Deregulation Bill
Baroness Smith of Basildon Excerpts(9 years, 5 months ago)
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Lord Skelmersdale (Con)
My Lords, I have been prompted to rise to my feet on Amendment 84, to which the Minister has just referred. I will ask a very simple question: are there no regulatory supplies from Northern Ireland, given that Amendment 84 refers to,
“any supplies that involve despatch of the substance to Northern Ireland or export of it from the United Kingdom”?
Of course, Northern Ireland is included in the United Kingdom, so I wonder if the Minister could, at some point in this debate, answer my question.
Baroness Smith of Basildon (Lab)
My Lords, I had not intended to speak on this; I think the Minister might have moved “clause stand part” in error at the end of his comments, because my next amendment is a clause stand part debate. On the Northern Ireland question, my understanding is that Northern Ireland is part of UK, so I was rather surprised that the direction was to Northern Ireland and from the UK. That is a similar point to the one made by the noble Lord, so was it just an error in the drafting of the legislation?
Lord Wallace of Saltaire
My Lords, Northern Ireland has separate legislation that controls sales of poisons and will implement separate legislation that controls sales of explosives precursors and their exports. The reasons for this are entirely clear and that is why this is concerned with Great Britain.
Baroness Smith of Basildon
Then the term “UK” might perhaps be incorrect in terms of drafting.
Lord Wallace of Saltaire
The UK is, of course, an integrated market, so it is difficult to say, “exports from Great Britain”. That is the reason why we vary between Great Britain and the UK in different references.
Baroness Smith of Basildon
My Lords, I am grateful for the Minister’s brief introduction to this debate, which he may want to repeat. The reason for tabling a stand part debate is not that we are necessarily opposed to the schedule, but a number of questions arise on which it would be helpful to have clarification. I raised this issue last week when we discussed the clauses on alcohol and the sale of liqueur chocolates to children. I find it difficult when asked to consider schedules to Bills—or any legislation—when there has been a government consultation but we do not have the responses to it. All that is available is the consultation document, the impact assessment and the government response to the consultation, not the consultation responses themselves.
I understand that in some cases there may be reasons of confidentiality, but the consultation document refers to personal information being kept confidential. That is of course appropriate, but I found it difficult to analyse and assess the Government’s proposals. It would have been very helpful to know what some of the experts and petitioners thought and what were the consultation responses. I shall come to a couple of reasons why.
The first issue is that of home use. The impact assessment says that known uses of Part 1 poisons for the home are rodent control and metal extraction. I have worked hard on this, but I do not know what metal extraction in the home is. I should be grateful if the Minister could enlighten me. I can think of other uses for small amounts of poison in the home, but metal extraction has got the better of me.
The list of consultees in the Government’s response to the consultation is interesting. Some clearly involve domestic uses, such as the British Tropical Fish Club, which apparently is different to the Tropical Fish Club. We have the Model Power Boat Association, the Pool and Water Treatment Advisory Group and the Ornamental Aquatic Fish Trade Association. It is more understandable why they would use Part 1 poisons in the home—albeit, I would think, in small quantities—but the issue of metal extraction has got me beat, so any advice would be gratefully received.
The Government’s charts in their summary of responses were helpful. Under questions for home users of Part 1 and Part 2 poisons, less than half of those who currently use such poisons would continue to do so. Perhaps the Government are seeking to reduce the number of poisons on the Part 1 and Part 2 list in the home, but I do not think that that was listed as an objective of the legislation. That is where the consultation responses would have been useful. Two of the questions in the consultation are: what do you use Part 1 poisons for and what you use Part 2 poisons for? Not being a scientist, not knowing what the chemicals are for, I would find that very useful.
The consultation also asked whether alternatives could be used and what they are. In assessing whether it is justified to say that more than half the people would not continue to use those poisons, would it not be helpful to know—and to have it in the summary or published in the consultation—how many of those people are likely to use alternatives to what is available now? As it stands, we may be preventing people who have ornamental fish or tropical fish tanks at home enjoying their hobby, or their sport with model boats and so on. I do not know because we do not have that information. If the Minister can address the issue of the consultation and the points that I have raised about the alternatives available, I would find that quite helpful.
Lord Wallace of Saltaire
My Lords, I thank the noble Baroness for that very detailed and well prepared set of questions. I have to agree with her that in a sense this is a much less deregulatory measure than many of the others in the Bill. It is a revision of regulations more than deregulation. Indeed, in terms of safety, these proposals are designed to strengthen controls over those selling and purchasing dangerous poisons and explosives precursors. We are continuing a long trend of tightening government regulation of poisons and, increasingly, of explosives precursors.
A hundred years ago, a good many arsenic compounds were available for purchase and they were, on occasion, used for nefarious purposes as well. Over the last 40 years, the European Union has increased regulation and, in some cases, has banned a number of poisonous substances for use not only in the home but in gardens and allotments. Here, we are in part implementing those regulations. We are also concerned, as the noble Baroness will understand, with the use of substances which had not been misused as explosives precursors in the past but which are now widely recommended on the internet for those who wish to make explosives for nefarious purposes—hydrogen peroxide and others. I am referring to substances which, when purchased in large quantities, can be mixed into what then becomes explosives. There have been one or two cases of people being accused of terrorist offences who had managed to purchase large quantities of the same substances that hairdressers, for example, purchase in small quantities.
I note in the extensive list that I was given of the various different substances that there are a number of metallic substances. Their main home uses are listed as metal cleaning, etching, electroplating, painting and soldering. I am told that there are those who even use metal substances and metal complexes at home for extracting the gold from their old mobile phones. This is a delicate issue. Members of the Committee may not do this, but others may wish to do all sorts of things at home. Happily, my children did not get into chemistry particularly heavily. On the question of the Poisons Board’s preferred options, I am told that the Poisons Board accepted our policy approach and objectives in its final note to the Minister for Security and Immigration.
The noble Baroness has seen a summary of recommendations and I am happy to talk further to her about what extra things she would like to know about the replies to the consultation.
Baroness Smith of Basildon
It was not a summary of recommendations, but a summary of the consultation responses, and I identified one or two that were not included in the summary but would have been very helpful in considering this clause.
Lord Wallace of Saltaire
My understanding is that Appendix A of the report on the consultation had a summary of consultation responses. I have now been deluged with notes that I will attempt to absorb.
The Department of Health was a statutory consultee as part of the Poisons Board and was consulted on the draft legislation regarding any consequential amendments. The Home Office ran an open research call to find research into alternative substances for Part 1 poisons and licensed explosives precursors. Research proposals are currently being evaluated. The Home Office remains the primary enforcement body, although a range of others, including the police, come into play at certain points.
In some ways I rather wish my wife were here. She is much more experienced in poisons for household and garden use. She has strong views about some aspects of EU regulations because a number of poisonous substances, in safe hands, are very useful to use in the home and garden. However, policy in the United Kingdom and in other countries has been moving in the direction of tightening up controls on these because of what can happen in unskilled hands and how desirable it may therefore be to tighten control of them.
On the question of how much a licence would cost, a new licence application costs £39.50 at the moment for a maximum three-year period. Any amendments to current licences are free of charge to encourage compliance with conditions to notify changes in circumstances. Replacements of lost or stolen licenses cost £25. The Home Office has kept costs to a minimum by using existing IT systems as far as possible. A similar background to the checking process for firearms licensing is being followed up, with some differences. No home inspections or face-to-face interviews will be conducted.
Firearms licensing is governed by a different policy and we are looking to full cost recovery in this area, but I will write to the noble Baroness about the comparisons that she has been making with the licensing of firearms. I understand the point that she is making.
Baroness Smith of Basildon
I appreciate that because I have had different responses from different Ministers on the issue. Before the Minister moves on, I asked about the cost of new licences. I am not sure whether that was the figure he gave me. If it was, I thank him. I was not 100% clear about whether it was the new licence for home use that he referred to. Can he clarify that he was saying that the fire service was not consulted? Will he confirm that he will publish the consultation?
Lord Wallace of Saltaire
I do not have an answer on the fire service and will have to come back to the noble Baroness on that. The costs I was quoting are for new licence applications. I hope that that answers the majority of the questions raised by the noble Baroness, and I am happy to talk further or correspond if necessary on any other questions that I have not followed up. I thank her for the detailed effort she has made to ensure that we have got it right. It is an important area, although I have to say that when I looked at the extremely long list of the various substances that will now be controlled differently, I did not understand what a good many of them were or what their uses are. This is unavoidably a rather specialised field.
There is a regulation-making power in the schedule to vary, add or remove a substance or limit its concentration. After all, chemical substances are changing in terms of how they may be used, and our ability to combine chemicals for various purposes is also changing, so a degree of flexibility is highly desirable.
I have now been told that we have consulted the fire service, particularly on home storage, and that it supports the proposals.
Baroness Smith of Basildon
I am grateful for that, but I am puzzled why, in the list of consultees, the two I asked about were not included, although the Minister has been able to reassure me. It would be helpful to have a comprehensive list of consultees. I have one final point. I asked about the publication of the consultation responses—I made that same point in last week’s debate. Can he confirm that the Government, subject to the normal procedures of ensuring confidentiality of those who have responded, will publish the full consultation responses on the two consultations—poisons and explosives?
Lord Wallace of Saltaire
That is entirely understood. I will do my best on that, and will write to the noble Baroness with the assurances that she is asking for.
Deregulation Bill
Baroness Smith of Basildon Excerpts(9 years, 6 months ago)
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Baroness Thornton
This amendment concerns nursery schools. The case for the change is that nursery schools would be able to become full members of existing trusts, enabling an all-through vision of education and potentially strengthening most nursery schools—which, by definition, are small—by enabling them to access mutual support from the schools they feed as well as avoiding duplication of effort. It allows for the formal clustering of nursery schools within a local authority, helping them to become more sustainable by co-operatively and mutually working together and avoiding duplication of effort. Both these factors will significantly help nursery schools to become market-ready in an increasingly commissioner/provider-driven early years environment.
Around half a dozen nursery schools are already operating as partners in co-operative school trusts in Bristol, Cheshire East, Devon, Norfolk, Staffordshire and West Yorkshire. They would prefer to change category, make the trust their legal foundation and play a full role in developing their local school co-operative trust. Indeed, the Co-operative College believes that it already knows of at least 60 nursery schools that would look to make use of this legislative change were it to go ahead. They include individual nursery schools looking to link formally with their local mainstream schools, as well as those that wish to cluster with other nursery schools in their local authority.
There is also a growing desire among some local authorities to see local authority-wide nursery school co-operative trusts, akin to the local authority-wide special school trusts that initially emerged in Devon and are now in Norfolk. Other local authorities have also indicated an interest in such a change, including Bradford, Bristol, Devon, Leeds, Plymouth, Middlesbrough, Sunderland and Wiltshire, plus a number of London and south-east local authorities.
During the discussions that I referred to in my remarks on my previous amendment, there were also discussions with the department about these issues. My colleagues were told that the department would like to work with co-operative schools to produce data on performance and would look to utilise a power to innovative to unlock the nursery school ask. If successful, the power to innovate would have the ability to suspend a relevant piece of legislation for a three-year test to see whether nursery schools wished to join co-operative trusts. Since this offer was made, the department has now gone silent and has not responded to repeated inquiries. Can the Minister help us to restart those discussions? This would not require primary legislation if they took place. In the mean time, I beg to move.
Baroness Smith of Basildon (Lab)
My Lords, I rise to support my noble friend Lady Thornton. I declare an interest: I am president of a co-op trust school, St Clere’s School, which is a cluster of schools. It has one secondary school, formerly known as St Clere’s, and two primary schools: one junior and one infants. The ethos of that school is very much community-based. It was set up to extend its facilities and to work with the local community to get the best support from the assets held by those schools. St Clere’s has also been successful at ensuring that those pupils who came from feeder schools and potential feeder schools would want to be part of the school and its success before they joined. As noble Lords will remember from their school days, having some contact with a secondary school before joining it can make it a less frightening experience. That seamless trust that co-op schools provide has been excellent.
What surprises me about the amendment is that my noble friend has had to table it. It seems to me quite logical common sense that, if a nursery wishes to be part of a co-op trust, it should be able to do so. It is a matter of choice for the nursery. To deny it that opportunity is something that some parents may feel is rather unfair. I was really encouraged when the Department for Education, under the leadership of Michael Gove—I probably did not agree with very much when Michael Gove was Secretary of State for Education, but on this I did—seemed willing to open up discussions so that, if nurseries wanted to be part of a co-op cluster, they would have the choice to do so. It seems that that has been taken away and no progress has been made. For me, it is a simple matter of that ethos of the co-op: if parents of children in those nursery schools who then go on to primary and secondary schools in the same area wish for them to be part of that trust and choose to do so, they should be allowed that opportunity. It is hardly a radical or striking move, but it seems to be very much a common-sense one.
Lord Wallace of Saltaire
My Lords, I have returned to the issue of nursery schools myself as my grandchildren have reached a certain age. I am conscious of the patchy provision of nursery education. I understand that only a small proportion of the overall sector providers—400 out of 14,500 day nurseries—are presently in the maintained sector. Nursery schools are currently able to federate with other schools and early-years providers. The Government support the broad aims of partnership, collaboration and co-operation. This sector has a diverse range of providers that facilitate parental choice and it enjoys a high degree of autonomy.
The Government are not currently persuaded that there are further benefits in creating a separate category of “nursery academies” at this time. It sounds as though there is further room for continuing discussion, but the Government have not yet been persuaded that this is a necessary addition.Nursery schools can indeed federate with other schools, so I believe that part of what the noble Baroness, Lady Smith of Basildon, is asking for is already available without legislative change. I hope I have said enough to assure the noble Baroness that she can withdraw her amendment and, again, I am willing to discuss this further off the Floor if there are other points to cover.
“Review of licensing legislation
(1) No later than the end of the period of 6 months beginning with the day on which this Act is passed, the Secretary of State must commence a cross-government review of all legislation relating to local authority licensing, consents, permits and registrations with a view to streamlining licensing processes.
(2) A report on the review must be presented to Parliament by the Secretary of State no later than the end of the period of 18 months beginning with the day on which this Act is passed.”
