Deregulation Bill
Baroness Andrews Excerpts(9 years, 3 months ago)
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Baroness Andrews (Lab)
I rise to support my noble friend’s amendment and congratulate him not only on the way he exposed the ambiguities in the Bill but on how he introduced the argument on protection and balance. That is an argument I want to pursue. The amendments that we have just debated have totally exposed the fact that the language of the Bill is a morass of ambiguity. I am thinking of terms such as “have regard to” or “not automatically”, and the suggestion that it should be up to the regulators to interpret the Bill as will suit their best purposes.
In this amendment, we are giving the Government an opportunity to do what they say that they want to do: to have a clear intention of purpose with regard to regulation; to put in the Bill exactly what they mean by their expectations of regulators; to show that they understand what regulators do, can do and should do; and to put clarity into the Bill that leaves no one in any doubt about the limits to what they can do.
I want to talk about balance and growth in another context—in relation to the built environment and the protections that surround our environment. That is a parallel argument to the one that my noble friend made. One danger of the ambiguity is that it introduces an additional requirement for growth, although the Government say that it is complementary. Will that additional requirement sit alongside or above the existing growth duties that regulators have to implement and which they are bound by law to do? With the National Planning Policy Framework, the Government very wisely embraced the advice of statutory bodies such as English Heritage, which retained the essential point about planning law—that it is a balance between development and protection of landscapes and precious spaces, the ancient and characterful environment with which we all live.
The need for appropriate development in the right place and time is not in dispute, but it is balanced with the need to protect and sustain what this country is uniquely known for. We already have a presumption of growth in the National Planning Policy Framework; in short, we have a duty to promote growth. But that is balanced by a requirement to protect our precious landscapes and the heritage of our built environment. The balance has worked well, and it was very gratifying that, after a lot of discussion, when the National Planning Policy Framework was introduced, it repeated and reflected those traditional, tested balances that had been in the previous planning law. The statutory agencies know how to do that, in the full knowledge that there must be scope for development and a response to housing pressures and the need for infrastructure, but there is also a prior duty to protect what they are there to protect.
All this amendment does—I urge the Government to think about this, because they will get themselves out of a real problem if they do—is to make clear beyond doubt that the duty to promote growth must be consistent with the proper exercise of existing regulatory functions. Everything that I have heard the Government say, in their letters, suggests that it is what they want. So what is the difficulty about putting a clear, unambiguous, crisp statement in the Bill? It is vital that we have that assurance, because it will tell all the practitioners and the country as a whole that the Bill does not change or challenge that balance, and it does not override the scope of the functions of protection. It does not create an unnecessary diversionary distraction in the shape of another growth duty.
If the amendment is not accepted, that will send the opposite signal. It will send a signal to the developers, for example, that there is an imperative of growth, which is undefined—we have perhaps lost the argument that sustainable growth should have been specified; that would have been infinitely more acceptable and sensible—and that that imperative can be taken to override the other protective functions.
I think that there will be a chilling effect on regulators, because if it is up to them to try to interpret what is meant by a duty to “have regard to” something in the exercise of their proper functions, they will always be looking over their shoulder. They will always know that there will be a challenge from people who think there is a higher imperative— in many cases, an inappropriate economic imperative.
The local and national authorities will suffer from the same fear—that they are getting it wrong. They will be faced with a further layer of confusion. We all know that what the planning system needs above everything else is certainty. This provision will introduce another layer of uncertainty, and will have perverse consequences. It will cause further delays while people argue about whether the regulator has had proper regard to something. For that reason, it would hand greater scope and power to developers. My great fear is that the balance, which the noble Lord spoke about in relation to health and safety, will also be compromised or lost in relation to the protection of the environment.
We have had a very successful planning system to date, which has been supported by all Governments. The regulatory bodies are extremely experienced, well intentioned and well practised in their duties. Without the simple and incontrovertible logic of the amendment, which spells out what the Government themselves want to achieve, we will introduce more confusion and delay. So I hope that the Minister will listen seriously to the arguments for it.
The Earl of Lindsay (Con)
My Lords, in speaking to the amendment moved by the noble Lord, Lord Tunnicliffe, I should note my current involvement with the Better Regulation Strategy Group, the independent body that advises the present Government on better regulation. I should also note, as it is relevant to my perspective on the amendment, my former involvement in the two predecessor bodies that advised the previous Government—the Better Regulation Commission, of which I was vice-chairman, and the Risk and Regulation Advisory Council.
Based on my experience of those three independent bodies advising government on better regulation, I question the need for Amendment 44A. If the proposed duty as set out in the Bill were to override regulators’ powers of protection, compromise their decision-making or supersede their existing regulatory duties—or if there were any ambiguity about those three important assessments—I would wholly understand the need for the amendment. But in my judgment that is not the case.
The proposed growth duty will not override or cut across regulators’ powers of protection. It is simply an additional factor for regulators to take into account when they are making their decisions. It will not compromise their decision-making and, as I understand it, it will not supersede regulators’ existing duties. It will not remove the responsibility of businesses to comply with what the law or regulations require of them. The duty will therefore not compromise the independence of regulators. They will continue to have decision-making autonomy, exactly as they do now. Regulators will therefore remain free to decide how best to incorporate the duty into the decision- making involved in performing their primary statutory functions.
I have been looking at the published draft guidance that the Government issued in January, and I believe that it makes very clear many of the points that I have just mentioned. I understand that the guidance is continuing to be developed in discussion with the regulators so that it can be finalised before the policy comes into force. That guidance makes it clear that the proposed duty does not encourage regulators to reduce protections or to ignore non-compliance.
For the benefit of noble Lords who have not seen the published draft guidance, Non-economic Regulators: Duty to Have Regard to Growth, I draw their attention to the beginning of chapter 2, on page 5, which sets out the purpose of the duty. The very first sentence reads:
“Regulators exist primarily to protect people or achieve other social or environmental outcomes”.
That is an important headline sentence, which reminds us of the principal duty that regulators must subscribe to. The second paragraph on that page says:
“The duty requires that economic growth is a factor”—
not the factor, but a factor—
“to be taken into account alongside regulators’ other statutory duties … The duty does not set out how economic growth ranks against existing duties as this is a judgment only a regulator can and should make … The duty does not oblige the regulator to place a particular weight on growth”.
Those are only a few extracts from one page of the draft guidance, but they set out a clear proposition in terms of the importance of maintaining the balance between regulators having regard, as appropriate, to growth and their maintaining protections. As I see it, the proposed duty will complement existing duties and will not override or cut across regulators’ powers of protection, nor their responsibilities for ensuring protection. It will be for a regulator to weigh up the desirability of economic growth against each of the other factors it must consider, and tailor its approach accordingly.
In some circumstances those factors will sit well together; in others the regulator will need to decide how much weight to afford to each factor for the best outcome. On the basis of the wisdom that was developed through the Better Regulation Commission, the Risk and Regulation Advisory Council and so on, I believe that the regulator’s expertise means that it is best placed to decide what weight it is appropriate to afford growth in the relevant circumstances.
I therefore disagree with the insistence of the noble Lord, Lord Tunnicliffe, that only Parliament can rank those factors. In a good regulatory regime there should be discretion for the regulators to make judgments between parallel factors, because they can take account of the exact circumstances in which they are regulating. Therefore, although the growth duty clause as drafted requires that growth be put on the same footing as other duties—in other words, it enables regulators to have regard to growth—it also ensures that essential protections are maintained.
