House of Lords

Thursday 5th February 2015 Lords Chamber

Thursday, 5 February 2015.

11:00

Prayers—read by the Lord Bishop of Carlisle.

Introduction: The Lord Bishop of Leeds

Thursday 5th February 2015 Lords Chamber

11:06

Nicholas, Lord Bishop of Leeds, was introduced and took the oath, supported by the Archbishop of York and the Bishop of Carlisle, and signed an undertaking to abide by the Code of Conduct.

Russia: Armed Forces

Thursday 5th February 2015 Lords Chamber

Question

11:11

Asked by

[Lord Spicer]

To ask Her Majesty’s Government what recent assessment they have made of the Russian armed forces.

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con)]

My Lords, Russia has been modernising its armed forces since 2008. These are being used in a highly assertive manner in conjunction with wider political, economic, misinformation and intelligence activity to project Russian influence, especially towards, but not limited to, former Soviet states. This has been demonstrated by strategic aircraft sorties both in Europe and the Far East, the increasing number of large no-notice snap exercises close to NATO allies and Russia’s aggressive actions in Ukraine.

[Lord Spicer (Con)]

My Lords, is it not the case that Russian rearmament has been so rapid and the response to it in the West has been so slow that there is now a real possibility of a new cold war, which Mr Putin just might believe he can win? In those circumstances, is it not essential that Her Majesty’s Government ring-fence the defence budget at at least 2% of GDP?

[Lord Astor of Hever]

My Lords, NATO’s credibility depends on unity and implementing quickly and efficiently decisions taken at the Wales summit—in particular, the readiness action plan that will include a new high-readiness force to enhance NATO responsiveness and effectiveness—and publicly acknowledging the commitment by allies to aim to meet NATO’s target of 2% of GDP spent on defence. We are working with allies to ensure that momentum is maintained ahead of the summit in Poland next year.

[Lord West of Spithead (Lab)]

My Lords, the Minister will be aware that Mr Putin has increased spending on his nuclear triad by 42%, even though the country is an economic basket case. It has built a new class of ballistic missile submarines; it has introduced a new type of submarine-launched ballistic missile; and it has a new class of attack submarines, which, worryingly, have now got a long-range Cruise missile with a nuclear tip, which probably breaks the INF. Does the Minister agree that what Mr Putin calls his strategy of de-escalation, because he sees a conventional imbalance, is actually a strategy of escalation? Does he also agree with Labour that it is imperative now that we maintain our continuous at-sea nuclear deterrent, the minimum force possible, and replace the ageing Vanguard-class submarines one for one?

[Lord Astor of Hever]

My Lords, I agree with the noble Lord. The 2015 Russian defence budget is stated to be the equivalent of $50 billion, which is around 4.5% of Russian GDP. As to the Russian military doctrine, which the noble Lord mentioned, the last one was published in December 2014 and more emphasis is placed on the perceived danger from NATO, asymmetric warfare, advanced weaponry and the use of information and subversion.

[Lord Marlesford (Con)]

My Lords, does my noble friend agree that the real tragedy is that in the 23 years since the collapse of the Soviet Union, Russia has almost wholly failed to restructure its economy? It now has the economy of a third world country, it is suffering from the effects of the fall in the price of oil, and it has at its head a regressive and reactionary leader who is quite unworthy of being in command of the armed forces and who has contracted out of the world’s search for peace, stability and prosperity.

[Lord Astor of Hever]

I agree with everything that my noble friend has said.

[Lord Craig of Radley (CB)]

My Lords, what was the Russian ambassador’s response to the Foreign Office when it called him in to complain about the transit of a Russian bomber aircraft along the Channel?

[Lord Astor of Hever]

My Lords, the Russian ambassador committed to giving a full explanation in writing of that long-range bomber activity.

[Lord Soley (Lab)]

My Lords, is not the problem for Russia and the former Soviet Union that there is now growing instability? As the Minister said, this is clearly a matter for NATO and the UK, but it is also for the European Union to have some sort of strategy towards Mr Putin’s policy, which is in acute danger of causing either another cold war or something worse.

[Lord Astor of Hever]

My Lords, the noble Lord has made a very good point, and these are all issues which will be discussed at the NATO Defence Ministers meeting being held in Brussels today.

[Baroness Smith of Newnham (LD)]

My Lords, the Wales summit last year, the readiness action plan and the defence investment pledge are all vital. Does the Minister agree that we need to co-operate more fully with our partners in the EU and NATO not just in terms of expenditure but also by working to negotiate for de-escalation through diplomatic routes?

[Lord Astor of Hever]

My Lords, I agree with my noble friend. We have been very clear that above all, the solution requires Russia to end its deliberate and continuing destabilisation of Ukraine. Russia must withdraw its equipment and troops from Ukraine, secure its borders and cease support for the separatists. It is clear that the international community has a role to play by exerting the greatest possible pressure to ensure that that happens.

[Baroness Symons of Vernham Dean (Lab)]

My Lords, can the Minister assure the House that when the explanation is received from the Russian ambassador about what those Russian planes were doing so close to our waters, it will be published and a copy put in the Library of the House?

[Lord Astor of Hever]

My Lords, I will do my very best to ensure that that happens. Just for the benefit of the House, on 28 January two Russian bombers flew close to the south coast in congested civilian-controlled airspace, unauthorised and without communicating with UK air traffic control. The UK response was conducted in accordance with well-practised NATO procedures and the bombers were escorted from the UK’s airspace by Royal Air Force aircraft.

[Lord Stirrup (CB)]

My Lords, the Minister has agreed with the NATO minimum target for defence expenditure of 2% of GDP, but his own party has yet to commit itself to that minimum level for the United Kingdom. Will he take this opportunity to correct the position now, and if he cannot do so, will he explain the inconsistency between that and what he has just said? Will he also explain how on earth we stand any chance of persuading our partners in NATO and Europe to do better, because they are doing even worse than us in this regard?

[Lord Astor of Hever]

My Lords, we have met the 2% target for this entire Parliament. We are committed to spending 2% of GDP on defence until the end of the financial year 2015-16, following which decisions will be determined in the next comprehensive spending review.

Women: Postnatal Depression

Thursday 5th February 2015 Lords Chamber

Question

11:19

Asked by

[Baroness Royall of Blaisdon]

To ask Her Majesty’s Government what steps they have taken to support women suffering from postnatal depression.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, the Government have prioritised improving mental health care and support for pregnant women and new mothers in their mandate to NHS England, with a clear objective to reduce the incidence and impact of postnatal depression. We have taken steps to improve the size and capability of the workforce—there are 2,000 more midwives and 3,200 more health visitors than in 2010. By 2017, specialist perinatal mental health staff will be available to every birthing unit.

[Baroness Royall of Blaisdon (Lab)]

My Lords, that is welcome news. Too many women who suffer from postnatal depression do not seek help because of the stigma attached to mental illness, together with the guilt and shame attached to feeling that they are not being the sort of mother that society expects. I hear what the noble Earl says about specialist care, but what are the Government doing to ensure that specialist mother and baby units can be accessed by these new mothers wherever they live in this country, so that they do not end up on acute psychiatric wards, separated from their babies or partners, or not receiving the requisite help? At the moment, I fear that parity of esteem for mental health is not a reality for these women.

[Earl Howe]

My Lords, we know there is more to be done. There are perhaps two key actions here. One is having a sufficient number of trained professionals in place—I have mentioned the increase in the number of health visitors and midwives—and the other is raising awareness of the risks and signs of postnatal depression with mothers-to-be. Extensive training is available and delivered to midwives, both during their initial training and afterwards. The programme of family nurse partnerships commenced by the previous Government is tremendously important in the follow-up stage after birth to ensure that new mothers are monitored closely.

[Lord Alderdice (LD)]

My Lords, we know that one of the very important elements in support of women in the pre- and post-partum period is the quality of the relationship between the father and the mother of the child, and that where there is a problem in encouraging that, there is frequently difficulty. Given that, is my noble friend satisfied that this element of the relationship is sufficiently addressed, appreciated and nourished in all our facilities?

[Earl Howe]

The role of the father, as well as of course that of the mother, is emphasised in all the guidance—certainly in the healthy child programme but also in the work done under family nurse partnerships, which targets the most vulnerable families. That programme provides intensive support to young first-time mothers and their babies. It explicitly involves fathers—and/or other family members as well—as long as the mother wants the father to take part.

[Lord Laming (CB)]

My Lords, does the Minister agree that two elements need to be addressed? First, there is the safety and well-being of the mother but, secondly, there is the important issue of helping the mother to bond with her new baby. That requires quite intensive work at a critical time in the life of the new baby and of the mother. Could he assure us that these matters are being addressed in these new arrangements?

[Earl Howe]

The noble Lord makes some extremely pertinent points. The family nurse partnership programme that I mentioned is important in this context, and our aim is to expand that to 16,000 places by April 2015. We launched the NHS Start4Life information service for parents. Parenting classes are available through the CANparent network and we are developing a population measure to show child development at two to two and a half years for inclusion in the public health outcomes framework, so that we can measure the progress we are making.

[Baroness Nye (Lab)]

My Lords, would the Minister agree that midwives had a crucial role to play in identifying and helping women suffering from postnatal depression, so it is regrettable that the Prime Minister’s pledge at the last election that there would be 3,000 more midwives during this Parliament has not been met? The increased number of midwives in training is to be welcomed, but does he agree that valuable mental health care support for new mothers is being lost if some NHS trusts do not have the money to employ them when they finish training?

[Earl Howe]

It is positive that the number of midwives has increased by 2,000 since 2010, as I mentioned, and there is a record number in training, as the noble Baroness mentioned. But she is right about the role of the midwife before, during and after the birth. The visits that a new mother can expect from a midwife should contain a session where the right questions are asked of the mother about how she is feeling and how her baby is. The signs and symptoms of postnatal depression are ones that every midwife is trained to pick up.

[Baroness Howe of Idlicote (CB)]

My Lords, as well as the importance of the bonding of the mother and baby, and the other very welcome steps that the Government are taking, I hope the Minister will agree that the needs of the children at home—they are very badly affected, one hears, by a mother who is in a state of mental depression—should be taken into account and met equally.

[Earl Howe]

The noble Baroness is, of course, quite right. Again, midwives and health visitors involved in family nurse partnerships are trained to look at the welfare and well-being of all members of the family.

[Baroness Corston (Lab)]

My Lords, does the Minister agree that there is still a social stigma attached to postnatal depression? I have heard people say, “She’s got a new baby, what’s she complaining about?”. What steps are the Government taking to increase public understanding of the fact that this is a mental illness, unbidden, which affects women who would like to be able to bond with their babies and be proud of them like the rest of us are?

[Earl Howe]

The noble Baroness makes an extremely good point. I think that the stigma attached to mental illness is slowly diminishing, although there is a long way to go. But she is right that there are common misconceptions around the baby blues and postnatal depression. One of the most important things we can do is inform mothers-to-be of the risks and signs of those syndromes. If we can do that and prepare mothers for the possibility that they will experience this, we are more than half way there.

Housing: Brownfield Land

Thursday 5th February 2015 Lords Chamber

Question

11:27

Asked by

[Lord Greaves]

To ask Her Majesty’s Government what steps they are taking to promote housing development on brownfield land, rather than greenfield sites.

[Lord Greaves (LD)]

In asking the Question standing in my name, I remind the House of my local government interests.

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)]

My Lords, we have given high priority to development on brownfield land and the Government have introduced a package of measures to accelerate the redevelopment of such land, including £400 million of loans to support 30 new housing zones. We also expect local authorities to put in place local development orders granting planning permission for new homes on over 90% of suitable brownfield sites by 2020.

[Lord Greaves]

My Lords, the proposals for the new housing zones are welcome but in areas such as mine in east Lancashire, private developers simply cannot recoup the cost of the land and of building the houses in their profits from the sales of houses in areas where house prices are very low by national standards. In these circumstances, do the Government understand that loans are no use at all because they cannot be recouped, and that what is required is direct gap funding of the difference between the cost to the developers of producing the houses and what they can get for the sale or rent of those houses?

[Lord Ahmad of Wimbledon]

My noble friend makes a valid point about the need to encourage housing development. In that regard, I can also point him to the estate regeneration fund, currently standing at £150 million, to revitalise housing estates. But we are seeing take-up of the housing zones initiative. Indeed, in London, for example, it has been matched by the mayor by a further £200 million.

[Lord Suri (Con)]

My Lords, what are the advantages of promoting housing development on the green fields, which are meant to be preserved?

[Lord Ahmad of Wimbledon]

My Lords, my noble friend raises an issue and a concern but, on the contrary, the Government—and, indeed, the national framework—are seeking to protect the green belt, national parks and areas of outstanding natural beauty. Development in the green belt generally is very inappropriate and it would be permitted only in very special circumstances. Even then, that is very much in the remit of the local authority. Our green belt policy provides rigorous protection against all unwanted and unnecessary development.

[Lord McKenzie of Luton (Lab)]

My Lords, under Section 62A of the Town and Country Planning Act 1990, local planning authorities can be designated as underperforming where the speed or quality of their decisions has fallen below a prescribed threshold. The Government are proposing to extend this measure so that authorities could also be designated where they did not meet the objective of bringing forward sufficient coverage of local development orders on brownfield sites. It seems to have all the potential of a bureaucratic nightmare with a fluctuating baseline. How many councils are currently designated under Section 62A? Given the huge cuts endured by local authorities, disproportionately borne by services such as planning as councils strain to support adult and children’s services, what assessment have the Government made of the capacity of councils and the Planning Inspectorate to cope with the proposed arrangements?

[Lord Ahmad of Wimbledon]

I do not agree with the noble Lord. Our intention is to ensure the freeing-up of brownfield sites. With the objective that we seek to achieve on new homes—I know that it is an objective that he and his party share—it is important that we look across the country and ensure that all brownfield sites are released. The initiatives that we are taking reflect that. On the noble Lord’s specific questions about councils, I shall write to him.

[Lord Rooker (Lab)]

What are the Government doing about the brownfield sites that they own? Figures that I saw in the Financial Times three or four weeks ago showed that the Government own enough land to build 2 million houses on brownfield sites. Surely that would be a mechanism for dealing with the cost of remediation, which is clearly the problem in certain parts of the country outside the south-east.

[Lord Ahmad of Wimbledon]

The noble Lord makes a valid point. The Government are undertaking to ensure that all surplus land that they own and falls under that designation is sold. Such initiatives are being taken to support housebuilding across the country.

[Lord Cormack (Con)]

My Lords, land is very finite in this country. Will my noble friend reinforce the comments that he made about the importance of the green belt and maintaining it? Daily, we read about threats to Constable country and other glorious parts of the United Kingdom. It is crucial that this Government do not go down in history as one who allowed the despoiling of some of the most beautiful parts of this country.

[Lord Ahmad of Wimbledon]

My noble friend again raises the issue of the green belt, which has remained a constant at 13% of land across England. I assure him that the Government are greatly committed to protecting our green and pleasant land.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, the Minister will no doubt be aware of the aggressive behaviour of some developers—I choose Gladman as an example—in pursuing their wish to develop on greenfield sites in desirable locations. Often, their applications are initially turned down by local authorities, but they then pursue local authorities to appeal, where the developers are able to spend a great deal of money and the local authorities are not. Therefore, the appeals are often successful. What are the Government doing to restrict the activities of developers who behave in this way?

[Lord Ahmad of Wimbledon]

I think no one welcomes developers acting on that basis. The only elements within the green belt that are looked at in planning for housing are those that are designated as brownfield sites. If there are instances such as those that the noble Baroness has raised, such applications can be called in by the Secretary of State. Where such malpractice is seen, I would encourage that to be done.

[Lord Avebury (LD)]

What proportion of the 15,000 homes to be built at Ebbsfleet, which is entirely brownfield, will be allocated to social housing? Will a minimum amount of social housing be prescribed for all the new towns that are planned?

[Lord Ahmad of Wimbledon]

As my noble friend knows, every local development plan reflects the need for social housing to give the correct mix. That will be reflected in the Ebbsfleet development. I am pleased to say that we are moving forward on that. I hope that legislation before this House will ensure progress in that area.

[Baroness Farrington of Ribbleton (Lab)]

My Lords, did the Government meet the target of replacing all the social housing being sold off with a new housing unit? What are the figures? If the Minister does not have those with him, could he please write to me and put a copy in the Library?

[Lord Ahmad of Wimbledon]

It is always my pleasure to write to the noble Baroness and I will do so.

National Gallery: Visitor Services

Thursday 5th February 2015 Lords Chamber

Question

11:36

Asked by

[The Earl of Clancarty]

To ask Her Majesty’s Government what assessment they have made of the National Gallery’s decision to privatise their visitor services.

[Lord Gardiner of Kimble (Con)]

My Lords, the National Gallery is considering plans intended to preserve, enhance and extend the services it provides while enabling improved pay and conditions. The Government recognise that it is for the gallery, as an arm’s-length body, to decide on its staffing arrangements.

[The Earl of Clancarty (CB)]

My Lords, is the Minister aware that another national museum said this week that it privatised its visitor services simply to save money? Is not the National Gallery’s intended privatisation to be of all gallery services—400 out of its 600 staff—with the loss in the long run of all the expertise that permanent staff bring? Is this not in fact a deep privatisation from the inside, enforced by the cuts and wholly against the public interest?

[Lord Gardiner of Kimble]

My Lords, I do not think that the noble Earl is right. This is designed precisely to ensure that the National Gallery is able to extend its opening times and enhance its revenue. The discussions that have been had under TUPE—the Transfer of Undertakings (Protection of Employment) Regulations —are precisely to ensure that, on the transfer of staff, their terms and conditions are retained. There will be no redundancies.

[Baroness Wheatcroft (Con)]

My Lords, a few years ago the British Museum faced similar protests over plans to privatise support services. I declare an interest as a trustee of the museum. Would my noble friend the Minister agree that, far from damaging the museum, that seems to have enhanced what we do, as the visitor numbers and customer satisfaction surveys imply?

[Lord Gardiner of Kimble]

My Lords, this is precisely why almost all the senior and large museums and galleries in this country have gone along this path. There are no demons in this. It is all about enhancing the staff’s arrangements, including in part of the arrangement for the National Gallery to pay above the London living wage.

[Lord Howarth of Newport (Lab)]

My Lords, if even the National Gallery, which is strongly placed to raise money from non-governmental sources, is driven to such last-resort cost-cutting and unable to maintain its planned programme of opening—and yesterday galleries were extensively closed because of industrial action—does the Minister, who cares about the arts, worry that his Government’s onslaught on the culture budget if it continues will usher in, literally, a new dark age?

[Lord Gardiner of Kimble]

The noble Lord knows very well that the creative industries across this land are in a very vibrant state and contribute hugely to our national economy. They are to be congratulated. I repeat: the National Gallery is one of the last galleries to undertake this process. I discussed this matter with other museums. This is a success story—and a success story for the staff concerned.

[The Earl of Glasgow (LD)]

Are the Government considering allowing these changes to be made because they are dissatisfied in some way with the visitor service being provided at the moment, or is it done for ideological reasons?

[Lord Gardiner of Kimble]

My Lords, this is a matter for the National Gallery. It is not about an ideology but about securing a better future for the National Gallery and for more people to be able to visit this great institution at weekends and evenings. Yes, the gallery wants to increase its revenue stream. That should be applauded by everyone. However, this is about a success story and building upon it.

[Baroness Andrews (Lab)]

Is the Minister aware that in the past few years cuts to museums, according to the Museums Association, have been about 20%? They are being asked for more cuts in future. Will he follow the example of the Government of Wales in setting up a review to look at the impact of cuts on museums, particularly local museums, which face a perfect storm because of cuts in local authorities? In Wales, they are looking at how solutions can be found through raising additional money, but also they are aware of the substantial contribution museums make to the economic and social well-being of the community. Will the Minister not follow that example?

[Lord Gardiner of Kimble]

The noble Baroness spoke about finding other income streams; that is precisely what opening the galleries for longer and enabling more people to come is all about. Under this Government, £2 billion of taxpayers’ money has been spent on the 15 sponsored museums and the British Library, and the Arts Council has funded, in grant in aid, £200 million towards the best of England’s regional museums. These are good stories in a very difficult economic climate. We have the highest growth rate in the G7. This is to be applauded and it needed to be done.

[Earl Attlee (Con)]

Will the Minister join me in paying tribute to the directors and trustees of publicly funded museums for the very difficult work that they have to do, bearing in mind the current financial situation?

[Lord Gardiner of Kimble]

My Lords, I congratulate both those who run the museums and those who work in the museums. They are a key part of the partnership that makes those great institutions so vibrant, and we need to support them in trying to do the best for the institutions and their future.

[Baroness Thornton (Lab)]

My Lords, surely the point here is that organisations, regardless of whether they are public or private, need to pay the living wage and not use exploitative zero-hours contracts for their employees. Can the Minister assure the House that that is not the case with the proposals for the National Gallery? What else are the Government doing to outlaw exploitative zero-hours contracts and ensure that firms pay the living wage?

[Lord Gardiner of Kimble]

I can tell the noble Baroness that, under the National Gallery’s proposals, it was to pay above the London living wage and that there was no zero-hours contract arrangement.

[Baroness Quin (Lab)]

My Lords, given that the staff at the National Gallery voted nine to one against the proposed changes on a 62% turnout, and given the concerns that have been raised about not paying the living wage in that institution, should not the staff’s grievances be listened to with the utmost seriousness?

[Lord Gardiner of Kimble]

My Lords, I think that all members of staff should have their concerns and grievances considered. I know that the National Gallery has been seeking to engage with ACAS and the union to ensure that sense prevails. Only 22% of all staff at the gallery voted in the strike ballot. Out of the 603 members of staff, 204 are members of the union.

Business of the House

Thursday 5th February 2015 Lords Chamber

Motion on Standing Orders

11:42

Moved by

[Baroness Stowell of Beeston]

That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Wednesday 11 February to allow the Stamp Duty Land Tax Bill to be taken through its remaining stages that day.

Motion agreed.

Pension Schemes Bill

Thursday 5th February 2015 Lords Chamber

Third Reading

11:42

[Lord Newby (LD)]

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Pension Schemes Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Schedule 3: Pensions guidance

Amendment 1

Moved by

[Baroness Hollis of Heigham]

1: Schedule 3, page 68, line 28, at end insert—
“The Treasury shall ensure that appropriate information is provided and disseminated so that people can make informed choices as to the effect of pensions freedoms and flexibilities on income-related benefits and social care costs.”

[Baroness Hollis of Heigham (Lab)]

My Lords, from April the new pension freedoms at 55 may bring joy to many but, in my view, they are destroying the integrity of DWP benefit rules—and no one seems much to care. I find that a bit shocking. Many thousands of rather vulnerable people will not know where they stand or what they do; neither will their CAB or Pensions Advisory Service advisers. Yet time is running out, hence this amendment asking for guidance.

Clearly, and currently, DWP has sensible rules for those of working age needing means-tested benefits. Income, say from a mini-job, counts against your benefits, as do savings, say in a building society or in ISAs, which are above £6,000. They taper out benefit until at £16,000 of savings your entitlement to any means-tested benefit is abolished. DWP rules also stop you claiming benefit if you have deliberately got rid of your savings, perhaps by gifting them to your son. Any capital that is truly inaccessible, however, and which you cannot give away or spend—for example, your home and, until recently, your pension pot—is rightly ignored.

11:46

These sensible rules have been blown apart by the new pension freedoms, which mean that at 55 you will be able to access your pension pot, just like a bank account or an ISA. What then? Given the savings cut-off point of £16,000, having £25,000 in ISAs would stop you getting income-related benefits, so should £25,000 in an equally accessible pension pot also stop you? What is the difference any more between a pension and an ISA, so that pensions are protected from affecting your income-related benefits and ISAs count against them?

Perhaps I may spell out just three issues. The first is income. Let us say that at 56, you have a modest wage of £20,000. You rent privately and get housing benefit as you have minimal savings. You have a small pension pot of £25,000 and, after April, you take £15,000 of that pension pot to pay off debt or buy a new car. Up to 25% of that pot, some £6,000, is obviously tax-free under pension rules but will count as income against your means-tested benefits under DWP rules. Above that £6,000, you will pay income tax as well as lose benefit on the rest of the £15,000. It is essential that anyone on means-tested benefits at 56 knows what the hit will be for accessing their pension pot. It will cost them—and most, I suspect, would not even begin to know how much. They will need a plain English leaflet from CAB offices, welfare rights offices, the local library or charities, for example.

So far, so sort-of simple—but then we come to a more difficult issue, which is that of capital. What happens if, instead of accessing your pension pot to count as income, it simply sits there as capital, fully accessible when you need it but not yet taken, just like an untouched ISA? Up until now, inaccessible pension pots have been ignored—quite sensibly, they do not count against DWP savings rules—whereas other accessible income and savings such as ISAs do. That is sensible as it stops people having, say, £100,000 in building society accounts or ISAs and still getting means-tested benefits, paid for by the taxpayer. That is right, but now the rules of DWP on capital and the new provisions of the Treasury on pensions collide. It is a real mess.

Pensions and ISAs will from April, at age 55, become interchangeable. Pensions need no longer be for retirement; they have, like ISAs, become a savings pot. Both are similarly tax privileged, both are equally accessible and both—or neither—may be fully spent before retirement. There is no difference any more. Yet apparently ISAs will still count against means-tested benefits, while pension pots, though identical to ISAs, will not. Is this fair? No, because if you can access your savings in whatever form they take, you should be expected to do so rather than add to the taxpayer’s benefit bill. If you treat them differently, though, as the Government have arbitrarily and illogically decided, people can game the system.

Let us say that you are earning £25,000 a year, with £25,000 in ISAs and £25,000 in your pension pot. You have injured your back and need to stop work soon, and would want means-tested benefits—but your £25,000 of ISAs debar you. What do you do? It is a no-brainer: you cycle your ISAs into your pension pot and shelter them. When next year you retire at 56, you will get full means-tested benefits and potentially the same access to your savings that you had when half of them were ISAs. Great for that individual, but for the rest of us it means bigger benefit bills to be footed by the taxpayer—and no doubt youngsters of 20 will be blamed for the increase in the bills.

Worse, spending your ISAs on, say, helping your son with his university fees could count as deliberately depriving yourself of capital. Therefore, to check such cheating, you are treated as though you still possess that money, as you cannot give it away and still get means-tested benefits. So will sheltering your ISAs or indeed any savings in your fully accessible pension pot be regarded as deprivation of capital—in other words, cheating? How can the DWP track that? How can people understand all or any of this?

The third issue, and in many cases the most unfair and unpleasant, is social care. Social care at retirement, as noble Lords will know, is means-tested. At normal retirement age your pension pot, even if you have not touched it, is treated as though it was giving you a notional annuity income. This notional income is included when assessing what you pay for social care. Pension pots are not sheltered; okay, but if you are 55 and have built up a modest pension pot at work and now, alas, have broken your back and need social care, even though your pension pot is fully accessible, as if you were 65, your pension is not taken into account for social care means testing. Get injured at 55 and you pay little or nothing for your social care. Live on—as we hope—a few years longer, and your pension is taken into account and your social care bills soar. How is this fair? I reckon that it is age discrimination. How can we expect people to understand such perverse rules? I see judicial review ahead; this is a shambles.

We raised some of these issues three weeks ago in Committee. We pressed on Report and exchanged several emails, and finally we had a meeting two days ago with the Minister and staff which, although late in the day, we appreciated as it was helpful. However, problems and issues of clarity remain, and the rules are still fundamentally incoherent and inconsistent. In a few weeks’ time people, some of whom are on means-tested benefits but perhaps have a modest pension pot, are going to come into CABs, libraries or charities wanting to know how this affects them, and advisers will need and indeed want to help them do so.

Hence this completely anodyne amendment, whose mild language disguises, frankly, my very real anger at the mess we are in. There is no way that the new pension freedoms can be made consistent with DWP rules in ways that are fair, now that pensions and ISAs are interchangeable. The DWP is having to tear up its rules on capital because HMT has torn up its rules on pensions. So the DWP has simply decided to be arbitrary about it, and the rules become whatever it says they are, with no coherence, consistency or predictability. Policy is being made on the run. This is no way to run a business, let alone a bureaucracy that seeks to be transparent and clear. The DWP is having to pretend that pension rules have not changed, because it is too awkward to handle the consequences. The inconvenient truth is that nobody thought or, I fear, cared a toss about what would happen to DWP clients with a modest pension fund while those with major funds went about toasting themselves with champagne.

We are asking the Minister today for undertakings, and further meetings if necessary, to tease out the remaining issues and to discuss the content of a mass-produced, widely available leaflet for CAB and so on, which explains—it cannot, actually explain, but it could at least try to describe—these conflicting and unfair rules.

This is a mess, and I am deeply dismayed by it. This amendment may be the best we can do for the moment. I beg to move.

[Lord Lipsey (Lab)]

My Lords, I should first declare that I am the unremunerated president of the Society of Later Life Advisers, which provides independent advice to older people. I am sorry that I have not taken part in the proceedings on this Bill so far, knowing, as I have, that it is so safe in the eloquent hands of my noble friend Lady Hollis, but I want to intervene in this case to draw to the House’s attention one particular, very dramatic effect of what is happening.

Let us imagine two people, A and B. They both have £40,000 in their pension pot, and they both retire on the same day. One buys an annuity, the other takes the money as a lump sum. A few weeks later, by coincidence, they both have to go into a care home. As they go into the care home, they both say, “I don’t want to sell my home which I am leaving to go into this care home. I might get out one day. Please don’t make me sell”. To person A, the following applies: the council, under the Government’s deferred payment scheme, has to give them a loan to cover the cost of their care, which is repaid when they die, so they do not have to sell their home. However, person B, because they have £40,000 in their pocket, exceeds the £23,250 limit—the arbitrary limit which I have drawn attention to on a number of occasions—on non-housing assets that they are allowed to have to take advantage of the deferred payment scheme, so they instantly have to go off to sell their home.

The Government promised that nobody would have to sell their home to pay for care. That transposed gradually into a universal guarantee and was then narrowed down still further so that nearly half the people eligible for it were disqualified—but now we find arbitrariness added to arbitrariness because so much will depend on whether you chose to take a lump sum or an annuity. This is beyond rectifying now, alas, as the secondary legislation has gone through, but one thing we can do is to make sure that before somebody decides to take a lump sum, they know that they will in future not be eligible for the deferred payment scheme. That requires authoritative advice. Is that really too much to ask?

[Baroness O'Cathain (Con)]

My Lords, surely there must have been discussions since the Bill had its First Reading between those in the pension business and those who act as financial advisers to people. Frankly, most people do not understand anything about pensions, and I think we have to accept that. Maybe people here do, but most people do not. You go to a financial adviser, who explains. I say, “Oh, take away all that small print. I can’t be bothered to read it”. That is the first thing, and that is a sin that I have committed several times.

The second is that you do not understand the way it is written. The noble Baroness, Lady Hollis, made a point about plain English. I think that should be made on every single Bill that we pass in this House, because it is so convoluted and it is just hopeless. People deliberately make things complicated so that they can hide behind them, but that is not the Government’s fault; it is ours for not insisting that we have much easier ways of looking at these things and for not making people like me, instead of throwing it into the waste-paper basket, take some responsibility for my decision, which I have not made on the basis of proper information.

My other point is that there are always ongoing conversations whenever a Bill is produced and goes through its normal passage in this House. In between the various stages—Report et cetera—we have meetings. Ministers say, “We want to see you. We’ll call for you”, and we can ask for meetings. Is that breaking down? Do we have too much legislation, so that we do not have time to do it or are too involved in committees in the House? What is going wrong? Is it partly our fault? We are supposed to scrutinise these Bills and we are not doing it properly if these sorts of problems, which have been so graphically explained by the noble Baroness, are occurring. We have to do something about it, and the responsibility is ours.