Baroness Smith of Basildon
My Lords, there are six amendments in my name in this group; in moving Amendment 70A I will speak to the others. Before I do so, given the nature of the discussion that we will have on this and the following group of amendments, I will make a few general comments about the Government’s general approach to alcohol strategy. I am most concerned that there does not seem to be a coherent approach to evidence-based strategy, as the noble Lord, Lord Clement-Jones, said a moment ago. That is what is missing here. We have a pattern of implementing piecemeal change, which does not have a significant impact on the problems that the Government freely admit need to be addressed. What we really need, and as my amendments address, is a wide review of the licensing system, not randomly to amend various sections of the licensing regime.
We have to recognise that most people drink responsibly. Probably a few of us will have a glass of wine or beer tonight before we retire. Most people can enjoy a drink without causing harm, nuisance or distress to others, or an unnecessary drain on public expenditure. However, there are others, who, because of the amount and way that they drink, cause significant harm to themselves and to others. The challenge for government—indeed, for all of us—is to effect such change that will impact on the behaviour of those who cause and have caused significant problems, without unfairly impacting on responsible and reasonable drinkers.
The Government’s alcohol strategy has done very little to target the problems caused by significant problem drinking. Nearly 1 million violent crimes linked to alcohol still happen every year. The Prime Minister promised,
“a real effort to get to grips with the root cause”
of alcohol problems, with a strategy that attacked alcohol harms “from every angle”. The Home Secretary promised a minimum unit price for alcohol. I will not go into detail because we will come to that later. She said—no ifs, no buts—that it would be introduced. That seems to have changed and there is no immediate plan. I think the phrase that is often used when something is on the backburner or in the long grass is “under review”.
When the Government brought in new licensing conditions that alcohol could not be sold below the permitted price—I have spoken on that order in your Lordships’ House on two occasions this year—they were seriously criticised by the Secondary Legislation Scrutiny Committee for overselling the impact that it would have. In reality, the impact was about a reduction in consumption of alcohol of one glass of wine per person per year. An awful lot of work went into getting a reduction of one glass of wine per person per year. The impact assessment that the Government submitted had to be withdrawn and a new one resubmitted. One of the reasons for that was that the Government put the benefits at £17 million a year when, in fact, the figure was nearer to £1 million—and I think the evidence for that £1 million was somewhat woolly. Therefore, the challenge of affecting harmful behaviour without impacting on responsible behaviour has not yet been met. Our amendments are intended to be helpful in seeking to address that challenge, which we appreciate is difficult.
Lord Wallace of Saltaire
I read this amendment as also covering taxi licensing, scrap metal dealers—the whole caboodle of local authority licensing. The amendment refers to,
“all legislation relating to local authority licensing”.
Was it the noble Baroness’s intention to include all that?
Baroness Smith of Basildon
On my reading of the amendment that is not its intention. If the noble Lord wants to carry out a review of all licensing, I am very happy with that, but it is not the intention of the amendment. I am talking specifically about alcohol licences and the problems that are caused by the way in which they are operated. As I said, the application forms councils have to use are set out in regulations. This means that local authorities cannot combine forms so that a business can provide basic information once or even twice. Instead, businesses must complete this for each and every form required, overlapping and duplicating the information they provide. Councils tell us that they would like to have the freedom to remove this burden by combining and simplifying forms to cover just the information they need, thereby not placing undue burdens on businesses. Ending prescribed forms by regulation would enable that to happen without taking up parliamentary time. It is an easy thing for the Government to do by regulation. I always like to make things easy for the Government.
Individually, licensing regimes make sense and most of them continue to provide valuable safeguards. Typically, they have been brought in to tackle specific problems as they occur, which makes sense, as we have seen with the Scrap Metal Dealers Act. However, collectively, licensing regimes are a complex set of conflicting rules. The Licensing Act 2003 made an initial attempt to bring together multiple licences covering alcohol, entertainment and late-night refreshment under one Act. We want to take that further by rationalising and updating the legislation which is currently across at least five government departments. To give the Minister an example, I just referred to the Home Office and to the order I spoke to earlier this year, the draft Licensing Act 2003 (Mandatory Conditions) Order 2014. We have before us today a document on licensing from the Cabinet Office, and I was today given an impact assessment from the DCMS for yet another proposal to exempt regulating the provisions of the Licensing Act 2003.
That is very difficult for small and large businesses to manage and to cope with, but it can be simplified. That is a really easy thing to do, and does not cost any money. If we establish broad and consistent criteria for licensing schemes, we have to include transparency. There is also an issue around appeals and cost recovery processes. We need to enshrine the principle of joined-up related applications. That would simplify processes for businesses and councils and would also offer scope for improved safeguards for communities. Our proposal, which I believe is helpful to the Government—I thought I saw the Minister nodding at one point—is for a government-led review of local government licensing legislation, which would give the basis for a comprehensive licensing framework. We believe that that would help economic growth, and it would certainly help those businesses which have told us that they see a problem.
I turn to Amendment 75A, which is about making the licensing authority a relevant person. Clause 52 and Schedule 16 insert a new Part 5A into the Licensing Act 2003, to introduce a new procedure for authorising the sale of alcohol where the sale is ancillary to a community event or the provision of other goods or services. The clause and the schedule as a whole are sensible, and I am not going to oppose them. Currently, the requirement for obtaining a licence to sell alcohol is that it is sold on a commercial basis for profit. It is not to be given away freely or cheaply. However, we have some concerns around the unintended consequences of the new notices, including the potential costs to local authorities.
The new legislation outlines the prescribed fee, and we seek assurances that the fee will cover the cost to local authorities. Amendment 75A would make the licensing authority a relevant person. As the Bill is drafted, the licensing authority is responsible only for processing the applications. Objections to ancillary notices can be made only by the police or by council environmental health teams, not by the licensing authority. The licensing authority is the district council, the metropolitan London borough or unitary authority. That is the authority responsible for considering applications to sell alcohol and issuing a licence.
I am indebted to the Local Government Association, which supports Amendment 75A. I should declare that I am also one of its vice-presidents, as are many noble Lords. This mirrors a change made to the Licensing Act in 2012. When that change was introduced the Government said that licensing authorities were better able to respond quickly to the concerns of local residents and businesses by taking actions they considered appropriate to tackle irresponsible premises without having to wait for representations from other responsible authorities. We agreed at the time and we still agree with those reasons but we believe that they apply to all aspects of licensing. The Explanatory Notes on ancillary sales notices state that licensing authorities have the right to raise objections, but there is no wording to allow this. Expert legal advice confirmed that this power will not be available without an explicit reference in the legislation. Licensing authorities should be included on the list of relevant persons to ensure that they can raise local concerns about a notice if it is appropriate for them to do so.
My final amendments in this group, Amendments 75B, 75C, 75D and 75E, introduce a right of appeal to the licensing committee. This is really a streamlining process, because they introduce a right of appeal to the local licensing committee for applicants to use if their notice is refused because of an objection. That mirrors the Licensing Act regarding licensing committees whose judgment and applications are the subject of objections. Each licensing authority is required to establish a licensing committee that is formed of elected councillors, which will hold hearings and make decisions relating to licenses.
Local government prides itself on being the most open and transparent part of government and on being directly accountable to residents and businesses. It is worth noting that it also has the strictest rules regarding conflict of interests. I do not understand the reasons why, under the Government’s proposals, the only right of appeal against the decision not to grant a notice because of an objection is by judicial review. That seems a lengthy and expensive process, particularly when you take into account that applicants are prevented from reapplying for a licence for a period of 12 months. There is supposed to be a light-touch approach. Is that not hugely disproportionate and expensive for those businesses concerned?
I feel—and I am sure other noble Lords will probably accept this—that licensing processes within local government are pretty robust, but within any system objections can be raised with which applicants do not agree. Businesses should be able to appeal against objections they feel are unfair or do not take full account of their business proposal in a way that is straightforward and affordable. If we are insisting appeal has to be by judicial review, while that has to be part of any wider appeals process, it does not meet the criteria of being proportionate, straightforward and reasonable in cost.
We are not talking about a great deal of money here. Fewer than 5% of regular licences are refused. It is anticipated that it will be even lower for the new licences, so the financial impact on most applications would be negligible. It seems a bit OTT to have a judicial review process before any other appeal process is brought into play. I look forward to the Minister’s response. I beg to move.
Lord Clement-Jones
My Lords, perhaps I should not use the expression “happy hour” in this context, but we have spent many happy hours over the past few years debating licensing provisions. I have a bit of a horror of this clause, I must confess. The idea of this gargantuan review of what is effectively the amended Licensing Act 2003 seems to be vastly overengineering what is needed in this context. The reason I say that is that I remember pressing the Government nonstop between 2005 and 2010 on entertainment licensing, asking them to take a view about the way in which the Act worked for live music. Finally, rather than wait for a review, I had to put a Private Member’s Bill in and get that through before we got any further sense—luckily from this Government—on the wider scope of deregulation of entertainment more generally.
The idea that we are going to start digging up the plant by the roots at this stage, whether entertainment licensing, alcohol licensing or whatever, fills me full of horror. We have had debate after debate. We had a very long debate on the late night levy. We have got to let that bed in. I was not a great fan of some of that legislation, and I would very much like to see whether it is working. I suggest a rather more piecemeal approach to review. I am not against reviewing bits of the legislation, but this kind of vast superstructure of review over the whole of licensing in this area seems undesirable.
Lord Wallace of Saltaire
My Lords, the LGA published Rewiring Public Services: Rewiring Licensing in 2014, calling for a major review. I had indeed read Amendment 70A as covering the whole remit of local authority licensing. This is a very large area, and I am conscious that it is an important part of how local authorities regulate local communities. It is also a not insignificant part of how some local authorities recoup the costs of what they do. I note the case made for moving towards harmonised dates for renewal and for reforms to be completed. I also note with my different Cabinet Office hat on that, as we move towards digital interaction between companies, individuals and local authorities, some of these things will become easier than they were—as the noble Baroness will know, that is something which the Government are actively promoting. Some small businesses are much slower than others in moving towards digital interaction with their local authorities, but that will help to reduce a number of these burdens.
We have reviewed a range of licensing areas through the Red Tape Challenge, including alcohol, entertainment and taxis, and we do not see the need to do another major review of all licensing legislation. Therefore, having looked at the LGA report, we do not accept its proposals, although we are still considering some of the issues raised. Certainly, the Government remain committed to reviewing unnecessary bureaucracy. A 2011 survey by the Federation of Small Businesses found that only 8% of small businesses identified local authority licenses as the most challenging area of regulatory compliance.
Baroness Smith of Basildon
When the Minister intervened on me previously, it was because he thought that my amendment was significantly wider than I intended it to be. I apologise if there is a drafting defect; it was never intended to be as wide. Does the 8% figure that he gives for the proportion of businesses which are concerned about the licensing regime relate to the vast, entire licensing regime or just to the regime relating to alcohol that my amendment refers to?
Lord Wallace of Saltaire
I suspect that it is about a much wider issue; we are in that sense at cross-purposes. I thought the amendment was concerned with alcohol licensing and other forms of planning licensing. As I was being briefed on this, I was thinking of the example of a bar in Saltaire that lies halfway between where I live and where the noble Baroness, Lady Thornton, lives. It is a very popular bar which is licensed for the sale of alcohol. It is sufficiently popular that its clients spill out over the pavement and on to the road. The question of whether tables can be put out on the pavement has been raised and you begin to deal with different sorts of issues, such as disruption to traffic, noise and so on. So putting everything into a single category is not entirely straightforward. The Government are not therefore convinced that we need an overall review at present. I know that we will come back to some of these issues when we consider the amendments in the name of the noble Lord, Lord Brooke of Alverthorpe.
I turn to the other amendments proposed by the noble Baroness on community and ancillary sellers notices or CANs. The noble Baroness asked why there was no provision for appeal if a CAN is revoked. Our intention is that there will be no prescribed right of appeal for the user either at the stage at which the CAN is given in cases where it is rejected, or where revocation takes place after a CAN has taken effect. This is one of the key ways of keeping the costs of the CAN as low as possible as it avoids costly hearings processes, as well as reflecting what is intended to be the light-touch nature of the authorisation. We believe that this is justified on the basis that the user will be given very limited rights to sell alcohol. The authorisation lasts for three years only and it always remains open to the user to apply for a full premises licence or to use a temporary event notice. The business of the ancillary seller would also not be unduly affected by revocation because the alcohol sales are by definition only a small part of the overall service being provided. It would remain open, as the noble Baroness has suggested, to the CAN user to seek redress via administrative complaint to or about the licensing authority, or ultimately, in extreme cases, by judicial review.
I hope that that provides some reassurance to the noble Baroness; she looks a little puzzled by this. The intention is to limit the complications of this very limited change in the alcohol regulations.
I was asked whether the fee will cover the cost to the licensing authorities. Licensing fees are set on a cost-recovery basis. We will be working with the LGA and licensing authorities to estimate the cost of processing a CAN before we set the fee. I hope that that covers the issues that have been raised and invite the noble Baroness to withdraw—
Baroness Smith of Basildon
I apologise; I am intervening rather than making my final remarks. I think that the Minister addressed the point about the ancillary sales notice. The Explanatory Notes state that licensing authorities have the right to raise objections, but there is no wording to allow this. Our legal advice is that the power will not be available without explicit reference in the legislation. It is in the Explanatory Notes; it is not in the legislation. The Minister did not answer that point.
Lord Wallace of Saltaire
It is probably better if I write to the noble Baroness to make sure that I am absolutely clear about it.
Baroness Smith of Basildon
That is helpful. That point needs clarification if we are to achieve what the Government say they want to achieve, and we are not opposed to that.
I am rather disappointed with the Minister’s response and, indeed, that of the noble Lord, Lord Clement-Jones. This gargantuan review is not quite as gargantuan as the noble Lord thought it would be. The figures to which he referred are for the gargantuan review, not the review that we are asking for. When those who are dealing with this, day in, day out, say that there is so much ad hoc regulatory change and ask whether it might not be better to look at it in the round, that seems to be a sensible approach.
