Financial Guidance and Claims Bill [HL]

Lord Mackay of Clashfern Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 13th September 2017 Lords Chamber

[Lord McKenzie of Luton (Lab)]

My Lords, as we have heard, these amendments would add two types of services to be brought within the definition of claims management services and hence within the regulatory provisions provided for in the Bill. The amendments were introduced with some passion. We support both of them.

We heard from the noble Lord some of the unacceptable behaviours of those delivering these services which warrant such inclusion. As part of the rampant compensation culture, we have heard about holiday sickness claims, which we will come on to debate, and artificial claims being stirred up by advertisements. Of course, medical reporting organisations and credit hire companies are involved in the claims process for road traffic accidents, providing medical reports and temporary replacement vehicles—an important service, perhaps, but it should be undertaken and conducted properly.

By way of background, we make it clear that we support the provisions in the Bill which enable the regulation of CMCs to transfer to the FCA but need to be reassured that it will be properly resourced to meet the totality of its new tasks—a point touched on by the noble Viscount, Lord Trenchard. The FCA currently regulates around 56,000 authorised financial services firms.

At present there is an exemption, which the noble Lord, Lord Hunt, touched on, from the regulation for claims management companies which employ solicitors on the grounds that such entities are under the jurisdiction of the Solicitors Regulation Authority—which, incidentally, bans cold calling. However, it is suggested in some quarters that the SRA regulation is less rigorous than the current MoJ regulation of CMC activity and as a consequence some CMCs are changing their business structures to take advantage of this. Is the Minister satisfied that there is no weakening of the regulation through this route?

There is another, tangential matter I would like to raise, of which I have given notice to the Minister—frankly, seeking a meeting rather than a detailed answer to an amendment. This is to do with tax refund companies. These are businesses which help people who have had too much tax deducted at source from their wages complete and submit the paperwork required by HMRC to claim back the overdeducted tax. There is absolutely nothing wrong with that—it is a vital service. This will include employees who have spent their own money on tax-deductible employment expenses; for example, care workers who do mileage in their own cars. Tax refund companies generally make their money by making high volumes of low-value, simple claims that they charge fees for. While some of these tax refund companies make sensible claims and charge proportionate fees for the service they provide, others are less scrupulous. It is these which we want to focus on. It is worth noting that tax refund companies’ bread-and-butter activities—refunds based on unused personal allowances —have recently been curtailed by HMRC’s auto-reconciliation service, which makes it harder for them to stay in business.

How do the companies work? There are some similarities with the points made by the noble Lord, Lord Hunt. They are mainly online businesses, typically with fun and appealing websites that contain eye-catching claims such as “Let us maximise your refund” or “We make claiming your refund easy”. They may somehow imply that they have an inside track with HMRC. They often pay for advertising space so that they appear at the top of search engine results, where their ads are not necessarily distinguishable from organic search results by those who are not IT-savvy. The costs vary but there can often be two elements: a minimum admin fee—the Chartered Institute of Taxation says that it has recently seen a minimum fee of £90—and a charge based on a percentage of the refund, such as 20%. Percentage fees of up to 40% for relatively straightforward claims have been seen, which are a scandal. The company will normally mandate the refund back to itself in the first instance and collect its fee before transferring the balance to the individual. Often, the two fee elements taken together will outweigh the tax refund if it is small. Sometimes the companies add on charges for transferring money to a bank account, which they are not always transparent about. The pricing structure incentivises poor practices such as putting in inflated or fraudulent claims.

Who do these companies target? It can be workers who are unaware of or confused by the rules around when a refund might be due. The work-related travel expense rules are a particular example. It can be people who may have an inkling that they are due a refund but who lack confidence or knowledge of the tax system to initiate a claim themselves, or those who could probably organise a claim but do not have the time or the inclination.

Some tax refund companies meet a genuine need in the market and operate according to appropriate standards but the area is unregulated, like the issue we have just been debating, and there is a huge spectrum of providers. The Chartered Institute of Taxation’s report on tax refund companies identified a range of consumer protection issues with some of the more exploitative agents and made pages of recommendations. While some of these were taken up, many were not. We acknowledge that HMRC has invested in improvements in certain areas by offering online channels to apply for refunds, restricting agent access to taxpayers’ pay and tax details, and dealing with refund agents who gave the impression that they were in some way affiliated to or approved by HMRC. However, tax refund companies continue to proliferate, which suggests that things are still too complex or that taxpayers are still being swayed because of things such as overinflated promises or misleading information as to fees.

I apologise for taking the Committee’s time to focus on this issue. I was not quite sure how to address it otherwise. My purpose is to give this an airing and to seek from the Minister the opportunity of a meeting in due course, together with the Chartered Institute of Taxation and the Low Incomes Tax Reform Group, to delve further into the issue. Having said that, I reiterate that we support the two amendments proposed by the noble Lord, Lord Hunt, and do so enthusiastically.

[Lord Mackay of Clashfern (Con)]

My Lords, I very much support the amendments proposed by my noble friend Lord Hunt of Wirral. I just wonder whether regulation should sometimes encompass outlawing these activities altogether. It is probable that the amendment is sufficiently broad for that to happen but some of these activities may well be best outlawed rather than regulated.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 13th March 2017 Lords Chamber

[Baroness Cohen of Pimlico]

My Lords, I support the amendment. That may come as a faint surprise as I am chancellor of BPP University, the ownership of which is sort of changing—our old owners have become our new owners. We do not expect it to lead to instability. Our vice-chancellor will be replaced by a new vice-chancellor who has been there for a very long time. I am staying as chancellor and the chairman of the academic council is also staying. Above all, this is why I support the amendment with perfect confidence: we are a regulated university. We are a for-profit university, but what we may do with our profits is strictly limited.

