Lord Wallace of Saltaire
Lord Wallace of Saltaire (LD)
My Lords, Schedule 18 amends the Poisons Act 1972. It introduces a common licensing system for the acquisition, importation, possession and use of poisons as well as of chemicals that can be misused to make explosives—termed explosives precursors—within Great Britain.
Current poisons controls are outdated and ineffective. In 2012, the Poisons Board made a number of recommendations after being reconstituted to review the Poisons Act 1972 as part of the Red Tape Challenge retail theme. These included that the Poisons Act 1972, the Poisons Rules 1982 and the Poisons List 1982, which are owned by the Home Office, should be amended to reflect current retail market practices. It also recommended that greater clarity should be given regarding inspection and enforcement of retailers and businesses involved in the trade of poisons, which are very often of course for household use. Schedule 18 does that.
In making these changes, we are aligning controls of dangerous poisons with new regulations that control the sales of explosives precursors that are susceptible to being used to create explosives to commit terrorist attacks. The Control of Explosives Precursors Regulations 2014, which implement EU regulation 98/2013 on the marketing and use of explosives precursors, came into effect on 2 September 2014. The amendments to the Poisons Act 1972 will create a streamlined, cohesive regime that will make it easier for retailers to implement and reduce costs, because there is only one regime to follow.
Schedule 18 removes the current requirement for businesses to annually renew a local authority listing that allows them to sell common household products. This will save businesses some £20,000 a year. Paragraph 1 abolishes the statutory Poisons Board, whose constitution is written into the Poisons Act 1972. Abolishing the statutory body would mean that appropriate and specialist advice can be sought.
The purpose of Amendments 82 to 87 is to make minor technical amendments to Schedule 18. Amendments 82 and 83 provide for the reporting duties in new Section 3C of the Poisons Act 1972 to apply to explosives precursors at all concentrations, as required by EU regulation 98/2013, which is directly applicable in the UK. New Section 3C will impose reporting duties in respect of both poisons and explosives precursors, and is therefore wider than the EU regulation. However, the reporting regime in respect of explosives precursors must be compliant with that regulation.
Amendment 84 creates a new power by which the Secretary of State may, by regulations, make provision modifying new Section 3A of the Poisons Act so far as it applies to any supplies that involve dispatch of a regulated substance to Northern Ireland or export of it from the United Kingdom. Currently, the proposed new Section 11(6) of the Poisons Act provides that any reference in the Act to supplying something does,
“not include … export to a person outside the UK”.
Amendment 87 will remove this aspect of the definition. Amendment 84 will enable the Secretary of State to make regulations about export from the UK, and dispatch to Northern Ireland, having regard to EU regulation 98/2013, in particular its territorial scope, and other prevailing circumstances.
Amendment 85 clarifies that the 12-month time limit for commencing criminal proceedings for offenders under the Poisons Act applies to summary offences only. There is generally no limit for triable offences.
Amendment 86 introduces a transitional provision relating to maximum statutory fines in the magistrates’ court pending the commencement of provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which will remove such maxima.
Amendment 87 is purely consequential on the new regulation-making power introduced by Amendment 84. That is to say, it changes the definition of supply for the purposes of the Poisons Act so it does not automatically exclude exports. I beg to move the amendment and that the schedule stand part of the Bill.
Lord Skelmersdale (Con)
My Lords, I have been prompted to rise to my feet on Amendment 84, to which the Minister has just referred. I will ask a very simple question: are there no regulatory supplies from Northern Ireland, given that Amendment 84 refers to,
“any supplies that involve despatch of the substance to Northern Ireland or export of it from the United Kingdom”?
Of course, Northern Ireland is included in the United Kingdom, so I wonder if the Minister could, at some point in this debate, answer my question.
Lord Wallace of Saltaire
My Lords, Northern Ireland has separate legislation that controls sales of poisons and will implement separate legislation that controls sales of explosives precursors and their exports. The reasons for this are entirely clear and that is why this is concerned with Great Britain.
Baroness Smith of Basildon
Then the term “UK” might perhaps be incorrect in terms of drafting.
Lord Wallace of Saltaire
The UK is, of course, an integrated market, so it is difficult to say, “exports from Great Britain”. That is the reason why we vary between Great Britain and the UK in different references.
Lord Stevenson of Balmacara (Lab)
We are getting somewhat held up: I am sure that this can be resolved very quickly. The point raised first by the noble Lord opposite was that we need to know what the Government are trying to say here. Are they saying that material exported out of the United Kingdom, including Northern Ireland by definition, is caught by this, or is it meant to mean that there is a separate territorial area called Northern Ireland for which different regulations apply and that therefore, the schedule bites only on Great Britain?
Lord Wallace of Saltaire
I will write to the noble Lord if I am misinformed, but I think that if this were to read, “Export for the United Kingdom” or “Despatch of the substance within the United Kingdom to Northern Ireland,” it would be entirely clear.
Lord Wallace of Saltaire
“(3A) For the purposes of section 3C however, and the meaning of “regulated substance” in or in relation to that section, a “regulated explosives precursor”—
(a) is a substance listed in Part 1 of Schedule 1A, and(b) includes a mixture or another substance in which a substance listed in that Part is present,but, in each case, only if the substance or mixture is not excluded.”
Lord Wallace of Saltaire
My Lords, I thank the noble Baroness for that very detailed and well prepared set of questions. I have to agree with her that in a sense this is a much less deregulatory measure than many of the others in the Bill. It is a revision of regulations more than deregulation. Indeed, in terms of safety, these proposals are designed to strengthen controls over those selling and purchasing dangerous poisons and explosives precursors. We are continuing a long trend of tightening government regulation of poisons and, increasingly, of explosives precursors.
A hundred years ago, a good many arsenic compounds were available for purchase and they were, on occasion, used for nefarious purposes as well. Over the last 40 years, the European Union has increased regulation and, in some cases, has banned a number of poisonous substances for use not only in the home but in gardens and allotments. Here, we are in part implementing those regulations. We are also concerned, as the noble Baroness will understand, with the use of substances which had not been misused as explosives precursors in the past but which are now widely recommended on the internet for those who wish to make explosives for nefarious purposes—hydrogen peroxide and others. I am referring to substances which, when purchased in large quantities, can be mixed into what then becomes explosives. There have been one or two cases of people being accused of terrorist offences who had managed to purchase large quantities of the same substances that hairdressers, for example, purchase in small quantities.
I note in the extensive list that I was given of the various different substances that there are a number of metallic substances. Their main home uses are listed as metal cleaning, etching, electroplating, painting and soldering. I am told that there are those who even use metal substances and metal complexes at home for extracting the gold from their old mobile phones. This is a delicate issue. Members of the Committee may not do this, but others may wish to do all sorts of things at home. Happily, my children did not get into chemistry particularly heavily. On the question of the Poisons Board’s preferred options, I am told that the Poisons Board accepted our policy approach and objectives in its final note to the Minister for Security and Immigration.
The noble Baroness has seen a summary of recommendations and I am happy to talk further to her about what extra things she would like to know about the replies to the consultation.
Baroness Smith of Basildon
It was not a summary of recommendations, but a summary of the consultation responses, and I identified one or two that were not included in the summary but would have been very helpful in considering this clause.
Lord Wallace of Saltaire
My understanding is that Appendix A of the report on the consultation had a summary of consultation responses. I have now been deluged with notes that I will attempt to absorb.
The Department of Health was a statutory consultee as part of the Poisons Board and was consulted on the draft legislation regarding any consequential amendments. The Home Office ran an open research call to find research into alternative substances for Part 1 poisons and licensed explosives precursors. Research proposals are currently being evaluated. The Home Office remains the primary enforcement body, although a range of others, including the police, come into play at certain points.
In some ways I rather wish my wife were here. She is much more experienced in poisons for household and garden use. She has strong views about some aspects of EU regulations because a number of poisonous substances, in safe hands, are very useful to use in the home and garden. However, policy in the United Kingdom and in other countries has been moving in the direction of tightening up controls on these because of what can happen in unskilled hands and how desirable it may therefore be to tighten control of them.