The noble Lord made his own case on the late night levy. He and I debated that as we have debated other issues such as the licensing order, referring to mandatory licensing conditions, earlier this year. We had a number of discussions about it being very piecemeal, and we were also critical of the late night levy, which is also proving to be quite ineffective because of how it was set up.
I will read again what the Minister said about the right of appeal being through judicial review. He seems to be saying that because there is an admin review process when someone wishes to make a complaint, it can replace any other appeal. It seems rather costly and disproportionate if the only right of appeal is through judicial review. However, I will read what he said in Hansard so that I am absolutely clear on his points before I decide whether to bring this back at another stage. For now, however, I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, whenever I listen to my noble friend Lord Brooke of Alverthorpe speak on these issues, I am always conscious of—I hesitate to use the word “experience” on the issues we are talking about—his knowledge of and commitment to these issues. He has been a campaigner to protect people from the harm that those who overindulge and unwisely use alcohol are subject to.
My noble friend has hit the nail on the head on public health. When we were discussing the Police Reform and Social Responsibility Bill in 2011, we proposed that public health should be one of the licensing conditions. I mentioned the four licensing conditions earlier, but we recommended that public health should be one of them. That proposal was blocked by the Government, yet the Government’s alcohol strategy includes a commitment, as the noble Lord said, to look at including public health and the cumulative assessments that councils undertake. I am not aware that that has been taken forward, even though it is in the Government’s strategy. It would be helpful if the Minister could tell us whether that has been taken forward, given that it was in the Government’s strategy. At some point, but not today, I would be interested to know which measures from the Government’s strategy have been taken forward. Perhaps the Minister will write to me on that. The Alcohol Health Alliance UK and the Local Government Association want to see public health included in the licensing process. There is widespread support for that. It seems a sensible measure to include it, not as the overriding measure but as one of the measures taken into account when licences are awarded. I should like to know some more from the Government on that.
When I look at the alcohol strategy, I lose track of when the Government were in favour of minimum alcohol pricing and when they were not. In our debates, I was assured that the Government would look hard at advertising and education involving children to ensure that we are not subjecting children to the kind of alcohol advertising that would encourage them to drink at too young an age. Pan-European research shows that children in the UK see more alcohol advertisements than adults and more than their European counterparts in Germany or France. I have asked about this before. I would like to know why the Government have not moved forward to look at that kind of advertising and how to combat it. If we are talking about young people and their health, that is a key thing that could really make a difference, and we have not seen the progress we were promised.
I still cannot understand what has happened on minimum alcohol pricing. I have raised this in your Lordships’ House on a number of occasions. The Government have moved from absolute certainty that minimum alcohol pricing would be introduced. The Home Secretary said, without ifs or buts, that the Government would introduce minimum alcohol pricing. When the Government undertook their consultation on the strategy, they specifically excluded minimum alcohol pricing from it. I raised this back in July 2013, so it is not a new issue; I am sure that the Government and the Minister are aware of it. The Government said in their consultation that they were committed to introducing a minimum unit price, but added:
“However, in other areas, this consultation seeks views”.
The Secondary Legislation Scrutiny Committee states in its 32nd report that it contacted the Home Office when it was seeking to introduce a permitted level of pricing—which is different from minimum alcohol pricing. It asked, “Why are you bringing this in now, because you’ve said that the minimum unit price is still under consideration?”. The Home Office explained:
“Minimum Unit Pricing remains a policy under consideration, but will not be taken forward at the present time”.
That is not what the Home Secretary said. So it would be helpful to understand the Government’s thought processes and whether any advisers in Downing Street or political lobbying played a part in this. Why did the Government move from absolute certainty that they were going to do something to “maybe” and then, as I think is the position now, to not going to do something? If we are to take an alcohol strategy seriously, we need to know what the Government are seeking to achieve and how committed they are.
There are two points in particular that I wish to emphasise and seek assurances from the Minister on. First, what has happened to dealing with advertising and education aimed at children who could be at risk of harm from alcohol? Secondly, why are the Government so set against including public health as one of the considerations when introducing a licence?
Lord Wallace of Saltaire
My Lords, I am very glad that the noble Lord, Lord Brooke of Alverthorpe, was able to get back from Brussels and apologise to him for our not yet having managed to fix up a meeting. If he would like to have a meeting, we will make sure that it is pursued as soon as possible. I recognise his strong concerns in this area and the amount of work that he has put in and continues to put in on these broader issues.
On the implementing regulations, we are about to go out to consultation on what they should be. We are of course ready to discuss informally our current thinking, but it seems to us right that we should consult on where we might go from here.
I think we all recognise that the focus on alcohol-related problems is at its most acute in the centre of some of our cities on Saturday evenings. I have been in Leeds and Wakefield on a Saturday evening and it is very much a problem involving young persons in those areas. Sometimes, in the winter, I think that there is also a hypothermia problem, from the fact that they wear so little as they go out. What we are proposing here is absolutely separate from that. It is thinking about deregulating some of the issues which arise for local events and ancillary sellers.
As it happens, my wife and I went to rather a splendid party in a village hall just north of York in the summer. One of those who attended explained to us that they had had some difficulty about this, because they are allowed to have events that serve alcohol in the village hall only once a month. This was for all sorts of restrictive reasons, and that is the sort of area where we would like to loosen the constraints and the number of times a year that village halls can have events of that sort.
That is the “community events” to which the measure refers; the ancillary sellers are the bed and breakfasts, as the noble Lord knows. I am informed that the reason why 7 am is specified in the Bill is so that if, on a particularly special occasion, a bed and breakfast wants to provide a champagne breakfast it should be allowed so to do. I have been trying to think about having a champagne breakfast in any of the last three or four bed and breakfasts that I stayed in in the north of England. It is an interesting concept and I shall probably go to sleep tonight imagining what one might look like. However, that is the justification for the 7 am starting point.
This is intended to be deregulatory, to exempt community groups and small providers of accommodation from needing premises licences on multiple temporary event notices, and to limit the costs to them of having to renew these licences so frequently. We are very much responding to community pressure, and again I think about how this affects my locality. This would cover events in the park in Saltaire but would not cover the wonderfully bucolic Bradford Beer Festival, complete with a large number of large stomachs, which is held once a year in Victoria Hall. That is a big event at which a lot of alcohol is served—beer—which therefore requires a different sort of licensing regulation. That is why I stress that this is a limited measure. The terms “ancillary” sellers and “community events” explain how limited this measure is.
Lord Wallace of Saltaire
My Lords, the concept of having my hair cut and being offered a whisky at the same time had not occurred to me. I recall that when thinking about the 7 am starting point, the one occasion of which I was conscious, when listening to someone describing how pleasant it was to have alcohol at breakfast, was when I got up very early, heard the BBC farming programme, and a good friend of mine who appeared on that programme was having breakfast with the noble Lord, Lord Mackie, at his farm, who had indeed offered him a dram with his breakfast. He remarked that that was an unusual occurrence. I do not think that that is the sort of thing that bed and breakfasts will want to do very often.
Baroness Smith of Basildon
The noble Lord, Lord Mackie, would not have required a licence to offer a friend a glass of whisky at breakfast if he chose to do so. The point made by both noble Lords who raised this issue was to express concern about the 7 am start. Does it open a door far wider than the Government intend in order to allow an occasional champagne breakfast at a bed and breakfast?
Lord Wallace of Saltaire
I will take both points back and see how much this opens a door wider than intended. If it is possible to interpret the measure in such a way as to open a door much wider, we will clearly need to tighten this. I hope that we can provide reassurance on that point.
Baroness Smith of Basildon
My Lords, as ever, my noble friend Lord Brooke has given us food for thought on this issue. I was unaware of the detail of the issues that he raised. This goes back to our earlier comments about policy being evidence-based. I am not quite clear about why this has been brought forward and about the purpose behind it. When we look at it, it does not seem to have much of an impact on business so repealing it has only a very tiny, albeit positive, as the noble Lord thinks, impact on business.
I understand that the Licensing Act 2003 requires premises to obtain the relevant licence before selling liqueurs due to their alcoholic content. The Act exempts liqueur confectionery from being classed as alcohol and defines liqueur confectionery as containing alcohol in a proportion not greater than 0.2 litres of alcohol per kilogram of the confectionery. I do not know what 0.2 litres of alcohol per kilogram means. The noble Lord referred to something being 6% proof. If I buy, as I may on occasion, a bottle of wine, the label will tell me the percentage proof, as it will with beer or any other kind of alcohol. It does not tell you on confectionery. In the interests of evidence-based policy, can the Minister tell me what 0.2 litres of alcohol per kilogram is in terms of percentage proof? It is an important point: 6% proof for a five year-old is significant.
The law states that the chocolates must be sold as separate pieces so they are not consumed en masse. I am puzzled by that because anybody who eats chocolate as I do always eats chocolate en masse. There is no other way to eat chocolate. One buys boxes of liqueur chocolates, and it seems to me that they are not being sold individually in that case. They are being sold en masse. I would like to understand a little more about the interpretation of the law. If that is not possible today, I am happy for the Minister to write to me because I do not understand what that means. I have to confess that when I was 14 my French pen pal sent me a box of Mon Chéri liqueur chocolates, which I ate. I do not think I liked them terribly much at the time, but I grew to like them. I probably felt more sick from the chocolate.
I am trying to understand exactly what is intended here. There is a negligible effect on business. There is a tiny minority of businesses that sell such confectionery. The point raised by my noble friend when he asked who asked for the change is interesting because when something is deregulated it is normally because somebody wants it because it is an onerous burden on them. In most cases we obviously want to reduce overonerous burdens on businesses. Who asked for this change? Were there any complaints about the law and how it has been implemented? Where did they come from? Is there any intention to have any consultation on this? My noble friend Lord Brooke has raised issues that I was not aware of. This first became an offence in 1961 under a Conservative Government. Labour’s Licensing Act 2003 built on the definitions that were brought forward in 1961. The Conservative Party tabled an amendment during the Licensing Bill Committee for the age to be increased from 16 to 18. We held out against that and it was withdrawn.
My first reaction was not dissimilar to Norman Baker’s: you would have to eat the equivalent of nine Mars bars of liqueur chocolate to drink the same quantity of alcohol in a regular bottle of wine with a content of about 12%. However, I think that misses the point, and that is what worries me about this. One of my concerns is whether it helps young people get a taste for alcohol: does it encourage them? That is a valid point to look at. I am interested in the evidence base on both sides of the argument. It would be helpful to understand that.
My noble friend raised some points that I am unclear about. Does the Government’s proposal also impact on the kinds of alcohol that are being sold in forms other than liquid? Does that mean it is easier to buy vodka ice cream or vodka lollypops? I have some concerns about alcopops: people drink quite large quantities of alcohol because they are very sweet-tasting and fruit-flavoured. They do not realise the content that they are drinking. I stressed that I will leave here tonight and will no doubt enjoy a glass of wine at some point. However, there is a difference between responsible drinking of alcohol and almost surreptitious drinking, where people are not aware of the alcohol content that they are drinking.
I have concerns about this. I would like to know what the evidence base is—the consultation, where the request came from and what differences it makes—particularly if it opens up a much wider area than indicated by the Government’s proposals.
Lord Wallace of Saltaire
My Lords, this debate has ranged a good deal wider than liqueur chocolate. I stress that the amount of liqueur chocolate sold in this country is very small and we have no evidence that it is likely to increase. I am unaware, and I have checked with the officials, that there was any lobbying from the drinks industry on this. It is an issue of retailers and small shops having different levels of regulation about not selling to people under the age of 18. This is something that is for under-16s. This was identified, as part of the Red Tape Challenge, as a piece of law that was not necessary and would not be missed.
Lord Wallace of Saltaire
I will certainly check that. I recognise that the wider issues that the noble Lord has raised about alcohol in other food are serious. I can promise only that I will take that away and consider it. I do not know how much alcohol there is in these new sorbets, let alone in rum and raisin ice cream and other such things. It may well be that the amount of alcohol in sorbets could be quite considerable. I promise to take that away. We will see whether we can respond to the noble Lord on that or whether it is a developing problem. Liqueur chocolate is not a developing problem: there is no sign that very much is sold or that more will be sold.
Baroness Smith of Basildon
My Lords, my noble friend Lord Brooke raised a serious point. The Minister just said he was quite clear that there was no lobbying from the drinks industry on this. He implied that it was not clear that it came from retailers—I am not sure whether he is saying that the retailers lobbied, but that it came from concerns for retailers. If he has erroneously informed the Committee, as my noble friend referred to, will he write to all Members of the Committee and make clear, either in Committee or on the Floor of the House, that that was a mistake and that there has been lobbying from the drinks industry?
Lord Wallace of Saltaire
Certainly, I am very happy to do so. My understanding was that this was very much part of the Red Tape Challenge. I am told it is a piece of legislation under which there has been one prosecution in the last five years and no convictions. As a piece of legislation which might on occasion be used inappropriately, it seemed a good idea that it would be one of those that we might now strike out. I was not aware that the law had been introduced only in 1961. Some of the laws that we are hoping to strike out in this Bill as part of the Red Tape Challenge date back a good deal earlier than that.
My information is that you would have to eat the equivalent of 20 Mars bars rather than nine to become drunk on liqueur chocolates. The amount of alcohol allowed in 100 grams of confectionery—
Baroness Smith of Basildon
The noble Lord may be aware that Mars bars have reduced in size considerably in the past couple of years.
Lord Wallace of Saltaire
I think I last ate a Mars bar about 40 years ago, so I had not noticed the shrinkage. The maximum amount of alcohol allowed in 100 grams of confectionary is 20 millilitres. This alcohol can be up to 57% alcohol by volume. Any confectionary containing alcohol in a greater proportion than 200 millilitres per kilogram is defined as alcohol and no one under the age of 18 can buy it. That is probably the answer to the noble Lord’s question about sorbets; any sorbet that had a high proportion of alcohol in it would be covered by the same regulation. However, the noble Lord raises a number of interesting points which deserve a considered reply.