We should not lose sight of the importance of the new growth duty and the benefits that will flow from it. Regulators spend some £2 billion each year on regulatory activities, and still to this day more than half of businesses see regulation as a barrier to their success. The duty is required to clarify the fact that growth is an important factor for regulators to take into account, and it will ensure that regulation is delivered in a way that best supports growth. It will also ensure that the protection intended to be given by regulations is still delivered. On those grounds, although I understand the motives behind the amendment, I genuinely believe that it is unnecessary, and that the balance will be not only maintained but enhanced by the Bill as drafted.
Deregulation Bill
Baroness Andrews Excerpts(9 years, 3 months ago)
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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.
Deregulation Bill
Baroness Andrews Excerpts(9 years, 5 months ago)
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Baroness Andrews (Lab)
I never thought that I would be taking issue with my noble friend Lord Rooker. I followed him as a Minister and found that we sometimes contradicted each other in minor ways, but having arrived in time for this amendment I want to make some cautionary statements about putting a growth duty on the inspectorate. There is a growth duty on the inspectorate, in effect, in the sense that there is a presumption for development in the planning system. That presumption for development is really important because planning inspectors have to arrive at a balance in their decisions. That is why we invest them with such authority. They are the arbiters of various pressures that go into deciding what is a good and sustainable development and what is harmful development.
There are ways of determining what is harmful development, for example, in relation to the financial, physical and historical environment. What worries me about my noble friend’s amendment is that if we were to put a growth duty specifically on to the planning inspectorate, we might disturb the ecology of the ability of the planning inspector to make such a balanced judgment. In the National Planning Policy Framework, we worked very hard to get the balance right. I could not agree more with my noble friend about the need for housing—my goodness, it is an open and shut case—but the presumption for development needs to be balanced against those protections that are absolutely essential to maintaining the other things that we need in this country, which is a care for open spaces; he is a great advocate of that. From my point of view, it is also about care for the historic fabric of this country, and we have the historic protections that are there explicitly to be taken into account to protect against significant harm.
I know that my noble friend says it is a probing amendment but we need to be really careful about putting explicit duties on to the planning inspectorate, which could damage its ability to make balanced judgments. Decisions do have to be made.
Lord Wallace of Saltaire
I congratulate the noble Lord, Lord Rooker, on getting this within the scope of the Bill. I recognise exactly the motivation as we are facing more delays in getting our housing industry going again than we ever anticipated. It is deeply frustrating for all parties, and anything that one can do to give an extra push in the right direction is desirable.
My speaking note points out, however, that the majority of the planning inspectorate’s functions do not fall within the definition of “regulatory functions” in the Bill. Further work would be required to establish whether the functions of the planning inspectorate which do fall within that definition are non-economic in nature and could be brought into scope. If the Government consider in the future that the planning inspectorate regulatory functions could be subject to the duty they will consult on the proposal to include those functions before a final decision is made. That is a rather po-faced answer to a very determined intervention. I think that the answer to the noble Lord is that we should all encourage him to keep pushing in this direction on all occasions. We all share his view to get housing construction going again, but this may not be the most appropriate Bill in which to give it that particular push. On that basis I hope that the noble Lord will withdraw his amendment.
Deregulation Bill
Baroness Andrews Excerpts(9 years, 6 months ago)
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The Deputy Chairman of Committees (Baroness Andrews) (Lab)
Before I call the noble Lord, Lord Young, it is agreed that there has been a mistake in the Marshalled List. The amendment should read, “Page 163, line 35, to leave out paragraph 8”.
Deregulation Bill
Baroness Andrews Excerpts(9 years, 6 months ago)
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Lord Stirrup (CB)
My Lords, I rise briefly to speak to this amendment, as I am also concerned about the effect that it might have upon the provision of lifetime home standards within new buildings. The noble Lord, Lord Best, made all the key points with his customary eloquence and I do not intend to repeat them. There is a supposed requirement to meet the test of need. The need is surely very clear. The English housing survey found that only around 5% of properties can be visited by disabled people and, as a result, one in six disabled people and more than half of disabled children live in accommodation that is not suitable for their needs.
I am very sympathetic to the cause of deregulation and I therefore support the intent behind the Bill, but, as ever, when the water disappears through the window we must ensure that the baby remains in the bath. There seems to me a slight danger that in attempting to reduce red tape we may, in this instance, be achieving the reverse. We seem to be increasing the requirement on those who want to provide homes that are suitable for those with a variety of disabilities, making it more difficult for them, increasing the evidentiary burden and, instead of reducing red tape, doing the reverse—and, in this instance, increasing it. I am sure that that is not the intent and, equally, I am sure that it is not the intent of the Government to reduce the stock of housing that is built to the lifetime home standards.
I close by remarking that, in addition to the tremendous need that already existed throughout the country, we have, of course, very sadly, over the past 10 years or so, added to the number of disabled people in this country through veterans with severe muscular-skeletal damage as a result of operations. These people already face a challenge with their lives and the challenge will grow greater as they age. We saw, a couple of days ago, a very worrying report about the extent to which the military covenant is already under stress with regard to provision within the National Health Service for this group. I am sure we do not wish to see any further regression in the undertaking that the Government gave, within the military covenant, to care for that group of people, among the much larger group of disabled people within our community. I therefore ask the Minister to pay particular attention to this baby and make sure, either through this amendment or through some other means, that it is properly safeguarded in the future.
Baroness Andrews (Lab)
My Lords, I, too, rise to support the amendment, brilliantly moved, as usual, by the noble Lord, Lord Best, who asked fundamental, awkward questions about the impact that this will have on standards in the future. I want to make some general points about what the Bill signals about the Government’s strategic approach to housing for an ageing population.
The noble Lord, Lord Tope, has already pointed out that establishing lifetime home standards in the first place was an extremely long and very challenging process, but it is accepted and the best developers take it as a matter of course. In fact, we have tried to learn from the mistakes of the past, when we assumed that people would not want to age in place. Part of the crisis that we have at the moment in finding homes of sufficient quality and appropriateness for an elderly and frail population is because in the past we simply did not understand that this would be necessary.
What troubles me about the standards review, for which the noble Lord, Lord Best, made a very good case, is that there is a real paradox in the language that the review uses in one respect. It is concerned with local authorities not pursuing standards which are simply nice to know, but standards which are strictly necessary. The point is that in building for an ageing population with disabilities, we should be building every home across the piece to lifetime standards which are strictly necessary. It is a misreading of the situation we are in and the challenge of the future.
I also see a real paradox in the situation that the Government has posed in this clause. It is a paradox in logic. To make lifetime homes standards and other accessible standards statutory, and yet to make higher standards optional, simply does not make logical sense. If we are assuming that we all want the highest standards and to maintain the highest standards, why is there an optional extra? Good developers and local authorities are already pursuing the best and highest standards and are doing so with conviction. Is it a question, for example, of the Government trying to obtain the moral credit while making it more difficult in practice for local authorities to enforce? We have to ask about the unintended consequences. We know that local authorities are strained and strapped for cash, resources and expertise. When developers approach these second-level standards, who will advise the developers and implement the standards?
Lord Wallace of Saltaire
My Lords, I reform that. If the local authority already has a standard, it can passport this on, keeping the standard without a need for a new policy. If it wants a new policy, it will have to have a plan policy. Does that begin to answer the question the noble Lord has raised?
Baroness Andrews
It answers the question in part, but it raises and reinforces the problem of the complexity of getting these higher standards in place. Changing a local plan, as we know—and some local authorities still have not prepared and finalised their plans—takes four to five years. In the meantime, there are going to be hundreds, if not thousands, of people reaching their eighties and living in deeply inappropriate accommodation. If the Minister will bear with the Committee, I hope that we can return to this in more detail on Report.
