than we would like it to be, especially among younger voters in Wales. Anything that can be done to increase participation, especially among our younger people, is to be welcomed. We know of the success in Northern Ireland, which is a great example of how it can be done. We have seen how the young people of Scotland were enthused by the referendum. Obviously, they all had to register to vote and they took part in that referendum because they were excited by it.
I am pleased to say that the Labour Party will have a manifesto commitment at the general election on voter registration and that we will be putting forward measures to encourage young people to vote. The noble Baroness, Lady Grey-Thompson, made out a very good case for taking active steps and engaging at the school and further education level. If action were taken as set out in the amendments, it would mean that young people, people with disabilities and ethnic minority groups—those who are consistently underrepresented in Wales’s democratic processes and, at present, the least likely to take an active part in democratic life—could be registered to vote and, by voter engagement sessions, be encouraged to use their vote. We need to get those at schools and further education colleges to understand how important it is for them to register and to vote.
The four Welsh party leaders have signed a letter to the Prime Minister, the Deputy Prime Minister, the Secretary of State for Wales, and the Wales Office Ministers showing their support for these moves. We know that in a letter today, which other noble Lords have mentioned, they again urge your Lordships’ House to support these amendments. I will not read out the whole letter but it says that, “We the undersigned”—that is, the four leaders—are supporters of these voter registration amendments and therefore,
“ask you to incorporate this important provision into the Wales Bill”,
to set in train,
“easier, engaging and accessible voter registration for the people of Wales”.
If the Minister will take all these views into account, as I know she will, we could move forward on this and encourage our younger people and the underrepresented groups to register and vote.
Baroness Randerson
My Lords, I start by paying tribute to my noble friend’s very energetic campaign on this issue, which has certainly helped to raise awareness of the problem. Knowing about the problem is part of the way to solving it. This is a complex issue so, while I know that it is late in the day, I hope the House will forgive me if I take some time to explain why these amendments would not in themselves solve the problem. That is not the Government being complacent—far from it. We all agree that there is a problem that has to be solved but registration alone will not solve it. An answer has to lie in civic engagement and education as well as in a vigorous programme to increase voter registration. I want to explain the programme that the Government are undertaking.
Lord Roberts of Llandudno
My Lords, I thank the Minister for her reassurance. I now know that we can go ahead with the discussions between the Electoral Commission and the Welsh Assembly. Together they will make sure that every one of the 22 EROs in Wales fulfils that empowerment—I would call it an obligation—to enter schools to make sure that the numbers registering are far better than they have been in the past. In saying that, I pay tribute to Bite the Ballot and other organisations that have woken us up to the importance, not only in Wales but throughout the UK, of re-engaging young people with politics and life generally in the community. I look forward to Third Reading, when we might even hear some more from the Minister. I hope that we have, with this amendment, at least made an important intervention. Some might remember that I have put forward a Private Member’s Bill, also in the same direction. In 1911, there was a stand-off between another Welshman and this House; that was David Lloyd George. I do not compare myself at all with him, but at least we have today had a new approach. I hope that it will be of benefit not only to Wales—and we are going to keep an eye on this one—but also to the whole United Kingdom. I thank all noble Lords who have taken part in the debate and I beg leave to withdraw the amendment.
Baroness Morgan of Ely
“(10) In the event that the power to add new devolved taxes under section 116C of GOWA 2006, or the power to add new devolved taxes under section 80B of the Scotland Act 1998, is used, the Chancellor of the Exchequer must undertake a review of the benefits of symmetry in the devolution of taxes between Wales and Scotland.”
Baroness Morgan of Ely
My Lords, it is getting late, but I want to move this amendment, in which we seek to future-proof the legislation before us. It is clear that constitutional reform north of the border will move forward apace now that commitments have been made in the referendum—and, of course, these commitments must be respected. However, we need to understand that reforms of Scotland are likely to have an impact on Wales. In this amendment, we are asking the Government to undertake a commitment promising that if new taxes are introduced in Scotland we will need a review of the impacts on Wales and to probe whether there will be any benefits from introducing such measures in Wales.