This pragmatic clause is intended to strike out a piece of legislation which can be used against chocolate retailers, small shopkeepers and others because it is on the statute book as an offence to sell liqueur confectionery to a child under the age of 16. I very much suspect that the number of occasions on which retailers sell liqueur confectionery to children under the age of 18 is actually very small. We do not consider that this has wider implications. The noble Lord raises the prospect that it could, which is something that we might discuss further in terms of developing trends in the food industry.
Baroness Smith of Basildon
I am grateful to the noble Lord for saying that he will write to us with some of the evidence. One of the issues he relied upon for removing this legislation is that there are few prosecutions; that is an entirely valid point. However, could it be that there are few prosecutions because the law is working?
Voting Age (Comprehensive Reduction) Bill [HL]
Baroness Smith of Basildon Excerpts(10 years, 6 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, I welcome the fact that the noble Lord, Lord Tyler, has brought forward the Bill. It is a rare and giddy moment that we find ourselves on the same side of a debate, and I suspect the mood will pass. However, today I am pleased to support his Bill. I come to this debate with perhaps the zeal of a convert.
The right of citizens to vote at the age of 16 is an issue about which I have become passionate, and I was delighted that the Labour Party’s leader, Ed Miliband, made his and our party’s commitment so clear. That said, I do not agree with all the arguments often made in favour of such a move. The claim that it will somehow improve, for example, the percentage turnout is not at all relevant to the debate—I have no idea whether it will do so. I suspect that initially a significant proportion of 16 and 17 year-olds will not take up that right, but it is a matter of principle as to whether it is the right thing to give them that right. I should like to make three points that changed my view and convinced me that this is the appropriate way forward.
First were the views of young people themselves. As a member of the other place, I would regularly engage with school-aged students and young people. At one particular event with around 60 or 70 school students of around 15, 16 and 17 years they quizzed me and discussed a whole range of issues: the environment, jobs, education, the economy, animals, and local, national and international issues. The students were of different ages and abilities, and from different parts of town but few did not engage in some way in that discussion. They were interested and knowledgeable about issues that affected them, and in issues that involved their families, neighbours and communities. Some were involved in and were members of local and national groups and organisations.
Perhaps most important for this debate, they were really interested in issues that affected their futures. If it does not sound too grand to say this, I sensed that they were interested in the future of the country and the world—in the decisions that were being taken now that would affect the world in their lifetimes. It was a lengthy wide-ranging discussion. I then asked if they thought they should be able to vote at 16, and noble Lords may expect me to say that they said that they should be able to do so. I certainly expected that response. However, I was staggered that the overwhelming majority said that they did not think that they should have the vote at 16. Given the debate that we had been having, I thought that I should probe and challenge that view. What were their reasons for not wanting the vote? They said, “We don’t think we know enough about it”, and that they were not interested in politics, despite having discussed a range of political issues, because they did not have enough information, hardly ever read a newspaper, and did not know much about or much like political parties.
All those views could equally apply to many people who already have the vote, so I found myself playing devil’s advocate. These bright, lively, some slightly stroppy, kids were engaged with issues and interested in their communities but were not at all confident about how much they knew. Yet they had views—often strong and some not yet fully formed—but were working their way through them, like the rest of us do. They were worried about not being able to vote at 16 not because they did not care about issues but because they cared too much. They thought they should know more, have more information and engage more before they voted. How impressive is that? If only every voter would want to be as well informed and concerned about issues that affected them.
Political engagement is not just about voting and then leaving it to those who are elected for the next four or five years. These young people were engaged but had not yet connected that engagement—that campaigning and caring about issues—with voting. Too often the young think they cannot engage or contact their elected representatives because they do not vote. In 1958, Eddie Cochran said in his hit “Summertime Blues”:
“I’m gonna take my problem
To the United Nations.
Well I called my congressman
And he said, whoa
I’d like to help you son
But you’re too young to vote”.
Perhaps more Members of your Lordships’ Chamber will recognise that than would Members of the other place. Politicians should always try to be consistent. It would be completely inconsistent to encourage voting at an earlier age, want to increase the number of people engaged enough with their communities to recognise the value of voting, and then support the Government’s appalling lobbying—or gagging—Bill, which seeks to disengage campaigning from the political process of elections. We want young people to engage and we should oppose measures that then put inappropriate and undemocratic boundaries on that engagement. Many people I meet start to engage in politics, even if they do not recognise it as such, through campaigns and issues, and we should encourage, not curtail, that.
The second experience that led me to think that this was a way forward occurred in May on local election day. I was out and about in part of my former constituency doing what the politicians call “knocking up”—encouraging voters to come out and vote. Some did, as always, but some preferred to stay at home. I met a young woman who was walking along the street. She was about 18 or 19 and she had a baby in a pushchair. I asked her whether she was going to vote. She recognised me as I had spoken at her school a few years prior to that, and I think that she felt confident that she knew me and was able to talk to me. Her comments were ones that I have heard before and I think that they are very relevant to this debate. She said, “I want to go and vote. I’ve been looking at such and such, and I’ve seen this in the paper. I want to go and vote but I’ve never done it before. I don’t know what to do”. It was not that she did not have views or was not engaged but she did not know, practically, what to do in order to vote. That was all that was holding her back. She did not know whether her friends would vote and she did not have anyone to go with. It struck me that if, at the age of 16, young people were given the right to vote while still at school, collectively they would engage and find out what to do. Schools could support them with that basic knowledge in, for example, citizenship classes. I am not talking about how to vote or necessarily why they should vote but the simple mechanics of what to do and how to do it.
The third reason is perhaps the one used most often. It is a nonsense that young people of 16 can go out to work, pay taxes, join the Armed Forces and have children, with all the responsibility that that entails, but that they cannot have a say in their own future when it comes to choosing their Member of Parliament, their Government or members of their local council. Yesterday, I spoke to councillor Andrew Gordon of Basildon. He said to me, “If you can pay taxes at 16, you should be allowed to say how those taxes are spent”. Andrew is the councillor for Nethermayne ward on Basildon Council. He is the first Labour councillor in that ward for 20 years, and that in itself is something of an achievement. He lives in the ward he represents. The very first time he voted it was for himself, and he won that election. Andrew was only 18. Did he suddenly, on his 18th birthday, become interested in issues that affected his community? Did he suddenly, at the age of 18, decide that he wanted a bigger role politically? Of course he did not, but like many young people he had views, he cared and he wanted to do something.
If I am honest, despite the fact that he won the seat, there were those in his community who were sceptical that one so young could represent them. However, when he spoke out recently at a public meeting, supporting more than 200 people on a very important local issue, it was clear that they had made the right choice. Whether or not they agreed with his politics, here was a young man fully engaged with the community and understanding local issues, and he did a first-rate job of representing them. He got a standing ovation at that meeting—the only councillor who did.
I am not advocating a whole council of 18 year-olds any more than I would advocate a whole council or parliament of 50 year-olds or 70 year-olds, but too often councils and parliaments are full of older people like us. Decisions taken today affecting our futures include the futures of 16 year-olds, and they will be here long after I have gone. Therefore, should we not be engaging people under the age of 16 and those of 16, 17 and 18 in the democratic process and decision-making?
There is a lot of discussion and there are many press reports about politics being more representative, and that usually refers to women and black and Asian people, but there are two issues that we have shied away from for too long—class and age. Now we have the opportunity to rectify one of those. The Bill has my total support.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
Baroness Smith of Basildon Excerpts(10 years, 6 months ago)
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Baroness Smith of Basildon (Lab)
My Lords, this is the Bill that the Government told us would restore faith in politics, regulate and tackle abuses in lobbying and enhance our democratic processes. As we have heard so often in the debate today, it fails on all counts.
I am the last to speak in this debate before the wind-up speeches, so I am conscious of the old saying that everything has been said, but not yet by everybody. I hope that I can say something that will contribute to the debate, even with all the excellent speeches that we have heard this evening.
My last role in the Labour Government was as a Cabinet Office Minister with responsibility for these issues. I am clear that most lobbying involves citizens and organisations engaging in the democratic decision-making process of society; that should be encouraged rather than constrained. From the discussion I had with the lobbying industry in 2010, we were clear that all lobbying must be conducted appropriately; it must be open, transparent and accessible to all; and that either the industry took meaningful steps to regulate itself or the Government would do so.
Despite welcome progress, my view remained that the industry had not got far enough and that more significant changes would have to be introduced by government. Instead, we have in the Bill a backward step from the lobbying industry’s voluntary register. The Government proposals hinder and fetter the good and do little to regulate what could be bad. Are the public really crying out for changes to hinder or stop charities and campaign organisations from making their case and lobbying for their causes, or are the public deeply concerned about the access to government of large corporations and lobbying companies which do not even declare their clients?
The Bill does absolutely nothing to ensure greater transparency in the latter’s relationship with government. Despite great promises, there are so many exemptions in Schedule 1 that just a tiny minority of the huge lobbying industry will be included. Even for those few who are captured, there is no code of conduct for behaviour, no sanctions and no requirement to declare clients. The Government even failed to acknowledge that lobbying is a wider activity than lobbying just Ministers. What about special advisers? What about civil servants other than Permanent Secretaries? At times, all can be appropriately lobbied, and there is nothing automatically wrong in an outside organisation seeking a meeting with a senior civil servant on a policy issue or with the Minister’s special adviser, but any such meetings should be open, declared and not available only to a select few over a glass of champagne at the cricket, as some may recall from episodes of “Yes Minister”.
However, Part 2 is a deliberate and, as we have heard, chilling curtailment of the democratic rights of those with greater public support and trust: charities and wider civil society organisations. I chair a not-for-profit organisation and I am involved with a number of charities and other voluntary organisations that provide services but also undertake campaigning. Despite amendment, it is clear that the Government are seeking to curtail the activities of such organisations against the interests of the big society about which we used to hear so much from the Government, although I do not recall hearing much recently. If we want a vibrant and engaged civil society it must be one in which members of the public can engage freely and not be told by the Government where the barriers and boundaries are.
At the Cabinet Office, I made it clear that a Labour Government would continue to be a strong advocate for the campaigning role of civil society organisations. Their role as campaigners provides a voice for some of the most disfranchised, disengaged and vulnerable in society.
However, in the lead-in to the previous general election, the writing was already on the wall. Criticisms that,
“so much of the effort in some parts of the voluntary sector is devoted to campaigning”,
became part of the sniping from the then Opposition before the election. In his speech to the NCVO conference in February 2010, Oliver Letwin stressed that what he treasured about the wider sector of civil society was not its campaigning role, but its special contribution to change things and to solve problems. How can the sector change things if the Government stop and restrict its campaigning? That kind of view fundamentally misunderstands and misrepresents the inextricable link between changing things and solving problems, and campaigning to do so.
It is not that as a Labour Government we tolerated that challenging campaigning role—we actively encouraged it. I have to be honest—it is not always comfortable or easy for Government to do so, but I am absolutely convinced that in many cases it makes for better government and better decision-making. Indeed I would go further and emphasise the point made by the noble Lord, Lord Adebowale. If an organisation that provides services of support considers that changes to government policy could resolve or even just alleviate the problem it is dealing with, it has a responsibility to its service users, its supporters, donors and to taxpayers, to address that and to campaign to do so. To go even further, it has an obligation to not just spend money to deal with the problem—if it can identify ways to alleviate or end that problem, then it should campaign to do so. The idea that the Government should tell that organisation not to campaign but to shut up and spend the money, is totally obscene.
It was the Brazilian archbishop, Dom Hélder Câmara, who said:
“When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a Communist.”
I wonder what he would make of this Bill.
This Government talk about the big society on one hand, and seek to squeeze it smaller and smaller with the other. They must not curtail legitimate campaigning activity, or provide the opportunity for councils and governments to issue bad news and unpopular policies before an election, thus preventing campaigning against that policy; they must not stop organisations making their views known on party manifestos. The Government speak of engagement in civil society yet they are taking away the freedom and rights that strike at the very heart of our civil society.
Before the last general election, numerous charities and civil society organisations organised a series of hustings; I spoke as the Minister, as did my opposite number, the now Minister, Nick Hurd, and the Liberal Democrat spokeswoman Jenny Willott. We all went along to these meetings. They were challenging, they were campaigning, they pressed their views on us and they wanted to know our views. Would those hustings be allowed under this Bill, or would those organisations not be allowed to hold those hustings because that would be seen as campaigning too close to an election? What could be more democratic than engaging with campaigning and information at election time, with the hope of encouraging people to vote?
We have heard suggestions tonight, but we really have to wonder what this coalition Government are so scared of that they are desperate to use every possible measure to rush this Bill through before the next election. With no consultation and no draft Bill, as we have heard from our constitutional experts in the House, the Government have already been forced to make several amendments and they have not reassured the charities.
This is an undemocratic Bill and it is a sadly wasted opportunity. Instead of increasing transparency and restoring faith in the political system, instead of trying to encourage engagement, the Government have taken a giant step backwards. This Bill does the Government no credit and it goes against so much of what the Government used to claim they believed in. No wonder people do not trust politics.
Your Lordships’ House this evening has been almost entirely unanimous in its concern about, opposition to and dismay at this Bill. I hope that the Government have been listening to the very serious and heartfelt concerns that have been raised and that we are going to see some serious changes to this Bill. It will take a lot to make it acceptable to those organisations that do so much for our society and are being denied their right to influence Government.
Critical National Infrastructure: Ownership
Baroness Smith of Basildon Excerpts(10 years, 9 months ago)
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Lord Wallace of Saltaire
My Lords, a number of French, German and Dutch companies which are partly or wholly state owned participate in our electricity, gas and railway industries. I hope that I shall not upset noble Lords by adding that 10% of Thames Water is now owned by Chinese investors. I hope that that will not make your Lordships worry a bit as you clean your teeth tomorrow morning.
Baroness Smith of Basildon
My Lords, the Intelligence and Security Committee has raised its concerns about the degree of foreign ownership of the UK’s telecommunications infrastructure. What assessment have the Government made of its report and how do they plan to tackle the problem?
Lord Wallace of Saltaire
My Lords, the Government published a response to that report a few days ago, announcing that they will instigate a review of the Huawei cell, which is the issue very much at stake here. I emphasise that we are talking about a global supply chain in which there are, at most, two potential suppliers of some of the highly sophisticated equipment available—I believe that the other is Swedish. The dependence which we all have on each other for critical national infrastructure in telecommunications is a great deal more complicated than we previously understood. However, Vodafone owns a number of large mobile networks in other countries which are part of their critical national infrastructures, so this is not a one- way trade.
