Pension Schemes Bill [HL]

Earl Howe Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 2nd March 2020 Grand Committee

[Earl Howe (Con)]

My Lords, I am grateful to all noble Lords who have spoken to this group of amendments. Perhaps I can start by addressing the questions raised by the noble Baroness, Lady Sherlock, in the context of the issues posed by the Constitution Committee. I appreciate the points she and the noble Baroness, Lady Drake, made on this. The Constitution Committee raised the skeletal nature of the provisions in this part of the Bill and sought clarification on how, and by whom, some of the powers might be exercised. Notwithstanding that, as I have pointed out previously, the committee accepts the need for some of the powers, even if in skeletal form. The noble Baroness was kind enough to concede that.

The noble Baroness picked me up on the distinction I made last week between policy and policy implementation. The policy in this area is developed: we are clear about what we want to achieve and what needs to occur for that to happen. There was a full and thorough government consultation. Following that, a government response was published and our policy aims were set out. As we have made clear throughout this process, further work on the technical development must be carried out and in due course, we will bring forward the affirmative regulations that provide much of the detail that noble Lords seek.

I would like to explain why it was necessary to bring the Bill forward at this point. The noble Baroness asked me why we think dashboards are a good thing. In our government consultation, there was overwhelming support across consumer groups, individuals and industry for our proposal to introduce a legislative framework in order to,

“deliver dashboards within a reasonable timeframe”.

Our experience over the past five years of trying to make progress on this matter—a long time, as noted by my noble friend Lord Young—is that without the clarity of our commitment brought by legislation, it would prove impossible to bring together the industry in a way to develop the service that consumers require and have said they want.

We have asked the industry delivery group, under the guidance of the Money and Pensions Service, to develop the infrastructure required to provide dashboards by working with a range of stakeholders, including pension scheme providers. This process will inform the content of the delegated powers. The alternative approach would be to table a Bill once all the technical work has been completed but, as I have just outlined, we would struggle to get industry to engage with us to enable this technical work to complete. We took the view that that course of action would be impractical and simply further increase the time that consumers need to wait for a dashboard service.

I am the first to recognise the Constitution Committee’s reservations about the use of delegated powers but, in this instance, we consider their use to be entirely appropriate and in keeping with the committee’s suggestion that they meet “an exceptional justification”. As to that justification, the reasons for the nature of the delegated powers are fully set out in the delegated powers memorandum. This recognises the need for a degree of flexibility while creating a digital service solution in order to ensure that the service provided remains up-to-date, secure and accurate. Technical requirements and user needs change and the legislative framework needs to be able to adapt at pace to meet those requirements.

The committee also referred to Clause 118 and asked the Government to explain who might be prescribed by the Secretary of State as someone who can publish standards, specifications or technical requirements for a qualifying pensions dashboard service. Pensions dashboards fit with wider government aims to give consumers access to and control over their own data, particularly across financial services. The Government’s approach is therefore to ensure that dashboards are fit for purpose over the long term, which includes recognising that ownership of the dashboard infrastructure and responsibility for the setting of standards may need to change over time, as explained in paragraph 1.364 of the delegated powers memorandum. It is not possible to set out now who might be asked to take on this responsibility in future, nor to state now the mechanisms of accountability to Parliament. That would need to be determined according to the circumstances but, as we have already set out, such changes will occur within the wider legislative framework, which offers multiple layers of consumer protection.

[Viscount Eccles (Con)]

Perhaps I should already know this, but will it be possible, in the additional technical work, for an individual to decline to have the information about his or her pension position put on to a dashboard? If past history is any guide, some people will always prefer not to join such a system. They might feel that they do not need it. Therefore, I express the hope that it will be possible to opt out.

[Earl Howe]

It will be entirely up to the consumer to decide whether they wish to have a dashboard showing all the information relating to their pension entitlements. Nobody will be forced—

[Baroness Drake]

At one level it is entirely up to the consumer, but if somebody hacks into the system or steals their identity, that is not under the control of the consumer.

[Earl Howe]

I will come on to the question of identity in a second when I address the amendment tabled by my noble friend Lord Young. Clearly, we want to do our utmost to ensure that the system is secure and that data can be accessed only by those entitled to access it.

I share the aim of noble Lords to make dashboards as useful as possible to individuals planning for their retirement. To that end, we are considering many of the aspects in these amendments as potential features of pensions dashboards in the future. Having said that, I need to come back to a point that I made earlier. The development of a pensions dashboard service that gives consumers a single point of access to their pensions information is a complex undertaking.

I remind the Committee that there are over 40,000 schemes, around 25 million people with private pensions wealth and a huge amount of state pension information. My noble friend Lady Altmann was absolutely right to stress that. It is why we have asked the industry delivery group to work with representatives from the pensions industry and consumer groups to ensure that the service is accurate, secure and consumer focused. Once again, I underline the word “secure”. I have to sound a cautionary note to noble Lords who want to broaden out the service in short order. Again, my noble friend Lady Altmann is quite right: adding any further complexity at this stage, however well intentioned, risks delaying the delivery of pension dashboard services to individuals.

I am sure we can agree that it is important that the design of this service is consumer focused. It must consider potential risks to the consumer and provide benefits to individuals planning for their retirement. The industry delivery group will undertake further user research and testing to ensure that that is the case. Any additional functionality should be made available only if three conditions are met: a clear consumer need should have been identified; safeguards and protections must be in place; and any functionality must be controlled and tested.

With those thoughts and aims in mind, I turn, first, to the amendments tabled by my noble friend Lord Young. In Amendment 45, he raises the important point of identity verification. This is crucial in giving consumers and pension providers confidence in the security of their data. In order to ensure a consistent consumer experience, the dashboard infrastructure should have one digital identity standard agreed across the industry. The level of identity verification used must be consistent with the internationally recognised standard published by government—the good practice guidance on identity proofing and verification. The good practice guidance is designed to be as inclusive as possible, so that as many people as possible are able to securely access the online services.

The creation of a digitally secure identity is complex. Last year, the Government introduced the digital identity unit, which is now leading work to develop a digital identity solution that can be used across the public and private sectors. The industry delivery group will work with the digital identity unit to enable the delivery of a secure, effective and inclusive identity service for users of the pensions dashboard. I understood what my noble friend said about Verify, and I assure him that the industry delivery group has this issue squarely on its radar. It is being informed by industry experts and consumer groups, and it will carefully consider available options and make recommendations on the best identity solution for pensions dashboards. The solution may not be Verify.

ID verification will have to meet the standards for all parties, including state pension, and that requires a high level above that for an individual scheme. Whatever happens, I can assure my noble friend that dashboards will be free at the point of use for consumers; that includes identity verification. Digital identity remains a priority for government and we are considering ways in which to continue this work with departments across government. We hope to make announcements on that in due course.

On Amendment 38, the Government fully support beneficiaries with entitlements having access to their pension information via dashboards. I can tell my noble friend Lord Young that this clause, as already drafted, enables this to happen. The delivery of this facility will be considered by the industry delivery group. However, his amendment does not distinguish between beneficiaries with entitlements and potential beneficiaries, without current entitlements to the scheme. Creating provision for a person with a potential entitlement introduces considerable legal and technical challenges about data protection and confidentiality in relation to the principal scheme member. The members themselves should have control of the access to such information, and this should happen only with consent. We should be wary of undermining confidence that an individual’s own pensions data will be kept safe, confidential and secure.

On Amendments 43 and 44, the Government recognise that some people will have a range of assets, including their homes, which could be used to form part of an individual’s retirement income. I understand all that my noble friend said in favour of adding to the dashboard in this way. However, I question whether such amendments are either wise or necessary. Many income projection tools are available through independent financial advisers to support individuals with this. The amendments open up the possibility of financial advisers being able to add information and make calculations directly on to a dashboard. This would significantly extend the scope of pensions dashboards, adding more complexity and risk to delivery.

That cautionary note is quite a good segue into Amendment 39 in the name of the noble Baroness, Lady Sherlock, on financial transactions. The document Pensions Dashboards: Government Response to the Consultation sets out that qualifying pensions dashboard services will not initially have the capability to facilitate transactions. They will start with a “find and view” function, allowing only individuals to see their information. Further functionality will be carefully considered, taking into account the potential risks to consumers alongside the potential benefits.

It may reassure the noble Baroness, Lady Drake, that although the Government have been clear that we want to enable consumer-focused innovation in the long term, this does not necessarily lead to transactions on dashboards. I also respectfully remind her of the mantra that we have uttered many times: that the consumers’ interests must come first. We set out in our consultation document three overarching design principles, which underpin the pensions dashboard ecosystem. These are: first, to put the consumer at the heart of the process by giving people access to clear information online; secondly, to ensure that consumers’ data are secure, accurate and simple to understand; and, thirdly, to ensure that the consumer is always in control over who has access to their data.

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[Baroness Sherlock]

My Lords, I want to ask a couple of questions so that the Minister does not need to come back to us twice.

My noble friend Lady Drake powerfully picked up the points on transactions that I wanted to make. I heard the Minister say that the Government’s intention is to proceed to transactions at some point—I would be grateful if he could correct that if I misunderstood—but I did not hear him say why they feel that this is a good idea. I heard him say carefully that they would want assurances to protect consumers, but I did not hear anything about the positive driver for doing so that outweighs the risks that manifestly come with it, which my noble friend just articulated.

I apologise; I have two more questions. I should say that I am hugely grateful for the Minister’s thorough response; I appreciate him taking the time to give us that. It may be that, in all that, I missed the answers to a couple of my questions; I apologise if he gave them and I did not pick them up.

First, am I right in understanding that the dashboard will not cover legacy private pensions and new private pensions not covered by auto-enrolment? If so, do the regulations, as they stand, allow those to be included subsequently, and do the Government have any views on whether they were going to do so?

The Minister touched on my second question but did not answer it. On Wednesday, he said that

“we entirely understand the importance of having a dashboard run by a public body without any commercial interest.”—[Official Report, 26/2/20; col. GC 182.]

Why do the Government think that that is a good idea? Why are they not worried that there could be a long period when there are only commercial dashboards and no public dashboard?

[Earl Howe]

My Lords, on the final point made by the noble Baroness, it is fair to say that our debate last Wednesday gave my colleagues and me considerable food for thought as to the scheduling of all this. The strong wish expressed by noble Lords to prioritise a publicly funded and owned dashboard was duly noted. I hope to provide her with further thought on this as we go forward. I will come back to her in writing on her specific question on the inclusion of auto-enrolment schemes and so on.

The noble Baroness, Lady Drake, asked whether the consumer groups expressed a particular preference for the MaPS dashboard coming before any others. I bow to her on that. I will have to check whether that is a fair reading; I do not doubt that it is if she says so. I do not have the specific information to hand. The majority of respondents suggested and supported multiple dashboards, not just one. I can only repeat that the rollout of dashboards will be considered as part of a carefully controlled implementation plan.

I do not believe that I expressed a categorical government intention to include transactions on the dashboard. I said that we would make that incremental step only after the most careful consideration and public consultation, and assessment of all the risks. I freely acknowledge that risks exist in that quarter. If we venture into that sphere relating to dashboards, we must be absolutely certain that the risk of abuse, scams, misleading nudges and so forth is as minimal as it can be. Each incremental step will require further parliamentary scrutiny. The noble Baroness, Lady Drake, believes that this should be through primary legislation. I have to differ with her on that. We have made provision for secondary legislation by affirmative procedure, which provides a good measure of parliamentary scrutiny, preceded by public consultation which will inform parliamentary scrutiny. She and I have to part company in this area.

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[Lord Vaux of Harrowden (CB)]

My Lords, the noble Baroness, Lady Sherlock, talked about the business model of these dashboards. The noble Earl has just talked about multiple commercial dashboards. There must be a reason why people will wish to create these things, and therefore there must be a business model behind them. What is the Government’s vision for that?

[Earl Howe]

The Government’s vision is for consumers to have access to their own information if they wish, and a multiplicity of ways to achieve that. We believe that more is better in this context. That is not to make comparisons between one provider and another, but multiple dashboards will give consumers more choice in where they access their pensions information, and will drive innovation to meet what are bound to be the varied needs of those 25 million people with private pension wealth who are not yet in receipt of their pension.

[Lord Vaux of Harrowden]

My apologies: my question was not clear. I was asking specifically about the business model behind this. What is the incentive for commercial providers to create these things? Is it advertising? We have talked about transactions, et cetera. If we are going to have this multiplicity of them, there must be a multiplicity of reasons. Do the Government have a view on the best model and controls around that, whether it might be advertising, transactions or charges to funds?

[Earl Howe]

Scheme providers have been absolutely clear that they are keen for this to happen, mainly because the more exposure that the information has to the particular consumer, the more opportunities there may be for a dialogue between the consumer and the scheme provider—“Are you saving enough? Can we do more for you?”, that sort of thing. They see marketing opportunities in this, but that is very distinct from allowing the dashboard to enable them to enter into transactions. I hope that I have already covered that point satisfactorily.

