Conversion Therapy Prohibition (Sexual Orientation and Gender Identity) Bill [HL]

Baroness O'Loan Excerpts

Friday 9th February 2024 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I suspect that every Member of your Lordships’ House will oppose coercive or violent attempts to change a person’s sexual orientation or gender identity. Such activities are illegal, cruel and damaging, and are to be condemned. Any offence involving physical violence, sexual violence or coercive behaviour in an intimate or family setting is prosecutable under criminal law—nobody should be subjected to such behaviour.

It is not easy to identify the constituent elements of the offence to be created under the Bill. Matters of sexual orientation and gender identity lie at the heart of it, yet they are not defined. Ultimately, people are free to live with the sexual orientation or, to a significant degree, the gender identity they assert. In most cases, gender identity and sexual orientation are irrelevant to a person’s capacity to live their lives to the full as they wish, subject to the law. Some aspects of life make separate provision, as noble Lords have referred to. For example, sports such as women’s rugby only permit players in the female category if the sex originally recorded at birth is female. There are reasons why those decisions are made; they are well-rehearsed.

The Equality and Human Rights Commission, in response to the government consultation on conversion therapy, cautioned that the legislation

“must be carefully drafted … not to catch legitimate and appropriate counselling, therapy or support which enables a person to explore their sexual orientation or gender dysphoria, and to avoid criminalising mainstream religious practice such as preaching, teaching and praying about sexual ethics”.

It said:

“Encouraging people to comply with religious doctrine that requires refraining from certain types of sexual activity should not fall within the definition of conversion therapy”,


and that the offence

“should not capture communication such as casual conversations, exchanges of views or private prayer, with the distinction defined clearly in the legislation”.

The Bill does not differentiate between children and adults at risk and other adults. In pondering this, I looked at the latest draft guidance to schools about gender-questioning children, which was issued in December, drawn up by the Department of Education and the Government’s Equality Hub. It provides a very clearly drafted set of principles and proposed practices in the context of the difficulties which have been identified in how to respond to gender-questioning children in schools. The guidance defines gender identity as

“a contested belief. It is a sense a person may have of their own gender, whether male, female or another category such as non-binary. This may or may not be the same as their biological sex. Many people do not consider that they or others have a gender identity at all”.

This very recent definition is useful in attempting to articulate one of the difficulties with the Bill. What it seeks to criminalise, as noble Lords have pointed out, is a

“practice aimed at a person or group of people which demonstrates an assumption that … sexual orientation or gender identity is inherently preferable … and which has the intended purpose of attempting to”

change or suppress

“a person’s expression of sexual orientation or gender identity”.

There is no definition of therapy, although it must involve some form of therapy, I think aimed at one person or a group of people.

The words of the Bill, as has been observed, seem to derive from the Memorandum of Understanding on Conversion Therapy in the UK, agreed in 2022 by a number of healthcare and counselling bodies involved in medical treatment and counselling. It is not applicable in other circumstances. The Bill appears to make the word “practice” equate to any activity which can be carried out by a clinician, a teacher, a person or a parent who may consistently express certain views: for example, when presented with the child who seeks to transition, that it is not right to give children life-altering drugs when we do not know what the long-term effects of such prescription may be, and who fears that the child may in the future realise that, actually, they want to remain in their biological sex. Or it seems that it would apply to a minister of religion who advocates chastity outside marriage between a man and a woman, in accordance with their religious beliefs.

On the wording of the Bill, it would appear that people in all these categories and others may be at risk of committing a criminal offence simply by engaging in discussions about sexuality and gender. Encouraging a person to think through the factors which have led them to a particular conclusion, and which may be perceived by a prosecutor to demonstrate an assumption, may be considered by others to have an intended purpose, not a result of causing damage or harm. There are no exceptions and no exclusions from the scope of the Bill. There is no consideration of the person’s mental capacity or ability to consent, or of the fact that a person may be seriously conflicted in their mind across a range of issues relating to their identity and may need to explore those issues in a traditional psychotherapeutic or spiritual context with a psychiatrist or other persons.