We are limited as to what fees we can charge and we expect it to stay that way. We may charge only £5,000 a year for an undergraduate degree, unless it is a two-year degree, in which case we are allowed to charge £6,000. None of that is expected to change, nor could we change it unilaterally. This is because the present regime for those of us registered in England is extremely secure. I support any amendment that would keep the regime as secure as it currently is. This amendment is right—we fall into it and will continue to fall into it.

[Lord Mackay of Clashfern (Con)]

My Lords, I wonder to what extent this amendment focuses on the general questions that have been raised. As I understand it, the amendment focuses on whether students at a particular institution should be eligible for loans. If an American university, or some other foreign university, set up a campus here, would the amendment provide that students at such a campus will not be eligible for student loans? I am not certain whether they would be.

[Viscount Younger of Leckie (Con)]

My Lords, the Government want to provide students with options and choice, and to enable them to pursue the path through higher education that is best for them. We want a globally competitive market that supports diversity, where providers that demonstrate that they have the potential to offer excellent teaching and can clear our high quality bar can compete on a level playing field. To deliver that competitive market, we are introducing through the Bill a single, simple regulatory system appropriate for all providers, with a single route to entry and, for the first time, a risk-based approach to regulation.

It is through imposing conditions of registration that are directly linked to risks that we are able to improve and strengthen regulation of the sector. The Bill will enable us to go further than ever before and protect against the very issues that I know noble Lords are concerned about, in that, for the first time, we can focus attention where it is needed, rather than having the current one-size-fits-all approach. This means we do not have to take such a blanket approach as proposed by the amendment, which would automatically exclude potentially excellent providers.

Let me be absolutely clear: we are talking about providers which are carrying out their activities principally in England, so inevitably there will be a presence of some kind in England. Although each case will depend on its own facts, in determining where a provider carries out its activities, questions such as where the provider’s management activities take place, where its courses are designed, where course material is prepared, and where supervision, marking or other evaluation takes place, will need to be considered. It is not simply a matter of where students are studying.

Clauses 4 and 79 are clear that only those providers which carry on, or intend to carry on, their activities wholly or principally in England can successfully apply for registration. Only registered higher education providers can benefit from their students having access to student support. While there is no requirement in the Bill that providers must be incorporated in the United Kingdom, this does not mean that the Bill has inadequate safeguards in respect of foreign-established registered providers. If, following its assessment of risk, the OfS considers that particular risks arising from the fact that a provider is incorporated outside the United Kingdom need to be addressed, these will be mitigated through the imposition of specific registration conditions.

I can commit today that the Government will give clear guidance to the OfS about carrying out its risk assessment in the case of providers that are not incorporated in the UK, and outlining factors for the OfS to consider and address when it decides what registration conditions to apply to these providers. As an example, the OfS will need a clear understanding of how it can effectively regulate this sort of provider, backed up through registration conditions where appropriate. This will include understanding how the necessary verifications on matters such as quality and financial sustainability can take place before a provider can be granted entry to the register, as well as how effective enforcement action can be brought by the OfS and how students’ complaints can be dealt with.

To provide some specifics, it will be open to the OfS to seek financial guarantees from parent or holding companies so that it may have sufficient confidence that the provider can deliver ongoing high-quality provision. As happens now, we would expect the designated quality body to have in place arrangements with overseas quality assurance bodies to share information about higher education providers operating in their respective jurisdictions. It is also open to the OfS, through Clause 15, to impose a public interest governance condition on registered higher education providers that requires the provider’s governing documents to be consistent with public interest principles listed by the OfS. The list must include, but is not limited to, the principle that all academic staff have the freedom within the law to question and test received wisdom, and put forward new ideas and controversial or unpopular opinions without placing themselves at risk of losing their jobs or privileges.

Furthermore, it is clear that in respect of a registered higher education provider’s activities in England and Wales, the applicable law will be that in the Higher Education and Research Bill, and other relevant English and Welsh law. For example, its activities in England will be subject to the relevant applicable law as it applies in England, such as tax and equalities legislation. It is not necessary for a provider to be incorporated under the law of the United Kingdom for English courts to have jurisdiction. It is worth noting that English higher education providers operating overseas are not subject to restrictions that relate to where they are incorporated. The noble Lord, Lord Stevenson, hinted at this in his speech. If we were to unilaterally impose such restrictions this could be seen as a barrier to free trade and consequently there is a real risk that other countries might retaliate. This risks damaging a valuable export industry for the UK.

We must also be mindful that until we exit the EU we should not legislate in a way that conflicts with EU law. A requirement that a provider is incorporated in the UK may breach EU law on freedom of establishment and freedom to provide services. As such, we do not believe that there is any benefit to be gained from insisting on a requirement that registered higher education providers are incorporated in England and Wales or another part of the United Kingdom.

I hope the House will bear with me while I speak briefly about a slightly different issue before I ask for the amendment to be withdrawn. We have been looking again at Clause 114, on the pre-commencement consultation. Noble Lords will recall that this enables the Office for Students to rely on consultations carried out by the Secretary of State, the Director of Fair Access or HEFCE before the OfS has the power or duty to do so. Where the power or duty would, once it exists, require the OfS to consult registered higher education providers, we want it to be as clear as possible that the Secretary of State, the Director of Fair Access or HEFCE may satisfy this requirement by consulting an appropriate range of English higher education providers before any such providers have been registered. To this end, the Government undertake to bring forward at Third Reading a minor and technical amendment to provide that clarity. I hope that Amendment 146 will therefore be withdrawn.

Higher Education and Research Bill

Lord Mackay of Clashfern Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Wednesday 8th March 2017 Lords Chamber

Moved by

[Lord Mackay of Clashfern]

125: Schedule 5, page 90, line 15, at end insert “and that all the requirements for the grant specified in this Schedule are met,”

[Lord Mackay of Clashfern (Con)]

The amendment arises out of an observation I made when this schedule was considered in Committee. I think it was the noble Baroness, Lady Brown, who said that this was quite a serious matter.