[Lord Flight]

My Lords, is there not the point that, with people having on average 11 different jobs during their career and potentially 11 different pension pots, particularly those they were part of when they were younger, many of them have no information at all about it. They do not even know who the manager or the provider is. Already, the amount of unclaimed financial assets in this country is colossal. Without what is happening under this legislation, the problem will get worse, and we urgently need to sort out the ownership of lesser pension schemes, going back a long time.

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[Baroness Sherlock]

My Lords, the six amendments in this group in my name and that of my noble friend Lord McKenzie of Luton are probing amendments designed to get Ministers to reassure the Committee that there is a robust system of regulation and supervision for those involved in the dashboards. Rather than go through them one at a time, as there are overlapping amendments from other noble Lords, it might be easier if I simply ask the Minister to clarify some of the key aspects of the supervision and regulatory regimes which the Government have in mind.

I was delighted last week when the Minister indicated that the Government have acceded to the request from my noble friend Lady Drake and many others around the Committee:

“we shall be introducing a new regulated activity under the Financial Services and Markets Act 2000 to reflect the provision of dashboard services.”

Hurrah, say I. That is marvellous. The Minister continued with only very slightly less certainty:

“Clause 118 provides the power to set out detailed requirements ‘for qualifying pensions dashboards’. It is also likely that this will be linked to the new regulated activity outlined by the Financial Conduct Authority.”—[Official Report, 26/02/20; col. GC 183.]


I think we are being told that this means providing a dashboard service will be added to the regulated activity order. I am assuming that is what that means.

Those requirements in Clause 118 may include

“what … information is to be provided”

and

“how the ... dashboard service is to be … operated.”

They may also,

“require a dashboard service to comply with standards, specifications or technical requirements published … by ... the Secretary of State ... The Money and Pensions Service”

or another specified person. Crucially they may,

“require the provider of the pensions dashboard service to be a person approved … by … the Secretary of State … the Money and Pensions Service”

or another specified person. The last of those is crucial.

If running a dashboard service is to be an FCA-regulated activity, should that not mean that those running it have to be approved by the FCA—in which case, ought that not to be made clear? It could be another body, but the bodies named do not include the FCA. If the activity is on the ROA, does that mean that the FCA will then be able to use its full range of FiSMA powers of supervision and regulation on anyone providing dashboard services? Can the Minister further confirm that that would mean that complaints about anything to do with the dashboard could be made to the Financial Ombudsman Service?

This is the train I am trying to establish. It is great that the activities are regulated by the FCA. Will the people running it have to be FCA approved and therefore subject to the full range of FiSMA powers? It seems that that is where the real firepower is located. Alternatively, are the Government envisaging that a dashboard service might be run by an organisation that was not FCA approved, supervised or regulated? Would there be a real risk of consumer detriment if the FCA cannot use its full range of powers on anyone using a commercial dashboard?

Provision of information to a dashboard also needs to be subject to a scheme of regulation and compliance. Information will come from various sources. Will the provision of information from trust-based schemes to a dashboard be regulated by the TPR? What about the information provided from contract schemes? Will that come from via the FCA? Will it be directly under FCA supervision or by the fact that they regulate the firms providing the information? Who will oversee the provision of information from the state and make sure it is accurate? Where does the consumer go to complain about their data? At the moment, if a bank misuses your data, the ICO will deal with the bank, but the consumer will go to the Financial Ombudsman Service to deal with detriment. What will happen here?

My biggest concern is what will be done with data provided on dashboards and the potential for mis-selling. Amendment 68 would require that those providing dashboard services would have to act in the fiduciary interest of savers. My noble friend Lord Hutton just made a compelling case for that. Our argument is that this is a special situation where the state has mandated that consumers’ data should all be gathered together in one place. That is helpful, but it is a little like saying, “Rather than having them wandering freely across the hillside, all the lambs have been gathered into one pen”. In that case, you want to be pretty sure that there is a good lock on the gate and that anyone coming along pretending to be a shepherd can be spotted early and—“Stop. Enough of this analogy. Ed.” I think the point is made.

Because of this higher challenge, there should be a higher duty of care to the consumer. If an organisation running a dashboard service is regulated by the FCA, it will be subject to the “treating customers fairly” FCA standard, but this goes higher. It becomes even more important if it is possible that any of those people will not be subject to the full range of FCA supervision and regulation powers. There should be a duty of care to the consumer. We can see the benefit of gathering information/lambs in one place, but it of course makes the information/lambs much easier to access. Can the Minister give us some reassurance on those points?

[Earl Howe]

My Lords, the amendments in this group are designed to ensure that consumers are placed at the heart of dashboards and that the Financial Conduct Authority is given responsibility for certain aspects of that. I say straightaway that I wholeheartedly agree with this aim. What I cannot agree with is the way of achieving it proposed in the amendments.

The Government are persuaded that a strong regulatory regime is key to maintaining public confidence in dashboards. There are existing powers which we will use to introduce a new regulated activity for dashboard providers. We can do this by amending the regulated activities order set out in Section 22 of the Financial Services and Markets Act 2000. This will bring the provision of a qualifying dashboard service within the regulatory and supervisory the remit of the FCA. There is no need for the new dashboard-specific regulated activity to be in the Bill.

We are working with Her Majesty’s Treasury and the FCA to agree the nature and scope of the changes. Legislation amending the order will be brought forward in due course. I can also confirm that the Financial Services and Markets Act covers Northern Ireland, meaning that any new regulated activity would also extend to Northern Ireland. It is important to note that the new regulated activity will apply only to dashboard providers. Pension scheme trustees and operators are already within the regulatory remit of either the Pensions Regulator or the FCA. The requirement on pension schemes relating to the provision of information via dashboards will be set out in regulations and FCA rules pursuant to this Bill.

The noble Baroness, Lady Sherlock, asked whether the FCA will be able to use its full range of powers; yes, it will. All the FCA’s existing powers will be available where a dashboard provider must be FCA-authorised. To answer the noble Lord, Lord Hutton, the Financial Conduct Authority has an existing framework to ensure that authorised firms take the interests of customers into account. The Government will again set out in regulations the conditions that a dashboard will have to meet. This will be supported by new, dashboard-specific regulated activity, as I have just explained.

Strong consumer representation on the industry delivery group, alongside new regulations and a new, dashboard-specific regulated activity, will ensure that the design is in the interests of consumers and that they are protected. The regulatory framework for the new regulated activity will be proposed in the FCA’s consultation on the corresponding handbook rules and guidance.

[Lord Hutton of Furness]

I hear what the Minister is saying and am very grateful for the thoroughness with which he is responding to these issues, but will pension scheme members have any direct legal redress against a dashboard services operator should things go wrong? As I am hearing him, most of the remedies seem to lie in the hands of regulators or others, but if my data is misused or I feel that some problem has occurred as the result of the inappropriate organisation of a pensions dashboard service, where do I stand?

[Earl Howe]

Consumers will have various modes of redress available to them if they are not served legally or properly by their scheme provider or the dashboard provider. Our response to the consultation on dashboards highlighted the need for a clear liability model for the whole dashboard system. The objective is to enable users to identify easily where to raise a complaint or a dispute if a dashboard fails to work, or if they fail to receive their pension information. We have asked the Money and Pensions Service, through the industry delivery group, to consider how this might operate and to make recommendations. The Pensions Regulator and the FCA will regulate compliance by pension schemes and the Information Commissioner will have a role in ensuring that the disclosure of pension information takes place in accordance with data protection legislation. Only FCA-approved bodies can provide a qualifying dashboard. Only qualifying dashboards can connect to the infrastructure, and they will fall under the full regulatory regime.

New Section 238G, introduced by Clause 119, ensures that the regulator will be able to monitor and enforce compliance with the new requirements, in keeping with the existing regulatory regime. The FCA also has the power to enforce rules that it will make under this legislation. Part 14 of the Financial Services and Markets Act 2000 allows the FCA to enforce any requirement on authorised persons, including those setting up or operating a personal stakeholder pension.

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[Baroness Altmann]

I thank my noble friend for his very thorough response to this group of amendments. Is it not possible that without a comprehensive, overarching regulatory framework for all dashboard activities, consumers could fall between different cracks, and the provider of the dashboard that has provided them with misleading or incorrect information could then say, “Well, it was the person who gave us the data who was misleading: it wasn’t us. We are just providing information.”? Or could this activity in some way be related to unregulated lead generation, which is part of the pensions landscape and has been so damaging to consumers? Therefore, what I hoped we might achieve with my amendment was an overarching regulated activity for anybody participating in or providing data to the dashboard and for the dashboard provider providing the data to a customer.

[Earl Howe]

We come back to the question of a liability model. I might as well deal with that now. We set out in the consultation response that we expect the industry delivery group to make recommendations on a robust liability model that ensures that there are clear roles and responsibilities and a clear process for dealing with complaints. The point made by my noble friend that there is a risk that something might fall through the cracks is a very good one. The best that I can do at the moment is to say that, as the service is developed, the detail of where liability exists will emerge. She will agree with me that we are not dealing with new data or with new financial transactions, but yes, potential service risks might emerge. The IDG will, as I have said, recommend robust liability models, and the framework of any new liability arrangements will be set out in regulations. That is one of the reasons why we need delegated powers in this area.

I think that the industry delivery group is the best forum to build a liability model to which all parties are signed up and that takes into account good practice and lessons learned from open banking. While I realise that there are many differences, there are certainly lessons that we can draw from that sphere.

[Lord Flight]

My Lords, is not the big issue in this territory that when people have discovered that they have four, five, six or seven different pension funds, they will want advice as to what to do with them? There is the whole problem of who can give advice, guidance or help in that area, but unless arrangements are determined about how to deal with this question, I can see all sorts of regulatory issues arising.

[Earl Howe]

My noble friend is quite right. The industry delivery group has these matters squarely on its agenda. I can go no further than to say what I have said thus far on his points, but I will consider the matter further and write to him if necessary.

[Baroness Drake]

The liability model has not been settled. That is perfectly understandable; I do not rush to criticise it because there is a lot to do. All I would say, because I cannot resist doing so, is that it goes to the argument that one should start with a public dashboard. My question follows on from that asked by my noble friend Lord Hutton. On reading Clause 118, clearly powers are given to certain parties to set requirements—with the exclusion of the Secretary of State, who is in a totally different position. Can the Minister confirm that no such powers under Clause 118 can override the FCA’s existing powers? He may not be able to answer that yet but it would give clarity.

[Earl Howe]

I believe that to be so but I need to take advice; I will write to the noble Baroness on that point.

[Baroness Sherlock]

On a related point, I tried hard to listen to what the Minister said because I am particularly interested in whether somebody can run a dashboard service if they are not FCA-authorised. I heard him say that the full range of FiSMA powers could be used, so a dashboard must be FCA-authorised, but I think I heard him say also that only FCA-approved bodies can run dashboard services. Is that right?

[Earl Howe]

Yes.

[Baroness Sherlock]

Excellent. In that case, I am trying to relate that to New Section 238A(5)(c), to be introduced by Clause 118(2), on page 105 of the Bill. It states that requirements prescribed under subsection (2) may, in particular,

“require the provider of the pensions dashboard service to be a person approved from time to time by—

(i) the Secretary of State,

(ii) the Money and Pensions Service, or

(iii) a person specified or of a description specified in the regulations”.

If, as the Minister just said, the FCA must authorise someone to run a dashboard, does it not make more sense for a government amendment to come forward to make that clear in the regulations, rather than naming two bodies—neither of which is the FCA—and having a catch-all for the third?

While I am on my feet—hey, why waste an opportunity?—and the Minister reflects a little more on that point, I want to ask about the duty of care and the fiduciary duty. I take the Minister’s point about the wording there, but are the Government resistant to the underlying point made by my noble friend Lord Hutton and me: that, in these particular circumstances, there should be a higher duty of care to the consumer on the part of the organisation running the dashboard services than would be the case in the general mêlée of the FCA? Treating customers fairly and related things may suit that generic environment but this is a very particular circumstance; the Government have initiated this and put all this information in one place and mandated its release. If it were more felicitously worded, would the Government resist the notion of a higher duty of care in this circumstance than the one that prevails generally in FCA supervision?

[Earl Howe]

I will certainly go away and consider that point, even if “fiduciary” is not the appropriate word, and look in conjunction with my officials at whether there is a mechanism that would achieve that aim without inventing some new legal status. I am grateful to the noble Baroness and the noble Lord, Lord Hutton, for their points.

The question posed by the noble Baroness, Lady Drake, boils down to this: if MaPS or another specified person sets the data standards, how will they be accountable to Parliament? As I said, the regulations enable parliamentary scrutiny and debate on any specific future proposal as they come forward.

We need to ensure that dashboards are fit for purpose over the longer term. That cannot happen in a summary way. Delegating the ability to set and update standards and technical specifications support through secondary legislation will, in our view, ensure that dashboards remain beneficial and relevant to consumers.

Our approach recognises that ownership of the dashboard infrastructure and the responsibilities for the setting of standards may need to change over time, but I reiterate that, taking into account the good practice that exists, the industry delivery group will develop and make recommendations on a robust liability model to ensure that there are clear roles and responsibilities in the event of a breach. That includes a clear consumer redress mechanism. In answer to the noble Baroness, Lady Sherlock, the policy intent is that the FCA should authorise dashboard providers and that this should be achieved by order.