On the question of how much a licence would cost, a new licence application costs £39.50 at the moment for a maximum three-year period. Any amendments to current licences are free of charge to encourage compliance with conditions to notify changes in circumstances. Replacements of lost or stolen licenses cost £25. The Home Office has kept costs to a minimum by using existing IT systems as far as possible. A similar background to the checking process for firearms licensing is being followed up, with some differences. No home inspections or face-to-face interviews will be conducted.
Firearms licensing is governed by a different policy and we are looking to full cost recovery in this area, but I will write to the noble Baroness about the comparisons that she has been making with the licensing of firearms. I understand the point that she is making.
Baroness Smith of Basildon
I appreciate that because I have had different responses from different Ministers on the issue. Before the Minister moves on, I asked about the cost of new licences. I am not sure whether that was the figure he gave me. If it was, I thank him. I was not 100% clear about whether it was the new licence for home use that he referred to. Can he clarify that he was saying that the fire service was not consulted? Will he confirm that he will publish the consultation?
Lord Wallace of Saltaire
I do not have an answer on the fire service and will have to come back to the noble Baroness on that. The costs I was quoting are for new licence applications. I hope that that answers the majority of the questions raised by the noble Baroness, and I am happy to talk further or correspond if necessary on any other questions that I have not followed up. I thank her for the detailed effort she has made to ensure that we have got it right. It is an important area, although I have to say that when I looked at the extremely long list of the various substances that will now be controlled differently, I did not understand what a good many of them were or what their uses are. This is unavoidably a rather specialised field.
There is a regulation-making power in the schedule to vary, add or remove a substance or limit its concentration. After all, chemical substances are changing in terms of how they may be used, and our ability to combine chemicals for various purposes is also changing, so a degree of flexibility is highly desirable.
I have now been told that we have consulted the fire service, particularly on home storage, and that it supports the proposals.
Baroness Smith of Basildon
I am grateful for that, but I am puzzled why, in the list of consultees, the two I asked about were not included, although the Minister has been able to reassure me. It would be helpful to have a comprehensive list of consultees. I have one final point. I asked about the publication of the consultation responses—I made that same point in last week’s debate. Can he confirm that the Government, subject to the normal procedures of ensuring confidentiality of those who have responded, will publish the full consultation responses on the two consultations—poisons and explosives?
Lord Wallace of Saltaire
That is entirely understood. I will do my best on that, and will write to the noble Baroness with the assurances that she is asking for.
Baroness King of Bow (Lab)
My Lords, I support this amendment which is also in my name. Never has there been greater concern around failures of child protection and greater revulsion about the scale and breadth of the abuse visited on vulnerable children. In light of so many recent scandals, the Government’s position seems at best puzzling and at worst possibly negligent at some point in the future. The amendment would ensure the continued requirement for those providing social work services on behalf of councils to be registered, regulated or inspected. The two key points at issue are the lack of consultation on the one hand and the general opposition from almost all those involved on the other, as well as the fact that we remain unclear as to how this will work in practice for local authorities.
The Minister will no doubt have read with great interest the views of the College of Social Work. The Government’s approach is puzzling because I accept that they want to improve safeguarding services. The Minister will no doubt set out, like his counterpart in the other place, that the Government view registration of providers of social work services on top of their contractual arrangements as a potential duplication. Those of us opposing this view it as a potential extra risk to children.
The College of Social Work points out that earlier this year the Government published a set of regulations to accompany the Children and Young Persons Act 2008 to allow local authorities to delegate almost all their statutory duties. These reforms, taken in the round, could have an extremely significant impact on the delivery of social work services in England. There is a feeling in the sector and indeed elsewhere that there has been quite simply inadequate debate around these very serious and important issues.
The College of Social Work summarised its objection to Clause 71 as follows:
“The new power to delegate social work functions is at the experimental stage and the evidence is not yet available for conclusions to be reached about the impact on the most vulnerable children and adults. It may in future be appropriate to remove this requirement to register with the regulator but it would be risky to remove this safeguard at the present time”.
My main question to the Minister is: why would he want to take this risk at the present time? Why would the Government want to take the risk, given all the problems that we know are taking place at the moment?
As we heard from my noble friend Lady Donaghy, the consultation carried out by the Government did not find support for this—far from it. Even Ofsted’s own consultation found a strong desire to maintain registration checks. Local authorities themselves are calling for external inspection. Why will there be no overview of quality and working practices in some of the key areas, as outlined by my noble friend Lady Donaghy? Why is asymmetry and inequality in the services essentially being written into the Bill?
In summary, if the registration requirements are removed, the Government are essentially dismantling what the CSW describes as the backstop. Will the Minister explain why in these current circumstances the Government would want to remove a safety backstop? Surely, if anything, the Government should be bolstering the backstop and not weakening it. For that reason, I support the proposition that Clause 71 should not stand part of the Bill.
Lord Wallace of Saltaire
My Lords, I recognise the passion with which these objections have been made, as well as the experience and expertise of those who made them. I shall be very happy to hold further conversations between Committee and Report to make sure that we can come to some agreement about the balance between regulation and potential risk, to which the noble Baroness, Lady King, rightly pointed. We are all quite clear that children’s services are a very important area where we must make sure that we get the balance right.
The Government’s view after consultation and consideration is that the double layer of inspection provided by Ofsted’s national perspective and the responsibility of local authorities to inspect and to license providers is duplication. Our view is that Ofsted’s existing duty to register providers who may discharge children’s social care functions is completely separate from its duty to inspect and to hold local authorities to account in the discharge of their functions.
I am also very grateful for the correct comment of the noble Baroness, Lady Meacher, that we are talking not just about for-profit providers but about third sector providers, which often provide very good services in this area. Nevertheless, one wants to make sure that those services are always of a consistent quality. She has a great deal of experience in this area. I have very limited experience but I am very conscious that third sector organisations can be absolutely superb but sometimes not superb.
It is argued that the removal of the requirement for providers to register with Ofsted is a benefit to the system because it ensures that there is no doubt or confusion about where the statutory responsibilities then lie. That makes it clear that local authorities are fully accountable for any decisions made by third parties to whom they have delegated functions. The argument here is that it should not be the responsibility of Ofsted to make sure that the third parties to whom local authorities wish to delegate functions are fit for the job.
Under the current registration regulations, Ofsted is required to check on: first, the fitness of the provider to do the work; secondly, the appointment and fitness of the registered manager; and, thirdly, the staffing arrangements and premises. The regulations also include provisions for making changes to any of the above. To cover Ofsted’s costs, providers are required to pay fees for registration and for making changes to the registration once made.
These requirements duplicate the “due diligence” that a local authority will perform as part of its procurement of a provider. No local authority would appoint a third party provider to undertake its functions without making such checks. However, the current system creates confusion as to where accountability lies. The requirement for providers to register with Ofsted is separate from Ofsted’s continuing duty to inspect and to hold local authorities to account. How Ofsted inspects local authorities is for it to determine. For other provision—as for children’s homes—it conducts separate inspections, but it has concluded that delegated functions should be inspected as part of the local authority single framework inspection and has published a plan as to how this will operate. The Government consider that that is adequate and that it provides the regulation required without unacceptable risk.
Baroness Donaghy
I apologise to the noble Lord for interrupting but I wish to seek clarification. Clearly, on the face of it, it does look like double accounting, but similar things exist in other areas—for instance, in the construction industry, where there is a pre-qualification system. At the moment local authorities are given confidence in employing a company which might cover a lot of local authorities. There might be a very small strapped-for-cash local authority—as nearly all of them are now—but it is given confidence because the name of that company is on a register. It has already qualified to meet a certain level of standards. I am not sure that in the Minister’s answer so far—he may be coming to it—he has explained how local authorities have the confidence to get to the pre-qualification stage of saying, “Okay, let’s look at these people with a view to hiring them”. I am not saying that they do not have the responsibility to inspect—of course not—but it could save a lot of time and money if there is already in existence a body of knowledge and a body of standards which local authorities can apply.
