Deregulation Bill

Lord Sharkey Excerpts

Tuesday 21st October 2014 Lords Chamber

I am asking the Minister to think about this following the debate. I ask him to go back and talk to Oliver and say, “I think we ought to have another think about this on the basis of the evidence that we’ve now got but which we didn’t have when we, the Government, responded to the Joint Committee”. I end by expressing my opposition to the clause standing part of the Bill.

[Lord Sharkey (LD)]

My Lords, as the noble Lord, Lord Rooker, said, the Joint Committee on the draft Bill, of which I was a member, received a large amount of evidence on this clause. The effect of Clause 2 is to amend the Equality Act 2010 to remove the power of employment tribunals to make recommendations to employers in cases where there has been a finding of unlawful discrimination, harassment or victimisation, and where the successful claimant no longer works for the company.

In such cases, the claimant has redress. His former fellow workers may still be stuck with the conditions that led to the discrimination, harassment or victimisation of their former colleague, and that is in most cases. In 2013, only 16% of claimants in discrimination cases were still working for the employers against whom they made the claim. That means that in 84% of discrimination cases, the tribunal would no longer have the power to make recommendations to employers to take steps to improve their employment practices so as to avoid similar discrimination against their other employees.

Broadly speaking, evidence from business interests supported the clause and other groups opposed it. Business spoke in support of Clause 2, chiefly because it believed the wider recommendations to be beyond the information and expertise of the panel or that it was unnecessary because,

“the reputational risk of a wider recommendation is something an employer would take into account when making a decision whether or not to settle out of court”,

which is slightly grubby reasoning. Those who opposed the clause did so chiefly on the grounds that the system had been in operation for too short a time to provide any clear evidence about its merit or otherwise. The JCHR was opposed to the clause as was, perhaps not surprisingly, the EHRC.

At the time of our report, as the noble Lord, Lord Rooker, said, there have been 28 such tribunal wider recommendations and I understand that in 2013 there was a total of 30. That may seem like a small number in absolute terms, but it represents one in every 12 cases in 2013 where these kinds of recommendations were made.

In their response to the Joint Committee’s report on Clause 2, the Government held to the view that the clause should remain and they disagreed that the removal of the tribunal’s power of recommendations was either unnecessary or punitive. The arguments that they advanced were first that there was a clear pattern visible in the existing recommendations; namely that they focused on training for management or updating the diversity policy, which is hardly a surprise. They asserted in a magnificently unproven and probably unprovable way that it is unlikely that this pattern will change going forward or that much more could be learnt about the use of the power by reviewing it and allowing it to run on for several more years. That is of course simply a non-evidenced assertion. More importantly, there is no evidence that it can be true. The sample is simply too small.

The Government’s second argument was based, as the noble Lord, Lord Rooker, pointed out, on a survey of employers—all 28, presumably, who then received wider recommendations because of breaking the law. Only eight responded. Six of these were from the private sector and all six had implemented the wider recommendations with an average cost of £2,000. The Government were silent about the two public sector respondents. I am at a loss to understand why the Government think that this is an argument in favour of removing the power to make wider recommendations. The response level is so low that it probably proves nothing at all, but if it proves anything then surely it shows the merit of these recommendations. It shows why the power to make them should be retained.

The Minister and his team have been helpful in providing additional briefing on the clauses that we will debate today as a Committee of the whole House. It included briefing on Clause 2 and I thank the Minister and his team for that. In a briefing note on the clause, the Government make four points in defence of the removal of the power to make wider recommendations. First, there are better and less burdensome ways to achieve the aim of helping employers comply with anti-discrimination. The response points to government-led workshops although it does not say how many and says that these workshops generated positive feedback from small business owners to the simple compliance message of “Do not discriminate”. That is not hard evidence, and not really evidence of any kind. How many workshops were there? How many small businesses? What positive feedback was there on agreement with the message that you should not discriminate? What follow-up was there to see if the workshops produced behavioural change?

The Government also point to the fact, which I have noted already, that employers think that the power is not needed. That is surely not a surprise to anyone. Nor does it amount on its own to a reason for abolition.

The Government’s third argument in defence of Clause 2 is essentially that the power added little and was not necessary. They go on to repeat that the cost of compliance with wider recommendations averaged £2,000. Presumably this is based on the six companies that actually replied to the Government. If that argues for anything at all, it is for retaining the power, if that is all it costs to put right discriminatory practices in a company.