Civil Society
Baroness Smith of Basildon Excerpts(10 years, 9 months ago)
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Baroness Smith of Basildon
My Lords, I congratulate my noble friend Lady Prosser on securing today’s debate, which is not just enjoyable and interesting but also important. It is important that we recognise and address the challenges facing civil society. I have three points to make.
The first is about the value of civil society. That is not a term invented by any Government; it has been around for a long time. We all think that we understand it, but we all interpret it differently. A key part of civil society is the voluntary and community sector, but I think it is a much broader, a much wider and a much more inclusive concept. When the current Government replaced the Office of the Third Sector with the Office of Civil Society, they relied on the more traditional definition of being synonymous with the voluntary and community sector. They announced that government policy would concentrate on three issues, all related to the voluntary and community sector. The noble Lord, Lord Taylor of Holbeach, in a parliamentary Answer, stated that the Office for Civil Society,
“will support charities, social enterprises and voluntary organisations … encouraging a big society and addressing disadvantage by making it easier to set up and run such organisations … the office will co-ordinate work across government to implement the big society and establish a number of flagship big society projects”.—[Official Report, 21/7/2010; col. 969.]
We now rarely hear about the big society, but my point is that those government definitions miss the point. It is not about structures. As important as the voluntary and community sector is, I will offer a different definition. Civil society is the glue that unites and connects society: the notion that we are not just individuals, but that by coming together and working together we can improve the lives of others, improve our own lives, improve society and contribute to our communities, however local or global those communities may be. It is not part of state institutions.
My second point concerns the role of civil society. I am coming to regret that the role is too often seen as just third-sector delivery of services. I am certainly not against contracts or third-sector commissioning. I declare an interest since I chair the board of trustees of a not-for-profit organisation, Resolving Chaos, and am involved with a number of charities and voluntary organisations that provide services. Some are commissioned, some funded and some are provided voluntarily. I am slightly disconcerted by the Government’s publication yesterday of the lobbying Bill, which, taken alongside comments made before the last election, could fetter and curtail the activities of such organisations in a way that could work against the benefits that civil society brings.
In the previous Government, I was the Cabinet Office Minister with responsibility for the charitable and third sectors. I made it clear that the Labour Government would continue to be a strong advocate for the campaigning role of civil society organisations. The role of voluntary and community sector campaigners provides a voice for some of the most disenfranchised, disengaged and vulnerable in our communities.
To assert, as Oliver Letwin did in a speech to the NCVO Conference in February 2010, that what he treasured about the sector was not its campaigning role but its “special contribution” to do something to “change things” and solve problems is to misunderstand fundamentally the inextricable link between the two. Those that complain that,
“so much … effort in some parts of the voluntary sector is devoted to campaigning”,
should recognise that such campaigning is an intrinsic part of civil society and wider democratic engagement in the system.
I will go further. I will give a hypothetical example of a charity that supports homeless people. It may have some contracts; it may have some funded services. It will raise funds and have supportive donors. If there is an area of council or government policy that in its professional opinion, at the sharp end of service delivery and support, is exacerbating the problem, surely it has a duty to its supporters, to its donors and to civil society to campaign to try to address that issue. It cannot turn away from its campaigning role and its responsibilities in that regard. It has an obligation to the homeless whom it is seeking to help.
It was Dom Helder Camara, a Brazilian Archbishop, who said:
“When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist”.
We need to take care that we do not slide into the position that we accept civil society as long as it knows its place, which is to provide direct help and support, but not to tackle or help tackle the causes of the problems and to campaign to address the causes of those problems. That would be plain wrong.
The lobbying Bill refers specifically to third-party organisations’ campaigns at election time. It does not specify which election, so I assume that it refers to all elections. There are issues to be discussed, but we need to ensure that we do not curtail legitimate campaigning activity or provide an opportunity for government or local authorities to issue bad news and unpopular policies just before elections, thus preventing third-party organisations campaigning against those policies.
My third and final point concerns financial issues. We have heard a considerable amount about the impact that cuts are having on organisations that support the community. I have genuine concerns that the future of civil society is being undermined by funding problems. The previous Labour Government had a number of programmes, including one I particularly liked—the Grassroots Grants programme—that directly supported more than 130,000 local groups to make a real difference in the heart of communities.
A report from the NCVO and research by Compact Voice show that the voluntary sector at the heart of civil society is facing an unprecedented level of cuts and further threats to income. Funding is not the only way of supporting civil society, but we need to take care that funding, whether through contracts, subsidies or grants, provides value for money in both financial and social terms, and the impact on civil society must be taken into account. My community is in Essex—as is that of my noble friend Lady Gibson. When Basildon borough council announced a cut in the subsidy to local community centres for pensioners’ hot meals, local residents were shocked and appalled. They understand the social benefit to civil society of the centres. Perhaps what made that cut particularly shocking was the fact that the responsible council cabinet member declared that the meals were not good value for money while her cabinet colleague defended spending £150,000 on consultants to measure grass—that is bizarre but it is true—as being good value for money, so measuring grass was more important than providing hot meals. I am convinced that the public see that as nonsense and understand that value for money is not just a purely economic judgment. They make those same judgments in their own personal spending. They understand value judgments, not just economics. It is about common sense, communities and the value that institutions of government at whatever level place on society.
Too often, it seems that local authorities find it easiest to impose cuts on the voluntary sector. I strongly believe in the power of volunteering for the volunteer and those being supported. As we heard from my noble friend Lady Prosser, some volunteering grows organically but needs structure and support to obtain the best value from it. Like many others, my local volunteer centre in Basildon has now closed. Due to funding cuts, it could no longer sustain its work. I have sincere worries about the impact that will have on civil society.
In conclusion, engagement in civil society adds value and improves quality of life. It is not something we can just pay lip service to here today and say how wonderful it is, then go away and do nothing. It is intrinsic and essential and it needs and deserves our support.
Baroness Smith of Basildon
If it helps the noble Lord, I will explain the point I was making. The Lobbying Bill suggests that third-party organisations would not be allowed to be involved in campaigning during a general election. I wanted to ensure there would not be the unintended consequence of stopping them campaigning at all during elections when there might be legitimate reasons for them to do so.
Lord Wallace of Saltaire
I can allay her concerns on this. I was very struck when I was briefed this morning on this by the sheer scale of the funds some organisations have used and targeted. It is that sort of development we are thinking about. I hope I have covered most, if not all, of the points made in the debate.
Official Statistics Order 2013
Baroness Smith of Basildon Excerpts(11 years, 1 month ago)
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Lord Wallace of Saltaire
My Lords, all Members of the Committee will be aware of the important work being done by the UK Statistics Authority. This body was created in 2008 with a statutory responsibility to,
“promote and safeguard the production and publication of official statistics”,
which includes monitoring of and reporting on official statistics.
Under the Statistics and Registration Service Act 2007, statistics produced by the Office for National Statistics, government departments, the devolved Administrations and other Crown bodies are automatically deemed to be official statistics. The Act also makes provision for identifying other organisations as producers of official statistics. This is important, as it enables their work to fall within the remit of the authority and the public to have added confidence in their statistics. The purpose of this order, which is subject to affirmative resolution, is to specify these organisations.
The UK Statistics Authority has been consulted in preparing this order, in accordance with the Statistics and Registration Service Act, and is content for it to be laid. The Cabinet Office has laid this order on behalf of government departments, in preference to each department laying an order for the bodies for which it is responsible. This approach saves considerable parliamentary time.
This is the fourth use of this order-making power by a Minister of the Crown, and revokes and replaces the one that came into force on 3 December 2010. The previous order contained 57 bodies. The 2010 order was amended by Article 17 of the Education Act 2011 (Consequential Amendments to Subordinate Legislation) Order 2012. This omitted entries relating to the Qualifications and Curriculum Development Agency and the Training and Development Agency for Schools, which were abolished by the Education Act 2011. It will also be amended by the Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013, which will come into effect on 1 April. This will reflect the change in name of the Financial Services Authority to the Financial Conduct Authority, which comes into effect on the same day.
In arriving at the current order, 21 bodies have been removed from the previous order and five new bodies have been added. Much of the reduction in the number of bodies is due to the recent reforms to public bodies. As noble Lords will recall, in 2010 the Government announced plans to reform 481 quangos to help reinvigorate the public’s trust in democracy; to ensure that the Government operate in a more efficient and businesslike way; and to radically increase the transparency and accountability of all public services. A number of these changes will come into effect on 1 April this year. It is important that these reforms extend to areas such as official statistics. Therefore, some of the changes have led to the streamlining of some statistics but those most important to public life have been preserved. The longer-than-usual hiatus between this order and the previous one has been to ensure that the new order fully captured these reforms.
In summary, this order reduces the number of bodies that are subject to the UK Statistics Authority’s oversight; those bodies listed on the order will have to work to the new code of practice for official statistics; and their statistics will have the potential to be nominated for formal assessment by the authority to be national statistics. I reassure the noble Baroness that I have discovered the difference between an official statistic and a national statistic, even though it took me some time. This House agreeing the order is a vital part of enhancing public confidence in official and national statistics, and I beg to move.
Baroness Smith of Basildon
My Lords, I thank the noble Lord for his introduction and explanation of this order. Perhaps the only point he missed was to stress the importance of always having accurate statistics, and indeed that is implicit in bringing forward the order today. It is a sign of the times that public confidence is higher and trust is greater in statistics if they are seen to be produced independent of government, and I think we should put on the record our praise of the UK Statistics Authority and of the Office for National Statistics, which is part of the executive wing, as it were, of the Statistics Authority. In many ways, the authority acts as a check and balance on some of the important areas of the economy. It is helpful that the Statistics Authority can look at statements and figures so that the policies of all political parties can be held to account. We can ask the Statistics Authority to check the accuracy of any statement that is made.
However, this is not just about the face value of statistics, but how they are used and how they can be misinterpreted either accidentally or deliberately. We have seen that recently. The Minister may be aware that the Statistics Authority had to write to MPs. Any of us can make a mistake, and in this case it was made in a Conservative Party political broadcast on 23 January. It got into a muddle between debt and deficit, and that had to be put right. My understanding is that the broadcast said that it had gone down, but information from the UK Statistics Authority showed that net public sector debt in June 2010, the end of the second quarter, was £811 billion, which represents 55.3% of gross domestic product, and that by the end of the fourth quarter 2012 it had risen to £1,011 billion. We should thank the Statistics Authority because it is able to make corrections to statements made by politicians of any party because it has the confidence of the public behind it.
I know that the noble Lord has worked through the order and looked at the different definitions. As a former Minister who was in the same position that he is in now, perhaps I should not have been puzzled by this, but I want to ask about the Statistics Board. The order refers to consultation with the board and it is referred to in the legislation, but it is actually the UK Statistics Authority and the ONS. The only reference I can find to a board is to the Board of the UK Statistics Authority, whose membership includes people from the ONS—the chief executive, the National Statistician and the Director General. I am slightly puzzled about why the order refers to the board when the entity is in fact the authority, but I hope I am correct in assuming that the board he is referring to is the board of the authority. It would be helpful if he could confirm that.
The board was consulted and I assume that the response to the changes being made was positive. It would be helpful to have the complete list in the schedule, but 21 organisations were removed. If I understood the Minister correctly, he has already answered part of my question in his opening. Part of that arises from the Public Bodies Act, about which he will understand we have mixed views, in particular with regard to the changes being made. If those organisations are no longer able to produce official statistics, does that mean that there is now a lack of available statistical information, or has the work of those 21 organisations which are no longer on the approved list been allocated to other organisations? Are we still able to get the kind of information that was being produced? Further, is the Minister able to provide a list of the 21 organisations? It would be helpful if he could write to me.
The explanatory note also said that the charities being included as producing official statistics will have no official burden placed on them. Does that imply that they have previously produced statistics of use to government and held in public regard, but that have not been regarded as official? If the Minister can say something about that, it would be helpful.
I was puzzled to find that two organisations were not on the list. As I mentioned to the Minister, later on today we will have a debate on crime statistics. It is helpful to have this debate today to help inform that debate later on. In my reading for that debate, it was clear that the UK Statistics Authority says that there are two sources of official figures for crime statistics: one is police records from individual police forces and the other is the British Crime Survey. Individual police forces are obviously not on here, I assume because they feed information to the Home Office which then issues that information. If I am wrong about that, I would be happy to be corrected. But the British Crime Survey is not here. It is interesting if the UK Statistics Authority recognises the British Crime Survey statistics as being very useful, if not “official”—because that is a legal term. If it uses those statistics, I wonder if it would be appropriate for the survey to be on the list. Why is it not?
My final point is on another organisation that I doubt has been missed: the Office for Budget Responsibility. When they came into power, the coalition Government were clear that they wanted to see independent figures and assessment of the economy, and set up the Office for Budget Responsibility in response to that. That was widely welcomed. Yet it is not included in the list. Clearly, it is highly regarded—as is what it produces. Like the UK Statistics Authority, it is a check and balance. The Prime Minister said in a speech on the economy:
“As the independent Office for Budget Responsibility has made clear, growth has been depressed by the financial crisis, by the problems in the eurozone and by a 60% rise in oil prices between”,
and he gave the dates.
“They are absolutely clear, and they are absolutely independent. They are absolutely clear that the deficit reduction plan is not responsible; in fact, quite the opposite”.
The head of the Office for Budget Responsibility then had to write to the Prime Minister to make clear that that was not the case. He said:
“I think it is important to point out that every forecast published by the OBR since the June 2010 Budget has incorporated the widely held assumption that tax increases and spending cuts reduce economic growth in the short term”.
Clearly the OBR has the authority and credibility to write to the Prime Minister when he gets something wrong in talking about statistics and the economy, but it is not listed as an official statistic-producing body. It would be useful were the Minister able to help me understand the reason for that.
Those are the only questions I have. Clearly, it is helpful to have the list and we are obviously supportive of the order. It would be helpful to have the responses to the questions I have asked.