In the context of the Bill, we need to ensure too that our statutory rights to freedom of speech, expression, belief, and so on, are not unnecessarily or disproportion-ately reduced. It is most important that people are protected from abuse or force, but that does not mean that we cannot say something which may trigger someone or cause them distress. In law, part of our lived experience is the process of acquiring resilience so that we are not inhibited by things that are said to us even when they offend, shock or disturb. It is a criminal offence to use threatening or abusive words likely to cause harassment, alarm and distress anywhere other than in a private dwelling. Coercive behaviour is a criminal offence in an intimate or family relationship. Therein lies statutory protection.

There will be those who have beliefs and values, whether or not they belong to particular churches, and want to understand their gender identity in this context or to live in conformity with their values or church’s teachings. They may seek spiritual guidance and help. Legislation must make space for that. Interventions may occur at difficult times, in different ways and over long periods. For this to happen, others have to be willing to engage in the conversation or counselling. There is evidence that, if this Bill were to pass, psychologists, teachers et cetera may become unwilling to do so because of the risk of prosecution.

The Bill is stated to apply to Northern Ireland. This is a devolved matter. It is for Northern Ireland’s Assembly, which is now sitting, to consider whether and how it wishes to deal with this matter.

The end result of this Bill may be to deter someone from having conversations that may be vital to their mental health and future well-being. The protection of sexual orientation and gender identity is immensely important. For each of us, our identity and sense of self are fundamental to our very being. The Bill is insufficiently precise. It will criminalise people and impose unlimited fines because, in one way or another, without coercive or physically abusive therapy, they have sought to help someone else.

Protocol on Ireland/Northern Ireland: Follow-up Report (European Affairs Committee)

Baroness O'Loan Excerpts

Monday 11th September 2023 Grand Committee

[Baroness O'Loan (CB)]

My Lords, I am privileged to serve on the sub-committee that produced today’s report, under the excellent chairmanship of the noble Lord, Lord Jay. The committee has been well served by its staff. In particular, I pay tribute to Stuart Stoner, who as clerk of the committee played such a pivotal role in the production of this report and in supporting us as Members.

Some 89% of the 80,000 or so registered businesses in Northern Ireland have fewer than 10 employees; just over 2% have more than 50 employees and 42% of businesses have a turnover of less than £100,000. These factors impact on the ability of many businesses to respond quickly and strategically to changes required to IT systems, product modification and haulage and transportation change. Business across the UK faces significant challenge at this time of inflation and uncertainty, and business in Northern Ireland, including those seeking to do business with the rest of the UK, has additional challenges. Regulatory divergence is occurring and will continue to occur as the EU and the UK legislate. Business wants to respond to legislative change and to function effectively but, in the absence of any identifiable strategy within government departments to track and publicise occasions of regulatory divergence, that divergence, whether between Great Britain and Northern Ireland or between Northern Ireland and Ireland, remains the number one concern, as the noble Lord, Lord Jay, said.

Can the Minister inform the Committee today whether His Majesty’s Government have made an assessment of the practical impact of regulatory divergence on Northern Ireland and of the issues that the sub-committee has raised? Can the Minister tell us whether, following the establishment of the EU-UK Trade and Co-operation Agreement, processes have been established that will meet the current information deficit and ensure that information is provided in a way that is coherent, industry-specific and the product of consultation, so that businesses are not hunting through the mass of guidance, policy papers, detail papers and so on to identify divergence? Much of the Government’s response seems to refer to framework structures that require to be underpinned by working groups and other modalities. Will the Minister assure us that such infrastructure exists and is functioning?

There is an underlying fear that Northern Ireland will find itself in a no man’s land between Great Britain and the EU. The processes for changing law in the myriad areas affected by the UK’s withdrawal from the EU are enormously complex. A considerable volume of legislation is produced each year in the UK, while the EU continues to legislate by means of directives, regulations and so on, on matters affecting the internal market as it operates in Northern Ireland. Business needs to know which laws are being introduced and which laws are being repealed, meaning that they are no longer obliged to operate in compliance with those laws.

The bigger question is how regulatory divergence impacts on businesses that wish to operate in both the EU single market and the UK. To what extent are separate manufacturing, labelling, tax, regulatory and enforcement regimes applicable to particular businesses and how can they best respond to maintain and expand their businesses so as to take advantage of the opportunities offered by Northern Ireland’s unique access to both the EU single market and the rest of the UK?