Finally, the Government point out that any wider recommendations are unenforceable under the 2010 Act and are therefore of limited effect. In their briefing paper, the Government go on to say about the removal of the power to make wider recommendations that it will not stop tribunals from making observations in their judgments about how an employer might improve their practice to avoid breaching the Equality Act in the future. In other words, removing Clause 2 means that tribunals will not be able to make unenforceable recommendations any longer, but they will still be able to make unenforceable observations with exactly the same effect. Let me be clear about this: we are debating the removal of a power to make unenforceable recommendations and leaving in place the power to make exactly the same comments as unenforceable observations. This really does not seem to be sensible or a sensible use of legislative time.

The power to make wider recommendations is in its infancy. There is no evidence that it causes harm. In fact, there is no evidence either way because it is much too soon for that. There is no evidence to suggest that abolition is needed, appropriate or necessary. As the TUC said in giving evidence to the Joint Committee, it seems ridiculous to get rid of a piece of legislation that affects only employers who have broken the law. This is not sweeping through a whole swathe of businesses that are doing the right thing. Where businesses have broken the law, they quite often find it useful to have the tribunal help them get things right. But what seems even more ridiculous is that by the Government’s own admission, the removal of the power to make wider unenforceable recommendations will leave intact the power to make exactly the same recommendations as observations. There really is no need for this clause.

[Lord Deben]

My Lords, much of the discussion on health and safety has been around the issues of believed or real overregulation. I have already committed myself to the view that there is a great deal of overregulation which it is right to stop and that there is too much regulation which has caused real and proper anger. However, the Government have to be careful, when it comes to deregulation, not to fall into the same trap; in other words, for the deregulation efforts to look like an additional activity, as if to say, “Let us see how many things we can claim we have got rid of”. I must say, very delicately, that that is what this looks like.

Before my noble friend Lord Sharkey made his point, I was going to put it in the form of a question. I was going to ask what sanctions there are against a tribunal that decides that, irrespective of the fact that it does not have the power to do so, it is going to make a comment. I suspect that there are no such sanctions, which means that the tribunal can in fact say what it can say under this power that is being removed. It might be argued, when the power was originally put forward three years ago, that it would have been sensible to have had some kind of recall procedure to make sure that when the recommendations had been made, someone would listen to them. That might have been argued, but it was not.

It seems that we have here a power that is merely a statement of what is a power in any case. It is not onerous. So we are spending time removing a power that exists, whether you have it or not. Even so, it has a purpose, which is that tribunals ought to think through not just the case in front of them, but how the case fits into a pattern of behaviour or a way in which a particular company appears to approach certain things. It does not do any harm to say to the company, “Look, you’re guilty in this case but don’t you think it would be more sensible if you had somebody in charge of this, or if you recognised that in that particular factory in that particular place this was likely to occur?”. You can imagine the sorts of points that might reasonably be made by a reasonable tribunal.

If I may say so, this is so unimportant a change that if it is pushed to a Division, I shall be happy to support the Government on the basis that it does not mean anything. But I ought to say to the Government that it is not sensible to bring forward this proposal in these circumstances merely to add one to the number of deregulation activities that have taken place. I say that to my noble friend because I believe in deregulation and want to get rid of a whole lot of stuff that is not necessary and is telling people how to lead their lives, which they can do perfectly well themselves. But let us not bring that into disrepute by having the kind of discussion that we are, unnecessarily, having today and which I have, no doubt unnecessarily, prolonged.

Scottish Referendum

Lord Sharkey Excerpts

Monday 13th October 2014 Lords Chamber

Asked by

[Lord Sharkey]

To ask Her Majesty’s Government what is their assessment of the main implications of the Scottish referendum for the rest of the United Kingdom.

[Lord Wallace of Saltaire (LD)]

My Lords, I am pleased that people in Scotland have decided to stay in the United Kingdom. A process and timetable have been announced to deliver the commitments on further devolution to Scotland made by the three pro-UK parties; further powers are being devolved to Wales; work continues to ensure that the devolved institutions in Northern Ireland function effectively; and a committee has been established to consider governance arrangements for England.

