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Oral Answers to Questions
(10 years ago)
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Toby Perkins (Chesterfield) (Lab)
1. What recent progress he has made on reserve recruitment; and if he will make a statement.
The Parliamentary Under-Secretary of State for Defence (Mr Julian Brazier)
The programme to grow the reserves is on track. We have reversed 18 years of decline. Our more recent official figures, published on 13 November, show an increase in both recruitment and the trained strength of the reserves. Enlistment numbers are increasing and recruitment times are reducing, thanks to improvements that the three services have made.
Toby Perkins
I am very concerned to hear that the net increase of just 20 reservists is actually a part of the Government’s plan. With our regular forces at their lowest numbers since the Napoleonic wars, the news that just 20 extra reservists have signed up is extremely worrying. Will the Minister tell us his assessment of why the almost £2 million spent on advertising and all the warm words have not led to the extra reservists that we desperately need given the huge reduction in the regular forces that we have seen?
Mr Brazier
In the six months to 30 September, 2,770 people joined the reserves. That is an increase of 61% compared with the same period last year. The bulk of the difference occurred during the second half of that period, because it is only in the last few months that our changes in the recruiting process have come through.
Sir Nicholas Soames (Mid Sussex) (Con)
May I thank my hon. Friend for the important reforms that he has instigated and the fact that he has taken this back and we now look to substantial improvements? May I assure him that recruiting in the Yeomanry Squadron, with which I am associated, is going extremely well? The only problem that remains is for the Government to persuade employers that it is well worth letting their employees go for territorial service.
Mr Brazier
I am most grateful to my right hon. and gallant Friend, who is of course a distinguished former Minister for the Armed Forces. I was privileged to visit the unit he mentions, the Royal Yeomanry, which is now over strength. The point he makes about employers is well taken. We recently enhanced the package for small businesses, with a supplementary £500 a month, on top of the rest of the compensation package for small businesses that release people for operations. We also have a considerable initiative in the wider country.
Ann McKechin (Glasgow North) (Lab)
22. I declare an interest as a member of the Strathclyde-area Lowland Reserve Forces and Cadets Association. Can the Minister say whether he has carried out any regional or national analysis of reserve recruitment figures, whether there are any problems in different parts of the country and whether a more individual and specific approach to recruitment requires to be taken as a result?
Mr Brazier
I am most grateful for the service that the hon. Lady gives on the RFCA board in Scotland. The RFCAs are critical. To answer her question, we are looking at it. I do not have a comprehensive answer for her, but the four recruitment centres through which every recruit passes have a different track record. Some of them have had much tighter capacity constraints. We have taken measures to ease those. Scotland has had a number of interesting initiatives of its own, as well as leading the way on phase 1 training. We are trying to get best practice spread around the country.
Mr John Baron (Basildon and Billericay) (Con)
25. However these figures are dressed up, the Ministry of Defence’s own figures show that the trained strength of the Army reserve has actually fallen over the last 18 months. Given that the Government have had to throw more money at the reforms, including added incentives to join up, will the Minister answer the one question that the Government have so far ducked: how much extra are these reforms costing, over and above original estimates?
Mr Brazier
Over the past six months, the trained strength of the volunteer reserves has increased by 400, and it is only in the last three months that most of the reforms we have introduced have bitten. The answer to my hon. Friend’s question is that we are confident that the figure that we originally offered—1.8, over the 10-year period—will be adequate for the purpose. We are still aiming to reach our targets. Numbers are growing and recruiting is increasing rapidly.[Official Report, 2 December 2014, Vol. 589, c. 1MC.]
Vernon Coaker (Gedling) (Lab)
A key plank of the Government’s defence policy was to increase the number of reservists to make up for the reduction, by a fifth, of the regular Army, but the latest figures, however dressed up, show an increase of just 20 Army reservists in a year. The Government have had two years, spent millions on advertising and revised down their targets, and there has still been no improvement. It is becoming clear that this key plank is now dead wood. Does the Minister have a plan B, or is “Don’t panic!” the only answer offered by him and Captain Mainwaring there on the Front Bench?
Mr Brazier
The size of the volunteer reserves, including the then Territorial Army, halved under the last Government, and we inherited a structure that had lost most of its officers and was falling apart. The size of the Regular Army was reduced because of cash constraints that arose from an economic crisis we inherited. Our plans to expand the reserves are not designed as a direct substitute for regular numbers; they are designed to provide the kind of reserve—the framework for expansion—that would be needed in a time of national crisis.
Vernon Coaker
Permission to speak, sir—they don’t like it up ’em, do they? We need to see a clear plan to address concerns about future gaps in the armed forces’ capability, so why have the Government rejected recommendations by the Public Accounts Committee to put in place contingency measures if reserve recruitment continues to fall? Surely that is just plain common sense. Is this not further proof that when it comes to defence, the Government have no strategy and just make it up as they go along?
Mr Brazier
I think the hon. Gentleman wrote that question before he heard my earlier answer. His premise is that reserve recruiting is falling, but reserve recruiting increased in the last six months by 61% compared with the equivalent period last year. We are confident that it will go on increasing, so the premise of the hon. Gentleman’s question is, I am afraid, wrong.
Andrew Bridgen (North West Leicestershire) (Con)
2. What steps he is taking to protect the pensions of war widows who subsequently remarry or cohabit.
Robert Jenrick (Newark) (Con)
16. What steps he is taking to protect the pensions of war widows who subsequently remarry or cohabit.
The Minister of State, Ministry of Defence (Anna Soubry)
I am sure the whole House warmly welcomed the Prime Minister’s announcement on 8 November that from April next year, the armed forces pension scheme ’75 and the war pension scheme will be changed to ensure that war widows will be able to continue to claim the pension when they remarry or cohabit.
Andrew Bridgen
I congratulate my hon. Friend on resolving this issue, ensuring that all those entitled to an armed forces pension retain it for life. But may I press her a little harder on what steps individuals affected by this most welcome change have to take to ensure that they benefit from it?
Anna Soubry
The simple answer is, of course, that I always want to help people if I can, but if they call Veterans UK on 0808 1914 218, they will be able to receive all the advice they need.
Robert Jenrick
My constituent, Mrs Stella Weatherby, herself a war widow, sends her sincere thanks to the Government, as does the Royal Air Force Association club of Newark, which wrote to me to say that, should the Secretary of State find himself again in Newark—not in a by-election, I hope—he should drop by for a drink or two. Having made this welcome decision, will the Minister encourage her ministerial colleagues to consider the same treatment for widows of police and emergency service workers who have been killed on active service elsewhere?
Anna Soubry
The Secretary of State and I are always happy to go to the RAFA club in Newark to enjoy a couple of sherbets. Answering my hon. Friend’s question as posed, in blunt terms, the decision was made using the covenant. The view was taken, quite properly, that this section of our armed forces—those widows—suffered a disadvantage by virtue of, usually, their husbands’ service. That is why we did this under the covenant. No Government have ever supported retrospective changes—as would be required for the widows of police officers and members of our fire brigades—in pension plans. I understand the injustice—I absolutely get that—but it would require retrospective changes, which are not a good idea. As I say, the changes made were done quite properly under the covenant, which this Government introduced and put into law.
Mr Frank Roy (Motherwell and Wishaw) (Lab)
What action have the Government taken to help local authorities identify ex-service personnel and their families, including war widows, who are entitled to state support?
Anna Soubry
I am a little confused by the hon. Gentleman’s question, as I did not quite understand all of it, but local authorities should always make sure that they invoke the covenant. Having all signed up, they are the ones who can deliver on it. I am keen to ensure that that happens.
Sir Gerald Howarth (Aldershot) (Con)
As one who said some 10 years ago, when I was shadow veterans Minister, that the next Conservative Government would implement this welcome change, I congratulate my hon. Friend and the Secretary of State on having delivered something that is of huge benefit and has righted an injustice. Is this not a very good example of the Government’s implementation of the military covenant?
Anna Soubry
I entirely agree with my hon. Friend, and I thank him for all the work that he did to support the campaign. These women have campaigned for decades for justice, and it has been possible to achieve it precisely because we put the military covenant into law and are now delivering on it.
David Rutley (Macclesfield) (Con)
3. What recent discussions he has had with his middle east counterparts on steps to counter ISIL.
The Secretary of State for Defence (Michael Fallon)
During my recent visits I met the Iraqi Prime Minister, Defence Minister and national security adviser, the President and Prime Minister of the Kurdistan Government, and my counterparts in the region, including those in Qatar, Saudi Arabia and Kuwait. I hope to meet the King and Crown Prince of Bahrain and the United States Defence Secretary at next week’s conference in Manama for further discussion of steps to counter ISIL.
David Rutley
Can my right hon. Friend confirm that our partners in the middle east value the capability that the United Kingdom brings, and that we are making a substantial contribution to the coalition? What plans has he to do more in the fight against ISIL?
Michael Fallon
Our contribution to coalition activity so far has been second only to that of the United States, in surveillance, intelligence-gathering, strike missions, and the supply of arms and ammunition. We plan to provide further training and assistance—specifically, further training for the Kurdish peshmerga and the Iraqi armed forces—and to advise and assist the Iraqi armed forces through the secondment of further advisory personnel to command headquarters. We also plan to make a significant contribution to the training of moderate elements of the Syrian opposition.
Pat Glass (North West Durham) (Lab)
21. How long does the Secretary of State expect the current action to last, and has he any plans to extend it?
Michael Fallon
I cannot put a time frame on the current action, although I think the United States Secretary of State considered that it would take years rather than months or weeks. The present position is that the advance of ISIL has been halted, but pushing ISIL back out of the territory that it has gained will obviously present a huge challenge to the Iraqi and Kurdish forces, supported by the coalition.
Mark Pritchard (The Wrekin) (Con)
Given that British nationals are now known to be fighting with ISIL, with the Syrian army and with the Kurdish forces, what discussions has the Defence Secretary had with the Home Secretary to ensure that we have the legal instruments that will enable us to deal with those people appropriately on their return?
Michael Fallon
I know that the Home Secretary has been considering that very actively during the last few weeks, and will present further proposals to the House. It is very important for those who go to fight against the interests of this country by supporting ISIL to understand that they are fighting for an organisation that is proscribed, and that if they are detained when they return, they can be charged and prosecuted.
Ian Lucas (Wrexham) (Lab)
One of the reasons for the initial failure of the Iraqi army against ISIL was its inability to present itself as being part of the Iraqi nation as a whole, given that groups such as the Assyrian Christians and Kurds were excluded. Did the Secretary of State have any discussions about making the army much more inclusive, so that there can be a force that is united against ISIL and fighting on behalf of the whole of Iraq?
Michael Fallon
I welcome the hon. Gentleman to the Front Bench. The point that he has made is perfectly fair. I continue to make clear to the Defence Minister and Prime Minister in Baghdad that they must have the support of all interests in Iraq. I think that the recent agreement between three of the tribes in Anbar province and the Iraqi army to fight ISIL together, and the growing rapprochement—the interim agreement—between the Kurdish Regional Government and the federal Government in Baghdad, are pointers to the growing inclusiveness of the Government, which must be demonstrated in action. The reforms that are being made to the army, including the dismissal of some corps commanders and the recruitment of a genuinely inclusive national guard, are hopeful signs for the future.
Thomas Docherty (Dunfermline and West Fife) (Lab)
4. What recent discussions he has had with his Libyan counterpart on bilateral training programmes.
The Secretary of State for Defence (Michael Fallon)
Given the deteriorating security situation in Libya, I have not had the chance to discuss training with my Libyan counterpart, but I continue to discuss the situation in Libya with our regional partners. General purpose force training was designed in 2013 at the request of the Libyan Government. The majority of trainees met the required standards but some did not. That was unacceptable and work is already under way on the report that the Prime Minister has commissioned.
Thomas Docherty
I am most grateful to the Secretary of State for that answer. As he has touched on, the Government’s much-heralded UK training programme collapsed after serious allegations about the behaviour of some of the individuals, but of course that does not mean we should abandon the moderate elements in Libya. Will the Secretary of State outline the practical steps he is taking to deal with what has happened, and when can we expect to see the details of the new programme, wherever that is carried out?
Michael Fallon
This training programme was organised by the United Kingdom at the request of the Libyan Government and a number of locations were considered for it. The most cost-effective turned out to be here in the UK, but I think it likely that we shall learn from this and that this kind of training is probably better provided and organised in the country itself, or very close to it. That is difficult at the moment given the security situation in Libya, but the hon. Gentleman is absolutely right that we need to work with all parties in Libya, particularly the moderates in all three factions in Libya, to secure a political settlement.
Mr Kevan Jones (North Durham) (Lab)
Three hundred and twenty-eight Libyan service personnel began their training in the UK in June 2014. Can the Secretary of State say how many remain in the country and how many have claimed asylum?
Michael Fallon
Three hundred and twenty-eight signed up originally. Some 100 left during the course of their training by agreement with the Libyan authorities. The remainder have all now been returned properly to Libya, apart from five who remain in custody and a very small handful who have claimed asylum.
Paul Flynn (Newport West) (Lab)
5. What recent progress has been made on the armed forces drawdown from Afghanistan.
The Minister for the Armed Forces (Mr Mark Francois)
On 26 October, our troops left Camp Bastion and, as confirmed by the Secretary of State, the final UK personnel left Kandahar airfield yesterday. All of our major equipment and matériel has now left the country. A few hundred UK personnel remain in Kabul, at the invitation of the Afghans, to train the Afghan army’s future officers and provide continuing support to Afghan security ministries. I share the Defence Secretary’s view that our armed forces can take great pride in the completion of their deployment to southern Afghanistan. Thanks to their courage and dedication, the country has the best possible chance of a stable future. Our departure from Kandahar airfield is therefore an historic milestone.
Paul Flynn
Is not the need for a swift start to an inquiry into the Afghan war proved by the fact that today is the fifth anniversary of the start of the Chilcot inquiry, which planned to report within 12 months? Do not the loved ones of the 179 of our brave soldiers who lost their lives in Iraq need to know the truth and why they were sent there in pursuit of non-existent weapons of mass destruction, and the relatives of the 451 casualties need to know why we went into Helmand in the belief that not a shot would be fired? Can the Minister give us an assurance that these reports are not being delayed by those who will be judged guilty by them?
Mr Francois
It was 453, and we honour them all. We have been learning tactical lessons through our operations in Afghanistan, such as better detection and defusing of IEDs. Of course we will want to look at broader lessons that can be learned from the campaign, but our focus has been on a successful draw-down and no decisions have been taken yet on any review. In making such a decision on a review, the Government will wish to learn how best any improvements could be made both quickly and practically.
Stephen Mosley (City of Chester) (Con)
I welcome the Government’s role in bringing together the London conference on Afghanistan, which is taking place on 4 December. Will the Minister briefly update the House on what the Government’s aims are? How hopeful are the Government of being successful at that conference?
Mr Francois
The conference will centre mainly on economic development, but it is worth recording that we should be very proud of what our armed forces have done. We have assisted in training the Afghans to deliver their own security and to protect their elections, which led to the first democratic transfer of power in Afghanistan’s history and the election of a national unity Government. It is now for the Afghans to determine their own future, with our ongoing support. They have done this because of the hard work of our troops. We have given them a chance; we must hope they will take it.
Keith Vaz (Leicester East) (Lab)
The position of Afghan interpreters is of great concern. Only a very few have been given the right to settle in this country. Can the Minister give us an assurance that the rest of them will be protected? After all, they sacrificed their lives on behalf of our country.
Mr Francois
We have two schemes in place—those who served alongside UK forces for substantial periods are eligible to receive financial packages, and those who served alongside us on the front line have, in some cases, the option of resettlement in the United Kingdom. So far about 350 have opted for the resettlement package. There is a separate intimidation policy which protects those locally employed civilians at risk as a result of their employment with Her Majesty’s Government. In the most extreme cases that includes the option to resettle in the United Kingdom. The processing of those cases is ongoing, but it is important to remember that there are two schemes working in parallel.
Angie Bray (Ealing Central and Acton) (Con)
6. What progress he has made on strengthening the armed forces covenant.
The Minister of State, Ministry of Defence (Anna Soubry)
In addition to doing the right thing by our war widows, I am pleased to report that 3,222 applications to the Forces Help to Buy scheme have been approved, and 1,864 service personnel have received funding totalling about £28 million.
Angie Bray
Does my hon. Friend agree that it is encouraging that all local authorities and a growing number of companies have signed up to support the covenant? Does she further agree that the challenge now is to get those commitments turned into action?
Anna Soubry
I could not agree more with my hon. Friend and I thank her for that supplementary question. I am in the process of writing to the chief executive and leader of every local authority because, as we know, most services are delivered locally. This is not about money. It is about putting into action everything that they have signed up to. There is a great deal of work that local MPs can do to make sure that local authorities have a forces champion and that they are delivering on the covenant.
Dan Jarvis (Barnsley Central) (Lab)
The Minister is well aware that my hon. Friend the Member for Wallasey (Ms Eagle) and I have been raising the case of the late Corporal McLaughlin, who lost his life in the Falklands in 1982. We recently discussed this matter during a constructive Westminster Hall debate. Yesterday The Mail on Sunday reported that the MOD will make rigorous and extensive inquiries into this case on behalf of his family. I welcome that, if it is correct. Can the Minister confirm that that is the case and say what form those inquiries will take?
Anna Soubry
I can confirm that. I pay tribute to Corporal McLaughlin, who was undoubtedly incredibly brave. What he did in the Falkland Islands was remarkable. I pay tribute to the debate that we had last week. I have met Lord Astor, who is the Minister responsible for medals. We had an exceptionally good meeting and there will indeed be such an investigation. We will report that accordingly.
Christopher Pincher (Tamworth) (Con)
20. I represent many constituents who work and do great service at DMS Whittington. They and I are fully aware which Government enshrined the armed forces covenant in law. Will my hon. Friend continue to build on the covenant to ensure that our armed forces get the best clinical staff and clinical support, as they deserve?
Anna Soubry
Absolutely. It was a great pleasure to go to DMS Whittington back in October. This is where we now have to do the work—it is going to be quite difficult, because we have to get the message out right across the NHS that there should be no disadvantage to those who have served and that, in special circumstances, they should receive special consideration, based on bereavement and particularly bad injuries. GPs and all health professionals must be alert to that. We all have a role to play in making sure that in the NHS we deliver on the armed forces covenant.
Gemma Doyle (West Dunbartonshire) (Lab/Co-op)
Two weeks ago I met a veteran in Preston who was injured in service and now uses a prosthetic leg. He is being treated in a regular NHS clinic, not in the specialist veterans prosthetics centre in Preston. He wants to know why, and so do I. The Minister reportedly says that her job is not demanding. When will she start doing it properly and make sure that there is some connection between what she says at the Dispatch Box and the treatment that our veterans actually get?
Anna Soubry
I assure the hon. Lady that I never said any such thing. It is an absolute pleasure and a great honour to do the job that I do, and I like to think that I do it with total commitment. I, too, want to know why that man has not received the treatment he says he should have received, and I should be grateful if the hon. Lady met me so that we can discuss why that is. I have no difficulty whatsoever in taking up every single case and asking the questions. It was a challenge I threw down to the BBC; I said, “I want to know the names and I want to help.” I am waiting to hear of any of those details. I look forward to the hon. Lady’s supplying me with the details relating to her constituent; we will get it sorted.
Sir Bob Russell (Colchester) (LD)
The armed forces covenant had all-party support, and we should remember that. The Minister referred to local government. Can she give an assurance that all Government Departments are signed up to the covenant, and particularly the Department of Health regarding general practitioners, veterans and hearing loss?
Anna Soubry
The hon. Gentleman makes an interesting and good point. He has asked a couple of questions in one, and I hope to answer them as fully as I can. It is delivery that is important, which means that all our Departments have to sign up to it, but of course, they can play a part in delivering the corporate covenant as well. However, there is more that we can do, and we have to get the message out across the NHS and through the devolved Administrations. If we all do that—if I may say, working together to ensure that—we can absolutely deliver on the covenant in the way we want.
Nic Dakin (Scunthorpe) (Lab)
Does the covenant offer an opportunity for local and national Government to respond to my constituent Sue MacLean’s campaign to ensure that veterans who pass away without anyone to deal with their affairs have something more than a pauper’s funeral to recognise their passing?
Anna Soubry
I am more than happy to discuss this with the hon. Gentleman. We know that our forces charities play such an incredibly important part in the welfare of and assistance given not only to those who serve, but to veterans. We have a fabulous system in this country of which we should be proud.
Bob Blackman (Harrow East) (Con)
7. What steps he is taking to promote service in the Army Reserve.
Alok Sharma (Reading West) (Con)
17. What steps he is taking to promote service in the Army Reserve.
The Parliamentary Under-Secretary of State for Defence (Mr Julian Brazier)
Being a reservist is a great way to experience adventure with new comrades, develop leadership qualities, learn new skills and get paid up to £3,000 in the first year, while maintaining a civilian life and day job. Funding of nearly £2 million has been delegated to fund regional and unit initiatives, as we believe that it is from the unit level that the greatest impetus for recruiting should come.
Bob Blackman
On Remembrance Sunday, I had the honour and privilege of meeting the commander of the reserve base in my constituency. He made it clear that capacity was available for new volunteers to come forward. What further steps does my hon. Friend suggest we can take to ensure that people locally can volunteer, should they wish to do so?
Mr Brazier
The short answer is that we have a very considerable advertising programme and a programme of engagement with employers—from the civil service down to small businesses and the special measures for them that I mentioned. The best advocates of all are serving reservists themselves, who need to go out and talk about the new opportunities. Examples include the platoon from my own constituency which, with a reserve officer commanding it, is going off to serve in Afghanistan from February onwards; the company that has just been to Cyprus; and all the other opportunities that are available in reserve service.
Alok Sharma
The fantastic 7 Rifles, based at Brock barracks in my constituency, will be encouraged by my hon. Friend’s answer, but could he please outline any specific incentives that employers are being offered to encourage their employees to become reservists? He has talked about the package for small businesses; can he provide a bit more detail, please?
Mr Brazier
I in fact served in the unit to which my hon. Friend refers when it was 4th Green Jackets. The £500 a month on deployment available to small businesses is over and above the full compensation package available to all employers when soldiers are away on operations. It is estimated that the training experience gained from an average period of mobilisation is worth up to £8,000 for a private, £14,000 for a sergeant and £18,000 for an officer. We have a full employer recognition scheme for supportive employers, and I myself have signed off a number of the dozens of organisations coming through, large and small, that want to be part of this exciting initiative.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
I have had the privilege of meeting reservists and potential reserve recruits up and down the country, including in Wales. Many potential recruits are deeply disturbed by the length of time they are having to wait after their initial expression of interest. What is the Minister’s estimate of the number who are dropping out of the reserve recruitment process as a result of the delays that are being experienced by so many people?
Mr Brazier
The hon. Gentleman is quite right to say that there was a very considerable glitch in the pipeline, but we have taken a number of steps to solve it. People can now be enlisted even if their medical documents have not caught up with them, and they can be enlisted pending their security checks once they have done the initial interview. We have also very considerably increased the capacity at the assessment centres so that people are not caught waiting for places. All those changes are making a considerable difference. I cannot give the hon. Gentleman a precise answer to his final question, but it is quite a number. I hope that that will not be the case in future, however, because the process has now speeded up so much.
Andrew Gwynne (Denton and Reddish) (Lab)
Reports by the National Audit Office, the Public Accounts Committee and the Defence Select Committee into Army 2020 have all said that Ministers have not done the basic work necessary to bring forward those reforms successfully. Poor planning data have been used, and assumptions have not been properly tested. What is the Minister going to do to put right this shambles?
Mr Brazier
The outline of the plan came from the original “Future Reserves 2020” review, which was chaired by the current Chief of the Defence Staff. The early blueprint was put together by General Sir Nick Carter, the Chief of the General Staff. The hon. Gentleman is partly right: there were some mistakes in the early stages relating to the way in which the recruiting pipeline was organised. Since those early glitches, we have made considerable changes—relating to meeting a common standard, for example—and recruits are now coming through in much greater numbers.
Mr James Gray (North Wiltshire) (Con)
9. What recent steps the UK has taken against ISIL in Iraq; and if he will make a statement.
The Secretary of State for Defence (Michael Fallon)
Since Parliament authorised military action in support of combat operations, the Royal Air Force has flown some 139 missions, gathering intelligence, providing surveillance and striking some 37 targets. We are already providing training and equipment to Kurdish forces and we are now preparing to provide further infantry, combat first aid, sharp-shooting and counter-improvised explosive device training.
Mr Gray
Does the Secretary of State agree that if our policy aim in Iraq is the successful containment of ISIL, we are indeed making a fantastic contribution towards that, but that if our aim is the degradation or destruction of ISIL, as we were originally told, that will occur only if there is significant political engagement by the Baghdad Government, particularly with Sunni-friendly tribes? Does he agree that, unless we have that wider political engagement, what we are doing is either unnecessary or not enough?
Michael Fallon
Let me confirm to my hon. Friend that it is indeed our aim to help the legitimate Government of Iraq to degrade and defeat ISIL in that country. I agree that the new Government of Iraq have to be inclusive, and they are: they represent Shi’as, Sunnis and Kurds. The new defence Minister is a Sunni, and I have emphasised to him the importance of demonstrating that the Iraqi national army is there for all the peoples of Iraq.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
May I remind the Secretary of State that, when I asked the Prime Minister about boots on the ground, he said that they would not be the boots of our own troops but other people’s boots? I have to tell the Secretary of State that, when representatives of my Kurdish community came to see me recently, they were angry that the Kurds fighting for us against ISIL were not being provided with enough machinery or weaponry.
Michael Fallon
I have been to Kurdistan and I was in a training ground close to Irbil where I saw for myself the Kurdish forces training on the heavy machine guns that we in this country had donated to them. We are following that up with the supply of other arms and equipment and, just as importantly, the training to go with it.
Mr David Jones (Clwyd West) (Con)
23. There have been recent successes for the Iraqi army and its associated militias of late, but those have been costly, both in lives and equipment. To what extent has the lost equipment been replaced and to what extent are the British Government assisting in that replacement?
Michael Fallon
There have been losses to the Iraqi and the Kurdish forces, which is an indication that they are taking the fight to ISIL, and it is important that we support them in that task. The Iraqi Defence Minister handed me a list of some of the gaps in their capabilities. We are now looking at that and seeing what can be supplied from our inventory, and we are encouraging other countries to do the same.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
10. When (a) HMS Queen Elizabeth and (b) HMS Prince of Wales will set out to sea under their own power for the first time.
The Parliamentary Under-Secretary of State for Defence (Mr Philip Dunne)
In September the Prime Minister announced that he would bring both carriers into service so that we always have one carrier available 100% of the time. Final equipment installation and system commissioning plans are being developed for both the aircraft carriers, so we expect HMS Queen Elizabeth to proceed to sea under her own power for the first time in 2017 and HMS Prince of Wales to do so in 2019.
Dr Julian Lewis (New Forest East) (Con)
When the carriers are happily operational there will still be one other gap at sea, which will be in marine patrol aircraft. Can the Minister share with the House any moves as to how that gap is going to be filled?
Mrs Mary Glindon (North Tyneside) (Lab)
12. What progress he has made on meeting the objectives of the Army 2020 programme; and if he will make a statement.
The Secretary of State for Defence (Michael Fallon)
The Army 2020 programme will deliver the flexible and adaptable force the nation needs to defeat the threats of the future, and it is on track. The Army is in the middle of the busiest period of change in the programme, which will see the majority of units completing their reorganisation next year. Despite this ambitious change, the Army remains fully deployable to support current operations, including those in west Africa.
Mrs Glindon
The Government significantly revised down their reserve target, but have made no equivalent changes to the programme of redundancies. With all the redundancies now complete but thousands of reserves still to be recruited, is the Army currently under strength and has Britain been left with a dangerous capability gap?
Michael Fallon
Absolutely not. This is a five-year programme to restructure our forces, as they shift from focusing on the campaign in Afghanistan to being an Army that is sufficiently adaptable to be able to meet any threat the nation faces in future. For example, we currently have some 1,350 troops on exercise in Poland and more than 850 deployed to tackle Ebola in west Africa.
Miss Anne McIntosh (Thirsk and Malton) (Con)
I congratulate the Secretary of State and the Department on what they have achieved towards this programme. Will he share with the House precisely how we are helping families who may want their loved ones to serve as reservists but have misgivings about what the implications will be?
Michael Fallon
I am happy to reassure my hon. Friend on that. It is very important that families understand the nature of service life, and there can be some misapprehension about the scale and length of reserve activity. If I may, I will ask the Under-Secretary of State for Defence, my hon. Friend the Member for Canterbury (Mr Brazier), the Minister responsible for the reserves, to meet her to see what further reassurance he can offer.
Sandra Osborne (Ayr, Carrick and Cumnock) (Lab)
15. What recent assessment he has made of the adequacy of resources available to process compensation claims for injured armed forces veterans.
The Minister of State, Ministry of Defence (Anna Soubry)
We have taken on extra staff, including five accredited doctors, to make sure that we process complaints and cases quickly. On the armed forces compensation scheme, I assure the hon. Lady that 100% of the cases of those with the most serious injuries are cleared within 20 days. We are making good progress; I have the full figures available to me, and I will share them with her.
Sandra Osborne
I thank the Minister for her reply. One of my constituents who was injured in Iraq tells me that she is caught up in a quagmire of red tape. She says that many of her queries go unanswered and that it takes years to settle claims. There is an online petition asking for an inquiry into the Veterans Agency in relation to those problems. What will the Minister do about it?
Anna Soubry
If the hon. Lady writes to me directly, I will be more than happy to take up her constituent’s difficulty and claim; I have no trouble with that. There have been difficulties, but good progress is being made. Unfortunately, some claims take much longer, because of their complexity and the changing nature of medical needs, diagnoses and prognoses. I can assure her that, in general, we are making good progress.
Craig Whittaker (Calder Valley) (Con)
18. What steps his Department is taking to assist those affected by the Ebola outbreak.
The Minister for the Armed Forces (Mr Mark Francois)
The Ministry of Defence is providing significant support to the Department for International Development-led effort to combat Ebola. We have deployed RFA Argus with three Merlin helicopters on board. We have also deployed more than 800 personnel for a range of tasks, including providing planning support to the Government of Sierra Leone; supervising the construction of six Ebola treatment units; training more than 3,000 local health care workers, which will increase to 4,000 by the end of the month, exceeding our original target; and manning a 12-bed treatment facility. I saw elements of all those initiatives when I visited Sierra Leone a fortnight ago. I am sure that the whole House will join me in commending our armed forces personnel who are working to combat this terrible disease.
Craig Whittaker
I join my right hon. Friend in praising our incredibly brave troops who are on the ground. Will he tell the House what contribution our reserves are making to this effort and how they are standing side by side with the full-time regulars?
Mr Francois
Two reservists are already working in the joint civilian military headquarters in Sierra Leone, and another two are soon to deploy to the region. In a month or so, we expect 18 reservist medics to deploy to Sierra Leone to work alongside their regular counterparts in the 12-bed Ebola treatment centre at Kerry Town. We should also pay tribute to those NHS personnel who have recently mobilised and travelled out to Sierra Leone to join that effort as well.
Diana Johnson (Kingston upon Hull North) (Lab)
A church in my constituency would like to send food parcels to Sierra Leone, the capital of which, Freetown, is twinned with Hull. However, it found the transport costs prohibitive, and asked me whether it could work with the Ministry of Defence to find ways of getting the food parcels over to Sierra Leone to help families who are affected by Ebola.
Mr Francois
I appreciate the offer of the hon. Lady’s church. The most constructive thing I can say is that if she wants to write or e-mail me with the details, we will see what can be done to take up that kind offer.
Mr Jim Cunningham (Coventry South) (Lab)
T1. If he will make a statement on his departmental responsibilities.
The Secretary of State for Defence (Michael Fallon)
My immediate priorities remain our current operations in Afghanistan and against ISIL and Ebola as well as the commitments reached at the NATO summit and the delivery of Future Force 2020. I want to build up our reserve forces and invest in the equipment that our armed forces need to keep Britain safe.
Mr Cunningham
Has the Secretary of State noted the comments made today by the hon. Member for Mid Worcestershire (Sir Peter Luff) who said that he is very disappointed
“that there appears to be no public dialogue about the Strategic Defence and Security Review in advance this time round?”
Why are the Government so reluctant to have an open and transparent debate about the future of Britain’s defence?
Michael Fallon
There certainly will be a public dialogue and debate about the security review, but the review is planned for next year, and it would be premature to start it before then.
Stephen Mosley (City of Chester) (Con)
T2. The number of cyber-attacks against computer systems in the UK are increasing every year, and it is suspected that foreign Governments may well be involved in some of those attacks. What action is my right hon. Friend taking to deter such attacks, and what is being done to protect our critical infrastructure?
The Minister for the Armed Forces (Mr Mark Francois)
The Ministry of Defence takes the cyber-threat very seriously. Indeed, I visited one of our joint cyber-units only last week. The priority is to keep our networks and systems defended and operational. Since 2010, we have invested several hundred million pounds to help maintain the UK’s cyber-security and cyber-defences. In July, the Prime Minister announced a package of investment for our armed forces, which included a further £75 million over four years to help maintain a leading edge capability in this vital field.
Alison Seabeck (Plymouth, Moor View) (Lab)
Opposition Members were pleased that the Secretary of State took the opportunity, following articles that suggested the opposite, to confirm that the Type 26 will be built in Scotland and not overseas. However, he did not take the opportunity to allay fears about the slippage in the programme, with the approval date going beyond mid-2015. Will he do so today?
Michael Fallon
Let me take the opportunity absolutely to reinforce the point the hon. Lady makes. UK warships are built only in UK yards. I do not think I can make the position on the Clyde any clearer, and I hope she will take some reassurance from that. I am aware of what she says about the timetable and we are addressing that. I hope that we can make some early decisions, at least on some of the longer lead items that feed into the Type 26 programme, in the very near future.
David Mowat (Warrington South) (Con)
T4. We are the only country in the world to pay legal aid to foreign nationals to sue our own soldiers. The MOD spends many millions more defending these claims. Is there anything more that the Secretary of State can do to divert these millions of pounds away from the legal profession on to the equipment budget?
The Minister of State, Ministry of Defence (Anna Soubry)
I agree with some of the sentiments expressed by my hon. Friend. There is no place, in my view, for European human rights law to come into any of this. We have a Geneva convention and we have good strong international law that should determine these matters. I am concerned, however, about how some solicitors act. All solicitors, like those in all professions, are guided by strict codes of conduct and if anyone thinks that a firm of solicitors or an individual is not abiding by that code, they should absolutely report them to their professional body so that swift action is taken. They should at all times behave with complete integrity.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
T3. Official figures show that the Government granted 68 export licences for nearly £7 million-worth of military-use items to be sent to Israel between January and June of this year. What discussions did the Defence Secretary have with the Business Secretary about those licences and why did the Government refuse to suspend them during the offensive on Gaza this summer, when they clearly broke the guiding principle of being responsible exports?
The Parliamentary Under-Secretary of State for Defence (Mr Philip Dunne)
The Government were concerned to look at any export licences that had been granted and undertook an initial review in August. We launched another review earlier this month and when it is available we will respond to the hon. Lady.
John Glen (Salisbury) (Con)
T6. I sincerely welcome the Government’s recent decision to grant pensions to forces widows who remarry. However, there are still 126 divorced spouses, including one of my constituents, who are denied access to their anticipated pensions due to an administrative error by an agency of the Ministry of Defence. In the light of the recent decision, will the Minister reconsider these cases and see what can be done across government to put this right?
Anna Soubry
The short answer is yes. I pay tribute to my hon. Friend for the work that he has done on his constituent’s case. He can be assured that I am aware of the ruling. Consideration is being given by lawyers from both the MOD and the Department for Work and Pensions. I am very happy to continue to work with him and to help his constituent.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
T5. Is the Secretary of State not concerned about what has happened in Georgia and Mr Putin’s record of expansion towards the rest of Europe? Does that not worry him? This is a time when the Government are weak on the European Union, in their relationships across Europe and in their partnerships in NATO. Are they not the worst Government? They are allowing Britain to sleep—[Interruption.] They do not like to hear it, Mr Speaker. They are allowing Britain to sleep and they are a Government who remind me of the age of Neville Chamberlain.
Michael Fallon
There was a reference earlier to Captain Mainwaring and I think the answer to the hon. Gentleman is, “Stupid boy.” That is not the position. We are a predominant member of NATO and I am as concerned as anybody by the actions of President Putin in destabilising eastern Ukraine and annexing Crimea. The northern members of NATO discussed that last week in the Oslo meeting and we are determined to continue a programme of large-scale exercises involving multiple countries in the territories of the eastern members of NATO precisely to provide reassurance to those countries and to deter Russia from any further aggression.
Bob Blackman (Harrow East) (Con)
T7. My hon. Friend recently signed an £800 million contract for the development of a state-of-the-art radar system for the Eurofighter Typhoon. What are the implications of that decision for the protection of our skies and for British jobs?
Mr Dunne
The contract signed last week in Edinburgh is a major step forward in developing radar capability for the Eurofighter Typhoon. It will increase operational effectiveness by simultaneously tracking air and ground targets at range. It also represents a significant investment in the UK defence industry, sustaining jobs in BAE Systems in Lancashire and in the whole radar supply chain, including some 500 jobs in Scotland, half of which are for highly skilled engineers, which would not have happened in the same way had Scotland voted to leave the United Kingdom.
Barry Gardiner (Brent North) (Lab)
The construction costs for the second aircraft carrier have been identified within the MOD equipment budget. However, Government Front Benchers have been reluctant to identify the operational costs. As well as having a second carrier, would it not be a good idea to be able to put it into operation? Will they take this opportunity to clarify the position?
Mr Dunne
I am pleased that the hon. Gentleman has given me the opportunity to explain once again to the House that it is this Government who have decided to make both carriers operational, unlike the previous Government, who were going to leave the second one tied up. The Ministry of Defence is now conducting a detailed analysis to develop how best to utilise the capability, including man power and aircraft numbers, which will become clear as part of the strategic defence and security review 2015.
Mr John Baron (Basildon and Billericay) (Con)
T8. In addition to Army Reserve numbers going backwards over the past 18 months, recent answers to written parliamentary questions show that there has been no improvement in the age profile of the existing Territorial Army/Reserve, with the average age of the infantryman stuck at 35 and the average age of senior non-commissioned officers and junior officers in the 40s. Why are the Government not tackling that?
The Parliamentary Under-Secretary of State for Defence (Mr Julian Brazier)
I am grateful to my hon. and gallant Friend for his question. On his premise, I remind him that over the past six months numbers have been moving firmly in the right direction as a result of the upturn in recruiting. On his question about age, I make no apology for a reserve force recruiting some older people, especially ex-regulars, who bring much experience. Fitness is a major requirement for all those people, and it is this Government who over the past few years have re-established a common standard for fitness across regulars and reservists.
Angus Robertson (Moray) (SNP)
In the 2010 SDSR the UK Government committed to reducing the number of launch tubes from 12 to eight. A recent opinion poll issued by the US navy states that the American firm General Dynamics will build 12 Trident missile launch tubes for a successor UK submarine, something that has not yet been approved by this Parliament. Is that true? If so, why has the House not been informed, and why do we need to learn about it from US navy press releases?
Martin Horwood (Cheltenham) (LD)
With 1,000 people killed since the Minsk accord in Ukraine, with up to 1 million displaced and with NATO countries such as Lithuania looking as though they might be prepared to be more deeply involved, can we be told what the latest news is from the European monitoring team on the state of the ceasefire and the risk of escalation involving NATO countries?
Michael Fallon
I will ensure that the Foreign Office updates my hon. Friend on the latest status of the monitoring. The best answer we can give is to make it absolutely clear that the sanctions will stay in place and, if there is any further destabilisation of Ukraine, they should be increased. In the meantime, it is important that all NATO members keep up their defence spending and commit to the very high readiness taskforce that was agreed at the NATO summit.
Dr Eilidh Whiteford (Banff and Buchan) (SNP)
I have pressed Ministers previously about the increase in pension age for MOD police and firefighters, who merely want parity with their civilian counterparts. Will Ministers look at this again given the very high costs associated with redeploying older workers and people having to be retired early on heath grounds?
Anna Soubry
I am grateful to the hon. Lady for her question. Negotiations continue, but the MOD Police Federation takes the view that it is looking for retirement at 65. It is not quite as simple as straight parity with the civilian forces, but we continue to negotiate with everyone.
Bob Stewart (Beckenham) (Con)
As a friend of the Forces Children’s Trust, which you, Mr Speaker, very kindly host in your apartments every year, may I ask the Secretary of State whether the children of service widows will have a guaranteed pension until the age of 18 despite the fact that their mothers may have remarried?
Anna Soubry
I do not know if I can give an answer to that; it is a new one on me, if I may say so. No doubt my hon. Friend will want to discuss it further with me, and I am more than happy to do so. Again, this is where the power of the covenant comes in, because if people can establish a disadvantage, then the covenant can deliver justice.
Mr Frank Roy (Motherwell and Wishaw) (Lab)
Today in Craigneuk in my constituency, the first sod will be cut on the building of new homes for ex-service personnel. Will the Minister join me in congratulating all the local volunteers who have been working so hard to ensure that this much-needed project goes ahead?
Anna Soubry
Absolutely. I congratulate my hon. Friend—I hope he does not mind me calling him that; he knows exactly what I mean, because he is a friend in this regard—on the work that he is doing to support such great schemes. These schemes are doing remarkably good work, not only in delivering better homes but, invariably, enabling the veterans who get involved to learn skills and helping those who have been damaged in any way to restore themselves and get back into the world of work.
Mr Andrew Robathan (South Leicestershire) (Con)
I read in the media that the greatest threat to the United Kingdom is considered to be so-called Islamic State and jihadism. While I am not a great fan of deploying troops to Syria, does the Secretary of State believe that NATO, the western powers or the coalition in Iraq—whomsoever—should be reassessing the help they are giving in Syria and in Iraq to defeat Islamic State?
Michael Fallon
The Prime Minister has made it clear that ISIL can only be defeated both in Iraq and in Syria. There are now some 50 countries involved in a huge international and regional effort to support the Iraqi and Kurdish forces in their action against ISIL in Iraq, but we also have to consider what more can be done in Syria. We support the United States in its strike missions in Syria, and we are looking at what more can be done to train moderate Syrian elements outside Syria itself.
Dan Jarvis (Barnsley Central) (Lab)
May I commend to Ministers the film “Kajaki”? It is a brutal but brilliant account of soldiering on the front line in Afghanistan, and, as such, should be seen by all in this House. Will the Secretary of State consider going to see the film?
Michael Fallon
I understand the importance of the film, which conveys very dramatically the very difficult circumstances that our forces had to overcome. I will certainly take the hon. Gentleman up on that suggestion.
Mr Speaker
Order. We are short of time—indeed, out of time—but we must accommodate Jackie Doyle-Price, who has been standing for a long time.
Jackie Doyle-Price (Thurrock) (Con)
Thank you, Mr Speaker. As we approach the 200th anniversary of Gurkha service in the British Army, will my hon. Friend look with sympathy on the recommendations made by the all-party group on Gurkha welfare so that we do right by these veterans of the British Army too?
Anna Soubry
A short yes is the answer to that, but I also pay tribute to my hon. Friend and her group for the fantastic work that they have done and the excellent report they produced.
Mr Speaker
I do not like seeing patient colleagues disappointed, so let us speed on. I call Mr Alan Reid.
Mr Alan Reid (Argyll and Bute) (LD)
Thank you, Mr Speaker. I was pleased to hear the Minister say that negotiations with defence police and firefighters are still ongoing, but time is running out because the Public Service Pensions Act 2013 comes into effect on 1 April. Will my hon. Friend ensure that these negotiations are concluded to the satisfaction of both sides well before then?
Anna Soubry
Yes, we need to make good progress and we need to make it quickly.
Oliver Colvile (Plymouth, Sutton and Devonport) (Con)
What are the base-porting arrangements for the remaining Trafalgar class submarines?
Michael Fallon
My hon. Friend has been pressing me on this issue for some time and I can confirm today that while the Clyde will become our main submarine base from 2020, HMS Torbay and HMS Trenchant, which are both due to decommission shortly, will remain at Devonport in order to minimise disruption to their crews and the crews’ families.
Mr Speaker
I am taking a relaxed attitude, the House should know, because there is protected time for subsequent business and I cannot bear to see colleagues disappointed unnecessarily.
Crispin Blunt (Reigate) (Con)
How much has been spent on advertising to support the current reserve recruitment, and how much is budgeted to be spent on advertising in future?
Mr Brazier
I shall have to write to my hon. Friend in order to give him a full answer.
Sir Peter Luff (Mid Worcestershire) (Con)
Thank you, Mr Speaker, for this unexpected boon. As he prepares for next year’s SDSR, may I commend my right hon. Friend the Defence Secretary on the merits of an open and inclusive process that maximises the involvement of the public, Parliament, industry and academics?
Michael Fallon
I certainly welcome that suggestion. I think there should be a wide-ranging process. The point I made earlier was that we cannot start the review now in 2014—it is scheduled for 2015—but it is important, obviously, that we consult widely when it gets under way, not least with our international allies.
Dr Julian Lewis (New Forest East) (Con)
In welcoming the announcement about war widows, may I ask whether it is the case that a war widow who lost her widow’s pension on remarriage but who has subsequently become single again is eligible to have it reinstated and never taken away under any circumstances thereafter?
Anna Soubry
I believe the answer is yes, but I have to be cautious and say that if I am wrong I will, of course, inform both the House and my hon. Friend.
Points of Order
(10 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Kevan Jones (North Durham) (Lab)
On a point of order, Mr Speaker. On 4 November, I tabled a written question to the Home Secretary, asking how many Libyan service personnel who received training in the UK had claimed asylum. I received a reply on 17 November saying that it was not the policy of the Home Office, hiding behind the Data Protection Act, to disclose personal information. On 18 November, I tabled a similar question, only to be told that it would not be possible to answer the question in the time available. Today the Defence Secretary has confirmed that a handful of personnel have actually claimed asylum. Does he think that the Home Office’s replies are acceptable, and how would he suggest that we go about getting an answer with the actual numbers who have claimed asylum?
Mr Speaker
Of course, that is not a matter for me. When the hon. Gentleman asks whether “he” can advise on this or that, I assume he means me. I am sure the hon. Gentleman does not expect the Secretary of State to criticise one of his ministerial colleagues—the Secretary of State will not do that. What I would say to the hon. Gentleman, in so far as he requires my protection or advice, is that he needs to pursue his usual approach, which is to be a busy bee. He should table questions and, in a legitimate, parliamentary sense, nag. In my experience of the hon. Gentleman, he requires no encouragement to do just that.
Dr Julian Huppert (Cambridge) (LD)
On a point of order, Mr Speaker. In exchanges on Friday, the shadow Health Secretary, the right hon. Member for Leigh (Andy Burnham), told me with regard to the privatisation of Hinchingbrooke hospital in Cambridgeshire that
“when the previous Government left office there were three bidders, one of which was an NHS provider, so he really needs to get his facts straight”—[Official Report, 21 November 2014; Vol. 588, c. 575.]
I have checked the facts with the National Audit Office, the strategic health authority at the time and the press, and the three bidders still in place when the shadow Health Secretary left office were Circle, Ramsay Health Care and Serco, which are hardly NHS providers. Indeed, none of the final five was. Could you provide an opportunity, Mr Speaker, for the shadow Health Secretary to correct the record so as to avoid misleading the House on this important issue?