[Viscount Younger of Leckie (Con)]

I am sorry to interrupt my noble and learned friend but I believe that the amendment is within the group we have just concluded.

--- Later in debate ---

[Lord Mackay of Clashfern]

I think that that is certainly so; my understanding of time and practice here suggests that it is. Perhaps I may continue.

The noble Baroness, Lady Brown, made the point that the noble Lord was making on the previous amendment: that this is really rather novel. You can imagine the effect on a higher education provider if it appeared in the newspaper that, the night before, a search warrant had been issued for its headquarters. In answer to that, my noble friend Lord Younger of Leckie said that the conditions are very strict, and he read out the fairly detailed conditions. I thought it might be a simple safeguard to require a signature to say that these conditions had been met. I got a letter the day after that suggesting that this was an unheard of stipulation. As you can imagine, that slightly worked me up to see what I could do about it.

The provisions say that a search warrant must specify the name of the authorised person who applied for it and so on, and,

“state that it is issued under this Schedule”.

That is a fairly important provision. It occurred to me that all one had to do was add after that the following simple words,

“and that all the requirements for the grant specified in this Schedule are met”.

That seems very straightforward and easy.

Look at how these magistrate’s search warrants are granted. One must remember that where the conditions in a particular provision are important, the magistrate may not have in his head exactly what the conditions are. Therefore, I suggest that this amendment is a rather easy and convenient way of making sure that the magistrate’s attention is directed to the detailed requirements of the schedule, which have to be met before the warrant can be granted. That seems very straightforward and I cannot see anything wrong with it. So far, I have not heard any reason why it would not work. Therefore, I beg to move this amendment.

[Lord Young of Cookham]

My Lords, might I respond to the points that my noble and learned friend has raised? In so doing, perhaps I will respond very briefly to the point made by the noble Lord, Lord Watson, in concluding the previous debate about why these powers were necessary and where the demands came from.

As I said, at present, neither HEFCE nor the Secretary of State has the statutory right to enter a HE provider to investigate if serious wrongdoing is suspected. This compromises investigators’ ability to obtain evidence of what may have happened and makes it harder to tackle rogue providers.

In its 2014 report on alternative providers, the National Audit Office said that the department has no rights of access to providers and that this affects the extent to which it can investigate currently. Therefore, we believe that these powers are needed to safeguard the interests of students and the taxpayer and to protect the reputation of the sector.

I apologise to my noble and learned friend, but I tried to address Amendment 125 when I—

[Lord Young of Cookham]

No, the provisions are not required for the reasons that the noble Lord has suggested but because we believe they are necessary for the current institutions and in the light of the NAO report, which was written before these new providers came on to the scene. The department has no right of access to the providers. This affects the extent to which it can investigate currently rather than in future.

I turn to my noble and learned friend. I am not sure that I can usefully add to what I said earlier. I would not of course challenge for a moment what he said about practice in the judiciary. My understanding is that it is not usual practice within powers of entry provision for the magistrate to sign a certification document, and we are still unaware of any examples of this. The relevant clause in the Bill, as I think I said a moment ago, sets out the considerations that magistrates would have to take into account when making their judicial decision to grant a warrant, and we have full confidence that this constitutes a sufficient safeguard to ensure that a warrant will be granted only where necessary. For that reason, we are not persuaded that his amendment, in saying that it would have to be signed, constitutes an extra safeguard to ensure that a warrant would be granted only where necessary. I hope that, against that background, my noble and learned friend will feel that he does not have to press his amendment.

[Lord Mackay of Clashfern]

I am very sorry, but it strikes me as absolutely essential that the warrant be signed. I do not think that there is any question but that the magistrate has to sign the warrant. Given that the warrant has to contain a statement that it is under the schedule—in other words, the magistrate has to say that it is under the schedule—it is only common sense. There are special conditions here, which my noble friend relied on as justifying the proposition that they should have this provision, in spite of what the noble Baroness, Lady Brown, said about how detrimental it might be to a higher education provider. I am not disputing the need for the warrant at all; all that I am suggesting is that it would be a very important safeguard that magistrates’ attention would be drawn specifically to these quite elaborate conditions. They are quite detailed, and I do not think that it is likely that a magistrate will have them in his head, or her head, as they approach the grant of a warrant, when whoever it is comes along and applies for it.

Therefore I am not asking for any separate signature—one signature is enough—but the signature would include the phrase that I have put in this amendment, after the fact that it is under this schedule. That seems to be absolute common sense, and I am extremely sorry that the Government have not had the willingness to accommodate this, which occurred to me in the course of dealing with the matter here. Surely, that is what Committee stages are for. If the Government are to cast aside what I have suggested, given that I have a certain amount of experience of magistrates’ warrants and so on, I sincerely hope that before Third Reading this is taken into account. Otherwise, it seems to me an absolutely idiotic attitude from the Government to simple improvements suggested in the course of the discussion.

[Lord Young of Cookham]

I am grateful to my noble and learned friend, and of course I will with my colleagues have a look at this between now and Third Reading, but what we have done here is to take a standard approach used in existing legislative provisions relating to search warrants and powers of entry. We are simply seeking to replicate the procedure that already exists in similar circumstances, when for whatever reason powers of entry are required. We are simply applying best practice and extending to these institutions powers that already exist to institutions in the educational field. However, in view of the very strong feelings that my noble and learned friend clearly has on this, and in view of his greater knowledge than mine in matters judicial, of course we will take it away and have another look at it. Against those undertakings, I hope that my noble and learned friend might feel able to withdraw his amendment.

[Lord Mackay of Clashfern]

Certainly, with that understanding, I am prepared to withdraw the amendment and I sincerely hope that wise counsels will prevail by the time we come to Third Reading.

Amendment 125 withdrawn.