[Baroness Turner of Camden (Lab)]

I will support very briefly what my noble friend Lady Hollis said in her introduction of this admirable amendment. We have discussed this during the progress of the Bill through this House, and have made the point on a number of sides that it is necessary that people should be fully informed of what they are doing. It is up to the Government to make sure that those arrangements are available for people to become properly informed of what they are doing. It has to be understood, of course, that people are making decisions about their future and what may happen if they make the wrong decision. It is very necessary that the appropriate choices are made by the people who are facing these alternatives. I therefore hope that this admirable amendment receives the full support of this House.

[Lord Bradley (Lab)]

My Lords, I will be brief, because the issues presented by this amendment have been brilliantly articulated by my noble friend Lady Hollis.

Throughout the passage of the Bill we have sought to ensure that consumers’ interests are fully protected, particularly in respect of the guidance that they will receive from the citizens advice bureau or TPAS. But the accuracy of the information for them is wholly dependent on the clarity of government policy. We are concerned that the treatment of pension funds in respect of income-related benefits and social care do not meet this test of clarity. Such clarity is particularly essential here, because the decisions that people make will have a dramatic impact on their future lives. I hope that the Minister in response will be able to give the House the assurances that we are seeking through this amendment so that there is no confusion in the public’s mind and no inconsistency across the country in the guidance that will be given on this incredibly important issue.

I thank the Minister for his letter dated 4 February, which lays out the Government’s position on how they will deal with some of these matters. But I—and, I am sure, my noble friends—remain concerned that, as they say, “the devil is in the detail”, and we have already heard this morning of cases where there has to be clarity and consistency of treatment of individuals in this respect. Clearly, we will continue to look closely at the regulations that follow and the guidance issued in association with them, to ensure that the public understand the implications of the decisions they take in respect of any entitlement to income-related benefits or social care costs.

[Lord Newby]

My Lords, I begin by thanking the noble Baroness for her amendment, which obviously addresses an extremely important issue.

This amendment seeks to place a separate and additional duty on the Treasury to provide appropriate information on the effect of pension freedoms and flexibilities on income-related benefits and social care costs. I agree that it is vital that people understand how benefits and social care entitlements interact with the new pensions flexibility and that consumers need to be aware of the impact of accessing their pension pot on their eligibility for income-related benefits and help with social care costs.

The Treasury is working to ensure that the content of the Pension Wise service includes information about entitlement and deprivation rules so that consumers are aware of these when choosing whether to access their pension savings. We are also working to ensure that people are aware of the need to plan for later life, including the risk of needing care and support and what that might mean for their choices. This will help people think about how they wish to live the rest of their lives. In response to the noble Lord, Lord Lipsey, the Care Act provides that no one is required to sell their home to pay for care. The difference in this case is that the lump sum is income in the year taken, and we agree that this will need to be covered in guidance, both on pension pots and on social care, which we will provide.

The DWP will issue clear guidance on the treatment of pension pots in income-related benefits in advance of April. This is to help people make informed decisions about accessing their pension pot. We plan to do this, as requested by the noble Baroness, by producing a leaflet which we will both print in hard copy and place online on GOV.UK. Other websites will be able to link to this information, and there will definitely be such a link from the GOV.UK Pension Wise website, which will direct those who are affected by this issue to the DWP information. Pension Wise will be a key way of equipping people with this information online on GOV.UK, on the phone through the Pensions Advisory Service, and face to face through citizens advice bureaux across the country. Alongside the new content being developed for Pension Wise, the new guidelines will also be reflected in the training programme for guidance specialists from the Pensions Advisory Service and Citizens Advice.

As the noble Baroness said, she met my noble friend Lord Bourne and me earlier this week to discuss the substantive policy issue—namely, the interaction of pension flexibilities with the benefits and social care means tests. The principal query that the noble Baroness raised is whether the distinction we make between ISAs and other savings vehicles, as opposed to pension pots, in benefits means testing remains fair after the introduction of the new flexibilities. ISAs are taken fully into account in income-related benefits, whereas we ignore untouched pension pots until someone reaches pension credit qualifying age. The noble Baroness argues that this is an arbitrary distinction now that the tax treatment of the two products is more aligned.

The Government, however, firmly believe that the difference is an important one. ISAs are for use at any time, but we specifically encourage people to save into pensions to provide for themselves in later life. We would not want to design our benefit system in such a way as to encourage people to spend their retirement savings when they are still below pension credit qualifying age. Aligning the treatment of ISAs with that of pension pots in the means test would be expensive for the taxpayer, as people with resources could secure more benefit. On the other hand, aligning the treatment of pension pots with that of ISAs would mean that claimants could lose benefits and so may deplete their pension savings before reaching their retirement. Neither outcome is desirable, and we therefore believe that the current position remains the right one.

This gives rise to a second question that concerns the noble Baroness, which is whether this situation gives individuals the opportunity to move their ISAs, which would be taken into account, into their pension pots, which would not be taken into account until pension credit qualifying age. The Government have considered the matter seriously and, in the light of our analysis, we do not feel that we need to act on this matter presently. The numbers of income-related benefits claimants with substantial ISAs is relatively modest and, should people move their savings to their pension pot, the additional upfront welfare costs to the Exchequer are partly offset by welfare savings in later life as those individuals would rely less on income-related benefits as a pensioner. On this issue, we plan to monitor behaviour after April when the new pension flexibilities are introduced, and respond proportionately if we need to.

I should add that people deliberately depriving themselves of money in order to secure or increase benefit entitlement may be subject to rules on deprivation of assets that already exist in both the benefit and social care systems.

[Baroness Hollis of Heigham]

Is the Minister saying—he may go on to say this in the next sentence—that if you cycle your ISAs into your pensions, that would be deprivation of capital?

[Lord Newby]

No, I do not think I am saying that. I will make sure that I am not and correct myself if I am wrong. All I am saying is that the deprivation of assets rules which currently apply will continue to apply in respect of money taken out of ISAs.

[Baroness Hollis of Heigham]

That was my question. Can the Minister explain to me why, if money is taken out of ISAs and goes into pensions, that is not deprivation of assets?

[Lord Newby]

It is not the point at which money goes from ISAs into pensions that is a deprivation of assets. Deprivation of assets may occur if and when money is taken out of one or both of those pots.

[Lord Rooker (Lab)]

I have listened with care to my noble friend, and although I have not participated in the debate, I understand the issue. Surely by moving an ISA into a pension pot, the individual then does not have access to buy, sell or add to the ISA. It is just not available; it is now hidden in the pension pot. Therefore, the individual deprives himself or herself of the choice they had when they had the ISA. It is fairly simple: is it or is it not something that could be penalised? People need to know this. If we are not careful, there will be chaos in this country later in the year as regards people with small pensions and small ISA pots.

[Lord Newby]

My Lords, I thought I had just said that if you move money from your ISA into your pension pot that does not qualify to be treated as a deprivation of assets. You are not taking that asset as income and you are not spending it; you are moving it from one pot to another.

[Baroness Hollis of Heigham]

So if you have more than £16,000 in a building society, which stops you getting means-tested benefits, and you take that money out of your building society account and put it into a pension pot, is that deprivation of assets?

[Lord Newby]

My Lords, that is an extremely interesting question to which I do not have the answer. However, it has absolutely nothing to do with the amendment before the House, which is to do with whether the Government will give adequate guidance on the issue. The amendment is not about the detailed substance of the rules which are being dealt with not least via a series of discussions with the noble Baroness, as she said. Those discussions will continue. I will happily write to her and other noble Lords about these detailed issues but I stress that the purpose of the guidance—the point of this amendment—is to ensure that the guidance correctly reflects policy. That is what we have committed to do. We have explained how we are going to do it. We have met the noble Baroness’s perfectly sensible idea that we produce a specific leaflet to do it, and we will do that by the beginning of April.

As I explained, we have already had a number of discussions with the noble Baroness and have agreed to meet her after today and before the start of the Recess to continue our discussion on these important matters. I know that she is still unhappy about what the Government are doing with regard to the substance and some of the details of this issue. As I say, we are committed to making sure that we have the maximum degree of clarity. We are committed to having further negotiations with the noble Baroness to tease out—

[The Archbishop of York]

My Lords, if the Minister is assuring us that there will be information online and people will be able to understand everything, why cannot this amendment be put on the statute book so that there is a duty on the Treasury to inform people about this issue? For me the provision is so simply worded that I do not understand why it cannot be on the statute book.

[Lord Newby]

My Lords, we are not suggesting that this goes on the statute book because this requirement already exists. The FCA rules on the guidance providers already require guidance to be given in respect of benefits. All we are doing now is fleshing out how we intend those existing rules—which are in the FCA rulebook, or the FCA document which has gone to the organisations providing guidance—will work in respect of benefits and social care.

12:15

[The Archbishop of York]

Could the Minister explain in a clear way that a simple mind like mine would understand whether you are depriving yourself of assets when you take money out of an ISA and put it in a pension fund? How can I be confident that the guidance, which will come from somewhere else, will be more erudite than what I am hearing at the moment? I for one want to say, in this week when we have seen great difficulties in social care provision and when most people are worried about their social care and their pensions, that it seems that this particular bit of legislation actually puts a duty on the Treasury to ensure that it is the one that informs people of this.

[Lord Newby]

My Lords, for the third time, if you move money from your ISA to your pension pot, that is not a deprivation of asset. The Treasury is in charge of the guidance process.

[Baroness Hollis of Heigham]

That is the trouble.

[Lord Newby]

The noble Baroness has an aversion to the Treasury—I cannot imagine why—but the Treasury has this power to provide the guidance under the Bill. The Treasury and the FCA have set out the details of what the guidance has to contain. It is already written into the FCA rulebook that it has to cover benefits. Therefore, the Government’s contention is that there is no need for a second amendment requiring this to be in the Bill when not only will it happen, but the rules saying that the guidance providers must do it are already in existence.

[Baroness Hollis of Heigham]

My Lords, I am grateful to all of those who have taken part. It was really helpful to try to tease out some of the very serious issues. They are serious. All of us are concerned about a rising benefit bill, particularly where there are cuts across other objectives such as the health service, education and whatever. We also want to support those services.

These proposals were imposed on the DWP. My sympathies are entirely with the DWP, which is trying to sort out the mess created by an open-handed gesture from the Chancellor of the Exchequer, which has not been thought through for its implications for means-tested benefits. That is the problem which is apparent today, from everything that we have heard. We still do not know half the answers. I am quite sure that the DWP and DWP Ministers are doing their honourable and decent best to try to make some sense out of a tangle and mess that has been dumped on them by HMT. I am not blaming any Minister personally, but that is what has happened. HMT’s pension freedoms absolutely tear up the rulebook, particularly on DWP capital, which is there to protect all of us in terms of benefit expenditure. It is only after yesterday evening that we are beginning to get some detailed information. We have been pressing for this for five weeks in this House, let alone down at the other end.

I am grateful to my noble friend Lord Lipsey, who teased out further problems with the interaction between social care and pensions. I look forward to the letter that he so rightly asked for being in the Library.

The noble Baroness, Lady O’Cathain, absolutely rightly emphasised the need for clarity. She is so right, but how can you have clarity when you have not fully sorted the policy problems behind what you are trying to explain to people? That is why we have come back with a very anodyne amendment, but behind it is the charge that the policy has not been fully sorted. I therefore hope that the actor writing that pamphlet will ensure that the policy is sorted.

I am not saying that the noble Lord, Lord Newby, gave the game away, as that sounds too frivolous, but he made the point that you cannot align ISAs with pensions, because that does not work, and you cannot align pensions with ISAs, because that does not work for people over the age of 50. So he is stuck and we are all stuck because, as far as I can tell, nobody at HM Treasury took on board the very real skills and experience of the people at the DWP who have to operate the service in practice. Talk about silo government—although we are all guilty of that; I am not saying that we are whiter than white when obviously we are not. However, here is something that will affect hundreds of thousands of people, and the two departments have not got their act together. The DWP is trying to make rules which are not rules but simply arbitrary decisions, and I am confident that at least some of them will be tested by judicial review over the years.

This is a mess but I hope that this amendment, which I will of course withdraw given the undertakings that the Minister has given today, will at least send a signal, as the most reverend Primate said, and give us the chance to get the policy clear so that the leaflets can be clear. Frankly, in order for that to happen the DWP at the highest level has to talk to the Treasury at the highest level and come up with something which is decent, fair, transparent, consistent and simple, if it can. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Schedule 4: Rights to transfer benefits

Amendment 2

Moved by

[Lord Bourne of Aberystwyth]

2: Schedule 4, page 100, line 8, leave out from “period” to end of line 11 and insert “required by section 91(1A) or (6A).
(1A) A member of a pension scheme loses the right to take a cash equivalent in accordance with this Chapter if, after the member makes an application under section 91, the duty of the trustees or managers to do what is needed to carry out what the member requires is extinguished by section 95(2A).
(1B) Nothing in subsection (1) or (1A) prevents the member from later acquiring a new right to take a cash equivalent in relation to the same benefits.”

[Lord Bourne of Aberystwyth (Con)]

My Lords, I apologise that this amendment may not be quite as highly charged as the previous one. It corrects an oversight in relation to the amendments that we made to the transfer provisions on Report and simply inserts the provision relating to when a member’s transfer rights fall away into Northern Ireland legislation.

The amendment makes a consequential amendment to the existing transfer legislation, which sets out when a member’s rights to a transfer fall away. It puts beyond doubt that the right to a transfer value falls away after either three months or any extension period granted by the legislation. This amendment and the one applying to the legislation relating to Great Britain have been made in response to industry concerns that the current situation could place trustees in a position where the right to transfer somehow still subsisted, although the trustees could not action the transfer.

I also take this opportunity to clarify the purpose of Amendment 30, which I spoke to on Report. That amendment inserted a new limb into an existing regulation-making power in Section 101F(6A) of the Pension Schemes Act 1993. It created a power to disapply, in prescribed circumstances, the right of prescribed persons to transfer pension rights acquired as a consequence of divorce. In describing that amendment, I stated that it restored an existing power. I now understand that this is in fact a new power which expands upon the narrower existing power. I hope that noble Lords will accept this new amendment to align Northern Ireland legislation, along with my clarification of the operation of Amendment 30 made on Report.

As this is the final amendment to which I will speak, before I sit down I would like to take a moment to thank the Opposition for their constructive and positive engagement in this process—I do so sincerely; their engagement has been valuable. I also thank colleagues across the House who have dedicated their time and expertise to scrutinising and improving the Bill. It has been the House of Lords at its best. I think we can all say that your Lordships’ House has done a good job in scrutinising the Bill and that it goes back to another place a much better Bill than it was before.

A significant amount of work goes into preparing a Bill and supporting its passage through both Houses, to say the very least. This Bill contains a wide range of measures and has involved a number of different policy teams from the Department for Work and Pensions, Her Majesty’s Treasury and the Ministry of Justice. They have worked unstintingly and with dedication. I am grateful to them and to the excellent draftsmen in the Office of the Parliamentary Counsel, who have worked very hard on this Bill.

I am also indebted to my noble friend Lord Newby for his considerable work and assistance on the Bill, to my right honourable friend Steve Webb, the Minister for Pensions, for his advice and help, and to my noble friend Lord Freud for his support. With that, I beg to move.

[Lord Bradley]

My Lords, I again thank the Minister for clarification of the amendments, and these are obviously acceptable. I also thank him for the clarifications he has given throughout the Bill’s passage, as well as for the courtesy that he and his fellow Ministers have shown to this House and for the help that he has given to the Opposition as we have debated the issues. I also thank the civil servants for the support that they have given to the Opposition in answering the questions that we have raised.

As we come to a close in the Bill’s passage through this House it is worth reminding ourselves that on Second Reading we considered two Bills together—this one and the then Taxation of Pensions Bill—as it had been recognised that the two were inextricably linked. That has clearly been shown to be the case during our deliberations generally and in our consideration of this amendment. The speed between the announcement of pension freedoms and flexibilities in the Budget last year and implementation of the policy in April of this year has led to a huge number of amendments and policy clarifications, with many significant regulations still to come. Let us remember that implementation is barely nine weeks away.

Although broadly supporting the policy, we have tried during these debates to ensure that the interests of the public have been paramount and properly protected. We have sought and received assurances from the Government that the policy is clear and fully thought through, including in our debate today on the treatment of pension funds for income-related benefits and care costs assessment. However, in the light of today’s debate, I remain deeply concerned. We have been assured that not only will the crucial guidance guarantee service be fully in place by April but that it will have capacity and its staff will have the expertise and be fully trained to deliver a quality service for the 320,000 people who may seek guidance in the first instance.

Obviously, we are pleased that the Government accepted our argument for a second line of defence to give the public greater protection. We will continue to monitor closely the implementation of the powers vested in these two pieces of legislation. However, we remain concerned on many issues. These issues will be closely scrutinised both inside and outside this House to ensure that the public’s interests are properly and fully thought through and protected.

Finally, I thank all noble Lords who have participated in our debates. I would particularly mention the support I have been given by my noble friends Lady Drake, Lady Hollis, Lord McKenzie and, of course, Lord McAvoy and Lady Sherlock.

[Lord Bourne of Aberystwyth]

My Lords, I thank the noble Lord for that. Clearly, we recognise the support that we have had generally for these important pension freedoms. The noble Lord, Lord Hutton, who is not in his place, certainly spoke of this as a revolutionary measure—which it is in many ways. I accept that guidance is at the heart of it. We need to ensure that these freedoms are exercised with proper guidance and proper advice, which is where this House has been quite properly engaged, and recognise that there is still ongoing work to do, to which we will return.

Amendment 2 agreed.

Bill passed and returned to the Commons with amendments.

Deregulation Bill

Thursday 5th February 2015 Lords Chamber

Report (2nd Day)

12:29

Clause 64: TV licensing: alternatives to criminal sanctions

Amendment 27

Moved by

[Baroness Howe of Idlicote]

27: Clause 64, page 57, line 43, at end insert—
“(14) Any regulations which are made under subsection (1) shall not take effect before 1 April 2017.”

[Baroness Howe of Idlicote (CB)]

My Lords, our amendment to Clause 64 seeks reassurance that any potential changes to the licence fee enforcement system will not take effect until at least 1 April 2017. This necessary amendment ensures that any impact on the BBC’s income from the licence fee is thoroughly considered before any action is taken.

The reason why 1 April 2017 is vitally important is because this is when the current licence fee settlement expires. Under the current settlement, the BBC has been able to plan its programme-making years in advance and to budget accordingly. Thus any changes to the licence fee enforcement regime coming into effect before 1 April 2017 would have a significant impact on the service and content that the BBC provides. The BBC needs sufficient time to respond to a change in income or else drastic action, such as service closures or the loss of programmes, could be a serious possibility.

Our amendment ensures financial stability for the BBC so that it can continue long-term commitments. From 2014 until 2018, the BBC is marking the First World War centenary with its biggest and most ambitious pan-BBC season ever undertaken. Unique in scale and breadth, and across BBC TV, radio, online and international, national and local services, this commitment is possible only because of licence fee funding and an assurance of income. “Frozen Planet”, “Africa” and “Planet Earth” are all examples of the brilliant factual programmes produced by the BBC’s natural history unit, all of which took four years to make. Quality dramas such as “Wolf Hall” and the upcoming “War and Peace”, also typically take around four years to produce. There is also the current “Taking Liberties—The Democracy Season”—years in the making—marking the anniversaries of the first Parliament and Magna Carta. It is seasons and programmes such as these which highlight graphically why the timing of any potential change is crucial.

The Government made a commitment to the BBC when the current licence fee settlement was signed in 2010,

“to provide a full financial settlement to the end of the year 2016/17, with no new financial requirements or fresh obligations of any kind being placed on the BBC and/or licence fee revenues in this period”.

Our amendment to Clause 64 safeguards this undertaking. As I have already said, the BBC has carried out forward planning under this commitment. Clause 64 will enable the government of the day to act upon the conclusion of the licence fee enforcement review currently being conducted by David Perry QC and due to report in June 2015. The BBC, I know, looks forward to engaging with the review. Its overriding concern will be to ensure a licence fee enforcement system that is both proportionate and successful in maintaining the current low levels of evasion and collection costs. Currently, the licence fee evasion rate is low, at around 5.5%. If licence fee enforcement were purely a civil matter and the evasion rate were to increase to that of utility bills, which is just under 10%, that would cost the BBC around £20 million per annum.

The conclusions of the review by David Perry QC of licence fee enforcement should be considered in the round as part of the upcoming charter review. This is a common-sense approach which would consider the interests of all those who would be affected and of course would include licence fee payers. Our amendment, which I should have said at the beginning has strong cross-party support, provides certainty for the BBC’s budgets and planning until the next funding settlement begins in April 2017.

The BBC is a vitally important, well-loved national institution and, as often referred to in this House and the other place, is the envy of countries around the world for its trusted and independent news output and the quality drama and children’s programming it produces. Why risk losing that or damaging our much-loved programmes and services? I hope that noble Lords will agree. I beg to move.

[Baroness Corston (Lab)]

My Lords, I rise with reluctance to oppose the amendment moved by the noble Baroness, Lady Howe of Idlicote. I yield to no one in my support of the British Broadcasting Corporation. We are extraordinarily fortunate to have such an institution in this country. One has only to go to the United States of America to see television where there are hundreds of channels but nothing to watch to know how lucky we are to have the BBC. However, I take issue with the criminalisation of a failure to pay the fee.

Whenever I meet women in prison who are there because they did not pay the fine, I get a message from TV Licensing, which is based in Bristol where my old constituency was, saying, “Oh well, not paying the television licence fee is not a crime”. Of course it is not. What happens is that these people, usually poor women, are taken to court where they plead guilty. Some have said to me, “I left the television on because the kids said that the other children at school were talking about programmes they did not know about”, but they could not afford the £145.50 a year it costs to pay for the licence. If it was a civil penalty, of course there would be a fine, and other things like distraint can be used against those who do not pay a fine arising from a civil penalty.

I know that 50 people a year are imprisoned because they do not pay the television licence fee. They are not imprisoned if they do not pay their council tax, but local authorities seem to survive. I once met a woman who had been imprisoned for three months for failing to pay the £145.50 television licence fee and a £200 fine. If she could not afford the licence fee, surely she was not going to be able to afford a £200 fine as well. During those three months in prison she lost her tenancy and was unable to look after her children, who were taken into care. When she came out of prison, she was told that she could not have local authority accommodation for a family because she did not have her children with her, and when she went to social services she was told that she could not have her children back because she did not have family accommodation. That is a Catch-22.

[Lord Berkeley of Knighton (CB)]

I am grateful to the noble Baroness for giving way. I have just one simple question. I do not think that this amendment is about decriminalisation, it is simply about timing and budgets. The Government have often said that business and arts institutions need to know what lies ahead in terms of budgeting. It may well be that decriminalisation should happen, but as I understand it, that is not what this amendment is about.

[Baroness Corston]

The amendment is about the fact that the status quo remains until the renewal of the charter in 2017. I am merely flagging up the point that we should not allow continuing criminalisation in respect of this penalty, because of the malign effect it has on, admittedly, a small number of people. As the noble Baroness, Lady Howe of Idlicote, said, the BBC itself confirmed in an article in the Guardian in September last year:

“Licence fee evasion is low”.

It is not low because people think they might go to prison, it is low because people believe in the BBC. I simply do not think that the signal that we are sending, that the status quo is all right, is acceptable.

[Lord Lipsey (Lab)]

My Lords, I support the amendment, despite the fact that I have considerable sympathy with the argument put by my noble friend Lady Corston. The status quo has persisted for a good long time. It will inevitably be re-examined on charter renewal—which I will come to in a minute—and it therefore seems to me that we can take a decision on whether decriminalising makes sense when we see whether it is relevant or not to that environment.

I sat on the Davies inquiry into the BBC licence fee in 1999 and, at the end of a year of study, probably knew as much about the licence fee as any man living. Unfortunately, like the man who once understood the Schleswig-Holstein question, I have long since forgotten all of it, save that the licence fee is a perfect way of funding the BBC but unfortunately is a poll tax that bears heavily on poor people. That core dilemma, if I can call it that, is something that we shall have to face up to when we come to charter renewal and to discuss BBC finance at the end of the current period.

At least four options are likely to be available: leave the licence fee as it is; what I guess the BBC will come down for, which is a slightly modernised licence fee, with people paying it for computers as well as televisions, which I am told are the same thing these days; a much greater modification to the licence fee; or some new form of finance. Those will be the broad options available when we come to charter renewal. This will be a very interesting argument.

I will just slip in something that I think would be very helpful at this stage. As part of the charter renewal process, it would be a very good move by the Government to set up an independent inquiry, such as the one I sat on with the noble Lord, Lord MacGregor, into the licence fee. In particular, it should produce a menu with prices to tell the public that if you want to pay this much licence fee, you can have these services, or if you want to pay that much licence fee, you can have those services and so on. At the moment, we are very much in the dark as to what that menu would be and what the choices would be, and an independent inquiry would greatly illuminate public debate.

To come to the kernel of this point, it does seem to me to be arse about tip—if I am allowed to use such an expression in this House—to take powers to change the basis on which the licence fee is collected long before deciding whether you want a licence fee at all, let alone what kind of licence fee you want. An inquiry into this is sitting, which will report. Then is the time for Parliament to take a view of its findings, together with the whole scenario for the funding of the BBC. Arse about tip is the only phrase I can think of for doing it right now.

[Viscount Colville of Culross (CB)]

My Lords, I am a producer at the BBC and I support this amendment. I want to emphasise and support what the noble Lord, Lord Lipsey, just said. We are not being asked today to decide whether the enforcement regime for the failure to pay the licence fee should be decriminalised or not—that is the subject of a review by David Perry, which seems to be a very wide-ranging and fair review.

However, if the review decides in June this year to go ahead with decriminalisation, and the Government implement that decision immediately, it will blow a huge hole in the BBC’s budget—the figure is actually £200 million rather than the £20 million suggested by my noble friend Lady Howe. The BBC has already made cuts of 26% over the present charter renewal period, which has resulted in great efficiencies. Thousands of jobs have gone and there has been a reduction in programme hours of current affairs, history, science and arts. A future £200 million cut, I fear, could put the existence of whole channels at risk. We have seen BBC3, the digital youth channel, go online. Between them, the local radio network and the children’s channels CBBC and CBeebies cost £200 million.

In Committee, the Minister said:

“It is right that the Government of the day must be free to consider the report when it completes in June 2015 and be able to act without unnecessary limitations at that point”.—[Official Report, 11/11/14; col. GC 42.]

I ask the Minister why the Government would want to blow a hole in the BBC’s finances at a time when the results of the review can be considered within a year or so as part of the charter renewal. I urge noble Lords to support the amendment and stop a very sudden and damaging reduction in the BBC’s revenue.

12:45

[Lord Watson of Invergowrie (Lab)]

My Lords, I support the amendment. I spoke on this matter in Committee, when the noble Viscount, Lord Colville, made the points he has just made about the £200 million shortfall that could well result. I have not seen that figure challenged in the months since. It is something that we have to take very seriously.

I do not want to reiterate the points made very eloquently by the noble Baroness, Lady Howe, and my noble friend Lord Lipsey, but I want to refer to the letter that the noble Baroness mentioned. I have a copy here. It is dated 21 October 2010 and is from the then Secretary of State, Jeremy Hunt, to Sir Michael Lyons, then chairman of the BBC Trust. It includes the important quote:

“The Government undertakes to provide a full financial settlement to the end of the year 2016/17, with no new financial requirements or fresh obligations of any kind being placed on the BBC and/or licence fee revenues in this period except by mutual agreement”.

We know that the BBC has not agreed to any such reduction, so that is one point. The other point is that in another part of the letter, the Secretary of State says:

“I believe the agreement we have reached provides certainty and security for the BBC over the settlement period”.

I believe that the Government should be obliged because of that letter in the name of the Secretary of State to uphold what was contained in it. Frankly, unless the amendment is accepted, there is a grave risk—it is not certain, I accept—that that will be the effect.

Whether or not the licence fee even has a future—personally, I very much hope it has—we do not know, but we do know that there are more than two years of the current licence fee period to run. The sort of shortfall that the noble Viscount, Lord Colville, mentioned is important, as is the 13% reduction in the licence fee because of it being frozen since 2010. The effect of that has to be taken into consideration. For those reasons, I believe that the Government are obliged to accept the amendment because only by doing that can they ensure that they uphold the commitment given by Jeremy Hunt in 2010.

[Lord Grade of Yarmouth (Con)]

My Lords, first, I declare an interest as a former employee of the BBC and a former chairman of the BBC Board of Governors, and a current pensioner. Just to set that in context, my monthly sum does not cover my congestion charge for coming to this House.

I support the amendment moved by the noble Baroness, Lady Howe. The fiscal arguments have been well rehearsed. It seems very unfair to put the BBC’s fiscal planning at risk at a time when we are not that far away from the full-blown charter review and a total review of the means of funding the BBC. I will not rehearse those arguments again.

I state from the outset to the noble Baroness, Lady Corston, that I speak from the point of view that I would love to see non-payment of the licence fee decriminalised, but there are risks in doing that. There are risks that the enemies of the BBC will see it as an opportunity to remove the compulsory element of the licence fee and move the BBC to a subscription model, which would completely undermine the whole concept of public service broadcasting. I think there are dark forces at work, as you can tell from the overegging of the arguments that they have used. We have heard from those pushing for decriminalisation that the courts are “clogged up” and “overrun” with these cases. Nothing could be further from the truth. This was well rehearsed in Committee.

There is a sense in which this is a solution in search of a problem. There is not really a problem, but if it could be decriminalised without losing the compulsory element, that would be fine. But, of course, with the compulsory element, there would have to be some sanction. What is the sanction? We need to look at that, to understand that and to reflect on it in the context of charter review, not in a hurried order from government just months away from charter review.

I am deeply concerned about this measure. I am in favour of decriminalisation. A timetable is set for charter review. The present licence agreement runs out, as we have heard, in April 2017 at the end of that financial year. I see no reason to interfere with the BBC’s financial planning. I see every reason to support this amendment in order to take a measured look so that we do not interfere with the delicate financial arrangements for the BBC. Yes, those arrangements need looking at; yes, we will have plenty of time to do it after the election—I believe that there is one coming soon; I read it somewhere in one of the newspapers. Immediately after the election is settled, the starting gun will go on the charter review process. That is the time for all the stakeholders involved to have their say and to assess the impact of decriminalisation, what the sanctions will be and whether we will continue with a compulsory licence fee or some other form of funding. These are big, fundamental questions. There is a direct relationship between the source of funding and the kind of programmes that you get on your television and radio sets.

I ask the Government to think carefully before rejecting this amendment. Meanwhile, I lend my support to those on all sides of the House who are supporting it.

[Lord Rooker (Lab)]

My Lords, I agree with what the noble Lord, Lord Grade, has just said and want to deal briefly with a procedural point. I had the privilege of chairing the Joint Committee which gave pre-legislative scrutiny to the Bill between July and December 2013—in fact, I am so fed up with it that I am bored stiff. However, this measure was not in the Bill. Therefore, I would argue from Parliament’s point of view that it did not have the scrutiny that such an important issue would justify, being put in in the Commons, being done in Grand Committee in this House and then being dealt with now.

It is almost a mirror image of the argument that we have just had on the counterterrorism Bill, where an attempt was made to make a change when it was known that inquiries are going on with a deadline next year for that matter to be properly dealt with, and the noble Lord, Lord King, therefore withdrew his amendment. This is exactly the same. As we have just heard, the licence fee is fixed—in writing, as it were—from 2010 to 2017. I do not want to see people in prison for debts—it is a complete waste—but the risk to the BBC of what might happen if this amendment is not carried is so substantial because of the forces charged up against the BBC in other guises. I declare an interest: I do not have Sky because I discovered that Rupert Murdoch is still alive. So I do not have these sorts of conflicts, but the fact is that those forces are lined up. There should be a proper duly considered argument in Parliament, maybe with differentials, after the review and in the context of us all knowing that a big discussion is going on, rather than its being dealt with in the Bill, which does not give this issue the scrutiny that it justifies because of the way that the Bill has gone through Parliament. I will support the amendment if it is pushed to a vote.