The FCA takes seriously the need to consult the public. It has a general duty to consult the public by publishing draft rules. This duty will apply equally in this case. The FCA will also consult the Secretary of State and Her Majesty’s Treasury prior to public consultation on draft rules. That will ensure that the rules have regard to the regulations that place obligations on trust-based schemes, which will provide a consistent and coherent approach.

We have covered quite a lot of ground, but I hope that I have effectively explained the role of the FCA in protecting consumers and provided the assurance that noble Lords are seeking that we will bring dashboard services within the FCA’s scope. If I have not covered all the ground, I hope that I can rely on meetings with noble Lords following Committee so that, by Report stage, I am able to come up with any further and better particulars that they seek. With that, I hope that for the time being the noble Baroness will feel comfortable in withdrawing the amendment.

[Baroness Altmann]

I thank my noble friend for his detailed response and the broadness of his willingness to consider the points that we have made on this important issue. I am delighted that he agrees that we all seem to have the same aim, which is to protect the consumer. However, I would be grateful if he went back to the department and perhaps wrote to me and other interested noble Lords about this. We all aim to have consumer protection but, if that is to be put in via a series of regulations with a liability model that we do not yet quite have, would there be any specific harm in putting in the Bill the regulatory framework and the requirement for FCA authorisation and protection for consumers, so that there is a comprehensive, overarching framework?

My concern is that, although this is portrayed as an information dashboard, we know that the provision of guidance and information has no consumer protection whatever—it is a matter of caveat emptor. If, for example, those dashboards carry advertisements that may be perceived as enticing people to buy products but they do not fall under such a regulation in FCA terms, we might be well advised at this stage to place an overriding emphasis from the consumer perspective on regulatory protection and authorisation for the entire framework, rather than relying on liability being proven later and redress being provided to the customer after a problem has occurred. For the moment, however, I beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, I fully appreciate that the noble Baroness is trying to ensure that consumers are properly protected and have confidence in the dashboard infrastructure. Indeed, an aspect of this is the need for robust supervision, and I share her belief that it is important to make clear who will be responsible for oversight of the different aspects of the infrastructure. I do not think that much divides the noble Baroness and me on the objective to be achieved.

I recognise the need for a strong supervisory and regulatory regime for dashboard providers. I also agree with the thoughts expressed by many noble Lords at Second Reading about a new regulated activity being key to maintaining public confidence in dashboards. As I explained earlier, we intend to do this by amending the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.This will bring the provision of a qualifying dashboard service within the regulatory remit of the Financial Conduct Authority. Unauthorised firms will neither be able to connect to the supporting infrastructure nor be able to provide a dashboard service.

Once the amendment to the order has been made, the regulatory framework for the activity will be proposed in the FCA’s public consultation on the corresponding handbook rules and guidance. This will allow the public and the industry a chance to comment. The FCA must have regard to any representations made to it during the consultation period. This framework can be used to set out any expectations regarding the behaviour of dashboard providers and, in this way, will supplement any conditions imposed on dashboard providers set out in regulations. I would argue that this is where we dot the “i”s and cross the “t”s, as the noble Baroness put it.

I note that the amendment also refers to revenue generated by both dashboard providers and third parties. It might not be necessary for me to do so but I want to reassure the Committee that all qualifying dashboard services, like the dashboard provided by the Money and Pension Service, will not be allowed to charge simply for consumers to see their own information. The provision of financial services and products by firms that are dashboard providers will remain subject to FCA regulation. Fundamentally, our aim in allowing multiple dashboards is only to give customers more options in accessing their information, not different information.

The mention of information should remind us that pension information is the lifeblood of a sustainable dashboard. Dashboards will work within the existing framework established by the general data protection regulation and the Data Protection Act 2018. Dashboard providers will be subject to penalties under these laws should they fail to meet required standards of consumer and data protection. One of the key principles in the design of the dashboard is that the individual will always be in control over who has access to their data. Qualifying dashboard service providers will not be able to see information about the individual’s pension rights.

The responsibility for the provision of accurate data falls on pension schemes. The Pensions Regulator will be responsible for ensuring occupational pension schemes’ compliance with requirements. The FCA will regulate personal and stakeholder pension schemes. Enforcement options, including fines, will be among the tools available to the regulators if requirements are not met.

The role of these regulators will be complemented by the Money and Pensions Service, which will establish and maintain the dashboard infrastructure. While it will not act as a regulator, it will work with the regulators to enable their compliance activity. It is also obliged, as part of its consumer protection function under the Financial Guidance and Claims Act, to report to the FCA where regulated persons are behaving in a manner detrimental to customers.

That leads me to the issue of redress. If an individual wishes to seek redress, any queries around possible incorrect information should be directed to the scheme in the first instance. Schemes are already required to have dispute resolution processes. To come back to a question asked earlier by the noble Baroness, Lady Sherlock, if people are not satisfied with the outcome of the internal dispute resolution procedure, they can take their case to the relevant ombudsman.

The amendment covers the need for regulations around assumptions, projections and comparison of costs and charges. I reiterate that we expect that the initial information provided on dashboards will be simple in the first phase. Adding further information, such as projected pension income and costs and charges, requires consideration on the delivery and consumer protection aspects of these proposals, as we have discussed. I am not ruling out the possibility of including such information, but the industry delivery group should be allowed to consider the implications fully and make its recommendations. To commit to regulations around possible assumptions and comparisons before then would be premature.

Of course, as the noble Baroness will be aware, individuals can already access information on costs and charges. The DWP has consulted on simpler annual benefits statements; the noble Baroness may like to know that it will publish a response on that subject in the spring. The consultation looks at the presentation of costs and charges and how projections are calculated. It acknowledged the crucial need for simpler statements to be consistent with the work on dashboards. We will consider how insights from the consultation can be incorporated into dashboards.

The noble Baronesses, Lady Drake and Lady Sherlock, emphasised the need for adequate consumer representation. The Money and Pensions Service has brought together an industry delivery group whose job it is to ensure that the design of pensions dashboards is informed by industry experts and consumer groups. Membership of its steering group was announced in September last year. It includes a strong representation of consumer groups, including representation from Which? and an independent representative with significant experience in consumer protection. There will also be opportunities for other consumer representatives to take part in working groups, which will help to ensure that the final design is on what information and features consumers value.

The noble Lord, Lord Sharkey, asked specifically about the need to include advertising on a dashboard. I can do no other than refer back to my earlier points. Rules on advertising are as those around any other incremental addition to the dashboard, and rules on the parameters around the use of data will be looked at very carefully. They will be developed by the Government in conjunction with the FCA, which will work with industry and consumer representatives on the delivery group to make sure that if we go down that path, it is with our eyes open and with the risks minimised. We will of course consult on any rules surrounding that issue.

I hope that I have given sufficient reassurance around consumer protection to show that the dashboard infrastructure will build on existing regulatory frameworks. That, with the need to keep dashboards simple, means that while I understand the rationale of the amendment, I consider it unnecessary. I hope that, on reflection, the noble Baroness will feel that she is comfortable in withdrawing her amendment.

[Baroness Bowles of Berkhamsted]

My Lords, I thank the Minister for his response. As I said, this is a probing amendment but also an attempt to indicate a framework that could be constructive, perhaps in particular around some of those issues on which all noble Lords have spoken. It covers things such as advertising; it may be that the regulation that one would want around advertising is that there cannot be any of it, but that would still be a regulation to prohibit. I feel that there is a need for an explanation of this vision, somehow all in one place. Yes, a lot of it could be extracted from today’s debate and the reassurances that have been given. However, it would be much better at the very least if it was all put together, perhaps in an Explanatory Memorandum. I still tend to think that there should be something in the Bill, even if more dilute than what I have proposed.

I very much thank the noble Baroness, Lady Drake. This inequality of arms is extremely important. When it comes to FCA consultations, how many members of the public respond? I am not sure whether I am a member of the public, but I have done it from time to time, and I can tell your Lordships that, even for somebody like myself who is well used to this kind of thing, the way it is composed and constructive can be jolly difficult to get your head around. It can be difficult to get yourself organised to put it in, unless you happen to be an industry specialist who does these kinds of things all the time. I therefore very much doubt that you get members of the public responding; you may get some of the consumer organisations, but again, I doubt that they have the familiarity that is necessary always to be able to nail the point.

As was also suggested, there is a tendency with consultations to weigh the responses: X% says this, and Y% says that, and the ones who struggle and have difficulty, which is always on the consumer side, are outweighed. An awful lot of people with a financial interest from the industry side will respond. There needs to be a better mechanism for communicating with, if you like, the public and their representatives. One thing that could be done is for the FCA to obligingly inform Parliament when it is coming out with its consultations. I do not camp on the FCA’s website, looking for its consultations, and if I do not, I do not know how many members of the public will. This is a work in progress. I have to come back again on the costs.

--- Later in debate ---

[Baroness Sherlock]

My Lords, I do not want to say very much, but I have a couple of questions on the back of what the noble Baroness, Lady Altmann, has said.

Can the Minister tell the Committee a little about what the regulators and the Government are doing to ensure that companies are ready to clean up data ready for transferring to the dashboard? Is there any intention for providers to check that members recognise the accuracy of the data at any point? Regarding what the noble Baroness described, if data had been wrong for decades, perhaps the member would not have known the details, but they might have known if they were not in a scheme, were in a different one, or if the basics were different.

The Cheviot Trust said that it was concerned that deferred members’ data would be less accurate. Is this on the DWP’s horizon? If so, what is being done about it?

[Earl Howe]

My Lords, I completely appreciate my noble friend’s desire to ensure that the information on the dashboard is accurate and secure. I absolutely agree that accurate information is essential to the effectiveness of a pensions dashboard. The answer ultimately must lie with appropriate regulations and sanctions. The Government believe that these protections are in existing regulations, and that the relevant regulators have the powers to intervene if compliance is not maintained. Having said that, I shall explain in a minute what work is going on in relation to this set of proposals.

In relation to personal and stakeholder pensions, rule 9.1.1 in the FCA’s senior management arrangements systems and controls sourcebook requires pension providers to

“arrange for orderly records to be kept of its business and internal organisation, including all services and transactions undertaken by it, which must be sufficient to enable the FCA … to monitor the firm’s compliance”.

If a scheme fails to meet these requirements, the FCA will select the most appropriate regulatory tool in the circumstances. Responses are proportionate and could include supervisory intervention.

Where enforcement action is deemed appropriate, the FCA aims to ensure that the sanction is sufficient to deter the firm or individual from reoffending and deter others from offending. Where it takes disciplinary action against a firm or an individual, it will consider all its available sanctions, redress and restitution powers, including public censure, financial penalty, prohibition, suspension or restriction orders; it has quite an armoury.

Regarding occupational pension schemes, trustees and managers are also required under existing legislation to put processes in place to ensure that the data they hold is accurate. Section 249A of the Pensions Act 2004 and the internal controls regulations 2005 require occupational pension scheme trustees to establish and operate internal controls that are adequate to ensure that the scheme is administered and managed in accordance with scheme rules and the law.

If a pension scheme fails to administer the scheme to a sufficient standard, or to comply with any other aspect of pensions legislation, the Pensions Regulator is able to issue an improvement notice. Where trustees fail to comply with an improvement notice, the regulator can issue a fine of up to £5,000 in the case of an individual or £50,000 in other cases.

My noble friend and the noble Baroness, Lady Sherlock, stressed the importance of promoting data quality on dashboards to scheme providers. Pension trustees and providers have been aware of our intention to introduce dashboards for some time now. We have been clear that they should start preparing their data now. The Pensions Regulator has increased its scrutiny of scheme records in recent years, and launched a specific targeted initiative in October 2019. It will take time to resolve data issues, which have in some cases been ongoing for decades, but the regulator is seeing good results from its engagement. There is still work to do, as my noble friend will be the first to agree.

An in-depth understanding of the challenges that pension schemes and providers will face in complying with compulsion is essential. The industry delivery group has therefore commissioned specialist independent and qualitative research. This will be conducted on a completely anonymous basis and will explore the challenges of meeting the requirements on data through deep-dive interviews with sample pension providers and schemes. This builds on the Pension Regulator’s insight. It will inform the delivery group’s recommendations for data requirements, taking into account the needs of different scheme types. It may be helpful to my noble friend if I note that, as part of the delivery group’s activity, a priority is to consider these specific items of people’s pensions data, which pension providers and schemes should supply for dashboard displays.

Experiences from other countries with dashboards indicate the importance of agreeing data standards with all industry stakeholders and the benefits of using the widest possible consumer research. The industry delivery group, working with its steering group, is developing a data-scope paper, which will highlight its latest thinking on dashboards’ data across the whole pensions industry. The IDG plans to publish this paper in due course, asking industry for feedback and, in particular, its provision of additional evidence where it exists.

The first iteration of the industry working group on data will effectively involve the whole industry before a small, focused working group will then refine this data thinking as we move on through the spring. I therefore hope that my noble friend can be reassured that the process that we have in mind has several stages to it, that they are logical stages, and that they should tease out the issues that she has very rightly drawn attention to in her remarks.