[Lord Sharkey (LD)]

Can the Minister confirm, preferably by just saying “yes”, that further Scottish devolution will not be linked to the question of English votes for English laws? Can he confirm that a constitutional convention will be considered by the Cabinet committee he mentioned, looking into possible solutions to the West Lothian question?

[Lord Wallace of Saltaire]

My Lords, a constitutional convention is one of the many ideas that clearly will be discussed. We need to take these things as fast as possible but not in a hurried way. It is a very difficult balance. I can assure my noble friend that the transfer of powers to Scotland will not be held to ransom by any particular reservations.

Deregulation Bill

Lord Sharkey Excerpts

Monday 7th July 2014 Lords Chamber

[Lord Sharkey (LD)]

My Lords, I, too, had the privilege of being a member of the Joint Committee that scrutinised the Bill in draft form. As it turns out, it was very much in draft form. As many noble Lords have said, the Bill is significantly different from the draft Bill. It is inevitable that such a Christmas tree of a Bill will grow as it progresses, but that fact raises significant questions about the role of pre-legislative scrutiny.

When the draft Bill came to us, it was 240 pages long. It was described by Ken Clarke as,

“a slight mountain of a Bill”.

It covered 10 ministerial departments and four agencies. It made changes to more than 70 underlying Acts. Some of these Acts made changes to previous Acts. The committee was given 12 weeks to scrutinise all this. We thought this was inadequate, and we said so. We would have pressed the point more strongly had we known that the Bill was to be carried over. We found this out only when Oliver Letwin, in evidence to us, mentioned it in passing. This seems entirely unsatisfactory. Perhaps when the Minister replies he could commit to a more open discussion with pre-legislative scrutiny committees in future on the question of the time necessary for thorough scrutiny. As it was, with this Bill we had no choice but to restrict ourselves to certain areas and to leave others entirely unscrutinised.

I also ask the Minister to think about helping the process of scrutiny in another way. In a complex Bill such as this, it would help greatly for references to underlying legislation to be given a hypertext link. That is a lot easier than having 70 other Bills open before you. It would have helped your Lordships’ House to have those hyperlinks in the text of the Bill. Could I trust the Minister to commit to doing that well before Committee, which I understand will start after Recess?

As the noble Lord, Lord Rooker, has mentioned, the original draft of the Bill proposed giving Henry VIII powers to disapply legislation. The Joint Committee recommended that these powers be removed. I am very glad that the Government have agreed to do that. In the course of our inquiry into these and similar proposals in the Bill, however, it seemed to us that, as the noble Lord, Lord Rooker, has also said, there was an unhelpful tension between the Government and the Law Commission. The draft Bill contains a schedule containing legislation to be disapplied by order. The Government removed the order power but retained the schedule. It is now Schedule 20 to the Bill. This schedule repeals parts of 28 separate Acts. These range from the Nuclear Industry (Finance) Act 1977 through the Breeding of Dogs Act 1973 to the Town Police Clauses Act 1847. Clause 82, which asserts that all this legislation is no longer of any practical use, will repeal about 119 clauses. Some of these clauses are whole Acts themselves.

Does anyone seriously believe that Parliament will subject these 119 clauses to close scrutiny—or, indeed, any scrutiny at all—as the Bill passes through its stages? The Joint Committee’s report found that the Law Commission was better placed to give detailed scrutiny to this kind of allegedly obsolete statute. We stated:

“The skills, research and consultation needed to ensure that Parliament, external organisations and the public can be satisfied that a piece of legislation is genuinely obsolete strongly suggest that the Law Commissions are better placed to conduct that work than Government departments. Added to which, the independence of the Law Commissions from Government and their track record since 1965 reinforce the trust that Parliament places in the Law Commissions”.

This is a key point. Whom should we trust to say that legislation is obsolete and may be safely repealed—government departments or the Law Commission? I am in no doubt that the answer should be the Law Commissions. We recommended that Schedule 20 items be referred to the Law Commission for a safety check. We acknowledged that, to meet the growing demand, the Law Commission would need additional resource. We also agreed with the Law Commission’s own proposals for more frequent and responsive SLR Bills. We recommended that the Government consider making such Bills annual, as my noble friend Lord Naseby said.