[Lord Clement-Jones (LD)]

My Lords, I agree with the noble Lord, Lord Rooker. As only the fourth spear-carrier on this amendment, I want to make just a few, very brief points.

We are, I hope, widely agreeing that this debate is purely about timing. As we have heard, there are supporters of the amendment who may go different ways. I happen to agree with the noble Lord, Lord Rooker, that this measure is in a sense a Trojan Horse designed to damage the BBC, but I suspect that there are many others who will disagree with me, including the noble Baroness, Lady Corston.

As we have heard from around the House, it is vital that licence fee penalties are considered in the round as an integral part of the review of the BBC’s charter and funding. The BBC has an agreed settlement until March 2017 and based its long-term planning around that. Unforeseen reductions in income will impact services and content to the detriment of licence fee payers—that is, if a different arrangement is made beforehand which has an impact on licence fee collection.

As we heard from the noble Lord, Lord Watson, there is another very important reason, quite apart from that budgetary one. It is about the undertaking given by government back in 2010. The noble Lord quoted from the letter.

The noble Baroness, Lady Howe, has retabled her amendment and of course I strongly support it. We were not given a very decent response by the Government in Committee. My noble friend Lord Gardiner stated:

“Surely it does not make sense to apply any constraints that could hinder moving to a new enforcement regime; nor would any such constraint represent the best approach for licence fee payers, or the courts system”.—[Official Report, 11/11/14; col. GC 42.]

I believe entirely the opposite: this amendment, if adopted, would represent the best approach for licence fee payers. This is not an artificial limitation on timing. As my noble friend suggested, it is about keeping to the letter and spirit of the 2010 licence fee settlement to avoid unforeseen reductions in income adversely impacting BBC services and content, and to make sure that any changes to the enforcement regime are part and parcel of the charter review.

[Lord Fowler (Con)]

My Lords, I strongly agree with what my noble friend Lord Grade said. I am entirely sympathetic to the idea of decriminalising the non-payment of the licence fee. I obviously understand the arguments on that. Indeed, I think I have put one or two of those arguments myself. However, as the noble Baroness, Lady Howe, said, we are at the start of the royal charter debate. The whole point of that debate, and of the royal charter, is that there should be some certainty as far as the BBC is concerned. That is the whole case that has always been put by Ministers in the royal charter argument.

To give an example, some of us—I might now say many of us—think that the BBC Trust is one of the worst ideas ever put forward by any Government. There are very few supporters of the BBC Trust. There were a few at the time but even then they were pretty limited and now there are practically none. However, what is the Government’s response to the question, “Can we change the BBC Trust?”? It is, “Not a bit of it. You must wait until the charter review. Then we will look at it and see what can be done as far as the BBC Trust is concerned”.

So I am a little puzzled why this very profound change being advocated by the other place—the decriminalisation of the failure to pay the licence fee—should go ahead in advance of the debate. We would go ahead although we knew nothing about the future of the BBC, the licence fee or the impact that it would have upon the finances of the BBC. That is all basic information that Parliament is entitled to have before making a change of this kind.

Yet we know that some of the most enthusiastic supporters of this change to the Bill are opposed to the licence fee in any event. This is just a mini sideshow as far as they are concerned. They oppose the BBC as a public broadcaster and advocate a subscription system; we know that. These are not penal reformers coming forward in the main but people having a go at the BBC. We know that: they want to change it. We should be realistic about this. For all those reasons, I do not see why this change and, frankly, those kinds of people, should be given precedence. We have said that as far as changes are concerned there is a royal charter process and royal charter period. We should stick to that. I support the noble Baroness’s amendment.

[Lord Cashman (Lab)]

My Lords, I did not intend to speak in this debate but, having listened to those who have, I am inspired to do so. I absolutely agree with the noble Lord, Lord Fowler, in his assessment. Like the noble Lord, Lord Grade, I have to declare an interest as a former employee of the BBC but, unlike him, I do not receive a pension—not even to cover my congestion charge. However, I see the clause as an attempt to restrain the BBC. It is a seatbelt wrapped over the BBC. It will stop it being able to do any long-term planning. That great public broadcaster will be inhibited from entering contracts of employment with its own staff, let alone the staff it needs to bring in if its long-term planning is to produce the very programmes that we demand and maintain the excellence of its news coverage—although I do not always agree with it.

I urge your Lordships to support the amendment of the noble Baroness, Lady Howe. It is sensible; it gives certainty. Any decisions about the future of the BBC should take place after long and considered discussion.

12:59

[Baroness Benjamin (LD)]

My Lords, I, too, support the amendment of the noble Baroness, Lady Howe. I declare an interest as a presenter of some of the BBC’s iconic children’s programmes and an independent television producer. I agree with what many noble Lords have said in support of the amendment.

However, I want to talk about the potential impact on the BBC’s children’s programming if the noble Baroness’s amendment is not accepted. We have already heard that if licence fee evasion were to increase to —let us say—10%, it could result in a reduction in the BBC’s revenue of about £200 million per annum. That could mean that children’s original content provision will suffer. The UK has a highly competitive children’s media market, with probably the highest number of dedicated television channels anywhere in the world. However, with the exception of CBBC and CBeebies, most of those channels show little or no UK original content. Their schedules largely consist of material bought in from abroad.

I understand that the BBC’s executive has taken the decision to protect the children’s department budget, but that has meant that the reduction in its budget is proportionately much less than the reductions agreed for other BBC services. The children’s department commissioning budget will reduce from £150 million in 2011-12 to £101 million in 2016-17. So already a planned impact on the budget of children's programmes has been put in place. I believe in the BBC’s sincere and long-term commitment to children’s programming. However, I worry that the BBC has agreed a licence fee settlement until 2017 on which it has based its long-term budget planning. Unforeseen reductions in income will impact services and content, and that will include the high-quality provision freely available for our children.

Therefore, I support the amendment, which is intended to ensure that any impacts on the BBC’s funding resulting from the Perry review are not introduced until 1 April 2017, the first day of the next licence fee settlement. Surely we can wait until then.

[Lord Inglewood (Con)]

I rise to join the chorus in support of the noble Baroness, Lady Howe. This is part of a much wider question, which, as several speakers have said, will be determined over the next few weeks, months and years. It should remain an integral part of that process and not be sliced off like a piece of salami. The only substantive objection against the amendment of the noble Baroness, Lady Howe, in the debate this afternoon has come from the noble Baroness, Lady Corston. I have every sympathy for the predicament that she describes, although I have no knowledge of the facts to which she referred. It seems to me that what she was describing is not a consequence of criminalisation but a consequence of what happened in the courts and the actions of the relevant social services. It is important to decouple the two. I think it would be very foolish not to support the noble Baroness, Lady Howe.

[Baroness Deech (CB)]

My Lords, I declare an interest as a former governor of the BBC. I recall charter renewal as a long, drawn-out process involving all sorts of different elements, and it would be wrong to pick this one out for fundamental change before the entire charter is reviewed. The other issue is that the licence fee is clearly due for the most fundamental reanalysis because both those who can afford it and those who cannot are very likely to be looking at BBC output on their iPads or computers. That is something that the licence fee arrangements have yet to grapple with. It is an enormous question that deserves careful attention—but in the holistic review of the entire charter. Therefore, I, too, support this very sensible amendment.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank all speakers for contributing to this debate and make special mention of the noble Baroness, Lady Howe, for all her campaigns, but particularly on this issue, which she has pursued with considerable vigour over the past few months. I also thank the noble BBC pensioner, the noble Lord, Lord Grade, for his support. It might be of interest to the House that he has had to change long-standing family arrangements to be here today, and we are grateful to him for that. The fourth spear carrier, the noble Lord, Lord Clement-Jones, has joined the charge and made a valuable contribution.

We have heard little vigorous debate about this issue because just about everybody is in favour, with the exception of the impassioned speech from my noble friend Lady Corston. Like other noble Lords, I share her concerns and regret that we did not tackle this issue earlier, because it is clearly causing considerable dismay.

When issues of public policy need to be resolved, there is no better place to do it than in your Lordships’ House, and this debate has lived up to its highest reputation. I should like to make three points.

First, this is an important matter. The BBC is the gold standard of our broadcasting system, which is one of the best in the world. We should never forget that. We take for granted the information, education and culture that the BBC produces hour after hour, day after day, and never really question how it has adapted to and survived so many changes over the decades, and how the system has evolved to make sure that that happens.

At a time when the very nature of the British state is under question, we should be very careful about tinkering with the long-established procedures under which it operates. I do not need to remind your Lordships’ House that, in survey after survey, the BBC ranks as one of the most important signifiers of the United Kingdom in all four countries. Recent experience in Scotland demonstrates what happens if that becomes an issue of debate in a referendum.

Over time, we have established appropriate procedures for exercising effective but arm’s-length oversight of the BBC, involving, as we have heard, periodic reviews of the charter and licence fee and the regular fixing of budgets. Previous charter reviews have taken two or three years of consultation and debate—although I understand that the timescale for the 2010 licence fee settlement was perhaps weeks, if not days. However, that does not depart from my general point.

Most people in the UK feel that there would have to be a very pressing reason for the Government of the day to depart from long-established procedures for settling the governance and funding of the BBC. I think it would be very unwise for any political party to play around with the BBC for short-term political advantage.

Secondly, I turn to the review. We support the review being undertaken by David Perry QC. We do not know what the review will recommend on the important question of decriminalising penalties. As I said, my noble friend Lady Corston made some very good points that need to be considered. Having said that, this is complicated and, as has been said, is as much to do with the courts and social services as how the BBC operates. This issue has not passed the test of being a pressing reason to depart from normal governance procedures. We think that it is right to wait for the outcome of the review before any decisions are taken. We must consider whether there is any reason for intervening in advance of the licence fee settlement, and we do not think the case has been made. In all the reasons that have been given today, I have not heard one to suggest that that needs to be departed from.

Thirdly, we need to probe deeply into what the Government are saying. As the noble Baroness, Lady Howe, and my noble friend Lord Watson said, when the 2010 licence fee settlement was announced, the letters that went out at the time said that the settlement would,

“provide a full financial settlement to the end of the year 2016/17”—

the end of the year 2016-17—

“with no new financial requirements or fresh obligations of any kind being placed on the BBC and/or license fee revenues in this period”.

I call on the Government today to honour that commitment on certainty and security, which they can do in part by accepting this amendment.

As my noble friend Lord Rooker said, we need to recall that this clause was not in the Bill when it was first introduced to Parliament, and therefore not subject to pre-legislative scrutiny. It came late in the process, when the Government rather unexpectedly accepted a Back-Bench amendment from their own side in the other place. It has never been properly considered or scrutinised; the only discussion has been in Committee in this House. In that Committee, the Minister said:

“The findings of the review … should be considered in the context of the charter review”,

a statement to which we could not object. However, he went on to say:

“It will be for the Government of the day to take forward any further actions as they see fit”.

Further, he said that the argument in favour of that action was that if the review were to find,

“an issue with the current regime, it can be of benefit to no one to delay the review or to prevent its findings informing any required change to the existing system”.—[Official Report, 11/11/14; col. GC 31.]

This is specious, and sophistry. If the review was to recommend a change in process, there could, as we have heard, be a gap of some £200 million a year for the BBC in the last year of an already very punishing settlement. As the noble Lord, Lord Fowler, suggested, the Government are trying to have it both ways. They are trying to persuade us that they are indeed with the angels on the charter review, requiring it to be a full and proper process, but at the same time wishing to reserve their position in case there is an opportunity for them to cut funding to the BBC in 2016-17. This is wrong.

I put it to the Minister that by resisting this simple and principled amendment today, he will be fuelling a sense that this Government are doing what they can, when they can, to weaken the BBC. As the noble Lords, Lord Grade and Lord Fowler, warned, it opens the door for darker forces in favour of a different funding model for the BBC. It is not just a simple reform of the penal system. The reaction to this issue today, from right across your Lordships’ House, which I aver is echoed across the country, shows that it would be completely wrong for the Government to introduce a significant change in funding for the BBC before the start of the next licence fee period on 1 April 2017. If the noble Baroness, Lady Howe, wishes to test the opinion of the House, we will support her.

[Lord Mackay of Clashfern (Con)]

Before the noble Lord sits down, is there any reason why, in the mean time, an amendment to the arrangements for the problem raised by the noble Baroness, Lady Corston, could not take effect? This amendment appears to cut that out also, until the 2017 deadline. It strikes me that the problem, which the noble Baroness explained fully, has a very serious and unnecessary effect on families. I should like to see the possibility of that being dealt with. I do not agree that it would be all that difficult because the civil sanction would remain, so I find it difficult to agree that that should be cut out. I understand all the rest with reasonable clarity but I do not understand why this particular aspect should be cut out, as I understand it would be by this amendment.

[Lord Stevenson of Balmacara]

I am very flattered to be invited by the noble and learned Lord to reflect on what he has said, which makes a great deal of sense. I suggest that it is for the Government to say whether they could take forward the sensibility of my noble friend Lady Corston’s points because it seems that they might require additional funding, which could of course be provided by the Government, should they wish to do so. It is not my position to say that. However, I think the noble and learned Lord is saying that if one could, with equity, deal with my noble friend’s arrangements then we would have solved one problem. I put it to him that it would not solve the greater problem: that there should be a self-denying ordinance from any Government, and not a willingness to interfere with long-established procedures for making sure that the BBC has the funding it needs to do the job that it is required to do. I hope that he would accept that.

[Lord Gardiner of Kimble (Con)]

My Lords, this has been an extremely interesting debate and comes, as your Lordships’ debates so often do, with a great deal of experience. A television licence is required to watch all live and nearly-live broadcast television content on any device in the United Kingdom. People should not seek to evade this and there needs to be an effective enforcement regime for the failure to have a TV licence.

Clause 64 confers a new power on the Secretary of State, via secondary legislation, to change the sanctions that apply to the failure to have a TV licence. There was significant cross-party support for the TV licensing clauses in the early stages of the Bill in the other place. We believe that the firm commitments set out by the Government at that time should be honoured, particularly given the strong cross-party support. Whatever opinion your Lordships take, the points that the noble Baroness, Lady Corston, made often came to the heart of the dilemma in how we take this matter forward. I will be raising that in greater detail.

13:15

This is a matter that concerns a lot of people. The Government are very clear that the review of the licensing enforcement regime should therefore be a priority. The decision was taken to begin this review in advance of Royal Assent, while retaining the clause that commits the Government to carrying out the review to ensure that this important work is completed. I am particularly mindful of the concerns that a number of your Lordships have raised about this review: as a stalking horse for bigger issues such as broader funding and income and, probably worse still, about an undermining of the BBC. It is therefore important that I should at least seek to address your Lordships’ concerns head-on by stating unequivocally that the review of the licensing enforcement regime is no such thing; it is an independent review, set up to deliver recommendations and the best outcomes for the licence fee payer, the courts system and, I emphasise, the BBC itself.

The independent lead reviewer, David Perry QC, is working to tightly defined terms of reference which set out the scope of his work. The key aspects of the terms of reference in this context are that any recommendation must be made on the basis of delivering:

“Value for money for Licence Fee payers and tax payers in enforcement of the failure to have a TV Licence, including operational, revenue and investment costs of the enforcement regime to the BBC”.

That latter point is crucial here: any recommendation made by the Perry review will be made on the basis of revenue and cost to the BBC, and will include considerations such as the amount of licence fee that the BBC has to spend on enforcement. As such, any decision made by the Government of the day to adopt these recommendations will be grounded in these considerations, too.

The review is designed to ensure that there is a strong, evidence-based case for any potential changes to the TV licence enforcement regime. It will not consider any other changes, such as the cost of the licence fee. The review will begin imminently, with formal stakeholder engagement and public consultation. This will be an opportunity for the public, as well as the BBC and other parties, to feed into the review. The noble Baroness, Lady Howe, is absolutely right: my understanding is that the BBC is very welcoming of discussion and dialogue, as I would expect.

The findings of the review, which will be completed this June, will be laid before both Houses of Parliament and presented to the BBC Trust. A number of your Lordships, including the noble Baroness, Lady Howe, the noble Viscount, Lord Colville of Culross, and my noble friends Lord Grade and Lord Inglewood, raised the issue of the findings. To reaffirm what I said in Committee, I emphasise again that the findings will be considered in the context of the charter review. As your Lordships know, the BBC’s current charter expires on 31 December 2016. The Government will not begin the charter review until after the election, so there is no set process for how the review of the charter should be conducted, or when. It will be for the Government of the day to take forward any further actions they see fit.

Clause 64 provides for the sanctions to be changed, either by replacing the criminal regime with a civil regime, with civil monetary penalties payable to the BBC, or by creating a civil regime that sits alongside the criminal regime as an alternative to prosecution, establishing powers to impose a fixed or variable money penalty in relation to a TV licensing offence. Clearly, we must not prejudge Mr Perry in his making of recommendations, and it will be for the Government of the day to decide whether they wish to implement any changes to the current system. However, I reassure noble Lords that the clause does not mean that any changes can or would be instantly applied without the requisite scrutiny and debate. This House would have a further opportunity to scrutinise and approve any proposed changes when considering any regulations made under Clause 64. I hope that that point will help, even if only a little, my noble friend Lord Fowler and the noble Lord, Lord Rooker. Your Lordships’ House and the other place will need to consider all these matters.

Let me go to the heart of the issue about the dates. The noble Baroness’s proposed amendment would prevent any such changes from taking place before 1 April 2017. Of course I understand the concerns that have been presented by noble Lords seeking to protect the BBC. However, any conclusions and recommendations from the review will have been reached through careful consideration of the benefits to the licence fee payer and the BBC. It will therefore not be in their interests to put constraints on taking forward the implementation of the recommendations. As I have already set out, this is an independent, evidence-based review, with clearly defined terms of reference that include the need to consider value for money,

“including operational, revenue and investment costs of the enforcement regime to the BBC”.

However, I emphasise that this is not about cutting costs. The review will also be considering fairness for all licence fee payers and the effectiveness of deterring evasion. Crucially, value-for-money considerations must also encompass the level of licence fee money spent on TV licensing enforcement. If there is potentially an issue with the current regime—obviously we make no assumptions about this while the review is still under way—it can surely benefit no one, least of all the licence fee payers and the BBC, to prevent its findings from informing any required change to the existing system as soon as is reasonable. Our concern is that the amendment would potentially prevent the Government, post election, from being able to ensure that the right enforcement regime for the BBC, licence fee payers and the courts, and probably particularly for the sort of people that the noble Baroness, Lady Corston, has referred to, can be put in place following—I emphasise this—the appropriate parliamentary processes.

On the issue of timing, this will not be an immediate process. The issue cannot be seen in isolation. The report’s findings and future implementation on the part of the Government will require serious consideration in the broader context of the charter review. I think that this is what the noble Viscount, Lord Colville of Culross, was referring to; I think that his word was “immediate”. This is not going to mean immediate implementation in June 2015; that is only when the recommendations will be received. So not only is this in the broader context of the charter review but any recommendations made by Mr Perry will have considered the impact on the BBC and whether those options would represent an improvement to the current regime. That is clearly set out in the terms of reference.

Being too restrictive in aligning the timing of any changes with the charter review and the licence fee settlement would place unreasonable constraints on the Government of the day that we believe would not represent the best approach for the licence fee payer, and indeed the BBC. In short, should Mr Perry’s review identify potential changes to be made that could, for instance, deliver a better system for the BBC, how could it be to the benefit of the corporation, or indeed licence fee payers or the courts system, to impose any delay in implementing those options?

[Lord Rooker]

The answer to that is: because it would cause massive unpredictability at the time as no one would know the results. Before the Minister sits down, will he address the point about the letter that was referred to, and the clear statement in it, from Jeremy Hunt in 2010?

[Lord Gardiner of Kimble]

Our overriding aim is to ensure that the system is appropriate, proportionate and fair and represents the best value. It is important that we achieve the best outcome for licence fee payers but also that we achieve an appropriate outcome for the BBC. I do not accept that this will necessarily adversely affect the BBC; the whole purpose of the terms of reference is to ensure that all these matters are given due and proper consideration. If the Government’s options were constrained by the proposed amendment, then that might not be the case.

Much of the discussion of the review and the potential changes to the enforcement regime has presumed that the outcome will be a negative one for the BBC. That is simply not the case. Again, I draw noble Lords’ attention to the terms of reference for the review and to the independence from the Government of the lead reviewer. I reiterate that the intended outcome of the review is recommendations that achieve the optimal result for all—licence fee payers, the courts system and the BBC itself. As I have said, the review recommendations will require serious consideration by the Government of the day, and this House will have a further opportunity to scrutinise and approve any proposed changes.

This process will take time; indeed, along with the wider considerations, any changes would be unlikely to be finalised much before 1 April 2017. However, we believe that to tie any changes to a specific date would be a constraint that could delay improvements—I emphasise “improvements”—to the regime for the people that the noble Baroness, Lady Corston, and my noble and learned friend Lord Mackay of Clashfern were bringing into their considerations. We should not presume that these are not improvements.

[Lord Fowler]

My Lords, I have listened very carefully to what my noble friend has said. Basically, if he is saying that any Government, not just this one, can set up an independent review and make any changes to the charter agreement, have they not just obliterated the whole principle of certainty over a 10-year period?

[Lord Gardiner of Kimble]

It is why I emphasised particularly that this piece of work should be seen as running alongside and parallel with the charter review. It is clearly the case that what comes forward from the review will play its part in the charter, for the very reasons that a number of noble Lords raised.

It is for the reasons that I have outlined that, with regard to the timings, I and the Government believe that whoever the Government of the day are, if there are improvements to be made and the review comes forward with legitimate improvements, it would be unnecessarily prescriptive to keep it to 1 April 2017. It is for those reasons that I ask the noble Baroness to give consideration to withdrawing her amendment.

[Lord Grade of Yarmouth]

Before the Minister sits down, could I be absolutely clear that the Government’s position in resisting this amendment is that it sits outside those undertakings given by the Secretary State, Jeremy Hunt, at the time of the last licence fee settlement? Is the Minister content that the challenge is on the basis that this would clearly be outside those undertakings?

[Lord Gardiner of Kimble]

I say to your Lordships what I said before: the review being undertaken on this matter is particularly engaged with terms of reference that refer to what the impact would be on the BBC, so what Mr Perry will be considering is precisely the points that my noble friend makes. As I said, our view is that if there are improvements to be made, and the sort of remedies that may possibly be suggested would be of help, then why not put them forward—to pluck an example—on 1 January 2017 rather than 1 April? It is for those reasons that I very much hope that the noble Baroness will consider withdrawing her amendment.

13:30

[Lord Skelmersdale (Con)]

Before my noble friend sits down, I have listened to the whole of this discussion and it seems to swing on the results of the price review. Can my noble friend give a cast-iron guarantee that the Government will not operate Clause 64 until or unless that review comes to the conclusion that he suspects it might?

[Lord Gardiner of Kimble]

I may have to think about what my noble friend is referring to. He has his own way of seeking to bamboozle me. This is about an independent review that will furnish the argument, and, because of its timing, will quite rightly be within the context of the charter review. We think it is reasonable, if there are improvements to be made, whatever options are decided to be the best for all the parties that are part of the terms of reference, to set a particular date if improvements could be made for everyone’s benefit; that would be the best way forward.

[Lord Stevenson of Balmacara]

May I assume that the nutcracker which the Minister has just experienced from the two noble Lords behind him is correct and that the answer is yes to both questions? The Minister said yes to the noble Lord, Lord Grade, but, in certain circumstances and with certain results—which is the point made by the other noble Lord—you would go against what the Secretary of State said in open letters to everybody in the country: that the settlement for a five-year period was without precedent and would never be changed because it gave the security required by the BBC to do its job. Now the Minister is accepting exactly the opposite.

[Lord Gardiner of Kimble]

My Lords, all I am saying is that I am not going to prejudge the review which was established to deal with the matter of revenue to the BBC. Let us see what the review says. But if there are improvements to be made, they should be made within the context of the charter review.

[Lord Clement-Jones]

My Lords, just to knock things on the head before the Minister sits down, can he confirm that, despite all the discussion that has taken place between Committee and Report, essentially—I quoted the Minister when I spoke—the Government’s position has remained completely the same?

[Lord Gardiner of Kimble]

The Government are utterly consistent in their approach.

[Baroness Howe of Idlicote]

My Lords, I thank the Minister for his attempts to persuade me and many others that our amendment, which is a thoroughly cross-party amendment, is unnecessary. This debate was one of the most interesting that I have heard in this House—and I listen to a lot of debates. It covered a huge range of issues, approaches and experience. The more I listened to the various questions about why the Government should be able to accept the amendment, the more convinced I was when the Minister argued the other way that there is little doubt about the need to put the question to the vote.

When I introduced this amendment, my approach was a little short of perfect, and I apparently misquoted the odd figure—although £200 million was certainly right. I had it written down, but I read it badly. There were one or two other points. I apologise to the noble Baroness, Lady Corston, because I had a word with her outside and I think that she has a point, but not one that is even remotely relevant to what I and many other Members who have spoken were trying to put over. It is something that I would be more than happy to take up with her, because quite clearly if it results in this number of women ending up in prison, with detriment to various members of their family, something is wrong. Let us face it, nothing in this life is perfect and not subject to the need to change at some stage.

I shall not go on because everything that needed to be said was said in the debate. It has completely convinced me that there is a need to test the opinion of the House.

13:35

Division 1

Ayes: 178

---

Labour: 112
Crossbench: 39
Liberal Democrat: 11
Conservative: 6
Independent: 3

Noes: 175

---

Conservative: 120
Liberal Democrat: 45
Crossbench: 6
Ulster Unionist Party: 2

13:47

Consideration on Report adjourned until not before 2.48 pm.

NHS: Maternity Care

Thursday 5th February 2015 Lords Chamber

Question for Short Debate

13:48

Asked by

[Lord Harrison]

To ask Her Majesty’s Government what steps they are taking to improve maternity care and to ensure that maternity staff are trained and developed to meet future needs.

[Lord Harrison (Lab)]

My Lords, today, we call the midwife. We do so in England and Wales, and I am particularly indebted to the National Federation of Women’s Institutes for bringing to my attention its excellent report, Support Overdue: Women’s Experiences of Maternity Services.

My adult children’s contemporaries are now growing families. In chatting to one new mother and friend of the family I learnt that her experience of childbirth was unsettling, to say the least, and her anxieties find all too ready an echo in the WI report. The report highlights that 700,000 women give birth each year in England and Wales. Indeed, that is the single biggest reason for admission to hospital. Midwives play the crucial role of setting families on the right path, from pregnancy through to birth itself, and then shape the first few weeks of family life. The report highlights shortcomings, which I will examine, while it readily acknowledges that mothers in England and Wales enjoy some of the highest quality maternity care in the world.

Choice of location of birth still remains an aspiration, not a reality, for many women. For too many women the choice of the four standard location options is a chimera. Thus the Government’s pledge to deliver choice in NHS maternity is defaulted on.

Secondly, maternity care is still fragmented; it is still a long and bumpy road that a woman treads from preconception through to pregnancy, birth and postnatal care. Thirdly, despite the best efforts of NICE, a postcode lottery for postnatal care remains, with wide variations in quality and standard of care across the country. Too often when we call the midwife, she is not there. Despite an increase in the birth rate of some 15% over the past decade, we still fail to provide the promised 1:28 midwife to birth ratio keenly advocated by the four royal colleges involved in midwifery. Despite the recent baby boom, some 50 trusts and boards even now employ fewer midwives than they did previously, which is astonishing. Call the midwife. Unfortunately, some 34% of women complained that they were not given the name or number of a dedicated midwife they could phone if worried or wanting advice. Surprisingly, some nine out of 10 women had not met any of the midwives who cared for them at the time of labour and birth before going into labour. Some 30% of mothers urgently wanted the designated midwife to,

“remain responsible for my care (not pass me on to someone else)”.

Call the midwife—but only one in 10 mothers had the full four choices of where to give birth, a promise unfulfilled in part because we have trained too few midwives. Matters are beginning to look up as more trusts and boards are promoting and expanding location options by building new, freestanding or colocated maternity units, or funding home birth services. Can the Minister update us on offering the full four locations, and give us figures on the provision of complementary services, such as birthing pools and partner accommodation? Can he give us up-to-date figures on the worrying incidence of temporarily closed units or suspended maternity services attributable to staff shortages and capacity problems due to unavailable bed space? Why do only one out of two women obtain the desired home birth?

Finally, three out of five mothers want more not less postnatal care, but a quarter of mothers were unable to call the midwife to fix up appointments convenient to themselves, as new mothers deal with the baby. Will the Minister ensure that CCGs develop transparent frameworks for postnatal care? We all know how crucial the transition to parenthood is for new mums and dads—and, please, do not forget the dads. Can the Minister respond to the Support Overdue report by the WI, and say which recommendations the Government might take up?

Furthermore, are maternity health planners taking into account the wider health needs of women during pregnancy? How is the midwife’s crucial role of influencing new mothers’ lifestyles being supported and expanded? Is the pivotal role of the supervisors of midwives being protected? Too often these valuable personnel are used to cover up midwife shortages, instead of supervising their charges. When will we fund and ensure one-to-one maternity care, surely the crucial relationship in any happy birth? Has the troubling and outmoded use of handheld notes and paper records to give vital information on risk status during birth been eliminated? I would be grateful if the Minister could update us and respond to the 2013 State of Maternity Services report published by the Royal College of Midwives.

The Government have funded the increase in midwives begun by the previous Labour Government, but it is worrying that the midwifery workforce has not kept pace with the rising number of births in the last decade, and worrying that the marked ageing profile of the current cohort of midwives threatens real instability to future maternity services as experienced midwives leave in droves. Student midwives’ recruitment stalled in 2014, and even though the baby boom has now paused, the RCW calculates that births still need to fall by some 130,000 before we can satisfactorily match midwife numbers to the current birth rate.

I turn to the findings of the National Audit Office report of these services, and ask whether there is a reply from the Government to the concerns of the Commons’ Public Accounts Committee. Should the department not more rigorously assess whether it can afford to achieve its declared policy objectives? Indeed, are the current tariffs for maternity care set at the right level? What is the Government’s view on the finding that many efficiencies and savings in the service could be found and implemented if more midwife-led birth centres were established, as set out in the Birthplace in England study by NICE?

The PAC also points out that still too few women secure the birth location of their choice. Local maternity networks are an important route to share and spread best practice between and within networks, thereby improving quality and helping to eradicate unacceptable variations across the country. Does the Minister accept that current maternity networks are less well developed than other NHS networks? What can he do about it?

I am pleased that the noble Baroness, Lady Manzoor, will speak on mental health services for pregnant mothers. Indeed, I hope that other colleagues and maybe the Minister will pursue other aspects of maternity services that I do not have time to turn to, including maternal mortality rates and their breakdown into socioeconomic groups, perinatal deaths and the comforting of mothers suffering still births, the availability of hospital beds, the screening of babies for debilitating diseases, and data collection in maternity services, which is crucial in developing policies.

Will the Minister say more about pay, which has been frozen for midwives since 2011 and 2012, with just a 1% rise in 2013 and frozen again in 2014? This is an important recruiting angle that needs to be prized. Will the Minister confirm that in future the Government will listen to and implement the recommendations of the independent pay review body?

In my final minute, I turn to the European Union and ask the Minister whether there is sharing of practice across the EU. If it stands for anything, the European Union is the swap shop of ideas, which the National Health Service should be involved in—and nowhere more than in maternity services.