I hope that I have illustrated that the current obligations placed on schemes by the FCA and TPR, together with the enforcement powers which both regulators have, combined with the work that I have just described, are sufficient to ensure that the schemes will provide accurate data to the dashboard. I hope, therefore, that my noble friend will feel able to withdraw her amendment at this stage.

--- Later in debate ---

[Baroness Altmann]

I echo the words of the noble Baroness, Lady Drake. A number of elements of the expense shown in the impact assessment are elements that one would have hoped that the industry would take upon itself in any case. I sometimes need to remind providers that automatic enrolment has been an absolute gift to them. It has brought them 10 million new customers on a plate, with all the associated tax relief money. Surely they need to take an obligation upon themselves to modernise their processes and bring their IT into the 21st century. The standard answer is: “It’ll cost too much”, or, “We’ve got our own system, we don’t want to change to a new one”, but in Australia, the Government mandated a particular system that everybody had to adopt so that there was a common standard. It worked very well. My noble friend suggested that the industry delivery group is working on such a potential procedure, which would be excellent. It would incur costs but it would set the industry up for much more business in future on a long-term, sustainable basis.

[Earl Howe]

I am grateful to my noble friend for raising this important issue.

The Government published impact assessments for each measure in the Bill at its introduction. As is usual practice, we will publish updated impact assessments when the Bill is enacted, setting out the impacts of any material amendments to the Bill. I assure my noble friend that for measures where regulations that are subject to consultation are required, we will publish impact assessments when those regulations are brought forward. This must be the most beneficial time to revisit the impacts, when further policy detail is set out and we are able to apply that element of further insight to our estimates of costs and benefits. I suggest that adding another impact assessment between Royal Assent and the laying of the regulations would not provide any further transparency.

Turning to dashboards specifically, the Government are well aware of the additional costs necessary to support the set-up and maintenance of pensions dashboards. As my noble friend knows, when we published an impact assessment that accompanied the Bill, we set out initial estimates of the possible costs. However, we should recognise that many schemes already provide similar levels of information directly to their consumer through annual benefit statements or digital platforms, so not all schemes will necessarily incur significant additional costs.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, this amendment goes to the heart of protecting people’s pensions. We have touched upon a number of issues surrounding the same sort of concepts during debate on the Bill and in other legislation, such as financial guidance provisions. We should see whether we cannot get together a comprehensive note of how these things are covered. I am bound to say I am unclear as to what is and is not covered in all circumstances, so it seems that would be beneficial.

Concerning the specifics of the amendment, we clearly give it broad support. It raises practical issues, as I am sure the noble Lord, Lord Sharkey, would identify, particularly on responding to approved questions. I am not sure who is on hand when the questions are being asked. We have seen what happened with taxi licences and such things in the past. The provision could give rise to challenges but the thrust is right: it is another attempt to make sure that people are aware of the consequences of what they do, to the fullest extent possible. As I say, I am not sure whether we have a comprehensive arrangement yet across all pensions and circumstances. It seems that it would be worth some effort to try to get that into place. With those words, I am happy to it give broad support. When the Minister replies, I am sure there will be some stumbling blocks in it but if we do not keep pushing and shoving, we are not going to make progress on this.

[Earl Howe]

My Lords, I am grateful to the noble Lord, Lord Sharkey, and my noble friend Lady Altmann for tabling this amendment because it provides me with an opportunity to update the Committee on the progress that the Department for Work and Pensions, the Financial Conduct Authority and the Money and Pensions Service have made on delivering the stronger nudge to pensions guidance. As noble Lords are aware, this is a requirement of Sections 18 and 19 of the Financial Guidance and Claims Act 2018.

Before that, however, I would like to talk briefly about the take-up of Pension Wise guidance, which is a very positive story. The service is on target to exceed 200,000 guidance sessions this financial year, more than tripling those in its first year of operation. Recent Financial Conduct Authority data suggests that 52% of personal and stakeholder pensions accessed for the first time in 2018-19 received either regulated advice or Pension Wise guidance. That clearly demonstrates that the work the Money and Pensions Service, Government and the industry are already doing to promote both Pension Wise guidance and regulated financial advice is working.

I would like to talk about the measures in the Financial Guidance and Claims Act 2018 which were designed to further increase the take-up of Pension Wise guidance. Sections 18 and 19 require the Government to deliver a stronger nudge to pensions guidance. As the Committee is aware, MaPS is testing options for the best way to do that, in a way that complements the suggestions made by the noble Lord, Lord Sharkey, during the passage of the Act that his amendment was

“designed to be a nudge, rather than any kind of probably unenforceable or counterproductive compulsion.”—[Official Report, 31/10/17; col. 1294.]

As noble Lords are also aware, the drafting of Sections 18 and 19 was influenced by the Work and Pensions Select Committee. Following trials, those sections will deliver a final nudge to consumers to consider taking guidance prior to accessing their pension.

The Government firmly believe that, to effectively prompt more people to take guidance before accessing their pension where it is appropriate, we need to understand the impact of the nudge, and ensure that we avoid creating perverse incentives. We do not disagree with the principles of the amendment—work is already under way to establish how best to ensure that people thinking about accessing their pensions are encouraged to take guidance. We believe it is essential to use the evidence base that the trials on a stronger nudge will provide, and to consult before implementing the primary legislation in the Act. We would welcome the thoughts of the noble Lord and my noble friend on the proposals in the consultation.

The trials to test the most effective way to deliver on Sections 18 and 19 are due to conclude shortly, and an evaluation report is expected to be published by MaPS this summer. We are working to deliver on the requirements of the Act as quickly as possible, and as such we are already preparing for a public consultation this year. The Financial Conduct Authority will also consult on rules that have regard to these regulations, to make sure that there is consistency between occupational pensions and personal and stakeholder pensions.

The noble Lord seeks to require a member to provide responses to questions before a transfer can proceed. The effect of the amendment is that trustees would have the power to refuse a transfer should members’ responses not meet the conditions which the amendment proposes should be set in regulations. I assure him that the Government are already introducing conditions that seek to safeguard members against the risk of being defrauded. That change will strengthen trustees’ discretion in respect of transfers. Transfers were discussed in the earlier debate on Clause 124. The Government are amending members’ statutory right to transfer, to allow conditions to be imposed for transfers between schemes. That is aimed at ensuring that transfers are made to safe destinations. Non-statutory transfers can still take place, if the scheme rules allow. However, the amendment puts responsibility on members, not trustees, to assess the appropriateness of the receiving scheme. If the questions to be asked of members are specified in regulations, as proposed new subsection (1)(c) requires, an unintended consequence could be that fraudsters will be enabled to game the system. Members could be coached to provide answers that lead to transfers that should have been refused.

As noble Lords will recall, we have banned cold calling on pensions in legislation and established Project Bloom: a joint task force between government, regulators and law enforcement to share intelligence, raise awareness of scams through communications campaigns, and take enforcement action when appropriate. The FCA and the Pensions Regulator launched the latest ScamSmart advertising campaign on 1 July 2019, which has targeted those approaching retirement, as they were identified as being most at risk from scammers. There is also an FCA warning list, an online tool that helps investors check if a firm is operating with the right authorisation and find out more about risks associated with investment.

The noble Lord raised a specific concern about transferring out of DB schemes. Since January 2018, following its work on the British Steel pension scheme, the FCA has been working closely with both the Pensions Regulator and the Money and Pensions Service to ensure that it monitors pension transfer activity in DB pension schemes that might be subject to increased transfer activity. Also since January 2018, the FCA has issued tripartite letters to over 50 defined benefit pension scheme trustees. The tripartite letter reminds scheme trustees of their responsibilities when issuing transfer values to members and requests them to provide data that allows it to monitor scheme activity. On 21 January 2019, the FCA published a new protocol for how the three organisations—the FCA, TPR and MaPS—will work together to share information and work with pension scheme trustees, and that protocol addresses many of the recommendations made in the Rookes report.

I want to touch on one other point raised briefly by the noble Lord, Lord Sharkey. He suggested that the new pension freedoms might be encouraging people to draw down savings too fast, putting them at risk of scams. In fact, the Financial Conduct Authority’s Retirement Outcomes Review did not find significant evidence of consumers drawing down their savings too fast. The study’s findings, published in June 2018, found that most of those withdrawing had some other form of retirement income or wealth.

Clearly, it is of the utmost importance that information and guidance are available to people and that they are aware of it. That is why there are now more opportunities for people to access guidance earlier in the pensions journey. Alongside the stronger final nudge trials, Pension Wise continues to run successful advertising campaigns across multiple channels, as well as working with employers nationally and locally to encourage them to engage with their employees at their place of work. The Financial Conduct Authority’s “wake-up” packs also encourage people to think about their pension options and include signposting to Pension Wise.

I reassure noble Lords that we are very aware of the importance of the need to make progress with implementing the requirements placed on government, the Money and Pensions Service and the Financial Conduct Authority, as set out in the Act. Our aim is to find an effective and proportionate way to do this.

To conclude, I accept that this work might not have progressed as quickly as perhaps noble Lords would like, but that is for a good reason. I believe it is very important to get this right and ensure that the policy is developed based on evidence. We always talk about evidence-based policy and this is a classic example of that. The trials will conclude very shortly and will be followed by an evaluation report. We will consult this year and will seek to lay regulations as soon as possible after that, alongside the rules that will be made by the Financial Conduct Authority.

For the reasons I have explained, I hope that the noble Lord will feel able to withdraw the amendment.

[Lord Sharkey]

I am very grateful to the Minister for that very comprehensive answer. There are one or two observations that I would like to make about components of the answer. We seem to disagree about quite what the reach of Pension Wise is. The Minister quoted a composite figure of, I think, about 52% in Pension Wise and other advice. The figure that I had was, as I said earlier, about 15% using Pension Wise.

I was also interested in the comment about whether the current drawdown rate was sustainable. The Minister might recall that in the original discussions on the pension freedoms Bill, the foreseen sustainable drawdown rate was 3%. Now, it is running at 6% and 8% for pots under £50,000. Although I admit that I might be mistaken about this, I think that the FCA may in fact have said that 6% was not sustainable in the longer term either. Therefore, I think that there are warning signs about the rate of drawdown.

I had one other question about the nudge programme. I know that two schemes are being tested against each other, in an absolute sense as well, but when this programme was designed, did it incorporate a level of success at which a rollout would be justified? I would be interested to know if that were the case—I think it should be—and what the number was for these schemes. What would trigger a rollout nationally of these two small tests? I mentioned the FCA and the investment pathways initiative. Can the Minister write to me with more detail of what is happening with investment pathways; that sounded a very promising way of coming at the problem.

Finally, there is the question of timing. Timing is behind a lot of what I was saying. It is a long time since we started on the Financial Guidance and Claims Bill and debated all this thoroughly here and in the other place. We are still not in a position to do as much as we wanted about providing guidance or advice at drawdown. A very long time has elapsed, and I have demonstrated the harms being done to consumers in the meantime by ill-judged drawdowns or transfers. I continue to worry that these timetables will slip and the harms will continue. I am reassured by the Minister expecting a result from the nudges in summer—which I take to be ending in September—and then to move as quickly as we can to implement it, if it is a success. Perhaps he and I can have a conversation later; I would be interested to know what plan B is, because it is possible that neither of those nudge trials produces what is needed. Having said all that, I beg leave to withdraw the amendment.

Referendums

Earl Howe Excerpts

Wednesday 12th February 2020 Lords Chamber

[Lord Soley]

To ask Her Majesty’s Government what plans they have to review the rules for referendums.

[Earl Howe (Con)]

My Lords, the rules on referendums are set out in the Political Parties, Elections and Referendums Act 2000, and the Government have no plans to review or change them. An Act of Parliament is required before any UK-wide referendum can be held. This means that all referendum legislation is thoroughly debated, and Parliament can decide to legislate for different rules for each referendum.

[Lord Soley (Lab)]

I do not like referendums for governing this country, but if we are going to have them, particularly on major issues, is it not important that we have a minimum turnout and higher level of approval in order to make major changes? The horrors of the way that politics and economics were divided in this country on Brexit were bad precisely because it was a narrow division, and it would be even worse if the same happened in Scotland or, particularly, in Northern Ireland. We need to think about minimum turnout and a maximum in order to make a major change acceptable. That needs to be agreed, and everybody has an interest in agreeing it.

[Earl Howe]

My Lords, I recognise the noble Lord’s consistent interest in this topic. However, Parliament would need to go down that kind of road with a good deal of care. This country has no history of applying thresholds to the making of laws, for example, or the electing of our representatives. Both those things require a simple majority. To start applying special thresholds for referendums would require special and clear justification.

[Lord Cormack (Con)]

My Lords, is my noble friend aware that, on 24 April, I will be producing a Bill for the House to discuss the very issues raised by the noble Lord, Lord Soley? Will my noble friend commit to approaching that debate with an open mind, bearing in mind that referendums are incompatible with representative parliamentary democracy?

