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Small Business, Enterprise and Employment Bill
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The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, if there is a Division in the Chamber, the Committee will adjourn as soon as the Bell rings and resume after 10 minutes.
Clause 38: Regulations about procurement
Amendment 35D
Lord McKenzie of Luton
“( ) The Minister for the Cabinet Office or the Secretary of State may by regulations ensure that the provisions detailed in this section will not undermine the impact of the Localism Act 2011 and the Public Services (Social Value) Act 2012 and shall have due regard to—
(a) local authorities’ duty to promote economic growth in their relevant area;(b) local authorities’ duty to promote skills development in their relevant area;(c) advertising and procurement tender period appropriate to the size of the business to ensure a secure procurement process;(d) the potential harm caused to local companies and businesses by the relevant contracting authority’s choice of supplier through the procurement process.”
Lord McKenzie of Luton (Lab)
My Lords, I shall speak also to Amendments 35K and 35S. These amend Clause 38, which currently provides for the Secretary of State or the Minister for the Cabinet Office to make regulations imposing duties on contracting authorities in relation to procurement functions. Ministers would have the power to issue guidance, to which contracting authorities must have regard. Contracting authorities for this purpose include Ministers, government departments, devolved Assemblies, fire and rescue authorities, and local authorities of all varieties but do not include an authority whose purpose is mainly devolved functions. Such definitions derive from the 2006 regulations, which implement the previous public sector procurement directive.
The power can be used in a variety of ways to impose obligations relating to supposedly efficient and timely procurement, duties relating to the process by which contracts are entered into, information flows and documentation, as well as the accepting of electronic invoices, the latter in advance of the anticipated e-invoicing standard to be adopted at EU level.
Concern about these provisions has been highlighted by the LGA in particular. The fear is that the powers might be used to centralise procurement and introduce a one-size-fits-all approach, impairing councils’ ability to procure strategically and according to local circumstances.
Local government can already claim to be the best-performing part of the public sector when it comes to procurement. It primes suppliers on time, places almost half its business with local SMEs and uses procurement to consider how it can improve the economic, social and environmental well-being of communities. Amendment 35D seeks to ensure that the exercise of the powers in Clause 38 do not undermine, and have due regard to, local authorities’ duty to promote economic growth and skills development in their areas, that advertising and procurement tender periods are appropriate, and that the potential for the harmful local impact of central procurement processes is avoided.
The Government’s approach, I understand, stems from the second report of the noble Lord, Lord Young of Graffham, who I am delighted is with us today. The report, entitled Growing Your Business, was expressed to be a report on growing micro-businesses in particular. It instanced the £230 billion spent on goods and services across the whole public sector and the potential transformational effect that could be had on SMEs and micro-businesses if they could win a share of the market.
The noble Lord recommended that all parts of the public sector agree a set of single-market principles. He seemed to have in his sights pre-qualification questionnaires and what he termed the gold-plating of training and health and safety policies. His common principles included the removal of all PQQ requirements for contracts below the EU threshold, with a single standard PQQ above the threshold, locating all contract opportunities in a single place and standardising all the payment terms. I understand that these changes are being implemented through the 2015 regulations, which are the UK’s transposition of new EU procurement directives and are seemingly not dependent on the provisions in this Bill. Can the Minister clarify whether the transposition regulations can be subject to an imposition under Clause 38?
The Government consulted beyond this in October 2014 and we are blessed with a Cabinet Office policy statement dated 12 January and draft illustrative regulations on similar policy measures, a pre-procurement engagement with suppliers and applying lean sourcing principles. The paper also sets out the government view on a range of other procurement issues to which Clause 38 might apply.
I draw the Minister’s attention to a briefing we had from the LGA about the use of pre-qualification questionnaires. It says that councils sometimes need to use pre-qualification questionnaires in lower-value procurements to deselect suppliers, particularly where a large supply chain exists; for example, in construction or ICT sectors, or where there may be issues of safe- guarding and tendering. A smaller number of suppliers reduces the potential risks for vulnerable people. How does the Minister respond to that concern?
We are wholly supportive of harnessing public sector procurement to create significant business growth opportunities through increase participation for small and medium-sized businesses, but local government already has an environment and a procurement framework in place and it is very important that Clause 38 and its potential use does not undermine this. The Local Government Act 1999 places a best value duty on local authorities. In addition, a duty to consider how the services they commission and procure might improve the economic, social and environmental well-being of an area is placed on a range of public bodies by the Public Services (Social Value) Act 2012. Moreover, the LGA has developed a national procurement strategy for local government in England which not only encourages the making of savings but supports local economies.
I refer the Minister to the executive summary of this document and, in particular, references to the importance of including economic, environmental and social value criteria in all contracts. On improving access for SMEs and voluntary, community and social enterprises it says:
“Councils should ensure a wide range of suppliers are encouraged to do business with them through use of portals to advertise tender opportunities. Barriers to doing business with the council removed without compromising due process. SME’s and VCSE’s are encouraged to identify potential ‘partners’ with whom to form consortia to bid for council contracts”.
To what extent is it considered that the existence and operation of Clause 38 will remain entirely consistent with the national framework that the LGA and local councils have developed?
We should be mindful of the current appetite, in different ways across the political parties, for devolution of powers and fiscal responsibility to local authorities. This is supported by provisions in the Localism Act 2011, but I caution that the term “localism” could not reasonably be applied to all its provisions. Some of the provisions in the so-called Localism Act are quite the reverse. This devolution is currently proceeding partly by way of city deals, which we support, and gives increased local control to enable more flexibility to respond to local priorities, particularly skill shortages. As a party, we have proposed more extensive devolution, at the level of £6 billion a year, to cover skills, housing, transport and business support.
Our Amendment 35S provides that nothing in Part 3 should affect the principle of localism and the duty of best value placed on local authorities. As the LGA points out, all the evidence shows—and there is compelling evidence across a wide range of issues—that taking decisions closer to the people affected achieves better results and saves money. The economic benefits of devolving powers to local areas are too big to ignore.
Our amendments seek to ensure that these benefits are not undermined by a centralised procurement policy. Figures supplied by the LGA point out that there is little evidence that measures undertaken by central government—for example, lean procurement processes—have significantly increased spend on SMEs, which is less than 14%, compared with council spend at 49%, unless the Minister can produce some evidence for us. As for reviewing the manner in which pre-procurement market engagement has taken place, can the Minister explain how this proposal is consistent with a localist agenda?
We would not seek to deny this clause, but we need to be assured that it will not impede the substantial progress that has been made in devolving powers and resources to local authorities and the benefits that flow from this. I beg to move.
Lord Whitty (Lab)
My Lords, I have two amendments in this group. I completely endorse what my noble friend has said and will not repeat it at length. However, I think that the Government need to rethink this area.
Clauses 38 and 39 give the Secretary of State substantial new powers to impose new, ill defined duties on how local authorities do their central business. In my view, and as my noble friend has said, this is contrary to the spirit of localism in which this Government came into office; to the successes, such as they are, that have been achieved under the better value regime; and to getting local authorities to take responsibility for their own procurement and ensure that their procurement practices benefit firms within or close to their local authority area, particularly small firms. On local authority procurement, local authorities are much better at ensuring that small companies have a share of the cake, compared with central government, its agencies or large private firms.
My Amendments 35E and 35T exempt authorities that are already under a better value regime from the effect of both clauses. In some ways, it might be tidier to delete these two clauses entirely. They certainly do not seem to enhance local government or play to the localism agenda. When the Government first came in, not only did they bring in the Localism Act, they took some of the more directional requirements out of the previous best value regime, which had been there under the previous Government—quite rightly, in most cases. We need to recognise that there is a demand for decisions to be taken much closer to where they will have an impact, for local authorities to have a wider responsibility for their local economies and, therefore, for the procurement practices and outcomes under local authorities to reflect the needs and the economic structure of their areas.
Some of the provisions in these clauses suggest a uniformity under the regulations, as in Clause 38(5), for example, which would lay down very precisely how local authorities went about their business. The alternative must be for central government, perhaps, to offer within the best value regime or equivalent more substantial guidance to local authorities. The LGA is already providing substantial guidance to local authorities. However, these new clauses suggest a degree of centralisation that local authorities will resent, which will increase the bureaucracy and red tape on local authorities in an already centralised England—the most centralised country in Europe. We are proposing to ensure that one of the main duties of local authorities would, in effect, be run on what, in the olden days, we might have called the Napoleonic method of laying down centrally the way that local and regional government operate.
This is unnecessary. It may well be that a little more guidance from the centre may be helpful, but to lay that down in law and then, in Clause 39, to provide for a new and draconian inspection of how local authorities are carrying out their duties, is well over the top. It is also contrary to the way in which the Government came in and to the localism agenda, to which we are all supposed to be committed.
Lord Hodgson of Astley Abbotts (Con)
My Lords, my Amendment 35X draws attention to the importance of the Localism Act and the Public Services (Social Value) Act by adding a new clause after Clause 39, in part in parallel to some of the remarks made by the noble Lords, Lord McKenzie of Luton and Lord Whitty. I find their arguments not entirely without foundation but I hope they will forgive me if I say that I do not find them especially nuanced to reflect the reality on the ground. I will take a few minutes to explain why I have reached that conclusion and then ask my noble friend to put some flesh on the bones of the philosophy behind what the Government seek to achieve.
My interest in this topic arose from my appointment by the Cabinet Office as the chairman of a task force to look at aspects of government regulation that affect the growth of smaller charities and voluntary groups. The report that we produced, entitled Unshackling Good Neighbours, focused on three things: what stopped people volunteering; what stopped people giving money at an individual level; and what stopped charities and voluntary groups growing. It identified a number of factors about why these groups were inhibited. High among them was the question of commissioning by the Government both at national and local level. I was very pleased to see that this issue had made it into the Bill following further work by my noble friend Lord Young of Graffham, and I referred to the topic in my speech at Second Reading. I was subsequently approached to have discussions with the LGA, which provided me with a draft of Amendment 35X, which I have tabled. I fear that the LGA will not entirely like what I have to say, so I need to put on record my thanks to it.
I understand the point of the noble Lord, Lord Whitty, that the drafting of Clauses 38 and 39 could give rise to concern that the underlying purpose may amount to a land grab by central government. However, I have to say to the Committee that, from my research and my report, all parties at every level have lessons to learn about commissioning, procurement and how to increase local involvement and participation in the communities that they serve. Very often, seemingly perverse decisions by local or national government are not the result of malice aforethought but overly heavy bureaucratic procedures.
Several hundred examples were sent in to us and I would like to touch on three to show the Committee the background to the points I am driving at. The first, from a national point of view, is from a local hospice in Worcestershire that had been providing end-of-life palliative care on a 25-page contract to the local primary care trust. It came to the end of its contract and asked to sign another 25-page contract. It was told that it could not do that any more. The new model contract ran to 130 pages with 111 pages of guidance. When I asked the Department of Health why that was, it was explained that this was a contract for all seasons. You were supposed to take blocks out of it to suit your particular purpose. Of course, the PCT had passed on the whole thing and said, “Sort it out yourself”. When this was explained to the Department of Health, one could persuade it to go back to the earlier, simpler model.
At the local level, a London borough sent us a letter saying:
“Voluntary organisations are told we need to move from grant funding to contracting, but too often tenders”,
from local authorities,
“are written with onerous conditions, both in applying and in reporting, for quite small contracts. (I have a 68-page tender we had to complete, together with supporting documents, to provide out-of-school-hours activities for disabled children in one London borough for £10,000)”.
So that amounts to 68 pages for a total contract value of £10,000.
Then again, Solihull SUSTAiN and Colebridge Trust secured a grant for the local authority to deliver a £200,000 project. They were clever enough to secure some pro bono support from a local hotel where they could hold their meetings, as a result of which they were able to make a £600 profit on a £200,000 contract. The local authority spent a great deal of time chasing them to return the £600, which they could have retained or used to build their operation a bit further. So I argue very strongly that there is work to be done in this area and that the challenge is to find the right balance between the one-size-fits-all approach, to which the noble Lord, Lord McKenzie of Luton, referred, which tends to result in overly prescriptive national standards, and local standard setting, which can be equally overprescriptive and in a way that does not necessarily best serve the local community. Behind it all in our research was the risk-averse approach often adopted by many commissioners at local and national level, which disadvantages smaller local charities and voluntary groups.
I recognise the work that the LGA has carried out in establishing a national procurement strategy, to which the noble Lord, Lord McKenzie, referred, but equally I recognise and support the Government’s commitment to localism. I conclude that the best way to find this elusive balance is for the Government to make it clear that these regulations are intended to set standards and yardsticks for good practice, on which local authorities have some flexibility in application. If I may use the “comply or explain” approach, those noble Lords who are familiar with corporate governance will know that those codes lay down standards with which you are expected to comply—and if you cannot comply with them, you have to explain why not. That approach would give the flexibility to avoid the straitjacket of one-size-fits-all and, at the same time, enable egregious behaviour by local authorities to be identified and prevented.
Such statements could be seen to be a little bland, so I should like to put a little flesh on these bones with some examples of the sorts of topics that I hope would be covered by the regulations—my shopping list, so to speak—which would give reassurance to local and national government and to those who will provide the services. The commissioners should work more closely to understand their motivation and the potential value that they can add in their contracts.
Secondly—I know that the LGA will hate this— the PQQs should be dispensed with. To be honest, the PQQs that I have seen could easily be filled in by the local authority using either Companies House returns, Charity Commission returns, or other local information.
Thirdly, tender documents should be proportionate to the value of the contract being awarded. Too often, as in the example that I have given, very small contracts have very large tender documents attached to them. Commissioners should also think carefully about the number of tenders that they seek, particularly for the small contracts below, say, £50,000 or £100,000. Of course, they have a duty to ensure value for public money, but there can be only one winner. If a commissioner decides that, to avoid controversy, he will accept a large number of tenders, he is inevitably inflicting a degree of economic efficiency and organisational friction on the losers.
The monitoring processes should be fixed for a contract. Too often they are moved in the middle of the contract, which changes the basis for measurement mid-contract and adds an unnecessary strain. The costs of monitoring should also be related to the size of the contract. Last but not least, there needs to be some mechanism for a proper sharing of risk and reward between prime contractors and their subcontractors. Too often the prime contractors take the easy ones and leave the more difficult cases to the sub-contractor.
I appreciate that these are pretty detailed requests, but this is an area where detail matters. The LGA has properly raised concerns about upsetting the balance between local and national government, so an explanation of the philosophical and practical purposes behind these clauses would do much to reassure us. I hope that my noble friend can help on this score.
Lord Young of Graffham (Con)
My Lords, I carry the heavy burden of having your Lordships in this Room this afternoon, but I thought it might be worth spending a moment or two on putting the whole picture and where it fits together; otherwise we are in danger of examining the twig and not even the forest.
My responsibility for the past few years has been to encourage small firms—start-up small firms and growth in small firms. Some 18 months ago, I was going round the country inquiring why very few small firms dealt with the public sector. When I was introduced to the dreaded PQQs, I saw that some were 30 or 40 pages long, which small business owners were expected to fill in. I do not exaggerate; they covered areas such as sexism, racism and a whole lot of areas that had very little to do with the work itself. Time after time, I was told by small business people that they would get their tender in, see these documents, put them aside and go on to do something else.
Other problems are dealt with later, such as the fact that the public sector is not the greatest payer in the world and small firms are much more dependent on prompt payment, and the difficulty of finding the opportunities. The invidious part of PQQs is simply that large companies can take them in their stride; they have PQQ departments and people whose job is to fill them in all day long. I have no doubt that they have boilerplate answers to all these things. It was about not having a level playing field.
Therefore, what we have done is simple. We abolish PQQs under €200,000 and above that we have a standard PQQ, which will be online, which every firm can fill in. It will resemble a tax return because there will be different sections, depending on the business, so the small firm registers once and the public sector reads it many times. Around the county, I have heard very few complaints, other than from the LGA, about the abolition of PQQs. The measure is designed to give localism its head; it is designed to help local firms get contracts with their local authorities, whereas time after time I have seen them excluded by large companies by the nature of the bureaucracy. We are also mandating payment within 30 days and requiring public authorities to publish the fact that they are doing so.
The essence of all these regulations is about simplifying procurement and getting better value for procurement. From the description I have heard this afternoon, I fail to recognise my own regulations.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
My Lords, I am grateful to the noble Lord, Lord McKenzie, and to the noble Lords, Lord Mendelsohn and Lord Stevenson, for tabling these amendments and giving us the opportunity to debate how these clauses interact with other legislative duties on contracting authorities, which is the nub of this amendment. I also share the noble Lord’s appreciation of the fact that my noble friend Lord Young of Graffham has joined us. I take this opportunity to thank him for all he has done for small firms and for public procurement throughout his distinguished career, and latterly as the Prime Minister’s adviser. My noble friend explained the background but, given the concern expressed by the noble Lord, Lord McKenzie of Luton, perhaps I could add, on the subject of the changes to pre-qualification questionnaires, that these could disadvantage procurements where there are important special requirements. As my noble friend Lord Young explained, we want to remove burdensome PQQs. However, I understand that special requirements can still be built into contract advertisements or the invitation to tender.
For the benefit of the Committee, perhaps I could stand back and try briefly to answer my noble friend Lord Hodgson’s exam question about what we are trying to achieve. I reassure noble Lords that our intentions are focused and more specific than the amendments tabled and the comments made would suggest. While regulations we may make under the Bill should improve standards across the public sector, they will not remove the autonomy of local authorities to run their own processes and take responsibility for procurement decisions. I associate myself with some of the warm words used by the noble Lord, Lord McKenzie, about local authorities. I was glad to hear about the LGA’s work on procurement strategy because I know, from my many dealings with it over the years, that it comes to issues with an innovative and refreshing approach.
The clauses before us will allow the Government to place some additional obligations on contracting authorities about how they undertake their procurement processes. However, I assure noble Lords that this is not about taking control away from local government procurers, who will remain responsible for securing value for money. Moreover, when making regulations under Clause 38, the Government will ensure that the provisions of other legislation are properly considered and that the regulations do not conflict with them. Frankly, the last thing we would want is to be over- bureaucratic or Napoleonic, in the words of the noble Lord, Lord Whitty. Like my noble friend Lord Hodgson, we would like to see better, simpler documentation that makes contracts more accessible to small business and voluntary organisations. As my noble friend says, we need to bring in standards and yardsticks of good practice, although I am not sure that “comply and explain” would necessarily quite work here.
Turning to Amendment 35D, the Government are committed to both the Localism Act and the Public Services (Social Value) Act. We stand by the principles in those Acts. It is of course important for local authorities to be able to pursue legitimate policies that help suppliers win more business through procurement in support of their local economies. There is, however, a balance to be struck and EU procurement law, which we have implemented in our domestic legislation, places a duty on contracting authorities to ensure that procurements that are above the EU thresholds—essentially, £111,000 in central government and £172,000 outside it—or of cross-border interest, are awarded in a fair, transparent and non-discriminatory way.
To respond to a question that was asked, Clause 38 is not necessary to implement the directive. This is in fact being done under powers in the European Communities Act 1972—I can see that the noble Lord understands that—and we will be bringing forward regulations very shortly. The new Public Contracts Regulations 2015, implementing the EU procurement directive, will make it clear how contracting authorities can achieve policy through procurement in a legitimate way. The regulations will require that the policy to be delivered through procurement is linked to the subject matter of the contract, as well as satisfying the EU principles of fairness, transparency and non-discrimination.
Furthermore, having consulted on the use of the power in Clause 38, we have identified a number of examples on how we might use its regulation-making power. It may help if I mention one or two of those because they might help to meet some of the concerns expressed by the noble Lord, Lord Whitty. One example is of requiring awareness-raising as part of pre-procurement market engagement, which can of course help small businesses; another would be requiring procurement authorities to have due regard to lean procurement principles. This will increase efficiency and reduce timescales. Some of your Lordships will be familiar with these principles, particularly those who have worked in business. I have direct experience of using them on a clothing supply chain exercise to good effect. Of course, it was Dan Jones who did the original pioneering work on lean thinking in the automotive supply chain, which helped our industry to fight back.
We undertook an open consultation on these proposals and there was support from local government and the Local Government Association. The outcome of the consultation is published on the Cabinet Office website and this includes draft regulations to illustrate how we might use the power. The planned uses are complementary to the forthcoming Public Contracts Regulations that I mentioned. They also complement the existing best value duty created by the Local Government Act 1999, as well as the duties created by the Localism Act 2011 and Public Services (Social Value) Act 2012. We have placed the draft regulations illustrating the use of the power in the Library of the House. The noble Lord has obviously already seen them, but others may not have done.
This is not about centralising procurement. It is about ensuring that high-quality procurement processes are in place across the public sector. We are also looking to establish common standards of good practice, as the noble Lord, Lord Hodgson, was encouraging us to do. The noble Lord, Lord Whitty, suggested that we might be able to deal with this through guidance, but I am afraid that in this area guidance will not be sufficient on its own. The power that we are taking will allow the Government to make targeted changes over time and to place legal obligations on contracting authorities in relation to the procurement functions. I hope that that provides some reassurance and an understanding that this clause will not undermine the localism agenda.
On Amendments 35E and 35T, while we strongly support the aims of best value to make sure that contracting authorities consider overall value, including economic, environmental and social value, when reviewing service provision, we consider that there is scope to improve procurement processes and open up opportunities to smaller businesses. The need to improve procurement processes is supported by findings made by our mystery shopper service, which investigates concerns about procurement throughout the public sector. This service has found that over a third of all its new cases relate to concerns with poor procurement practices by local authorities. Therefore, excluding all local authorities from the scope of the regulation-making power and from the scope of the mystery shopper service would mean that we were not able to help local authorities to improve their procurement practices and investigate mistakes. Nor would we be able to help small business to achieve the share in procurement that we all want them to have.
The additional obligations placed on contracting authorities will be proportionate. We are also clear that they are not intended to take control away from local government procurers, who will remain responsible for securing value for money. Retaining the scope of Clause 39 to include local authorities is necessary to help us to continue to improve procurement practices.
To turn to Amendments 35S and 35X, the Government are, as I said, wholly committed to principles that support development of economic and social issues and which are designed to allow contracting authorities to take account of how their decisions affect local business, the local area, the environment and social value considerations. The amendments are not necessary, as Clauses 38 and 39 do not amend or undermine the Localism Act, the Local Government Act or the Public Services (Social Value) Act. The power in Clause 38 cannot be used to amend these Acts or any other primary legislation. While I do not believe that the amendments are required, I am pleased to reassure noble Lords that, when making regulations under Clause 38, the Government will ensure that the provisions of legislation, including these Acts, are properly considered.
Finally, turning to Amendment 35K, I understand the noble Lord’s wish to see contracting authorities report on how they have met their duties under the Public Services (Social Value) Act. However, we do not wish to pre-empt the review of the Act launched in September 2014 and carried out by a panel led by my noble friend Lord Young, which is due to report in the coming weeks. The review is giving detailed scrutiny to the 2012 Act and is considering whether it should be extended and how it might be extended in a way that continues to help small business. The review may make a number of findings and recommendations and obviously it would not be right to second-guess those findings.
I hope that, in the light of these various reassurances, noble Lords will agree not to press their amendments.
Lord McKenzie of Luton
My Lords, I start by thanking the noble Baroness, Lady Neville-Rolfe, for her detailed response. Listening carefully to what she said, I am a bit bemused as to why she feels unable to accept the amendments. There is nothing in them that conflicts with what she has said is the Government’s position. On Amendment 35K, I take the point that if the noble Lord, Lord Young, is in the process of undertaking a review, the wording might pre-empt that. From what the Minister said on timing, I hope that we will have the opportunity to revisit that on Report, as we will have the noble Lord’s report by then.
Can the Minister be more specific on what the problem is with Amendment 35D? If the Government support localism and the Public Services (Social Value) Act 2012, the amendment would simply ensure that due regard is given to the new powers in Clause 38, which are extensive, as my noble friend Lord Whitty said. On the reference to lean principles on procurement, what evidence can the Minister provide that that process has been successful in enhancing SMEs’ share of the public procurement process? That is important and it would be interesting to hear the Minister’s response.
The noble Lord, Lord Young of Graffham, gave us a first-hand exposition of why we have ended up here. My noble friend has further amendments on PQQs, which might be the opportunity to explore that.
Baroness Neville-Rolfe
Perhaps I may say a few things. First, the noble Lord asked why we could not accept the amendments. The difficulty is that we cannot accept amendments without legal effect. I shall think about what he is saying but that seems to be a problem. Secondly, he rightly reminds me that he asked about lean thinking in relation to local government. I do not know the answer today but it is a fair question and we will come back to him.
Lord McKenzie of Luton
I am grateful for that. In closing, perhaps I should thank my noble friend Lord Whitty for his contribution. We made the same analysis, despite the somewhat different solutions to the problem. There was a very insightful, detailed presentation from the noble Lord, Lord Hodgson, who has the experience of chairing that task force and seeing what is happening in practice. The point is about getting the right balance; it is about making sure that the legislation properly reflects that. Having said that, I beg leave to withdraw the amendment.
Lord Mendelsohn
“( ) duties to establish the past payment performance of potential parties to a contract, before contracts are entered into;( ) duties to ensure contracts entered into include the contractors’ obligations for prompt payment of their suppliers.”
Lord Mendelsohn (Lab)
I thank the Minister for her comments at the beginning of the Committee. I think we will have a very constructive debate, as we have done so far, on these issues; there is a great deal of common ground. I feel somewhat optimistic that some of our helpful suggestions might even find a receptive ear. I hope that the Government see this amendment as a useful and timely addition to the Bill. I say “timely” advisedly. Last week, we had the benefit of the National Audit Office report Paying Government Suppliers on Time, which made the case for this amendment.
First, let me acknowledge that this is an area in which the Government can rightly take some credit. The Cabinet Office Minister, Francis Maude, has set out an objective and some initiatives and policies to address the weakness of the position of small businesses in procurement and in how they are treated by larger suppliers. I also acknowledge the very impressive work of the noble Lord, Lord Young, and congratulate him on his recent award in the New Year Honours List.
However, as we can see from the report, it is implementation that is the problem. The Government’s desire to pay promptly has not benefited small businesses sufficiently. The National Audit Office concluded that the attempt to pay increasing numbers of undisputed invoices early was boosting the working capital of only the main contractors and not benefiting small businesses down the chain in the way the policy intended. We therefore want to be very supportive of the Government and suggest that a bit of steel be put into the Bill.
The amendment aims to make sure that the payment performance of potential contractors is known before contracts are entered into, and that contracts entered into require companies providing goods and services to public sector contracting authorities to pay their own suppliers promptly. We would like contracting authorities to score the suitability of contractors based on how they pay suppliers in general and to know that not operating in keeping with the contract objectives of government support for small businesses when it provides its cash will affect their ability to contract with the public sector in the future. I would welcome the Minister’s assurance that the Government are doing what they can to address this problem, and that Ministers and their departments will now act swiftly by writing to their main contractors to seek assurances, today and in the short term, that they are adhering to the prompt payment commitment.
The National Audit Office report was disappointing reading for another reason—again, not for the want of willing. The report uncovered continuing and deep problems in the public sector over late payment. A third of small businesses were not paid on time. I do not want to draw a comprehensive conclusion, but what should one draw from the finding in the report that even the most basic and elementary accounting function of logging the date on which a paper invoice is received was not a common standard across the departments reviewed?
We did not feel it appropriate to add an amendment on this at this stage, but I give notice that it is something we intend to do when we return to late payments on Report. In the mean time, I would be grateful if the Minister could at least reassure us by providing some details on the further thoughts her department and the Cabinet Office have on the measurement and reporting of prompt payment performance. What measures and management processes will be put in place to ensure that accounting departments are both trained to deal with this and held to account for their performance? Can the Government provide stronger incentives, even now, to encourage the use of e-invoicing?
I would be happy if the Minister wanted to reply in more detail in writing, but it would be helpful to receive an understanding of the Government’s determination to take further measures to get their intentions, policies and decisions implemented. I beg to move.
Lord Cotter (LD)
My Lords, I strongly support the amendment. As the noble Lord, Lord Mendelsohn, said, implementation is vital to put steel into this requirement. We know from our many contacts in the construction industry that many areas of business have a real concern to ensure that people given contracts are monitored. I hope that the Minister will at least take this away to consider it and respond promptly in due course. In particular, I have in my mind a lot of evidence that has come forward from the construction industry to say that people implementing the main contract do not always—frequently do not—pay the small business sector promptly.
I will say no more, because the noble Lord has made these points, but—to be brief and to the point— we must ensure implementation. I hope that the Minister will take this away and assure us that this implementation point will be considered, because I have heard this issue raised time and again over the years, as have many colleagues, particularly giving a contract to a main contractor and finding that suppliers to that main contractor do not get payment. Those suppliers are often small businesses, so I welcome the amendment.
Baroness Neville-Rolfe
I thank the noble Lord for this amendment. As we discussed on previous days in Committee, prompt payment is an extremely important agenda and we wish to encourage both contracting authorities and businesses to pay their suppliers on time, so I shall say a little more, as noble Lords requested, about what we are planning to do in this area.
The Government are committed to leading by example on prompt payment. When we consulted on proposals to tackle prompt payment in autumn 2013, there was widespread support across industry and with procurers. This resulted, rightly, in a commitment to legislate. The new public contract regulations, which the Government plan to bring into force shortly, will place a duty on contracting authorities to pay their immediate suppliers in 30 days, and include terms in their contracts to pass these 30-day payment terms all the way down the public sector supply chain.
The regulations were consulted on last autumn and we intend to bring these into force early this year. That should provide reassurance to smaller businesses further down the supply chain that they will be paid expeditiously, and will address some of the findings of the National Audit Office report published last week, to which the noble Lord referred. I was about to cite the same figure that he cited: in a third of cases, public sector clients have taken more than 30 days to settle payment. That is completely unacceptable and that report helps to make the case for these regulations, which I hope will attract cross-party support. Our determination in this area cannot be doubted.
As part of these same public contract regulations, contracting authorities would also be required to publish the number of invoices paid late to their first-tier suppliers on an annual basis to show how they have performed in this area. The Government are committed to developing guidance to ensure that the reporting on late payment is understood and aids transparency.
Our mystery shopper service is strangely named, but it enables SMEs and other suppliers to raise concerns about public sector procurement with the Government and have it investigated. It is a Cabinet Office service and assists in ensuring that the contracting authorities comply with these new measures and will name and shame poor payers through the fortnightly publication of mystery shopper cases on GOV.UK. In future, the service will be able to ensure proactively that the 30-day payment policy is being embedded by carrying out spot checks on contracting authorities.
The noble Lord, Lord Mendelsohn, asked whether the Minister could commit to write to the main suppliers to ensure prompt payment. Yes, we would be happy for the Government to arrange for an appropriate Minister to write to the strategic suppliers about this before the end of the Parliament. We are talking about 100 or so suppliers. Those are the strategic suppliers to whom the noble Lord referred.
On monitoring and implementation, in view of the time I agree to write to the noble Lord to set out the arrangements. However, we believe that these reforms are the right way to address the prompt payment of suppliers in the public sector supply chain. I know that the position is a little curious—we have met the same issue in other legislation that the noble Lord, Lord Stevenson, and I have debated—to have one set of regulations coming in under EU powers and then a domestic Act, but I am afraid that sometimes that has to be the way that we bring things forward, not least to make them happen in time. I hope that, if the noble Lord takes the two together, he will feel that we are approaching this in a sensible way and feel able to withdraw this amendment.
Lord Mendelsohn
I thank the Minister for that reply. I also thank the noble Lord, Lord Cotter, for his support. I reinforce the point that we both made that while all the measures that we have talked about have our support and we do not oppose this area, we raised the matter to make sure that the policy is strongly and fully implemented. While some of the measures that were outlined concern talking to the first-tier suppliers, the sheer notion of being able to challenge people, hold them to account and ensure that they understand they will never escape questioning on this issue is the power that we are keen for the Government to consider further. We remain strongly supportive of the measure and I beg leave to withdraw the amendment.
Lord Mendelsohn
“( ) duties to provide details of any costs related to undertaking provisions outlined in paragraph (c)(ii);”
Lord Mendelsohn
My Lords, this group of amendments builds on the good base that already exists in the Bill, and I will set out our thinking behind them.
Small businesses often find public sector procurement processes unfairly opaque. Enabling small businesses to fairly compete and win public sector contracts requires commissioning and pre-procurement planning, as well as structured market engagement. This will require new guidance and skills development at the commissioning/procurement level within public sector organisations.
Experience—in many cases, painful experience—has shown that better commissioning, aligned to outcomes, is at the heart of driving an increase in the participation of small businesses in procurement processes. There is a strong benefit in early market engagement, asking questions of the market before procurement processes are initiated.
Small businesses need to be engaged as part of the commissioning process. Unless and until commissioners understand what localised small businesses can or cannot bring to the table, they will be selling themselves short in terms of what their local market can deliver. This early market engagement needs to be fed into the procurement process itself—from the specification through to the rationale for the procurement route taken and all the documentation required to be completed.
Skills in commissioning and procurement need to be addressed. There is an industry in the process itself, which tends to be input driven rather than concentrating on where the value can really be derived—that is, aligning the processes to the outcomes required. Commissioners and procurement officers have little support, training and guidance that will serve to facilitate a material difference in small business uptake. Therefore, the processes will tend to be biased towards larger, established organisations.
Small businesses that have been through the process claim that it is weighted heavily in favour of larger companies, with no consideration given to the fact that smaller enterprises have fewer resources to complete lengthy tendering documents. The smaller the business, the greater the proportion of its time, resources and effort will be required to submit a competitive tender.
Therefore, our amendments seek to provide the capability to government to effectively devise procurement processes, appropriate duties and considerations, as well as measurements and reports, to ensure an increase—more than just levelling the position—in small business success in winning public contracts.
Under Amendment 35G, the Secretary of State may impose duties on contracting authorities to provide details of any costs related to participating in the procurement process, helping to illuminate and navigate a key barrier to small businesses.
Amendment 35H establishes baselines which will be critical to determining the success or otherwise of public sector bodies both in participating in procurement processes and in increasing the awarding of contracts to small businesses. It proposes tracking key performance indicators, asking contracting authorities to report on the number of small businesses participating in the procurement process, the number of contracts, the value of the contracts and the value of subcontracts awarded to small businesses.
Amendment 35J would impose a duty on contracting authorities to deliver fair and equal procurement contracting, as well as a duty to have regard to region, diversity and the value of the contract and subcontract awarded.
Amendment 35P provides that contracting authorities have a duty to publish reports about the amount and proportion of expenditure within procurement undertaken by a contracting authority in relation to small businesses and the area local to the contracting authority, as well as duties to disclose and explain any reasons why specified businesses or companies, or a specified category of business or company, may be excluded from consideration by a contracting authority.
In Amendment 35U, the mystery shopper, when conducting an investigation, must give,
“due consideration to the fair and equal delivery of a procurement contract”,
having regard to region, diversity and the value of the contract and subcontract awarded.
In short, we are asking public sector bodies to take greater care in designing processes that do not disadvantage small businesses, and we are trying to give them the tools to measure these effectively. They need to consider what are we asking for in procurement processes—the range of checks and balances with respect to the amount of time and cost that they are expecting bidders to invest. Are the questions being asked really relevant to the contract size and type of the contract?
Lord Young of Graffham
Perhaps I can assist the noble Lord over some of the difficulties that he sees in this particular clause, in three areas that he raised. First, the mystery shopper—it is a bizarre name, but people understand what it means—has been operated by the Cabinet Office on central government contracts for the past few years. It had a great defect; it was reactive—somebody had to complain—and there were very few small firms in this world that would willingly make a complaint against a big customer. So we have made it proactive, so that the Government will, on a random basis, go and question people. That covers the possibility that any small firm can now complain without having the finger of blame put on them.
Secondly, we have now substantially modified PQQs. For example, there is now a standard PQQ for every contract worth more than €200,000. The small firm or the large firm does it once and the public sector reads it many times.
One element of our reform that we have not referred to this afternoon may well satisfy some of the noble Lord’s concerns. Next month we are launching a site, provisionally titled Contract Finder, that will record on it every public sector contract—worth £250 million a year—whether it be fire, ambulance, education, health, central government or local government. These will be postcoded, so that firms around the country can see what is coming up. More than that, we will expect local authorities, the health service and others to give notice of impending contracts, to enable firms to prepare for them. If a subcontractor sees that a new school is being contemplated in its area, it can go to the contractors that normally do it.
Thirdly, after each contract is won, the results will be placed on the site, so that people can see how near they were to winning. This is the first time in the world that this has been done. It is getting a great deal of interest overseas. It is a substantial undertaking, but its whole purpose is to create a level playing field for small firms and large firms. I hope that, if we see it through as intended, we will be looking at a very different small firms sector in a few years’ time.
Lord Deben (Con)
My Lords, I would first like to say how pleased many of us are at the changes that the noble Lord, Lord Young, has just described. They will make a big difference for small firms around the country.
However, there is another part to this on which I hope that the Minister will be able to help. There are reasons to disagree with the specifics put before us, but the noble Lord, Lord Mendelsohn, has made it clear that he is seeking a response from the Minister that shows that she understands the real problem that is being adumbrated, which is that small firms often find that they are not competing fairly simply because what is asked of them is a much bigger ask than the same thing asked of a big firm. That is the fundamental issue.
There is a second part to that, which is the reaction of those who place the contracts. I am increasingly worried that, in the public sector, there is a safety culture that means that people would prefer to have a firm whose name they know and which they feel no one can blame them for taking on, even if that firm does not in the end do the job properly. It is much easier if it is a national company with a national name—when you have taken it on, nobody can make the complaints that they might make if you were taking on a smaller firm.
Even if the Minister is not able to accept these aspects, I wonder whether she would help us by saying what the Government intend to do to try to make it easier for the public sector to take on companies that might be less assured because they are smaller and because they have not had a contract of that kind before. Are there not serious institutional ways in which we could make that easier? I have not yet seen any indication that, in their plans, the Government have sought to make it less dangerous for a public servant to take on a firm that has perhaps not previously worked with the public sector or perhaps does not have such a long history of doing so. Where there is a risk involved, I think that it is a risk that the public sector ought increasingly to be willing to take if we are to have entrepreneurial innovation in Britain.
Baroness Neville-Rolfe
My Lords, as the noble Lord, Lord Mendelsohn, said, there is a good deal of common ground here, although we believe that we have most of the powers that we need, either in this Bill or in separate, regulation-making powers. I thank my noble friend Lord Young of Graffham for explaining the mystery shopper so clearly, and how PQQs have changed. I will come on to Contracts Finder in a minute.
On Amendment 35G, we consider that requiring a small business to pay a fee to access a public contract opportunity is a significant barrier to entry and should be stopped. That is why the Government’s intention in the draft Public Contracts Regulations 2015, which I have mentioned several times, is to help ensure that small businesses have free access to contract opportunities in one place. Moreover, the power in Clause 38 can already be used to make regulations to ensure that documents, information and any process involved in bidding for a contract are made available free of charge. The Cabinet Office will assess the impact of the reforms to be introduced through the draft Public Contracts Regulations before deciding whether to use Clause 38 to make regulations about providing free access.
The noble Lord, Lord Mendelsohn, asked how we will ensure that there is early engagement with suppliers and that small businesses are included. This is a very good question. Noble Lords will recall that our draft illustrative regulations demonstrate how the power could be used to require authorities to carry out pre-procurement engagement in a way that increases interest in bidding for procurement for SMEs. This could also help to bring in new SMEs and deal with the reputational issues, which was the issue behind my noble friend Lord Deben’s helpful intervention. I recall that, when I was in business, we had a similar wish to encourage new small and local suppliers. We held pre-engagement road shows to talk to the suppliers. Bringing in suppliers that we had not had anything to do with before led to new contracts being let to smaller suppliers outside the mainstream. That is not public sector experience, but it gives me confidence that we should be able to use this pre-engagement process to improve things.
We support the spirit of Amendment 35H and we are already doing more to promote transparency in public procurement. The procurement directive, which was intended to be transposed earlier this year, will require contracting authorities to disclose the number of above EU threshold contracts awarded to small and medium-sized enterprises, based on the EU definition. Contracting authorities will also be required to provide information on the number of bidders for a procurement, as well as reporting on the value of any contracts awarded.
The noble Lord, Lord Mendelsohn, said that too many prime contracts go to large suppliers. I cannot help but agree with that. The new Public Contracts Regulations will require contracting authorities to explain why they have not broken down large requirements into smaller lots. As my noble friend Lord Young, said, there will be a new Contracts Finder website, which will advertise all central government contracts over £10,000 and local government contracts over £25,000 free of charge. As has been said, the site is already attracting international interest and comment. The regulations will also place an obligation on a contracting authority to report, for contracts of £10,000 and above for central government and £25,000 and above for other authorities, on whether the successful bidder is a small or medium-sized enterprise or a member of a voluntary community social enterprise organisation, and on the value of the contract awarded. I think that that is important. Contracting authorities will be required to publish this information on Contracts Finder.
Lord Mendelsohn
I thank the Minister for her comprehensive reply. I sometimes feel that she does not realise that we are trying to be helpful. I also thank the noble Lord, Lord Young, for his comments on mystery shopper. If he can wait until Amendment 35V, we will probably have an interesting discussion on that as well.
I am encouraged by the Contracts Finder website. This service is currently available and has a huge number of suppliers with different costs and different costs supplied to it. The benefit of having a site championed by government would be the ability to have not just the front end, whether on a pc or other device, but what can be done with the back end to make sure there is some consistency. I know that the noble Lord, Lord Young, is a dab hand at technology, having just received an invitation from him to go on a technology visit somewhere. I hope that he has that in mind, and it is not just on the front end but the deeper work on the back end.
I am very grateful to the noble Lord, Lord Deben; we have agreed on an awful lot during consideration of the Bill. What he said is exactly what our intentions have been throughout with these amendments. The genius of these amendments, if I may say so, was the attempt to try to create not just a process for measurement but a way in which to enforce a duty to consider carefully how the procurement process is designed. Having to report on the diversity of the people in that procurement process assists in the obligation to ensure that the tendering organisation designs a sensible process—one that meets the ability to report that it has gone through the right range of people and is appropriate to the needs of small business.
It sometimes feels rather as if being on the shadow ministerial team is like operating a small business. We have somewhat modest resources and I felt that our amendments were drafted with the finest legal advice that our sparse resources were able to get. I was disappointed to hear that the Government feel that these measures do not meet the test of equal treatment and I would be grateful if they could share with us the legal advice suggesting that. I would consider that another government action in support of small business.
I accept that there is a huge difficulty in all this. Again, I am trying to be very helpful here but the tone of some of the Minister’s response was a lot of after-the-event, post hoc assessments and rationalisation. We are trying to stop the situation being that within the process, it is just too far rigged against small businesses. I have experience of looking at public contracts in a variety of countries and, at times, we put in a series of information hurdles that are impossible to achieve. Occasionally in our processes, even on contracts, we have a “take it or leave it” approach—something that a big organisation can absorb as a risk, while a smaller business cannot.
I urge the Minister to consider carefully what we have tried to design. It is about telling people to have some consistency. Even our provisions about the mystery shopper are about creating a consistency in reporting and operating, and the establishment of a permanent mindset. We should not just design these procurement processes to be risk-averse and end up with the same old suppliers. We should make great effort to open them up as much as possible and design them for that purpose. If she will consider that we will be very grateful but, in the current circumstances, since we wish to be very helpful, I beg leave to withdraw the amendment.
“( ) duties to require an appropriate number of apprenticeships.”
Lord Young of Norwood Green (Lab)
My Lords, first, I apologise for not being here for the earlier part of this debate but I was detained at another meeting. I want to focus on what I think your Lordships know is one of my abiding interests: how we can create more and better-quality apprenticeships, and ensure that the demand for them is sustained and encouraged in our educational establishments.
I have raised on numerous occasions the question of ensuring that apprenticeships should be a natural part of the process of procurement in public service contracts. In my brief ministerial career, I remember encountering some suggestion that this could not be done for legal reasons. Nevertheless, we proved that it could. If the Minister has not already been to see Crossrail, I extend an invitation to her to go and have a look at what it is doing. It is a first-class example of a company in that, when we engaged in negotiations at an early stage of that contract, we got a commitment that it would recruit up to 400 apprentices. Actually, it has gone beyond that number. What is as interesting as the numbers involved is how it has gone about it. It has encouraged every company in its supply chain to adopt a very positive and constructive attitude towards the creation of apprenticeships. These are of good quality, they cover a wide range of occupations and the gender balance is pretty good. If noble Lords get the opportunity to attend an apprenticeship graduation ceremony, when the apprentices who have done best in their areas are acknowledged, it is something worth doing. That is an example of best practice.