Finally, are we doing anything to recognise the wonderful nurses who go out to deal with the Ebola problems that have been experienced, and are we doing more to share the best practice with other parts of the globe, where improving maternity services is so crucial to getting a better world?

I look forward to the debate and hope that the Minister will be able to reply to some of those points and to write to me on those that he does not have time to cover.

13:58

[Lord Farmer (Con)]

My Lords, I am grateful to the noble Lord, Lord Harrison, for initiating this debate on steps to improve maternity care. One aspect of maternity care which shows marked variation across the country is staff willingness and ability to involve fathers. This depends to a very much larger extent on culture than on budgets. I wish to make a plea for the very many fathers across the country who have felt thwarted in their best efforts to support their wife or partner throughout pregnancy, during childbirth, and in the earliest days of their new family.

A poll carried out by Bounty found that 96% of mothers considered it to be very or quite important that midwives and health visitors include fathers as well as mothers, yet research reveals that fathers still feel excluded, frustrated at the helplessness this engenders, and fearful because of the risks and uncertainty of labour. Much of this is due to a lack of consideration by maternity staff contrary to guidance from the Royal College of Midwives. This is not so much about their rights as parents as the need for the great majority of new mothers to have their husbands and partners respected and considered part of the labour team. If they are calm and supportive, this can free up extremely pressurised maternity staff to look after any more pressing needs in the delivery suite, yet this requires fathers to have been well prepared from much earlier in the pregnancy.

Feeling needed and helpful rather than surplus to requirements can be a game-changing experience, especially for young fathers who have serious doubts about whether they should be involved at all in their new babies’ lives. The time of the birth and shortly afterwards can be a very special moment—the point when a young couple may decide to try to make co-parenting work, even if they sense that they are unlikely to survive as a couple. It can mean the difference between a child growing up knowing his father and that same child growing up thinking that his father did not care enough to be involved. A million children in this country have no contact with their fathers. Who knows, with a bit of relationship support, that child may even grow up living with a mother and a father.

I have never forgotten the first time I held each of my children while my wife was resting and recovering. The hard work starts immediately. Having the father 100% on board, helping with the practical aspects of baby care, such as walking inconsolable newborns around in the early hours, may protect untold numbers of new mothers against developing postnatal depression. Maternity services are uniquely positioned to help get things off to a good start.

Some noble Lords may be thinking about the recent headline which claimed that,

“it’s better for mothers coping with the pain of childbirth if their partner is not around”.

Personal experience and much other research tells me that it is comforting and reassuring to have that other person present at the birth, and immediately afterwards, who is utterly invested in the well-being of the new member of the family.

When I looked more closely, it was clear that the University College London study was not primarily concerned with childbirth at all, but with how women cope more generally with pain and the effect of their relationship with their partner. Extrapolating this to their experience of childbirth and making any generalisations at all about the desirability of fathers being present is not at all justified and very misleading. There have always been women who, for whatever reason, have preferred not to have the baby’s father present at the birth. This might be because of strains in the relationship or safety concerns. However, the norm is for the father’s presence and support, before, during and after birth, to be very much welcomed because researchers have established that it tends to lead to less anxiety, lower rates of postnatal depression and less perceived pain, so surely this is what maternity staff should be fostering. Doing this as early as possible in pregnancy, without adding to existing high workloads, is not just about holding antenatal classes at convenient times for fathers. Communicating directly with fathers-to-be is now particularly easy through digital means such as Maternity Assist. Health and well-being-related advice and information is sent to both expectant parents on their phones and tablets, which they can both read, discuss and make joint decisions about. It is a world away from a letter addressed solely to the mother which the dad might feel awkward about reading.

To conclude, and to reiterate my plea, can the Department of Health add its voice to that of the Royal College of Midwives and many others to ensure that maternity services are in no doubt at all that they have a key role to play in drawing fathers in as early and effectively as possible?

14:04

[Baroness Wall of New Barnet (Lab)]

My Lords, I, too, congratulate my noble friend Lord Harrison on securing this important debate about maternity services. Noble Lords have a range of interests to bring to debates and this is no exception. That is terrific. I wish to concentrate on the training and development of maternity staff to meet future needs.

We all know that, with advances in clinical techniques and technology, it is very possible that premature babies, even those who are 22 weeks old, can now, with careful, 24/7 care provided by skilled staff, live to be healthy babies to the joy of their parents. However, that outcome requires a skilled maternity team.

Our midwives and support staff require knowledge and experience to deliver babies who have gone to full term. However, something may still happen that should not, and their preparation for such events, and the skills they deploy, are hugely important in delivering babies safely, which brings a lot of love and joy for the mum, the midwife and the family.

I want to share with noble Lords some of the training and support mechanisms that Milton Keynes Foundation Trust, of which I am chairman, has developed, and continues to develop, to ensure that the skills of our maternity staff are constantly updated and refreshed. If you were to ask our head of midwifery at Milton Keynes—as I did—what the key issues are for her, she would say, “The key areas around the provision of great care are attracting the right people into the profession, standards of training and the ongoing development of staff to provide that care”. At Milton Keynes we train student midwives in partnership with Northampton University. Our clinical practitioners are involved at the very beginning with the recruitment of prospective students and use a value-based recruitment strategy which tries to ensure a caring and compassionate approach to the midwifery profession. Applicants need to have demonstrated that they have undertaken some care work prior to applying. This is hugely important as it illustrates their interest.

During training, the students work in all areas of the profession and we carefully monitor the time they spend with an appropriately trained midwifery mentor. Through discussion with our head of midwifery at Milton Keynes, I learnt that our consultant midwifes and senior lecturers run reflection sessions throughout the training to enable discussion and learning from experience to guide the students in providing safe, quality care. I was fortunate and honoured to take part in such a discussion last week in preparation for this debate. After students qualify at Milton Keynes, there is a very robust preceptorship competency programme. That programme is hugely important and is valued highly by students.

I would like to say a little more about what happens at Milton Keynes in terms of assessment and competency. However, in the short time that I have left, I will focus on the provision of quality evidence-based guidance, which is vital. However, it is useless if staff do not follow it. It is hugely important to encourage them to follow it, and that midwives monitor that. Good care is achieved only through good clinical practice and leadership, enabling staff to be involved in decision-making and supporting individual development and training. We do all this at Milton Keynes but many other trusts do not necessarily have such a robust programme for staff. We have heard accounts from my noble friend about what happens in some instances of community midwifery as well as in some hospitals.

Following the tragic and unacceptable situation at Morecambe Bay and then at Guernsey Hospital, a review was carried out by the King’s Fund. Sadly, this review, which was contributed to by the Nursing and Midwifery Council, took place in a closed meeting. There was no discussion with any of its members or with experienced midwives. The NMC accepted all the recommendations, including on the loss of statutory supervision of midwives in the near future. That is concerning as this has been a gatekeeper for safe midwifery practice since the Midwives Act 1902. Removing it from local maternity units to a centralised system removes this important responsibility, which is key to safe local practices. Everyone understands the horror of those two hospitals and the necessity for the report to look at them. I ask the noble Earl to look at this carefully before it reaches the stage of legislation. Many midwives, including my head of midwifery, believe that—excuse the pun—this is throwing the baby out with the bathwater.

14:10

[Baroness Manzoor (LD)]

My Lords, I also congratulate the noble Lord, Lord Harrison, on securing the debate. Today is Time to Talk Day, a national day where everyone across the country is encouraged to take five minutes to talk about mental health. That is what I intend to do today.

Women in around half of the UK have no access to specialist prenatal mental health services. Up to 20% of women develop a mental health problem during pregnancy or within a year of giving birth. Suicide is also a leading cause of death for women during pregnancy and within the first year of giving birth. More than one in four women have c-sections. Evidence suggests this rate is well in excess of the number of c-sections necessary to create health benefits for women and babies, as has already been alluded to by the noble Lord, Lord Harrison. Perhaps the Minister can see whether this financial tariff is to be re-evaluated and reviewed again.

The Centre for Mental Health and the LSE examined the economic and social costs of perinatal mental health programmes and problems, and the cost of effective interventions to manage them. They looked at three of the most common mental health problems—depression, anxiety and psychosis—which affect women during both pregnancy and the first year after they have given birth. Those organisations found that these perinatal mental health problems carry a total cost to society of about £8.1 billion across the UK each year. This is equivalent to a cost of just under £10,000 for every single birth in the country. Some £1.7 billion of this cost is borne by the public sector, of which the greatest costs of around £1.2 billion accrue to health and social care services. They also found that nearly three-quarters of the costs of perinatal mental ill health relate to the poorer health and prospects of the mother’s child. This is based on growing evidence that mental health problems during and after pregnancy have a significant impact on children’s health, many of which can last a lifetime.

There is clear guidance from NICE about what services need to be in place for women. This includes: training midwives and GPs to spot the early signs of distress; speedy access to talking therapies; specialist community services for women needing more intensive support; and mother and baby hospital beds for women who need in-patient care once their baby is born. However, the NHS offers just a fraction of the treatment and support required to meet this level of need. It is estimated that only 40% of women with perinatal depression have their needs identified. Of those recognised, just 60% receive any treatment, of whom only 40% get effective care—that is, care according to national guidelines. This means that just one woman in 10 is getting good quality care for prenatal or postnatal depression.

The Centre for Mental Health and the LSE calculated that the cost of improving perinatal mental health support to include all the interventions recommended by NICE would be about £300 million nationally. This would imply an additional spend of £1.3 million for an average CCG—about a third of the cost to the same CCG of not providing the right care. In other words, investing in better care could actually save the NHS money, as well as bringing about both immediate and longer-term benefits in communities.

The Government have recognised a major deficit in support for women with postnatal depression. The most significant area of progress so far is investment in greater numbers of midwives and health visitors. It is crucial that these are trained adequately in recognising and responding well to distress in women they see. However, there has been no “big push” relating to maternal mental health; little reliable data about outcomes and coverage; and no one is accountable for achieving improvements. Hence, NICE guidance on perinatal mental health is not being adhered to in most areas seven years after its publication.

What needs to be done? First and foremost, we need government to make it clear to the NHS that improving mental health in maternity services is a top priority for reinvestment, and that progress will be monitored actively to improve identification of needs and speed of access to psychological support. Identification of mental illness is key. This could be improved by better training of GPs, midwives and health visitors in perinatal mental health. It is not the quickest of wins, but could be achieved within a reasonable timescale if given priority. The other major change would be to prioritise women in the perinatal period for access to psychological therapy, so that there is a clear process for getting women in to these services quickly. It is estimated that it would be possible to develop a fully functioning service at all levels—including specialist mother and baby units—within five years. It would be helpful to hear the Minister’s views on this.

To conclude, the cost to the public sector of perinatal mental health problems is five times the cost of improving these services. That is why we, as Liberal Democrats, have committed to invest at least £500 million extra in mental health each year in the next Parliament, building on the waiting time standards that we have already introduced and improving support for new mothers, children and adolescents.

14:16

[Baroness Cumberlege (Con)]

My Lords, my interests are in the Lords’ register. In addition, I am a vice-president of the Royal College of Midwives, and patron of the NCT and of Independent Midwives UK. Like others, I thank the noble Lord, Lord Harrison, for initiating this debate and for the briefing that I have had from other bodies, not least the Women’s Institute, of which I used to be a very active member.

The NHS Five Year Forward View states:

“Having a baby is the most common reason for hospital admission in England”.

For women with low-risk pregnancies, research shows that,

“babies born at midwife-led units or at home did as well as babies born in obstetric units, with fewer interventions. Four out of five women live within a 30 minute drive of both an obstetric unit and a midwife-led unit, but research by the Women’s Institute and the National Childbirth Trust suggests that while only a quarter of women want to give birth in a hospital obstetrics unit, over 85% actually do so”.

That document goes on to say that the NHS will commit to a commission to review future models for maternity units to report next summer—I will be watching that—and to recommend how best to sustain and develop maternity units across the NHS. It will ensure that tariff-based NHS funding will support the choices women make, rather than constraining them. It will make it easier for groups of midwives to set up their own NHS-funded midwifery services.

I really cannot tell noble Lords how delighted I was when I read that. This is such fresh thinking. It rides the wave of what women and midwives want: giving choice to women as to how they want their care provided, and to midwives as to how they want to work. Of course, this is just the beginning. The noble Lord, Lord Harrison, and other noble Lords clearly set out the immediate problems facing maternity services. The first concerns workforce issues and the shortage of midwives. One solution is to attract back into the service those thousands of midwives already qualified—some with a great deal of experience—who have chosen not to work in the current system, often because it is too dysfunctional, fragmented and rigid. The second is to stop the loss of newly trained midwives, who characteristically leave in their first two years after qualifying.

How are we going to achieve that? The NHS needs to enable midwives to offer a service to women that supplies genuine continuity throughout pregnancy, birth and antenatal care. Midwives who work with a caseload and who really get to know their women and their families—and especially the fathers of the babies—find the work rewarding, particularly when they have some control over their work/life balance. Then they stay in the service.

As the Five Year Forward View states, different models are needed. We already have some but they are very fragile and nascent and they need support. These different midwives want to work for the NHS. I should like to cite two models. One is Neighbourhood Midwives—a social enterprise, employee-owned and not-for-profit organisation based in the community. Midwives follow the women and work flexibly over 24 hours. This is possible because they are not needed to staff labour wards and clinics on 12-hour shifts. Likewise, Independent Midwives UK is a membership organisation that represents and supports 70 self-employed midwives, with a further 60 associate members. IMUK is a public benefit registered company with a very high-powered board. It has come a long way in its struggle to secure clinical indemnity, which it now has, and as a consequence I think it is destined to grow.

Both those organisations—and there are other, similar models—are pioneers, but they are up against the deep reluctance of the NHS to award them contracts. However, this coming year’s planning guidance, signed off by NHS England’s board in December, states that for 2015-16 commissioners should review the choices that are locally available for women. This may include choice about how women access maternity care, the type of care they receive, where they give birth and where they receive their antenatal and postnatal care.

Many of us may think that we have heard similar rhetoric in the past, but I think that this goes beyond rhetoric. For the first time, this spells action. I believe that many CCGs will want to implement this guidance, but can my noble friend tell me what will happen if they do not? If they do commission these services, that will enable groups of midwives to set up their own NHS-funded service based in the community and funded directly from a tariff or, in the future, from personal budgets. They will work in partnership with the trusts to offer a complete care pathway, but it will mean that both sectors can plan and manage their own staffing levels, and this will dramatically increase the offer and provision of a very reliable home birth service. It will also increase the use of free-standing birth centres. Working in group practices in the community will increase midwives’ autonomy, improve their clinical skills, and enhance their experience and confidence across the whole care pathway.

Caseload midwifery is seen as the gold standard of care, yet providing women with a midwife whom they can get to know and trust is still the exception rather than the rule. However, we know that this model of care improves outcomes, reduces interventions, saves money, improves women’s experience of birth and improves midwives’ job satisfaction, skills and commitment. What is now needed are commissioners who are brave enough to enable this model of care to be provided in a sustainable and innovative way. Does my noble friend agree? Does he see this as a way forward, and has he suggestions as to how the Government could encourage commissioners to commission such services?

14:23

[Lord Hunt of Kings Heath (Lab)]

My Lords, I, too, very much welcome the initiative of my noble friend Lord Harrison in allowing us to debate these very interesting issues. I agree with many of the points that he made about the risk of fragmentation of services and the need for more prenatal and postnatal care. The noble Baroness, Lady Manzoor, made a very good point about mental health, and indeed it was raised at Oral Questions this morning by my noble friend Lady Royall in relation to postnatal depression. The role of fathers was given a great deal of emphasis by my noble friend and the noble Lord, Lord Farmer. Also recognised was the excellence of many maternity services. I agree with my noble friend that one of the roles of maternity services in this country is to share good practice globally.

On the question of choice, it is very clear that we have a problem at the moment. The Public Accounts Committee made some very important recommendations about choice in its report of January 2014. In particular, the National Federation of Women’s Institutes suggested that although many women wish to take advantage of midwifery-led units, not enough are given the choice. It is not always my experience that these units are used sufficiently once they are set up, and certainly, looking at the numbers in a lot of them, it is clear that they are bordering on viability. Despite the view that has come across from opinion polling, confidence in using those units needs to be built up among parents and mothers. That is something that the NHS may need to think about in the future. Often, the units are set up because the service has been downgraded. Services are now centralised and I am sure that that is appropriate, but it can lead to a loss of confidence among many members of the public about what is left of those midwifery-led units.

I want to ask the noble Earl, Lord Howe, something else that was raised by the PAC. It says that the NHS has persistently failed to deal with inequalities in maternity care. It adds that the latest data on women’s experiences show that black and minority ethic mothers are less positive than white mothers about the care they receive during labour and birth. What is the NHS doing about that? I also refer the noble Earl to Oxford University’s National Perinatal Epidemiology Unit, which found that the most deprived women in England were 38% less likely to be seen by a professional prior to 12 weeks’ gestation and 40% less likely to report being able to see one as early as they would have desired. Presumably they are the people who most ought to take advantage of those services. What can we do about that?

Can the noble Earl respond to the point raised by the PAC concerning confusion around the department’s policy on maternity services, what it wants to achieve and who is accountable for its delivery? Of course, this is partly a product of the arrangements resulting from the 2012 Act, but clearly it is very unsatisfactory in terms of having a cohesive policy at local level and then ensuring that it delivers. I point out to the Minister that, prior to the PAC report, the NAO inquiry found that the department did not fully consider the implications of delivering the ambitions that it had set out in its strategy for maternity services. It went on to say that it was unclear how local commissioners were monitoring the performance of the providers of maternity services and holding them to account. The noble Baroness, Lady Cumberlege, pointed to the ability of mothers to take advantage of home births. How can we make sure that the enunciated policy is implemented unless there is proper monitoring? I very much agree with what she had to say about that.

My noble friends Lady Wall and Lord Harrison referred to training commissions and training in general. There is a concern that with a huge increase in the number of births in recent years, the number of training commissions is not keeping pace with need and demand. That is one reason why so many midwives have left the profession and why it is such a challenge to bring them back into the service. I should just like the noble Earl to say a little more about how convinced he is that we have got the number of training commissions correct.

Is the noble Earl prepared to say something about the relationship between midwives and consultant obstetricians? My noble friend referred to Morecambe Bay, where I think one of the issues was a very poor relationship. We know that there are tensions up and down the country. I wonder whether there is a leadership role within the department to try to bring the professions together at a national level and to resolve some of those tensions. They cannot be good for the safety and quality of care within midwifery units. Yet this issue is being raised in a number of areas.

Finally, on midwifery leadership, it is essential that we have visible, strong leaders locally and nationally. Is the noble Earl satisfied that at his department’s level and at NHS England there are sufficient midwifery-led professionals and a visible head of profession, perhaps a chief midwifery officer? Often, midwives are subsumed within the nursing profession. They are a separate profession but they often come under the management and leadership of a chief nurse. Sometimes midwifery does not get a fair shot when it comes to issues about arguing for resources and priorities. I wonder whether the noble Earl is able to comment on how we can enhance leadership nationally and locally.

14:31

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, first, I join other noble Lords in thanking the noble Lord, Lord Harrison, for securing this debate. In doing so, I thank all noble Lords who have spoken for their excellent contributions. We cannot overstate the importance of good health and well-being for women before, during and after pregnancy. It is an absolutely critical factor in giving children the best possible start in life and in building the foundations for good health and well-being as they get older. That is why providing high-quality maternity care is a key priority for the Government. In their mandate to NHS England, the Government set out an expectation to see significant progress, by March 2015, in improving the standards of care and experience for women and families during pregnancy, and in the early years for their children.

The noble Lord, Lord Hunt, emphasised the importance of choice for women and we agree. Women should have as much choice and control as possible over decisions about their care while they are pregnant. The mandate is clear that women should be offered the greatest possible choice of providers and that they should have a named midwife who is responsible for ensuring she has personalised, one-to-one care throughout pregnancy and childbirth, and during the postnatal period, including additional support for those who have a maternal health concern. I quite agree with the noble Lord, Lord Harrison, about the importance of continuity. NHS England is working to deliver these commitments through the Maternity & Children Programme Board.

Part of that delivery must lie in increasing the number of midwives. The Government have taken steps to improve the size and capacity of the maternity workforce. There are now more than 22,000 qualified midwives, which is an increase of nearly 2,000 midwives since 2010. Another 5,000 midwives are currently in training, which is a record number, and we expect that this level of midwifery training commissions will be maintained in 2015-16. The number of midwifery-led units has increased from 87 units in 2007 to 152 units in 2013, giving most women a choice of place of birth, and 79 per cent of women of childbearing age in England now live within a 30 minute drive of both a midwifery-led unit and an obstetric unit, which is up from 59 per cent in 2007. We have also taken steps to improve the quality of the environments in which women give birth and are cared for. In 2013 and 2014, we provided a total of £35 million capital funding for the NHS to improve birthing environments.

The Government’s investment represents the single biggest capital investment in maternity care for decades, with more than 100 maternity services benefitting. Across the country, many local maternity services have been transformed. Improvements delivered by our maternity investment fund include almost 40 new birthing pools, which can help to make labour less stressful and painful; nine new midwife-led units, which are less clinical and can be more relaxing places to give birth; more en-suite bathroom facilities in more than 40 maternity units, providing more dignity and privacy for women; more equipment, such as beds and family rooms, in almost 50 birthing units that allow dads and families to stay overnight and support women while in labour or if their baby needs neonatal care; complex needs suites for women who need a more constant care environment due to maternal mental health or substance abuse problems; and better bereavement rooms and quiet area spaces at nearly 20 hospitals to support bereaved families after late pregnancy loss, a stillbirth or an early neonatal death.

The noble Lord, Lord Harrison, spoke of the bumpy road faced by women and the wide variation in quality of service. I recognise that there is variation but we are making progress. According to December’s friends and families test, 96% of women said that they would recommend their maternity service for antenatal care; 97% for their labour and birth care; and 98% for their postnatal community care. However, we are keenly aware that we must not be complacent. Although the birth rate in England fell by 3.6% in 2013-14, we know that complexity of maternity care is increasing with increases in average maternal age, obesity rates and awareness of other physical and mental health concerns.

To meet those challenges, it is important that the maternity workforce continues to develop. This Government established Health Education England, which is responsible for promoting high-quality education and training that is responsive to the changing needs of patients and local communities. For maternity services, this means ensuring that the NHS has access to the right numbers and mix of staff with the right skills, and the right values and behaviours to provide every woman with personalised one-to-one care throughout pregnancy and childbirth, and during the postnatal period

As set out in its mandate, HEE is working with NHS England to establish a vision of personalised maternity care by 2022 across geographical and service settings; to describe the workforce needed to deliver it; and to work with key stakeholders, including the Royal College of Obstetricians and Gynaecologists, the Royal College of Paediatrics and Child Health and the Royal College of Midwives to deliver it.

Perinatal mental health has not previously been given the attention that it deserves. I was grateful to my noble friend Lady Manzoor for emphasising that. That is why we have made creating a maternity service that meets the individual needs of women and supports the prevention, diagnosis and treatment of maternal mental health issues a priority. HEE is continuing to work with the Nursing and Midwifery Council and the Royal College of Midwives to ensure that midwives in training have a core training module focusing on perinatal mental health, which should be in place for those entering midwifery training in 2015. It is also developing a continuing professional education framework for the existing maternity and early years workforce, which will include identifying the care and treatment required by women with perinatal mental illness. It is also continuing to work with the medical royal colleges to support specific perinatal mental health training being incorporated into the syllabus for doctors in postgraduate training.

The noble Lord, Lord Harrison, referred to the midwife to birth ratio, which is an interesting subject. The ratio set by the Birthrate Plus tool of 29.5 births per midwife is not a mandatory ratio. The Department of Health does not recommend a midwife to birth ratio. The midwife to birth ratio is an indication of throughput only and does not indicate the safety, quality or outcome of the service provided. Nevertheless, the National Institute for Health and Care Excellence published draft guidance on safe staffing in maternity settings in October 2014. That guidance proposes that the number and skill mix of midwives needs to be determined by the midwife in charge at the start of every shift or service and sets out the process that midwives should use to determine whether there is sufficient staff to provide for the needs of women and babies. NICE is planning to publish the final guidance this month.

The noble Lord also referred to the importance of maternity networks. I entirely agree with him. NHS England has set up 10 women and children maternity strategic clinical networks which are working with NHS England area teams to support clinical commissioning groups to commission maternity services. These networks can develop action plans and collaborative working to drive improvements in access, quality of care and inter-service communication to enhance the experience of women and families generally and, more specifically, of the large numbers of women who are at risk of poor mental health during pregnancy and following childbirth.

As I have mentioned, my noble friend Lady Manzoor referred to the costs of perinatal mental health problems. She is right to do so. Two fundamental principles articulated in our mandate to NHS England are relevant. The first is equal access for equal need; the second is parity of esteem for mental health. There is no doubt that offering better support to new mothers to minimise the risks and impacts of postnatal depression is a priority. Indeed, NHS England has announced that perinatal mental health will be a priority for it in 2015-16.

To support CCGs, NHS England has just updated its maternity services commissioning guidance, which will be published soon, and include information on commissioning for parity of care for a woman’s mental health as well as her physical health, and there will be more detailed guidance on the development and delivery of perinatal mental health services across a range of geographies and demographics for all commissioners and service providers.

My noble friend bemoaned the lack of maternal mental health outcome data. The Department of Health has commissioned the National Perinatal Epidemiology Unit at Oxford University to develop a maternal mental health outcome indicator to monitor mental health outcomes for women across the maternity pathway. We expect to include this in future NHS and public health outcome frameworks.

My noble friend also referred to the incidence of suicide, about which we are extremely concerned. However, again, this is a focus for both NICE and midwives in training.

My noble friend Lord Farmer referred, rightly, to the importance of fathers in perinatal care. There is no doubt that involving new fathers and partners in a child’s life is extremely important for maximising the lifelong well-being of a child. It is absolutely central to that and our policies are quite clear that pregnancy and birth are the first major opportunities to engage fathers in the appropriate care and upbringing of their children. This is explicitly mentioned in the healthy child programme, which every health visitor has to implement. I referred earlier today to the Start 4 Life information service, the material on NHS Choices, the baby guide and on the online birth-to-five guide. All these signpost parents to wider information about parenting and relationship support. The NICE guidance for health professionals on antenatal and postnatal mental health explicitly mentions the role of the partner, family or carer in providing support.

My noble friend Lady Cumberlege referred to the Five Year Forward View and the need to reconfigure maternity services. NHS England, in that forward view, said that it would look at new models of maternity care. It has set up a programme board, co-chaired by NHS England and Cathy Warwick, the external secretary of the Royal College of Midwives, and the first meeting for this is tomorrow.

Time prevents me, unfortunately, from addressing all the other questions that noble Lords have put to me. I undertake to write as soon as possible to every noble Lord who has spoken. In the mean time, this debate has drawn out some extremely important threads and themes that both the Government and NHS England would do well to follow up and implement.

14:44

Sitting suspended.

Deregulation Bill

Thursday 5th February 2015 Lords Chamber

Report (2nd Day) (Continued)

14:51

Amendment 28

Moved by

[Lord Clement-Jones]

28: After Clause 64, insert the following new Clause—
“Copyright in broadcast
(1) The Secretary of State may by regulations made by statutory instrument repeal, in whole or in part, section 73 of the Copyright, Designs and Patents Act 1988 (reception and re-transmission of wireless broadcast by cable).
(2) A statutory instrument containing regulations under this section may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Clement-Jones (LD)]

My Lords, this amendment would give the Secretary of State power by regulation to repeal Section 72 of the Copyright, Designs and Patents Act 1988 in part or in full. My noble friend the Minister will be only too well aware from the debate in Committee on 11 November that there are very strong views in the House on this subject. Although I was not able to be present for that debate because I was abroad, a great many noble Lords presented compelling and persuasive reasons why an outdated provision set up in the 1980s is now putting at risk the ability of commercial public service broadcasters to invest in original UK content and should be repealed.

The fact is that when Section 73 of the Copyright, Designs and Patents Act was put in place in 1988, the world was a very different place. Britain was an analogue nation. The overriding policy priority was, quite rightly, to encourage competition to analogue PSBs. In effect, those broadcasters were forced through measures like Section 73 to subsidise new entries to the TV platform market. The policy has been a great success. We have one of the most competitive media markets in the world at all levels: channels, production and TV distribution. But the provision has done its job. In a globalising internet age, subsidising nascent competition is not the issue. What matters now is maximising investment in original UK TV content to the benefit of viewers and the UK creative economy.

The PSBs invest around £3 billion a year in original UK content. ITV itself invests around £1 billion a year in programming, the vast majority of which is made up of original UK content. Ofcom has pointed out that the PSBs still account for the vast majority of investment in new programming. But to keep on making world-class content available universally and for free depends on the ability to make a commercial return on successful investment, hence the need to repeal Section 73. Successor legislation in the form of the “must offer” provisions in the Communications Act 2003, which is already in the PSB licences, already exists.

I am pleased that the Government recognise the importance of the issue and have promised a review to address it. Indeed, on 15 January the Secretary of State promised in the Commons that we could expect a consultation within weeks, but we have not yet seen much evidence of that. For many in this House, this is a hugely important issue and we are concerned about the lack of information available. I therefore ask the Minister if he can today provide me and other noble Lords who care deeply about this important matter with more detail on the review. Can he tell us when we might expect the review to start and to conclude? When time is of the essence, I cannot be the only one wondering if the consultation will be launched before the election. Can he outline what we can expect the review to cover and the range of issues it will include? I would also welcome more detail on what questions are likely to be asked and what the terms of reference might be. Just as important is that he should indicate what he expects will happen to the findings of the review.

The noble Lord, Lord Grade, who sadly is not in his place, said that from what he had read in the newspapers, he had perceived a slight rumour about an election coming down the tracks, and clearly it is approaching fast. Can my noble friend outline the mechanism by which the Government plan to implement the recommendations of the review? I know that I am not the only one in the Chamber who is concerned that we should not lose momentum. I have therefore tabled this amendment, which is supported by many noble Lords. It does not pre-empt the findings of the review, but it would provide the Secretary of State with a mechanism to deal with the key issue before us: the repeal of Section 73. It would remove the need for primary legislation to repeal the section. Moreover, let us not forget that the European Union has started infringement proceedings against the Government on Section 73 as it believes that it is incompatible with EU law. The amendment would provide whoever is in power after May this year with a safety net by putting in place a mechanism to repeal the section.

I wonder whether my noble friend can go on to explain in his response why the consultation and the review also plan to look at whether other regulation around the PSB system on issues such as prominence is necessary. Electronic programme guide prominence not only ensures that people can actually find the public service content we require our PSBs to produce; it also enables those PSBs funded by commercial means to maximise viewing figures and thus maximise the value of the advertising they sell. It seems very odd to me that the Government would consider a key pillar of the PSB system to be something which can somehow be traded away. Prominence is part of a compact we make with the PSBs. Our commercial PSBs have all agreed fairly recently to new 10-year licences with Ofcom on the basis that they would continue to receive this prominence. It is in exchange for prominence that they agree to the public service obligations we place on them. If we are seeking to deregulate and remove this prominence, are we also seeking to get rid of public service content?

My noble friend Lord Grade outlined in Committee that the pay-TV platforms are arguing that if retransmission fees are introduced, the appropriate prominence regime for the PSBs on electronic programme guides should be abolished and they should be free to charge the full market rate to PSBs. In the light of what I have said, this is clearly a diversionary tactic and an attempt to deconstruct the whole of the public service broadcast regime. I hope that the Government have not been gulled by that approach.

I urge the Government to accept the amendment and, depending on the outcome of the review and/or the EU infringement proceedings, help to protect the television industry and the investment by PSBs in content. They should continue to invest in making the programmes that viewers love and of which of course this country is rightly proud. I beg to move.