Lord Wallace of Saltaire
I understand that our consultation suggests that where lifetime home standards exist these can be passported and will be carried on but I will consult and make sure we come back. I recognise the importance of this issue—particularly as we, Members of the House of Lords, might be approaching our 80s at some time in the next 25 years or so and therefore perhaps have a greater interest than our children do in this respect. Clause 32 is available in case there is a major problem in the delivery of the new system—for example, if the powers we have given to authorities are not applied properly, or without sufficient rigour, or the system is misused in some way. If the Government decide to put conditions in regulations under Clause 32(4)—and we have no plans to do so at present—then these will be subject to full consultation with interested parties, as with all changes to building regulations. I stress that this is intended not to lower standards but to raise them. Our proposals currently out to consultation are, for the first time, proposing that standards for accessible housing and for wheelchair-adaptable and accessible housing will be given the force of building regulations. This is a major new step and I hope it will be welcomed by all noble Lords. Indeed, I heard what was being asked for. The consultation under way at the moment sets out the Government’s thinking on the issues that local authorities should consider if they wish to apply optional building regulations’ requirements for access.
The key points are that local authorities should plan for the current and future housing needs of a wide range of households, including older and disabled people, and should clearly state in their local plan the proportion of new development that needs to comply with the requirements for accessible and adaptable dwellings, or wheelchair-adaptable or accessible dwellings. Local authorities should base their decision on the outcome of their housing needs assessments, taking into account: the likely future need for housing for older and disabled people, including wheelchair-user dwellings; whether particular sizes and types of housing are needed to meet specific needs—for example retirement homes, sheltered homes or care homes; the accessibility and adaptability of existing housing stock; and the overall impact on viability. I hope noble Lords will agree that these are reasonable matters to be addressed by local authorities and answer some of the questions raised, for example, by the noble Lord, Lord Best, and the noble and gallant Lord, Lord Stirrup. Currently the Government expect to set out the detailed consideration, which I have described, in guidance rather than put it into regulations.
Multiple compliance regimes have created a maze for designers and developers to navigate. There are 50 different local space standards and many different conflicting ways in which to apply local energy standards, some of which may conflict with the building regulations. Concerns about these issues prompted the Government to launch a fundamental review of technical housing standards during 2012-13, which aimed to rationalise the proliferation down to a sensible core of what worked and what is really needed. There was widespread support for this; 92% of last year’s consultation responses supported the review.
Baroness Andrews
My Lords, far be it for me to improve or elaborate on anything that my noble friend has said. I just want to pick up a couple of points in the context of the code for sustainable homes.
That code has been in place since 2007. People are quite clear about the benefits. It has led to improved standards and to efficiencies. That is acknowledged by bodies such as the Environmental Audit Committee and the Local Government Association and many good public authorities. It is familiar, it is quite elaborate—that is true—but on the other hand, people know how to respond to that and how it benefits them. It has led to great energy efficiencies. Will the Minister tell me what the problem is that will be solved by removing the code?
The noble Lord, Lord Rooker, has quoted extensively from the BRE. It has probably provided us with similar briefings. The briefing points out that the new arrangements will mean that, in the future, energy performance set through the building regulations will be lower than many local authorities currently require, with the need for a special application to use optional regulations. This takes us back to the previous debate, and the shift in process and relationships, and in how things are decided, who gets to decide them and on what basis. He is right: of course there is a tension between national standards and localism. We are five years into this Government and it is about time some of those tensions were resolved. It is causing real issues at local level.
The BRE, which is expert in sustainability, has stated that:
“Over 75% of the sustainability requirements currently covered by the Code will no longer be covered by any UK standards or regulations”.
Is that factually correct? I would like to know if that is the case. What might that 75% include? How will that be compensated for in the new arrangements? In short, I would need to be convinced that whatever is coming forward will have the universal nature of the code for sustainable homes, that it will be as accessible and as easily applied, and that it will have the impact that the code can have in terms of efficiencies. What is going to happen to energy bills and to energy efficiencies within the home? I do not think that the House would want to proceed with this clause unless we could be certain that we knew the answers to those questions, and that we could say to people outside this House that the energy situation and their energy bills would get better as a result of these changes.
Lord McKenzie of Luton
My Lords, we have heard two very powerful presentations from my noble friends. It is not my nature to be helpful to the Minister, but I want to put one matter to him. The bit of briefing I received suggested that the particular provision in the Planning and Energy Act 2008 would stay in being until the zero-carbon homes policy was in place and that that would effectively replace it. That itself raises a couple of questions. The first is whether the zero-carbon homes policy would cover all the protections that my noble friends have said would be lost once we delete this provision. Secondly, how can we be assured that there will be an alignment—if that is the right way to go—and that the zero-carbon homes policy will come in at the same time as the ability to require higher standards disappears? There is a fundamental issue about whether the zero-carbon homes policy equates to what could be achieved under this provision. If it does not, the sort of losses that my noble friends Lord Rooker and Lady Andrews have identified become very real and pertinent.
Baroness Andrews
My Lords, I declare an interest as a member of the Delegated Powers and Regulatory Reform Committee. The Minister will not be surprised if I quote from that committee because it is important to have some of the points that were raised on the record.
I am very grateful that our chair, the noble Baroness, Lady Thomas of Winchester, is with us today. She very ably managed what has been, frankly, a chaotic process over the past few days. Normally we would expect an Explanatory Memorandum to arrive well ahead of the committee’s deliberations. In fact, we had to hold an emergency meeting of the committee to discuss the amendment, because it was tabled so late. We had no Explanatory Memorandum until very late in the afternoon of the day before we met. Our legal advice was therefore very limited, and we did not have the narrative that we would normally have expected. We had a series of very conclusive points but the committee was not well placed to make the usual judgment. Nevertheless, thanks to the noble Baroness, Lady Thomas, and the clerks, we managed to prepare a very thorough, forensic and serious report on the process of the amendments and how they were tabled, as well as their content.
The process is important, of course, and for reasons that I have explained it was not at all satisfactory, but the content was even less satisfactory. The conclusion of the committee on these amendments, which essentially move the procedure from affirmative to negative in relation to the clause, is that they are inappropriate. It is a very serious judgment; we do not make it lightly and we do not make it very often. Any amendment that reduces the level of parliamentary scrutiny in this way deserves serious consideration by the House. In this situation, it means that the Minister has agreed and made it clear that these instruments can no longer be regarded as hybrid instruments—that is to say, in relation to the creation and powers of UDAs and UDCs.
Why are the UDAs and UDCs important? What do they do? They go back a long way. They have been created, and not lightly, for the major planning decisions that involve massive change and development. Ebbsfleet is a good example but, coming along, we may have garden cities and massive urban extensions—all developments that will have a profound impact on local communities and infrastructure, as well as local jobs and everything else that goes with it.
The argument against hybridity in the context of what is proposed is that it introduces delay and uncertainty. It takes too long and can be disruptive. Indeed, the Minister has just used the words, “quicker”, “easier” and “cheaper”. We are all in favour of, and see the necessity for, urgent and strategic housebuilding in this country; there is no difference between us on that. What we do not want is to see a process deliberately compromised because the Government do not agree with that process, which has been in place and has served the country and the planning system well for the past 30 years.
The committee was very clear on this, saying:
“We do not find the arguments advanced in the memorandum in support of the proposal to downgrade the level of Parliamentary control … to be at all persuasive”.
It went on to say:
“We note that, when those sections were enacted to confer these significant order-making powers on the Secretary of State, it was recognised in the course of the proceedings in each House that orders designating UDAs and establishing UDCs were likely to be found hybrid … with the result that the petitioning process would be available to ensure that those whose interests were directly affected by the orders could have their objections properly examined and determined by a select committee of this House. In the light of what is said in the Government’s memorandum, and in particular in paragraph 20 regarding the current proposals for a UDA and UDC at Ebbsfleet in Kent, we consider that the retention of the hybrid instrument procedure in this context is no less necessary today for the purpose of properly safeguarding such interests than it was when sections 134 and 135 were first enacted … The present proposals do not appear to flow from any general review of infrastructure or other statutory planning procedures in connection with the designation of UDAs and the establishment of UDCs. Had that been the case, we might have expected to have seen provisions of this kind in the draft Deregulation Bill published last Session”.