Lord Wallace of Saltaire
I understand that point. I am not entirely clear as to the balance between for-profit providers and not-for-profit providers but I am getting some information from my officials. There are some important distinctions here, which I would like to take back and discuss further with them because I recognise that it is absolutely important that we get this right. The Government’s case is that the clause provides the necessary protections without unnecessary duplication. I recognise that we need to provide the reassurance to all those who have spoken in this debate that we have got the balance right.
Incidentally, we did consult in January and February 2013 and got only some 20 responses, which broke on both sides. There were mixed opinions as to whether the registration regime should be removed; 45% said no and 40% yes. A majority agreed that the proposal would reduce burdens; 53% said yes and 32% no. So the answer is that it did not give us a clear set of arguments as to how to respond.
Again, I recognise the great concerns which have been put forward. The Government have argued consistently that removing this extra level of the registration regime preserves necessary protections. I am very happy to have further discussions between Committee and Report to make sure that we can provide those assurances before we return to this.
Lord Wallace of Saltaire
My Lords, I thank the noble Lord, Lord Kennedy, for his remarks, which ranged much more widely than the limited proposals in Clause 72. Clause 72, on the whole, makes technical changes to the governance arrangements for the Electoral Commission. Clause 73 makes similar technical and modest changes to the governance arrangements for the Local Government Boundary Commission.
As the noble Lord said, the Electoral Commission is the independent body established by Parliament and overseen by the Speaker’s Committee with governance arrangements set out in Schedule 1 to the Political Parties, Elections and Referendums Act 2000, known to us with great affection as PPERA.
At present, the Electoral Commission has to provide a five-year corporate plan, with the new plan having to be prepared and submitted annually. The National Audit Office is also required to undertake annual value-for-money studies. The Speaker’s Committee has reviewed these governance arrangements, comparing the Electoral Commission with other modest similar-sized organisations, and has recommended the following changes. First, a five-year corporate plan should be produced in the first financial year of a Parliament. The statutory requirement to update this on an annual basis should be removed, although the Speaker’s Committee should retain the right to request updated plans outside the five-year cycle. Secondly, value-for-money studies by the NAO should be linked to the production of the organisation's five-year plan and not on an annual basis.
Noble Lords will be aware that the approach that central government take to the funding of public bodies is through a spending review. These spending reviews are fixed and spending is planned over a number of years. As such, the existing statutory provisions for the Electoral Commission to provide annual updates to their corporate plan seem excessive.
In terms of removing the statutory requirements for annual value-for-money studies, the NAO has said that it supports such a reduction as the current statutory provisions are disproportionate to the size and spending power of the Electoral Commission. Clause 72 simply implements the recommendations put forward by the Speaker’s Committee. The Government see these as sensible and proportionate changes to the governance arrangements for the Electoral Commission
The noble Lord, Lord Kennedy, raised some wider issues about whether it is not now time, after 14 or 15 years of operation of the Electoral Commission, to review the overall balance, and whether the current arrangements, including, as he said, a Select Committee as well as the Speaker’s Committee, provide sufficient oversight. That is an interesting discussion to throw out. As he rightly remarks, we will not get very far with this over the next five and a half months. But this House may appropriately return to this after the election when we have seen how the Electoral Commission has operated with its responsibilities, which are most important in the course of and the run-up to an election campaign. Perhaps at that point he and I and others might talk together about how we take such wider issues further.
Lord Rooker (Lab)
My Lords, before we leave this clause, I would like to take this opportunity to ask the Minister a question. I am a strong supporter of the Electoral Commission, with no qualification whatever; but next year’s election will be the first time that it has had four and a half years to plan for the date. Therefore, is there an absolute rock-solid guarantee that there will be no chaos in any of the polling stations in this country of the kind that occurred in 2005?
Lord Hunt of Kings Heath (Lab)
My Lords, I join my noble friend and add to what he said. My noble friend knows that I come from Birmingham and I was shocked by some of the behaviours I saw outside some Birmingham polling stations, to which I suspect he is referring. I particularly remember a polling station in Moseley, where large groups of men—about 20 or 30—were outside. This was clearly intimidatory; it was very difficult—particularly for women—to go and vote. The current system is so slow to react to situations like that when they arise. This is a very serious matter: in some parts of the country, people are not able to exercise their democratic right to go to a polling station free and unfettered.
For some years, the Electoral Commission took the view that it could only take measures that applied to each part of the country in an equal way. That was madness; it has been clear for a number of years that we have a real problem in some polling areas and we need a response from the Electoral Commission that recognises that.
Lord Wallace of Saltaire
My Lords, it would be foolhardy to give a cast-iron guarantee that no problems might break out. These are not purely matters for the Electoral Commission; as we all know; the local police and the local electoral registration officers have clear responsibilities here as well.
Lord Hunt of Kings Heath
In the case I mentioned, there was a police van outside; I approached the police van and the officer, of his own volition, went to speak to this group and kind of negotiated that the numbers would come down from about 20 to three or four on either side. I applaud the fact that a police constable, of his own volition, was able to make his own judgment, but that does not necessarily happen, and there is no guarantee that there will be police outside each polling station during the whole of the day. The other problem is that the polling officers are in the polling station in the school, a long way from the road where people can congregate. I accept the point he is making, which is that it is not just down to the Electoral Commission—but the Electoral Commission has a leadership role here.
Lord Wallace of Saltaire
My Lords, let me take that back and make sure that the Electoral Commission is informed of this. I trust that the incidents were reported to the local authorities and the local police at the time. I am conscious from my own experience with polling stations in parts of west Yorkshire that there can be problems; although my strongest memory of the last election is of passing a polling station 10 minutes before it closed and meeting a large extended family coming out of the polling station after voting, having a very sharp and loud argument as to whether each of them had voted the right way. I fear that, in this coming election, there may be rather more of that sort of confusion than any of us would really like to see. Meanwhile, I can assure the noble Lord that I will take these points back and make sure that they are reported to the Electoral Commission. I repeat that local issues like this are very much about local support. It is for the local police, local education and the local political parties, of course, to make sure that the police and the electoral authorities are doing their duty.
“NHS foundation trusts and NHS trusts: acquisitions and dissolutions etc
(1) The National Health Service Act 2006 is amended as follows.
(2) In section 56A (acquisitions), after subsection (4) insert—
“(4A) Where the regulator proposes to grant the application, it may by order make provision for the transfer of employees of B to A on the grant of the application.”
(3) After section 56A (acquisitions) insert—
“56AA Acquisitions under section 56A: supplementary
(1) On the grant of an application under section 56A—
(a) any order made by the regulator under section 56A(4A) takes effect,(b) the property and liabilities of the acquired NHS foundation trust or NHS trust are transferred to the acquiring NHS foundation trust (other than rights and liabilities which may be dealt with by order under section 56A(4A)),(c) the acquired NHS foundation trust or NHS trust is dissolved, and(d) where the acquired trust is an NHS trust, the NHS trust order establishing it is revoked.(2) So far as may be necessary for the purposes of subsection (1)(b)—
(a) anything done before the grant of the application by or in relation to the acquired trust is to be treated (on and after the grant) as having been done by or in relation to the acquiring trust;(b) any reference in a document to the acquired trust is to be read as a reference to the acquiring trust.(3) Anything (including legal proceedings) that, immediately before the grant of the application, is in the process of being done by or in relation to the acquired trust may continue to be done afterwards by or in relation to the acquiring trust.
(4) In subsection (1)—
(a) “liabilities” includes criminal liabilities;(b) “property” includes trust property.”(4) In section 57 (sections 56 to 56B: supplementary), after subsection (3) insert—
“(3A) The order may include provision for the transfer of employees of the trust or trusts dissolved by the order.”
(5) In section 64 (orders and regulations under this Chapter)—
(a) in subsection (4), before paragraph (c) insert—“(ba) section 56A(4A),”;(b) in subsection (4A), after “section” insert “56A(4A),”.(6) In section 65LA (trusts to be dissolved), in subsection (3)(b), for the words following “trust” to the end substitute “—
(i) to an NHS body; (ii) to the Secretary of State;(iii) between more than one NHS body or between one or more NHS bodies and the Secretary of State.”(7) In that section, in subsection (5), for “to an NHS foundation trust” substitute “to an NHS body”.”