[Lord Black of Brentwood (Con)]

My Lords, I support the amendment, and in doing so I draw attention to my various media interests as listed in the register. Like my noble friend Lord Clement-Jones, I believe that Section 73 of the Copyright, Designs and Patents Act 1988 is an outdated piece of legislation that was designed in a bygone age. As I said when we discussed this in Committee, we should always look very warily at legislation that binds the media that is 27 years old. When this legislation was put on to the statute book, we were all still having difficulty getting photocopiers to work—mind you, I still have that sometimes—and the fax machine was something of a novelty. The world and technology have moved on, and above all the broadcasting industry has moved on, yet this legislation has not. It should. As the noble Lord said, it seems to be quite wrong that at a time when the commercial public sector broadcasters are under real pressure, as indeed is the newspaper industry, it is the cable platforms that are getting content for free and receiving huge benefits from retransmitting content without payment or licence.

Something is very wrong, which I suspect is why, as the noble Lord, Lord Clement-Jones, said, there was near unanimity of support and a clear cross-party consensus in Committee on this issue among Back-Bench Peers, many of whom are experts in the industry. I am rather used to being a lone voice when it comes to some media issues in this House, but on this occasion I am delighted that all of us agree that repealing Section 73 would help protect our commercial public service broadcasting industry and its investment in brilliant and original UK content and, indeed, in regional news. The creative industries across the UK would get a huge boost as a result.

15:00

As we have heard, in responding to the debate in Committee my noble friend the Minister pointed to the Government’s review of the wider television sector as a reason for not acting now. I can of course see the logic behind that but, like my noble friend, I would like to hear more detail about the shape of the review and how quickly it will be possible to bring forward measures to protect investment in content. In particular, we need reassurances that any review of this area will not get caught in the trap of conflating EPG prominence with the debate about payment for original content, as they are two entirely separate issues.

If my noble friend is in a position to do so, it would be useful to hear more about how these issues, including the importance of regional television news, are to be covered, including whether it will encompass online, which it clearly must do if it is to take account of the huge changes affecting the media. Above all, we need certainty about timing, because we cannot wait any longer for action. That is why I am very pleased to support the amendment. It does not seek to pre-empt the review, just to ensure that any recommendations to repeal the iniquitous Section 73 can be made swiftly.

It is, in the noble Lord’s phrase, a “safety net” to make sure that we are not still discussing this issue at the end of the next Parliament but are taking action at the start of it. I therefore urge my noble friend to accept this amendment, which will be good for the UK’s creative industries, good for regional television news and, above all, good for the viewers.

[Lord Dubs (Lab)]

I rise to give my wholehearted support to this amendment and very much endorse the views that have been expressed so far. We had a pretty good debate on this in Committee, where there was a universal feeling from all sides of the House that this change had to take place. We were held up because the Minister said that there was going to be a review. Looking at what the Minister said on that occasion and at the wording of this amendment, I would have thought that this amendment very closely reflects what the Minister had in mind when he spoke to us. That was certainly the intention in the drafting of this amendment. I do not know what the Minister is going to say, but I would have thought that he would have a job not to accept it. All we have done is save him and his officials a lot of work in drafting an amendment. He has it there on a plate, and all he has to do is to say, “Yes, that’s good”. That might happen. It has happened before, if not very often. It is a challenge to him.

Of course, we all want to support our creative industries. Although times have been bad for television, and television advertising has gone through a difficult phase, at the moment it is doing a little better—ITV and Channel 4 have certainly been doing better, I believe. However, that is not necessarily a permanent state of affairs, and it is very likely, with increased competition, the new electronic media and so on, that companies such as ITV will find it tough. It is even tougher if they have to compete where there is no level playing field. To put it this way, they are not able to negotiate or compete at all; they simply have constraints imposed upon them. We have a situation where the commercial public service broadcasters subsidise the pay TV platforms. It is absolutely preposterous. Although it is alleged that the Labour Party is not in favour of business and competition, we are, and this is one example of how we are. It is very clear that this is a constraint on competition, and an outdated constraint as well—one, as the noble Lord, Lord Black, said, appropriate to a “bygone age”. We have all moved forward a great deal.

The Government have sort of announced a review, which I very much hope will be fully compatible with the amendment that we have put forward. After all, it has taken nearly six months from the Minister saying there was going to be a review to getting here today, and we still have not had much sign of it, so it is a fairly slow process. We are anxious to make progress and do not want the general election to be an excuse for delaying things. We believe that an amendment such as the one we have down would enable progress to be made in the review, so that the election does not delay things and so that, whichever party or combination of parties triumphs in the election, there will be a seamless move forward.

In moving the amendment, the noble Lord, Lord Clement-Jones, asked a number of questions, which I do not want to repeat. However, it would be useful to learn a little more about the timing of the review: when it will start and how long it is likely to take. What we do not want is for this issue to be put into the long grass. There is always a fear that when Ministers announce a review, it is a way of saying, “Let’s get this out of the way. We can deal with it some time in the future”. Let us not look at it that way. The benefit of this amendment is that there is no need for further primary legislation—it can just happen.

It is very unusual for Back-Benchers in either House of Parliament to say, “Don’t worry about legislation, just take the powers and do it”, but here is a case where we are doing it, because we believe there is widespread agreement on the anomaly that we want to deal with and that waiting for further primary legislation would simply delay things. We do not want to delay things. We think we should move forward, and move forward quickly.

[Viscount Colville of Culross (CB)]

I rise to support the amendment of the noble Lord, Lord Clement-Jones, and declare an interest as a producer at the BBC. The pay TV platforms already pay to transmit the digital channels from ITV, Channel 4 and Channel 5, so what can their objection be to adding the main channels of ITV1, Channel 4 and Channel 5? They say that the transmission fees would represent a double tax for consumers, but in the case of the commercial PSBs at least this is obviously untrue. Viewers do not pay to watch the commercial PSBs, but they have a news and current affairs obligation, which costs ITV, for example, at least £100 million a year. All that could benefit from the extra revenue provided by the new fees, which is what we have seen happen to channels in America.

There have also been scare stories from Virgin Media saying that full-blooded commercial negotiation could led to blackouts, with PSBs removing their channels from the platforms. This may have happened in the US, but it is not being threatened by the PSBs in this country, and it is clearly an absurd allegation as the commercial PSBs are legally committed to put their main channels on the digital platforms as part of their licence agreements. I agree, of course, with noble Lords who want the Minister to elucidate the timeframe and the terms of the review. When it is completed, the recommendations should not be put on the back burner.

The introduction of retransmission fees will allow PSBs to maximise investment in UK-produced programmes, so that we can build on the world-beating programmes that we all enjoy so very much.

[Baroness Ford (Non-Afl)]

My Lords, I also rise to support the amendment, and in so doing declare a very particular interest as chairman of a public service broadcaster, STV. We are on Report and had a very full debate on this issue in Committee where, as the noble Lord, Lord Black, said, there was very little between any of us in understanding and appreciating the issues in front of us. I do not think there is any issue with saying that the original legislation is very out of date. It is not just the pay TV platforms that are benefiting from this; every day, new online content creators and online aggregators also benefit hugely from public service investment in all this. There is no doubt or dispute that the regulations are massively out of date, and the debate on the iniquitous nature of the investment in public service broadcasting has been very well rehearsed.

My concern really is that the Government have a complete open goal here and have had it for quite some time. The Deregulation Bill, as we said in Committee, is a perfect vehicle for dealing with this as removing “unnecessary and outdated regulation” is exactly what it was set up to do. This is outdated and unnecessary regulation. However, the Government have chosen to go down the route of a consultation instead of taking the open goal in front of them. This consultation has now been very widely trailed over many months. At the Royal Television Society conference in early September, the Secretary of State said that now is the time to reconsider all the regulation around broadcasting. He signalled very strongly to the audience that day that the consultation was pretty imminent. That was September. We have managed to have a consultation—the Smith commission—on new powers for Scotland. We have managed to negotiate all that in that time, yet we have not managed to even get out of the blocks on a consultation on deregulation of this section. It is pathetic, quite frankly.

The amendment in the name of the noble Lord, Lord Clement-Jones, is excellent. It is simply belt and braces. There is no reason why the Government cannot accept it. But if for some reason the Minister is going to tell us that he cannot accept it and that there are sensible reasons for that, I would really like the House and the whole industry to hear, on the record, the timescale for this, because, as the noble Lord, Lord Dubs, said, there is a strong whiff of kicking this into the long grass.

The question of the general election is a complete red herring. This ought not to be a party-political matter. Losing hundreds of millions of pounds of income out of this country every single year instead of retaining that investment in the country and reinvesting it into the creative industries ought not to be an issue between any of the political parties. It should be a no-brainer. I do not understand why the general election should even be a feature in thinking about the timescale for this. I would really like the Minister to give us some very clear assurances about the Government’s intention and the timescale that they are going to adopt here.

[Lord Skelmersdale (Con)]

My Lords, I am the first to agree with my noble friend Lord Clement-Jones that this review is, if anything, overdue and that it is quite wrong for the public sector broadcasters to be subsidising cable operators in this way. But what I find absolutely fascinating is that the debate on Clause 64 hinged on the Government putting the cart before the force. Now my noble friend is putting exactly the opposite thought forward, and I would be grateful if, when he winds up on the amendment, he would explain why.

[Baroness Howe of Idlicote (CB)]

My Lords, I very much support the amendment. There is a clear case for removing a superfluous piece of legislation such as Section 73, which is causing demonstrable damage to the public service broadcasting system and leaking value each and every day. Deregulation to remove harmful out-of-date legislation makes sense and is the point of the Bill, but I do not think anyone can sensibly argue that the prominence we give to public service broadcasters is damaging or harmful or needs deregulating. Put simply, what is the point of public service content if it is not discoverable?

Prominence enables huge levels of investment in original UK content by our public service broadcasters each and every year. Prominence is a key pillar of the PSB system and removing it or even watering it down would be nothing short of a death knell for public service content in this country. Prominence not only ensures that people can actually find the public service content we require our PSBs to produce, but it enables the PSBs that are funded by commercial means to maximise viewing figures and therefore maximise the value of the advertising they sell. This is what enables them to pay for what is often loss-leading content, such as impartial news and current affairs coverage, which we as a society have deemed important and require them to produce because the market simply would not produce this kind of content by itself. I very much hope that the amendment will be accepted, and I support it.

15:14

[Lord Gordon of Strathblane (Lab)]

My Lords, I, too, support the amendment. I echo the comments of the noble Baroness, Lady Howe, that platform owners and content providers actually depend on each other. The content provider needs the platform owner to disseminate the product. Equally, the platform owner needs content to make his platform in any way relevant. It is worth recalling that many years ago the old British Broadcasting Company, as it was first known, was formed by radio manufacturers who realised that nobody was ever going to use this new device called a radio unless there was some content to listen to. So they set up the British Broadcasting Company, which Lord Reith transformed into the BBC as we know it today. There is a mutual dependency.

I suppose the object of any legislation on this subject will be to try to mimic as far as possible what a free market would deliver. If I am the content provider and the noble Lord, Lord Clement-Jones, is the platform owner, clearly I need to pay him something for carrying my product; equally, he needs to pay me something for having that product, and we will strike a deal. That deal is going to be modified. First of all, the role of Parliament here is to set the rules by which both sides are going to operate. If we say, for example, that I as a content provider must offer it to him, it weakens my bargaining position. Equally, if we say to him that he must carry it, it weakens his bargaining position.

The public service broadcasters may have to face up to the fact that the price they will get for the product will be somewhat lower than what a free market might deliver simply because the platform owner will be obliged to take it—unless, of course, the Government are contemplating making it no longer obligatory for platform owners to carry public service content. If that rule were taken away, public service content would stand or fall on its own merits and attract a much higher price—or no price at all if somebody decided to run a channel without the BBC, which I think would be rather risky if we look at the viewing figures.

We have a role first of all in deciding what the overall environment is going to be. There is going to be a degree of regulation because even the most free market-orientated of us recognise that there is a public interest here in making sure that public service content is universally available, which in some areas will mean using platforms that otherwise are of very little relevance. Equally, if the platform owner is going to be required to take that content, it will reduce the price it pays for it but there still will be a price. At the moment the transfer of resources from public service broadcasting to platform owners is wholly inappropriate and I hope the Government will address it urgently.

[Lord Storey (LD)]

My Lords, I, too, support the amendment. With the UK now the second largest exporter of television programmes, the commercial PSBs’ investment in content is part of the engine of the UK TV content market, driving the independent production sector and playing a critical role in supporting the rich talent pool, both on- and off-screen, across the UK, including the north-west, where I live.

UK programmes are not only hugely popular with UK viewers but have global appeal. These programmes demonstrate that the commercial PSBs are not only producing high-quality entertainment for viewers in the UK, free at the point of use, but producing a highly valued product that can be exported around the world and contribute to the growth of the creative industries, including in the regions, such as mine of the north-west. To be able to continue making these programmes, the commercial PSBs need to make a return on successful content investment, which my noble friends have clearly demonstrated that Section 73 is undermining.

Many noble Lords have referenced the Ofcom figures that show that between 2004 and 2012 there was a significant real-terms decline in PSB investment in original new programmes of around £800 million, and that between 2007 and 2012 there was a 29% real-terms decline in PSB spend on original new drama programmes. We should be very concerned about these numbers. The drama figure in particular links directly to the impact of personal video recorders and ad-skipping.

As has been pointed out, the UK broadcast market is evolving very rapidly as technology changes and convergence continues, altering the economics of the industry fundamentally. Therefore, retaining legislation such as Section 73, which was designed for the challenges of an analogue era, makes little sense in today’s highly competitive global media market.

Section 73 does not support the growth of the UK’s international television sector. It is putting our commercial PSBs’ ability to compete in a global market at risk. Contrast this with the UK’s main competitor internationally, the USA, which has a system that provides a “retransmission consent scheme”, which means that free-to-air broadcasters in North America are paid for delivering content to competing platforms. These payments, which amounted to $3.3 billion in 2013—nearly 15% of total broadcast television revenue—have been crucial to the continued viability of television broadcasters, contributing significantly to the new “golden age of television” in the US. They also accounted for less than 3% of cable operators’ revenues and have had little or no impact on pay-TV prices.

These fees have helped to sustain programmes that could not otherwise be made, such as regional news. They have also helped free-to-air broadcasters secure rights to sporting events that would otherwise be shown on pay-TV channels and have helped, or are helping, with technological changes such as the move to HD television.

No two television markets are exactly the same, but it is instructive that our key rival in international TV markets is taking such a different approach to maximising investment in original TV content. It cannot be right that we hold on to a system that increasingly does the opposite, particularly given that it has long since achieved its policy objective.

Like many of my noble friends, I have been waiting to see what the Government propose to examine with their intended consultation and, like them, I have been waiting some time to see when the proposed review will be published. I am also eager to know whether the recommendations that result from this consultation have any chance of being implemented. How will the Government ensure that this does not become just another issue kicked into the long grass as part of a consultation doomed never to see the light of day again, with commercial PSBs’ investment being put at risk all the while?

Section 73 has been discussed in detail as the Bill has progressed through Parliament, and I welcome this sensible amendment that would ensure that the Secretary of State has the power to repeal the whole of Section 73 without primary legislation. It seems a sensible solution that would not pre-empt the findings of the review yet would still mean that action could be taken at the earliest possible opportunity.

[Baroness Warnock (CB)]

My Lords, there could hardly be a more learned, well informed set of people than those of your Lordships who have spoken up till now. My connection with commercial television ended in 1980. The amendment before us sets right what was put wrong then. It was put wrong largely out of prejudice against the commercial sector and a failure to believe in the public service broadcasting demands that were even then made on commercial television, which were often regarded with suspicion. It seems to me well beyond the time when this amendment should be accepted. The thought that we have to wait still longer for a review, the contents of which we do not know, is quite absurd. I urge the Government to accept the amendment here and now.

[Lord Stevenson of Balmacara (Lab)]

My Lords, once again, we have had a very good discussion about this topic. Although much stress was placed on the unanimity of view last time, I seem to recall myself being somewhat isolated and not in favour of what was proposed. I plead on this that I was simply arguing for good governance and not for a radical change in approach, because I share many of the views that have been expressed today. I simply think that the complexity of the matter is undervalued. The technological changes and all the other things that people are asserting without much evidence need to be tested by proper evidence-gathering and a proper report.

Like other noble Lords, I think that the way forward is to do something with Section 73 of the Copyright, Designs and Patents Act. There is some obvious logic in having the primary legislation already banked in order that it can be implemented when the time comes, but the right process would be to carry out the review to be absolutely certain that the complexities which are present are properly analysed, that the regulatory structure—in so far as it can be—is made future-proof, and that we come forward with a proposal in a coherent and proper way. I hope that the Minister will be able to shed light on the complicated manoeuvrings that are going on behind the scenes but have yet to see the light of day.

[Lord Gardiner of Kimble (Con)]

My Lords, I am most grateful to my noble friend for his amendment. We certainly missed him in Committee, when we had an excellent debate—and we have had a similarly excellent debate today.

The amendment would create the power for the Secretary of State to repeal in whole or in part Section 73 of the Copyright, Designs and Patents Act 1988. Section 73 permits the retransmission, on cable, of the main PSB channels by providing that the copyright in the broadcast is not infringed by such retransmission. The resulting effect of Section 73 is that public service broadcasters are not able to charge cable operators for the retransmission of their services. This is clearly an area where many competing interests, particularly those of broadcasters, platforms and viewers, must in some way be balanced.

The Government’s approach is not to abolish Section 73 without exploring these interactions within the wider framework of regulation that impacts the balance of payments between platforms and PSBs. As has already been mentioned today, the Culture Secretary announced last October that the Government were looking at whether the time was right to remove Section 73 of the 1988 Act, which could allow PSBs to invest more in high-quality content.

Our view is that, rather than doing so in isolation, we need to look at this in the wider context, examining the framework of regulation that governs the balance of payments between broadcasters and platforms. I have heard it said in my short time in your Lordships’ House that when the two Front Benches agree, we are into very difficult territory—but this is an area of complexity that we need to look at properly.

We are very sympathetic—I emphasise, very sympathetic—with the aim of this amendment, which seeks to give Ministers the power to repeal Section 73 following consultations, but our view is that it would not give us all the powers necessary to repeal it fully. As I think everyone accepts, Section 73 does not exist in isolation. It underpins complex commercial arrangements between the cable operator Virgin and the public service broadcasters. We need to consider carefully what the impact of the repeal would be on these existing arrangements and consider what consequential and/or transitional provision would be needed when repealing Section 73. Parliamentary counsel advised that the amendment as drafted does not give Ministers the powers to make such a provision.

The Government intend to consult shortly. I fully understand the impatience, frustration and perhaps more than that, which many of your Lordships have expressed. I want to take this opportunity to run through the detail that I have available to me. I do not have all the answers, but I would like to explain the following. Part of this issue has been complicated by the Court of Appeal case, and we still await the judgment. But my understanding is that the consultation will definitely be before the election; in fact, we are proposing for it to be launched in a week or so. I understand that it will take eight to 12 weeks to complete, and then it will have to be assessed. I will make sure that all noble Lords who have spoken in this debate receive a copy of the consultation document so that it is available immediately.

It will be a broad consultation on the whole infrastructure, obviously including Section 73. However, it is important that Parliament has evidence of what may be the unforeseen consequences: for example, with arrangements for addressing areas that are difficult to broadcast to, such as houses in very steep valleys. As with all these things, it is the unintended consequences for the viewer that we need to watch out for.

I understand my noble friend’s frustration and am sure that in his winding up remarks he will stress that he does not think that the Government have acted as expeditiously as he would like. However, it is important that we make sure we get this right. As I said, we could not accept this amendment in any event because it is defective so far as parliamentary counsel is concerned. Our proposal is that we will consult—as I said—and then bring forward legislation to repeal Section 73 once the process and all the permutations and unforeseen circumstances that there potentially may be have been properly addressed. It is for those reasons and not for reasons of delay or lack of concern that I ask my noble friend to withdraw his amendment.

15:30

[Lord Clement-Jones]

My Lords, first, I thank noble Lords all around the House for their very strong support for this amendment. We heard a great deal of experience and understanding of the industry and the issues involved, and some very cogent arguments as to why this review is extremely important and indeed urgent, and why a mechanism is needed by which the review recommendations when they come out can be implemented quickly.

It is not quite a Damascene conversion from the Opposition Front Bench, but certainly there was an indication of some wavering there. Whatever it was, it was appreciated. Also, I thought that “banking the primary legislation” was a good phrase, because that is entirely the intention of this amendment. The only area of suspicion was exactly as my noble friend the Minister indicated: when both Front Benches agree that a matter is complex, we are in very dangerous territory indeed.

The absolute essence of this, agreed upon by virtually every speaker, was the need to pursue this matter with vigour. It is not party political. The noble Baroness, Lady Ford, had it absolutely right. This is a matter for forensic inquiry into the best way of stimulating investment in the industry. In response to the noble Lord, Lord Skelmersdale, the reason for wanting a mechanism in place before the review comes to a conclusion is because speed is of the essence.

It is not often that Ministers pray in aid parliamentary counsel’s views in opposition to an amendment. I am deeply admiring of the fact that parliamentary counsel had time to cast his eye over my humble amendment. Clearly, there is further work is to be done on it.

I do not think that the Minister really answered a number of issues in his reply. I understand that he does not have a great deal of detail about the review or its terms of reference. We heard about the timescale and I am grateful for that, but really, considering that the review was announced some months ago, we should have had a great deal more progress made on this. We should have an answer as to why the whole EPG prominence issue has been included in this. The noble Lord, Lord Gordon, had it absolutely right in terms of the interdependence of the content providers and platforms. It is extremely important in this day and age as convergence takes place that we set the rules very clearly. There is a problem of declining investment in programme content by PSBs, as my noble friend Lord Storey mentioned; it is a real worry.

The Minister said that my amendment would not give the necessary powers, and I must accept that. The weight of parliamentary counsel coming down against it is like Ministers saying there are technical flaws in one’s amendment. I would dearly love to have an all-powerful amendment to put before the Minister. Perhaps—who knows?—that might be forthcoming at some stage.

The Minister promised a broad consultation, which is probably a matter of concern rather than reassurance. I hope that he is aware that the intent behind this amendment was either to get him to agree to it—which of course he has not—or to get satisfactory assurances from him about the progress of the review. Sadly, I appear to have failed on both counts. The phrases most commonly used throughout this debate by all noble Lords were “long grass” and “back burner”, while “red herring” was also mentioned. Although I will withdraw the amendment, I do so without feeling too assured of the current state of play. I was very pleased to hear that the Minister will keep us in touch with the start date of this great review, and that it will take eight to 12 weeks, and I hope that we will make rather better progress than we have done to date. In the mean time, I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Amendment 29

Moved by

[Lord Clement-Jones]

29: After Clause 64, insert the following new Clause—
“Busking deregulation
(1) Omit paragraph 14 of section 54 of the Metropolitan Police Act 1839 (penalty on persons committing in thoroughfares the offences herein mentioned).
(2) Omit sections 32 to 44 of the London Local Authorities Act 2000.”

[Lord Clement-Jones]

My Lords, it is just the stroke of fate that means the House must hear another amendment from me straight after the previous one, but I am sure noble Lords never get bored of hearing about busking and the issues surrounding it. I very much hope that we have some aficionados around the House who will support my amendment.

I am sorry that I was not able to be present in Committee for the equivalent amendment moved at that time. However, my noble friend Lord Stoneham very ably put the case there and I am extremely grateful to him for doing so. He emphasised that busking is an essential part of London’s street culture. My noble friend Lord Gardiner of Kimble, too, in response said:

“The Government are clear that busking can enrich a community’s quality of life and generate a positive atmosphere enjoyed by many people”.

He also said:

“The Government do not start from the position that busking requires regulation and control. Busking should be about freedom of the individual, and only if necessary should local action be taken to curb certain excesses”.—[Official Report, 11/11/14; cols. GC 46-7.]

My starting point today is precisely from those words. My aim is to show not only that across the UK are many voluntary schemes coming into effect to promote and ensure that there is a thriving and popular busking scene but that, particularly in London, there are myriad ways of tackling noise and other nuisance if necessary other than by introducing repressive local authority licensing schemes under the 2000 Act, or using outdated legislation in London under a 170 year- old Metropolitan Police Act.

In Liverpool, York and many other cities, voluntary codes have been or are being agreed which obviate the need for licensing. Following work by the mayor’s busking task force and drawing inspiration in particular from Liverpool’s experience, Busk in London has been created. It is organising National Busking Day in July and a young buskers’ competition. With the MU and others, it is co-ordinating agreement across the London boroughs on a new busking code and voluntary online registration as the way forward in London. That will be launched on 18 March and celebrated on National Busking Day.

I hope my noble friend will agree that the aim must be to minimise the amount of regulation surrounding the performance of live music and continue the work begun with the Live Music Act 2012. I am sure that this voluntary action will demonstrate, as it has in Liverpool, that we can encourage appropriate busking without a cumbersome licensing system and only relying on statutory powers inter alia against noise, nuisance, obstruction and vagrancy as a backstop against those who do not stick within acceptable boundaries.

However, as my noble friend said in Committee:

“Regrettably, though, street entertainment can sometimes be a source of conflict between buskers, businesses and residents. Complaints of noise, nuisance and anti-social behaviour can arise, and police and local councils have to respond and try to find solutions”.—[Official Report, 11/11/14; col. GC 46.]

In response, some councils and the police have actively used inappropriate or archaic legislation to discourage busking in a disproportionate way. My noble friend Lord Stoneham gave the example of the London Borough of Camden using Part 5 of the London Local Authorities Act to ban street music at any time, amplified or unamplified, except through a special busking licence. Breach carries a fine of up to £1,000. Again, in Committee, my noble friend Lord Gardiner said:

“If we were to accept the amendment, the Government would indeed be saying that London councils should not have the option to decide whether or not to license busking based on local circumstances. Indeed, we feel that this is not a subject for top-down government solutions; it is for local authorities to determine fair, reasonable and transparent policies in relation to managing our streets”.—[Official Report, 11/11/14; col. GC 47.]

Why not? The Licensing Acts regulate the parameters of action for local authorities. Those powers are not held by any other locality. Why should London be the exception?

The amendment would also remove Section 54(14) of the Metropolitan Police Act 1839. My noble friend Lord Stoneham reminded us of the experience of the King’s Parade, the winners of the mayor’s busking competition, Gigs, who were busking in Leicester Square and were bundled into a van by eight officers and held at Paddington police station for more than six hours. The Minister said that although Section 54(14) is rarely used, the Metropolitan Police need to retain the provision to give their officers the tactical option of dealing with what they call busking-related offences. What are they? Are we talking of three-card trick artists on Westminster Bridge or pickpockets in Covent Garden—that is, activities totally irrelevant to legitimate busking? Does that not show a completely false understanding by the Metropolitan Police of what busking is?

I was struck by and grateful for what my noble friend Lord Paddick, who has great experience of London policing, said. He said:

“My Lords, as a former Metropolitan Police officer of 30 years’ experience, I cannot think of any offence that a busker might commit that is not covered by other legislation or requires the use of the Metropolitan Police Act”.—[Official Report, 11/11/14; col. GC 47.]

There are effective solutions and adequate powers that are proportional to deal with noise nuisance and other problems to which busking occasionally gives rise. Busk in London plans to work with the local authority noise and licensing teams in London to ensure that we bust any myths about current legislation not being usable against problem buskers. The Environmental Protection Act 1990 enables councils to issue noise abatement notices against buskers who cause noise nuisance. A breach of a Section 80 notice carries heavy fines and allows a local authority to seize and confiscate instruments and equipment. Section 80 notices can also be issued pre-emptively if it is likely that a busker will cause a noise nuisance. There are many examples—in Cardiff, Boston, Oxford and Newcastle—of the EPA and noise abatement notices being successfully used against problem buskers. The EPA is flexible enough to impose conditions on buskers who have caused issues, and able to deal successfully with complaints about a busker while allowing him to play for agreed intervals.

Likewise, I could take the House through the extensive powers available to deal with obstruction, illegal street trading, begging and other problems. In passing, I should say that, sadly, there are new powers under the Anti-social Behaviour, Crime and Policing Act 2014, which came into force last year, which could be used in a heavy-handed way. The new community protection notices and public space protection orders create new powers that could be used disproportionately and pre-emptively by local authorities. I have an Oral Question about the use of those powers against busking to be debated soon, so I will not pursue the matter today, except to say that it appears that Canterbury is already invoking them and Bath may be about to.

I hope that the Minister will applaud the initiatives that are taking place in London and elsewhere in our major cities to promote busking and encourage it as an art form, but I also hope that he will accept that there is quite enough general legislation to deal with noisy busking without specific legislation for London. There are quite enough powers in existence to ensure that nuisance busking can be prevented without having to keep Part 5 of the 2000 Act or Section 54(14) of the Metropolitan Police Act 1839. I beg to move.

15:45

[The Earl of Clancarty (CB)]

My Lords, I certainly support the amendment of the noble Lord, Lord Clement-Jones, to repeal this legislation and agree with everything he said. The point about those two sets of legislation, one old and one much more recent, is that they are blunt instruments that deliberately set out to penalise buskers and therefore—this is an important point—do not get to the bottom of what the problem or complaint against them might be, or whether there is one.

The licensing of buskers in London allowed by the second piece of legislation referenced in the amendment, Part V of the London Local Authorities Act 2000, is an extremely unsatisfactory solution all round, and the introduction of licences in Camden was a knee-jerk reaction to complaints. The licences are expensive and there is the threat of heavy penalties and the power forcibly to sell off instruments, but buskers move around the country and it should be a reasonable assumption that they can expect the same measure of treatment wherever they are, as there ought to be similar expectations of their behaviour wherever they are in the country.

Last year, in an article in the Guardian, Munira Mirza, deputy mayor of London for education and culture said:

“A myriad of regulations in different parts of the city are causing confusion. Some local authorities are imposing licensing fees which can make it prohibitive for many musicians … Busking is a crucial part of the music eco-system in the capital; a chance to develop and grow in front of the public”.

I hope that the Minister will agree that the solution to that is not catch-all legislation but guidelines produced on the ground as a result of sensitive investigations between buskers, councillors and local people. Jonny Walker, the busker who heads up the Keep Streets Live! campaign, has done a lot of work on that—successfully with Liverpool and he is now working with Canterbury and elsewhere.

The GLA is now producing its own guidelines, with input from Jonny Walker, and it would probably be helpful if the Minister, if he has not already had a preview, were to see the guidelines when they are ready. I say that in part because the proper overall solution is national guidelines, so that every busker and member of the public knows where they stand, wherever they are in the country.

Of course, buskers have responsibilities, just like any user of or participant in public space, but legislation already exists to deal with specifics—as the GLA guidelines make clear, and the noble Lord, Lord Clement-Jones, has described in detail. That is what should be used as back-up, not this heavy-handed legislation which goes in all guns blazing. The question of the quality of buskers should not be an issue. We have all heard some who are pretty dire and then we hear some who are amazing, and many who are in-between. The issue is, rather, about public space being used as it is intended to be used—which is, to spell it out, as public space—and spontaneous music should be a part of that.

In this context, I remind the House of the long debates it had a year ago on the amendment of the noble Lord, Lord Dear, to the Anti-social Behaviour, Crime and Policing Bill, which is now of course an Act. It carefully drew the line between nuisance and annoyance, with music made in streets and parks being cited as an example that is perhaps annoying to some, but not to all. I am not necessarily saying that that legislation is appropriate to be used for buskers either, if it becomes another knee-jerk threat that precedes the use of guidance. Public space is an important aspect of our democracy. How sensitively we negotiate that space is a mark of how democratic our solutions will be.