Parliamentary Proceedings: Statistics

Lord Mackay of Clashfern Excerpts

Wednesday 18th January 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I confess to having put down my name for this debate for the ulterior motive that the noble Lord who introduced it has explained. I think it important from the point of view of this House to compare the situation here with that in the House of Commons.

Over the years, Members of the House of Commons have become ever more burdened by the questions and cases that constituents raise with them in order that they should deal with them in such a way as to alleviate their constituents’ problems. That applies in all sorts of cases. You have only to send an email to a Member of Parliament to find out exactly what happens in that respect. The number of requests for help they receive over a parliamentary Session is huge. They cannot be expected to have available more than the 24 hours per day that we have allotted to us. It therefore stands to reason that the amount of time that individual Members have available to study Bills before the House becomes more limited.

In that situation, the role of this House as a revising Chamber is made even more important than it would otherwise have been. It is extremely important that we concentrate on that aspect of our business because of the need to make sure that legislation when passed is workable. As the noble Lord, Lord Butler, said, we make laws that apply very generally. He mentioned tax law—that applies to a lot of people. It is very important that it should be workable. The consequences of bad legislation are so significant that we must do everything we can to avoid it.

As has been said, the volume of Bills presented has gone up, which increases the problem. This situation needs to be highlighted. Publishing the statistics which the noble Lord has asked for would be a considerable improvement in that connection.

The obligation on this House to scrutinise legislation is extremely important. It is not altogether easy, because Bills when they come here are not the most readable pieces of literature one has ever seen. Very often, a good deal of work is required to see what is being modified. My four minutes is up. That concludes what I have to say.

Surrogacy

Lord Mackay of Clashfern Excerpts

Wednesday 14th December 2016 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, it was not my intention to speak in this debate but since the noble Lord, Lord Winston, has not been able to come, I thought that I might take up just a little bit of the spare time. As the noble Viscount, Lord Craigavon, has said, it was my responsibility to introduce the Human Fertilisation and Embryology Act in the 1990s. It was immensely helped by the work that Mary Warnock had done before that. There was still quite a lot of debate, as those who were here will remember, about various matters, including the very contentious matter of embryo research. This particular matter was dealt with in the law in the way that it was, mainly because, at that time, the general impression was that the arrangements for transfer of sperm material should be confidential. Therefore, unless there was some clear indication, it was not clear who the child belonged to in the real sense, except that there could be certainty that the child was born of a particular person. So that was what was done at that time. In 2008, there was a relaxation of a number of these issues, but I think that it is quite clear that this kind of difficulty ought to be dealt with now or as soon as possible.

Mary Warnock’s report was, as I said, a tremendous help in getting the legislation through, and a proper investigation by the Law Commission would be extremely helpful now in getting legislation through. I agree that the Law Commission can take some time—it was my responsibility at the time that I was Lord Chancellor to be Minister for the Law Commission and we were able to get a lot of the legislation through—but the time that it would take is really a matter for the commission. I think that a fairly thorough investigation would be needed, but I do not see that a thorough investigation needs to be very long. I hope therefore that if the Law Commission is empowered to take this on by a programme which includes it, then things could proceed quite quickly. It would involve a good deal of consultation but, as my noble and learned friend Lord Brown of Eaton-under-Heywood said, the Law Commission really invented the system of pre-legislative consultation. Lord Scarman, the first chairman of the Law Commission, developed that in a way that Governments have taken up. So the Law Commission knows all about dealing with complicated issues such as this. I hope that it might be able to do it quickly, and I sincerely hope that the Government will think it right to refer the issue to it.

House of Lords Act 1999 (Amendment) Bill [HL]

Lord Mackay of Clashfern Excerpts

Committee: 1st sitting (Hansard): House of Lords
Friday 9th December 2016 Lords Chamber

[Lord Snape]

According to Wikipedia, which is not always accurate, he left the Liberal Party to join the Labour Party. The noble Lord inherited his title at 19 after his father’s early and untimely death, but I believe that dinner party conversations in the Trefgarne household must have been fairly lively as far as politics were concerned. But whether he was Liberal or Labour, the fact is, I am not sure to whom the noble Lord, Lord Trefgarne, owes his presence in your Lordships’ House. If it was anything to do with the Labour Party, let me apologise to all and sundry now.

[Lord Mackay of Clashfern (Con)]

My Lords, there are procedures in this House by which one can indicate one’s opposition in principle to a Bill at two stages: Second Reading and Third Reading. But I have always understood—and I have been here for a little time now—that the Committee stage is not for that purpose. If indeed, in Committee, a Second Reading speech—whatever that is—is made, it is thought to be inappropriate. It is absolutely plain from what my noble friend Lord Trefgarne said, that he is seeking to oppose the principle of this Bill. If that is what he wants to do, the correct time and place for that is if the Bill goes as far as Third Reading. Second Reading has passed. I submit to him and to others who have amendments laid down for today that this is not the place or the manner in which to express one’s opposition to the principle of a Bill. The opportunity to do that will be on a single vote in due course, if the Bill goes to that length. I sincerely hope that in the spirit of loyalty to the practices of this House, which over the years I have found to be very amendable to dealing with all sorts of questions, noble Lords will accept that this procedure is appropriate only for those who are at least thinking that the Bill could be improved to pass at Third Reading. I understand plainly from what my noble friend Lord Trefgarne said at the outset that that is not so. Therefore, I strongly implore those who have amendments to withdraw them now.

[Baroness Chisholm of Owlpen]

My Lords, I thank my noble friend Lord Strathclyde for what he said. At this point, I feel it is important for me to say as a point of clarity that the Government cannot support this Bill. I have made the Government’s position clear and I hope that all noble Lords will find other ways of resolving the issues, particularly following the very successful debates that we had on Monday. This is not the way we should be doing things.