I have tried to ensure that the amendments I am speaking to, from Amendment 35L to Amendment 35W, are coherent in their approach. I shall focus on local employment partnerships. Many public procurement contracts will derive from local authority activities and, after all, since local employment partnerships are a government creation, they ought to contain within their objectives the development of an apprenticeship strategy with appropriate objectives and a consequent annual review. I am interested to hear the ministerial response to this idea. It seems to me that if local employment partnerships are to continue, and I suspect that they probably will, part of their raison d’être ought to be the creation and sustaining of apprenticeships.
Building links with all the educational establishments, be they schools, colleges, university technical colleges or universities, is fundamentally important. Some of these institutions are already doing this, but the record is still very patchy. What are we trying to achieve? I have debated apprenticeships with the Minister a number of times and although the Government are keen to quote the large figure of 2 million, my response to that is not to criticise their ambitions and the work they have done in this area, which includes such things as Trailblazer apprenticeships, but just to get some perspective on it. My perspective is that if we look at the breakdown, many are in the area of adult apprenticeships: I think it is 50%-plus. Our concern should be that we have seen some decline in apprenticeship numbers in the younger age ranges.
That is one area of concern that we are trying to address. Another is that it is still quite a small number of companies that recruit and employ apprentices. The figures vary a bit depending on where you go, but if it hits one in five we are lucky. If we look at the FTSE 100, it is still only about a third. We are trying to create a climate in which we encourage more companies to participate. There are opportunities to do that. If we look at best practice, it is interesting that when I went round some universities and talked to them about apprenticeships, the reaction of some was an almost puzzled response. Then you pointed out to them the sorts of occupations concerned and the fact that some significant employers take on apprentices, and the universities realised that they needed to be involved. They also need to be involved, as many of them are, in encouraging entrepreneurship and the creation of small businesses.
Lord Stoneham of Droxford (LD)
I am pleased to follow the noble Lord, Lord Young, as I have done on a number of occasions. This subject emphasises where this Government have built on the foundations laid by the previous Government. It is for the next Government to realise that these things take a long time to come through. There will always be things that we want to improve, one being, of course, that we want greater equality of training and apprenticeships for younger people.
I have had some experience both in the construction industry and in regeneration projects where we have linked contracts to training young people. That has been part of the deal and there have been great benefits as a result. However, the noble Lord, Lord Young, has raised the whole capacity issue. If we are seeking to improve skills in construction, manufacturing and engineering, we can help to do that through public contracts, and there is certainly a huge role in this for local employment partnerships.
However, there are things that the Government need to take into account when looking at these amendments. The first is that these deals must be appropriate and non-bureaucratic. We must keep it simple because as we have heard from the noble Lord, Lord Young, we will simply put off the smaller local companies—the locally-based contractors—that are probably in the best place to provide some of these openings. We have to keep it simple. We also have to match the commitment to technical education with academic achievement in our education system. That was the point that the noble Lord, Lord Young, was making. Finally, as we are looking to the next five years, we must particularly look at how we can concentrate more of these apprenticeship deals and opportunities on the young.
Lord Cotter
I do not wish to waste any time in the Committee, but I very much support what my colleague, my noble friend Lord Stoneham, and the noble Lord, Lord Young, just said about encouraging apprenticeships. I know that the Government are doing an awful lot to encourage apprenticeships, particularly in the small business sector, financially and otherwise. I ran a small business for a number of years before coming here and I would have needed a lot of encouragement to take on apprentices. In those days it was not so common.
This does not appertain to this Bill in particular, but there is a great concern about the attitude that colleges and schools have towards careers advice. There are well proven figures to show that people are often not given any option other than university. We need to help small businesses to take on apprentices and engage the colleges. My area has a very good local college that is doing an awful lot in that direction, and I would happily let the Minister know what we are doing in Weston-super-Mare, where I come from. I support what my noble friend and the noble Lord, Lord Young, said about the importance of helping small businesses to take on apprentices.
Lord Hodgson of Astley Abbotts
My Lords, I share the wish of the noble Lord, Lord Young, to encourage vocational education. It is exceptionally important as a means of improving youth employment. However, I am slightly concerned about the route for apprenticeships, He knows far more about this than I do, but when I take part in the Lord Speaker’s outreach programmes and we talk about apprenticeships to sixth formers, too often they feel—and I think they are probably right—that the apprenticeship is a time-based qualification, not a performance-based qualification. That is to say that you have to spend a certain amount of time doing a job before you can get a qualification.
That puts off sixth-formers, who think that even if they are good they cannot move through the apprenticeship scheme at the speed at which they acquire the skills. That is something I have often referred to. I would be nervous about trying to put too much weight on apprenticeships. I am keen on youth employment, but apprenticeships are potentially too narrow, particularly given the comments made to me by sixth-formers, which may or may not be entirely accurate.
Baroness Neville-Rolfe
My Lords, I thank the noble Lord for his amendments. I am delighted to see him joining us in the Committee and giving us this opportunity to debate apprenticeships, about which both he and I feel a great passion. I will try not to let that get in the way of objectivity. Apprenticeships are also at the heart of the Government’s drive to equip people with the skills that employers need to grow and compete. It is great to have so much support for apprenticeships in the Committee today. It was interesting to hear about the experience of the noble Lord, Lord Cotter. We need as big a body of support for apprenticeships as we can get, and one needs to encourage people one knows in business and where there are public procurement opportunities to think about apprentices more.
We have already delivered 2 million apprenticeship starts in this Parliament, and there are 20,000 apprentice vacancies around England at any one time. However, I share the noble Lord’s concern about getting enough young apprenticeships. That is one of the reasons why the Government are trialling a new approach to apprenticeships in 2014-15 and 2015-16. He and I have talked about that, and I am involved in work with the electronics industry and the professional services to try to bring forward new thoughts and new numbers. The Government have made the apprenticeship grant available for employers—£1,500 targeted on smaller businesses taking on young apprentices. That ticks two boxes at once.
I also agree with the comments that the noble Lord, Lord Young, made on Crossrail. The work that it has done on apprenticeships has been a model. Like him, I have been under Fenchurch Street station and have seen what it is doing there. It has also been very good about trying to employ smaller suppliers both directly and through subcontractors—and small suppliers outside London.
We want it to become the norm for young people to choose between an apprenticeship and university as alternative routes to a career—an experience that I am familiar with in Germany—and this Government’s reforms lay the groundwork for that. I pay tribute to all that my noble friend Lord Young of Graffham has done.
On Amendment 35L, I have sympathy for the noble Lord’s intentions that a contracting authority should require an appropriate number of apprenticeship opportunities. However, as I am sure he is aware, not every procurement will be an opportunity. Contracting authorities are entitled to deliver legitimate policies through their high-value procurements but, under EU law, these must be linked to the subject matter of the contract and the procurement must meet principles such as equal treatment, fairness and transparency. It would, therefore, not be possible to require that every procurement delivered an apprenticeship.
There would also be a danger that requiring the provision of apprenticeships by contracting authorities could pass on costs to bidders and actually deter smaller businesses. If so, this would undermine the purpose of Clause 38, which is to open up procurement opportunities to smaller businesses and remove barriers to their participation. If contacting authorities must require an appropriate number of apprenticeships, assuming that that could be determined—it sounds quite difficult—would that stop smaller suppliers bidding, as they might not have resources available to allow them to meet the expectations and duties of the contracting authority in this regard? I know that that is not a perverse effect that anyone wants but it is one reason why the Government are concerned about that amendment.
On Amendment 35M, I agree with the noble Lord, Lord Stoneham, that there is a huge scope for local enterprise partnerships and schools to work with SMEs to deliver more training and apprenticeships when these organisations bid for public contracts. The new Contracts Finder—to look at this amendment in the light of the previous one—will be helpful in spreading knowledge of opportunities, with details of contracts on the website. However, as with Amendment 35L, we must be careful that any provision for delivering apprenticeships through procurement does not have the unintended consequence of adding to the cost of public procurement for contracting authorities and bidders. We encourage schools, LEPs and other public bodies to work with SMEs on apprenticeships, but we are not convinced that they should be under a legal duty to do so.
Finally, Amendments 35N and 35W relate to assessing and reporting on the extent to which apprenticeships form part of public procurement. Again, I have sympathy with the noble Lord’s intention, but I fear that these amendments could again risk passing a burden down the supply chain to smaller businesses. Only by asking them to report on this could we determine the number of apprenticeships and recruitment practices involved. It is precisely that sort of red tape that we seek to cut in this Bill. While I agree that transparency, reporting and reviews are helpful in this sphere of apprenticeships, we need to be careful to balance that with the reporting burdens that it would place on small businesses. Again, I am sure that that is not the noble Lord’s intention, but it could be a perverse effect of legislating in the way proposed.
I hope that the noble Lord feels reassured, understands that we share a similar objective on apprenticeships, and will understand why we feel that we cannot accept the amendments. I ask him to withdraw Amendment 35L.
Lord Young of Norwood Green
I thank the Minister for her response and all those who have participated in this debate. To address some of the points that were made, it certainly is not our intention to put off smaller companies in any way. I am always puzzled by how we think that training and apprenticeships are to take place: is it always the responsibility of some other company? My experience tells me that, when you finally succeed in encouraging the smaller and medium-sized enterprises to employ and recruit apprentices, the feedback is very positive indeed, on both sides. The deterrent is usually that those enterprises have not done them previously or that they are worried about the administration costs et cetera. We are fully aware of that. If we are trying to create a climate in which we increase the number of companies participating, we have to start somewhere. Is this amendment an unreasonable proposition? We do not believe that it is, which is why I quoted the example of Crossrail; I could have quoted the Olympic model as well, which was another success story. There were no legal barriers in those examples.
The noble Lord, Lord Hodgson, said that his experience was that young people are put off apprenticeships because they see them as time-based qualifications. I am puzzled if they are put off. The example I usually give—I will give it again—is of BT. I forget what the current figure is, but it is probably about 500 apprenticeships and 25,000 applications. I do not think that that sounds like young people being put off because they see it as a time-based qualification. Anyway, apprenticeships these days are not as long as the seven-year type of thing that they used to be; they are shorter and more honed. They have a lot of attraction for young people, who look down the more conventional academic route and see the costs of that against the ability not only to earn while they learn but to impress their employer with their enthusiasm and capability. We know that the demand is there on both sides. We need more people to go into industries such as manufacturing, construction and science.
I do not believe that anything we are suggesting would increase the amount of red tape. How it is done is important. It should accompany what the Government are doing; we see it as an intrinsic part of developing better participation. Of course, we need to see what the track record is. Surely we should be able to ask ourselves why some local employment partnerships and local authorities are so much better than others at encouraging the creation and development of apprenticeships. We will be able to do that only by collecting some statistics. I do not see that as a huge burden going back to small businesses. After all, some of this information is being collected anyway. Therefore, I really was not convinced by the ministerial response to that.
As we are currently in Grand Committee, I will withdraw the amendment but with a view to possibly returning to this issue at some stage. I thank the Minister for her response and beg leave to withdraw the amendment.
Lord Mendelsohn
Lord Mendelsohn
My Lords, I shall speak also to Amendment 35R. I will be mercifully brief on this group. In trying to express our support for the Government, saying less may be more.
The Bill says that the Minister,
“may issue guidance relating to regulations under this section”.
Proposing a change from “may” to “shall” enables us to debate the wider issue of guidance relating to small businesses and public procurement, and what should be included in the guidance.
Amendment 35R is in keeping with the recommendation from the Delegated Powers and Regulatory Reform Committee that regulations about procurement be subject to the affirmative procedure. We agree that in these matters delegation is appropriate as the powers are so wide and there is great potential for significant consequences, both negatively and positively. We also agree that on procurement matters in general it is entirely sensible to make regulations under Clause 38 subject to the affirmative procedure. The approach of not just this Committee and this House but the other place suggests that there is a great deal to be gained through the positive engagement of both Houses. I beg to move.
Viscount Eccles (Con)
My Lords, it is the very width of the potential of these two enabling clauses that worries me. In a way, bringing in “shall” in the amendment and accepting the recommendation that the resolution procedure should be affirmative gives Parliament a certain leverage to debate whatever the Government are intending to do. However, I am reminded that sometimes when people put up very sensible amendments Ministers do very well in arguing that they are not necessary. They say that things are all right as they are and that the matter is already being dealt with. We have heard a certain amount of that this afternoon.
I have been listening to this debate—I hope, carefully—thinking about the comments on existing legislation, thinking about all that is going on in this area in a period of financial stringency, when you would expect a lot to be going on, listening to my noble friend Lord Young, for example, and thinking about my noble friend on the Front Bench and the impending transposition of European directives on the subject. We have had a very interesting debate but I ask whether the case for these two enabling clauses has really been made. Is it not perhaps true that there is not an impelling need for them? Many good things are going on.
Therefore, my challenge to my noble friend is the question: what is the reality of the added value that will accrue from these enabling clauses, always remembering that enabling legislation is inherently not very satisfactory? I think that I revert to the position adopted very early in the afternoon by the noble Lord, Lord Whitty, who is no longer in his place. He said that he was not entirely sure that these two clauses were necessary. However, I will read the draft regulations with great care. I am sorry that I did not realise that they were already available a few days before this debate. That is remiss of me. I will read them very carefully, and it may well be that before Report I will conclude that there is some added value, although at the moment I have my doubts.
Baroness Neville-Rolfe
My Lords, I am grateful to the noble Lords for their amendments. I shall start by commenting on the wisdom of my noble friend Lord Eccles, who often causes us to pause in our legislative discussions. I am not sure whether he was present when we started this afternoon and I took the Committee through the rationale and explained how we plan to use the regulations. I am glad that he is planning to look at the draft regulations and I would be very happy to discuss them further with him if need be. The clause will provide the Government with the powers to make regulations that help small businesses bid for public sector contract opportunities that are currently worth £230 billion per annum. That is at the heart of our problem: as many noble Lords have asked this afternoon, how do we get the share of that cake up for small business? That is our common wish.
As for these amendments, I want to reassure the noble Lord that the Government are considering carefully the recommendation of the Delegated Powers and Regulatory Reform Committee, but we also need to consider the implications for timely delivery. The Government are not yet convinced that it is necessary for the affirmative procedure to be used every time the power in this clause is used. Regulations about procurement have in the past been made under the negative procedure and some of the matters dealt with in regulations in this area are very technical and need to be adjusted over time.
Taking an example, the illustrative regulations we have recently published list a number of practical steps that could be taken; for example, on pre-procurement marketing. It may be necessary in the future to amend that list to describe new recommended forms of pre-market engagement. Is the affirmative procedure necessary or appropriate for every such change? Similarly, as the recently published Cabinet Office policy statement makes clear, regulations could be used in the future to prescribe minimum and maximum timescales. Would a modest change to one of those require the affirmative procedure?
We are actively considering these issues and what we can do to increase the level of parliamentary scrutiny attaching to this clause, which is the purpose of this amendment. One option would be to have an affirmative resolution on the first occasion to set the strategy for the regulations, and negative thereafter. It would be good to understand how noble Lords feel about that.
Turning to Amendment 35Q, as we have debated in relation to previous provisions, the use of “may” instead of “shall” is standard practice in relation to drafting of this sort. Our intention is to issue guidance about the regulations and to publish it in a way that makes it accessible to contracting authorities and suppliers. I can reassure the Committee that, if the Government consider that guidance would help contracting authorities or others to understand the regulations, we are committed to issuing it. We will also implement—I think that this is called for, from the conversations we have had today—an extensive communications strategy prior to the implementation of the regulations in order to ensure that key messages are understood and embedded. That will appear on GOV.UK and be very accessible. I hope that, in the circumstances, the noble Lord will agree to withdraw these amendments and, clearly, I would be interested to discuss the issue of parliamentary scrutiny.
Lord Mendelsohn
My Lords, I thank the noble Viscount, Lord Eccles, for his observations and I apologise if I was not clear. The issue here, as was pointed out by the Delegated Powers and Regulatory Reform Committee, is that there are no limits in the Bill on the kinds of duties relating to the exercise or procurement functions that can be imposed and it does not derogate the generality of that power. So there is a question about the breadth of that power and that is why there is great benefit in debating these things.
The committee, whose view we share, was also unconvinced by the arguments of the Government. If there is an issue about some of the technical aspects as described to the committee—the economic circumstances or elements where speed is of the essence—we would be more convinced if the Government were able to give more detail on the circumstances in which those would be applied. Given everything, it does not sound particularly compelling and we are in deep sympathy with the Delegated Powers and Regulatory Reform Committee on that. In the circumstances, since it may be possible for the Minister to write to give us more details, I will use this opportunity to beg leave to withdraw the amendment.
Lord Mendelsohn
“(9) A Minister, in carrying out the functions outlined in this section, shall publish details of the investigation including the—
(a) focus of the investigation,(b) findings of the investigation,(c) evidence considered.(10) Evidence classed as commercially confidential is excluded from the provisions of subsection (9).”
Lord Mendelsohn
This is a probing amendment, which seeks to ask the Government to set out more clearly how this clause will improve the current position and is intended to operate. This is indeed an amendment which covers the mystery shopper. In February 2011, the Cabinet Office supplier feedback service was extended to allow small businesses to ask about procurement processes when they were unsuccessful or felt that the procedures or systems, or how they were being treated, were unfair. This was later renamed the mystery shopper scheme, which I have enjoyed reading about.
Looking through the document headed Mystery Shopper Publication Table October to December 2014, I came across a fascinating story about the UK Shared Business Services. The description says that:
“A Mystery Shopper raised concerns about a procurement by UK Shared Business Services … for ‘the Small Business Campaign’. The supplier read in a media article that they had been unsuccessful prior to receiving any response from”,
those services. The response from the investigation by the mystery shopper service said:
“We investigated this case and UKSBS have confirmed that unfortunately information was made publically available prior to the official notification letters being sent”.
Its conclusion was that the United Kingdom’s Shared Business Services,
“are looking into their internal processes to ensure that this situation does not re occur (including ensuring training is put in place for users of the procurement process)”.
I have never seen a leak more extensively reported in a government document and I found it very amusing. However, we commend the mystery shopper, which performs an exceptionally valuable service and shows tremendous potential for development. One of the things which we commend is that it is evolving and not a static instrument. It has some direct attention and modifications come as a result of that.
I would like to probe what is in the Bill. Clause 39 provides the Minister for the Cabinet Office and the Secretary of State with a power to investigate the exercise by a contracting authority of relevant functions relating to public procurement. This essentially puts the existing mystery shopper service on a statutory footing. On the face of it, it seems strange that the clause makes provision for the Minister to carry out the investigations and does not allocate any powers to the Minister to delegate. I am sure that there are some very interesting drafting answers in the Minister’s file. How is this intended to operate? I am sure that while a number of Ministers could fit in the time to spearhead public procurement investigations, some may have less time and, possibly, not even have the skills.
The main purpose is to move an informal process and the Explanatory Notes state that the Bill,
“will make contracting authorities legally obliged to provide information on request”.
I would be grateful if the Minister could provide us with further details on this problem. I think that I have read through all the published mystery shopper documents and none has stated this to be a problem, so I wonder why it has emerged as one of the foundations in the Explanatory Notes. I would guess there have been some difficulties and I would be grateful if the Minister could tell us what they have been and whether particular departments, agencies or authorities have been at fault.
The Explanatory Notes state:
“Ministers and Government departments will continue to comply with the current Mystery Shopper scheme as a matter of interdepartmental co-operation”.
Does this mean that there will be an exclusion when they look into each other’s departments and, therefore, this will be done without the statutory obligation to provide information in a timely fashion?
As this seems to relate to matters about how the investigations are conducted, our amendment seems eminently sensible. It simply asks for more transparency around the investigation process and asks for details to be published including the focus, findings and evidence of the investigation. Naturally, an exception is made for commercially confidential information and is a means to probe the entire clause and some of the details that we think are missing about how these investigations will be carried out in an effective and timely manner.
Finally, in Amendment 35V, we consider the exercise of Ministers’ time to be so valuable and their insights to be so useful that we suggest that details of the investigation should be published including the focus, findings and evidence considered. Commercially confidential evidence is, naturally, excluded from this. I beg to move.
Lord Popat (Con)
I am pleased that the noble Lord, Lord Mendelsohn, welcomes the mystery shopper service. It plays a very important role, and I am glad for his support for publishing the results of investigations in the interests of transparency. I am sure that noble Lords will be reassured to know that the Crown Commercial Service already regularly publishes results of these investigations. Our published results normally cover the focus of the investigations, the findings and, critically, the action agreed by the contracting authority to rectify the issues found. We also highlight where a contracting authority has refused to accept our recommendations.
Publication of results is an important feature of the service, as it enables the Government to highlight poor practice and the advice given to rectify it, from which other authorities can learn. It also provides a way of naming and shaming public bodies which do not accept recommendations. When appropriate, it can also be used to name large suppliers who do not pay their small business subcontractors promptly in public sector supply chains. In addition, annual reports are published which highlight key themes and advice, including the results of proactive public procurement spot checks. These findings have concluded that there remain issues relating to excessive qualification requirements being demanded by authorities in assessing financial strength, poor use of pre-qualification questionnaires and poor payment practices. These publications are broadcast by Twitter and potentially reach up to 4 million people.
Publishing more information does not fit with our aim of publishing brief, user-friendly reports, appropriate to the issue being investigated. Also, very often the documents we look at, such as tender documents and pre-qualification questionnaires, are already publicly available on authorities’ websites. Increasingly, this type of information will be available through links from Contracts Finder. Additionally, a key element of mystery shopper is its agility. The team can act speedily to raise concerns and resolve issues. It would be wasteful to bog them down by obliging them to publish the evidence considered and to discuss with authorities whether certain documents or information are commercially sensitive.
The proposed amendment would restrict the Minister to publishing specific details of each case. As the clause stands, the Minister can continue to publish reports of investigations in a flexible and user-friendly way, while respecting commercial confidentiality.
The noble Lord, Lord Mendelsohn, also asked how often authorities failed to comply with a mystery shopper investigation. In the last six months alone there have been 15 instances during investigations of referrals and spot checks where we have been unable to obtain any responses or get hold of documents. These new powers would have helped us get answers in all of these cases. Co-operation between departments is no reassurance to the public. Ministers are not to be legally bound by mystery shopper powers, just like other authorities.
The point of the clause is to enable the Minister for the Cabinet Office operating through the mystery shopper service to enforce demands for information and assistance for the courts. It would not be feasible or realistic for the Minister to bring legal proceedings against another Minister or government department. I hope that I have explained to my noble friend—the noble Lord—why we feel this amendment is not feasible. I will be happy to write to him. I hope that he will withdraw the amendment if he has found my explanation reasonably acceptable.
Lord Mendelsohn
My Lords, I am grateful to the Minister for describing me as his friend—perhaps mistakenly. I hope that my charm offensive has at least achieved some results in this Grand Committee.
I am also grateful for his explanation and for the clarification. I wish to stress that we believe that the scheme—the initiative—is good and we are pleased to see added strength given to it. I am also very pleased to see the noble Lord, Lord Young of Graffham, nodding vociferously in the background as this is something on his radar and I am sure will continue to be a lever that he will pull and push with great force to try to ensure that it is delivering for small business.
I have one observation on the mystery shopper issue. I noted that the Crown Commercial Service always responds quickly to these measures on the outcome of a case and recommendations. I hope that that sense of speed will be carried across government to make sure of that. In light of the Minister giving more detail in writing so that our support can be further enhanced, I beg leave to withdraw the amendment.
“(7) The Secretary of State shall make arrangements for a review of the impact and appropriateness of the reduction of the age threshold for childcare provision in a school setting in terms of—
(a) contribution to child development,(b) suitability of facilities and accommodation, and(c) maintenance of child protection standards.(8) The Secretary of State shall lay a report of the findings of the review mentioned in subsection (7) before each House of Parliament within 18 months of section 64 coming into force.”
Baroness Jones of Whitchurch (Lab)
My Lords, this amendment seeks to explore in more detail with the Government their plans to extend childcare provision for two year-olds going into schools. Clearly, we all support the principle of increasing childcare places for two year-olds but we would like more reassurance on the practicalities and appropriateness of very young children being cared for on school premises.
First, is this practical? The Government’s Childcare and Early Years Providers Survey shows that more than 90% of two year-olds who receive 15 hours of free early years funding are provided for by the private, voluntary or independent sectors. When this issue was debated in the Commons, the Minister confirmed that, although it was estimated that, by the end of the academic year, around 80,000 two year-olds would benefit from the expansion of free childcare, it was not known how many of these additional places would be in schools rather than the private or voluntary sector. Meanwhile, we know the truth that there is a massive squeeze on primary school places because of expanded school rolls, so space is at an absolute premium. Indeed, recent reports show that there is a 10% shortfall in available places for the upcoming primary intake, and the number of infants in classes of more than 30 increased by 200% since the last election. It is hard to imagine that the Government’s proposals are going to make a big difference to the number of two year-olds able to be accommodated in schools.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I thank the noble Baroness, Lady Jones, for her amendment in relation to Clause 72 and I am delighted to be able to speak about this measure, which will reduce the bureaucratic burden on schools.
Amendment 35AA would lead to a review of the impact and appropriateness of the changes resulting from Clause 72. The intention, as I read it, is that it would be an additional safety net. While I understand these concerns, I would like to reassure the noble Baroness that some 300 schools are already providing high-quality education for two year-olds. We believe that the evidence is clear that primaries running nurseries employ higher-quality staff and it is clear that that results in better outcomes for pupils. It results in better transition for pupils and enables the primary schools to get to know the parents at a younger stage in the child’s development. High-quality checks and balances are already in place. We therefore believe this amendment is unnecessary.
Like any other provider of early years childcare, schools must adhere to the standards set out in the EYFS framework. This is the case for schools that already accept two year-olds and will continue to be the case once the clause comes into force. The framework clearly sets out requirements and standards for learning and development, safety and well-being of children and the appropriateness of accommodation—all the issues, in fact, that this amendment seeks to cover. We have seen how this is working in practice. We ran a demonstration project with 50 schools that take two year-olds. That showed how schools, just like nurseries, carefully manage their provision for two year-olds alongside other nursery-age children—for example, having separate parental access arrangements, accommodation and play areas. What these schools have shown is that some mixing of two year-olds with three and four year-olds has benefits to both year groups, as long as it is managed appropriately. This provision is not forcing schools to do this. There are no targets for the numbers, but we want to make it bureaucratically easier. Schools are already held to account by Ofsted for delivering age-appropriate, EYFS-compliant provision.
As I said, schools are, in fact, already doing a very good job. Of the 294 schools that were accepting funded two year-olds in January 2014, 81% were rated good or outstanding by Ofsted, as of August 2014. That is the same figure for primary schools overall and compares well with other early years providers, 80% of which were rated good or outstanding.
Clause 72 will not introduce something new. Rather, it will just remove the bureaucratic burden of separate registration for two year-olds while keeping the rigour of Ofsted inspections—holding schools to account against the same standards as they currently are. Since Ofsted’s recent introduction of a separate early years judgment for schools, the ability of a school to provide quality early education will be assessed very clearly against these standards with a discrete judgment and wording. This is why we believe that we already have the systems in place to continue to ensure high-quality provision and the safety and well-being of children, including two year-olds, in schools, without the need for this separate review.
I hope that the noble Baroness has found my explanation reassuring and, on this basis, will withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I thank the Minister for his response. We understand the advantages of removing the bureaucratic burden of having to register separately. We were trying to extend the debate beyond that into some of the other consequences of it. From listening to what the noble Lord has said, he is really implying that, although that bureaucratic burden might well be reduced, they are therefore not expecting a huge expansion of these places, which was my challenge to him. How many extra school places are to be created by this measure? It might reduce the bureaucracy, but it is not going to facilitate a great swathe of extra places. Given that, my challenge to him was that all of the available spaces were being used by the expanded need to fill primary school places.
I understand the need for the initial reduction. We think this situation needs to be kept under control and under review, but I think that will be an ongoing process. At the moment, I am very happy to withdraw the amendment.
“Staff to child ratios: Ofsted-registered non-domestic childminder
(1) This section applies to Ofsted-registered, non-domestic childcare settings.
(2) For children aged under two—
(a) the ratio of staff to children must be no less than one to three;(b) at least one member of staff must hold a full and relevant level 3 qualification, and must be suitably experienced in working with children under two;(c) at least half of all other members of staff must hold a full and relevant level 2 qualification;(d) at least half of all members of staff must have received training in care for babies; and(e) where there is a dedicated area solely for children under two years old, the member of staff in charge of that area must, in the judgement of their employer, have suitable experience of working with children under two years old.(3) For children between the ages of two and three—
(a) the ratio of staff to children must be no less than one to four;(b) at least one member of staff must hold a full and relevant level 3 qualification; and(c) at least half of all other members of staff must hold a full and relevant level 2 qualification.(4) Where there is registered early years provision, which operates between 8 am and 4 pm, and a member of staff with Qualified Teacher Status, Early Years Professional Status or other full and relevant level 6 qualification is working directly with the children, for children aged three and over—
(a) the ratio of staff to children must be no less than one to 13; and(b) at least one other member of staff must hold a full and relevant level 3 qualification.(5) Where there is registered early years provision, which operates outside the hours of 8 am and 4 pm, and between the hours of 8 am and 4 pm where a member of staff with Qualified Teacher Status, Early Years Professional Status or other full and relevant level 6 qualification is not working directly with the children, for children aged three and over—
(a) the ratio of staff to children must be no less than one to eight;(b) at least one member of staff must hold a full and relevant level 3 qualification; and(c) at least half of all other staff must hold a full and relevant level 2 qualification.(6) In independent schools where—
(a) a member of staff with Qualified Teacher Status, Early Years Professional Status or other full and relevant level 6 qualification;(b) an instructor; or(c) a suitably qualified overseas-trained teacher is working directly with the children, for children aged three and over—(i) for classes where the majority of children will reach the age of five or older within the school year, the ratio of staff to children must be no less than one to 30;(ii) for all other early years classes the ratio of staff to children must be no less than one to 13; and(iii) at least one other member of staff must hold a full and relevant level 3 qualification.(7) In independent schools where there is—
(a) no member of staff with Qualified Teacher Status, Early Years Professional Status or other full and relevant level 6 qualification;(b) no instructor; or(c) no suitably qualified overseas-trained teacher, working directly with the children, for children aged three and over— (i) the ratio of staff to children in early years classes must be no less than one to eight;(ii) at least one member of staff must hold a full and relevant level 3 qualification; and(iii) at least half of all other members of staff must hold a full and relevant level 2 qualification.(8) In maintained nursery schools and nursery classes in maintained schools (except reception classes)—
(a) the ratio of staff to children must be no less than one to 13;(b) at least one member of staff must be a school teacher as defined by section 122(3) of the Education Act 2002 (power to prescribe pay and conditions) and Schedule 2 to the Education (School Teachers’ Qualifications) (England) Regulations 2003 (qualified teacher status requirements); and(c) at least one other member of staff must hold a full and relevant level 3 qualification.(9) The Secretary of State may make provision in statutory guidance to—
(a) define qualifications as “full and relevant”; and(b) define “suitable experience” for those working with children under two.(10) If HM Chief Inspector of Education, Children’s Services and Skills is concerned about the quality of provision or the safety and wellbeing of children in a setting, he may impose different ratios.”
Baroness Jones of Whitchurch
My Lords, Amendments 35Y and 35Z place in the Bill the current permitted staff:child ratios for childminders and nurseries. We believe that these amendments are necessary because of this Government’s public statements and attempts in the past to increase the ratios. This would be all too easy, as the current ratios are in regulations that can be changed by the Secretary of State. We are therefore keen to provide the necessary reassurance and guarantees to parents and professionals alike that the current ratios are safeguarded.
When it was proposed to change the ratios there was a massive outcry from across the sector. It was felt that this move would compromise quality and put children’s lives at risk. As a result, the Government backed down, but there is a real concern that, in a drive to increase the supply of early years places, the Government might revisit their original plan. We believe that the current ratios have stood the test of time in balancing the quality of provision with the costs to providers and, therefore, parents. We are all concerned about the rising cost of childcare in this country, which continues to be a barrier to parents returning to work and a major source of family poverty. The Government’s proposals to offer 15 hours of free childcare and our own proposals to expand free childcare for three and four year-olds from 15 to 25 hours per week for working parents are beginning to address the cost of childcare. However, it is crucial that, in the bid to expand childcare provision, quality is maintained and improved.
Professor Nutbrown, who advised the Government on early years provision, has made it clear that she would not support an increase in the ratios. She quite rightly made it clear that good-quality provision is directly related to the qualifications and training of the staff involved, as well as their capacity to relate to the children on an individual basis. This is crucial to the well-being and development of young children. Our proposals would ensure that a single childminder could care for up to six children aged eight, including a maximum of one baby under 12 months and another two children under the age of five. By anyone’s imagination, that would be quite a workload and it would be a challenge to provide appropriate care across the age groups. For nurseries, there would be one member of staff for every three children under two, one member of staff for every four children aged two or three, and one member of staff for every eight children over the age of three. We would also set out in regulations the minimum qualifications for these staff members. Again, these ratios as they stand sound fairly challenging.
These ratios are not just necessary to support the crucial period of early years development, with all the complexities that we were debating in the Chamber last week; they are also necessary to provide safeguarding and protection for vulnerable children. We are all saddened when we hear of unnecessary deaths when children are in the care of others. It can happen in an instant—one child wanders off or puts something in their mouth without being observed. Nursery staff already work under considerable pressure, and we should not be tempted to add to it. We believe that it is necessary to protect the current ratios and that putting them in primary legislation will provide the guarantee that, if any changes are proposed in the future, they will be subject to full parliamentary scrutiny and debate. I beg to move.
Lord Nash
My Lords, I thank the noble Baroness for her Amendments 35Y and 35Z relating to staff:child ratios.
The provisions in the Bill are about opening up new business opportunities for childminders by allowing them to work on non-domestic premises for up to half their time. This will be welcomed by both childminders and parents. For example, small rural schools may welcome the additional flexibility of bringing in a childminder to run a small after-school club, providing a new and valuable service for working parents. We are not trying to change the fundamental nature of childminding; we are simply giving childminders more flexibility in how they operate their business.
The Government consider it right that all registered early years childminders should meet the same early years foundation stage framework requirements around child development, welfare and well-being, including ratio and qualification requirements , whether they are working on domestic or non-domestic premises. The safety of children is paramount. The English childcare system has some of the highest adult:child ratio requirements in the world. I can tell the noble Baroness that we have no plans to amend the ratios. We think that the current ratio for childminders of 1:6 is right and this is already set out in the early years foundation stage statutory framework, made under powers in the Childcare Act 2006.
These amendments seek to enshrine those ratios and minimum qualifications in primary legislation. The Government consider secondary legislation to be the right place for this. Other ratios, relating to welfare requirements, are also set in secondary legislation and this allows the flexibility to respond to changing circumstances if necessary.
On the matter of defining qualifications and “suitable experience” for those working with children under two, I assure the noble Baroness that existing regulation-making powers already allow terms such as “full and relevant” and “suitable experience” to be defined. There is no need for further legislation on this matter.
The Government are committed to ensuring that childcare places remain of the highest quality, as these have lasting benefits for children. We believe that continuing to ensure that childminders and other providers of childcare meet standards set out in the early years foundation stage is the best way of doing this. I hope that the noble Baroness has been reassured by my response and will be content to withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I am grateful to the noble Lord for his response. He said that there were no plans to amend the ratios at the moment and I am sure that that is the case. However, we were doing some future planning, thinking about what might happen in the future, and trying to ensure that there were further guarantees going forward.
The Minister talked about the advantage of the provision being in secondary legislation as allowing more flexibility in changing circumstances in future. That is precisely our concern—that in future, if there is a need for changing circumstances of the kind that I addressed in my opening remarks, such as the need to increase places at short notice for three year-olds or four year-olds, this would be exactly the sort of measure that the Government might bring back into play, given that they have considered it in the past. We believe that there is still merit in having this in primary legislation, if only because, if there were any suggestions of change being necessary, it would enable proper parliamentary scrutiny to take place so that it could not be done simply by the Secretary of State. This may be an issue to which we return. For the time being, I beg leave to withdraw the amendment.
“(2) In section 118 of the Education and Inspections Act 2006 (functions of the Chief Inspector), after subsection (1)(d) insert—
“(e) the quality and appropriateness of the facilities and premises used by registered providers of early years childcare.””
Baroness Jones of Whitchurch
My Lords, this amendment follows on from our earlier amendment on the proposed expansion of childcare places in schools. At its heart is a desire to ensure that all premises where childcare is provided are of an appropriate standard. We remain concerned that the proposed changes allow large childcare providers to register an appropriate facility in one place and an inappropriate facility elsewhere. This might come to light only when an Ofsted inspection takes place, but it might also be missed by Ofsted, as it would not have an obligation to visit every site. Our amendment would give the Chief Inspector of Schools a wider duty to set down the quality and range of facilities for early years providers that would be judged appropriate.
While we understand the desire to reduce regulation on business, we also feel that it is crucial that the quality of childcare facilities is not compromised. I am sure that the Minister would agree that children’s safety should be paramount, but there remains a danger that the registration of multiple sites could lead to fewer individual inspections. When this was discussed in the Commons, the Minister, Matthew Hancock, made it clear that Ofsted would use its discretion on which premises to inspect, using a risk-based model. But however you look at this, it seems to be leading to fewer individual inspections. We are concerned that standards, rather than improving, will, in fact, go down. Our amendment to require Ofsted to lay down some minimum standards goes some way to addressing this problem. I hope that the Minister can agree that this is a sensible way forward and leaves in place sensible safeguards.
Lord Nash
My Lords, I thank the noble Baronesses, Lady Jones and Lady King, for their amendment in relation to Clause 74, and I am delighted to be able to speak about this measure, which will reduce the bureaucratic and administrative burden on childcare providers.
The amendment would place an additional and specific duty on Her Majesty’s chief inspector to keep the Secretary of State for Education informed about the quality and appropriateness of the facilities and premises used by registered providers of early years childcare. The statutory framework for the early years foundation stage is mandatory for all early years providers, including childminders, and already provides for the safety and suitability of premises, environment and equipment. The EYFS is clear that providers must ensure that their premises, including overall floor space and outdoor spaces, are fit for purpose and suitable for the age of the children cared for, and the activities provided, on the premises. Furthermore, the EYFS is clear that providers must comply with the requirements of health and safety legislation, including fire safety and hygiene. Ofsted already inspects all early years providers against the requirements of the EYFS and will continue to do so.
To ensure the safety of children, childcare providers will still be required to obtain approval from Ofsted before they can operate from new or additional settings. Furthermore, Ofsted will continue to inspect all Ofsted-registered early years settings and carry out sample inspections of later years settings, as it does now. However, on adding additional premises to an existing registration, Ofsted can use a risk-based approach to decide whether they need to visit all premises before an Ofsted-registered provider can operate from them. For example, where an outstanding provider is acquiring existing childcare premises which are already registered as an early years setting, Ofsted may decide it is not necessary to visit those premises again until the next inspection.
More generally, if Ofsted receives a complaint or has concerns about the quality and appropriateness of the facilities and premises of any of the settings which it regulates, it has the power to take immediate action and can inspect, investigate and suspend settings where necessary. Section 118 of the Education and Inspections Act 2006, which sets out the functions of the chief inspector, including functions relating to early years provision, already places a duty on the chief inspector to inform the Secretary of State of matters connected with activities within his remit, including quality and standards.
Furthermore, if requested to do so by the Secretary of State, the chief inspector must provide the Secretary of State with information or advice on such matters relating to activities within the chief inspector’s remit as specified in the request. The chief inspector can also give advice on any matter within his remit, including advice relating to a particular establishment, institution or agency. Section 118 is wider ranging than early years functions and it would not be appropriate, therefore, to include such a specific or prescriptive measure about early years premises and facilities. However, as part of his annual report, the chief inspector can also include information on the quality and appropriateness of the facilities and premises where he considers it appropriate to do so.
For these reasons, I do not believe there is a case for placing an additional or specific duty on the chief inspector. I hope that the noble Lady has found my explanation reassuring and, on this basis, will withdraw the amendment.
Baroness Jones of Whitchurch
I thank the Minister for that response. I was with him when he started because I thought he said that what is in our amendment already happens, in which case I would have been very pleased to withdraw it. However, as he went on he began to say that, although this was something that was within the chief inspector’s potential functions, it was not something that was required. I would be grateful if he would clarify what exactly, at the current time, the chief inspector’s responsibilities are. I am not going to argue about whether we have put the amendment in the right place—we may well have put it in the wrong place—but is it part of his current functions to advise on the quality and appropriateness of the facilities and premises used by registered providers? If it is, I will be happy to withdraw the amendment.
Lord Nash
I hope that I can clarify the situation. We are talking about adding additional premises to an existing provider. Of course, these might be premises that have already been used for such provision, or it will be pretty obvious—Ofsted can tell from the information it has—that a provider will be suitable because it is of a very high quality and Ofsted does not need to visit them. Obviously, if it is a new provider or premises which have never previously been used for the purpose, I suspect that Ofsted would want to visit them.
Baroness Jones of Whitchurch
I can see that this might be something that takes a longer discussion, which we may have outside this Room. I was not arguing with what the Minister said, I was just asking whether the more general duty was already on the shoulders of the chief inspector. I am not sure that he clarified that, but I am very happy to have this discussion elsewhere.
Baroness Jones of Whitchurch
In that case, I am very happy to withdraw the amendment.
“Information sharing for contacting new families
(1) NHS trusts should make arrangements to share with local authorities’ records of live births to parents resident in their area, to be used by the local authority for the purposes of identifying and contacting new families through children’s centres and any other early years outreach services it may operate.
(2) The Secretary of State must, within a period of six months of the passing of this Act, bring forward regulations placing consequential requirements on trusts and local authorities in exercising their duty under subsection (1) including, but not limited to—
(a) the format of arrangements made;(b) the safeguarding of information;(c) the circumstances in which it would not be appropriate for a trust to provide information to local authorities;(d) the regularity of data transfers;(e) timescales within which a local authority must contact new families made known to it; and(f) any further requirements the Secretary of State deems necessary.”
Baroness Jones of Whitchurch
My Lords, one of the lessons we are taking from the increasing body of evidence on early years intervention is that you have to start early. Traditionally, it has been seen that preschool and nursery care was key, but we now understand much more about the situation. The way a child’s brain develops and its physical and emotional development begins to be shaped from the moment of birth and there is a crucial window between the ages of nought and three where development sets up a child for life.
This is why the previous Government set up the Sure Start programme. The aim was to provide a one-stop shop for families and young children to access support and services. But, of course, the key to getting new young parents through the door is to make contact with them and encourage their participation. That is why we proposed in the Children and Families Bill that greater opportunities to register births at children’s centres would provide an excellent way to make the first introductions.
Our amendment concerns one aspect of data sharing: sharing information about live births. The amendment would require NHS trusts to share with local authorities details of live births to parents resident in their areas. We believe that this is an important requirement to provide greater safeguards for vulnerable babies as well as ensuring that local authorities can plan and provide appropriate family services in their areas. They need accurate information on the number of live births as well as the individual details to ensure that the services are targeted effectively. This would also enable children’s centres to improve their outreach work with new families who have not been in contact with them. Arguably, these are the families who are hardest to reach and most in need of support.
I understand that the national picture on this remains patchy. Some health trusts are willing to share this information while others have concerns about confidentiality. We need to address this reluctance to share this crucial information and our amendment provides the impetus to do this.
Obviously, it would be necessary to provide more detailed advice about the amount of detail to be provided and the legitimate uses to which it can be put, and it would clearly be necessary to ensure that the information did not fall into the wrong hands. However, this is a challenge about data sharing that the Government face in numerous aspects of their work. It has been overcome elsewhere and it can be overcome here. So I hope that the Minister can agree to take our amendment on board, recognising the great advantages for child safety and child development that would flow from it.