Mr Speaker
I am grateful to the hon. Gentleman for his point of order. I hope he will understand if I do not wish to intrude into what is becoming a protracted debate between him and the shadow Health Secretary, who responded by e-mail to the hon. Gentleman at 1.46 pm and 23 seconds today. I just have a sense that there is an ongoing debate and dispute between the two of them and it would be unseemly for me to intrude in that continuing argument. We will leave it there.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
On a point of order, Mr Speaker. I hope that you will not consider this a “Stupid boy” point of order, but something on which you can give me some advice. Fairly recently, I have noticed more and more references made to right hon. and gallant or hon. and gallant Members, and I have tried to find out who is and who is not gallant. I served in the cadet force at school, but I am told that even if a Member without a commission—an ordinary soldier—had won the Victoria Cross, he would still not be called “gallant” because it applies only to officers. Will you clear up who is and who is not gallant in that sense?
Mr Speaker
There is no difference between commissioned and non-commissioned for this purpose. Beyond that, I would tell the hon. Gentleman, to whom I would never intend any discourtesy, that the decision whether to use the term—the newly appointed Under-Secretary of State for Defence, the hon. Member for Canterbury (Mr Brazier), chooses to do so—is purely a matter of taste. If memory serves, the former Minister, the right hon. Member for South Leicestershire (Mr Robathan), was himself partial to using the term, and I think it has been used in relation to him as well. It is a matter of parliamentary taste. I am sure that we all intend to show good taste to the hon. Member for Huddersfield (Mr Sheerman), as he is now in his 35th year of parliamentary service.
Dr Julian Lewis (New Forest East) (Con)
On a point of order, Mr Speaker. May I ask, while members of the Defence team are still in their places, whether you have been informed that we are in sight of having the statement or debate on the ending of the campaign in Afghanistan, and the lessons to be drawn from that, which we were promised a little while ago?
Mr Speaker
I was not aware that we were, but the nod of the Secretary of State’s head perhaps provides the hon. Gentleman and the House with the succour that he sought.
Mr Andrew Robathan (South Leicestershire) (Con)
On a point of order, Mr Speaker. You very kindly referred to me as potentially gallant—I am not sure whether that is right—but I do not think that we ought to take this practice too far. I am sure you would agree, Sir, that we should not extend it to former members of cadet forces.
Mr Speaker
Something tells me, innocent soul that I am, that the right hon. Gentleman, with that rather puckish grin, was having a bit of a dig.
Mr Speaker
I will just say that the right hon. Gentleman has made his point with his usual force and eloquence, and it is on the record.
Sir Gerald Howarth (Aldershot) (Con)
Further to that point of order, Mr Speaker.
Mr Winnick
Further to that point of order, Mr Speaker. May I say, with due modesty—[Laughter.] Characteristic modesty, should I say? Despite my two years’ national service, I do not wish to be referred to as “gallant”?
Mr Speaker
The hon. Gentleman has never sought any particular acknowledgment. I do not want to embarrass him, because this is something of a tribute to him, but he is the only Member of the House I have ever come across who has phoned the organisers of a parliamentary awards competition to protest at his inclusion on the shortlist and to demand his removal. He certainly cannot be accused of seeking prizes or special recognition, and I respect that.
Sir Gerald Howarth
Further to that point of order, Mr Speaker. While the traditional practice of referring to those who have served as gallant Members may have fallen into desuetude, surely at this present time—when the nation has been committed to military options, and there is seriously enhanced concern for the well-being of members of our armed forces—there is a purpose in maintaining the tradition. It indicates that many right hon. and hon. Members across the House—I see that the hon. Member for Barnsley Central (Dan Jarvis), in particular, is in his place—have served themselves, which sends out a message to the nation. I am a traditionalist, but surely tradition serves the House and the nation in this case.
Mr Speaker
Members may agree with the hon. Gentleman, which is why they deploy the term. I certainly could not disagree with the latter part of the point of order. Indeed, the word “traditional” could have been invented to describe him, and he is none the worse for that. I thank him for what he has said.
The Minister for the Armed Forces (Mr Mark Francois)
Further to that point of order, Mr Speaker.
Mr Francois
This topic allows me to mention to you, Mr Speaker, that just fewer than 60 Members of this House have served in the armed forces at some point, either in the regulars or the reserves. That is almost one in 10 Members of the House of Commons. We hold a service every year for veteran MPs, so that they have an opportunity to pay tribute to the fallen. We had one recently, which some 30 colleagues attended. I apologise to the hon. Member for Walsall North (Mr Winnick) because he was not on the list. We will rectify that and invite him next year. I very much hope that he will be minded to come.
Diana Johnson (Kingston upon Hull North) (Lab)
On a point of order, Mr Speaker. Is it in order that the Prime Minister has made an announcement to the Australian Parliament about a future counter-terrorism Bill and the Home Secretary has, this morning, made a detailed speech about the contents of that Bill before it has been announced to this House?
Mr Speaker
I have not yet read the Home Secretary’s speech, although that delight awaits me ere long. I feel sure that if a significant policy announcement is contained therein, she will want to communicate it to the House sooner rather than later. If, for some reason, that does not happen—it seems to me inconceivable that it will not—the hon. Lady is experienced in the use of parliamentary devices to ensure that Ministers are held to account in a timely way on the Floor of the House.
We will leave it there. I am grateful to colleagues for their very full appetite for points of order today.
Recall of MPs Bill
(10 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
18:05 - The House divided: - Ayes: 64 / Noes: 271 - Question accordingly negatived.
18:18 - The House divided: - Ayes: 204 / Noes: 125 - Question accordingly agreed to.
18:29 - The House divided: - Ayes: 119 / Noes: 193 - Question accordingly negatived.
18:41 - The House divided: - Ayes: 281 / Noes: 2 - Question accordingly agreed to.
18:53 - The House divided: - Ayes: 236 / Noes: 65 - Question accordingly agreed to.
Dr Julian Huppert (Cambridge) (LD)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
New clause 3—Recall condition: consideration by election court—
‘(1) This section applies when a petition alleging conduct by an MP which constitutes misconduct in the office of member of parliament has been received by an election court as properly presented under section (The third recall condition: method of petitioning an election court).
(2) The court may consider such conduct wherever it is committed, and whether or not it is committed directly in carrying out the office of member of parliament.
(3) The court must examine evidence adduced of misconduct, and any evidence produced in rebuttal by the MP.
(4) The court must consider whether, on the basis of such evidence, it is reasonable to believe that the MP has misconducted himself or herself, to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.
(5) If the court considers, on the basis of such evidence, that the allegation of misconduct is—
(a) not supported by the evidence; or
(b) trivial or vexatious in nature; or
(c) brought for party political purposes;
then the court must dismiss the petition.
(6) If the decision of the court is that the alleged behaviour is such as to satisfy subsection (4), then it must notify The Speaker that it has so determined.
(7) Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.’
This new Clause establishes the process by which constituents’ allegations of improper behaviour by an MP may be considered and adjudged. It provides for fair and due process and seeks to avoid conflict with the provisions of the Bill of Rights.
New clause 4—MP’s pledge—
‘(1) Each MP shall at the start of each Parliament subscribe to the Pledge set out in this section.
(2) An MP subscribing to the Pledge may do so—
(a) in writing; or
(b) in person at the same time as taking the Oath required by the Parliamentary Oaths Act 1866.
(3) The Pledge shall be—
“I solemnly undertake that, in the course of my duties as a Member of Parliament and service to my constituency, I shall act in adherence with the Code of Conduct for Members of Parliament and uphold the standards of public life with selflessness, integrity, objectivity, accountability, openness, honesty and leadership.”’
New clause 5—Complaint of breach of MP’s pledge—
‘(1) This section applies when persons complain that an MP has acted in a way that represents a significant breach of the MP’s Pledge as set out in section (MP’s Pledge).
(2) A petition containing a complaint under subsection (1) may be presented to the electoral court if signed by at least five hundred persons on the electoral roll within the constituency of the MP named in the petition.
(3) The Secretary of State may by regulation prescribe—
(a) the form, content and process relating to the submission of such petitions; and
(b) the manner of constitution of an electoral court to adjudicate.
(4) The electoral court must examine evidence submitted of the alleged breach of the MP’s Pledge, and any evidence produced in rebuttal by the MP.
(5) The court must consider whether, on the balance of evidence, it is reasonable to believe that the MP has acted in a way that amounts to a significant breach of the MP’s Pledge, without reasonable excuse or justification.
(6) If the court finds in favour of the petitioners, then it must notify the Speaker, and the MP named in the petition, that it has so determined.
(7) Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”’
Amendment 1, in clause 1, page 1, line 4, leave out “the first or second” and insert “a”.
This amendment provides for a further recall condition but is neutral if no such condition or conditions are agreed to.
Amendment 14, page 1, line 18, leave out subsection (4) and insert—
‘(4) The second recall condition is that, following on from a report from the Committee on Standards, the House of Commons order the suspension of the MP from the service of the House for a specified period of requisite length.
(4A) A specified period is of requisite length for the purposes of subsection (4) if—
(a) where the period is expressed as a number of sitting days, the period specified is of at least 10 sitting days, or
(b) in any other case, the period specified (however expressed) is a period of at least 14 days.’
Amendment 2, page 2, line 9, at end insert—
‘( ) A further recall condition (misconduct in the office of member of parliament) is that—
(a) an election court has considered a petition claiming that the MP has committed an act which constitutes misconduct in the office of member of parliament; and
(b) the court has determined, prima facie, that it is reasonable to believe such an act may have been committed; and
(c) the court has notified The Speaker of its decision under subsection (b).’
This amendment provides for a further recall condition.
Amendment 15, page 2, line 9, at end insert—
‘( ) A further recall condition (misconduct in public office) is that—
(a) the MP has, after becoming an MP, been convicted of the common law offence of misconduct in public office, and
(b) the appeal period expires without the conviction having been overturned on appeal.
Sections 2 to 4 contain more about this recall condition.’
This amendment provides for a further recall condition.
Amendment 24, page 2, line 9, at end insert—
‘( ) A further recall condition (section 10) is that—
(a) the MP has, after becoming an MP, been convicted of an offence under section 10 of the Parliamentary Standards Act 2009 (offence of providing false or misleading information for allowances claims);
(b) the appeal period expires without the conviction having been overturned on appeal.
Sections 2 to 4 contain more about this recall condition.’
This amendment provides for a further recall condition.
Amendment 34, page 2, line 9, at end insert—
‘( ) A further recall condition is that the MP has been adjudged by an election court (as set out in section (Complaint of breach of MP’s Pledge)) to have acted in a way that is contrary to the MP’s Pledge as set out in section (MP’s Pledge)’.
This amendment provides for a further recall condition.
Amendment 16, in clause 2, page 2, line 18, leave out “The reference in” and insert “In”.
This amendment and amendment 17 ensure that a recall petition may be triggered by an offence committed before the day Clause 1 comes into force where an MP is convicted of the offence on or after that day and after he or she last became an MP.
Amendment 25, page 2, line 18, leave out “(the first recall condition)” and insert
“and ( ) (the first and section 10 recall conditions)”.
This amendment ensures that the provision made in Clause 2 in relation to the first recall condition regarding offences committed before, and convictions on or after, the commencement of Clause 1 also applies to the section 10 recall condition.
Amendment 17, page 2, line 18, leave out from “to an offence” to the end of the subsection and insert—
‘(a) the reference to an offence includes an offence committed before the MP became an MP and an offence committed before the day on which section 1 comes into force, but
(b) the reference to an MP being convicted of an offence is only to an MP being convicted of an offence on or after that day.’
Amendment 26, page 2, line 21, at end insert—
‘( ) The reference in section 1(3) to an offence does not include an offence mentioned in section 1(5A).’
Amendment 27, in clause 3, page 2, line 43, leave out “(the first recall condition)” and insert “and (5A) (the first and section 10 recall conditions)”.
Amendment 28, page 3, line 3, leave out subsections (2) to (4) and insert—
‘( ) “Relevant appeal”, in relation to the first recall condition, means—
(a) an appeal that—
(i) is in respect of the conviction, sentence or order mentioned in section 1(3), and
(ii) is brought within the usual period, or
(b) an appeal that—
(i) is in respect of the determination of an appeal that was itself a relevant appeal, and
(ii) is brought within the usual period.
( ) “Relevant appeal”, in relation to the section 10 recall condition, means—
(a) an appeal that—
(i) is in respect of the conviction mentioned in section 1(5A) or of any sentence or order imposed in relation to that conviction, and
(ii) is brought within the usual period, or
(b) an appeal that—
(i) is in respect of the determination of an appeal that was itself a relevant appeal, and
(ii) is brought within the usual period.’
Amendment 29, in clause 4, page 3, line 34, after second “MP” insert—
‘(a) ‘.
Amendment 30, page 3, line 36, at end insert
‘, or
(b) is convicted of an offence mentioned in section 1( ) (relating to the section 10 recall condition) within the meaning of that provision (see section 2).’
Amendment 31, page 3, line 37, after “order”, insert “in relation to the conviction”.
Amendment 32, page 4, line 4, leave out paragraph (b) and insert—
‘(b) that—
(i) in a case within subsection (1)(a), the conviction, sentence or order has, or has not, been overturned on appeal;
(ii) in a case within subsection (1)(b), the conviction has, or has not, been overturned on appeal, and’.
Amendment 3, in clause 5, page 4, line 16, leave out “the first or second” and insert “a”.
This amendment provides for a further recall condition.
Amendment 18, page 4, line 16, leave out “or second” and insert “, second or section 10”.
This amendment is consequential to the agreement to the section 10 recall condition.
Amendment 19, page 4, line 43, after “first”, insert “or section 10”.
Amendment 4, in clause 9, page 6, line 36, after “10 per cent.”, insert
‘in a case in which either the first or second recall conditions have been met, and 15 per cent. in a case in which the misconduct in the office of member of parliament recall condition has been met’.
Amendment 5, page 6, line 38, after “10 per cent.”, insert
‘in a case in which either the first or second recall conditions have been met, and 15 per cent. in a case in which the misconduct in the office of member of parliament recall condition has been met’.
This amendment increases the support required for a valid misconduct in the office of member of parliament recall petition, following the steps proposed in New Clauses (method of petitioning an election court) and (consideration by election court), due to the “reasonable to believe” test to be used by the election court.
Amendment 20, in clause 13, page 9, line 10, at end insert—
‘( ) The fourth condition is that, in a case in which the section 10 recall condition was met in relation to the MP, the conviction in question is overturned on appeal.’
Amendment 6, page 9, line 10, at end insert—
‘( ) The fourth condition is that, in a case in which a misconduct recall condition was met in relation to the MP, the MP is subsequently charged with an offence, the penalty for which may be imprisonment or an order to be imprisoned or detained, for the conduct, or any part of the conduct, stated in the petition to the electoral court.’
This amendment seeks to reduce the risk of double jeopardy.
Amendment 21, page 9, line 13, leave out “three”.
Amendment 7, in clause 14, page 9, line 41, leave out “at least 10 per cent of the number of eligible registered electors” and insert—
‘(a) in a case in which either the first or second recall condition is met, at least 10 per cent. of the number of eligible electors; and
(b) in a case in which the [misconduct in the office of Member of Parliament] recall condition is met, at least 15 per cent. of the number of eligible electors.’
This amendment increases the support required for a valid (misconduct in the office of Member of Parliament) recall petition, following the steps proposed in New Clauses (method of petitioning an election court) and (consideration by election court), due to the “reasonable to believe” test to be used by the election court.
Amendment 8, in clause 22, page 14, line 29, at end insert—
‘“misconduct in the office of Member of Parliament” means conduct by an MP, whether or not it is committed directly in carrying out the office of member of parliament, which is misconduct to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.’
This amendment establishes an offence of improper behaviour on the part of an MP, using the definition of the English common law offence “misconduct in public office” as its starting point.
Amendment 22, page 14, line 33, after ‘appeal”’, insert
‘, in relation to the first recall condition,’.
Dr Huppert
May I apologise to the House for the absence of my hon. Friend the Member for Somerton and Frome (Mr Heath)—not yet a right hon. Member, despite the praise that was heaped on him in Committee—who is currently acting as our trade envoy in Africa and is unable to be here? My apology is that Members will have to put up with me arguing the case, rather than him.
This is an important Bill. It delivers on the manifesto commitments of most of the parties in this House in some way or another. It means that it will be possible for MPs who are sent to prison to be recalled, no matter how long they are in prison, and that MPs who are suspended by this House for long enough may also be subject to recall.
However, the Bill has rightly been criticised for allowing MPs to mark their own homework, as it were. Unless there is a jail sentence—a threshold that was not mentioned in the manifesto commitments of any party in this House—it is ultimately us who will have to decide whether someone has behaved so badly that they should be subject to recall.
The hon. Member for Richmond Park (Zac Goldsmith) —it is good to see him in his place—proposed one solution to that problem in Committee, but many of us felt that it would have caused more problems than it solved. There was a concern that it might lead to trivial or vexatious complaints, or complaints based on political or policy differences, rather than complaints about genuine misconduct. There was extensive debate about that in Committee.
My hon. Friend the Member for Somerton and Frome and I proposed another route, by which a court would assess whether there were grounds reasonably to believe that an MP could have committed a common law offence of misconduct in public office. If there were, that would lead to the same recall process as the Government have described for those who are suspended or sentenced to jail. That amendment was tricky to write. We were clear in Committee that there were technical challenges in writing it. We therefore did not press it to a vote at that time.
We were encouraged by the cross-party support for our proposal. For example, the Opposition spokesman, the hon. Member for Liverpool, West Derby (Stephen Twigg), said that he was drawn to our ideas and that:
“In principle, giving the power to the people to bring a case against their MP before the election court is a good idea.”—[Official Report, 27 October 2014; Vol. 587, c. 134.]
The hon. Member for Dunfermline and West Fife (Thomas Docherty) said that our proposals
“have appeal because they enable a public trigger that is still based around wrongdoing.”—[Official Report, 27 October 2014; Vol. 587, c. 77.]
It is good to see both Opposition spokesmen here.
We also had support from the Government. The Minister of State, Cabinet Office, the right hon. Member for Tunbridge Wells (Greg Clark), said that he had
“a great deal of sympathy with the thinking behind the amendments”. —[Official Report, 27 October 2014; Vol. 587, c. 98.]
The Parliamentary Secretary, Cabinet Office, the hon. Member for East Surrey (Mr Gyimah), praised it as an “interesting idea” that should be returned to on Report. That is what we are doing now.
I had hoped that the Government would take over the work of doing the drafting and that we would now be looking at Government amendments that had all the benefit of parliamentary counsel’s detailed advice. Sadly, that is not the case. Indeed, it is striking that not a single Government amendment has been tabled for debate today—not even those of a technical nature to fix the errors that were highlighted in Committee.
Richard Fuller (Bedford) (Con)
My hon. Friend has managed to shower his proposal with praise from a number of people. May I demur from that and ask, at this time when the public rightly have a lot of frustration with the establishment—be it the political elite or other elites—what is the benefit of including the judicial elite in determining issues that should rightfully belong to the people?
Dr Huppert
I am wary of straying into the debate we had in Committee because there was a huge amount of discussion about that and the House reached a decision. It is about finding a balance and ensuring that we avoid trivial or vexatious cases, while capturing the power for the public. The other deficiency in the proposals by the hon. Member for Richmond Park was that it was a complex, multi-stage process—possibly too complex to be workable. I respect his views and those of many Members who supported him, but that amendment was defeated by the House and we are trying an alternative approach.
Mr David Burrowes (Enfield, Southgate) (Con)
The hon. Gentleman is speaking about extending the scope of recall. I declare an interest as a lawyer, but would not new clauses 2 and 3 be a charter particularly for lawyers, meaning that the system becomes unduly litigious? That will detract from the original intention of recall, which is to give real power to the people.
Dr Huppert
I am not a lawyer; I dropped out of studying law after my first year because my exams coincided with the general election, so I bow to the hon. Gentleman’s expertise in how litigious lawyers can be and how they will seek to make money out of whatever proposals there may be. I do not agree, however, that the new clauses will lead to a huge amount of litigation, so allow me to outline how I think they would work. If the hon. Gentleman has proposals for improving the Bill, I would be happy to hear them.
No Government amendment contains all the required measures, so my hon. Friend the Member for Somerton and Frome and I worked on the amendments and adjusted them in the light of criticisms from right hon. and hon. Members across the House. Although we do not have the Government’s seal of approval, we believe this is a workable approach that can, if necessary, be tweaked in another place, which has more specialist constitutional lawyers than this House. We feel that we should not simply hand the Bill over to the Lords unamended and say, “Try to sort the whole thing out”, without giving them a strong steer. Recall applies to Members of this House; the other place can consider the detail, but it should not be considering the principles.
Our proposed option would be in addition to triggers already in the Bill and would mean that 500 electors could sign a petition alleging misconduct by an MP. An election court would hear evidence of that misconduct and any rebuttal by the MP, and decide
“whether, on the basis of the evidence, it is reasonable to believe that the MP has misconducted himself or herself, to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.”
If the court upheld the allegation, that would act as another trigger for a recall petition in the same way as a suspension by the standards Committee of this House would do. However, because there would have been no proof of misconduct, only evidence of reasonable belief, we would require a slightly higher hurdle for the petition—15% rather than 10% of the electorate. That change is one of a number that we introduced, and we hope that the new clauses answer the criticisms that were made.
Let me highlight our other changes. The hon. Member for Liverpool, West Derby and the right hon. Member for Haltemprice and Howden (Mr Davis) both felt that 100 petitioners, as in the original proposal, was too low a number and too easy to achieve, so we increased that to 500. We are not keen to go higher because the court’s role in ruling out unsubstantiated trivial or vexatious cases is best before the complaint has built up a large head of steam. Otherwise, it rather obviates the point of the later petition phase, which needs 15% of the electorate. The provision also simplifies the rules on expenses. Five hundred is a substantial barrier to a small or trivial claim—one annoyed individual, for example—but not if there is a real sense among the public that an MP has done something wrong.
The hon. Members for North Down (Lady Hermon) and for Liverpool, West Derby pointed out one serious flaw in our previous drafting—my hon. Friend the Member for Somerton and Frome was explicit about this. We were trying to apply the common law offence of misconduct in public office to Members representing Scotland and Northern Ireland, where that common law offence does not apply. We sought to get around that by stipulating that courts would act as though the offence were in England and Wales, on the basis that the House is in England, but that was inelegant and we accept that it was flawed. We solved the problem by specifying in the Bill the definition to be used, which is taken from the Attorney-General’s advice on common law in England and Wales. We are therefore no longer asking a court to determine anything based on a jurisdiction that is not its own, and we can still benefit from existing case law for that wording.
Mr Andrew Lansley (South Cambridgeshire) (Con)
I am sure that my hon. Friend knows that the House, when in Committee, was sympathetic to the view that there should be a mechanism by which members of the public in a constituency are able to initiate a recall process, but it has to be one that we understand will work. Is the test, which the new clause intends to apply, analogous to the offence of misconduct in public office, or is it something less than that? If it is that, why will it not, if a court determines there is prima facie evidence, trigger a prosecution?
Dr Huppert
The wording is exactly the wording there would be for misconduct. First, that offence does not exist in Scotland or Northern Ireland. I will come on to that later with an example, but there are some issues. We would want Members to be equal, broadly speaking, regardless of where they have been elected from. The other issue is that although the offence of misconduct in public office is used quite regularly against police officers—there are a number of other cases—it has never actually been used against a Member of Parliament. There is a question of whether we trust the Crown Prosecution Service to be the deciding factor, particularly when there could be questions about how it would interact with various Members and Ministers.
Mr Burrowes
Drawing on the previous intervention and my point about litigation, does this not then become a shadow trial in a line to what perhaps should be a criminal trial in relation to the common law offence? That is the danger, because we are raising not only a civil but criminal liability that may become very protracted and not lead to the end result of a proper recall process.
Dr Huppert
We have put in provisions so that, in the event of criminal proceedings, they would take precedence and the recall process would be stayed while that was happening, so I think we have addressed that. As I will go on to say, there is a very similar model already in use in the US and that does not seem to have the same sorts of problems that the hon. Gentleman describes.
On other changes we have made, the hon. Members for Richmond Park (Zac Goldsmith) and for Liverpool, West Derby were concerned about a phrase we included relating to gross dereliction of duty as an MP perhaps being considered as misconduct in public office. They both highlighted the point that there is no definition of our duties as Members of this House. We accept that point and have removed it from the revised amendment. However, I think there is general agreement in the House that there should be some provision in the code of conduct to deal with that. The well-known case of the Member of Parliament who spent most of his time running a pub in Ireland is not one that I think any of us would consider acceptable or wish to see emulated. We should try to ensure that the code of conduct is updated so that, for example, an MP who chose not to attend the House for months or years on end with no good reason, could not continue in that way. Local councils have a rule that councillors have to attend a meeting within six months, with a provision for extensions when there is good reason, for example illness.
Thomas Docherty (Dunfermline and West Fife) (Lab)
The hon. Gentleman touches on non-attendance. Labour Members supported the House of Lords Reform Act 2014, which makes attendance compulsory at least once a Session. What does he say to those MPs from Northern Ireland who choose not to take their seats, but whose electorate understand fully that that is their principled position?
Dr Huppert
First, just because somebody can be recalled does not mean they would automatically be recalled. How to phrase that in the code would be an interesting question. Trying to have repeated recalls of those Members would be a somewhat futile and repetitive exercise, as it was with the case of Charles Bradlaugh, the Member for Northampton. He was elected three times as an atheist and refused to take a religious oath. The rules were eventually changed because it was made quite clear that his electorate wanted him. I think that, in the case of the Members the hon. Gentleman is referring to, there would have to be some sort of accommodation that there would not be recall elections for that process.
Dr Huppert
That may be addressed by the proposals from the hon. Member for Foyle (Mark Durkan), who I suspect is about to say that.
Mark Durkan
What would be the hon. Gentleman’s guarantee that nobody’s constituents in Northern Ireland would be prone to engage in a futile or repetitive exercise?
Dr Huppert
I would certainly give no guarantee of that kind. It is important to say that the proposals we are making at the moment do not deal with this issue. I am suggesting that the code of conduct should be updated. I am very happy to have a discussion on the details of that, but it is not germane in detail to this amendment—they are separate processes.
Jacob Rees-Mogg (North East Somerset) (Con)
New clause 3(7) reads:
“Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”
However, if the House of Commons were to introduce a new code of conduct and that were to be interpreted by—effectively—an election court, would it not risk contravening the Bill of Rights?
Dr Huppert
As ever, the hon. Gentleman makes a very interesting point, but the new clause does not suggest changes to the code of conduct or making it subject to court proceedings, so his point does not apply to this new clause.
I think that new clause 2 has been substantially improved to address the criticisms levelled in Committee —we can have the discussion about the code of conduct at another appropriate time. Furthermore, as I said earlier, it is not a unique proposal. The state of Minnesota has a similar scheme under which 25 petitioners submit a proposed recall petition stating the grounds for the recall, whether it be malfeasance, non-feasance or serious crime; and a public hearing is held by a judge within 21 days who then reports to the Supreme Court on the test of
“whether the persons proposing the petition have shown by a preponderance of the evidence that the factual allegations supporting the petition are true; and…if so, whether the persons proposing the petition have shown that the facts found to be true are sufficient grounds for issuing a recall petition.”
This then leads to the recall petition, in which case the system requires the signatures of voters equalling 25% of the most recent turnout, which is roughly the same as the 15% we are proposing. This system exists, therefore, and it seems to work, as shown by its operation since it was introduced in 1996.
Mr John Redwood (Wokingham) (Con)
How does the hon. Gentleman answer the criticism that the whole point of recall is to give power to the people but that his system gives power to judges?
Dr Huppert
It still starts with 500 people and ends with 15% of the public making the decision. We have to strike a balance—we discussed this in Committee, and I do not want to give a blow-by-blow account of that very long debate—over whether there should be any constraints at all and whether there can be any trivial or vexatious cases. That is the difference.
In Minnesota, several cases have been deemed to be unreasonable. The two most recent cases involved State Representatives Ward and Radinovich, both of whom supported same-sex marriage against the wishes of their constituents, and in both cases, the court concluded that it did not constitute malfeasance, saying:
“Constituent disagreement with how their elected representative exercised discretion, through public statements made or votes taken, does not equate to malfeasance by the representative.”
That is surely a principle the House would want to stick to.
In 2001, the state attorney-general did not take steps to ensure that a ban on sodomy was not struck down—again there were complaints, but the court did not conclude that he had failed to do his job; and in 1999, Governor Jesse Ventura was accused of having done well out of his book by virtue of being governor, but again the court felt the accusation was unsubstantiated and struck it out.
Thomas Docherty
It has been brought to my attention that earlier today the hon. Gentleman published an article on Lib Dem Voice about his test stating:
“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance.”
Now, he takes a clear and principled stance on terrorism legislation, so some of us are surprised he is reversing the burden here. Is he not contradicting himself by leaving it up to the MP to disprove the allegation, rather than the petitioners to prove it?
Dr Huppert
I will have to check the wording of the article—[Interruption.] Sorry, I am not challenging the hon. Gentleman; it is possible, in writing it so speedily, that I miswrote it, because that is certainly not what it ought to say. That is not how it ought to work, and if I wrote that, it was my mistake and I apologise to him and anyone else who read it. I will check it as soon as I have a chance.
The system in Minnesota, which is similar to what we are suggesting, seems to work. Our proposal would protect MPs from trivial recall petitions, but allow the public a route, not mediated by the House, to recall MPs who have committed misconduct. I hope, therefore, that the House will support new clauses 2 and 3, along with the consequential amendments, when I put them later today.
I wish to turn briefly to the other amendments in the group, many of which are in my name and that of the hon. Member for Dunfermline and West Fife (Thomas Docherty) and others.
Mr Lansley
Before my hon. Friend moves on to other amendments, I would find it helpful if he explained whether new clause 3(1), which says that the conduct that has to be alleged by the petitioners to a court must constitute
“misconduct in the office of member of parliament”,
is consistent with subsection (2), which says:
“The court may consider…conduct…whether or not it is committed directly in carrying out the office of member of parliament.”
We would be in the curious position where conduct unrelated to the office of a Member of Parliament and duties consequent on that office might be used to allege misconduct in that office. Is that not contradictory?
Dr Huppert
I think the right hon. Gentleman’s point is answered by amendment 8, which has a fuller definition of misconduct. I hope he will have a chance to take a look at that precise point.
Amendment 24 adds another recall trigger: if a Member has been convicted of an offence under the Parliamentary Standards Act 2009—providing false or misleading information for allowances claims—whether or not it has led to a prison sentence. The amendment was proposed in Committee by the Opposition and, given the particular sensitivities of the issue, we fully support the proposal. It is a good idea. Similarly, amendment 15 provides another trigger: if any Member is convicted of misconduct in public office, whether or not they are imprisoned—something that has never happened to a Member before, but which does happen on a semi-regular basis, sadly, to police officers in particular. It seems inconceivable that an MP convicted of such an offence could be immune from recall, so I hope the House will support that amendment too.
Amendment 14 tackles the time frame for suspensions from the House to count and ensures that only suspensions after the Committee on Standards has produced a report are involved, thus excluding those from the Speaker alone. Again, this was an idea proposed by the Opposition in Committee and it is sensible. The other amendments that my hon. Friend the Member for Somerton and Frome (Mr Heath) and I have supported deal with a range of technical details—not least the need to add words such as “third”, “fourth” and “fifth” to legislation that frequently enumerates conditions—as well as more substantial matters, such as historical offences, which I will leave to the hon. Member for Dunfermline and West Fife to explain.
Lastly, there are the amendments tabled by the hon. Member for Foyle (Mark Durkan) and the amendment to his new clause 4, from the hon. Member for South Down (Ms Ritchie). I have particular sympathy for the amendment to the new clause, which follows on from the work of Charles Bradlaugh to expand the oath to allow more Members to take it honestly. I am therefore supportive of the ideas of the amended new clause 4. However, I am concerned by the proposal in new clause 5, even though I recognise much of the wording has been taken from my new clauses. It is reasonable to ask a court to consider misconduct offences, but it is much harder to ask it to judge abstract conceptions such as leadership. Do we have any idea how a court could judge whether we in this House had displayed adequate leadership?
I look forward to hearing comments from across the House on the amendments, but I intend to test the will of the House on all amendments, in particular new clauses 2 and 6, as well as the consequential amendments, and, if they are not accepted, I shall support those proposed by the hon. Members for Dunfermline and West Fife and for Liverpool, West Derby (Stephen Twigg), rather than passing the buck to the other, unelected House.
Mark Durkan
The hon. Member for Cambridge (Dr Huppert) has already touched on new clauses 4 and 5, which stand in my name, and amendment (a) to new clause 4, which has not been selected, in the name of my hon. Friend the Member for South Down (Ms Ritchie).
I should clarify that the purpose of new clause 4 is to answer a question that I and other hon. Members posed when we discussed the Bill in Committee and on Second Reading. There is no job description for MPs, so if we are creating the principle of recall—a principle I fully endorse: I believe recall should be possible at the initiative of constituents and the electorate—it is important to have a yardstick. If we are affirming that MPs have and owe that degree of accountability to their constituents, there should be a clear basis on which constituents can rightfully wrest the exercise of that right. We had all sorts of circular arguments about whether having an open petition system could lead to all sorts of specious and spurious grounds that were motivated by partisan or other interests. I believe it was important to create a basis on which MPs could subscribe to the possibility of recall by acknowledging from day one when they take their seats here that they are subject to that degree of accountability and owe service to their constituents. That is why I support the concept of MPs taking a new pledge.
It is rather strange that we are pursuing a Bill that is creating the idea that a strong rule of accountability is to be translated into a recall, yet whenever MPs come here to assume their seats, all they do is issue words in the form of an oath or an affirmation about allegiance to the Crown, which many of them do not actually believe. I am not sure that that does anything for the credibility or reputation of politics when the first thing that politicians do in taking their seats is to recite words that they might not believe. Those who believe in those words should absolutely be able to recite them, but it is important that, regardless of whether Members believe in the affirmation or the oath, we should utter a pledge in respect of our parliamentary standards.
Given that hon. Members proposed amendments in Committee that made reference to the MPs’ code of conduct and given the importance of expenses and other relevant issues that could motivate a recall, we need to recognise the significance of the seven standards of public life, which appeared in the Parliamentary Standards Act 2009, for this Bill. Hence the pledge I propose in new clause 4 has MPs, on taking their seats, affirming that they will abide by the MPs’ code of conduct and honour the seven standards of public life as they are now. Those standards could, of course, be revised and extended in future. The new clause would leave the phrasing of the pledge open.
Lady Hermon (North Down) (Ind)
I apologise for not being in my place at the start of the debate, but I am very interested in this Bill. The hon. Gentleman knows perfectly well that there are five absentee Sinn Fein Members who are obviously not going to turn up and take any pledge in this House or assume their seat any time soon, if ever. What would be the sanction for such Sinn Fein MPs who refused to sign any pledge?
Mark Durkan
I take the hon. Lady’s point, but if she looks at the new clause, she will see that an MP subscribing to the pledge may do so
“(a) in writing; or (b) in person at the same time as taking the Oath required by the Parliamentary Oaths Act 1866.”
So anybody elected to this House on the basis of serving their constituents in the way that Sinn Fein Members pledge they will serve their constituents could not take their seats or sign on to take their seats. Sinn Fein Members could fulfil the requirement by signing the pledge “in writing”. That is entirely feasible, so my new clause would not create any barrier or impediment for Sinn Fein Members—or, indeed, for any other Member elected on the basis that they will not take up their seats in this House, but will use their seats in whichever way they won their mandate for.
Lady Hermon
I am most grateful to the hon. Member for allowing me to intervene a second time. I understood that there were the alternatives of saying the words of the pledge when Members take up their seats here or of making the pledge in writing. My question, however, was what the sanction is for MPs, including Sinn Fein Members, who do not take the pledge either in writing or orally.
Mark Durkan
I have not gone as far as that; it could mean a further sanction that if people do not take the pledge, they will be deemed not to have taken up their seats. That could be one way of doing it. We could say that expenses and other things would be paid only in circumstances where the MP has signed the pledge.
The standards required by the pledge would include due observance of all rules and principles involving such matters as expenses which relate to the code of conduct or to the “standards of public life”. All the requirements are parliamentary standards. It is possible that a Member’s status in respect of allowances and facilities would kick in only when the pledge was signed, but that is a detail.
Jacob Rees-Mogg
I agree that it would be better for the decision to be made by the electorate—by the court—but is not the problem with the pledge being determined by the court that the pledge is fundamentally political rather than legal?
Mark Durkan
I accept the hon. Gentleman’s point, but it can be legal up to a point; there could be some matters on which a clear-cut judgment could be made. I have chosen to offer the route through the court simply because it seemed to me that there was a will or a mood in Committee saying, “Well, if we’re going to allow any element of public petition to recall, then going to an election court could be the way that could be done.” I have simply taken that point and offered this new clause to try to test Members on whether they will follow through on the logic of the argument they made in Committee.
I do not commend the model in new clause 5 above all others. I still prefer the open rolling petition around a clear issue, but, again, I think that the open rolling petition should be on the basis of a pledge. I think the pledge as the basis for those petitions would create a much clearer standard for the public. It would also create a clearer standard for MPs, who would know, if they had committed to the pledge, whether they had abided by the code of conduct and could show whether they had upheld the standards of public life. That should not be too much to ask. MPs should not feel, “Oh, it’s hard to prove that we have upheld the standards of public life or lived up to the code of conduct.” It would send a very dangerous signal if Members felt that a pledge about the MPs code of conduct and the standards of public life would be difficult to uphold or could be abused in some untoward way. Then we would be seen to be trying to find ourselves some highly privileged protection where we decide that we always know best, even about the worst that we have done.
That is the simple point of new clause 5, which I do not intend to press to a Division. Its purpose is to ensure that if we are to improve the Bill, we take into account the absence from the Bill of a clear tool available to the public. Also, we need to make good the serious omission that we have all acknowledged—in circumstances where there is no serious job description for MPs, where is the bottom line? The new clause offers a bottom line.
Zac Goldsmith (Richmond Park) (Con)
It is worth taking stock of where we are. The Government’s Bill still has no friends in its current form. It still proposes a system of recall that is possible only in the narrowest of circumstances and, in most cases, still only by permission of MPs. It will do nothing to empower voters. For that reason it has been savagely criticised by every pressure group campaigning for improved democracy—everyone from 38 Degrees and Unlock Democracy all the way to the TaxPayers Alliance. It has been trashed by everyone from the Morning Star to The Daily Telegraph, which described it a few weeks ago as an “insult to voters”.
As a consequence, the Prime Minister felt obliged to describe the Bill as “the minimum acceptable”. Labour’s shadow Minister, the hon. Member for Liverpool, West Derby (Stephen Twigg), said that
“the Bill needs to be strengthened considerably from its current state in order for it to have meaning.”
Douglas Carswell (Clacton) (UKIP)
Does my hon. Friend agree that the fundamental flaw in the Recall of MPs Bill is that it does not contain a recall mechanism?
Zac Goldsmith
Exactly right. This is not recall as it is understood anywhere in the world.
The shadow Minister went on to say that the Bill
“is simply not good enough. The public will, rightly, expect more.”—[Official Report, 21 October 2014; Vol. 586, c. 787.]
Even the Deputy Prime Minister, who wrote the Bill, has had to express difficulties with it.
But after all that huffing and puffing, here we are today with more or less exactly the same Bill—a Bill that no one likes. Yes, a few amendments have been proposed, but they are red herrings. They add nothing useful to the Bill. Labour’s main proposal, amendment 14, merely lowers the threshold so that hon. Members who are suspended from the House for 10 days or more automatically qualify for recall. The original proposal was 21 days. The only effect that will have is in the judgments made by a committee of parliamentarians. They will simply rejig the way they sentence MPs accordingly. The 10-day rule would have spelled the end for any number of hon. Members who have been sanctioned for engaging in protest.
Thomas Docherty
May I clarify the amendment? It specifically excludes those Members who have been named by the Speaker for parliamentary protest in the Chamber. It does not capture Members who have engaged in parliamentary protest.
Zac Goldsmith
I am grateful to the hon. Gentleman for that clarification. It changes nothing at all. I am reassured by the point he makes, but all this does is create a different dynamic—a different impetus for the committee of parliamentarians. They will simply pass different judgments accordingly.
The main Lib Dem amendment, new clause 2, introduces a new trigger—misconduct in public office. It sounds great and some people might be reassured by it, but it adds nothing material to the Bill. I have looked into the matter and sought advice. I quote some of the advice that has been issued. The Crown Prosecution Service says that this should apply
“only where … the facts are so serious that the court’s sentencing powers would otherwise be inadequate”.
The House of Commons Library says:
“There are few prosecutions, suggesting that action is taken only when misconduct is particularly gross.”
The courts have said:
“The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice.”
If we are honest about it, the only reason why this amendment has been tabled is so that the mainstream parties can pretend that they have addressed one of the main concerns with the Bill, which is that it leaves MPs in charge.
Dr Huppert
The hon. Gentleman said that a mistake, even an honest one, will not suffice. Does he actually think that MPs should be subject to recall just because they have made an honest mistake?
Zac Goldsmith
The hon. Gentleman knows my arguments concerning recall. I am deliberately trying not to rehearse the arguments that were made in Committee because I lost them by a ratio of 2:1, but I fundamentally disagree with his view on how recall should be used. I was elected largely on the basis that I would put up a fight against Heathrow expansion. Had I, immediately after the election, taken a non-executive role within BAA—even an unpaid role of some sort—and flipped my position entirely, that would have amounted to a fraud on my voters. Had I performed such a U-turn, I believe they should have had the right at that point to recall me. The hon. Gentleman disagrees and that is a fundamental philosophical difference, but I will not rehearse the arguments because, as I said, I accept that I lost them a few weeks ago, sadly.
So, we have the same Bill, more or less, with a few synthetic changes if they are passed later today, and we are supposed to believe that the three main parties are all of a sudden happy with it. Perhaps they are, but if so it is only because they were not really, genuinely, authentically unhappy with the old version that we debated. Either way, it is an embarrassing, insulting nonsense. They have tied themselves up in knots to avoid letting voters hold them to account, all the time pretending that they are doing the opposite.
As if to prove how seedy this affair has become, the most extraordinary letters have been sent by MPs to their constituents, explaining why they blocked real recall. I will not rattle them all off, but let me give one example. The hon. Member for Torbay (Mr Sanders) told his constituents that he opposed real recall because
“I could have faced…recall…for voting in favour of an in out referendum”.
He added:
“I could have faced a recall campaign for having voted to close corporation tax loopholes.”
Does he honestly, truly believe that his constituents would have wanted to recall him for doing either of those things? Is it possible to have greater contempt for one’s voters than he expresses in that article in his local newspaper? I have seen countless letters explaining that pure recall would undermine the independence of MPs—letters, incidentally, sent by MPs so dependent that they have never once strayed from the party Whip, never once been disobedient to the parties they serve.
And then we have the Deputy Prime Minister, who robustly opposed real recall six times in this Chamber that I am aware of. Six times he was on the record opposing California-style recall—
The Deputy Leader of the House of Commons (Tom Brake)
Did the hon. Gentleman notify my hon. Friend the Member for Torbay (Mr Sanders) that he would mention his name in this debate?
Zac Goldsmith
No, I did not. I was not aware that I was supposed to. Perhaps I will be recalled under the new mechanism that the right hon. Gentleman is proposing.
Mr Deputy Speaker (Mr Lindsay Hoyle)
The point has been made. Normally, it is good practice to let people know if you are going to name them. I am sure that it was not done intentionally.
Zac Goldsmith
I do apologise, Mr Deputy Speaker; it is not a convention that I was aware of, and it certainly was not intentional.
The Deputy Prime Minister has formally opposed, on the record, real recall six times in this House. Then, as the pressure for proper recall began to rise earlier this year, he clearly felt it. He told his LBC listeners:
“Zac and I are completely at one. I actually have no objection at all to the kind of radical California style recall that he likes.”
The real problem, he added, is that
“It has absolutely no hope…of being passed into law because of profound objections from conservative colleagues.”
Of course, when it came to a vote—a free vote for the coalition, if not for the Labour party—his party trooped as one through the No Lobby, against real recall.
In the last debate on recall, Members were asked to trust voters to hold them to account, and a majority declined, sadly. I genuinely believe that the establishment’s refusal to share power means that ultimately, it will lose that power. However, the result was clear and for that reason I have not tabled any new amendments. It was clear that the House as it is today is not ready for proper recall, and I would be wasting the House’s time if I rehearsed all those arguments and re-tabled those amendments.
However, there is some good news. In an impassioned speech, a Scottish National party MP—the name of his constituency is so complicated that it is a disincentive to quote him, so I will not. [Hon. Members: “Western Isles.”] Is that right? So that is what we call it in English. I was not aware of that. I was going to attempt the native version, and I am afraid that I would have got it wrong. Nevertheless, in an impassioned speech, the hon. Gentleman said that even if reform were rejected by the House, it was inevitable, and he was right. Prospective parliamentary candidates up and down the country from all the parties—Labour, Lib Dem, Conservative and the rest—are positioning themselves against the incumbents on the basis of where they stand on recall.
Richard Fuller
Does my hon. Friend agree that recent news has highlighted the public’s distaste for a political elite keeping themselves to themselves and ruling over the people? Is not that another reason for the public being frustrated that the Bill does not include the real recall provisions that he proposed on Second Reading?
Zac Goldsmith
I could not agree more strongly, and I welcome my hon. Friend’s intervention.
Change is inevitable, and we are moving in the right direction. I also believe that, with the new composition of the House after the election, we will be in a better position to bring in a genuine form of recall. I certainly hope that that will happen. In the meantime, however, let us not insult voters with this placebo that is being offered today. People who are interested in politics already know that this Bill is a sham and a stitch-up. The rest—those who are perhaps not paying attention today—will discover that fact for themselves at the very first scandal. Let us walk away from this disgraceful piece of legislation and wait until the House grows some collective proverbials and does the right thing.
Zac Goldsmith
I was about to finish, but I will give way to the hon. Gentleman.
Thomas Docherty
Notwithstanding the hon. Gentleman’s acceptance of the vote last time, will he clarify whether it is his intention to oppose amendment 24, which deals with MPs who fiddle their expenses, if there is a Division on it?
Zac Goldsmith
I am happy to answer that question. I do not want to sound self-important, but it is my intention not to vote one way or the other on the amendments or the Bill, because I do not want to give the Bill any credibility at all. It is a sham, a shambles, a farce, an insult and a disgrace and I do not want to have anything to do with it. When we come back to the House with a proper proposal, I will engage again, but for now I would advise all those Members who believe in democracy, in reform and in genuine recall to walk away and wait for another time.
Thomas Docherty
I want to set out Labour’s position on the principle of recall and the reasoning behind the amendments that have been tabled by me, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) and others. I will then set out Labour’s views on the new clauses and amendments tabled by the hon. Member for Cambridge (Dr Huppert). Finally, I will deal with the new clause tabled by my hon. Friend the Member for Foyle (Mark Durkan).
I want to begin by again placing on record Labour’s support for the principle of recall when an elected representative’s conduct falls well below the standards that Parliament and their constituents expect. That is why our 2010 manifesto promised to introduce recall legislation and why we supported the Bill on Second Reading. We will support it again on Third Reading.