Lord Wallace of Saltaire
My Lords, I thank the noble Baroness for her constructive speech. Of course, I should have said that this is very much an all-party set of issues. The last Government introducing this new system of greater independence for statistics was a very valuable contribution to more informed debate. I am in some ways a great admirer of the Daily Mail and its uses of statistics, and the wonderful way it manages to imply that statistics mean something entirely different from what most of us understand them to mean. Usually you have to read down to the tenth paragraph on the second page to discover that actually the story is not as good as it seems. In politics, we want an independent body that can point out that statistics cannot be twisted in that way. That is what this current system most attempts to do.
Baroness Smith of Basildon
Just as an aside, I owe the noble Lord an apology. In the last debate we had, I accused him of being a Guardian reader. I now appreciate that he is in fact a Daily Mail reader.
Lord Wallace of Saltaire
I do my best to skim through several newspapers of one sort or another.
The Explanatory Memorandum for this order lists the 21 bodies that are disappearing. I know that the noble Baroness will be deeply familiar with a number of them, such as the British Educational Communications and Technology Agency, the National College for Leadership of Schools and Children’s Services Limited, the National Patient Safety Agency, the National Policing Improvement Agency and so on. In almost all respects, the functions of those bodies have now been transferred to other executive agencies and the statistics which they were responsible for producing will thus be provided by the new agencies. However, I will check to see whether there are any holes in that and will, of course, write to the noble Baroness.
My understanding is that the Office for Budget Responsibility—again, I will check this and write to her to confirm it—rather like the National Audit Office, is an independent body and is thus responsible for its own quality assessment rather than being a government agency which has to be checked by the UK Statistics Authority. Similarly, the Bank of England’s statistics are not checked by the UK Statistics Authority because the Bank is an independent body which is responsible for its own statistics and their quality. That is my understanding on the OBR, but again I will check on that.
I will have to check which agency is now responsible for providing the crime survey. I suspect that it is under the Home Office, which will therefore be responsible for it.
Baroness Smith of Basildon
I am grateful to the noble Lord for looking into this. As regards the 21 that were off the list, if he can write to me to clarify any gaps, that would be helpful.
I think the noble Lord will find that the British Crime Survey does not come from the Home Office. I drew a distinction between the police force figures, which I think may be produced by the Home Office, and the separate, more independent British Crime Survey. If the figures are used by the statistics authority, I wonder why they are not included in the list. I am very happy for the noble Lord to write to me on that.
Lord Wallace of Saltaire
I will check on that. It is absolutely right that we should use a case like this as a chance to check that reliable statistics on important matters are coming from agencies which we all respect.
Having answered those questions, I thank the noble Baroness for her comments and very much hope that the Committee will be willing to accept the Motion.
Government’s New Approach to Consultation: “Work in Progress” (SLSC Report)
Baroness Smith of Basildon Excerpts(11 years, 2 months ago)
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Baroness Smith of Basildon
My Lords, I first thank the noble Lord, Lord Goodlad, and his committee for a welcome and extremely useful report for your Lordships’ House. This is the second debate on a Secondary Legislation Scrutiny Committee report in the past two weeks to which I have responded on behalf of our Benches. If I am honest, my first reaction on looking at the reports was, “This could be a bit dry”. However, it actually goes much deeper than that. Not only have I have enjoyed participating in, and learnt an enormous amount from, these two debates, but they go right to the heart of our democracy and our role in your Lordships’ House as people who scrutinise legislation. It shows the House of Lords at its best: it is looking at the process of government not in an academic or remote way but in a very practical way and examining the impact of these proposals on parliamentary scrutiny. It has also—I cannot overstate this—given a voice to those who had serious concerns about the changes that the Government have made to the principles of consultation but who had not been given an opportunity to express their concerns or to be consulted in any way, to try to influence that policy before it came in. The House owes a debt of gratitude to the committee for providing that opportunity for a proper consultation on this issue.
I have been quite eager to hear today’s debate and the Minister’s response. The main reason is that, having read through the Government’s statement from July, the reports and the appendices, and the government response, I am still not totally clear what problem the Government are seeking to address by changing the rules and having this new statement of principles on consultations. I hope that we will hear from the Minister today what the problem is that the Government feel has to be addressed and what the evidence base is for the change that has taken place. The Minister’s statement in July is quite clear as to the Government’s stated objectives: that consultation must be proportionate, in terms of time, scale and type; that there should be real engagement rather than just a bureaucratic process; and that thought should be given to with whom Ministers should seek to engage so that there can be a targeted consultation.
However, all Governments would say exactly the same about those processes. In 2008, when the Labour Government brought in the Code of Practice on Consultation which this Government have now replaced, my noble friend Lord Hutton of Furness who was then Secretary of State for Business, Enterprise and Regulatory Reform, wrote in the foreword:
“This Government is committed to effective consultation; consultation which is targeted at, and easily accessible to, those with a clear interest in the policy in question. Effective consultation ... which the Government can use to design effective solutions”.
That 2008 code of practice, which laid out seven criteria for consultation, was a widely respected and very welcome document. Noble Lords here today have asked why we do not just go back and use that 2008 document. Why the change?
In its report, the committee acknowledged that that document was produced for consultation and engagement with those parties who had an interest in such matters. From looking at the way in which these new proposals have been put forward and handled and, from reading the report, the Minister’s first response has led to considerable suspicion that the Government’s priority is to curtail consultation and accessibility to it. The proposals for two areas of the process were announced in a Written Ministerial Statement issued on the last day before the Summer Recess. The Statement made clear that these were now to be the principles, though the Government would have a post facto look at them if they received any representations. That sounds very mealy-mouthed. Of course there would be representations. The Secondary Legislation Scrutiny Committee was overwhelmed with responses when it asked for views on this matter.
As to content, the headline measure was that the 12-week default timescale for consultation was to be dispensed with in pursuit of proportionality and flexibility. That Statement overlooked the fact—as the committee has rightly pointed out—that the 2008 principles already contained such scope for flexibility. In the wider context, when the Prime Minister spoke to the CBI in November 2012, suspicions were then roused about the real intention behind the Government’s changes. What is the Minister’s reaction to the Prime Minister’s comments that,
“we are going further, saying, if there is no need for a consultation, then don’t have one”?
Here are the Government making the decision as to whether or not there is any need for consultation on a government policy. I think we would all agree that the Government do not have a monopoly on wisdom; genuine, meaningful, effective consultation is very important. At that time, the Prime Minister also said:
“When we came to power there had to be a three month consultation on everything and I mean everything, no matter how big or how small”.
Clearly that was not the case, as the committee outlines in its report.
So how does the attitude of the Prime Minister square up to other stated aims of this Government, to foster a new politics of citizen engagement and to promote localism? What has happened to those principles of the big society? Democracy and the big society are about more than casting a vote once every five years in a general election. They are about engagement, and consultation is the opportunity for engagement with the wider community.
I would welcome comments and assurances from the Minister here today, because the Government will have to show by practice and example that suspicions that they want to curtail consultations are unfounded. Failure to engage on process and content before it was introduced will mean that assurances alone will not be enough to allay the fears of those who have raised concerns.
There is much in the statement the Government made in July with which we can all agree. The first purpose of consultation should always be to use the knowledge, skills and information from consultees to improve policy formulation or implementation. I appreciate that no amount of consultation is going to change a key manifesto commitment or policy aim of the Government. But there are few consultations that fulfil those criteria. Many seek the views of those with expertise; the committee used the expression “expert critique”, which seems very apt.
One concern regarding the new principles is the removal of the requirement to provide feedback to participants. Both the Centre for Public Scrutiny and the Association for the Conservation of Energy expressed concerns, and the committee raised this with the Minister. In his response when he met with the committee, the Minister accepted that the feedback would be “very reasonable”, but he failed to make a specific commitment. The committee is right to highlight this as a recommendation. There should always be a timely response with feedback, otherwise the whole process of consultation becomes flawed.
As a slight aside, there is a serious point about the credibility of consultations. There is a great danger that consultation, in itself, is losing credibility with the public. A large proportion of the public now feel that many consultations, not just those of central government but of local government and other organisations, are a sham. The reason is that, too often, nothing significant changes as a result of consultation. We will all know of examples where a majority oppose an issue being consulted on, and yet it goes ahead. In my local area there is a consultation as to whether blood tests conducted at two local hospitals should be bussed up to Bedford for the testing to take place. I have not found anybody in favour of it yet, but it seems to be going ahead, which is quite wrong.
A Guardian article today—I am sure that the Minister is a Guardian reader; he has that look about him—which the Minister’s laugh tells me he has probably read, says that parents have criticised academy conversion talks as a farce. It states:
“Parents at a popular primary school threatened with takeover by an academy chain have labelled a promised consultation a farce after the main questionnaire failed to even ask them if they wanted the school to change status”.
This is a consultation that the DfE has instructed the company wanting to set up the school to undertake. A parent quoted in the article says:
“To not even ask us initially if we wanted the school to be an academy, it’s just indicative of a whole attitude … It really doesn’t seem that they want our views at all. It’s as if the decision has already been made—which we think it has. It’s a bit of a farce”.
I worry about that because consultation is extremely important, as the committee highlighted in its report, in helping the Government produce good legislation. Any Government should welcome that. If the whole process of consultation falls into disrepute, the Government will not get the support, the “big society”, the buy-in or the participative democracy that any true society or Government needs.
We are less likely to see changes in key policies from consultation than we would from consultations on implementation. There is often a reluctance to make significant changes, especially when preparatory work has already been undertaken during the consultation period. It is clear that pre-legislative scrutiny has been useful in ironing out potential difficulties and problems, but when such scrutiny or consultation is inadequate we see the kind of problems that we saw even last week: the Government had to revoke a key order which formed part of the Health and Social Care Act. Adequate scrutiny could have avoided that taking place.
True scrutiny, true consultation, has to be genuine and not a process or exercise. If a Government have no intention of listening or making any changes, then it is frankly irrelevant whether it is two or 12 weeks; it is wasting everybody’s time. Yet the losers there will be the Government and legislation, through the loss of support.
I recall a specific incident when I was a Minister for a devolved department in Northern Ireland. There had been a consultation exercise for the standard 12 weeks. It was brought to me with the original consultation responses and the response that we should make—not a single thing having changed in response to that consultation. When I asked about it, there were clearly two or three significant points. However, as the noble Lord, Lord Bichard, said, when work has been undertaken and a report has been prepared, there is a reluctance to change. I am pleased to say that, on that occasion, we did respond to the consultation and make some fairly significant changes as a result. Good consultation makes for better legislation and better implementation.
I will emphasise four points and ask for the Minister’s comments. First, what is the problem that the Government are seeking to resolve? In its report, the committee is very clear about the amount of consultation that takes place. The Prime Minister’s comment that everything had to be consulted on for three months was not the case. The committee looked at statutory instruments between November 2010 and November 2012 and found that there was a 12-week consultation in only around 25% of cases. Clearly it was not the case that everything was consulted on for three months.
Further evidence was provided to the committee by Oliver Letwin, showing that it was not the case that everything was consulted on for three months, even though there was quite a lot of change. That led to the committee to observe that,
“it would be helpful to the wider public debate if the Government were to recognise more explicitly that Departments have always had, and applied, flexibility over the conduct and timing of consultations”.
The Government do not give their case any credibility by failing to acknowledge that. I would welcome the Minister’s comments on what the problem was and why this had to be brought forward, given the comments made by the committee on that point.
The second point is about “digital by default”. We all know that it is cheaper and easier for the Government to consult via the internet. However, as we have heard, not everyone has internet use. The committee’s report identifies that 23% of people do not have any access to the internet. Last year I received several very neatly written letters from a young man who was highly intelligent but had a form of autism. He was a savant. His letters were very detailed and had drawings attached. He had wanted to be part of a government consultation, but his contribution had been sent back because he had not put it on the appropriate form and had not replied via the internet. It is inappropriate when somebody who wants to respond is prevented from doing so in such a way.
The committee made a number of helpful recommendations. Unfortunately, they were not addressed in the Government’s response. It would be helpful if the Minister would say exactly what is meant by “digital by default”. There is a lack of clarity, particularly when there has not been a response to the points made by the committee.
The committee also made very helpful suggestions on engagement. It is clear from those who responded to the committee’s consultation that a lot of people want to respond, to engage and to be helpful and useful to the Government. Many made very valid points about why the consultation should be 12 weeks. I draw the Minister’s attention to the submission from the Institution for Occupational Safety and Health, which makes the point that as a key stakeholder it can provide invaluable information and suggestions that consulting bodies may otherwise fail to consider. Its members come for practical health and safety input and for help in determining what is workable, effective and enforceable. The institution states that it needs 12 weeks to get that kind of information together in order to be helpful and comprehensive in its approach to government.
The CBI makes a similar point on page 10 of the report. It states:
“How not to do it: employee-owner status ... The consultation opened on 18 October 2012 and closed just three weeks later”,
despite the complexities of the issues raised. Does the Minister think that those organisations raised valid concerns about the nature of the consultations to which they responded? Will he confirm to the Committee that the points raised by those organisations and others will be taken into account and addressed in the review?
I agree with the point of the noble Baroness, Lady Thomas, that there should be a central point for consultations that people can access. Just last week I had to telephone the Home Office because the link I had been given to respond to a government consultation did not work. The department had been helpful in sending the link, but it was not available. A central point for all information would be useful.
I agree with the committee on both review and oversight. I thought that the Minister’s response was trying to be helpful in terms of the content of the review, though I entirely agree that, given the nature of the Government’s principles and the response that there has been, an earlier date would be preferable. I do not think that the points that Oliver Letwin made about the reasons were unreasonable, but they seemed to be taken account of in the committee’s recommendation. If the Minister could explain why there has to be a delay in getting this review under way and reporting back to your Lordships’ House, that would be helpful.
I hope that the review itself will also be subject to consultation. The great error highlighted in the report is that it has not been subject to consultation and has caused problems as a result; it would be useful to have buy-in from consultees. The committee said in its report:
“We recommended an early review because of the strong evidence we had received that a very wide range of interested parties saw the new Consultation Principles as having a detrimental effect on the development of good legislation”,
and said that it had,
“the superficial attraction of speeding up consultations”,
although that is contradicted by the Minister’s own figures that have been passed to the committee.