The Government did not sound very enthusiastic about any of this in their response. They disagreed with our recommendation to give more resource to the Law Commissions—and did not give a convincing reason why—and so the mass repeal proposed in Clause 81 and Schedule 20 remains part of the Bill. I suspect that we will discuss that further as the Bill progresses. The case for subjecting all those proposed repeals to the Law Commission for a safety check remains very strong, as does the case for an annual SLR Bill.

However, there are other controversial matters in the Bill; I will point to just some of those that were investigated by the Joint Committee. We were concerned about the level of consultation undertaken by the Government in preparation for this very complex and wide-ranging Bill. The original Bill had 61 relevant clauses in it, excluding recitations, titles and so on. Only 10 of those clauses were subject to formal consultation, a further 18 had had some kind of consultation under the Red Tape Challenge scheme, and the rest had no formal consultation at all. That raised two questions: was that an appropriate level of consultation, and was it appropriate to rely on the Red Tape Challenge as a means of consultation?

The Joint Committee concluded that in some cases consultation had been insufficient. We were also alarmed by Oliver Letwin’s assertion that pre-legislative scrutiny was part of the Government’s consultation process. It is not. The Government should not rely—as they apparently were—on Parliament to consult on their behalf, but should undertake proper consultation themselves. I wonder whether inclusion in the Red Tape Challenge amounts to proper consultation. It is not clear that it should, and I would be interested to hear the Minister speak to the robustness of the Red Tape Challenge process. In the event, the Government agreed to remove certain clauses pending further consultation and, in particular, to consult further—which is important—on the authorisation of insolvency practitioners.

The committee welcomed the Government’s reasons, when it came to it, for proposing a duty on regulators to have regard in broad terms to “economic growth”. We discussed at some length with our witnesses and among ourselves the question of measuring or judging the success of that requirement. That was an important consideration; we need to be able to assess the effect of any piece of legislation. However, we acknowledged that with the growth objective, that would be difficult. We understood the difficulties involved in attempts to quantify. Nevertheless, we thought that the Government should consider by what criteria the impact of the duty could be demonstrated, and welcomed the Minister’s commitment to reflect further. I am not sure that the further reflection—if that is what it was—in the Government’s response to our report was terribly helpful. It was all rather vague and woolly. That is an important and unresolved issue, to which I expect to return at a later stage.

Also unresolved is the consequence of the application of the growth duty to the EHRC. The commission spoke to us about the,

“intrinsic incompatibility between the growth duty and the duty to promote and protect human rights”.

That incompatibility would risk the “A” status of the commission and the British candidacy on the UN Human Rights Council. The JCHR agreed with this assessment. In their response to our report the Government recognised the need to avoid jeopardising the international standing of the EHRC. They said that they would consider this issue further with the EHRC before finalising the list of regulators to whom the growth duty will apply. In the helpful draft guidance notes I received from the Minister this morning, there was no list and no mention of the issue in the covering letter. Can the Minister tell the House what progress is being made in discussion of whether that growth duty will apply to the EHRC?

There are also some other committee recommendations where the Government response seems to require further discussion. I refer in particular to Clause 2, which removes the employment tribunal’s power to make wider recommendations, to Clause 43, which deals with household waste decriminalisation, and to Clause 70, which deals with gangmasters. I am sure that the list of clauses your Lordships will want to discuss in detail will be much longer than that, and I look forward to those discussions.

The purpose of the Bill is a very good one. It is a very welcome Bill and contains good things. The provisions for apprenticeships and their funding in Clauses 3, 4 and 5 are especially welcome, as is the whole part on “Alcohol and entertainment”. This grew from one rather lonely clause in the draft Bill on the exhibition of films in community premises to the larger-scale liberalisation for local community events.

That part also contains, in Clauses 59 and 60, provisions for review of the penalties for non-payment of the BBC licence fee and powers to decriminalise such non-payment. I welcome the opportunity that gives us to discuss how to balance protection of the BBC’s revenue with the importance of not sending people to prison for non-payment of the licence fee. However, I would have welcomed it even more had we been discussing this in the context of charter renewal.

Finally, I thank the noble Lord, Lord Rooker, for his outstanding chairmanship of our Joint Committee. I would like to thank our truly excellent clerks, Christine Salmon Percival and Geraldine Alexander, for their invaluable work.