However, we continue to believe that the Bill could be strengthened. We have tabled a number of amendments to that end, and I am grateful that they have attracted cross-party support. We discussed the principles behind each of them in Committee, and the hon. Member for Cambridge has already mentioned them briefly, so I will not detain the House by rehearsing all the arguments or going into unnecessary detail.
Amendment 14 seeks significantly to lower the threshold for the period of suspension relating to the point at which a Member of Parliament may be subject to a recall petition. As it stands, the Bill states that the second recall condition is that a Member must be suspended from the House for 21 sitting days to reach the threshold. We believe that that sets the bar too high. For example, neither of the MPs who were suspended during the cash-for-questions scandal would have been subject to potential recall using that threshold. By reducing it to 10 days, as we propose, Members such as those and many others who have been suspended over the years would be captured by the revised mechanism.
However, we recognise the genuine concern that Ministers flagged up during the Bill’s previous stages, which has been echoed by the hon. Member for Richmond Park (Zac Goldsmith), that a Member who had twice been named by the Speaker for unparliamentary activity or protest could fall foul of the lower threshold. That is why we have inserted the provision that the suspension must be the result of a report into an MP’s behaviour by the Standards Committee, although it is for the House as a whole to determine the length of a suspension.
Our amendment 24 deals with Members who have been convicted of fiddling their Independent Parliamentary Standards Authority-funded parliamentary allowances. Some may be curious as to why we are proposing that the recall process should apply even where a non-custodial sentence is handed out. We believe that a flagrant misuse of public funds by MPs is simply unacceptable. Those of us who were not MPs in the previous Parliament fully understand the public’s anger at that whole sorry saga. As the Leader of the Opposition has highlighted, the public’s confidence in our political system has been severely strained by the events of the past few years. We hope that this amendment signals to the public that Parliament is listening and changing.
Dr Huppert
The other point the hon. Gentleman could make is that his party’s manifesto specified that recall would be only for MPs found responsible for financial misconduct. So his proposal is entirely in keeping with his manifesto, as our proposal is with our manifesto commitment. Indeed, the surprise is that none of the major parties had something analogous to that which seems to be pushed by so many.
Thomas Docherty
I am grateful to the hon. Gentleman for his support for our amendment. I would not say it was only about that condition, but we did specifically state that it was grounds for recall, which is why we supported the Bill on Second Reading and will do so on Third Reading.
Richard Fuller
The hon. Gentleman just said that the changes in his amendment arise because of past failings in MPs’ behaviour and how such failings have strained the public’s credulity. That may be one explanation, but another may be that the public realise that they want control over a much greater proportion of what Members of Parliament do, and that direct democracy has a much greater role to play and arouses much greater passion in the community. Does he think that is a push for the Bill and his amendments to have gone further?
Thomas Docherty
The hon. Gentleman tempts me to restart a debate we had on Second Reading or in Committee. The Opposition are clear that we are representatives, not delegates; and that the basis for recall must be wrongdoing and misconduct, not because an individual constituent or a well-funded vested interest group disagrees with how a Member has voted. That is an important difference.
Richard Fuller
If that is the basis for the hon. Gentleman’s position, does he think that those in America’s House of Representatives, some of whom are subject to recall, are delegates, not representatives?
Thomas Docherty
With your indulgence, Mr Deputy Speaker, may I just clarify the point for the hon. Gentleman? Members of the two Houses of Congress, and the President and vice-president of the United States, are not subject to the recall provisions. Those apply only at state level, because the courts have ruled that there is no constitutional provision in the United States at federal level for the recall petition. So, ironically, the one group of US citizens who are exempt are those in Congress; many who observe their proceedings might wonder from time to time whether they should be recalled.
Amendment 16, our third substantive amendment, deals with the quirk that under the Bill as it stands only offences committed after the date of Royal Assent are covered. We have previously highlighted our belief that this should apply to all new convictions, regardless of when the offence was committed. I do not intend to rehash previous examples, but where an offence comes to light only after a Member of Parliament is elected, surely it would be wrong to deny his or her constituents justice. Of course this should not apply where a conviction occurred before a Member was elected, because it is a reasonable assumption that the electorate have already taken that into account when choosing to vote for them, and there is precedent within the UK for that. However, how can a constituent know about an offence where no conviction has occurred? We hope that the Government will accept those arguments.
Jacob Rees-Mogg
I am sympathetic to most of the hon. Gentleman’s amendments, but I do have a query about this one. Is it not, as a general principle, unfair to apply a punishment to people that they did not know might be a punishment at the point at which they did the wrongdoing?
Thomas Docherty
I am grateful to the hon. Gentleman for his argument, but of course that person was not a Member of Parliament when they committed the offence, so would not expect to be denied something going forward. Let me take his argument and reverse it. This place abolished capital punishment some 40-odd years ago. If somebody were today convicted of a crime that previously had capital punishment as a tariff, we would not retrospectively apply a punishment that no longer exists.
Jacob Rees-Mogg
I thank the hon. Gentleman for being so generous in allowing interventions, but his argument also applies the other way around. If somebody were found guilty of an offence committed 40 years ago, for which the punishment was a maximum fine of 2 shillings and 6 pence, they could still only be fined that amount. It is a very important legal principle that the penalty may not be increased, but it may be reduced.
Thomas Docherty
I suspect the hon. Gentleman needs no reminding that this Bill is about providing rights to our constituents. I am talking about a right to recall where serious wrongdoing has occurred. Yet again, he tempts me to remind the House that, after being elected, my local Scottish National party MSP was found to have committed a string of domestic violence offences over a 30-year period. He was charged and convicted only after he became a Member of the Scottish Parliament, and there was no mechanism for recall, despite the fact that he had broken a frying pan over his step-daughter’s head. I believe the House will agree that it is absolutely right that, where offences have come to light and there is a new conviction, we provide justice to those constituents.
Michael Ellis (Northampton North) (Con)
I support what my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has said. It is an ancient principle of English justice not to impose retrospective penalties or an ex post facto view on things. Is the Labour amendment designed to impose on individuals a penalty that would not have applied previously? I think it is, in which case it is against the principle of natural justice.
Thomas Docherty
May I say gently to the hon. Gentleman that he may be confusing sentence with offence? There is no attempt to make a retrospective offence. What we are saying is that one of the tariffs to which an hon. Member would be subject is recall. It is about balancing the rights to justice with the rights of our constituents. If he is saying that he will oppose us on this measure, I do not think he will find many colleagues with him in the Lobby.
Mark Field (Cities of London and Westminster) (Con)
My hon. Friend the Member for Northampton North (Michael Ellis) might find me as a supporter. Does the hon. Gentleman not recognise that the Government’s reasoning in this regard may be to draw a line under the past? In fact, they said as much earlier on. We all know that the public were appalled by the expenses scandals of the past. That is why IPSA was set up. It was designed to draw a line under the past and make sure that everything was independently audited. I hope we will continue to do that as far as future independent salary reviews are concerned, but the principle applies here as well. We need to draw a line under the past, and keep the future in mind.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Let me help to draw a line. Members must make short interventions, not speeches. If we can make future interventions shorter, it will help.
Thomas Docherty
We absolutely agree on the point about IPSA expenses. To provide justice to our constituents, it is a relatively uncontentious tweak to the Bill to say that if a Member of Parliament were convicted of serious wrongdoing they should not be able to evade natural justice just because their offence was carried out before Royal Assent. Let me now make a little more progress.
We see these three amendments as sensible steps towards improving the Bill and significantly strengthening the rights of constituents to hold their Members of Parliament to account. I am grateful to Members from the other parties and to those on the Government Benches who have signed our amendments or who have indicated that they will support them tonight. I hope that when the Minister responds he will confirm that he, too, supports our proposals and that he will encourage all his colleagues to endorse them so that they can be carried without a Division.
I now turn to the new clauses and amendments tabled by the hon. Members for Cambridge and for Somerton and Frome (Mr Heath). I want to deal first with new clause 2 and the amendments relating to it. As I said in Committee, we support the principles behind the idea. We agree with the hon. Gentlemen on the idea of an independent mechanism when it can be demonstrated that wrongdoing has occurred. Like the hon. Gentlemen, we entered into talks with Ministers in good faith to make it work. However, as has already been mentioned by the hon. Member for Cambridge, despite lots of warm words from Ministers the Government have walked away without fully engaging. At no point did Ministers proffer alternative wording, which will of course leave many wondering whether parliamentary counsel were ever engaged properly. The Government Chief Whip who, yet again, is nowhere to be seen, seems to have decided that this is all too much effort.
That is no way for the Government to behave, not only after giving clear assurances in Committee but on a Bill that was, as the hon. Member for Richmond Park said, a key plank of the coalition agreement. The result of the Government’s behaviour is that we are left with a new clause that is, by the admission of the hon. Member for Cambridge, not in a fit and proper state. I appreciate that its promoters have tried as hard as they can to get these principles into a workable state, but despite their best efforts the amendments are simply not there.
Dr Huppert
Let me be clear that I have never said that I do not think the new clause is in a fit and proper state. There were some problems with the previous version, but I think that it is now in a good state. I dare say, however, that their lordships could tweak it.
Thomas Docherty
I therefore refer the hon. Gentleman to new clause 3, which places the burden of proof on the Member of Parliament. Again, let me quote what he has said. Although I accept what he has said about no longer seeing that quotation as accurate in terms of what he was trying to achieve, it reflects what new clause 3 says. He said:
“This test of “reasonable to believe” puts the burden clearly on the MP to disprove beyond doubt the allegations against him or her in the first instance. It would mean a high chance of success for petitioners unless their evidence was very weak indeed.”
The hon. Gentleman has already clarified that he does not support that, so if he does not support the intent behind new clause 3 I would gently suggest that the best thing would be for the new clause to be rewritten.
Dr Huppert
The hon. Gentleman is absolutely right to point out the errors in what I wrote on Lib Dem Voice and he will be pleased to know that it has been corrected, but in such a way that one can still see the original. I am not trying to hide the fact that I made an error. The bit that was not fit and proper was that aspect of the article on Lib Dem Voice and the new clause is still quite clear. The “reasonable to believe” test is a fairly common and standard one.
Thomas Docherty
Perhaps I can return to that point in a moment or two.
Let me explain what we see as the problems with new clauses 2 and 3 and the associated amendments. The court process can be started comparatively easily as 500 signatures would not be difficult to obtain and a rich group or a rich individual who wanted to attack a Member of Parliament could pay for lawyers once those signatures had been obtained to mount a court application that would be both costly and distracting for the MP to fight. New clause 2 does not require the case to be proved, as the hon. Member for Cambridge has admitted, beyond reasonable doubt or even to some lower standard, only that the court has “reason to believe” the Member of Parliament is guilty of misconduct in public office. The clause requires only an arguable case and not a proved case, which makes an MP vulnerable to losing in court when the allegations have been proved, to be taken forward.
New clause 2 also sets the standard by reference to the language of the criminal offence of misconduct in public office, which, as the hon. Member for Cambridge admits, is a criminal offence in England but not in Scotland or, I think, in Northern Ireland. If the court concluded that there was reason to believe that a Member of Parliament was guilty of the offence of misconduct in a public office, in addition to the recall petition’s being opened the Member of Parliament would be incredibly vulnerable to prosecution for the criminal offence. A well-funded individual or group could achieve 500 signatures, tie a Member of Parliament down in difficult court proceedings, in which the attackers do not even have to prove their allegation, and, if they succeed in court, subject the Member of Parliament to not only a recall petition, but the possibility of criminal proceedings.
Dr Huppert
The hon. Gentleman makes an interesting point. He will be aware, of course, that there is an existing process whereby an individual or group—perhaps well funded—can bring a case to an election court. There is no appeal; there is judicial review. It has far more powers, because it may not only deny a Member their seat, after potentially expensive processes, but ban them from standing for public office, as happened to Phil Woolas, which is a much tougher sanction than that which is proposed here. Is he suggesting that that should also happen, because a large amount of money could be used to challenge an MP who had just been elected, which I think is what he is concerned about?
Thomas Docherty
The difference is that in the Woolas case in 2010 the complainant had to prove not just a level of expectation, but beyond reasonable doubt. There were full court proceedings and it was rightly determined—the hon. Gentleman has mentioned this—that Mr Woolas should be banned from holding office for a period of five years, I think.
Thomas Docherty
Apologies. Those were proper court proceedings that resulted in a verdict. New clause 2 and its associated amendments would simply require a reasonable expectation, which we believe would be an unsatisfactory mechanism at the moment.
The other group of amendments, which centre on amendment 15, would add a further mechanism for the opening of a recall petition: when a Member of Parliament has been convicted of the criminal offence of misconduct in public office. The difference between that gateway and the first gateway—conviction of a criminal offence—is that it is open even if the Member in question is not sent to jail. Although a conviction for that offence would normally follow a prosecution by the Crown Prosecution Service, it could follow an incredibly expensive private prosecution, which again would place a Member of Parliament at the mercy of well-funded vested interest groups. There are those who genuinely believe that we should endorse that process, but the Opposition do not wish to see that US-style pact, with well-funded vested interest groups able to recall, tie up and bog down a Member of Parliament for four and a half years of a five-year Parliament.
We are also concerned that that route could be used not only as an alternative to the new clause 2 mechanism, but as a de facto appeal. That is to say, if the Member of Parliament’s opponents do not win on the first attack, they could simply regroup and come back with a private prosecution. Furthermore, that route has no minimum threshold, as it does not require even the 500 signatures that the hon. Gentleman has advocated for new clause 2.
Dr Huppert
I am following carefully what the hon. Gentleman is saying. Could not exactly the same be said of his point about expenses for parliamentarians? There is a similar issue with very specific offences that relate to fundamental aspects of the role, where conviction, even if not imprisonment, has to be taken seriously.
Thomas Docherty
The hon. Gentleman leads me perfectly to my final point. Our amendment 24 proposes that a further recall condition should be when a Member of Parliament has been convicted of the offence, as clearly set out in the Parliamentary Standards Act 2009, of the misuse of public funds, committing fraud against the public purse, which we believe—I hope that the whole House agrees—is completely incompatible with the role of a Member of Parliament. Some will recall a case in the last Parliament in which a right hon. Member—a shadow Minister—was investigated by the police for having been involved in the leaking of documents from the civil service to the Opposition. If that case had been taken up by the police and resulted in a prosecution, I do not believe, and my colleagues would agree, that the leaking of documents, which we would argue can be seen in the public interest, should have left that Member of Parliament open to recall. As the offence of misuse of public office is so vague, it does not involve the same prescriptive reasoning as the 2009 Act, and it is open to vexatious challenge.
Lady Hermon
Will the hon. Gentleman add to the criticisms that he has kindly and very well articulated the point that new clause 2 and amendment 15 would leave independent Members and Members who belong to small political parties extremely vulnerable because they could not afford to fend off multiple applications made under those provisions?
Thomas Docherty
The hon. Lady is entirely right. There is significant concern, not only in Northern Ireland but in other parts of the United Kingdom, that repeated, harassing private prosecutions could be brought by well-funded groups.
By the admission of all concerned, more work still needs to be done on these two processes. It is less than satisfactory to be sending to the other place something that, by any standard, is not in a fit condition. To be clear, this House is being asked to delegate to the House of Lords responsibility for producing workable recall mechanisms. I regret to have to inform the hon. Member for Cambridge that I cannot, in good conscience, encourage colleagues to vote for new clause 2 and amendment 15 and their associated amendments, because it would be better if they were withdrawn and a fresh look at the whole issue was taken by the other place. May I make him an offer? If he withdraws his new clause and amendment, Labour peers will work with him and his Lib Dem colleagues to draft workable, robust and watertight proposals. We are clear that we are not giving up on the principle behind the new clause and amendment, and we urge him to take the same approach.
I want briefly to respond to the new clause and associated amendments tabled by my hon. Friend the Member for Foyle and others. We fully understand the rationale behind his new clause. The requirement that a Member of Parliament must take the oath before being allowed to represent the people who have elected them has placed not just his party—the Social Democratic and Labour party—but many others in an invidious position. The SDLP, in particular, has wrestled with this problem for many years, and I suspect that we are not going to solve it in one afternoon. He has raised a broader, quite interesting idea about whether the oath or pledge we undertake to fulfil is to our country as a whole or just to the constituents who may or may not have voted for us. I therefore suggest that the both the narrow question of whether the oath should be supplemented, or even replaced, by a pledge and the wider question of its purpose should be considered more fully.
The House will already be aware that the Labour party has proposed a constitutional convention that would meet after the general election to consider how we are governed, including the future shape, size and accountability of the second Chamber, and to examine codifying our constitution and reforming our political system. I urge my hon. Friend to seize that opportunity to make his case, as I am sure he will receive a sympathetic hearing. In that spirit, I urge him not to press his new clause to a vote but to ensure that his party plays a full part in the convention next year.
The Minister of State, Cabinet Office (Greg Clark)
Thank you, Mr Speaker, for allowing me to speak at this stage of the debate to set out the Government’s views on the amendments and new clauses. It will not have escaped anyone’s notice, as hon. Members have said, that the Government have tabled no amendments on Report. That reflects our continuing view that the Bill, as drafted, meets fully and faithfully the commitment that our parties made in their 2010 election manifestos.
My party’s manifesto committed to
“introduce a power of ‘recall’ to allow electors to kick out MPs, a power that will be triggered by proven serious wrongdoing.”
The Liberal Democrats’ commitment was to
“introduce a recall system so that constituents could force a by-election for any MP found responsible for serious wrongdoing.”
The Labour party made a similar pledge.
Douglas Carswell
Does my right hon. Friend think it is somewhat regrettable that the recall proposal does not actually have a recall mechanism in it? There is nothing in it that actually allows voters to have that binary referendum in their constituencies to decide whether or not to recall their MP.
Greg Clark
The recall measure contained in the Bill is precisely that envisaged by the parties’ manifestos.
Throughout the passage of the Bill, the Government have made it clear that—beyond implementing our manifesto pledges—it is open to the House to make further amendments, and that, on the Government side of the House, they would be subject to a free vote, including by Ministers. Given that, all I want to do now is make some observations on the part of the Government about some of the advantages and disadvantages of the amendments in question. I repeat that it will be for the House to decide whether to adopt them.
I will first turn to the amendments tabled by the hon. Member for Dunfermline and West Fife (Thomas Docherty). As he has said, amendments 16 and 17 would alter clause 2 to ensure that historical offences would be liable to trigger recall, which reflects a similar amendment tabled in Committee. As I said when I last stood at the Dispatch Box, there is a case that if an MP were elected and his or her constituents were unaware of the fact that he or she had committed a crime because it had not come to court, that MP might be said to have been elected on a false prospectus. Against that, as my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) has pointed out, it remains novel for legislation in this House to have what could be argued is a retrospective effect, and for a criminal act to have consequences—in this case, triggering recall as an MP—that were not the case when the act was committed.
Amendment 14, tabled by the hon. Member for Dunfermline and West Fife, would alter clause 1 to reduce the number of sitting days from 21 to 10, and the number of days if not expressed in sitting days from 28 to 14. It would also introduce a requirement that for a suspension to trigger recall it must follow on from a recommendation by the Standards Committee. Nevertheless, the length of time for which the MP would be suspended by the House may be different or the same as that recommended by the Standards Committee. That would ensure, as the hon. Gentleman has said, that an MP named by the Speaker for a second offence and suspended for 20 days would not be subject to a recall petition.
The argument in favour of the amendment is that more MPs would be caught by the provision who previously would have withstood the effect of recall. If the recall petition process had been in force with the threshold set at 10 sitting days, then of the 11 MPs suspended since 2000 seven would have met the condition for opening the process. Under a threshold of 21 sitting days, two MPs would have been caught. A further two MPs resigned before the suspension came into effect.
The argument against the proposed change is that the House may wish to impose its own suspensions—sometimes quite long ones—without the consequence of a recall process necessarily being triggered. In other words, the proposal would reduce the scope that the Standards Committee might have to issue sanctions without triggering the recall process.
Amendment 15, tabled in the name of my hon. Friend the Member for Cambridge (Dr Huppert), would mean that a Member of Parliament convicted of the common law offence of misconduct in public office would be subject to a recall petition process regardless of the sentence imposed. Misconduct in public office is a common law offence in England and Wales, punishable by a maximum sentence of life imprisonment. There is, however, no clear, exhaustive definition of what misconduct in public office covers. Action that amounts to misconduct is likely also to be contrary to other laws. The boundaries of the offence are not clearly defined, so they are uncertain. Despite there being relatively few prosecutions each year, a disproportionately high number of those cases are appealed against.
The common law offence of misconduct in public office does not exist in Scotland, so there is a risk that an MP from Scotland could commit the offence of misconduct in public office while working in Westminster given that the offence applies in England, but not if the offence took place while working in their constituency.
Dr Huppert
The Minister is making an interesting point, but is it not the case that an MP taking any other action that was not a criminal offence under Scots law but was such an offence in Westminster could be punished for committing it in England but not for doing it in Scotland?
Greg Clark
Indeed. From reading the minds of Members who are interested in, and sympathetic to, a provision of this kind, it is not clear to me that they intended to have different regimes in different parts of the United Kingdom, given that all of us have the common characteristic of being returned to serve in the United Kingdom Parliament after election by our constituents.
I want to address Opposition amendment 24 on the Parliamentary Standards Act 2009. The legislation was brought forward following the expenses scandal, and it deals directly with dishonest claims for MPs’ expenses. It is fair to say that that issue obviously provided some of the impetus behind the recall proposals in the first place. The offence in section 10 of providing false or misleading information in claims for allowances is intended to deal with the situation in which an MP provides information that he or she knows to be false or misleading. It does not cover innocent mistakes; we are talking about deliberately providing false information. So far, no prosecutions have been brought under the Act. I remind the House that the former MPs and peers who were convicted of fraudulent expenses claims were all sentenced to terms of imprisonment.
It seems to me that the question before the House on amendment 24, and indeed on the territorial aspects of amendment 15, is whether certain criminal convictions should be singled out as requiring treatment that is different from the treatment of other convictions. The trigger relates to imprisonment for other offences, many of which—including the Theft Act 1968—have been used to prosecute Members of Parliament. In considering this matter, the question in colleagues’ minds should be, to put it crudely, whether theft from a member of the public is less worthy of automatic sanction than theft through the IPSA expenses system. Treating those offences differently introduces a distinction that currently does not exist.
Thomas Docherty
Does the Minister however accept that that can happen in other professions? For example, a lorry or taxi driver who receives a driving-related conviction can lose their job, even though they are not disqualified from driving, because committing a driving offence is incompatible with being a professional driver. I am sure that the whole House would agree that the misuse of public funds—stealing from the taxpayer—is incompatible with being a Member of Parliament.
Greg Clark
I accept that. As I have said, the Government’s view is that we should have a free vote on the amendments. I have pointed out the advantages of amendment 24, of which that is one, but it is fair to delineate the consequences. It would, for the very good reasons that the hon. Gentleman gave, put a particular type of criminal offence into the different category of being particularly worthy of sanction, but it carries the implication that some equally egregious and offensive action—clearly, any criminal conviction should be so regarded—would attract a lesser sanction. To put it bluntly, in many people’s minds, theft from a constituent may not be seen as lighter than theft from the parliamentary expenses system; they would both be equally worthy of condemnation. I make that point to clarify the choice facing the House.
I want to address the new clauses and the amendment tabled by the hon. Member for Foyle (Mark Durkan), which would introduce a new recall condition. New clause 4 would provide that, at the start of each Parliament, an MP had to subscribe to a pledge to act in accordance with the MPs’ code of conduct, and to uphold the standards of public life. Under new clause 5, if 500 of the MP’s constituents signed a petition complaining that the MP had breached the pledge, the election court could consider the matter and trigger the opening of a petition.
It came out in the debate, as the hon. Gentleman acknowledged, that his proposed system would overlap with the disciplinary system set up by the House, because nothing would prevent the election court from considering a matter that the Standards Committee had considered and come to a view on—perhaps a different view from that of the election court. It is not clear whether his proposal envisages public scrutiny of MPs’ compliance with the code of conduct superseding the role of the Standards Committee in recommending sanctions. In addition, it could be seen as setting the code of conduct on a statutory footing.
Mark Durkan
My preference is for the code to be policed by the public, using the mechanism of accountability in a proper, open recall system. That is what I want to see, alongside a newly framed pledge.
Greg Clark
The hon. Gentleman made that point clear in his speech.
The amendments and new clauses tabled by my hon. Friend the Member for Cambridge are a modified version of those tabled by my hon. Friend the Member for Somerton and Frome (Mr Heath) in Committee. The intentions of involving the public and taking the responsibility for judging other MPs’ behaviour away from MPs attracted support in Committee. The hon. Member for Dunfermline and West Fife expressed disappointment that those intentions had not been reflected in a Government amendment, as did my hon. Friend the Member for Cambridge in his blog. However, these issues are not easily captured in legislation in a way that avoids the pitfalls that have been mentioned in this debate. It is not for the want of trying, if I may put it in that way. It is for the House to take a view on the proposal if it is pressed to a vote.
Dr Huppert
We will see what happens in the Division, but will the Minister assure us that the Government, with all their advice and lawyers, will seek to come up with a more workable proposal in the other place if we cannot get our proposal through in this place?
Greg Clark
The Government’s demeanour throughout the debates on the Bill, if I may put it in this way, has been that we are open to facilitating the development of amendments and proposals that either House can debate. In conversations, I have been open to allowing officials to advise on the kinds of proposals that may or may not work legally. I see no reason why that should not continue. It is important to be clear that such proposals cannot carry the guarantee of a Government amendment, but I am happy to use my offices and those of my ministerial colleagues to have those conversations.
Chris Bryant (Rhondda) (Lab)
I urge the Minister not to listen too much to the hon. Member for Cambridge (Dr Huppert) for the simple reason that there is a fundamental flaw in his proposals: we would be asking a court to make a judgment on whether such a petition should go forward on remarkably subjective terms. Each of the terms in his proposals—“trivial”, “vexatious”, “brought for party political purposes”, “misconduct”, “trust”—is entirely subjective and is surely not good enough for a court to be able to assess.
Greg Clark
I said a few moments ago that it had not been possible, in good faith, for the Government to recommend an amendment that the House could responsibly be invited to support. Since further amendments or developments of the Bill are a matter for the House I will ensure that advice and help is provided, but these matters must be considered and there is no guarantee that a form can be found that avoids the practical difficulties. The hon. Gentleman’s more fundamental point is a matter for this House and the other place, and any amendments would return to this House to be determined.
Let me set out some of the challenges in the new clauses, although some have been expressed already. The definition of misconduct is based on the common law offence in England and Wales, but its test is not just the criminal offence. As drafted, it could capture behaviour that would not be a criminal offence, including in an MP’s private affairs, and it would be for the court to judge whether certain behaviour in a Member’s private life amounted to misconduct. The election court would have to apply the test of whether the MP had committed
“misconduct to such a degree as to amount to an abuse of the public’s trust”.
I understand and appreciate the aim of linking misconduct to an MP’s standing in the eyes of the public, but as drafted it is a rather subjective test. The House will want to take a view on the kinds of evidence and analysis that a court might draw on to judge whether the public at large felt there had been a betrayal of trust, including where no criminal offence was alleged to have been committed.
Sir Paul Beresford (Mole Valley) (Con)
My right hon. Friend will be aware that that position has been discussed by the House as it relates to the Committee on Standards, and it was rejected.
Greg Clark
I am grateful for that intervention. It is now clearly on the record and Members can reflect on the view taken by the Committee.
Let us consider the body that would make the judgment about alleged misconduct. Election courts are convened to consider cases that question the outcome of an election, and they do not meet unless a petition has been brought. At the end of the hearings, the court determines whether the election was valid or void, which can take several months to a year. The court has no investigative capacity but hears views from relevant parties. Giving this new role to an election court would mark a significant departure from current practice, and as I said, it lacks the capacity to launch an investigatory process. Furthermore, no appeal is provided for in the new clauses; indeed, the election court is not currently subject to appeal but only to limited judicial review. That raises the question of whether the election court model is the right basis for the proposal. If it is, I suspect that a number of questions could usefully be asked when fleshing out the detail, including whether there should be an appeals mechanism.
My hon. Friend the Member for Cambridge proposes to set the number of petitioners necessary for the election court to consider an allegation of misconduct at 500. Of course, if it is alleged that a criminal offence has been committed it takes only one person to make a complaint and to have it investigated by the police. Arguably, if the complaint is valid, it should be taken forward regardless of the number of complainants. On the other hand, as a test of popular will the House will want to take a view on the right number of petitioners. The new clause increases to 15% the percentage of electors who need to sign the petition to trigger recall, which is higher than for the other conditions. However, 500 is a lower threshold for the initial trigger.
If there are to be such additional triggers in the Bill, the House must consider whether to set out the relationships, or hierarchy, between the different recall conditions. An election court could look at issues that could also be considered by the Committee on Standards, which operates on a trigger, or by the police as the gateway to a criminal conviction. If the defence was rehearsed before an election court, or if the court’s finding was considered prejudicial to an MP’s presumption of innocence, it may not be possible for them to have a fair trial. The fact that an MP had to answer allegations in an election court could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.
Finally, let me turn to the issue of parliamentary privilege. New clause 3 includes a provision stating that section 9 of the Bill of Rights will not be affected. I understand that this is intended to ensure that privileged matters are not the subject of judgment by the electoral court. However, the use of the word “affecting” could be read in one of two contradictory ways by a court: either as a statement that privilege matters are excluded; or as an admission that the Bill overrides the Bill of Rights, and therefore impacts on privilege but only for these limited purposes, thereby inviting an election court to consider privileged issues as part of a case. If an exclusion is desired, it could benefit from clarification.
In conclusion, the Government were clear on Second Reading that we are open to ways to improve the Bill and we stand by that commitment. My intention has been to summarise and highlight some of the points the current drafting raises. It is right that the House votes in full knowledge of the technical and policy challenges that remain, as well as the principles behind the amendments. I look forward to hearing the views expressed during the remaining part of this debate.
Dame Angela Watkinson (Hornchurch and Upminster) (Con)
I support the principle of the Bill: to enable the recall of MPs between general elections if they are considered to have conducted themselves in a grossly unacceptable or inappropriate manner that has led either to a custodial sentence or a suspension from the House of Commons for a period of at least 21 sitting days. Sentences of more than 12 months already lead to automatic disqualification under section 1 of the Representation of the People Act 1981. A third trigger has been proposed, in new clause 2, for a petition signed by 500 people to present allegations of improper behaviour. Presumably, this would not relate to illegal conduct, which would have already led to arrest and charge. I urge caution, because I think this opens up a whole debate on the interpretation of the word “improper”, which will mean different things to different people. An MP’s prolonged absence from the House of Commons without good reason would not be a criminal offence, but it would leave constituents effectively unrepresented and might justify a recall petition on the grounds of wholly improper conduct.
I did not support proposals in Committee for recall by 5% of the electorate for any reason. I predict that “any reason” could comprise such a wide spectrum as to invite frivolous petitions and could include, for example, disapproval of an MP’s political or religious views on controversial subjects such as: a Member’s sexual orientation, entering a same-sex marriage, capital punishment, euthanasia, abortion, smoking, hunting, alcohol, drugs, gambling and local planning matters. We could all think of any number of reasons that would give rise to frequent vexatious recall attempts of MPs with views that are unpopular with certain sections of their electorate. Recall could be generated easily by well-funded pressure groups or individuals, with all the associated costs to the taxpayer.
I am also concerned that 500 constituents would form a very small percentage of the electorate. In a constituency of 85,000, 500 would be way below 1%. I have not done the exact calculation, but it would be somewhere between 0.5% and 1%. I am sure somebody is scribbling away already to give me the exact figure. That threshold is far too low, and for that reason I will not support new clause 2, new clause 5 or the related amendment 34. Every Member of this House will know that an accusation against one of our number reflects on each and every one of us, and on Parliament as a whole. The blame falls collectively and the media rejoice in referring to MPs as though all 650 of us are guilty of something of which one or a very small number stand accused. We need to guard against a “guilty until proven innocent” culture, where an MP may be destroyed reputationally and financially, and then, when cleared, finds that the damage is irreparable.
New clause 4 proposes an MP’s pledge. This has some merit, although I have always assumed that its contents were implied when an MP is sworn into this House. The pledge would reinforce that, although I do not take comfort, as the hon. Member for Foyle (Mark Durkan) does, that its contents would reassure the general public or help to deter vexatious accusations.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. We are dealing with the new clauses and amendments. The hon. Lady’s comments might relate to some of the amendments, but she will want to bring her remarks back within the scope of the discussion.
Dame Angela Watkinson
Thank you, Mr Deputy Speaker.
To conclude, when he winds up the debate, I hope that the Minister will indicate that an induction course for new Members after the 2015 general election will be put in place.
Chris Bryant
I will restrict my comments to new clause 3, tabled by the hon. Member for Cambridge (Dr Huppert) and others.
In the first round of these debates a few weeks ago, I supported the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith) because I wanted a fuller system of recall that gave voters the opportunity to decide when a recall should be advanced, rather than keeping such decisions entirely within the House. At the time, I recognised the honest and honourable endeavour of the hon. Member for Cambridge and others in his party to find another way of opening up that gate, were the amendments tabled by the hon. Member for Richmond Park to fail.
I must say, however, that I have profound misgivings about the new clause. First, many of the terms are imprecise. I heard the hon. Gentleman say that they were all common- law terms. That is true, but we are putting common-law terms in statute law, and quite often that leads to a difficult situation for courts and judges to provide decisions around. It gets much more complicated in that kind of environment, because they are looking for a steer—what did Parliament really intend by putting a common-law term into statute law?
For instance, new clause 3(5) sets out the condition that
“the court considers, on the basis of such evidence, that the allegation of misconduct is—
(a) not supported by the evidence”.
I think that is a fairly readily understandable concept; however, subsection (5) continues:
“or…trivial or vexatious in nature”.
I would suggest that they are two different categories and have generally been treated differently in common-law decision making. Yes, there is case law that relates to that—sometimes the court has said to the Crown Prosecution Service, “I’m sorry, this should not be considered because it is inadequately serious.” However, it is difficult to import that into this kind of decision.
Then we have the phrase
“brought for party political purposes”.
I cannot conceive of a political argument that I have not advanced for a party political purpose. Maybe that makes me immensely partisan—[Interruption]—although I think that every Member who just said, “You said it,” or, “Hear, hear,” was being partisan in the very way they advanced that argument, or at least one could argue that. That is my central point: anybody could argue that any argument was being made for a party political or not for a party political purpose. Guessing what was in the minds of the 500 people who brought the case—500 minds, incidentally, that the court would have to consider in deciding whether something had been done for party political purposes, not one mind—makes a bit of a mockery of that phrase.
There is also a problem with what, precisely, it is that the court is deciding that the Member would have done. New clause 3(4) says:
“The court must consider whether, on the basis of such evidence, it is reasonable to believe that the MP has misconducted”—
I do not like that word for a start, which seems remarkably American in tone—
“himself or herself, to such a degree as to amount to an abuse of the public’s trust in the MP, without reasonable excuse or justification.”
It seems to me that it would be almost impossible ever to adjudicate on such a term. How does one know that the misconduct is of such a degree that the public’s trust in the MP could or should be abandoned? We might be able to determine whether it had been, but I cannot see how a court could determine that the misconduct was of such a degree that the public should have lost their trust in the Member of Parliament, even if they might not have done so, other than the 500 people before the court. And what is this “reasonable excuse”? The concept of “reasonable” is well used in the courts, but what about reasonable excuse? Normally, the reasons for appeal are presented in statute law; in this case it is just a “reasonable excuse,” and we cannot possibly arrive at a decision about what that might be.
Dr Huppert
I do understand; it is a shame we could not have had these interactions earlier, during my speech. The wording is taken from the Attorney-General’s reference No. 3 of 2003, which says:
“The offence is committed when a public officer acting as such wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification”.
The wording is already extant.
Chris Bryant
Yes, and it is remarkably poorly used, for the simple reason that it is regularly taken to appeal—[Interruption.] If the hon. Gentleman wants to intervene again, I would be happy to give way to him, although I would probably be being generous with other people’s time rather than my own.
My argument is that these are imprecise terms. That is not a good way of legislating, not least because at the moment that a court decided that there had been misconduct such as that on which the hon. Gentleman wants it to decide and that none of the get-out clauses in new clause 3(5) applied, to all intents and purposes the court would have decided, in the public mind, that the Member of Parliament was guilty—end of story—and I cannot see how that would not affect whatever might happen in a subsequent recall.
I have one final problem with the drafting. I understand why the hon. Member for Cambridge has provided in subsection (7):
“Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”
That appears because several Members have pointed out that there is a problem: if the Bill of Rights says that no proceeding in Parliament should be “impeached or questioned” in any court of law or any other place, it would be a bit rum for a court expressly to be told that it can go forward on the basis of whether or not an MP has “misconducted” themselves in a proceeding in Parliament. The new clause expressly says that one of the criteria that can be considered is “conduct”, whether it be as a Member of Parliament or not—completely and utterly irrelevantly.
I believe that there is a fundamental contradiction in the new clause. Under it, the court could decide that how somebody had spoken in Parliament or engaged in a proceeding in Parliament could be considered as relevant to a misconduct hearing. That would limit free speech, which we should guard jealously in this House, and, essentially, undo the Bill of Rights. It is a contradictory provision. For all those reasons, I could not support new clause 3, tabled by the hon. Member for Cambridge.
Jacob Rees-Mogg
I am in a good deal of agreement with the hon. Member for Rhondda (Chris Bryant). I came into this debate, most unusually, undecided as to how I was going to vote. No guidance was provided from the Whips about how I ought to vote, which I view as a great advance. It is to the great credit of my right hon. Friend the Member for Surrey Heath (Michael Gove) that he is not trying to tell people how to vote. It shows a considerable wisdom to return to the traditional practice of having free votes on constitutional matters. I hope that this will be continued by other parties and in other Parliaments. [Interruption.] The hon. Member for Rhondda says that I do anyway, and he is probably broadly right, but I think this should be encouraged across the House.
I was interested in new clauses 2 and 3. There is a need and desire to widen the ability for recall and to make it easier for constituents to remove Members of Parliament who they think have behaved improperly. The main thrust of the Bill is too narrow, which is a lost opportunity but not a fatal one because it can be developed in future Parliaments. Constitutional development often happens at a slow pace, which is not something I am against. I think we want constitutional reform to take place at a pace with which people are broadly comfortable and that carries the nation with it.
New clauses 2 and 3, however, fundamentally misfire. Instead of making this something that will be decided by the electorate, the provisions introduce a third party—the courts—to try to determine what the hon. Member for Rhondda rightly pointed out are fundamentally political issues. The restrictions to which he referred, particularly the third example where the misconduct case is “brought for party political” reasons, are a complete negation of what is being tried to be achieved. Any complaint must be brought for party political reasons, and any attempt to unseat a Member of Parliament is going to be carried out by somebody who has a party political affiliation of some kind, and it will be to the benefit of a political party to remove a Member of Parliament from another party. Even if the petition and process were started by some wonderfully high-minded figure, of which I am glad to say we have a very large number in North East Somerset, politicians would get involved in it because they would see the advantage, particularly if the Government had only a small majority, of removing a Member of Parliament or indeed of causing such inconvenience that would make it almost impossible for that Member of Parliament to continue in office.
Another issue involved is the legal costs. Are we to provide a fund to help Members of Parliament defend themselves in these circumstances, or do we find that the Member of Parliament could be bankrupted by the very process—to see whether he had committed misconduct in public office—and thus removed from Parliament anyway, even though the misconduct in public office could not, in the event, be proved?
We in this House have always sought to keep the courts out of our own proceedings. There seem to me to be two valid sets of people who can intervene in our proceedings: the general public who send us here, and who have an absolute right not to send us here but to send other people in our place; and our own systems, procedures and Committees, which are able to regulate internal goings-on in the House—a right that we declared long before we achieved it in the Bill of Rights.
Thomas Docherty
As ever, I am enjoying the hon. Gentleman’s fascinating yet “in order” tour de force, but let me gently remind him that our proposals would exempt Members who fell below the standards that the Chair expected. Mr Brown, whatever else his flaws may have been, would not have been covered by recall.
Jacob Rees-Mogg
I am grateful to the hon. Gentleman for his comment, but I am still discussing new clauses 2 and 3. I have not yet moved on to his amendments, towards many of which I am very sympathetic. What concerns me about the new clauses is that they would allow the courts to rule on what was going on in the House. It is very important to prevent that from happening, both from our point of view and from the point of view of the courts. The courts are rightly reluctant to rule on what they believe to be fundamentally political decisions, and it seems to me that new clauses 2 and 3 would give them authority in regard to fundamentally political decisions, such as whether someone’s standard had been that of a decent Member of Parliament who had committed no offence.
Chris Bryant
The hon. Gentleman may be interested to know that so reluctant are the courts—and rightly so—to judge on any proceedings in Parliament that when the court was considering whether Rebekah Brooks had ever paid a police officer for information, it was not allowed even to consider the fact that when asked on 11 March 2003, during a proceeding in Parliament, whether she had paid a police officer, she had said “Yes.”
Jacob Rees-Mogg
I happen to think that that is absolutely right, both from our point of view and from the point of view of the courts. It is important that our proceedings allow people to be honest and to speak freely without incriminating themselves, and that must be a protection that we seek to maintain. I think that if we undermine it by bringing the courts into the details of the behaviour of Members of Parliament, we will fail. I would go in the opposite direction. Like my hon. Friend the Member for Richmond Park (Zac Goldsmith), I would go the whole way and leave it to the British electorate. I would place my trust in them, and let them get on with it. But the worst of all solutions—worse even than a Committee of chums somewhere upstairs deciding that we have all behaved beautifully—is to involve the court system.
I also cannot agree with the hon. Member for Foyle (Mark Durkan), which is rare, because I often do agree with him. He has proposed a “pledge” in new clause 4. I do not like the pledge. I think that it reads as a sort of bureaucratic announcement that we are all going to do good things, in that awful “speak” that is so common in conferences, about how you should be a leader and grab hold of your management skills, and all that waffle.
I do not like that at all. It does not accord with my vision of myself as a Member of Parliament. I think that Members of Parliament are here at the service of their constituents, and that their constituents will judge whether they are doing their job properly, rather than someone’s saying that they have not shown leadership. What on earth does “showing leadership” mean? If you are the Prime Minister it is easy, but what is a Back-Bench MP meant to do? [Interruption.] The Prime Minister always shows wonderful, clear, decisive leadership. The hon. Member for Dunfermline and West Fife (Thomas Docherty) is cackling from his Front Bench. Many people think it is a pity that he did not show leadership by trying to become leader of the Scottish socialists, which would have been very welcome.
Jacob Rees-Mogg
Or even the Scottish Labour party, which is much the same thing.
I do not think this presents the right image of what a Member of Parliament is trying to be. A Member of Parliament is not trying to be some sort of second-tier bureaucrat. A Member of Parliament is someone who is there to represent his or her constituents, to take a view on the interests of the nation, both nationally and internationally, to stand up and be counted on the basis of what he or she says or does, and then to be held to account by the electorate, rather than making some waffly pledge.
I also think that in trying to get away from the oath we already take, it fundamentally misunderstands the purpose of the oath. The purpose of the oath is not to show we do not want to change the laws, and it is not to show even that we are necessarily monarchists—although, for the avoidance of doubt, I certainly am—but it is to show that we accept the norms and standards of the country as they currently exist and are willing to use those to change the law through Parliament, and subscribing to that is an indication that a Member of Parliament will behave properly in seeking change, rather than do it in a demagogic or potentially violent fashion. Therefore the oath as a statement of loyalty to the nation via the sovereign is a very important statement and does not preclude people from holding republican views. It merely requires them to express them and act upon them in a parliamentary and legal fashion. I think that is an important distinction and it is why I would oppose new clause 4 and it follows that I would oppose new clause 5. I also think, as I said in an intervention on the hon. Member for Foyle, that the two did not go together—that trying to give it to the people and then giving it to a court did not work.
I want to finish very briefly on the amendments from the hon. Member for Dunfermline and West Fife. By and large I think they are extremely well considered. I believe that the right of recall should be as wide as it can possibly be made. I would like it to be more generous, and therefore reducing the threshold is sensible. It is obviously sensible, in the atmosphere over the last few years and considering the sensitivity of expenses, to say that somebody who has committed an offence in claiming their expenses ought to face the risk of recall. That ought to be a basis of it because it shows that somebody in this House has behaved badly in their basic terms of membership of this House, so I completely support that, but I cannot support the final amendment on retrospection. I think this is unjust. I see the reasons for it and the case the hon. Gentleman made about the Member of the Scottish Parliament who had committed many serious crimes, but it indicates a problem with the establishment of the Scottish Parliament that it could not do anything about that.
I also accept that somebody at, let us say, 30 who goes out and robs a bank is not thinking, “Good heavens, if I get into the House of Commons in five years’ time, I may lose my membership because that may be part of the penalty.” I am sure they are thinking more immediately about the risk of a police officer being there and catching them in the act and hauling them off to chokey, but none the less it is unfair to penalise people in a way they did not know could apply to them before they committed the offence, and if this House does not stand up pedantically for the rule of law, nobody will.
Jacob Rees-Mogg
Does the hon. Gentleman wish to say something? He is wavering about whether to intervene. I may be persuading him; he may wish to withdraw his amendment on the strength of what I am saying.
There is a further protection, which has been overlooked throughout this whole debate on the issue of recall, and that is that if the behaviour is so egregious—so shocking to all good common sense—then this House of Commons has the right to expel that Member anyway. We should not forget that, or allow it to wither on the vine.
Thomas Docherty
Given that this Act will, assuming it clears the Lords, come into force at the start of the next Parliament, does the hon. Gentleman not recognise that anyone who chooses to stand for election at the general election on 7 May would know that, if they had committed an offence for which they were then prosecuted and found guilty, they would be subject to recall?
Jacob Rees-Mogg
The hon. Gentleman puts as good a gloss on it as he can, but I do not think it changes the fundamental principle. We could equally say that a Member of Parliament who had committed an offence should be subject to double the time in prison, regardless of when the offence was committed. That would be fundamentally unjust. If we were to say that from tomorrow Members of Parliament who commit an offence should have double the time in prison, that would not be unjust. That would be simply saying that Members of Parliament should be held to a higher standard, and that is perfectly arguable, but to say for an offence committed previously that the punishment can be increased is to act against justice and that is something it is important not to do.
Dr Huppert
That is exactly what happened with police and crime commissioners in legislation for which I presume the hon. Gentleman voted. If they have ever been convicted of an imprisonable offence, they are debarred from the office.
Jacob Rees-Mogg
I think the PCCs are rather an irrelevance to what we are discussing and I want to remain in order. I believe it is important to be pedantic about upholding the rule of law, and therefore I will oppose that amendment from the hon. Member for Dunfermline and West Fife. I will support his other ones, but I must reject the proposal that we bring the courts—
Lady Hermon
May I put a proposition to the hon. Gentleman which is a possibility? On 17 July Lady Justice Hallett’s report was published and a statement was made by the Secretary of State for Northern Ireland. In that report, it was identified that 14 terrorists of the republican movement had been granted the royal prerogative of mercy. They are unnamed, but it is believed they might include senior politicians representing Sinn Fein. If the names of those 14 recipients of the RPM whom we know to be republican terrorists were to be revealed and included a Member of this House, would the hon. Gentleman think differently?