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, this clause makes amendments to Sections 56A, 57 and 65LA of the National Health Service Act 2006. These provisions are all concerned with the transfer of property liabilities and staff between NHS bodies. The changes proposed in the amendment simply clarify the provisions in the existing legislation to ensure that it can be used in a seamless and efficient way. They do not create new policy.
The clause is needed to remove the current uncertainty over the powers of an NHS foundation trust in Section 56A to acquire another NHS foundation trust or NHS trust, and to correct the omission of key powers with respect to the transfer of staff and criminal liabilities in this provision. It would also explicitly extend Monitor’s power in Section 65LA to transfer the property and liabilities, including criminal liabilities, of an NHS foundation trust dissolved following special administration.
I am sure that it would help the Committee if I expand on those initial comments. The existing Section 56A provisions are uncertain and open to interpretation. Critically, there is no express explanation in the provision of what happens to the acquired trust’s property and liabilities, or third party rights and obligations. As a consequence of this uncertainty, NHS foundation trusts are unlikely to utilise the current provision for fear of legal challenges. We are keen to ensure that where acquisitions are deemed to be in the best interests of patient care, legislation supports this approach. Accordingly, paragraph 1(3) of the clause inserts new Section 56AA to provide for a direct transfer of property and liabilities by operation of law. The grant of application would also be conclusive proof that the acquired trust is dissolved, and in the case of an acquired NHS trust the establishment order revoked.
The Government are committed to ensuring that staff involved in transfers from one public body to another are treated fairly and consistently, and that their rights are respected. The amendment to Section 56A would give Monitor an additional discretionary power to make an order for the transfer of staff from the acquired to the acquiring trust. This would ensure that in cases where TUPE does not apply, or where it is unclear whether it does, Monitor can set out a clear mechanism of transfer that specifies which of the staff are transferring and the implications of transfer. The amendment would also apply to orders made under Section 57 in respect of mergers and separations.
It is established Department of Health policy that criminal liabilities must be preserved on dissolution and transfer of an NHS trust or NHS foundation trust, so that organisational change does not prevent the initiation or continuation of criminal proceedings. New Section 56AA creates a statutory authority for the criminal liabilities of an acquired NHS trust or an NHS foundation trust to transfer to the acquiring trust. Amending Section 65LA will enable Monitor to implement the recommendations of a trust special administrator. Property and liabilities, including criminal liabilities of a failed NHS foundation trust, may need to transfer to more than one NHS body. Currently, Monitor can only transfer to a single NHS foundation trust, and this is not adequate.
As stated earlier, these changes simply clarify the provisions in existing legislation that already support the NHS in taking the decisions necessary on how to continue to deliver high-quality patient care. I beg to move.
Lord Hunt of Kings Heath
My Lords, like the noble Earl, I make a happy, though unexpected intervention in the proceedings of this Grand Committee. I thank him for giving me advance warning that he intended to move an amendment on the question of trust mergers. I certainly would not oppose the amendment, but I should like to put some points to him. As this is being introduced at such a late stage, perhaps I could ask him about the Department of Health’s approach to deregulation, because it is entirely relevant to the amendment.
The noble Earl will know that a later clause in the Bill introduces a new duty for non-economic regulators to have regard to the desirability of promoting economic growth while exercising their regulatory functions. From the list that we have been given by the Government, we understand that the Care Quality Commission is encompassed in the list of organisations to which the new provisions may apply. The Opposition have asked the CQC for its views on the clause, but we have been informed that the Department of Health has told the CQC that it was not appropriate for the CQC to respond to our query, given that it is an arm’s-length body of government. I am surprised by that. As the noble Earl has frequently said to us, the CQC is an independent body. I am surprised that the CQC even approached the DoH for advice, and I am shocked that the DoH should prevent CQC from giving its advice to parliamentarians on the Bill. I do not expect the noble Earl to respond to this point today, because I doubt that he could, but I ask him to respond to me in due course.
What is the Department of Health’s approach to deregulation? My understanding is that it is in favour, and recently told the Health Select Committee that, unless issues of public safety are concerned, it is not in favour of extending statutory regulation to other professions within the health service, which is entirely consistent with what Ministers are saying in the Bill.
The noble Earl will not be surprised that I then want to ask why the department is still attempting to require non-doctor public health specialists to be statutorily registered. I recently asked a Written Question about that. I cannot for the life of me see that public health non-doctors pose any risk to public safety. That conviction has been reinforced by the evidence that the Professional Standards Authority for Health and Social Care, which is the overarching regulator, has now given to the Government, in which it confirms my view that minimal risks are posed by public health specialists. There is a very limited number of them. Whether they are statutorily regulated or not is not a major issue. The problem is that, by so doing, the Government are threatening the viability of a voluntary register, the UK Public Health Practitioner Register, because it depends on the fees of those non-doctor specialists for its viability. I should have thought that a voluntary register accredited by the Professional Standards Authority is just what a deregulatory approach would lend itself to.
Again, I do not expect the noble Earl to give me a response today, but I wanted to raise with him that there is considerable puzzlement that a Government who brought forward this deregulatory Bill is hell-bent—for some reason that no one can understand—on forcing a statutory approach to non-doctor public health specialists, which will put at risk a voluntary register that is entirely consistent with the deregulatory approach that the Government are taking within the Bill.
I will ask three or four questions about the noble Earl’s amendment. It arises from the issue in Staffordshire. Essentially, the services that were being run by the Mid Staffordshire foundation trust are being transferred to two other trusts: North Staffordshire and the Royal Wolverhampton, one a foundation trust and one an NHS trust. The technical amendment that the noble Earl has brought forward seems eminently reasonable in that context, but I wonder whether he would care to reflect on the process by which that has occurred. He will know of the trust’s special administrators, who were appointed to deal with the problems at Mid Staffordshire. I was very surprised that the estimated cost of that process has been between £12 million and £15 million. Can the noble Earl confirm that and say whether he really thinks that we got value for money from that process?
The second question is whether he can assure me that this new amendment will not make it easier to force through mergers without proper public consultation. Staffordshire health service has a bit of form recently. He will know that the clinical commissioning groups have made some very controversial decisions, including—I think this was announced yesterday—the outsourcing of much of their commissioning responsibility. It is notable that the CCGs are very reluctant to debate or discuss those proposals in public. We have debated Lewisham hospital in south London, which is in a special administration process, and we have had some discussion about how services in Staffordshire are to be reorganised. I have been to a number of meetings in Staffordshire and there is real concern that a lot of these major changes are taking place without adequate public consultation. For instance, in relation to services in Mid Staffordshire, assurances were given—it was called the double-lock assurance—by the Secretary of State that there would, as I understood it, be proper public involvement and support for the changes. I am not entirely sure that that has happened.
I would just like to make two further comments. As I understand it, by statute, mergers have to be approved by Monitor, the economic regulator for NHS foundation trusts—and presumably, for non-foundation trusts, by the NHS Trust Development Authority, acting on behalf of the Secretary of State. In the light of experience, does the noble Earl not think that the Secretary of State should have to give their approval to mergers even if they involve foundation trusts? I realise that this amendment is based on parent legislation that goes back further than 2006—perhaps to 2003—and that we now have a much more fragmented system than we had then.
A trust merger is not a business arrangement; essentially, what usually happens is that one trust has fallen into a great deal of trouble and has to be rescued. That will often have a dynamic impact on the services to be provided; Mid Staffordshire is a good case in point. Given that, should the Secretary of State, because of his direct accountability to Parliament, not have to sign off that merger? The noble Earl may know of Clive Efford’s Private Member’s Bill, which I think is being debated in the Commons on Friday. There is a clause in the Bill which actually says that the merger of NHS trusts or foundation trusts should require the consent of the Secretary of State, so I am sure that this is a matter to which the department will be giving consideration.
My final point is about the impact of the amendment on PFI schemes. The noble Earl has already explained about the transfer of criminal liabilities, which makes eminent sense, but let us say trust A is being acquired by trust B. As I understand it, trust B takes on the liabilities of trust A. But what happens to the indemnity that the Secretary of State has made in respect of a PFI scheme entered into by trust B? When trust A takes on trust B’s liabilities, including possibly a PFI scheme, does the Secretary of State’s indemnity also now apply to trust A? I understand that the Department of Health has said that it does not and I would be grateful for some clarity on that.