In the context of the EU and excise duties, stakeholders have welcomed the new enhanced co-ordination mechanism to review future legislation. Businesses have welcomed the potential for further flexibilities. The committee has urged the UK and the EU to ensure that the new body is sufficiently resourced. Can the Minister assure the Committee that this has been happening?

The sub-committee has repeatedly called on the Government to maintain a register of regulatory divergence, and we have done so again in this report. Businesses cannot be expected to derive essential commercial information on regulatory issues by way of Explanatory Notes or Memoranda on the potential impacts of proposed legislation. The expertise for tracking and identifying regulatory divergence surely exists within our government departments, which have extensive responsibilities in the areas of legislative drafting, regulation and enforcement. Can the Minister assure the Committee that that expertise will be directed to ensure that there is coherent, timely and accessible information for businesses across the UK?

Extreme Heat Preparedness

Baroness O'Loan Excerpts

Tuesday 19th July 2022 Lords Chamber

[Lord True (Con)]

My Lords, the noble Lord takes me into a wider area of policy outside my responsibilities. In principle, obviously, I agree with the point that he makes. The conservation of good is something that every Government and person across the world should aspire to. I will certainly make sure that my colleagues in the appropriate department are made aware of his observations.

[Baroness O’Loan (CB)]

My Lords, many of us in your Lordships’ House are of a significant age. The message that has been given in the media and generally is one of serious danger to the elderly and excessive deaths. Could the Minister ensure that the message is reframed to put the emphasis on the simple things you can do, rather than frightening people into being unable to continue with their normal lives?

[Lord True (Con)]

I strongly agree with that. I deplore “Project Fear” in any form when it comes up. The noble Baroness is right that we need simple measures that we do not necessarily need to be told about by the Government, such as walking in the shade and drinking plenty of water. These are the things that one can do to make things better for the individual. Ultimately, it comes down to the individual and how they cope, and older people do have difficulties.

I am conscious that, standing here as the Minister for heat, I am a successor to Mr Denis Howell, who was Minister for Drought not long ago, so I confidently hope that there may be some water tomorrow falling from the skies.

European Union (Withdrawal) Bill

Baroness O'Loan Excerpts

Tuesday 30th January 2018 Lords Chamber

[Baroness O'Loan (CB)]

My Lords, I will speak on two issues. The first is the Secondary Legislation Scrutiny Committee, to which I belong, and the second is Northern Ireland. The Minister referred in her opening remarks to the Secondary Legislation Scrutiny Committee and to the question of the additional scrutiny that will be the responsibility of the committee. We stand ready to serve and we are reassured by the statements about enhanced membership and resources for the committee. But I cannot help wondering from whence the Government found the figure of 800 to 1,000 measures that will be necessary to deal with the fallout from withdrawal. If I look at the number of areas of intersection between EU law and UK law, I cannot believe that it will be dealt with as quickly as that. Will the Minister explain why the Government say that there will be only about 1,000 instruments? Are they sure—or even fairly sure? Can we really plan this very important work on that basis?

On Northern Ireland, we have heard at length from noble Lords from all the devolved Administrations who expressed their concern about the effect of the Bill, which is the biggest framework Bill that I have ever seen in terms of the magnitude of the instruments with which it deals. It attempts to provide mechanisms for dealing with situations that we are not yet capable of analysing with any degree of accuracy. Other noble Lords have quoted the Constitution Committee’s description of the situation as “uncharted territory”. It is particularly uncharted for Northern Ireland as we contemplate the range of policy areas and powers returning from the EU that intersect with the devolution settlement in Northern Ireland—some 141 of them, ranging from agriculture to animal welfare to consumer law, in itself a massive area, company law, environmental law, forestry, healthcare, transport procurement and so on. All these areas of law have evolved through Europe. Under the Bill they will be effectively frozen as retained European law.

Currently, devolved institutions are prevented from legislating or otherwise acting in a way that is incompatible with EU law. For the purposes of Northern Ireland, this Bill will change the law so that:

“The Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law”.


The Government have stated that powers to legislate will then be released in the manner described in the Bill. Some of these areas of activity devolved under the Welsh, Scottish and Northern Irish arrangements, such as agriculture, are governed by common frameworks, and the Government are concerned to ensure that there will continue to exist a common UK framework once the EU framework ceases to be binding.