Jacob Rees-Mogg
I always give way to the hon. Lady and she always then serves up the most impossible and difficult interventions. I think she is the Michael Holding of interventions, with these very fast balls being bowled at me. My stumps have disappeared behind me, but what I would say is that I would apply exactly the same rules to those people as to anybody else.
Thomas Docherty
If someone commits an offence currently for which the sentence tariff is less than one year, it is quite reasonable that in future the House of Commons may change the disqualification Act to bring that disqualification down to less than one year. That would equally apply to them. Why does the hon. Gentleman not think that this House has the right to recall somebody who has committed offences prior to this date?
Jacob Rees-Mogg
I am not sure the hon. Gentleman is right about that because, interestingly, the ability to expel peers very carefully ensured it was not retrospective to the crime or to the sentence. It was right to adopt the principle that it is fundamentally unjust to punish people when they did not know that was the punishment at the time when they committed the offence, so I must oppose his amendment.
Conor Burns (Bournemouth West) (Con)
My hon. Friend will see that sometimes when the courts come to sentence someone who is brought before them for an offence committed many years previously, they are obliged to look at the sentencing guidelines that applied at the time of the offence. The case he is making is absolutely right: we cannot have retrospective cases such as this.
Jacob Rees-Mogg
I entirely agree with my hon. Friend and we have seen this in some of the recent celebrity sex offending cases: people have been sentenced under the old rules. That is a good principle of law and this House ought to maintain good principles of law. That is why we should reject that amendment, and reject the amendments of my hon. Friend the Member for Cambridge (Dr Huppert), because they bring the courts into our proceedings, but I think we should accept the amendments of the hon. Member for Dunfermline and West Fife that allow more free-flowing recall, because ultimately we should trust the good sense of the British people, especially those in Somerset where most good sense is to be found.
Michael Ellis
As usual, it is a great honour to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). May I start by agreeing very much with him about the issue of retrospective penalty? It is more than guidelines; it is a fundamental principle of the law of England and Wales that penalties do not apply retrospectively. I have prosecuted and, for that matter, defended cases in court which are often historical offences—this relates particularly to sexual offences, but it can relate to other types of offence as well—where the penalties have moved on and often been increased in the intervening years. The historical sex offence with which the individual defendant is charged carries a maximum that no longer applies, but the court is bound by the maximum sentence that was in place at the time of the offence.
Thomas Docherty
I accept the hon. Gentleman’s point that the sentence must reflect the crime, but the 1981 Act applied to cases prior to 1981. If an offence came to light now that was committed prior to 1981 and a sentence of a year and a day was handed down, the person would be disqualified.
Michael Ellis
There is nothing objectionable about a disqualification provision for those persons who have previous convictions, so the point that was made earlier about police and crime commissioners is not the point that I am addressing. The point in respect of retrospective penalty is the one that I have made—that to pass a penalty that did not apply when the offence was committed is contrary to natural justice and the provisions of English law as it has always existed.
I voted for real recall, as it is called, proposed by my hon. Friend the Member for Richmond Park (Zac Goldsmith). I very much support the provision that would allow the electorate to have their say in this matter, but the amendments are unconvincing. Misconduct in public office is another offence that I have prosecuted. Those prosecutions often related to police officers who had misconducted themselves, for example, through the misuse of the police national computer for their own personal reasons. Intervening courts are not the right way of processing the issues that we are addressing here. It should be a matter for the electorate.
I am unconvinced by new clause 4 and the pledge, as was my hon. Friend the Member for North East Somerset. The oath that we already take covers the circumstance. When we as Members of Parliament take an oath to be faithful and bear true allegiance, that encompasses a duty on us to uphold standards in public life. Therefore I am not convinced by the assertion by the hon. Member for Foyle (Mark Durkan) that another oath is necessary.
An election court is unnecessary and would be a departure from our practice. The election courts that we currently have do not exist 365 days a year. They are brought into existence only on a petition, in very exceptional circumstances. They are rarely established. They are not investigative, so they cannot investigate matters as we would envisage them wanting to do. There is no process of appeal, so an election court would not be the right basis. It would also be bureaucratic and expensive.
The amendments attempt to bring the electorate out of the equation and to put the matter in the hands of third-party expensive and bureaucratic interests, which I do not support. I have doubts about the reduction to 10 days because those persons who are found to have been rude, who have not apologised to the House, or who have done something that falls below the standards expected should not be open to such a provision.
I support real recall. The amendments are in many cases a device to avoid public scrutiny. The electorate should have a say in the matter. Those are my views.
Dr Huppert
We have had an interesting and somewhat complex debate, and it is good to have more Members present at the end making arguments than there were at the beginning to hear the arguments made in the first place. It seems clear that there are those who agree with the principle of new clause 2 but not with the detail of it, there are those who oppose the principle of it, and there are those who oppose the principle of extending recall at all. It would not be appropriate for this House to delegate to the other place all our decisions about how we should be recalled. I therefore wish to test the opinion of the House on new clause 2 to see how many Members support that option in principle. I wish to press amendment 15 as well, because I believe the House would want to say that any MP who has been convicted of misconduct in a public office should be subject to recall.
Question put, That the clause be read a Second time.
Dr Huppert
I beg to move amendment 9, page 6, line 30, leave out subsections (4) and (5) and insert—
‘( ) The Minister may, by regulations, having consulted the Electoral Commission, prescribe or amend the wording which must be included on a petition signing sheet.’.
This amendment allows for the Minister to bring forward detailed wording for the petition-signing sheet after having consulted the Electoral Commission.
Madam Deputy Speaker (Mrs Eleanor Laing)
With this it will be convenient to discuss the following:
Amendment 10, page 6, line 40, leave out
“a by-election will not be held, as a result of the petition”
and insert
“therefore no by-election will be held.”.
This amendment clarifies wording prescribed for the petition-signing sheet.
Amendment 11, in clause 19, page 13, line 7, leave out subsection (1) and insert—
‘( ) If a relevant circumstance arises, the functions of the Speaker under or by virtue of this Act (“the Speaker’s functions”) are to be performed by the Chairman of Ways and Means or a Deputy Chairman of Ways and Means’.
This amendment clarifies that only a post-holder elected by the House will be able to exercise The Speaker’s functions under this Act.
Amendment 12, page 13, line 12, leave out second “or” and insert—
‘( ) a recall condition has been met in relation to the Speaker, or’.
This amendment provides for circumstances where The Speaker meets a recall condition.
Amendment 13, page 13, line 14, leave out subsections (3) and (4).
This amendment is consequential on the clarification that only a post-holder elected by the House will be able to exercise The Speaker’s functions under this Act.
Dr Huppert
After all that excitement, I will try to be brief in presenting these minor and technical amendments. Amendment 9 seeks to deal with some of the awkward wording throughout the Bill on what is required for a recall petition. It simply states that the Minister should talk to the Electoral Commission and then come up with the wording. That would make for a much more flexible approach. I hope that the Government will agree that that is a cleaner and better way forward.
Amendment 10 deals with some particularly ugly wording. The current wording on the petition signing sheet states:
“If less than 10% of eligible registered electors in the constituency sign the petition, the MP will not lose [his/her] seat, and a by-election will not be held, as a result of the petition.”
Perhaps it should state
“and therefore no by-election will be held.”
The amendment seeks to turn what is on the petition signing sheet into something approaching the English language. Again, I hope that is not controversial.
Amendments 11, 12 and 13 deal with some errors that were pointed out in Committee—[Interruption.]
Madam Deputy Speaker
Order. Other Members should not be standing and speaking in the Chamber. The hon. Member for Cambridge (Dr Huppert) is making important points about important amendments and must be heard.
Dr Huppert
Thank you, Madam Deputy Speaker, and I thank all the Members in the Chamber.
Clause 19 deals with the performance of the Speaker’s functions by others. The Speaker has a critical role in the recall process. The Bill, as currently drafted, states that the Speaker can appoint somebody to perform those functions. That seems very strange for a number of reasons, so amendment 11 proposes that, rather then the Speaker being able to appoint somebody, the Chairman of Ways and Means or a Deputy Chairman of Ways and Means, such as you, Madam Deputy Speaker, would be the obvious person to take on those responsibilities.
Amendment 12 picks up on the point, made in Committee, that one of the exceptions would be if the Speaker was subject to a recall. In such circumstances it would be odd to expect the Speaker to set in train the process of recalling him or herself, and that raises the question of what would happen if they refused to do so. Would another recall petition be sought against them for failing to fulfil the first?
Amendment 13 is entirely consequential on the other two amendments. I hope that all five amendments will not prove controversial and that the House will support them unanimously. In the interests of time, I will not push any of them to a vote if there is dissent within the House. However, I hope that the House will agree to them so that they can be made to the Bill as minor, technical and corrective measures.
Thomas Docherty
I, too, will be relatively brief. Amendment 9 relates to an issue we discussed in Committee. The Government gave a clear indication to the Committee that they recognised that it would be inappropriate to place wording in primary legislation on which they had not consulted the Electoral Commission. I hope that the Minister will confirm when he responds whether the Government have now consulted the Electoral Commission, as they undertook to do in Committee.
I agree with the hon. Member for Cambridge (Dr Huppert) that, having had a hat trick of wins earlier this evening, we should not press our luck tonight. However, we are clear that we do not believe that it is appropriate to have wording in primary legislation that has not been agreed by the Electoral Commission. We will expect the other place to remove that wording if the Government are unable to satisfy this House that they have consulted the Electoral Commission.
Amendment 10 simply rewrites the wording set out in clause 9, as the hon. Member for Cambridge said, and I do not think that it requires further explanation. Amendments 11, 12 and 13 relate to a point that was made during our line-by-line consideration of the Bill. He is absolutely right that it is inappropriate to have ambiguity about what would happen if the Speaker was subject to a recall petition—not least for the benefit of the Speaker. We think that it is correct to state explicitly that the Chairman of Ways and Means or the Deputy Chairmen of Ways and Means are the appropriate post-holders in the unlikely event that a recall petition affects the Speaker.
That point was raised with the Government informally, so we hope that the Minister has had a chance to consider it. His previous answer was that the Chair would be vacant because the Speaker would be serving a custodial sentence. However, we have just agreed by an overwhelming majority to make an amendment that will apply this to non-custodial sentences, so that argument no longer holds water. Also, if an MP received a very short sentence, they could be out of custody by the time the recall procedure was initiated.
This is purely a tidying-up exercise and we do not see the point in detaining the House. We are sure that the Minister will have reflected on our previous discussions and will agree to make these minor but necessary changes to the Bill.
Tom Brake
I intend to make a satisfyingly and commendably brief contribution: these amendments are not controversial.
Amendment 9 would remove from the Bill the wording of the petition signing sheet and the ability to amend it by regulations. This would be replaced by a power enabling the wording to be prescribed or amended by regulations following consultation with the Electoral Commission. The wording of the petition signing sheet currently appears in the Bill and can be amended through regulations. This aligns with the power that exists in the Representation of the People Act 1983 that allows for the ballot paper for UK parliamentary elections to be amended through regulations, although the form of the ballot paper itself appears in the Act.
Amendment 10 seeks to amend the wording to appear on the petition signing sheet by making it easier for the elector to understand that the MP will not lose his or her seat and a by-election will not be held if fewer than 10% of the registered electors in the constituency sign the petition. I remind hon. Members that this wording has been developed in conjunction with the Electoral Commission to ensure that it is balanced and fits with the commission’s guidance on referendum questions.
I can see the intention behind the amendments. The first amendment addresses concerns expressed in Committee that if any user testing takes place—I can confirm that we do intend to user-test the wording of the signing sheet—it might be clearer to remove the wording from the Bill and accept that the final form of words will appear in regulations. It is important that the wording is approved by Parliament, whether on the Floor of the House or in a delegated powers Committee. I agree with my hon. Friend the Member for Cambridge (Dr Huppert) that proper consultation should be part of the process of developing the wording. That is why we have worked on it with the Electoral Commission and are now looking to test it further to ensure that it is right. Either the power in clause 9 or that proposed in amendment 9 would allow the wording to be adapted or set should changes flow from the user testing. Amendment 10 demonstrates that there is no single way to word the signing sheet, and that is why we are committed to undertaking user testing. The views of the public will provide us with a clearer picture on where improvements can be made not only to the signing sheet but to the notice of petition.
As for the wording of the petition signing sheet, there is a specific purpose behind the use of the words,
“as a result of the petition.”
If the petition is successful, it is right that a by-election will be held. However, if the petition is unsuccessful, it is not necessarily the case that a by-election will not be held. A by-election could be held because the MP decided to resign his or her seat, or otherwise lost his or her seat. The use of the words,
“as a result of the petition”,
seeks to ensure that the public understand that the effect of an unsuccessful petition is not necessarily to prevent a by-election. The question for the House is whether the wording should be retained in the Bill or be replaced with a power to prescribe the wording in regulations. If the wording is to be retained, the question then is whether we accept the proposed amendment to clarify that a by-election will not be held or leave this to user testing.
Lady Hermon
A small but very important point is that those signing a petition should know of the percentage that is required and the consequences that the Minister has outlined. Will he shed some light on the sequence of the wording in subsection (4)? Why are the two paragraphs in that order and not in the reverse order, which would be much more helpful to those signing the petition?
Tom Brake
As I said, this has been discussed with the Electoral Commission, which has been very careful to ensure that the wording is as clear as possible. I will have to get back to the hon. Lady on whether there was a specific reason why the paragraphs were put in that order, but I suspect that it was felt that that was the clearest way of presenting the information, rather than the alternative she suggests.
Amendments 11, 12 and 13 would amend clause 19 regarding the role of the Speaker. Under the Bill, certain functions, such as giving notice to the petition officer in the relevant constituency when one of the recall conditions has been met, are performed by the Speaker. As currently drafted, clause 19 allows for the Speaker to appoint a person to perform the relevant administrative functions, including giving notice of the opening of the recall petition process, if the Speaker is unable to perform these functions or there is a vacancy in the office of the Speaker. If no such person is appointed by the Speaker, there is a provision that the Chairman of Ways and Means or a Deputy Chair of Ways and Means will perform the functions. The provisions in clause 19 as originally drafted replicated those found in other legislation such as the Recess Elections Act 1975.
During the debate in Committee, my hon. Friend the Member for Somerton and Frome (Mr Heath) pointed out that as the Chairman of Ways and Means and Deputy Chairs are now elected rather than being appointed by the Speaker, the functions of the Speaker should automatically be carried out by the Chairman of Ways and Means or a Deputy Chair of Ways and Means in the event that the Speaker cannot perform them. The amendment would ensure that if the Speaker was indisposed and unable to perform the relevant functions, the functions would be performed by the Chairman of Ways and Means or a Deputy Chairman of Ways and Means rather than giving the option to the Speaker to appoint someone else. In addition, the hon. Member for Dunfermline and West Fife (Thomas Docherty) expressed concern about who would perform the Speaker’s duties in the event that the Speaker was the person whose behaviour had triggered the recall conditions. The amendments put it beyond doubt that in such a situation the functions relating to the recall petition process would be carried out by the Chairman of Ways and Means or his deputies.
Some matters of detail will need to be addressed, but if my hon. Friend the Member for Cambridge is content not to press his amendments I am totally confident that those matters can and will be addressed in the House of Lords. I hope that the House will consider the full range of points made in the debate when considering these amendments.
Dr Huppert
This has been a brief and fairly agreeable debate. I hear what the Minister has said. I said that I would not press any proposal that was criticised in the House, and I will not do so. In particular, I should listen carefully to what the Electoral Commission has said, especially because my predecessor is one of the commissioners, so I would not challenge his wisdom. I accept the Minister’s commitment to address these matters in the House of Lords, although I do have a concern about the habit of this House to wait for the other place to fix things. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Third Reading
The Parliamentary Under-Secretary of State for Education (Mr Sam Gyimah)
I beg to move, That the Bill be now read the Third time.
As you can tell, Madam Deputy Speaker, I am very keen for the Bill to be read a Third time. I will start by thanking my colleagues, the Minister of State, Cabinet Office, my right hon. Friend the Member for Tunbridge Wells (Greg Clark) and the Deputy Leader of the House, for the role they have played in the debates so far. I also thank Opposition Front Benchers—I can say this with confidence—for the constructive and non-partisan way in which they have approached the Bill.
I thank those who have tabled amendments, particularly my hon. Friend the Member for Richmond Park (Zac Goldsmith) for his principled arguments and the passionate way in which he and others have advanced their case. As on Second Reading, I reiterate my thanks to the Political and Constitutional Reform Committee for its pre-legislative scrutiny of the Bill.
The coalition’s programme for Government made a commitment to establishing a recall mechanism for MPs who have been found guilty of wrongdoing or misconduct. The Bill fulfils our coalition commitment to delivering a practical recall mechanism to hold MPs to account when they have done something wrong.
Caroline Lucas (Brighton, Pavilion) (Green)
Does the Minister understand why so many of the people who are following this debate are so incredibly disappointed by the recall Bill we have ended up with? It is a sham and bogus, because essentially it means that most ordinary people are not going to be able to hold their MPs to account in the way that they expected.
Mr Gyimah
I thank the hon. Lady for her intervention. As I have said, the Bill delivers on our manifesto commitments. There was also a free vote on the amendments tabled by my hon. Friend the Member for Richmond Park and, as the hon. Lady knows, they were heavily defeated.
Today’s Report stage has rightly given Parliament the opportunity to listen to and vote on a range of proposals to amend the Bill. It has been open to the House to make further amendments and they have been subject to free votes. This is a continuation of the approach the Government have taken throughout the Bill’s passage through this House. The purpose of the Bill remains to give the public their say on whether an MP who has been found guilty of serious wrongdoing should retain their seat in this House.
We considered in depth, both on Second Reading and in Committee, the option proposed by some hon. Members of implementing a recall system that would allow the recall of MPs on any grounds and at any time. However, we continue to believe that that approach would leave MPs vulnerable to constant challenge at the public’s expense, which is not compatible with our system of representative democracy. We believe that the principle of linking recall to wrongdoing strikes the right balance between holding MPs to account while making sure that they can do their job.
I will not reiterate the triggers for recall or the process by which a petition is run. I believe that the constructive way in which all contributors have approached the issue, whether during pre-legislative scrutiny or through the parliamentary debates, has resulted in a high-quality and in-depth discussion of the proposals, which I very much hope will continue as the Bill continues to be considered. I commend the Bill to the House.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
I rise to make a brief contribution, primarily to say that this Bill is a missed opportunity. It could have genuinely empowered people and I was very happy to support the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith), but instead we have a Bill that empowers Westminster.
Of more interest to me is the fact that this Bill could have given us the opportunity to empower the devolved Administrations to introduce their own recall mechanisms should they wish to do so. It is disappointing that my new clause 4 was deemed out of scope in Committee. It would have given powers over recall to the devolved Administrations. It would have been an empowering amendment, not a prescriptive one, that would have given power to the devolved Administrations to introduce whatever recall mechanism they wanted.
I had hoped that we would build some sort of political consensus on the issue. Prior to the Bill coming to the House, the Secretary of State for Wales told the Welsh Grand Committee:
“The recall of MPs Bill, which we will introduce later in the Session, will put in place a mechanism by which MPs can be recalled in certain circumstances, and I am exploring with the Presiding Officer whether such a mechanism is desirable in the Assembly.”—[Official Report, Welsh Grand Committee, 16 July 2014; c. 14.]
On Second Reading, I raised that exact point with the shadow Minister, the hon. Member for Liverpool, West Derby (Stephen Twigg), who said that,
“in principle, if this House has a reserve power, it should give it up so that it becomes a matter for the devolved bodies themselves to decide”.—[Official Report, 21 October 2014; Vol. 586, c. 786.]
I thought that that represented progress. Indeed, during that debate, the Minister of State, Cabinet Office, the right hon. Member for Tunbridge Wells (Greg Clark) seemed to indicate that he would be open to my proposals should there be a request for the powers from one of the devolved Administrations.
Alas, the Bill has not been strengthened to give the devolved Parliaments those powers. Plaid Cymru fully supports the principle of enabling the National Assembly to make those decisions. Indeed, we support devolving all powers over electoral arrangements. It is interesting to read some of the leaks from the Smith commission on Scotland, namely that electoral arrangements will be devolved fully to the Scottish Parliament. We will wait to hear what is announced on Thursday.
In Wales during the past few weeks, the leader of the Liberal Democrats in the Assembly, Kirsty Williams, called, with much fanfare, for powers over recall for the National Assembly. Indeed, she called for an open recall similar to that proposed by the amendments tabled by the hon. Member for Richmond Park. Unfortunately, however, it is obvious that she has not liaised with her colleagues in the UK Government, because the National Assembly for Wales has no power to introduce such a recall mechanism as it has not been included in this Bill. That is a further reflection of the disjointed way in which the Unionist parties work in Wales.
Caroline Lucas
Does the hon. Gentleman agree that the reluctance of other Members to adopt a genuine recall mechanism reveals their distrust of their own electors and that that speaks volumes?
Jonathan Edwards
I am grateful to the hon. Lady for making that genuinely vital point. The Bill as drafted further empowers a Committee in Westminster to decide who should be recalled. It will further disfranchise people on the ground and reduce trust in Westminster—not that it is my job, of course, to try to encourage trust in Westminster.
In closing, I believe that this is a missed opportunity on two grounds. First, the Bill should have been used to genuinely empower people. Secondly, its scope should have been widened to enable the national Parliaments in Wales, Scotland and Northern Ireland to introduce their own recall mechanisms should they wish to do so.
Mr Lansley
I want to express my support for the Bill as it finishes its passage through this House. In particular, I want to repeat the point made by my hon. Friend the Parliamentary Secretary that the Bill was introduced on the basis that the principal parties in this House went into the last general election with manifesto commitments to a form of recall, and that is substantially reflected in the Bill.
Some Members have attempted to wear the cloak of democracy and say that we should have passed a completely different Bill that said something radically different and that would have rewritten, on the back of a day or two’s debate in the Chamber, the relationship between MPs and their constituents. The hon. Member for Dunfermline and West Fife (Thomas Docherty) was rightly critical of that proposal and made it clear that it would change us substantially from being a representative democracy to being a more direct democracy whereby the electorate, notwithstanding their decision at the general election, could reach into the Chamber of the House of Commons, pull out Members and try to eject them on whatever grounds they chose, and at a time of their choosing, between one general election and another.
For that reason, I do not think the Bill is friendless. The Bill has merit and the fact that it will be relatively sparingly used in practice will, I hope, reflect the changed climate of behaviour in this House. It is important to note that during this Parliament the Independent Parliamentary Standards Authority has not referred anybody to the Standards Committee to be sanctioned for breaching the expenses requirements of this House. The Standards Committee has been acting in relation to events that took place before this Parliament, not during it. We have changed since 2009-10. We have introduced proper independent scrutiny and we have a structure of sanctions.
Contrary to the points made on Report by my hon. Friend the Member for Richmond Park (Zac Goldsmith), I do not think that the Bill’s second trigger simply hands the issue to a committee of parliamentarians upstairs. I hope that when the House of Lords considers the Bill, we in this House will continue to consider how to make the work of the Standards Committee more independent and transparent. I know that the Standards Committee, and its Sub-Committee led by its lay members, is now looking at that matter.
I will not repeat all that I said on Second Reading, but it is important that the Committee does its job in the right way. When I was the Leader of the House, I put to the Committee my view that it should enhance the role of the lay members, and I made it clear not only that they should not bring forward a report without the support of the lay members, but that if they did, my successors as Leader of the House, whoever they were, would see it as their duty to ensure that the lay members’ views, including any contrary views, were put to the House for a decision. The truth of the matter is that, constitutionally, only the House itself can determine the sanctions applied in relation to membership of the House as a consequence of the actions of Members as Members of Parliament.
I hope that the House of Lords will recognise that the second trigger is not a cosy example of parliamentarians exercising judgment on parliamentarians. I hope that the Standards Committee, following its scrutiny, will propose in its report that the process should be led by lay people as much as by parliamentarians.
Parliamentarians and lay people should act on the basis of proven investigations. Much of what we have heard in the debate has concerned the idea that Members of Parliament should be subject to recall in relation to allegations, which they have to reply to, with no proper investigation and with no proven outcome from any investigation. That is where the Standards Committee, with the benefit of the Parliamentary Commissioner for Standards, should deliver a sound basis for deciding whether a Member of Parliament has been found guilty of any wrongdoing. That is a sound basis on which to proceed with recall.
It is a perfectly legitimate view of the nature of our democracy for people to want, as some clearly do, to have a much more open recall system, in which Members can be pulled out of the Chamber by their constituents at any time, but that view should be tested at a general election by being proposed in a party manifesto. I will not be standing at the next election, so it is not for me but for future MPs to make such a decision. For now, it is right and proper to deliver on the pledges we made to our constituents in our manifesto at the last election. We should not be in the least bit hesitant about saying that that is the right and proper step to take.
Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)
When the Minister moved the Third Reading, he thanked several people, and I associate myself with the thanks he gave them all. In particular, I thank my hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty), the members of the Political and Constitutional Reform Committee, and Members on both sides of the House and on all sides of the debate. At various stages, we have attempted to reach agreement with Ministers, the Liberal Democrats, and the hon. Member for Richmond Park (Zac Goldsmith) and his cross-party group.
This debate is of real importance to our politics. We all know that many members of the public feel disconnected from this place and disenchanted with the political process. The principle of recall is just one way in which we can give more power to our constituents to hold their representatives to account. As has been said throughout the debate, all the three main parties committed themselves to recall in the manifestos in 2010. The Labour manifesto stated:
“MPs who are found responsible for financial misconduct will be subject to a right of recall if Parliament itself has failed to act against them.”
We maintain this position today: we support recall, but we accept that in designing a system there is a careful balance to be drawn between one that allows constituents to recall their MP if they are guilty of serious misconduct, and one that allows constituents to do so simply because of a disagreement with their MP’s views or policy decisions.
As was said earlier, the Government chose to table no amendments on Report. The Opposition sought to strengthen the Bill, and I am delighted to say that our attempts were successful, with three amendments being carried. I welcome the passing of amendment 14, which lowers the suspension threshold for recalling an MP. As a result, MPs such as those who received cash for questions in the 1990s would now, under the lower limit, be subject to recall. As we promised in our last manifesto, amendment 24 means that any MP convicted of financial misconduct under IPSA legislation—the Parliamentary Standards Act 2009—will be open to recall. I am delighted at that, because putting it into law will instil greater public confidence in MPs’ financial prudence in the wake of the expenses scandal. By approving amendment 16, the House has ensured that the Bill covers MPs convicted of offences that were not public knowledge when the electorate voted them in. I am pleased that that sensible amendment was adopted by a substantial margin.
We have worked to improve this Bill, and we will seek to explore further options in the House of Lords, including for a robust independent mechanism to enable citizen-based recall. We must tread with care when involving the courts in democratic processes. The amendments tabled by the hon. Member for Cambridge (Dr Huppert) have been very clearly rejected, but they were real risks, because of the specific contents of their proposals. The Opposition believe that a robust independent mechanism to enable citizen-based recall is desirable, if an achievable and effective way can be found of doing so. I hope that a cross-party solution can be agreed in the other place.
The Bill is an important statement about our commitment to accountability and democracy. Throughout its passage, the Opposition have worked to strengthen it. We will continue that work in the Lords so that the Act ensures that the public have confidence both in this place and in the recall process so that there is greater accountability of Members of Parliament.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Business without Debate
Madam Deputy Speaker (Mrs Eleanor Laing)
With the leave of the House, I propose to take motions 2 to 4 together.
Motion made, and Question proposed forthwith (Standing Order No. 118(6)),
Registration of Births, Deaths and Marriages, etc.
That the draft Marriage of Same Sex Couples (Conversion of Civil Partnership) Regulations 2014, which were laid before this House on 15 October, be approved.
Marriage
That the draft Consular Marriages and Marriages under Foreign Law (No. 2) Order 2014, which was laid before this House on 24 October, be approved.
That the draft Marriage (Same Sex Couples) Act 2013 (Consequential and Contrary Provisions and Scotland) and Marriage and Civil Partnership (Scotland) Act 2014 (Consequential Provisions) Order 2014, which was laid before this House on 15 October, be approved.—(John Penrose.)
Question agreed to.
Madam Deputy Speaker
With the leave of the House, I propose to take motions 5 and 6 together.
Motion made, and Question proposed forthwith (Standing Order No. 118(6)),
Capital Gains Tax
That the draft Double Taxation Relief and International Tax Enforcement (Tajikistan) Order 2014, which was laid before this House on 14 October, be approved.
That the draft Double Taxation Relief and International Tax Enforcement (Canada) Order 2014, which was laid before this House on 14 October, be approved.—(John Penrose.)
Question agreed to.
Motion made, and Question proposed forthwith (Standing Order No. 118(6)),
Energy
That the draft Fuel Poverty (England) Regulations 2014, which were laid before this House on 22 October, be approved.—(John Penrose.)
Question agreed to.
Motion made, and Question proposed forthwith (Standing Order No. 118(6)),
Terms and Conditions of Employment
That the draft Paternity and Adoption Leave (Amendment) (No. 2) Regulations 2014, which were laid before this House on 13 October, be approved.—(John Penrose.)
Question agreed to.
Motion made, and Question proposed forthwith (Standing Order No. 118(6)),
Licences and Licensing
That the draft Legislative Reform (Entertainment Licensing) Order 2014, which was laid before this House on 8 July, be approved. —(John Penrose.)
Question agreed to.
JOINT COMMITTEE ON CONSOLIDATION, &C., BILLS
Ordered,
That Mr Robert Buckland be discharged from the Select Committee appointed to join with a Committee of the Lords as the Joint Committee on Consolidation, &c., Bills.—(John Penrose, on behalf of the Committee of Selection.)
SCIENCE AND TECHNOLOGY
Ordered,
That David Morris be discharged from the Science and Technology Committee.—(John Penrose, on behalf of the Committee of Selection.)
Treasury
Ordered,
That Mr Pat McFadden and Mr George Mudie be discharged from the Treasury Committee and Rushanara Ali and Mike Kane be added.—(John Penrose, on behalf of the Committee of Selection.)
Traffic Controls (Schools)
(10 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
I know that, under the rules of the House, I could entertain Back Benchers and Front Benchers for the next two hours plus, but I do not intend to do so.
I want to talk about parking and traffic outside schools. I invite the House briefly to imagine the scene at 8.45 in the morning outside a school. Parents and adults are walking to school with their children, chatting, checking that everything is in order and waving their charges off as they walk through the school gates. If there are any roads to be crossed, it is usually the local authority that ensures that there are school crossing patrols to see children and adults across safely. Once children are inside the school, every parent rightly expects that the school and the teachers will take care of those in their charge. They want the environment to be safe and they want to be sure that nobody tolerates bullying and that not a single child is put in a dangerous situation.
A significant number of parents walk to school. Some do so because they think it is the right thing to do or because they live nearby. A number of parents drive to school. Some have to do so because it is on their way to work or because they have several children in several schools. Others do so by choice. There is a valid argument that we ought to discourage some of those who drive to school by choice from doing so. Of those who come by car, a large number park nearby, taking care that no obstruction is caused, and walk the last few yards to the school gates. So far, so good. If that was what happened outside every school gate, I would not have called for an Adjournment debate.
At every school gate that I have come across in all my years, there is a small number of parents who insist on parking on double yellow lines, on pavements and in front of driveways, who block exits and who cause dangerous obstructions. So far, I have talked only about the morning. The situation is worse in the afternoon, when parents might arrive early and have to wait for their children. Those parents create a danger to themselves, to their own children and to other children.
I cannot be the only politician who has heard some choice language over the years in my discourse with voters. However, I have to confess that I have never come across language quite as fruity, aggressive and in your face as when a local councillor and I decided, about six months ago, that the only way we could deal with this issue in some of our schools was to go out and ask the parents to move on. I do not name the schools deliberately, because doing so would give the impression that they were unusual. Birmingham has about 475 schools. I know that this problem is spread across the city and does not just affect Birmingham. It just happens to be worse at some schools than at others.
What happened was extraordinary. Outside one school, a road crossing patrol lady in her early 70s was run over by a driver deliberately because they were so aggressive. Such things simply cannot go on. When we went out at one local school, a parent was driving on the pavement. I stood in front of the car and said, “I don’t think you should be doing that.” The man wound the window down and said, “Are you that Mrs Stuart or that Miss Badley?”, because the councillor who came out with me was Caroline Badley. I said, “I’m that Mrs Stuart and I’m not moving until you move.” The string of expletives that came out of the car was really quite extraordinary. The key thing is that such people are a minority, but that minority is causing a simple problem. If we just use the current legislation, I do not think that we will change the behaviour.
On some occasions when we have gone out, we have asked the local traffic enforcement officers to go out with us. That has not quite worked because the powers on when it is appropriate and right to issue tickets are fairly unclear. On other occasions, we have asked the schools to help us with the children coming out. The children will stand out on the pavements with placards, telling the drivers that their behaviour is simply not appropriate. That works, but only for short periods. We think we have just cracked the problem and then, come September, a new cohort of parents comes in and the problem starts all over again.
There is a real question over whose problem it is. The schools have an interest in their pupils getting to school safely. However, I do not want to make teachers and governors into part-time traffic marshals. They have a role to play, but they must be part of something much wider. One local primary school made sure when it had rebuilding work done that its staff had enough parking spaces, so that the school was not adding to the traffic problem. However, the head teacher told me that when she went out with traffic cones, the parents simply ignored her. She, too, heard a lot of foul language. It is not enough for just the schools to act.
The local authorities have an interest. Parking offences are civil offences and local authorities have the power to enforce them. They are also responsible for providing a safe environment for the travel-to-school journey. Some authorities have developed policies. I am sad to say that Birmingham has not. The last time Birmingham looked at wider issues such as parking on pavements was when a certain Councillor Steve McCabe, who is now the Member for Birmingham, Selly Oak and has been since 1997, was a local councillor there. The council could do more, but that would not be sufficient on its own.
Mature cities such as Birmingham have particular problems. Their schools tend to be in densely populated areas with very narrow roads. Again, that is not a sufficient explanation for the problem. Local authorities and transport agencies also have an interest because, certainly outside several of my local schools, the traffic chaos that is caused affects the bus routes—because the parents are double parking, the buses cannot get through.
All those people have an interest in the matter, but it is never sufficient for anybody to pull things together and decide what to do. I will not call for large-scale legislative changes because that is not the issue. However, we need to stop and think about a proper framework on how we can solve this problem on a long-term basis. Clause 38 of the Deregulation Bill, which is in Committee in the House of Lords, would prohibit the general use of CCTV for parking enforcement, with limited exceptions. That needs to be looked at seriously, because the use of CCTV for parking enforcement outside schools during periods when there is a significant problem ought to be taken up.
My hon. Friend the Member for Birmingham, Northfield (Richard Burden), who has Front-Bench responsibilities for road safety, has done some useful work on what has happened to local authority budgets in respect of such enforcement. He has found that the Government have axed road safety grants by more than a third, which is having detrimental effects. Something like nine in 10 local authorities have cut their road safety budgets and a third of local authorities have cut road safety staff. To quote my hon. Friend, we have ended up with a rather “pickled policy”, which will not help schools or traffic, and will not help to make things better.
Could we work with police community support officers? I have asked those in my area to stand outside schools, and they have been supportive, wearing their uniform and waiting outside. To be honest, however, the only thing that will hit home for that small minority of parents who are simply not amenable to reasonable conversation is a ticket. Unless we give PCSOs the power, in limited circumstances, to issue tickets outside schools, we may have real difficulty. Community traffic officers also work outside schools, but they are over-cautious in their willingness to issue tickets.
In the light of the significant cuts already experienced—from what I am led to believe, after the next Budget they will be even worse—I accept that we may have fewer community police officers and traffic enforcement officers. Nevertheless, I have come across processes through which the police train laypeople to take evidence that can then be used either for warning letters or prosecutions. About 20 years ago kerb crawling was a real problem in two areas of Birmingham. Local community groups followed tightly drawn up protocols with the police, which allowed the police to use as evidence car registration numbers that had been noted down. We should be able to do something similar. I believe that some local authorities are already doing this, but perhaps parents outside schools and governors could agree a protocol for taking down the registration numbers of offending drivers. The police will then send those drivers a warning letter to say that their behaviour has been unacceptable. That must be a way forward.
Such a process means working with other agencies. Car insurance companies have an extraordinarily strong interest in greater road safety. We should encourage companies such as AXA Insurance, which claims that it wants to do more for road safety, to provide cones outside schools, or jackets for people who wait outside and say to people, “Move on, we are patrolling your pavements and we have some authority.” No single action will make progress, so we must bring together the means that we already have.
Given the fragmentation of our schools, the local authority is no longer the real authority that holds school families together; we are also dealing with academy chains. The Government need to send a clear message to say to schools, “You think that road safety outside schools is important, as do we. We will provide a framework and protocols that you can use to bring together traffic enforcement measures, police officers and outside agencies, so that we can help you to go outside the school gates and end the absolute mayhem that takes place at some schools.”
I live in Birmingham on the Hagley road. Jokingly, I sometimes say to parents that if they ever hear about an incidence of road rage by an elderly woman around 8.45 am on a weekday, it is probably when I try to turn off the Hagley road. There are nursery schools, and cars are parked on both sides—it is a main artery into the city and the junction is completely jammed and traffic cannot flow because of that parking. We know that that will happen for two half-hour spots in the day; it is not unexpected because we know that on every school day between 8.45 and 9 am, and at about 3.30 or 4 pm, there will be traffic jams. Unless we start to address that with protocols that allow those on the ground to challenge people who behave badly—indeed, a small number behave exceedingly badly and their effect is disproportionate —we will end up with serious accidents outside our schools, particularly as local authority cuts will mean fewer school crossing patrols. There will be fewer local authority activities to provide for road safety, and we as politicians need to address the issue with open eyes.
The Parliamentary Under-Secretary of State for Transport (Mr Robert Goodwill)
I congratulate the hon. Member for Birmingham, Edgbaston (Ms Stuart) on securing this debate. Her colleague, the shadow road safety Minister, the hon. Member for Birmingham, Northfield (Richard Burden), is on the Opposition Benches to listen to her remarks as well as to what I have to say, and I suspect that we will have a lot of common ground on this matter because it affects constituencies up and down the country. I am pleased to speak about an issue that is vital for the safety of our schoolchildren—indeed, the hon. Lady is probably pushing at an open door in that regard. In rural areas such as the one I represent, we have the additional problem that many parents seem to get into bigger and bigger four-wheel drive vehicles, which makes it harder for people to see when manoeuvring. Perhaps it is a fact of modern life, but a lot of people seem to set off far too late to take their children to school and have to race there.
We are all too aware of how traffic tends to be more congested during school drop-off and pick-up periods because many of us use our vehicles to take our children to and from school. Schoolchildren are therefore more likely to be at risk from traffic during those periods, and it is a particular problem directly outside schools because some children make their way home on foot or walk to the nearest bus stop. The Government are keen to increase the number of children who walk to school—we have set a target of 55%—and good schemes such as walking buses or “park and stride” encourage people who perhaps live too far away from their school to walk the entire distance to walk for some of it. That is good news not only for reducing congestion outside schools, but also for improving general health and well-being. When I drive to York station on a Monday morning to come to London, it is obvious when it is half term because the traffic is so much better.
Let me mention some of the legal measures available to local authorities and schools, and the powers that local authorities have to address the problem. Local authorities can tackle congestion and protect vulnerable schoolchildren by applying traffic control measures such as “School Keep Clear” zig-zag markings outside school areas. Those areas can be either advisory or mandatory, and it is for the local authority to determine what is appropriate in particular circumstances. If it considers that an advisory approach will be effective, the local authority should apply the appropriate zig-zag crossing on the road outside the entrance of a school to indicate to drivers that stopping or parking is not permitted in the marked area. An advisory marking is unenforceable by the local authority because it is not prohibited in an order made by the council, and traffic signs are not required to indicate the advisory marking. The police can, however, give a driver a parking fine for causing an obstruction as a result of stopping or parking on a “School Keep Clear” road advisory marking. Advisory markings are only intended to act as a deterrent, although as we have heard, some drivers take a lot of deterring.
If a mandatory approach is considered more effective, the local authority will be required to make a “School Keep Clear” zig-zag marking a parking prohibition in an order, and it must also apply appropriate road markings and traffic signs. Local authorities that have taken over responsibility for parking enforcement from the police can enforce a mandatory “School Keep Clear” marking with a penalty charge notice. Current arrangements provide flexibility for local authorities to decide whether an advisory or mandatory approach is needed, and I believe that they are best placed to tackle traffic management in their area. Most school governing bodies that I know include one or two councillors, so it will be easy for them to feed back that concern.
Parking on the pavement near schools is common practice in some areas and can cause severe problems for parents with children in pushchairs, people in wheelchairs, or the visually impaired and blind. Pavement parking could also block the footway passage for schoolchildren, forcing them on to dangerous roads.
In London, parking on the footway is prohibited, but in some areas it is permitted to maintain easy traffic flow. It would be for the London local authority to decide parking arrangements for a local area, and that may include permitting pavement parking. In England outside London, parking on the pavement is not banned. However, local authorities have the power in legislation to implement a pavement parking prohibition in particularly problematic areas, such as outside schools.
Ms Gisela Stuart
The Minister is absolutely right about the legal framework, but the reality is that our local authorities’ financial means have been cut to the bone. If I go to my local authority and say that I want one of those traffic management orders, it will say, “We simply do not have the money.” In Birmingham, there are more than 475 schools and it simply does not have the means. We need other ways and issuing tickets is the simplest thing to do.
Mr Goodwill
I will come on to other ways that may be used to dissuade people from bad behaviour, but I am currently outlining the statutory tools available to local authorities in particular areas. Issuing tickets will create revenue, which may make the system self-financing. However, I must make it clear that we do not support any measures that could be seen as re-declaring the war on motorists that the previous Government seemed to be engaged in.
Since 2011, enforcing pavement parking in English areas outside London has been made easier by my predecessor, the right hon. Member for Lewes (Norman Baker), who was responsible for removing the requirement for councils to apply for individual traffic sign authorisations. Baroness Kramer wrote to English local authorities outside London this summer, reminding them of their existing powers to enforce pavement parking and encouraging them to do so.
Double parking outside schools when dropping off or picking up schoolchildren can obstruct the passage and flow of traffic, and may put schoolchildren at risk of being hit by a passing vehicle. Local authorities with parking enforcement powers can enforce double parking violations without the requirement for traffic signs, because double parking is prohibited in national legislation. Similarly, local authorities can give a penalty charge notice to drivers who block access to school grounds or nearby facilities as a result of parking their vehicle alongside a dropped footway outside the school area.
Yellow line restrictions near school areas can also be enforced by the local authority. In these circumstances, the police can only enforce if a vehicle is causing an obstruction as a result of parking on a yellow line, or if the local authority has not as yet taken over the responsibility of parking enforcement from the police. I suspect Birmingham is an authority that has taken over enforcement powers from the police, and I encourage all local authorities that have not yet done so to take on those powers. Local authorities have the power in legislation to make arrangements for the patrolling of places where children cross roads on their way to and from school. My Department works closely with intermediaries and partners who engage with children directly, such as teachers, out-of-school group leaders and parents, to communicate road safety messages. The Department provides them with free lesson plans, resources and activities that can all be found on the Department for Transport’s award-winning “THINK!” website. Moreover, the Department continues to work with local road safety officers and stakeholders, including the road safety charity Brake and in partnership with the RAC, to help them deliver road safety plans.
My Department and the Department for Communities and Local Government recently consulted on proposals to tackle over-zealous parking enforcement by local authorities. One proposal was to introduce a ban on the use of CCTV by local authorities for on-street parking enforcement. The Government received an overwhelming number of responses requesting that the use of CCTV by local authorities for traffic enforcement outside schools be exempted from the ban.
We recognise that the primary objective of any camera system for enforcement is to ensure the safe and efficient operation of public highways by deterring motorists from breaking traffic restrictions and detecting those that do. We also recognise that areas outside schools are more susceptible to traffic accidents if a robust system of enforcement is not in place. For that reason, we have listened to the views of the general public, and parents and teachers in particular, and have exempted from the ban the use of CCTV by local authorities for traffic enforcement outside schools. That could be in the form of either a fixed camera or a camera van to ensure that people who are parking illegally receive the appropriate sanctions. CCTV is necessary in these areas in particular, because it takes most drivers only 10 seconds to drop somebody off. Therefore, even if a parking warden or an officer of the council is there, it is not possible to ticket more than one car. With the use of cameras, enforcement can be done in a pretty severe way to get the message across to parents who park dangerously. It would be great to have the hon. Lady outside all the schools in Birmingham—I am sure similarly stern ladies could do the work—but the use of cameras is one way to ensure that people cannot get away with dropping people off.
Mr Goodwill
Where civil enforcement has been taken over by the council, as in the case of Birmingham, it would be up to the local authority, through its civil enforcement officers. If it was a particularly big or busy school it would be possible to install a camera outside the school to do that work, but other local authorities could use a van with a camera fitted to enable that to happen and to provide a deterrent when word gets around that people are being ticketed.
Unfortunately, no matter how strong a message is given to parents, either directly or through their children, not all parents understand the dangers of parking outside schools. If local authorities want to use cameras, we have allowed them to use them in specific locations: red routes in London, bus lanes and outside schools. I was keen to impress on my colleagues in the Department for Communities and Local Government how important it is to make an exception for the situation outside schools. As hon. Members probably know, this has been taken forward as an amendment to clause 39 of the Deregulation Bill, which is currently going through Parliament. It will enable the power to be retained by local authorities and for there to be an exemption from the camera ban.
There is important work to be done by schools on information campaigns and sending notes home from school. I have heard of cases where vehicles and their registration numbers have been listed and circulated back to parents to try to encourage more responsible behaviour. I repeat that we absolutely understand the problem. We need to give local authorities the right powers, and retaining the use of cameras gives them those additional powers. As I have outlined, there are several ways local authorities can enforce parking restrictions outside schools, and I would encourage them to use those powers.
Mr Goodwill
There are certainly processes that local authorities would need to go through, although not in the case of vans. If there were several schools in an area where this was a problem, the use of a van fitted with camera equipment might be the best means of enforcement, and of course parents would never know when it might be parked outside their school.
Once again, I thank the hon. Lady for bringing this matter to the House. It is a matter that concerns me as a parent—even if my children are now past school age—and one that affects every constituency in the country. She has identified a real problem that parents are worried about, and I hope I have reassured her that local authorities have the powers to do something about it, and I hope they will avail themselves of those powers where this is a particular issue. The last thing we want is children being deterred from walking to school or feeling unsafe because of the mêlée of cars outsides their school. We need to get people walking to school again, whether all the way from home or from a sensible parking place.
Question put and agreed to.
Written Statements
Education,Youth, Culture and Sport Council
The Minister for Culture and the Digital Economy (Mr Edward Vaizey)
The Education, Youth, Culture and Sport Council will take place in Brussels on 25 November. I will represent the UK at the culture, and audiovisual sections, and the deputy permanent representative to the EU, Shan Morgan, will represent the UK at the sport section.
Culture and Audiovisual
The Council will be invited to adopt draft Council conclusions on European Audiovisual policy in the digital era. The UK welcomes these conclusions, which set the main goals of European audio-visual policy, including high quality content, full cross-border circulation of European audio-visual works, and the assurance of equal conditions for competitiveness for audiovisual media service providers within the single market.
