Ministerial Appointments: Vetting and Managing Conflicts of Interest

Viscount Hailsham Excerpts

Tuesday 24th January 2023 Lords Chamber

[The Minister of State, Cabinet Office (Baroness Neville- Rolfe) (Con)]

My Lords, there are established procedures for the appointment of Ministers, and by Ministers, and these are followed. This was the purport of the question we are replying to, and we need to allow the process to run its course. As the noble Baroness suggests, the Prime Minister has appointed Sir Laurie Magnus, who is the independent adviser on Ministers’ interests. As I said when I answered questions last year, the Prime Minister was then moving quickly to appoint the independent adviser. The terms of reference will give the independent adviser the opportunity to look into what he thinks needs to be looked into—having a look at the issues that have been raised and speculated on—and we have made clear that anyone in the Government should help the independent adviser with that process. On the point about the texts, the Information Commissioner has looked at that. He concluded his investigation on 18 January this year—so, last week—and he did not require any steps to be taken. He considered that BEIS had conducted sufficient searches for the relevant information.

[Viscount Hailsham (Con)]

My Lords, may I suggest to my noble friend that any public concern about ministerial interests will be greatly alleviated if the independent adviser could, of his own initiative, institute investigations?

[Baroness Neville-Rolfe (Con)]

The independent adviser, as my noble friend suggests, is appointed by the Prime Minister and it his constitutional position to be the ultimate arbiter of the Ministerial Code, and to decide whether a breach of the code has occurred upon the advice of the independent adviser. So it makes sense for the Prime Minister to be the ultimate decision-maker, but, of course, we have appointed Sir Laurie Magnus to take on this role and to look extremely carefully at the issues that have arisen and been reported on this week.

Independent Adviser on Ministers’ Interests

Viscount Hailsham Excerpts

Thursday 16th June 2022 Lords Chamber

[Lord True (Con)]

My Lords, it would depend on who the person was and whether they were qualified to perform the important role of an independent adviser.

[Viscount Hailsham (Con)]

My Lords, the Prime Minister will find it very difficult to recruit an independent adviser unless he agrees to at least three conditions. First, the independent adviser should have a wholly unfettered right to instigate investigations. Secondly, the report should be laid before Parliament in an unredacted form unless the independent adviser has previously agreed otherwise. Lastly, if the independent adviser recommends, the matter should be debated on the Floor of the House.

[Lord True (Con)]

My Lords, my noble friend makes interesting suggestions, as he always does. The recent changes have potentially very much strengthened the role of the independent adviser. On the role of the Prime Minister, it was made very clear again this morning by my right honourable friend the Minister for the Cabinet Office and, as I said, in the House previously, that normally the Prime Minister would accede. The exception referred to in the House is national security, which would be in certain cases a reasonable exception.

Border Checks on Imported Goods: New IT Systems

Viscount Hailsham Excerpts

Wednesday 25th May 2022 Lords Chamber

[Lord True (Con)]

My Lords, there were a number of questions there. My right honourable friend has decided that we hope to accelerate to the end of 2023 the move to a new regime. In that light, a decision was taken to continue with the present system, with the changes he has announced. As for the ports, I recognise what the noble Baroness said. We are aware that ports will have questions about the decision, and we will certainly be working with them to understand the implications. However, it is important that we invest in a more mechanised border, and that is our objective: a fully modern border, the most modern in the world, as soon as possible.

[Viscount Hailsham (Con)]

My Lords, on the matter of border checks, is my noble friend aware that those boarding the Eurostar at St Pancras have to pass through two passport controls separated by a few yards—the United Kingdom one and the French one? Is it not possible to have a single passport control, or is this one of the hitherto unidentified benefits of Brexit?

[Lord True (Con)]

My Lords, I fear I have not had the pleasure of travelling on Eurostar lately. I will take up my noble friend’s comments with the appropriate authorities and provide him with an answer.

Elections Bill

Viscount Hailsham Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

[Lord Judge (CB)]

My Lords—oh dear, I am sorry your Lordships are all departing. Maybe the Conservatives who are departing do not want to hear what I have to say.

[Viscount Hailsham (Con)]

No, no, we are here.

[Lord Judge (CB)]

It is a very strange thing but, quite by accident—I promise it is by accident—I happen to have my copy of the Bill open at a part I have not really studied, called “Undue Influence”. Suddenly I find myself thinking, “What a very good thing to prevent that happening in this Bill.”