Deregulation Bill
Baroness Andrews Excerpts(9 years, 10 months ago)
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Baroness Andrews (Lab)
My Lords, I, too, had the privilege of serving on the Select Committee under the energetic leadership of my noble friend Lord Rooker. It is a pleasure to follow the noble Lord, Lord Naseby. I agree with much of what he says but there are a few things that I will take issue with.
The noble Lord, Lord Fowler, who is not in his place, put forward some very impressive examples of effective regulation but I think he would agree with me—and picking up what the Minister said—that what we have in the Bill is one of those exercises that Ministers and officials across Whitehall absolutely dread. The call to arms went out from the Cabinet Office: “Something more must be done about regulation so it is your job to find more examples of regulation and bring them forward”. At a long stretch, many departments did bring things forward, so amid the many useful things in the Bill—the Select Committee commended the Bill in many respects—we have a real mishmash of odd initiatives, ranging from fire, fuel and farriers to the defence of the grey squirrel and much else, as we have already seen. As the noble Lord, Lord Naseby, very eloquently put it, the Bill has proved an irresistible magnet for all manner of things which the committee never had a chance to look at and which the House will want to debate. These measures were shoved in without warning, consultation or thought for the implications for public safety and security, as my noble friend Lord Monks said. I am sure that this will be followed up by many noble Lords.
We make it very clear in our support for the Bill that we are in full support of proportionate regulation to enable enterprise of all sorts to flourish—who could not be? The Bill, however, suffers from being, in large part, opportunistic. Indeed, there are elements of the Bill, as we explored in our debate, about the cavalier treatment of Parliament itself. The Bill will benefit from close scrutiny from your Lordships. The noble Lord, Lord Rooker, has already discussed the extraordinary Clause 51 in the draft Bill which would have given Ministers carte blanche to declare, by order, that certain legislation could be removed,
“if the Minister considers that it is no longer of practical use”.
Our evidence found that neither officials nor Ministers could tell us what on earth that clause actually meant, let alone what it would do; so, very sensibly, Ministers decided to throw it out. My only surprise was that the reason they gave was that there was no public appetite for it. I should have thought that that was the least reason, frankly.
A lot of fun went out of the committee when we lost that clause, but we still became very involved with the sorts of issues raised, for example, by the noble Lord, Lord Tope, about the Bill’s title and whether the Bill was, indeed, deregulatory in every respect. Decriminalisation as regards household waste, for example, is hardly deregulatory in a conventional sense. Likewise, we have examples in which the burden of regulation is simply shifted from one agency to another, as in some of the education clauses. My prime concern in this respect is in relation to the new duties that are created. I have to part company, sadly, with the noble Lord, Lord Naseby, over the duty to promote growth in Clause 83. This, in a Bill which aims at decluttering, is a massive piece of new clutter.
I am grateful to the Minister for circulating the draft guidance, but can he tell us in the wind-up, in fewer words than Ministers tried to tell us in the Joint Committee, how, by creating a new duty, the Government are minimising the burden on public bodies? We do not need to be told in statute how important growth is, so why on earth is this in the Bill at all? Many regulatory bodies work within a remit that presumes and encourages growth, as the noble Lord, Lord Rooker, has already pointed out. The regulator I know best, English Heritage, conducts its primary work of conservation within the balance of priorities established, after long debate, around sustainable growth as set out in the National Planning Policy Framework.
The committee has been assured, and the House was assured this afternoon, that the clause will not confuse or override existing requirements. However, where are the safeguards that regulators will not be hauled up to account for their lack of success or lack of sincerity in promoting growth? The draft guidance, which I was grateful to see, in fact leaves it to the regulators to decide for themselves where the balance lies. It states:
“The growth duty does not automatically take precedence over or supplant existing duties held by regulators—Section 2”.
What does “not automatically” mean in this context? In their response to the committee the Government said:
“The final guidance will be published at an early stage to support Parliamentary passage of the Deregulation Bill”.
Can we have an assurance that this will be available before Committee stage in the autumn?
In short, there is a real concern that this clause could cause genuine mischief. It could be used to pressurise bodies and distort their proper functions as well as creating additional burdens to demonstrate compliance. That is not just the non-economic regulators, which have a particular problem, but the economic regulators as well. The clue as to how the Government think it will work is what the Minister said in another place—that in the last resort a business will use judicial review. I am astonished by that. Not only is it a totally inappropriate expectation to build into the legislative process, it completely sidesteps the Government’s plans to emasculate judicial review that we in this House discussed only last week. Frankly, I would much rather all this be in the Bill, where we could see it with some security. I appeal to the Minister not to use this crude definition of growth but to go back to the tried and tested definition of sustainable growth, which has been worked out in practice and is so much more consistent and sensible. Otherwise we will be into short-term improvisations regarding the nature of growth, and that would be really dangerous.
Clause 1 has already been raised as a cause of concern around the House. Our committee had several witnesses who described the changes as unnecessary, unhelpful and unwise. I know that the prescribed list has been published, but it is vague in parts, and it is not clear whether some trades are in or out. There is another aspect which exercises me: the clause requires the prescribed list to be set out by negative resolution. This is for a change which will have a major impact on safety at work. When that was challenged, the Minister gave us the reason for not using an affirmative order—that the increase in parliamentary time that would be required was not considered appropriate. We see many inadequate explanations for inadequate parliamentary scrutiny, but that is one of the worst.
Another set of policy issues flares up around the housing clauses. First, we have the reduction from five years to three years in the qualifying period for the right to buy. In all logic, given the housing crisis in this country, it is bizarre to reduce the permanent housing stock any more. Evidence from the LGA suggests that for every seven local authority homes lost, only one new one has been built. Will the Minister give a commitment to publish the impact statement before Committee? We have wasted an opportunity here to enable councils to fill the housing gap. The Bill could have allowed for the full retention of receipts by local authorities and been the vehicle to remove the housing borrowing cap.
We have in Clause 32 a useful and almost welcome new provision to create new powers for the Secretary of State to include optional requirements in building regulations. That means that, for the first time, new homes can be built which are flexible and adaptable for people growing old and people with disabilities. However, it is optional. It needs to be a requirement, not least because the only place where this is happening is in London—our thanks are due, first, to Mr Livingstone and then to Mr Johnson. If the requirement is optional, it will deter other local authorities from following the very good lead set by London.
There is much that we will return to in the Bill. There is no doubt that it has been cobbled together, and there is the sound of barrels being scraped in many clauses. However, there are useful things in it, too. I look forward to a more forensic examination in Committee.
Electoral Registration (Postponement of 2013 Annual Canvass) Order 2013
Baroness Andrews Excerpts(11 years, 2 months ago)
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The Deputy Chairman of Committees (Baroness Andrews)
My Lords, we will adjourn for five minutes to give the noble Lord, Lord Hunt, a chance to get here for the next debate. There has been a long Division, so he is possibly stuck somewhere. We will resume at 4.35 pm.
Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report
Baroness Andrews Excerpts(11 years, 2 months ago)
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Baroness Andrews
My Lords, it gives me great pleasure to participate in this debate and I congratulate the noble Baroness on having secured it. I support what she said about the excellence of our report and thank her for the comprehensive way in which she set out the background to the report. It is a pleasure to serve under her wise, inclusive and very firm leadership. I must ask the forgiveness of the House if I cannot stay for part of the debate, but I shall be here for the end. The business of the House has gone slightly awry this evening.