Policing and Crime Bill

Lord Mackay of Clashfern Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[Lord Hunt of Chesterton (Lab)]

My Lords, I support the amendment tabled by my noble friend. I speak as a scientist. I tabled a Question some eight or nine years ago about when there are scientific questions in a legal case and lots of money is spent by the Crown on some prosecution and little or zero money is available for the defence. It would be more appropriate, as in many civil cases, to have some sharing between the two sides of the nature of the scientific study and the interpretation of the data. When that does not happen—for example, it did not in the case of R v Sion Jenkins—you get serious miscarriages of justice and lots of money being spent: £10 million, I think, in that case. This amendment is very important.

[Lord Mackay of Clashfern (Con)]

My Lords, many years ago the “Marchioness” inquiry had to have a second coroner’s inquest. The parents of the people who had sadly lost their lives came to me and asked for legal aid, because there was no legal aid generally speaking in that situation. It was possible for me to authorise a fixed payment. In other words, I would decide how long their matter should last. Having had regard to the submissions made, I was able to fix an amount that defrayed the cost of the second inquest for the parents, which was extremely satisfactory.

A police force may be an interested party without being represented, but where it is represented, money should be available to the people affected on the other side. I agree that a judicial officer should decide that. The obvious judicial officer in this case is the coroner, who is already fixed with the ideas and matters likely to be litigated in the inquest. Therefore, if the noble Lord, Lord Rosser, was to go for the coroner instead of the elected police commissioner, that would be worth putting on the statute book now, subject to any argument we may yet hear from the Government. It is true that a considerable inquiry is already initiated, but it is primarily related to what happened at Hillsborough, which was a very special case. This is a much more general proposition. There is a good deal to be said for it. If the police want to save public money they should reduce their representation.

[Lord Paddick]

My Lords, I support the amendment proposed by the noble Lord, Lord Rosser, taking into account the contributions that have subsequently been made. I will reinforce some of the points I made in Committee and some of the points the noble Lord made.

Hillsborough was not unique. A more recent case I was a participant in was the inquest of Jean Charles de Menezes. Noble Lords will remember that Jean Charles de Menezes was accidentally killed by armed officers in 2005, having wrongly been identified as one of the suspects who had attempted to carry out a suicide bombing. I gave evidence for the family. I experienced first-hand the tactics deployed by some police counsel at inquests—a search for the truth turns into a bruising adversarial encounter. As I said in Committee, the coroner had to warn the police counsel over the aggressive tactics he was using in cross-examination.

As far as the family of the deceased is concerned, I do not believe there can be any argument. It cannot be right that the police can employ as large and as eminent a legal team as their considerable budgets will allow to represent them while the families of those who die at the hands of the police struggle to raise the funds to be represented at all, nor should it fall to public interest lawyers to have to provide pro bono representation. If the Government are looking for a low-cost or no-cost option, perhaps the police could be forced to divide whatever budget they decide to deploy at an inquest equally with the family of the deceased. Any death at the hands of the police is a tragedy, and it is as important for the police as it is for the family to ensure that the true facts emerge in order to reassure the public that the police have acted fairly and reasonably and to enable the police to counter those with a political agenda, who often accuse them of a cover-up and of having given a misleading account of what happened. Spending public money on establishing beyond doubt what happened when someone died at the hands of the police is worth every penny, and I believe the police themselves should fund both legal teams to the same extent.

I accept what the noble Viscount, Lord Hailsham, said about the issues with this amendment, and I accept what the noble Lords, Lord Blair of Boughton and Lord Dear, have said on this issue. Having served in your Lordships’ House for only three years, I do not know whether I should dare say that my understanding is that, as we are on Report, it is only the Government who could bring forward an alternative amendment at Third Reading. If we are, as we should be, trying to establish the principle of equality of arms in an inquest situation, if this is the only amendment we can divide on and if the noble Lord, Lord Rosser, decides to divide the House, we will support him.

[Lord Mackay of Clashfern]

I think that if the Government agree that the matter can be reconsidered at Third Reading, it does not need to be a government amendment.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I do not doubt the sincerity of the intentions behind this amendment. The new clause comes directly from the experiences of the Hillsborough families, and anyone who has heard of their long fight for justice cannot fail to be moved. I entirely accept, however, that the issue raised by the amendment is of general application.

As noble Lords will be aware from the debate in Committee, the Government’s position on this amendment is that we should wait for the report commissioned from Bishop James Jones on the experiences of the Hillsborough families. In commissioning the work, the then Home Secretary asked Bishop Jones,

“to ensure that the full perspective of those most affected by the Hillsborough disaster is not lost”.—[Official Report, Commons, 27/4/16; col. 1436.]

The families will have numerous experiences, including views on legal representation, and this will be reflected in Bishop Jones’s report, which he aims to publish next spring.

I entirely accept noble Lords’ points about the coroner, and we will bring them to the attention of Bishop Jones, but I reiterate that it is appropriate that the Government have the opportunity to consider his conclusions and recommendations fully before deciding what action to take. It would therefore be premature to proceed with the amendment at this stage.

It must be right that any consideration of this amendment takes account of the financial implications. The cost of the legal representation for the 103 Hillsborough families at the fresh inquests amounted to £63.6 million. Clearly, the Hillsborough inquests were an exceptional case, but they provide at least an indication of the level of financial commitment such an amendment could imply. While it is the case that the Hillsborough families received public funding for their legal costs at the fresh inquest, it was a bespoke scheme, instituted due to the exceptional nature of the events that took place 27 years ago.

Recognising the exceptional nature of the Hillsborough inquests, it is also right that we look at other data. We cannot say for certain in how many inquests the police are named as an interested person. However, we know from the Independent Police Complaints Commission report Deaths During or Following Police Contact: Statistics for England and Wales 2015/16 that in the last financial year, 200 persons died following contact with the police. All of those deaths would have been subject to an inquest. Of course, the financial implications of this amendment are but one of the matters noble Lords will wish to take into consideration, but we cannot be blind to the impact on the public purse.