Also, when we raised these issues during the Children and Families Bill, it was reported that the department was already considering how best to improve this situation. The Minister subsequently wrote to update us on the work of Jean Gross’s task-and-finish group, which was exploring how to overcome these barriers. However, despite welcoming her report, it is not clear whether anything has really changed. There still appears to be reluctance on the part of health trusts and local authorities to facilitate this exchange of information. I would like to ask the Minister for an update from the department on its follow-up to the Gross report and what evidence it has of anything changing on the ground. Otherwise, I hope that he can support our amendment. I beg to move.
Lord Nash
My Lords, I am sympathetic to the aims of these amendments. It is essential that health services and councils collaborate effectively and share information to do that. But we do not think it is necessary to put new requirements in primary legislation. There are no legal impediments to NHS trusts sharing live birth data with local authorities. They are not confidential data. Birth registration data are already publicly available, and local areas should and are using partnership agreements or protocols to make data sharing as effective as possible.
The statuary guidance for Sure Start children’s centres is clear that health services and local authorities should share live birth data with children’s centres regularly. Children’s centres are successfully reaching out to those families most in need, with 90% of eligible families registered. But we are not complacent. We will continue to encourage NHS trusts and local authorities to review and consider their local protocols and practice on sharing information. The Government’s response in November 2013 welcomed the Jean Gross group report on information sharing in the foundation years and our strategic partner, 4Children, is disseminating best practice information. Since we debated similar matters during the passage of the Children and Families Act 2014, we have also commissioned the Royal College of Paediatrics and Child Health to develop training materials to support health professionals and early years practitioners with information sharing. I hope that this explanation reassures the noble Baroness and that, on that basis, she will withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I thank the Minister for his response. As he said, there is no legal impediment. That is true; indeed, in some areas this data-sharing is already happening. However, the very fact that the department needed a task-and-finish group to look at how this could be boosted is a sign that all is not right in this regard. When the Minister opened his comments, he said that he had some sympathy with our amendment. All it is trying to do is to boost the activity that ought to take place and, as he rightly said, is already enabled to take place within the legislation. It is not happening to the degree that we would like at the moment. Dissemination of good practice is obviously to be welcomed but it appears that there is more to be done on this issue, which feels as if it needs a kick-start. That is really what we were attempting to do in our amendment. I am not intending to pursue it at this stage but there is probably more still that the Government could be doing to encourage live data sharing, on the basis that we have discussed. I look forward to hearing further details of what is being done and the increase that is therefore taking place at a local level of this activity. I beg leave to withdraw the amendment.
“Proposals relating to three and four year olds
The Chancellor of the Exchequer shall within three months of the passing of this Act lay a report before the House of Commons setting out—(a) an assessment of the benefits of top-up payments to people responsible for a child or children aged three to four years since the Childcare Payments Act 2014 came into force; and(b) an assessment of those benefits in addition to the likely benefits of funding 25 hours per week free childcare for working persons responsible for a child or children aged three and four.”
Baroness Jones of Whitchurch
My Lords, Amendment 35AD has been tabled in my name and that of my noble friend Lady King of Bow. This amendment requires the Chancellor to assess the benefits of top-up payments to those with parental responsibility for three and four year-olds. It then requires the Chancellor to compare the likely benefit to those same families of Labour’s policy of funding 25 hours per week of free childcare. Figures from the House of Commons Library show that Labour’s policy will benefit an estimated 436,000 three and four year-olds. In hard cash terms, this means a benefit of more than £2,500 per family who qualify, in addition to top-up payments.
The purpose of the amendment, then, is to get the Treasury to carry out a review of the likely benefits to these families. After all, at a time when incomes of hard-working families are being remorselessly squeezed, do the Government not owe it to those families with three and four year-olds to consider which policies will help them most? Labour’s policy is a fully costed spending commitment, which will be paid for by an increase in the bank levy. We will also introduce a primary childcare guarantee to help parents manage the logistical nightmare of before and after-school care. Again, this is in addition to the provisions made by the Bill.
One of the purposes of this amendment is to highlight the varying benefits to parents of different approaches to childcare provision. The Government’s approach, as the Minister will be very well aware, is demand-led. This means that subsidies such as the Government’s tax-free childcare, where cash support goes to parents and then on to the childcare providers, often leads to those providers simply artificially inflating childcare prices. Instead, the alternative approach of our party is modelled on supply-led government funding for childcare. For example, this would include measures such as extending free entitlement, where support goes directly to childcare providers. This approach has been supported by think tanks such as the Institute for Public Policy Research and the Resolution Foundation. Both these organisations presented evidence, based on international examples, that supply-led models are far more effective at supporting hard-pressed parents than demand-led subsidies.
If the Government will not think again immediately on this issue but are genuine about the interests of hard-pressed working families, they will surely back this amendment to conduct a Treasury review and ensure that we can all share in the facts of the situation. I beg to move.
Lord Nash
My Lords, I am grateful to the noble Baronesses, Lady Jones and Lady King, for their amendment and for the opportunity to debate the important matter of the Childcare Payments Act. As noble Lords will be aware, this Act introduces the tax-free childcare scheme announced by the Chancellor of the Exchequer in his 2013 Budget. Once it is in place, the Government will meet 20% of eligible working families’ childcare costs up to an annual maximum of £2,000 for each child. That is the equivalent of basic-rate tax relief on childcare costs of up to £10,000 per child.
I am aware of the Labour Party’s policy to increase the 15 hours of childcare to 25 hours. The noble Baroness said that this is fully costed and will be paid for by the bank levy. That is interesting, as that would make it the 12th time that the Labour Party has spent this money and therefore it would be totally unfunded. It has also costed the increase at £800 million. However, we believe that it would cost £1.6 billion, and that is on the basis that this extra increase in demand would not put prices up, which providers tell us it would. Indeed, they say that they would struggle to provide these places. We have increased the number of places by 100,000, which is a remarkable achievement, but we do not think that it would be right to put this pressure on the system at this time. It is a question of balance between parental care and childcare.
The amendment concerns the impact of the Act within the context of the Government’s wider track record. It would require the Chancellor of the Exchequer to review its effectiveness and publish his conclusions. The 2014 Act received Royal Assent on 17 December and we now move to the important phase of implementation. I understand the noble Baroness’s desire to debate this matter here, given that the Act was a money Bill with little opportunity for such debate, and I hope that I will be able to reassure her in relation to the amendment.
Amendment 35AD would require the Chancellor of the Exchequer to publish, within three months of the passing of this Bill, an assessment of the benefits of the scheme under the Childcare Payments Act to parents of three and four year-old children. It would also require those benefits to be assessed in addition to the likely benefits of funding 25 hours of free childcare.
This Government fully understand the importance of high-quality early education for this age group. That is why we funded an increase from 12.5 to 15 hours a week of early education for three and four year-olds. However, it is important to recognise that the cost of childcare is not just an issue for children under five but also an issue for school-age children. For many working families, the high costs of childcare make this one of the largest parts of the household budget. This Government believe that there is a powerful case for improving access to childcare throughout childhood to ensure that parents are supported to work if they choose to do so.
The introduction of the new scheme provided for in the Childcare Payments Act for children up to the age of 12 will build upon the £5 billion per year that the Government already spend on early education and childcare. It will help many more parents to meet these costs, including those such as the self-employed, who cannot access support under the employer-supported childcare scheme which it will in time replace.
The Government have already made a commitment to review the impact of the new scheme two years after its full implementation. This was set out clearly in the impact assessment published last year. The scheme will become available only from the autumn of this year, and it is important to allow time for the measures to properly bed in before conducting a review. Therefore, no purpose would be served in carrying out a review so soon.
I hope that the noble Baroness will be reassured that the intention of her amendment is already being met without the need for further legislation. On that basis, I ask her to withdraw it.
Baroness Jones of Whitchurch
I thank the noble Lord for his comments. Interestingly, the Institute for Fiscal Studies says that, of all the parties, our costings are the only ones that have been carefully and cautiously costed. Therefore, I think that we can dismiss the noble Lord’s rather wild, or alternative, calculations. As we know, the Government’s discredited calculations were widely commented on at the time they made them public, so I do not think that there is any credibility in that particular argument.
I welcome the fact that the noble Lord has said that there needs to be a review. We were interested in a review earlier than that two-year cut-off point, as he knows. This issue is crucial and it may well be that two years is too long to let the situation drag on. It is particularly crucial because, as he will again know, a lot of the private nurseries are refusing to take part in the Government’s free childcare offer. It was publicised quite recently by the National Day Nurseries Association that one in seven of England’s 18,000 nurseries are refusing to take part. There is a supply-side problem. On the Government’s figures 41,000 children eligible for the free scheme are yet to find a place.
We are all in favour of increasing childcare and we all have our different models for doing that. We believe that ours is more cost-effective and would be more effective than those proposed by the Government. Anything that invests in childcare is obviously to be welcomed, but, as I say, I believe that our scheme is better costed and would be more helpful to hardworking families in the longer term. I take note of the fact that there will be a review. We would have liked a review earlier, but I am sure that in the mean time there will be lots of public debate about this issue. If there is not an official review we will continue to tease out the issues that arise from the alternative policies. I therefore withdraw the amendment.
“Review of impact on childcare costs
The Chancellor of the Exchequer shall, three months after the passing of this Act, and every three years thereafter, review the impact of measures on the cost of childcare with particular reference to—(a) the effectiveness of the Childcare Payments Act 2014 on making childcare more affordable;(b) the average cost of childcare for parents in work, including the impact of other changes to the tax and benefits system and with reference to the trends in childcare costs since 2010; and(c) the impact of supply-led measures on the cost of childcare.”
Baroness Jones of Whitchurch
My Lords, I rise to speak to Amendment 35AE, tabled in my name and that of my noble friend Lady King of Bow. This amendment requires the Government to go further than review the benefits to families of the fully funded proposals set out by Labour for parents of three and four year-olds. This amendment requires the Chancellor to review the impact of childcare costs in the round.
Neutral observers might be forgiven for thinking the Government do not recognise the current crisis facing working parents with children. The figures, which have been widely quoted, are quite shocking. Since this Government came to power, real wages have stagnated or fallen, yet childcare costs have increased. They have increased by a staggering degree, spiralling by 30% since this Government came to power—five times faster than wages. There has been a childcare crunch. The number of early years childcare places available has fallen by 42,000 across England and vital support for childcare costs have been slashed, with some families losing up to £1,500 per year.
Our analysis of the latest figures from the independent Institute for Fiscal Studies, along with analysis by the House of Commons Library, shows that working families have been hardest hit by this Government’s tax and benefit changes, even taking account of the rise in the personal allowance. For example, a family with both parents in work will be more than £2,000 per year worse off by the time of the next election. Of course, these changes are in addition to the impact of the unprecedented fall in living standards in recent years, where wages have fallen in real terms, leaving working people a further £1,600 a year worse off on average since 2010.
On this side of the Committee, we think it is unacceptable that some of the most vulnerable families face this childcare crunch, hit with reduced support, fewer places and soaring costs. We believe the very least that the Government can do is to agree to this amendment, which simply requires the Treasury to review the impact of childcare costs, including the average cost of childcare for parents in work, taking into account the other changes to the tax and benefits systems. I beg to move.
Lord Nash
My Lords, I am grateful to the noble Baronesses, Lady Jones and Lady King, for Amendment 35AE, which is a companion to Amendment 35AD, which we have just considered. I thank the noble Baroness for her economics lesson but I will not take lessons from the Opposition on financial management, given the appalling state they left the public finances in when they left office nearly five years ago.
Amendment 35AE would require the Government to publish a triennial review of the impact of the Childcare Payments Act on the cost of childcare. I share the concern of the noble Baroness about the impact that high childcare costs have on working families, and for that reason the Government are making significant reforms to support the childcare sector to increase the supply of places. These are designed to ensure that any increase in demand for childcare will be matched by increased supply rather than increased costs. The latest figures show that there are around 100,000 more childcare places than in 2009. This is a remarkable achievement by the Government. In addition, we are making start-up grants of up to £2 million available to help people to set up new childcare businesses and to make up to 32,000 good and outstanding childminders automatically eligible for early education funding.
Baroness Jones of Whitchurch
I thank the noble Lord for those comments. Likewise, we on this side do not need any lessons on economics from him, given the fact that the Chancellor has failed to meet a number of targets that he has set himself, including failing to reduce the deficit. That is one of the reasons why hard-working families are suffering so badly currently.
The truth is that the Government’s figures simply do not add up. They suggested that families will receive £2,000 per family. That is not true. By the Government’s own admission, only 100,000 out of the 1.9 million families eligible for the scheme will receive the full amount—one in 20 families will be eligible for the scheme. The Government’s own impact assessment suggested that the average benefit to families will be far lower—at £600 a year. In addition, work by the Resolution Foundation indicates that 80% of the families that will receive benefit from top-up payments are in the top 40% of the income distribution. Even the remaining 20% will go to those in the middle distribution, so the whole payment system is being skewed to those who are not really in desperate need of these payments.
Nevertheless, we could spend the rest of the evening debating the economy. Given that it is fairly late I am prepared to withdraw the amendment, and I am sure that we will carry on debating these issues elsewhere.
“(2) Until section 85(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, in subsection (1)(b), “a fine” is to be read as “a fine not exceeding level 5 on the standard scale”.”
“Provision of comprehensive careers guidance
( ) The Secretary of State shall publish a report on the provision of comprehensive careers guidance which must include, but is not limited to, assessments on—
(a) the implementation and effectiveness of section 29 of the Education Act 2011 (careers guidance in schools in England),(b) the extent to which the National Careers Service’s provision of telephone and web-based support has been used by young people,(c) the feasibility and benefits of making the National Careers Service helpline accessible via Skype,(d) the feasibility and benefits of extending to young people the National Careers Service’s provision of face to face advice.”
Baroness Jones of Whitchurch
My Lords, this amendment seeks to address the continuing widespread concern about the operation of the school-based careers service introduced by this Government in 2012. Since then, there has been a chorus of criticism that the service is not delivering a quality product. Schools, voluntary organisations working with young people and the Education Select Committee have all added their criticisms, and these concerns have been reflected in numerous debates here in your Lordships’ House. I recently visited a number of schools that have been judged outstanding by Ofsted but where the careers advice and work experience opportunities are, quite frankly, poor. Meanwhile, while the Government continue to prevaricate, cohorts of young people are making poor choices about which subjects to study. They are failing to appreciate the range of training and apprenticeships on offer as an alternative to university. They are also failing to grasp the new enterprise and employment opportunities that might be on offer.
At the time when these changes were introduced by the Government, we raised a series of objections and amendments, which were opposed. Sadly, we have proved to be right. By not ring-fencing the funds given to schools for careers, the money has dissipated into other priorities. Many schools are now using unqualified teachers to provide careers advice, with the responsibility often added on to other roles. Their knowledge is often outdated and limited. There also remains a pressure, which is not appropriate for many young people, from their teachers to stay on in the sixth form and follow traditional academic routes.
Recently, in the Education Select Committee in the other place, a UNISON survey was quoted to show that 83% of schools no longer employed professional careers advisers or teachers, with the role often being picked up by teaching assistants and other support staff. This was echoed by the committee’s chair, Graham Stuart, who reported a UTC that was training its receptionist to be a careers adviser. That cannot be right. As we know, Ofsted has reported that 80% of schools are offering an inadequate careers service. Meanwhile, young people are missing out on personalised support and increasingly rely on family and friends to give them advice. The take-up of the formal online advice system continues to be patchy.
Children from disadvantaged backgrounds are particularly losing out. They do not necessarily have access to a social network of people in a variety of jobs and, often, their parents are not ambitious or encouraging enough to them. Good careers advice is a crucial component of social mobility, expanding pupils’ horizons and opening their eyes to a range of work possibilities. We believe that we have already wasted too much time allowing young people to be let down in this way. We need an urgent review of the provision and to make it mandatory for those giving advice to be trained and qualified. We need to ensure that young people get the personal face-to-face advice and mentoring that will help them make the right choices about their future qualifications and careers. We have waited quite long enough for the Government to act on the evidence before them, and we feel that the time is right to take action to put the service back on track. This is what our amendment seeks to achieve.
Lord Freeman (Con)
I very much agree with the thrust of what the noble Baroness has just outlined but I think that one needs to go further, which is why I am a very strong supporter of Part 6 of the Bill, on education evaluation. The provision of guidance is important but to do that, one needs further information about what young students completing their courses at school, and even university, go on to do. Education evaluation as set out in Part 6 admirably explains how further information can be gathered. Currently, the information gathered is on academic and employment results for those leaving school at 16.
I speak as chairman of a charity, with more than 200 schools dealing with this issue of further employment for those who may not have had the best of chances in life and may not have achieved, at least early on in their education, the necessary qualifications. What is needed is evaluation at a higher level, if they go on to higher education at a university or to employment, of what has then been the outcome for those students. That in turn will relate to the advice given to children and parents as to which schools and courses to follow. That is why I very much welcome and commend education evaluation as set out in the Bill, which broadens what already happens.
Lord Stoneham of Droxford
May I briefly say that I share the thoughts of the noble Lord, Lord Freeman, and can extend them from my business experience? I have very little experience to give on the education side but, as a recipient of skills and as an employer, I have strong views on the development of the careers service. There is widespread criticism of the careers service throughout the business community, which is deeply sad. This reflects the fact that we still have a long way to go in developing partnerships locally, between local businesses and schools. We must make sure that these services are provided not just for the local school but in partnerships, so that access to the services is wider than it is to school leavers, and that we put much more emphasis on the merits of technical education rather than academic prowess. The Government are looking at this area but they need to give it more attention. We will be looking at how the thinking develops as the Bill goes through the House.
Lord Nash
My Lords, I am grateful to the noble Baronesses, Lady Jones and Lady King, for this amendment and for raising the important matter of careers guidance. I hear what the noble Baroness says about not carrying on the economic batting backwards and forwards. I am sorry to hear it, because I was rather enjoying it, but I agree that, in the interests of time, we should stop. However, I must point out that she did say that the Chancellor had failed to reduce the deficit and, of course, it is a clear and unquestionable fact that this Government have substantially reduced the deficit we inherited from the previous Government. We are absolutely committed, also, to ensuring high-quality careers advice and I hope to reassure the noble Baroness that sufficient action is in train.
The Government commissioned Ofsted in 2012 to carry out a thematic review to examine the impact of the statutory duty on schools to secure independent careers guidance during its first year of operation. Ofsted’s report, published in September 2013, found that only one in five schools ensured that all students in years 9 to 11 received sufficient information to consider a wide breadth of career possibilities. This is not surprising. The guidance on careers that this Government took over was in a very poor state: virtually nobody had a good word to say about the Connexions service, including Alan Milburn. That is why we put the responsibility for providing good careers guidance on to schools.
This, however, is only a very recent development and it is not surprising that it has not immediately transformed provision. We have debated careers guidance on many occasions and there seems to be a perception among some noble Lords that we should hark back to some former golden age of careers guidance, which I certainly do not recognise. Careers guidance in schools has, in recent times, been poor and we have taken strong action to improve it. However, in response to the Ofsted findings, we took action, including publishing statutory and non-statutory guidance, strengthening our accountability framework and reshaping the role of the National Careers Service.
The new statutory guidance, effective from September last year, provides a clear framework for schools. It recognises that face-to-face guidance delivered by careers advisers is an important element of a varied programme of high-quality support, alongside other elements including employer contacts, work tasters, mentoring and online provision. Of course, we know that a number of commentators, including McKinsey, have said that active engagement with places of work is of far higher quality than face-to-face career guidance for most pupils.
Improvements to the National Careers Service website and helpline have made it more accessible through a range of digital channels, including Skype, and mobile phone applications. There is new content on the website written specifically for young people. Youth charities and young people are informing further developments. We have continued to listen to a number of respected contributors in this area, including the Gatsby Charitable Foundation and the Education Select Committee of this House. We have listened to schools, colleges, employers, parents and young people themselves. I pay generous tribute to my noble friend Lord Young for his invaluable work in this area. His report, Enterprise for All, has informed our thinking about the way forward. All have made it clear that many schools and colleges still require additional support, so, on 10 December last year, the Government announced the establishment of a new employer-led careers and enterprise company, chaired by Christine Hodgson, Chair of Capgemini UK, who has a strong track record of developing young talent.
Baroness Jones of Whitchurch
My Lords, I am grateful to the Minister and to the other noble Lords opposite who contributed to this debate. I accept what the Minister says: that there was no golden age in the past. Sadly, if anything, the situation has deteriorated since the Connexions service was abandoned. Many people would say that what we have now is worse than in the past, rather than an improvement on it. What concerns me about what the Minister said is his lack of urgency—that this new careers company, which is being set up, may or may not play a good role in disseminating good practice and that he hopes it succeeds. However, that will take a considerable time to have any impact and we have young people leaving now who are not getting the advice that they need. I very much echo the points made by noble Lords opposite that what we really need is good employers going into schools now, being encouraged to go in and giving work experience to young people. That really ought to be the way forward and is what is needed, but it is not always happening.
I should perhaps have said, too, that the education evaluation and destination data are absolutely crucial. I am very pleased that the Government have taken an initiative on this. We are also very supportive of having that destination data. We have some criticisms about whether they have the right model but at this point, anything is certainly better than nothing. The careers process, and how you then measure whether children have found the right career, work experience or courses for them, really ought to be a seamless, positive whole. It is not like that at the moment. Children are floundering around with little advice and those who most need it are the ones who do not appear to be getting it. It is a very sorry state. We may well come back to this issue but for the moment, I beg leave to withdraw the amendment.
House of Lords
(9 years, 10 months ago)
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Georgia
(9 years, 10 months ago)
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Lord Harries of Pentregarth
To ask Her Majesty’s Government what is their assessment of the report of the Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe on monitoring of trials of former officials and political figures under prosecution in Georgia following the change of government at the end of 2012.
Lord Wallace of Saltaire (LD)
My Lords, the Government welcome the report of the Office for Democratic Institutions and Human Rights—ODIHR—on the monitoring of trials of former officials and political figures in Georgia. Georgia has made significant progress on judicial and legal reform in the past few years, although, as is noted in the report, there are still many issues to address. Georgia should continue to implement its programme of reforms and to ensure that all prosecutions follow the rule of law and due process.
Lord Harries of Pentregarth (CB)
I thank the Minister for his reply, but does he not agree that what is revealed in the report is not just the occasional violation of criminal procedure but a systematic abuse of the criminal system against former officials and political figures connected with the previous Government? Will Her Majesty’s Government make it clear to the Government of Georgia that this is totally contrary to European standards and that it can only frustrate—and in the end block—their aspiration to join the European Union? Will they also further encourage the Office for Democratic Institutions and Human Rights to pay a return visit to Georgia, perhaps in a year or 18 months’ time, to see what progress has been made?
Lord Wallace of Saltaire
My Lords, I am not sure that I would use the term “systematic”, but clearly there have been a large number of weaknesses. I would emphasise that, as the report says, the ODIHR was invited to visit Georgia by the Georgian Government. It has made some very robust criticisms of the failings and weaknesses of the Georgian system, but the Georgians did invite it in, they have accepted the report, and now the question is how far the reforms will be pushed through. The European association agreements have political conditions attached, and we will be watching to see how those conditions are fulfilled by the Georgian Government.
Lord Anderson of Swansea (Lab)
My Lords, attitudes in Russia to the new President are well known. Given that closeness, are the Government concerned that he may be seeking, in his relations with the Opposition, to follow the example of President Putin? To what extent are we using our influence in other international fora to bring these abuses before them—for example, in the Council of Europe, which is the foremost human rights organisation in Europe?
Lord Wallace of Saltaire
My Lords, the Venice Commission and others are also engaged in discussions with the Georgian Government about human rights and judicial rights. The ODIHR report was absolutely about prosecutions of members of the former Government and the processes by which prosecutions are carried out, court procedures and so on. We are in very active dialogue with the Georgian Government, as are other EU ambassadors—and, of course, Georgia, through its association relationship with the European Union, has a constant dialogue with that and other international organisations.
Lord Alton of Liverpool (CB)
My Lords, given that this is a 116-page report, is my noble friend not right to use the term “systematic” when he describes the violations of human rights and the undermining of natural justice that is alleged within the context of the report? Will the Minister therefore look again at whether or not those violations should be classified as systematic? Will he also say whether British or EU diplomats are able to attend some of the trials of former officials to ensure that due process is conducted?
Lord Wallace of Saltaire
Yes, British officials are engaged in that sort of extremely active dialogue, and British officials have gone out to advise the Georgian Government. I stress the word “failings”. Georgia is a country in transition and has not yet entirely established what we regard as western European standards. I remember visiting Poland and Hungary in the mid-1990s, and they had not reached that stage yet either. We are doing all we can to make sure that Georgia follows the same path—but it is rather behind them.
Lord Cromwell (CB)
My Lords, I declare an interest in this matter, as listed in the register. Georgia, a friend to us, is in a geographic region of the world steeped in cronyism, political abuse of power and clan loyalty. It has made definite steps away from that in recent years and we need to help it on that journey. The OSCE was indeed invited in, as has been referred to, and has pointed up a number of very substantial shortcomings. My question is simply this: preaching is not enough; what practical steps are we taking—using the links, for example, between the United Kingdom organisations and Georgian associations of lawyers—to help the development of the legal sector in Georgia?
Lord Wallace of Saltaire
My Lords, a number of Georgian Ministers and officials visited Britain in late November for a dialogue—the Wardrop dialogue—chaired by the Minister for Europe. It included the Georgian ambassador-at-large for human rights. Therefore, we and other Governments are engaged in an active dialogue and we are offering all assistance that we can provide. Unfortunately, one of the factors that one has to be aware of in Georgia is that although we are deeply uneasy about what appear to be political prosecutions of members of the former Government, these are actually quite popular within Georgia itself, as far as one can see from public opinion.
Lord Hannay of Chiswick (CB)
My Lords, does the Minister recognise that there is a long and bad story in Georgia, and it needs help to get out of it? The present Government were voted into office because of the revulsion of Georgians at the treatment in jail of prisoners by the previous Government, many of whose members—and it is right that we should ensure this—are now being treated properly under the rule of law. But it is a long story and the country is under considerable pressure, like some others in the former Soviet Union, and it needs our help as well as a bit of chivvying.
Lord Wallace of Saltaire
My Lords, we are all aware of the very delicate circumstances in which Georgia has to operate, with two regions that have broken away and are under, effectively, a close relationship with Russia. We are also aware that it is unusual in that Mr Ivanishvili, the richest man in Georgia, has close but now unofficial relationships with the current Government. Georgia is a very fragile democracy and we are doing all we can to provide help.
Baroness Hooper (Con)
My Lords, can my noble friend confirm that the British Council still has a presence in Georgia? As I recollect, it was one of the first British institutions to be established after the opening up of that country. Is it still doing its valuable work?
Lord Wallace of Saltaire
I visited the British Council in Tbilisi two years ago. I cannot say absolutely that it is still there but I think it is. I see the noble and right reverend Lord, Lord Harries, nodding.
Education: Citizenship
(9 years, 10 months ago)
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Lord Phillips of Sudbury
To ask Her Majesty’s Government how they propose to enhance the amount and quality of citizenship education in order to increase the democratic participation and engagement of young citizens.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, citizenship is a compulsory subject in maintained secondary schools. The new programme of study ensures that teaching is directed towards how our country is governed rather than the more issues-based content that dominated the former programme of study. This will help prepare pupils to play a full and active part in society. We will continue to promote resources for schools, such as the democratic engagement resource, Rock Enrol!
Lord Phillips of Sudbury (LD)
I thank my noble friend for that reply, but does he not agree that engaging in today’s hyper-complex, democratically challenged society, particularly for less able pupils, requires an absolute minimum of knowledge and the will to engage? What does he think of the effect, by contrast, of 56% of our schools—all free schools and academies—not even having to teach citizenship; of the rest not being Ofsted-inspected, vis-à-vis citizenship education; and of the number of specialist teachers teaching citizenship for examinations and pupils taking it being in freefall?
Lord Nash
All academies and free schools are required to teach a broad and balanced curriculum, and we trust academies to teach citizenship and prepare their pupils for life in modern Britain. I am sure that my noble friend will be delighted to hear that under this Government the number of pupils taking the full course of GSCE citizenship has more than doubled.
Baroness Massey of Darwen (Lab)
Does the Minister agree that it is first important to define what we mean by “democracy”? Is he aware of programmes that begin in primary schools, such as UNICEF’s Rights Respecting Schools? I declare an interest as a trustee of UNICEF. These programmes encourage pupils to be aware of others’ and their own rights and responsibilities. Is he also aware that school councils, which are fundamental to this, are considered important and vital in encouraging citizenship?
Lord Nash
The noble Baroness is quite right that these programmes are excellent. We have established a group of citizenship experts to help advise schools on such programmes. They produce a comprehensive resource digest, which is online, to link them to organisations such as the Citizenship Foundation, Parliament, the UN and Debate Mate.
The Lord Bishop of Lichfield
My Lords, will the Minister join me in congratulating the young people highlighted by the I Will campaign, who have so ably demonstrated the impact that young people can have in transforming their own communities?
Lord Roberts of Llandudno (LD)
Does the Minister welcome the initiative of the organisation Bite the Ballot, of which I am proud to be the honorary president, in enthusing young people—not us, but the young themselves? On 5 February it has its national voters’ registration day, when it hopes to register a quarter of a million young people, so that they are able to vote in the coming general election.
Lord Grocott (Lab)
My Lords, on democratic participation, do we not in this House have a big advantage over young people coming on to the register? During our lifetimes, we have been able to participate in general elections on average once every three years and 10 months, whereas the upcoming generation, thanks to legislation by this Government, will be able to take part in a general election only once every five years. A simple decision that could be made to increase the possibility of democratic participation by young people would be to scrap these wretched five year fixed-term Parliaments.
Baroness Eaton (Con)
What are Her Majesty’s Government doing to improve the quality of financial education in schools?
Lord Nash
My Lords, for the first time, the national curriculum is making financial literacy a statutory part of citizenship education. Pupils learn the importance of budgeting, the sound management of money, credit and debt, and gain an understanding of different financial services and products. The curriculum in maths has been strengthened to enable pupils to make financial decisions and understand percentages. Moreover, we are promoting materials produced by the financial education charity PFEG, and by HMRC.
Baroness Howarth of Breckland (CB)
My Lords, at a time when we are seriously concerned about the radicalisation of young people in schools, and when we know that children are very concerned about what they are seeing on television, what work is being done with the Home Office to ensure that these issues are clearly covered in citizenship education in schools?
Lord Howarth of Newport (Lab)
My Lords, does the Minister agree that education for democracy should not merely be about the mechanics of the political and governmental system, but should permeate the curriculum extensively? For example, the study of literature should assist young people to discern whether language is being used with integrity and should illuminate the nature of responsible choice. Does the Minister also agree that good teachers understand this very well, but that teachers in all schools need the professional autonomy, encouragement and practical scope to use that understanding in their own way?
Lord Nash
I entirely agree with the noble Lord. The knowledge of citizenship is part of the core cultural capital that all students need in order to progress. The noble Lord, Lord Giddens, made a very good exposition about the difference between social mobility and relative social mobility in a debate last week. Under this Government, the number of pupils who are receiving this core cultural education has gone up by more than 60%, and I am delighted by the noble Lord’s support for the autonomy that we provide under the academies programme.
Employment: Internships
(9 years, 10 months ago)
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Lord Storey
To ask Her Majesty’s Government how they propose to increase internship opportunities.
Lord Popat (Con)
My Lords, the Government actively promote and encourage the creation of placements and internship opportunities. However, the key responsibility lies with businesses and education providers, who must work together to help students acquire the skills and knowledge that employers need. Placements, internships and work experience will be part of this.
Lord Storey (LD)
My Lords, I thank my noble friend for his reply. He might be interested to know that I tabled a Question for Written Answer to try to find out the number of interns working in Parliament as a whole, but we do not have that information. To be an intern costs hundreds and perhaps thousands of pounds. For example, it is almost impossible for someone living in the north of England to come and be an intern in Parliament. Have the Government been considering any plans to limit the time that someone can be intern without being paid or to ensure that interns are paid at least the minimum wage?
Lord Popat
My Lords, internships are often a very positive thing, particularly in competitive industries. When it comes to pay, we support and encourage employers to pay interns, and quite often we encourage them to pay the minimum wage. However, it is important that someone is given the chance to start in a job with a view to making a career, and sometimes interns are not paid.
Lord Mitchell (Lab)
My Lords, I declare my interest as chairman of a graduate recruitment company called Instant Impact. These days it is really critical for young people to have significant CVs which are padded out with jobs that they have done. It is therefore important that they have internships. However, those who get internships tend to be better connected and wealthier people who can do them without pay. I really think that the Government should reconsider whether there should be a minimum wage after four weeks. Would the Minister agree to this?
Lord Popat
My Lords, I agree with the noble Lord that interns play a very important role. When an internship is on their CV it becomes easier for a young person to find a job. What is important, as the noble Lord says, is that everyone should be treated fairly and in a transparent way. I think it is important that companies use services such as the Government’s Graduate Talent Pool to find interns rather than simply accept the children of friends or family or people they know.
Lord Winston (Lab)
Is the Minister aware that there is a very successful internship programme which is funded within the Palace of Westminster? It is run by the Parliamentary Office of Science and Technology, which encourages suitable students to come in and spend some time reporting on the POSTnotes, which we all use in Parliament. Does the Minister not consider that this might well be extended to other areas of parliamentary activity, because it is an extremely successful system which encourages young scientists to think about such things as policy and ethics?
Lord Popat
My Lords, we find a lot of demand for interns who want to work in Parliament. Parliamentary politics is one of the areas where it can often be difficult to get a job without having had that experience. It is for individuals and colleagues to make decisions on remuneration and the number of interns they employ.
Baroness Uddin (Non-Afl)
My Lords, I entirely agree with the Minister that placements and internships are a very positive experience. Is he aware that more than one in 100 of the population has an autism spectrum disorder? Only a small proportion of them access jobs, despite the fact that many of them aspire to work and have the ability to do so. How will the Government increase internship opportunities for this group? Has consideration been given to extending the Business Disability Forum supported placements model, which helps disabled people into employment while helping employers to understand the benefits of taking on staff with disabilities?
Lord Popat
My Lords, five years ago the department launched the Graduate Talent Pool. The website has more than 10,000 employers and about 109,000 graduates registered to use its services. It has been effective for people of all ages and races and particularly for SMEs. I encourage people to use the website and the private sector to encourage more firms to use its services.
Lord Holmes of Richmond (Con)
My Lords, internships can often represent the first significant step up the social mobility mountain. Will the Minister commend the work of Channel 4 with its 4Talent scheme and the diversity charter it launched this week? It offers a guaranteed social mobility interview for work—and, crucially, internships—to people who otherwise would not have a hope in hell of breaking into the British media.
Lord Popat
My Lords, a number of organisations, including charities, have established internships. I think that most of us would agree that internships can be only a valuable experience for young people. I am delighted that the Social Mobility Foundation and others are working so hard to help people from less well-off backgrounds to gain access to our most competitive industries. I am pleased to say that the Deputy Prime Minister launched the Social Mobility Business Compact to support businesses to pay internships.
Baroness Jones of Moulsecoomb (GP)
My Lords, will the Minister consider some recommendations from a recent report from the Economy Committee of the London Assembly, which said that all interns who work for more than four weeks should be paid not just the minimum wage but the living wage? It also said that all internships should be advertised openly to create a much fairer opportunity for those who are less fortunate.
Lord Popat
My Lords, the minimum wage level is set by the independent Low Pay Commission. It is set at the highest possible level, without costing jobs. The Government are committed to improving living standards, particularly for the low paid, and to encouraging businesses to voluntarily adopt the living wage wherever possible. On top of this, the Government have introduced fiscal policies to support people who are paid lower amounts by increasing their personal allowances.
Sri Lanka: Presidential Elections
(9 years, 10 months ago)
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Lord Naseby
To ask Her Majesty’s Government what is their assessment of the conduct and result of the presidential election in Sri Lanka, and of the policy statement made by Mr Maithripala Sirisena, the newly elected Executive President.
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 Group on Sri Lanka.
Lord Wallace of Saltaire (LD)
My Lords, we commend Sri Lanka’s electoral commission for its conduct of the election and all Sri Lanka’s political parties and people for accepting the final result and committing to the peaceful transfer of power. However, we also note the view of Commonwealth observers that the election contest fell short of key benchmarks for democratic elections. We welcome President Sirisena’s early commitment to good governance and to working with all international partners. We stand ready to help the new Government implement their commitments.
Lord Naseby
Does my noble friend agree that it is greatly to be welcomed for any democracy to have an 80% turnout and, as he says, to have carried out an election so well? Is he also aware that, on the back of that election result, the new President Sirisena—supported by all the minorities, including the Tamils—has pledged to have a revitalised domestic human rights inquiry into alleged war crimes, possibly using the missing persons commission, with two highly respected Britons in Desmond de Silva and Geoffrey Nice? On top of that, he has stated clearly that there will be independence of the law and the judiciary, and media freedom. Against that background, will Her Majesty’s Government give a commitment to give forth the hand of friendship and to give this new all-party Government time to implement the pledges that they have made?
Lord Wallace of Saltaire
My Lords, we are entirely ready to give that commitment. The Foreign Secretary and the Prime Minister have already sent messages. I am sure that the noble Lord, Lord Naseby, will be aware that the new Prime Minister, Ranil Wickremesinghe, is known to many people within his own party, as his party is associated with the Conservatives on an international basis.
Lord Bach (Lab)
My Lords, we on this side join in the congratulations to the new President and wish him and his Government well. Will Her Majesty’s Government, when they are in discussions with the new Government of Sri Lanka, encourage them to review, seriously and as a matter of urgency, the allegations that have been made about human rights abuses over the last few years in that country? Further, would Her Majesty’s Government encourage the new Government in Sri Lanka to sign up to the initiative of the former Foreign Secretary, the right honourable William Hague, on sexual violence in conflict, something that the previous Sri Lankan Administration singularly failed to do?
Lord Wallace of Saltaire
My Lords, we are in a regular dialogue with the Sri Lankan Government and Administration on all these matters. Members of this House may not be aware how closely the British Government and their representatives work with our colleagues in the European Union on issues such as this—in Sri Lanka as in Georgia—to exert pressure and bring it to bear. There is of course the UN human rights investigation, which will continue. The UN Human Rights Council will discuss that at its forthcoming meeting in March.
Lord Dholakia (LD)
My Lords, one of the early pronouncements made by the new President was about the establishment of an all-inclusive Government. There seems to be some reluctance on the part of the Tamil National Alliance to participate in this political process. Now that the elections are coming up in April, what efforts could we make, and what advice and assistance could we offer, so that there is proper participation by Tamil nationals, not only in Sri Lanka but among the large diaspora in this country?
Lord Wallace of Saltaire
My Lords, it was a very broad coalition election that elected President Sirisena, and it will be very difficult to hold all of that coalition together. I understand that the Tamil National Alliance has said that it is willing to support the Government from the outside but does not at the moment want to take ministerial posts within the Government. However, it is a temporary Government and there will probably be elections in April.
Lord Luce (CB)
My Lords, given that Sri Lanka is the current chair of the Commonwealth, can the Minister say whether the new President is fully committed to the Commonwealth charter, which reflects all the values of the Commonwealth?
Lord Wallace of Saltaire
My Lords, I cannot say that, but I certainly hope so.
Lord Avebury (LD)
My Lords, my noble friend the Minister mentioned that President Sirisena has undertaken to conduct a domestic inquiry into the allegations of war crimes that were committed in the final stages of the conflict in 2009. Has anybody suggested to him that he should facilitate the inquiry which was launched by the United Nations Human Rights Council at a meeting last March? Will our Government encourage him to invite it to Sri Lanka and facilitate its work there?
Lord Wallace of Saltaire
My Lords, that has been the position of our Government for the past year. Of course, there are some sensitive issues of national sovereignty. The noble Lord may be aware that there are even some people in the United Kingdom who take objection to international organisations looking at human rights issues within this country.
Lord Naseby
Is my noble friend aware that, on that last point, both India and Australia stand foursquare with the sovereign Government of Sri Lanka; that, yes, they do need an enhanced domestic enquiry; and that perhaps they can work in tandem with Europe, but that both the former Government and the present Government have made it quite clear that they are not willing to take part with Europe?
Lord Wallace of Saltaire
I am well aware of the previous Government’s resistance to the UN inquiry. I hope that the new Government, as they get under way, will take a more generous approach to the UN investigations.
Regulation of Political Opinion Polling Bill [HL]
(9 years, 10 months ago)
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Terrorist Attack in Paris
(9 years, 10 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, with permission, I shall repeat a Statement made by my right honourable friend the Home Secretary in another place earlier this afternoon.
“Mr Speaker, I want to make a statement about the terrorist attacks in Paris, and the threat we face from terrorism in the United Kingdom.
It will take some time for us to learn the full details of the attacks last week, but the basic facts are now clear. Seventeen innocent people were murdered in cold blood, and a number of others were injured. Amedy Coulibaly, the terrorist who attacked the Jewish supermarket, claimed his actions were carried out in the name of ISIL. Unconfirmed reports suggest that Cherif and Said Kouachi—the two brothers who attacked the office of Charlie Hebdo—were associated with al-Qaeda in the Arabian Peninsula in Yemen, the same al-Qaeda affiliate that had been in contact with the men who murdered Fusilier Lee Rigby in 2013.
As the appalling events in Paris were unfolding, this House was debating the Government’s Counter-Terrorism and Security Bill, and the threat level in the United Kingdom—which is set by the independent Joint Terrorism Analysis Centre—remains at severe. This means that a terrorist attack in our country is highly likely and could occur without warning.
Three serious terrorist plots have been disrupted in recent months alone. Nearly 600 people from this country have travelled to Syria and Iraq to fight, around half of them have returned and there are thousands of people from across Europe who have done the same. As I said during the passage of the Counter-Terrorism and Security Bill and on many, repeated occasions, the Government will do everything they can to keep the public safe.
As soon as the attacks in France took place, the Government increased security at the UK border. Officers from Border Force, the police and other organisations intensified checks on passengers, vehicles and goods entering the UK. We offered the French Government all assistance necessary, including the full co-operation of our police and Security and Intelligence Agencies.
On Sunday, before I attended the peace rally in Paris, I held talks with my counterparts from Europe, the United States and Canada to discuss what action we can take together. There was firm support from all countries present for new action to share intelligence, track the movement of terrorists and defeat the ideology which lies beneath the threat. It is important that we now deliver on those talks, and my officials, the Security Minister and I will keep up the pace—in particular when it comes to passenger name records—with other European member states.
On Monday, the Prime Minister, the Defence Secretary and I held a security meeting with senior officials to review the Paris attacks and the risks to the UK of a similar attack. Of course, we have long had detailed plans for dealing with these kinds of attacks. The House will recall the attacks in Mumbai in 2008 when terrorists armed with assault weapons and explosives took the lives of more than 150 people. Since 2010, and learning the lessons of that attack, we have improved our police firearms capability and the speed of our military response, and we have enhanced protective security where possible through a range of other measures. We have improved joint working between the emergency services to deal specifically with marauding gun attacks. Specialist joint police, ambulance and fire teams are now in place in key areas across England, with equivalents in Scotland and Wales, and they are trained and equipped to manage casualties in the event of that kind of an attack.
The police and other agencies regularly carry out exercises to test the response to a terrorist attack, and these exercises include scenarios that are similar to the events in Paris. We will ensure that future exercises reflect specific elements of the Paris attacks, so we can learn from them and be ready for them should they ever occur in the United Kingdom. In addition, I should tell the House that the police can call on appropriate military assistance when required across the country.
The attacks in Paris were enabled by the availability of assault weapons. Although there are obviously a number of illegal weapons in the UK, we have some of the toughest gun laws in the world, and as a result firearms offences make up only a small proportion of overall recorded crime. The types of firearms used in the attacks in Paris are not unknown in the UK, but they are extremely uncommon. However, as the Prime Minister has said, we must step up our efforts with other countries to crack down on the illegal smuggling of weapons across borders. In particular, the member states of the European Union need to work together to put beyond use the vast number of weapons in the countries of the former Yugoslavia and disrupt the supply of weapons from other parts of the world, especially north Africa.