The Government therefore propose, as the Minister for the Cabinet Office David Lidington explained at Report in the other place, that direct EU legislation that applies uniformly across the UK will be corrected, at UK level in the first instance, to avoid the risk of early unhelpful divergence in areas where it may ultimately be determined that a common approach should apply. In these areas the Bill will prevent the devolved Assemblies from legislating on matters until they are released to do so by the Government. At Third Reading in the other place, the Secretary of State said that the Government had intensified their discussions with the devolved institutions and reiterated the Government’s intention to bring forward amendments in your Lordships’ House.

The excellent briefing provided by the House Library researchers contains little reference to these issues as they affect Northern Ireland, while reporting at length on the various views expressed by the Welsh Assembly and the Scottish Parliament. That is because no views have been expressed from Northern Ireland. There can be no discussion with Northern Irish legislators because we do not have any. We have not had any for over a year. There was nobody with whom to discuss these issues since we do not have a functioning Executive and civil servants cannot act politically as Governments can. Northern Ireland has been unrepresented in effect.

Both the Welsh and Scottish Governments have expressed their total rejection of Clause 11 as drafted and called for an amended Clause 11. Both legislatures are up in arms about what is described as a “power grab” by Westminster. Through this Bill the Government will effectively be taking back powers which had previously been devolved, albeit possibly temporarily. My question is how the interests of the people of Northern Ireland, predominantly agricultural and agrifood-related, will be protected.

We have been assured that there will be no hard border. InterTradeIreland estimates that some 177,000 lorries and 250,000 vans cross the border every month for trade purposes. That is a lot of trade, carried on in 90% of cases from Northern Ireland by small companies with fewer than 50 employees. They are very vulnerable to the uncertainties of this frictionless border of which we have been assured. They are even more vulnerable to the time that may be required to make everything work after withdrawal.

I used to teach European Union commercial law and I do not understand how we can have regulatory alignment with Ireland without being regulated exactly as we are currently under EU customs law and the single market rules. If we are to be regulated in that way, effectively we must be part of the customs union and the single market. We cannot have different rules and be in regulatory alignment.

Ireland is Northern Ireland’s largest trading partner, accounting for nearly 30% of its trade in goods. It is much more complicated than that, though. Goods are produced in part on one side of the border, with further activity on the other side of the border. How many of you have drunk Baileys or bought a bottle? It is produced in Dublin, bottled about 20 miles from where I live in the north, in Mallusk, re-exported to Ireland and then exported from Dublin. During peak production up to 500,000 bottles a day are produced, according to Diageo. What happens if crossing the border becomes an issue—if duties become a problem?

The sensitivities, and the risks of the uncomfortable situation in which we have no legislature and no voice, have been recognised by the EU 27 and by the Government. Assurances have been given that we will be protected, but it is surely inevitable that the UK Government will legislate for the greater good of the UK, as opposed to that of Northern Ireland alone or Northern Ireland in its trading relationships with Ireland, with inevitable consequences. My question to the Minister is: what steps will be taken to deal with this lacuna? How will the interests of the people be taken into account when there is neither devolved government nor direct rule? When will the discussions promised in the other place take place and when will we receive the Government’s proposed amendments?

Syria: Refugees

Baroness O'Loan Excerpts

Wednesday 6th November 2013 Lords Chamber

[Lord Wallace of Saltaire]

My Lords, as my noble friend will be aware, alongside the United Nations Security Council resolution on chemical weapons there was a United Nations Security Council presidential statement on humanitarian access. That has not yet been fully accepted by the Syrian regime. There are many difficulties for humanitarian agencies and their staff in getting visas to enter the country and, as he rightly said, there are also difficulties in some of the rebel-held areas.

[Baroness O'Loan (CB)]

My Lords, as I prepare to go on Saturday to Jordan and the refugee camps, I ask the Minister, bearing in mind that there are in excess of 2.5 million Palestinian and Syrian refugees in Jordan alone and thanking the Government for the money and resources they are putting in, whether there is anything further that we can do in terms of influencing the European Union and United Nations to improve the situation, particularly of refugees seeking to get out of Syria and into Jordan.