Lord Rooker
I did not want to interrupt the noble Earl but perhaps I may intervene as he has raised that point at the beginning of his speech. I know that it will take time to write to my noble friend but in two days’ time this Committee will be discussing the growth duty. It would be useful to have a response before we start that debate because there are a couple of amendments relevant to the growth duty. The Joint Committee fully supported the Government’s response on the growth duty in January, but the committee received representations from certain regulators. I do not recall whether the CQC was one of them—I do not think that it was—but there was an open discussion when we were taking evidence about this. Therefore, it would be quite useful to have an answer by Thursday to the specific question raised by my noble friend because there would still be time to table an amendment. Sometimes it takes a few days or even weeks to get a letter, even with the best intentions of the Minister.
Earl Howe
I note the request from the noble Lord, Lord Rooker, and I can only undertake to do my best on that front. If I can get an answer to the noble Lord, Lord Hunt, by tomorrow, I will. I cannot promise that but I shall use my best endeavours to get an answer to him as quickly as I can.
The noble Lord referred to the administration process at Mid Staffordshire. He is right that the cost of administration has been significant. I cannot confirm the precise cost at this stage but it is substantial and I think that that serves to illustrate that the administration process is not one that any Government, or indeed Monitor, should give the green light to wantonly or ill advisedly. It is a last-resort solution and should always remain so. Clearly, in a challenged health economy, as that has been and still is, it is not surprising that the net result of the exercise is not just a substantial bill in terms of the trust special administration but a very substantial capital commitment by the Department of Health to augment the facilities in the trusts concerned to ensure that the quality of care is as we would all wish it to be. From memory, that net investment will be about £0.25 billion. Therefore, the people of that area should feel satisfied that this process has led to a result that will give them significantly enhanced facilities.
As for the noble Lord’s question about public consultation, this amendment has nothing to do with the process by which a decision is reached on a trust in administration or the consultation requirements that go with it. It merely streamlines the process that takes place after that final decision is taken so that it is not cumbersome.
The noble Lord asked me about the indemnity associated with PFI agreements in relation to a trust that has been taken over. My understanding is that the indemnity does transfer. That is the advice that I have received, but if I need to qualify it in any way, I will correct it immediately after Committee.
As regards the Secretary of State’s approval for trust mergers, it is important to point out that Section 56A provides for the acquisition by an NHS foundation trust of another FT or an NHS trust, and it confers on the sector regulator, Monitor, the power to grant an application for an acquisition. The section was intended to enable acquisitions to take place expeditiously with a minimum level of bureaucracy. The decision to undertake an acquisition, if it is between two foundation trusts, is taken by the FTs themselves with Monitor undertaking a minimal administrative function to implement the decision as long as the set legal process has been followed.
Lord Wallace of Saltaire
My Lords, I thank the noble Baroness very much. In listening to her, I was remembering that I discovered a new third cousin 10 days ago when the political adviser to someone in the Government in the Emirates got in touch with me. I recognised his unusual name, which happens to be my mother’s maiden name. In inviting him, I asked him to bring the names of his great-grandfather and great-great-grandfather. He arrived with an A3 family tree and the comment from his uncle that the missing bit was a group who had moved away from Somerset, which is where this uncommon local name comes from, and were alleged to have set up as fishmongers in Leicester. That was my grandfather. I now have a new third cousin and quite a useful set of additions to our family tree. I also have a strong desire to visit Australia, where the third cousins who have made good live. They are apparently very generous to their visitors. I should also say that this summer my wife and I were in north Yorkshire looking for her family and we spent a very enjoyable and constructive time in the local history section of Stockton library. The local historians were extremely helpful and provided us with a number of useful bits of family history, including some birth certificates for nothing. The local dimension is as important as the national one.
I can reassure the noble Baroness that officials in the Home Office who lead on this issue will be very happy to meet her soon to discuss the issue further. There are, however, a number of technical issues which mean that the Government cannot accept the amendment as it stands for reasons that I will summarise. The proposed new clause would enable copies of historic births, deaths and marriage records aged 100 years or more to be provided in formats other than a paper certified copy or certificate. It allows for such copies to be produced on paper, electronically or in another prescribed format with a stipulated cost to the customer of,
“no more than £3 per record”.
The amendment seeks to address restrictions laid out in primary legislation that currently prescribe that the only way to access information from a civil registration record, regardless of age, is to purchase a certificate either from the GRO or from the register office where the event was registered, at a standard cost of £9.25 or £10 respectively. While recognising that allowing historic civil registration records to be treated differently from modern records may support government objectives around transparency of data and digitisation, there are some aspects of the clause that make it unworkable in its current form.
For example, the proposed new clause limits the amount that can be charged for an historic record to £3, but further work would be needed to ensure that this allows for compliance with Treasury rules regarding the management of public money—such as rules about full cost recovery. Of course, specifying the fee cap within the clause hinders a regular review of fee levels, as any resultant changes would require further amendment to primary legislation.
The title of the proposed new clause refers to,
“Births, marriages and death registration”,
but the clause seeks to amend only the Births and Deaths Registration Act 1953, which does not provide for the issuing of marriage certificates. We would expect any amendment that provides for a change to the issuing of marriage certificates to be included in the separate marriage legislation, which is the Marriage Act 1949. In addition, the clause applies the same definition of “historic” to all types of records, but this is not aligned—as the noble Baroness has suggested—with the systems of civil registration in place in Scotland and Northern Ireland, which operate under separate legislation. The legislation in place in Scotland and Northern Ireland provides for records to be defined as historic at 100, 75 or 50 years respectively, depending on whether the information relates to a birth, marriage or death, which goes further than the proposed clause suggests.
The clause makes no changes to the information available from the register office where the event was registered, meaning that while the GRO could make historic records available more cheaply centrally, local register offices would have to continue to provide any information from a record, regardless of its age, in the form of a certificate. The impact on the local registration service of introducing a legal distinction between modern and historic records needs further consideration: the amendment as it stands would disadvantage local authorities, which would continue to be legally obliged to maintain the original historic records but would see the demand for information from them decrease as customers chose a cheaper, centrally provided service.
The Government therefore cannot accept the amendment as drafted on the grounds that a number of aspects would prove problematic in practice. In addition, by defining all records as “historic” at 100 years, rather than following the precedent of Scotland and Northern Ireland, and preventing the change to be applied to marriage records by failing to amend the Marriage Act 1949, the clause as it is currently drafted fails overall to achieve the intended aim of opening up as wide a range of records as possible to greater public access. We therefore express sympathy with the aim but reservations about the clause as currently drafted, and we offer an invitation to meet and discuss it further. On that basis, I urge the noble Baroness to withdraw her amendment.
Baroness Scott of Needham Market
My Lords, I am grateful to the Minister and certainly look forward to having a meeting to see how we can progress this further. I have been trying to talk to somebody about this for about five months now, so I hope that even at this late stage it is not too late to bring something forward for the next stage of the Bill, because this is a very important issue for people researching family history. As I have already said, there are many millions of such people. The point about local offices is, of course, valid, but the fact is that most people who order copy certificates would do so through the website of the national GRO. That particularly applies to people from abroad. We should be doing everything we can to open up our records where appropriate to people resident both here and abroad who look to us as their historic homeland. I look forward to having meetings as soon as possible and perhaps taking this further. I beg leave to withdraw the amendment.
Lord Wallace of Saltaire
Lord Wallace of Saltaire
My Lords, I have an extremely long speaking note on this. Amendment 88 is a minor and technical amendment to paragraph 14 of Schedule 19 to the Bill. It makes clear that the repeal to a provision of the Public Audit (Wales) Act 2004 made by that paragraph will come into force only if a duplicated repeal of the same provision made by the Local Audit and Accountability Act 2014 has not yet commenced. The purpose of the amendment is legal clarity. I beg to move.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank my noble friend Lord Sharkey for moving his amendment and allowing us to have this opportunity to discuss Clause 82 and Schedule 20, which provide for a number of legislative measures to be repealed or revoked. I am grateful to the noble Lords who have taken part. I get the general message and I hope that I can respond to the points that have been made.