The committee made some very valid criticisms of how the Government intend to implement the external advisory panel. I am interested in why the Government are rejecting the point.
I think that I have spoken long enough on this issue. I hope that the Minister is taking this debate seriously and understands the real concerns that have been voiced. A lot of weight will be attached to the response that he gives today and to the Government’s review, and I hope that he is able to address the real concerns and worries we all have in the interests of good legislation.
Lord Wallace of Saltaire
My Lords, I was saying when we broke that much of this is about the tension between the Opposition and the Government, legislature and Executive, and that we have a range of long-running problems in how government consults.
I will try to answer the four questions that the noble Baroness, Lady Smith of Basildon, has raised as a focus for dealing with this extremely broad subject. After all, when one talks about consultation, one is covering a very wide range of subjects. What you need to do when consulting about, for example, the patterns of dog ownership and how to address identification of dogs—on which, on a digital consultation, some 27,000 individual replies came in very rapidly—is very different from when you are discussing an issue on land planning, the school curriculum or even perhaps on caravan sites. We have to have different sorts of consultation patterns to some extent for different sorts of issues.
The problem that the Government are seeking to resolve is how to make consultation more effective as government becomes more digital—the digital revolution provides a great many opportunities for us—and as the Civil Service gets leaner and therefore, unavoidably, slightly meaner. We note that a number of people have remarked that government has not been good at responding to consultations. Certainly that is part of what the review will need to take into account: how do we ensure that if you are consulting—and the formal consultation processes, which often come very late in a policy-making process, are the ones which really matter here—government is able to take the consultations into account and to provide a timely response?
On the “digital by default” issue, the Government are moving to a single gov.uk website. One of the things I am most excited about within government is the whole government digital proposal; how far we are beginning to transform the way in which government relates to the citizen as we go through the next digital revolution.
When I first began to be involved in this, I did not believe the DWP statistics about how many benefit claimants were interacting with government digitally. It is of the order of 25% and is expected to go up to about 70% within the next six to seven years. I found this very difficult to believe, but I now understand that we are all beginning to move along the digital corridor much more rapidly than we expected. People who do not see themselves as computer-enabled nevertheless have complex mobile phones through which they are beginning to interact with government. Part of what we hope we are able to do as we make government more open, and make access for the individual and for particular groups more available, is to make the process of consultation easier. There will be a single website, which will list all available consultations. This comes out of the whole governmental “digital by default” proposals.
The question of what is meant by “engagement” takes us into a broad set of issues, in which my noble friend Lord Goodlad raised the question of what we meant by “government by consent” in a modern democracy. I am conscious that part of the problem of how consultations are organised is that consultation now means dealing with a wide range of lobbies and interested groups, which perform the function that 30 to 40 years ago was often performed by political parties, which sorted out the range of political priorities and began to crunch through how you reconciled different priorities. Now that political parties are very much weaker and smaller, we have masses of single-issue groups, volunteer organisations, advocacy bodies, lobbies, interests and protest groups. Travelling back on the train from my party’s spring conference yesterday, I found myself sitting opposite a leading member of a major advocacy group who said that his biggest problem was “all the lobbies”, by which he meant the interested groups with which he competes and for which he wants to see, as do others, a statutory register of lobbyists, which will control their interactions with the Government. We all understand now that the battle over consultation and access to government, which will come up in a further discussion when the Government produce proposals for a statutory register of lobbyists, would take us yet again into this question of transparency, access, government response and so forth.
The noble Lord, Lord Scott, talked about the need for the Government to communicate with the “right people”, but consultation probably also has to be communication with the wrong people as well as the right people. At least, one has to be prepared to listen to the wrong people from time to time, although of course we recognise that communication and consultation early in the process has to start with the most logical stakeholders. However, we do not have to communicate only with them. We have to be careful not to communicate simply with the loudest people, or the best organised or funded.
The Government are therefore committed to open policy-making, as far as possible. The consultation principles say:
“Increasing the level of transparency improves the quality of policy making by bringing to bear expertise and alternative perspectives”.
How we manage that will also depend on how far the groups with which we are dealing are prepared to engage in a much more active consultation process from the beginning through to the end.
On hard-to-reach groups, when we are dealing with major aspects of aviation policy there are a few vulnerable groups about which one has to worry. Clearly, if you are dealing with disability policy, a Government have to make particular arrangements. Similarly, if you are dealing with caravan sites, there are different vulnerable groups and you have to make a particular effort. The Government are well aware of that. It will also come into the review.
The noble Baroness, Lady Smith, remarked critically on the Prime Minister’s comments that, if there is no need for a consultation, we should not have one. Oliver Letwin, in his evidence to your Lordships’ committee, talked a good deal about the principle of proportionality: some very minor and technical changes, such as a change in the name of an authority, do not need lengthy, expensive consultation. However, there are other areas with widespread consultation.
The noble Baroness, Lady Hamwee, talked about small organisations struggling to respond quickly, especially NGOs and local authorities. I emphasise that the consultation principles explicitly protect the compact with the voluntary sector, and we are well aware that the voluntary sector is one of those that are most actively concerned to be included in the consultation process. I reassure the noble Lord, Lord Goodlad, that the evidence presented to the committee will be taken into account in the review that the Government are about to undertake.
I say to my noble friend Lady Hamwee that the membership of the external advisory panel is currently being finalised, and will most likely include a representative from the National Audit Office. We will also take into account the committee’s recommendation that members should be drawn from the charity sector, from industry and from academia to represent a wide range of interests. As members of the committee will know, the review will begin after Easter and the panel will be announced then.
We take all the points made about avoiding holiday periods and the Christmas period into account. I am sure that the gamekeeper turned poacher that we have with us is well aware of occasions in the past when civil servants, and possibly even Ministers, have wished to use those sorts of expedients as ways of minimising the reality of consultation while going through the motions. Again, I suspect that that is a universal and secular habit of all forms of government, and it is part of what good legislatures should always be on the lookout for.
Baroness Smith of Basildon
I am sorry to interrupt. The Minister has made a great effort to answer the many questions that have been raised but, just before he sits down, there is one that I asked him a couple of times: what is the problem that the Government are seeking to address by changing from the 2008 principles to the ones that they brought forward in July?
Lord Wallace of Saltaire
I was saying that as we move towards greater interaction between government and citizen through digital means, the characteristics of consultation will change. I was also remarking that Governments have not been good enough—departments have not been good enough—at consulting with stakeholders at an early enough stage in the process. A formal consultation after you have taken the principal decision is itself sometimes bound to lead to disappointment for those who come in. We are trying to move towards a more flexible and faster system of consultation where appropriate. I hope that that provides an answer.
The review panel that will now be meeting will take fully into account everything that the committee has said and the evidence submitted to it. The panel will be reporting by the summer, and I expect and hope that, as a good legislative committee, this committee will then return to the subject and look at how satisfied it is by the review panel’s conclusions.
Strengthened Statutory Procedures for the Scrutiny of Delegated Legislation: DPRRC Report
Baroness Smith of Basildon Excerpts(11 years, 2 months ago)
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Baroness Smith of Basildon
My Lords, I join other noble Lords in thanking the noble Baroness, Lady Thomas of Winchester, and her committee for the work that they have done in providing this report and securing the debate. I found the debate really interesting and highly relevant, which is something of an achievement when you think that we have harked back to 1539 and Henry VIII on numerous occasions.
I spent 13 years in the other place, where there is no such committee and not the same opportunity to have a report on delegated legislation. Despite the view of many that this matter is irrelevant and a bit technical, we have heard from a number of noble Lords about the huge impact that delegated legislation has on life. Since I have been in your Lordships’ House, I have found such reports to be invaluable.
It is a clear principle of our political system that the Executive have a right to implement their legislative programme—other noble Lords, including the noble Baroness, Lady Andrews, have made that point—but Parliament has an obligation to ensure that the laws passed are of the highest possible quality. Good scrutiny makes for good legislation and good government.
Most people outside Parliament, if they think about these matters at all, would be generally of the view that all legislation is debated in full by both Houses. I suspect that many would be surprised if they were aware of the volume and content of delegated legislation. Yet as the committee rightly points out, the context for the report is,
“the increasing practice of delegating significant legislative powers to Ministers, and the House’s continuing desire to ensure that appropriately robust scrutiny processes are put in place”.
It is clear that your Lordships’ House fulfils its role as a scrutiny Chamber, but it has to be recognised that the scope for scrutiny of delegated legislation is limited. The noble Baroness, Lady Thomas of Winchester, made it clear that it is appropriate to have delegated powers if they are used appropriately. I think that we all recognise that we can only accept or reject delegated legislation. For reasons of constitutional sensitivity, the latter happens rarely in the House of Lords, as the noble Lord, Lord Filkin, observed in his powerful comments. Acceptance or rejection is not a substitute for good line-by-line scrutiny, debate and possible amendment, but it is none the less beholden on us to do the best job that we can with such legislation.
Having sat in both Houses, I have no doubt that the scrutiny undertaken by your Lordships’ House is superior in this regard, and that role of scrutiny is taken very seriously and is fulfilled. As I have said, there is no equivalent committee in the Commons. The Procedure Committee in the other place has considered the idea, but it has never really got off the ground. It could be argued that its failure to have a similar delegated powers committee reinforces our role as a scrutiny Chamber, with the Commons perhaps accepting that as being our role and saying, “We'll leave it to the Lords to do this worthy, very technical work for all of us”. That is quite an imbalance and recognising the different roles of both Houses could be seen as a division of labour, but it also makes the scrutiny of delegated legislation here an even more important responsibility and one that we have to take very seriously.
The true value of scrutiny is in the capacity to revise and reject when required. Legislation of this kind cannot be amended and only withdrawn by government and retabled in another form, which is rare—although, coincidentally, it happened today on the health regulations. All this makes scrutiny of delegated legislation a bit of a blunt instrument and, as the noble Lord, Lord Marks of Henley-on-Thames, said, sometimes an inadequate instrument as well. That is why we should be concerned about the overreliance of Governments on this type of legislation. The report is very helpful in that regard.
The power to reject is available in rare cases. The powers that this House has in that respect were reaffirmed by the Cunningham committee in 2006. Its report on the relationship between the two Houses, which was accepted unanimously, said:
“There are situations in which it is consistent both with the Lords’ role in Parliament as a revising chamber, and with Parliament’s role in relation to delegated legislation, for the Lords to threaten to defeat an SI”.
That is in paragraph 229 of that report. On that point, the noble Lord, Lord Strathclyde, who was then Leader, said in communication with the Merits Committee:
“The Government welcomes the Committee’s conclusion that the opposition parties should not reject an SI simply because they disagree with it”.
The bar for rejecting delegated legislation—an SI—is set pretty high and is rarely used. It is all the more powerful because of that. Although your Lordships’ House can debate and, at times, vote on delegated legislation, it rarely uses that power, as we have heard. Yet tomorrow evening we have a vote on the Agricultural Wages Board. That is because an SI being heard in the Moses Room was negatived and now has to come before your Lordships’ House to be voted on. So there are occasions when this takes place.
Any significant increase in delegated legislation impacts on the ability of your Lordships’ House to effectively scrutinise it. The references to Table 1 in the report have been very helpful tonight. My noble friends Lord Haskel and Lord Soley, and others, pointed out the variations in the way delegated legislation had been scrutinised. That is not helpful to the work we do. More importantly, it is not helpful to the understanding of the work we do, both outside your Lordships’ House and with other noble Lords. The committee’s table is very helpful and makes it clear that there is a wide range of enhanced scrutiny mechanisms. Moves to simplify this array are extremely helpful, as is the committee’s recommendation that any additional procedures suggested in future should be accompanied by justification and explanation by the Government of the day.
The committee expressed concern as to whether the current procedures and the complexity in procedures are adequate given the increased use of delegated legislation. Given that increase, the Government should not think that this is an easy way to get legislation through. The comments made by my noble friend Lord Filkin were particularly relevant. Any Government must consider carefully in any piece of legislation that they bring forward whether it is appropriate to delegate order-making powers to Ministers. We have heard from many noble Lords—my noble friend Lady Andrews made this point—that clearly in many cases it is essential and reasonable to do so and we accept that. But as the committee notes, we may also want to look at why there has been such an increase.
First, there has been an increase in legislation generally. The noble Baroness, Lady O’Loan, gave some examples of how big that increase has been. There is also an issue of Bills coming to Parliament before they are truly ready—or “oven ready” as I have described them. I can think of two such Bills that I specifically worked on from the Front Bench. One was the Energy Bill in the last Session of Parliament. More than 50 pieces of secondary legislation will come from that Bill. That seems a huge amount and we have to question whether, if the Bill had come to us a bit later, some of those pieces of secondary legislation would not have been more appropriate in primary legislation.
One of the crucial parts of the Crime and Courts Bill—another Bill yet to come back to this House—is setting up a national crime agency, to be established through a framework document. That framework document was not available to your Lordships’ House even at Report stage, though it had been promised to us earlier. Given that that framework document will describe everything that the NCA is supposed to do and how it will do it, and so will be crucial to the establishment of the new agency, it would have been appropriate to have that before your Lordships’ House as part of the primary legislation. Instead it will be brought forward by order that will be unamendable and will not have same the degree of discussion and scrutiny. To my mind, it is an integral and essential part of that Bill. Again, it would have been better if that Bill had taken a little longer to come to your Lordships’ House and not been one of the first Bills off the blocks, so that that information was available to noble Lords.
The Welfare Reform Bill is almost entirely framework legislation. We are seeing so many regulations for the Health and Social Care Bill and for LASPO. All the Bills that I have mentioned were totemic pieces of legislation, highly political but with much of the meat left to delegated legislation. What opportunity has there been for Parliament properly to scrutinise the Government’s intentions and for this House to play its role in assisting the Government by looking at whether legislation can be improved?