Crime: Sexual Violence

Baroness O'Loan Excerpts

Wednesday 6th March 2013 Lords Chamber

[Baroness O'Loan]

My Lords, I thank the right reverend Prelate for bringing this debate today. I have worked with women in conflict in many countries and I want to share some of the things that they say donor countries could do to help.

The UK Government in their engagement with the UN could contribute by seeking to place the issue of sexual-based violence on the agenda at peace negotiations. There can be no amnesty in law for rape and violent crimes in times of war. However, very little has been done not just to bring offenders to book but even to articulate that rape is a crime and action will be taken against those responsible. These issues rarely form part of peace negotiations and that is because the offenders are the people at the table and they have no interest in bringing the issue to the table. If supporting Governments, such as the UK, could make it clear that aid and assistance will only follow if women have a place at the negotiating table and if the peace agreement contains a clear statement about sexual violence and its consequences, this would provide a context for beginning to address the problem. The UK could also use its influence to promote compliance with the requirement that peacekeepers deal with their own perpetrators of sexual violence and most particularly that they deal with, and provide for, the UN babies—those born out of the conflict.

Another contribution that the UK is very well placed to make would be in the context of criminal investigation. Any complaint that a rape victim makes has to be in the context of local and national law. Women often have to accept that they have no access through criminal law courts and their only redress is through local laws. The Government could, in their aid packages, prioritise a functioning police and judiciary. Women in these countries express the fact that they need to be able to work closely with the social guardians to disseminate messages about GBV. They say that when church and state and any UN and EU peacekeeping units work together with the women to say these things, it works.

Women want recognition of the level and extent of that violence. They want databases established to demonstrate that. That will make self-evident the need to address the issue. They need to be able to report. They need a functioning police service. They need aid which will support the development of policing, with an emphasis on the need to provide for women. They need, above all, more than a desk and a computer in a sexual violence unit. They need cameras to photograph injuries. They need properly equipped medical services. They need medication. They need the capacity to carry out investigations. Most of all, they need a methodology through which forensic science facilities can be made available to produce, for example, DNA testing of semen left in women after rape. Properly retrieved and handled, that evidence can be conclusive. It may negate the need for investigation.

We have highly developed forensic science facilities. I am not suggesting the creation of labs across the world, but it should be possible to develop a system by which evidence could be sent to a forensic science lab for analysis and reporting. That might provide a breakthrough. Women would see that there might be some point in reporting; it would encourage and affirm them. Of all the issues that I have discussed with women in the third world, this is the one that they most want.

[Lord Wallace of Saltaire]

My Lords—

[Baroness O’Loan]

I apologise, my Lords.

[Lord Wallace of Saltaire]

My Lords, I know that we are very tight on time, but perhaps people will remember that when the clock shows two minutes, you have had your two minutes. Most people are taking a good two and a half minutes or more. Please can noble Lords keep their remarks brief.

Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report

Baroness O'Loan Excerpts

Tuesday 5th March 2013 Lords Chamber

[Baroness O'Loan]

My Lords, it is a great pleasure to participate in the debate this evening. In common with my fellow members of the committee, I want to express my appreciation to the chairman, the noble Baroness, Lady Thomas of Winchester, for the way in which she conducts the meetings and the business of the committee.

We are discussing specific issues tonight but they arise in the context of the volume and complexity of legislation passing through these Houses, which has grown so much over the years. We have only to look at the most recent public legislation figures for the last Session. In 2010-12 some 80 Bills came before the House; 10,000 amendments were tabled in the two Houses and, of these, 25% were accepted. In the same period, 9,432 measures of delegated legislative instruments were passed. That is a huge volume of new law cascading forth to be understood and applied. It is vitally important in cases that require scrutiny that it is properly carried out so that Parliament may achieve and carry out its functions. There is significant interest in the delegated legislative scrutiny processes, and studies are presently being carried out.

Many of the measures which issue as delegated legislation quite simply do not come for approval before any committee. About 2,500 of the 10,000 actually came to the Secondary Legislation Scrutiny Committee. Many of them are simply passed into law and the Delegated Powers and Regulatory Reform Committee has no power of scrutiny over delegated legislation introduced after the passing of an Act. Such scrutiny as does occur is the responsibility of others. However, questions may rightly be asked about whether there is sufficient scrutiny of the huge volume of delegated legislation, currently running at about 10 measures every day.