The conditions that are proposed in my noble friend’s amendment would include the need for the Law Commissions of Scotland and of England and Wales—to report, before commencement, on whether or not the legislation to be removed still has a practical use. The amendment, as my noble friend would acknowledge, does not require the Law Commissions to undertake this work. Rather, it indicates that it would not be possible to move forward with regard to the repeal or removal of these provisions from the statute book until such time as the Law Commissions had reported on the legislation contained in Schedule 20. In the absence of any report from the Law Commissions, the obsolete law would simply remain on the statute book.
I hope that there is common ground in this Committee that it is a worthwhile objective to make the statute book simpler to use for practitioners and those in different walks of life when they run up against the law. It is better if it is easier to navigate for the end users of the law. My noble friend makes the point, which I agree with, that the Law Commissions do not have a political agenda. While it is true that many of the provisions in the schedule are a product of the Red Tape Challenge in the sense that they come from a political origin, the purpose of this is to repeal redundant legislation and legislation that is no longer of practical use. The selection of this particular obsolete legislative list may have had a political element in its origin, but in the end the purpose is to ensure that redundant legislation is not on the statute book. Again, I hope that that is a politically neutral statement to make and something that we can all subscribe to.
As my noble friend fairly observed, and as the noble Lord, Lord Rooker, acknowledged, there are clauses that caused considerable offence to the Joint Committee. The Government have accepted that particular recommendation. Those clauses that contained future order-making powers for pieces of legislation that were considered to be redundant were removed. The argument that was made by my noble friend and by the noble Lords, Lord Rooker and Lord Stevenson, would have had greater force if the Government were still trying to defend an order-making position. That is not the case. We took into account the evidence submitted during pre-legislative scrutiny and in the Joint Committee’s recommendations, and the Government removed this power from the Bill.
The origin of this amendment is, of course, that the Joint Committee also recommended that the various items contained in Schedule 16—I think it was at that time—should be referred to the Law Commissions for confirmation that they were indeed no longer of practical use. As has already been alluded to by my noble friend, the Government did not agree with this recommendation. However, I begin by pointing out that one of the main criticisms of the order-making power was that there was an inappropriate level of parliamentary scrutiny.
This schedule, both in the form that it is in today and in its original form, has gone through pre-legislative scrutiny. I hear what the noble Lord, Lord Rooker, says—that he did not think that it was an adequate or long enough opportunity—but it has had pre-legislative scrutiny and Parliament has considered the Bill up to this point, and no evidence has been brought forward that the items contained within it are not redundant. There is an important exception to that, which we are about to debate in the upcoming group of amendments in the names of the noble Lords, Lord Grantchester and Lord Trees, where there was an issue identified by those with a particular interest in dog breeding, and we as a Committee will have an opportunity to consider this.
As the noble Lord, Lord Rooker, said, the report and legislation that comes forward from the Law Commissions takes about three minutes of parliamentary time. This—particularly these provisions—has taken up far more than three minutes of parliamentary time. That is not the point that I wanted to make. It is not just that Parliament has had the opportunity; it is that—and we know this through all the work that we do in Parliament, not just in this Bill but in a whole host of Bills—we are informed in our debates by a whole host of outside bodies that are more than happy to give us the benefit of their experience, expertise and knowledge on these issues.
The noble Lord, Lord Stevenson, referred to paragraphs 14 and 15 regarding the Atomic Energy Act 1946. In the 31 years since I was first elected as a Member of Parliament, I have never known the nuclear industry to be backward in coming forward if it thought there was a problem with something that Parliament was about to propose. There was also a reference to paragraph 28, omitting Section 10 of the Sea Fish (Conservation) Act 1992, which requires that a report on the operation of the Act be laid before Parliament within the period of six months beginning 1 January 1997. Clearly that had to be done by 1997. Having represented for 24 years, both in the other place and in the Scottish Parliament, a constituency that had very strong fishing industry interests, I make the point that the fishing industry was never slow in coming forward either. It had very good people working for it who would spot important issues. With the exception of the amendment that we are about to come on to, in the whole time that these measures have been out there—since, I think, the summer of 2013—no interested bodies have come forward and said that these pieces of legislation still have a purpose and should be kept on the statute book.
I believe that good housekeeping of the statute book is good governance. When we bring forward legislation in the normal course of events, a Bill often has a schedule attached to it that will have repeals. They have never gone anywhere near the Law Commissions, unless it happens to be one of the Law Commissions Bills, which now use the fast-track procedure. It is quite usual for Bills to have a whole series of amendments and repeals because they are no longer going to be of any use, given the new legislation that is coming through. What we are doing here is bringing together a number that one might say were not picked up at the time when other pieces of legislation were brought forward. Nevertheless, Parliament has been invited to accept, as we do on many other occasions, that they will no longer be useful.
Although it is true that some of the pieces of primary legislation contained here are repeal candidates for one of the Law Commissions’ Statute Law (Repeals) Bills, I also make three particular points. The Law Commissions tend to focus their resources on certain themes for each repeals Bill. If a repeal candidate does not fit within the theme of a Bill, it is uncertain whether it would be accepted by the Law Commissions for inclusion. The Law Commissions confine their repeals work to primary legislation. A number of the paragraphs—I think that my noble friend said that there were eight—relate to secondary legislation, which has not historically been within the purview of the Law Commissions when they do repeals work. Although secondary legislation can be revoked using the parent Act, this Bill provides an ideal vehicle to revoke these regulations in an efficient manner.
Secondly, many of the provisions contained within the schedule came out of the Red Tape Challenge. The noble Lord, Lord Rooker, clearly made the point that none of these had in the past been referred to the Law Commissions. I do not think that we are running away from the fact that many of them do come out of the Red Tape Challenge. However, many of the themes were launched after the Law Commission for England and Wales invited submissions from government departments in June 2011 on what should be included in what was its last statute law repeals report, published in April 2012.
The next repeals Bill will not be introduced until 2016, and it is my understanding that the focus of the Law Commission’s repeals work will be on laws relating to overseas territories and churches. The Government do not see why the removal of redundant legislation should wait when the Bill that we have before us provides a legislative vehicle for doing so.
Finally, it is worth noting that government departments are key consultees for the Law Commission in seeking to make these kinds of repeals. As the Law Commission for England and Wales states on its website:
“Sometimes it is impossible to tell whether a provision is repealable without factual information that is not readily ascertainable without ‘inside’ knowledge of a Department or other organisation”.
I know that my noble friend said that the Government were answering a question that they were not asked but it is important to make it clear that this is not arbitrary work and that we have within the departments a considerable amount of expertise. One of the examples that was given in, I think, the response to the Joint Committee’s report is in this Bill. I think that it was one of the other clauses which drew the short straw in having to deal with part 1 of Schedule 6 to this Bill. It repeals the Deeds of Arrangement Act 1914 as part of a package of insolvency measures. Research, conducted by departmental lawyers, indicated that there was still one person who had a deed of arrangement under the 1914 Act, and a decision was made to include a special saving provision in paragraph 3 of Schedule 6.
The noble Lord, Lord Naseby, was not here to move his Amendment 90 but my noble friend Lord Sharkey referred to paragraph 40, which relates to Section 13 of the Defamation Act. I accept and acknowledge that it is not what I would call a redundant provision; it can be argued that it continues to have legal effect. However, the position is that it was a non-government amendment—one that was accepted by the Government due to a previous commitment to remove Section 13 of the Defamation Act when an ideal legislative opportunity presented itself. I think that, left to the Government’s own devices, it would not have appeared in Schedule 20, but that is where it was moved and that amendment was accepted by the House authorities as the case was made that it fitted within the scope of the Bill. That is why it finds itself here and I think that generally it is a provision that is much welcomed. In those circumstances, I invite my noble friend to withdraw his amendment.
Lord Rooker
What is the Minister’s answer to his noble friend Lord Skelmersdale?