However, I come back to my core objection to this amendment: that this is neither the time nor the place to pursue this matter. As I have said, the Government are firmly of the view that we should wait for Bishop Jones’s report and then determine, in the light of that, the most appropriate way forward. I hope the noble Lord, Lord Rosser, will accept that this is the proper way to proceed and agree—

--- Later in debate ---

[Lord Rosser]

I thank all noble Lords who have spoken in this debate and will just make one or two comments on what the Minister had to say in reply. What is recorded in Hansard is that,

“the former Home Secretary commissioned Bishop James Jones to compile a report on the experiences of the Hillsborough families”.

It does not say there that he has been asked to compile a report on the much wider issue raised in this amendment. As far as the timescale is concerned, I can only repeat what the Government said in Committee not so long ago, on 2 November, which is that Bishop Jones has only reached the stage where:

“He is considering the terms of reference for his review with the families”—

presumably the Hillsborough families—

“and intends to publish them shortly”.

He must be some way from that, if it is going to be a detailed report looking at the situation as a whole, rather than just the Hillsborough situation. Certainly, if there is a suggestion that he is going to publish something within a very few months, it would suggest very much that it is going to be concentrated on what happened at Hillsborough and the experience of the Hillsborough families, and not on the much wider issue covered in this amendment of representation for bereaved families at inquests generally where the police are legally represented. The issue of costs has been raised by the Government, which must raise some further doubts. I refer again to what the Government said on 2 November, which is that the Government wish to,

“put on record that these amendments would place a significant financial burden on the Secretary of State … The cost of the legal representation for the 103 families at the fresh inquest into Hillsborough amounted to £63.6 million”.—[Official Report, 2/11/16; cols. 757-59.]

The Government incurred that cost without the terms of this amendment being in operation. But it is quite clear that cost is a major consideration as far as the Government are concerned, rather than the fundamental issue of principle—parity of funding—which is addressed in the amendment. We also of course have not had any commitment from the Government in principle to what is in this amendment, and there is a reference as well to it being considered in due course.

I will come on to the comments that were made. Because there has been no indication that we can bring this back at Third Reading, I believe that we are no longer in a position where we can come back then with an amendment to our amendment. But if the issue is that this should be decided by a coroner or through some sort of judicial decision, rather than by the police and crime commissioner, and if the Government were prepared to give a commitment to bring along an amendment of that nature, I am quite sure that we would support it. The issue for us is not whether it is the police and crime commissioner making the recommendation. The gut issue here is parity of support for bereaved families at inquests where the police are legally represented. Since I do not think I have had a sufficient response from the Government, I beg leave—

[Lord Mackay of Clashfern]

Before the noble Lord sits down, I draw attention to the fact that if in due course this amendment were passed in a form that specified the coroner, there would still be the question of the date on which it would come into force. It would certainly be possible for the Government, if they thought it right, to wait for Bishop Jones’s report before bringing it into force. On the other hand, as we know, there are occasions on which, if the Government think they have good reason, they sometimes do not bring things that they have an option to postpone into effect at all. So it would certainly be possible to make it clear that that is what could happen here.

I hope the Government will agree that the noble Lord can bring this back without agreeing a commitment as to what should happen. It would be extremely wise for this House to have the chance to consider the amendment with the coroner in instead of the police and crime commissioner, and I hope my noble friend’s discretion is sufficient to allow her to say that the Government would not object to the amendment being brought back. Ultimately it is the House rather than any party that decides whether or not an amendment can be brought back, but I hope we would not need to go into that kind of procedure here if the Government were kind enough to say that if the amendment came forward in the shape that I am suggesting, and which the noble Lord has made clear he would be happy with, it could be considered. That would not mean a commitment by the Government to accept such an amendment, but at least it could be considered at Third Reading.

[Lord Rosser]

I can only invite the Minister to say whether the Government will indicate that they accept that I can bring this matter back at Third Reading. Having heard the views of the House, I would certainly wish to do so in the kind of terms that the House has indicated might make the amendment more acceptable. But I do not think I can do that if I am not going to get any indication from the Minister that the Government will accept that I can bring it back at Third Reading. I think I am seeing her shake her head, which I take it means that the Government will not accept it and indeed are not prepared to say anything that would enable me to bring it back. I believe that I have understood the Minister correctly, and in the light of that I really have no option but to seek to test the opinion of the House.

Trade Union Bill

Lord Mackay of Clashfern Excerpts

Wednesday 16th March 2016 Lords Chamber

[Baroness Neville-Rolfe]

My Lords, it may be that I should have grouped today’s amendments, but they are all obviously different and reflect an important debate that we had in Committee. They show that we are moving forward.

We have been very clear throughout the passage of the Bill that we want to ensure that any industrial action is based on a current mandate on which union members have recently voted. That is our manifesto commitment. We have been equally clear that we want disputes to be resolved by negotiation, before the matter results in industrial action. We proposed a period of four months for the ballot mandate to balance our objective of, on the one hand, ensuring that strikes cannot be called on the basis of ballots conducted years before and, on the other, allowing sufficient time for constructive dialogue to continue.

I listened very carefully during the Committee’s scrutiny of this clause. Two points came across clearly, which I indicated at the time that I should reflect on. The first was about the effect which a period of just four months would have on the parties’ ability to continue negotiating. The second was about extending the ballot mandate, if that is what the employer and trade union agreed. I listened closely during that earlier scrutiny and have given careful consideration to the points raised. In order to underline just how committed the Government are to providing proper opportunity for negotiations to continue, we are making a substantial concession by extending the time period for the ballot mandate from four to six months. A mandate that lasts six months provides plenty of time for a trade dispute to be resolved while ensuring that the mandate does not become stale. We are also allowing the union and the employer to agree between them an extension of this for a further period, up to a maximum of three months. We accept that this may be particularly useful where negotiations are progressing well and a resolution of a dispute is in sight. It may avert a situation where a union might otherwise feel that it has no choice but to take industrial action before the mandate expires.