The committee examines each occasion on which power is delegated. For example, most recently, the committee was satisfied that it was appropriate for the orders prescribing rates of welfare benefits to be subject to no parliamentary control. The Bill leaves the Secretary of State and the Treasury with very little discretion so there is very little control that the House could usefully exercise. The role of the committee in that context is necessarily limited but it will consider whether any Bill contains delegated legislative power that is inappropriate and examine each occasion on which there is a delegation in any Bill.

For the general public there will be no requirement or even will to examine many of these measures, but there may be occasions when they need to know the law. They must find their way through a huge quantity of legislation and then interpret the measures, which frequently refer to a range of other measures, in order to apply the law. Such is the volume of legislation that the limit on available parliamentary time, together with the complexity of particular measures, means that legislative power is more frequently delegated to Ministers and others.

The chairman of the committee, the noble Baroness, Lady Thomas of Winchester, has explained the role of the Delegated Powers Committee in scrutinising Bills to assess the appropriateness of each occasion and the manner in which the exercise of the delegation of the legislative function occurs.

The Government decide which measures should be placed in scrutiny. Perhaps the most potentially sensitive measures are those that seek to amend primary legislation through the use of secondary legislation—Henry VIII powers. We devote particular attention to such measures, although in many cases the content of the measure is not contentious. However, the essence of what we do is to determine whether there is any inappropriate delegation and whether legislative power is delegated subject to an appropriate level of parliamentary scrutiny.

The committee is watchful. We ensure that we do not consider matters that are ultra vires the committee, no matter how tempting that may be on occasion, and it is tempting. We are also cautious, ensuring that when we advise the House we do not act hastily or inappropriately. Thus in 2010-12 we made only 55 recommendations to government, 48 of which were accepted. In this Session we have made 28 recommendations, of which 23 were accepted.

Noble Lords have described the variety of mechanisms through which delegated legislation can be scrutinised. The language in which we describe these procedures may be historic and can probably be improved. As a House I think we are very reluctant to refuse to affirm legislation or to challenge it. It could be otherwise. The committee has developed an almost invariable practice of recommending the affirmative procedure where there is no upper limit to maximum civil or criminal penalties in a delegated power to make orders or regulations. We have developed a series of standards which we apply.

The recent development of a number of super-affirmative or enhanced affirmative procedures, 11 in all under particular Acts such as the Northern Ireland Act 1998 and the Localism Act 2011, are examples of that. However, as the committee has made clear in the past, the insertion of a super-affirmative procedure cannot by itself bring a misconceived delegated power within the bounds of acceptability. While accepting, indeed admiring, the ability of my noble colleagues to find their way around the myriad conventions and procedure governing the passing of legislation, I am fairly sure that there are not many Members who could state the powers attaching to the exercise of each of the different enhanced scrutiny procedures. They are laid out in Appendix 1 of the fifth report, including powers such as that to require the laying of supporting materials; the requirement of consultation; and the power for the relevant committee to veto an order.

Such is the complexity of the current possibilities that the committee has recommended that the Government should not normally use new, enhanced security procedures, but rather one of the existing models. This recommendation has been accepted by the Government, as has the accompanying recommendation that if the Government propose the creation of yet another procedure, they should explain the reasons why.

There is such a variety of models now in use, each with its own requirements, that it should be most exceptional for any new type of procedure to be introduced. The committee has yet to receive a response from the Government as to whether they will confirm the undertakings given by the previous Government, which have been referred to by noble colleagues tonight, under the Legislative and Regulatory Reform Act 2006, the Localism Act 2011, and so on.

The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords states that there is no set time limit for government responses to reports from the Delegated Powers and Regulatory Reform Committee, as these need to be made, and amendments tabled, to the Bill in question. However, this recommendation affects potential draft orders to be made under legislation passed in 2004, 2006 and 2011. It is clearly desirable that the Government respond rapidly and positively to the statement made by the committee in paragraph 21 of the report. Similarly, the Government were asked by the committee to put proposals to the Procedure Committee for how the House will scrutinise draft orders under six other Acts. It is welcome that the Government have agreed that those measures should be scrutinised by the committee.