I will give noble Lords the example of corporation tax, to which I am sure the noble Lord, Lord Wigley, will refer. If corporation tax were to be introduced in Scotland, there would undoubtedly be an impact on Wales. Let me be clear—the Labour Party does not want to see devolution of corporation tax to Scotland. It is hard enough to get large corporations to pay the tax that is owed already and the last thing that we want to see is a race to the bottom in terms of taxation across the UK with the consequent knock-on effect on the limited pot available for public expenditure. But the reality is that Labour is not currently in the driving seat in Scotland, and we are not sure what is going to come out of the Smith commission, so if corporation tax is introduced in Scotland and if it were to undercut corporation tax in Wales, or if we were to see a similar kind of thing being introduced on air passenger duty in Scotland, and being introduced and then reduced in Wales, it would be more difficult to attract inward investment into Wales.
We are asking for a degree of flexibility to be able to respond to whatever is introduced in Scotland. If we do not write that into the Bill, we could be waiting for a wholesale constitutional reform debate to be settled but, in the intervening period, Scotland may have started off that process of undercutting us on corporation tax, for example. Scotland may have whipped in and claimed advantage over other parts of the UK, and I do not think that we should allow that to happen.
We do not know where we are heading in terms of direction of travel on devolution. We do not know what the timetable is for constitutional reform, and we need this amendment as a belt and braces approach to protect Wales from the possible introduction of taxes that could be damaging. If the Minister is not going to accept this amendment, I would like to know how she proposes to protect Wales if the situation were to arise.
Lord Wigley
My Lords, I have listened to the noble Baroness, Lady Morgan of Ely, with interest. There are certainly arguments in support of symmetry in constitutional terms; they usually lead to various forms of federalism. If the Labour Party is indeed moving towards a federal approach, that is certainly an important development.
I wish to address Amendment 20 in my name, which would provide that, if corporation tax were devolved to Scotland it should certainly be devolved to Wales or be available. Noble Lords may recall that I tabled an amendment in Committee proposing that if corporation tax were devolved to either Scotland or Northern Ireland, it should also be devolved to Wales. I based that on the fact that all four parties in the Assembly had agreed that this was needed, and that the Silk commission said that corporation tax should be devolved to Wales if it was devolved to Northern Ireland. The response that I elicited from the Minister, Lord Newby, on that occasion, was entirely centred on the comparison with Northern Ireland, not with Scotland. He based his argument on two factors: first, that Northern Ireland has to compete with the lower corporation tax in the Irish Republic. Wales also has to compete with Ireland for footloose inward investment projects, tourism businesses that cross the sea, and in the agricultural food sector, for example, in cheese manufacture. We share a maritime border with Ireland so I refute his argument on that count.
Secondly, the Minister argued on the basis that the tax devolution to Northern Ireland is in order to help it to rebalance its economy, with the implication that Wales does not need to rebalance its economy. That is absolute poppycock. Wales has the lowest GVA per head of any nation or region in the UK, following the rundown of coal, steel and slate. We desperately need to rebalance our economy. I am seriously concerned that a Treasury Minister, for whom I have very great respect, should have been advised by Treasury officials that Wales does not need economic rebalancing.
The Government do not recognise Wales’s needs vis-à-vis Northern Ireland. Be that as it may, the Minister did not try to defend not devolving corporation tax to Wales if it was, indeed, devolved to Scotland. I understand that this has been raised in the context of the Smith commission that corporation tax should be devolved to Scotland. Certainly, in the pre-referendum pledge the impression was given that the devo-max model being touted would include fiscal autonomy, and that certainly includes corporation tax.
In tabling the amendment I am seeking an assurance that if Scotland gets control over corporation tax the question should be firmly on the agenda of similar provision for Wales. I hope that on this occasion I get a more conciliatory response from the Minister, not just for me but for all four parties of the National Assembly that seek such powers.