It will then consider draft Council conclusions on the Commission’s work plan for culture for the period 2015-2018. Although we are supportive of the work plan itself, which reflects UK priorities for the culture sector, we do not accept references in the text of the conclusions recommending the equal treatment of e-books and printed books for VAT purposes. This issue is outside the competence of the Council - it is a matter for ECOFIN Council and I therefore intend to block the conclusions.
The Council is expected to adopt conclusions on participatory governance of cultural heritage, which seek to encourage an open and transparent system of cultural governance, and to promote a participatory approach to cultural policy-making. This is concordant with UK policy, and I intend to support.
There will then be a policy debate on the contribution of the cultural and creative sectors to the Europe 2020 strategy. Whilst acknowledging the importance of the sectors themselves, we seek to avoid any linkage with the review of the strategy due in 2015, which is focused on structural market reforms, better regulation, and jobs and growth. I shall make it clear in my intervention that it would be an unhelpful distraction to the Europe 2020 strategy to add references to specific sectors, especially those relating to culture, where it is hard to set quantitative targets.
Sport
Turning to the sport sector, the Council is expected to adopt draft conclusions on sport as a driver of innovation and economic growth. This is in line with UK policy on the sector, and I intend to support.
There will then be a policy debate on sport and physical activity at school age, where I will demonstrate that the UK is committed to providing opportunities in sport for all children regardless of age, gender, or ability: that we are committing significant funding to school sport: and that we challenge the supposition in the Italian Presidency paper on this item that rates of participation in sport are decreasing amongst school age children.
Other Business
The EU Commission will present an update on the current state of negotiations on a comprehensive trade and investment agreement, called the Transatlantic Trade and Investment Partnership, between the EU and the United States of America.
It is possible that some Member States will seek to ensure that the culture and audio-visual sectors remain excluded from these negotiations. I do not intend to intervene, as no debate has been set for this item, but if necessary will point out that the Culture Council is not the forum for raising trade issues. We should focus our energy on reaching an ambitious agreement, and look for movement on significant areas already covered in the mandate. We should aim for further progress in the negotiations before exposing our red lines to the US.
There will then be a report back on the latest Executive committee and Foundation Board meetings of the World Anti-Doping Agency which took place on 15 -16 November.
Finally there will be a presentation from Latvia on their work programme and priorities for their forthcoming Presidency of the Council, which will run for six months from January 2015.
Employment, Social Policy, Health and Consumer Affairs Council
(10 years ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Health (Jane Ellison)
The Employment, Social Policy, Health and Consumer Affairs Council will meet on 1 December in Brussels. The Health and Consumer Affairs part of the Council will be in the morning of 1 December.
The main agenda items will be the following:
Medical Devices Directive—The presidency had planned a general approach, but has now decided to have a discussion of a directive and to take stock of the progress made in negotiations.
Council conclusions—The Council will adopt the Council conclusions on: vaccination as an effective tool in public health; patient safety and quality of care, including the prevention and control of healthcare associated infections and antimicrobial resistance; and innovation for the benefit of patients.
Information from the Commission on the European response to the Ebola outbreak in West Africa.
The Latvian delegation will also give information on the priorities for the forthcoming presidency, which will run from January until June 2015.
The Luxembourg delegation will introduce an item under any other business on ‘Admission criteria for homosexuals to blood donations’.
Immigration Act 2014: Marriage and Civil Partnership
(10 years ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Security and Immigration (James Brokenshire)
I am pleased to inform the House that, subject to Parliamentary approval of the necessary secondary legislation, I plan to implement important new provisions under Part 4 of the Immigration Act 2014 to tackle sham marriages and civil partnerships on Monday 2 March 2015.
Part 4 of the Act will give us a much stronger platform for effective, systematic action to disrupt and deter sham marriages and civil partnerships and prevent them gaining an immigration advantage.
It will extend the marriage and civil partnership notice period from 15 days to 28 days for all couples in England and Wales marrying following civil preliminaries or forming a civil partnership.
Couples involving a non-European Economic Area (non-EEA) national who wish to marry in the Church of England or the Church in Wales will be required to complete civil preliminaries and give notice at a register office.
From 2 March 2015 I also plan to implement under Part 4 of the Act a new referral and investigation scheme for proposed marriages and civil partnerships across the UK involving a non-EEA national who could benefit in immigration terms. All proposed marriages and civil partnerships involving a non-EEA national with limited or no immigration status in the UK, or who does not provide specified evidence that they are exempt from the scheme, will be referred to the Home Office. Where we have reasonable grounds to suspect a sham, we will be able to extend the notice period in these referred cases to 70 days in order to investigate and take appropriate enforcement or casework action where we establish a sham. A couple will be unable to get married or enter into a civil partnership on the basis of that notice if they do not comply with an investigation under the scheme.
By extending the notice period and channelling to the Home Office all proposed marriages and civil partnerships which could bring an immigration benefit, the new system will give us much more time and information to identify and act against sham marriages and civil partnerships before they happen and, where they do go ahead, we will have the evidence we need on file to be able to refuse any subsequent immigration application in terms which will withstand appeal.
The referral and investigation scheme will be extended to Scotland and to Northern Ireland from 2 March 2015, subject to Parliamentary approval of the necessary secondary legislation. Those who give notice of marriage or civil partnership before 2 March 2015 will not be affected by the changes.
Transitional arrangements will apply for couples where at least one party is resident overseas, who have made arrangements before 2 March 2015 for a marriage or civil partnership in England and Wales and who intend to give notice and get married or form a civil partnership in one visit on or after that date. Couples in this situation will be able to apply, at the time of giving their notice of marriage or civil partnership to the registration official, to have the notice period reduced to 15 days.
Transitional arrangements will also apply for couples involving a non-EEA national who before 2 March 2015 have been granted, or have applied for and are later granted, a common licence to marry in the Anglican Church in England and Wales. Couples in this situation will be able to marry on the basis of that licence and will not be required to complete civil preliminaries before marrying.
Further information about the Immigration Act 2014 can be found on gov.uk at: https://www.gov.uk/government/ collections/immigration-bill
Further information about the changes is available on gov.uk at: https://www.gov.uk/marriages-civil-partnerships/ giving-notice-at-your-local-register-office.
House of Lords
Introduction: Baroness Helic
Sri Lanka
(10 years ago)
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Lord Naseby
To ask Her Majesty’s Government what action they are taking in response to the European Court of Justice verdict on 16 October and its conclusions in respect of restrictive measures currently in place since the Liberation Tigers of Tamil Eelam was proscribed by the European Union in 2006 and by the United Kingdom in 2000.
Lord Naseby (Con)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as chairman of the All-Party Parliamentary Group on Sri Lanka.
Lord Wallace of Saltaire (LD)
My Lords, we are studying the implications of the ECJ judgment and considering appropriate next steps. The UK is committed to maintaining an EU listing. The court’s decision was based on fundamental procedural grounds, but the court rejected the LTTE’s argument that it could not be listed as a terrorist organisation because of its involvement in an internal armed conflict. The UK condemns the Tamil Tigers as a brutal terror organisation, and it remains proscribed under UK law.
Lord Naseby
My Lords, is my noble friend aware that his Answer will be greeted with a great sigh of relief by nearly all the Sri Lankans who live in the United Kingdom and, indeed, virtually all the citizens of Sri Lanka? However, is he also aware that this coming Thursday there is to be a rally at ExCel to celebrate the life of the leader of the Tamil Tigers, Mr Prabhakaran, and the other Tamil Tigers, and to raise money for Eelam? Will my noble friend bring this to the attention of the Commissioner of the Metropolitan Police? It seems to me that this is covered by the proscription. Frankly, if the terrorism Acts mean anything, this particular rally should be stopped.
Lord Wallace of Saltaire
My Lords, I would be surprised if the Commissioner of the Metropolitan Police is not already aware of it. The United Kingdom Government are actively concerned to promote reconciliation and reconstruction within Sri Lanka among all of its different communities.
Lord Bach (Lab)
My Lords, President Rajapaksa has called an early presidential election for 8 January next year. Last week there were defections by senior Ministers from the Government, including Mr Sirisena, who will be the principal opposition candidate. Given the history of such elections in the past and that reports this weekend suggest that Mr Sirisena’s first broadcast has been blocked and his bodyguards removed, what do Her Majesty’s Government believe are the prospects for a free, fair and inclusive election?
Lord Wallace of Saltaire
My Lords, the British Government and others are talking about the best way in which to make sure that there is effective monitoring of the elections. We will of course be raising such issues with the Sri Lankan Government.
Lord Hannay of Chiswick (CB)
My Lords, can the Minister say what progress is being made with the United Nations Human Rights Council inquiry into the behaviour of all parties, including the Tamil Tigers, and if the Government of Sri Lanka are giving any signs of co-operation with that at all?
Lord Wallace of Saltaire
As the noble Lord is aware, the UN High Commissioner for Human Rights has just reported that he is not receiving the co-operation which he needs from the Sri Lankan Government.
Lord Avebury (LD)
My Lords, will the Government condemn the refusal of the Sri Lankan authorities to grant visas to the OHCHR team which was to investigate the atrocities committed in the final stages of the civil war by both the Government and the LTTE? Will the comprehensive report of that team, headed by Martti Ahtisaari, nevertheless be published in accordance with the mandate of the team at the 28th session of the Human Rights Council in March 2015?
Lord Wallace of Saltaire
My Lords, the UK was a sponsor of the resolution of the UN Human Rights Council. We are actively concerned in this issue. We are not at all happy about the refusal of the Sri Lankan authorities to co-operate with the attempts to have an external inquiry, because of our concerns that the internal inquiry’s recommendations have not yet been implemented.
Lord Kennedy of Southwark (Lab)
My Lords, can the noble Lord tell the House what action the British Government will take to ensure that the Sri Lankan Government co-operate more fully with the UN report that the noble Lord, Lord Hannay, just mentioned in his question?
Lord Wallace of Saltaire
My Lords, we have actively made our position clear to the Sri Lankan Government and will continue to do so.
Universal Credit
(10 years ago)
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Lord McKenzie of Luton
To ask Her Majesty’s Government how many households are in receipt of the housing element of Universal Credit.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
The information requested is not currently available. The department published its strategy for releasing official statistics on universal credit in September 2013; officials are currently quality-assuring data for universal credit. It is not yet possible to give a date for when these statistics will become available.
Lord McKenzie of Luton (Lab)
I thank the Minister for his reply as far as it goes, but I am surprised that the department does not have better systems for identifying these statistics. We know that its approach to the introduction of universal credit, which is meant to be a flagship policy, is painstakingly slow. We also know that the Secretary of State has declared that it is unlikely that the target date of 2017 will now be met. The Minister is aware that universal credit can bring great hardship to vulnerable clients, which is why alternative payment arrangements have been put in place. Is the Minister able, at least, to say anything about the extent to which direct payments to landlords now operate in respect of people on the housing element of universal credit, and the extent to which those individuals can be identified early, before they build up debt arrears?
Lord Freud
We have put out some statistics on the level of housing arrears, which show that, right at the start, 16% of people were in arrears. That compares with 7% for JSA equivalents. In the second wave of research, that 16% figure had come down to 12%. We have put in a lot of measures to ensure that we get that figure right down and give people the support that they need to manage their finances.
Lord German (LD)
My Lords, universal credit is paid monthly and usually includes rent, which is quite a substantial slab of money. Can my noble friend tell us what progress he has made with the banks and credit unions to ensure that transactional bank accounts are available to people, so that they may take advantage of direct debits and standing orders?
Lord Freud
We have a very active programme working with the banks to ensure that they provide services for the clients who are on universal credit. An exercise is currently going through to expand the ability of credit unions to provide these kinds of facilities by giving them a common banking platform.
Baroness Hollis of Heigham (Lab)
My Lords, I declare an interest as chair of a housing association. More than half of tenants affected by the bedroom tax are in arrears. We now learn that the Government propose to claw back those arrears by deducting a further 20% from those tenants’ benefits. For couples, this means a full £20 to £40 deduction a week from their benefit for living in homes that we allocated to them and from which they cannot move. The Government have created the debt and now seek to solve it by sending those tenants even deeper into debt. It is shocking, and many will never recover. Do the Government not understand that we are wrecking people’s lives?
Lord Freud
We conducted a painstaking process of testing how people respond to paying their housing rent directly. We found that there was a three-month adjustment process until people got familiar with it. We are now ensuring that we have the right systems to help people make that adjustment into the monthly payment situation.
Lord Farmer (Con)
My Lords, the principles of universal credit are sound, but timings and cost to the public purse are vital considerations. Can the Minister tell us when all claimants will be on universal credit and how much it will cost to reach this point?
Lord Freud
In the last strategic outline business case the costs of the programme to 2023-24 were £1.8 billion. That is down from the £2.4 billion figure that we had in 2011. Under that case, we anticipate that the bulk of the exercise to transfer people on to universal credit will be completed by 2019.
Baroness Lister of Burtersett (Lab)
My Lords, recent research by the Joseph Rowntree Foundation, and the Social Mobility and Child Poverty Commission’s recent State of the Nation report, underline the extent to which high housing costs drive poverty among working people, their children and young people. What are the Government doing about these high housing costs?
Lord Freud
The poverty figures show that we are making really good progress in tackling poverty, with 600,000 fewer people in poverty through this Government. We are ensuring that housing costs are covered within universal credit and that people can take control of their lives in that way.
The Lord Bishop of St Albans
My Lords, the House will be aware that the Chancellor has announced that the working allowances for universal credit will be frozen until April 2018. There is a real danger, if there is no lift in those allowances—at least in line with inflation—that that will significantly reduce the real net incomes of low earners. Could the Minister tell your Lordships’ House what assessment Her Majesty’s Government have made of the impact of these measures on the level of poverty among those who are already in work, especially for those families who are earning too little to benefit from further rises in the personal tax allowances?
Lord Freud
The working allowances in universal credit are much greater than under the legacy system, so there is a freeze that will have a small effect. Nevertheless, the poverty impacts are to take 300,000 children out of poverty.
Baroness Sherlock (Lab)
My Lords, I would like to return to the question of arrears raised by my noble friend Lady Hollis. Not only are people paid universal credit once a month in arrears but that is compounded by the debts they are getting into by having to pay back some of their council tax and crucially by the bedroom tax. Has the Minister read the report of the fact that Iain Duncan Smith went to court to defend his department’s right to levy the bedroom tax on a council home whose spare room was in fact a panic room which a charity had paid to secure to protect a woman who had suffered rape, assault, stalking and death threats from her violent ex-partner? As the newspapers reported clearly, she could lose £11.65 a week or move to a home with no secure space. How can the Minister justify this?
Lord Freud
We have a system with the spare room subsidy where there is support at a local level through discretionary housing payment, and this is exactly the kind of case where you would expect to see that payment made.
Lord Flight (Con)
Can the Minister tell the House how many more people are in employment as a result of the incentives offered by universal credit?
Lord Freud
We have some financial incentives within universal credit to encourage people to go into work compared with the legacy system. The best and most recent data we have show that over a six-month period, 69% of people would have had some work in universal credit compared with 65% in the comparable JSA cohort.
Lord Haskel (Lab)
My Lords, if business improved productivity by just 1% and divided that between employer and employee, how many millions would be saved on housing benefit, much of which goes to landlords?
Lord Freud
The number of people claiming housing benefit has come down by more than 2% in the last year, which makes the point that for the first time in a decade housing benefit has fallen.
Lord Forsyth of Drumlean (Con)
My Lords, can my noble friend help me? Why does he think that the official Opposition are ignoring the considerable funds—the hundreds of millions of pounds—that have been made available to local authorities to deal with difficult bedroom tax cases? What possible motive can they have?
Lord Freud
It is very important that local areas look after the more vulnerable people, and one of the most important elements that we are introducing alongside universal credit and supplementing it is universal support delivered locally. That produces a partnership where we can get all the resources that people need to become independent and take responsibility for their own lives and get them into a place where that can be done. We have 11 formal trials of universal support going on now.
Lord Campbell-Savours (Lab)
My Lords, the Minister was asked by my noble friend Lady Lister about what the Government were going to do about housing costs. Does he believe that housing rents in the United Kingdom are now too high?
Lord Freud
Thank you. We have borne down on rents in the local housing allowance rates and have seen rents come down—I do not know if that was as a direct result, but they have come down at the same time. I have some statistics that I will send to the noble Lord.
Children and the Police
(10 years ago)
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Baroness Massey of Darwen
To ask Her Majesty’s Government what assessment they have made of the All-Party Parliamentary Group for Children’s inquiry into children and the police.
Baroness Massey of Darwen (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as chair of the All-Party Parliamentary Group for Children.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, as the report states, young people may come into contact with the police for a variety of reasons and it is crucial that, when they do, the police treat them in a way that is appropriate to their age and status as children. We agree. The police have a statutory duty to safeguard and promote the welfare of children, and take this duty very seriously.
Baroness Massey of Darwen
I thank the Minister for that response. I also thank the Minister for Crime Prevention, Lynne Featherstone, for her swift response in writing to the report. Does the Minister agree that one of the key issues in supporting children and young people is collaboration between agencies at a local and national level—agencies such as children’s services, social services, education and health, as well as the police? What are the Government doing to encourage that collaboration and the sharing of good practice between such agencies?
Lord Bates
Let me also say at this point that the Government welcome the report, which was a thorough piece of work and contained a number of good, strong recommendations. We look forward to discussing that further with the officers when officials meet them on Monday. On the specific point, we are looking at ways in which information sharing can improve. There is now a centre of excellence in information sharing, and multiagency working hubs aimed particularly at safeguarding children. It is very much for those two bodies to take on the recommendations so clearly highlighted in the noble Baroness’s report.
Baroness Howarth of Breckland (CB)
My Lords, I declare an interest as the secretary to the All-Party Parliamentary Group for Children. I am delighted that the Government have listened so carefully to the work that we brought forward, particularly in ensuring that 18 year-olds will no longer be detained in police cells. However, the Minister knows that youngsters as young as 15 have been detained. How many children remain in police cells overnight, what ages are they, when will this practice cease, and when will local authorities have the resources to place those children appropriately?
Lord Bates
It is certainly the case that those under the age of 16 should not be in police accommodation overnight but put into the care of the local authority, with an appropriate adult to look after their interests. We also welcome the change made in the Crime and Courts Bill, which applies to 17 year-olds. On specific numbers, I will get those to the noble Baroness.
Baroness Walmsley (LD)
My Lords, will the Government revise the national crime recording standards —as recommended by the inquiry, in which I declare I took part—so that looked-after children are dealt with in exactly the same way as others when there are trivial events that would not involve the police if they took place in a school or anywhere other than a children’s home?
Lord Bates
My noble friend is absolutely right, and I read that section of the report with great interest because it made a sound recommendation, which is that we should avoid looked-after children in care coming into contact with, and getting engaged in, the criminal justice system at too early an age. The police need to look at the range of options that are open to them in dealing with young offenders from such backgrounds—as they are available when dealing with other offenders in the wider community.
Lord Harris of Haringey (Lab)
My Lords, does the Minister accept the conclusion of the report that it is important that there are better relationships between children and the police, and the importance within that of safer school partnerships? If that is the case, does he understand that these are at risk because of the reductions in police budgets all over the country?
Lord Bates
We understand that police budgets are under pressure, and there is a reason why we have had to take that action. However, the number of police on the front line is increasing as a proportion. Safer school partnerships are an excellent idea but it is for governors and heads to make the decision to employ them. I should also add that there are encouraging statistics on the growth in the numbers of police cadets—up 24% in the first six months of this year. We anticipate that they will increase further. That level of engagement through police cadets in schools could be very powerful indeed.
Lord McNally (LD)
My Lords, I declare my interest as chairman of the Youth Justice Board. Following up the point made by my noble friend Lady Walmsley about looked-after children, both the Youth Justice Board and the police warmly welcomed the recommendations in this report, but it seems that the blockage is at the Home Office, with an overcommitment to statistics. Could the Minister use his influence with the Home Office so that the talks that he will have with the authors of the report can unblock the system and allow the police, the Youth Justice Board and secure children’s homes to approach this matter in a sensible way?
Lord Bates
I will, and I pay tribute to the work that my noble friend does as chairman of the Youth Justice Board. It is an important partner in making sure that we move forward on this. I was not aware that there is a particular issue relating to statistics; this report very much feeds into the wider work that the Home Secretary is doing in reforming the way our police work, particularly in regard to their sensitivity toward children, who are more often the victims of crime by other children than the perpetrators.
Baroness Smith of Basildon (Lab)
My Lords, noble Lords will understand how important it is that young people and children have respect for the police. As my noble friend Lord Harris of Haringey said, young people are less frequently coming into contact with the police as we see cuts, fewer police officers at schools and fewer PCSOs. They do not come into contact with the police so much because police officers are not known in their local communities. It is also equally important that police have respect for young people. On the back of the report of the all-party group, what advice will be given to the College of Policing to ensure that respect for young people is an important training aspect there?
Lord Bates
The College of Policing has a very important role to play here, because it can change the codes—which it is doing—on issues such as stop and search, and it can change the culture within the police, particularly in relation to underreported crimes such as rape and domestic violence. I therefore think that this is very much going with the grain of what the College of Policing, which was set up by this Government, is doing to enhance and improve standards in service throughout the police.
Commonwealth: Young Entrepreneurs
(10 years ago)
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Baroness Benjamin
To ask Her Majesty’s Government what steps they are taking to encourage links with young entrepreneurs in the Caribbean and across the Commonwealth.
Lord Wallace of Saltaire (LD)
My Lords, at the UK-Caribbean Ministerial Forum in June, both sides committed to bringing together young leaders in business, entrepreneurship, civil society and academia. In 2014, our support for the Caribbean has included progressing scholarship programmes between higher education institutions and the UK, and enhancing regional competitiveness and enterprise innovation. In the wider Commonwealth, the range of UK programmes includes supporting a social entrepreneurship programme for young women in India.
Baroness Benjamin
I thank my noble friend for that encouraging Answer. As part of her Diamond Jubilee, Her Majesty created the Queen’s Young Leaders Award. Part of that programme is to discover, develop and nurture young entrepreneurs across the Commonwealth, which is wonderful. However, more opportunities are needed for young entrepreneurs, especially in the Caribbean. What are the Government doing to encourage links between business schools here in Britain and those in the Caribbean? How much priority does DfID give to encouraging entrepreneurship in the Caribbean?
Lord Wallace of Saltaire
My Lords, it is not just a question of DfID programmes: there are also UKTI programmes and British Council programmes. The British Council is concerned particularly with a creative young entrepreneurs’ programme, which covers the Caribbean as well as some other areas. It is clearly the sort of area where services and new industries can develop.
Lord Bilimoria (CB)
My Lords, last week I spoke at the opening event of Global Entrepreneurship Week here in London. I was delighted that a report released at the event showed that London is one of the top two cities for entrepreneurship in Europe. Is the Minister aware of the Sirius programme backed by UK Trade and Investment, which attracts young entrepreneurs from around the world and which I was involved in launching? Will the Government assure us that they are promoting this Sirius programme throughout the Commonwealth, along with countries such as India?
Lord Wallace of Saltaire
My Lords, I am certainly aware of the Sirius programme. It is being promoted across the Caribbean and the Commonwealth, as well as in other areas.
Lord Foulkes of Cumnock (Lab)
My Lords, is the Minister aware that this is Dominican Republic week in the United Kingdom and that various events are being organised by the embassy and by industries with an interest in the Dominican Republic? Will he encourage Commonwealth Caribbean countries to do similar by having a Trinidad week, a Barbados week and a Jamaica week in the United Kingdom? Maybe I should declare an interest as president of the Caribbean Council.
Lord Wallace of Saltaire
My Lords, the noble Lord may be surprised to know that I was not aware that this is Dominican Republic week. However, I am conscious that there are a range of Caribbean-related festivals not just in London but across Britain. Indeed, on one occasion I presented the prizes at the Miss Grenada Commonwealth competition in Huddersfield at what should have been about 10 o’clock at night but turned out to be one o’clock in the morning.
Lord Howell of Guildford (Con)
My Lords, I have to declare an interest as president of the Royal Commonwealth Society. Does my noble friend agree that what these young entrepreneurs really need is access to funds to get their businesses started? If, as in many other parts of the world, the banks will not play and are not really being as helpful as they should be, should we not also encourage the development of all kinds of alternative finance built on peer-to-peer lending and so on, as well as many other opportunities, which are enabling small businesses all over the developing world and certainly in the Caribbean to have proper access to funds for the first time?
Lord Wallace of Saltaire
My Lords, of course we should be doing that. Part of the problem in the Caribbean is that, apart from Jamaica and Trinidad and Tobago, we are talking about very small islands with very small economies, and getting major enterprises going in such areas is often a little more difficult than it is in larger countries.
Lord Bach (Lab)
My Lords, given that the Caribbean area is not, to put it mildly, a priority for DfID aid, should Her Majesty’s Government be doing more to assist some of the smaller islands there, some of which not only suffer from deep poverty but need support in order to succeed in establishing successful trading and business concerns?
Lord Wallace of Saltaire
My Lords, my brief says that the Caribbean is very much one of DfID’s priorities. We are of course conscious of the difficulties that some of the smaller Caribbean economies have. I am told that, apart from Guyana, none of the Caribbean economies is at present demonstrating very strong economic growth.
Lord Dholakia (LD)
My Lords, will my noble friend also have a word with the Secretary-General of the Commonwealth Secretariat to ensure that it promotes such activities so that other Commonwealth nations can benefit? Not only could they learn from us but we could learn quite a lot from some of the Commonwealth countries.
Lord Wallace of Saltaire
My Lords, certainly we are actively engaged with the Commonwealth Secretariat. The UK is the largest funder of the Commonwealth Secretariat and also the largest supporter of its youth fund.
Baroness Scotland of Asthal (Lab)
My Lords, I declare an interest as a trustee of the Queen Elizabeth Diamond Jubilee Trust and as a person who was born in Dominica, one of the tiniest islands within the Caribbean. Mention has already been made of the Queen’s Diamond Jubilee scholarships which are going to be given to the 53 countries. Can the noble Lord tell us what assistance the Government intend to give to make sure that Caribbean members get a proper opportunity to demonstrate their skill, their talent and their ingenuity?
Lord Wallace of Saltaire
My Lords, that is a very good and complex question, and I think it is better that I write to the noble and learned Baroness with a full indication of where we are. I am very conscious of her background in Dominica and indeed, with my World War I hat on, of the contribution that her family and many others in the Caribbean made to the British war effort in the Great War.
Pensions Act 2014 (Consequential Amendments) (Units of Additional Pension) Order 2014
Lord Bourne of Aberystwyth
That the draft order and the draft regulations laid before the House on 13 October be approved.
Relevant document: 9th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 November
Representation of the People (Scotland) (Amendment No. 2) Regulations 2014
(10 years ago)
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Lord Wallace of Saltaire
That the draft order and regulations laid before the House on 21, 22 July and 13 October be approved.
Relevant document: 9th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 November
Business Improvement Districts (Property Owners) (England) Regulations 2014
Baroness Williams of Trafford
That the draft regulations laid before the House on 22 October be approved.
Relevant document: 11th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 November
Wales Bill
(10 years ago)
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“(1A) A resolution moved under subsection (1)(a) must state whether the voting age at the proposed referendum is to be 16 or 18.”
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD)
My Lords, during the passage of the Wales Bill through this House, many noble Lords pointed to the numbers of young people who registered to vote in the recent referendum in Scotland as a great example of how young people want to get involved in the political process. Noble Lords also expressed the opinion that it would therefore be unfair for young people in Wales to be treated differently from their counterparts in Scotland in the referendum on income tax powers for which this Bill provides. I therefore committed on Report to bring forward amendments at Third Reading to allow the Assembly to decide whether 16 and 17 year-olds should be able to vote in an income tax referendum.
These government amendments provide that when a resolution to hold a referendum on income tax powers is moved in the Assembly, the Assembly must state, as part of that resolution, whether the voting age is to be 16 or 18 for that referendum. Let me be clear: we are not devolving the competence over the franchise in Wales to the Assembly. The franchise will remain solely within the power of Parliament. What we are doing is allowing the Assembly to make a decision in relation to an income tax referendum provided for under this Bill.
The amendments set out that if the Assembly resolves that the voting age in the referendum is to be 16, the resulting order to be laid by the Secretary of State must also provide for the creation and maintenance of a register of young voters. Many 17 year-olds will already be on the register of local government electors as attainers; that is, those who would reach the age of 18 before the creation of the next register, each 1 December. They would not be moved onto this new register of young voters but would still be able to vote in the referendum. This is because eligibility is based on being on either the register of young voters or the register of local government electors. In short, if, come the day of the referendum, the only thing that would stop you from voting in an Assembly election on that day is that you are 16 or 17, you would be eligible to vote in the referendum.
Of course, the voting age at an income tax referendum would be a matter for the Assembly to decide on when it triggers the referendum. At the moment, the Welsh Government have yet even to commit to holding such a referendum. I again urge Welsh Ministers to do so at the earliest opportunity. I have made no secret of the fact that I personally believe that lowering the voting age might help to reinvigorate our democracy. Many of those who spoke in the Assembly debate on this issue on 24 September also support reducing the voting age and would hope that, if and when the time finally comes to hold a trigger vote, Assembly Members will look at how much the debate on the Scottish referendum was invigorated by the number of 16 and 17 year-olds who became involved and would vote therefore accordingly. I therefore ask noble Lords to support these amendments. I beg to move.
Lord Tyler (LD)
My Lords, I am delighted to speak in support of Amendments 1 and 2, which I and my colleagues have signed. I want to pay tribute to my noble friend the Minister and her officials for the patience, persistence and professional care with which they have managed to perfect these proposals after so much discussion and improvement in meetings since I first raised the issue at an early stage of our consideration of the Bill. I am confident that we are now well on our way towards this timely reform. I cannot believe that anyone in the other place, or indeed anywhere else, will stand in its way. It would surely be a brave reactionary—even a foolhardy one—who would now claim that Welsh young people are less mature, well informed and well intentioned than their Scottish counterparts.
I have heard mutters that this is the thin end of the wedge. That is not so. The wedge was firmly implanted by the record number of 16 and 17 year-olds who not only registered to vote in their thousands, but then on 18 September ignored the blandishments of the separatists and voted to stay in the United Kingdom. We should recall that all UK parties endorsed the Edinburgh agreement which introduced this simple reform. I observed during the Report stage of this Bill:
“It would 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 their area of residence. If, as I believe, the franchise is the foundation stone of our representative democracy, discrimination on that basis must surely be totally unacceptable”.—[Official Report, 11/11/14; col. 158.]
As my noble friend said, it will now be for the Welsh Assembly to complete the process. I am sure that this will prove uncontroversial since a substantial majority of Assembly Members have already declared their support. In the debate of 24 September, to which my noble friend referred, the Conservative spokesperson, Andrew Davies AM, said that:
“My group has a free vote on this particular issue, because there is no party line on whether there should be votes for 16 and 17-year-olds”.
Julie Morgan AM from the Labour Party said that it was encouraging and quite inspiring to see 16 and 17 year-olds involved in the Scottish referendum. The debate was led by my Liberal Democrat colleagues in the Assembly, who committed themselves there and subsequently, but perhaps even more significant was that the Minister, Jane Hutt AM, said that,
“we support the lowering of the voting age to 16”.
The outcome of that debate, held just two months ago and just after the Scottish vote, was 41 to 11 in favour of this reform. It is now surely unthinkable that any future referendum with equally long-term implications for the country and its citizens could be permitted to lapse back into the pre-2014 limited franchise. Whether that is on UK membership of the EU or any similar major decision, these young people have now earned the right to have their say.
This is a triumph for those who have worked so hard for so long to achieve this reform. The recent Youth Select Committee deserves special mention for its authoritative report, published just a few days ago, which carefully weighs the arguments. But the final and conclusive credit must go to the 110,000 young people in Scotland who showed by their actions that they were ready to take on this responsibility as fully adult citizens of the United Kingdom. I am delighted to support my noble friend.
Lord Wigley (PC)
My Lords, I am delighted to support the amendment as far as it goes. Of course we had amendments on Report that went a little further and would have dealt with voting for young people aged 16 and 17 in other referenda and in elections within Wales itself. I realise that as far as the Bill is concerned, the peg for this change is the fact that income tax is included in it. My colleague and noble friend Lord Elis-Thomas and I would like to have seen a more general approach by giving powers to the Assembly in the generality in order to address issues such as this. The fact that it does not go as far as we would have liked does not mean that we do not support it in going this far.
I was very conscious of the tone set by the Secretary of State, Stephen Crabb, as background to today’s debate. Only last Monday, addressing the Institute of Welsh Affairs, he said:
“We now have a unique opportunity to reshape the future of our Union. The appetite for change is there. People want a stronger voice over their own affairs. It is unmistakable in Scotland … And palpable in Wales. And it is a sentiment that cannot, and will not, be ignored. And I am determined that Wales should not play second fiddle in the current debate on devolution”.
That is very interesting, in the context of the amendments before us today, but it begs the question of how much further—and when—the rest of that commitment is going to be borne out.
We are very much aware that we expect to have the report of the Smith commission on Scotland tomorrow and, no doubt, this will have a relevance to these things. In relation to this amendment, however, can I take it that the Government would be minded to enable the Assembly to use similar powers in any further referendum which was only in a Welsh context? Does the fact that the provision goes only as far as income tax indicate—or not—that the Government do not foresee any further referendum in Wales in the context of further devolution and that that will be undertaken as quickly as possible, without being held up by the need for a referendum?
Lord Crickhowell (Con)
My Lords, I think I avoided being placed among the die-hards by the noble Lord, Lord Tyler, when I spoke on the subject on Report, because I said that I was still open-minded and prepared to be persuaded about the desirability of moving the voting age to 16. However, I did express anxiety about the idea that we should do this step by step, nation by nation, area by area. I would have preferred to see us having all-party discussions and taking a decision on the issue so that it applied to all votes, whether national ones or partial votes of this kind. I regret that we are moving in this ad hoc way because it is not the best way of undertaking constitutional reform. However, my noble friend has put forward these amendments and I am not going to oppose them. My successor as Member of Parliament for Pembrokeshire, or Pembroke South—my former constituency has been split in two and I always forget what it is called now—is Secretary of State. He has made firm commitments and I am delighted that he has taken such a strong position on these matters.
I will raise only two questions today. I am not going to challenge the decisions that have been taken, even if I would have preferred that we had got there by a somewhat different route. Many noble Lords will have received a note from the Electoral Commission which raises two issues. It points out that there are time constraints for introducing any change:
“In order to give Electoral Registration Officers (EROs) sufficient time to identify and encourage eligible 16- and 17-year olds to register to vote ahead of any future referendum in Wales, any primary legislation would need to be in place and amended regulations would need to be clear early in the calendar year before the referendum is expected to take place (e.g. by early 2015 if a referendum were planned to take place in 2016)”.
Later, it draws attention to the resource implications by stating:
“EROs would require additional resources to identify and encourage eligible 16- and 17-year olds in Wales to register to vote, including raising awareness of how to register to vote for this new group of eligible electors. The Commission may also seek further resources as part of our public awareness activity before any referendum”.
All I am asking is that, in the context of these amendments, we should be given the Government’s thinking about these issues and their reaction to the recommendations and report of the Electoral Commission. It seems to me that before we approve the way forward, we should know exactly what the position is going to be on the matter of resources and timing.
Lord Cormack (Con)
My Lords, in the debate a couple of weeks ago I indicated my worries and concerns. I do not want to detain your Lordships for long but I will make just a few brief points.
First, I was one of those who voiced considerable concern when the Prime Minister—wrongly, in my view—conceded votes at 16 in the Scottish referendum. The subject of the franchise is of enormous importance and it should have been addressed in a proper debate, both in your Lordships’ House and particularly in another place, and Parliament should have come, on a free vote, to a collective view as to whether it was indeed wise to reduce the age from 18 to 16.
When I intervened on the Labour Party spokesman two weeks ago and asked whether it was the intention of the Labour Party to make 16 the age at which you could drink alcohol and drive a motorcar, I was told that that certainly had not been gone into by the Labour Party—and the noble Baroness, Lady Gale, who was speaking on that occasion, certainly seemed to indicate that she would not favour such changes.
We have to look—and should have looked—at what the age of majority should properly be. That was why I opposed what my right honourable friend the Prime Minister conceded over the Scottish referendum. I accept the logic of what my noble friend Lord Tyler said—having granted it in Scotland perhaps you should grant it in Wales—but if we grant it in Wales it is almost inconceivable that we will not move to the profound and important decision of the franchise coming down to 16 all over and for all elections. Some of your Lordships will welcome that. I respect that view but I profoundly disagree with it. We are walking into this ad hoc, as my noble friend Lord Crickhowell indicated, without having given mature and sensible consideration to all the implications of what the age of majority should properly be.
I am not going to seek to divide the House this afternoon. In the circumstances, that would be ill advised, if not preposterous. I am not going to do it, any more than my noble friend Lord Crickhowell is going to do it. But he has indicated that he is not totally happy. I will go further and say that I am very unhappy about the way in which this has been done. This is not the way to change a constitution. There will be a debate at some stage about the franchise age throughout the United Kingdom for elections. It will not be before the general election next year, where it will remain at 18.
I will just say to your Lordships that although the pass has probably been sold—and, to mix my metaphors, the bandwagon is probably unstoppable—we have not done this in a mature, considered way and we should have done.
Baroness Humphreys (LD)
My Lords, I add my voice to that of my noble friend Lord Tyler in congratulating my noble friend the Minister on the progress that has been made as the Wales Bill has made its way through your Lordships’ House. There is great satisfaction among her colleagues on these Benches that so many principles that the Liberal Democrats—and, of course, the Welsh Liberal Democrats—have believed in and promoted for so many years are coming to fruition in the Bill.
I also thank and pay tribute to my noble friend Lord Tyler—a fellow Celt from Kernow, or Cornwall—whose diligence and persistence in Committee and on Report have resulted in these amendments today. These Liberal Democrat amendments will see Liberal Democrat policy on votes for 16 and 17 year-olds, if they are agreed by your Lordships’ House, coming to fruition in Wales.
I must admit that these amendments, allowing the Assembly to extend the franchise to 16 and 17 year-olds in a referendum in Wales, have the 16 year-old that still exists somewhere inside me, smiling with quiet satisfaction and with perhaps a little jealousy because I am one of those people who believed that I should have had the right to vote at 16. My first foray into politics was as a 16 year-old within a couple of weeks of my 17th birthday, when I was agent to a candidate in my school’s mock election at the time of the 1964 general election. Noble Lords will recall that it was not until 1969 that the suffrage was extended to 18 year-olds and I am sure the same concerns voiced in the Chamber today were voiced at that time. However, had anyone told us in 1964 that in the future young people would not have to wait until they were 21 years-old to vote, but would be trusted to do so in a referendum in Wales from the age of 16, there would have been joyful celebrations. Perhaps, as there is now, there would be a sense of pride that Wales was following Scotland in forging the way to extend full voting rights to 16 year-olds sometime in the future.
My political inspiration came, in part, from an inspirational history teacher who opened our eyes to the world. Since those days, unfortunately, teachers in schools have become far more wary of political education and the danger of being accused of political indoctrination. However, I see these amendments as presenting opportunities for the Welsh Government to introduce an element of political education for those under 16 in the future. They already have, in the Welsh baccalaureate, a module produced by Aberystwyth University entitled “Wales, Europe and the World”, which presents students with an unbiased overview of political systems and political parties throughout the world and allows students the opportunity to debate issues as they arise. A simplified version of this would be ideal as a short module for those under 16.
However, as I said, that is for the future. In the meantime—and in conclusion—I am very pleased to support the amendment and to put on record my grateful thanks to the Minister for being able to accept and promote issues that have had support from noble Lords on all sides of the House and my hearty congratulations on the masterful way in which she has steered the Bill through your Lordships’ House. I, along with colleagues from across the House I am sure, wish her continued success as she seeks to build on the consensus she has already begun in preparation for the next stages of devolution to Wales.
Lord Rowlands (Lab)
My Lords, I rise briefly to ask a simple question. Could the Minister remind us how many 16 and 17 year-olds there are? If they all registered, what would be the increased percentage of the electorate?
Lord Roberts of Llandudno (LD)
My Lords, in joining this debate, I congratulate the Minister on how she has handled us and steered us through the discussions. I would like to bring in two slightly different matters. First, in speaking of devolution to Wales, I understand that last week transport became the responsibility of the Welsh Assembly Government. How do we somehow get this movement between Wales and England as the line goes from Newport up to Chester? Who is going to be responsible as we go from England to Wales, Wales to England? That needs to be cleared up. Also, in her statement following last week’s debate, the Minister said that she had promises from the 22 electoral registration officers that each one of them had plans to increase the registration in their areas. It would help us tremendously if somehow or another she could make us aware of what each of these 22 various electoral registration officers intended doing.
Finally—I shall not be long—the anxiety in Wales and other places is that young people, as well as others, are becoming divorced from politics. They leave it to other people. Turnout is down. People do not feel that they have any influence over their lives through the ballot box. The eagerness to get people registered is not just so that they will vote and be on the electoral register but that they will be part of political life and involved in the lives of their communities. The Scottish referendum has been mentioned. There, young people did register and vote. They were an essential part of the debate in Scotland.
More strongly still, I remember 27 April 1994, when the South African franchise was opened and Nelson Mandela’s struggle had been won, how enthusiastic people were about the policies of the parties and how they queued for hours—some of them, for days—to register their vote. We need to do something that will enhance registration. Imagine that we have the European in or out referendum and that less than 50% of young people are registered to vote and that fewer than that actually cast a vote—the whole thing would be a shambles. The same applies to older people. We need the majority view on such an issue to be represented.
On the way here today, I was reading a book by David Tecwyn Evans recalling his memories of his life in Llandecwyn in Merionethshire at the end of the previous century and the beginning of last century. Here, he speaks of the elections of 1886, where the children of the school, although their parents were probably not entitled to vote, knew the name of every MP in Wales. They knew the issues—tithes, education, disestablishment—and they were interested. It is our job now not just to get people to register to vote but to enable them, through the education system and in other ways, to understand and to feel: it is not only a matter for the head but a matter for the heart. The facts are important, but being part of the argument is also important.
I thank the Minister for the work that she has done. I hope that she will be able to answer my two queries and that, somehow, we as representatives at various levels can enthuse people so that young people feel “rydym yn perthyn”, we belong.
Lord Richard (Lab)
My Lords, perhaps I may ask the Minister a severely practical question or two. What was the turnout among the 16 to 18 year-olds in the Scottish election? Was it indeed much below that of the 18 to 24 year-olds? My noble friend Lord Rowlands asked her how many 16 year-olds there are in Wales. How many 18 to 24 year-olds are there in Wales, so that we can make a comparison? I cannot sit down without saying a sentence about the speech that we have just listened to. Even in my headiest moments as a convinced Welshman, I have never quite seen England’s relationship with Wales as that of the Nationalist Party to the rest of South Africa.
Lord Morgan (Lab)
My Lords, I intervene very briefly and with a note of apology. I was ill, which no doubt saved your Lordships a lot of time in Committee and on Report, so this is just a last-gasp intervention to say that I support the amendment, which seems highly desirable and long overdue, and I congratulate the Government.
I want to make one point in relation to my very good friend, the noble Lord, Lord Cormack, who has raised the important question of whether this is the way to change the constitution. The truth is that we have no way of changing the constitution; it is a matter of an extremely haphazard nature. The last time that we changed the constitution was with the Act of Settlement in 1701, which took a synoptic view, but which is a little early for even this noble House to consider. There is no way of changing the constitution rationally, and there should be. I have always supported a codified, written constitution, and I profoundly hope that when the House of Commons Political and Constitutional Reform Committee reports, it will accept that, partly because I am one of the authors of the report that it is considering, so naturally I support that proposal.
There have been so many illogicalities in considering Welsh devolution such as—I understand that this was discussed when I was not here—why the Welsh Assembly should not have reserved powers, why the Welsh Assembly should be the victim of an asymmetrical form of devolution and why the Welsh Assembly did not have financial powers in the first place. No clear logical view was entertained for any of those questions, and we therefore proceed empirically and haphazardly. In this case, we are considering simply whether it makes sense, not whether it is in what you might call an agreed constitutional tradition or follows a convention. Clearly, it does make sense; it is not possible to have young people aged between 16 and 18 in Scotland able to vote but not in Wales—there is no rationality in that. Why should Wales yet again be the victim of constitutional illogicality in a country that prides itself on its constitutional illogicality, showing that its constitution is not therefore unwritten?
That is the settled view of the National Assembly, and it is clearly beneficial in itself, as many noble Lords have said. Young people are able to make a strong contribution, as indeed, as the noble Lord said, they did in 1886. Lloyd George, whom he knows about, is an example of a young Welsh schoolboy who took a very active part long before he was able to vote or enter the House of Commons. So on the merits of the case, on the merits of the value of an input from a thriving and important part of the Welsh electorate, and because there is otherwise no logical or constitutional rubric why we should exclude Wales from this change, I certainly support the amendment.
Lord Elystan-Morgan (CB)
My Lords, I rise on account of two matters about which I have strong feelings. One is the Act of Settlement of 1701. Although my respect for the noble Lord, Lord Morgan, of Aberdyfi, whom I may call my noble friend, is total and absolute, I still have doubts about whether that Act is indeed one that Parliament does not have in its sovereignty the right to repeal. The Act of course settled the succession of the Crown; it said that the succession should devolve upon the Electress Sophia and the heirs of her body, and of course the relevant heir of her body was George Lewis, the Elector of Hanover, George I. It seems to me that Parliament, being sovereign, could repeal the Act of Settlement any day, but that is by the by—I have said my piece.
The second matter is that I support the amendment, which seems to be based on very sound principles. One we have already have adumbrated, and that is the fact that it is a matter for the Welsh Assembly, which is the parliament for the land and nation of Wales, to decide on the right to vote and what age should dominate in such a situation. That is a healthy principle, and one that has been steadfastly upheld by my friends the noble Lords, Lord Elis-Thomas and Lord Wigley, as Members of the Assembly and indeed as Members of this House. When the voting age was reduced from 21 to 18 and jurors were entitled to sit at the age of 18, there were siren voices of caution. Looking fairly and objectively at the evidence, it seems that there was no justification for panic at all. It has worked well in the courts and in relation to Parliament.
The main point is one that has not been made: it is that age is relative to the situation you are dealing with. The age of 18 was decided, if I remember rightly, just before the 1970 election; in other words, 44 years ago. Could one not reasonably argue that a young person of 16 now is probably as mature mentally and physically as such a person 44 years ago? Society is changing rapidly all the time. Standards of health, learning and understanding are improving, and on that basis there is ample justification for this amendment.
Lord Empey (UUP)
My Lords, following the decision to reduce the voting age in the referendum in Scotland, young people distinguished themselves during the campaign with their level of participation, and I will be very interested to hear the Minister’s response to the noble Lords, Lord Richard and Lord Rowlands, on the statistics. However, I share a lot of the views of the noble Lords, Lord Crickhowell and Lord Cormack, on the manner in which this issue is being dealt with. It is piecemeal and haphazard. There has been no systematic debate. Of course, the noble Lord, Lord Elystan-Morgan, made a point about the reduction from 21 to 18, and there will always be an argument. We all accept that. Why not 15? We can make any argument we want with justification of one degree or another. That is not quite the point that the noble Lord, Lord Cormack, was trying to make. The point was that it came out of left field from negotiations between Mr Salmond and the Prime Minister and is being reflected in the Bill. Of course, it would be a very brave person who came to the Dispatch Box and defended not putting it into the Bill in view of what happened just a few weeks ago in Scotland. What possible justification would there be? However, I ask the Minister to reflect and to pass back to her colleagues the fact that there is no process here. It is just random, along with a long series of other constitutional aberrations.