The measures we have taken following events in Paris are in addition to the substantial work that the Government have undertaken, and continue to undertake, to counter the threat from terrorism. Last summer, Parliament approved emergency legislation to prevent the sudden and rapid loss of access to communications data and the ability to intercept communications where it is thought necessary and proportionate to do so. Parliament is of course scrutinising the proposals in the Counter-Terrorism and Security Bill as we speak. This important legislation will strengthen our powers to disrupt the ability of people to travel abroad to fight, and control their ability to return here. It will also enhance our ability to deal with those in the UK who pose a risk. In particular, it will allow the relocation of people subject to terrorism prevention and investigation measures to other parts of the country. In addition, the Prime Minister has announced £130 million over the next two years for the agencies, police and others in addition to the more than £500 million spent on counterterrorism policing each year.
This Government have done more to confront the ideology that lies behind the threat we face. I have excluded more foreign hate preachers than any Home Secretary before me; we have deported Abu Qatada and extradited Abu Hamza; we have reformed the Prevent strategy so that it tackles non-violent extremism as well as violent extremism; and we have invested more time, resources and money in counter-narrative operations.
We have always been clear that the police and the security agencies must have the capabilities and powers they need to do their job, and following the attacks in Paris the Prime Minister has reiterated that commitment. Unfortunately, when it comes to communications data and the intercept of communications, there is no cross-party consensus and therefore no parliamentary majority to pass the legislation to give the police and security services the capabilities they need. Let me be absolutely clear: every day that passes without the proposals in the communications data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk.
This is not, as I have heard it said, “letting the Government snoop on your e-mails”. It is allowing the police and the security services, under a tightly regulated and controlled regime, to find out the who, where, when and how of a communication but not its content, so that they can prove and disprove alibis, identify associations between suspects, and tie suspects and victims to specific locations. It is too soon to say for certain, but it is highly probable that communications data were used in the Paris attacks to locate the suspects and establish the links between the two attacks. Quite simply, if we want the police and the security services to protect the public and save lives, they need this capability.
Last weekend people of all nationalities, faith and backgrounds came together out on to the streets of France and other countries to demonstrate their opposition to terror, and to stand for democracy and for freedom. We must stand in solidarity with them, and do all that we can to confront extremism and terrorism in all its forms.”
Baroness Smith of Basildon (Lab)
My Lords, it seems just a few hours ago that the Minister was at this very Dispatch Box, late last night, responding to the debate on counterterrorism. I am grateful to him for coming back today to repeat the Statement of the Home Secretary.
The Minister will know that the whole House shares in the shock at, and condemnation of, the murderous attacks in France. Those bring back two very clear messages. First, it is the duty of Government to ensure that we do all we can to protect citizens and to provide for safety, security and liberty. The second clear message, as people rallied together and linked arms—not just in Paris and France, but in so many other places—was how much free speech and liberty are valued across the world. In many ways, today’s Statement follows on from our debate and discussions on the counterterrorism Bill yesterday. That debate was well informed, considered and measured. I have no doubt that our debates on the Bill will not be just a vehicle for discussion but will see very real changes to improve the Bill and provide greater clarification.
There are a number of questions that arise from this Statement. Although there are no specific announcements or proposals in the Statement, I seek clarity on just two or three points and no doubt we can pursue other issues during our discussions on the Bill. First, the Government have again repeated that around half of the 600 or so people who they consider have travelled from the UK to fight in Syria have returned. While some of those will have become seriously disillusioned and will have rejected radicalism, others will have returned to the UK more dangerous. The proposals in the new counterterrorism Bill are that those who have been engaged in terrorist activity abroad should have a managed return to the UK so that they can be interviewed, and TPIMs—terrorism prevention and investigation measures—can be imposed where appropriate. What action has been taken regarding those 300 who have already returned? I appreciate that the whereabouts and the identity of every single person will not be known, but they will be known for a large number. Are those 300 cases being reviewed? Are any of those 300 subject to TPIMs, or are the Government seeking to address this only for those who return in the future?
Secondly, the Home Secretary announced in her Statement that,
“As soon as the attacks in France took place, the Government increased security at the UK border”,
with,
“intensified checks on passengers, vehicles and goods entering the UK”.
I had presumed that the increased threat level had meant increased checks anyway. I have raised before in your Lordships’ House the delays and time taken in border checks for travellers at Calais—and no doubt the same can be said for other places as well. Travellers understand that increased security means that it can take longer to go through border checks, but it is incredibly frustrating when there seems to be so few staff on duty and over half the border agency booths are closed, due to the reduction in staff because of budget cuts. So, have extra resources been provided to assist the border agency in its checks, and is this part of the £130 million over the next two years that the Government have announced?
My final point regards communications data—and I wonder if that is the reason for the Statement coming forward today. The Home Secretary is very critical on this issue. I said last night that we believe that data communication information and intercept evidence are vital in tackling not just terrorism but also the most serious crimes that we face in society. In July, Parliament supported—and your Lordships’ House debated this here—emergency legislation to maintain vital capabilities, although we felt the Government should have acted earlier to avoid fast-tracking the legislation. As a result of our amendment, all parties agreed that the Independent Reviewer of Terrorism Legislation, David Anderson, would undertake a review of the powers and oversight needed, particularly in light of changes and advances in technology.
When the Home Secretary published her communications data Bill three years ago it was the Joint Committee, set up by the Government to examine the Bill, which said it was too widely drawn with not enough adequate checks, balances or oversight. I am not aware that the Home Secretary has brought any further measures before Parliament to be considered or that she has spoken to the Official Opposition about measures to be considered. Last night, I and a number of other noble Lords expressed concern about statements from the Prime Minister and counter-statements from the Deputy Prime Minister that appeared to caricature the arguments as being about security on the one hand and liberty on the other. This issue cannot be about political rhetoric or electioneering. This is serious, and it needs to be approached with wisdom, judgment and evidence. I ask the Minister to reflect on those comments and answer my questions today.
Lord Bates
My Lords, I am grateful to the noble Baroness for her characteristically thoughtful and measured response. I, too, pay tribute to noble Lords who were here into the late hours last night in what was, I thought, an incredible debate demonstrating the House at its best, with its deep expertise and concern in this area.
The noble Baroness asked about the 300 people who are thought to have returned. Of course, we do not know the whereabouts of everyone, and that is part of the purpose behind the Counter-Terrorism and Security Bill—to improve the ability of the security services to identify and track people coming in and to seek to prevent them from going out. We can say that last year, in 2014, more than 120 people were arrested for alleged offences relating to Syria, including terrorist financing, preparing acts of terrorism and attending terrorist training camps. There were seven prosecutions. In the previous year, 27 people were arrested in the UK for Syria-related terrorist offences. Some of those people will also go into the Channel programme; 2,000 individuals are taking part in the Channel programme. I do not have a particular breakdown as to those who were part of the 300 who came back, but that gives an idea as to what the security services are doing with those people, and we need to give them what strength we can.
On the concerns about the situation at the borders, there was a particular operation, as we would all expect, in the wake of the attack, which was as much in solidarity and co-operation and as part of the tracking procedure with the Home Secretary’s opposite number in France, Monsieur Cazeneuve. I entirely understand the point that the noble Baroness made about capacity at border points. That is why we need to rely more on intelligence and data gathering about who is travelling and why, where the threat is, and communicating and working with our partners in Europe through the opt-ins to the joint home affairs measures which we announced before Christmas to enable us to work more effectively.
On the communications data Bill and the Joint Committee on Human Rights, when that review took place, my right honourable friend the Home Secretary responded to the Joint Committee that it had made a very thorough review of the Bill and that, broadly, all the committee’s recommendations were acceptable, with some modifications. That was communicated to the committee. It now looks as if it is not possible to pass the Bill in this Parliament, but, if the Conservative Party were to form a Government after the election, it would of course be brought forward immediately in any Queen’s Speech.
Lord Jay of Ewelme (CB)
My Lords, I thank the Minister for repeating the Statement. Does he agree that since the attacks the solidarity shown by the French people of all faiths in defence of the values that we all share is the surest way to show the world that the terrorists will not prevail? Does he further agree that the sharing of information about potential terrorist attacks among EU countries, the United States, Turkey and other countries is an essential way to prevent future terrorist attacks from taking place in our country and in other countries?
Lord Bates
Taking the last point first, I certainly agree that information sharing needs to improve. That is why we signed up for the ECRIS security system data checks and the Schengen information sharing system and why dialogues are happening at this very time in the US—the Prime Minister departs soon for Washington to engage in conversations with our partners there—and elsewhere in Europe.
On the noble Lord’s first point about image, when people resort to violence and intimidation the result, as is so often the case, is exactly the opposite of what they try to do. They tried to divide and spread terror but instead they brought confidence onto the streets of Paris which was shared across Europe. That was a welcome sight and a very bold message to send to those who would challenge our liberties.
Baroness Hamwee (LD)
My Lords, the view was widely expressed in yesterday’s debate that Prevent, and the Channel programme within it, is the most difficult and most important strand of the counter- terrorism strategy. I welcome the reference in the Statement to the investment of time, resources and money in the counternarrative. Money, time and energy are not unlimited. Do the Government agree that it may be more productive to apply these to quiet, informal, non-traditional and imaginative support and advice and will they remain open to not using up those resources on putting Prevent on a statutory basis?
Lord Bates
Some 45,000 people have had contact through the Prevent programmes but their provision across England and Wales is, one might say, patchy. The idea behind putting it on a statutory footing—something which the Independent Reviewer of Terrorism Legislation, David Anderson, supported—was to try to raise standards to ensure that we get better value for money from it. In doing that, it is important to work with those in the Muslim community. They are our partners and they want to work with Government and the wider community to identify people who pose a potential risk and to challenge the notion that these acts of terror are anything other than brutality and have absolutely nothing to do with their faith.
Lord Davies of Stamford (Lab)
My Lords, will the noble Lord accept that the events in Paris—the public reaction to them throughout Europe has been very moving—have persuaded a very large number of people in this country, including me, to reconsider our previous position and take the view that we ought to go further than the provisions in the Bill and withdraw or cancel the passports held by British subjects who have gone to the Middle East or elsewhere to enlist with al-Qaeda, Islamic State or other jihadist or terrorist organisations? It is often said that withdrawing their passports would be against international law. I think I am right—the Minister will correct me if I am not—that there is no actual convention or explicit treaty which constricts us in this area. What is said to be international law is really just an opinion on the subject. As the Minister has already said, the prime and overriding necessity and priority must be to save British lives. Is there not a real danger that, if hundreds more people in this category come back to this country, the additional strain placed on our security services of monitoring them may be such as to create a significantly enhanced risk of an oversight at some point which could cost a lot of lives?
Lord Bates
The noble Lord’s point about passports is absolutely right. Eight people have had their British citizenship revoked since August 2013. The power already exists, under royal prerogative, to cancel someone’s passport. Those decisions are not taken lightly but the power is there. Whether it needs to be extended is something we will have to keep under continuous review. The Independent Reviewer of Terrorism Legislation will be a key asset in giving us advice on that.
Lord Higgins (Con)
Is my noble friend aware of a surprising recent change which has taken place at London City Airport whereby you can get through immigration simply by putting your passport in a machine, with no direct contact with an individual immigration officer at all? Is this likely to improve security?
Lord Bates
Counterintuitively, it probably does because the only people who are able to go down that channel are those who have biometrics in their passport. Although it might not be apparent, the access channels for those who have biometric passports are overseen and visually checked by a Border Force officer.
Lord Singh of Wimbledon (CB)
My Lords, much has been said since the attacks in Paris about the right to offend. If there is a right to offend, there is a right to be offended. People react to offence in different ways. Some will turn the other cheek, some will come out with expletives and some will resort to violence. Does the Minister believe that there is any merit in deliberately antagonising people?
Lord Bates
This goes to the heart. We need to separate the issues. There can never be any excuse under any terms whatever for people using violence to raise a point. In fact, in many ways the spirit of Paris on that dreadful day was best represented by the Muslim police officer, a personal protection officer, who was murdered defending one of the journalists at Charlie Hebdo who had been under attack. It is that spirit of service that we ought to highlight. We may disagree with people, but we defend absolutely their right to speak. That is the spirit we should carry forward.
Lord King of Bridgwater (Con)
Does my noble friend recognise that while there were criticisms of the Government for bringing in the Counter-Terrorism and Security Bill, which they did well before the events in Paris, I do not think there is much criticism now of the need for steps to be taken in recognising the importance of introducing those measures? Those of us who are the survivors of last night’s marathon will recall the words of the impressive maiden speech of the noble Lord, Lord Evans of Weardale, a former director-general of MI5, who said that the threat level now is greater but our capacity to meet it is less. I challenge my noble friend on what he said at the end in reply to the question about the communications data Bill. We still have three months left of this Parliament. This should not be a party-political issue. These issues are our vital to our intelligence services. It does not matter how many boots we have on the ground; intelligence is our safeguard and our defence in those issues. We must ensure that in the present very dangerous situation the intelligence services have the resources they need. In the three months we have left, I hope the Government will consider that we could still do that and make sensible progress in this area.
Lord Bates
The noble Lord brings immense experience to this, not least from his chairmanship of the Intelligence and Security Committee, the oversight committee. He makes an interesting point. I repeated the Home Secretary’s Statement in which she that there is no cross-party agreement. Should that cross-party agreement emerge—of course, in your Lordships’ House party affiliation is only part of the picture as there is a distinguished coterie of expertise on the Cross Benches—then all things are possible.
Lord Turnberg (Lab)
My Lords, I am sure the noble Lord is aware that the Jewish community in France feels extremely threatened at the moment. I think it is also the case that the Jewish community in the UK does not feel terribly comfortable at the moment. What efforts are the Government making to help to support and reassure the Jewish community? Is any support being given to organisations such as the Maimonides Foundation, which was set up to bring together the Jewish and Muslim communities? That is a very useful measure. I express an interest as a previous member of the Maimonides Foundation.
Lord Bates
I shall have to write on the latter point. On the former point, the Community Security Trust, which has responsibility for security at Jewish schools and synagogues, has been working closely with the Metropolitan Police and other forces to continue to take appropriate operational response measures to protect the Jewish community from terrorism, hate crime and the impact of public order protests. Police forces continue to work closely with the CST and other Jewish community organisations. I am deeply conscious of the sense of unease and fear which is felt within the Jewish community at this time. My honourable friend the Security Minister is meeting the CST today. I hope that in future I will be able to report back more. If not, I will write on it at the same time as I write on the other matter.
Baroness Ludford (LD)
My Lords, in the short time that I have been back in this House, I have learnt to have the highest regard for my noble friend. However, I was slightly surprised that, speaking on behalf of the Government, he stressed the importance of trying to press forward with the communications data Bill because, as it is acknowledged, there is not agreement within the Government on this matter. Is it not the case that—as came out in the debate yesterday on the Counter-Terrorism and Security Bill—that we really need to wait to review and possibly strengthen the legal framework before collecting more data? This also applies at the European level because the Government are pressing for the passenger name record EU directive but are resisting the strengthening of the EU data protection laws, on both consumer data and data that are used for law enforcement purposes. Do not the two need to go together so that people can be reassured that their data are secured before more are collected?
Lord Bates
Again, the thoughts are mutual in terms of respect but also in terms of disagreement. This is just part of the disagreement and people can express their views. The Home Secretary has been very clear that we think that this Bill is absolutely necessary and the security services are very clear that they think this is necessary. The current head of MI5 thinks that this power is absolutely necessary. We want to give it to him. We might disagree with our coalition colleagues about that. I am perfectly able, as a Minister and part of the Government, to say that, as the Deputy Prime Minister was able to offer a different view in the media this morning.
Lord Empey (UUP)
My Lords, in the Statement the Government say that they will do everything they can to keep the public safe. While we would all agree with that sentiment, the fact is there has been a scandal developing over the past two and a half years where the National Crime Agency is not operational in all parts of the United Kingdom. It does not fully operate in Northern Ireland because Sinn Fein has decided to veto it. When will the Government do something about this instead of pussyfooting around it? It is not going to fix itself and yet it is opening the back door to terrorism and criminal gangs. I do not believe that that elementary step should be left untaken.
Lord Bates
Of course I recognise that. The National Crime Agency is responsible primarily for organised crime and child sexual exploitation; it is looking and working in those areas. The Home Secretary has made it clear that we would like to see the National Crime Agency extended to Northern Ireland but because of the devolved agreement that we have, we need to seek approval from Northern Ireland to welcome it into the role. We would like to see it but really it is for Northern Ireland to decide.
Lord Beecham (Lab)
My Lords, the Minister will be aware of the work of the Community Security Trust with the Jewish community. He will also be aware that the trust also works with some Muslim communities, and no doubt he would be prepared to encourage working between the two communities on an interfaith basis. The CST has a high reputation, I believe, with the police and security forces and it would be welcome for the Government to explicitly back that interfaith approach.
Lord Bates
I am very happy to do that. That is absolutely right. We saw images of Jews and Muslims coming together in Paris—there was reference made to them last night. I think they were actually from Albania and came together to show solidarity that this is not happening in their name and that all faith communities are going to stand together against this attack on their freedoms. The more we see of that, the better.
Lord Marlesford (Con)
Does my noble friend agree that there is nothing remotely disrespectful in the cartoon in this week’s Charlie Hebdo which depicts the Prophet Muhammad identifying with the victims of the murderous attack by fascist terrorists and weeping at the thought that it could be claimed to have been done in his name?
Lord Bates
I think that all those who believe in a divine force in this world will recognise that any divine element who is love will be weeping at what is happening now, not just in France but across the whole world, in many corners where people’s lives are blighted and violence is used.
Lord Rooker (Lab)
Do I understand the Minister correctly—perhaps I misunderstood it, although I did not miss a single speech last night—that the Home Secretary is sitting on some legislative proposals that she has not been allowed to bring forward, which would fit in the Bill we are discussing? We will have that Bill in this House for four weeks, so it would not be that rushed. If that is the case, and if there is a problem because there is a veto on allowing her to give it to the Minister, frankly it is Parliament’s decision, so why does he not ask the Home Secretary to offer the amendments to a Cross-Bench Peer so that this House can decide whether or not to further amend the Counter-Terrorism and Security Bill before we send it back to the other place?
Lord Bates
The communications data Bill is there; the Joint Committee on Human Rights carried out an excellent review of it, making a few recommendations. My right honourable friend the Home Secretary has made her position clear on those points. Of course, people are entirely at liberty to pick up amendments and bring forward any that they wish.
Baroness Hussein-Ece (LD)
My Lords, my noble friend referred earlier to the fact that Muslims are partners and we very much need them to work and co-operate in order to root out these extremists in our society after the terrible events in Paris. However, does he agree with me that comments such as those made by Rupert Murdoch, who lays the blame firmly on the world’s Muslims and says that they “must be held responsible”, and Nigel Farage, who said only the other day that the authorities had turned a blind eye to,
“the growth of ghettos where the police and all the normal agents of the law have withdrawn and that is where sharia law has come in”,
are unhelpful as regards promoting good race, community and interfaith relations? Will they help in what we are trying to achieve?
Lord Bates
I am grateful to my noble friend for raising that point, which perfectly illustrates the tensions. I disagree fundamentally with what has been said, both by Rupert Murdoch and by the UKIP member in the other example that she gave. Again, however, we defend the free press and its right to say that.
Baroness Manningham-Buller (CB)
My Lords, I can well understand that Members on the Lib Dem Benches wish to wait, as many of us would like to in an ideal world, for the outcome of David Anderson’s review of terrorism legislation, and they welcome the ISC on the subject of data and the work of the independent group at RUSI. However, does the Minister accept that in waiting for those recommendations and in taking a slow and considered look at legislation in this difficult area, we heighten the risk to our citizens?
Lord Bates
The noble Baroness, who of course has immense experience in this area, will recall that the Home Secretary said that,
“every day that passes without the proposals in the draft Communications Data Bill, the capabilities of the people who keep us safe diminish; and as those capabilities diminish, more people find themselves in danger and—yes—crimes will go unpunished and innocent lives will be put at risk”.
That is a very sober message for all Members of this House to reflect upon.
Lord West of Spithead (Lab)
My Lords, just for complete clarity on the government position, will the Minister agree that the Snowden revelations have made us all much less safe and have enabled terrorists now to use methods of communication that we cannot penetrate, and that there will therefore be deaths as a result of what he has done?
Lord Bates
That is absolutely right. I also pay tribute to the interventions and remarks that the noble Lord made last night on people trying to present the communications data Bill as some kind of snoopers’ charter. That is absolutely ridiculous and offensive to people who are trying to do a serious job of trying to keep us safe in this country. They deserve our support and do not deserve to be trivialised in that way.
Lord Foulkes of Cumnock (Lab)
My Lords, before we move to the main business of the afternoon, can I raise, yet again, this artificial time for questions? There were a number of distinguished Members eager to answer questions but because of our rules, we are allowed only 20 minutes and then the guillotine comes down. In any sensible Chamber, it would be left to the Chairman to allow further time. That should be for the Lord Speaker or the Chairman standing in. I have raised this again and again. The Procedure Committee seems totally incapable of giving some flexibility to deal with these things properly, so that we can give some time to matters of importance. I hope it will have another look at it.
Recall of MPs Bill
(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Gardiner of Kimble
Lord Gardiner of Kimble (Con)
My Lords, I speak to Amendments 1, 11, 14, 17 to 19, 21 to 24, 34, 52 and 53. A number of amendments were made to the Bill on Report in the other place, notably introducing a further condition for recall. This third condition triggers recall where there is a conviction for the offence of providing false or misleading information in relation to parliamentary expenses claims under Section 10 of the Parliamentary Standards Act 2009, regardless of sentence imposed, so that a fine would trigger recall, as would a sentence of imprisonment.
This new condition was inserted by the House of Commons expressly to reflect the particular relevance to the public’s trust in an MP if they deliberately misuse the expenses system. The vote was overwhelmingly in favour of the amendment tabled by the Opposition Front Bench, with 281 in favour and two against. The amendment that ensures that historic offences are captured would apply also to convictions under the third recall condition.
In passing these amendments, the House of Commons concentrated on passing the most essential of the provisions and did not vote on the necessary consequential and technical amendments that would enable these new measures to work in practice. For this reason, the Government have tabled the necessary consequential and technical amendments to enable the Bill to work as the House of Commons intended. We have consulted with the Opposition to ensure that we are giving effect to precisely what they intended and I thank the noble Baroness, Lady Hayter, for putting her name to these amendments. It is for these reasons that I beg to move.
Lord Grocott (Lab)
My Lords, I wonder if the Minister could help. I know that these are consequential amendments relating to the third trigger, which was added during the course of the Bill. It seems to me, though I am not a lawyer, to present a considerable anomaly, which is that a particular offence in relation to parliamentary expenses where there is a guilty verdict and a fine in a court results in a by-election, while any other offence—which lots of people might consider to be more serious—results only in a fine. I do not know about the law, but that might include, perhaps, sexual harassment, defrauding the public purse in some respect other than parliamentary expenses, drink-driving or something of that sort. Surely, in the operation of the law—I am looking desperately around, hoping that a lawyer might help me—it is bizarre if there is a more severe penalty for a lesser offence. That seems to be the case with this group of admittedly consequential amendments.
Lord Foulkes of Cumnock (Lab)
My Lords, I want to say a few words on this issue and this amendment seems an appropriate point as it deals with the third trigger. What worries me is the accretion of triggers—the first, the second and the third—because I suspect that if we pass this Bill, which does not seem to have many friends anywhere, we will end up with more triggers in subsequent legislation. We are starting on a very dangerous course.
As my noble friend Lord Hughes of Woodside said at Second Reading, this is the thin end of a wedge, because the green light will be given to people such as Zac Goldsmith to come up with his amendments again in the next Parliament. He is a multimillionaire who treats being an MP as a hobby rather than as an occupation, a calling or as something that is really worth while. I look at some noble Lords opposite, for whom I have the greatest respect, who carried out their jobs as Members of Parliament with great diligence. I disagreed with them on policy and on everything else in relation to what they did, but they looked after their constituents, took up issues and worked hard. Now we are getting dilettante MPs coming in and we end up with this kind of legislation.
Members of Parliament should have the power and the authority to look after their constituents without fear or favour or threat, and should know that they can stand up to vested interests without always looking over their shoulder. Once we pass this Bill, and particularly if we take further steps, we will have MPs looking over their shoulder week in and week out. I could give dozens of relevant examples, which my noble friend, a former Speaker, will know well. For example, Tam Dalyell was so persistent on the “Belgrano”, Aldabra and even, I am afraid to say, devolution. However, he might have been intimidated if he had had to look over his shoulder, anticipating challenges, because of this kind of provision.
Other examples include Chris Mullin, who raised the issue of the Birmingham Six, and the Liverpool MPs who looked after the interests of the relatives of people killed at Hillsborough, and kept on and on about that in spite of vested interests. Tom Watson is raising the issue of historic child abuse and feels in a strong enough position to do that. However, if MPs are always looking over their shoulder, they will have less strength to do that.
I have the greatest respect for the noble Lord, Lord Wallace of Saltaire. I have known him a long time. Indeed, I knew him when he was simply William Wallace. I used to listen to him very keenly because of his knowledge of international affairs and had great respect for him. He said at Second Reading:
“We have put forward the Bill believing not that it is the golden trigger”—
actually, I think that he meant the silver bullet, but never mind—
“that will somehow revive public trust alone, but that it is one element among many that we need to begin to re-establish public trust in democratic politics and in Westminster”.—[Official Report, 17/12/14; col. 221.]
I do not see many leaders in newspapers such as the Daily Mail saying, “Well done, Westminster. This is re-establishing trust by bringing in a Bill to recall Members of Parliament”. I just do not see that it will do that. I think that trust in Westminster would be restored if we ensured that the legislation we passed was sensible, workable and intelligent. This legislation is none of those. It is not sensible or workable—and it is certainly not intelligent.
I was not able to be here at Second Reading, but I read the debate in great detail. Many Members of this House rightly said that they were in favour of the principle of recall but none of them said that they agreed with this Bill. It is a terrible Bill. It was brought in right at the end of the Session and rushed through the House of Commons. It was not given proper consideration in the House of Commons, and even I have had my arm twisted to agree to all its provisions and not create too many problems.
Yet there are things that the Bill could deal with. When Members of Parliament cross the Floor they are not obliged to be recalled. That is not included in the Bill. You would think it would be, would you not? I do not like giving credit to Mr Carswell and Mr Reckless, but I will, because at least they triggered by-elections by resigning. There is no obligation to do that. I mean no disrespect to some noble Lords who are here now, but I would have thought that crossing the Floor, being elected as a Conservative and moving over to become a Labour Member—in fact, there are two of them staring at me; I feel their eyes piercing—might present an argument for taking this matter forward.
There was once a Tory MP—I am trying to remember his name—who in his last term of office as a Member of Parliament went to live in California.
Lord Foulkes of Cumnock
Thank you. I knew that someone younger than me, with a keener brain, would remember his name. Eldon Griffiths went to live in California—yet he was supposed to be representing his constituents. That seems to me a better argument for a recall, if we are to have recalls. This has not been thought through.
As for the provisions about imprisonment, if, for example, Caroline Lucas, as a result of her recent protests against fracking, had been sent to prison, would that have been a sensible reason for a recall? She was making a legitimate protest. If she had been sent to prison, would we all really have thought that she should be made to go through this tortuous procedure? Or if some of us had been arrested when we were picketing in the miners’ strike, and had been sent to prison, would that have been a good reason? And what would have happened to the Red Clydesiders? This has not been thought through. It is a terrible piece of legislation.
Lord Wallace of Saltaire (LD)
My Lords, I know that the noble Lord disapproves of constant interruptions of speeches in this House but, although I congratulate him on making the Second Reading speech that he would like to have made at that stage, I do not think that he has yet mentioned any of the amendments we are supposed to be discussing.
Lord Foulkes of Cumnock
I have been rumbled. But in fact I did start off—I have a note of it, unusually for me—by saying, “These amendments deal with the third trigger”. As I pointed out to the noble Lord earlier, he and his golden trigger gave me the opportunity to bring that up.
I am about to come to the end of my speech anyway, because if I had been able to speak at Second Reading I would have finished by saying that this is yet another piece—and probably the worst piece of all—of constitutional Cleggery. This Parliament has been bedevilled by constitutional Cleggery. Fortunately, the people of this country got rid of the alternative vote by a large majority—and, fortunately, this House and this Parliament got rid of some of Mr Clegg’s other measures. Unfortunately, I fear that we will not be able to get rid of this Bill—but the country, and Parliament, will be much poorer places because we are going to pass it into law.
Lord Cormack (Con)
My Lords, not for the first time, I find myself in great sympathy with my noble friend Lord Foulkes of Cumnock. I must apologise for the fact that I too was unable to take part in the Second Reading debate, because I was in church, with Mr Clegg, at the funeral service for Jeremy Thorpe. I felt that that was a high priority, because Jeremy Thorpe was a man who had a tragic life in so many ways, but he was a very considerable parliamentarian, and I was proud to call him a friend.
I think that the Bill is misconceived, and that the amendments that we are technically at least discussing would not make it any better. Every MP is recalled at the next general election. Every MP has the duty, if he or she wishes to continue to represent the constituency, to place himself or herself, and his or her record, before the constituents. Of course, if an MP is guilty of some heinous offence, there are already provisions for expulsion. Indeed, there are already remedies within another place for a Member to be expelled. That is entirely right and proper but I am unhappy about this legislative exercise.
Lord Tyler (LD)
Would my noble friend indicate to the Committee where in the Bill, let alone in the amendments before the Committee, the circumstances to which he refers would apply? Where could it possibly be relevant? There is no possibility in which this Bill could in any way call that MEP to account with a recall petition. It just is not there. I hope that my noble friend, who is assiduous in reading Bills of this sort, will look very carefully at it because he is chasing a will-o’-the-wisp.
Lord Cormack
I do not think so, with great respect to my noble friend, because I talked about the Bill—as did my noble friend opposite—as a slippery slope; and it is. While there may not be anything in this particular Bill, it creates a precedent that is inhibiting to the freedom of a Member of Parliament. An MP, unless he commits an offence that is so heinous that he is out—which happens from time to time, sadly, as we know from recent years—should be answerable to one group, and one group alone, which is those in the whole of his constituency voting at the next general election. That is a fundamental principle of our British constitution and that principle is partially eroded by this Bill. Although I do not intend to play a great part in this, I deeply regret it and it is an issue that a future Parliament should look at again.
Baroness Taylor of Bolton (Lab)
My Lords, I rise to say a word, perhaps surprisingly, about the amendment, and about the third trigger. I was here at Second Reading, but I did not intervene because I could not stay all day. Anybody who has read that Second Reading debate in Hansard will realise how serious the consequences of this Bill could be. I agree with the noble Lord, Lord Cormack, and my noble friends that this is a dangerous Bill: dangerous to representative democracy—that is the basis of the democracy in this country. That point was overlooked throughout the debate in another place.
We have a responsibility to raise some of these issues, though I share the pessimism of my noble friend over our actually making any real difference here. It may be too late in the day. Why will it be too late? People at the other end will not want to revisit the issue. Why will they not want to? Yet again, it will be used as an opportunity to whip MPs—not in our whipping sense—to criticise them and to imply that they are all badly motivated, on the make and have something to hide.
Quite honestly, that is why we have the third trigger. The first trigger was not enough, nor was the second. We must find another way of attacking the implication that MPs are doing something wrong that needs rooting out. This is extremely dangerous for democracy as a whole, and it has not been taken on board as far this is concerned. The third trigger, as with the other two, is also dangerous, in the sense that it gives the public the impression that all that they have to do is get a little petition and that they will make those decisions. I think that this is an illusion that will not lead to greater confidence in our parliamentary system, but quite the reverse.
Finally, I agree that this is a slippery slope. People are saying that this will not be about issues; the noble Lord, Lord Tyler, has just suggested that. It might not be about issues today, but it will be about issues tomorrow.
Lord Finkelstein (Con)
I rise, noble Lords, as a friend of the Bill. I am sorry that I was not able to speak in the Second Reading, but I had a family matter to attend to.
Not for the first time, I do not find myself in agreement with the noble Lord, Lord Foulkes. It was obviously diverting to hear a list of Members of Parliament whom he admired. I felt, uncharacteristically, that he was ill informed about Zac Goldsmith. Even if I do not agree with him on all matters and even if the noble Lord is correct in observing irrelevantly that he is a multi-millionaire, he is actually an assiduous constituency Member of Parliament.
Might we have a self-denying ordinance in which we stop debating something that is not in the Bill? When we have presented to this House the bottom-of-the-slope Bill or the thick-end-of-the-wedge Act, we can have a discussion about the matters that concern those who have spoken in this debate and that would affect my noble friend’s concerns, but they are not in the Bill. There are a number of individual items, where we have to make a judgment as to whether it is sensible to give the public a chance to remove Members of Parliament if they feel that what has happened is significantly serious and that they should be allowed to do this.
The noble Lord, Lord Foulkes, said at the beginning that he was concerned that people would add triggers to the Bill. He went on to suggest a number of triggers that he would like to add to it. This seemed to me to be completely incoherent, although by the end I was reaching for a trigger myself.
Lord Foulkes of Cumnock
Perhaps I did not explain myself properly. I was not saying that I would like to add triggers, because I do not want any of them included. I agree with the noble Lord, Lord Cormack, that the general election provides the opportunity for recall. What I did say was that if you have the three triggers that are in the Bill now, why not have the others? They are just as logical; indeed, perhaps more sensible and logical. I am not saying that they should be in. However, there is a better argument for them than for the ones that we have in the Bill at the moment.
Lord Finkelstein
It would be up to the noble Lord to propose amendments on those, but we are discussing this amendment on the third trigger. The noble Lord, Lord Grocott, made an important point when he asked what is special about these kinds of offences that would not apply to other offences. The answer is that they are offences against the parliamentary process. They are ones that go to the heart of people’s confidence in the system here and therefore they are distinct and different. They ought to carry with them a greater threat to Members of Parliament. None of the proposals in this Bill would create a by-election; they merely introduce for the public an extra power which they do not have at the moment. I cannot see that that would be a threat to democracy. When someone proposes something where the proposal itself is the threat to democracy rather than hypothetically a threat to democracy, or a threat to democracy because someone else had proposed something earlier, I will be against that. When someone proposes the thick end of the wedge, I will be against it. For the moment, however, I cannot see the objection to giving the public the ability to use this trigger if they feel that the issue is something that is important to them, and I can see many circumstances in which they would use it. This is therefore a valuable addition to the Bill and I support the amendment.
Lord Davies of Stamford (Lab)
My Lords, this is a Bill which in my view we cannot change. The House of Commons must be sovereign in determining its own rules. However, the fact that we cannot change it is not a reason why we should not, and indeed I think that we are under an obligation to express any reservations we have. That is what we are here for. We should express sincerely and frankly what we feel about the legislation that comes before us.
I agree entirely with the comments of the noble Lord, Lord Cormack, and with some but obviously not all of the comments of my noble friend Lord Foulkes. What I am most concerned about in the Bill is something which may strike noble Lords as a rather theoretical danger; that is, that people might be sent to prison for reasons of conscience and principle—for acting in a way which, from their point of view, is part of their politics and, as a result, part of their responsibility towards their constituents. Although that may seem rather theoretical, it has actually happened several times over the past 150 years.
I am thinking of Charles Stewart Parnell and John Redmond. There were never finer parliamentarians in either House than those two men. They were both sent to prison under the Irish Coercion Acts that we had for governing Ireland at the time for matters of purely political action on their part. Pacifists in the First World War were sent to prison under provisions in the Defence of the Realm Acts which made it a criminal offence to make comments that were inimical to the interests of recruitment. I think that I am quoting the law accurately. Arthur Jenkins and others whose names I am afraid I cannot remember—I remember Arthur Jenkins because of course he was the father of a very distinguished statesman who many of us knew personally —were sent to jail in the 1920s for organising an illegal strike. I cannot think of any recent examples, but someone may well be about to challenge me by asking when it last happened. It is certainly the case that it has not happened recently.
Baroness Taylor of Bolton
I think that my noble friend will find that a Labour MP from Liverpool was actually sentenced for non-payment of the poll tax as a political protest.
Lord Rogan (UUP)
The noble Lord, Lord Maginnis, served time in prison in Belfast for a political rather than a criminal act.
Lord Finkelstein
Is it the noble Lord’s judgment in those cases that recall would have been successful?
Lord Davies of Stamford
I do not think that recall would have been successful in the case of the Irish patriots I have referred to, but I suspect that it would have been successful in the emotional circumstances of the First World War, and possibly in the 1920s. However, I do not think that that is relevant at all. The important question is whether we are going to have a Parliament consisting of individuals who, when it comes to the crunch, are brave and willing enough, when it is necessary to do so, to stand up for what they really believe in. In those circumstances is it right to deprive them of their seat in Parliament as if they were common criminals? If they are common criminals then, as has been said, there are provisions for a majority of MPs to exclude them, and the House of Commons is perfectly willing to do that.
Lord Finkelstein
In one sense they are common criminals, and that would be the point of sending them to jail. The noble Lord is suggesting that their electorates are not allowed to exercise a judgment over whether, when a person has broken the law, their crime ought simply to be overlooked. All this Bill will do is give the electorate the opportunity to make that judgment.
Lord Davies of Stamford
I am saying two things, and I hope that the noble Lord will listen carefully. First, I do not believe that it can be in the interests of this country that people are thrown out of Parliament when they maintain what may be a very consistent position of principle which puts them at odds with the law at that particular moment. There have been occasions when we have passed laws in this country which have nothing to do with the ordinary notion of criminality, but have been passed under emotional circumstances, such as the ones I have already described. We do not want a Parliament of ciphers; we want a Parliament of individualists. We want a Parliament of people who are responsible directly to their electorate.
Lord Cormack
On this issue I entirely agree with the noble Lord. As one who was instrumental in persuading the late Reg Prentice, later Lord Prentice, to cross the Floor, I believe that what he says is entirely justifiable.
Lord Davies of Stamford
All of us are tempted to welcome converts and are delighted when people join the party that we happen, for the time being, to be a member of. We then dismiss as traitors, renegades or worse the people whose judgment goes in the other direction and leave the party we currently happen to be a member of and join another party. I think it is probably human nature to use different vocabulary to describe what is essentially an entirely analogous process.
I was quite shocked because I did not know that my noble friend Lord Foulkes was a secret believer in proportional representation.
Lord Davies of Stamford
I will give way to him in one second, of course. I think he ought to come out and declare his true allegiance because the only logical consequence of the position he has been taking this afternoon is that we ought to have proportional representation in this country.
Lord Foulkes of Cumnock
I cannot think of anything worse than to be called a secret believer in proportional representation. I disavow any support for that. I am a long-term supporter of first past the post. I think that my noble friend has actually made a very good argument. If we were discussing the Bill and the provision that I said might be considered as one of the options, we could decide whether or not it should be in. But I do not want any of these provisions. I have not made it clear enough. I do not want a Recall of MPs Bill. All I was saying is that, if we are including these provisions, there are others that might have been considered for inclusion, but were not. That is totally illogical. My noble friend has made a very good argument for not including that in a Bill, if it had been suggested.
Baroness Donaghy (Lab)
I was not going to speak in this debate, but I think it is important that some of us who have not got a parliamentary background contribute. I congratulate the noble Lord, Lord Finkelstein, on making his contribution, even though I do not reach the same conclusion as he does.
I am raising this as a former member of the Committee on Standards in Public Life, rather than as a parliamentarian. I know that this remark is tinged with Second Reading—but this is the worst form of populism. One has to ask the question, will it improve standards in public life? My view is that it will not. Will it improve the standing of Members of Parliament? My view is that it will not. Could it be the thin end of the wedge? That is open to debate. It is very important that we do not go down this sentimental road of talking about all these brave MPs who have done this, that and the other. We need to look at it from the point of view of the future. Are there other ways of improving the standard of Members of Parliament? Yes, by enhancing parliamentary democracy. I am concerned that an agreement has been reached by the Front Benches to support this Bill but that it does not necessarily enhance parliamentary democracy. I have to say that it is in the interests of Front-Benchers who want to be in government, or are in government, to improve and enhance the power of the Executive, if necessary at the expense of parliamentary democracy. I do worry about that.
There are issues such as the whole area of expenses, which people may think have been improved, but I do not. There is an argument for a very large salary for MPs, with no expenses and no second home allowances or anything else, and having a clean-cut, sensible and transparent system of payment, which is aligned to some recognised body and which could be determined by an independent body. You could then get rid of IPSA overnight. I have a number of other suggestions but will not take up the time of the Committee, and apologise to the noble Lord, because I realise this is not, strictly speaking, relevant to this particular amendment. However, the sooner this piece of popcorn disappears off the legislative agenda the better.
Lord Martin of Springburn (CB)
I have often been careful in the past to remind Members in the other place that they should not use amendments for Second Reading purposes, but perhaps I can stray, because the expenses situation has been mentioned by my noble friend and others and I find it interesting with regard to the recall of MPs. When I came into this House, some Members who had served in the other place were quick to condemn those who were, for want of a better word, exposed in the expenses scandal and said that it was a terrible thing. It was a terrible thing because five years of expenses were exposed at one time, because of freedom of information and the way it was handled. I have often thought this to myself and now say it out loud: if only some of those ex-Members who are now Members of the House of Lords and who were quick to criticise had been prepared to explicitly produce their bank statements, we might have been able to see what they claimed in parliamentary expenses.
However, that is not the reason I am on my feet. Forgive me if I do not get the first name right, but I remember Harold McCusker, who went to jail on a principle regarding the Troubles in Northern Ireland. He had a different point of view from myself and the noble Lord, Lord Maginnis, but I got on well with Harold McCusker. After he came out of jail, he said to me that it is a very humbling experience when the door is slammed on a prison cell, and you are in there wondering whether you have done the right thing. I often read the lovely articles that the noble Lord, Lord Finkelstein, writes when he speaks about recall and I ask him to think about the following point that I would like to make about expenses.
The media have their favourites—let us not kid ourselves. I go back to the expenses. There was a Member of Parliament—and good luck to him; I do not like using names, and in fact, I think there is a rule that we should not criticise Members of Parliament in the other place—who got into serious difficulty. Members of the media publicly said, and they were entitled to do so, “Well, you see, he was gay. He did not want his mother to find out about it”—I am not going to hammer this home—“because he was a Catholic”. Well, my mother brought up five children, and she was the most devout Catholic I ever met and am ever likely to meet. I tell you this: she would have known if one of her sons was gay. Then I look at the sum concerned, quite a fantastic sum of money. The power of forgiveness is important, and I do not deny anybody the right to defend someone who has erred. I think it was Robert Burns who said:
“Then gently scan your brother man,
Still gentler sister woman”,
and if you find that they have erred:
“To step aside is human”.
Here is the point I make to the noble Lord, Lord Finkelstein, and maybe he can think about it with some of his friends in the media. There was a man in the other place who went to prison. Those of us who were dealing with that individual before he went to prison knew that he should have been cared for with regards to alcoholism. He should have been in the Priory or some other institution. I speak as a teetotaller. At that time I spoke to parliamentary Whips about his difficulties. Anyone who knows about alcoholism knows that one of the difficulties with an alcoholic is you sometimes cannot tell them that they are their own worst enemy. For a small amount, he went to jail. Not one individual in the media stood up and said, “That man needs help rather than prison”.
Here is where I go when we come to recall. You get a recall, and let us say that you get people in a marginal seat. There could be a single issue in that constituency at that time. It could be a threatened hospital closure or some other big issue. Then mob rule can prevail.
The other place is entitled to do what it wants. Our great strength is to draw on our experience and the life that we have had and to say, “Watch, and be very careful what you are doing”. The aftermath of the expenses fiasco—the debacle, the scandal—has meant that it introduced IPSA. No one can even purchase as much as a postage stamp or a half a pint of milk but it has got to be made public. There is talk and complaint about that. The rigid system that exists there has come out of the difficulties of the past. We have a serious problem. Any time that I have been involved in legislation where both sides of the House and the third party are in agreement, then within a short space of time we rue the day that we made that decision.