When such a significant part of legislation is coming forward as delegated legislation, we need to delve deeper into the question of whether the Bill was really ready, whether it was oven-ready, before coming to your Lordships’ House. It is not appropriate for the delegated procedure to be used when it would have been entirely reasonable to expect that part of legislation —the NCA is probably the best example that I have used—to be in the Bill. A further question to ask is whether it is appropriate for the issue. I cite the report:
“One principle underpinning our work is that no level of parliamentary scrutiny can in itself make appropriate a power which it is inappropriate to delegate to secondary legislation”.
Finally, I turn to the other recommendations in the report. Comments were made on the existing models of scrutiny. I am really pleased that that was addressed by the committee, because good scrutiny requires good understanding of procedures. I entirely agree with the committee that variation leads to increased and unhelpful complexity. That has grown up and it is right to address it at this stage.
On the issue of supporting documents, specifically under Section 19 of the Localism Act, I share the committee’s bemusement. I cannot imagine why the Government would not want to publish supporting evidence and information to assist your Lordships’ House in considering legislation. It seems to me to be helpful to your Lordships’ House and to the Government. I would be interested to hear the noble Lord’s explanation on whether the Government accept the moderate recommendations of the committee. The Localism Act does not include a requirement for supporting documentation; but neither does it include a requirement that Ministers should give a reason why there is no supporting documentation. My interest is not just in the specific point on that but why the Government think that it is appropriate to move away from the principle of having supporting information. I cannot recall a precedent. I am not making a party political point, because there may well be precedents under the Government of whom I was a member, but I am genuinely puzzled and an explanation would be helpful.
Perhaps I may refer to the point eloquently made by my noble friend Lady Andrews about the undertaking given by the previous Labour Government, which is referenced in the report. It was made by Jim Murphy during the Second Reading of the Legislative and Regulatory Reform Bill. He said:
“I am giving a clear undertaking today that orders will not be used to implement highly controversial reforms, that they will not be forced through in the face of opposition from the Committees of this House and that the Committees’ views on what is appropriate for delivery by order will be final”.—[Official Report, Commons, 9/2/06; col. 1058-9.]
I agree with my noble friend Lady Andrews that it is disappointing that the Government have not yet endorsed that approach, but I notice that the House is to debate on Thursday an amendment to Standing Order 72, which refers to those matters under the Localism Act 2011 and Section 5E of the Fire and Rescue Services Act 2004. That is also mentioned by the committee in its report. The committee asks that the Government be very clear about whether they intend to give those same undertakings specifically in respect of those sections of those Acts.
Having read what the Government have put before the House for Thursday 7 March, I am not sure that it fulfils the function that the committee is asking for. It is a limited improvement. Unless I am mistaken—I read it quite hurriedly—it does not go as far as the committee would have liked. It merely states that it should go to the Merits Committee or the Delegated Legislation Committee. If the noble Lord could comment on that, that would be helpful.
In conclusion, it would be helpful if the noble Lord could clarify the Government’s position. All Ministers are aware that legislation benefits from scrutiny. I admit that it is sometimes uncomfortable at the time for Ministers to be scrutinised, to lose a vote or to lose part of a Bill that a Minister considers to be important, but it is often that legislation is proved and problems are prevented further down the road. The debate we have had today illustrates yet again that these responsibilities on scrutiny and revision are taken very seriously.
Suggestions and recommendations were made in the report and by speakers in the debate. It would be helpful if the Minister, in the spirit of your Lordships’ House doing the job that it is required to do as effectively as possible, could respond to those comments. I agree with the comments made by the noble Lord, Lord Butler, about the delay in the Government’s response. I understand that it happens—it has happened under all Governments—but when we are talking about such crucial matters as, in a sense, how effective your Lordships’ House can be in scrutinising legislation and, increasingly, delegated legislation, any guidance the Minister can give on the Government’s thinking would be extremely helpful.
Accountability of Civil Servants: Constitution Committee Report
Baroness Smith of Basildon Excerpts(11 years, 3 months ago)
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Baroness Smith of Basildon
My Lords, I thank the noble Baroness, Lady Jay of Paddington, and the committee for the work that they undertook. We owe them a debt of gratitude for being able to have this debate today. The opening speech by the noble Baroness set the tone for a very thoughtful, insightful debate which has drawn on considerable expertise in your Lordships’ House. It is a very timely debate because the Government’s proposals for reform have reignited interest in the role of civil servants, the wider relationship between Ministers and civil servants and the key issues of accountability and responsibility.
I also concur with the comments made by the noble Baroness, Lady Jay, and the noble Lord, Lord Lexden, on the timing of the Government’s response. As a former Cabinet Minister, I appreciate that people in glass houses should not throw stones. However, I was somewhat taken aback to find an e-mail in my inbox at 5.53 pm yesterday evening with the Government’s response. That is rather late in the day for a debate that is taking place in your Lordships’ House today.
The committee’s report identifies why it undertook this investigation. This includes the increasing complexity of government structures and functions, the Civil Service reform plan, and of course the previous report on ministerial responsibility following the introduction of the Health and Social Care Bill. For some Ministers, and indeed for some civil servants, that tension between ministerial and civil service responsibility proves difficult, and the noble Baroness, Lady Jay, highlighted some very pertinent examples of that. I will deal with that issue for a few moments. The committee’s report on the Health and Social Care Bill dealt with the specific issue of ministerial accountability, and the issue is again explored in this report in line with civil servants’ accountability. The committee has further considered that, and it has maintained its previous position when it says in the report:
“No distinction is to be drawn between ministerial responsibility, accountability and answerability … Likewise, ministerial responsibility to Parliament is not to be qualified. No distinction is to be drawn between ultimate and non-ultimate responsibility, or between direct and indirect responsibility”.
Most importantly, the report goes on to state that,
“no distinction is to be drawn between responsibility for policy on the one hand and responsibility for operational decisions on the other”.
In effect, it seems that the committee is saying that Ministers should not be able to abdicate or delegate their responsibilities, and that this is an essential part of holding ministerial office. Clearly, Ministers have to accept responsibility for the work of their department. That does not mean that they are responsible for every action or mistake; the example of the lost disc mentioned in the report is a good one. However, it means that they are answerable on operational matters as well as policy. These matters are not just for civil servants to deal with.
On answerability and accountability, the report refers to the “Today” programme test—that is, the political reality that the media and the public will seek answers from a Minister, not from a civil servant. Some Ministers find that difficult if they feel that they are not responsible and that it is a matter for which a civil servant should be held to account. I will suggest two other tests to your Lordships’ House. There is also what might be called the common-sense test. While some may bray for the head of a Minister in whose department someone has made a mistake, surely the test should be whether it was a simple and unintended mistake by a member of staff or whether there is a more systematic problem for which there must be ministerial accountability. My sense is that the difference is generally understood by Parliament, the press and the public, although it is not unheard of for someone to seek to make political capital out of such issues.
There is another test, and the noble and learned Lord, Lord Morris of Aberavon, touched on it. It is ministerial accountability to Parliament, and where Ministers and Parliament see the boundaries of that accountability. When issues of service provision are raised, Ministers in your Lordships’ House regularly state that these are not matters for them but are operational or local decisions. However, it is central government that dictates and decides the limits, including financial parameters, within which local services have to work. Although the scope for local decision-making is limited by Ministers, this should not prevent them from answering questions about the impact of their policies.
I will give an example. In your Lordships’ House I raised with the noble Lord, Lord Henley, the issue of police station closures. He replied:
“My Lords, that is obviously a matter for the authorities”.—[Official Report, 2/11/11; col. 1229.]
That was despite the fact that his Government had set the budget within which that decision had to be made. That was not an isolated case. Recently I asked the noble Earl, Lord Howe, about an example from my home area where, because of the Government’s NHS policies, pathology services are being moved from Southend and Basildon hospitals to Bedford Hospital. The noble Earl replied:
“Decisions about the local configuration of pathology services are for local National Health Service commissioners”.—[Official Report, 24/1/13; col. WA 247.]
It is difficult to judge the parameters accepted by Ministers on responsibility to your Lordships’ House, but the wider and more serious issue is the one touched on by the noble and learned Lord, Lord Morris. It would be very helpful to have the Minister’s observations on this.
The Government have said that they are seeking to privatise the probation service. The judgment of the Constitution Committee is that Ministers cannot delegate accountability. However, if Ministers, while retaining overall responsibility for the provision of probation services, allow a private company to provide all or part of those services, will the Government consider that Ministers should answer Questions on those operational matters, or would that be delegated to a civil servant or the head of the private company? If Ministers do not answer, the ability of Parliament and of individual parliamentarians to hold the Government to account for the services for which they are responsible will be severely restricted. Other than in Select Committees, parliamentarians cannot question civil servants or private service providers, and it would be wrong for them to do so. However, where the Government have ultimate responsibility, surely Ministers should answer. Will the Minister confirm that in such cases it is entirely appropriate for Ministers to answer from the Dispatch Box on operational matters, as recommended by the Constitution Committee?
In its report, the committee also looked at the issue of distancing Ministers from the decisions of arm’s-length bodies. However, I do not think that a privatised service comes under that remit, and there are constitutional issues of accountability and of whether the public will lose their rights to freedom of information in such instances. The committee was also right to highlight the complexities of government structure and organisation. If we as parliamentarians find it complex, it must be hugely difficult for an ordinary citizen to try to navigate their way around Parliament or government. Therefore, I strongly welcome the committee’s recommendation that a map or organisational chart should be produced. This point was made by the noble Lord, Lord Hennessy. I suspect that it might be slightly more complicated than the bus route map of London.
In the brief time available, I looked at the Government’s response to the point made by the committee. I had an opportunity to look at the websites that the Government say address the issue, and I have to say that I do not think they do. The Government’s response to the report does not address the need to have an organisational map showing how departments and arm’s-length bodies work together.
On the related issue of civil servants giving evidence to Select Committees, the committee struck absolutely the right balance in defining what is appropriate and how the process should be conducted. There is a question for the Minister around the issue of defining a civil servant, and who Ministers can and cannot ask and instruct to give evidence to a Select Committee. I recently asked a Question about Her Majesty’s Chief Inspector of Borders and Immigration. When I asked the Minister how often Ministers met him, the rather bizarre reply was that Ministers have internal meetings and talk to officials from time to time on matters of policy, and thus that it was an internal matter. I then obtained an entirely reasonable answer via a freedom of information request to the chief inspector’s office. Clearly, for Her Majesty’s Chief Inspector for Borders and Immigration to give evidence would not be in any way a replacement for the accountability of Ministers, but it would be of assistance to the committee in its scrutiny of ministerial decision-making. I would be grateful if the Minister would look at that point.
After reading various documents on the Government’s Civil Service reform plan, I have to say that when the Government deal with issues in the abstract, it is very hard to disagree, although sometimes there are strong echoes of an episode of “Yes Minister”. There are issues around strengths and weaknesses, better performance management, building on our strengths, reducing our weaknesses and so on. However, as noble Lords have illustrated today, it is when we get to the detail that alarm bells ring, particularly on the issue of the appointment of Permanent Secretaries.
Unfortunately, it appears from public comments and government leaks that the report was written against a backdrop of hostility to civil servants. The noble Lords, Lord Wilson and Lord Hennessy, expressed concern at the rapid departure of Permanent Secretaries under the coalition Government. The two may well not be connected, but it causes concern not to have that continuity in office. It is logical to have the involvement of a Secretary of State in the appointment of a Permanent Secretary. However, the fear is that the Government will stray over the red line that could lead to the greater politicisation of the Civil Service. The one thing we have to guard against is any suspicion or suggestion that the “Is he one of us?” culture could be used in the appointment of senior civil servants.
My noble friend Lady Donaghy spoke extremely well about the justification of why the British Civil Service is thought of as one of the best in the world, because of its professionalism and impartiality. That is not to pretend that on every occasion every civil servant is excellent at all times. All Ministers have accounts of the best and the worst civil servants with whom they have worked. What is so important is the principle of impartiality and accountability, and the relationship between the two. Clearly, a Secretary of State needs to have confidence in their Permanent Secretary. The working relationship has to be good, and has to be reinforced by each knowing and observing the extent and the boundaries of their respective roles and positions.
The current position seems to provide that, and I am not convinced that the Government have made a strong enough argument for change. I agree with the committee’s recommendation. I appreciate that the Government seek to give reassurance in their response, but if there is to be any change in the way in which Permanent Secretaries are to be appointed, and if the role of the Secretary of State is to be increased, this has to be based on evidence of what the problem is that the Government are seeking to resolve, and there must be broad consensus around any change that is brought forward so that there can be no substance to any accusations of politicisation. I appreciate that the Government seek to give reassurance in their response but I would like to see greater clarity, perhaps from the Minister today, about the problem that the Government are seeking to resolve.
I hope that the Minister has heard the concerns that have been raised about temporary appointments to the Civil Service. There is concern also about “secondments” being used to circumvent the provision of temporary appointees where the former are perhaps more in line with ministerial thinking. I am in the process of tabling some Written Questions for the Minister, so I do not expect him to answer my questions today, but if he is able to say something about the number of secondees coming into government, where they are coming from and the reasons for it, it would be helpful.
The report from the committee is extremely valuable. I hope that the Minister has taken note of the strong view expressed in the debate today that the way in which the Civil Service operates now works very well. No one is suggesting that there is no room for reform, for modernisation or for ensuring that the Civil Service keeps up with the times, but the Government need to guard against any increasing politicisation that would undermine the existing traditions or the principles of the Civil Service.
Lord Wright of Richmond
My Lords, the noble Baroness has quoted the question, “Is he or she one of us?”, allegedly asked by the noble Baroness, Lady Thatcher. I do not know whether she actually said it—a large number of quotations are wrongly attributed to people—but, if she did, it might be worth putting on the record that, in my five years as head of the Diplomatic Service, the noble Baroness, Lady Thatcher, never once queried a single appointment to a head of mission.
Baroness Smith of Basildon
My Lords, I appreciate the noble Lord’s intervention. I was tempted not to quote anyone but that quotation, attributed rightly or wrongly to the noble Baroness, Lady Thatcher, was trying to make the point that some people think it important to have a “one of us” culture, whereas I think that most of us in your Lordships’ House today would think that that was completely wrong with regard to Civil Service appointments.