Lord Morgan
Can the noble Lord suggest any example of constitutional change since 1997 that has not been piecemeal or haphazard? We are following exactly same—he is quite right—unsatisfactory practice, so we are considering the merits of the case.
Lord Empey
I participated in a process that was anything but haphazard. It took two years to work out our settlement in Northern Ireland, which then came to Parliament to be debated and enacted. There was a process. As I understand it, the noble Lord’s party believes in a constitutional convention or a commission of some description, whatever we call it. We should not be precious about it. Those are all perfectly meritorious ideas. My point is that the change introduced by the Bill, which follows the process that happened in the Scottish referendum, inevitably has implications for the electorate more widely. We have a position whereby 18 year-olds will be voting next May and 16 years-olds will not, yet the decision that many 16 and 17 year-olds in Scotland took two months ago was very important. People could say it was of greater importance than a general election.
The point I am trying to make, which I ask the Minister to pass back to her right honourable friend, is on the concern that this is one further example of a haphazard attempt to change our constitution without any structured debate or rational process. I look forward to hearing her response to the noble Lord, Lord Richard, and the statistics. However, I will make another, tangential point, which applies whatever referendum takes place, whether on tax or anything else.
When the noble Lord, Lord Roberts of Llandudno, asked about transport and the roads, to some extent he hit the nail on the head. Scotland is, of course, an independent country which has shared its sovereignty with the rest of the United Kingdom; Northern Ireland is separated by sea from the rest of the United Kingdom, while Wales is not. You go from one side of the street to the other, from somebody’s back gate, and you are in Wales. Clearly, that means that unique issues need to be discussed when devolved powers are exercised. Again, there is no structure for that; there is no process or long-term debate, and we are basically making changes on the hoof. This process issue is a mistake.
Baroness Gale (Lab)
My Lords, we welcome the Government’s amendment, which would give powers to the Welsh Assembly to decide on whether 16 and 17 year-olds will be able to vote in the referendum on income tax. However, can the Minister say whether this is a government amendment, even though three Liberal Democrat Back-Benchers have put their names to it? There is cross-party support for this amendment, and I am sure that the Minister could have asked Peers from other parties to put their names to it as well. However, we welcome it.
To give the responsibility to this age group is a good step forward, which will eventually lead to all 16 and 17 year-olds having the vote in all elections in the United Kingdom. There is no longer any good reason for a delay. Labour will make a manifesto commitment at the general election to allow 16 and 17 year-olds to have the right to vote in all elections. Although some Peers have expressed their views that this is piecemeal, haphazard and so on, this is another step on the journey we are making with devolution. This is how it has been done since 1999—it has been a step-by-step approach—and when the Bill becomes an Act it will give more powers to the Welsh Assembly. However, we appreciate that this is not the Bill that will give universal franchise to 16 and 17 year-olds; that will be a United Kingdom decision, taken by the Westminster Government.
I was pleased that the Minister was able to refer in the amendment to the need to include,
“provision for the preparation and maintenance of a register of young voters”.
We understand that the responsibility for compiling the electoral register rests with local councils and is a devolved matter. The registration of young voters must be a priority and needs active and constant engagement. The noble Lord, Lord Roberts, in his enthusiasm, expressed his wishes; I understand that, and we support what he was saying. We therefore hope that when decisions are made on a referendum, the Welsh Government will give every encouragement to EROs in Wales to ensure that they prioritise the registration of young people through at least one visit to every school and college in Wales in enough time to ensure that all young people are fully aware of their right to vote in the referendum. We believe that to be of great importance. I am sure that the Minister will do all she can in her discussions with the Welsh Government to ensure that that happens. We thank the Minister very much for her commitment in bringing these amendments forward today.
Baroness Morgan of Ely (Lab)
As this is our final opportunity to discuss the Bill, I would like to thank the Minister for her co-operation on it. We knew when we started on the Bill back in July that the Scottish referendum could impact on the nature and tone of the debate, and that has indeed been the case. The very fact that we have so many people in here today talking about the Bill tells us something. The scope of the devolution debate across the whole of the UK has changed since September. It feels as if this Bill is slightly out of date even before the ink has dried. It is, however, another welcome step in the process of devolution for Wales. It is clear that it is not only the Scottish referendum that has changed the tone of this debate during its passage, but the appointment of a new and more conciliatory Secretary of State. We very much welcome the shift in tone since his appointment.
I take this opportunity to thank colleagues on all sides of the House, especially people on the Labour Benches, for their co-operation and support on the Bill. In particular, I thank my noble friend Lady Gale, of Blaenrhondda, for her sterling work and active support on the Front Bench. I also thank officials in the Wales Office and Catherine in the Labour office for their work. In particular, I applaud the co-operation afforded by the Government Front Bench, led by two extremely distinguished experts on the issue of devolution in Wales. In particular, we are extremely pleased that we have managed to find a resolution to the issue regarding the reserved model power of government, and we look forward to seeing the fruits of the department’s work on 1 March. Thank you for also agreeing to the issue of votes at 16 in the referendum on tax powers.
The devolution debate is far from over. The Labour Party is in favour of a constitutional convention to iron out some of the anomalies across the UK that many noble Lords have talked about today. If, and when, we form the next Government in 2015, the Labour Party has also committed itself to presenting a new Wales Bill, pushing the boundaries of the devolution settlement further. This obviously needs to take into account the changes across the UK. We know that the coalition Government have agreed to present a cross-party approach in March to further devolution for Wales. We would like a cast-iron assurance that both the Conservative Party and the Liberal Democrat party will, if they are through some terrible tragedy elected to run the country again after the next election, match Labour’s commitment and bring forward a new Wales Bill in the next Parliament.
Lord Elystan-Morgan
My Lords, I assume that we have already dealt with the amendment and are now dealing with the totality of the Bill on Third Reading?
Lord Bourne of Aberystwyth (Con)
I am sorry. The noble Lord should speak only once in this debate and we have not dealt with the amendment yet.
Baroness Randerson
My Lords, I thank all noble Lords who have spoken in this debate, and indeed throughout the numerous debates we have had on the Bill. My noble friend Lord Tyler started his response on this amendment by pointing out that all parties endorsed the agreement that led to votes at 16 in Scotland. I make it clear that I strongly appreciate the work that my noble friend has done over a very long period to raise awareness of, and develop a campaign generally on, votes at 16.
The noble Lord, Lord Wigley, made the point that he would have preferred there to be wider powers for votes at 16, but he will understand that this question is best considered as part of the devolution of further powers to the Assembly, which is something which is being considered at this time, with a view to agreement and announcements by St David’s Day. He also asked about the precedent for future referenda. These amendments deal with the referenda provided for in the Bill. There are no further referenda planned in Wales. I point out to the noble Lord that the Welsh Government have not yet committed to this referendum. My view is that we should get this one out of the way first before thinking of further referenda.
My noble friend Lord Crickhowell referred to the ad hoc approach on this. I believe that our general approach to the devolution of further powers for the Assembly overcomes this problem. The noble Lords, Lord Cormack and Lord Empey, also referred to the way in which the decisions were being made on votes at 16. There has been a response to the success of the votes at 16 in Scotland. There will be a full analysis of the impact of that in due course, but the success in Scotland has certainly sparked debate. Given the points that the noble Lord, Lord Morgan, made about the way in which we make constitutional decisions in this country, it is important that there is considerable public debate on this. One could say that that debate has started in Wales, in general terms, with the debate that was held in the Assembly in which an overwhelming majority of Assembly Members supported votes at 16.
The important thing is that the Wales Office and my right honourable friend the Secretary of State for Wales are leading on the four-party discussions, in which the options for the future of devolution in Wales are being considered—the reserved powers model and the scope of any additional powers. That will include, for example, the devolution of powers over election arrangements. I believe that we are embarking on a period of considerable reflection and debate on the nature of our democracy in the UK as a whole, but we have already taken steps to ensure that that debate takes place in Wales. In line with the commitment made by my right honourable friend the Prime Minister on 19 September, we have made sure that Wales is at the heart of the debate on devolution.
My noble friend Lord Crickhowell asked two questions. One was related to the Electoral Commission’s concern about time constraints. I point out to him that the detail in the amendment ensures that time would be available in practice to assemble the electoral register required. The details in the amendment are based on a franchise Act of the Scottish Parliament. The Bill, as amended, will allow for 180 days for the Secretary of State to lay the order, plus the time that it would take to pass through both Houses of Parliament and the Assembly. There would be a pre-election period as well. If one takes all those periods of time together, they come to approximately seven months, which is the time that the Electoral Commission recommends for new legislation of this type. We believe that there is sufficient time to amass the register as required. My noble friend also asked about resources for awareness raising and so on. I assure him that we are well aware of the resource implications of this.
Lord Anderson of Swansea (Lab)
On that point, clearly local authorities are subject to considerable constraints. To be “well aware” of the resource implications begs many questions, such as: what are the resource implications? What discussions have there been already with the relevant authorities and are the Government satisfied that this can be done without taking on any extra staff?
Baroness Randerson
I did not say to the noble Lord that this would be possible without taking on additional staff. It is important that the views of the Electoral Commission have been communicated to noble Lords because it is obviously involved in the discussions. The Assembly has made its views very clear on this and there are resource implications from its perspective as well because, as several noble Lords have made clear today, it is important to bear in mind that there has to be a period of awareness raising and education as well as the sheer issue of assembling a register.
Lord Elis-Thomas (PC)
The Minister is absolutely right. The National Assembly has resources in the Assembly Commission to promote its own activity, promote democracy generally and promote a particular referendum as we did prior to the previous referendum, which ensured that we have now proper law-making powers. I am certain that the present Assembly Commission will take the same positive view. Indeed, at an event that was part organised by the Assembly Commission last week, a vote was taken on this matter by young people. The young people were in a majority—a small majority—for generally reducing the voting age to 16.
Baroness Randerson
The noble Lord brings information from the front line, if I can put it that way, in far more detail than I could have provided to your Lordships. The noble Lords, Lord Rowlands and Lord Richard, asked detailed questions about the numbers of young people who voted in Scotland and the turnout. The turnout of 16 and 17 year-olds was remarkably high. It is my recollection that it was slightly lower than among the older sections of the population but it was remarkably high. I refer noble Lords to the fact that the Electoral Commission is, at this moment, undertaking a detailed study of the impact of the votes of 16 and 17 year-olds in Scotland. That report will be published in the relatively near future and I would recommend it as very important reading for those of us who are interested in these issues.
Lord Rowlands
Can the Minister tell us how many 16 and 17 year-olds there are?
Baroness Randerson
I will have to write to the noble Lord on that issue because if I were to venture a figure, I fear I might mislead him, and it is important that I am completely accurate on that.
My noble friend Lord Roberts asked about the further devolution of the rail franchise announced last week. His question pointed to the difference between Wales and Scotland in the nature of their borders. He referred to the fact that the rail line between north Wales and south Wales goes across the border from Wales to England and back again. I will write to him with the details of last week’s agreement. I can assure him that the issue has been taken fully into account in the discussions between the two Governments. I will ask the Electoral Commission to write to the noble Lord with the details of the 22 electoral returning officers in Wales.
The noble Lord, Lord Elystan-Morgan, considered the issue of the maturity of young people now compared with 40 years ago. It is important to bear in mind that young people consider rather more strongly that they should have a say in the way their lives are run than was the case a long time ago. My noble friend Lord Cormack talked about the variable age of majority. I would say to him that there has always been a variable age of majority in this country. One could argue that some ages of majority are not entirely consistent with some others. It has always been the case that one could, for instance, join the Army younger than when you could get married without your parents’ consent. There are therefore different approaches to different aspects of life. Perhaps that is something else on which we need to have a consistent and long-term debate, but that has been the state throughout the whole of my life and, I dare say, we will not resolve that debate in the near future.
The noble Baroness, Lady Gale, referred to the signatures on the amendment. I tabled the amendment and three noble Lords exercised their right to add their names, as is the custom in this House. They had signed the original amendment. I would have strongly welcomed the noble Baroness adding her own name because one of the things signifying the tone of debate on the Bill has been cross-party consensus.
Baroness Gale
I was trying to point out to the Minister that there is cross-party support for the amendment, which could have been reflected in the signatures if I had been allowed. I am not sure whether I would have been allowed as it is a government amendment. However, I think the Minister will accept that there is cross-party support for the amendment.
Baroness Randerson
I wholeheartedly recognise that there is cross-party support but repeat that this is a government amendment to which three people added their names. It would have been in the hands of the noble Baroness to add her name if she had wanted to.
Finally, I thank the noble Baroness, Lady Morgan, for the way in which she has expressed her appreciation for our efforts here today. She made the point that the Bill is already rather out of date. I would say to the noble Baroness that the fact that we are already planning, working on and discussing a future Bill indicates that this is a developing process.
Before I sit down, I should like to thank all those who have participated in our debates on the Bill. It has been a personal pleasure for me to steer a Bill through your Lordships’ House to devolve new powers to the Welsh Assembly and Welsh Ministers. “Historic” is a word that is sometimes overused in political debate, but I believe we can justly claim that the devolution of fiscal powers to the Welsh Assembly for the first time is an historic step forward. Although some noble Lords have expressed frustration at the pace of devolution, if we look back, we can see that Welsh devolution has come a long way in 15 years. Our debates have reflected the gathering momentum for further change. The Government are committed to ensuring that Wales remains at the heart of the development of devolution. My right honourable friend the Secretary of State and I are committed to publishing a framework for a reserved powers model of devolution by St David’s Day with—and I emphasise this—cross-party support.
I am pleased that the Government have been able to listen and respond to the views of noble Lords on two key issues during the Bill’s passage: first, on the lock-step mechanism for income tax and, secondly, on the referendum voting age, which we have just been discussing. I believe it is a better Bill as a result. At its heart, this is a Bill about accountability. It will provide the Welsh Government with the tools to help to build a stronger economy and a fairer society in Wales. For the first time, the Welsh Government will have the power to raise some of their own revenue, making them accountable to the people of Wales not just for spending, but for raising money as well.
I look forward to seeing how the Welsh Government capitalise on the opportunities we are giving them and once again urge them to call an income tax referendum as soon as possible. I thank my noble friends Lord Newby and Lord Bourne for their support and assistance with the Bill. The expertise of my noble friend Lord Bourne has been extremely useful in view of the fact that we have discussed the Silk commission on so many occasions. He was, of course, a member of that commission.
This is a short Bill but it has benefited from the expertise of officials from a number of departments: the Wales Office, the Cabinet Office, Her Majesty’s Treasury, HMRC and the DWP. It has been a pleasure to work with them on the Bill. They have been assiduous and endlessly prepared to give their time to assist me and support the many meetings I have held with noble Lords, both as individuals and in groups. I thank them for their assistance. I also thank the many noble Lords who have spoken in our debates. They have displayed a wealth of experience and understanding of devolution. I appreciate the willingness of so many noble Lords to give their time to attend a number of additional informal meetings that I arranged. I commend the amendments to the House.
Baroness Randerson
“1 (1) Where a referendum held by virtue of section 12(1) follows on from a youth franchise resolution, a person is entitled to vote in the referendum if, on the date of the poll at the referendum, the person—
(a) is aged 16 or over,(b) either—(i) is registered in the register of local government electors at an address within an Assembly constituency, or(ii) is registered in the register of young voters at such an address in accordance with provision made under paragraph 1A,(c) is not subject to any legal incapacity to vote (age apart) within the meaning of section 2(1)(b) of the Representation of the People Act 1983, and(d) is a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union (within the meaning given by section 202(1) of that Act).(2) Where a referendum held by virtue of section 12(1) does not follow on from a youth franchise resolution, a person is entitled to vote in the referendum if the person would be entitled to vote in a general election of Assembly members if one were held on the date of the poll at the referendum.
(3) For the purposes of this paragraph and paragraph 1A, a referendum held by virtue of section 12(1) “follows on from a youth franchise resolution” if—
(a) a resolution is passed by the Assembly under section 13(1) which states that the voting age at the proposed referendum is to be 16,(b) the First Minister complies with section 13(2) in relation to the resolution, and(c) as a result, a draft of the statutory instrument containing the Order under section 12(1) which causes the referendum to be held is laid in accordance with section 13(3)(a).(4) An Order under section 12(1) may include provision for disregarding alterations made in a register of electors or voters after a date specified in the Order and sub-paragraphs (1) and (2) are to be read subject to any such provision.
1A (1) Where an Order under section 12(1) causes a referendum to be held which follows on from a youth franchise resolution, the Order must make provision about the registration of young voters.
(2) That provision must include—
(a) provision for the preparation and maintenance of a register of young voters;(b) provision prohibiting the publication or other disclosure of that register, or any entry in it, except as provided by such an Order.(3) Provision made by virtue of sub-paragraph (1) may, in particular—
(a) apply or incorporate, with or without modifications, any enactment relating to referendums or elections;(b) make other modifications of any enactment relating to referendums or elections.(4) An Order under section 12(1) must make such supplementary, incidental or consequential provision (if any) as appears to Her Majesty to be appropriate for the purposes of, in consequence of, or for giving full effect to—
(a) any provision made by virtue of sub-paragraph (1), or(b) the entitlement of 16 and 17 year olds under paragraph 1(1) to vote in the referendum.(5) Provision made by virtue of sub-paragraph (4) may, in particular—
(a) make modifications of any enactment;(b) make transitory, transitional or saving provision. (6) For the purposes of sub-paragraph (3)(a), “enactment” includes the Scottish Independence Referendum (Franchise) Act 2013 (asp. 13).
(7) For the purposes of this paragraph, “young voter” means a person who—
(a) will be aged 16 or 17 on the date of the poll at the referendum, and(b) is not registered in the register of local government electors at an address within an Assembly constituency.”
““Assembly constituency” has the same meaning as in GOWA 2006;”
Lord Elystan-Morgan
My Lords, perhaps I may say how much I appreciated the tenor of the Minister’s remarks a few moments ago. It has indeed been rather revolutionary in the history of the land and nation of Wales that there should have been so much compromise, understanding and unity in relation to very many matters. We as a people in Wales have a reputation of fissiparous disaffection of a general nature, and nobody could gainsay that, but it may well be that with this Bill—in both Houses but particularly in this House and particularly due to the attitude of the Minister—we have shown a different approach. It is a small but impactive Bill and I believe it to be of very great historical significance in so far as the constitutional situation of Wales as a land and nation is concerned.
I want to raise one matter, and that is the question of the relationship of the Bill to the undertaking given by the Prime Minister on 19 September—that cold morning which followed the heavy events in Scotland the day before. He said that,
“there are proposals to give the Welsh Government and Assembly more powers. And I want Wales to be at the heart of the debate on how to make our United Kingdom work for all our nations”.
Those were his exact words and they could mean a very great deal or nothing at all. If by “powers” one means the powers contained in this Bill, for which I wish Godspeed, then those words are utterly meaningless because they were spoken in the heady atmosphere of massive undertakings given to Scotland and weighty undertakings given to Northern Ireland. However, if in fact they referred to nothing more than this Bill, then they meant that no additional powers in relation to Wales were contemplated than existed at that moment—in other words, there was no addition to the status quo. In my view, that would be a very unsatisfactory situation. At best, it would be misleading. It would mean that there was a negligent misrepresentation, to use a technical legal term, on the part of the Government. At worst, it would mean something much more serious than that.
For a number of reasons, I do not for a moment impugn the Prime Minister of any lack of integrity in this matter. First, this was an ex cathedra statement—not something that had been cobbled together in the wee small hours of the morning of 19 September but probably something that had been prepared a long time before when it was anticipated in the months preceding the referendum that the result might be much more clear cut than it was. Secondly, the second part of the statement reads:
“And I want Wales to be at the heart of the debate on how to make our United Kingdom work for all our nations”.
If no further devolution of a substantial nature were contemplated in relation to Wales, how could that possibly have any relevance whatever? It seems therefore that, with one additional factor, the Government must be contemplating powers well beyond those that we are considering in the context of this Bill. If a Cabinet committee is set up to consider the situation in relation to Scotland, Northern Ireland and Wales, and to report in January 2015 on the whole question of constitutional development, if there was to be no constitutional development in Wales, what would be the point of including Wales in such an arrangement?
Lord Tunnicliffe (Lab)
My Lords, perhaps I may invite the government Front Bench to point out the protocol for the Motion that the Bill do now pass.
Lord Bourne of Aberystwyth
As I understand it, it is not normally debated but it is quite in order to do so.
Lord Morris of Aberavon
My Lords, it is not my intention to detain the House, despite this interruption, for more than a few minutes. I welcome very much the significant powers granted to Wales in this Bill, which has been so ably steered by the Minister. Perhaps of greater importance will be the conclusions of the consultations which will be produced, I hope, by 1 March. They will be groundbreaking. I also welcome very much the role being played the Secretary of State who is carrying out what I hope is the mandate given to him following the reshuffle by the Prime Minister in the words of my noble friend Lord Elystan-Morgan.
Following 7 May, my hope is that a Labour Government will bring forward proposals. By our votes in Committee, the Labour Front Bench underlined its commitment, as did my noble friends Lady Morgan of Ely and Lady Gale at Second Reading. They have provided the basis for a manifesto commitment. In the 1970s, when I set up the role of the Attorney-General to police the Assembly if it exceeded its powers, I never expected or contemplated one of my successors being so trigger happy and repeatedly trying to overturn the Assembly, and getting, for his pains, black eyes on two occasions. A simpler, cleaner, reserved powers model would be much better.
I close on the need for a high-power constitutional convention. In 1969, the setting up of the Kilbrandon royal commission by a Labour Government was the vital catalyst for the path that we have been treading over the years. I shall never forget the noble Lord, Lord Elystan-Morgan, coming up from the beach at Newquay in Cornwall one lunchtime and brandishing his idea for a royal commission as a way forward. It seems from the papers I have seen at Kew that other work along the same lines was also being done by Ministers. The announcement at the next Labour Party conference of a royal commission was the culmination of that work.
Today, something more profound and influential than even a royal commission is needed to map out the role for Scotland, Wales, Northern Ireland and England as partners in the future of the United Kingdom. I hope that there will be courage on the part of all the parties to work out a broad-based convention so that we can come to the end of piecemeal reform.
Lord Elis-Thomas
My Lords, I have no wish to detain the House but I want to place on the record on behalf of my noble friend Lord Wigley and myself, both of us former Members of the National Assembly. In fact, I am still a Member—so far—dependent on the will of the electorate, as were the Minister and her colleague on the Front Bench. I thank the Government for their very positive response on all these matters. I should like to refer in particular to one great joy as regards this Bill, which is the passing of a phrase with which I have always had constitutional difficulty: the Welsh Assembly Government.
First of all we were the Welsh Assembly. That meant all of us—the whole family of legislators, officials and Ministers, or rather secretaries in those days. Then we went through a transitional period as the Welsh Assembly Government. Now, thank goodness, we are the Welsh Government for Plaid Cymru and the National Assembly for Wales, and long may we remain so.
Lord Thomas of Gresford
My Lords, I have been talking about devolution and independence with the noble Lord, Lord Elystan-Morgan, since around 1962 when we were both solicitors in Wrexham. Indeed, I even voted for him in 1964 when he was a Plaid Cymru candidate. The noble Lord, Lord Elis-Thomas, will be interested to know that. Thereafter we developed our ideas on devolution and it was those ideas, which we produced in 1967 in a Bill in the House of Commons and here that was taken up and considered by the Kilbrandon commission, to which I gave evidence. I say all this because of the history that everyone has been giving.
This Bill is just a step; it is not the end. I notice today that the Glasgow Herald says that the intention of the Smith commission is to introduce votes at 16 for the next Scottish Parliament elections. If that happens in Scotland, I am sure it is going to happen in Wales. Similarly, it has been said that Scotland may very well be looking for an airport tax. If that happens in Scotland, to the delight of the noble Lord, Lord Rowe-Beddoe, it will necessarily come to Wales as well. There are further steps to be taken before we have the complete and satisfactory home rule that the noble Lord and I dreamed of over 50 years ago.
Baroness Randerson
My Lords, I shall respond briefly to the salient points that have been made in this, our last debate. The noble Lord, Lord Elystan-Morgan, referred to the words of the Prime Minister. Perhaps I may point out to him the solid steps that have been taken since 19 September. The Cabinet Committee has been established under the chairmanship of William Hague. The Secretary of State is of course a member of that committee and, indeed, I attend as well when Wales is being discussed. I would also point to the establishment of cross-party discussions here in Westminster. My right honourable friend the Secretary of State will also be in discussions with the leaders of the Assembly groups. We have made the announcement which has been referred to on numerous occasions in our debates of the date of 1 March, St David’s Day, by when we expect to have resolved the issues to a sufficient extent to be able to produce a reserved powers framework for future legislation in respect of Wales. That will deal with the proposals for additional powers in Silk 2, in so far as there is cross-party agreement relating to the size of the Assembly. Silk 2 was accepted by the Deputy Prime Minister in his role of leader of his party. The long-standing devolution credentials of the noble and learned Lord, Lord Morris, are well known and respected by this House. The recent Supreme Court judgment has made it imperative that the issue of the reserved powers model is dealt with.
Lord Wigley
The noble Baroness touched on Silk 2 and the fact that, in Wales, we had a remarkable cross-party agreement in the Silk commission to deliver it. A lot of parties compromised to reach that agreement. Can we be assured that there will not now be further compromise? The compromise has already taken place, the Government have a unanimous report and Wales expects it to be enacted.
Baroness Randerson
It does not, of course, lie in my hands whether there is compromise. It is an issue for the four parties within Wales. I strongly agree with the noble Baroness, Lady Morgan, who has made clear that the devolution debate has changed. It has gathered force and moved on since Silk 2 was published. I join the noble Lord, Lord Elis-Thomas, in being delighted at the end of the concept of WAG. I always regarded this as an unfortunate acronym of the Welsh Assembly Government. My noble friend Lord Thomas made the very important point that the Bill is just a step. I say to noble Lords who make me feel like a newcomer that I have only been campaigning for devolution in Wales since 1979.
Consumer Rights Bill
17:52 - Division on Amendment 31 - Ayes: 194 / Noes: 220 - Amendment 31 disagreed.
20:03 - Division on Amendment 44 - Ayes: 123 / Noes: 168 - Amendment 44 disagreed.
20:43 - Division on Amendment 44ZA - Ayes: 113 / Noes: 156 - Amendment 44ZA disagreed.
Lord Clement-Jones
“20A (1) A term which has the object or effect of permitting a trader engaged in the provision of fixed broadband internet access or mobile internet services to block, restrict or otherwise hinder the access of a consumer to any lawful electronic communications network or electronic communications service on the basis of an unreasonable or unusual definition of “internet access”, “data”, “webaccess” or similar word or phrase.
(2) Nothing in this prohibition shall affect filters for the purpose of child protection.
(3) “Electronic communications network” or “electronic communications service” shall have the same meaning as provided in section 32 of the Communications Act 2003.”
Lord Clement-Jones (LD)
My Lords, Amendment 29 was moved, as Amendment 56B, in Grand Committee by the noble Baroness, Lady Thornton, and supported by the noble Lord, Lord Best, and my noble friend Lord Stoneham. It is an important amendment and, although I was not able to be in Grand Committee, in view of ministerial replies and subsequent statements by Ofcom, the Internet Telephony Services Providers’ Association and I thought that it deserved a better answer.
The amendment is designed to prevent ISPs blocking or discouraging use of services within the legal internet that compete with their own. It would prevent mis-selling of internet services and strengthen the power of the open internet code. At the core of the problem is consumers’ understanding of the services they should rightly receive within their internet contract. Customers assume that they can use all internet services, when in actual fact there are either specific terms and conditions preventing use of services like VoIP or extra charges are incurred to do so.
At present, internet service providers have no obligation to allow their customers to access the entire legal internet, despite selling internet access to their consumers. Some mobile operators have used this to block, degrade, impede or surcharge certain services simply because they compete with their own. It is very much in the interests of consumers and the economy that internet users have open access to all the legal parts of the internet, on the basis of fairness for consumers and to facilitate innovation in online services.
Although it disapproves of this anti-competitive behaviour, Ofcom has repeatedly stated that it does not have sufficient powers to prevent the blocking or surcharging of internet services. The amendment would resolve this problem by creating consequences for ISPs that claim to offer internet access but then restrict what the internet means through terms and conditions. The amendment dovetails with the industry’s open internet code of practice to ensure that the UK maintains an open internet for both consumers and industry, but the code is effective only if Ofcom is able to intervene if it is breached. Nothing in the amendment restricts the ability of ISPs to block access to illegal material or implement content blocking at the request of the customer.
Lord Stevenson of Balmacara (Lab)
My Lords, like the noble Lord, Lord Clement-Jones, we support an open internet, and it is in that spirit that we have signed up to the amendment. There is a case here for the Government to decide where they think the legislation currently lies, and if it is not clear that Ofcom has the powers that the noble Lord spelt out in some detail, it is important that this is resolved.
I think that it would surprise many people to learn that internet service providers have no obligation to allow their customers to access all the legal internet, despite selling “internet access” to all their customers. If DCMS believes that both existing legislation and new additions within the Bill resolve the issue of mis-selling, it is important that the Government agree with us that clarity should be made beyond peradventure. We need to know whether Ofcom is right that it does not have the powers, in which case the amendment will resolve that. If DCMS and Ofcom agree that the necessary powers do exist, DCMS should say so publicly and make it clear beyond any doubt that Ofcom has the necessary powers to act on any relevant open internet infringements. I look forward to hearing what the Minister has to say.
Baroness Jolly (LD)
My Lords, the debate on this important issue in Committee was a very good one, as my noble friend said. The discussion focused more on the protections for net neutrality than on the specifics of this amendment. I sympathised with the points made and committed to a meeting to discuss them. I thought it important that the relevant interested parties were present, especially Ed Vaizey, the Minister for Culture and the Digital Economy. His diary proved to be completely immovable. The meeting is now in the diary for this Thursday and I am looking forward to it.
It is clear from the discussions so far that this is a really complex area, and one which is causing a great deal of debate both in Europe and across the Atlantic. We believe that we are global leaders in delivering open internet services. In the UK, a competitive market, effective self-regulation and consumer expectation have delivered a much more open internet than perhaps elsewhere.
As noble Lords may be aware, industry has developed two self-regulatory codes of practice—both now with full sign-up from major ISPs, with Vodafone, EE and Virgin Media signing up to the open internet code in recent weeks. This is the code that governs their behaviour and ensures that they do not block services that compete with their own. Mobile operators that restricted some services such as Skype no longer offer new packages that do so. Ofcom, the regulator, has been in dialogue with the provider whose behaviour this clause attempts to address and there is a commitment to review the wording in its terms and conditions to ensure that these are not misinterpreted in any way.
Critics of this self-regulatory regime will say that there is no penalty for falling foul of the open internet code and that ISPs can change their mind about being signatories at any time. While this is true, it is also the case for many other areas that are self-regulated, for example in online advertising, where great strides have been made to ensure a transparent sector. However, it is also true that in the two and a half years since the open internet code was agreed, no breaches have been reported. If there is a significant change in the number of signatories or we see common breaches reported, the Government will look at this again. Consumer expectations are such that we do not envisage this happening again.
In answer to my noble friend’s comments, we have discussed these issues with Ofcom. We agree with Ofcom that there may be some room for interpretation regarding its powers in this area. However, we do not believe that the amendment would deliver the intended restrictions on internet access providers. Furthermore, Ofcom’s analysis of the market for internet access services suggests that there is not an urgent need for intervention. The market is continuing to move towards the comprehensive provision of neutral open internet access services, and there is no evidence of present consumer harm. Therefore, for the time being, and because of the recent developments in this area, we see no evidence of the need for legislation.
However, by way of reassurance, as noble Lords will know, Clause 64(2) in Part 2 of the Bill means that providers will be unable to hide definitions of the service provided—such as broadband access—in the small print, and will have to give them due prominence. The Bill also retains the protections currently in force through the Unfair Terms in Consumer Contract Regulations 1999, which give regulators the powers to tackle such abusive behaviours, if proven. We are also taking a power in the Bill to allow us, after parliamentary scrutiny, to update the grey list. This means that were consumer or trader behaviour to change, or evidence of particular consumer detriment to emerge, we could add terms to the grey list to accommodate that. That could apply in this case should changes by providers not take place or we see a shift in provider behaviour across the board that is not currently evidenced. That means that ISPs will not be able to hide any clauses and that there is a route for action for regulators, should this prove still to be an issue. I believe that that is a more appropriate way to deal with this than legislating at this point, especially given that this is being addressed by the regulator.
We should also be aware of the ongoing process in Europe regarding net neutrality as part of the telecoms single market package. The Government have always championed the self-regulatory approach, but we recognise that not all markets are the same as the UK’s and that there is growing demand for further protections for net neutrality from other member states. It is clear from the European Council that there is the will to include text on net neutrality. We will continue to engage proactively with the European Council on that, and believe that an appropriate solution can be found. The latest text from the Italian presidency shows movement towards a more principles-based and outcome-focused approach, which we believe would be more appropriate.
To conclude, while I am sympathetic to the intentions of the amendment, the Bill is not the right place to do this. Telecoms regulation needs to be handled through telecoms legislation. We do not believe that the amendment will change the regulator’s power in this area; nor do we believe it be necessary at this time, given the market developments. We will continue to engage with the EU in a constructive manner.
I commend my noble friend’s persistence on the issue. The Government are unable to accept his amendment, but I hope that I have offered sufficient assurance to persuade him to withdraw it.
Lord Clement-Jones
My Lords, I thank my noble friend for that reasonably comprehensive response. Although I do not agree with large parts of it, it was comprehensive. It is interesting that the Minister, along with others, seems to have confused the issue of the open internet with net neutrality. They are rather different issues. It will be useful to have that discussion on Thursday. This is not a net neutrality amendment. It is about the enforcement of the open internet principles. I shall not take up the House’s time by explaining the difference, but it is considerable. The Minister’s meeting with me and the industry on Thursday will be helpful.
The Minister’s reply was a mixture of, “The problem has gone away”, “Voluntary agreements will do the business” and “We don’t need the back-up”, but the bottom line, which I find quite baffling, is, “We don’t agree with Ofcom”. The CEO—albeit the outgoing CEO, who may be more frank than an incoming one —was very clear about the powers that Ofcom did and did not have and what he thought was appropriate.
I do not know what discussions there have been between DCMS and Ofcom, but a dialogue of the deaf seems to be going on. I understand what my noble friend said about this not being an urgent need, but I do not believe that the CEO of Ofcom would have gone on the record twice—first on 4 November with the CMS Select Committee and then a fortnight later with the Communications Committee of the House of Lords—unless he thought that this was a live topic.
I note the slightly comforting words of my noble friend that under Clause 64 no small print will henceforth be allowed and that there will be no hiding place. I cannot remember the exact words that she used, but they were ringing phrases. I hope that they will have some substance. There is scepticism whether they will bite in the way my noble friend outlined. We shall see.
As the discussion with the Minister has not yet taken place, I reserve the right to bring this matter back at Third Reading if absolutely necessary but, in the mean time, I beg leave to withdraw the amendment.
Baroness Oppenheim-Barnes
“Consumer regulators
(1) This section applies to the regulators which are involved in protecting consumers (“consumer regulators”).
(2) It shall be the duty of the consumer regulators to uphold the rights of consumers under this Act.
(3) In exercising their functions, consumer regulators shall have regard to the desirability of—
(a) upholding accurate, plain and intelligible information for consumers about goods and services;(b) promoting—(i) fair and reasonable practices in the selling of goods and services;(ii) fair and reasonable pricing of goods and services;(iii) the inclusion of comprehensive information on goods and services in contract;(iv) quick and fair means for consumers to make complaints and have disputes resolved.(4) Consumer regulators shall have a duty to consider whether a proportion of any fines levied for breaches of rights under this Act shall be used to compensate consumers.”
Baroness Oppenheim-Barnes (Con)
My Lords, I beg to move Amendment 30. I think it would be helpful if I read it out at this early stage. The proposed new clause states that the section involved applies specifically,
“to the regulators which are involved in protecting consumers”—
that is, “consumer regulators”. The proposed new clause continues:
“(2) It shall be the duty of the consumer regulators to uphold the rights of consumers under this Act.
(3) In exercising their functions, consumer regulators shall have regard to the desirability of—
(a) upholding accurate, plain and intelligible information for consumers about goods and services;
(b) promoting—
(i) fair and reasonable practices in the selling of goods and services;
(ii) fair and reasonable pricing of goods and services;
(iii) the inclusion of comprehensive information on goods and services in contract;
(iv) quick and fair means for consumers to make complaints and have disputes resolved.
(4) Consumer regulators shall have a duty to consider whether a proportion of any fines levied for breaches of rights under this Act shall be used to compensate consumers”,
who may have suffered loss or inconvenience as a result of that.
The amendment proposed previously by the noble Lord, Lord Clement-Jones, shows that it is time that this matter was reviewed. This is an important Consumer Rights Bill which in many other ways will be of great benefit to consumers. It would be a great pity for it to go ahead without recognising and dealing with the anomaly which exists.
Under the Bill, the regulators are not required to exercise certain functions that one would expect them to exercise. I make it clear at the outset that I am not complaining about, or accusing, the current regulators. I am saying that their attention has never been drawn to this particular role. It is a new role as far as they are concerned. I am very grateful to the National Consumer Federation which has helped me to draft this amendment and, by the way, gets no money from anyone. The federation covers all the other consumer organisations and has gathered all the necessary information in giving this amendment its warm support.
I shall deal as quickly as possible with my reminiscences but I remember that, when we first privatised a public industry—the electricity industry—we received a report from the Monopolies and Mergers Commission saying that the electricity boards did not satisfy consumer needs, their prices were too high and their labour forces were not treated correctly. At last the moment had come to do something to benefit everyone—consumers, employees and the general public. I well remember that not long after the Bill became law, I needed some electrical work done in my home. Along came a nice man from the new electricity company and I said to him, “I hope you are feeling much happier these days in your place of employment”. He replied, “I am not worried at all. I have bought shares”. So I have a very big kite to fly in that respect.
It is obvious that many practices today that regulators come across, such as the ones highlighted in previous amendments, are new. The marketplace, as it were, has changed completely as far as they are concerned and the Bill is the place to stress that there is a very important consumer role. That is why the end of the amendment, which is one of the most important parts, says that consumer regulators shall have a duty to consider whether, if consumers have been harmed or in some way not been given a fair deal, any fines levied should be used to compensate consumers. To my great delight, one regulator did that recently when a big fine was imposed and now £3 million of the fine is to be repaid to those consumers who had suffered either financial loss or other types of problems.
It seems to me that they do not need the Government or the law in order to do that—they could do it themselves—but it will help to have it firmly in print that they may. I do not know what negotiations they went into with the Treasury but they must have been very interesting indeed. People often say to one, “Oh, these regulators, what do they do with all the millions?”. Noble Lords probably know already that the money goes straight to the Treasury, and the Treasury is not by any means an easy nut to crack. They did very well indeed to get that amount repaid to those consumers who had suffered. I want that also to be part of the law and I want it to be a consumer right. That is not a great deal to ask for. It is long overdue. I commend the amendment to the House.
Baroness Hayter of Kentish Town (Lab)
My Lords, I support Amendment 30, which has been moved by the noble Baroness, Lady Oppenheim-Barnes, which would ensure that regulators did what they are meant to do, which is to protect consumers and promote their interests.
I shall speak also to Amendment 50C, which is in my name and that of my noble friend Lord Stevenson of Balmacara. Our amendment would require statutory regulators to develop proper user or consumer representation on their boards, as well as reviewing annually the consumer experience of their industry, including whether consumers were sufficiently well represented and listened to so that their rights under this and other legislation were protected and, indeed, promoted. It would enable regulators to consider whether a levy might be needed to ensure that the consumer voice was clearly articulated.
Regulators exist in exactly those industries where the consumer cannot get a fair deal on their own behalf, either because of effective monopolies of the sort that we have just heard about or because the nature of the service is so complicated, long-term or specialist, such as in financial services or the law, that clients are in no position to evaluate it or to shop around. Despite this, not all regulators put the consumer, in whose interest they are meant to be working, first—sometimes because of industry capture, sometimes because they work at such a helicopter level that they fail to see the real consumer impact, and sometimes, as the noble Baroness has just said, because something new comes along and they are not feeling it from the grass roots up. Usually, however, it is because they do not embed the end-user’s views in their decision-making. They decide policy without researching the consumer’s experience or the consumer’s views, and they sometimes do not seem to understand the ordinary person who pays the bills. Our amendment would embed the consumer voice in the regulators’ governance, where it should have been from the start.
However, the noble Baroness, Lady Oppenheim-Barnes, has a rather craftier alternative, which is to place a duty on the relevant regulators to uphold the rights of consumers and to raise the possibility, as she has just said, of the fines levied by a regulator being used to compensate consumers for breaches of their rights. Given the £1.1 billion fine levied by the FCA last week, that part of her amendment has a particular attraction.
Without these amendments, the Bill will lack a certain crack of the whip in the hands of regulators. I therefore hope they get support.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
My Lords, I start by applauding the contribution made by my noble friend Lady Oppenheim-Barnes in promoting consumer rights. She has outlined her concerns and given her views on what the regulators can do to help consumers, reading from her amendment. Given how much impact her work has had, her input will be invaluable in ensuring that we have a better understanding of what needs to be done when we start the implementation phase of this important Bill.
It is, of course, important that consumer rights in regulated sectors, just as in the rest of the economy, are protected and promoted; that consumers are given sufficient information to make informed decisions; that they are aware of how to make complaints and seek resolution to disputes; and that they have suitable representation to secure the best possible outcomes. The noble Baroness raised some important issues with this amendment and in our meeting.
However, I am concerned that this amendment would, first, complicate an already complex legislative and governance framework, through which regulators operate, with a number of new rules and requirements. Rather than helping consumers, it could muddy the waters further and lead to complex, unclear decision-making by regulators.
Secondly, it could perversely duplicate the extremely good work already being done across the consumer landscape. There are already various bodies and organisations fulfilling the objectives of this amendment, which I will explain in more depth shortly. In view of the comments made by the noble Baroness, Lady Hayter, I should add that similar concerns relate to Amendment 50C, although that comes from a slightly different angle and would provide, in some circumstances, for a levy.
We must not overlook the good work that economic regulators have done. As noble Lords may know, economic regulators have a statutory duty to take consumer interests into account. The nature of independent regulation means that consumers are at the heart of what they do, and I am confident that this remains the case. If anything, the tone of what I have heard suggests that regulators have not been vocal enough about how much their work helps consumers, so let me highlight a few examples. Average monthly household spend on telecoms services fell by 2.9% in 2013. In addition to this, satisfaction ratings across key telecoms markets are close to or over 90%. The majority of consumers remain satisfied with their service overall. Complaints about fixed-line and mobile mis-selling have decreased. In fixed-line, they decreased from 1,200 per month in April 2005 to just over 400 in 2013, and mobile mis-selling has also reduced very significantly. There is now more choice than ever for consumers, with at least 13 major suppliers of bundled residential services, 114 fixed-line operators and four mobile operators.
Ofcom is pushing to make it easier for consumers to switch providers, which is critical for a well functioning telecoms market. Water leaks are down by 40% since the 1990s, so there is a heritage of affordable water bills, with high-quality drinking water and cleaner rivers. Domestic energy bills, while having increased, are still favourable compared to Europe.
Baroness Oppenheim-Barnes
I thank my noble friend for that very detailed reply. I wish I felt comforted, because I know she has spent a lot of time on and paid a great deal of attention to the issue. She said that these amendments might muddy the water. The problem is that the water is already muddy and the purpose of the amendment is to make it absolutely clear what the duties of regulators are in relation to consumers, along with all their other important interests. The effect of any practices that are being carried out by these industries which regulators have not seen, or have not thought that it was within their remit to deal with, is what this amendment clarifies.
Also, the Minister has rightly mentioned that most of these industries now have consumer representatives, or little personal consumer bodies. I would ask her only to try to get hold of one of them on an expensive 0845 number. They may work very hard but they do not have any powers of their own. I do not want that to be the way things happen—I prefer my amendment to that prospect. I do not want regulators to be hampered in the other important work which she has illustrated that they do. The great fines are not feathering their own nests; the regulators are doing what they consider to be their duty. I just want them to be given a new duty, and this amendment defines and clarifies it. I would like to consider this between now and Third Reading. There is a lot still to be done. However, for the moment, I beg leave to withdraw my amendment.
Baroness Hayter of Kentish Town
My Lords, Amendment 31 stands in my name and those of the noble Lord, Lord Best, and my noble friend Lord Stevenson of Balmacara.
Rather strangely, as the Bill stands, trading standards officers—who work on behalf of consumers to track down rogue traders, dangerous goods, scams and rip-off merchants—would lose their existing powers to inspect premises, unless they give two working days’ notice of such visits in writing. Because of the outcry over this nonsense when the Bill was in the Commons, the Government have already had to amend it so that officers can still enter without forewarning, either where there is suspicion of malpractice or where evidence might be destroyed. But that is always the case with evidence: it goes walkies when the police or trading standards are anywhere near.
Despite the slight amendment made in the Commons, the requirement for 48 hours’ written notice would still tie the hands of trading standards officers. This new requirement was written into the Bill, despite the fact that there were no calls at all for this change from business, and no evidence that officers misuse their current powers. While it is true that some companies quite liked it once it was suggested, none had demanded it. Meanwhile, enforcement agencies and consumer groups naturally want it removed. If the Government really want to help small businesses ensure that the right people and the right paperwork are ready for a visit, fixing it up by phone to suit the company would be much better than sending two days’ fixed notice by post, with no negotiation over the date. The Bill also does not deal with the difficulty of giving notice to mobile traders.
Even if we win a vote on this amendment, which would remove the need to have 48 hours’ written notice before trading standards could inspect, it does not mean that trading standards officers cannot give notice before they inspect. In fact, they would do so in very many cases. It is good practice to do so, but it would also save trading standards officers’ time: they would not have to go back a second time if the paperwork was not there. However, it makes no sense to give notice to people who are potentially breaking the law of when the enforcers will turn up to check on them. That would hamper the enforcers’ ability to tackle rogue traders, since unannounced visits can act as a deterrent, as well as a source of evidence.
Of course, these very same officers do not have to give notice for food safety: they can have unannounced visits. Ofsted can also make unannounced visits. Just last week we saw the impact of a surprise inspection of Colchester hospital by the Care Quality Commission, which led to major steps to safeguard patients. That might not have happened had the hospital management been given two days’ warning. Why must trading standards replace today’s on-the-spot checks with two days’ written warning? How difficult would it be for the very same officer to have different powers for entering the same premises, depending on which breach they are investigating?
The Government have said that a trading standards officer can always enter premises as a member of the public and see what an ordinary shopper can. However, retailers do not put their untaxed or counterfeit cigarettes on top of the counter or out on the shelves. Unsurprisingly, they are hidden below the counter, where an officer would not be able to look. It is not just consumers and trading standards officers who want the 48-hour requirement removed: small firms also dislike competitors undercutting them by underhand means. Indeed, the Tobacco Retailers’ Alliance—I do not often speak on behalf of anyone to do with tobacco, but it is right on this—has written, saying that it is,
“disappointed … that… the Bill … gives a retailer suspected of selling smuggled tobacco 48 hours’ … warning of having their premises inspected”.