Baroness Hayter of Kentish Town (Lab)
My Lords, this has turned out to be a rather more interesting discussion on the amendments than I had anticipated. I do not want to repeat my Second Reading speech, but I remind the House that particularly this third arm, if you like, was added by our party with great support in the other place. It was not added because some of us wanted to be Ministers. In fact, when some of us supported it, we were not even in this House. It was because those outside Parliament were deeply shocked when they saw MPs doing things which, if they were in any other profession, would have lost them their jobs. They saw these people still turning up at their place of work the day after they had done things that any other employer would have dismissed them for.
Lord Gardiner of Kimble
My Lords, we have undoubtedly had a very wide-ranging and interesting debate, and I think that we have all conceded that, in this first group of amendments, we have gone to the heart of some of the issues that were discussed at Second Reading. It is important to have listened in particular to the experiences of those who have been Members of the other place. After Second Reading I spoke to a noble Lord who was unhappy about the Bill and asked him how he would have felt if he had been in the other place and had heard that we here had gone beyond observing and had objected to how the other place should discipline itself. Not having been in the other place, I therefore come to these matters with some hesitation, but I am also conscious of noble Lords who have had the privilege of being in the other place and of the experience that they bring with it.
I was struck particularly by what the noble Baroness, Lady Taylor of Bolton, said about representative democracy. I said my opening speech at Second Reading that we should seek and ensure that representative democracy is not thwarted by the intentions of this Bill—I have not looked it up, but I know that I mentioned it, because I think that it is something we hold extremely dear. It is very important and it is why the triggers proposed are specifically to do with what has been considered in the other place to be serious wrongdoing. I understand the arguments about mission creep, but this is the Bill that is before us, which is a reflection that things have happened that we hope will never happen again.
I join the noble Baroness, Lady Hayter, in hoping that the Bill will be on the statute book and that there is never a trigger for it to be used—but this was in the manifestos of the Conservative Party, the Labour Party and the Liberal Democrat Party. It is a reflection that things had gone wrong—yes, involving a few people—and were a part of what Members of the other place are now having to live with. The wrongdoing by a few people has affected all too often the trust in one of the most important parts, if not the most important part, of our constitution—a place where the representation of the people and democracy lie.
I understand a lot of what has been said by noble Lords. I was particularly struck—I think my noble friend Lord Finkelstein mentioned this—by what the noble Lord, Lord Grocott, said about triggering a by-election. What this does—I know the noble Lord knows this—is trigger a recall process. It does not trigger a by-election. If, under the threshold decided, they did not wish to sign up, there would not be a by-election. But in a sense it is an opportunity—and I am intrigued about this—for representative democracy to speak again. Of course, there is nothing to stop the Member of Parliament choosing to stand in the by-election. I drew somewhat different conclusions on trying to keep the balance of representative democracy, but I think that they are terribly important.
Lord Forsyth of Drumlean (Con)
Just on that narrow point that there is nothing to stop the Member of Parliament standing in the by-election, is it conceivable that a party leader would sign up that person to be a candidate for the party in those circumstances? If not, that would prevent them standing in a by-election.
Lord Gardiner of Kimble
My Lords, I did not say at all whether they would stand on their former party ticket, but there is nothing to stop the Member of Parliament standing in their constituency. That is the whole point of the commentary.
Lord Snape (Lab)
On that particular point, perhaps I could ask the Minister about the case—I think it was the Littleborough by-election—where the Labour Member of Parliament was disqualified and prevented from standing again by a court judgment. Have the Government got anything to say about that in the context of this Bill and these amendments?
Lord Gardiner of Kimble
My understanding is that the gentleman would no longer be disqualified.
I will conclude, because in effect these amendments are technical. They are about implementing the will of the other place and ensuring that all convictions for providing false or misleading information in relation to parliamentary expenses claims under Section 10 of the Parliamentary Standards Act—
Lord Grocott
I know that the Minister is being patient and reading his resounding conclusion. He mentioned decisions in the other place, and quite rightly and properly treating them with enormous respect. He even gave us the figures—I think he said that the vote on this amendment was 281 to 2. The figures themselves—I put it to the noble Lord gently—tell a bigger story than they apparently present. In my maths, something like 370 Members did not take part in the vote at all. I think we all know part of the reason why that took place in the way that it did. It is because many Members feel very intimidated indeed about making a stance on issues relating to parliamentary expenses. One can understand it with an election just around the corner. Please can we make it almost a rule in Committee that large majorities with even larger numbers of absentees do not necessarily mean the wholehearted support and commitment of the House of Commons?
Lord Gardiner of Kimble
Well, the obvious rejoinder—I am sure that the noble Lord will take this in the spirit I intend—is that if one looks at the voting numbers and abstentions in a House that is considered by many to be rather too large, one might get an interesting result. So I am not sure that I am fully persuaded, although of course I understand what the noble Lord is seeking to do.
I should conclude, because a lot of the points made by noble Lords have been of a Second Reading variety. My task before your Lordships is to move amendments that we believe are necessary to effect what the House of Commons has sent us. They are, as I say, technical and consequential, but they have given us a good opportunity to open the batting. I know that there will be other amendments where some of the details of some of the points noble Lords have made in their opening remarks can be discussed fully.
Lord Tyler
Lord Tyler
My Lords, with my Anglican ancestry and upbringing, I like to start with a text. Perhaps I should say in parenthesis that I am the black sheep of the family. The text is as follows. It says that,
“the provision that an MP should be subject to recall where he or she is suspended from the House for ten sittings days or more means that it will be MPs themselves, rather than voters, who under this scenario determine whether the recall process can be triggered. The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”—
amen to that.
That is a quotation from the summary of the analysis by the Constitution Committee of this part of the Bill, and I think that it is exactly spot-on. I am especially pleased to have the support of my noble friend Lord Lexden, who is a member of the committee, for the group of probing amendments that we are putting before your Lordships’ House this afternoon. Our overall purpose is to respond in detail to that challenge from the Constitution Committee, which was echoed at Second Reading by the noble Lord, Lord Norton of Louth, who I am delighted to see here, because I know that he has been on public duty elsewhere.
In short, the Bill is defective in that it does not do what it says on the tin. It creates no greater independent accountability of MPs to voters. To emphasise that weakness and to respond to the widespread concern expressed at Second Reading, Amendment 2 simply calls into question the current priorities of the Bill. It is no more than a marker put down to enable the full package—probing Amendments 25 to 32—to be considered as a further and better route to the recall process.
I am extremely grateful to the noble Lord, Lord Alton, and my noble friend Lord Lexden for all the help that they have given me and for their support in putting together this package. Indeed, we have had most welcome encouragement and practical advice from all parts of the House and beyond, not least as result of the offer from the Minister in charge of the Bill, Mr Greg Clark, who said in the final stages of Committee consideration that,
“we are open to ways to improve the Bill and we stand by that commitment”.—[Official Report, Commons, 24/11/14; col. 681.]
He was as good as his word. We three signatories—and those who assisted us—are in no way committed to every detail of this package of proposals to solve the core problem identified by the Constitution Committee. We are committed to demonstrate the severity of that problem and to persuade Ministers that it cannot be allowed to survive in the Bill.
Before I set out the specific proposals contained in Amendments 25 to 32, I should reassure your Lordships about what they do not do. I suspect that few colleagues in this House would want to revive the very wide-ranging recall propositions that were so soundly defeated on a free vote in the Commons. As a former Member of Parliament, and one who has always cherished the right and duty of the elected representative to use his or her judgment, to exercise his or her conscience and to apply his or her principles with integrity in the interests of both the country at large and/or their constituents, the notion that that role could or should be subjected to vexatious, trivial or bullying challenge by wealthy special interest campaigns is anathema—as I know it is to many other Members who have contributed this afternoon. In short, the very fact that someone disagrees with an MP should never be grounds for recall. That echoes what many Members have said this afternoon.
I know all too well how invidious that would be. I was once elected with a minuscule majority. On that occasion, there were at least 20,274 voters who would happily have evicted me at the first opportunity. The recall process should not be able to be used to undermine the legitimacy of the electoral process and an election result.
We have sought to devise a process which retains a filtering stage but which puts that filter into independent territory. This avoids the MPs themselves being given, as a regular responsibility, the invidious task of determining whether a colleague—or a political opponent—is to be subjected to the next stage of the recall challenge. It therefore avoids the regrettable but inevitable politicisation of the Standards Committee that is, at present, implicit in this part of the Bill. This was so effectively demonstrated at Second Reading by the noble Lord, Lord Campbell-Savours, and others. I must say again that I am so sad that the noble Lord is not in his place today. I have had many conversations with him but he is simply not well enough to be with us. He may not agree precisely with my resolution of this problem but he was very effective at demonstrating its very serious nature.
Lord Howarth of Newport (Lab)
My Lords, how are these amendments and the proposition that has just been put to the House by the noble Lord, Lord Tyler, reconcilable with Article 9 of the Bill of Rights 1689? I remind noble Lords of the wording of Article 9:
“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
The noble Lord, Lord Tyler, is a confident constitutional reformer but it is certainly brave to seek to overturn the Bill of Rights, if I understand correctly what he is doing. He also seeks to overturn the doctrine of exclusive cognisance which has always formed a central part of parliamentary privilege.
It seems to me that these are crucial points at issue as we consider these amendments. It is proposed that there will be a parliamentary misconduct petition that will be heard and considered by two judges on the rota for the hearing of parliamentary misconduct petitions. They are to handle themselves—as nearly as circumstances admit—as if they were a High Court. They will have powers to compel individuals to attend as witnesses. I am not sure whether those powers would extend to compelling Members of Parliament themselves to attend as witnesses; certainly it is proposed that the Parliamentary Commissioner for Standards should be subject to this requirement. It is proposed in Amendment 30 that a parliamentary misconduct petition,
“shall be tried in an open hearing without a jury”,
by these two judges on the rota. We are told further on in Amendment 30—the noble Lord emphasised these points when he ran through subsection (3) of the proposed new clause—that the parliamentary misconduct hearing,
“may consider evidence adduced by the petitioners that the respondent has … contravened the code of conduct for MPs operated by the House of Commons … failed to attend the House of Commons for a period of six months … otherwise abused or brought into disrepute the office of Member of Parliament”.
It seems to me that what we have going on here is a questioning in, if not a court, a place out of Parliament of proceedings in Parliament. Moreover, there is to be a low threshold of proof, as again the noble Lord, Lord Tyler, told us. The parliamentary misconduct hearing needs only to be satisfied as to the balance of probabilities before launching this exceedingly drastic process of recall. That process would of course take place, as would the hearings that he has proposed, without the ordinary safeguards that are provided for a defendant in court proceedings.
Along with the fact that we can certainly anticipate that there will be intense media attention and fascination, so that it will be a trial by media as well as a trial by these rather informal judges, it all suggests to me that some fairly rough justice may be in prospect. It is proposed at the end of subsection (12) of the proposed new clause that:
“Where the Speaker receives notification from a parliamentary misconduct hearing … he must follow the procedure set out in section 5 of this Act”.
The amendment actually proposes that this quasi-court should have powers to compel the Speaker of the House of Commons. All that seems very strange, very daring, very unorthodox, very risky and very improper. The Bill of Rights of 1689 is not like any other old statute that a subsequent Parliament is free to amend or repeal. It has a very special status in our constitution and, as I am sure noble Lords would agree, it is not something that we should lightly set aside.
Lord Alton of Liverpool (CB)
My Lords, I will speak very briefly and the Minister knows why. This morning I was able to explain to him that in a few minutes’ time there is to be a memorial service for a former Member of the House of Commons and I have been asked to give one of the tributes there. However, I would not want my silence to be mistaken for somehow resiling on my commitment to support this amendment, to which I have added my signature. The noble Lord, Lord Tyler, has made a very persuasive case in your Lordships’ House today. Although I will reserve my remarks to Report because I will not be able to be present to hear the Minister’s reply, I hope that between now and then he will have time to give great consideration to the powerful points that have been made. I read the Second Reading speech of the noble Lord, Lord Howarth, which was a very telling contribution to the debate, in which he argued that this is a bad Bill and is probably incapable of being made better. I rather agree with him on that. However, I do think that the noble Lord, Lord Tyler, is at least making a valiant effort to try to point us in the right direction. Much of the wording is of course taken from the Representation of the People Act.
I served on the Committee of Privileges in the other place and fought seven parliamentary elections, winning five of them, including a by-election. I therefore have a view about these things, which I will express at a later stage. I would never want this legislation to be used to undermine Members of the House of Commons. That should be a fundamental concern of your Lordships’ House. I served as a Member in Merseyside. I saw one of the most assiduous and respected Members, Frank Field, who continues in the House of Commons to this day, spend days, weeks and months fighting attempts to deselect him and remove him from the House of Commons. We should resist with all our might anything that can be used in a vexatious way to undermine MPs such as Frank Field. I hope that we will not therefore be frightened to send amendments back to another place so that they can give them due and proper consideration. I apologise for not being able to stay to hear the Minister’s reply.
Lord Soley (Lab)
I begin with an apology to the noble Lord, Lord Tyler—two apologies, to get my mea culpas out of the way: first, because I missed some of his opening remarks on these amendments, and secondly, because he was good enough to send them to me in detail a week ago or so by e-mail, and ask for a response. I have not given him that response yet—he is about to get it now. I have to say that this is a seriously bad idea. A core reason is that it brings judges into a direct role with Parliament, which judges themselves will resist very strongly. They will be right to resist it, because once we blur that line between parliamentary democracy and the judiciary we get into very murky waters, where you end up drawing lines where you do not wish to draw them. I am sure—and if there are lawyers here at the moment, they will be the first to agree—that the thing judges hate more than anything else is trying to deal with political cases. So I strongly recommend that we do not go down this road. I will go into just a little more detail—I do not want to spend long on it. The principal point here is the all-important one: judges and Parliament should be kept separate as far as possible.
On the secondary matter of misbehaviour, the misconduct issue is incredibly hard to interpret when it takes place in the context of politics. Many examples have already been given of elected Members of Parliament who might get into a situation where they clash with the law because they are either supporting a demonstration or a strike, or opposing it, or taking a stand on any number of other issues, and who may themselves fall foul of the court. In the e-mail the noble Lord, Lord Tyler, sent me he said that he was trying to address some of the points I had raised at Second Reading. However, this does not deal with them—it aggravates matters.
We need, as far as possible, to follow the Burkean principle that parliamentary representation is decided by the electorate, and that by and large you overrule that only in the most extreme cases—murder or other very serious offences of that type. Otherwise, we get into a position where the court decides. That is why I have such a strong objection to what happened in the case of Phil Woolas MP, where the court decided that he could not stand again. It is so profoundly wrong. It goes right back to the battle that Bradlaugh had with Parliament. He refused to take the oath on the Bible, so the House of Commons refused to let him become a Member. He promptly went back to the electorate, who elected him again and so on. One might say that that makes the case because he won, but there are examples where it would not.
The noble Lord, Lord Tyler, did not think that there was much in the slippery slope argument. One case in which it would have been a very slippery slope would have been when an MP objected to the First World War. If we consider the attitude and atmosphere around the country in the context of the First World War, an MP taking a pacifist position might well have been in very serious difficulty. As I said in my Second Reading speech, it is a mistake just to look backwards: look forwards. If people were to campaign for one of the opposition groups in Syria—not ISIL—and if the legislation here on terrorism were so tough that they got arrested when they came back, but the group they had been supporting in Syria was not one of the extreme groups, where would we be?
There are umpteen examples where this goes wrong. We should stick with Burke on this. If the electorate decide that somebody is their MP, that should remain the case until the next general election, unless there are some very special circumstances. The more we pull back from that practice, as Burke himself pointed out, the more difficulties we get into. I know how much thought the noble Lord, Lord Tyler, puts into these things, but I will add that members of the judiciary dread cases where they are pulled into a political process—and they are right to dread them. It is all-important that we keep a clear distinction between the law and Parliament.
Lord Grocott
My Lords, in one respect at least I feel a considerable empathy with the noble Lord, Lord Tyler, and that is in terms of marginal seats. When I was first elected, I had an electorate of 91,000. My opponent got 33,000 votes and I got 33,000 and a few more—so with a margin of about 300-odd and an electorate of 91,000, I can say that an acute awareness of the views of all my electors was never far from my mind. So I can understand that point. How easy it would have been for 10,000 or 15,000, perhaps, to have signed a petition very early on saying that they did not think I was much good as a Member of Parliament.
That is where my sense of understanding ends, because, unless I am reading this very badly, the series of amendments tabled by the noble Lord, Lord Tyler, give effect to the thin end of the wedge argument that we have raised repeatedly, and about which we have been told not to worry. The new clause proposed in Amendment 30, “Hearing of parliamentary misconduct petition”, states, in proposed new subsection (3):
“The parliamentary misconduct hearing may consider evidence adduced by the petitioners that the respondent has”—
in proposed new subsection (3)(f)—
“brought into disrepute the office of Member of Parliament”.
I cannot think of an easier basis on which to claim that a Member of Parliament is not acting as perhaps he should have been.
The noble Lord will no doubt take this as a direct attack on his party, but I am afraid that it is the best example that I can think of. I repeat that information may be adduced that a Member by his conduct has,
“brought into disrepute the office of Member of Parliament”.
I simply put it to him is as neutral a way as I possibly can the example of a Member of Parliament who, immediately prior to an election, appears on video saying, “We will abolish student fees”, and, within six months or so of being elected, becomes a key member of a Government who argue passionately for the trebling of student fees. I do not happen to think that that should be a reason for petitioning—
Lord Forsyth of Drumlean
Is that not covered by proposed new subsection (8) in Amendment 30, which excludes parliamentary conduct in a ministerial capacity? I wondered why that was there. The noble Lord has enlightened me.
Lord Grocott
If that is the answer, it is, as I think the noble Lord, Lord Forsyth, knows perfectly well, not a very good one.
As I say, I simply put it to the noble Lord, Lord Tyler, that the proposed measure is so all-encompassing that the thin end of the wedge argument is encapsulated in these amendments. I do not want to see MPs thrown out in these circumstances. I do not want to get personal and refer to any particular MP who I would be very pleased to see spend more time with his family. However, we should not seek to remove Members of Parliament for certain actions that they have taken, for which they are answerable in any case as and when a general election comes about.
Lord Martin of Springburn
My Lords, I hope noble Lords will forgive me if I have misunderstood the comments of the noble Lord, Lord Tyler, but I think that he said that there was an exception to the rule in the case of some Members of Parliament from Northern Ireland who make it a point not to come to Westminster to take the oath. However, we have been talking about expenses and it should be remembered that the Members concerned are not slow to claim their full expenses, including secretarial expenses, and in some cases—I hope noble Lords will forgive me if I am wrong—I believe that they claim their allowance for living in London. I am very fond of Northern Ireland but I remember that a Member of Parliament from Northern Ireland, Frank Maguire, who may have served alongside the noble Lord, Lord Tyler, was famous in connection with a vote of confidence. Frank promised his electorate that, if elected, he would attend Westminster only when abortion was being discussed and for nothing else. We could have a situation whereby some Members of Parliament would not even be looked at by the proposed judicial body whereas others would be by reason of their non-attendance. That is where I see flaws in the argument.
Lord Cormack
My Lords, I shall never forget Frank Maguire on that March evening in 1979. He had been brought over to sustain the Labour Government. He was hospitably entertained during the day and then came the vote. The Government fell by one vote and it was discovered that Frank had not voted. “Ah, but to be sure, I came to abstain in person”, said Frank. He was behaving entirely properly as a Member of Parliament. He had laid before his electorate the terms on which he sought to be elected.
I say to my noble friend Lord Tyler, for whom I have an affectionate regard, that his series of amendments would just make a bad Bill worse for the reasons alluded to in a very elegant brief speech by the noble Lord, Lord Howarth—namely, that they would introduce another constraining element. A Member of Parliament should not be cribbed, cabined or confined in any way. He or she should be able to—following the Burkean principle—give of their industry, knowledge and service to their constituents, but they should not be delegates.
That means that from time to time a Member of Parliament will be at odds with a large percentage of his constituents. As the noble Lord, Lord Grocott, and my noble friend Lord Tyler have tellingly illustrated, when a Member of Parliament is elected he may often have the tiniest and flimsiest of majorities. By definition, those who voted against him will be disappointed by the result. But disappointment should not in any way be a springboard for action against that Member.
Lord Maxton (Lab)
Within my own party, the Member of Parliament would have to go through a process before he stood before the constituency: he would have to be reselected by his own party as the candidate.
Lord Cormack
Oh yes, I know all about that, because they tried to get rid of me on two or three occasions. I know all about reselection. But that, in a sense, is not the point. It is for the electors, at the end of the day, to make the decision, and they have to take into account the record, and the assiduity, of the Member of Parliament.
When I was canvassing I used to say, “No Member of Parliament is ever a mirror of all your beliefs and prejudices—and everybody has both. You have to decide which candidate is better able—or best able, if there are more than two candidates—to represent you. You have to decide which is the one with whom you can identify on more fronts than not”. Constituents will take into account not only the record of the Member, but his attendance record.
In one sense I sympathise with the motive behind the six-month provision. But if a Member has not attended for six months, why is that the case? Somebody has already cited the Sinn Fein Members of the other place. They have been legitimately elected, and they should not be illegitimately ejected because they have done neither more nor less than they promised to do.
Baroness Oppenheim-Barnes (Con)
In that precise context, does my noble friend not recall the occasion when Bernadette Devlin crossed the Floor and hit Reginald Maudling, and was not expelled from the House but was defeated at the next election?
Lord Cormack
I well remember that: I was sitting just behind when Reginald Maudling made his Statement. It was after Bloody Sunday, and it was a moment of high drama and great tragedy. A diminutive figure came dashing across the House and started to belabour the Home Secretary. As she did so, one of his Front-Bench colleagues grabbed at that slight figure, and Lord Home—Sir Alec Douglas-Home, as he was in the House of Commons—said, “Just you be careful what you do with a lady”. I shall never forget that. It is one of the vignettes I often recall. She was motivated by high emotion and did something that truly she should not have done. I remember a Labour Member punching Jeremy Thorpe when the result of the vote to go into the Common Market was declared. The Member was restrained, but was anything done? Of course not. At moments of high drama, things that should not be done sometimes are done; but subjecting such MPs to the sort of quasi-judicial process that this series of amendments propose—in good faith, I know—is just not on. Although it is, as I say yet again, for the House of Commons to determine its rules, we—particularly those of us with long experience in that place—have the right not to throw this measure out but to say, “Hold on a minute”. I hope that in the next Parliament there will be—to use the awful American jargon—a revisiting of this Bill.
Lord Snape (Lab)
My Lords, I made my view on the Bill plain at Second Reading, and I will try not to repeat anything that I said then. I am going to break that promise straight away. I said then that I could not imagine anything that could make this Bill worse, except perhaps for the coercion of the two Front Benches. But these amendments from the noble Lord, Lord Tyler, make an appalling Bill even worse, if such a thing were possible.
My noble friend Lord Grocott touched on proposed new subsection 3(f) in Amendment 30, which states:
“subject to the condition in subsection (4), otherwise abused or brought into disrepute the office of Member of Parliament”.
On Second Reading, I said specifically to the noble Lord, Lord Tyler, that there was never a great problem in getting 500 signatures in any constituency on any matter at all. Some years ago my noble friend Lord Howarth crossed the Floor in the other place. He will well remember that I attended a meeting in his then constituency of Stratford-on-Avon. The meeting was fairly heated, as one can imagine, and a number of the people there would not only have signed a petition to achieve the magic 500 but taken him outside and hanged him, I should have thought. They probably would have taken me outside and hanged me, too, for chairing the meeting. So I should think that there would not have been any great difficulty in getting that number of signatures, or getting some of those people together to say that my noble friend, for one reason or another, had somehow brought Parliament into disrepute.
Lord Howarth of Newport
My noble friend does not exaggerate. At the Conservative Party conference that year there were lapel stickers saying, “Hang Howarth”—which, it seems, were very popular. I tried to get hold of one but never succeeded. It may be that noble Lords can still find one in their own archives.
Lord Snape
I have to say that, having spent 27 years in the other place, I never achieved such notoriety in West Bromwich. There is still time, of course. One never knows.
The noble Lord, Lord Tyler, ought to reflect that his own distinguished parliamentary career was sadly brought to an end without the necessity for this Bill, without the coercion of the two Front Benches and without these amendments which he has tabled. It was a matter of deep regret to us all, though particularly to him, that that event transpired in the way that it did. The fact is that these amendments illustrate the dangers of the Bill. I hesitate to use the clichés about a slippery slope, but we are on one. Members of the other place are apparently intent on this self-flagellation. There is not much that we can do about that except try to stay their hand occasionally to make sure that the scars they leave on themselves are not too deep.
Lord Forsyth of Drumlean
My Lords, I listened to the Second Reading debate but did not participate because it was one of those occasions where I was not exactly sure what I thought about it. Having read the Bill, I am still not sure, and having considered this amendment, I am completely confused. This amendment is less of a slippery slope and more of a cliff. If the House will forgive me for mixing metaphors, it is also a Pandora’s box. To be fair to the noble Lord, Lord Tyler, I entirely agree with the motors that have driven him to put forward this amendment together with those colleagues who have signed it. It arises from a very important point made by the noble Lord who was the Member for Warrington—
Lord Forsyth of Drumlean
No. It was made on Second Reading. He said that this puts enormous political pressure on—it politicises—the Standards Committee, because of the mechanism.
Lord Forsyth of Drumlean
It was the noble Lord, Lord Campbell-Savours. How could I possibly have forgotten his name, when he gave me such a hard time in the House of Commons? He made an intervention in the Second Reading debate in which he set out the problem with the Bill. I think that that is what has driven the noble Lord, Lord Tyler, to produce these amendments. I do not want to repeat the arguments that were made very well by the noble Lord, Lord Howarth, but this is a huge constitutional change. One of the things that worries me about what is going on at the other end of the corridor is the way in which Members of Parliament are, bit by bit, dissolving their authority and removing the primacy of the House of Commons. This is a step in that direction. If we were to agree this amendment, it would not pass power to the electorate and the voters; it would pass power to the editor of the Times and the editor of the Daily Mail. I say that in all friendliness to my noble friend Lord Finkelstein.
There is another example of the way in which the independence of Members of Parliament has been altered, and it applies to all parties; I certainly know that it applies in my own party. When I was first elected as an MP, or selected as a candidate, the people who were in Central Office in those days were on my side and wanted to get me into Parliament. I am sure that they are still on my side. They wanted to get me into the House of Commons. However, it would have been absolutely fatal if you went to a constituency and it was thought that the party machine wanted you to be selected. The constituencies were completely independent in their approach. Now, you are not allowed to stand as a Conservative candidate unless you have the signature of the leader of the Conservative Party. That is a huge change in the ability of Members of Parliament to operate in an independent manner.
I refer to the point that I made in an earlier intervention. The idea that someone who has been subject to the process under the Bill will get the signature of the leader of the party to allow him or her to stand again is heroic. What we are doing here is introducing yet another way in which people can intervene and undermine the independence of MPs and look over their shoulders. Whatever the merits of the Bill, the amendment takes that to another level. Although I understand why my noble friend has put it forward, it makes the situation—as the noble Lord who has just spoken indicated—considerably worse.
If we were to take the high ground that the noble Lord, Lord Tyler, has taken, there is one point about Amendment 30 that is striking. Subsection (8) states:
“In making a determination under subsection (7), a parliamentary misconduct hearing may not consider conduct specifically relating to the respondent’s official duties in a ministerial capacity”.
Why are we giving a bisque—a free ride—to Members of Parliament? This is saying that if a Member of Parliament misleads the House of Commons on a crucial matter, that is not a reason for having a petition and is completely exempt. From the point of view of the ordinary electors—I shall not make any party points about whom that might affect—misleading the House of Commons, whether in a ministerial capacity or as a Back-Bencher, is a grievous thing to do. My noble friend has specifically exempted that, which is why, as I pointed out to the noble Lord, Lord Grocott, his example of the Deputy Prime Minister’s abandoning of his oath on tuition fees would not be covered.
If we were to pass this amendment someone in the press would write it up and say that there is a completely free ride for people in a ministerial capacity. A great cry would then go up that we need to amend the Bill —or that we need to have a new Bill to cover this issue —and asking why that issue is not being covered. Bit by bit we would see the disintegration of our parliamentary democracy and of the independence of our MPs. I therefore hope that my noble friend will reject this.
My noble friend the Minister said that this is a matter for the House of Commons, and I have heard it repeated—that we must not interfere, that this is about the House of Commons making its laws. No, it is not. This is about the constitution of our country. If this House has any job whatever, it is to protect that constitution. If that sometimes means protecting the House of Commons from itself, we should not hesitate to do so. After all, if the House of Commons passed an amendment to the Fixed-term Parliaments Act to change the term from five to seven years, would we argue that this House should not intervene? Of course it would intervene. It has a specific duty to do so.
Lord Maxton
My Lords, I am reluctant to speak in this debate. I did not take part in the Second Reading debate and I have not even read it, unlike the noble Lord.
I am not clear about this amendment. There are two types of misconduct in the House of Commons. There is a very small number MPs who, for whatever reason, fiddle their expenses and who quite rightly should be done for that. Equally, there are Members of Parliament who carry out acts of misconduct in the Chamber of the House of Commons itself, who for whatever reason refuse to obey the Speaker’s rulings, who refuse to sit down, and who will not give way. I have been in the Chamber when, in the end, the Speaker has sometimes been forced to call the Serjeant at Arms to remove the person. The person can then be given a suspension from the House of Commons which is longer than the 10 days. It would trigger these amendments and trigger this Bill, as far as I understand it.
I recall that my uncle, for instance, accused a junior Tory Health Minister at the time—the man was called Banbury—of being a murderer. He was asked by the Speaker to apologise and withdraw the remark, and he refused to do so. He believed that the matter was one of taking milk away from nursing mothers. His wife had just died, after childbirth, as a result of that. He believed that he was right, to the point that he was suspended from the House. It was almost a sine die suspension, in Glasgow football terms. The suspension was in effect until he came to the House and apologised.
I am not sure that these amendments would cover those sorts of offence. If they do, then it is totally wrong that they do. Such offences are a matter of misconduct within the House of Commons Chamber. They break the rules of the House of Commons. It is therefore for the Speaker and Members of the House of Commons to decide that, not for some outside organisation, such as a couple of judges sitting—who, as others have said, would not be prepared to undertake this task.
Lastly, that same uncle of mine did not object to the First World War. It so happens that he was not a Member of Parliament at the time. He went to prison, not because he was a conscientious objector; he went to prison because he committed an act of sedition under the law. He urged munitions workers in Glasgow to go on strike when the war was on. As a result he was sentenced to a year in prison. If he had been a Member of Parliament, would it have been right that he should therefore have been forced into a position in which he could not be one thereafter? Some people would say that it would have been. In my view, he should not have been forced into this position. He would not have been re-elected in 1918 if he had been a Member of Parliament, because Ramsay MacDonald, who was equally opposed to the war, was not re-elected.
Lord Maxton
He soon got back: I accept that. My uncle would have been elected. It was he who coined the phrase: “Why should we bother counting my votes? Let’s just weigh them, because I know I am going to win”.
Lord Howarth of Newport
My noble friend has talked about an important case, arising from his family history and the history of this country. He has just exposed in the Bill that we are examining the inconsistency and confusion between the powers of the Speaker to suspend and the provisions for recall. Do not these demonstrate the regrettable failure of the House of Commons to examine and amend, thoroughly and satisfactorily, legislation of fundamental constitutional importance, and of fundamental importance to its functioning and future? Is that not a good reason why we in this House should feel entitled, with genuine respect, to offer our advice by way of amendments, so that the damage that the House of Commons is inflicting on itself through this measure may be lessened?
Lord Lexden (Con)
My Lords, I am glad to add my name to my noble friend Lord Tyler’s amendments. It is obvious to us all that he has devoted much hard work to them. As he explained, the amendments arise in part as a response to an important issue in the report on this Bill by the Constitution Committee, of which I have the honour to be a member. He quoted a passage from the report that I will repeat. It is immensely important:
“The constitutional purpose of recall is to increase MPs’ direct accountability to their electorates: it is questionable whether that purpose is achieved when the trigger is put in the hands of MPs rather than constituents”.
This is a Recall of MPs Bill. My noble friend’s proposals, embodied in his amendments, represent a first attempt in this House to see if it is possible to find a way of enabling the electorate to be more fully involved in the arrangements that can trigger recall without breaching the famous Burkean principles that safeguard MPs’ independence of judgment. The amendments further develop ideas put forward in another place. They are probing amendments, as my noble friend emphasised. Of course we understand and accept that more work on these amendments would be necessary before Report.
Lord Stoddart of Swindon (Ind Lab)
My Lords, like the noble Lord, Lord Maxton, and others, I did not take part in the Second Reading debate on the Bill because I felt that Members of the House of Commons know best how to control themselves and the relationship they have with the electorate. However, having heard other speeches, I agree that it is incumbent on this House to consider legislation and to have in mind the view, in particular, of the House of Commons.
I believe that this amendment is very dangerous indeed, and I am pleased to have heard the noble Lord, Lord Howarth, state that, if passed, it would in fact be illegal. That is because of the Bill of Rights 1689. No doubt the noble Lord, Lord Tyler, has investigated this and we will hear from him later. This amendment is dangerous in respect of the rights and privileges of the House of Commons. Quite frankly, I am getting fed up with the attacks being made on the House of Commons and its Members. All these attacks which describe them as shysters and people who concerned only for themselves do extreme damage not only to the House of Commons but to parliamentary democracy itself. People should remember that Parliament is the protector of the people against unfair government. We and the House of Commons are the protectors of the people. It is therefore very important that we should not denigrate the position of MPs. I believe that this amendment does exactly that. It is unnecessary and it denigrates the position of the House of Commons.
In effect, the House of Commons will decide whether an issue about a Member of Parliament should go to the electorate in a referendum, and I believe that that is the correct way. The amendment suggests that the House of Commons itself is not fit to do that. I repeat: that will undermine the position of the House of Commons itself, of its Members and, indeed, of Parliament. I cannot accept a situation where 500 people who are completely unqualified and lack knowledge, for some reason that is not really injurious to Parliament and to the House of Commons—this has been explained by many speakers in the debate—can introduce a position where judges can interfere in the decisions of Parliament, which of course should be sovereign. If we take away decision-making from Parliament and the House of Commons, they really will cease to be sovereign. For that reason, if the amendment is put to a vote—although I am sure that it will not be—I will vote against it.
Lord Kerr of Kinlochard (CB)
My Lords, I want to say just a word in support of what the noble Lord, Lord Forsyth, said against the notion that this is purely House of Commons business. That must be wrong. For example, it would be very useful to know whether the noble Lord, Lord Tyler, believes that the judicial procedure he has set out consisting of two judges who will consider cases of parliamentary misconduct would be confined only to allegations of parliamentary misconduct at the other end of the corridor. That seems to be rather illogical and therefore his amendment is absolutely our business. Of course, he is proposing the amendment, so he will not agree with that.
The amendment is extremely dangerous for all the reasons that have emerged, and particularly the first reason, which was so well explained by the noble Lord, Lord Howarth. I have to say that I think that the Bill as a whole is extremely dangerous even as it is. Mine is the Burkean principle. Members of Parliament are sent up not to represent the views of their constituents, but to exercise their judgment. They are chosen on the quality of their judgment, so for all those reasons the Bill is defective.
The only speech in this debate which has surprised and disappointed me was that of the noble Lord, Lord Finkelstein, for whom I have enormous respect. I think that he has been lunching too often with that chicken.
Baroness Hayter of Kentish Town
I apologise for leaping to my feet too quickly. I was going to say that in over an hour of debate the amendments have found no favour in the Committee, other than from those who added their names to them, and I will not alter that in what I say now. Having heard the name of Bernadette Devlin, I am going to share a secret with the small gathering in this Chamber. I was not actually born blonde. It may surprise noble Lords to hear this, but I looked very much like Bernadette Devlin. When walking around London I was for ever being stopped and I had interesting discussions. It is a long time since that has come to mind.
It is clear that the noble Lord, Lord Tyler, has devoted a great deal to these amendments but, in the words of the last two noble Lords to have spoken, they are, if not dangerous, certainly full of major problems. The amendments would catapult relatively minor misdemeanours well above our legal means of resolving alleged wrongdoings—and that starts with only 500 signatures. I could certainly get that number on a Saturday morning in busy Kentish Town. That would bring an MP not simply to the police, to the DPP or even to a magistrates’ court to see whether there was a case to answer, but up and over all of that to a judge, possibly on the basis of no evidence—simply following an allegation. The allegation would not have to be tested or proved at any level, nor would any suspicions have to be verified. Indeed, the issue could be entirely without merit and without evidence. It could be based on mistaken identity. Moreover, if the complaint against an MP is not criminal, why on earth would it go before a judge-led hearing? I assume it would not be criminal because the amendments state that the hearing would,
“be suspended if any of the matters under consideration are the subject of criminal investigation or criminal proceedings”.
I think that means that we are talking about something which is not even criminal, yet it would go to a higher level than things that would normally go to a magistrates’ court and be tested by a presenter or a prosecutor. I really do not understand why this is being taken to that level. What the amendments will do is up the ante, if you like, of misdemeanours to above the criminal, and straight before not just a single judge but a double-judge hearing. As a former magistrate, I find that quite difficult to understand. We were able to hear many cases of criminal wrongdoing and even indictable offences to see whether there was a case to answer. However, there would be no such filters on this.
There are also big questions which have already been touched on as to rules of evidence, legal representation, hearsay evidence, cross-examination and the disclosure of previous convictions. These are big issues. To bring someone in front of a court—the word “trial” has been used—on the basis of nil evidence is extremely worrying. The amendments would even force witnesses to attend, at the risk of being in contempt of court. As a magistrate, I do not believe that I had the right to do that. This is a heavy sledgehammer to use on what might be a completely unproven allegation, and certainly something of a non-criminal nature which otherwise would be dealt with separately.
What is this misconduct? If it is not a crime and it is not being dealt with by the police, what is it? Is it non-appearance, because people have said that they would not come? Is it about an MP being in Barbados for the past 11 months, although in the current weather I would quite understand if they were over there? What is the nature of bringing Parliament into disrepute? I see no merit at all in these amendments, and the speeches so far probably concur with that. I trust that we will not see them back at the Report stage.
Lord Gardiner of Kimble
My Lords, yet again we have had a thought-provoking and thorough debate. I acknowledge the work that my noble friend has devoted to this matter. As your Lordships know, the amendments are a modified version of those brought forward in Committee and on Report in the other place. The underlying principle behind involving the public in initiating the recall process for reasons of misconduct did indeed attract some support in the other place. Although I know that I shall not receive the approval of the noble Lord, Lord Grocott, it is interesting to see that these amendments were rejected in the other place by 271 votes to 64.
My noble friend’s Amendment 2 would remove the first and second recall conditions yet retain the third. The proposed new clauses create the concept of a parliamentary misconduct hearing, which would involve two judges examining the behaviour of an MP if the hearing received a petition alleging certain forms of misconduct that had been signed by 500 constituents. The parliamentary misconduct hearing would not be required to determine guilt to a criminal standard but rather whether parliamentary misconduct had on the balance of probabilities taken place. The noble Lord, Lord Howarth of Newport, highlighted this.
Turning to some of the detail of the amendments, the number of petitioners necessary for the parliamentary misconduct hearing to consider the allegation has been proposed at 500. The aim is to give the public some involvement in initiating the process. Of course, if it is alleged that a criminal offence has been committed, it takes only one person to make a complaint for that to be investigated by the police, for instance. 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 public will, is the number of 500 constituents perhaps too low? My noble friend has explained in detail the behaviour that the parliamentary misconduct hearing is being asked to judge. I am not going to outline that further, given the time.
Criminal matters, which could include bribery and misconduct in public office, as well as offences relating to parliamentary expenses, would be investigated by the police and adjudicated by the courts. However, my noble friend proposes that criminal convictions and prison sentences should not be a trigger for recall, except for offences regarding parliamentary expenses. The trigger my noble friend proposes is a finding by the hearing that on the balance of probabilities the misconduct took place—a lower standard of proof than that used in criminal cases.
Matters that fall under the Code of Conduct can be examined by the Parliamentary Standards Commissioner, the Standards Committee and the House of Commons, which can order suspension. The proposals in the Bill are that a suspension of more than 10 sitting days could trigger recall. My noble friend’s amendments would not prevent investigation by the Parliamentary Standards Commissioner or the Standards Committee or suspension from the House taking place; they would simply decouple it from recall. So there could be a parallel process of investigation by the commissioner, the committee or the House, and a parliamentary misconduct hearing—all of which, of course, could reach different views.
I turn to parliamentary privilege, which was first raised by the noble Lord, Lord Howarth of Newport. In addition to the proposed parliamentary misconduct hearing set out in these amendments, there are the serious concerns that noble Lords have quite widely expressed vis-à-vis the interaction with parliamentary privilege. For the parliamentary misconduct hearing to have any real effect, it is likely that the judges appointed to determine misconduct would need to question proceedings in Parliament and would need to examine issues that are covered by exclusive cognisance; that is, that Parliament has sole jurisdiction over its own affairs, including standards and discipline. As the noble Lord, Lord Howarth of Newport, identified, that would be contrary to the protection afforded by the Bill of Rights; for example, the provisions in the amendments would give a role to the hearing to examine breaches of MPs’ conduct, which would impinge on exclusive cognisance.
It is also proposed that the parliamentary misconduct hearing would be able to look at issues such as cash for questions, attendance in the House and abusing or bringing into disrepute the office of a Member of Parliament—all matters which are to some extent likely to be covered by privilege. The provisions also set out standards for Members of Parliament by defining parliamentary misconduct as non-attendance in a six-month period. However, the amendments are silent on the interaction with parliamentary privilege.
Of course, Parliament does possess the ability to allow a hearing to deal with matters that fall under its exclusive cognisance, and to question proceedings in Parliament. However, if we are to take such a momentous decision, we should be fully aware of what we are doing, and there needs to be an overriding reason to do so. The problem the Government face is not being convinced that either of these conditions has been met. The type of wrongdoing covered by this alternative trigger already triggers a recall petition under the conditions in the Government’s Bill. The triggers in the Government’s Bill, whether noble Lords like the Bill or not, are intended to fit in with the disciplinary and constitutional arrangements of our Parliament.
I turn to the relationship with criminal prosecution. While the amendment contains a provision to allow for the suspension of a hearing in the case of a criminal investigation or criminal proceedings, it may be that these would be initiated only due to testimony in or judgment of the hearing. In the case of alleged criminal misconduct, if the defence had already been rehearsed before a parliamentary misconduct hearing, or the hearing’s finding was considered prejudicial to the MP’s presumption of innocence, it may not be possible for the MP to have a fair trial. The fact that an MP had to answer allegations in a parliamentary misconduct hearing could prevent him or her from facing criminal prosecution for misconduct that amounts to a criminal offence.
I am very conscious that my noble friend has devoted a lot of time and work to putting forward his amendments, given some of the background to why we are where we are. I hope your Lordships will understand that we feel there are very serious matters, which your Lordships and I have endeavoured to outline, that are of sufficient concern that I ask my noble friend to withdraw his amendment.
Lord Tyler
My Lords, I am very grateful to my noble friend the Minister for his careful response to our probing amendments. Perhaps I should put on record that, as I understand it, as far as both the circumstances to which the noble Lord, Lord Maxton, and my noble friend Lord Forsyth referred are concerned—in one case, the suspension of a Member in the House of Commons—absolutely nothing changes in the Bill as it stands, or in my amendments. It is as it was and would continue to be. In the case of any Member—Minister or not—misleading the House of Commons, there is a very clear process for what then happens. I do not think that is affected by the Bill. It certainly is not affected by my amendments.
There has quite properly been a discussion about the relationship of our set of probing amendments to the Bill of Rights—
Lord Forsyth of Drumlean
I apologise for interrupting. My noble friend says that the amendment does not affect that. The amendment states:
“In making a determination under subsection (7), a parliamentary misconduct hearing may not consider conduct specifically relating to the respondent’s official duties in a ministerial capacity”.
So if, as a Minister, he has misled the House, is that not a “get out of jail free” card?
Lord Tyler
It certainly is not, because it is covered by quite different regulation and control: the code of ministerial conduct. It is the responsibility of the Member concerned, whether a Minister or not, if he or she misleads the House of Commons, it is still exactly the same position; it is not affected by the Bill. If it was necessary for avoidance of doubt to make that clear, we could obviously do so.