Like the noble Baroness, I shall say a few words about the context of statutory instruments and their role in policy. In terms of parliamentary architecture, it is obvious that the DPRRC was a hugely important innovation in the bastion of parliamentary scrutiny. It is a model of scrupulous attention and is unique. It concentrates the minds of Ministers and departments very well. I remember, as a departmental Minister, the collective groan that would go up in the department if the DPRRC recommended that we change a negative to an affirmative instrument. We were always very conscious of the tightrope we trod. We listened, and for good reason, because essentially what impacts upon people’s lives in terms of legislation is not primary legislation but the statutory instruments. I once saw a statistic—I cannot stand it up but others may be able to—that 80% of the laws as they impact on individuals are transported through statutory instruments, whether that is welfare benefits, food safety, planning requirements or competition across the NHS. The trouble is that few people outside Parliament are au fait with the way that statutory instruments work or are debated. We should try to address that obscurity.
Secondary legislation serves government well. It served Henry VIII well and consolidated his powers of dictatorship. It serves his successors well, too. Sometimes, there is no mistaking the Government’s intention. There are those of us who still clearly remember the Public Bodies Bill, where the Henry VIII powers were used so blatantly and deliberately that they shocked the entire cast of the DPRRC to its core. The committee and this House brought the Government to book on that.
More often, Ministers argue rightly that secondary legislation is simply a practical solution to implementing change in an uncertain world. It enables flexibility and reflects a willingness to respond to changing circumstances. There is the impossibility of loading all the detail, implementation and enforcement into primary legislation. Yet that is a secondary weakness. In the interval as we waited for this debate to start, I added up the number of SIs that have been and will be before the House between 27 February and 19 March. There are 38 sets of regulations in that short period, with six yesterday in the Moses Room.
The irony is that while much of the effort goes into writing and rewriting Bills, not least in response to egregious errors, secondary legislation, which requires enormous care and attention to detail, tends to suffer from the lack of both. It is also a victim of time. We have lost count of the number of times we have desperately needed regulations before this House before the Report stage of a Bill, only to be told that we could not have them because they were in draft and officials were working hard but could not produce them.
It is for this reason that I am a firm supporter of the recommendations made by the Goodlad committee, on which I had the honour to serve, to improve the way we make legislation, train Bill teams and discuss the issues with draftsmen. Our task in the committee is to determine whether the level of delegation is right. As the noble and learned Lord, Lord Mayhew, said, tempting though it is to trespass into policy, we are always brought firmly back to the point that that is not our business. But we should ask the following questions. Have Ministers taken too many powers unto themselves? Is that deliberate or accidental? Is the level of delegation appropriate? Have the officials really thought about the alternatives?
Most of the time, as we find, delegation is appropriate. However, given the various scrutiny procedures and the variations they impose, as documented in the report, it is not surprising that this House, let alone Bill officials and draftsmen, gets confused. Sometimes, the Explanatory Memoranda that come before us are disingenuous in terms of the arguments about the level of delegation proposed. Sometimes, for example, departments misunderstand, wilfully or not, the role of precedence. Sometimes it seems that the subtle difference between negative and affirmative regulations, or the justification for the most severe of regulatory structures—the super-affirmative—have not been sufficiently on the departmental radar. No wonder that our report calls this a,
“complex patchwork of procedures”.
While reflecting on that, we have been provoked by more recent and specific changes that have introduced yet more variations and at the highest levels of the Henry VIII procedures. The noble and learned Lord, Lord Mayhew, said that we must not be churlish. I do not want to be churlish because we welcome any enhanced role for Parliament. However, the new variations are simply, and as we describe them, frankly, unhelpful. They confuse an already confused picture. The report lists the variations in terms of primary legislation, the multiplication of different models, the variation of procedures and the delegated weight, and the inconsistency in requiring whether supporting documents should be laid before Parliament. Equally frustratingly, an uncertain vocabulary adds another layer to that bank of rolling fog. We have super-affirmative versus enhanced and varying terms for the responses that are required to committee recommendations.
At least the Government agree with us that the muddle must stop. Like the noble Baroness, Lady Thomas, I am grateful that the Government see the need to stop improvising, to resist the temptation of making any more new variations to an existing and strengthened procedure, and to introduce consistency by undertaking to lay supporting documents setting out the detail of and rationale for any proposed orders under Section 19 of the Localism Act 2011.
However, that sensible response is, for me, overshadowed by the fact that, as noble Lords have said, there is genuine uncertainty about the future use of LROs—the most draconian of all forms of delegated legislation. The previous Government established the convention that LRO procedures would not be used to force through controversial legislation or when a scrutiny committee of either House had opposed the proposition. Why have the Government apparently refused to honour this? Why are they so silent on that point? What is so difficult about that aspect of accountability and good government? That is bound to raise suspicion, perhaps for the wrong reason.
I am bound to say that my fears have been compounded by the evidence that the Government are trying to reduce consultation procedures. Where does this sit with Mr Francis Maude’s commitment to greater transparency and open government? When will the Government learn that, in the long run, it is infinitely better to take people with you than to press on regardless of how those who are affected by the legislation see it and will have to implement it? I hope that the Minister can give us some reassurances today.
Finally, under “any other business”, I want to support what the noble Baroness, Lady Thomas, said about the way in which Parliament deals as a whole with affirmative resolutions. There is no doubt that the present situation is deeply unsatisfactory for everybody. The choice between a debate on unsatisfactory regulations where not even the most perverse consequences can be ironed out, challenged, or removed, and the cliff edge of a fatal Motion which wrecks the entire process, the good bits and all, serves no one. It does not serve the Government, who may have to retrieve their mistakes months later; it does not serve the credibility of Parliament, whose job it is to help get legislation right; it does not serve the purposes of this House; nor does it allow us to undertake our specific responsibility to make government think again and think carefully. That is what we do. It certainly does not serve people in the community who have to live with the consequences. We need a third way: an opportunity to nudge government without humiliating Ministers; an interim stage to consider regulations on the understanding that the Minister can take them away to rethink them. It might be a counsel of perfection in some cases—some regulations one would not want to see ever again—but, nevertheless, it would make for better law and, often, more humane solutions.
I hope that the Procedure Committee will listen very hard to what is said in the Chamber and act on it. I conclude by congratulating the committee on a good piece of work. I thank our clerk again for initiating it and I look forward to the Minister’s response.
Lord Wallace of Saltaire
My Lords, I approached this debate with considerable trepidation. When I first came into this House, I was told by several people that, after the Clerk of the Parliaments, the greatest expert on all matters of procedure was the then head of the Liberal Democrat Whips’ Office, Celia Thomas, who is now my noble friend Lady Thomas of Winchester. When I started to read into this subject, I discovered how little I understood about the processes of scrutinising secondary legislation and, indeed, about the difference between a remedial order and a legislative reform order. I now understand, and I hope I still will in a week’s time, but it has been a journey of exploration.
This has been a very useful debate, and I start by agreeing with the noble and learned Lord, Lord Mayhew, that this is a success story. What we have seen in this Chamber over the past 20 or 30 years is a gradual rise in its effective ability to give scrutiny. As a young academic, I was an adviser to Lords and Commons committees and I discovered that Lords committees were much more serious in many ways than Commons committees and much less partisan. Members had read their papers, they came and they asked about paragraph (15) and what precisely the Government thought they meant by it. That is, as the noble Baroness, Lady Smith of Basildon, said, a different function from that of the Commons, but it is a very useful function. We should be very proud of it and cling to it.