Lord Rowe-Beddoe
My Lords, I support Amendment 16, standing in the name of the noble Baroness, Lady Morgan of Ely. It is very clear what it says, and without trying to rehearse arguments previously made, I want to discuss the devolution of air passenger duty. I refer your Lordships to my register of interests with regard to Cardiff Wales Airport. The Silk 2 implementation stated that long-haul air passenger duty should be devolved. The arguments put forward in Committee have been considerably amplified—perhaps extended—recently by an unlikely ally in Mr Willie Walsh, the chief executive officer of International Airlines Group, which as noble Lords know, incorporates British Airways and Iberia.
In an article in the Times on 30 October—it was after our Committee meeting; it would be flattering to consider that Mr Walsh was actually watching our proceedings—he takes it much further and calls for a total abolition of this tax across the whole of the United Kingdom. It was a stunning headline but when analysing what he said, and doing a little more research, it is worth making a mark as to what was behind his statement. He said that this tax, permissions, or whatever it may be,
“should be consigned to the annals of history”.
The argument put forward is that the estimated £3.5 billion that the Treasury receives would be more than offset by a boost of some 0.5% to our GDP and the creation of some 60,000 jobs.
The interesting thing is that it is possible to avoid this tax, and people do. For example, a family of four flying economy to the United States pays £276. A Japanese visitor flying back home from London to Tokyo pays £81. This may well have a connection with the flattening level of Japanese visitors to this country, both business people and tourists, over the last 10 years. This tax is a disincentive. Holland got rid of it after 12 months and has never looked back, so there is something to be said for replacing this tax.
I may be proved wrong but I believe that Scotland could well be getting something out of this. We all know what happened in the Republic of Ireland but what we do not know and do not realise is the damage that is done to Northern Ireland because of the hundreds of thousands of people who start their long-distance flights south of the border as £276 is a lot of money for a family of four flying economy. I support the amendment. I am sorry to bring up air passenger duty again but at present it is, I am afraid, a rather hot subject.
Lord Howarth of Newport
My Lords, these amendments utter an important warning. It is one thing to devolve minor taxes, such as development land tax and landfill tax, it is another to devolve more significant taxes such as air passenger duty, of which the noble Lord, Lord Rowe-Beddoe, has just spoken. But when it comes to the major taxes such as income tax and corporation tax, very deep thought needs to be given to the viability of such devolution if the United Kingdom is still to hang together. It worries me very much that we can toy with such propositions without them having been thought through. My noble friend is absolutely right to insist that, in the event of further proposals for tax devolution being made, deep thought needs to be given to them, led by the Treasury, and there needs to be a responsible debate across the United Kingdom because we risk unravelling if we continue to play these games.
Baroness Randerson
My Lords, the issue underpinning Amendments 16 and 20 is symmetry between devolution settlements. Noble Lords have set out three guiding principles to support tax devolution. We believe that it should have cross-party support, be based on evidence and not be to the detriment of other parts of the UK. Based on the second of these principles, the Government have been consistently clear that decisions on devolution must be treated on their own merits using all the available evidence. This reflects the fact that what is right for one country is not necessarily right for another. The devolved countries are different and so, rather than seeking to achieve symmetry, it is more important that the three devolution settlements work in the best interests of the people of Wales, Northern Ireland and Scotland.
I point out to noble Lords that there are obvious differences. Reference has been made to the land border between Northern Ireland and the Republic of Ireland. The nature of the border between England and Wales is very different from the nature of the border between Scotland and England. Differences of that nature do affect decisions on devolution. Above all, we are determined to work in the best interests of each of the individual countries. Most recently, for example, we have removed the income tax lockstep from this Bill.