[Lord Deben (Con)]

My Lords, there have been moments during the debates on this Deregulation Bill when I have been forced to ask the Government why on earth they are bothering to get rid of some bits and pieces when they will not have any effect at all. That is why I find myself particularly encouraged by the amendment here.

We can draw the sort of people who do not like busking very simply: they are general kill-joys. I have always thought that life is divided between those who are life enhancers and those who are life destroyers. One of the problems is that many life destroyers are worthy, honourable and decent members of society, but they are deeply boring and therefore entirely to be opposed. My problem with this amendment is that it does not go far enough. It is a disgrace that there are so many bits from Acts which can be used against buskers by local authorities and by the Metropolitan Police.

I draw my noble friend’s attention to the phrase “busking-related offences”. I have spent some time, since we last discussed this, trying to imagine an offence which was busking related and not an offence in any other way. I am quite an imaginative person and I do not have too pure a mind but, even putting those two things together, I have so far been unable to discover any offence which is both busking related and not covered by something else in the statute. To go back to “So who said it?”, I may now say something which many will object to, for it was said by the police —well, they would, would they not? The Metropolitan Police always have a reason for leaving any way which enables them to do what they want.

I spent hours and hours discussing the simple business of applying to the space outside your Lordships’ House the same rules as were applied by the House of Commons to the space outside it. I cannot tell your Lordships how much of that time was made up of people explaining why it was utterly impossible, and would probably cause the collapse of western civilisation, that the extent from one to the other should be done. I know that it has been a mere six or nine months since we passed that provision, but I have not noticed any real effect of the kind of major disaster since that small change. I feel that we are in the same position here. I do not know why we should have this. Indeed, because we have been over this before, in the previous debates I thought that there was no reasonable explanation as to why these two provisions should not be removed. I say to my noble friend—and he is indeed a friend—that, to dissuade us from this amendment, the following proof has to be shown.

First, it has to be shown that there is something in the presence of these provisions in the law which is unique. It should be different and cover something which nothing else covers. If we cannot prove that first thing, then of its nature the Deregulation Bill says that we should get rid of it. That is why we have a Deregulation Bill. It is what the Government have been wittering on about: how we have got to have deregulation because there are too many regulations. However, if this is a regulation that shall be kept, it must be seen to cover something which nothing else covers.

Secondly, it must be shown to cover it appropriately: in other words, not to give powers to the police, or to the miserable local authorities such as Camden, which will be misused either in an excess of energy, as certainly took place when people were bundled into a police van in Leicester Square, or by a determination to respond to any complaint, however pathetic, of the kind which explains Camden’s treatment of buskers. It has to be necessary and appropriate.

Lastly, it seems to me—and I hope that my noble friend will be able to explain this, too—that it has to be relevant to today. Many things which were appropriate to yesterday we would today find unacceptable. London is the greatest city in the world. It is the only “world city” and we are immensely lucky to live in this great city. We should be thrilled every day about London, but it is like that because of its variety and difference—its mix of different races and communities, and the like. It is the great triumph of immigration. When people talk about immigration, I tell them to come to London and see what immigration can do to a great city. It is a thrill to be here. In those circumstances, though, this great centre in the European Union—its capital, in many ways—needs as much busking as possible. There are some miserable places where more buskers would cheer us enormously. Anything that inhibits busking unnecessarily seems to be not of our day, and not of today’s London. The idea that buskers should find it more difficult in London than they do in Liverpool seems to be manifestly barmy.

I hope that my noble friend can rise to the occasion and, if he cannot answer those three things, say that he will take this away and get rid of the nonsense.

[Lord Stevenson of Balmacara (Lab)]

It is really unfortunate to have drawn the straw following that contribution. The noble Lord has spoilt my day, but that was a very nice way of doing it; I thank him very much.

I was going to start with a little riff on why the true author of this amendment was being withheld from us, as the noble Lord, Lord Clement-Jones, mentioned that he had not been able to be in Committee. It is an irony beyond irony that the first amendment in his name was the rather beautifully named “parasitic packaging” amendment, for which he produced a parasitic package—the noble Lord, Lord Stoneham, who not only replicated every word and phrase that the noble Lord, Lord Clement-Jones, would have used but did so in such a brilliant and concise way that he immediately won the hearts of all of us in Committee. We welcomed back the noble Lord, Lord Stoneham, for round two, on the amendment to remove Section 73, which was not quite so successful but was pretty good, and then he went on to busking. Busking was a tour de force; it was almost as good as what we have just heard from the noble Lord, Lord Deben, because he listed every one of the blooming regulations—I think there were 11 of them—that we are told are inhibiting busking in our greatest world city. I have to say to him, though, that he had obviously missed three because the noble Lord, Lord Clement-Jones, has now done even more research and produced another few that he has added to the list.

I absolutely buy what the noble Lord, Lord Deben is selling today, that this is a ridiculous farrago of regulation that needs to be sorted out. There has to be some clarity about what the authorities want out of the regulations that they wish to put forward. There has to be some sense of equity between those who wish to perform and those who wish to listen, and the rights and responsibilities of neighbourhoods in terms of pollution and other things. There has to be the clarity of a single piece of legislation that everyone can refer to.

When the Minister responded in Committee, he used a ridiculous phrase, a chilling remark that I still sometimes wake up and think about in the middle of the night:

“the Metropolitan Police have a desire to retain necessary powers”.—[Official Report, 11/11/14; col. GC 48.]

Come on. It is so easy to say that, and so difficult to get up the energy to say, “Okay, let’s know what these things are”. What are these necessary powers, and what exactly is this desire that the police seem to bear in their corporate bosom to do something about those who wish to entertain and perform in a way that I would have thought to most people would be a very appropriate thing to do in such a major city?

It is up to the Minister to come back on this amendment. I hope that he can step up to the mark and give us a bravura performance, on whatever instrument he chooses, but he should pick up on one point that was raised in discussion in Committee by my noble friend Lord Rooker, who said that there is an obvious and clear remedy for this. The Law Commission exists to tidy up exactly this sort of arrangement, and the Minister said that he would go off and consult on whether it was the appropriate body. First, of course, he said that it was not the appropriate body, but then he was told in no uncertain terms—because that is what my noble friend does—that the commission does indeed look at these things; it is quite happy to update, refresh and reform legislation or regulation that needs it. Surely that is the way forward, and I look forward to hearing from the Minister—in music.

[Lord Gardiner of Kimble (Con)]

My Lords, I thank my noble friend for his amendment because it has precipitated a most enjoyable debate. As has been said, these matters were considered in Committee. I assure my noble friend that, following that debate, we have looked again at these issues even more thoroughly. However, I repeat my own sentiments from Committee: the Government are clear that live music and street entertainment play an important role in community life, and can generate a positive atmosphere that can be enjoyed by all. Indeed, only this morning a guitarist in Westminster station was doing precisely that. If I might digress and respond to my noble friend Lord Deben, my definition in life is “drains and radiators” as to how people perform in their lives.

The Government therefore do not start from the position that busking requires regulation and control. However, in our view it is important that backstops are in place on those rare occasions when an anti-social busker does not respond to requests from the police, or when other legislation, such as that relating to noise or anti-social behaviour, is found to be insufficient. It is in those circumstances that we believe the two pieces of legislation mentioned still have a role to play.

As I explained in Committee, the Metropolitan Police Service has advised that it still uses the powers under the 1839 Act for operational and tactical reasons. I am sure that I am not going to satisfy all my noble friend Lord Deben’s demands. I was most grateful to the noble Lord, Lord Stevenson, for mentioning the intervention from the noble Lord, Lord Rooker; that helpful intervention precipitated officials having detailed discussions with the Law Commission regarding Section 54 of the 1839 Act. The Law Commission has advised that it would be able to recommend repeal of a specific provision only if it appeared, following research and consultation, not to have any practical utility. In this case, the Law Commission has advised that it would be highly unlikely to recommend repeal in the face of sustained opposition from the police.

16:00

Going forward—because that is important too, obviously—as I explained in Committee, the Metropolitan Police has taken steps to ensure that its policing response is proportionate and that officers use their powers appropriately. Officers in the West End have been advised that they should not be proactively using the 1839 Act to deal with busking.

In terms of the London Local Authorities Act, we believe that local authorities are best placed to weigh up rights and freedoms for the communities and individuals in their area. However, I want to make quite clear that a council can introduce this licensing only if it has reason to believe that there is a problem as a result of busking. It is for local authorities to look at the local circumstances, decide whether there is a problem and then consider how to act. I particularly noted with interest my noble friend Lord Clement-Jones’s comments on the work under way in London, which I believe is in relation to a code of practice for buskers. That could be a very good way forward in maintaining good relations between those who busk, councils, the police, local businesses and residents. It shows—as the noble Earl, Lord Clancarty, said—a proper coming together so that, in practice, everyone can live agreeably side by side.

[Lord Deben]

I do not know whether my noble friend will understand this, but it is often difficult to know the division between Westminster and Camden and between Westminster and the Royal Borough of Kensington and Chelsea. Unless we have a London-wide agreement, it puts buskers in an extremely difficult position. I am sure that my noble friend, like me, has wrongly put money in a parking meter because different local authorities have different times for parking. Is it not sensible to say that if there are going to be special local authority arrangements, they should at least cover the whole of the central part of London so that people do not need to take a local authority map to discover that in Camden they would be arrested but in Westminster—a very good council—they would not?

[Lord Gardiner of Kimble]

That is extremely helpful of my noble friend as it allows me to reinforce the efforts of the excellent Mayor of London as the honest broker in trying to get a London-wide code of practice. I think that there have been very constructive discussions with local authorities. I am sure that my noble friend Lord Clement-Jones will have more detail on that than I do. However, I think that that is precisely the way forward that my noble friend Lord Deben would find most agreeable.

Busking is undoubtedly a legitimate activity which often contributes to the vibrancy of a local area, and, per se, we do not believe that it does need control. However, it is important that backstop powers are available for specific circumstances. I know that this will not suit many of my noble friends but I hope that I have explained our reasons. Picking up the suggestion made by the noble Lord, Lord Rooker, we have looked at this with the Law Commission. I hope that, on that basis, and for the other reasons I have given, my noble friend will feel able to withdraw his amendment.

[Lord Clement-Jones]

My Lords, we have had quite an interesting jam session on busking deregulation. I thank all speakers in the debate, starting with the noble Earl, Lord Clancarty. I am glad that he referred to Jonny Walker of the Keep Streets Live! campaign, who has been so instrumental in trying to get some sense into busking regulation and to get a code of conduct agreed in so many parts of the UK. He made some important points about the need for national guidelines, if possible, to create some coherence across the UK, and pointed out that local councils should not simply go in, in a knee-jerk way, with all guns blazing.

I very much thank the noble Lord, Lord Deben, who made a wonderful speech that was passionate, persuasive and, indeed, life enhancing. He was spot on about the London boroughs; they do vary in their attitudes. I was at a meeting yesterday morning with almost all the London boroughs, including Camden. Progress is being made on the creation of a Busk In London code. We hope that it will be launched with the consent of all the London boroughs on 18 March. The mayor has been absolutely instrumental in this; the use of his bully pulpit has been so helpful.

After hearing the speech of the noble Lord, Lord Deben, I thought that he had set my noble friend some pretty impossible tests—and indeed that was the case: I do not feel that my noble friend met those tests in his response. The noble Lord, Lord Deben, made one very provocative remark—thought it is not provocative on these Benches—when he described London as the capital of the European Union. I am sure that he will be challenged on that aspect of his speech.

I also thank the noble Lord, Lord Stevenson, for starting to make the constructive suggestion about the Law Commission; that is extremely important. The point is that we should be making the policy. I see the noble Lord, Lord Condon, in the Chamber. I am sure he was ruminating over the 1839 Act because I am sure he used it every day when he was a young constable. I doubt whether more than one in 20 police constables has a clue about the 1839 Act. It is produced for absolutely no purpose, in extremis, because a particular group of residents wants to see a result. It has been used totally inappropriately. I am afraid that, whenever it is used again, it will be used totally inappropriately, because there are many other powers.

I thank the Minister for some aspects of his response, in particular his positive approach. He says that busking plays an important role in our lives; that it generates a positive atmosphere; that we do not, per se, start on the basis that we must somehow control it; and that we need backstops. I want to see the end of these powers because they are not backstops, they are front-stops: in many cases, they absolutely stop busking unless it is licensed. That does not seem very satisfactory.

We have had a good debate. I hope the Law Commission will take this on. You can certainly count on the busking community, and the many who support them, to carry on and to try to get the culture of enforcement right. Enforcement should be undertaken only against inappropriate busking. We should allow busking that is musical and positive and that brings joy to our streets, particularly in London, so that they can flourish. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Amendment 29A

Moved by

[Lord Mancroft]

29A: After Clause 64, insert the following new Clause—
“Change in mandatory conditions of lottery operating licence
In section 99(2) of the Gambling Act 2005, after “at least 20% of the” insert “aggregate annual”.”

[Lord Mancroft (Con)]

My Lords, society lotteries constitute the smallest sector of the gambling industry. They predate the National Lottery by 20 years, and were set up on the recommendations of the Rothschild commission in 1968 under the Lotteries and Amusements Act 1976.

The legal structure of society lotteries, which ensures that lotteries can be run only by registered charities or non-profit-making sporting bodies, remains in place and is pretty much the same today. While the National Lottery, launched 20 years later, has performed an enormous and important role in providing very large sums of money for a variety of good causes, society lotteries play a small but vital role in providing direct funding for smaller charities, particularly local hospices throughout the United Kingdom. In 2012-13, society lotteries raised £155 million for charities. It is the only form of charity fundraising in Britain that has been on the increase since 2009.

Since 1976, there have been restrictions on the size of charity lotteries, in part for historic reasons, which my noble friend Lord Deben might describe as “not of this day”. The creation of the National Lottery in 1994 rendered those obsolete, but as a policy it has emerged subsequently—an unchallenged policy without any intellectual basis and no debate—that nothing should be allowed to compete against the National Lottery. The restrictions imposed in the 1976 Act have been substantively altered only once, in 1994, during the passage of the National Lottery legislation through your Lordships’ House, when your Lordships were kind enough to accept a number of amendments that I moved to protect charity lotteries from the overwhelming might of the National Lottery’s monopoly status. Your Lordships accepted those arguments then and I hope that they might do so again today.

In practice, the National Lottery has 96% of the lottery market, a virtual monopoly, while societies struggle on with about 4%. For some years there has been a debate over whether there should be any restrictions at all on society lotteries. After all, what reasonable Government would seek to put a restriction on a charity’s ability to raise funds? This question was examined in the Budd report, published in 2003 and which recommended that the restrictions be abolished. The joint scrutiny committee on the draft Bill that became the Gambling Act 2005, of which I was honoured to be a member, also looked at this question and came to the same unanimous opinion. Unfortunately, in the horse trading during the pre-election wash-up before the Bill hit the statute book, that reform was lost. The DCMS Select Committee in another place has looked at the matter in two separate reports, which both recommended, in two slightly different ways, a substantial relaxation. Both the previous Government and the present Government have promised consultations to find a way forward; neither consultation has been completed.

We know that there has only ever been one substantive objector to these proposals—and that, not surprisingly, has been Camelot, the operator of the National Lottery. Its objection very simply is on the basis that a relaxation of regulations would inevitably put at risk the success of the National Lottery, despite its 20-year hold over 96% of the market. Assuming that your Lordships do not wish today to debate the whole question of the monopoly status of the National Lottery, the secondary argument that removing these restrictions from society lotteries risks damaging the National Lottery is simply not supported by the evidence. What limited evidence there is from within the UK—and the extensive evidence from other jurisdictions around the world—shows clearly that a healthy secondary lottery market simply leads to a gentle expansion of the whole market. The growth of one does not threaten the other.

In Grand Committee, my noble friend deployed as his main argument that my amendments would threaten the National Lottery, which I hope that I have demonstrated is without basis. He also offered a secondary line of defence—that the Government intend to consult so as to review the evidence. I am all in favour of consultations, but they must be completed, and there needs to be some undertaking to act on the basis of the evidence that emerges. I say this because the Government have already undertaken a consultation process on this; that was two years ago, but it has never been completed. As I have said, the Budd report, the joint scrutiny committee report, two Select Committee reports and two aborted departmental consultations have all examined the evidence in the past few years and all come to approximately the same conclusion—and have promptly been ignored by the Government. So there is no point in having a consultation that has no conclusion or which the Government promptly ignore.

My Amendments 29A to 29D make four changes to the current regulations. In Grand Committee, those four changes were grouped together as one amendment, but I have separated them into their four component parts, for reasons that I shall explain. Currently, the law requires that 20% of the proceeds from each lottery is retained by the promoting charity for its charitable objectives, colloquially known as the “good causes”. My Amendment 29A would allow that 20% to be aggregated over a year so as to alleviate the start-up costs of the lottery, which often present a serious barrier to entry, particularly for smaller charities.

Amendment 29B increases the permitted pool size for each lottery run by a charity from a maximum of £4 million to £10 million. That amount has been increased only twice since 1994, during which time all other sectors of the gambling industry have benefited from triennial reviews, which society lotteries have repeatedly been promised by government but never given. By way of contrast, I remind your Lordships that the National Lottery sells around £100 million a week.

As for Amendment 29C, currently the law restricts the number of lottery tickets that a charity can sell in each year to the sum of £10 million. This is the most bizarre restriction of all. Effectively, it seeks to put a cap on the amount of money that a charity can raise in any one year by way of lottery. Why would any sane person want to do that? Who wants to stop a registered charity raising charitable funds? The answer is that no one knows.

16:15

I was engaged in the commercial operation of charity lotteries in the UK for 15 years. During all that time I asked every Minister and every official, first in the Home Office, later in the DCMS, in the old Gaming Board and in the new Gambling Commission, and nobody knew why this regulation was devised. The retired secretary of the Gaming Board believed that it had crept into the 1976 Act by mistake, and nobody knew why it was there so nobody dared take it out. Perhaps even more fascinating, it does not actually work. Even if, in a moment of madness, your Lordships decide that Parliament should maintain a limit on the funds a charity can raise, this regulation fails to achieve that objective because the Act allows a charity to register any number of separate societies, each one of which can sell tickets up to the current limit. But in doing so, the charity would have to pay separate licence and regulatory fees, and thus significantly and pointlessly increase its costs. This regulation, then, is a perfect candidate for this Bill: it has an undesirable objective, fails to achieve that objective and leads to an unnecessary increase in costs. There is no reasonable argument for keeping it.

Following the Grand Committee, my noble friend the Minister was kind enough to meet me, along with his officials. Charming as they were, they were unable to provide a convincing reason for the existence of this regulation. It is for that reason that I have separated what was a single amendment into four separate amendments. Should my noble friend advance the argument that the National Lottery needs to be protected, whether or not your Lordships agree with him, he will, at least, have advanced an intellectually valid argument. But it is not an argument that can be applied to Amendment 29C since it fails in its objective. It is wholly deficient in that sense, too.

My last amendment in this group—Amendment 29D —seeks to remove the current restrictions on the size of jackpot prize that can be delivered by a society lottery. The size of jackpot is the single most important marketing tool, which is why the National Lottery uses the fact that there has been a rollover, and thus a significant increase in the jackpot on offer, as its primary marketing tool. Under current rules, society lotteries cannot offer a prize beyond £400,000. In practice, they would rarely sell enough tickets to cover a prize as high as that, which makes it virtually impossible to compete against a rival offering a prize of many millions of pounds, often twice every week. Thus, in practice the jackpot is determined by the number of tickets sold—that is, by the marketplace. My view is that there is no sound reason why the Government should have any interest in this degree of commercial detail, which exists in no other jurisdiction in the world, and that this too is an example of entirely inappropriate and unnecessary regulation. I beg to move.

[Lord Collins of Highbury (Lab)]

My Lords, I wish to address three areas of concern regarding the noble Lord’s proposals: the impact on the current consultations; the impact on public confidence; and the impact on the National Lottery. We exchanged views on these issues in Committee but I want to reiterate some of the concerns.

The current DCMS consultation closes on 4 March. At the same time, the Culture, Media and Sport Select Committee is separately investigating society lottery regulation and should report its findings fairly shortly. We have argued for a detailed study of the proposals and their consequences.

I hear what the noble Lord, Lord Mancroft, says, but it is not just the National Lottery that may have concerns. Smaller lotteries and other charities have raised concerns that they may be squeezed by large society lotteries, which could expand and push the smaller ones to one side. Certainly, we on this side of the House would want to discuss the implications of that in detail before we consider any changes. Changes to this sector must be proportionate and evidence-based. We must not risk negatively impacting on the perception of charities—and, in turn, on the levels of public trust and confidence.

It is difficult to come to any conclusion on whether to substantially increase the sizes of prizes, of the individual draw or of annual proceeds caps as there is insufficient information available on this market. Without understanding how many lotteries are hitting the prize limits, the individual draw or the annual caps, and which would therefore benefit from being able to sell more tickets with higher prizes, I do not think that we can say that there is sufficient evidence for a change in policy.

There is a strong case for making more information available—certainly for increasing the data available on each society lottery’s ticket breakdown. We would like to see the Gambling Commission maintain up-to-date and publicly available data tables that show the proportion each lottery divides between good causes, prizes and expenses. It is fundamental to public confidence that the people who buy tickets understand the choices that they make. What are they supporting? How much of the money that they contribute will go to a good cause? That really is important.

I have also raised before, in the Chamber and in Committee, concerns over lottery operators, and in particular the loophole exploited by the Health Lottery. It is supposedly made up of 51 separate companies, yet they have the same three directors, the same office and the same branding. In effect, it operates as an alternative to the National Lottery. I do not think we can disregard concerns about the National Lottery. We do not fully understand the consequences. If we deregulate this market and other people come in, we are looking at a serious potential threat to the National Lottery.

The National Lottery was established on a monopoly basis for a very good reason: to balance people’s desire that the money goes to a good cause with the effect of gambling. There is no doubt that people participate in a lottery because they want to win; it is not simply about giving money to a good cause. From the way the Health Lottery and other operators market themselves, we can see that if we deregulate without properly considering all the consequences, we could have new entrants to the market. The market might grow, but it could certainly be distorted. I have mentioned this before: we could have companies such as Tesco, which has the infrastructure to mount a lottery, becoming a lottery operator, and, no doubt, giving 20% of its money to good causes—but we still do not understand how that could impact on the National Lottery.

As we have heard in previous debates, the National Lottery is not just about great big amounts of money going to big exercises. A huge amount of money—80%—goes in small amounts to local causes, which would not otherwise have been able to raise the money themselves. It has made a huge impact on our society, and we should not risk it without fully understanding the consequences.

[Lord Gardiner of Kimble]

My Lords, I thank my noble friend for tabling these amendments. He is certainly tenacious in these matters.

The amendments seek to remove or relax regulations governing the amounts that society lotteries can raise and the level of prizes they can offer. The effect of the amendments together would be to allow society lotteries to offer jackpots of up to £5 million per draw and to hold as many draws as they wish. Our concern is that this could put society lotteries in direct competition with the National Lottery, and this might present a serious risk to the good causes funded by the National Lottery. The best way of raising funds is through encouraging people to play by offering them the life-changing prizes that are possible only through mass participation in a single national lottery. Indeed, the lottery was set up in 1994 to do just that.

As the noble Lord, Lord Collins of Highbury, rightly suggested, the National Lottery has been an enormous success, raising more than £32 billion for good causes in its 20 years of existence. It has funded everything from very large-scale national projects to thousands upon thousands of small-scale local groups, and this has had a truly transformative effect across the United Kingdom.

Society lotteries have also been very successful at raising funds for good causes and they have grown significantly in recent years. We welcome that success and are clear that they are part of a wider good-cause landscape. However, we cannot let their success be at the expense of the National Lottery.

Even if all the amendments are not taken together, it is unclear what effect making changes to individual limits will have. The limits taken as a package have so far allowed society lotteries to flourish while maintaining the success of the National Lottery. If we wish to change these limits, either singly or as a package, it must surely be done on the basis of evidence and with a clear understanding of how any changes will impact on society lotteries, both large and small, as well as on the National Lottery.

The Government agree with my noble friend that it is now time to consider these limits. That is why we are currently consulting through a call for evidence, asking for views on how we can ensure that society lotteries continue to flourish alongside the National Lottery. In addition, as has been mentioned, the Culture, Media and Sport Select Committee is currently investigating society lotteries and will be considering whether their current limits are appropriate.

We are currently gathering the evidence that will highlight whether any reforms are needed, and I believe that it would be unwise to make any changes now without waiting for that evidence. The Government expect to have it after the call for evidence closes on 4 March. Once we have this evidence, any reforms to monetary amounts or percentages can be made through secondary legislation. Therefore, I am confident that the Government could move to make changes if, indeed, it was decided that this was the right and sensible course of action. For those reasons, I ask my noble friend to withdraw his amendment.

[Lord Mancroft]

My Lords, I am not in a position of having to thank many noble Lords for taking part in this enormous debate; nevertheless, I thank the noble Lord, Lord Collins, and my noble friend for replying.

It was clear from the debate in Grand Committee that your Lordships did not appreciate the importance of the issue, and it is clear that your Lordships have not appreciated its importance today. It is, however, clear that over the past few years, while the voice of the BBC in your Lordships’ House has increased significantly, the volume of sound that comes from the charity sector has, sadly, reduced.

Society lottery regulations were designed 40 years ago, when society had rather a different view of gambling. The gambling industry has changed beyond recognition —in particular, the Government themselves are now the largest player in that industry through their ownership and promotion of the National Lottery. In his answer, my noble friend made it clear that protecting the National Lottery is rather more important than any of the other issues on the table.

The noble Lord, Lord Collins, made some useful comments in taking this debate forward. However, I say to him that the information on ticket sales—the number of sales, which charity the money goes to and what percentage of the money goes to the charity—is in the public domain. Every charity files a return to the Gambling Commission, which is put on its website. Any member of the public can see exactly where the money has gone, how much was raised and how much went out in prizes. It is a requirement of regulations that societies do that and there is no question that that should not be changed. There is no reason why that should not continue. I am sure that the noble Lord knows that every charity lottery ticket has the name of the charity written on it. It is not difficult to tell where the money is going.

16:30

I say to the noble Lord, Lord Collins, that the Health Lottery is not making use of a loophole. It was Parliament’s intention that external lottery managers and organisations should be set up to operate lotteries on behalf of groups of charities. Although Mr Desmond may be very unpopular in certain areas—certainly, by the sound of it, in the Select Committee in another place—there is no doubt that what he is doing is exactly what Parliament intended he should do when the amendments were passed in 1994. If the Government and Parliament wish to review that, by all means they should do so.

It is also worth saying that, rather than posing a threat to the National Lottery, since the launch of the Health Lottery, there has been an increase in sales of National Lottery tickets, which takes me back to the argument I used in my opening remarks: when you put another player into the market, the whole market benefits. The evidence is there for everyone to see and has been there in all these reports, including the Budd report and the scrutiny committee report. In the past 15 years, again and again we have had these reports and these consultations. The more the charity lottery market grows, the better it is for the National Lottery. They are not a threat; they help it.

It is late in the day and it is clear that my noble friend is not, for some extraordinary reason, minded to accept my amendments. I cannot imagine why. I suppose his department is keen to protect the National Lottery, which I understand even if I do not agree with it. However, I hope that the Government will look at the evidence, and will form their opinion on the evidence before them and not on what they would like it to be, which is what has gone on in the past. I note my noble friend’s use of the date of 4 March and we look forward to that, as well as to the secondary legislation that the Government are bringing forward. There is no reason not to do so. The Government have dawdled on this for far too long and it is far too important an area for that. I look forward to the Government stopping sitting on their hands and to their bringing forward some positive secondary legislation early in the new Parliament. With that, I beg leave to withdraw the amendment.

Amendment 29A withdrawn.

Amendments 29B to 29D not moved.

Amendment 30

Moved by

[Baroness Janke]

30: Before Clause 72, insert the following new Clause—
“Referendums on changing local authority governance system
In the Local Government Act 2000, omit section 9NA (effect of section 9N order).”

[Baroness Janke (LD)]

My Lords, in speaking to Amendment 30, I declare my interest as a member of Bristol City Council. This amendment seeks to restore to Bristol people the same right that people of other cities have to change their system of government, subject to conditions required by the Local Government Act. A section added in 2011 relates to local authority referendums for elected mayors ordered by the Secretary of State. Noble Lords may recall that in 2012, the Government required that the 12 largest cities in England call referendums on whether their residents wished them to introduce a system of directly elected mayors. Bristol was the only city to vote narrowly in favour of such a system.

The section removes the right of Bristol citizens to change their system of government in perpetuity. This fact was not made at all clear when they voted in the referendum. As more and more people have found out that that is the case, they are quite outraged and feel that they are being discriminated against by virtue of having supported the Government’s arguments for a mayoral system. Whatever the view is about elected mayors—and there are many—many Bristol people are astounded that they have been denied the democratic rights that other cities enjoy as to whether or not they have a mayoral system. I can believe that this was not an intended consequence of the legislation. Nevertheless, it clearly is unjust and needs to be changed.

I say, “in my view”, but this view is also supported across the political parties in Bristol and by the mayor, as he said at a recent council meeting when a motion was unanimously passed supporting change—change not necessarily from a mayoral system but change to enable the citizens of Bristol to decide themselves what system of government they wish to have.

The Local Government Act lays down clear conditions as to how a local authority may change its governance arrangements, including the need for a referendum as fully described in Section 9N. The current situation is unnecessary, unjust and discriminatory in that Bristol people should be deprived of their democratic rights to determine their own system of governance, which is the case in every other English city.

I hope the amendment will receive support and that the Minister will consider how the current situation could be redressed and restore democratic rights to the people of Bristol. I hope the House will give its support in taking this matter forward. I beg to move.

[Lord McKenzie of Luton (Lab)]

My Lords, we have a good deal of sympathy with the amendment, which, as the noble Baroness said, has cross-party support in Bristol. I have been in touch with the leader of the Labour group there, who confirms her support for it.

As we have heard, Bristol was one of 12 cities that had a referendum foisted on it by this coalition Government, and it is worth reflecting on the extent of that mandate. The turnout was 24%, with 41,000 voting for and 36,000 against. So 77,000 people voted and the majority was about 5,000.

We know also that central Governments have an appetite for elected mayors that is not altogether reflected at local government level. The noble Baroness was right to point out how you change your system of governance and the constraints that you have. I have a helpful briefing from the House of Commons Library, which states:

“Under the 2000 Act, any local authority wishing to establish a mayoralty required a ‘yes’ vote in a local referendum. The 2007 Act changed this, permitting local authorities to adopt a mayor by resolution. However, an authority can still choose to hold a referendum on the issue. Alternatively, authorities can be obliged to hold a mayoral referendum if 5% or more of the local electorate sign a petition demanding one … The Government may also compel an authority”—

which is what happened in this case—

“to hold a referendum. The result of a mayoral referendum is binding on a local authority.

The Localism Act 2011 permitted a referendum to be held on abolishing an elected mayor, subject to time limits; and for a referendum to be held on establishing a leader and cabinet, or on using the committee system. Four authorities have held referendums on whether to retain their mayoral system. Electors in Doncaster … and Middlesbrough … voted to retain their elected mayor, whilst those in Hartlepool … voted to replace it with the committee system, and those in Stoke-on-Trent … voted to replace it with a leader and cabinet system.

Authorities which have changed their governance arrangements as a result of a referendum can only make a further change following a further referendum”.

That is not unreasonable. It goes on:

“Where a local authority has held a referendum on its governance arrangements, a further referendum may not be held for ten years (five years in Wales). Conversely, where a mayor has been created by resolution of the council, five years must elapse before the council may resolve to abolish the mayor. However, there is no time limit on holding a referendum (whether initiated by the council or by a petition) to reverse a decision made by a resolution”.