Much of the best work this House does is done in its committees, and I hope that will continue to be the case. There is a necessary tension between the Executive and the legislature and listening to this debate I was thinking that much of the press comment on British government is a matter of seeing a conflict between the Government and the Opposition, but there is also a very positive, necessary tension between the Executive and the Legislature, whatever that may be. We play our role—the Cross-Benchers and others in this House—by providing the detailed scrutiny that does not get on to the front page of the Daily Mail but does improve the quality of legislation. For that reason, I have more sympathy for the suggestion from my noble friend Lady Thomas of Winchester that we should move towards looking at draft SIs than for the Goodlad proposal that the House should assert its right to vote down. As the noble Baroness, Lady Smith, said, that should be regarded as the reserve option, the exceptional circumstance. Greater dialogue with the Government about progress on SIs is a much more effective way to influence.
When I first came into the House of Lords, I was asked what I thought the power of the Lords was. After a bit, I said, “I think it’s the power to embarrass”. That is quite an effective power in the dialogue we have with Ministers. The power to publish and to whisper to a visiting journalist that this Minister has not really got it right yet are quietly effective in the corridors of Whitehall, and that is the way this Chamber should operate.
A number of noble Lords suggested that the number of SIs and the area of subordinate legislation are growing. I am pleased to say that, from looking at the statistics, that is no longer the case. In the legislative year 2007, nearly 1,200 SIs went through. In 2011, there were some 750. Cynics might suggest that the longer Governments are in power, the more they are likely to resort to SIs. If that should be the case and this Government stays in power for long, I trust that Members of this House will point that out and keep Ministers up to the mark.
I have some sympathy with those who say that slower government is better government and that less legislation is better legislation. The problem, which we all recognise, is that in an era of 24/7 media and of lobbies insisting that Ministers should take on everything they are lobbying for, it is very difficult for Ministers to resist those outside pressures. It is thus up to Parliament to keep pushing back and saying, “Think about proportionality. Think about whether this is necessary. Think about whether this is desirable”.
I am fascinated—I now at last understand this aspect of Henry VIII powers. I thought when I first heard about Henry VIII powers that they were a way of keeping numbers in the House of Lords under control. I have sometimes wished that they might be reintroduced as a means of keeping the numbers down and allowing new blood to come in, so to speak. Henry VIII powers are clearly something we always wish to question. The question of how clear Governments should be about the implications when they put new legislation through is something we can accept as desirable in terms of good legislation. The Government accept all those criticisms and the House of Lords will, I hope, maintain its effort to keep the Government, of whatever variety, up to the mark.
The noble Baroness, Lady Andrews, incidentally, suggested that 80% of legislation consisted of SIs. I am not sure where that statistic comes from. If the noble Lord, Lord Pearson of Rannoch, was here he would say, of course, that 80% of legislation was forced on us by the European Union. I suspect these statistics are both a little—
Baroness Andrews
My Lords, I was saying that it has been calculated that 80% of the impact on people comes via SIs, not that 80% of legislation is made through SIs. That is why I find it difficult to source. I will try to find a source for the Minister.
Lord Wallace of Saltaire
I understand. This was an extremely valuable report, in particular for pointing out that we have wandered into a situation where there is considerable diversity—indeed, almost a confusion—of different sorts of arrangements under secondary legislation. I can imagine how these will have grown up with Ministers from different departments making specific concessions on different Bills. The committee is quite right to say that we should exert pressure to bring things back to as common a model as possible.
The former Leader of the House, my noble friend Lord Strathclyde, wrote to my noble friend Lady Thomas last November, accepting the committee’s conclusion that, wherever possible, existing procedures for enhanced scrutiny should be used. In his response, which I have deposited in the Library, my noble friend noted that there may be exceptions where existing procedures are not suitable, but where the Government sought to create a new procedure they would clearly set out the case for doing so.
The committee’s report also invited the Government either to set out the case for not requiring supporting documents to be laid with draft orders under Section 19 of the Localism Act 2011—to which a number of noble Lords have referred—or to give an undertaking to lay supporting documents when laying any draft order under that section. I can confirm that the Government have given an undertaking to produce material setting out the detail of, and the rationale for, any proposed order under Section 19 of the Localism Act 2011, and to provide relevant background to support the parliamentary process.
The committee’s report also looked at orders made under Section 14 of the Legislative and Regulatory Reform Act 2006. We welcome the recognition that the existing scrutiny procedures for 2006 Act are robust. The committees scrutinising such orders can choose which scrutiny process should be used. They also have the power effectively to oppose any highly controversial measures. Ministers are obliged to consider the committees’ recommendations and cannot easily set them aside. They would need to persuade the whole House to overturn any recommendation by a committee to reject an order.
In practice, any legislative reform order that has been identified as highly controversial during the consultation stage has been withdrawn. Some measures have returned with increased scrutiny in a Bill. Neither committee has ever felt the need to exercise its veto when considering draft orders. This is why the Government have not felt the need to renew the undertakings given by the previous Administration. This is not a change of policy. The undertaking was given by the previous Government in 2006, at a time when it was not clear how the powers in the Act would be used. It is now clear that the process of bringing forward draft orders and the scrutiny process has worked well. However, I recognise that some noble Lords have strong views on this issue, so we are willing to take it away and consider it further.
The Government believe that legislative reform orders are important tools to reduce burdens on business, taking forward deregulatory measures that do not fit into other legislative vehicles. The report also touched upon orders made under Section 85 of the Northern Ireland Act 1998, Section 102 of the Local Transport Act 2008 and various orders made under sections of the Local Government Acts 1999, 2000 and 2003. Some of these have been rarely, or never, used. Section 85 of the Northern Ireland Act has been infrequently used and, following the devolution of policing and justice in 2010, its use is likely to decline further. No orders have been made under the powers in the three Local Government Acts. In relation to the Local Transport Act 2008, the committee’s report on the original Bill at the time noted:
“We consider both the delegation and the level of scrutiny proposed for the powers”,
in these clauses “to be appropriate”.
The noble Baroness, Lady Thomas, touched on the mechanism by which we debate and approve secondary legislation, particularly the system of consultation and the time allowed for it. Any changes would of course be a matter for the Procedure Committee. I would not wish to pre-empt its discussions, but I acknowledge the importance of the process of consultation and of having a process which commands public confidence. Again, I will take that back to the Cabinet Office.
There is of course a great variety in the significance of secondary legislation laid before the House. It is worth remembering that Parliament itself delegates powers to Ministers and, advised by the DPRRC, decides which form of scrutiny—negative, affirmative or super-affirmative—is appropriate for any particular delegation. In addition, a significant proportion of secondary legislation is already published in draft, with the consultation process beginning long before instruments are laid.
The noble Lord, Lord Butler, suggested rationalisation of the committee structure and greater use of Joint Committees. I think a number of us would want to take that away and think about it further. I am more persuaded by the arguments of the noble Baroness, Lady Smith, about the different functions of the two Houses. My limited experience of serving on one Joint Committee suggested that the two Houses do not always blend terribly well. A great deal depends on the subject. To the credit of this House, we tend to approach things in a less partisan and more detailed manner. Perhaps there is an argument that maintaining a degree of duality may therefore be functional.
Draft House of Lords Reform Bill
Baroness Andrews Excerpts(12 years ago)
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Baroness Andrews
My Lords, this has been a very powerful and forensic debate. It is a challenge to be the last Back-Bencher to speak, and the last to have had the privilege of serving on the Select Committee. I said rather casually at the beginning of the process that it was a bit like being sent with Sir John Franklin on his expedition to the Arctic. I was wrong, however—at times it was more like being on the “African Queen”, with my noble friend Lord Richard as Humphrey Bogart hauling us through various crocodile-infested swamps and a rather cantankerous crew on board. The stamina which the chairman and my fellow members showed was remarkable. I pay tribute also to the clerks, who were incredibly patient with us.