In response to the questions asked by noble Lords, I refer them to the Silk 2 report. Corporation tax was part of those recommendations, so it will be a natural part of those four-party discussions. I stress that both the Prime Minister and the Deputy Prime Minister have pledged to put Welsh devolution at the heart of the debate, and that is what the Secretary of State and I are seeking to do in discussions with the four party leaders. I hope that noble Lords will believe that our timetable for those discussions proves that we are determined to press ahead. I therefore ask the noble Baroness to withdraw the amendment.
Baroness Morgan of Ely
I thank the noble Baroness but we must consider and understand that whatever we would like for Wales, it may be influenced by what is happening elsewhere. What the amendment was asking for was simply a report to be written on the benefits of symmetry; we were not necessarily asking for it to happen. We were saying, “Please look at it; would it be an advantage to us?”. I am therefore disappointed that the noble Baroness cannot accept that position but I beg leave to withdraw the amendment.
Baroness Morgan of Ely
“Review of Welsh funding
Sections 8 and 9 shall not come into force until a Welsh Government Minister has laid a report before the National Assembly for Wales containing a statement to the effect that the Welsh Government, with regard to the Statement of Funding policy, is content with the fairness of the arrangements for allocating funding from the UK Government to Wales.”
Baroness Morgan of Ely
My Lords, I turn now to the issue of fair funding for Wales. The Labour Party is keen for this Bill to pass because, for the first time, the Welsh Government will be allowed to borrow money. That is essential to help kick-start the economy, following years of government cuts, which have impacted in particular on the infrastructure budget—essential for investment and driving the economy of Wales.
We agree that in order to help leverage this funding, Wales should have landfill tax and stamp duty tax devolved to it. As we suggested in Committee, the Labour Party does not object in principle to income tax devolution to Wales but we have a key concern. Before embarking down this route, which must have the support of the people of Wales—demonstrated in a referendum—we need to be sure that Wales will not be left worse off than it is now.
We have real concerns that the funding issue in Wales has still not been comprehensively addressed. We now know that the Barnett formula will remain in place, but there is widespread acknowledgement that it has done no favours to Wales. It does not reflect the needs of a nation that has an older, sicker population and a more rural make-up, thereby adding to the costs of providing essential services. We accept that negotiations on this issue have been taking place between the UK Government and the Welsh Government and that there is recognition that a floor should be put in place to ensure that Wales does not lose out. That process was started through a statement in 2012, which acknowledged the problem, but we are looking for a more definitive agreement.
The four-party, cross-party agreement that came from the Assembly in the past month asked for,
“an updated assessment of the current level and likely future direction of Welsh relative funding”.
The Assembly asked for those talks to be completed by January 2015, and this seems to be realistic in terms of a timetable, as the Secretary of State for Wales suggested. He wants a devolution settlement by St David’s Day, 1 March. We are therefore happy that we know that something will happen, at least by 1 March, in terms of reserved powers. We are looking ideally for another little present for us for St David’s Day.
The Minister suggested in a recent answer to a question on the Barnett formula in your Lordships’ House that, in terms of funding, Wales now receives 114% of the UK average. This is welcome information but it would be useful for us to have sight of this evidence. Would the noble Baroness or the noble Lord be willing to share the data that demonstrates that 114% has been reached? It is worth noting that the figure quoted by the Minister was at the very bottom of the range that Gerry Holtham, in his report, indicated was an acceptable and fair level of funding, which ran from 114% to 117%.
There were a few factors that determined the lower levels of funding that arose as a result of the funding formula. The 114% could be considered fair only if we did not undertake to include Welsh-language education provision in Wales, for example. They do not do that in England, so it is not included in the Welsh figures. Also, Wales has already made an upwards adjustment on council tax receipts. If England applied the same formula, Wales would be eligible for more money in the block grant. Those two examples alone mean that fair funding should probably be more like 116%, rather than 114%.
We also know that Wales will lose out once public expenditure starts to rise again, which is why we need this sorted once and for all with a long-term commitment. If we can secure a commitment to the floor being in place—even if that does not happen in practice until Wales holds a referendum on income tax powers, alongside the outcome of the continuing discussions on the off-set required in Barnett—I believe we will then be well on our way to securing a decent and fair funding outcome. However, we are not there yet, which is why, central to the introduction of income tax powers for Wales, we need to be assured that the Welsh Government are happy with the outcomes of those negotiations. That is why we have tabled the amendment.