Baroness Taylor of Bolton
I understand what the noble Lord is saying about the Code of Conduct, but that would not trigger recall.
Baroness Taylor of Bolton
Therefore, Ministers are being treated in a different way from Back-Benchers.
Lord Tyler
As the noble Baroness will know from her ministerial experience, they are already under the Ministerial Code—properly so. I want to turn to the critical issue, which is of course the one raised by the noble Lord, Lord Howarth, about the Bill of Rights, parliamentary privilege and exclusive competence. I am not a lawyer but I experienced—or suffered, whichever way one wants to say it—two years, I think, sitting on the Joint Committee looking at the issue of parliamentary privilege. As a result of that experience, I contributed to the discussions in this House when we were looking, after the expenses scandal, at the whole issue of IPSA.
What is absolutely clear—my noble friend the Minister effectively made it clear again today—is that if Parliament decides that parliamentary privilege should be constrained in a particular respect, it is up to Parliament to make that decision. That is what the Bill is already doing, to some extent, without my amendments. The noble Lord is quite right that there are implications for parliamentary privilege, but it is not a yes/no or a black/white situation, it is up to Parliament to decide if and when it wants to constrain and restrict its own position in relation to parliamentary privilege.
Lord Howarth of Newport
I am not a constitutional lawyer either, but would the noble Lord agree that the House of Commons now bitterly regrets the passing of the legislation establishing IPSA?
Lord Tyler
I am not sure that the noble Lord was here during the debate on that Bill, but I was and took an extensive part in the debate. I was very concerned about a number of elements, including the way in which MPs seemed to be all too easily restricting their own responsibilities in terms of exclusive cognisance.
I want to go back to the whole rationale for trying to find a route in this particular direction. My noble friend Lord Forsyth, who was as generous as ever in recognising the contribution to the work of this House of his coalition colleagues, identified very precisely that there was a recognition throughout the House at Second Reading—as was made so clear by the Constitution Committee—that putting this new responsibility on the Standards Committee was a serious weakness in the Bill. That is where we are coming from.
My noble friend the Minister has been very generous in his response but there has not been any government reaction to that very serious weakness. Frankly, I do not think that this is a good Bill, but it is made even worse by the responsibilities and the danger of serious politicisation of what has previously not been a political process in the Standards Committee—again, I regret very much that the noble Lord, Lord Campbell-Savours, is not here.
Lord Hamilton of Epsom (Con)
I thought I remembered the noble Lord, Lord Campbell-Savours, saying quite distinctly that there was an awful lot of political interference in the Standards and Privileges Committee, which he was on for a long time.
Lord Tyler
He made it absolutely clear, as would other noble Lords who were there, that the way in which the Bill will now act—if it goes through in its present form—lays an additional and very dangerous responsibility on that committee, with all the potential damage there might be. I say simply to my noble friend the Minister that I have done my best, with my noble friends—I am very grateful for their help and that of other Members of the House—to try to find a solution to the problem that our Constitution Committee put its finger on. We cannot simply walk away from that. As so many Members have said, from all sides of the House, we have a responsibility, in this respect, to save the House of Commons from itself. This part of the Bill is a mess. I do not pretend that my solution is the final answer, but just ask my noble friend the Minister to think again between now and Report to see whether we can find a better way to deal with this particular problem. In the mean time, I am happy to withdraw the amendment.
Lord Foulkes of Cumnock
Lord Foulkes of Cumnock
My Lords, this has been an interesting diversion down the highways and byways of Liberal land. Fortunately, it has come to a dead end. We now come to a large number of amendments, which illustrate the practical problems arising with the Bill. I say to all Members, but particularly to the noble Lord, Lord Finkelstein, who has been assiduous in his attendance today, that some of my amendments are probing amendments. If he, or indeed any noble Lord, should find any contradiction between one and another of them, it is entirely because they are there—I say this to both Ministers as well—to explore the issues rather than to be definitive as to what either I or the other signatories believe.
I will speak to the other amendments that are in my name and in the name of some of my colleagues, but the first amendment states:
“Page 1, line 13, after ‘Kingdom’ insert ‘or elsewhere’”.
The clause refers to an MP having been,
“convicted in the United Kingdom of an offence and sentenced or ordered to be imprisoned or detained”.
It is limited to the United Kingdom, but it is not clear why the conviction of the MP is limited to convictions in the United Kingdom. This is quite a good amendment, because I did not draft it. It was drafted by the Law Society of Scotland, which, as my noble friend Lord Forsyth will know, is a very reputable group of people. It has pointed out:
“The Representation of the People Act 1981 s1 disqualifies a person from membership of the House of Commons where the person is found guilty ‘in the United Kingdom or elsewhere’. If an MP commits an offence in another jurisdiction, which is serious enough for that MP to be sentenced and ordered to be imprisoned or detained, is that offence not serious enough to trigger recall? There may be issues concerning the rule of double criminality but limiting the first recall condition to offences punished in the United Kingdom could create unexpected results”.
Any Member of this House might get up and say, “Well, what about an offence committed in Saudi Arabia or some of these other authoritarian countries?”. That is a very good question—I am reading people’s minds in suggesting that they might get up and ask that. But if that applies to this Bill, why does it not also apply to the Representation of the People Act 1981? All we would be doing is bringing it into line with that Act. If it is wrong, and we are worried about these regimes that might not be our favourite regimes in terms of the rule of law for this Bill, why are we not worried about it in the Representation of the People Act 1981? I hope that the Minister in his reply, and indeed my colleague on the Front Bench for the Labour Party, could indicate whether or not they now think that an amendment to the Representation of the People Act 1981 would be necessary if this amendment is not accepted for this Bill. We should have some parallel or some—what is the word I am looking for?
Lord Foulkes of Cumnock
Consistency, thank you. That is the second time that my noble friend has assisted me this afternoon—and for no charge. We need some consistency in relation to this. That is Amendment 3.
Lord Howarth of Newport
Before my noble friend moves on from the issue of consistency, does he find our constitution characterised by consistency? Does he see it as a bulwark and constitutional principle that we should seek at all costs to conserve?
Lord Foulkes of Cumnock
That is a very good question. I could spend an hour or two on that, although the Minister and other noble Lords will be pleased to know that I will not. We could start with the constitution of the United Kingdom and talk about the total inconsistency between one part and the other. That would take us down the highways and byways—not the Liberal ones on this occasion, although it could perhaps be some of them. Instead, I move to Amendment 13.
The clause that this relates to deals with two further provisions to the first recall condition, referring to imprisonment and detention following an offence. It deletes a proviso which states that the first recall condition includes offences committed before the MP became an MP. It also deletes a proviso which states that the first recall condition does not include offences committed the day before this section comes into force. Acute Members will notice that Amendment 16,
“Page 2, line 24, after second ‘MP’, insert ‘unless that offence was disclosed before the MP became an MP’”,
contradicts the one to which I have just referred. I am sure the noble Lord, Lord Finkelstein, would have jumped up and pointed this out if I had not done so myself. It attempts to amend the subsection that the previous amendment deletes, so if we had deleted it, we could not have amended it. It gives the House an option.
The reasoning for this amendment, which was also provided by the Law Society of Scotland, is that Clause 2(1) elaborates the reference to an offence in Clause 1(3) as including an offence committed before the MP became an MP. If an MP was elected by the constituents after he or she had been convicted and sentenced for that offence, there should not be a recall because he or she was already elected in the full knowledge that that offence had been committed and that he or she had been sentenced for it. I am not talking about where there might be an appeal or whatever but where the matter had been dealt with. That would be clear because the constituents must have known about the MP’s offending history prior to the election but nevertheless elected that individual. I do not see any reason why these two amendments from the Law Society of Scotland cannot be accepted.
The more difficult one for the Government to accept might be Amendment 4. This relates to the first of the two criteria—that the offence must have resulted in a sentence of imprisonment of more than a year. Noble Lords will know that, under the present arrangement, if Members of the House of Commons and, indeed now, of this place are sentenced to more than a year, there is automatic exclusion. That is part of our provision in this House. It is part of the provision in the other place. The point I want to raise is that it is not whether it is a year or 18 months or six months, it is a question of who decides. Should it be this House or the other place that decides in relation to the Members of this House or the other place, or should this cumbersome, expensive, complicated recall mechanism be enforced? Why, if it is less than 12 months, should it be this complicated, expensive trigger mechanism, but, if it is more than 12 months, we are able to deal with it ourselves? Why can we not deal with all of them ourselves? Would it not be more sensible for us to deal with Members of this House who are convicted, whatever the length of their sentences, and for Members of the other place to deal, equally, with their Members, irrespective of the length of their sentences? What is magic about one year? What is special about one year? We will come to this in relation to other amendments later on. What is the logic behind it? There is no logic.
Lord Grocott
I raise with my noble friend a practical point that he might be about to address. If a sentence of less than a year becomes the law, it could trigger a petition and then the petition could lead to a by-election. My advice to any Member of Parliament facing this kind of situation—it might be for the good reasons of principle that several noble Lords have referred to—would be to bypass the whole question of a petition being raised to call for a by-election. The sensible thing to do would be to resign the seat immediately, which we know from Clause 5 would cancel the whole mechanism of petitioning and recall, and, rather than go through all that rigmarole and all the publicity that might be associated with it, say, “Right, I am probably going to be subject to a recall in any case, so I am going to resign the seat and make the whole section of the Bill redundant”. That would certainly be my advice, so let us get it out.
Lord Foulkes of Cumnock
My noble friend has put his finger on it precisely. That shows exactly the problems arising and why these provisions are not only cumbersome and expensive but complicated and very difficult to deal with. They also provide let-out mechanisms, as my noble friend has described.
I would like the Minister to address two further points which are not specifically included in the amendment but which arise. I was a magistrate for a few years in Edinburgh and I sent people to prison. I had the option of fining them or giving them a custodial sentence. I always made the judgment on the recommendations of the clerk or the social worker or on whatever advice I got on the basis of the circumstances and the facts presented before the court. I made that judgment because I knew that to look at it in a completely impartial way was the right thing to do. If, in addition, I had been dealing with, for example, a Member of Parliament appearing before me, and I had known that, if I had imposed a custodial sentence, this recall procedure would have happened, it would have affected the way in which I decided. Supposing I was doing it, and it was a Conservative Member of Parliament, there might have been some feeling that I should show how reasonable and sensible I was and give them a fine rather than a custodial sentence. It does seem strange that these kind of judgments might be affected because of this.
Lord Tyler
Does the noble Lord acknowledge the point he has just made is also material to members of the Standards Committee deciding how long or how short a suspension should be? This is precisely, if I might just point it out gently to him, why I raised the concerns I did in the previous debate.
Lord Foulkes of Cumnock
Indeed, and the noble Lord will realise it is coming up in subsequent amendments that I have tabled along with my noble friends Lord Campbell-Savours, Lady Taylor and Lord Hughes. Like the noble Lord, Lord Tyler, I am deeply sorry that the noble Lord, Lord Campbell-Savours, will not be here to move those amendments. One of us is going to have to move them on his behalf. He made these points at Second Reading, and he would have made them again, and we will make them on his behalf later. It is exactly the same point. It introduces a different factor, a complicating factor, to the decisions that are being made.
Lord Forsyth of Drumlean
While the noble Lord is in explanatory mode, I have something to ask him. I entirely understand the noble Lord’s point about the amendments which have come from the Law Society, but, before he moves on, I am not sure I understand what he is saying. If he wants to make an amendment so that the recall petition would be triggered only with a sentence of more than a year, is he also proposing—it is not on the Marshalled List, so is it implied—that the current position, which makes it automatic that you are expelled from the House of Commons, would disappear? Clearly it would be absurd to have a recall process started when the Member had already been kicked out of the House of Commons. What is the noble Lord suggesting? Is he suggesting that the one-year sentencing rule, which is automatic, would fall if this amendment were agreed?
Lord Foulkes of Cumnock
I said in my introduction that astute Members of this House would immediately or eventually detect some inconsistencies in what I was proposing. I congratulate the noble Lord on doing so. This is very much a probing amendment.
Lord Foulkes of Cumnock
My view—I think I said this—is that the recall procedure is daft. It is expensive, complicated, and all of it should be dealt with by both Houses for their own respective Members. We should throw this out and go back to the House of Commons and let it decide in relation to people who have been sentenced for less than a year or more than a year. I think it is right that they should be dealt with by Parliament, not by this kind of recall procedure. I put the amendment in precisely so that it could be discussed.
Lord Grocott
Is not my noble friend, in wrestling with these amendments which attempt to improve the Bill, just illustrating the difficulty that all of us feel who know that this is a bad Bill? May I suggest the answer that he should be giving; that is, it would be far better to leave the law as it is, which is that if you are sentenced to more than a year, then “You’re out, mate”, and if it is less than a year, then the chances are that it is something which existing procedures would deal with in any case—perhaps the informal procedures of parties, that would not re-endorse a Member of Parliament? There are all sorts of mechanisms of that sort which in practical terms come into play. The real lesson is that we are trying to make a silk purse out of a sow’s ear, and we just have to do the best we can.
Lord Foulkes of Cumnock
I could not have said it better myself; in fact, I did not say it better myself. That was an excellent explanation of it with which I completely concur. I tried to say that with increasing degrees of inability to do so.
My last question to the Minister is equally serious. Let us suppose that someone is given a suspended sentence. Does that count? It would be perfectly possible for me to say, when the noble Lord, Lord Finkelstein, appeared before me, “I sentence you, Lord Finkelstein, to a year in a prison, but I’m going to give you a chance and I’m going to suspend the sentence to see if you behave for the next year. If you behave, then that sentence will not be imposed”. Would that apply? I am not clear whether suspended sentences are counted in relation to the Bill. There is no guidance. It is just something that occurred to me. No doubt there will be many more problems in relation to the Bill which will come out during not just this discussion but if, heaven forbid, the Bill was to be triggered—to use that awful word—which we all hope it will not be.
Amendments 4 and 13 are probing amendments, but Amendments 3 and 16, which have been drafted by the Law Society of Scotland, are serious and important, because there is that inconsistency about offences committed overseas and there is also the question, raised in the second Law Society amendment, about offences committed before a general election. If the Minister cannot accept the amendments today, I hope that he will say that he will have a look at them between now and Report and see whether these two problems might be properly dealt with. I beg to move.
Lord Finkelstein
My Lords, I very much hope that if I am ever accused of a serious offence, the noble Lord, Lord Foulkes, will not be the judge. I want to run through a list of offences for which you can be sent to prison for less than a year: assault with intent to resist arrest; assault on a police constable in the execution of his duty; racially aggravated common assault; domestic burglary; fraud; false accounting; and sexual assault—this is obviously not a full list. In other words, it is possible to be sentenced for very serious offences for less than a year. All that this Bill does—and it is a very simple Bill; it is not, as has been repeatedly and falsely suggested a complicated, burdensome, cumbersome and expensive Bill—is to provide the general public with a simple mechanism which allows them to remove Members of Parliament should they see fit in circumstances that are limited in it. There are a very few common-sense circumstances in which people would expect to have such a power. We have discussed at great length today many ridiculous ideas which are not in the Bill and said how strongly we are against them, and I think that we can all agree that we would be against them if they were in the Bill or if anyone proposed them in future Bills. Therefore, there is great unity in the Committee on the subject of hypotheticals.
However, if we confine ourselves to the subject of what is actually in the Bill, is the House of Lords seriously saying to the general public, at a moment of disillusion with politics, that we wish to deny a limited range of powers to them which would be available to the boss of any employer in any company and would be used in the circumstances set out in this Bill?
Lord Grocott
As the noble Lord, Lord Finkelstein, is saying that we need to be in the real world rather than dealing in hypothetical examples, could he give the Committee some examples of Members of Parliament, let us say in recent years, who would have been caught by this less than a year’s sentence of imprisonment triggering a recall, so that we can have some idea of the evil that we are now trying to put right?
Lord Finkelstein
As the noble Lord is well aware, there have not been very many such Members of Parliament and they have resigned, and I suspect that that will happen. That is not an argument to suggest that this power would not be used. From the noble Lord’s own Front Bench, it was correctly stated that it is very much to be hoped that the Bill would not be required to be used very frequently, but cases have often come before the House of Commons where a Member of Parliament has, for instance, used the House of Commons facilities to promote their travel company or employed members of their family in the House of Commons and been given suspensions that would fall under the Bill, which currently the power does not exist to cover. While there may not have been many instances in recent years that are covered in the Bill where people have not resigned, that does not mean that the power would not be valuable.
The issue has been raised of Members of Parliament who are sentenced to jail on issues of conscience and whether it is right that a recall mechanism be available. It may not be right to provide for a situation in which those people are automatically expelled for that act, but it is certainly right to provide the electorate with the limited power to review the conduct of that Member of Parliament in the light of them committing the very serious act as a Member of Parliament of defying the laws that they have created.
Lord Forsyth of Drumlean
My noble friend is clearly passionate in support of the Bill. Could he deal with the point, which I have made twice previously, that in the real world, in practical terms, where a Member of Parliament found themselves in this position, it would be highly unlikely that the leadership of a party would sign and allow them to stand again as a party candidate? Therefore, there is no opportunity for the electorate to take a view if they wish to be represented by a particular political party as opposed to a particular individual.
Lord Finkelstein
I think that this is a misunderstanding. The leader of the party has to sign to allow them to use the party logo in an election, and they may not be permitted to stand for a political party, but that does not prevent them standing in a by-election. I suspect that if Jimmy Maxton had run in that election, he might well have received the signature of the leader of the Labour Party, but in other circumstances it might have been withheld. It does not prevent someone running again in the election; they are not denied this chance; and the electorate are not denied the opportunity to support them. It just means that they will not be allowed under their party act to run as a party candidate.
Lord Maxton
The fact is that Jimmy Maxton would not have required, and would not have got, Ramsay MacDonald’s signature on any candidature; he was selected by the ILP in Bridgeton to be the candidate.
Lord Finkelstein
And he could run as a candidate, if he wished, in an election, and could receive or not receive his party’s support; I am arguing just that the electorate should have the opportunity to decide, in circumstances in which someone has decided to defy the law, whether to continue to support them as a Member of Parliament. This power will not be imposed on Members of Parliament against the wishes of the electorate; it is a power granted to the electorate. What we have to decide as a House is whether it is reasonable that the electorate be given a limited power in certain circumstances that they can use to enforce standards. I believe that that power is reasonable and limited.
Lord Forsyth of Drumlean
I am sorry to pursue this—perhaps I have just misunderstood the Bill, as the noble Lord suggests—but if someone finds themselves in circumstances where there is a recall and there is going to be a by-election, certainly in the Conservative Party you cannot stand as a Conservative candidate unless you have the signature of the leader of the party. That is how it operates. I do not know about other parties. The Liberal party is a bit looser in its arrangements—
Lord Forsyth of Drumlean
Democratic—that is the word I was searching for; of course it was. In the Conservative Party you would not be able to stand. If there is no Conservative candidate standing in the by-election—if the person subject to recall is not the Conservative candidate—there will be a Conservative candidate. Therefore, the opportunity for the Member to make his case before the electorate to continue as the Conservative MP will have been lost. Am I missing something here?
Lord Finkelstein
No, the noble Lord is not missing anything, but he is failing to add the question of why that would be wrong. If a Member of Parliament is recalled, it may be that their party stands by them because of all the honourable reasons that have been suggested might hypothetically happen; if, however, they have been recalled because they have decided to promote their travel company by using the facilities of the House of Commons, the Conservative Party might not decide to stand by such a candidate. The candidate would still have the right to run by themselves. I do not think that the noble Lord has misunderstood it, but perhaps I have not understood why the noble Lord would regard that as a flaw in the Bill. It seems to me an advantage that has been programmed in, rather than a bug.
Lord Forsyth of Drumlean
I regard it as a flaw in the Bill because the point that my noble friend has been making throughout this evening is that it should be a matter for the electorate to decide whether or not they are going to take whatever the offence is, or whatever has caused this, as one which would prevent them from re-electing that person as their Member of Parliament. I am saying that in practical terms, if someone has got themselves into that kind of trouble, they are going to be out anyway because the parties are not going to support them. Therefore we are going through a very expensive process which will generate lots of publicity and lots of difficulties, and the end result will be the same as it would be under our existing procedures.
I am not sure what the problem is that we are trying to solve. If someone has fiddled their expenses or run a travel company or whatever, first, the whip is going to be withdrawn and, secondly, they are not going to be able to stand as a candidate for a particular party and they are not going to get re-elected. My noble friend seems to be arguing that we need to have a complex procedure that gives them the second chance to challenge what would have happened anyway.
Lord Finkelstein
I actually used those examples for a reason. The whip may have been withdrawn, but those people did not have to resign from Parliament and remained in Parliament until the end of the period, whereas if they had been employed by anybody else they would not have been able to do that. This power exists to enforce that which does not exist at the moment. In other words, I used precisely the examples—in the case of the travel company and the family member—where those Members stayed until the end of the Parliament, and would not be able to unless their electorates were willing to allow them to.
Lord Cormack
Is my noble friend seriously suggesting that a Member of Parliament is employed by his constituents? That is totally contrary to the constitutional doctrine of Parliament.
Lord Soley
I intervene very briefly with a very short contribution. It follows what the noble Lord, Lord Finkelstein, is saying. The flaw in his argument is something he said some minutes ago, when he said any employer would have these powers in a private company. The mistake he is making is to assume that Parliament is like a corporate body. That assumption underlying his speech is a serious flaw because Parliament is and must be different. It must answer only to the electorate. The whole thrust for the past few hundred years in this country is that we have general elections when Members are elected to do their job as an elected representative, and that is it. We have already done too much of this—perhaps the noble Lord is following a tradition that has unfortunately developed in recent years where we are constraining the power of Parliament and treating it as though it is a corporate body, when in fact it is not.
Lord Finkelstein
Naturally, I am not against the power of Parliament to do dignified things. I am against allowing Parliament to do some of the things that this Bill would provide redress to the electorate to do. The power of recall does not belong to anybody else except to the electorate. The electorate will determine whether somebody is recalled. The electorate will determine the result of the by-election, and nobody else. The relation to Parliament, of course, must be independent on political grounds and on political issues. But the Bill proposes limited circumstances which have real effect, and have taken place—as in the examples I gave suggested, where Members of Parliament have remained in the House without challenge by the electorate. This Bill would enable the electorate to have the powers they ought to have.
Lord Cormack
My Lords, in response to my brief intervention, my noble friend said that he regards MPs—he said, “I was precisely saying that”—as being employed. Now this is standing our constitution on its head. Words almost fail me to describe my abhorrence, shock and dismay at my noble friend suggesting that the other place comprises 650 employees. That really is extraordinary.
Lord Finkelstein
For words to fail the noble Lord, this really is a serious crime.
Baroness Hayter of Kentish Town
My Lords, first, I will answer one question. This does indeed cover suspended sentences, which is clear in the Bill. I am surprised—my noble friend normally reads every jot and tittle in it—but it covers suspended sentences as well.
Lord Foulkes of Cumnock
Perhaps my noble friend could draw my attention to exactly where.
Baroness Hayter of Kentish Town
I need notice of that question—and he is my noble friend! I believe that the Minister will have the actual paragraph by the time he comes to reply.
Amendment 3 would allow a conviction and imprisonment outside the UK to count as a trigger. My noble friend Lord Foulkes hinted that he knew someone would raise the question of Saudi, as indeed I will do. I am sure that he does not mean that someone who was perhaps a transgender person driving a car in Russia, which we have just learned is going to be unlawful, or a woman driving a car in Saudi, or indeed a gay person in Iran or Nigeria who is imprisoned, should trigger a recall in this country—
Lord Hamilton of Epsom
That is obviously one example, but how about the paedophile in the Philippines or somebody who is drug-running in some country that has a reasonable legal system?
Baroness Hayter of Kentish Town
I was about to come to another example and say that that does not prevent the Standards Committee considering whether that brings Parliament into disrepute. The option is still there, but it is not mandatory. I think that is the right way of approaching it. I heard on the “Today” programme yesterday—the Deputy Prime Minister had not heard of it at the time although by lunchtime he had and he condemned it—of someone being flogged 1,000 times in Saudi. Well, if that person happened to have been one of our MPs and was imprisoned as well, that again would automatically trigger recall under this amendment. I am sure that is not what would be wanted. The ability for it to be considered under the other mechanism is still there but it would not be automatic.
Lord Forsyth of Drumlean
Surely the Standards Committee would not be able to address it, because the first recall condition would not have been met. Is not the answer to this—perhaps with a bit of drafting— that one looks at offences outside the United Kingdom which would be considered offences in this country? Surely the point is right that if someone has committed a serious offence elsewhere, which would be a serious offence here, and has been convicted, as my noble friend said, it is an enormous loophole in the Bill, given its intent—not that I particularly favour the Bill.
Baroness Hayter of Kentish Town
Undoubtedly there will be cases and jurisdictions where we would be very content to take that, but there will be others—sadly, probably more around the world—where we would query both the jurisdiction and the sentencing. I do not feel that making it automatic, as this amendment would, should be supported. As has been made clear, Amendment 4 conflicts with the current situation in that, if I have understood it correctly, it would trigger recall following a year’s imprisonment. As my noble friend accepts, that was not its aim; it is a probing amendment. I differ from my noble friends Lord Foulkes and Lord Soley in that they want to keep the decision only with the House of Commons, whereas we have supported the proposal that there are circumstances where it should go to the electorate. Giving the electorate a say following someone’s imprisonment—possibly for a very serious offence—is something that we have supported and continue to support.
The other difficulty that I have with what I understand came from the Scottish Law Society—I am sorry if I offend it by not supporting its amendments—is the idea that if an offence, not a conviction but an offence, was declared beforehand, that will be enough to enable someone to escape the possibility of a recall petition. We could have someone saying before being elected an MP, “Well, it is true that I have been arrested for a bit of a punch-up”. That is declaring the offence. However, the conviction may take place sometime afterwards, by which time we discover that actually he had broken his wife’s arm in three places, kicked in the door, set fire to the carpet and broken her favourite records, but that was all a minor punch-up. I do not think that we would want to excuse someone just because they have said, “Oh, I am in trouble with the law”. The word “offence” is used rather than “conviction”. I do not think that there should be letting off at that stage.
As my noble friend says, these are on the whole probing amendments and useful for that, but I do not think that we should move to allow another jurisdiction automatically to trigger a recall in this country.
Lord Gardiner of Kimble
My Lords, perhaps before I turn to the amendments of the noble Lord, Lord Foulkes, I may speak to the government amendments, to which the noble Baroness, Lady Hayter, has put her name.
Amendment 15 gives effect to the opposition amendment from the other place. Clause 2 contains further detail to clarify the sentences and orders that would meet the first condition under which an MP would be subject to a recall petition—that is, where an MP has been convicted in the UK of an offence and is sentenced or ordered to be imprisoned or detained and the appeal period has expired without that being overturned.
As introduced in the House of Commons, subsection (1) ensures that offences committed before the MP became an MP can trigger the opening of a recall petition, as long as the conviction and sentencing take place after the day on which the MP became an MP—but only if the offence is committed after the day on which Clause 1 comes into force. That would rule out historic offences triggering a recall.
The House of Commons was clear that it wished historic offences to be caught as well, as long as the conviction took place after the Bill came into force and after the MP became an MP, and voted with that intention, passing an amendment tabled by the Opposition Front Bench in the Commons by 236 votes to 65.
A pair of amendments was tabled to give effect to that intention: a substantive amendment and a paving amendment. Unfortunately, however, only the paving amendment was actually made, which had the effect of deleting the words “the reference” at the start of Clause 2(1) so that it does not now make sense. The substantive amendment was not made, so the Government tabled Amendment 15 to give concrete effect to the will of the House of Commons.
Amendment 20 is a minor and technical change to the definition of “appeal” in Clause 3(6). The amendment is to reflect that the Scotland Act 2012 amended the appeals regime so that certain devolution appeals in Scotland that deal with compatibility with EU or human rights law are dealt with under Section 288AA of the Criminal Procedure (Scotland) Act 1995, rather than the provisions currently listed in the Bill. Making express reference to this section provides certainty that such appeals would be covered.
Clause 22 is a technical clause which defines the interpretation to be given to key words and phrases in the Bill. Amendment 74 would alter Clause 22 to remove any possible ambiguity about the definition of the word “quashed” in relation to overturning a conviction on appeal by replacing it with a phrase making clear,
“that there is no longer a conviction”,
in relation to the first and third conditions for recall. This would cover the scenario where a sentence is replaced with an absolute or conditional discharge, meaning that it is no longer legally to be considered a conviction, as well as the case where the conviction is directly overturned.
I turn to the amendments tabled by the noble Lord, Lord Foulkes. He rightly said that they were paving amendments, and they are of considerable interest. I was intrigued particularly by Amendment 3, which would mean that if an MP were to be convicted outside the United Kingdom, the MP would also be subject to a recall petition process. As the noble Lord mentioned, the Law Society of Scotland raised that issue. The noble Baroness, Lady Hayter, referred to a number of the difficulties with such a proposal. Outside the United Kingdom, Parliament has no control over what acts amount to criminal conduct or when custodial sentences are imposed. Therefore, we cannot predict that a recall petition would be appropriate in all circumstances where an MP is given a custodial sentence outside the United Kingdom.
Lord Foulkes of Cumnock
How is that dealt with under the Representation of the People Act?
Lord Gardiner of Kimble
If the noble Lord will display a shade of patience, I shall of course deal with that, but I would like to explore the general position as well.
There is also the practical difficulty of how such a conviction would affect the working of the recall petition process. Under the Bill, the relevant court would notify the Speaker of the conviction and of when the relevant period for appeals had expired. I hope that your Lordships would understand that it would not be possible to put such a duty on a court outside the United Kingdom.
The noble Lord’s wording, “or elsewhere” is intriguing. My understanding is that under the Representation of the People Act 1981, a Member of Parliament sentenced to more than one year in prison is automatically disqualified, whether the MP was found guilty in the United Kingdom or elsewhere. My notes say—underlined—“as long as the Member of Parliament is detained in the United Kingdom or Ireland”. An MP sentenced to more than 12 months but detained anywhere else in the world would not be disqualified but could be suspended from the service of the House, were the House so to decide. I am intrigued by the point that the noble Lord has made. Without promising anything, I will make sure that his point is fully covered.
Lord Forsyth of Drumlean
Given that the Bill is meant to be about enabling the electorate to hold to account Members who have been sentenced for less than a year to restore confidence, surely, as my noble friend has pointed out, we could get a situation where someone had committed a serious assault in, say, France, and had been imprisoned for less than a year, but would remain as a Member of Parliament, whereas someone who had done the same thing in the United Kingdom would not. Would that not open the whole process to ridicule?
Lord Gardiner of Kimble
Certainly, the process is not intended for ridicule. This is about very serious matters of wrongdoing. That is why I said to the noble Lord that I just want to check absolutely on the points that I have explained about the reasons for the Representation of the People Act 1981 provision. I hope that my noble friend caught my words. I said that if a Member of Parliament were sentenced to more than 12 months but detained anywhere else in the world, they would not be disqualified, but of course the House could suspend them were it so to decide. Without pre-empting anything, my view would probably be that, if a Member of the House of Commons was to commit an extremely serious offence, which involved a considerable custodial sentence, in any country that my noble friend has mentioned, there would obviously be very considerable concern and remedies would need to be sought.
Lord Forsyth of Drumlean
I apologise to my noble friend for pressing him on this. There would indeed be considerable dismay, but the Bill does not provide for that. The argument is that the House may suspend someone who is subject to a custodial sentence of more than a year in another country covers the existing position which says that a Member who has been sentenced to more than a year is automatically disqualified from the House of Commons. This Bill is supposed to deal with serious offences where the sentence may be less than a year, as we have been hearing from my noble friend Lord Finkelstein, who listed a number of very serious offences. The hole in this Bill, which has been pointed out by the Law Society of Scotland and by the noble Lord, is that if it is done overseas it is not covered. That surely makes the whole exercise a little flawed, to say the least.
Lord Gardiner of Kimble
My Lords, I repeat to my noble friend that that is precisely why I said I would be considering and reflecting on what the noble Lord said. I have said it twice now and I hope my noble friend will understand that I said I would make sure that it was absolutely watertight, because we want clarity on the matter. My understanding is that, if a Member of Parliament were to be convicted of an offence in another country, it would, of course, be open to the Standards Committee of the House of Commons to recommend suspension from the service of the House. It would then be for the other place to decide whether and how to act on such a report. In such a situation, the MP could therefore become subject to recall through the second condition. However, I repeat to my noble friend and to your Lordships that I will look at the point he raised to make sure that there are sufficient safeguards in the matter.
Amendment 4 amends the first trigger to capture only sentences of more than one year. My noble friend Lord Forsyth has already made a point on this, but the amendment would have the effect of altering the first recall condition to make an MP subject to the opening of the recall petition process only if the Member of Parliament had been convicted or sentenced to be detained for more than one year. However, as the noble Lord knows, and as has already been discussed, there would be an automatic disqualification under the Representation of the People Act 1981. Under the noble Lord’s proposal, a Member of Parliament sentenced to more than one year’s imprisonment would be both subject to a recall petition process and automatically disqualified. I think that the noble Lord would agree that that would not be what we want from this process.
Amendment 13 removes the provision for historical sentences by removing Clause 2(1). Subsection (1) states that the first recall condition includes an offence committed before the MP became an MP, but does not include an offence committed before the day on which Section 1 comes into force. However, as your Lordships have heard, the Government have tabled Amendment 15 to give effect to the will of the other place, which would mean that offences committed before the Bill comes into force would be caught, as long as the conviction took place after the Bill comes into force and after the MP becomes an MP. Deletion of this subsection would leave it unclear whether an offence committed before the MP became an MP was captured, and offences committed before the Bill comes into force would not be captured. This would have the effect of restricting the number of occasions on which recall could be used and leaves a lack of clarity. The amendment that the noble Lord has put forward clearly goes against the wishes of the other place, to whose Members recall would apply.
Amendment 16 excludes historical offences that were known before the MP became an MP and would enable Clause 2(1)(a) to ensure that offences that had been “disclosed” before the MP became an MP would not be caught by the recall trigger. Again, this amendment has been raised by the Law Society of Scotland, but we are not clear what the word “disclosed” means in this context. If it is to be taken to mean “convicted”, the policy intention of the Government is clear. An MP who was convicted and sentenced before they were elected should not face recall as their constituents will have been able to take account of the conviction in electing them.
There is, of course, the possibility of a person’s criminal record not being publicly known. However, in either case, the Government’s intention is that, where an individual has been convicted and subsequently elected as an MP, the MP will not be subject to recall. Under the Bill, recall will be triggered only where a sitting Member of Parliament is convicted and receives a custodial sentence of 12 months or less. This could be for an offence committed while the person is an MP or beforehand—and, if the government amendments implementing the will of the House of Commons on capturing historic offences are accepted, whether the offence takes place before the Bill comes into force or after.
On the issue of suspended sentences, I refer the noble Lord to Clause 2(2)(a). I am relieved to say that the word “suspended” is in the Bill. I hope that the noble Lord will feel that his paving amendments have been given a hearing on the Front Bench. I will look at the “or elsewhere” but, in the mean time, I hope the noble Lord will withdraw his amendment.
Lord Cormack
Will my noble friend be kind enough to comment on the brief exchange I had with my noble friend Lord Finkelstein? Do the Government regard Members of Parliament as employees? That really is a very important issue.
Lord Gardiner of Kimble
My Lords, I do not think that I am going to get into an exchange with two noble friends except to say that in my view, we are all servants of the public.
Lord Forsyth of Drumlean
The existing provisions automatically disqualify a Member of Parliament if they have a sentence of more than one year. Does that include suspended sentences?
Lord Gardiner of Kimble
I may need to look into the provisions of the 1981 Act, because I do not have it in front of me. I will make sure that my noble friend knows.
Lord Forsyth of Drumlean
A thought has just occurred to me that there might be another loophole if someone was sentenced to more than a year, suspended. If that did not create an automatic disqualification, it would also not provide for recall.
Lord Foulkes of Cumnock
My Lords, I am grateful to the Minister for a very detailed and helpful reply. The whole debate, which has lasted nearly an hour, has shown the value of Committee stage in the House of Lords. We have identified a number of loopholes and the Minister has responded helpfully to them. I will deal with them very quickly, in reverse.
The Minister answered my question about suspension precisely and I accept that completely. I had understood that Amendment 16 meant not just that the convictions were disclosed but that the person had been sentenced. I will go back to the Law Society of Scotland and get that clarified. I will also draw its attention to the Minister’s very helpful comments.
The Minister and my noble friend on our Front Bench made very convincing arguments in relation to Amendment 4. However, some work still needs to be done, and I am grateful to the Minister for agreeing to look at this. First of all, he said he was intrigued by what had arisen, and the conflict between the provisions in the Bill and the provisions in the Representation of the People Act. The exchanges, which included the noble Lord, Lord Forsyth, indicated that there seems to be a number of contradictions that need to be resolved. The Minister went on to say that he will consider and reflect on them and come back to the House after his consideration.
Lord Gardiner of Kimble
I want to make sure there is clarity. I will certainly reflect on what is in Hansard. I do not want to suggest that I am in a position to come back at a further stage because I do not know the answer to this—but I want to consider all that has been said, given the point that the noble Lord made.
Lord Foulkes of Cumnock
I realise that the Minister is constrained not only by messages from the Box but by Ministers in the other place, Ministers higher up and so on—but he has been helpful, and I hope that he will use his helpfulness, eloquence and strength of view in his discussions with his colleagues and say that these anomalies have been raised and that they should be considered. I will ask Michael Clancy of the Law Society of Scotland to look at the comments as well and see if we can reword the amendments for Report to make them fit with what the Minister said and make them more comprehensible. I thank Michael Clancy and the Law Society of Scotland for the great help they have given.
I shall not table further amendments if I know that the Minister is going to come up with some suggestions, so I would be grateful if he would keep in touch with me and other Members of the House in relation to that. In the light of his helpful response, I beg leave to withdraw the amendment.
Media Plurality: Communications Committee Report
(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text
Lord Inglewood
To ask Her Majesty’s Government what is their response to the Report of the Communications Committee on media plurality (1st Report, Session 2013–14, HL Paper 120).
Lord Inglewood (Con)
My Lords, as many of your Lordships know, this debate was first scheduled just before Christmas but was withdrawn by consensus after discussion because the debate on the Modern Slavery Bill had become unconscionably drawn out and the rigidity of the rules of procedure meant that nothing could be done to stop it being further propelled into the depths of the night. Because of that, I am very grateful to the usual channels and the House authorities for expediting this later debate—but it is by definition shorter than the one we would have had then. A large number of Members have wanted to speak. Some have withdrawn and others will have little time. I have therefore said that if those who want to speak on another occasion on this important topic would let me know, I shall see if we can find a way of doing that.
I shall aim to be concise in my opening remarks. Those who want to follow up the detail of the report can always read it for themselves. Equally, there is a custom in this House to congratulate those who produced the report. Perhaps on this occasion we might take it that silence equals universal congratulation, and that anybody who wishes to dissent can always express themselves in detail.
On 4 February last year, nearly 12 months ago, the Communications Committee, of which I was then chairman, published its report on media plurality. This was the conclusion of work by the committee over the previous seven or eight months. I am very grateful to the noble Lord, Lord Best, the current chairman of the committee, for allowing me to lead this debate. I will also thank Tim Suter, our specialist adviser, and the staff of the committee—in particular Alan Morrison, the policy analyst, who has moved on to other things.
Media plurality is about ensuring that the public have available to them a range of different opinions, views and information from a variety of sources. A good media plurality policy ensures that there is a varied mix of viewpoints and information available within the media from a variety of different voices. At the heart of our inquiry and report lies this firmly held idea that if there is sufficient plurality within the media, our fellow citizens have access to a diversity of viewpoints and individual media owners will not have excessive and disproportionate influence over the political process. We think that this is very important.
In the recent past—that is to say, in the past five years or so—issues surrounding media plurality have come under the political and media spotlight. This has been prompted by concerns raised about the proposed, and then dropped, acquisition of BSkyB by News Corporation, Ofcom’s report on measuring media plurality, the Leveson report, the report by the European Commission’s high-level group on media freedom and pluralism, and the Government’s consultation on media ownership and plurality.
The Communications Committee therefore decided that it would carry out an inquiry to examine ways in which the policy and regulatory framework surrounding plurality could be updated. Many ideas had been proposed, but somehow nothing firm had emerged. Hence we embarked on our inquiry to produce a set of recommendations that would command support and instigate action for reform.
We heard oral evidence from about 40 individuals and organisations and received written evidence from about 20 more. Many proposals were put to us. We evaluated them, considering carefully their merits and demerits. From this, we produced our own proposal for reform which I will briefly explain this evening.
We propose a system built around two key elements. The first, which is new, is the undertaking of a plurality review on a predictable periodic basis in addition to the present transactional system. We believe that the Government should introduce a statutory periodic review of the plurality of media markets to be undertaken by Ofcom on a four to five-year basis. Whatever is done has got to be manageable and realistic, so Ofcom’s assessment should be based on a limited number of measures that address availability, consumption and impact.
We think that Parliament should have a role in setting guidance for this new framework, but, crucially, that the metrics should not be set down in statute. In the fast-moving media world of today, it is essential that there is flexibility for Ofcom to interpret the statutory guidance, design the assessment framework and select metrics that are appropriate at the time of the review. After all, what is suitable at one point in time may not be suitable at another. This report needs to send very clear signals and guidance to all concerned about the prospects of consolidation in future transactions in order to limit the need for any subsequent transaction or plurality reassessments.
In this way, the periodic plurality review will set the context for the second element of our proposal, which I have already touched on: a modification of the existing arrangements for a review of specific transactions that occur between one periodic review and the next. We believe that there is a flaw with the current system of transactional reviews, which is that they muddle the distinction between competition policy and plurality policy. Plurality assessments and competition assessments must be carried out as two distinct procedures by regulators, each with the appropriate set of priorities, expertise, methods and ethos. It is absolutely right that competition authorities should retain the responsibility for the assessment of a transaction’s impact on competition, but it is equally appropriate that Ofcom should be given a new statutory responsibility for the assessment of a transaction’s impact on plurality.
There will, of course, be occasions when the two authorities reach different decisions about whether a media transaction should go ahead. We concluded that in cases of such conflict, the citizen’s interest should trump the consumer interest. This means that responsibility for resolving such conflicts between the competition authorities and Ofcom in their reports on any particular transaction would be given to Ofcom. The Ofcom board should make the final public interest decision, not the competition authorities as at present. The Ofcom board, mindful, of course, of its own twin statutory duties to further the citizen’s and consumer’s interests, should weigh up the merits of each case and determine whether overall on balance it is in the public interest for the transaction to proceed.
That, in brief, is the Communications Committee’s proposal for a plurality policy. It is flexible enough to take account of changes in the media world and would not, we believe, require substantial revision every few years.
The Government have responded to the committee’s report. The response was published in a single document with the Government’s response to their July 2013 consultation on media ownership and plurality and was received in the first few days of the Summer Recess. The part containing the response to our report sets out the 46 paragraphs of recommendations contained in the committee’s 258-paragraph report, but contains just 20 paragraphs of responses. Somewhat to our surprise, the Government do not engage with the substance of much of what the committee said, saying that their,
“work on plurality does not attempt at this stage to propose what measures might be taken to address any potential plurality concerns. Rather we”—
the Government—
“think that without the initial evidence base upon which to base policy decisions, the best course of action is impossible to identify”.
The Government’s proposed course of action is to,
“look to commission Ofcom to develop a suitable set of indicators to inform the measurement framework for media plurality”.
I have three points I would like to make about this statement. First I would be grateful if the Minister could confirm, despite the imprecise language used, that the Government are actually going to commission Ofcom to do this work—and, in particular, when it will be done. Secondly, it misses the point of our recommendation for a series of periodic plurality reviews. The media sector, as your Lordships will know, is one of fast-paced change. Regular reviews would allow the sector a degree of certainty, but for such a review to have any practical relevance at all, Ofcom needs to be able to select metrics that are appropriate to the circumstances at the time. Such a baseline, which is clearly defined and rigid, to assess media of the kind envisaged by the Government is a one-off affair and is simply not flexible enough for measuring something going through such radical changes as media markets.