I come to the crucial point:

“Further, where a local authority has been required by the Government to hold a referendum and voted for an elected mayor, it may not hold a further referendum at any time. Bristol City Council is the only authority affected by this: as the law stands it cannot move away from its elected mayoralty”.

As the noble Baroness has said, it is held in that position in perpetuity. That just does not seem right, and perhaps the Minister will take the opportunity to explain why the Government think it is. However, if they do see it as an anomaly and an injustice, what do they propose to do about it?

[Lord Wallace of Saltaire]

My Lords, in preparing for the amendment I realised that I do not fully understand the evolution of the office of mayor in British local government. I am well aware that Titus Salt, who built Saltaire, was the mayor of Bradford for several years and as the leader of the council was very much an executive mayor. One did not have to be elected to be an executive mayor. We have since separated the ceremonial function of mayor and the power-wielding function of leader. It is only the elected mayor who gains executive control and leadership, and that is something which I trust others with greater local authority experience than I have will explain to me why and how this evolved.

The precedent for introducing mayoral governance following a referendum instigated by Parliament was first set when the London mayor was established. In this case Parliament instigated a referendum through enacting primary legislation. The electors then voted for London having a mayor, and by a further Act of Parliament the arrangements were introduced. There is no provision in those arrangements for the people of London to vote that they no longer want a mayor. Indeed, I am confident that no one would want to see the end of the London mayor, given the status of this great city, although occasionally there is a little confusion abroad when the Lord Mayor arrives just after the London mayor has been there—even if some might wish to see a different mayor to the current holder of that office. But the essential point for this afternoon is that there is no provision for there to be any change in the formation of the office of London mayor unless Parliament were to agree.

The same broad precedent was followed in the legislative arrangements that led to the establishment of mayoral governance in the city of Bristol. In that case Parliament, through approving by a resolution of both Houses an appropriate order under the Local Government Act 2000, an Act passed by a Labour Government, instigated a referendum. The people of Bristol then voted for a mayor, and that form of mayoral government was then established under the Act. As in the case of the London mayor, mayoral governance in Bristol can be changed only by a further Act of Parliament. The amendment before us today would change this. It would mean that the electors of Bristol could, if they chose, have a referendum by petitioning for one. If they voted to end the mayoral model, it would end. This is indeed the position in cases where a mayor has been introduced wholly by local choice. If it is wholly local choice to establish the mayor, it follows that wholly local choice should be able to end the mayoral governance.

However, the Government believe that it would be wrong to create circumstances where a mayor is established through a specific decision of Parliament and local choice together, but could be ended simply by local choice. I am not suggesting that Bristol should for ever have a form of mayoral governance if there is popular local disillusion, but the decision to change the governance of Bristol, having been instigated in part through a decision of Parliament, should also involve some parliamentary consideration of the specific Bristol issue and not simply be a matter of wholly local choice. It should be for the next Parliament to consider whether it wants to take parliamentary action in matters like this. Meanwhile, I urge the noble Baroness to withdraw her amendment.

[Lord McKenzie of Luton]

Does the Minister not accept that the parliamentary component of this could be the acceptance of the amendment? There could then be a referendum and the people of Bristol would have their input at that stage.

[Lord Wallace of Saltaire]

I accept that if there were very strong feeling in both Houses, that would be possible, but it is the Government’s view that this would be better achieved through an Act of Parliament that could consider how recent developments in local authority governance have worked, and that would perhaps reverse the thrust of the promotion of local elected mayors for the major authorities across England and Wales.

16:44

[Baroness Janke]

I am very grateful to the noble Lord, Lord McKenzie, for his sympathetic response but am rather disappointed that there does not appear to be a great deal of support for this amendment. Nevertheless, I do not believe that it will go away. I am sure that it will come back again and again. The explanation that the Act of Parliament relating to London is another example is not right, because in London the elected mayor has strategic powers, with 32 London boroughs and the City carrying out the functions of local government, so there is more of a subsidiarity issue than in other cities.

I would like to press the case in future. As I say, I am sure that this will not go away. I believe that Bristol people should have the same rights as the people of other cities in England and shall of course look for other ways in which I might be able to take this forward. Having said that, I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

Schedule 19: Poisons and explosives precursors

Amendment 31

Moved by

[Lord Wallace of Saltaire]

31: Schedule 19, page 202, line 30, at end insert—
“(1A) The provision that may be made under subsection (1)(a) includes provision for any requirement of a kind imposed by section 3, 3A, 3B or 3C to apply in additional circumstances.
(1B) Nothing in subsection (1)(b) to (f), or in subsection (1A), is to be read as limiting the provision that may be made under subsection (1)(a).”

[Lord Wallace of Saltaire]

My Lords, the amendments in this group are minor and technical. Schedule 19 makes significant amendment to the Poisons Act 1972. In particular, it creates a number of regulation-making powers. This will enable the Government to make regulations in relation to both poisons and explosives precursors that will supplement the licensing regime established by the various amendments to the Act as well as further provision in relation to poisons, given that the Poisons Rules 1982 will fall once the amendments take effect. I am sure all noble Lords understand that the sort of poisons and precursors available have been changing because of various chemical and other developments. We are all aware of the particular problem that we have with precursors nowadays with the ability to make various sorts of improvised explosive devices.

New Section 7(1)(a) is generally worded, enabling regulations to be made about,

“the importation, supply, acquisition, possession or use of substances by or to any person or class of person”.

New Sections 7(1)(b) to 7(1)(f) list other specific matters about which regulations can be made, for example the storage of substances and the periods for which records are to be kept. The amendment makes it clear that the list of specific matters are not to be taken as limiting the provision that can be made under the more generally worded new Section 7(1)(a). Amendment 32 provides that any power to make regulations under the Act includes the power to make consequential amendments. This is a standard provision.

Amendment 33 relates to Clause 78 and is needed to enable an NHS trust to be dissolved—a different subject—when an acquisition has taken place under new Section 56AA. Paragraph 31 of Schedule 4 to the 2006 Act provides that an NHS trust may be dissolved or wound up only if the Secretary of State or Monitor makes an order to dissolve it within the context of a merger or a separation. As it stands, paragraph 31 of Schedule 4 does not take into account the new Section 56AA inserted by Clause 78, which clarifies the position of trusts and assets and liabilities at the point of acquisition upon the grant of an acquisition by Monitor. This technical amendment to paragraph 31 of Schedule 4, inserting a reference to the new Section 56AA, will enable the provision to reflect the fact that an NHS trust can be dissolved within the context of an acquisition in accordance with new Section 56AA. As stated earlier, this is a minor technical amendment that ensures that paragraph 31 of Schedule 4 is consistent with the changes proposed in Clause 78. I beg to move.

[Lord Stevenson of Balmacara]

My Lords, I thank the Minister for that very lucid explanation of these two slightly different changes in the current versions of the Bill. As he says, they are minor, technical amendments and they largely tidy up and make right something that was missed as a result of changes.

My point is about the poisons and explosives section. I went back to the discussions that we had in Committee, in particular the question of consultation. My noble friend Lady Smith represented us on that occasion and asked the Minister whether it would be possible to have sight of the full list of consultees who had been involved in this process because she was interested in that, and wondered whether, subject to normal confidentiality procedures, he could publish the full consultation responses from the two consultations on poisons and explosives. I think the Minister said that he would do that, but we have not received it yet. I wonder if he could remedy that.

[Lord Wallace of Saltaire]

My Lords, I apologise profusely for the failure and I assure the noble Lord that we will remedy it as soon as possible, possibly even imminently.

Amendment 31 agreed.

Amendment 32

Moved by

[Lord Wallace of Saltaire]

32: Schedule 19, page 207, line 7, after “make” insert “consequential,”

Amendment 32 agreed.

Clause 75: Reduction in regulation of providers of social work services

Amendment 32A

Moved by

[Baroness Meacher]

32A: Clause 75, page 64, line 14, at end insert—
“(3) This section comes into force on such day as the Secretary of State may by order made by statutory instrument appoint.
(4) A statutory instrument under subsection (3) shall not be made unless a draft has been laid before and approved by both Houses of Parliament.
(5) The Secretary of State may not lay a draft statutory instrument under subsection (4) until he has published a report of a risk assessment of the delegation by local authorities of their child protection functions and services.
(6) The Secretary of State must publish the report specified in subsection (5) within 18 months of the passing of this Act.”

[Baroness Meacher (CB)]

My Lords, I thank the noble Lord, Lord Nash, the Minister, for finding time for two meetings to discuss our concerns about this issue and the removal of a safeguard from the child protection system. We thought carefully about bringing this issue back to the House at this point but there is a high level of risk associated with the child protection functions, and the fact that the regulations were tabled and passed only last year suggests that the arrangements are still very much at an early stage and that it is really premature to remove the requirement for these delegated services to be registered.

We note that local authorities will remain accountable to the regulators for the quality of the services provided, but the fact is that the regulated services will not sit directly within the purview of local authorities and we know that commissioning, contract compliance and adhering to rules around commercial secrecy are still in their infancy and untried with respect to child protection decision-making functions. Indeed, in our meetings the Minister himself referred to the poor commissioning and contracting skills of local authorities that he had identified, and we agree with his concern. These new functions will take time to bed down. Staff need to be trained. They need some experience and you cannot achieve that overnight. For local authorities, quality assurance in external organisations may prove very difficult to achieve. An experienced principal social worker describes numerous occasions of near-misses in contracted-out services affecting children and adults in community settings, and the incredible frustration of trying to get contractors and agency suppliers to take remedial action to improve the quality of care provided.

With the extension of delegated functions to include child protection functions, among others, the risks will increase sharply. There is the potential for the emergence of much larger market providers with subcontractors—of firms establishing a string of not-for-profit subsidiaries with supply lines that are difficult to hold to account. These are the concerns of the College of Social Work that we are reflecting today. We understand that local authorities will be inspected to check whether they have commissioned the functions and services appropriately and whether they are ensuring contract compliance. There are concerns about the quality of that inspection and the training of the staff within the inspectorate. There are matters there that need to be dealt with.

The Minister kindly sent us some key extracts from the Ofsted documentation which make it clear that inspection of local authorities will take place about every three years. Yes, a local authority will be reinspected within 12 weeks following the delegation of functions if the local authority had previously been judged inadequate. But local authority services may be perfectly adequate even if their commissioning and contract compliance skills are yet to be developed, so there is no reason to believe that there will be an inspection within 12 weeks. In that case, we are talking about three years. An awful lot of children may be damaged in that time. In this context we should be strengthening rather than scrapping the registration requirement. This should at least ensure that any organisation taking on this work has the basic structures, supervision arrangements and risk management procedures in place. The Minister argued, very reasonably, that Ofsted does not have the resources to undertake this registration function effectively. If that is the case, the delegation of these services should not go ahead until the ways and means are found to provide that assurance.

We know that in this very difficult field disasters will occasionally happen. Social services staff may not be proficient in commissioning and contracting, as I have already said, but they have considerable experience in child protection. Every day, children are protected by social workers from sick, disturbed or dangerous parents. As in the terrorist field, the perpetrators have to succeed only once, whereas the staff in these agencies have to fail only once and all hell is let loose, as we know.

These are extraordinarily difficult and stressful areas of work. We should not increase the risks involved. We understand that a number of local authorities are being instructed to delegate these functions. There will be the possibility therefore of a pilot, which could be risk-assessed. Our amendment requires the undertaking of a risk assessment of the delegation by local authorities of their child protection functions and services before the registration of those services can be abolished. That is the whole point: it is early days and it is premature to be taking this step.

We also propose that the report on the risk assessment be published within 18 months of the passing of the Act. We assume that the Government of the day would take appropriate action if the assessment showed that the risks of delegating those functions were unacceptably high. I look forward to the Minister’s reply and beg to move.

[Baroness Donaghy (Lab)]

My Lords, this amendment is about child protection and ensuring appropriate government responsibility for the regulation and quality of care offered by outsourced social work providers. Although most local authorities do their best to uphold standards, this important area cannot be left entirely to them, with very occasional inspections from Ofsted—as the noble Baroness, Lady Meacher, has just said.

Local authorities have stated that it is,

“important to ensure there is a proper, external to the local authority, registration process to enable a local authority to be confident in using the services provided by the SWP”—

that is, the social work provider. The government proposal is that the external providers of social work services will not be inspected in their own right by Ofsted, nor will they be registered as providers in the way that children’s homes and adoption societies are, so there is already an anomaly here. There will be no overview of their activities across local authorities where they hold contracts and no visible assurances for the public about their financial viability, quality or working practices.

In June 2013, the Delegated Powers and Regulatory Reform Committee criticised the Government’s proposals to remove regulation of social work providers. It stated:

“Registration … would allow the imposition of national minimum standards and requirements as to the fitness of providers, and would also provide a mechanism for removing providers who were failing to meet standards”.

The Government subsequently retained separate registration, but not inspection, for external providers through the Providers of Social Work Services (England) Regulations 2013, to which the noble Baroness, Lady Meacher, has already referred. The discussions are less than 14 months old, and now the Government seek to remove even that provision of registration. This is in the context of there having been no empirical review of the 2013 regulations to see how they are working. Our amendment asks for a pause for the review to be conducted to satisfy ourselves that the most vulnerable children in our society have some protection.

Finally, social workers, whether working for the public or private sector, have a difficult if not impossible task with a heavy if not impossible workload. They take decisions every day which could mean life or death. Yet the only time that they receive publicity is when things go wrong. I believe that it is the duty of Government to ensure that standards across the profession are of good quality and that local authorities are not left high and dry on this issue. I hope that noble Lords will see fit to support this amendment.

17:00

[Baroness Howarth of Breckland (CB)]

My Lords, those of us who were involved in the early discussions about the possible privatisation of areas of social work were assured at the time that child protection would not be something that went off the radar and that, in particular, we would see registration of child protection services take place, along with a proper review. Why have we suddenly had that foreshortened? I really do not understand that.

Other areas of childcare have registration—and it works. The noble Baroness just mentioned those. Surely this is the highest-profile area as well as the one where most of us would be deeply concerned. A lifetime in child protection work tells me that we must deal with this with the utmost care. I am not saying that in the long term we will not find services that work but rather that we need to view them with the utmost care at the moment and that registration and a review of it will help to ensure that we do not take the wrong step at the wrong time. A standard answer this afternoon on this would not be good enough. We have the national inquiry going on and child protection on the front page of every newspaper, and on television and radio. Yet here we are suggesting that we remove the safeguards from one area of child protection. That is just not good enough.

I am often on the receiving end of contracts with local authorities in other areas. As we heard from both noble Baronesses, local authorities are exceptional at child protection. We have had some extraordinary failures, which are in the papers at the moment—and we all deeply regret them. However, day in, day out, thousands of children on child protection registers are looked after and cared for by social workers up and down the country, usually working hours way above those they are contracted for and putting themselves at risk because if they get it wrong they will not only endanger a child but destroy their career overnight. As someone who has sat through two child abuse inquiries, and survived them, I know just how painful that can be for those involved.

We acknowledge what social workers do, but the local authorities’ contracting services are still in their infancy. One thing that local authorities tend to do because of the pressure they are under is look for what might be the cheapest rather than the best- quality service. I hope that they would not do this in child protection, but I see it in the delivery of adult services, because local authorities are under so much financial pressure at the moment. I do not criticise them for trying to find the best way to deliver their services.

My other concern is that if Ofsted does not have time to do the registration, as we have been told, however will it find time to do the right kind of inspections of these services? We have heard in other places that Ofsted is under extreme pressure. Again, I am not being critical. I understand that; I have been a regulator in another important place. But if we are committed to quality and to truly protecting our children, and if we recognise where this is on the national agenda, we will surely take a little more time—that is all the amendment asks for—to evaluate whether this is the best way forward. I ask the Minister to consider that very carefully in the interests of the nation’s most vulnerable children.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I support the arguments made this afternoon by the noble Baroness, Lady Meacher, and my noble friend Lady Donaghy. At the heart of the concerns raised by everyone is that the Government have not presented an adequate case for why the changes to social work regulation are necessary. The Minister does not need me to tell him of the perilous state of social work provision in the country at present. Demand for intervention is increasing massively, particularly in the wake of the new focus on child abuse cases. Meanwhile, children are being put at risk because about 11% of social work posts are unfilled. A recent NSPCC report warned that social workers are,

“frequently operating without the support, time, knowledge and training they needed to ensure the identification of sexual abuse and the protection and well-being of extremely vulnerable children”.

Those concerns apply not just to social workers employed in children’s departments but across the spectrum, including the charitable and private sectors. Only yesterday, the Home Secretary said:

“With every passing day and every new revelation, it is clear that the sexual abuse of children has taken place, and is still taking place, on a scale that we still cannot fully comprehend”.—[Official Report, Commons, 4/2/15; col. 658.]

So why are we making these changes at this very sensitive time?

My co-signers to the amendment have rightly identified that there is a chorus of opposition to the proposals from those involved in the sector. The changes are opposed by the Local Government Association, the College of Social Work and Unison, which represents those working in the sector. All have identified the risks of reducing regulation in the sector. Their concerns have been echoed by the Children’s Commissioner, who is the independent voice protecting the welfare of children in England, who stated:

“We consider all delegated social care services should be required to have formal registration with Ofsted in addition to an expectation that they will be held to account by rigorous and expert inspection, just as local authorities currently are”.

We should be taking heed of these voices.

If the reason for the proposals is to save money, it would be helpful to know just how much the Government believe will be saved. As has been said, it may well be that Ofsted feels that it is overworked and does not have the resources to carry out the regulation function adequately—but then we need to address that issue head on, rather than simply allow it to walk away from the role. If the intention is to transfer responsibility for regulation of those providers to local authorities, it would be helpful to know whether they will be given the additional funds to carry out their work—I rather suspect that that is not the case.

However, fundamentally, this is not about money, it is about risk. The Government have provided no evidence that they have weighed the risk of removing regulation from third-sector social work organisations. I remember raising concerns with the previous Government about the reduced regulation of private care homes. It has taken many years and a lot of suffering—even deaths—before we realised that we, the state, had an overwhelming responsibility to protect the most vulnerable, whoever is providing the service. Let us not make that same mistake again

Ofsted already inspects local authorities and in-house children’s services. It already regulates the private and charitable sectors providing social work services. This includes checking that they pass the fit and proper person test. Of course, we could be talking about very large companies, so local authorities may have very difficult relationships with them. Why would we want to lose those skills at this critical time for the sector? The role being assigned to local authorities is very different from that of a regulator. They are not the regulator. Their function in contracting out social work services is focused on procurement and contract compliance. We would end up with a fractured line of accountability for the services provided by contracted-out social workers.

Our amendment would provide a crucial pause in the Government’s proposals. It would provide time for the Government to have further talks with those who continue to have major concerns about the changes. Most crucially, it would allow the Government to carry out and publish a proper risk assessment, so that we can all be sure that child protection functions will be protected under their proposals. The consequence of getting this wrong is just too traumatic. We need to take the time to get this right, and we have the responsibility to do so. I hope that noble Lords will support our amendment.

[Lord Wallace of Saltaire (LD)]

My Lords, I suppose that I should declare an interest: my son has lived and worked in the United States for seven years and his American wife is a qualified children’s social worker. She has worked in Boston and is currently working in Chicago, so I have learnt a certain amount about the Massachusetts and Illinois systems of privatised provision of child protection. I am not completely unaware of some of the delicacies in this area. I am of course also acutely aware of the sensitivity of the issue of child protection in British political debate at present.

I thank the noble Baronesses for raising this issue and for coming in to discuss further with my noble friend and officials some of the underlying issues at stake. I am well aware that the College of Social Work has strong views on this, although as I understand it the area of social work is not entirely of one mind in how far one needs registration as well as inspection. The questions of registration and inspection are related but not identical. The system of delegation is purely permissive. Local authorities may continue to provide their own services or, as the noble Baroness suggested, delegate to third sector providers or commercial providers in the field. Some do so; many others continue to provide their own direct services. The removal of registration does not mean the removal of inspection.

[Baroness Meacher]

I thank the Minister for giving way. I understand that a number of local authorities are being instructed to delegate out these services. Is that correct or not? It is what I have been told.

[Lord Wallace of Saltaire]

I am informed that it is not correct. I certainly have no knowledge of it, but my noble friend Lord Nash assures me that it is not the case, so we are not in that area.

We have an active system of inspection. It is local authorities which are accountable for ensuring that when contracts are signed in this form, the provider is a credible and qualified provider. Having said that, Ofsted is the inspector of such arrangements and it keeps a very active role in watching what happens, receiving reports and then coming in to inspect when reports are provided of inadequate care or the accidents which sadly, as we all know, eventually and occasionally happen. Ofsted shares the Government’s view that registration adds little value and that, in many ways, it risks confusion in the system as to where accountability lies.

It is the Government’s view that accountability lies with local authorities and that Ofsted, for the Government, provides the continuing process of inspection. There are of course issues about the level of risk and the level of burdens in the system.

[Lord Reid of Cardowan (Lab)]

I have a very small point on accountability, which I proffer to the Minister more in an advisory capacity than a critical one. There are occasions during a ministerial career where, on study, what seems a relatively small decision becomes an obviously profound and very risky decision. That is not to say that it should not be proceeded with—but, having listened to this debate, I have the impression that this is one of them. In the spirit of fraternity, I say to the Minister that if and when, as a result of these changes, there is a disaster with children along the lines of some that we have seen, particularly in the present context, it will not be sufficient to say that the accountability lies with local government. The accountability will come straight back to the Minister and the Government, who have freed this up without adequate protection. We are, quite properly, discussing risk management as regards children, but the Minister should consider the risk management for the reputation of the Government on this issue as well.

17:14

[Lord Wallace of Saltaire]

My Lords, I recognise that the noble Lord speaks with a good deal of experience, and probably some hard knocks, in this field and others. It is, however, the Government’s settled view that, when determining when to inspect local authorities, it is Ofsted that inspects and the local authority that writes the contracts. Ofsted takes careful account of a range of triggers when considering when to inspect. Among a range of factors, the triggers include information about serious incidents involving children—which Ofsted already gathers directly from all local authorities—complaints and whistleblowing information, and intelligence from other sources. In addition, Ofsted has arrangements to inspect local authorities more quickly where functions have been delegated.

I recognise that this is an issue that we will continue to discuss, but the Government’s position is that Ofsted shares their view that accountability and contracting lie with local authorities, while continuing active inspection lies with Ofsted on behalf of the national Government. I hope that that satisfies the noble Baronesses.

[Baroness Howarth of Breckland]

The Minister and indeed the Government are clearly set on this path, but one of the requests in the amendment is that there should be a review and that this should be looked at carefully. Will the Government ensure that they can review any of these arrangements that are put in place and learn from them?

[Lord Wallace of Saltaire]

My Lords, the Government will naturally review the relatively recent arrangements that have been put in place. That of course will be for our successors, whoever they may be in a matter of months’ time, but I assure the noble Baroness that all Governments and Secretaries of State are well aware of the risk factor involved in all this; it is an area that any Government have to pay active attention to.

[Baroness Meacher]

My Lords, I thank the Minister for his reply. I thank my colleagues, my noble friends Lady Donaghy, Lady Howarth and Lady Jones, for their persuasive and powerful contributions—and indeed the noble Lord, Lord Reid.

The fact is, as we have made clear, that there are major risks in pushing ahead with these delegated services without a proper risk assessment. I am grateful that the Minister assures us that there will be a review of these delegated services; it would be good to have in writing some information about when such a review will occur and the nature and detail of it, because that is fundamentally important. The reality is that we do not feel assured that local authorities will be able adequately to quality-assure all the organisations out there undertaking these sorts of child protection and other related functions; it is just unsafe. Therefore, a review—frankly, I would call it a risk assessment—is fundamental and, hopefully, any Government in power after May will be able to respond appropriately to that. Even at this very late hour, I have to say that I want to test the opinion of the House on this matter because of its gravity.

17:18

Division 2

Ayes: 127

---

Labour: 100
Crossbench: 20
Independent: 1
Bishops: 1

Noes: 163

---

Conservative: 110
Liberal Democrat: 43
Crossbench: 6
Ulster Unionist Party: 2
UK Independence Party: 1

17:29

Clause 78: NHS foundation trusts and NHS trusts: acquisitions and dissolutions etc

Amendment 33

Moved by

[Lord Wallace of Saltaire]

33: Clause 78, page 66, line 37, at end insert—
“(8) In paragraph 31 of Schedule 4 (NHS trusts established under section 25), as it has effect until its repeal by section 179(2) of the Health and Social Care Act 2012, at the beginning insert “Subject to section 56AA,”.”

Amendment 33 agreed.

[Lord Stoneham of Droxford]

moved Amendment No. 33A:

33A: After Clause 79, insert the following new Clause—
“Information contained in entries of births and deaths
(1) The Births and Deaths Registration Act 1953 is amended as follows.
(2) After section 34 (entry in register as evidence of birth or death) insert—
“34A Searches and records of information: additional provision
(1) The Minister may make regulations for the purpose of enabling the Registrar General—
(a) to carry out, on request, a search to find out whether the Registrar General’s certified copies contain a particular entry; (b) to provide, on request, a record of information contained in an entry in the Registrar General’s certified copies, otherwise than in the form of a certified copy.(2) The regulations may authorise or require the Registrar General to charge a fee of an amount specified in the regulations for carrying out a search or providing a record.
(3) The regulations may make provision—
(a) as to how a request for a search or a record may be made;(b) as to the forms in which a record may be provided. (4) The provision that may be made in the regulations includes provision for a record to be provided in a form that does not include all of the information contained in an entry.
(5) This section does not affect the entitlement under this Act of any person to a certified copy of an entry in the Registrar General’s certified copies.
(6) In this section, “the Registrar General’s certified copies” means the certified copies of entries in registers sent to the Registrar General under this Act or under any enactment repealed by this Act and kept in the General Register Office.
(7) Section 30(4) applies for the purposes of this section as it applies for the purposes of section 30.”
(3) In section 39 (regulations), in paragraph (a), for “and 10C” substitute “, 10C and 34A”.
(4) In section 39A (regulations made by the Minister: further provisions), in subsection (5), for “and 10C” substitute “, 10C and 34A”.”

[Lord Stoneham of Droxford (LD)]

My Lords, I am pleased to move this amendment on behalf of my noble friend Lady Scott of Needham Market. She deserves all the credit for having raised this issue in Committee, and for having spotted the opportunity for it to be included in the Deregulation Bill. She is very grateful for the discussions that she has had with our noble colleague Lord Wallace to move it forward, and we are pleased to have the Government’s support for her amendment. Unfortunately, she is overseas on parliamentary business this week and is very disappointed not to be here, not least to lead her initiative to success.

As my noble friend said in Committee, civil registration records, which include records of birth, death and marriage, date back to 1837. Regardless of their age, the only way in England and Wales to access this information is to buy a certified copy, a certificate, at a cost of between £9 and £10, depending on whether the certificate is purchased from the General Register Office, which holds the national data set, or from the local register office for the district where the event occurred.

The principal purpose of this amendment is to allow records to be available other than in the form of a certificate. Many family historians and genealogists do not actually need a certificate but merely the information contained within it. The thinking is that by allowing information, particularly from the older record sets, which is of most interest to such groups, to be made available in alternative formats, it would be cheaper and quicker to obtain, as it is already is in Scotland and Northern Ireland, where they operate a system where records are considered historic at 100 years, 75 years and 50 years for births, marriages and deaths respectively, which allows them to treat access to the older records in different ways. In a similar vein, this clause enables information on birth, death, marriage and civil partnership records in England and Wales to be provided in different ways, based on factors such as the age of the record.

The clause has been deliberately crafted as a paving amendment to allow the Government full opportunity to consult on the best way in which to bring in changes to how records are accessed. It will provide the Secretary of State with the power to lay regulations to define how a person may access these records, the type of product that can be issued, how the record is to be provided and the amount of fee payable. This would, for example, allow older records to be viewed online, similar to the systems in Scotland and Northern Ireland, or for the introduction of plain paper extracts to be offered to customers who do not require a watermarked certificate.

The clause would therefore provide a gateway to introducing new products and services relating to birth, death, marriage and civil partnership records. It would accept that any change to the current product and services could not happen immediately; there would need to be a full analysis of the options for implementation, decisions around funding and consultation with key stakeholders. Any change is likely to mean IT system changes. However, the clause lifts those legislative restrictions that have tied the Government’s hands in this area for many years and this is a major step forward to greater and more flexible access.

Finally, these powers will apply to copies of entries in the records held by the Registrar General, which means that it would be for the General Register Office to provide any additional products enabled by the powers in this clause. The new clause does not extend to cover local registration services. However, the current ability for an individual to purchase a certificate from either the General Register Office or a local register office will remain. This change would provide wider access to historic records and would be of great interest and benefit to the growing number of people who pursue an interest in genealogy, and in particular to those looking into the history of their families. As my noble friend Lady Scott told us in Committee, one website alone—Ancestry—has 2.7 million subscribers.

Genealogists from across the world want to trace their ancestors back to these islands. The Irish and Scottish Governments have been much quicker than the English and Welsh Governments to appreciate the great tourist value in people looking for their roots. In Ireland, you can get essential information for €4; for Scotland you can order online from the Scotland’s People Centre. The General Register Office issues thousands of historic copies at £9.75 a copy, but does not make a profit. Putting this information online would fit in well with the Government’s deregulation agenda. The issue has been approached on several occasions in the past 30 years. Public consultation showed overwhelming public support in 1999. The General Register Office proposed a whole package of changes in 2005, but it was too wide-ranging for a regulatory order. This paving amendment will enable action to be taken to widen access to help people access information about their family histories going back 200 years. It is time the English and Welsh caught up with the Scots and the Irish. I beg to move.

[Lord Wallace of Saltaire]

My Lords, the Government are delighted by the discovery by the noble Baroness, Lady Scott, of an example of potential deregulation that they had not themselves unearthed. We are therefore very glad to welcome, and accept, this amendment, on which the Government have worked with the noble Baroness, Lady Scott, to refine. We are sorry that the noble Baroness is currently working very hard in the Caribbean. I hope it is not too cold there.

This amendment will achieve a long-standing government policy objective of providing greater flexibility over how, and in what form, records of birth, death, marriage and civil partnership may be accessed. It will provide powers for the Secretary of State to make regulations that will introduce a legal demarcation between those older records of genealogical interest and modern records relating to living individuals. We all recognise that the interest of the noble Baroness, Lady Scott, in this issue comes from her own active interest in researching family history. That interest is shared by a very large, and increasing, number of people across the country. As the noble Lord, Lord Stoneham, said, the amendment will bring the system in England and Wales in line with those already in place in Scotland and Northern Ireland. It will also bring access to civil registration records up to date by providing much easier access through 21st century technology, and will meet the information access expectations of today’s society.

Importantly, by introducing order-making powers, the new clause is flexible and enabling, and will allow the Home Office time fully to consider and consult upon the implications of any change prior to the laying of regulations. We therefore welcome this workable and balanced piece of legislation, which supports government objectives such as Digital by Design, transparency of data and improved public services. We are therefore very happy to accept the amendment.

Amendment 33A agreed.