It says that that seems,
“madness ... As legitimate retailers, we do not require any notice of an inspection. You can come in whenever you like”.
It says that the provision plays into the hand of retailers who break the law, allowing them to carry on selling smuggled tobacco after inspections. It urges the Government to remove this provision from the Bill and let inspections be carried out without warning so that they are an effective deterrent to those who sell smuggled tobacco.
The Chairman of Committees (Lord Sewel)
I have to inform the House that if this amendment is agreed to I cannot call Amendments 32 to 40.
Lord Borrie (Lab)
My Lords, I support the amendment that has just been spoken to. I declare in interest in that I am a vice-president of the Trading Standards Institute and I have been the president so I have a long understanding of the work of trading standards people up and down the country. They have been extremely useful in every development of consumer rights and consumer law over the many years since they were called weights and measures inspectors under the old rules of 1880. Now that they are trading standards inspectors and the Trading Standards Institute is a very respectable body, they have as a prime function the enforcement of consumer law. That is so now, although the substance of the law has been altered and is being altered further by this Bill.
One of the principal jobs of enforcement officers is, of course, to see whether a prosecution is justified. No self-respecting prosecutor thinks that any minor infringement of the law is deserving of prosecution and the trading standards officers in each county are well aware of that. They take a great deal of care in developing their thoughts that on a particular occasion the goods are dangerous, or the various things that my noble friend Lady Hayter referred to have occurred. To my mind, there is no doubt whatever that it is a far greater deterrent to malpractice if no notice has to be given of an inspection. I was delighted, as I am sure many of us here were, whether interested in this subject or not, with the announcement of the work done by Ofsted in deciding that there are some occasions when schools need to be looked at without notice so that they can be taken off their guard and it is more difficult to show that they are all to the good.
Trading standards inspectors have tasks other than prosecution. I was thinking of this when the noble Baroness, Lady Oppenheim-Barnes, was talking about the previous amendment. They do a great deal of advisory work and advise not just consumers but businesses. That is at least equally important because they are advising businesses on how to comply with the law, how to better comply with it and how to make sure that they do not suffer from prosecution in the future. In their advisory capacity, inspectors make sure that the right relationship is obtained with the trader concerned and notice may be given that they wish to come and talk about a particular problem and they hope their advice will be looked at and taken. There is a world of difference between advising and prosecuting. We can all see that and surely there is no doubt that it is far better for the prosecution element of the work of trading standards that visits do not require notice on every occasion.
Lord Best (CB)
My Lords, I am delighted to follow the noble Lord, Lord Borrie. I, too, am a vice-president of the Trading Standards Institute. I moved this amendment in Committee because it seemed extraordinary when I first read it that trading standards officers would need to give 48 hours before turning up to find out some wrongdoing on a site, in a shop or whatever. However, the Bill already says that if,
“the officer reasonably considers that to give notice … would defeat the purpose of the entry”,
then the 48 hours’ notice would not have to be given. Nor would notice have to be given if the officer,
“reasonably suspects that there is an imminent risk to public health or safety”.
In Committee we received reassurances from the Minister, who explained that even if there was just a suspicion that there might be something going on, it would be quite in order not to give notice because that would totally undermine the purpose of looking in on the premises. That just leaves the 48 hours’ notice for “a routine visit”, which is how this is expressed in the amendments to follow in the name of the Minister. For a routine visit, 48 hours’ notice would be given but I understand that if trading standards officers are to make a routine visit—probably, as the noble Lord, Lord Borrie, said, to give advice, or to explain that the law has changed and there is something new that the business ought to know about—it will not be a matter of just giving notice. It is a negotiated thing. They will send an e-mail and receive a reply. What is the point of turning up 48 hours later if nobody is there or if the boss is not there and you need to see the boss? If it is something completely routine, this is how people behave just out of politeness, if for no other reason. They will make an appointment and go round and visit. The danger is that this will get blurred, the proper use of the unannounced visit will be inhibited and we will not see justice done when it should have been done. It seems much better if we simply omit this reference to 48 hours’ notice. It was probably a bad idea in the first place. There is a certain amount of retreat from it now—very sensibly by the Minister—but why not just knock it out? It does not seem to serve any purpose.
Baroness Neville-Rolfe
My Lords, the Government certainly share the objective of an effective enforcement regime to protect consumers from rogues and traders from unfair competition. In this Bill we are, of course, consolidating and modernising the investigatory powers of consumer law enforcers, bringing together the powers from different Acts, and ensuring for the first time that enforcers can tackle rogue traders who operate across local authority boundaries. We have also introduced strong safeguards as to how these powers are exercised because the powers are necessarily intrusive. They allow officers to enter premises, seize goods and break open containers, for example.
Under the Bill, therefore, consumer law enforcers will now have to give notice to traders if they want to make a routine inspection. We introduced this change, following discussion in Committee, because we think it is a basic principle of civil liberties that a business should suffer the disruption of an unannounced visit only when there is some good reason, such as suspicion that a business may have broken the law. However, we recognise that trading standards has real concerns about the requirement to give notice. I want to set out the approach that we have taken in more detail before talking about my amendments.
Businesses, including small businesses, are very supportive of strong powers to investigate rogue businesses, as has been said, because they harm consumers and are unfair to them. However, businesses have told us that unannounced routine inspections by enforcers are disruptive, costly and needlessly so. For example, an officer visiting a shop may demand a lot of attention from staff at busy periods or want information that the junior staff available cannot provide. The Federation of Small Businesses told us that the safeguard of two days’ written notice of routine inspections, which can of course be sent by e-mail, will allow businesses to ensure that the appropriate staff and paperwork are available. This means that neither the trader’s nor enforcer’s time is wasted. For example, if an officer visits a retail store to check centrally set price promotions, store colleagues may be unable to change promotions or answer questions on price establishment periods. Hence, matters that could otherwise have been cleared up quite quickly can result in primary authority referrals or a formal investigation.
Clearly, the Government are aware that much of the vital work of enforcement officers is directed at illegal trading. We very much value the excellent work of enforcers such as trading standards to protect consumers and legitimate businesses from rogue traders—including, I should add, the advisory work that the noble Lord, Lord Borrie, mentioned, which I agree is extremely valuable. Officers clearly should not have to give notice of an inspection where illegal trading is suspected. That is why clear exemptions are set out in the Bill, which I need to go into to try to ensure that the House understands how reasonable our proposals are. As has been said, notice need not be given, for example, if there is an imminent risk to public safety. The noble Lord, Lord Best, explained that clearly.
The exemption would apply: where an enforcer reasonably suspects a breach—for example, where enforcers find evidence of illicit tobacco, such as stubs and papers, in the streets near suspected outlets; where giving notice would defeat the purpose of the entry, a good example of that being where counterfeit alcohol is being sold in local shops and the enforcer believes that the traders in question are likely to conceal the illegal products if notice is given; and where it is not reasonably practicable in all the circumstances to give notice—for example, because the officer reasonably suspects that there is an imminent risk to public health or safety, as the noble Lord, Lord Best, mentioned. There are three or four other exemptions but, taken together, these exemptions ensure that consumer protection is properly maintained because if there is evidence of a serious or immediate breach, enforcers can intervene. The Bill supports an intelligence-led approach to enforcement which is an effective use of enforcement resources.
The noble Baroness, Lady Hayter, said that test purchases were less effective if notice had not been given. However, notice need not be given for a test purchase or to observe the carrying out of business.
Baroness Oppenheim-Barnes
Before my noble friend leaves that point, I wish—possibly—to help her. Is she aware that EU authorities have to give only 24 hours’ notice when coming to inspect a British company and, within that period, that the Secretary of State responsible has to provide supporting police for the inspection?
Baroness Neville-Rolfe
I am grateful to my noble friend for that factoid, of which I was not aware. Of course, our proposed regime provides for routine inspections and then, where there is a potential problem, for immediate inspections when they would be more appropriate. That difference is entirely justified, for the reasons that I have explained. Having worked in business, I know that when you have routine inspections you want to make sure that the people who understand all the rules and how the systems work—and have all the necessary paperwork—are available, because otherwise you often end up with a second visit. That is what we are trying to avoid, because that costs both parties.
We have clarified where notice needs to be given by adding to the Bill reference to what a routine inspection is. To offer further reassurance—
Lord Harris of Haringey (Lab)
In the Minister’s amendment, the only definition given is that it is not one of those things that are exempt. In which case, what value does “routine” add?
Baroness Neville-Rolfe
We felt that it helped to clarify that there was not a gap. In Committee, we went through a number of examples about which individual noble Lords were very concerned. Having checked through the examples, we are able to show to people’s satisfaction that the thing would be clear. Doing it this way in the Bill achieves that effect. However, I want to add a further reassurance. I am today committing the Government to reviewing the practical effect of the notice requirement within two years of commencement of this part of the Bill. I have listened to what has been said and we have made changes to try to clarify this. We want to have a good enforcement regime—
Baroness Crawley (Lab)
I thank the Minister and do not wish to detain the House, but does she not agree that a clear lack of definition within the Bill of “routine inspection” boosts the confidence of potential rogue traders, who will take that to court on a technicality?
Baroness Neville-Rolfe
I thank the noble Baroness for her intervention. We believe that the amendment put forward clearly defines the term “routine inspection” for the purpose of this power of entry. We clearly set out the exemptions in the Bill and I commend both our proposed amendments to try to clarify the circumstances, and the review within two years that I have offered, in response to the concerns that have been expressed about exactly how this will work. The powers and safeguards strike the right balance. It is an important area; the notice provision is strongly supported, particularly by the small business sector—not so much by big business—which we all care about because of the huge contribution that it makes to our economy. I ask the noble Baroness to withdraw her amendment.
Baroness Hayter of Kentish Town
I think the House knows that at the moment, no notice is needed in writing 48 hours before. The Government clearly made the wrong call, so they changed it a bit in the Commons by adding, “Well, unless the evidence is going to be lost”. They have now made more changes to say, “Well, routine inspections will be all right”; and now at the very last moment, we hear, “Well, there is going to be a review in two years’ time”. It sounds to me as if the Government know that this is wrong. The noble Lord, Lord Best, had it right: the Government should knock it out. They should not have put it there and it is not a way forward. There is no evidence that trading standards has misused its current powers; it will give notice because it is easier for it to do so. Ofsted does not have to define in law why it has made an emergency inspection without notice. The problem is the uncertainty: that if people are going to have to show that they had reasonable evidence or that they have fulfilled one of these requirements, there will be uncertainty, lack of clarity and fewer visits. I doubt that that is what the Government really want. I beg to test the opinion of the House.
Baroness Neville-Rolfe
“(5A) In this paragraph “routine inspection” means an exercise of the power in sub-paragraph (1) other than where—”
Lord Taverne
“Product description and advertisement
(1) Subject to subsection (2), where any specification, description or advertisement of goods, services or land or property offered for sale, hire or lease, or any instructions or maintenance manual relating to such goods or services includes one or more units of measurement, those units shall be—
(a) those set out in Schedule 1 of the Units of Measurement Regulations 1986 (S.I. 1986/1082) (as amended); or(b) any multiples or submultiples of those units as set out in Schedule 2 of those Regulations.(2) Subsection (1) shall not apply to products listed in Schedule (Product description and advertisement).
(3) Subject to subsection (4), supplementary indications may be used in addition to the units authorised in subsection (1).
(4) Where supplementary indications are used—
(a) in the case of a conflict between an indication of quantity expressed in an authorised unit and a supplementary indication, the authorised unit shall prevail; and(b) the authorised unit shall appear first, and any characters employed in the marking of quantity in relation to a supplementary indication shall be no larger and no more prominent than those employed in the marking of quantity expressed in the authorised unit.(5) In this section—
(a) an “authorised unit” means a unit of measurement specified in Schedule 1 of the Units of Measurement Regulations 1986 (as amended) or any multiples or submultiples of those units as set out in Schedule 2 of those Regulations,(b) a “supplementary indication” means one or more indications of quantity expressed in a unit of measurement, other than an authorised unit, which is used in conjunction with an indication of quantity expressed in an authorised unit,(c) “unit of measurement” does not include arbitrary sizes such as sizes of shoes or clothing, paper and stationery or eggs,(d) a “year” is not to be treated as a unit of measurement.”
Lord Taverne (LD)
My Lords, I start with an apology to the noble Lord, Lord Harris of Haringey. In Committee I said that I would certainly look at the idea of somewhat broadening the scope of what we were considering. However, I received the official reply very late, and I have also suffered, as I hope will not be too much in evidence as I move the amendment, from a chest infection, which means that I dissolve into coughing fits from time to time. Therefore, I was unable to pursue the matter further and I apologise to the noble Lord.
I moved this amendment in Committee because the present law—at least, as widely understood—causes confusion. In descriptions or advertisements, there is no need as in other transactions to quote metric as the primary measurement. I shall give two examples. Some estate agents describe properties in square feet, others in square metres. As carpets are normally sold in square metres, it is hard for a would-be customer to know whether a carpet will fit into a room in a flat or house which they want to buy if it is advertised in square feet. The other example that I gave in Committee was that a retailer may offer in his showroom two comparable fridges—one whose capacity is described in litres and the other in cubic feet.
It appeared that the present Government’s view is that descriptions and advertisements are covered by the Weights and Measures Act, but David Willetts, the previous Minister concerned, held the view that they were not. Trading standards officers responsible for enforcement of the law believe that the law does not apply. They have given me examples of where they understand certain terminology to be legal and where similar terminology is illegal. One described the law on this subject as “a ass”.
This morning I met the Minister. It was a heart-warming occasion. My noble friend the Minister and her officials were the soul of reason and agreed to advise the professions and trading standards officers that the law did require the primary description to be metric, with every right to quote imperial measures as well. Therefore, the position should now be clarified and I am most grateful to all of them.
I have one reservation, which I hope will give rise to some discussion before I announce what I will do with my amendments. I was told that the Government have no intention to make any further moves towards metrication. They are happy to let two separate systems—conflicting systems, in some ways—coexist, whatever the confusion and cost that may cause for ever and ever.
I mentioned in Committee that in 1970, as Financial Secretary when Roy Jenkins was Chancellor, I helped to prepare the change to decimalisation, which was subsequently carried out by the Heath Government in 1971. We sounded out no focus groups and commissioned no opinion polls. We thought that opinion might well be rather against the move and many people forecast chaos. However, the decimalisation board made the most careful preparations and explained everything very clearly. There was no chaos and everything went smoothly, and who now doubts in retrospect—except, no doubt, some irrational UKIPers—that the change made life simpler for consumers?
The then Prime Minister had set up the Metrication Board to do for metrication what was so successfully done for decimalisation, but Mrs Thatcher abolished the board. It nevertheless continued to be government policy in principle to move towards metrication, but slowly and very cautiously, at a snail’s pace. Even that has now been abandoned. Everyone else—except, as far as I know, Britain and the United States—has gone metric, including, for example, the Commonwealth.
The United States and Britain have paid for that. If you run two systems side by side, there will be mistakes, some of which will be very costly. There was the orbiter disaster in the United States. In Canada, the so-called Gimli Glider ran out of fuel because of the same mistake and nearly killed hundreds of people. In Britain, only in the past few weeks, we have heard about the difficulties of Network Rail. A BBC reporter was told about maintenance crews across Britain who record what they do in different ways. He said:
“Network Rail told me that in some parts of the country they use miles, in other parts they use kilometres, so when two teams record the fact that they’ve fixed ‘three units’ of line, some mean three miles, others mean three kilometres. I don’t need to spell out what a mess that makes”.
Lord Deben (Con)
My Lords, in Suffolk it took us a very long time to get used to getting rid of the word “coomb”, which used to be how we would weigh corn. The problem was that other counties had a different coomb so it was quite difficult to compare one with another. Gradually, we came to terms with the idea that you might have tonnes—which we have now more or less accepted. However, this House should be very careful about this amendment because we are less well qualified to talk about this matter than most. Young people do not have a problem: they have only one system of measurement. My young are in their 20s and 30s. If I say, “Oh, it’s about 22 yards away”, they have no idea what I am talking about. One reason why the Daily Telegraph has been losing readers is that it still uses only imperial measures, which limits one’s audience to a particular age. Given its views, that is probably quite suitable for that newspaper.
There is a simple way around this, and I want to ask the Minister to help me. It is perfectly reasonable for an aged gentleman doing his shopping to be able to ask for a pound of apples. I can see that if you have never asked for half a kilo, it is somewhat difficult. Equally, it is perfectly reasonable for shops at a local level to make that kind of arrangement. But we have had from my noble friend Lord Taverne an example of something quite different, and that is the railway industry. If that industry cannot use one system, and if we cannot organise people to use one system for measurements, what then? Of course we could go back to using imperial measurements, but it is more difficult to add up, multiply and divide using that system. I remember that there are 1,760 yards in a mile, but most people who are aged under 40 do not.
This seems to me to be one of the most footling battles I have ever heard of. It really is not sensible to say that our sovereignty is being impinged by a system that is easier for us all and which means that we can communicate with people. We would still have to talk to them even if we were not in the European Union—it would be very silly indeed to suggest that—so would it not be a good idea to use the same language? The people who want to carry on with imperial measures grow fewer and fewer as the days go by.
I would like us to take one tiny step—I hope that the Minister will be able to say something by way of encouragement—which is that in all areas that are not about the immediate local connection between a shopkeeper and a shopper, only one measurement shall be used. That should not be too difficult to achieve. The shoppers and shopkeepers will change as they die off. Indeed, I notice that in my local village shop there are people who ask for their goods in either one measurement or the other. That will change and it can happen as slowly as we want, but surely any normal business-to-business activity—all of us now know what the term B2B means—ought always to be carried out using metric measurements.
I end by saying that I am experienced in this because a friend of mine was the chairman of the Anti-Metrication Board, an organisation set up by those who felt that something deeply awful was happening to Britain. I know that my noble friend takes that view on most things. The board had a mystical view about the fact that you could not measure ley lines using the metric system. There are few in this House who wish to measure ley lines. I am happy if the Government decide that in future ley lines may be measured only using the imperial system, but could they please ensure that all normal, reasonable activities other than the very smallest ones can be done using one of the most remarkable inventions of all? It took the great step from Roman numerals to Arabic numerals one stage further and gave us a system that even I can use simply and surely. Please let us not go on fighting a battle against Napoleon.
Baroness Jolly
My Lords, I start by thanking my noble friend Lord Taverne for his well considered speech and the thorough explanation of his amendments. UK weights and measures legislation works by focusing regulation on measurements and equipment that are in “use for trade”. This ensures that the primary focus is on those transactions where consumers need to know the quantity they are purchasing, how it compares to alternatives, and that they can rely on the quantity being accurate. The fundamental principle behind weights and measures policy is that every measurement used for the purpose of “use for trade” should be subject to the minimum level of regulation to ensure that businesses and consumers are protected against short measure and can have confidence in measurements.
Any transactions being made by reference to quantity or any statement of quantity made or implied in relation to a transaction is caught by the term “use for trade”. It applies widely and is intended to apply not just to the transaction itself but to any use,
“in connection with or with a view to”,
a use for trade—perhaps that is B2B. That would already cover most advertisements or product descriptions for goods. However, there are some cases, of which my noble friend highlighted several examples, where a product is not being sold on the basis of quantity and so the unit itself is not being used “in use for trade”. In these cases the usage would fall within the more general rules on what constitutes a legal unit as set out in the Units of Measurement Regulations.
This additional legislation, outside the Weights and Measures Act, makes it clear that metric units are the legal unit for any purposes beyond “use for trade”. Therefore, the use of a non-metric unit in the examples given by my noble friend are already not legal uses under the existing legislation. The Government are not aware of any significant demand from business or consumers to extend the scope of offences under the Weights and Measures Act to cover uses of units of measurement beyond “use for trade” or to extend what is caught by “use for trade”.
However, this morning I was glad to meet my noble friend and officials in order to talk through the issue. He raised an important point about how product descriptions and advertisements are being used in the marketplace, and the potential impact on consumer protection. We have tried to clarify the issue. The Government will commit to taking this forward with the relevant industry bodies to remind them of the current legal position and the importance of providing clarity for consumers. I hope that in due course we will not have a mixture of square metres and square feet when describing rooms so that we can purchase carpets more easily. As my noble friend stated, the Government do not believe that it is in the national interest for further metrication to take place against the wishes of the UK public. I fear that my noble friend’s bid for total metrification will have to wait a while—but I sincerely hope not 800 years.
While my noble friend has clearly targeted his amendments at units of measurement, I would be concerned at the risk of unintended consequences from making any extension to the scope of weights and measures law and the risk of causing confusion by duplicating existing legislation. The UK is already a metric nation, along with most of the rest of the world, as my noble friend said. The majority of UK businesses and the public sector switched to metric units almost 20 years ago. The vast majority of trade is now undertaken using metric units, and metric has been taught as the primary unit of measurement in UK schools ever since 1974. Over time, public support for metric units is increasing, and as we have heard, especially among young people. Businesses that are not providing metric units risk losing business as more and more people are using metric in everyday life. My noble friend Lord Deben asked why single units could not be required for other purposes. These uses are already regulated, and metric units are the legal measurements required under the Units of Measurement Regulations. However, imperial units can always be permitted as a supplementary indicator.
I hope that noble Lords are reassured that “use for trade” already applies widely and catches all transactions which are based on quantity. Even in those cases where “use for trade” does not apply, the legal units are already defined in law. Therefore, I ask my noble friend to withdraw the amendment.
Lord Taverne
My Lords, my Amendment 40B might possibly have unintended consequences and I was not going to move it. If the Government do in fact live up to their promise and ensure that the professions and those responsible for enforcement tell people exactly what the law is, which is that it requires that metric units should take priority even in advertisements and descriptions, that will meet my objections. I am very happy to withdraw the amendment.
Baroness Jolly
“Contravention of code regulating premium rate services
(1) In section 120(3) of the Communications Act 2003 (conditions under section 120 must require compliance with directions given in accordance with an approved code or with an order under section 122) before paragraph (a) insert—
“(za) the provisions of an approved code;”.(2) In section 121(5) of that Act (provision about enforcement that may be made by approved code) after paragraph (a) insert—
“(aa) provision that applies where there is or has been more than one contravention of the code or directions given in accordance with it by a person and which enables—according to whether the person imposing the penalty determines that a single penalty or separate penalties are appropriate and proportionate to those contraventions;”.(i) a single penalty (which does not exceed that maximum penalty) to be imposed on the person in respect of all of those contraventions, or(ii) separate penalties (each of which does not exceed that maximum penalty) to be imposed on the person in respect of each of those contraventions,according to whether the person imposing the penalty determines that a single penalty or separate penalties are appropriate and proportionate to those contraventions;”.(3) Section 123 of that Act (enforcement by OFCOM of conditions under section 120) is amended as follows.
(4) After subsection (1) insert—
“(1A) Subsection (1B) applies where a notification under section 94 as applied by this section relates to more than one contravention of—
(a) a code approved under section 121,(b) directions given in accordance with such a code, or (c) an order under section 122.(1B) Section 96(3) as applied by this section enables OFCOM to impose—
(a) a single penalty in respect of all of those contraventions, or(b) separate penalties in respect of each of those contraventions,according to whether OFCOM determine that a single penalty or separate penalties are appropriate and proportionate to those contraventions.”(5) In subsection (2) (maximum amount of penalty) for “the penalty” substitute “each penalty”.”
Baroness Jolly
My Lords, when you donate to a charity using a five or six digit short text code, or call directory enquiries for a number you need or have forgotten, you are more than likely to be using premium rate services. These are added-value services, products or content that consumers can purchase by charging the cost to their phone bill or mobile pre-pay account. While these services can, and do, offer enjoyment, convenience and speed of access to users, they also demonstrate certain characteristics which have the potential to give rise to harm, in the absence of effective regulation. For this reason, it is equally important that companies comply with the rules set out by the regulator’s code of practice, which serves to ensure consumers are treated fairly and not misled or taken advantage of.
PhonepayPlus regulates the market for premium rate services, and its code of practice, having been approved by Ofcom, sets out the regulatory framework for the industry, outlining the rules and required standards for every company involved in providing premium rate services to UK consumers. For example, a person or company providing premium rate services must be up front about the services they offer, and how much they cost, before users make any purchases. They must also treat consumers fairly and resolve complaints quickly.
Under the Communications Act 2003, PhonepayPlus can impose a penalty in respect of breaches of the code. The regulator has interpreted this to mean that it can impose £250,000 in respect of each provision of the code that is breached. The proposed amendment is intended to make it absolutely clear that where it is appropriate and proportionate, the maximum fine available to the regulator is indeed for each provision of the code that has been breached. Therefore, in the event of a company making two serious contraventions of the code, the regulator could impose a fine of up to £500,000, if that is deemed appropriate and proportionate.
This clarification will impact only on the premium rate service companies whose contravention of the rules is serious. It will not impact on the majority of businesses, which are compliant. The clarification is important to the regulator so that effective sanctions continue to be available for the most serious breaches of the code, which is there to ensure that consumers are not harmed by premium rate services and can use them safely and confidently. By clarifying the regulator’s fining powers, the amendment is an important tool in ensuring the continued existence of a sufficient deterrent to non-compliant behaviour by companies or people providing premium rate services. I beg to move.
Lord Hope of Craighead
“Nomination of judges to the Competition Appeal Tribunal
(1) The Enterprise Act 2002 is amended as follows.
(2) In section 12(2)(b) (competition appeal tribunal) after “the Lord Chancellor” insert “or nominated by the appropriate senior judge pursuant to paragraph 2(4) of Schedule 2”.
(3) After section 12(5) insert—
“(6) Appropriate senior judge has the same meaning as in paragraph 2(7) of Schedule 2.”.
(4) In Schedule 2 (the competition appeal tribunal) after paragraph 1(3) insert—
“(4) Upon the nomination of the appropriate senior judge, any judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be a member of the panel of chairmen and shall hold and vacate office in accordance with the terms of their nomination.”.
(5) In paragraph 2(1) of that Schedule after “The members appointed” insert “by the Lord Chancellor”.
(6) In paragraph 2(2) after “A person” insert “appointed by the Lord Chancellor to the panel of chairmen”.
(7) In paragraph 2(3) after “and the chairmen” insert “appointed by the Lord Chancellor”.
(8) In paragraph 2(4) after “remove a person” insert “appointed by him”.
(9) In paragraph 2(6) after “remove a person” insert “appointed by him”.
(10) In paragraph 2(7)(a) after “the person to be” insert “nominated or”.
(11) In paragraph 2(7)(b) after “the person to be” insert “nominated or”.”
Lord Hope of Craighead (CB)
My Lords, the amendment raises a short but important point about the appointment of judges to sit on the Competition Appeal Tribunal. It has the support of the Lord Chief Justice of England and Wales, who brought the matter to my attention.
Clause 80 and Schedule 8 to the Bill make significant changes to the jurisdiction of the Competition Appeal Tribunal, which was established by the Enterprise Act 2002. At present, the tribunal hears appeals from the competition authorities and regulators. The effect of Schedule 8 will be to expand its jurisdiction so that it will become, in effect, a specialist court hearing private competition appeals from all parts of the United Kingdom. I understand that that part of the Government’s proposal has received widespread support. It cannot be disputed that, if it is to cope effectively with this increased case load, the tribunal will require to be staffed by a sufficient number of judges from all parts of the United Kingdom who are equipped to deal with it.
The position, at present, is rather unusual. The judges of the Chancery Division in England and Wales are, on and by virtue of their appointment, authorised to sit as chairmen of this tribunal. However, under the current legislation, their appointment terminates after eight years and is not renewable. This is found in paragraph 2 of Schedule 2 to the Enterprise Act. This is not the best use of that resource. The effect of the eight-year terminus is that their expertise is then lost, although they may continue to serve as judges in the Chancery Division for many years later.
The fact that the system of appointment that I have described applies only to the Chancery Division has another unfortunate consequence, which is that other sources of expertise among the judges are not being used. Practitioners with experience of competition law are appointed to the Queen’s Bench Division but are not automatically authorised to sit on the tribunal. The effect of this is that, to be able to sit as a chairman, they would need to apply to the Judicial Appointments Commission, enter and be successful in a competition. For obvious reasons, serving judges are not keen to undergo that process and I understand that, in practice, they do not do so. Moreover, no Scottish or Northern Irish judges can currently be appointed to the tribunal either, without successfully completing an equivalent recruitment process in their respective jurisdictions, which, for the same reasons, has no attraction for them either. The absence of judges from those jurisdictions is all the more unfortunate as, under the changes being introduced by the Bill, the tribunal, with its widened jurisdiction, can be expected to hear more cases from Scotland and Northern Ireland than it does at present. One has to bear in mind that there is a process of appeal. Appeals from tribunals sitting in Scotland and Northern Ireland will go to the Court of Session and the Court of Appeal respectively. The absence, on the tribunal, of judges from those jurisdictions is bound to be noticed and this could raise sensitive issues which are best avoided.
The problem that I have briefly outlined was recognised in the Government’s consultation paper Streamlining Regulatory and Competition Appeals. In paragraph 5.13, it is noted that,
“the practice of requiring judicial officeholders to undertake a second appointment … for an equivalent office acts as a bureaucratic barrier to enabling any of these judges to sit in the CAT”.
Legislation was therefore proposed that would enable the heads of the respective UK jurisdictions to select and appoint judges whom they regarded as appropriate to sit as chairmen. Those would be judges of all divisions in the High Court in England and Wales, irrespective of the division to which they were appointed, and judges sitting in the Court of Session in Scotland and in Northern Ireland. They would be able to continue sitting as chairman without any eight-year limitation, which is the position under the Act at present.
The amendment has been proposed because, as presently framed, the Bill does not give effect to the proposal outlined in that consultation paper. If the Bill remains as it is, the bureaucratic barrier will remain in place. That is a matter of great concern to the Lord Chief Justice as head of the judiciary in England and Wales. In his view, with his knowledge of the resources that would otherwise be available to him, it is depriving the tribunal of some of the ablest judges to serve that jurisdiction. It is to be expected that the same sentiments will be felt in Scotland. I know, from recent discussions with people there, that they have had to appoint a leading member of the Bar because no judge is prepared to undergo the process and sit on the tribunal.
I need not go through the provisions, which are set out quite clearly in Amendment 41B. The essence, the key provision, is in subsection (4), which provides:
“Upon the nomination of the appropriate senior judge”—
that is, the senior judge in each jurisdiction—
“any judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be a member of the panel of chairmen and shall hold and vacate office in accordance with the terms of their nomination”.
Of course, that process relies on the judgment of the senior judges, but they know their judges very well and are well able to judge those who are appropriate to sit on the tribunal and can be relied on to make the appropriate choices.
Finally, I draw the Minister’s attention to a slip in the amendment. It is a very small misprint, in subsection (2). The reference there to paragraph 2(4) of Schedule 2 should be to paragraph 1(4) of that schedule. That is the paragraph that is set out in subsection (4), from which I have just been quoting.
For those short reasons, I beg to move.
Lord Mackay of Drumadoon (CB)
My Lords, Amendment 41CA is in the same group as the amendment moved by my noble and learned friend Lord Hope of Craighead. It should be understood that I agree with everything that my noble and learned friend has said in support of his amendment. The amendment in my name is a much shorter form of that. It sets out an addition to Schedule 2 to the Enterprise Act 2002:
“A judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be eligible for appointment as a chairman if nominated by the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland respectively”—
who are all the senior judges in their respective jurisdictions.
I do not think that the House would be assisted by my going over the detail of the submission made by my noble and learned friend Lord Hope of Craighead. The main point that I wish to stress is that, when one looks at the consultation document, to which reference has been made, it would appear that the purposes that the Government have in mind for their intended legislation are precisely the purposes that would be served by Amendment 41B, if it were accepted, and likewise my own Amendment 41CA, if the same thing happened to it.
It is instructive to bear in mind, therefore, that in paragraphs 5.14 and 5.15 of the consultation document, the Government explicitly say that they are “minded to legislate”: first, to deal with the appointment problem encountered in Scotland; and, secondly, to deal with the fact that those who achieve appointment as chairmen of the Competition Appeal Tribunal can serve for only eight years.
In conclusion, if the Minister is of the view that the government policy has changed, it would be instructive to the judges, both north and south of the border, if that change in policy was made quite clear. If there is some concern about the precise drafting of either my amendment or that moved by my noble and learned friend, it could be easily corrected in time for Third Reading.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I was not sufficiently fast on my feet, but when he comes to reply to this debate, perhaps the noble and learned Lord, Lord Hope of Craighead, could make it clear whether the delicate implication of his amendment is that the Competition Appeal Tribunal is judicially underpowered for its tasks at present or, in particular, in the future.
Lord Hope of Craighead
My Lords, I will reply to that very briefly. I thought that I made it clear that the amendment is really provoked by the expanding jurisdiction in Schedule 8. The present position copes satisfactorily—it is not the ideal situation—but the expanded jurisdiction will greatly increase the workload of the tribunal and its visibility, because it is going to deal with private litigation as well as the regulatory authorities. It is that particular feature that is concerning the Lord Chief Justice and, I dare say, his equivalents north of the border and in Northern Ireland. I do not want to criticise anybody on the tribunal at the present time; I am trying to look forward to the expanded jurisdiction and see that it is served as well as possible.
Baroness Neville-Rolfe
My Lords, I am grateful to the distinguished noble and learned Lords, Lord Hope of Craighead and Lord Mackay of Drumadoon, for joining our debate and for their amendments, which are intended to address an anomaly in the appointment of Competition Appeal Tribunal chairs. I recognise their concerns and agree that this difference has existed for far too long.
As noble Lords will know, the CAT has a UK-wide jurisdiction and, as a result of the Bill, we expect the CAT to become the venue of choice for competition cases. As the noble and learned Lord explained, it will be busier. The CAT hears appeals against decisions by the regulators and competition authorities in cases arising in England and Wales, Scotland and Northern Ireland. I agree with the noble and learned Lord that the current process for appointing CAT chairs effectively acts as a barrier to judges sitting in the Court of Session in Scotland or the Northern Ireland High Court.
The Judicial Appointments Commission was created in order to remove the scope for any perceived political interference. As part of its responsibilities, judges who are appointed to the Chancery Division of the High Court are also assessed for appointment as a chair of the CAT. However, the Scottish and Northern Irish equivalents of the Judicial Appointments Commission do not have a remit to make recommendations for appointments of CAT chairmen. This means that the only way judges in either the Court of Session or the Northern Ireland High Court can sit as chairmen in the CAT is to seek appointment via an application to the JAC.
I agree with the noble and learned Lords that this cannot be right, nor can it be what was intended when the Judicial Appointments Commission was created. It seems needlessly bureaucratic, as the noble and learned Lord, Lord Hope, said. This is an issue on which we share common ground and I would welcome the opportunity to discuss it in more detail with the noble and learned Lords to see what progress we can make at Third Reading, including, if appropriate, tidying up any slip. I hope that what I have said reassures the noble and learned Lords and I therefore ask the noble and learned Lord, Lord Hope, to withdraw his amendment.
Lord Hope of Craighead
My Lords, I am extremely grateful to the Minister for her encouraging and constructive reply. I am quite sure that in discussion we will be able to find some satisfactory solution. There are two solutions on the table and I think that, with the assistance of the Bill team, we can probably work out a satisfactory answer. I look forward very much to achieving that before Third Reading. For the time being, I beg leave to withdraw the amendment.
“Review of operation of Schedule 8
(1) The Secretary of State must, before the end of the period of five years beginning with the day on which this Act is passed, appoint a person to review generally the operation of Schedule 8 to this Act.
(2) The review must address, in particular, the following matters—
(a) the number and outcome of cases brought under the Schedule,(b) the amount paid as a result of these cases to consumers, professional advisers and third party funders, and(c) the extent to which consumers overall have benefitted from the operation of the Schedule.(3) After the person appointed under subsection (1) has completed his review, he must compile a report of his conclusions.
(4) The Secretary of State must lay before Parliament a copy of the report made under subsection (3).”
Lord Hodgson of Astley Abbotts
My Lords, Amendment 41C also seeks to insert a new clause after Clause 80, but does so with a rather different objective from that of the noble and learned Lords who have just spoken.
The proposed new clause is titled, “Review of operation of Schedule 8”, which is fairly self-explanatory. Before going any further, I must take this opportunity to thank my noble friend Lady Noakes for having moved amendments on my behalf to this part of the Bill. I tabled them some months ago for discussion in Committee but unfortunately malign fate intervened to ensure that I was abroad on the day that they came to be discussed.
Reading the record of the Committee’s deliberations, there were a number of questions still in my mind. As a result, I tabled the amendment we are debating tonight. I also thank my noble friend Lord Eccles for having joined me in taking up the cudgels. He has his own characteristically insightful amendments, which we will come to in a moment and to which I have put my name. Finally, I thank the Minister and her officials for the courtesy and kindness in meetings that they have afforded both my noble friend and me. With those thanks, to horse.
It is easy to characterise amendments to Clause 8 as anti-consumer. Indeed, reading the remarks of the noble Baroness, Lady Hayter, in Committee, I felt that that was somewhat her default option. However, for me and my noble friend Lord Eccles, the reason for tabling the amendments is not—I repeat, not—anti-consumer; rather they aim to improve the chances that consumers will receive the compensation justly due to them, and it will not flow in large measure to third-party funders, professional advisers and the like.
I was grateful to the Minister for the meeting at which my noble friend Lord Eccles and I explained this, and attempted to explain how the Competition Appeal Tribunal—the CAT—would, in our view, find itself in the front line of legal wrangling of a type and range which, by reason of its past experience, it was ill fitted to handle. I confess that I returned from that meeting with my noble friend somewhat depressed at the outcome. I returned to my office to reflect on what could be said that would cause my noble friend and the noble Baroness, Lady Hayter of Kentish Town, better to understand the potential ramifications of the Pandora’s box they are so casually preparing to open.
While awaiting inspiration to strike, I leafed through the Financial Times—and there it was, on page 8. It is a full page advertisement in very large type:
“We won over $28 billion in judgments and settlements in the past two years”.
We have,
“650+ lawyers worldwide—all devoted exclusively to litigation, arbitration and white collar matters. Get us on your side”.
Equally characteristically, in very small type down the bottom, which one does not read so easily:
“Attorney advertising. Prior results do not guarantee a similar outcome”.
That is the sort of 500-pound legal gorilla that the CAT is going to have to deal with. One does not win $28 billion-worth of damages by saying, “After you, please, Claude. After you, please, George”. Your weapon of choice will be the legal equivalent of a knee in the groin.
Lest any noble Lords think I struck lucky, I refer the House to an article the next day in the Times. These cases will undoubtedly require, find and use expert witnesses. The article states:
“A High Court judge last week called for a cap on legal fees … Mr Justice Mostyn said that the fees in a case in which lawyers and experts were paid a total of £920,000 during a dispute over assets worth £2.9 million was “madness”. A key factor was the use of experts: six reports by forensic accountants were filed, as well as a joint expert statement at a cost of £154,000. In eight months since April, a ‘staggering’—
that was the judge’s word—
“further £700,000 was spent”.
These are the sorts of things that lie ahead for the Competition Appeal Tribunal. That is my thinking in wishing to see the Government implement the amendments we are discussing, to ensure that the 500- pound legal gorillas do not run off with all the money.
Having said that, I accept that there has to be a little worm of doubt in my apple of certainty. Maybe my fears are wrong: just suppose, despite all my concerns, the new system works well and delivers the right outcomes for consumers. I am not able to foretell. Equally, I hope my noble friend on the Front Bench will accept that she, too, has to have a little worm of doubt in her apple of certainty. I hope the noble Baroness, Lady Hayter of Kentish Town, who I know to be an individual of discernment and sound judgment, can accept that she, too, cannot be certain. Only the passage of time, with its attendant experiences, can answer this question.
That is why I have tabled the amendment—so we can see what really happened in real life and not in our potentially fevered imaginations tonight. My amendment requires the Secretary of State, before the end of five years, to appoint a reviewer of the operations of Schedule 8. The reviewer can roam widely but he must answer three key questions. The first is a description of the cases brought under the schedule and the outcomes to them, so that we can form an overall strategic view of how the schedule has worked.
Secondly and most importantly, he has to split the proceeds paid between consumers, professional advisers and third-party funders. This will enable us to see the level of benefit to consumers. If, for example, consumers receive 90% of the total, it would be one thing. If, as I fear, they receive less than 50%, it will be another. Finally, a report on the general operation of the schedule, and how it benefits consumers, would open the way for some recalibration of legislation in the light of experience.
As this piece of legislation has such potentially huge implications as we move from an opt-in regime with, to date, only one body authorised to bring proceedings—Which?—to an opt-out regime where anybody is free to have a go, there is a need for a degree of formality. My amendment requires the Secretary of State to lay a report before Parliament, which will ensure the appropriate level of debate, scrutiny and follow-up.
To conclude, this is an amendment by which nobody loses. The only winners are truth and accuracy. I fear that my noble friend will be told to resist. There will be the usual guff about creating precedents. I argue that this change in our law is unprecedented and that the potential implications deserve a serious, formal, forensic follow-up and analysis. My noble friend will no doubt be told that her department will carry out a thorough review of the outcomes. Quite possibly. However, a review by an outsider, poking his or her nose disobligingly into various corners, is likely to be far more effective. We would also avoid the risk, if the results of the review are unwelcome and disobliging, that the press release, if any, may by some strange alchemy appear at 4.30 on a Friday afternoon.
I do not suggest that my amendment meets the exacting standards for parliamentary draftsmen. All I am asking my noble friend to do today is to accept that there has to be some uncertainty in all our arguments—mine and hers—and that she will, in consequence, take the amendment away for one final look before Third Reading. I conclude by saying to my noble friend, to paraphrase the famous phrase, that if she has nothing to hide, she has nothing to fear from my amendment. I beg to move.
Viscount Eccles (Con)
My Lords, I put my name to the amendment and I will make a brief addition to what my noble friend said. This is a very significant change to the law. It is quite complicated, moving from the present arrangements of opt in to the double arrangement of opt in and opt out, going beyond, interestingly, what the European Union advises, and perhaps not concentrating enough on alternative dispute resolution techniques. Having said all the way through that the one thing we do not want is a US-style lawyers’ charter—we are all agreed on that—unfortunately the Bill is drawn so widely that we run a real risk that that is what we will get.
We need to remember that we are in the Anglo-Saxon camp and have a tendency to do things in a similar way to the way they are done in the United States—in the creative arts or wherever, and including, I fear, the law. We also need to remember that where such arrangements have been made in other jurisdictions, they have not been free of problems. Australia, which is often cited, has had considerable trouble about the authorisation of those who are to conduct the class actions or collective proceedings. It has been described as skirmishing. The way the Bill is drawn, we will have very similar problems with the question of who is to be authorised and who is not—because the person who is not may not be very happy.
New subsection (8)(b) states that a representative can be appointed,
“only if the Tribunal considers that it is just and reasonable for that person to act as a representative in those proceedings”.
I will return to that on the next group, but it is very widely drawn. In support of my worry about the very wide drafting, there was a long and relatively confused debate in the other place in the Bill Committee. The answer, both there and here, seems to be, “Well, the Competition Appeal Tribunal will sort it all out”. I think that that puts too much of a burden on the tribunal and is unlikely to work well.
Baroness Neville-Rolfe
My Lords, I am delighted to see my noble friend Lord Hodgson back with us. We missed him on the day when the amendments were finally reached, but my noble friend Lady Noakes introduced his amendments with great clarity and verve. We had a good debate and we now have several different amendments, some of which we will be discussing in a minute. I am grateful for the efforts that my noble friends Lord Hodgson and Lord Eccles have made to explain their thinking to me in person. We have tried hard to meet their concerns. Having talked to my colleagues in the Government, I am now able to respond positively.
Although this amendment would require a review of the schedule, I believe that its driving force is to examine the effect of opt-out collective actions. I should say that the Government are happy with our proposals and believe that the existing opt-in regime is prohibitive, with only one collective case in 10 years involving 130 claimants. Therefore, the changes in the Bill are important. I do not share the pessimistic view about US-style claims, mainly because of the safeguards that we have written into the Bill, which we will no doubt come on to on the next amendment. However, I wanted to say that we have had a very good discussion, we have listened and we are happy to agree to a review after five years which covers the ground set out in the amendment. Following a further discussion that I had with my noble friend this morning, we will also commit to a ministerial Statement on the review here in Parliament. I am afraid that we cannot put the review in the Bill, as that would have ramifications for other possible reviews elsewhere in the Bill, but I can commit to a review, and I know that the Confederation of British Industry, which I met on Thursday because of its concerns about this part of the Bill, is content with that.
Of course, Schedule 8 does not just introduce an opt-out collective actions regime. It reforms the entire private actions regime for the benefit of both businesses and consumers. I think we are all agreed that consumers come first here. Therefore, the Government believe that it would be appropriate for the review of the impact of Schedule 8 to examine the whole range of reforms. The review would take into account both opt-in and opt-out collective actions, the fast track regime, the number of cases under the CMA redress power, collective settlement cases and, of course, the provisions outlined by my noble friend in his amendment. In those circumstances, I hope that my noble friend will feel able to withdraw his amendment.
Lord Hodgson of Astley Abbotts
My Lords, I am extremely grateful to my noble friend for her response. Of course I would like the provision in the Bill, because that gives it real permanence, but I spot two-thirds, three-quarters or, perhaps, only 5% of a loaf, and I will certainly grab it. In the circumstances, I beg leave to withdraw my amendment.
Viscount Eccles
“( ) when it considers that the proposed collective proceedings are justiciable and have merit, ( ) when it considers that early settlement will not be achieved either by alternative dispute resolution or any other means of resolving the dispute.”
Viscount Eccles
The purpose of this group of amendments is to try to ensure that we begin as we mean to go on. It has been said right from the beginning that the focus of the regime is on the public, consumers, traders and small businesses that are given a bad time in the marketplace. I think we all agree that they are the people who should be enabled to settle their claims and not to make the fact that the claims can be settled into a charter for legal advisers, third-party funders and ad hoc organisations collected together. That has been the Government’s position right from the start.
Of course, the fact that we focus on the people who are in the best position to put the claim because they have suffered the damage does not mean that the legal profession will not be involved. No one would dream of accepting any form of settlement in this field without taking good legal advice. That would apply to defendants as well. Nevertheless, the endeavour should be, as my noble friend said, that the benefit does not go to what you might call the legal outriders: claims managers, hedge funds and so on.
The question I asked myself on this group of amendments was how to achieve more certainty that we will maintain the focus on consumers. That seems to me to be a matter of the balance between the statute and the tribunal rules. Those are the two places in which the rules of the game will be settled. To get the balance right, I think we must ensure that some things which are not at the moment mandatory under the Bill become things which must happen rather than things which may happen.
That is the reason for Amendments 41D and 41F. Three matters are added by those amendments to what will be subsection (5): two at the beginning and one at the end. The first to be added at the beginning is for the competition authority to make sure that,
“it considers that the proposed collective proceedings are justiciable and have merit”.
There is much evidence of vexatious claims being made in other jurisdictions. If those claims are speculative or even worse—I think there is evidence of this in some provinces in Canada whose systems have been cited—they become blackmail claims. The argument is put that it would be less expensive to settle and pay over some money than to fight through a collective action.
The second addition that Amendment 41D seeks to insert is that the tribunal may make a relevant order only,
“when it considers that early settlement will not be achieved either by alternative dispute resolution or any other means of resolving the dispute”.