Lord Wallace of Tankerness
I do not think that there is a perfect answer to the earliest one being in the 19th century. If the purpose of this is to try to remove redundant legislation, it can be redundant if it no longer serves any useful purpose. An example is the Sea Fish (Conservation) Act 1992, which is very recent—indeed, I remember taking part in the debates on the Bill that became that Act in the other place. But the purpose of this provision is to remove from the statute book measures which, for example, may have expired or served their purpose, which have been superseded by other legislation or which are simply no longer relevant because they relate to an activity that no longer takes place. I accept that flying kites still takes place, but it takes place in a legitimate way. The fact that there was no provision identified prior to the 19th century I do not think in any way detracts from the ones which have been included, which I would certainly argue that Parliament has had a proper opportunity to consider.
Lord Skelmersdale
Surely the noble and learned Lord will appreciate that the statute book is far, far too long. Therefore, if you can get rid of legislation from between the 14th century and the 19th century, somebody ought to jolly well have a go at it.
Lord Wallace of Tankerness
I am in sympathy with what my noble friend says: the statute book is far, far too long. There is probably someone behind me sweating as I say this but I am sure that if he has candidates that he wants to bring forward to addend rather than amend Schedule 20 before Report stage, and if he gives us sufficient time, they could be looked at to see whether they would be worthy of inclusion.
Lord Sharkey
I am grateful to all noble Lords who have spoken and to the Minister for his reply, apart from his reply to my noble friend Lord Skelmersdale in the last sentence. It is the case, despite the Minister’s assertions, that the items in Schedule 20 have not really been subject to scrutiny in any meaningful sense. I agree, of course, that we have now taken up more than three minutes of parliamentary time by discussing the items in Schedule 20, but we have not actually discussed or examined the items themselves in any detail. What we have discussed is whether they should be there in the first place, which is of course not the same thing.
The argument that interested parties essentially would have complained if they had found any faults—a kind of way of saying “The dog did not bark, so clearly these are okay”—makes me wonder, in a way, why we need any kind of parliamentary scrutiny or scrutiny by the Law Commission at all. We could just say “The dog has barked” or not and carry on that way. I do not think that that would work. On waiting for interested dogs—or interested parties—to bark there are, of course, interested parties but the difference between them and the Law Commission is that the Law Commission is precisely not an interested party.
In closing, there are some questions that the Minister did not answer. Perhaps I could persuade him to write to me, in particular about departmental processes, which are at the heart of the matter, the processes that these proposals have gone through and how those processes in fact impact with the processes that the Law Commission itself would use. It would be very helpful to know how those compared.
The real question, however, and I do not think that the Minister touched on this at all, is one that I asked twice, which is: “Why the rush?”. I do not understand why we have to rush this when we know that the Law Commissions could do this in between four and 12 months.
Lord Wallace of Tankerness
I am grateful to my noble friend for giving way. First, the amendment does not make any requirement on the Law Commissions to do this, so there is no guarantee that it will be done within the next six to 12 months. Secondly, these are matters which have been out in the public domain since the summer of 2013. By the time that this Bill proceeds to Royal Assent, it will be the best part of 18 months, if not longer. I do not consider that a rush.
Lord Sharkey
To answer my noble and learned friend’s first point, I will certainly alter the amendment to make sure that the Law Commissions are required to do it in the appropriate time, and I am grateful for that advice. I do not propose to go any further on the issue of rush because I do not think that our minds are meeting on this. I meant the rush to do it without certification, not just getting it done. That seems to me the heart of the matter. Given that we are in Grand Committee, I beg leave to withdraw and may return to this at a later stage.
“Highways (Assessment of Environmental Effects) Regulations 28A The following Regulations are revoked—
(a) the Highways (Assessment of Environmental Effects) Regulations 1988 (S.I. 1988/1241);(b) the Highways (Assessment of Environmental Effects) Regulations 1994 (S.I. 1994/1002).”
Lord Wallace of Tankerness
My Lords, Amendments 91 and 92 add to Schedule 20, which—as we have just debated—makes provision for legislation that is no longer of practical use to be removed. I will start with Amendment 91. Both the 1988 and the 1994 Highways (Assessment of Environmental Effects) Regulations inserted a new Part 5A (Environmental Impact Assessments) into the Highways Act 1980. These provisions have now been superseded by the Highways (Assessment of Environmental Effects) Regulations 1999, which inserted a replacement Part 5A.
Amendment 92 seeks to repeal the Sea Fisheries Act 1868, the Fisheries Act 1891 and the British Fishing Boats Act 1983 in their entirety. The 1868 Act implemented a fisheries agreement between the United Kingdom and France and amended UK law on sea fisheries. Much of the Act has already been repealed and the remaining provisions relate to requirements on the carriage of fishing vessel registration documents and to the enforcement of those requirements. Such requirements are now set out in directly applicable provisions in European Union law. The Fisheries Act 1891 implemented the International Declaration on North Sea Fisheries, made by the United Kingdom and Belgium, and amended UK law on sea fisheries and on salmon and freshwater fisheries. Again, much of the Act has already been repealed and its extant provisions relate principally to the declaration. The subject matter of the declaration is now regulated by EU law, under the common fisheries policy, which is implemented other than under this Act.
The British Fishing Boats Act 1983 prohibits the fishing for and trans-shipment of sea fish by or from British fishing boats, unless those boats satisfy conditions relating to the nationality of the crew prescribed by order. The British Fishing Boats Order 1983 requires at least 75% of the members of the crew to be British citizens or other EU nationals. The Act and the order are no longer enforced and nationality requirements are set out instead in immigration legislation.
As the Committee will know, fisheries is now largely a devolved matter for Scotland, Wales and Northern Ireland and the Government are working with the devolved Administrations to secure legislative consent Motions to repeal these three Acts. I beg to move.
“Sea Fisheries Act 1868 and other fisheries legislation28B The following Acts are repealed—
(a) the Sea Fisheries Act 1868, including so far as it extends outside the United Kingdom by virtue of section 70 of that Act;(b) the Fisheries Act 1891;(c) the British Fishing Boats Act 1983, including so far as it extends outside the United Kingdom by virtue of an Order in Council under section 10 of that Act.28C (1) The following amendments are made in consequence of paragraph 28B.
(2) In the Fishery Limits Act 1976, in Schedule 2, omit paragraph 7.
(3) In the Debtors (Scotland) Act 1987, in Schedule 6, omit paragraph 24.
(4) In the Merchant Shipping Act 1995, in Schedule 13, omit paragraphs 2, 9 and 68.
(5) In the Statute Law (Repeals) Act 1998, in Schedule 2, omit paragraph 9.
(6) In the Tribunals, Courts and Enforcement Act 2007, in Schedule 13, omit paragraph 67.”
Lord Trees
It might conceivably in the sense that breeders need to record the details of the sire as well as the bitch in the prescribed form. It could have an effect on the matter raised by the noble Lord. Clearly certain breeds are proscribed, so they would not—or should not—be used for breeding, and presumably would not be entered here. That may have some bearing on the matter. The primary concern is the exploitation of bitches in general and overbreeding because of the financial advantages.
Lord Wallace of Tankerness
My Lords, I thank the noble Lord, Lord Grantchester, for giving the Committee an opportunity to consider these important matters, and the noble Lord, Lord Trees, who brings considerable experience and expertise to such issues. I have a dog, but as it is in Scotland it will not be affected by paragraphs 31 or 32 of Schedule 20, covered by the amendment moved by the noble Lord, Lord Grantchester.
I should say at the outset, and quite properly as I am sure the Committee would agree, that the welfare of dogs is vital. We have been described as a nation of dog lovers and we would want nothing less. I understand that the provision in paragraph 31 relates, as has been said, to questions of the keeping of records and does not impinge on other parts of the legislation dealing with welfare. Paragraph 32 is consequential on paragraph 31. That is an important concern to the noble Lord. There are many other provisions that seek to secure the welfare of dogs. I acknowledge from the concerns expressed, not least in the comments of the noble Lord, Lord Trees, that some of these records are important for welfare.