A consensus was reached on the committee: it was that none of our debates were dull. Our disagreements were indeed all about principle, not perversity. It was helpful to have the benign voice of the right reverend Prelate the Bishop of Leicester to restore harmony when we got out of control. As noble Lords on the committee have already made clear, our views did diverge, particularly in precisely those areas where the House would have wanted us to be most scrupulous: that is, on what we variously saw as the impact of an electoral mandate—and in the alternative report we used the term “electoral mandate” rather than “election” throughout—on the second Chamber and on the primacy of the House of Commons. Our second concern was the workability of the Bill and its practical and political consequences. On those grounds, those of us who signed the alternative report were convinced that the Bill simply fails the minimum tests. We thought that that needed to be recorded and explained.
Noble Lords have drawn attention to the stark and consistent divisions in the committee, and to the pattern of voting, with votes lost by one or two. Therefore, it is all the more significant that the committee was totally united in rejecting the fundamental proposition of the Bill, Clause 2, as fatuous. Witness after witness demolished the claim made by Clause 2 that the elected House would change nothing and the primacy of the House of the Commons would remain intact. That assumption could be the reason why we have had no impact statement on the Bill. If the Bill has no impact, why should the Government provide an impact statement?
The noble Lord, Lord Tyler, raised the issue of cost. I do not want to revive it but I was sorry that his wrath was not turned on the Government for not producing costings for us, rather than on my noble friend Lord Lipsey, who stepped into the breach. I also remind him that that was the precise reason why we invited IPSA to express—which it did rather well—what might go into those costings, including the whole range of support services such as research assistants, facilities, space and IT costs, which are all critical if an elected House is to do its job. Therefore, we have made a start on fleshing out the implications.
What was particularly disappointing was that the disingenuous—indeed, dangerous—thesis that Clause 2 changed nothing was peddled by Ministers and only by Ministers. The Select Committee’s report, which was based on the weight of the evidence and the great deal of experience that came before us, says—in contradiction to the Bill and in the words of one witness—that “the world will change”. Clause 2 cannot protect the primacy of the Commons. We have in the House of Lords an unusually powerful Chamber. So far, it has been restrained in its use of its powers by culture as well as convention. The report says that in future the second Chamber will unchain those powers and use them assertively; and that, as a result, the balance of power between the two Houses will shift in favour of the House of Lords. It also says that the second Chamber, elected on a proportional system, will indeed acquire a new function of representative responsibilities. It is hard to imagine greater changes in the status, function and powers of the second Chamber than these, or indeed greater changes in our present constitutional balance.
To answer the question of the noble Lord, Lord Strathclyde, it was on those grounds that the committee, at the very end of its deliberations, decided that these massive changes could not be left to the prerogative of government, but needed to be endorsed, or otherwise, in a referendum. I was very glad that the noble Lord, Lord Tyler, clarified his position on the referendum.
However, when challenged on the constitutional risks that will be a part and parcel of these changes, the Minister, Mr Harper, could offer only a cheerful wave in the direction of the Parliament Acts as a regulatory device that would have to be used more often. This is emergency legislation, cobbled together a century ago, to restrain the power of this House. The Deputy Prime Minister, who is already on record to the Constitution Committee as not being too concerned, or indeed too clued up, about the Parliament Acts, refused to be drawn. One witness described the ministerial approach to policy-making as racing blindfold over the edge of a cliff. Therefore, I am bound to say that it is hardly surprising, with this degree of thoughtful statesmanship, that the Bill marks a change of direction in our constitution in which the destination is unknown, the risks undetermined, the costs unquantified, the impact on Parliament as a whole left to chance and the constitutional impacts unconsidered. We know what the real agenda is. Even though the Deputy Prime Minister is on record as saying, in effect, that he knows that this is not the priority of either his constituents or the Government, the reality is that the Bill has become a bargaining chip for the coalition.
My noble friend Lord Richard stated rather plaintively that there was nothing left to say about the issue. We may have had years of debate but it has taken the reality check of the Select Committee and the alternative report to drive down into what is really at stake, and to uncover some of the intractable problems and contradictions of a second Chamber with an electoral mandate. As Professor Bogdanor told us, the problems of balance and power have been avoided only because we have just one elected Chamber. As we have heard, such problems have been resolved in other countries within a written constitution. We do not have that discipline or framework.
Taken together, the two reports show how much hard and detailed work is to be done and how divisive some of these issues are. Of those disagreements, the most profound was over our sense that the debate on and definition of primacy is incomplete. Many noble Lords have referred to paragraphs 66 and 67, which state that these “remaining pillars”—the Parliament Acts and financial privilege—on which primacy rests will be sufficient to secure its continuation. We do not believe that that is so, which is why we tried to remove it from the report. We lost that vote by 10 to 12. We believe that the powers that the second House will have will pose a serious threat to the authority of the House of Commons, for the many reasons set out so eloquently in this debate. Secondly, we do not believe that primacy of the House of Commons rests solely on the constitutional arrangements created by virtue of the struggle between the Crown and Parliament more than four centuries ago, or on the expediency of containing the powers of the House of Lords in the Parliament Acts.
There is something more at stake here, underscored by Erskine May: the primacy of the House of Commons and the positive obligation that MPs have to their electors—that is, the principle and the power of the unique mandate held by Members of Parliament. That is what we submit to every time we draw back from challenging a Second Reading, laying a fatal amendment to secondary legislation and pursuing amendments to their logical and moral conclusion. An electoral mandate with commensurate powers rips up these foundations. Who can predict which Chamber would prevail? The result would be a Parliament divided against itself, uncertain of where power might lie and locked into its own internal battles. In answer to the noble Lord, Lord Strathclyde, it was for those reasons that we concluded that a more assertive House would not enhance Parliament’s overall role. It is because the House of Lords will become so much more powerful that the Government offer democracy with one hand and take it away with the other.
As the right reverend Prelate the Bishop of Leicester put it beautifully, it is democratic legitimacy watered down to incoherence. The mandate for the second Chamber is assumed by Ministers to be—and is designed in the Bill to be as far as possible—a very cramped and confined version of democracy. It is designed to reduce the challenge to the House of Commons, and to reduce the impact, scope and accountability of elected Members. Ministers were blatantly clear about this in their evidence. Not only would a hybrid House with 80 per cent of Members elected be less of a challenge to the House of Commons, it is also an illogical fudge for those of us who believe passionately in a 100 per cent elected House. A 15-year term with no accountability is an attempt to limit the scope of elected Senators by reducing their resources. I find that unethical and risible.
The Government may want to turn the second Chamber into steerage class but they will not be able to. If the Bill becomes law, tomorrow’s Senators will be national representatives, elected to a national Parliament on a national mandate. They will deal not with local, European or devolved matters but with the same issues as the House of Commons deals with every day, and they will exercise the electoral mandate that they have been given. Legislation, ministerial diktat and the ingenious devices put forward by some Members of this House will not be able to determine what these new Senators in a new Parliament will do, or how far they will go to use their powers.
What will the Government do about the report and the Bill? The Deputy Prime Minister said:
“We have tried in the time available to move in a very deliberate, collaborative and open fashion. That is very much the spirit in which the Government will respond”.
We have offered him a way forward and I am sure that, in the spirit of what he said, he will take it. We are in a very different place as a result of the work that has been done. We have exposed complex and unresolved questions. The long grass is not an easy option and we are not rushing for it. As many noble Lords have said, reform and election are two different things. It is not a case of being for or against greater democracy, or for or against reform. We can have both. The work has already started in the Steel Bill, the reform of the appointments system, the coherence of the Goodlad report and the wise words of the noble Baroness, Lady Hayman. We have been too slow and too circumspect about reforming this House ourselves. Let us take this opportunity as the better alternative.