We have thought carefully about how long the overall mandate, including the extension, should be. We believe that the employer and union should not be able to agree an indefinite extension. We need to ensure that, after an appropriate period, a union is required to seek the views of its members about whether to continue with industrial action. We believe that, overall, nine months is more than sufficient. This takes account of the need to balance the interests of not just employers and unions but the wider public, who may be affected by impending industrial action. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, I am very glad that the Government have thought it right to do this. I felt strongly that to constrain too strongly the time for which the ballot has authority was dangerous from the point of view of prejudicing resulting negotiations, which might take some time. In particular, I thought that to make the end independent of the view of the employer was unnecessary and really rather dangerous. I am very happy that the Government have moved this period up, from four to six months, and allowed the ballot’s authority to continue if the employer agrees to a further three months. This seems a very practical solution to a quite important problem.

[Lord Scott of Foscote (CB)]

My Lords, I rise simply to suggest that, where an important agreement, as this may be, is concerned, it ought to be an agreement in writing.

Electoral Registration and Administration Act 2013 (Transitional Provisions) Order 2015

Lord Mackay of Clashfern Excerpts

Tuesday 27th October 2015 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I declare an interest as an elected councillor and chair of the registration working party in Lewisham. Previous to that, I was a member of the Electoral Commission.

I am speaking both in support of my amendment and in support of the Motion moved by the noble Lord, Lord Tyler, and I strongly endorse the points he made today. The Labour Party, the Conservative Party, the Liberal Democrats and, I am sure, other parties as well are in favour of individual electoral registration. Originally, the last Labour Government put it on the Statute Book and the coalition Government brought the process forward by bringing into law the Electoral Registration and Administration Act 2013. As the noble Lord, Lord Tyler, has said, the Act, which is less than two years old, has a transition period aimed at full implementation of IER by December 2016. The Government want to scrap that and bring forward the end of the transition period to December 2015, a mere six weeks away.

Let us be clear: the Government are making a rash decision here—a decision that is not supported by the Electoral Commission, which has urged Peers to vote for the Motion in the name of the noble Lord, Lord Tyler. My amendment just incorporates the fact that what the Government are doing goes against the commission’s advice. The commission did not take the decision lightly to recommend that we vote for the Motion in the name of the noble Lord, Lord Tyler. As the noble Lord explained, the commission was set up by Parliament 15 years ago and it gives independent, non-partisan advice to the Government and Parliament on issues concerning electoral registration, party finance and election matters. The commission includes experts in this field, who have been leading advocates for the introduction of IER almost from the day it was set up. They played a leading role in persuading the then Labour Government first to put it on the Statute Books. It was right to make those changes to ensure that our elections were secure.

The transition period is an important part of the full implementation of IER. It should ensure that we have a period of time when work can be done to make electoral registers both accurate and complete. The Government have not made a convincing case as to why this process should be shortened by one year. The Electoral Commission is saying that 1.9 million people are presently being retained on the electoral register who have not been matched. I accept that that figure might go down, but there are still too many people who have not been matched. If the Government bring forward the deadline, we could have up to 1.9 million people taken off the register on 1 December, and that is simply not democratic.

It is worth pointing out that the commission has published research showing that we actually have an under-registration problem in Great Britain, not an overregistration problem. It is also interesting to note the difference between various groups being registered or not registered to vote. The commission produced figures showing that about 4.6% of people over 65 are not registered to vote. That figures leaps to 29.8% for people aged 20 to 24. The highest proportion of unregistered voters is among 16 and 17 year-old attainers, of whom 49% are not registered to vote. Only 6.4% of home owners are not registered to vote, while the figure is 36.4% for those living in rented accommodation. Of the unemployed, 23.6% are not registered to vote. These figures show the wide disparity of registration figures between groups, and that should be of grave concern to us all.

The Electoral Commission is clear that taking the decision before the outcome of the annual canvass means that the decision that the Government are proposing to take is risky because they are acting without reliable information, as we have heard today, on how many redundant entries there will be, how many entries will be removed and how many eligible entries will go back on again for the elections in May 2016—we have massive elections at that time, as we all know. This is not appropriate for the Government, and it is most regrettable. By retaining the cut-off date to the one which we have agreed means we are giving time to the EROs—the professionals—to do more work on improving the accuracy and completeness of the register. I do not think the Government have made a compelling case for bringing forward by one year the date to remove people from the register. I hope the House rejects their proposals today. I beg to move.

[Lord Mackay of Clashfern (Con)]

I have tried to understand the reports of the Electoral Commission published before this and have just seen the one that came out today—I am not sure what the method of transmission to people was but that does not matter. I am concerned that the commission said repeatedly in its advice, as I understood it, that by bringing forward the date of termination of the transition period there is a potential benefit to the accuracy of the register. I have tried to understand it and read the detail. Could the noble Lord, Lord Kennedy, help me on what that amounts to?

[Lord Kennedy of Southwark]

All I can say to the noble and learned Lord is that the commission briefing says there is a benefit of accuracy but also, of course, a risk to completeness—which it ranks as of equal importance.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, this has been an excellent debate. I think the noble Lord, Lord Tyler, is going to accept my amendment, so I am grateful to him for that. The Minister has not made a convincing case to the House this afternoon. The Government also failed to persuade the Electoral Commission, an independent body set up by Parliament which is expert in this field, to which a number of noble Lords referred, particularly the noble Lord, Lord Alton.

As has been said, the Electoral Commission urged the House to support the Motion in the name of the noble Lord, Lord Tyler. My noble friend Lord Wills made a powerful contribution, particularly pointing out that the Electoral Commission recommended the use of ID cards at polling stations. The Government have not moved on that and they should do so if they have concerns about electoral fraud.