Amendment 33B

Moved by

[Lord Stoneham of Droxford]

33B: After Clause 79, insert the following new Clause—
“Information contained in entries of marriages and civil partnerships
(1) After section 65 of the Marriage Act 1949 (searches of indexes kept by Registrar General) insert—
“65A Searches and records of information: additional provision
(1) The Secretary of State may make regulations for the purpose of enabling the Registrar General—
(a) to carry out, on request, a search to find out whether the Registrar General’s certified copies contain a particular entry; (b) to provide, on request, a record of information contained in an entry in the Registrar General’s certified copies, otherwise than in the form of a certified copy.(2) The regulations may authorise or require the Registrar General to charge a fee of an amount specified in the regulations for carrying out a search or providing a record.
(3) The regulations may make provision—
(a) as to how a request for a search or a record may be made;(b) as to the forms in which a record may be provided. (4) The provision that may be made in the regulations includes provision for a record to be provided in a form that does not include all of the information contained in an entry.
(5) Before making regulations under this section, the Secretary of State must consult the Registrar General.
(6) Regulations under this section are to be made by statutory instrument.
(7) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(8) This section does not affect the entitlement of any person to a certified copy of an entry in the Registrar General’s certified copies.
(9) In this section, “the Registrar General’s certified copies” means the certified copies of entries in marriage register books sent to the Registrar General under this Part of this Act and kept in the General Register Office.”
(2) In section 36 of the Civil Partnership Act 2004 (regulations and orders), in subsection (2), after paragraph (f) insert—
“(g) for the carrying out by the Registrar General, on request, of searches of entries in the register and the provision, on request, of information contained in the entries (otherwise than in the form of certified copies).” (3) In section 9 of the Marriage (Same Sex Couples) Act 2013 (conversion of civil partnership into marriage), in subsection (5), after paragraph (b) insert—
“(ba) the carrying out, on request, of searches of any information recorded and the provision, on request, of records of any information recorded (otherwise than in the form of certified copies);”.”

Amendment 33B agreed.

Amendment 34

Moved by

[Baroness Hayter of Kentish Town]

34: After Clause 83, insert the following new Clause—
“Recognised bodies
(1) The Administration of Justice Act 1985 is amended as follows.
(2) In the title of section 32 (provision of conveyancing services by recognised bodies) after “conveyancing” insert “or other”.
(3) In section 32—
(a) in subsection (1)(a) after “conveyancing services bodies” insert “or CLC practitioner services bodies”;(b) in subsection (1)(b)—(i) for “such bodies” substitute “conveyancing services bodies”;(ii) for the words from “to undertake” to the end substitute—“(a) the provision of conveyancing services,(b) the administration of oaths,(c) the exercise of a right of audience,(d) the conduct of litigation,(e) probate activities, or(f) the provision of other relevant legal services;”;(c) after subsection (1)(b) insert—“(bza) prescribing the circumstances in which CLC practitioner services bodies may be recognised by the Council as being suitable bodies to undertake—(i) the administration of oaths,(ii) the exercise of a right of audience,(iii) the conduct of litigation,(iv) probate activities, or(v) the provision of other relevant legal services;”;(d) in subsection (1)(ba) for the words from “carry on” to the end substitute—“(i) reserved instrument activities, where the recognised body is a conveyancing services body,(ii) the administration of oaths,(iii) the exercise of a right of audience,(iv) the conduct of litigation,(v) probate activities, or(vi) other relevant legal services;”;(e) in subsection (3)(e) after “those bodies” insert “(including information about disciplinary measures taken)”;(f) in subsection (3C) after paragraph (a) insert—“(aa) conditions restricting the kinds of CLC practititioner services that may be provided by the body;”; and(g) for subsection (8) substitute—“(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“CLC practitioner services” has the meaning given by section 32B;
“CLC practitioner services body” has the meaning given by section 32B;
“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“conveyancing services body” has the meaning given by section 32A;
“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“relevant legal services”—
(a) in relation to a conveyancing services body, has the meaning given by section 32A; and(b) in relation to a CLC practitioner services body, has the meaning given by section 32B;“reserved instrument activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).”
(4) After section 32A (conveyancing services bodies) insert—
“32B CLC practitioner services bodies
(1) For the purposes of section 32, a “CLC practitioner services body” means a body (corporate or unincorporate) in respect of which—
(a) the management and control condition,(b) the services condition, and(c) the authorised person condition,are satisfied.(2) The management and control condition is satisfied in the case of a partnership if at least one of the partners is a licensed conveyancer or a licensed CLC practitioner.
(3) The management and control condition is satisfied in the case of an unincorporated body (other than a partnership), or a body corporate which is managed by its members, if at least one of those members is a licensed conveyancer or a licensed CLC practitioner.
(4) The management and control condition is satisfied in the case of any other body corporate if at least one director of the body is a licensed conveyancer or a licensed CLC practitioner.
(5) The services condition is satisfied in respect of a body if—
(a) the body is carrying on a business consisting of the provision of—(i) CLC practitioner services; or(ii) CLC practitioner services and other relevant legal services; and(b) the body does not provide conveyancing services.(6) The authorised person condition is satisfied if the licensed conveyancer or licensed CLC practitioner by reference to whom the management and control condition is satisfied, or one of the persons by reference to whom that condition is satisfied, is an authorised person in respect of any of the CLC practitioner services that are provided by the body.
(7) For the purposes of this section—
(a) a reference to CLC practitioner services is a reference to those of the following reserved legal activities in relation to which the Council is designated as an approved regulator—(i) the administration of oaths,(ii) the exercise of a right of audience,(iii) the conduct of litigation, and(iv) probate activities;(b) a reference to designation as an approved regulator is a reference to designation as an approved regulator—(i) by Part 1 of Schedule 4 to the Legal Services Act 2007, by virtue of an order under paragraph 5 of Schedule 22 to that Act; or(ii) under Part 2 of Schedule 4 to that Act;(c) a person has an interest in a body if the person has an interest in the body within the meaning of Part 5 of the Legal Services Act 2007 (see sections 72 and 109 of that Act).(8) In this section—
“administration of oaths” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“authorised person” means an authorised person in relation to an activity which is a reserved legal activity (within the meaning of the Legal Services Act 2007);
“conduct of litigation” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“probate activities” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“relevant legal services”, in relation to a CLC practitioner services body, means—
(a) CLC practitioner services; and(b) where authorised persons are managers or employees of, or have an interest in the body, such services as are provided by individuals practising as such authorised persons (whether or not those services involve the carrying on of reserved legal activities), except for conveyancing services;“reserved legal activity” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act);
“right of audience” has the same meaning as in the Legal Services Act 2007 (see section 12 of, and Schedule 2 to, that Act).””

[Baroness Hayter of Kentish Town (Lab)]

My Lords, Amendments 34 to 40 are tabled to help the Government, the Legal Services Board and the CLC out of a tiny hole, which is why I anticipate that they will shortly be accepted in principle.

Under the Legal Services Act 2007, the Council for Licensed Conveyancers is an approved regulator for reserved activities, probate and administration of oaths. It was designated a licensing authority for alternative business structures in 2011. However, it has recently been realised that the Administration of Justice Act 1985, which created the CLC and set out its powers, restricts the CLC from achieving its full regulatory ambitions and those of the 2007 Act. In particular, the CLC can regulate only licensed conveyancers. Therefore, potential probate lawyers would first have to qualify as conveyancers for the CLC to be able to regulate them. We know that that was never the intention, so the Ministry of Justice prepared the necessary draft secondary legislation to amend the CLC framework under the Legal Services Act. However, the MoJ then realised that the Legal Services Act did not provide the power to amend the 1985 Act. The change therefore needed primary legislation, hence these amendments.

The first piece of tidying-up would enable the CLC to regulate conveyancing bodies for all reserved legal activities for which it is designated, including enabling it to continue to regulate probate services, which it currently does under the transitional period in the Legal Services Act. The second would allow the CLC to regulate individuals and entities for the provision of legal services without them first having to be regulated for conveyancing. At the moment, the only reserved legal activity other than conveyancing is probate. It would seem a nonsense for someone who wants to do probate first to have to qualify as a licensed conveyancer if they had no intention of ever doing that work.

There are two further changes to simplify the appeals process against determinations by the CLC’s discipline and appeals committee. The first would allow appeals to the First-tier Tribunal instead of the High Court; the second would allow the CLC to appeal against its discipline and appeals committee’s determinations. In these amendments there is also a measure to allow the CLC automatically to suspend—not to revoke—the licences of practitioners, to protect clients and the public while the outcome of investigations and disciplinary action is awaited.

Finally, on the governing council of the CLC, there is presently a requirement that the number of lay members must exceed professional members by exactly one. To avoid any problems that may arise—for example, by the loss of one of the professional members for any reason—it would seem sensible for the lay majority to be expressed as “at least one”, so that the council’s work could continue with a larger lay majority should one of the professional members be unavailable.

The CLC undertook public consultation on all these changes last year. No objections to this were raised by anyone. I know that the changes have the support of the Legal Services Board and the Ministry of Justice. However, they cannot be achieved via Section 69 of the 2007 Act, hence these amendments, which I beg to move.

[Lord Wallace of Saltaire]

My Lords, I congratulate the noble Baroness. On this Bill, she wins first prize for length, technical detail and complexity of amendments, with a gold star for achieving this on two groups of amendments on entirely differently topics. I wondered, as I read through both of them and did my best to understand their complexity and technicality, whether the two groups were pushing in different directions: resisting a loosening of regulations on insolvency practitioners, but promoting a loosening of regulations on conveyancers.

The Government welcome the principles behind the amendment and are in full agreement with the noble Baroness that these restrictions should be removed. The Government also agree that the other measures are sensible and proportionate. However, we have some reservations about the exact terms of the amendment and would very much like to take it away and tweak it in various ways, returning with a government amendment at Third Reading. I therefore commit to coming forward with our own amendments at Third Reading to achieve the aims of the noble Baroness’s amendments. I hope that, with that assurance, she will feel able to withdraw her amendment at this stage.

17:45

[Baroness Hayter of Kentish Town]

Provided that the Minister does not expect me to read through the whole of his new amendments in great detail to check that they are correct, I am very happy to accept that we will deal with this at Third Reading, and I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

Amendments 35 to 40 not moved.

Clause 87: Legislation no longer of practical use

Amendment 41

Moved by

[Lord Sharkey]

41: Clause 87, page 70, line 19, at end insert—
“(2) Subject to subsection (7), the provisions of Schedule 21 other than paragraph 43 may not come into force until the Secretary of State has requested the Law Commissions to review the legislation to be repealed by those provisions and the three conditions set out in subsections (3) to (5) are met.
(3) The first condition is that the Law Commissions have reported on whether each item of legislation to be repealed by paragraphs 1 to 42, 44 and 45 of Schedule 21 is, or may be, of practical use; or is no longer of practical use.
(4) The second condition is that the reports of the Law Commissions under subsection (3) have been laid before each House of Parliament.
(5) The third condition is that the Secretary of State has, by regulations made by statutory instrument, removed from the list of legislation to be repealed in Schedule 21 any provisions which the Law Commissions have reported are, or may be, of practical use.
(6) A statutory instrument containing regulations under subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(7) The provisions of Schedule 21 come into force, notwithstanding that the conditions in subsections (3) to (5) have not been met, 12 months after the Secretary of State has requested the Law Commissions to review the legislation if the Law Commissions have failed to make a report within that period.
(8) In this section the “Law Commissions” means the Law Commission of England and Wales and the Scottish Law Commission.”

[Lord Sharkey (LD)]

My Lords, I note briefly that Amendments 67 and 72 are essentially technical and consequential.

With one significant difference, Amendment 41 is a repeat of an amendment discussed at some length in Committee. It deals with Clause 87 and Schedule 21, which bring about the wholesale repeal of a huge and hugely varied set of items of legislation, asserting that this legislation is no longer of any practical use. The Government have produced no evidence that these pieces of legislation are in fact no longer of practical use; they simply make that assertion.

There are 84 pieces of primary legislation to be repealed, including seven whole Acts. There are also eight pieces of secondary legislation, making 92 repeals in all. These numbers will rise in a moment when the Minister moves Amendment 42. At this very late stage in the Bill, government Amendment 42 repeals three more pieces of secondary legislation. It is clear that these new repeals will not be subjected to proper parliamentary scrutiny. Like all the other 92 items in Schedule 21, they were not, and will not be, discussed substantively either here or in the Commons, and that is the heart of the matter.

We have before us a proposal to repeal a very large number of items of legislation without any real parliamentary scrutiny and without access to the Government’s evidence that these items really are no longer of practical use. This seemed to the Joint Committee on the draft Bill, chaired by the noble Lord, Lord Rooker, and of which I was a member, to be unsatisfactory. In fact, the Joint Committee recommended that the items in what is now Schedule 21 be referred to the law commissions for independent confirmation that they were in fact genuinely no longer of practical use. We did that because we felt that:

“The skills, research and consultation needed to ensure that Parliament, external organisations and the public can be satisfied that a piece of legislation is genuinely obsolete strongly suggest that the Law Commissions are better placed to conduct that work than Government departments. Added to which, the independence of the Law Commissions from Government and their track record since 1965 reinforce the trust that Parliament places in the … Law Commission Bills”,

including statute law repeal Bills.

Amendment 41 proposes exactly what the Joint Committee recommended. It refers all the items in Schedule 21 to the law commissions for a safety check before they can be repealed. The Government disagreed with this proposal in Committee. To their credit, at no point have the Government attempted to argue that it is clear, on inspection, that all the legislation proposed for repeal is no longer of practical use; instead, they advance three main arguments.

Their first argument was that Schedule 21, in its original form, had gone through pre-legislative scrutiny. This is the case only if simply being in a draft Bill counts as scrutiny. The Joint Committee was required to work to a quite unnecessarily tight timetable. We did not have time to discuss the items in the schedule and nor did the Commons. The Government’s second argument was that many of the provisions in Schedule 21 came out of the Red Tape Challenge. It is not clear why this is an argument against referral to the law commissions. Leaving aside any scepticism about the rigour of the Red Tape Challenge, the truth is as the Minister acknowledged in Committee. The items chosen for repeal via the Red Tape Challenge had a political origin. This illustrates the point made by the Joint Committee.

Scrutiny by the law commissions has the advantage of being, and of being seen to be, absolutely independent. There can be no suggestion of political interest in any of the judgments about what is safe to repeal and what is not. The Government also argued that,

“government departments are key consultees for the Law Commission in seeking to make these kinds of repeals”.—[Official Report, 18/11/14; col. GC 146.]

So they should be. Again, this is not in itself an argument against referral to the law commissions. It simply emphasises the rigorous, wide-ranging and transparent analysis and consultation that the law commissions employ in assessing the case for repeal.

The Government made one other comment about the version of this amendment that we discussed in Committee. They rightly pointed out that it did not impose a duty on the law commissions to do anything with a referral to them and that it imposed no timescale for action. This amendment rectifies these defects. It says that if the law commissions have not reported on the items referred to them 12 months after referral, the repeals may go ahead anyway.

None of the Government’s arguments against this amendment in Committee seemed at all compelling. I do not for a moment doubt that the 95 items for repeal have been examined by the departments concerned. I do not doubt that in some cases there will have been consultation, but we do not know the depth or the rigour of these examinations and we do not know the arguments put forward in consultation. Critically, we do not know how these arguments were weighted by Ministers.

In Committee, I asked the Minister whether we could see any written reports on these proposed candidates for repeal before Report stage. I did not get that but I did get a detailed description of how departments assessed candidates for repeal and identification of some items that have been consulted on. I also got a detailed list of why the Government believe each item in Schedule 21 is safe to repeal. I did not get evidence, just summary reasons. That must have taken a considerable amount of work and I am very grateful to the Minister and his officials for that.

However, the problem with this information is that it is narrative. It is useful narrative and a useful summary but it is not evidence and cannot be properly interrogated. It also does not settle the worries about consultation. We still do not know how many consultations took place and with whom. We do not know the quality of these consultations, which is an issue of wider concern than just this Bill. Only a few days ago, your Lordships’ Secondary Legislation Scrutiny Committee published a report called Inquiry into Government Consultation Practice. The report looks at secondary legislation and some of its conclusions seem to have a more general context. In particular, the report notes that,

“a number of our concerns about the Government's approach to consultation are not allayed: and we are most troubled by an apparent absence within Government, in the Cabinet Office and in individual Departments, of a commitment to monitor consultation practice and to draw lessons of general application”.

There are reasons to worry about government consultations especially when we have no access to them.

The issue here is essentially one of principle. When it comes to wholesale repeals, who can we best trust to tell us that legislation is really no longer of any practical use? Is it the Government, via not only wholly transparent internal processes and a ministerial decision? Or should it be the independent law commissions set up by Parliament to do precisely this and which have a statutory duty to apply the three tests of external expertise, impartiality and independence? The Joint Committee thought it should be the law commissions.

We asked the law commissions how long they would take to certify whether or not the items in Schedule 21 were safe from repeal. They told us it would take between four and 12 months. The Government say that they are confident that it is safe to repeal the items in Schedule 21; they are confident that they are in fact of no practical use. So what exactly is the risk? What is the problem with a four to 12 month delay? What is lost by referral to the law commissions? Nothing is lost, but a considerable amount is gained. What is gained is trust, independent transparent scrutiny, and giving Parliament the confidence that repeal is safe via the mechanism that Parliament set up for that very purpose. Amendment 41 does what the Joint Committee recommended. I beg to move.

[Baroness Andrews (Lab)]

My Lords, as a Member of the Joint Committee I support the amendments of the noble Lord, Lord Sharkey, and commend him for the indefatigable way he has brought this issue back on Report. I can confirm that the Joint Committee was exercised about this failure, this deliberate resistance, by the Government to consider the Law Commission for all the reasons the noble Lord set out—transparency, reduction of risk and uncertainty and the opportunity to consider the repeals which were being recommended.

Let me take the House back to the first stages of this Bill, when there was something in the spirit of the original clause which was dropped from the eventual Bill, whereby the Minister was going to take upon himself the power to decide which legislation was or was not redundant and to recommend that a whole swathe of legislation should actually disappear from the statute book. Such was the reaction to that that the clause was wisely dropped.

As to the attitude towards the Law Commission, I do not quite understand the difficulty. As the noble Lord, Lord Sharkey, said, the Law Commission was absolutely clear that it would be able to deal with and expedite the passage of judgment on the repeals and it would give everyone the security of knowing that whatever was moved for repeal would have that additional scrutiny. That is not to cast aspersions on the ability of departments to make a judgment about what is or is not redundant legislation, but as we have got the Law Commission and that is part of its job, we should take advantage of that expertise and the scope to do that. On that basis, I certainly support the amendment.

[Lord Stevenson of Balmacara]

My Lords, I wish to make three points and I shall end with a question to the Minister.

First, we should record at some point in our proceedings the considerable debt we owe to the Joint Committee for its work in the pre-legislative scrutiny of the Bill, for the work it has done since then in trying to feed into our debates and discussions the intelligence it had gained and the knowledge that it had as a result of that process, as exemplified by my noble friend Lady Andrews’s comments. It once again proves the need for Parliament to think harder about how it gets its legislation together. There is no doubt that, in comparison with a couple of other Bills that I have been involved in recently, the Deregulation Bill is in much better shape. Even though it is a much longer, more complex, Christmas tree-type Bill that has come through, we have found it easier to deal with. If we ever discussed how we do these things, we would conclude that it has been done better.

17:58

My second point is that the substance of what has been said by the noble Lord, Lord Sharkey, is irrefutable. I am sure that if the noble Lord, Lord Rooker, had been able to be in his place, we would have a double-barrel effect where he would have picked up on this as well and taken it through. As we have heard, perhaps in ellipsis from the noble Baroness, Lady Andrews, this is a bit of a sorry story where an initial attempt to push through a ministerial-led set of repeals was eventually transmuted to the form in which we have it on the page. But of course I do not think that that answers the substantial point, which is that Parliament should have the use of an independent body which has the expertise and impartiality to advise it on matters of taking away legislation. It is all too easy to make mistakes and we are stupid if we do not take the advice of those who have expertise and knowledge in these areas.

My third point is that we have live and practical reasons to consider whether what has been said in support of the amendment moved by the noble Lord is good. I draw the Minister’s attention to the Hansard reports of our brief discussion about the Breeding of Dogs Act 1973 and the Breeding and Sale of Dogs (Welfare) Act 1999, which I am sure are seared in his memory. As a dog owner himself—even if in a remote part of our United Kingdom—he will no doubt be aware of the intricacies and issues that were brought out by that rather exciting exchange between himself and my noble friend Lord Grantchester. My point in raising this is that it was quite clear that the process of repeal of those two Acts was proceeding in a context in which new regulations, which were in many ways designed to supersede some but not all of the provisions here, were being introduced in a way that was not coherent; a broader span was needed. The noble and learned Lord will not be aware of it because he was not involved, but the department that is responsible for this area was taking through its standing order relating to the introduction of microchipping for dogs. In an exchange, which again I refer the noble and learned Lord to for further consideration, my noble friend Lord Grantchester was able to draw attention to the debates I have just mentioned, but it seemed to come as news to the department that there had ever been an exchange about the Breeding of Dogs Act 1973 and the Breeding and Sale of Dogs (Welfare) Act 1999 in the context of the repeals of these pieces of legislation.

The particular question I have for the Minister is whether anyone had actually acted on his kind offer, which I am sure was genuinely made, to ensure that the implications of the regulations which applied from the introduction of the repeal of these Acts would not happen until such time as further consultation had taken place on both the microchipping and the breeding issues which were raised by my noble friend Lord Grantchester in his speeches. We understand from those exchanges only two weeks ago that none of that consultation had taken place.

I have used that as an example and I do not expect a detailed response from the Minister. However, this plays back to what the noble Lord, Lord Sharkey, has been saying. This often has a long tail of consequences. I end with a thought inspired by the comments I have made. If we do have a dog, why are we barking?

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend Lord Sharkey for moving this amendment. As the noble Baroness, Lady Andrews, said, my noble friend has indefatigably pursued this issue since beginning his membership of the Joint Committee. Like the noble Lord, Lord Stevenson, I take this opportunity to pay tribute to the committee’s work on the whole range of the Bill. I have been involved in only small parts of the House’s consideration of the Bill, but it is evident that the areas that I dealt with in Committee reflected the continuing interest of noble Lords who served on that committee.

With regard to this part of the Bill, the most controversial element of the original draft Bill concerned the more general order-making powers for the Secretary of State. As a result of the committee’s deliberations and recommendations, those powers were removed from the Bill as introduced into the other place.

I hope that I will have more information on the dogs issue before I sit down, but what I can say to the noble Lord, Lord Stevenson, now is that, following our debates in Committee, I did have a meeting with the noble Lord, Lord Trees. It is certainly my recollection that there is to be a consultation. If I can give fuller chapter and verse before I conclude, I will happily do so.

As my noble friend has indicated, Amendment 41 seeks to add conditions before the various items and provisions set out in Schedule 21 can be repealed or revoked. The main condition, as he indicated, is the need for the Secretary of State to ask the law commissions to review the legislation to be removed by these provisions and to report on whether the legislation to be removed has practical use, following which only those confirmed as redundant could be commenced. Perhaps I may say that the Government see the work of the law commissions as absolutely vital in keeping the law under review and recommending reform where it is needed. However, it is important to put this into context by saying that the statute law repeals work is just a small part of the overall work that is done by the commissions. The Government themselves have an important role to play in updating and tidying up both primary and secondary legislation as they develop policies and make new law. This is the role that they have exercised in relation to Schedule 21. If this work did not take place, the statute book would quickly become very unclear, inaccessible and outdated. There would also be an increase in the time and costs for those who use the law and an increase in the risk of their being misled by redundant legislation masquerading as live law.

If one reflects on this, one sees that in almost every piece of legislation there are repeals which the Government invite Parliament to approve. I was just flicking through the current Bill, and I think I am right in saying that, in Schedule 18, there are omissions from the Licensing Act 2003. Is the principle in the amendment that, before there can be any repeal of primary legislation, the Law Commission has to establish whether, because of what else is occurring in its place, it is no longer of any use? I do not know whether anyone has asked the Law Commission whether it sees that as an important part of its additional workload. To be consistent, the principle would have to be that any consequential repeals under general provisions in a Bill may well have to be referred. I am sure that that is not what my noble friend is proposing, but it is, by extension, the implication of what he is arguing here.

The law commissions were not established in order to replace the Government’s role in this area. The law commissions and the Government both have a valuable contribution to make to legislative housekeeping. Would requesting the law commissions to review legislation listed in Schedule 21 be the best use of their resources? I submit to your Lordships’ House that it would not, for two reasons.

First, we would be requesting the law commissions to duplicate the work already undertaken by government departments, because the actual technical work carried out by lawyers in departments and within the law commissions would be very much the same. The only difference in the general approach is that the law commissions would then conduct an open consultation, whereas government takes a more proportionate approach and tries to identify persons or organisations who would appear to have an interest in the proposal.

Secondly, in practice, the law commissions invite government departments to comment on repeal candidates, as departments have a responsibility for the legislation and policy area in question, as well, of course, as having specific inside knowledge and, no doubt, very good contacts with the various stakeholders and interested bodies. If the law commissions did undertake a review on Schedule 21, then departments which have already determined that the legislation no longer has a practical use would become key consultees in confirming whether the legislation no longer has a practical use. That does not seem to be a useful operation or a good use of resources.

My noble friend asked why the Schedule 21 items should not be referred to the law commissions. As I have indicated, Schedule 21 includes the sorts of items which departments routinely repeal and revoke as part of their legislative housekeeping roles. That complements the law commissions’ repeal work. Schedule 21 also includes secondary as well as primary legislation, while the law commissions’ repeal work has, hitherto, concerned primary legislation.

My noble friend also mentioned the Red Tape Challenge and suggested that items were chosen for political reasons. I accept that there is a political drive to try to tidy up the statute book and to do what we are doing in this Bill and have sensible deregulation but the point is—the heading of the schedule says as much—that these are provisions that are no longer of practical use. This sort of tidying up is an ordinary and useful part of the Government’s work.

When my noble friend proposed a very similar, although not identical, amendment in Committee, I argued that there would be no requirement for the law commissions to report on the legislation contained in Schedule 21, with the result that the obsolete law could simply remain on the statute book. I note that my noble friend has attempted to address this point by introducing proposed new subsection (7), but I have some difficulty in following the pattern through. The amendment requires only that a request be made by the Secretary of State to the law commissions to report on whether the provisions are redundant. The law commissions would in turn accept or decline the request.

If the intent is to provide a safeguard, then I am not quite sure that that will be carried out. If the law commissions either decline the request or fail to report to Parliament on the provisions within 12 months—and no doubt if they decline the request, Parliament will still have to wait for 12 months—the schedule will then simply be commenced. It is unclear exactly when the provisions are to be commenced if a request is accepted and the law commissions report to Parliament that the provisions are redundant. There does not seem to be a very clear way in which these provisions would be commenced.

My noble friend also referred to evidence and consultation, and he acknowledged the work that had been done by officials in going through all the paragraphs in Schedule 21 and indicating why they were there—whether they were redundant, had expired, had served their purpose, had been superseded by other legislation or were no longer relevant because they related to an activity that was no longer taking place. It is difficult to see what more evidence could be needed. For example, in paragraph 7, we believe that the provisions that have been repealed in the Industry Act 1972 no longer serve their purpose and are no longer relevant. That is because the Shipbuilding Industry Board (Dissolution Provisions) Order is not relevant because the board itself has been dissolved. I am not sure what more evidence you can actually get than the fact that the board no longer exists. If it does not exist, whom does my noble friend think we should be consulting? That is the nature of many of these provisions, such as paragraphs 10 to 12, covering the British Steel Act 1988. What was British Steel plc is now wholly owned by Tata Steel, so the Government’s shareholding provisions are redundant. Paragraph 12 repeals a saving provision for four sets of historic iron and steel pension regulations that are now redundant and no longer have any practical effect. That is the nature of these provisions.

Amendment 42 gives further illustration. My noble friend indicated that it had been brought in very late but it relates to three instruments that were identified as being spent during the rail theme of the Red Tape Challenge. The Department for Transport had originally believed that the revocation could be delivered by secondary legislation. However, legal investigation during the drafting of the revocation instrument—and this underlines the thoroughness with which officials go through these matters—identified vires issues which meant that this could proceed only through primary legislation. A number of similar instruments have already been included in the schedule. That is the reason for the proposed insertion into the Bill at this stage.

I will explain. The Railways Act 1993 (Extinguishment of Relevant Loans) (Railtrack plc) Order 1996 extinguished the liabilities of Railtrack plc in respect of specified loans. These loans were initially made to the British Railways Board and subsequently transferred to Railtrack plc as part of the privatisation of the railways. As many noble Lords will recall, Railtrack plc was placed into railway administration in October 2001 and acquired by Network Rail in 2002. The Railtrack Group PLC (Target Investment Limit) Order 1996 fixed, for the first time, the target investment for the Government’s shareholding in Railtrack Group plc. That limit was expressed as a proportion of the voting rights exercisable in all circumstances at general meetings of Railtrack plc. Following the entry into administration of Railtrack plc, Railtrack Group plc was placed into members’ voluntary liquidation in October 2002 and finally dissolved in June 2010. Railtrack Group plc no longer exists and that is the essence of why we are putting these kinds of provisions in.

When I sat on the Benches opposite, both here and in the other place, I was on the receiving end of technical problems with amendments standing in the way, but I think that in this case there are serious technical deficiencies, not least because I am still not certain how, even if a clean bill of health was returned by the law commissions, these provisions would come into effect. More relevantly, it is part of the work of government to keep the statute book in a tidy and orderly fashion. Thorough work has been done. It was presented initially to the Joint Committee and subsequently went through both Houses. It is on the basis of not wanting to duplicate work that has already been done, and of trying to avoid a somewhat odd situation where the law commissions would consult government departments to see whether they agreed that these matters were no longer of practical use when in fact the only reason they would be consulting was because the government departments had said they would no longer be of practical use, that I do not believe it is a good use of resources.

Before I sit down, Defra officials have confirmed that before commencing the particular repeals with regard to the Breeding of Dogs Act, there will be consultation as the issue generates a considerable amount of interest, as the noble Lord indicated. I urge my noble friend to withdraw his amendment.

[Lord Sharkey]

I thank all noble Lords who have spoken in this debate. Earlier in the afternoon, I heard that the Government had referred the laws on busking to the law commissions. When I heard that, my hopes rose, but, clearly, that was the limit of their willingness to refer things to the law commissions.

Having listened carefully to the Minister, I am not quite sure that we were talking about the same thing at times. The point is not that the Government should not repeal legislation; of course they should. The point is that Parliament should be able to scrutinise proposed repeals. The fact is that some of the repeals that are proposed will need scrutiny. The Government were able to trot out examples such as laws on the keeping of pigs or the flying of kites—the usual stuff that, on inspection, appears to be safe to repeal—but they did not mention, for example, item 18, which is the Nuclear Industry (Finance) Act and the implications of that, and the consultations that went on.

As for the duplication of work by government departments and the law commissions, it seems entirely clear that the existing work by the departments will have the effect of speeding the review by the law commissions. It will be extremely helpful to the law commissions to have transparent access to the inner workings of the departments when they make these assessments.

The problem is that it is now very late. If we were working on normal time, it would now be 10 o’clock or so. At this point, with the Chamber fairly empty and the clock registering the normal weekday equivalent of 10 o’clock or quarter past, I feel with some regret that it would be inappropriate at this stage to divide the House.

I end by saying that I believe strongly that Parliament in general should be given every opportunity to examine in a timely way repeals proposed by the Executive. I regret that on this occasion it will not be possible. Having said that, I beg leave to withdraw the amendment.

Amendment 41 withdrawn.

Schedule 21: Legislation no longer of practical use

Amendment 42

Moved by

[Lord Wallace of Saltaire]

42: Schedule 21, page 220, line 8, at end insert—
“Subordinate legislation relating to railways22A The following Orders are revoked—
(a) the Railways Act 1993 (Extinguishment of Relevant Loans) (Railtrack plc) Order 1996 (S.I. 1996/664);(b) the Railtrack Group PLC (Target Investment Limit) Order 1996 (S.I. 1996/2551);(c) the Strategic Rail Authority (Capital Allowances) Order 2001 (S.I. 2001/262).”

Amendment 42 agreed.

Consideration on Report adjourned.

House adjourned at 6.17 pm.