Scrutiny in all its forms is a vital part of the legislative process. That part of the scrutiny which is carried out by the Delegated Powers and Regulatory Reform Committee is vital, as it goes to the heart of the exercise of the democratic mandate which Governments have by virtue of election. Where the Government seek to legislate to confer a power to delegate matters which are properly the prerogative of Parliament, then the committee must exercise its powers by applying standards to determine that this has happened, as occurred during the highly controversial passage of the Public Bodies Act 2011. The committee stated that if the House could find no overriding reason or exceptional circumstances which justified the inclusion of Clause 11 and Schedule 7—those powers which allowed the Minister to add any of 150 bodies or offices listed in Schedule 7 to any of Schedules 1 to 6, and hence to make them subject to abolition and other changes without further parliamentary intervention—the committee would recommend that they should be removed from the Bill. The clause and the schedule were both removed from the Bill.

This report is designed to ensure that no further complexity is introduced into our scrutiny procedures. It is modest in its requests. It should serve as a useful tool for those who seek to understand the processes which currently exist. The work of the House is complex and demanding. New, wider procedures for the scrutiny of delegated legislative instruments would possibly be beneficial to the quality of the legislation passed. For the present, however, I look forward to hearing the Minister’s response to the proposals.

--- Later in debate ---

[Lord Wallace of Saltaire]

I take all those points on board. This is the sort of question that we would naturally want to continue discussing.

I very much hope that the quantity of secondary legislation will continue to decline. The general power of competence for local authorities, for example, reduces the necessity of detailed secondary legislation on a range of issues.

[Baroness O'Loan]

Perhaps I may ask the Minister to check that the quantity of secondary legislation is declining. It is possible that the number of statutory instruments is declining while the amount of secondary legislation is increasing.

[Lord Wallace of Saltaire]

My Lords, I will get the Cabinet Office to check and will write to the noble Baroness and others if my figures are way out, but I am hopeful that we have seen a reduction in the past three years. I also hope that the efforts that the Government are now making to decentralise within England and to give a power of general competence to local authorities will result in a further reduction in the number of secondary legislative measures.

This has been a very useful and constructive debate. It is the sort of thing that the House needs to do from time to time. I add my thanks to the noble Baroness, Lady Thomas of Winchester. I continue to learn from her about the procedures of this House, and I hope that I will continue to learn from her, as many others will, for many years to come.

Electoral Registration and Administration Bill

Baroness O'Loan Excerpts

Tuesday 24th July 2012 Lords Chamber

[Baroness O'Loan]

My Lords, I wish to bring three brief points to the attention of your Lordships’ House. I welcome the attempts in the Bill to reduce electoral fraud by speeding up the implementation of individual voter registration, which has clearly been very effective in Northern Ireland. The noble Lord, Lord Trimble, has referred extensively to the figures. When individual voter registration was introduced in Northern Ireland in 2006, there was a 20% reduction in the number of those registered to vote. That is a significant number in anyone’s terms.

The first matter I wish to consider in detail is the power contained in Clause 2(2) of the Bill, which would insert a new paragraph into Schedule 2 to the Representation of the People Act 1983. This relates to Section 53 of that Act. Those provisions are unexceptional. They permit the Secretary of State or the Lord President of the Council to make regulations, subject to the affirmative procedure, about the registration of voters and arrangements for postal and proxy voting. However, the new provisions pursuant to Clause 2(2) will give power to the Secretary of State by determination, not by affirmative resolution or regulation as is the pattern elsewhere in the Bill, to require that a person seeking registration as a voter must provide specific evidence of identity to prove that he or she is the person named in the application and to enable the registration officer to determine whether that person is entitled to be registered. There is a new sub-paragraph, to which some reference has been made, which states the kind of evidence required, including a person’s date of birth and national insurance number. On the face of it, that sounds quite normal and what one might expect of legislation. However, this provision goes to the heart of the exercise of the right to vote. It removes from any formal parliamentary oversight or challenge the nature of the evidence ultimately required to be permitted to vote. It is left to the Secretary of State to decide by determination. The question here must be: why not by regulation?