[Earl Howe]

My Lords, I look to debating my noble friend’s Bill when it comes before us for Second Reading. I think it would be premature for me to set out the Government’s position on the Bill today. We will do so, as we do with all Private Members’ Bills, at the Second Reading, but I can assure my noble friend that we shall approach it with an open mind.

[Lord Tyler (LD)]

My Lords, do the Government accept that the worst failures with the 2016 referendum were concerned with transparency and funding? We still do not know who paid how much and for what and whether some significant sums were from illegal foreign sources. Strong recommendations have been made by a number of official bodies that the Government need to act on this, yet we have had no response. The long-awaited ISC report on Russian influence may be very relevant here. When will the Prime Minister authorise its publication?

[Earl Howe]

My Lords, the first duty of government is to safeguard the nation, and we treat the security and integrity of our democratic processes extremely seriously. We have no evidence to show that there was any successful interference in the EU referendum. However, as I said, we take any allegations of interference in our democratic processes extremely seriously. My understanding is that the report referred to by the noble Lord has been released by the Prime Minister.

[Lord Grocott (Lab)]

When we look at the last three referenda—on the voting system in 2011, on Scottish independence in 2014 and on EU membership in 2016—one of the bizarre characteristics is that, before the ink was dry on the results of those referenda, the losers were campaigning for a second referendum to reverse the first one. Therefore, should one characteristic of future referenda not be a minimum interval before the same question is asked again? Otherwise, you have an absurd situation where referenda designed to be for a generation are in danger of being reversed within six months.

[Earl Howe]

The noble Lord makes a very good point. Of course, there was a very considerable interval between the first devolution referendums at the end of the 1970s and the second ones in the late 1990s.

[Baroness O'Neill of Bengarve (CB)]

Does the Minister accept that there has been some change since 2016? Although it is true that we have limited information about the success of the campaigning from without the UK on that occasion, and limited information about what happened in the election of President Trump, there is today much more evidence about disinformation campaigning and there are many reports, including by the Oxford Internet Institute, which give us great cause for worry about the future of democracy. Does the Minster agree?

[Earl Howe]

My Lords, we are very concerned and absolutely determined to protect the integrity of our democracy and our elections. As I have said, we are doing that by addressing in particular the mechanisms for electoral fraud through the introduction of voter ID and by banning postal vote harvesting. We have already announced a range of measures to strengthen and protect our democratic processes. These include commitments to launch a consultation on electoral integrity and to implement a digital imprint regime for online election material.

[Lord Caine (Con)]

My Lords, I express considerable sympathy with the sentiments expressed by the noble Lord, Lord Soley, about referendums. I have long held considerable doubts about using a 50+1 mechanism for bringing about significant constitutional change. I am also incredibly fearful of using that method to bring an end to the union with Northern Ireland and establish a united Ireland; the consequences are likely to be severe. Will my noble friend the Minister look again at thresholds in referendums? There is a precedent in 1979, when the referendum in Scotland required not just a majority of those voting at the ballot box but 40% of the electorate as a whole to back the proposals.

[Earl Howe]

That is true, but we have never gone down that road in any of the subsequent referenda. There would be serious challenges in doing so. First, Parliament would need to decide what level of participation confers legitimacy; I do not think that is a straightforward issue at all. If one had a threshold related to voter turnout, the inflexibility of such an arrangement could easily prove counterproductive and have the paradoxical effect of equating non-participation with no vote, because low levels of participation can void a given result. That could cause a great deal of disquiet among the public.

[Lord Newby (LD)]

My Lords, the Minister said that the Prime Minister has released the report on Russian potential interference in our electoral process. Can he say whether it has been published or, if it has not, when it will be published? If it has been published, can he make sure that copies are available in the Printed Paper Office?

[Earl Howe]

My Lords, the call from this House was for the Prime Minister to clear the report for publication. It is not the function of the Government to publish; that is the function of the Intelligence and Security Committee. I can give no further news other than that.

[Baroness Kennedy of Cradley (Lab)]

My Lords, the Minister mentioned the digital imprint scheme that was announced last May. However, the Government announced that they could not possibly bring it in for the election that we just had in December. When will the Government bring in this imprint regime that will allow voters to have financial transparency and assess the credibility of online advertising? Will it be in place for the elections in May?

[Earl Howe]

We are absolutely clear that we want to introduce that mechanism as quickly as we can. It will ensure greater transparency. As the noble Baroness said, it will make it clearer to the electorate who has produced and promoted online political materials. I would love to be more specific about the timing. Unfortunately I cannot, beyond saying that we will make an announcement in due course and will do so as speedily as we possibly can.

Extension of Franchise (House of Lords) Bill [HL]

Earl Howe Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Friday 7th February 2020 Lords Chamber

[Earl Howe (Con)]

My Lords, I hope my noble friend Lord Naseby will allow me to congratulate him on his success in the Private Members’ Bills ballot and on securing this opportunity to raise the question of the voting right of Peers. He deserves enormous credit for bringing this House back to an issue about which I know he feels strongly. As we have heard today, it is an issue with which a number of your Lordships are in considerable empathy.

As my noble friend made clear, the Bill seeks to change the current position, whereby Peers who are Members of this House are not entitled to vote at elections to the House of Commons. The arguments for that change have been succinctly laid out for us, by my noble friend and many other noble Lords, including the noble and learned Lord, Lord Brown.

There is, however, a long-standing rationale for the current position and I would like to draw on this in setting out the Government’s view of the matter. It is a view which I anticipate will come as no surprise to my noble friend or the noble Lord, Lord Kennedy of Southwark. Peers who are Members of this House are already able to represent themselves in Parliament. They do not, therefore, require others to represent their interests, unlike members of the general public. That is the function of Members of the House of Commons: to represent those who cannot be present in Parliament to represent themselves. I therefore have some reservations, if I can put it as mildly as that, about my noble friend’s proposal to extend the franchise to Members of this House. But I appreciate that any issue on democratic participation is worth raising and discussing, and I therefore repeat my thanks to him for giving us this opportunity.

The principle that bars Peers from voting in elections to the House of Commons dates back, as has been said, to a 1699 House of Commons Journal entry. I say to my noble friend Lord Sherbourne that that may be an ancient provision but its rationale applies with equal force today. It is based on the premise I have already set out: that Peers who are Members of this House are already able to adequately represent themselves in Parliament. Parliament of course consists of the three estates of the sovereign, the Lords and the Commons. The Lords sit in their own right. The Commons is elected to represent the general public in Parliament. I do not believe that there is a strong case—there are arguments—for Members of this House to be able to vote to elect representatives to the House of Commons, since they are able to sit in Parliament anyway as their own representatives. This principle has long been established in common law.

Of course the bar on the voting rights of Peers in regard to general elections is not absolute; it applies only to Peers who are Members of this House. Hereditary Peers who do not sit in this House are able to vote in general elections, as are noble Lords who have retired or otherwise left the House under the provisions of the House of Lords Reform Act 2014. The basic principle has therefore been reinforced recently in statute, not simply in common law, as my noble friend reminded us. There is nothing to prevent noble Lords who sit in this House from being heard in the House of Commons. If a Member of this House wishes to pursue an issue as a constituent, such as in the example cited by the noble Lord, Lord Blunkett, there is nothing barring them from raising it with their local MP. Noble Lords can also use their position to ask Parliamentary Questions and introduce legislation.

To address briefly a point raised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, Supreme Court judges are able to vote in general elections. However, when those judges who are eligible to sit in the House of Lords return to the House, it is then that they are no longer able to vote in general elections. Bishops in your Lordships’ House can vote because they do not have permanent membership of it.

[Lord Brown of Eaton-under-Heywood]

Can the Minister deal with the specific cases I raised of the President of the Supreme Court and the Lord Chief Justice, who are Members of this House but disqualified? They have no vote here and do not have a parliamentary vote. Would he not at least accept that that is a most regrettable anomaly? What he just said as to how other members of the courts have the parliamentary vote is true, but it does not apply if they are Members of this House.

[Earl Howe]

The noble and learned Lord has raised a very interesting constitutional point. It is so interesting that I think it is appropriate for me to write to him about it, and copy that to noble Lords who have spoken. As noble Lords who have stood where I am standing will be aware, there is a point at which the brief in front of a Minister runs dry. That is the case in this instance, but I reserve the right to produce some arguments.

Another issue raised was about the well-worn principle that there should be no taxation without representation. My noble friend Lord Young’s comments on that issue in the debate on 19 July last year were cited. I can understand why the point about a Japanese citizen could be attacked, but a British citizen of voting age who is not a Member of the House of Lords but who pays no income tax retains the right to vote. The point my noble friend was making on that occasion, which I echo today, is that there is not a direct connection in law between people who have paid tax and people who have the vote.

The reason why Members of the House of Lords cannot vote on Finance Bills goes back a long way. The financial primacy of the Commons dates back many centuries and was formalised by two Commons resolutions in the late 17th century. The first, from 1671, states

“that in all aids given to the King by the Commons, the rate or tax ought not to be altered by the Lords.”

That is quoted in Erskine May. The second resolution is more detailed, from 1678—I would love to read it out, because the language is wonderful. Noble Lords suggested that this is an anomaly or even an affront, but none of it prevents this House debating money Bills or tabling debates on a financial matter.

As many noble Lords have pointed out, Peers who are Members of this House can also vote, where appropriate, in elections to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly; in local government elections; in police and crime commissioner elections; and in both national and local referendums. The difference in those instances, I say in particular to my noble friend Lord Bourne of Aberystwyth, is that those are forums or offices in which Peers do not have an automatic right to represent themselves.

Noble Lords therefore have a say in local, devolved and national decision-making. Enfranchising noble Lords to vote in general elections would give Peers two ways of being represented in Parliament—it would give them double leverage as citizens. My noble friend Lord Sherbourne suggested that there is no possible downside to such a change. The Government believe, on the contrary, that conferring such an exceptional privilege cannot be right.

I was asked by the noble Lord, Lord Adonis, and others to say something about the commitment in the Conservative manifesto to review the relationship between the Government, Parliament and the courts in a constitution, democracy and rights commission. I wish I could provide him with further and better particulars on this commitment at this juncture, but, as I have said on two occasions recently, it is still too soon for me to do so. The scope of the commission will be announced in due course. However, I can tell him that the aim of the commission will be to develop proposals to restore trust in our institutions and in how our democracy operates. I hope I need not say, although I will, that we will continue to promote the UK’s interests and its values, including freedom of speech, human rights and the rule of law. It is clear, I hope, to most noble Lords that careful consideration is needed on the composition and focus of the commission.

In light of all that I have said, I must end with a disappointing message to my noble friend. Even if the Government supported the principle behind this Bill, and I hope that I have set out clearly our reservations about it, they do not think that spending further parliamentary time on it is justified when other, more pressing electoral reforms—reforms which the Government are working hard to bring into being—have been so widely called for.

[Lord Kennedy of Southwark]

I have just been looking at the Companion. The Minister said that we do not need any representation because we represent ourselves in Parliament—I accept that we are Members of Parliament in a sense—but the Companion and the Code of Conduct talk about acting on personal honour and in the public interest rather than out of private interest. There may be some conflict there. I do not want the Minister to comment on that now, but perhaps he can have a look at it and respond to us in a letter.

[Earl Howe]

My Lords, I would be glad to look at those passages in the Companion. I simply observe that they do not relate to our right to sit in this Parliament; they are much more about how we should behave when we come here.

Data Science: Government Processes

Earl Howe Excerpts

Tuesday 4th February 2020 Lords Chamber

[Lord Wallace of Saltaire]

To ask Her Majesty’s Government what plans they have to consult Parliament on proposals to improve the use of data science in government processes.

[Earl Howe (Con)]

My Lords, as set out in their manifesto, the Government are committed to improving the use of data, data science and evidence in the process of government. The use of data science across government to help improve public service delivery is underpinned by strong regulatory frameworks, which can be found on GOV.UK. We have engaged with the Science and Technology Committee and the Communications and Digital Committee, and will continue to do so.

[Lord Wallace of Saltaire (LD)]

My Lords, the noble Earl will be aware from the Science and Technology Committee report of a feeling that the Government have lost momentum since 2015 in the transition to digital government. Is he aware that many of us welcome an active role in making government more digital, but we are conscious that there is a naturally suspicious public out there? The public are particularly suspicious of the sharing of their data with the private sector, and the Government therefore need to carry Parliament and the public with them by being as open as possible. If data science is pushed by the Government from No. 10, with people who used to work on data mining for Vote Leave, under the manically enthusiastic leadership of Dominic Cummings, we are unlikely to get to where we need to.

[Earl Howe]

My Lords, public trust goes to the heart of the Government’s work on data science. People need to know that data is being used wholly ethically by government. They can be reassured on that score by the data ethics framework, which the public sector has to abide by, by the work of the Centre for Data Ethics and Innovation, which advises government on how innovation in AI and data science can be deployed safely and ethically and, of course, by legislation, which protects personal data and people’s privacy.

[Lord Maxton (Lab)]

My Lords, is not the answer—to start with, anyway—a compulsory smart ID card for everybody in this country?