There is, of course, a concentration on alternative dispute resolution, and that comes also from Europe. I think we would all want to feel that the tribunal had a statutory duty to find out not just whether or not such a system is available, which is the way the measure is drafted in its rules at present, but to satisfy itself that these matters had been considered and that if there was a faster and cheaper way of coming to a resolution which was in the interests of all the parties, it would be followed. As we know, sometimes irrationality creeps into disputes, when a rational approach tells you that it would be better to settle.
Thirdly, another of my proposed amendments seeks to deal with the fact that my noble friend on the Front Bench said in Grand Committee that the Government did not want to restrict the flexibility of the Competition Appeal Tribunal. I quite accept that. Therefore, I have included in Amendment 41F the catch-all provision:
“Nothing in subsection (5) prevents the Competition Appeal Tribunal from taking into account any other matter which it considers to be relevant”,
so that it is not constrained.
I have tabled two small amendments because I was concerned with the thought that the Bill as drafted seemed to imply that only one person would apply for authorisation. It seems to me likely that if there is a fairly big issue and the Bill is very open regarding who may apply for authorisation, two or three people may apply. Therefore, Amendments 41E and 41G seek to replace “the” with “a” at lines 4 and 14 of page 113. I am told that that drafting is defective but I would like to understand the Government’s position on this point. If more than one person seeks authorisation, how do the Government see that situation being dealt with? Presumably, some form of appeal procedure will need to be made available to those who are not chosen. I do not think the Bill covers that issue. I refer back to my short description of a Bill Committee debate in the other place where that point was raised. As far as I can see, it was never settled, and is not settled in the Bill as drafted.
Amendment 41H seeks to define and limit who can bring a claim. It seems to me that it has been Which?, and now we are going to an open field. Would it not be much more sensible to make a move which greatly expands the number of people who can make a claim and, of course, expands the type of claim they can make from that of opt in only to opt in and opt out, and not to have the possibility of a very wide range of people applying for authorisation? Indeed, if we are to keep the focus on the public, traders and businesses, we want to make sure that those affected are represented by people who collectively have their interests at heart and know a bit about the detail of the business that they are in as well. Therefore, Amendment 41H seeks to leave out “a person”, which is the general description at the moment, and insert,
“any appropriate consumer representative body or trade association”.
I am bound to say this seems to me to be completely in line with what the Government have said throughout.
Lord Hunt of Wirral (Con)
My Lords, I declare my interest as a partner for the last 45 years in the global commercial law firm, DAC Beachcroft. I wish to speak particularly to Amendments 41H, 41J and 41K. In doing so, I support my noble friend in urging caution when examining Schedule 8 to the Bill.
This is a complex area of law and procedure and I would be the first to say that I do not understand it all, but I think that the overview is this. We are now dealing in this group of amendments with situations where, first, one or more businesses have been found to be in breach of competition law; secondly, numerous consumers have been affected as a result; thirdly, the individual amounts by which each consumer is affected are small; fourthly, a collective mechanism is therefore needed; but, fifthly, getting all affected consumers to opt in to join a legal case has not worked to date. Against that background, I can well understand why the Minister has promoted the concept of opt-out, whereby a representative person can take action on behalf of all those affected unless they positively object to being included and so choose to opt out.
My caution is this: that is a wholly new concept in the United Kingdom, so I argue that we must be cautious. We must balance the rights of the consumer with the rights of each individual business, particularly small and medium-sized enterprises, accepting of course that we are dealing with situations where business has been in breach of its market obligations. My noble friend has outlined proposals that examine carefully some areas of the detailed mechanics in this schedule and I support their overall approach, which seems to me to be one of proportionality. I recall, when I was speaking from the Benches opposite on the Compensation Bill, that I urged similar caution when we were looking at the regulation of claims management companies in 2005. I venture to say that if we had been a little more cautious, perhaps we would not have been quite so inundated with nuisance calls and texts about payment protection insurance, where a similar balance has had to be struck.
So how do we promote the interests of the consumer in a proportionate way? I agree that we need to achieve greater control over the identity of the representative person who decides to launch down this compensation trail on behalf of others. To me, the proposal that we limit this to trade bodies has considerable force but, if that is felt to be too limiting, we should lay a clear marker that the guiding principle to be applied in appointing a representative person is that it is in the interest of the consumers, the so-called class members, to do so. I support Amendments 41H and 41K in particular but also applaud the thinking behind the amendments generally.
Baroness Neville-Rolfe
My Lords, I thank my noble friend Lord Eccles for his perceptive analysis, and for the discussions that we have had where we have found much common ground. I am also most grateful to my noble friend Lord Hunt of Wirral for intervening to urge caution from an admirably common-sense point of view.
I shall address each of the amendments in turn, particularly their possibly perverse effects. Amendment 41D would require us to place in the Bill scrutiny of the strength of a claim and the consideration of alternative dispute resolution. I agree that weak claims should not be brought and that parties should attempt to reach a settlement. Rule 7 of the draft Competition Appeal Tribunal rules provides for this, requiring the CAT to consider the strength of the claims and the availability of alternative dispute resolution.
It is appropriate for these requirements to be in the CAT rules so that they can be more easily modified and strengthened if need be. This ensures an effective regime that promotes the interests of consumers. Although the CAT rules have been made available in the House Library, they will be the subject of formal consultation in the new year, well ahead of commencement. I undertake that the points on both the scrutiny of the strength of the claim and the availability of alternative dispute resolution will be included in the consultation document. To clarify, the CAT rules are made via secondary legislation. They are the responsibility of BIS Ministers and produced by the Government. This means they are binding on the CAT, cannot be ignored and cannot be changed by the CAT. They are the right place for most of the concerns that we have outlined today.
The micro-amendments, Amendments 41E and 41G, would limit a collective action to one representative. I understand why my noble friend would like to prevent multiple representatives bringing claims, as that could lead to businesses facing uncertainty and larger claims for damages. However, these mini-amendments would also have unintended consequences, as he hinted, because they would prevent hybrid claims. These are claims where more than one group of claimants—for example, consumers and small businesses—join together to bring a case. For instance, in a claim for damages following a cartel in rail fares, both consumers and SMEs may wish to make a claim. During the private actions consultation in 2012, however, business groups said that the one thing they wanted was finality and closure. They want to be able to pay out one set of damages and know that it is binding on those within that action.
To prevent a business having to respond to multiple representatives, there is discretion for one representative to be the lead representative. I am happy to discuss this further with my noble friend Lord Eccles in the context of the consultation if that would be helpful. Ruling out hybrid cases, as these mini-amendments would, means that businesses might face an opt-out collective action as well as multiple follow-on actions. There would be an incentive for claimants to race each other to court to commence a claim before anyone else, even if that claim was then dropped. This type of behaviour could lead to just the kind of litigation and cost that we all want to avoid.
Amendment 41F would provide the CAT with discretion to take into account any other matters that it considered relevant when authorising the representative. The Bill already provides the CAT with a great deal of discretion, and the CAT rules will include other factors that the CAT must take into account. This is likely to include any other factors that the CAT considers relevant.
Amendment 41H would exclude SMEs from bringing forward collective actions that would reduce their access to redress. We have deliberately avoided a prescriptive list of eligible bodies and instead afforded the CAT discretion, in accordance with the CAT rules, to determine whether a body is suitable. The CAT is a specialist competition court with a strong track record in dealing with consumer detriment. The Government believe that the CAT is best placed to scrutinise every body that seeks to act as a representative.
The CAT includes High Court judges—and may include some more if we make progress on the other amendment—who are experienced in making decisions based on broad criteria. It is appropriate that they use their experience to scrutinise each case on its merits. However, we would welcome contributions to our consultation on the collective action provisions of the CAT rules to help to ensure that only suitable bodies may bring collective actions.
Amendment 41J would require that the CAT may authorise a person to act as a representative only if they had appropriate experience and standing. The Government believe that this could be problematic. Given the lack of collective action cases brought forward in the past 10 years, it would be extremely difficult for the CAT to find a representative who would satisfy these claims. It is the Government’s intention to ensure that only appropriate representatives can bring forward cases, with discretion given to the CAT to achieve just that. Again, I will undertake to ensure that this concern is covered in the consultation.
Amendment 41K would require that the CAT believes the representative will act in the best interests of the class members. I agree with the sentiment of the amendment. Indeed, the rationale behind wanting only consumer organisations and trade bodies to bring collective actions is that they will represent the claimants’ best interests. To this end, we have introduced a similar test in the CAT rules. I am reluctant to place such a requirement in the Bill as it may deter those cases that have a mixture of consumers and SMEs. This is because the CAT might be forced to decide that a consumer organisation cannot represent a business or that a trade body cannot represent consumers. In turn, this would lead to business having to respond to multiple representatives, and possibly claims, which, as we have already, said we are keen to avoid.
I have discussed these amendments with noble Lords and set out some further considerations this evening. I hope that I have provided some useful reassurances about the consultation process. I hope that my noble friend will withdraw his amendment.
Viscount Eccles
My Lords, I am very grateful to the Minister for having met some of the underlying issues in her answer. Possibly the most immediate is that I wanted to change the word “the” into the word “a” twice. My noble friend’s answer showed just how complex that was. She went into a great list of things that could happen if you did not have “the” and suddenly found you had only “a”. I fully accept that. This is a very complex situation. My worry is that I do not believe that it has been carefully thought through.
Now we are dependent on the consultation. The questions that arise are: who will design the consultation? What questions will be asked? What are the answers? What is the Government’s response to those answers? That is a great worry, particularly on the SME point, and here I thank my noble friend Lord Hunt for his professional contribution.
I worked in industry for a great deal of my career, and for quite a lot of the time I was involved with small and medium-sized enterprises. I cannot imagine any of those that I was involved with thinking of going into a collective action unless they were represented by their trade association or some body that would manage to get itself organised in such a way that it could be defined as a trade association, which is not a very difficult thing to do. The idea that bodies representing consumers and trade associations are not wide enough but all that needs adding are small and medium-sized enterprises does not seem to run.
I will think very carefully about what was said about this amendment and what was said in reply and see whether there is a case for bring the matter back at Third Reading, obviously on a somewhat different basis. In the mean time, I look forward to the assurance that there will be meetings with people who know about these matters before the consultation goes out.
It is quite surprising that the legal profession, apart from my noble friend Lord Hunt, has been absent from these discussions. The legal profession is very keen to participate in your Lordships’ discussions. This is a major change in the law. We had very helpful assistance from the noble and learned Lord, Lord Hope, but no other. That is quite surprising.
I retain the apprehension that this is a minefield and that we may get blown up. I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, I shall speak also to Amendments 41M and 41N. We are still concerned with the implications of Schedule 8, and here we get to the vulgar question of the distribution of the money. This group of amendments is designed to ensure that professional advisers benefit financially only commensurately with the take-up by consumers.
As presently drafted, proposed new Section 47C(5) requires that,
“any damages not claimed by”—
consumers—
“within a specified period must be paid to the charity … prescribed by … the Lord Chancellor”.
So far, so good, but subsection (5) is subject to subsection (6), which allows the tribunal to order that these unclaimed damages,
“be paid to the representative in respect of all or part of the costs … incurred”,
which will presumably include legal and other fees. This surely cannot be right or just. Let us take the case of an opt-out class that assumes that 100,000 consumers were affected. Let us assume that only 20,000 consumers claimed. Under the Bill as drafted, the professional advisers could be paid 100% of their fees, even though only 20% of the affected consumers received any compensation. Amendment 41L would remove the let-out available to the CAT in subsection (5) and Amendment 41M would require that costs be paid out only in strict ratio to the payments to consumers.
My amendment has another useful by-product. Under opt-out class actions, no one can tell precisely how many consumers have been affected because they do not have to reveal themselves. Presumably the representative of a class and the CAT will agree an estimate of the likely number. In the Bill, however, there is no incentive—perhaps even the reverse—for the representative to seek out and provide compensation to those consumers affected. It must surely be important for the representative to have to make a genuine effort to find the disgruntled consumers, and Amendment 41M would give a direct incentive so to do. If we do not do this, we risk replicating what have become known in the US as “coupon settlements”, under which advisers take 100% of their fees and offer affected consumers the sum awarded, say $20, in the form of a reduction on their next purchase in the store affected. Many consumers do not claim; even fewer who have claimed ever use the coupon.
Amendment 41N would merely replicate the provision in respect of new Section 49A where a collective proceedings order has been made. This seems equally important because, as I understand it, this involves a case where parties have agreed a settlement without going through the difficulties, expense and time involved in proceedings and then go to the CAT for approval of the deal they have struck. There must be a real danger that in the course of negotiating the settlement the professional advisers will suggest that a useful part of the settlement could be that their fees are paid in full. A defendant may then be inclined to accept that requirement in an attempt to ensure a speedy settlement.
This group of amendments, like the others which we have been discussing tonight, are designed to put consumers and not professional advisers at the centre of our deliberations. They give the tribunal some additional statutory protection against the pressures that will, I fear, be brought to bear on them. I beg to move.
Lord Hunt of Wirral
My Lords, I strongly support my noble friend for all the reasons I outlined a little earlier. His Amendments 41L to 41N seek to promote the interests of the consumers above those of others and should therefore be warmly welcomed. If the representative person and the lawyers and funders working with them are incentivised to find enough of the consumers to make the compensation process worth while, that must be the right way forward. Surely the worst thing we could do is create a system that is intended to provide greater benefit to consumers and succeeds in taking money from the guilty parties, but then fails to pass it on to the consumers themselves. The case is so strongly made, and I support it wholeheartedly.
Baroness Neville-Rolfe
My Lords, Amendments 41L, 41M and 41N place certain restrictions on the amount of legal costs that can be awarded to a representative. The Government agree with my noble friend Lord Hodgson: they do not want lawyers gaining excessive financial benefit from this regime. Any damages should be awarded to the claimants. We agree with the overall objective of getting the cash to consumers. For that reason, the Government have placed in the Bill measures to restrict the costs lawyers can claim.
The first key safeguard is that the CAT must certify that a representative is suitable to bring a collective action. The draft secondary legislation requires the CAT to consider whether the representative has a material interest that conflicts with the interest of class members. That means a law firm will not automatically be able to bring a claim. Secondly, the Bill prohibits the CAT from awarding treble damages, which limits the scope of unclaimed damages. Thirdly, the Bill contains restrictions on the financing of claims because it prohibits damage-based agreements, which means that lawyers cannot take away some of the damages from claimants. The Bill also does not provide for a claimant to be able to recover any uplift in legal costs from a conditional fee agreement—so-called no-win no-fee agreements.
A conditional fee agreement provides for a success fee for lawyers who win a case. Unlike standard legal fees, which can be recovered from the losing party, a conditional fee agreement has to be paid by the party being represented. In a collective action case, that may be the consumer organisation or the trade body. Therefore, it is in their interest to avoid conditional fee agreements or, where they enter into them, to negotiate the success fee so that it is as low as possible.
It is imperative that damages are paid to claimants. Therefore, if a representative wishes to use any unclaimed damages to cover their legal costs, two stages are set out in the Bill. This comes to the heart of the points that my noble friend Lord Hodgson raised. First, legal costs may be recovered from unclaimed damages only after claimants have had an opportunity to come forward and claim their damages. That means that if all claimants come forward and claim their redress, there will be no unclaimed damages to apply for to pay legal costs.
Secondly, any award of unclaimed damages has to be approved by the CAT. Additionally, the draft CAT rules, which noble Lords will recall is secondary legislation on which we will consult, require the CAT to consider the ability of the representative to cover legal costs if ordered to do so and will require an estimation of the legal costs. Any further restrictions may discourage representatives from taking on these cases completely, as they will have very limited means of recovering their costs, which may mean that the consumer receives little or no redress.
I hope that my noble friend is reassured by the discussion we have had on these three amendments that we are aware of the concerns around introducing an opt-out regime; that we have addressed the concerns that have been expressed through safeguards; and that we stand ready to undertake a strong consultation on some of the details we have debated. I hope that he feels able to withdraw his amendment.
Lord Hodgson of Astley Abbotts
My Lords, there is no half a loaf on this lot, that is for sure. This is not even a small slice. I listened carefully to what my noble friend had to say. She repeated some parts of the Bill, which my noble friend Lord Eccles had already said we are not entirely happy with, to be quite candid. She also said quite a lot quite quickly. I would not like to pretend I could take in the full implications, so I will read that very carefully.
One of the issues she did not address was: what incentive will we have under the new regime for the representatives to find the people and pay them? If they can possibly be paid their fees without finding the consumers, why will they bother? I honestly do not think that we have had a satisfactory answer to that point. We need to find a way to deal with the people who are putting those accused to a great deal of time, trouble and expense, and then do not take the trouble to make sure that they are paying out to the affected parties. We have a gap in the rules here and in the way we are approaching this. I hope that my noble friend will think carefully about that. I will certainly want to before we get to Third Reading next week or whenever. In the mean time, I beg leave to withdraw the amendment.
Baroness Neville-Rolfe
“(3A) The CMA may approve a redress scheme under subsection (2)(b) subject to a condition or conditions requiring the provision of further information about the operation of the scheme (including about the amount or value of compensation to be offered under the scheme or how this will be determined).
(3B) If the CMA approves a redress scheme subject to such a condition, it may—
(a) approve the scheme subject to other conditions;(b) withdraw approval from the scheme if any conditions imposed under subsection (3A) or paragraph (a) are not met; (c) approve a redress scheme as a replacement for the original scheme (but may not approve that scheme subject to conditions).”
Baroness Neville-Rolfe
My Lords, with this amendment we turn our attention to Schedule 8 and focus on some other aspects of competition law.
Effective competition is good for the consumer, and this part of the Bill reforms the regime for private actions to give businesses and consumers redress where they have been harmed by anti-competitive practices. However, the current private actions regime is not delivering the redress to consumers or SMEs that we would like. Therefore, Schedule 8 reforms the existing regime. As part of those reforms, the Government recognise that business may want to offer redress voluntarily, so the Bill provides for the Competition and Markets Authority to approve redress schemes.
It is imperative that, for the business to make use of redress schemes, we strike the right balance in incentivising business and providing redress to consumers. This amendment allows for the CMA to approve an outline of a redress scheme when the CMA finds a breach of competition law. That removes the requirement for a business to submit a complete scheme at that time. That change is being made to prevent businesses being deterred from putting forward a scheme at an early stage. Businesses are concerned about disclosing information while still under investigation and the costs of setting up a scheme which may ultimately not be approved by the CMA.
If the CMA approves the outline redress scheme, it will be able to impose a deadline by which the business must have complied with conditions necessary to set up the full scheme. Once the full scheme has been created, the amendment allows the CMA to withdraw its approval of the scheme if it has not complied with the conditions. It also enables a revised scheme to be considered. I beg to move.
Baroness Hayter of Kentish Town
My Lords, we support the intention of this amendment. I know that it has been brought to the attention of BIS that Which?, certainly, is worried that the wording would not have the effect it wants. It looks as if the CMA will be bound into a pre-approved school and cannot object to it later because of the inability to revoke pre-approval once given. This is technical and not for tonight; if between now and Third Reading the Government’s lawyers concur with Which? that the wording is not quite right, perhaps we could bring it back and help it at that stage.
Baroness Neville-Rolfe
My Lords, I am grateful to the noble Baroness. I was aware that Which? had expressed some concerns during the course of today. The amendment actually flowed from the work of the private actions working group, which involved different stakeholders on this Bill. We have had discussions with Which? and we are happy with the form of the amendment. I can brief the noble Baroness separately if she wishes, but I do move the amendment.
Baroness Neville-Rolfe
“(4A) But, where the CMA approves a redress scheme subject to a condition of the kind mentioned in subsection (3A), subsection (4) does not prevent further information provided in accordance with the condition from forming part of the terms of the scheme.”
“Insurance cover for money received or held by lettings agents in the course of business
(1) Subject to the provisions of this section, a person may not accept money from another person (“T”) in the course of lettings and property managing agency work unless there are in force authorised arrangements under which, in the event of his failing to account for such money to the person entitled to it, his liability will be made good by another.
(2) In this section T is any person who seeks residential accommodation which is to let or who has a tenancy of, or other right or permission to occupy, residential premises; and a “relevant payment” means any sum of money which is received from T in the circumstances described in subsection (1).
(3) In this section “lettings agency work” has the same meaning as in section 83 of the Enterprise and Regulatory Reform Act 2013 (redress schemes: lettings agency work) and a “lettings agent” is a person who engages in lettings agency work.
(4) In this section “property management work” has the same meaning as in section 84 of the Enterprise and Regulatory Reform Act 2013 and a “property managing agent” is a person who engages in property managing work.
(5) The Secretary of State may by regulations made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament—
(a) specify any persons or classes of persons to whom subsection (1) does not apply;(b) specify arrangements which are authorised for the purposes of this section including arrangements to which an enforcement authority nominated for the purpose by the Secretary of State or any other person so nominated is a party;(c) specify the terms and conditions upon which any payment is to be made under such arrangements and any circumstances in which the right to any such payment may be excluded or modified;(d) provide that any limit on any such payment is to be not less than a specified amount; and(e) require a person providing authorised arrangements covering any person carrying on lettings agency work to issue a certificate in a form specified in the regulations certifying that arrangements complying with the regulations have been made with respect to that person.(6) Every guarantee entered into by a person (in this subsection referred to as “the insurer”) who provides authorised arrangements covering a lettings agent shall insure for the benefit of every person from whom the lettings agent has received a relevant payment as if—
(a) the guarantee were contained in a contract made by the insurer with every such person;(b) except in Scotland, that contract were under seal; and(c) where the guarantee is given by two or more insurers, they have bound themselves jointly and severally.”
Baroness Hayter of Kentish Town
Amendment 44 stands in the name of my noble friend Lord Stevenson and myself and is about client money protection. It would require every letting agent to have the money they hold either belonging to the tenant, because it is being paid by way of advanced rent, or belonging to a landlord in that it concerns rents received but not yet handed on, to be protected, so that even if the letting agent were to disappear or go bankrupt, such money would be safe and available to the tenant or the landlord. This is something that is required of lawyers, of other professionals and of estate agents, who hold money belonging to others. It is what is needed for rents collected by letting agents on behalf of landlords. It is not their money, and it should be held separately in a protected client account.
It is no small issue. We know of at least 500 cases of letting agents taking money from tenants as a holding fee, but then not letting them move in and keeping the money. This autumn we saw an agent, Mr Glasson, jailed for 21 months because he unlawfully and dishonestly kept rents and deposits; Mr Jackson of Suffolk Lettings stole £70,000 from landlords; and another letting agent, Mr Farrer, stole £17,000 in rents and deposits. This money was neither paid back to tenants nor passed on to landlords. Shirley Player was jailed for stealing £400,000 in this way.
This is money that is not going into the housing market. It is depriving landlords of their income, and tenants of their security. Amendment 44 is supported by landlords as much as it is by tenants. It is backed by the National Landlords Association, the Royal Institute of Chartered Surveyors, the British Property Federation, the Association of Managing Agents, the Association of Letting Agents, the Property Ombudsman, Ombudsman Services, Crisis and Shelter. It was also recommended by the CLG Select Committee in the other place. As David Cox, who leads ARLA, said, client money protection,
“is fundamental for tenants and landlords to ensure they have peace of mind should an agent go bust or take off with their funds”.—[Official Report, 3/11/14; col. GC 594.]
Similarly, a director of Kinleigh Folkard and Hayward said that it should be compulsory for all agents to subscribe to a client money protection scheme. Again, Savills urged the Government to make it compulsory for letting agents to have client money protection. It said that millions of pounds of consumers’ money is being paid to letting agents, despite the fact that,
“anyone can open a letting agency unregulated and with no checks on their bona fides”. —[Official Report, 3/11/14; col. GC 594.]
We are talking about vast amounts of money. It is estimated that perhaps £2.7 billion is held at any one time—in other words, rents collected but not yet paid on to a landlord. We want every letting agent to maintain a segregated client bank account for such client money, with written confirmation from the bank that all money in that account is the client’s, and—importantly—that the bank is not entitled to combine that account with any other account, nor exercise any right to offset money in the client account, because any sum has been owed to the bank by the agent.
There is also client money protection insurance. That would ensure that when an agent fails to manage a client account properly, the landlord can claim against the scheme, because the largest losses are where a letting agent goes into liquidation and the client account has been emptied by the agent. Ombudsmen cannot help in those circumstances; it is simply no good making an award against a bankrupt agency. We know, for example, that when the London Housing Solutions agency went into administration, 100 landlords were left without the rents that had already been paid over by their tenants, but which never reached them. Amendment 44 would require letting agents to have appropriate client money protection to safeguard both landlords and tenants.
I think that the Government were convinced by our argument, and by the representations of RICS, landlords and everyone else in Committee. However, instead of saying, “Yes, this is the right thing to do”, and making letting agents the same as estate agents—which, as it happens, hold very little money—the Government have said, “Well, let’s get letting agents to say whether they have client money protection”. That is in Amendments 44A, 44B and 44C, that the Government have tabled. But that is an absolute damp squib. Any letting agent that already has client money protection already tells you that. They do not need this Bill to make it known; they boast about it. The problem is not the people who have got client money protection, it is the letting agents who have not got it.
The Government amendments would, I am afraid, add nothing, and they would not help tenants at all, because tenants cannot shop around to find a different letting agent. The landlord does at least have some choice, so at the point they choose the letting agent, they can see whether they have client money protection; but they cannot keep on checking on it after that. The tenant has absolutely no ability to shop around. They have to pay the rent to the letting agent selected by the landlord, with absolutely no guarantee that the rent will actually reach the landlord.
The Minister has said in Committee that the client money protection that we have been urging could,
“make it difficult to encourage landlords to invest in properties”.—[Official Report, 3/11/14; col. GC 600.]
But it would have completely the opposite effect. It is the security given to landlords by client money protection that will encourage them to invest, knowing that all rents that are being made over to the letting agent by tenants are safe and sound.
This amendment is wanted by tenants, by landlords, and by reliable agents. I beg to move.
Baroness Neville-Rolfe
My Lords, I listened carefully to the debate we had on this issue in Committee, and to the points made today by the noble Baroness, Lady Hayter. I remain concerned that requiring letting agencies to belong to a client money protection scheme would introduce significant costs into this sector, which could have implications for rent levels and the availability of affordable rental properties.
Requiring agents to pay to belong to a client money protection scheme is forcing honest agents to buy insurance against themselves being fraudulent—something the vast majority of agents are not. Let me explain. There are two main reasons why a landlord or tenant could lose money that is held by a letting agent: the first, as already mentioned, is that the agent is fraudulent; the second is that the agent has gone bankrupt.
While I agree that an agent will not always know that they are about to go under, client money held in registered client accounts agreed in advance with the bank will be protected and returned to the client, rather than used to settle the agent’s debt. This is standard business practice and is not expensive. Good agents can therefore protect their client’s money without having to join expensive third-party insurance arrangements. These arrangements would be expensive. I am aware that good agents may do this already and that deposits must already be protected by law, but they are not as complex and expensive as they would be as a result of this amendment.
Baroness Hayter of Kentish Town
The Minister clearly did not hear what I said: tenants cannot choose the letting agent. They cannot shop around. It is the landlord who chooses the letting agent. There is absolutely nothing that they can do to choose a letting agent—to whom they are going to pay their rent—who has client money protection. I find that extraordinary. The landlords, the tenants and the professional bodies all want this amendment. The current system is not working. Letting agents are going bust, leaving landlords without their money. I cannot believe that that is what this House, or indeed the Government, really want. I wish to test the opinion of the House.
“Protection of consumer interests in the housing sector
Schedule (Protection of consumer interests in the housing sector) has effect.”
Baroness Hayter of Kentish Town
My Lords, Amendment 44ZA seeks to bring some trust into the overheated housing market and to ensure that tenants are treated fairly. We start with the simple proposition that estate agents should not charge both buyers and sellers for the same service and that letting agents should not charge landlords and tenants for the same thing. That sounds obvious. An estate agent surely can have only the seller or the buyer as his client, not both. It is unethical, not simply being paid twice for the same job but to have a conflict of interest since the seller wants the highest price and the buyer the lowest. The estate agent is selected and paid by the seller to represent his interest. It is therefore indefensible to take money from the buyer and de facto have him also as a client and owe him a duty of care. The amendment would therefore outlaw a contract which allowed agents to charge both buyer and seller or indeed both landlord and tenant.
It is particularly important to deal with estate agents as they are not covered by the Government’s own amendments requiring letting agents to disclose their fees. Furthermore, with instances of estate agents charging buyers up to 2.5% of the house price, that is thousands of pounds not going into the housing market but to those who prey on its consumers. These rip-off charges—and there is no other word for them—which exploit buyers and tenants and breach the client relationship with a vendor or with a landlord must be stopped. We know that the Minister has serious concerns about double charging as she said so in Committee. However, instead of doing something about it, she worried about what she called “unjustified new burdens” and the risk of damaging this important industry. It was unclear whether she was referring to the estate agency industry or to housing. However, it can surely only help the housing market if agents are trusted and act ethically.
The second part of Amendment 44ZA would ban letting agents from taking a finder’s fee from tenants. This is a new and growing—and I think unacceptable—practice. Again, as we mentioned in the earlier amendments, letting agents are chosen by and work for landlords who are seeking tenants. The client is therefore the landlord to whom by contract and law obligations and duties are owed. The letting agent is paid by the landlord to find a tenant though often does other things such as collecting the deposit, handing over keys and collecting rent. It is done on behalf of the landlord who pays for the service. However, what we are now seeing, especially where young people are desperate to find somewhere to live, is that potential tenants are being charged by the letting agent to show them a flat. Alex Hilton, the director of Generation Rent, says that a ban on the “abusive practice” of charging fees to tenants is long overdue. He says:
“Tenants are being milked by agents taking advantage of a housing market that’s failing to provide enough homes”.
It is bad business where one person has a duty of care to both sides of a contract. Whose interests, after all, are they then representing? Traditionally, it has been the landlord, but once money has been taken from a potential tenant, there is surely an obligation to that tenant, who under the Bill will have rights because they have paid for a service. However, there is a clear conflict of interest for the agent. Under the Bill, tenants will get these new consumer rights if they pay an agent, so it is hard to see how the agent can square that with the obligation he has to his original client, the landlord.
We have no problem with letting agents charging tenants for an individual service, such as obtaining the credit reference for a landlord to accept them. However, letting agents should not be paid twice for the same work. Furthermore, just when we are keen for more landlords to enter this market and provide more accommodation—but where tenants, needless to say, have fixed amounts to spend on their housing—a chunk of money out that is going to neither the landlord nor the tenant is being leeched of the housing market if letting agents are charging this extra amount to the tenant.
Scotland made charges to tenants, other than for rent and deposits, illegal in 2012, so letting agents can no longer charge tenants, since when this Government have tried to argue that this meant increased rents in Scotland. One study, admittedly from an estate agent, purported to show this. However, that study by LSL Property Services, which claimed that a 2.3% a year increase in Scottish rents had proved that that was because of the ban on fees to tenants, did not actually prove that—partly because that figure was only marginally higher than that same organisation’s own figures for the increase in rents in England and Wales, but even more because the Scottish figure was lower than for the north-west of England. Furthermore, the Scottish increase started a whole year after the ban on fees to tenants, which suggests that other factors were at play.
Meanwhile, Shelter commissioned two independent reports, by Rettie & Co and by BDRC Continental, which found that landlords in Scotland were no more likely to have increased rents since 2012, when the ban on letting agents charging tenants was introduced, than landlords elsewhere in the UK. Indeed, fewer than one in five agents had increased their fees, even to landlords, while 70% of landlords had not noticed any increase in their fees paid to letting agents.
There is an issue of principle here. The renter is not the consumer of letting agents’ services and has no contractual relationship with the agent. The renter cannot shop around or negotiate on price. These fees must stop.
Finally, I turn to Amendment 50E in this group, which would help protect tenants against retaliatory eviction—that is, having made a complaint about their landlord, being evicted under a Section 21 notice, which does not require the landlord to give any reason. We do not seek to outlaw Section 21 altogether but to stop it being used to stop tenants getting necessary repairs done. Our amendment would require the Government to issue guidance on how tenants can be protected from such retaliatory evictions. Sadly, Citizens Advice and tenants cite far too many cases of retaliatory eviction or threats of it for this simply to be a rare occurrence. As the Observer reported yesterday, when a tenant told the landlord,
“our shower was dangerous, his response was to evict us”.
Shelter says that about 200,000 people a year—about 2% of renters—are subject to revenge evictions. In preparing its report on creating a better private rented sector, the all-party parliamentary group heard from witnesses of fears that inhibited tenants from expressing concerns, because these sorts of evictions, sadly, are not illegal.
The Government undertook to outlaw revenge evictions and ensure that tenants could not face losing their homes simply because they asked for essential repairs to be made. The Government have given their backing in principle to a Private Member’s Bill in the other House to stop rogue landlords who, rather than meet their legal duty to keep properties up to standard and get rid of safety hazards, instead evict tenants who complain. As the Communities Minister, Stephen Williams, acknowledged, there is a “minority of spiteful landlords”. He said that he wanted to ensure that hardworking tenants are,
“not afraid to ask for better standards in their homes”.
We concur with those views. If the Government want to see progress, Amendment 50E is a natural first step. I beg to move.
Earl Cathcart (Con)
My Lords, I will confine my remarks to Amendment 50E:
“Protection of tenants against retaliatory eviction”.
As a landlord in the private rented sector, I am firmly against any landlord who engages in such practices as retaliatory eviction. In my 30 years or so of being a landlord, I have never had to resort to issuing—or come close to issuing—a Section 21 notice.
I have three points to make. First, the definition of a retaliatory eviction in this amendment is too broad. It would create massive uncertainty about what is and what is not an unreasonable eviction. A much clearer definition is needed that makes it abundantly clear that it does not include failure to pay rent or committing frequent anti-social behaviour, to give just two examples.
Secondly, we are being asked to agree to this amendment without knowing the extent of the problem. Responding to a Question, my honourable friend Brandon Lewis, the Housing Minister, said that the Government did not hold data on the extent of the problem, and nor did anybody else. That was true until Shelter conducted a YouGov poll that found that just 1% of private sector tenants had been evicted or served with a notice to evict in the last year because they complained to their council about a problem with their home that was not their responsibility. Only 7% of tenancies are ended by landlords, mostly because they need to take possession in order to sell or to move into the property themselves or to undertake refurbishment—or because the tenants are not paying their rent or are committing frequent anti-social behaviour.
My third point is that there are already existing laws in place that give tenants all the protection that they need. In June, the Competition and Markets Authority issued guidance on the relationship between landlords and tenants. This guidance states that, under the terms of the Unfair Trading Regulations 2008, derived from the Consumer Protection Act, it is a breach of these in the case of,
“any commercial practice that, in the context of the particular circumstances, intimidates or exploits consumers such as to restrict (or be likely to restrict) their ability to make free or informed choices in relation to a product, and which cause or are likely to cause the average consumer to take a different transactional decision. These are known as aggressive practices”.
In the examples of what constitutes aggressive practices, the guidance includes,
“threatening the tenant with eviction to dissuade them from exercising rights they have under the tenancy agreement or in law, for example where they wish to make a complaint to a local authority about the condition of the property, or seek damages for disrepair”.
Likewise, evicting a tenant as a punishment for a complaint is unfair practice, as the Competition and Markets Authority recognises. In either case, a Section 21 notice should not be enforced by the courts.
What is needed is not more law, but better information for tenants to understand their rights. Simply put, there is already ample protection for tenants, as I have tried to explain. In too many cases, they do not know that it exists.
Baroness Bakewell of Hardington Mandeville
My Lords, I will speak in support of Amendment 44D. Like others before me, I have recently been engaged in trying to find alternative accommodation in London. I spent mornings going around the letting agencies looking for suitable properties. The difference in the range of fees and expectations of me were enormous, but it was only by asking that I found out what fees the agents would be charging and at which stage. Rarely was this information volunteered.
Once I had found a property that I thought would suit, I was told I would need to put down a holding deposit. Not having previously been involved in renting a flat, this was a new experience for me. Obviously those of us who hail from the country are not used to your London ways. I did some research and found that, unless I put down this deposit, I would be unlikely to secure the flat while the necessary references and checks on me were taking place. I was assured that on completion date the holding deposit would be deducted from the rental deposit required, but I did blanch somewhat at being asked for six weeks’ rent upfront in addition to the first month’s rent. However, this is how things are done and so I will be complying. I move at the beginning of December.
Baroness Neville-Rolfe
My Lords, I am grateful to the noble Baroness, Lady Hayter, for her comments and to my noble friend Lady Bakewell of Hardington-Mandeville for sharing her experiences.
The Government have already taken the opportunity of this Bill to increase transparency in the lettings market—an important change. In addition, a letting agent is already required to be a member of an independent complaints scheme. Now is not the right time to introduce yet further regulation on lettings, which will introduce greater costs into the sector. Instead, we have agreed to review these measures a year after introduction. That is the time to see whether the changes are working and whether further measures are required.
I turn to Amendments 44ZA and 44D. While I share the concerns expressed about the practice of charging both parties for a transaction by estate agents and lettings agents, I do not believe that regulation is the right way to tackle this issue. Many letting agents do share the cost of providing a service between tenants and landlords where both benefit from the service. This is consistent with standard practice in other industries—for example, auction houses—and is not considered to be double charging.
Letting agents are commercial operations and it is important that they are able to set their own terms and conditions without interference from government. Restricting these terms and conditions risks perverse consequences, such as increased fees for one party or an increase in fees for other services, such as property management and property searches. Mandating transparency, as we propose, will enable landlords and tenants to shop around, encouraging competition between agents on fee levels. Agents with the best-value services will prevail in the market, and that is what is best for tenants and landlords.
Turning to the possible prohibition of fees to tenants proposed in Amendment 44D, we see this as yet another example of a demand for blanket regulation which will only introduce costs, put off new providers, and ultimately reduce choice for tenants and deter lettings. Banning letting agents from charging fees to tenants is not necessary; transparency is a low-cost measure which will promote competition on fees. Transparency encourages agents to be competitive on their fees, and ensures that tenants and landlords are able to make informed choices.
Amendments 44ZA and 44D, concern a different strand of business but with some similarities. In fact, the local estate agent in my village has just sold her lettings business. The noble Baroness, Lady Hayter, expressed concern that estate agents are not covered by our amendments. I think she feels that they do not have to be transparent about their fees. I can assure the House that this is not the case. Under existing legislation, including the Consumer Protection from Unfair Trading Regulations 2008, estate agents must make fees and charges clear. She also talked about unethical agents but, in addition to the 2008 regulations, estate agents are regulated by the Estate Agents Act and they have their own industry standards.
Since concerns were raised in Committee about charging buyers as well as sellers, I am glad to say that we have continued to work with the Property Ombudsman, who has confirmed that updated guidance will be in place early in December. This guidance will address concerns raised by noble Lords at that time in relation to charging by estate agents and the need to avoid conflicts of interest. It will ensure that agents understand their obligations to make charging arrangements clear and avoid such a conflict.
In Committee, noble Lords also raised concerns that this non-legislative solution does not go far enough. However, estate agents must belong to a redress scheme. If they are removed from a scheme for breach of the code, including a breach of this new guidance, they would effectively not be able to work as an estate agent. That puts a considerable bite behind the obligations set out by these schemes. I would be happy to update noble Lords when the guidance is published.
As regards Amendment 50E, I agree that retaliatory eviction is a problem within the private rented sector. As the noble Baroness said, we have given support to action in the other place. I was very pleased to hear from my noble friend Lord Cathcart that as a landlord he is completely against the practice. He expressed concern and pointed out the circumstances in which tenancies normally end, bringing his experience of the sector to our proceedings. On 11 September, the Government announced their support, in principle, for the Tenancies (Reform) Bill, a Private Member’s Bill, which is designed to outlaw retaliatory action. As has been said, that Bill is due to have its Second Reading on 28 November. Our support is subject to the proviso that safeguards are put in place to ensure that the reforms do not bring in excessive red tape and so make it harder for landlords to evict tenants who should be evicted, for example, for non-payment of rent in circumstances as described by the noble Lord, and that the legislation does not impose unfair burdens on good landlords because of spurious or unfounded complaints.
We will produce a guide for tenants to help them understand how to identify health and safety hazards in the home.
Lord Harris of Haringey
If the Government are in support of this Private Member’s Bill in the Commons, which may or may not pass, why are they not prepared to see similar provisions written on the face of this Bill, in legislation that will get through Parliament?
Baroness Neville-Rolfe
I thank the noble Lord for his intervention and I will come to that point.
Perhaps I may pick up on the point about health and safety, which I know is another concern that I share with the noble Lord. There will be a guide for tenants to help them understand how to identify health and safety hazards in the home and what to do if the landlord does not take action to make the necessary repairs. Furthermore, our How to Rent guide, which was published in June, makes it clear to tenants that if a property is in an unsafe condition and the landlord will not repair it, they should contact their local authority, which can make the landlord deal with serious health and safety hazards.
We agree with the need to tackle the problem of retaliatory eviction, but we do not think that this amendment will add anything further to the guidance that is already available and which we have committed to. I am aware that some are concerned that the Tenancies (Reform) Bill is unnecessary as existing consumer law already provides protections. I have listened to the comments of my noble friend Lord Cathcart and his description of good practice, but the Government are clear that legislation is necessary: hence our support, in principle, for tackling this problem through the Tenancies (Reform) Bill. The noble Lord, Lord Harris, asked why we could not simply write this into the Consumer Rights Bill before us today. I have explained our attitude to the Private Member’s Bill. There are certain aspects of it that need to be debated and we are not happy simply to write it into the legislation as it is. We would like to see it debated in Parliament and we will obviously give it our support.
In the circumstances, I ask the noble Baroness to withdraw her amendment, and I look forward to her party’s support for the Tenancies (Reform) Bill.
Lord Rooker
The Minister has been very positive about the Private Member’s Bill and therefore it should be quite easy for her to give a commitment to the House that in any wash-up prior to the general election, the Government will move to salvage the good parts of that Bill if they are at risk of not getting through.
Baroness Neville-Rolfe
What I was going to say is that the wash-up is a little above my pay grade. However, I note the point made by the noble Lord and I can confirm that we are supportive of that Bill on the terms that I have set out.
Baroness Hayter of Kentish Town
My Lords, my noble friend has made a good suggestion but it seems to me that the response could have been, “Let us have the debate in the Commons on Friday”, so that it could either come back here at Third Reading with the correct wording or, indeed, when this Bill goes back to the other place, as it has to do. I think that we have retaliatory eviction in the pocket; one way or another, we look forward to seeing it before May.
I do not understand some of the Government’s responses. Their idea is that this legislation could put off new providers. I do not know about everyone else’s high street, but we have quite enough in the way of estate agents and letting agents. The notion that they will not be set up because we legislate for them to provide decent treatment for tenants and landlords, and indeed for buyers and sellers, is not one that I accept. I thank the noble Baroness, Lady Bakewell, for her support because there we have it from a real consumer who went to a letting agent and saw what happened. Basically, you keep on paying but you are not sure what it is that you are paying for.
Our amendment would do two things. It would stop estate agents from charging sellers and buyers for the same service and it would stop letting agents from charging tenants what they have already charged landlords for. I wish to test the opinion of the House.
Baroness Neville-Rolfe
“(4A) Subsections (4B) and (4C) apply to a letting agent engaging in letting agency or property management work in relation to dwelling-houses in England.
(4B) If the agent holds money on behalf of persons to whom the agent provides services as part of that work, the duty imposed on the agent by subsection (2) or (3) includes a duty to display or publish, with the list of fees, a statement of whether the agent is a member of a client money protection scheme.
(4C) If the agent is required to be a member of a redress scheme for dealing with complaints in connection with that work, the duty imposed on the agent by subsection (2) or (3) includes a duty to display or publish, with the list of fees, a statement—
(a) that indicates that the agent is a member of a redress scheme, and(b) that gives the name of the scheme.”
“(6) In this section—
“client money protection scheme” means a scheme which enables a person on whose behalf a letting agent holds money to be compensated if all or part of that money is not repaid to that person in circumstances where the scheme applies;
“redress scheme” means a redress scheme for which provision is made by order under section 83 or 84 of the Enterprise and Regulatory Reform Act 2013.”
Baroness Neville-Rolfe
Qualifying institutions for the purposes of the student complaints scheme
(1) The Higher Education Act 2004 is amended as follows.
(2) In section 11 (qualifying institutions for the purposes of the student complaints scheme) after paragraph (d) insert—
“(e) an institution (other than one within another paragraph of this section) which provides higher education courses which are designated for the purposes of section 22 of the 1998 Act by or under regulations under that section;(f) an institution (other than one within another paragraph of this section) whose entitlement to grant awards is conferred by an order under section 76(1) of the 1992 Act.”(3) In section 12 (qualifying complaints for the purposes of the student complaints scheme)—
(a) in subsection (1) for “subsection (2)” substitute “subsections (2) and (3)”, and(b) after subsection (2) insert—“(3) The designated operator may determine that a complaint within subsection (1) about an act or omission of a qualifying institution within paragraph (e) or (f) of section 11 is a qualifying complaint only if it is made by a person who is undertaking or has undertaken a particular course or a course of a particular description.””
Baroness Neville-Rolfe
My Lords, I would like to end by thanking the noble Baroness, Lady Hayter, for retabling this important amendment, which seeks to ensure that students in receipt of student support funding can access the dispute resolution scheme run by the Office of the Independent Adjudicator for Higher Education—the OIA. In Committee, the noble Baroness set out a cogent case for ensuring that higher education students receiving public support should have access to this valuable service. We listened carefully to those concerns. As the noble Baroness pointed out, the 2011 higher education White Paper, Students at the Heart of the System, had already set out our intention to require that all higher education students receiving public support should have access to external dispute resolution. This was part of a wider package of measures aimed at developing a new regulatory framework across higher education that required legislation to implement it.
Increasingly, there are new and different providers offering higher education, not just the traditional university sector. Currently, students at these newer higher education providers do not always have the right to take their unresolved complaints to the OIA. A handful of alternative providers have so far voluntarily joined the OIA’s complaints handling scheme. However, we think that all higher education students receiving student support should be able to access this service, and the only way to achieve this is by requiring it in legislation. We have now tabled a government amendment to enable a much wider group of students in future to have access to the OIA’s complaint handling scheme. In practical terms, it means that full and part-time higher education students in receipt of student support and studying at alternative providers and further education colleges in England and Wales will be able to bring a complaint to the OIA.
In future, these students will be able to ask the OIA to look at unresolved student complaints on issues such as an institution failing to deliver courses as advertised or courses that are not fit for purpose; misleading or untrue information about a course; and complaints about teaching and facilities, bullying and harassment and welfare issues. We should also expect to see an improvement in complaint handling arrangements at those institutions required to join the OIA scheme. A major part of the OIA’s role is also to spread good practice in complaint handling more generally. I beg to move.
Baroness Hayter of Kentish Town
My Lords, it is a genuine pleasure to thank the Minister for responding to the amendment that we tabled in Committee and improving the language somewhat from our draft. We are delighted by that. She may, however, be amused to learn that just yesterday, Which? published a new report. It is entitled A Degree of Value: Value for Money from the Student Perspective, and it calls for all higher education students to have access to the OIA. The report was published yesterday; students are going to get it in about 30 seconds’ time. I am not sure whether Which? will claim the credit, but it is nice that it will seem a quick win for it. We are delighted, and I know that the adjudicator is also very pleased that this will treat all students in the same way. I thank the Minister and we look forward to that being enacted.