This takes me to the third point in response to the Government, which is that the response does not really get us anywhere. In 2010, issues surrounding media plurality were firmly in the spotlight because of the proposed takeover of BSkyB by News Corp. There was near unanimity that “something must be done” to update our media plurality policy. We are now four years on from then and media plurality issues have, for now, moved from centre stage of current media and political debate—but, in reality, we are no further forward than we were four years ago. Now is the time to get a sensible and flexible policy. If we wait until the next crisis comes before we do anything, media plurality policy will still be as unfit for purpose as it was four years ago—indeed, probably more so.
We are nearing the end of a Parliament. The committee is clear that the next Government must move forward swiftly in formulating a media plurality policy that is “fit for purpose”. This must ensure that there is sufficient media plurality to ensure that citizens are able to be informed through access to a diversity of viewpoints, and that medias do not have too much influence over the political process. Will the Government confirm they think that this matters, and will they please tell the House what they are proposing to do to ensure that it is actually the case?
Baroness Jolly (LD)
I remind noble Lords that timing this evening is really tight and that two minutes really is just two minutes.
Baroness Healy of Primrose Hill (Lab)
My Lords, I too am a member of the Select Committee which undertook this inquiry into media plurality, and I commend the findings as a very useful contribution to the debate surrounding this controversial subject. It is controversial in that there are many views as to how to ensure we enjoy access to an environment which provides media plurality and protects the public against an undue concentration of power.
Policy approaches to media plurality are not straightforward. If there is sufficient media plurality, then citizens will have the opportunity to be informed through access to a diversity of viewpoints, and the media owners cannot have too much influence over the political process. Our findings recognise that the media market is in a fast changing climate and organic growth should not be suppressed unless it has caused immediate and pressing concerns. We also believe that:
“The scope of any plurality policy should encompass both local and regional media as well as national media in the devolved nations and UK-wide media enterprises. In dealing with local or regional media, those tasked with making decisions should in reaching their conclusions pay particular attention to the question of financial sustainability”.
I would just like to mention why the committee did not find in favour of using caps on media ownership to make an assessment of media plurality. Even a hybrid system that might trigger action which incorporates structural and behavioural remedies was not, in the end, preferred. More flexibility is required to consider the diversity and range of independent news voices, overall reach and consumption and propensity of consumers actively to multi-source. It was felt that the unpredictable and arbitrary nature of the trigger would have inevitable consequences for innovation and investment.
Media plurality, not a goal in itself but more a means to an end—achieving a well informed public empowered to make decisions at the ballot box—is vital for a healthy democracy.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, the events of last week in France have laid bare that at the heart of our liberal democratic society lies freedom of speech and a free press. Plurality is central to this. Diversity of ownership is an indelible liberal principle. A corporate media monopoly threatens a free press almost as much as a state monopoly. Central to the existence of a diverse and independent media is that no individual organisation has too much control of the national conversation and that there is an array of competing voices, so that the public can draw from a range of views. This requires strong rules around media ownership to protect plurality in the marketplace. I am sure my noble friend the Minister will agree that it also highlights the importance of protecting public service broadcasters such as the BBC in order that alternative sources of impartial information are available.
But plurality is not just about ownership. We also need diversity within the media and among practitioners—the journalists, producers, editors, writers and cartoonists. At the moment it is too white and too able-bodied. Last March Lenny Henry made a speech calling, in no uncertain terms, for change and I am glad to say we are getting it. Ed Vaizey, DCMS Minister of State, established a cross-party, cross-industry round table. I sit on it and we meet regularly. There has been a gratifying response. The BFI has added diversity to existing requirements for accessing its film fund. ITV has announced a social partnership which requires commissioning editors to better reflect the diversity of modern Britain. The BBC has established an independent advisory group and announced new targets, as has Sky, which has also set up a BAME scholarship for its academy, and yesterday Channel 4 launched its 360-degrees diversity charter. Congratulations—now let us hope the rest of the media follows suit. In these times we need to reflect and understand diversity more than ever.
Baroness Kidron (CB)
I refer noble Lords to my interests in the register. I wish to raise two points relating to children and young people, and why the metrics of the framework that Ofcom is commissioned to design should explicitly consider young people.
First, the young, by virtue of their age, have a more limited life experience from which to critically appraise information. This leaves them more vulnerable than their adult counterparts to the possible harms of a restricted or lop-sided diet of news and current affairs. In December 2010, Her Majesty’s Government undertook to look at all new Bills and policies in the light of the UNCRC, and I argue that media plurality policy falls well within the rights described in the charter.
Additionally, the framework should also take into account how young people consume news and current affairs. Ofcom’s 2014 figures show a rapid increase in the amount of information the young access online. As many noble Lords will be aware, the commercial internet is constructed primarily on an advertising model that sets algorithms largely based on what a user previously viewed and on what their social networks previously “liked”.
This personalisation has benefits of filtering searches and newsfeeds so if you prefer jazz to rock, or fast foods to wholefoods, you will be offered choices that fit closer to your desires. However it has an insidious effect on news. This mechanism—known variously as the filter bubble, echo chamber or personalisation—is a structural obstacle to media plurality.
One of the great wonders of the web is the extraordinary range of information and opinion it delivers; how it does so, however, is not neutral. Can the Minister therefore confirm that Her Majesty’s Government, in light of previous undertakings, will ask Ofcom to explicitly take into account the availability, consumption and impact of news and current affairs on children and young people when designing the measurement framework and, in doing so, that the personalisation of their media online and the proportion of their news and current affairs consumed online will be taken into account?
Lord Patten (Con)
My Lords, I agree with the committee in its recommendation that Ofcom is at present the best vehicle to conduct any plurality reviews, and it is as plain as a pikestaff to me at least that great issues such as media foreign ownership or the overwhelming dominance of the BBC must not be allowed to dominate plurality reviews. Not just regional but local plurality is very important, as paragraphs 169 to 172 of this report suggest. Local plurality is rather a different animal from the big Westminster village issues that doubtless my noble friend Lord Black of Brentwood and other noble Lords will address in a moment.
While local areas may have just as many aspiring citizen journalists powering the new media as there are on the national stage, in the older print media, locally it is a fight against extinction for what is often now one survivor. In my part of the West Country, in Dorset and Somerset, dairy farmers and the print media alike are going fast out of business. In that particular area just one local paper—as it happens a very good, prize-winning one—is left in the paid-for field, so it has come simply by inheritance to hold a monopoly position. Monopolies are generally bad, but in this case no local paper would be there at all if it went out of business. In fact, if it did there would be just one free-sheet magazine, supported by advertising in the local area.
Therefore in any local assessments, this survivorship monopoly is not a bad but a public good. The picture is so different from the national. In local media assessments the first principle must be to preserve localism where possible and to see that to that end supportive cross-media ownership locally is not just a good—it may well be vital.
Lord Parekh (Lab)
My Lords, I agree with a good deal of the report, but there are four areas where I have small disagreements.
First, plurality is not enough. You might have several points of view, but if those points of view do not communicate with each other or do not understand what each is about, the plurality can be a recipe for social fragmentation. Therefore plurality should be accompanied by mutual understanding and dialogue. That dialogue and debate is the lifeblood of democracy, not just plurality per se.
The second important thing is that that we might have plurality in the sense of several points of view, but it is perfectly possible for one to be extremely dominant and drown out the others. How do we ensure that simple multiplicity of points of view is not enough? There has to be some equality between different points of view.
The third important point to bear in mind, which was made earlier, has to do with the pluralisation of the media itself. You can have a situation where you have a wide number of newspapers and media outlets, but let us say on the questions of race or gender they may be manned only by people from one particular community or gender. In that case you have plurality of ownership, plurality of media, but uniformity of views, which obviously does not bear thinking about. When we talk about plurality we are talking about plurality of points of view, not just in one area but in all.
The last point is on something that slightly puzzled me. The report attacks the market, rightly, but talks in the language of the market. It says, for example, that plurality is important in order that a citizen “can access and consume” points of view. I should think that a point of view is not a commodity and that it is not something to be consumed. It is something one identifies with. Therefore, diversity of points of view and media plurality are important, not so that the individual consumer can make a choice between them but in order that democracy can be vibrant, different points of view can debate with each other, and we can arrive at a broadly acceptable point of view.
Lord Razzall (LD)
My Lords, this debate should obviously be looked at in the context of the development of the law recently. Until the Communications Act 2003, the only restriction on media mergers or the abuse of a dominant position was through competition law. The 2003 Act introduced for the first time a public interest test for media mergers, which imposed on the Government an obligation to assess whether the media merger would have adverse effects on media plurality. The Act had two major weaknesses. First, there was no definition of plurality, although we all understood that it probably referred to what Mr Murdoch was up to; and secondly, there was a basic weakness that a plurality review occurs only in the circumstances of a merger.
The recommendations this report makes are quite significant. It recommends that Ofcom should continue its transactional review capability, and the centrepiece is of course the tripartite approach the committee recommends. First, in the event of any media merger the competition authorities first look at the impact of the transaction on competition or on the abuse of monopoly position, where there is no transaction; secondly, Ofcom looks at whether a transaction has an adverse effect on media plurality; and thirdly, and very significantly, as the noble Lord, Lord Inglewood, indicated, there should be a statutory periodic review of plurality of media markets by Ofcom on a four to five-year basis. Like members of the committee, we believe that if whoever the next Government are could legislate to that effect, the potential abuses by media moguls will be avoided.
Viscount Colville of Culross (CB)
I will pick up where the noble Lord, Lord Patten, left off, on local media. I ask your Lordships to concentrate not just on the collapse of regional newspapers and the failure of new local television channels to cover local news sufficiently.
This time of transition offers a very exciting opportunity to set up hyper-local sites which concentrate on local matters. The coverage at the moment is very different in different parts of the country. Cities like Birmingham have local papers and a plethora of local blogs, websites and social media, whereas others, like south Wales, are much more poorly served.
We need to act now to encourage a wide variety of sites which will allow local information to evolve in these poorly served areas. Time is of the essence. The big players, such as Google, are moving in to scoop up the local business advertising spend. When that happens the revenue raised will not be recirculated into the local economy; instead, it will be repatriated to California. Right now we need to encourage the setting up of different kinds of local sites which will keep that advertising spend in the local economy and inform local communities at the same time.
The Media Standards Trust has brought out an interesting report, which suggests that some kind of prize money could be offered to support the launch of new ideas from the ground upwards so that they are tailored specifically to the needs of their area. There are a variety of ways of funding that, but one of the most attractive is to use the levy already charged to internet intermediaries and other sites by the Office of the Information Commissioner for the resale of personal material about our browsing history. At the moment that is divided into a single annual levy for large companies and a smaller one for small companies. A graduated fee structure across those companies could bring in more money to pay for this prize.
This is a great opportunity to increase plurality across our nation at a local level, to ensure that people are given crucial information about their areas so they can take part in our democracy as fully informed citizens. Will the Minister consider such an idea to encourage plurality in the local media across the country?
Lord Black of Brentwood (Con)
My Lords, I draw attention to my media interests in the register and in particular to my presidency of the European Newspaper Publishers Association.
In its admirable report the committee was absolutely right to draw attention to the European aspects of this debate. At the moment the European Commission has a limited and strictly defined role in UK media plurality policy through the EC merger regulation, and it is right that it should. However, in recent years there have been attempts by some to expand the scope of that competence; the report cites the efforts of the European Initiative for Media Pluralism in particular. That grew out of the highly controversial EC High Level Group on Media Freedom and Pluralism, which recommended in 2013:
“The EU should be considered competent to … protect media freedom and pluralism at State level”.
It was not just the high level group which sought to expand the EU’s role in this area. The Commission itself has in the past few years spent hundreds of thousands of pounds funding a so-called Media Pluralism Monitor, which has sought to quantify, interpret and then rank media plurality across Europe despite the EU’s lack of competence in this area.
Such a development would not be acceptable. Media plurality—reflecting the way media markets operate very differently in each country—must be a matter for national Governments. That is why I welcome the finding of the committee at paragraph 34:
“There appears to be a strong consensus that UK media markets should be the focus of media plurality policy; we agree”.
In its response to the committee, the Government rightly concurred and said that responsibility for media plurality, ownership and media freedom should rest with the member states. That clear policy is of particular importance in view of the upcoming review of the audio-visual media services directive during the term of this Commission and other discussions that are under way. I would therefore be very grateful if my noble friend the Minister would restate that important commitment this evening.
Lord Gordon of Strathblane (Lab)
My Lords, reference has already been made to the fact that many Peers withdrew from this debate because of the shortage of time. I was tempted to do so as well. I reckoned, however, that the 10 seconds extra that everyone would get if my two minutes were redistributed were hardly worth the candle. There is another important point. It is very important to demonstrate to everyone concerned that the matter of this debate is not simply of concern to the Communications Committee. Creating a healthy democracy requires—almost as a prerequisite—a vibrant media. This is a vital issue which I trust the House will address again with greater time at its disposal.
I want to make three very brief points—possibly two, depending on time. First, it is important to define the universe properly. This is responsible, I think, for the conflicts between Ofcom and the Competition Commission. I take the area of local newspapers, radio and television. Local newspapers, as the noble Lord, Lord Patten, pointed out, were a monopoly. Local radio was originally set up as a monopoly of local commercial radio, and local television at the moment is a monopoly. These are beneficial monopolies in that they at least have the resources to generate news. Once too much fragmentation is created by defining the universe too narrowly, the result is no news at all.
The second point, which I will make briefly, is to watch the technology, as the noble Baroness, Lady Kidron, pointed out. We are at the point now where technology is not passive. It could well dictate to us. People are concentrating on media owners in the traditional sense. The people who own the search engines and who manufacture television sets may well be a much greater threat to plurality in the future.
Lord St John of Bletso (CB)
My Lords, I am grateful to the noble Lord, Lord Inglewood, for his able stewardship of this topical inquiry. Clearly, we have seen a huge transformation in the media and communications landscape as a result of digital technologies, online journalism and social media, with an influx of new entrants to the news market. Increasingly, the younger generation get their news from Twitter, Vox and BuzzFeed. As a result, the levels of choice and media plurality have never been greater. We are also fortunate to have a public service broadcasting system that guarantees the provision of well resourced, independent and impartial news from the BBC and other commercial PSBs.
As several noble Lords have mentioned, plurality policy needs to encompass both local and regional media. I support the recommendation that policymakers should adopt a balanced approach, taking care not to penalise success nor harm innovation while acting to address plurality concerns. I also support the call by ITV that the UK needs a new and more equitable regime governing the basis on which PSB content providers commercialise their content on pay-TV platforms. Finally, I also support the recommendation that Ofcom undertakes a statutory periodic review of plurality every four to five years. There needs to be a clear demarcation line between plurality and competition policy. Measuring media plurality cannot be confined to any single measure, but should reflect a collection of measures. I shall end with the words that we used at the start of this report:
“Media plurality is not a goal in itself but a means to an end”.
Lord Sherbourne of Didsbury (Con)
My Lords, there are good reasons why there has been no agreement yet on how to approach media plurality. First, everyone has their own definition. Ofcom has come up with three criteria, one of which is impact. How do we measure the impact on someone who gets their news from reading, listening, watching and downloading the news? Secondly, there is how far policy on plurality would overlap or conflict with competition policy. Are we to have different criteria for measuring competition and plurality? Thirdly, there is the obligation of impartiality and balance imposed on the broadcasters. How will that be evaluated? It is no wonder that Ofcom has said that assessing media plurality involves judgment as well as measurement.
Let me make one observation to illustrate how the world is changing, a matter which noble Lords have referred to. Facebook uses algorithms to decide which new stories rise to the top of the page. It is therefore possible that the 26 year-old product manager for the Facebook news feed is one of the world’s most powerful news executives. On top of everything else, how on earth is this to be factored into measuring media plurality?
Lord Macdonald of Tradeston (Lab)
My Lords, I declare a past interest. I was chairman of Scottish Television when we bought the Herald and the Glasgow Evening Times newspapers in 1996 and created the Scottish Media Group. To complement our ITV franchise for central Scotland, we then merged with Grampian Television, covering the north of Scotland. Our combined ownership of newspapers and broadcasters caused understandable public concern. Both transactions were cleared by the competition authorities, but I was left in no doubt about the sensitivities of the media market in Scotland, which is quite distinctive.
Watching the independence referendum from south of the border—as, indeed, I did—your Lordships may have been perplexed to see banner-waving crowds outside BBC Scotland alleging pro-union bias. Inevitably, the channel 3 broadcaster, STV, was also accused of bias by yes and no campaigners. Both broadcasters will, I trust, keep their nerve and their impartiality. That balance may be difficult to maintain longer term.
Unlike public service broadcasters, newspapers are, of course, more partisan. Despite almost half of their readers voting yes, most Scottish editions of the UK papers opposed independence, as did the locally owned newspapers the Scotsman, the Dundee Courier and the Aberdeen Press and Journal, which resulted in a pro-union press consensus denounced as undemocratic by nationalists. Given such tensions in the relatively small Scottish media market, I welcome the committee’s recommendations that plurality policy for the UK should also encompass the devolved nations. The Government are tasking Ofcom to develop indicators and frameworks to guide market assessments of future media transactions and concentrations of ownerships. Ofcom’s assessment of the Scottish media market will be awaited with keen interest.
Lord Cashman (Lab)
My Lords, I am pleased to follow the noble Lord, Lord Macdonald, on some of his points, because I want to take a slightly different perspective. We have dealt with plurality, yes, but I remain deeply concerned about the power of the national press, especially during elections. I quote the Leveson report on the issue of media ownership:
“The media ownership regime takes as its starting point the position that a variety of owners will represent a variety of different viewpoints. This cannot be taken as axiomatic as owners could have a very similar set of views and values”.
That is, for me, precisely the issue. The current market dominance and the partisan nature of our press inhibit the democratic process.
Let me deal with the European aspect. It is worth noting—and I say this as a previous chief election observer in Rwanda—that the internationally agreed principles for free and fair elections involve a balanced and non-partisan media in the run-up to and during the election. This process involves measuring the amount of coverage dedicated to each party, as well as the reportage. The EU handbook is clear. It highlights that the European Union approach is based on international human rights standards, in particular the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. It also underlines that election observation missions must adhere to the Declaration of Principles for International Election Observation, a landmark document, commemorated at the United Nations in 2005. It states:
“The concept of due impartiality does not mean that broadcasters cannot provide critical coverage of the candidates and parties”.
It goes on to state:
“The media therefore have a great deal of responsibility placed on them during election periods, and it is essential that the mass media of radio, television and newspapers provide a sufficient level of coverage of the elections that is fair, balanced and impartial, so that the public are informed”.
On that basis—of a highly partisan national press—it is clear on this point alone that the UK would not pass such an election observation mission.
Lord Stevenson of Balmacara (Lab)
My Lords, this is a really good report, which deserved a much better response than it received. I hope that the Minister, when he comes to respond, can help fill in the gaps.
There are some things we can agree on: we have a workable definition of media plurality and a definition of the desired outcomes of a plural market. We also agree on the need to centre plurality policy on current affairs and news, and on the need to centre it around the UK, not neglecting local and regional issues, national media and the devolved Administrations. We also agree on the need to take up a platform-neutral approach. But why did the Government not go further with the other recommendations? Why are they not willing to engage with the recommendations of the BBC? Why do they not accept the centrepiece of the committee’s work—the establishment of a statutory periodic review? Why do they not pick up the ground-breaking new relationship proposed for government, Ofcom and the Secretary of State in relation to transactional issues?
The Government simply note the committee’s ground-breaking recommendations on a dual competition and plurality review system. That seems to me to introduce a very unwelcome uncertainty and instability into the market. It is surely not acceptable for a Government to indicate that they are minded to legislate on an issue and then to dither about what they intend to do.
Lord Bourne of Aberystwyth (Con)
First, I thank noble Lords for the quick yomp through these issues. I appreciate the discipline that was shown, as does my noble friend who has been whipping on this issue—the iron lady of the Whips. We are very grateful to noble Lords for that.
I welcome the opportunity for your Lordships to debate this important issue of media plurality and the Communications Committee’s detailed consideration of this matter. I agree with the concept of media plurality and diversity of views. I think that point was raised by the noble Lord, Lord Parekh. I thank my noble friend Lord Inglewood and the committee members, some of whom spoke in the debate, such as the noble Baroness, Lady Healy, the noble Lord, Lord St John of Bletso, and my noble friend Lord Razzall, for their hard work. My noble friend Lord Inglewood has considerable expertise in this area and has chaired the Communications Committee with great distinction.
The public’s ability to access a wide range of news, views and information about the world in which we live is central to the health of our democracy and our society. Neither the Government nor any other body can, or indeed should, compel people to consume a range of media voices, or control the impact that these voices have on public opinion, but it remains the case that the Government should seek to promote the availability and consumption of a range of media voices. To that extent, I agree with the noble Lord, Lord Stevenson, on the importance of these issues. It is important that there should be access to a range of media voices. I confirm to my noble friend Lord Black that the Government certainly do regard this matter as a national government issue. There is no doubt about that.
It is, of course, vital that the Government seek to achieve this in an appropriate way. The media landscape is changing at a pace that some of us could not have envisaged when the regulatory framework for plurality was originally devised—a point made by my noble friend Lord Inglewood and others—and the environment will undoubtedly continue to evolve and change very quickly. While television is still the most used platform for news, 41% of adults say they now use the internet to access news stories. Of these, 18% are using Google and 17% Facebook. The social media referred to by the noble Baroness, Lady Kidron, and my noble friend Lord Sherbourne are of increasing importance. I note the points that the noble Baroness made in relation to this. Certainly, the Government speak up forcefully on these issues, and Ofcom, which is following this debate, will have heard what she has said. We shall make sure that Ofcom is aware of this debate, although I believe that it is following it closely.
The impact these changes are having on the ability of consumers to access a wide range of diverse viewpoints and information remains to be assessed. That is why in July 2013 the Government consulted to seek views on, and define the scope for, a measurement framework for media plurality. Before we decide whether to fix anything, we must first understand whether and to what extent it needs to be fixed. It is clear, however, that with the huge growth in online content, there is a case for broadening the scope of policy on plurality to consideration of the online part of the media landscape.
The Communications Committee’s recommendations on plurality followed soon after Lord Justice Leveson’s recommendations. This timing was helpful for government, as the committee’s report provided further detail to complement Lord Justice Leveson’s high-level recommendations—recommendations which were described by him as being,
“at the level of desirable outcomes and broad policy framework, rather than the technical means of achieving those outcomes”.
The committee’s findings were therefore vital to the Government’s consideration of this matter, and informed our conclusions on the consultation. Indeed, there is much on which the Government and the committee agree, not least that we can no longer overlook the increasingly important role that is played by online content in the way the public find news and information about the world around them, and that it is news and current affairs which are of most crucial importance to media plurality and which should therefore be the focus of a measurement framework.
In our response earlier last year to the consultation and the committee’s report on plurality, we set out what should be included in a measurement framework for media plurality. Having considered the matter in detail, we concluded that online should be included and the type of content which is most relevant to media plurality is news and current affairs—that, of course, is central to democracy and elections, a matter rightly raised by the noble Lord, Lord Cashman. The scope should include all organisations that impact on the news and current affairs. This will include organisations that generate, gather and aggregate news; services that could affect discoverability and accessibility, such as online news services; and professional and non-professional commentary such as bloggers and social media. The BBC should be included. My noble friend Lady Bonham-Carter referred to the importance of its role. The framework must deliver indicators capable of illustrating the situation at United Kingdom level and in each of the four home nations. That point was rightly raised by the noble Lord, Lord Macdonald. It should examine issues at a regional and local level. The importance of local media was rightly raised by the noble Viscount, Lord Colville, my noble friend Lord Patten and the noble Lord, Lord St John of Bletso, as these are vital issues.
This very much reflects what the Communications Committee concluded on the scope of plurality policy. The Government and the committee also hold common ground in viewing Ofcom as the most appropriate body to take forward development of a measurement framework, in light of both its relevant expertise and its independence. We therefore announced in August last year that we would commission Ofcom to produce the measurement framework, taking into account our conclusions. Ofcom, as an independent body with significant understanding and expertise in media plurality, is well placed to lead on this work. It is deservedly trusted in this area, as my noble friend Lord Patten mentioned.
The measurement framework is a policy framework, underpinned by various indicators developed by Ofcom. It will enable us to measure whether the United Kingdom’s media landscape is sufficiently plural—for example, coming back to the diversity point made by the noble Lord, Lord Parekh, that the public have access to a diversity of viewpoints—consumed across and within media enterprises, and that no one media owner or voice has too much influence over public opinion or the political agenda. The Secretary of State is clear that it will be for Ofcom to decide on the metrics that inform the framework, but he also specified that at least one of the indicators should be focused on media ownership. The framework will subsequently allow for the first ever baseline market assessment of media plurality in the United Kingdom to be conducted.
Ofcom is ideally suited to undertake this work, having already developed detailed thinking in this area, including advice provided to the then Secretary of State in 2012. I am sure that Ofcom will apply to this work the rigour and in-depth analysis that it deserves. Indeed, Ofcom has already published a call for inputs to invite early feedback from stakeholders on the indicators that a measurement framework should include. I understand that it will publish a consultation very shortly—certainly during January—with a view to reaching conclusions this summer, after consultation. Ofcom is, of course entirely independent, so the detail of the timetable is for it to consider, and it would not be appropriate for me to comment on how this work may be progressing. However, I am very much looking forward to hearing its conclusions.
The Government have been clear that we will not consider changes to the existing policy or regulatory framework for media plurality before the measurement framework and baseline assessment have been delivered. Once these are complete, with the full knowledge of any problems that we may need to solve, we will be able to establish what regulatory changes may be necessary and proportionate to address any concerns.
As my noble friend Lord Inglewood said, this is a fast-changing area. No doubt Ofcom will bear that very much in mind. I note that one of the committee’s recommendations was that the Government should introduce a statutory periodic review of the plurality of the media market, to be undertaken by Ofcom every four to five years. This is an interesting recommendation, which may merit further exploration. But as I have made clear, the Government do not think it appropriate to consider changes to the existing policy at this stage, before the measurement framework and baseline assessment have been delivered. To quote the committee’s report,
“the assessment of plurality should drive the decision about which remedy or intervention is appropriate, not the other way around”.
Despite the constraints on time, this has been an excellent debate. I welcome what my noble friend Lord Inglewood said about the possibility of further investigation and further debates on this issue. We shall continue to ensure that the committee’s recommendations are reflected on in any subsequent work by the Government. I have made a careful note of the points raised in questions that remain outstanding, and I shall, of course, write to all noble Lords who have spoken in this debate on those matters.
Recall of MPs Bill
(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Foulkes of Cumnock
Lord Foulkes of Cumnock (Lab)
My Lords, the amendment is grouped with Amendments 7, 8, 12 and 36. The amendment deletes the whole of subsection (4) because I wanted to delete the second recall condition. I drafted the amendment when I was feeling thoroughly scunnered—if noble Lords will excuse a Scots word—with the whole concept of the Bill, and thought that one of the ways to have a discussion about it was by proposing to remove one of the offending provisions, for reasons that were made clear during our discussions on Amendments 7 and 8. My noble friend Lord Campbell-Savours dealt with this issue so eloquently at Second Reading, in cols. 184 to 186 of the Hansard report. I want just to say how sorry I am that he is not able to be with us today; he has had a very serious operation and I am sure that the whole House will wish him a speedy and full recovery, and to be back with us.
I detected earlier that in spite of my delectable and mellifluous Scots tones, noble Lords might have heard quite enough of them, and that it might be more appropriate for me to conclude my speech now. The points that I might otherwise have raised could well be taken up by one of the other signatories to the amendments in this group—in other words, my noble friend Lady Taylor of Bolton. I beg to move.
The Deputy Speaker (Viscount Ullswater) (Con)
My Lords, I must advise your Lordships that if the amendment is agreed, I will not be able to call Amendment 6 because of pre-emption.
Baroness Taylor of Bolton (Lab)
My Lords, after that introduction by my noble friend, I rise to speak to Amendment 7 in particular. As my noble friend said, my noble friend Lord Campbell-Savours is very much behind my amendment and we all, as the Committee has made clear, regret very much that he cannot be here this evening. At Second Reading, his was probably the most powerful, and certainly the most impassioned, speech of the evening.
This amendment seeks to reverse an amendment that was moved by the Opposition in another place. I regret that very much, because I think that it is a big mistake. In many ways I should not really be talking; I should be saying that we should all take a few minutes to re-read the speech of my noble friend Lord Campbell-Savours. It encapsulated why the decision to move that amendment in another place was wrong. My noble friend has referred to cols. 184 and 185 of Hansard of 17 December.
The amendment in another place looked at the second group of trigger conditions—the second mechanism. Those were the days when a Member was suspended by the Standards Committee. The Government had proposed that the trigger should come into operation if a Member was suspended by the House, following a report from the Standards Committee, for 20 days.
The Opposition proposed 10 days and that amendment was carried, because of the atmosphere about which we were talking earlier, where no one in another place feels that they can stand up for reason, as they would be accused of having something to hide or wanting to let MPs get away with some form of bad behaviour. I regret that atmosphere. It is evident on all sides of the House and has not been helpful either to the reputation of the House or people’s willingness to look at politics in a reasonable way.
When I was shadow Leader of the Commons some time ago, I was a member of what was then the Standards and Privileges Committee. At the time, it was under the chairmanship of Lord Newton of Braintree, whom we all miss in this House. He was Leader of the Commons. My noble friend Lord Campbell-Savours was on it at the same time.
It was a significant time, because we had difficult cases to deal with. There were concerns even then about the activities of just a few Members of that House. Noble Lords will remember the cash for questions incident and other things. It was also the time when the committee, under Lord Nolan, was looking at new ways forward. People working on the committee spent a lot of time trying to be constructive. I have followed its workings ever since.
When I became Leader of the House in 1997, I did not take up the chairmanship of the committee, because we felt at that time that it should be chaired by a Back-Bench Member. That was an important vote of confidence in the House. I just wish that that confidence could be maintained in that way. Members of the committee were then—and indeed are now—serious about that kind of work. The chairman and all the members take it extremely seriously.
It is a quasi-judicial committee—or at least it is at the moment—and all members are genuine in the work that they try to carry out. They look at the issues and evidence carefully. They hear and question Members very directly about the issues. But, as my noble friend Lord Campbell-Savours said at Second Reading, the amendment passed in another place will change the role and nature of that committee. If we have a 10-day period as the trigger, it is inevitable that the committee will be more prone to being party-political. The key to its success over many years has been that its inquiries have not been along party lines. It is not divided in that way. Genuine, serious, senior members have looked at an issue, if not dispassionately—people get very annoyed when anybody does something wrong—then at the facts and making a proper determination. If we change the nature of the committee it will not do anybody any good.
My noble friend Lord Campbell-Savours read out the list of those who are now members of the committee and the way in which they had voted on this amendment. It was clear that the current members are not happy with the amendment, because they realise the dangers. It is obvious. Member A has transgressed and is given a suspension of nine days, because either he or she is popular or their party has a majority on the committee. Then somebody else, Member B, comes along; because they are not popular or their party is in a minority on the committee, they get 11 days. If that happens, you are ending the career of that second person. Once people start talking about a recall position of any individual Member, those in their own party will find it very difficult to defend them or even explain the situation—so recall will not be productive in that way.
There will be a momentum that makes it inevitable. The use of social media and so on will increase the pressure all the time, which is very unwise. I have already expressed my reservations about the Bill. If we are to have it, let us have a Bill that at least has a chance of working and not one that will destroy some of the good workings of the House of Commons: namely, the Standards Committee as is.
Lord Tyler (LD)
My Lords, I have huge sympathy with these two amendments because, of course, Amendments 7 and 8 go together. That is not just for the reasons put so eloquently by the noble Baroness, Lady Taylor of Bolton. As she has said, she has experience not only on the committee but as Chief Whip and as Leader of the House. In both respects I had a minor role—one of the minor tributaries of the usual channels—in putting colleagues on to those committees. I think that we are all considerably concerned that the current arrangements have met the test of time, but that does not mean that they cannot be put under extreme pressure in the future, which would be devastating. The noble Lord, Lord Campbell-Savours, made an eloquent point in addressing the House at Second Reading when he explained that not one single member of the current Standards Committee supported this particular provision.
My only misgiving is one that I have already discussed with the noble Lord, and I am sure that he would not mind me mentioning it. Asking the members of the Standards Committee to decide between 10 days and nine days puts them in an invidious position, but in these circumstances it is just as invidious to decide between 20 days and 19 days. That is why I have attempted in earlier debates to try to find a way around this. I still think that the Government must think very carefully indeed about the invidious additional pressure that will be put on the current structure of the Standards Committee.
Baroness Taylor of Bolton
I am grateful to the noble Lord for giving way. I agree with his point that it is very difficult to decide between 20 days and 21 days. I am not saying that the amendment is perfect and that 20 days is fine. As I have said, I do not want it at all. But actually the Standards Committee would only go anywhere near 20 days if there was a serious offence, so this mitigates at least a part of the problem.
Lord Tyler
I am grateful to the noble Baroness and that is why I support the amendment. However, it is important to put on the record the fact that if this Bill goes through in its current iteration, we will be imposing a new and potentially difficult situation upon the Standards Committee.
I do not know whether the noble Baroness has been involved in discussions with colleagues at the other end, but there has been a recognition that it could be in the Bill. Under the Standing Orders of the other place, it would be possible to reconsider the respective roles of the lay members of the committee as opposed to the elected members, whether the lay members could take a more active, initiative role and make recommendations to the full committee, whether there should be more lay members, and so on. All of that is outwith the Bill and unfortunately we cannot deal with those issues, but we should at least put on the record our request for Ministers to consider and to discuss with colleagues in government and in the other place whether there should not be some review of the mechanism. I am quite clear—the noble Baroness has reinforced this from a much more experienced position than mine—that if the current Standards Committee is reluctant to take on this responsibility in its current format, that should be taken as very serious evidence indeed that the Bill is not effective, and is not likely to be seen to be effective by the people who would actually have to implement it.
Too often we in this building do not take sufficient account of the views of those who are going to have to interpret and deliver what we decide. There is clear evidence from what was said at Second Reading by the noble Lord, Lord Campbell-Savours, that that is precisely the situation in this case. On those grounds at least, I hope that the Government will review this issue.
Lord Forsyth of Drumlean (Con)
My Lords, it is an important principle that the punishment should fit the crime. Although a criminal act may not have been carried out, it is important that the committee has a range. I do not know enough about the workings of the committee to know what would have merited five days, 10 days, 15 days or whatever, but it strikes me that 10 days is far too narrow a spectrum. Someone may have done something which is pretty unacceptable but not sufficient to justify them being recalled. If the committee decides on nine days or eight days, I can just imagine what the hue and cry might be from certain sections of the media.
The very process is apparently designed to improve public confidence in the House of Commons, and indeed my noble friend has talked about the position of the lay members. I see that debate as being another manifestation of the House of Commons not having confidence in itself and its own Members, and responding to that kind of pressure not by putting its own house in order and having systems that are seen to be workable and effective, but by looking to some external body. Let us not forget the arguments we had on the previous amendment.
At one time when I was younger, I was in favour of capital punishment. Two things persuaded me to change my mind. One was that innocent people could be convicted and the other was that juries might not be prepared to convict in those circumstances. I am worried about the Standards Committee finding itself thinking, “Well, if we give nine days, people will say that that is a ridiculously short suspension, so we have to go for 10 days”, which may not be justified. I do not understand why this has been compressed. Given that the Government started off with the view that it should be 20 days, it should be very easy for them to accept this amendment.
Lord Cormack (Con)
I entirely agree with the noble Baroness, with whom I had the great pleasure of serving when I was acting as deputy shadow leader in the other place. We worked together on the Privileges Committee and I came to have a very high regard for her total integrity and judgment. I still have that high regard. What she said this evening was entirely right.
I think that the other place is in danger of talking itself down. That is something that we really need to focus on. I remember reading many years ago a comment by one of the great 18th century admirals—I think from memory it was Admiral Rodney—who, as many others did, served in the House of Commons. He made a remark to the effect that there was no greater honour that any man could have—it was just men in those days—than to be in the House of Commons, representing a constituency. That was long before the days of anything approaching modern democracy. When I was elected in June 1970 I certainly felt that. I am sure that those others of your Lordships’ House who have had the privilege of serving in the other place would have had similar feelings.
In any group of 600 or 650 people you are bound from time to time to have some who transgress. However, it always has been and it is—and please God it always will be—the exception. For the past few years, since the expenses scandal and the witch-hunt that followed—and it was a witch-hunt—there has been a real reluctance on the part of Members of the other place to think highly, not of themselves, but of the institution of which they have the honour to be Members. We are, in fact, playing to that tune in putting this Bill through Parliament. I accept that it is going to go through. I regret that infinitely, because I think it does no service to Parliament in general or to the House of Commons in particular. That is a deep sadness to me and, I know, to many others.
However, if the Bill is to go through, this amendment is essential. Sentences of a few days can be given for offences which are in no sense improprieties in the generally accepted sense of the word. Every institution must have the power to discipline its members. If somebody is consistently failing to obey the Speaker or to abide by the rules of the House, of course they will suffer. We know some who have done so. I can think of the late Lord Bannside as Ian Paisley; Andrew Faulds, one of my dearest friends; Tam Dalyell, who was mentioned earlier; and others, who have, for perfectly honourable reasons, even though I may have disagreed with them, flouted the rules, been named and excluded for a period. But the House of Commons would have been a much poorer place without any of those Members. The thought that anyone like that, for a parliamentary transgression, could be in danger of recall is just too awful to contemplate.
This places a great weight on the shoulders of those who serve on that committee. I am bound to say that I regret that there are lay members on the committee, because I think it should be, as it always was, a committee of Parliament. I agree entirely with the noble Baroness when she said that, as Leader of the House, she decided not to chair the committee and that the chair should be a respected Back-Bencher. I think that that was a very wise and modest decision. It was the right decision. You should be judged by a group of your peers, unless you are transgressing the law of the land, and then, of course, other procedures follow. We all recognise that. However, I would beg my noble friends on the Front Bench—and particularly the Front Bench opposite, because this originated with an Opposition-led amendment—to think again about this. For 20 days, the offence has to be reasonably serious.
The other point alluded to by the noble Baroness, which was a very good and powerful one, was that there could be a danger of politicising these things, in a party sense, particularly in the sort of frenetic pre-election atmosphere that we have at the moment. One of the distinguishing features of the other place, and indeed of this place, is that Members in committee—particularly Select Committees, one of which I had the honour of chairing for five years—look at issues on their merits and seek to have recommendations that address the issues without polarising or dividing the committee. I would deplore anything that led to the former tendency in the Standards or Privileges Committees.
The least that we can do to help mend this very broken vehicle that is being pulled before us is to accept this amendment. I hope we can accept it tonight, without any Division or controversy at all. If not, I hope it can be accepted on Report. It goes just a little way to making a Bill that has come about, frankly, because certain people do not have enough confidence in that great institution at the other end of the Corridor and because party leaders have been rather craven—I use the word deliberately—a little better than it is at the moment. We want to put this right. This amendment will achieve precisely that.
Lord Grocott (Lab)
My Lords, I thought that my noble friend Lady Taylor put it very well in terms of the huge significance of a 10-day suspension, with it basically being the end of a parliamentary career. It is rather like the point about the death penalty made by the noble Lord, Lord Forsyth. This is not a marginal decision between whether you give someone nine days or 10 days; it is not even the difference, to use a footballing analogy, between a yellow card and a red card. It is the difference between a yellow card and a ban for life.
We touched on this in earlier exchanges, but it seems to me that being suspended for 20 days clearly indicates a very serious offence. That is shown by the House of Commons Library research paper, according to which there have been just two cases in the last 25 years when that would have happened. As we have all remarked already, that would be even less likely to happen if it was known that it would lead to expulsion from the House because it would trigger a petition—as it would have, had this provision been in existence then. There has to be some doubt whether even the two that passed the test, if you like, would still pass the test, because Members would be very reluctant to impose a 20-day suspension.
Perhaps we are all in danger of repeating ourselves, but surely the position as it stands at the moment is that the House itself can expel someone and that, in effect, the provisions of this Bill—as it stands, a 10-day suspension; as it originally stood, a 20-day suspension—amount to the equivalent of expelling someone from the House. My view is that if that is what the House wants to do, the House has the power to do it now and we do not need a Bill to enable it to do that. To that extent, as with so many of the other provisions of this Bill, the organic mechanism by which Parliament operates tends to deal with these matters without introducing legislation that is not needed. That is the substantial point I want to make, but I want to ask a question to which I should know the answer, and I doubt whether the Minister will know the answer immediately.
I think there may be an odd juxtaposition here. Unless I am completely wrong, the Speaker of the House of Commons can suspend people. I cannot think of an occasion when someone has been expelled for as long as 10 days, but I think that, as my noble friend Lord Maxton says, if someone is suspended until they apologise, heaven knows how long that could be.
Am I then right in thinking—I would love to be told that I am wrong—that we now have a situation where 10 days, as imposed by the Standards and Privileges Committee, results in, “Thank you, goodnight, you are out”, whereas 10 or 11 or 12 or 13 days from the Speaker is, “Come back, all is forgiven and we are off to the tearoom”. I need an answer to that question because I do not know the answer to it myself. If it is the case, that needs sorting out.
Lord Wallace of Saltaire (LD)
As the Bill stands, it does say,
“as the result of a report from the Standards Committee”—
so suspension by the Speaker would not be included.
Lord Grocott
Surely I can at least persuade the Minister that that is a seriously anomalous situation that he really should go back to his advisers and sort out.
Lord Elystan-Morgan (CB)
My Lords, I regarded it as an immense privilege to be a Member of the other House only for eight years. In 1966 the great, wise, far-seeing electorate of Cardigan saw fit to send me to the House—and then, eight years later, they changed their minds. It still was a splendid experience that I very, very greatly treasure.
I was present in the House on the day that Tam Dalyell, that magnificent character, was hauled before the Bar of the House. It was almost like attending a public execution. There was a deathly hush. He was, if I remember rightly, rusticated for a period of four weeks. It was because he had seen a privileged report relating to Porton Down, and there were certain sidelinings there which he had disclosed to the press. Whether it was Tam’s own idea, or that of his mentor, who shall not be named, I do not know, but I remember that there was a deathless hush in the House that day, and I remember thinking then how serious a matter it was for the House to discipline one of its Members.
We are now in a situation where there is a hysteria of self-flagellation in the House of Commons because of the misconduct of a small number of Members. I still think that the House of Commons is a very honourable institution. The vast majority of its Members in all parties are decent people, worthy of the best traditions of Parliament, but there is a mass hysteria. I support this amendment because I believe, although it is far from perfect, and there are many, many criticisms that can be made of it in a mechanical sense, it looks in the right direction. For that reason, I heartily endorse it.
Lord Howarth of Newport (Lab)
My Lords, the issue raised by the whole Bill and by this amendment in particular is whether the House of Commons still has the self-confidence and the self-respect to take responsibility for its own self-regulation. If you introduce the principle of recall, it is a very strong signal that it does not. If you then amend the original Bill so that you emasculate the powers and the capacity for useful action of the Privileges Committee, you demonstrate that the process is even more far gone. If you create a state of affairs in which the Privileges Committee has such greatly reduced scope and discretion to exercise its own judgment in relation to the particular circumstances of the cases before it, it becomes well nigh useless.
It is deeply sad—and, more than that, as other noble Lords have said, it is deeply damaging to representative democracy. I hope that even at this late stage it is not too late for the House of Commons to reconsider the matter. After all, there has been great public anxiety about the conduct of certain Members of Parliament and there was a crisis, but the rational and proper response to that is not to give up on the principle of self-discipline and self-regulation; it is to reform it and strengthen it and make it work effectively, and, that way, rebuild the public’s confidence in their House of Commons.
Lord Maxton (Lab)
My Lords, I agree entirely. Perhaps I may make one very important point—I had a conversation in the corridor not that long ago with a very distinguished Member of this House, whose name I shall not mention, to this effect: we must always remember that denigration of politics is a denigration of democracy. Democracy and politics are hand in hand; they are opposite sides of the same coin perhaps, but they are the same coin and we should never forget that.