--- Later in debate ---

[Earl Howe]

I am sure the noble Lord is aware of the Government’s policy on ID cards. We do not believe they are the answer to any of the problems that noble Lords and others have mentioned.

[Lord Fox (LD)]

My Lords, I understand that we have been promised a national data strategy at some point. What level of scrutiny will Parliament have over that strategy and will it be able to amend and improve it?

[Earl Howe]

Transparency is very important to DCMS, which is leading the work on the national data strategy. Last June, it published a call for evidence. It also conducted more than 20 round tables, structured around the three themes it had identified—people, the economy and government—with around 250 organisations. That first phase focused on engaging with academics, civil society and small and medium-sized enterprises, but DCMS also intends to hold vision workshops to include the public in discussions of what the strategy should include. I do not doubt that parliamentarians will be included.

[Baroness Browning (Con)]

I assure my noble friend that I do not wish to reopen the identity cards debate, other than to say that, although I voted against them in another place some years ago, I have changed my mind, for this reason. Data is captured at all times, but one of the main reasons given against ID cards last time was that the individual would not have access to the data captured on their own card, whereas third parties, including government, would. Given developments in recent years in the way that many bodies, including government, capture our data—often willingly given by the individual—could we not revisit it to look at what the science has now provided to ensure that individuals are able to access all data captured on their card? That, I think, might change a few minds.

[Earl Howe]

My noble friend raises some important points of principle, which I think can be addressed other than by issuing a compulsory ID card. We are working hard to ensure that data held on individuals is easily accessible by them and that, more widely, individuals can more easily navigate government websites and be assured that their personal data is not being compromised.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we welcome the Tory manifesto saying, as we just heard, “We will improve the use of data and evidence in the process of government.” Can the Minister explain how the biggest IT project affecting the public, universal credit, was launched despite all the evidence from my noble friends Lady Drake and Lady Sherlock and our late colleague Baroness Hollis that this would not work because of its timescale and complexity? That was done against the evidence. As we have heard and will discuss further, UC is further delayed until 2024. What comfort can the Minister give that the Government can be trusted with our personal data to set up a system that will work for those most vulnerable in society?

--- Later in debate ---

[Earl Howe]

I recognise the noble Baroness’s concern on universal credit. It is slightly wide of the Question on which I have been briefed; nevertheless, her points are well made. She asks how people can trust the system. The Government take the privacy of citizens’ data extremely seriously. The Government Digital Service is proceeding with work that takes into account both the data protection regime and other guidance, such as the Government’s data ethics framework. I want to be absolutely clear that the work being undertaken by the GDS removes personal data before any analysis takes place. It is not about profiling citizens; it is about enabling citizens to have better and easier access to government online systems.

Media and Lobby Briefings

Earl Howe Excerpts

Tuesday 4th February 2020 Lords Chamber

[Earl Howe (Con)]

My Lords, I shall now repeat in the form of a Statement an Answer given earlier today by my honourable friend the Minister for the Constitution to an Urgent Question in another place on allegations of the barring of journalists from Civil Service media briefings. The Statement is as follows:

“Thank you, Mr Speaker, for the opportunity to clarify this situation. This Government are committed to being open in their dealings with the press and to the principles of media freedom, and the events of yesterday were a very good example of this. The Prime Minister delivered a speech on the future of the UK-EU relationship. He also took extensive questions from journalists. Following this, there was a further briefing for journalists by the Prime Minister’s official spokes- person. This was made available to any journalist who wanted it directly after the speech and was all on the record.

Lobby briefings typically take place twice a day. All those with a Press Gallery pass are able to attend these briefings and to question the Prime Minister’s official spokesperson however they wish. No journalists are barred from official media briefings hosted by the Prime Minister’s official spokesperson. It is entirely standard practice for the Government to host additional, technical, specialist briefings, as was the case yesterday. This particular briefing which the media have reported on was an additional, smaller meeting, due to be held by a special adviser, in order to improve the understanding of the Government’s negotiating aims for the future relationship.”

[Lord Griffiths of Burry Port (Lab)]

My Lords, I am amazed at the straight face the Minister kept throughout that Answer. I had little time to prepare myself to interrogate him and limited my research to visiting the Library. It is clear from the coverage in today’s press that a number of senior journalists for very important newspapers take a slightly different view from that expressed a minute ago by the noble Earl, who was repeating the Answer given in the other place. I cannot believe that the disparity between the way in which it was reported in the newspapers and the Statement that this Government are

“committed to being open in its dealings with the press and to the principles of media freedom”

can be easily reconciled. I am trying to avoid my suspicion of paranoia on the part of the Prime Minister by being myself paranoid. Yet I wonder on the basis of yesterday’s incident, which exemplifies a number of other well-known and well-reported incidents, whether we should not be a little more frank than the reply given in this particular Statement.

[Earl Howe]

My Lords, I have to say to the noble Lord and your Lordships that, having myself been briefed earlier today, it became clear to me that a certain amount of disingenuousness has entered the public debate on this matter and in some of the press reporting. Briefings to selected journalists have been common practice across government for many years. I know that myself from my time in the Ministry of Defence. We had regular selected briefings for journalists. The briefing in Downing Street yesterday that has been covered in the press was explicitly billed as one such selected briefing, and I understand that invitations were issued to between five and 10 journalists. There should have been no misunderstanding about that. There is therefore nothing unusual in briefings for selected journalists.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I declare an interest as the mother of a journalist. Will the noble Earl take back to No. 10 the fact that this House clearly did not believe that Statement? Both sides of the Chamber were laughing at the Statement that has just been given to us. Will he take back the message that, in a democracy, a free press does not have to express loyalty to the Government? In fact, it is their job to critique it.

[Earl Howe]

My Lords, the Government support a free and open press, and we will continue to do so. I can only re-emphasise that there has been no attempt whatever to deprive journalists of information on any matter of government policy.

[Viscount Hailsham (Con)]

My Lords—

[Baroness Bonham-Carter of Yarnbury (LD)]

My Lords, Downing Street’s director of communications, Lee Cain, said:

“We are welcome to brief whoever we want whenever we want”.


But does the noble Earl not agree that this democratically elected Government are not welcome to ban whatever news outlet or journalist they want whenever they want? What were the criteria for this smaller meeting and where was the transparency? When does a smaller meeting shrink so much that it becomes Dominic Cummings or some other special adviser on his or her own?

[Earl Howe]

As I said, my Lords, this was a technical and specialist briefing for selected journalists. There is an opportunity, twice a day, for anyone with a Press Gallery pass to attend lobby briefings and no journalists are barred. There was a lobby briefing yesterday afternoon when journalists had yet another opportunity to ask questions on the UK-EU relationship, which the Prime Minister had been addressing earlier in the day, or indeed to ask questions on any other topic. I am afraid that I cannot identify with the slant that the noble Baroness has put on this matter.

[Viscount Hailsham]

My Lords, I apologise to the noble Baroness, Lady Bonham-Carter. Unfortunately, I am deaf in one ear and I do not always spot where people are speaking from. I hope that she will forgive me.

I must ask my noble friend: if the facts were so clear and in accordance with precedent, why did several respectable journalists from respectable organisations feel they had to leave as a protest?

[Earl Howe]

I cannot comment on whether there was a genuine misunderstanding or whether certain people chose to misunderstand the basis on which invitations had been issued.

[Baroness Andrews (Lab)]

My Lords, we are lucky in this House to have a Minister who has the trust of the House, but we are in a situation where trust and transparency are at grave peril for all manner of different reasons, and not just in this country. It behoves the Government at this time to act in as trustworthy and transparent a manner as possible. In the interests of transparency, can the Minister provide a list of those journalists who were invited? Can he tell us whether they were indeed technical and specialist journalists? I would have thought that, if one is doing a technical and specialist briefing, it is more important to get the generalists inside the circle to understand these complex matters. Does he have a list, or did No. 10 compile a list, of people who were not invited and for what reason?

[Earl Howe]

My Lords, I do not have a list of who was invited. I was merely given the bald statistics on numbers. If I can illuminate the noble Baroness on that matter, I will be happy to write to her.

[Lord Campbell of Pittenweem (LD)]

My Lords, if the Government are committed to freedom of the press, why are government Ministers boycotting the “Today” programme?

[Earl Howe]

My Lords, there is no boycott of the “Today” programme. It is entirely up to Ministers what programmes they choose to appear on. The “Today” programme does not have a constitutional right for Ministers to appear on it. Government Ministers have appeared on a range of national and regional programmes only this weekend and, indeed, yesterday and today. We have to remember that every government department has communication teams who communicate the work of the Government and Ministers very regularly indeed.

[Baroness Wheatcroft (Non-Afl)]

My Lords, can the Minister tell the House who decided who should be included in the briefing? It seems that, increasingly, decisions in No. 10 are taken by a very limited number of individuals. I wonder whether on this particular occasion it was the man who wants to recruit weirdos or the man who used to be employed to dress as chicken and harass former Prime Ministers.

--- Later in debate ---

[Earl Howe]

My Lords, I come back to the point I made earlier. Briefings for selected journalists are regular occurrences across government, not just in No. 10, and they have been for many years. Who drew up the list for this briefing, I cannot say.

[Lord Russell of Liverpool (CB)]

My Lords, may I gently point out to the noble Earl that I do not think this was just a normal selective briefing? My understanding is that one of the reasons that so many journalists were keen to go to this briefing is that, rather than being one of the Prime Minister’s unseen spokesmen, the person who was going to give the briefing was Mr David Frost, the chief negotiator with the European Union, hence the degree of interest.

[Earl Howe]

The noble Lord may be quite right. There probably was a lot of interest, but I say again that this briefing was to selected journalists. Other journalists had every opportunity yesterday at Greenwich and after the Prime Minister’s speech to ask any question they liked through the lobby process.

[Lord Puttnam (Lab)]

My Lords, can the Minister help me with at least this? When I first came to this Chamber, I was taught that the key quality of this House was to spot the slippery slope when it saw it. That has been absolutely true of the 20 years I have been here. Is it reasonable for this House to point out the slippery slope when it becomes obvious?

[Earl Howe]

If that does become obvious, then of course it is noble Lords’ duty to bring it to the Government’s attention.

[Lord Hamilton of Epsom (Con)]

My Lords, to return to the point made by the noble Lord, Lord Campbell, about the absence of Ministers on the “Today” programme, I think the “Today” programme has improved enormously. Without having a large number of interviewers interrupting Ministers all the time, it is now much better to listen to.

[Earl Howe]

I take great encouragement from that, and I shall certainly pass my noble friend’s observation on to my colleagues.

House of Lords: Appointments

Earl Howe Excerpts

Thursday 30th January 2020 Lords Chamber

[Lord Tyler]

To ask Her Majesty’s Government what plans they have to review the criteria for appointments to the House of Lords.

[Earl Howe (Con)]

My Lords, the House of Lords Appointments Commission is an independent, advisory, non-departmental public body. It plays an important function in vetting appointments for life Peers to ensure the highest standards of propriety.

[Lord Tyler (LD)]

My Lords, could the Minister tell your Lordships whether the criteria for appointment of political nominees to your Lordships’ House are exactly the same as those for independent Cross-Bench Peers? If not, why not?

[Earl Howe]

My Lords, as the noble Lord knows, there are various established criteria for appointments to your Lordships’ House, whether distinguished service in a particular field or the potential contribution that the individual can make to the work of your Lordships’ House—or, indeed, both those things—subject to vetting for propriety. I come back to that point because it is central to the issue he has raised. All nominations are subject to independent vetting for propriety by the House of Lords Appointments Commission before appointment. That must underpin any future consideration of this matter.

[Baroness Smith of Basildon (Lab)]

My Lords, the issue of appointments to your Lordships’ House goes right to the heart of any reform we would see for this place. The Minister will be aware that your Lordships’ House has supported two methods of reform: first, ending the by-elections for hereditary Peers, as proposed by the noble Lord, Lord Grocott, with the overwhelming support of this House; secondly, the report of the noble Lord, Lord Burns, on how to reduce the size of the House and bring some balance into appointments. The only reason why we have not had any reform is that it has been blocked by the Government. In the light of the new commission that the Government intend to set up, can the Minister tell me whether he, the Leader of the House, the Chief Whip or any senior member of the House of Lords leadership team have discussed with the Prime Minister the Burns report and ways to take this forward?

[Earl Howe]

My Lords, these are matters under discussion. The Government have not yet decided what will be in the scope of the commission, as the noble Baroness knows, and whether that will include the role of the House of Lords. We will make an announcement about that in due course; the point of my saying this is that the two processes could go side by side rather than together.

[Baroness D'Souza (CB)]

My Lords, could the Minister spell out for us exactly what vetting for propriety entails?

[Earl Howe]

My Lords, regrettably I cannot do that as I do not have the privilege of being a member of your Lordships’ Appointments Commission, so ably chaired by the noble Lord, Lord Bew. I will write to the noble Baroness, having consulted him.

[Lord Forsyth of Drumlean (Con)]

My Lords, in view of the Question of the noble Lord, Lord Tyler, on reviewing the criteria for appointments to the House, could we carry out such a review to establish why, given the Liberals’ performance at two general elections, we have ended up with more than 100 Liberal Peers?