Social Enterprise
Baroness Andrews Excerpts(12 years, 7 months ago)
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Baroness Andrews
To ask Her Majesty’s Government what proposals they have for promoting social enterprise.
Baroness Andrews
My Lords, it gives me great pleasure to open this debate on social enterprise. I am particularly gratified that at this hour on a Thursday so many noble Lords have decided to join it. That clearly indicates that we consider this issue to be very important. Since I tabled the debate some months ago, there has been a cast change. I am very pleased to see that the noble Lord, Lord Wallace, will reply to the debate, and I look forward very much to hearing the Government’s response.
I had hoped to have the debate earlier in the year, but today’s debate has turned out to be more timely. We urgently need to discuss the future of social enterprise, particularly in the light of the comments made by the Chancellor at the Conservative Party conference this week about how to revive the economy. My argument is very simple: if the Government were really smart, the Chancellor and his colleagues would engage, as a matter of priority, with the social enterprise sector to provide it with the tools it needs to prompt growth through innovation, enterprise, skills and jobs, particularly in hard-pressed communities. There is not a moment to waste.
It is fair to say that this country is a world leader in recognising the unique possibilities of social enterprise, whether we are talking about social business or the habit of enterprise, which is clearly now spreading across the whole of the third sector. Over the past few decades we have seen a range of very effective and successful models emerging.
Some years ago I had the enormous privilege to work with Lord Young of Dartington, probably the greatest social entrepreneur of the previous century, when he was creating the School for Social Entrepreneurs. That was a hugely prophetic idea and one which has not only had great success in this country but has been replicated in other countries. The school and the growth of social businesses in general across the country show how innovation, skills, jobs, enterprise and social solutions can grow modestly but effectively in local circumstances, and sometimes in very unpromising circumstances.
The evidence suggests that social enterprises can succeed where private enterprise might fail or not entertain the idea of going. That is why, no doubt, in 2010 the Government promised to support the creation and expansion of mutuals, co-ops, social enterprises and charities so that they could have a greater say in the running of public services. It was a brave step forward, but it was not a new idea. My colleague on the Front Bench and I were in a department which committed itself entirely to the promotion of social enterprise. With the New Deal for Communities we saw in very disadvantaged communities across the country extraordinary innovations developing by way of social enterprise. I think, for example, of the Shoreditch Trust, led ably by Michael Pyner, and many different examples across the country. However, more significant than the scale or the diversity of the sector— £20 billion at one estimate—is the rate of growth, the evidence of sustainability and the public support that it commands.
We hear a lot about how the private sector is the solution to our economic malaise and how it must lead the economic recovery. In fact, the research undertaken by Social Enterprise UK, tellingly called Fightback UK, contains evidence of how, compared with the private sector SMEs, social enterprise shows three times the level of start-ups. It is outstripping private sector SMEs in growth, confidence and sustainability. I give a couple of examples of that. Some 800 social entrepreneurs who have graduated from the School for Social Entrepreneurs generate jobs to the value of £13 million each year—70 per cent of them are in the 20 per cent most deprived communities. Unlimited, another extremely interesting social innovation set up with millennium funding years ago, has enabled the most vulnerable in our society—refugees, no less—to start successful small businesses which address the aspirations as well as the needs of communities which might otherwise be excluded. The problem is that this window of opportunity may now be closing, just at the point when we need new ideas, new energy and new commitment. To quote from the SEC’s research:
“Social enterprises working in public services are drastically low on confidence. A large proportion of these are planning redundancies or turning away from public service markets”.
Across the third sector as a whole, there has been a 5 per cent reduction in jobs just in the past year.
Social enterprises seem to be facing a perfect storm. On the one hand, they have cuts in public spending and services which have a disproportionate effect on them because they are nearly always outward-facing into the public sector. On the other hand, they have not been equipped with the tools to enable them to compete with a highly capitalised private sector. Specifically, we see cuts in grants but, more critically, cuts in contracts from local authorities and national bodies. There is an absence of strategies or support for local and national commissioning to enable the sector to contribute. There is an increase in demand for local services, which is bound to increase in the next three years.
So far we have not seen much understanding from this Government of the impact of this and we have not seen a great deal of response to these threats. The Mutual Support Programme announced by Francis Maude in November 2010 has yet to materialise, as has a national programme for third sector commissioning. Therefore, my first question to the Minister is: when will these policies be published and what will they contain, and what impact does he think they will have? On the other hand, all the signs are that, far from public service markets opening up to social enterprise, they are being captured by a small number of highly capitalised large private sector providers. The barriers to entry at the moment are simply too high for even the most efficient social business. The Wise Group, which has an outstanding record of performance, to everyone’s dismay lost out to massive private sector providers to deliver the welfare to work programme.
The Government’s health flagship, Central Surrey Health, which is an exemplary social enterprise, lost out to Assura, which is 75 per cent owned by Virgin. If these bodies fail, what hope is there for smaller social enterprises, no matter how good and no matter how efficient? At the same time, they are of course, like other small businesses, being turned down for loans by banks. This week, I understand that a leading social enterprise with £5 million-worth of contracts was refused a £50,000 overdraft to ease its cash flow.
The Minister may well say that Big Society Capital and social impact bonds give us a way out of all these problems. They will help but they will not solve the structural problems that we are facing. For example, I understand that the pilot which is under way in Peterborough on reducing reoffending has generated partnership but not from the private sector; it is from the charitable sector and charitable investment. Social impact bonds, which are a very important new idea, are very cumbersome and slightly oblique. They will be very slow to deliver, or to understand how to deliver, the long-term complex, subtle problems that they are supposed to be assisting with. I should be interested to know from the Minister what lessons are being learnt from the way that these two initiatives are working so far.
The diagnosis is fairly simple. If the country is to take advantage of what social enterprise can offer, it means putting the resources, advice and skills into commissioning bodies, whether it is health or social care or crime reduction, so that they can identify, design in and invest in social enterprise. It means recognising the ecology of social enterprise in the system and why outcomes need to be defined appropriately and not by imposing crude regimes such as payment by results on the sector. There has to be a serious and intelligent attempt at dealing with lending and capitalisation. For example, why do the Government not ensure that further investment in the banking system from UK taxpayers will be bound to quotas on SME lending and job creation in the UK’s most deprived areas?
In a very timely fashion, George Osborne came forward this week with seven plans for credit easing to support small businesses. Can the Minister tell me whether this will extend to social enterprise and, if not, why not, and will he be an advocate for extending the principle to social enterprise? It also means supporting the sector itself, enabling umbrella bodies such as Social Enterprise London or the Social Enterprise Coalition to spread and support good business practice in order to jack up competitiveness.
It means, in short, promoting national infrastructure to extend and exploit the value of social enterprise for social and economic benefit, drawing on local, national and international expertise and knowledge. Those are not my words but those of the prospectus of partnership offered by the University of Plymouth, which is leading the higher education sector in developing social enterprises to ensure that they become more competitive and more sustainable. That is a very progressive move.
If there were time, we might be able to wait for this to evolve, but there is not time for the economy or for the sector. Capacity and resources are draining away. The exam question for the Minister is: given the expectations raised and the urgency of the situation that we face, when will the Government engage with the sector on these very practical terms so that it can realise its economic and social potential? The Chancellor also said in his speech last week, very loudly and clearly, that he was willing to work with anyone. There are thousands of social businesses and thousands of social entrepreneurs who are willing to work with him. They are waiting for the chance to do so and I hope that he acts now on that opportunity before it is too late.