(9 years, 10 months ago)
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17:18 - Division on Amendment 32A - Ayes: 127 / Noes: 163 - Amendment 32A disagreed.
Lord Clement-Jones
“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for that debate because I was abroad, a great many noble Lords presented compelling and persuasive reasons why an outdated provision set up in the 1980s is now putting at risk the ability of commercial public service broadcasters to invest in original UK content and should be repealed.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.
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.
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.
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.
Lord Clement-Jones
“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.
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.
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.
Lord Mancroft
“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.
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.
Baroness Janke
“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.
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.
Lord Wallace of Saltaire
“(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.
Lord Wallace of Saltaire
Baroness Meacher
“(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.
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.
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.
Lord Wallace of Saltaire
“(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,”.”
“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.
Lord Stoneham of Droxford
“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);”.”
“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.
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.
Lord Sharkey
“(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.
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.
Lord Wallace of Saltaire
“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).”