[Earl Howe]

My Lords, I would think the Liberal Democrats’ adherence to the principle of proportional representation should raise various questions in their minds on that issue.

[Baroness Bennett of Manor Castle (GP)]

My Lords, this House is I hope aware that since 2000, the Green Party has won in general elections between 1.8% and 4.3% of the vote, yet my noble friend Lady Jones of Moulsecoomb and I make up less than 0.3% of the membership of this House—I am aware noble Lords may think we are more. Will this be addressed and reviewed for the Green Party and other underrepresented parties?

--- Later in debate ---

[Earl Howe]

My Lords, we have all welcomed the arrival of the noble Baroness to this House and her contribution to it. As she knows, the Conservative Party manifesto committed to looking at the role of the House of Lords and to reviewing the relationship between the Government, Parliament and the courts in a constitution, democracy and rights commission. Inevitably, swept up in that will be the kind of question about representation she has posed.

[Lord Wallace of Saltaire (LD)]

My Lords, the Minister may remember that I was in the coalition Government as Lords Minister responsible for attempting to put a scheme for Lords reform through this House. He may recall that the level of enthusiasm for reform from the Labour Front Bench, as well as from many on the Conservative Back Benches, was moderate to say the least. If we are moving towards reform, does the Minister now accept that the only way we can form a consensus is on a second Chamber which is largely elected on a regional and national basis for a long period?

[Earl Howe]

My Lords, as I said yesterday, the Government believe that it is important for citizens in all parts of the United Kingdom to feel connected to the legislature and politicians and for there to be trust in our democratic institutions. That is one reason why we have committed to establish the commission that I referred to. However, the issue of regional representation is almost certainly germane to any consideration of the role of this House.

[Baroness Hayman (CB)]

But, my Lords, would the Minister accept that there has been concern and support for reform of the role of the appointments commission, particularly putting it on a statutory basis and making explicit the criteria against which it judges applications? Does he accept that, at a time when we are trying to re-create trust in our institutions, the casuistry of the different criteria for assessing appointments to the Cross Benches and those nominated by the political parties causes problems regarding suitability and capacity to participate in the work of the House, and that it would be helpful to have very similar criteria for both sets of appointments?

[Earl Howe]

My Lords, I recognise the noble Baroness’s concern on this matter and I shall ensure that the points she makes are fully considered.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, may I take the noble Earl back to the question from my noble friend on the Front Bench about the Burns committee report? That report had significant support in this House and is focused on taking reform forward without the need for legislation, using what one might call the natural processes already available to us. Is the leadership of the House pressing the Prime Minister to take seriously the recommendations of the Burns report?

[Earl Howe]

My Lords, I think we can all agree that our numbers in this House need to reduce. However, in the light of the Government’s commitment to review the role of your Lordships’ House, with all that that entails, it is difficult for me to go further as I cannot pre-empt the conclusions of that review.

Constitution, Democracy and Rights Commission

Earl Howe Excerpts

Wednesday 29th January 2020 Lords Chamber

[Lord Lisvane]

To ask Her Majesty’s Government when they expect the Constitution, Democracy and Rights Commission to be established.

[Earl Howe (Con)]

My Lords, the Conservative manifesto committed to reviewing the relationship between the Government, Parliament and the courts in a constitution, democracy and rights commission. We will set up the commission within this Government’s first year. Further announcements will be made in due course.

[Lord Lisvane (CB)]

My Lords, I know that I speak for the whole House in wishing the noble Earl many happy returns for his birthday. On a similarly positive note, I hope that he will be able to give us assurances about the authority and independence of the commission, to be demonstrated by its membership, and, above all, an assurance that the commission will not have its card marked by the Government.

[Earl Howe]

My Lords, I am grateful to the noble Lord for his kind greetings. I recognise absolutely the concern that lies behind his Question. The one thing we want to achieve from this exercise is a set of recommendations that command public confidence. That means a wide range of engagement by the commission when it is formed and a feeling on the part of the public and, indeed, civil society as a whole, that they are engaged with, and sympathetic to, the outcome.

[Lord Morgan (Lab)]

My Lords, the terms of reference of this commission have not been specified. Will this rather shadowy, generalised body turn its attention to upholding the rights of Parliament and the judiciary and to protecting the rule of law?

[Earl Howe]

My Lords, I wish that I could be more specific about the remit. I completely understand the noble Lord’s wish for further and better particulars on this subject. It is still too early for me to provide him with any details about either the composition or the remit of the commission. However, I assure him that the points he makes will be registered.

[Lord Howell of Guildford (Con)]

My Lords, my noble friend the Minister rightly wishes he could be more specific. Does he accept, and will he convey to his colleagues, that there really is a need to be more specific, and give us some hints about what the focus of this commission will be? Does he not accept that the present three words are very vague, and the canvass enormous? There are 16 different definitions or more of what democracy means. If noble Lords are to make a sensible contribution to this commission, as we would wish, we must very soon have a better indication of what specific issues in this enormous range the commission will concentrate on.

[Earl Howe]

My noble friend makes a very good point. Constitutional reform is a term that could encompass many subject areas. One reason why the Government are taking a bit of time over deciding the commission’s remit is that, if the remit is too wide, the task becomes too unwieldy and lengthy; too narrow, and it risks creating policy that is not properly joined up. The scope needs to be substantial but sensible.

[Lord Tyler (LD)]

My Lords, following the point that the Minister has just made, do the Government accept that there are some priority steps required to, and I quote from the Conservative manifesto,

“protect the integrity of our democracy”

that are probably so urgent that they cannot wait for the proposed commission? Has the Minister seen, and does he note, the recommendations of the APPG report, Defending our Democracy in the Digital Age, which follows the work of Select Committees in both Houses, and the recommendations of the Information Commissioner and the Electoral Commission? Do the Government recognise that there is a dangerous connection between digital campaigning and potentially illegal funding—the huge sums of money from foreign sources, from Miami to Moscow, seeking to influence both elections and referendums?

[Earl Howe]

I fully recognise the concern expressed by the noble Lord. Indeed, we have debated these matters in the past, albeit cursorily. These are matters that the Government are determined to grip. Whether the commission will be doing that is something that unfortunately I cannot be specific on at the moment.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister will have seen the report today that shows a dramatic increase in dissatisfaction with democracy. That is startling but hardly surprising, given the toxic nature of debate that we have seen over the last few years, so the new commission will have to look at ways to restore trust. The Government’s briefings have already provoked some interest, whether about political appointments to challenge the independence of the judiciary or about shallow comments about moving this House to York. While I understand that some No. 10 spokesmen delight in being populist, does the Minister consider that the path to restoring confidence is structural change of democratic institutions or will he accept that it is more fundamentally about behaviour and about offering hope for the future? What will really make a difference is genuinely understanding and tackling the serious issues that impact on society, from homelessness to climate emergency, if we are serious about restoring trust in the whole political system.

[Earl Howe]

The noble Baroness makes some extremely good points. Constitutional structures matter, but I suggest that what matters equally is for British and Northern Irish citizens to have a sense of belonging to this country, not a sense of alienation, and a necessary underpinning of that is public engagement and a listening, responsive Government. A number of things are in train at the moment that are designed to achieve those ends, not least the UK prosperity fund, which is designed to reach out to deprivation and inequality wherever it exists and bind the country together in the process.

[Lord Young of Cookham (Con)]

My Lords, it is clear from the replies that my noble friend has been able to give that work on the commission is still at its formative stage, so I repeat my request for an early debate in order for your Lordships to influence its development. Is it not the case that the biggest challenge facing the UK at the moment is the threat to the union? Should that not be an early priority for the commission?

[Earl Howe]

My noble friend’s request for a debate has been duly noted by the usual channels. With regard to the union, I could not agree with him more. In so much of what the Government plan to do, they are working to strengthen the union by ensuring that the institutions and the power of the UK are used in a way that benefits people in every part of our country. I am thinking here of not just the shared prosperity fund that I mentioned a moment ago but the review of intergovernmental relations in the UK and the Dunlop review into the union.

[Lord Wigley (PC)]

From what the Minister has said, we assume that the remit of this commission is UK-wide. That being so, what steps have so far been taken to seek nominations from the Governments of Wales, Scotland and Northern Ireland for membership of this commission?

[Earl Howe]

Consideration is being given to that matter. Unfortunately, I can give the noble Lord no particulars at this juncture.

European Union (Withdrawal Agreement) Bill

Earl Howe Excerpts

Report: 2nd sitting (Hansard) & Report stage & Report: 2nd sitting (Hansard): House of Lords
Tuesday 21st January 2020 Lords Chamber

None of this detracts from the timing of the talks, or from the ability of the UK Government to take full account of the whole of the UK. It does not add a veto, and it would still allow for the sorts of compromises that would be needed, which the noble Lord, Lord Hamilton, spoke about. But it would add some of the trust that my noble friend Lord Griffiths said was needed, and ensure that the special interests and competencies of the devolved Administrations, including in relation to implementation, were fully factored into the negotiations, and thus part of developing a working and successful partnership with the EU, as the noble Baronesses, Lady Finlay and Lady Randerson, spoke about.

[Earl Howe (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Thomas, and indeed all noble Lords who have spoken on the amendment. I feel that it is appropriate for me to start by saying something with a degree of emphasis about the Joint Ministerial Committee, which, I have to say, has received an undeservedly negative press from some noble Lords, both in Committee and today.

The Government have a high regard for the Joint Ministerial Committee structure and have engaged with the devolved Administrations through it, and indeed through numerous other means, throughout the EU exit process. The Joint Ministerial Committee on EU Negotiations, which I will call the JMC (EN), was established in the months following the UK’s decision to leave the EU, and it has met 21 times since November 2016. From the Government’s point of view—and, I hope, from everyone’s—it has proved an invaluable forum for the exchange of information and views between the UK and the devolved Administrations.

Proposals for intergovernmental engagement on the next stage of negotiations formed a large part of the most recent meeting of the Joint Ministerial Committee on EU Negotiations earlier this month, and are due to be discussed again at the next meeting of the JMC (EN) next week—chaired, if my memory serves me right, by the Welsh Government.

I hope that I can give a sense of how effective a forum the JMC (EN) has been for discussions on the Bill. The Bill was first discussed at the JMC (EN) in the summer of 2018, when we gave the devolved Administrations the opportunity to feed into the White Paper. We then used the forum to share our thinking on policy development through the autumn and winter of 2018, sharing iterative drafting on the Bill. It was through these discussions that we made changes to the Bill to address the concerns of the devolved Administrations. This included providing them with an important role in appointments to the board of the IMA, both in the Bill itself and through ministerial commitments.

I therefore do not accept that the JMC (EN) has been either inactive or ineffectual. On the contrary, it has contributed significantly to both ministerial and official engagement between the UK Government and the devolved Administrations, and that is exactly the way we mean to continue.

The amendment seeks essentially to set the joint ministerial arrangements in concrete. It remains the Government’s firm view that it is not in the interests of the UK Government or the devolved Administrations to place the terms of reference of the JMC (EN), or the memorandum of understanding on devolution, on a statutory footing. The noble Lord, Lord Howarth, and my noble friend Lord Hamilton of Epsom were absolutely right in what they said.

[Lord Howarth of Newport]

The noble Lord has heard serious warnings about the potentially dangerous consequences of a failure by the Government to consult adequately and work closely with the devolved Administrations. He will know that, in Wales, his rather upbeat assessment of the achievements and benefits of the Joint Ministerial Committee is not widely shared. If he will commit the Government, on their honour, to consult and work closely with the devolved institutions, along the lines laid out in this amendment, that would do a very great deal to improve trust and confidence and ensure good, practical outcomes. Will he do that?

[Earl Howe]

My Lords, I say again that it is our absolute wish and intention to engage constructively with the devolved Administrations over the negotiations ahead of us.

Intergovernmental relations have always operated by the agreement of the UK Government and the devolved Administrations. We wish that pattern to continue. The existing terms of reference of the JMC (EN) were agreed jointly in October 2016. In my view, and indeed in others’, those terms of reference have served us well, but to set the terms of reference in legislation would inhibit this joint process. Apart from anything else, to legislate for this would anticipate the outcome of the review of intergovernmental relations, due to be discussed with the devolved Administrations next week at the JMC (EN). Putting the terms of reference of the JMC (EN) in legislation would pre-empt those conversations and restrict the ability of the various Administrations to develop future intergovernmental structures, such as the JMC (EN), to reflect the constitutional relationship between the UK Government and the devolved Administrations once the UK leaves the EU.

I hope noble Lords will appreciate how important it is for the JMC (EN) to have flexibility in its role to develop and adapt as the negotiations progress. Indeed, the terms of reference proposed in this amendment seem to be narrower than the existing agreed terms of reference, which refer to

“issues stemming from the negotiation process which may impact upon or have consequences for the UK Government, the Scottish Government, the Welsh Government or the Northern Ireland Executive.”

This amendment would restrict the focus to economic and security matters. In fact, I believe that, if one reads the current terms of reference in full, one will find that they are miles better than those suggested in the amendment.