My second point is on the Standards Committee. There is a sense being expressed tonight that it is Back-Bench Members of Parliament who take decisions—they are often the right decisions—but the committee always works on the basis of a report and investigation done by the commissioner. Yes, the commissioner works for the committee, but it does not take a decision just on the basis of some wild allegations that have been made.
As I know to my own cost, the commissioner makes a thorough investigation, perhaps lasting several weeks if not months, and then reports to the committee. In most cases—not all of them—the committee goes along with that report. We should bear in mind that this is not just some ad hoc committee taking decisions on the basis of allegations; it is a serious committee receiving reports from the commissioner and making decisions based on a very thorough investigation.
Lord Hamilton of Epsom (Con)
But does the noble Lord not accept that, if the recommendation of the report is that the Member should be found guilty, the sentence is in the hands of the committee? This is what we are really arguing about, because it is when it comes to the sentence that party politics come into play. Therefore, because there is a party balance in one direction, you shove it over the 10 days, and because it is a party balance in the other direction, you put it at nine days. It is the sentence that is the critical thing, not the verdict.
Lord Maxton
I agree with the most of that, but the commissioner’s report makes a recommendation on sentence as well. In most cases—not all of them—the committee will agree with that report. However, I accept that, given the circumstances that we are now in—which is why I support the amendments—that might change and the commissioner’s report would not necessarily be upheld in the circumstances that the noble Lord outlined. At the moment, the commissioner gives a recommendation as to what sentence should be given. In quite a lot of cases, that recommendation is that the Member should appear before the House of Commons and apologise for their behaviour; it is often no more than that.
Lord Kennedy of Southwark (Lab)
My Lords, this group of amendments contains amendments for which I am able to offer the support of the Opposition Front Bench and amendments for which I am not.
Although the non-government amendments are, I believe, only probing, enabling us to debate issues around this important Bill and the provisions concerning recall that it contains, the Labour Party manifesto at the last general election gave a commitment to introduce a system of recall of MPs for wrongdoing. We support the Bill on that basis.
Amendment 5, tabled by my noble friends Lord Foulkes of Cumnock and Lord Hughes of Woodside, would delete the second condition of recall, as spoken to in detail by my noble friend Lady Taylor of Bolton. The conditions of recall were debated during the Bill’s passage through the other place. It is right to have a condition of recall that responds to the report from the Standards Committee into the behaviour of a Member of Parliament, where the House of Commons on receiving the report suspends the Member for the requisite period. While I have the greatest respect for my noble friends who have spoken in this debate, I am unable to support the amendment today, as I do not think that it would be right, when the other place has taken a view on a matter of such a serious nature as to suspend a Member, for us to change that.
Amendment 7, which was also supported in addition by my noble friends Lord Campbell-Savours and Lady Taylor of Bolton, increases the period of suspension before the recall provisions are triggered from 10 to 20 sitting days. Amendment 8, again in the names of my noble friends Lord Foulkes of Cumnock and Lord Hughes of Woodside, is consequential and takes the period in any other case up to 28 days. These amendments, in effect, reverse the positions agreed in the Commons on an amendment proposed by the Opposition Front Bench. When these issues were debated in the Commons my honourable friend Mr Thomas Docherty made clear from the Dispatch Box the reasoning for the amendment: that, despite concerns raised inside and outside Parliament and the reputation of Parliament being damaged with Members doing wrong that resulted in a suspension, with this threshold in place over the past 20 years on only two occasions would it have been met, as my noble friend Lord Grocott said. Those Members who were suspended in the 1990s for taking cash for questions, which was hugely damaging to Parliament, would have escaped the recall provisions. My colleagues in the other place thought that was unacceptable and brought forward the amendment that was agreed to reduce this trigger to 10 days’ suspension.
Amendments 12 and 36 in the name of my noble friend Lord Foulkes of Cumnock remove the words “or otherwise” in both cases from the Bill. Looking at these amendments I am not sure whether they will have unintended consequences and that is why I am unable to support them. I can see a situation, as my noble friend Lord Grocott said in a previous debate tonight, where an MP finds that they have triggered the recall provisions, maybe by serving a term of imprisonment for one day for demonstrating in support of or with some of their constituents, as other noble Lords have referred to. Rather than waiting for the recall to be triggered, the MP may in fact just resign their seat and fight a by-election immediately. They would certainly in those circumstances have avoided lots of campaigns against them, all spending money to have them recalled, and the by-election would be held with strict election expense limits. It seems to me that by deleting these words in the two amendments we could be denying the Member of the other place that option, and that would be regrettable.
Government Amendments 6, 9 and 10, which have the full support of the Opposition Front Bench and have also been signed by my noble friend Lady Hayter of Kentish Town, in effect seek to future-proof these provisions as far as possible. We are aware that the Commons is or will be looking at these issues in respect of the processes to deal with Members who have done wrong, and these amendments seek to ensure that, whatever the process, the provisions of this recall Bill apply.
The noble Lord, Lord Elystan-Morgan, said—and I agree with him—that the House of Commons is an honourable institution. Members of Parliament from all sides act honourably, work hard on behalf of their constituents and serve people well. Dishonourable Members are very rare and we are all very well served by Members of Parliament. I also agree with the comments of my noble friend Lord Maxton about the denigration of democracy. I also regret that my noble friend—
Lord Forsyth of Drumlean
My Lords, before the noble Lord finishes his remarks, I take him back to the justification which he gave for the 10-day issue, which was that two colleagues who had committed serious offences in the past would not have been caught. Does he really think in the current climate, whatever the number is—whether it was 10 days or 20 days—that they would not have found themselves subject to recall? Therefore surely the logic of his position is incorrect. By setting it at 10 days, we limit the spectrum of penalties that can be put forward. To argue that because in the past a view would have been taken that was less than 20 days does not actually fit in with the spirit of the age. If this Bill is passed and becomes law, it is inconceivable, I would have thought, that the Standards Committee would not look beyond 20 days. This is a self-fulfilling argument that has narrowed the scope for the House to show that it has taken a tough line.
Lord Kennedy of Southwark
I do not agree with the noble Lord. The amendment was tabled by the Opposition Front Bench because these are serious matters. Members who committed serious wrongdoing would have got away with not being recalled. By tabling the amendment, we wanted to reflect that their punishment was not enough; they should have been recalled. We wanted to give a clear signal to Parliament and to the country that, in future, 10 days is the right length after which that should be dealt with.
In conclusion, I regret that my noble friend Lord Campbell-Savours is not here tonight, as many other noble Lords have said. I wish him a speedy recovery.
Lord Wallace of Saltaire
My Lords, let me speak briefly to the government amendments, which, as the noble Lord, Lord Kennedy, remarked, are consequential to amendments tabled by the Opposition Front Bench and passed in the Commons by a significant majority. We have also tabled three amendments, Amendments 6, 9 and 10, to future-proof the second edition by ensuring that the reference to the Standards Committee captures any other committee that in future exercises the relevant functions. Perhaps I should mention that the Standards Committee is at present reviewing its arrangements, including the role of lay members—although I suspect that it is more likely to expand the role of lay members rather than to do what the noble Lord, Lord Cormack, would like, and dismiss them.
The amendments therefore make it clear that any other committee doing that function, whatever it is called, will continue to be given that function. They also make it clear that it is the report of the Standards Committee from which suspension follows and has to relate to the conduct of a particular MP, rather than, for example, a report about conduct or suspensions more generally.
The noble Lord, Lord Foulkes, has tabled several amendments. Amendment 5 is a wrecking amendment, which would render the Bill unworkable by making the first condition ineffective and by removing the second condition. Amendments 7 and 8 would overturn the will of the other place, which voted on Report by 204 to 125 to support an amendment tabled by the Opposition Front Bench to set the threshold at 10 sitting days, as has been remarked on. I suspect that those who were absent were doing other things elsewhere, rather than sitting outside determined to abstain but frightened that the Daily Mail might see what they were doing, which is what I think some noble Lords were suggesting.
Amendments 12 and 36 would amend how the seat might otherwise be vacated by deleting the phrase “or otherwise” from the Bill. Another way of future-proofing the Bill is to emphasise that the seat may be vacated for a number of other reasons—disqualification, death or other causes which the Commons may in future decide for itself. That would of course mean that no recall process was necessary. If the MP’s seat becomes vacant for whatever reason, the MP will not need to face a petition. Those words are therefore needed to stop unnecessary recall petitions being started where the seat has already been vacated.
Perhaps I may say a few wider words on the tone of our Committee so far, because what I hear is a number of noble Lords saying that we have to save the Commons from itself—we know better than the other place. I wish that when we had been debating House of Lords reform, we had the same sense that the other place knows better about us, but I did not hear that sentiment from noble Lords—particularly those here at the time. We have to be very careful not to have nostalgia for British politics of the 1960s as a golden age in which we had two-party politics, mass parties, respect for MPs and Parliament and deference.
Lord Howarth of Newport
Do not Members of both Houses equally have a responsibility to try to ensure the integrity of Parliament and that our institutional arrangements are such that Parliament is effective in the way that we all wish? Is not the right test to apply whether proposed reforms will improve the performance of Parliament or otherwise?
Lord Wallace of Saltaire
I wish we had heard that sentiment a little more often when we were discussing reform of this House. We have to be very careful about nostalgia. I think I heard the noble Lord, Lord Cormack, say: “It should be as it always was”. I thought about that wonderful quotation from The Leopard:
“If we want things to stay as they are, things will have to change”.
We have to be very careful not to abandon ourselves to the same nostalgia for the world of our youth that motivates those who vote for UKIP.
Lord Soley
Although the noble Lord might be right about not being nostalgic about things going back to 40 years or so ago, when you talk about separating legal processes from parliamentary ones you are looking at a few hundred years and things like the principles put forward by Burke in the 18th century.
Lord Wallace of Saltaire
We understand that we are dealing with some fairly fundamental principles. The noble Lord, Lord Maxton, made an extremely important point about the denigration of democracy, and the depths of public disillusionment which we now face and how we come to terms with that. The defence of democracy is not necessarily the defence of Westminster as it is now, let alone as it was 40 years ago.
Lord Maxton
It is the link between politics and the public—the media—which is the cause of the problem, not the public itself. People can only go with what they receive from the media.
Lord Wallace of Saltaire
I wish I could entirely agree with the noble Lord. There are many good aspects of the end of deference. People question the elite and the establishment much more than they did. We have to be very careful not to think that the preservation of Westminster in aspic is the way to regain or rebuild public trust in politics. I see that I have provoked a few noble Lords. I call upon the noble Lord, Lord Foulkes, to withdraw his amendment.
Lord Forsyth of Drumlean
Before my noble friend concludes his remarks, would he do us the courtesy of dealing with the argument about 10 and 20 days? I listened very carefully to what he said and the only justification he put forward was that this was passed by the House of Commons. There have been a number of speeches making very pertinent points about ensuring that there is public confidence in parliamentary procedures. Will the Minister explain why the Government are rejecting those arguments?
Lord Wallace of Saltaire
We do take our lead from the House of Commons on this. I remarked that the Commons Standards Committee, of which the noble Lord, Lord Campbell-Savours, was bitterly critical in a speech that I recall very well, is now looking at its structure and procedures. We should welcome that and, on that basis, the Government support the decision of the House of Commons.
Baroness Taylor of Bolton
I am grateful to the Minister for giving way. He said, in answer to his noble friend Lord Forsyth, that the Government accepted this because the Commons did. However, the Government supported this in the Commons. What was the rationale for that support? Does the Minister accept the basic point, made by several noble Lords this evening, that there is a really serious danger of the Standards Committee making decisions along political lines?
Lord Wallace of Saltaire
Politics cannot be entirely dismissed from anything. Going back to that wonderful period in the 1970s, I recall seeing the excellent play “This House”, in which the noble Baroness is portrayed, about how the House of Commons behaved at the time. I suspect that politics was not entirely absent from the Privileges Committee then. The introduction of lay members to the Standards Committee was intended to make it less political and strengthen the safeguards against it being used for political reasons. That is part of the basis on which the Standards Committee is now reviewing its procedures.
Lord Grocott
Whatever the Minister’s reservations about the rights of this House to try and improve legislation that has come from the Commons when it relates largely to Commons matters, could he please agree that if there appears to be a bizarre anomaly in the Bill, it is our duty at least to look at it? To repeat myself, the anomaly is this: on one day, as the Bill stands, a Privileges Committee report giving a sentence of 10 days or longer could be endorsed, leading to a recall petition being triggered; on the same day, in relation to another Member, the Speaker of the House could—as I understand it—impose a suspension of longer than 10 days. Whatever his reservations about our right to amend the Bill, does he acknowledge that there appears to be an anomaly and that he will, at least, go away and look at it?
Lord Wallace of Saltaire
I am not aware of what the Speaker did on the same day. I will certainly look at that.
Lord Tyler
I shall assist my noble friend briefly on this because I think there is a potential anomaly, as the noble Lord, Lord Grocott, says. What it stems from is that the suspension that is handed down from the Chair by the Speaker, the Deputy Speaker or whoever may be in the Chair at that time is, as I understand it, always related to behaviour in the Chamber. A suspension which is recommended to the House by the Standards Committee is, as has been said by a number of noble Lords, on the basis of a commissioner’s investigation of serious wrongdoing. The committee then decides whether that wrongdoing is an appropriate decision and then decides, again on recommendation, what the verdict should be. That is quite distinctly different.
It may be that there have been circumstances—I cannot put my hand on my heart and say—where the Speaker has laid down such a very long suspension. Throwing the Mace around in the Chamber was the big case, was it not? I do not know whether that exceeded 10 days. I think that the noble Baroness, Lady Taylor of Bolton, is right to say that it would be very exceptional for the Speaker, in circumstances of that sort, to insist on the suspension of a Member in any way that would trigger the 20-day limit—but it might trigger the 10-day limit. That is an additional reason for this House to ask the other House to think again about the number of days’ suspension that should trigger the recall procedure.
I do not know whether I entirely answered the noble Lord, Lord Grocott, but perhaps I have given my noble friend on the Front Bench time to think about it at least.
Lord Elystan-Morgan
I shall make a point which I think illustrates the matter raised by the noble Lord, Lord Tyler. Into which category would Tam Dalyell’s case fall? Was it bringing the House in toto into disrepute or was it something in the Chamber? There must be a situation where one category bifurcates the other.
Lord Tyler
I do not know whether I am entitled to interrupt myself when I was interrupting my noble friend who has a lot more experience than me, but I think the answer is that at that stage the current procedure did not exist. Previously, the Speaker was the only person who could take that decision. Now, I think such a matter would be referred to the Standards Committee.
Lord Foulkes of Cumnock
I have been sitting quietly—unusually for me—listening carefully to what has been a fascinating debate and waiting patiently for the Minister to explain why he is not able to accept the amendment spoken to by my noble friend Lady Taylor, which was the line the Government took in the House of Commons. I can understand that my noble friend on the Opposition Front Bench is constrained, and I respect his position, but I do not understand the position of the noble Lord, Lord Wallace. I would have thought he would have accepted it with open arms. It is a Labour amendment putting forward what the Conservatives did in the House of Commons. He has not explained. As the noble Lord, Lord Forsyth, and my noble friend Lady Taylor pointed out, not one word addressed the issue of why it should be 10 or 20 days. He can interrupt me if he wants to try to explain that.
Lord Wallace of Saltaire
The number of days is always in some ways an arbitrary decision. In our amendments, which are consequential on the Commons’s decision, we have clarified the relationship between calendar days and working days, and we have accepted the decision of the Commons. If the Commons wants to change it, I have not heard from the noble Lord very powerful reasons why it should be 20, or perhaps 25 or 30 days.
Lord Foulkes of Cumnock
My favoured amendment is Amendment 5, which would delete this whole provision, because the Member being dealt with is going to be punished twice. To be suspended for 10 days, you lose 10 days’ salary and have the ignominy of being suspended from the House—creating quite a lot of publicity in the national and local press—and then on top of that you have to go through this new recall procedure.
We are supposed to be concerned about the constituents. Can you imagine the constituents in this constituency where this Member has been subject to recall? He is going to be fighting to try and stave off the recall—for eight weeks, is it not? There is the preparation for it and then the eight weeks—the whole period. What is going to happen to the disabled lady who has lost her benefit? What is going to happen over issues such as when Her Majesty’s Government plan to put HS2 through his constituency and he is fighting it? All these issues, all the individual problems, are not going to be dealt with. Constituents are not going to be dealt with because of this recall petition.
I thought that one of the most effective points was made by the noble Lord, Lord Tyler, over the interpretation and delivery of these things. Look at this Bill, look at the schedules—six in total, with all the details. Work through them, read them page by page and imagine what would be involved in administering this recall, for example counting the expenses of all the people involved. No doubt we will come to that later on. It is a huge thing that we are undertaking.
Lord Wallace of Saltaire
The noble Lord is again making a Second Reading speech—but that is in a sense appropriate, since Amendment 5 is clearly a wrecking amendment that would destroy the Bill. But now may not be the time, possibly, to make another Second Reading speech.
Lord Foulkes of Cumnock
If the Minister and the Government accepted what I have raised on about 59 other occasions—that we give the Speaker or the Chairman some power to tell us when we are out of order—I might not have been going on for so long. With respect, it is not the job of the Minister to tell me. This is a self-governing House and I can go on as long as I like and say as much as I like within reason, as long as I do not get shouted down by the collective will of the House.
My noble friend Lord Elystan-Morgan raised this question. Tam Dalyell—a very good example—has been mentioned on a number of occasions. He had a four-week suspension and would have had to go back to West Lothian to go through this procedure and would not have been able to raise these things. No doubt he would have been put under pressure in relation to things that he wanted to raise on behalf of his constituents.
I would have liked Amendment 5 to be accepted—for striking this out to be considered—but, failing that, I just do not understand why the Government have not accepted the amendment tabled by my noble friend Lady Taylor. I find it strange when the previous Minister was so sympathetic.
Lord Forsyth of Drumlean
I am most grateful to the noble Lord. Is not the answer to his question obvious? We have had it from the Minister’s mouth. As far as he is concerned, the fact that the Commons has passed this is the end of the matter and it is none of our business—so why are we all sitting here debating this Bill?
Lord Foulkes of Cumnock
Why do we come at all? Why are we going to come tomorrow to discuss the business for tomorrow, or next week or next month? Why are we going to come back after the election to discuss anything? Why are we here at all? The noble Lord, Lord Wallace, attacked me, saying that we do not come up with suggestions for reforming the House of Lords. The irony is that the most radical suggestions to have been put forward recently were by a committee chaired by the noble Baroness, Lady Taylor, of which I was a member. The Government are ignoring them. They have paid them no attention whatever and have given them no consideration, yet they would produce radical reform of this House. I have been arguing for some time about setting up a constitutional convention to look at ways in which we can improve it.
I am very disappointed, because I was in the middle of saying that the noble Lord, Lord Gardiner, listened very carefully to reasoned arguments and responded in a reasonable way. He has spoken to me informally subsequently about following it up and I am really grateful to him. I am very disappointed, particularly since it is a Liberal Democrat Minister—it says something these days—who has responded so negatively, particularly to the amendment that the noble Baroness, Lady Taylor, spoke to. Nevertheless, I am afraid that there is nothing left for me to do but to withdraw Amendment 5.
Lord Wallace of Saltaire
Lord Wallace of Saltaire
“(6A) The reference in subsection (4) to the Committee on Standards is to any committee of the House of Commons concerned with the standards of conduct of individual members of that House.
(6B) Any question arising under subsection (6A) is to be determined by the Speaker.”
Lord Wallace of Saltaire
Lord Wallace of Saltaire
(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 the day on which section 1 comes into force.”
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, following acceptance of Amendment 14, Amendment 15 has been changed. It is now proposed that it should read: page 2, line 23, leave out from the words last inserted to end of line 26 and insert the new words printed on the Marshalled List. I point out to the Committee that if this amendment is agreed, I will not be able to call Amendment 16.
Lord Wallace of Saltaire
“( ) The reference in section 1(3) to an offence does not include an offence mentioned in section 1(7).”
Lord Wallace of Saltaire
“( ) “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 third recall condition, means—
(a) an appeal that—(i) is in respect of the conviction mentioned in section 1(7) 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.”
Lord Wallace of Saltaire
(a) ”
(b) is convicted of an offence mentioned in section 1(7) within the meaning of that provision (see section 2).”
“(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”
“Further recall condition: illegal practices in parliamentary elections
(1) It shall be a further recall condition under this Act that on consideration by an election court of a parliamentary election petition it is shown that illegal practices committed in reference to the election of an MP for the purpose of promoting or procuring the election of that MP have so extensively prevailed that they may be reasonably supposed to have affected the result.
(2) Where an election court finds that the condition under subsection (1) has been met, it must notify the Speaker of its decision.
(3) Where the Speaker receives a notification under subsection (2), he must follow the procedure set out in section 5, as though the second recall condition had been met in relation the MP against whom the election court made the decision.
(4) Subsection (1) shall not apply if the election court finds that the illegal practices amount to corrupt practice.
(5) If subsection (1) applies, and the election court finds that the illegal practices do not amount to corrupt practice, the election of the candidate shall not be void.”
Lord Dubs (Lab)
My Lords, this is of course a probing amendment, although I would very much like to see it incorporated in the Bill in the fullness of time. However, for this evening’s purpose it is simply to give us a chance to debate the matter.
As the Bill stands, Members of Parliament may be penalised in ways that are described in the Bill. However, the amendment also refers to the work of the election court. We have an anomalous situation, because a Member of Parliament may be penalised by the election court for a lesser offence than might apply under the Bill, and yet the punishment would be more severe without any recourse to voters. That is pretty onerous, it is unfair, and we should put it right. The purpose of the amendment is to bring at least a large element of the work of the electoral court—particularly its conclusions—within the ambit of the Bill.
As I said, a Member of Parliament may be penalised by an election court for a lesser wrongdoing, but the penalty may be much more severe. Indeed, the Member of Parliament may be penalised to the point of losing his or her seat and not being allowed to stand again in the resulting by-election or any election in that constituency for a number of years. The most recent instance was after the 2010 election, when Phil Woolas had to appear for a transgression to do with the way his election campaign was run. The election court dismissed him. He lost his seat as a result and he was not able to stand again. I am not saying that what he did was right or wrong. That is not the purpose of the debate. The purpose of the debate is to say that the election court had a power which is much more than is contained in the Bill. I want to bring that part of the work of the election court within the ambit of the Bill.
In the amendment, I distinguish between illegal and corrupt practices. As I understand it, there is no statutory definition of an illegal practice so we have to be careful about being too precise, but there is a range of illegal practices which might be the subject of decisions by the election court. I will not go through them all now but they are, for example, to do with election expenses in excess of the maximum permissible; paying election expenses otherwise than through the election agent; paying them out of time; or failing to make the return or declarations as to the expenses. Other examples could include disturbing a meeting, making a false statement concerning the personal character or conduct of a candidate, and so on. There is a whole list. They may or may not be serious. How serious they are will depend on the particular circumstances and the way the practice actually happened. In other words, a very minor failure in the accuracy of the return may not be too serious, but a large failure is serious. It depends on the circumstances.
The aim of this amendment is to bring these things within the scope of the Bill. We all know that the judiciary—and for this purpose I refer to those on the election court as the judiciary—does not like being put in the position of having to unseat an elected politician. At least, I believe that is what it thinks. I certainly hope that is what it thinks. If we accept this amendment, a decision by the election court could be used via the Speaker to trigger the petition which—if it received 10% of signatures—could then lead to a by-election. That is a fairly clear-cut way of doing it. The enormous benefit is that in the end, the decision is by the voters. If enough of the voters want a by-election, there will be one; then when they have a by-election, the voters can decide whether or not to chuck the former MP out. It seems to me that this is a much better method than the way the election court works at the moment.
As I said, this is a probing amendment. The Minister may find all sorts of technical points that prevent him from accepting it. That may well be. I had the enormous help of the Public Bill Office in drafting the amendment, but even so, it is quite difficult. A few more weeks of work might have improved the wording. However, the principle is clear. I hope the Minister will give it a sympathetic ear and will say it is worth considering at the next stage of the Bill. I beg to move.
Lord Soley (Lab)
The election court is outside the ambit of this Bill, but my noble friend makes the case for including it. I make a brief point in support of my noble friend’s comments. I believe that my recollection is right that Phil Woolas won his case on appeal, but by that time it was too late. In effect, we had a court taking a decision which resulted in the electorate not being able to select a person who they might well otherwise have selected.
Lord Grocott
I appeal to the Minister to address this matter. It is an important issue for the Committee to consider. We may not be completely comfortable with any of the amendments that are tabled but, whatever else we may think about this Bill, we should acknowledge that it introduces a new disciplinary mechanism for dealing with MPs who are considered to have misbehaved. I emphasise that it is a new disciplinary mechanism. Disciplinary mechanisms have existed for many years, including the election courts, as was said. Inevitably, I suppose, if you introduce a new disciplinary mechanism, there is a real possibility that anomalous situations will arise and that punishments will be either too severe or not severe enough. As has been recognised, the punishment imposed on Phil Woolas was not just that he had to give up his seat but that he was debarred from standing in any subsequent by-election.
The one thing I do like about this Bill is that it acknowledges that even if Parliament and petitioners think that an MP should have to fight a by-election, he or she will not be debarred from fighting the seat. The ultimate authority lies with the MP’s constituents, as it always should. It is for the voters to decide whether or not an individual is a worthy person to sit in the House of Commons. No one else should decide that—not judges or any other group of people. I think that a great injustice was done in this case. I thought so at the time but I particularly think so now that this new penalty of recall has been introduced. To tell a Member of Parliament that he cannot stand for election to Parliament is like telling a writer that he cannot write or a builder that he cannot build. That is what Members of Parliament do: they stand for election to Parliament. I appeal to the Minister to go back to his officials on this point and at least acknowledge that, whatever the merits of this Bill—he clearly thinks that there are many—it can produce anomalies in relation to existing disciplinary procedures. We could end the debate on this amendment rather rapidly if he would indicate that that is the case, as there would be very little else to say.
Lord Tyler
I dare to make a brief comment after what the noble Lord, Lord Grocott, said. I have sympathy with the proposed new clause. It is clearly outwith the current arrangements but it is very relevant for the reasons that the noble Lord gave because it says that the final arbiter in these circumstances should be the electorate rather than a judge. I do not want to repeat what was said earlier but wish to explore whether proposed new subsection (1) of the amendment is relevant to the circumstances that I faced in October 1974. I am afraid that all of us have travelled down memory lane today. I was defending a very small majority in my former constituency. A newspaper was delivered to a large number of households by a pro-apartheid group which alleged that the then Young Liberals leader, Mr Peter Hain, and all those who worked with him or were associated with him in the Liberal Party, including myself as a sitting Liberal MP, were effectively guilty by association of murdering babies in South Africa. That campaign may or may not have been effective.
As I did not have the resources, and because I did not think that it would be fair on my then successful Conservative opponent, I decided not to go to an election court and say that he must be responsible for the relevant leaflet. It had an imprint on it but it was not clear that it had been published by his agent, although it was published by an organisation which was run by a former Conservative MP. However, I thought then, and I think now, that there should have been some way in which those circumstances could be investigated short of effectively seeking to unseat my opponent. I think that some way could be found. I do not know whether the noble Lord, Lord Dubs, would agree, but I think that this might fall within his first category. In that case, it would be right that, in the end, the final arbiter might be the electorate rather than a judge in an election court. There is therefore some important relevance in what the noble Lord has laid before the Committee, and I hope that it will be further considered.
Baroness Hayter of Kentish Town (Lab)
My noble friend Lord Dubs has, as usual, set out eloquently why he has sought to bring the outcome of election court proceedings and the new ones in the Bill more into line. His arguments were echoed by my noble friends Lord Soley and Lord Grocott, and by the noble Lord, Lord Tyler. It might indeed seem very odd to a member of the public if an MP imprisoned for a serious drink-drive offence faced only a recall petition and a possible by-election, which he could then contest, whereas a different court—an election court—has the ability to exclude an MP from Parliament altogether, and even to ban that MP from contesting the seat at a by-election.
We therefore welcome this as a probing amendment, partly to give the Government the opportunity to spell out what consideration they have already given to such issues, what discussions they have had with the electoral court, and whether they are satisfied that these two mechanisms have a degree of consistency that is easily explicable both to Members of the other House and to the public. We look forward to hearing the Minister’s views.
Lord Gardiner of Kimble (Con)
My Lords, I thank the noble Lord for his probing amendment and the debate that we have had on it. As he said, his amendment would introduce a further recall trigger where an election court finds a person or persons guilty of illegal practices in respect of a parliamentary election. The noble Baroness, Lady Hayter, rightly asked what consideration has, and could be, given to this suggestion.
Under the Representation of the People Act 1983 the result of an election can be challenged by any eligible person by lodging a petition with the relevant election court. The election court will first consider whether the MP was fairly returned. If the court, upon hearing the evidence, finds the candidate or other persons guilty of corrupt or illegal practices, it will produce a report. Any report produced will state the names of all persons who have been proved at the trial to have been guilty of corrupt or illegal practices, and it will be laid before the Director of Public Prosecutions.
A candidate or other person reported as guilty of corrupt or illegal practice shall not be able to: register as an elector or vote in any local government or parliamentary election held in the United Kingdom; be elected as an MP; or hold any elective office. In the case of a person reported as guilty of a corrupt practice—for example, personation—these incapacities will apply for five years. A person found guilty of an illegal practice—for example, double voting—will be subjected to these incapacities for three years. The incapacities will apply from the date of the report, and the person must vacate any elected seat held.
Under the noble Lord’s amendment, if an election court found that illegal practices by a person or persons had resulted in the election of an MP, but the MP was not found guilty of any offence, this would automatically trigger a recall petition. However, under Section 167 of the Representation of the People Act 1983, an MP would automatically be guilty if his agents were found to have engaged in corrupt or illegal practices during the election, and would therefore have to vacate his seat.
If the noble Lord believes that an MP should not automatically be found guilty because of the actions of others in securing his seat, that would require an amendment to the Representation of the People Act. I am sorry to disappoint the noble Lord, but it is the Government’s view that the system and penalties that we currently have in place under that Act are sufficient. For that reason, I ask the noble Lord to withdraw his amendment. I am most grateful for the comments that have been made. Although I cannot promise to bring anything more back, this has been a very interesting debate.
Lord Dubs
My Lords, I am grateful to the noble Lord for what he has said. I did, in fact, try to distinguish between illegal and corrupt practices to indicate that there was a degree of severity under the term “corrupt” that would apply less to “illegal”. He has merged the two. I am sorry that he will not look at my proposal in a lot of detail. I genuinely believe that there is an issue here, but unless the Minister can be persuaded to think further, I shall have to call a halt—tonight, at any rate—and I beg leave to withdraw the amendment.
Lord Wallace of Saltaire
Lord Foulkes of Cumnock
Lord Foulkes of Cumnock
I did not know that noble Lords wanted to hear me again this evening, but there we are. This is an interesting amendment. Its impact is that once one of the recall conditions has been met, the Speaker has to give the relevant petition officer notice, whereby a petition can be opened,
“as soon as reasonably practicable”.
In an earlier debate, the noble Lord, Lord Tyler, said that we often passed legislation without consideration for the people who had to interpret and deliver its results. This is one of the situations in which we are not taking account of it. There would clearly have to be some time for the Speaker to get all the information together, contact the petition officer—the local returning officer—and get the information to them in order that a petition could be opened as soon as “reasonably practicable”.
We shall come later to amendments on how many polling stations there should be, and how long they should be open for. At the moment the proposal is for there to be four polling stations. In my old constituency, as I shall say in more detail in a later debate, four polling stations would have been entirely inadequate. I used to hold surgeries in 25 different villages in Carrick, Cumnock and Doon Valley because the constituency covered 800 square miles. To expect people to come from Cumnock and go down to Girvan, or to go from Girvan to Dalmellington to sign the petition is entirely unreasonable. There are no buses between some of the towns in my old constituency. Deciding where the four polling stations should be set up would be difficult, as would be the case in keeping those polling stations open for eight weeks and providing personnel to look after them. At one time it was suggested that they would be open from 7 am to 10 pm; that would be terrible. Now they are talking about 9 am until 5 pm. That again would be very difficult, not to say expensive—another matter we will discuss later.
Again, if the excellent amendment of the noble Lord, Lord Hamilton, is discussed and accepted later, we would have not just the petitions but the counter-petitions to deal with. I do not know whether his amendment had been thought of previously but it has certainly been well devised by him. I would certainly support it.
The whole process would be quite a job. My suggestion in the amendment is that the timing of when this ought to take place should be changed. I am afraid that in drafting this amendment I have not been as acute and sensible as I should have been. I was trying to get over the fact that it will take a long time and that it is a long process, and that there should be more time rather than less to deal with it.
Lord Wallace of Saltaire
My Lords, I think that I understood that the noble Lord was moving Amendment 35, which is about the reduction in the length of time for an election. I understand him to be talking about a different amendment, which is about the number of polling stations. Are we at cross-purposes?
Lord Foulkes of Cumnock
I was leading up to that. I want the time to be discussed. My amendment changes the time to “3 months”. In fact, “3 months” is not what I had intended. I should have said “13 months”. That was a drafting error when I put the amendment in. I want more time between. It will take much longer because it is such a complicated procedure. If six months only are available it will be difficult to carry out all the procedures and provide the arrangements in time for it to be sensible to carry out this procedure before a general election comes upon us and overtakes the process.
I must apologise to the Committee for the mistake in doing that, but the question about the length of time still stands. Six months is completely inadequate for dealing with the procedure. The general election will overtake it for the reasons about the complicated nature of setting up the polling stations and the other technical arrangements that have to be made, which I was outlining. I hope that the Government will look again at the period of six months and not reduce it to three months but extend it.
I have also suggested in Amendments 54 and 59, which are linked to this, that as well as the Speaker laying the notice of the recall petition process before the House of Commons, the Lord Speaker should lay it before the House of Lords. I realise that it is a matter principally for the House of Commons, but things undertaken relating to Parliament often have a wider importance than just for the House of Commons. In relation to them this House often gets forgotten. On every occasion when it seems to me to be appropriate, the Lord Speaker should look after the interests of the House of Lords and the House of Lords should be equally informed, at the same time as the House of Commons. That is why Amendments 54 and 59 have been tabled.
As I said, I was not immediately ready to move this amendment so late in the evening, so I must apologise to the House, and also for the error in the amendment as drafted. I want to extend the period rather than to reduce it. I beg to move.
Lord Howarth of Newport
I do not think that my noble friend Lord Foulkes should apologise at all. I congratulate him on the way in which he has threaded his way through these thickets.
There is a common theme in this group of amendments. The proposal is that legislation should lay duties on the Speaker of the House of Commons and the Lord Speaker. I would be grateful if the Minister, when he comes to reply in a few moments, would share with the House his understanding of the constitutional rights and wrongs of legislation that lays duties on the Speaker. Are we risking breach of privilege? I refer here to the independence of the Speaker of the House of Commons. Are we once again risking the possibility of running up against the ancient tradition embodied in the Bill of Rights, or not? There may be many precedents in legislation that lay specific duties on the Speaker, but my impression has been that the Speaker should be unconstrained by legislation and that the Standing Orders of the House of Commons may lay duties upon the Speaker. So I question the appropriateness of the measures not only in the Government’s Bill as we have it, but also in my noble friend’s amendments, which refer to the role and functions of the Speaker of the House of Commons.
The position of the Lord Speaker is of course entirely different and is not analogous to that of the Speaker of the House of Commons, but none the less there may already be a body of practice and precedent that establishes certain customs, conventions and proprieties in relation to any attempt to legislate on the role of the Lord Speaker. It would be helpful if the Minister would guide us on these points.
Lord Grocott
My Lords, perhaps I am slightly out of turn in mentioning this at this point, but it will save time. My suggestion that Clause 5 should not stand part of the Bill is included in this group. I tabled it simply to enable me to make a point that I cannot find a way of making by means of an amendment, but it is something which goes to the heart of the Bill. My view is very simple indeed, because I like simplicity. We have a very good system for recalling MPs—it is called a general election. That is the point at which MPs should be judged and perhaps removed by their constituents; that is, on the basis of their performance over the preceding period of time.
I love the word “anomaly”, which has been used today. It seems to me to be rather anomalous, or perhaps inconsistent, that this Government, who deliberately and as a matter of public policy decided that general elections will be held less frequently, should be introducing a Bill to provide for recall. Of course, if you have general elections every four years instead of every five years, then as we know from Clause 5, the recall does not operate during the six months prior to the election. If there were elections every four years, there would be more occasions when the recall provisions would not apply, which I suppose is a legalistic way of saying what I am arguing. Recall becomes redundant when general elections are held.
If the noble Lord, Lord Wallace, is to reply to this debate, I should say that I have found that not many members of his party agree with me on getting rid of the Fixed-term Parliaments Act, but I am heartened by the fact that I know members of his party—I do not want to disclose names—who think that fixed terms, if they exist, should definitely be every four years, not every five years; indeed it used to be his party’s policy. That is a less bad situation as far as I am concerned, and it is undoubtedly and unarguably a more democratic and accountable system. In trying to appeal to the values that are frequently claimed as being a particular characteristic of the Liberal Democrats, perhaps I may put it to the noble Lord, Lord Wallace, that on the grounds of democracy and accountability, it is better to have elections every four years rather than every five years. Should that happen, we would have less need to invoke the provisions of this Bill for recall.
Lord Hamilton of Epsom
Was it not a very great mistake, if the Fixed-term Parliaments Bill was going to be introduced merely to suit this coalition Government, not to have given it a sunset clause so that it does not go on into the next Parliament?
Lord Grocott
That is absolutely right, but of course we know why the five-year provision was enacted in the first place. We owe it to David Laws, who gave us an explanation in his book, which I would recommend noble Lords read, if they have not done so already: 22 Days in May. In it he states that in the course of the negotiations between the Lib Dems and the Conservatives:
“We mentioned that our own policy was for four-year, fixed-term parliaments. George Osborne made the point that five-year parliaments were better, as they allowed governments to get into implementing their plans before having to start worrying about the timing of the electoral cycle. We—
that is, the Liberal Democrats—
“made no objection to this, and Britain was on its way to five-year, fixed-term parliaments”.
So, as described by David Laws, the five years were introduced so as not worry about the timing of the electoral cycle, which I think is a polite way of saying “without having to worry about the electorate”. Will the Minister at least acknowledge that the best way of dealing with this business of accountability may be to have rather more frequent general elections?
Lord Kennedy of Southwark
My Lords, the amendments and clause stand part in this group look specifically at the role of the Speaker in the recall process; how the Fixed-term Parliaments Act relates to the provisions of the Bill; at what point on approaching the general election do these provisions no longer come into effect; what do we do if the MP who is under threat of recall happens to be the Speaker of the House of Commons; and is there a role for your Lordships’ House and the Lord Speaker in matters relating to the other place?
During my contribution at Second Reading, I raised the point that there appeared to be an omission in the Bill. What happens if the MP subject to the recall provision also happens to be the Speaker of the House of Commons? I am pleased that the Government have tabled Amendments 68, 69 and 70 to deal with this and put provisions in place to deal with this event if we find ourselves in a position where the Speaker has triggered the recall provision. The Chairman of Ways and Means is the principal Deputy Speaker and quite rightly the person who should undertake these functions if the circumstance arises.
Amendments 54 and 59, put forward by my noble friend Lord Foulkes of Cumnock, require the Lord Speaker to lay before your Lordships’ House any notices required by Clauses 13 or 14 that it is proposed are laid before the House of Commons. Each House of Parliament has procedures that enable it to conduct its business, regulate its affairs and deal with issues and problems. With the passing of legislation, for example, there is co-operation and agreed procedures to get a Bill on to the statute book.
However, the Bill concerns how we deal with MPs who have done wrong and have met the conditions of recall. The procedures for notifying the Commons are clear in the Bill, whether it be notification of the termination of the process or notification that the petition was successful. In those circumstances, I do not see any role for either your Lordships’ House or the Lord Speaker—although I agree with my noble friend Lord Foulkes’s comment in the previous debate that there are other roles for the Lord Speaker to take, and we should look at that another time.
It would be confusing for one House to notify another House about matters that concern one of its Members. I think that we should also remember that this Bill, when it gets on to the statute book, will, I hope, be rarely used. When it used it will receive considerable media attention. This is no local event and it will not have a local feel. I have no doubt that Members of your Lordships’ House will be fully aware of what is going on.
My noble friends Lord Foulkes of Cumnock and Lord Hughes of Woodside have also tabled Amendment 35, the effect of which is to reduce from six to three months the period before a general election when the provisions do not apply, the Member is already subject to a recall petition and the seat has been vacated. I can see that this reduces the time that the Member is exempt from the provisions, but I think that the reduction to three months makes things very difficult in practical terms.
It is proposed that the petition is available for signing for eight weeks and if successful a by-election is held, which can easily take four weeks—we are at three months. For these and similar reasons, the six months on the face of the Bill is the correct length of time, because it deals with the practicalities of this process and allows a reasonable period of time which is in no way excessive to deal with the practicalities we face.
I hope that my noble friend Lord Foulkes of Cumnock understands why I am unable to support this and his other amendments—although I have a feeling that they will be coming back in amended form on Report.
Lord Wallace of Saltaire
My Lords, I will start by answering the question on the role of the Speaker. I will take that away and make sure that we are absolutely correct on that. My understanding is that, unlike in a by-election where a writ is moved, the Bill provides for the Speaker to exercise certain administrative functions to enable the process to work efficiently. It is based on the Recess Elections Act 1975, which also places administrative duties on the Speaker. We will look at that carefully; it is clearly an important point.
The noble Lord, Lord Foulkes, leaves me breathless, in a sense, because if we are talking about 13 months instead of three months, we are in an entirely different world of course. As the noble Lord, Lord Kennedy, said, we had considered that on the existing basis that six months before the next anticipated election is the point at which local by-elections are not undertaken. I understand that in 1973 the Speaker’s Conference looked at the question of when by-elections should not be called and recommended:
“In the fifth year of a Parliament, some relaxation of these guidelines should be allowed, in order if possible to avoid by-elections being held immediately before a general election”.
We are therefore incorporating into the Bill previous accepted practice.
On the question of the Lord Speaker, perhaps we can have a discussion off the Floor. As the noble Lord, Lord Kennedy, said, it has not been the practice to inform the Speaker of the other place formally when we take particular actions here. As to whether it should be introduced—it would clearly be appropriate for this to be on a reciprocal basis—I am not sure.
The noble Lord, Lord Grocott, raised a very interesting, wide question about four-year parliaments versus five-year parliaments—which, again, I would be very happy to talk to him about. I have been doing some quick calculations, which I hope I have got right. There have been, including the election we are about to face, some 19 general elections since 1945, seven of which have led to five-year parliaments. Had we had the Fixed-term Parliaments Act in 1945, there would have been 15 general elections including the coming one—just four fewer. If we had had a four-year Fixed-term Parliaments Act in 1945, we would now be past the 17th general election and half way through to the 18th. So we are not talking about a vast difference.
I am sure that the noble Lord does not want to go down to the two-year, Congress style, where electioneering takes over everything and reasonable government has to stop, but let us discuss this further outside the Chamber. The noble Lord raises some very interesting, long-term questions about constitutional reform that we clearly need to discuss further.
Lord Grocott
The good news is that in five of the seven parliaments that lasted for the full five years, the Government in power were thrown out. Clearly, we hope that is a precedent that will be seen this time.
Lord Wallace of Saltaire
The noble Lord is, as always, wonderfully optimistic. The interesting question of how many parties will lose the next election is one which we can return to at a later point.
Government Amendments 68, 69 and 70 deal with the role of the Speaker. The purpose here is to emphasise that we are talking about the Speaker as an institution rather than as a person. The Government were responding to an amendment tabled by the MP for Cambridge, Julian Huppert, and proposed that this would be properly looked at in the Lords. In the absence of the Speaker, one of the Deputy Speakers—for example, the Chairman of Ways and Means—will deal with those functions that are appropriately held. I end by assuring the noble Lord, Lord Howarth, that I look at the appropriateness of those functions and at the precedents that we always have to look back to. On this basis, I hope that the noble Lord can withdraw his amendment. I look forward to some interesting conversations in the corridors.
Lord Foulkes of Cumnock
I am sure that we will hear more about fixed-term Parliaments and their problems during this year, but in the light of the very helpful reply by the Minister, I beg leave to withdraw my amendment.
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