The noble Lords, Lord Empey and Lord Lexden, made reference to the Northern Ireland schools initiative. I agree that it is a very good initiative and I have repeatedly said from the Dispatch Box that the Government should introduce it in Great Britain, but to no avail so far. I know that EROs target groups, and supporting the Motion today will be giving more time to EROs to do more work on the register.

The noble Lord, Lord Rennard, made an excellent point about the completeness of the register, which underlines the underregistration problem we have in Great Britain today. It is important to note that a cut-off date of 1 December 2016 was in a government amendment. It has been mentioned here before and nothing has changed since then. No one suggested here today that it is so successful that we can take a year off the period. From my time on the Electoral Commission, I can assure the noble Lord, Lord Cormack, that it worked with great determination on IER. It was the champion initially and worked really hard on completeness. When it says that this is a risk, we need to look at that very carefully.

My noble friend Lady McDonagh made an excellent contribution, highlighting the data-matching issues that have been experienced across the country. The case has not been made today.

[Lord Mackay of Clashfern]

I wonder whether the noble Lord can help on a question I asked earlier. I am obliged to him for his reference in the amendment to the Electoral Commission’s view, because it made me interested to see what it had said. I understand the second part perfectly—there is no question about why it thinks there is a degree of risk to completion—but I do not understand how shortening the transition period contributes to the accuracy of the register.

[Lord Kennedy of Southwark]

We discussed this point earlier. The commission looked at all these factors—risk, accuracy and completeness—and it still says in its paper that,

“taking this decision before the outcome of the annual canvass means the Government has acted without reliable information”.

It looked at all the figures and decided that if Government go ahead with this, they will be making the wrong decision.

Charities (Protection and Social Investment) Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 20th July 2015 Lords Chamber

[Lord Hope of Craighead]

My Lords, I absolutely understand the force of the points that have been made by the noble Lord opposite, and particularly the impressive speech from the noble Lord, Lord Kerslake, but I wonder whether the mechanism that this amendment seeks to use to solve the social problems that have been talked about is the right one. It would put a duty on the Charity Commission and expresses that duty in the widest possible terms without qualifying the charities being talked about, the nature of the compulsion that they face or what the assets are that are sought to be disposed of. It is not a targeted amendment in the sense of dealing specifically with the point about the right to buy and interference with the assets of charities in the social housing field; it is entirely general.

I have no remit for the Charity Commission, and I am not advocating anything on its behalf on instructions, but one advantage of the procedure that was used before the Bill was introduced into this House was the pre-legislative scrutiny through the Joint Committee. This issue was not raised in the course of the Joint Committee’s proceedings. That is a pity because among those who gave evidence were representatives of the Charity Commission itself, who had an opportunity to comment on the various amendments to the Bill that are being proposed and to suggest improvements, as indeed we are discussing first thing at this stage.

I do not know what the commission’s position is on this clause but I suspect that it would be extremely concerned about being faced with a duty in these very broad terms and its ability, given the resources that it has to deploy right across the charitable sector, to do what the amendment requires. So, without commenting on the underlying substance, I respectfully suggest that this is not the right mechanism, and that the wording of this amendment is certainly far too wide to address the particular problem that has been discussed so far.

[Lord Mackay of Clashfern (Con)]

My Lords, I will raise a question in relation to this amendment which has nothing to do, primarily, with the issue that has been raised, and which will come forward in another Bill. One of the problems for charities is that from time to time they are subject to compulsory acquisition. For example, if a charity owns property which is required for a road or something of that sort, the authority that has compulsory powers in relation to that will be able to acquire it. I am not clear that this amendment is consistent with that possibility, because the Charity Commissioners would find it impossible to block a compulsory acquisition if it was made within the terms of the particular statute which authorises the acquisition.

As your Lordships will know, there are many statutes which authorise compulsory acquisition. However, an important aspect of compulsory acquisition is that the acquiring authority has to pay the full value of what is required. I do not know what the Government’s proposals will be in relation to this other matter, but all I can say at the moment is that the amendment does not seem properly to recognise the possibility of charitable property being acquired by compulsory acquisition under one of the compulsory acquisition statutes. I would be glad if the noble Baroness would deal with that.

[Lord Best (CB)]

My Lords, I will raise a somewhat technocratic reason why the amendment could be very important. If government compels charitable housing associations to sell their assets—even if they are reimbursed by the Government—and then tells them how to spend the money they receive from selling their assets, these charities may become classified by the Office for National Statistics as “public bodies”. If government takes away the autonomy of charities and assumes the role of their boards or trustees in crucial decision-making, a line may be crossed. Already, government heavily regulates the activities of charitable housing associations and determines their income by instructing them on the rents that they must charge. In the event that government also tells them when to dispose of their assets and at what price, and subsequently instructs them on how to use the money, intentionally or not, the charitable housing associations could be deemed by the independent Office for National Statistics as public bodies.

Does that matter? I am afraid that it matters a lot. At present, only the grants these bodies receive from government count as public expenditure, so their borrowing from banks, building societies, et cetera, adds nothing to government debt. All that changes if housing associations are classified as public bodies. The £60 billion they have already borrowed would be added to the national debt and all their new borrowing—around £4 billion this year—would be added to the Government’s annual deficit. So if compelling housing associations to sell their homes—and compelling them to use the proceeds, perhaps to replace the ones they have sold—leads to these bodies being classified as public bodies, government finances will take a huge hit. Government would then feel obliged to curtail drastically further borrowing by housing associations, which would stop them delivering the affordable homes that the nation so clearly needs. There are other reasons for not pursuing the latest right to buy sales policy, but this may be the one that causes the Treasury the greatest concern. This amendment would prevent government making a mistake that it could later regret deeply.