The essential point remains that a fixed statutory basis would not support the flexibility required to ensure that the JMC (EN) can operate as effectively as possible, which is what we want it to do. I hope I have provided noble Lords with assurances of the Government’s commitment to work collaboratively with the devolved Administrations to discuss their requirements of the future relationship with the EU. In the light of those assurances, I respectfully ask the noble and learned Lord to withdraw his amendment.

[Lord Thomas of Cwmgiedd]

My Lords, I am grateful for what the Minister has said, but I fear that we have to address the issues of devolution and our changed constitution, and the sooner we do that the better. Looking to put matters on the statute book seems to me inevitable. However, in the light of what has been said, disappointed though I am that the noble Earl, Lord Howe, would not give the commitment that I asked for, I beg leave to withdraw the amendment.

House of Lords: Future Location

Earl Howe Excerpts

Monday 20th January 2020 Lords Chamber

[Lord Foulkes of Cumnock]

To ask Her Majesty’s Government what consideration is being given to relocating the House of Lords out of London.

[Earl Howe (Con)]

My Lords, the Conservative Party manifesto committed to looking at the role of the House of Lords and to reviewing the relationship between the Government, Parliament and the courts in a constitution, democracy and rights commission. The Government have not yet decided what will be in the scope of the commission and whether it will include the role of the House of Lords but we will make an announcement in due course.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, that does not answer the Question. Can the Minister confirm the reports that No. 10 has said that this is a serious proposal? No. 10 also says that it is one of a range of options being considered. What are the options? Will the Minister outline them? Do they include moving both Houses, which I would prefer, and how does he reconcile all this with the billions now being spent on the restoration and renewal programme of this building?

[Earl Howe]

My Lords, I know the noble Lord to be a powerful advocate for the idea referred to in his Question. On the one hand, it is the case that some years ago, the Joint Committee on the Palace of Westminster looked at the option of Parliament moving outside of London and decided against it, principally on grounds of cost and the absence of proximity between Parliament and government. On the other hand, there is no reason why these matters should not receive renewed scrutiny and, as I have said, the options are being looked at.

[Lord Wallace of Saltaire (LD)]

My Lords, is it an indication of the depth of research undertaken by the Government on this that the briefing to the Sunday Times said that one advantage of York is that it is now only three hours by train from London? When I came back directly from York to London last weekend, it took me just under two hours. Does this suggest that the Government have not thought this through?

The Government are now mulling over two suggestions. One is whether to devolve power to the north of England, which they have not yet fully addressed, particularly in refusing the One Yorkshire proposals. The other is reform of the House of Lords, regarding which regional representation for a substantial part of the House is already on the table—something that, again, the Government have not addressed.

[Earl Howe]

My Lords, I agree that those are two important issues. The Government have an aspiration that all parts of the United Kingdom should feel connected to politics and indeed to politicians, including unelected politicians. On his first point about whether the idea of relocating of the House of Lords should be taken forward, I am sure that all logistical aspects would be examined.

[Lord King of Bridgwater (Con)]

My Lords, the matter of what the House of Lords is going to do should be decided first. I believe that one candidate for the party opposite is in favour of abolishing it altogether. It seems to me that the idea of movement before the future shape, structure and role of the House of Lords are decided makes this a completely irrelevant Question.

[Earl Howe]

My noble friend puts it very well. That is exactly why my party’s manifesto committed to looking first at the role of the House of Lords and taking matters further in the light of conclusions.

[Baroness Smith of Basildon (Lab)]

My Lords, can the Minister confirm that this announcement comes from the same policy brain at No. 10 that, desperate for a Brexit headline, came up with

“bung a bob for a Big Ben bong”?

We know what happened to that. But there is a serious issue: this House is part of the scrutiny of Parliament as a whole. Clearly government must better engage with the regions and the nations, but does the Minister agree that moving just one part of Parliament, albeit to the fantastic city of York, sounds more like the PM is as worried about Lords scrutiny as he is about Andrew Neil?

[Earl Howe]

My Lords, far greater minds than my own are applying themselves to this important question, but I shall ensure that the noble Baroness’s observations are transmitted to the appropriate quarter.

[The Lord Bishop of Chelmsford]

My Lords, I found myself taking a renewed interest in this Question. I put on record that I will later this year have a large garden available in York where a suitable marquee could be erected for these purposes. Some of the most important business that we do in these Houses happens not in the Chambers but in the corridors, so it seems to me to be a serious threat to our democratic processes if we are not in the same place. Could we reconsider this one, please?

[Earl Howe]

My Lords, I am not sure how far the idea has progressed but I have no doubt that the right reverend Prelate’s observations are extremely useful.

[Lord Kirkhope of Harrogate (Con)]

My Lords, yesterday morning the people of Yorkshire woke up to the knowledge and excitement of the possibility of Parliament coming back to the north of England. However, I think the excitement was somewhat sullied by the later indication that it was only the House of Lords that would be coming to York. While York would welcome that, I suggest that my noble friend also looks carefully at a new location for the House of Commons. In the interests of national unity, perhaps he should consider the Commons going to either Edinburgh or Glasgow.

[Earl Howe]

My Lords, I felt sure that all sorts of useful ideas would emerge from this debate. Getting back to my noble friend’s first point, we all know the people of York to be most hospitable, as I am sure they would be with 794 of our number arriving on their doorstep.

[Lord Winston (Lab)]

My Lords, with deference to the right reverend Prelate, am I right in remembering that the centre of the great city of York was the Shambles slaughterhouse? Is this not really an attempt by the Prime Minister to cull the House of Lords, and might that not end up being another shambles?

[Earl Howe]

My Lords, as I said earlier, I am sure that all logistical aspects of the idea will be examined. However, I take the noble Lord’s point.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend think that when people in so many constituencies in the north lent their votes to the Conservative Party they were longing for more politicians to be sent to them? Or does he think that they wanted a Government who would concentrate on the things that actually matter, such as health, social care and infrastructure? Should the special advisers in No. 10 not turn their attention to those matters?

[Earl Howe]

My Lords, I agree with my noble friend. There may be other and possibly more substantial ways to bring jobs and investment to the north of England than relocating the House of Lords.

[Lord West of Spithead (Lab)]

My Lords, as a great maritime nation, if we are going to do anything as Bodmin as splitting us from the Commons, I hope No. 10 might consider using one of the great Cunarders as somewhere for the Lords to be based. It could then be used to go and visit all parts of the United Kingdom.

[Earl Howe]

My Lords, the noble Lord puts forward an extremely imaginative idea, which again will be listened to.

[Viscount Waverley (CB)]

My Lords, the interaction between Government and Parliament was mentioned earlier. How would the Minister feel if he had been called in to answer the Question posed today but the trains affected his ability to get to York on time?

[Earl Howe]

Well, my Lords, we all know what happens to Ministers when they arrive late for your Lordships’ Oral Questions. It is certainly a risk.

[The Duke of Montrose (Con)]

My Lords, does my noble friend recollect that we are now at the 20th anniversary of the time when this Chamber was debating whether the House of Lords might have to move? A particular concern at that time was what would happen to the offices of state if we went to Scotland.

[Earl Howe]

My noble friend is absolutely right. To get back to the serious core of the Question, this issue has been debated many times in your Lordships’ House and, indeed, the other place. I have no doubt that the conclusion reached by both Houses—which was unanimous, incidentally—will be factored into the discussions currently under way.

[Lord Harris of Haringey (Lab)]

The Minister is held in very high esteem by this House and therefore we have enjoyed his responses to these questions, particular given the flimsiness of the contents of the folder in front of him. I notice that he suggested that minds greater even than his might be considering these matters, and that is a point of some substance. Could he tell us whether his noble friend the Lord Privy Seal was briefed in advance of the statements being made about the intention for your Lordships’ Chamber?

[Earl Howe]

I am not aware that she was, but I shall ask her.

[The Lord Speaker (Lord Fowler)]

We must move on.

Constitution, Democracy and Rights Commission: Civil Society

Earl Howe Excerpts

Tuesday 14th January 2020 Lords Chamber

[Baroness Bennett of Manor Castle]

To ask Her Majesty’s Government what plans the Constitution, Democracy and Rights Commission has to engage with civil society.

[Earl Howe (Con)]

My Lords, the commission will examine the broader aspects of the constitution in depth and develop proposals to restore trust in our institutions and in how our democracy operates. We anticipate a wide degree of engagement, and the Government will ensure that civil society’s valuable role in informing the work of the commission is not overlooked. Careful consideration is needed on the composition and focus of the commission, and further announcements will be made in due course.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for his Answer. On the question of the commission’s focus, the City of London Corporation enjoys many special privileges and perks in the UK constitution. For example, the corporation has the unique right to propose private legislation via its own parliamentary agent, the remembrancer. Will the Minister commit that the constitution review will consider the position of the City of London—the last rotten borough, which gives so much power to our banking sector—and bring the City of London into line with all other local authorities?

[Earl Howe]

My Lords, I understand completely the noble Baroness’s desire for clarity on the issues she refers to. However, I am afraid that it is too soon for me to be able to provide her with answers, as much as I should ideally like to. No decisions have been taken on either the composition or the focus of the commission. Once we are able to make an announcement, we will do so.

[Viscount Hailsham (Con)]

My Lords, may I suggest to my noble friend that, in order to enhance the status of the commission, it be made a royal commission? Alternatively—here I may be pre-empting a point to be made by my noble friend Lord Cormack—it might be made a subject of a Speakers’ conference, as suggested by my noble friend in his speech during the debate on the gracious Speech last week.

[Earl Howe]

My Lords, I have read my noble friend’s speech of last week, and the points he made have been registered. I can say again only that no decisions have been taken on the precise form that the commission should take. However, the most important thing is for it and the work that it does to command public confidence.

[The Lord Bishop of Worcester]

My Lords, I have seen the disillusionment to which the Minister refers. Given that no plans have yet been made for exactly how the commission will work, as well as the success of citizens’ assemblies in Ireland and France in rebuilding trust in democratic institutions, might the Minister think it a good idea to involve such citizens’ assemblies in the commission’s work?

[Earl Howe]

I am grateful to the right reverend Prelate, and that idea is certainly in the mix.

[Lord Wallace of Saltaire (LD)]

My Lords, the Minister quotes from the briefing on the Queen’s Speech on careful consideration being needed, which seems to suggest that very little thought has yet been given to this. Will the careful consideration on the composition and focus of this commission take place within government or in co-operation with other parties, or with interested groups outside government and politics altogether? Is that the wider consideration that is intended?

[Earl Howe]

My Lords, I wish that I could help the noble Lord, but it is simply too soon for me to be able to comment on that. As we heard in the debate in your Lordships’ House last Wednesday, the subject matter under the umbrella heading of the constitution is potentially very broad, so decisions are needed on exactly how broad the commission’s remit should sensibly be.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, since the remit is still unsure and has not yet been decided, will the Minister ask for the consideration of a federal constitution for the United Kingdom to be included in the remit, before we see the breakup and the removal of Scotland and Northern Ireland, which is imminent unless we have some kind of federal constitution?

[Earl Howe]

I will make sure that the noble Lord’s point is duly noted.

[Lord Young of Cookham (Con)]

As my noble friend is aware, this commission generated some excitement in your Lordships’ House when we debated it last Wednesday. If, as my noble friend said, this project is still in its formative stage, can we at least have a debate in your Lordships’ House before it is set up so that your Lordships might influence its constitution and remit, and, I hope, make sure that it is a great success?

--- Later in debate ---

[Earl Howe]

I shall be glad to inform the usual channels of my noble friend’s very good suggestion. However, I counsel on the fact that, at some point, the Government will give an indication of the scope and remit that they intend the commission to have; it would be best for your Lordships to present their views in that informed context.

[Lord Morgan (Lab)]

My Lords, has not the main threat to democracy and human rights of late come from the Government, as in their attempt to silence this Parliament? What guarantee do we have, therefore, that this commission will not be an attempt to silence the courts and, further, to undermine the rule of law?

[Earl Howe]

My Lords, if the aim of establishing a commission is to restore trust in our institutions and democracy, as is the case here, it is axiomatic that the commission will need to command public confidence through both its membership and the way it operates. The Government are wholly mindful of that.

[Lord Cormack (Con)]

My Lords, I thank my noble friend for the way he has answered these questions. Can he reflect on the fact that we recently elected a citizens’ assembly? It is called the House of Commons.

[Earl Howe]

My noble friend makes an extremely pertinent point.

[Baroness Smith of Basildon (Lab)]

My Lords, the Minister has twice referred to restoring trust in our institutions. I put it to him that we do not restore trust just by changing the structures of institutions. It is about engagement. I endorse fully the comment of the noble Lord, Lord Young. However, although I appreciate that this in its early stages, we need to take into account the fact that our constitution hangs together through not just individual bodies, but how these institutions relate to each other and how changing the powers of one affects the others, whether that is local government and Parliament or both Houses of Parliament.

[Earl Howe]

I do not disagree with the noble Baroness in the slightest. The commission will wish to engage with civil society, as I said earlier. The important thing is that that engagement is both wide and deep.