There is already confusion about which documents permit one to be able to register as a voter. Searching the web does not always reveal a clear and coherent statement in answer to the question. Moreover, there are many in our society who do not have access to the web and thus to the information that may be available. I think of the elderly, those with a disability, those from the ethnic minorities with language difficulties, and even the very young voter. The explanation given to the Delegated Powers and Regulatory Reform Committee, of which I am a member, of why the Secretary of State should be allowed to decide by determination what evidence should be required was that:

“The question of what information or documents have sufficient evidential value to be relied upon is a technical one, and one which changes over time as the technology used by various entities changes ... this information may need to be changed at short notice”.

That is the justification for removing from any form of parliamentary scrutiny that part of the process which will enable intending voters to become registered. We all know that it is possible for primary legislation to be made in the course of a day, let alone amending regulations. In its sixth report, the Delegated Powers and Regulatory Reform Committee stated that the arrangements set out in the Bill are inappropriate.

The reality is that the range of documents which may be used to confer eligibility to register is limited, but there will undoubtedly be circumstances in which people who should be entitled to register will not have the normal documents. Not everybody has a passport or a driving licence; not everybody even has a birth certificate. You can get birth certificates from Somerset House, but that does not actually prove that someone is the person named on the birth certificate. Questions have already been asked as to whether the Government are satisfied that the current data collections in relation to material held about people’s identity are accurate. What of the validity of information which may be supplied pursuant to the Bill by a person of any kind from whom the electoral registration officer may seek information?

The matter is complicated by the fact that if you are a citizen of one of some 105 European Union or Commonwealth countries, British Overseas Territories or British Crown dependencies and you are resident in the United Kingdom, you are eligible to register to vote. That means that the nature of the documentation could in some circumstances be very different from that which might be required of a UK citizen. This is of fundamental importance to our democracy and I would suggest that, like all the other provisions in the Bill, there should be a proper arrangement for this process.

There has been considerable discussion of the issue of proxy and postal votes and the carry-forward arrangements in the Bill. I endorse much of what has been said about the importance of cleaning up proxy and postal votes, but I want to emphasise the fact that, for those with disabilities and for the vulnerable, it will be necessary to make further carry-forward arrangements. Otherwise, they will be deprived of their right to vote.

There is another issue that I would like to raise. A survey undertaken at the last general election by the organisation Scope called “Polls Apart” found that there are approximately 15,000 potential disabled voters per constituency, with 67% of polling stations representing one or more access barriers for disabled people. Five charities, Mencap, the RNIB, Age UK, Scope and Sense, have suggested that the Bill presents a real opportunity to improve the electoral process for disabled people, particularly by recording information about electoral access needs at the point of registration. Recording disabled and older voters’ access needs at the point of registration could be used to improve the accessibility of the current system during the transition to IER and over the longer term. I am also informed that this recommendation is supported by the Electoral Commission. Such information could inform plans for the creation and renovation of polling stations.

A provision to include a pilot scheme for recording access needs was presented in another place during the passage of the Bill. At that point, the Government did not commit to ensuring that a pilot would take place. This Bill undoubtedly represents an opportunity which should not be missed to make provision for a pilot that would provide the information at the time of registration about the access needs of the applicant. It would be a simple amendment that would make a significant contribution towards giving the disabled and the vulnerable the access necessary to exercise their democratic right to vote.

Finally, I will speak briefly about the imposition of civil sanctions by electoral registration officers. I can see no purpose in the imposition of civil sanctions for failure to provide information to register. They do not go to the purpose of the Bill, which is to prevent electoral fraud. There is a risk that, like so many other provisions where a low penalty is introduced by the Government, it will simply be regarded as a further money-raising exercise. I do not mean to be offensive, but we have had an enormous number of additional fines and penalties recently. They will be costly to administer. There is no provision for a scrutiny process—there is a review process but not a scrutiny process. I think the fact that discretion is given to the electoral registration officers as to whether to fine or not may well lead to unfairness. There being no legal duty to vote, why should there be a legal duty rather than a moral compulsion to register and to provide the information to vote? Why should that legal duty be accompanied by a penalty if one does not comply? What is required is further education about democracy itself and about the level of prosecutions for failure to provide information. In Northern Ireland, since 2006, there has been one prosecution for failure to provide information, and the penalty imposed by the magistrate in the court was a fine of one penny.