As has been identified, the underlying reason for including these paragraphs in the schedule is because most of the information held on paper records will, as from April 2016, be held on a microchip database. It is also the case that any information that is not held on a microchip database, and which a local authority considers a particular licensed dog breeding establishment should record, can be made an additional condition of the licence, so there is provision if there is concern about a particular breeding establishment. However, we recognise that the repeal of these paragraphs is not intended to commence until the microchipping is in place. The relevant commencement provisions are at Clause 90(2)(n). Subsection (2) states:
“The following provisions come into force at the end of the period of 2 months beginning with the day on which this Act is passed”,
and receives Royal Assent.
Paragraphs 31, 32 and 37, the subject of the next amendment, are excluded from coming into effect after two months but rather, as I read it, will come into force on such a date as the Secretary of State may by statutory instrument appoint. There was concern about this being introduced before the microchipping provision. That will not be the case, but I can go further than that because the Government have been aware of some of the concerns and have decided to consult the key stakeholders on this issue. If there is enough evidence to support retaining the requirement for licensed dog breeders to keep records, the Government will not commence the repeals contained in paragraphs 31 and 32 of Schedule 20.
Lord Grantchester
Will the Minister clarify that the Clause 31 reference to Section 4(i) refers only to the identity of any dog and that there is nothing else involved, such that it entirely mirrors the provision that a microchip will provide?
Lord Wallace of Tankerness
I will be told by those sitting behind me if I am getting this wrong, but my understanding is that what is required under the 1999 regulations, which I assume are made under the registration provisions that we are talking about, is the name of the dog, the date of birth, the address, the breed, the description, the sale details, the weight of the dog, the mating date, the sire details and the number in the litter. The microchipping database covers all but four of these. The four it does not include are the weight of the dog, the mating date, the sire details and the number in the litter. I think that that is as full an answer as I can give the noble Lord.
Lord Grantchester
I am very grateful to the noble and learned Lord for being so helpful. I am very grateful for the support of the noble Lord, Lord Trees, in this short debate. I levied five charges in terms of anxiety and concern on this legislation and I have listened carefully to what the Minister said. I think it will need a period of reflection. Most notably, I ask him to provide details of the consultation exercise that has been conducted so that we can have a look at it before Report. Having said all that, I am very grateful that the noble and learned Lord is content that the border is secure in respect of dogs moving across jurisdictions and I beg leave to withdraw the amendment.
Lord Grantchester
This amendment removes paragraph 37 of Schedule 20 concerning the requirement for a dog to wear a collar with an identifying tag at sale under the provisions of the Breeding and Sale of Dogs (Welfare) Act 1999. This provision is also predicated on the successful introduction of microchipping. Many of the points mentioned in the previous amendment on dog breeding welfare are also relevant here concerning whether the future introduction of compulsory microchipping will necessarily be proven to render the various Acts’ provisions to be no longer necessary, bearing in mind the comments we have just exchanged concerning whether the exact provisions mirror the microchipping possibilities. Under the Breeding and Sale of Dogs (Welfare) Act 1999, which amends and extends the 1973 Act, a puppy may be sold directly to a future owner or, if to a third party, only if the owner possesses a pet shop licence.
A licensing officer can assess whether or not a breeder is meeting the conditions only if the details of the sale and the purchaser are recorded. The microchipping of breeding dogs and puppies does not enable checks on whether puppies have been sold by a breeder to dealers who do not have a pet shop licence. The information on a microchip, limited as it is, merely records hoped-for accuracy at the time of implant. Thereafter, any new keeper must ensure the records on the database are updated accordingly. I understand—although I have not studied this—that the requirements of the microchipping regulations that are shortly to be introduced will deem a dog to be not microchipped if these databases are not correctly updated. Surely, the successful working of this must be evidenced before this clause is implemented. In this regard, I am not referring just to the implementation of this Act after the regulations on microchipping but to a period of time to ascertain that this is all working smoothly.
I imagine that most people have very limited information on any tag on a collar: perhaps just the dog’s name and a phone number. This, at least, is likely to be up to date. If a dog becomes lost, then anyone who comes across the dog can ascertain the present owner—should the dog still have the collar, I grant you. Members of the public will not be able to read a microchip and take the initiative to reunite dog and owner, which can only increase the likelihood that people will deliver dogs to councils. Councils will find it increasingly burdensome to deal with the consequences of this. Does the Minister’s department intend to fund fully this new burden of looking after and aiding the identification of dogs and tracking their owners?
Of more significance, as I have alluded to, is the potential gap between the successful operation of microchipping of dogs and the removal of the requirements under paragraph 37. There should certainly be a much longer requirement for the new regulations to work through the likelihood of sales of dogs as they mature than there is in the prior amendment. I very much look forward to looking at the regulations concerning microchipping. I am certain that microchipping will improve the situation. However, the regulations cannot be seen to be the panacea that can allow these present provisions to be disregarded. They should continue to operate alongside the development of microchipping. I beg to move.
Lord Wallace of Tankerness
Once again, I thank the noble Lord, Lord Grantchester, for moving his amendment and raising an important issue. The amendment would have the effect of continuing to require licensed dog breeders to identify any dog which is sold to a licensed pet shop or Scottish rearing establishment with a tag or badge.
As has been acknowledged, the underlying reason for paragraph 37 is that from April 2016 all dogs will need to be identified with a microchip and therefore there will be no need for dogs sold from licensed dog breeding establishments to pet shops, or indeed to Scottish rearing establishments, to be identified by a tag or badge. It is important to make clear that there will still be a requirement for all dogs in public places to have an identifying badge. That requirement is not removed by this paragraph. It is considered appropriate to retain that, even after compulsory microchipping is introduced, because if a member of the public finds a dog loose in the street, they are not likely to have a scanner in their possession to know where to return the dog.
Because these repeals are not intended to commence two months after Royal Assent, but instead not until April 2016, when the microchipping provisions come in, the Government have decided to consult key stakeholders on this issue, as I indicated on the previous amendment. If there is enough evidence to support retaining the requirement for licensed dog breeders to identify any dogs sold to pet shops or Scottish rearing establishments with a tag or badge, it would not be our intention to commence the repeal contained in paragraph 37 of Schedule 20. Paragraph 37 is also omitted from the more general commencement with regard to Schedule 20.
I have no doubt—indeed of course the noble Lord has mentioned it—that points can be made during that consultation about, as he indicated, the gap in time between microchipping becoming a requirement and seeing how it works in practice. Obviously, it will also be an opportunity to have proper scrutiny of the microchipping regulations, which I think he referred to in his earlier amendment.
Again, I just repeat that there will be a consultation and the responses to that consultation will be weighed up with regard to the very specific point about the tagging badges when licensed dog breeders pass on dogs to pet shops or Scottish rearing establishments. In these circumstances, I invite the noble Lord to withdraw his amendment.
Lord Grantchester
I am grateful to the Minister for clarifying that dogs will still be required to wear an identity tag and that a lot of the concerns on that score can be laid to rest. I am grateful that he has further clarified, under this amendment, that consultation is proceeding with necessary stakeholders on the introduction of these provisions. With that in mind, I beg leave to withdraw my amendment.
Lord Rooker
I have one last, general question on this, which comes as a result of listening to these last two debates. Can the Minister give a commitment that the Government will not bring any new material forward for Schedule 20 at further stages of the Bill?
Lord Wallace of Tankerness
As I am not the Minister in charge of the Bill, I am not sure I can give that commitment and am wary of doing it, having just invited the noble Lord, Lord Skelmersdale, perhaps to suggest candidates—although I did qualify that invitation by saying that he should give plenty of time so they could be properly looked at and considered.
Lord Wallace of Saltaire
I can say that it is not our intention. We will take the warning.
Lord Wallace of Tankerness
I am advised that it is not the Government’s intention to bring forward further pieces of legislation into this. We take heed of the warning that the noble Lord, Lord Rooker, has very effectively delivered.
Lord Rooker
It is not a warning; it is just the fact that it is quite clear that people inside the government machine—I do not blame them—are now looking at what is going to be changing in the future that will make legislation redundant before the action takes place. This is a very suitable vehicle for piling other stuff in, which is clearly the implication of what we have just heard about dog chipping. It is something that is coming in the future that will require this change—here is a nice vehicle. I just wonder what else is around. It would be very unwise from a parliamentary scrutiny point of view.