Lord Howarth of Newport
My Lords, I support the amendment that my noble friend has just moved. It is as important as any other that we have debated today. I cannot see a satisfactory future for devolution in Wales until the Barnett nettle has been grasped. It is scandalous that no Government have dealt with this problem since the mid-1970s when the formula was introduced. Cumulatively, since devolution was introduced, Wales has lost out on some £5 billion of funding that it ought to have had, had there been a fair funding formula based on needs rather than on population.
It is true that the gap between what Wales ought to receive and what it does receive has narrowed somewhat in recent years, but we have to anticipate that, as economic growth continues to recover, so the gap in funding and the unfairness of funding will be exacerbated again. It is therefore imperative that there is no further procrastination on this and that the Government agree, with real urgency, to act to secure a just settlement for Wales. The Government were quick to respond to political pressures in Scotland. Political pressures in Wales have been expressed in gentler terms so far, but there will be a continuing sense of injustice that will undermine all the other efforts that we make to establish harmonious and satisfactory political arrangements on devolution for Wales. There are, of course, wider issues affecting the relationships between the nations and regions of the United Kingdom as a whole. I look forward to the Minister giving us a very positive response to the amendment.
Baroness Randerson
My Lords, I always enjoy the conversion of the Labour Party to the idea that the Barnett formula is unfair. The noble Lord, Lord Howarth, made a very important point, which is that it is scandalous that this formula has lasted for so long without anyone inquiring into it. I can assure noble Lords that the Government are aware of the issues and have taken measures to ensure that they are addressed.
This amendment would make the devolution of an element of income tax conditional on changes in funding arrangements. Specifically, the First Minister has raised this issue on numerous occasions, saying that he would not be prepared to recommend devolution of income tax unless fair funding were obtained. The amendment suggests that the Welsh Government have to confirm that they are content with the way in which funds are allocated to Wales from the UK Government before the element of income tax can be devolved.
This Government have already recognised that there has been convergence between the levels of funding in England and Wales since devolution. We took steps in the matter just two years after taking office. In October 2012, we set up a joint process with the Welsh Government to review the levels of funding in Wales and England in advance of each spending review. If convergence is forecast to occur over the spending review period, there will be a joint discussion of options to address the issue in a fair and affordable manner. That system worked well in advance of the 2013 spending round and confirmed that spending is not forecast to converge during the period up to 2015-16. It also established that relative funding levels in Wales were within the range that the Welsh Government’s own Holtham commission regarded as fair. In that context, the noble Baroness, Lady Morgan, quoted the 114% figure that my noble friend Lord Newby referred to last week. I am happy to write to her, and to set out further detail on that figure.
In relation to ongoing discussions about the funding situation, following the first meeting of the Joint Exchequer Committee between the UK and the Welsh Governments last month, we have now further committed to revisit jointly the review process in the light of the powers in the Bill. In other words, we have agreed to find a way of facilitating fair funding. The Government therefore believe that there is a sound basis for an early referendum to be called and I urge the Welsh Government and the Assembly to do so as quickly as possible.
I hope that I have assured noble Lords that the Government are aware of the issues on funding and are addressing them in discussions with the Welsh Government, who are fully conversant with our plans. I urge the noble Baroness to withdraw her amendment.
Baroness Morgan of Ely
My Lords, we acknowledge that the Government have taken certain steps to improve the scandal of Barnett in relation to Wales and we acknowledge that discussions are ongoing. We want the Assembly to be happy and comfortable with that funding process and to accept that it is a fair system, so I am a little disappointed that it should be so difficult to accept this amendment because that is what is being worked towards. It is simply saying that, before these things kick in, let us make sure that everybody is happy. I beg leave to withdraw the amendment.