I have addressed your Lordships on a number of occasions about the Bill, particularly these clauses, including Clause 15, which we are discussing now. Noble Lords have listened with patience and courtesy and I have listened to the Minister with great patience. I regret that I am unconvinced by what he has said in the House so I intend to seek the opinion of the House at the end of this debate, but I intend to be brief.

I really do not think that anyone in your Lordships’ House can have the slightest doubt about the constitutional imperative that the Electoral Commission should be politically independent—independent of all political influence, whether direct or indirect, over the electoral process. If anyone disagrees with that, would they please say so? Any possibility that the party in government may have influence over the electoral process should be rejected.

Clauses 15 and 16 are repugnant to that foundational principle. They require the commission to have regard, at the very lowest, to pay close attention to the strategy and policy principles, and to follow the guidance, of the Government of the day. The importance of this feature of the language, which is tucked away but needs emphasis, is that the Electoral Commission will exercise its responsibilities in relation to the strategy and policy statement to enable Her Majesty’s Government to meet those priorities. If we rephrase that, it says that the Electoral Commission must enable the strategic and policy priorities of the Government to be met. That does not sound like independence. These are directive provisions. The word “duty” is used, imposing unequivocal statutory obligations on the commission that will govern—or, if not govern, will certainly influence —its own performance of its responsibility, and perhaps, dare I say it, is meant to influence it.

The commission, which everyone agrees—so far, at any rate—should be independent of government, is to be subject to a statutory duty to enable the Government to achieve their priorities: that is to say, their priorities, strategies and guidance to the extent that they relate to the electoral system. That is what the Bill says. This proposal came out of the blue without reference, consultation or, astonishingly—to me, at any rate, as someone who does not have a political background—for a proposal that has a constitutional impact, without cross-party discussion of any kind.

There is a problem with the Electoral Commission, as I have heard from all sides: it does not work as well as it should; it is inefficient; it does not do this, it does do this and it was wrong to do that. I have heard them all. Fine, but this proposal is not an answer to that problem. I simply ask us all to think: if this proposal had been included in the original Bill in 2000, outrage would have been expressed on all sides of the House of Commons. That is the problem.

--- Later in debate ---

[Lord Grocott (Lab)]

My Lords, we have heard three splendid speeches, and I intend to be very brief. I will pick up on a comment made by my noble friend Lord Blunkett, who is of course quite right that the public will not be interested or involved in the details of this legislation. But I have no doubt whatever that they have an acute sense of fairness. In Committee, I suggested that, for the Government to give instructions to the Electoral Commission is akin to a party in a football match—one of the two teams—giving instructions and guidance to the referee prior to the match. I do not think that anyone in Britain would think that that was a fair situation. I do not think that anyone could seriously contend that that is not what would happen if these two clauses become law.

What I find particularly persuasive is that this letter from the Electoral Commission, which many of us have, is, unsurprisingly, signed by every single member bar the Conservative nominee—I make no criticism of the fact that he did not sign it, but it was signed by everyone else. It argues against these two clauses. As they say,

“It is our firm and shared view that the introduction of a Strategy and Policy Statement – enabling the Government to guide the work of the Commission – is inconsistent with the role”


of an “independent electoral commission”. If anyone is wavering on this, just substitute the words “Conservative Party” for “Government”. It is nothing to be ashamed of, and I strongly support political parties; I have been in one all my life and I would go as far as to say that they are the lifeblood of our democracy. I do not regard as superior human beings those people who have not joined political parties. If we substitute the word “Government” with “Conservative Party”—because of course Governments consist, in the main, of one political party—it reads as follows: “It is our firm and shared view that the introduction of a Strategy and Policy Statement – enabling the Conservative Party to guide the work of the Commission – is inconsistent with the role of an independent electoral commission.” Is there anyone here who could possibly dispute that statement? Forgetting about the Government for a moment, for one political party in a contested situation—which is precisely what elections are, which is why they can get fraught and need adjudicators—to give an instruction to the referee, or the Electoral Commission in this case, is clearly inconsistent and unacceptable as part of our electoral procedures. I urge everyone to see the fairness of that argument and to support the amendment from the noble and learned Lord, Lord Judge.

[Viscount Hailsham (Con)]

My Lords, I rise very briefly to support the amendment put forward by the noble and learned Lord, which has, if I may say so, attracted very wide support on all Benches of this House.

Others have already identified some of the aspects of Clause 15 that are truly objectionable, so I will not go into any great detail, save to say that, on any view, the powers given to the Secretary of State are very extensive. They are, as has been said by a number of your Lordships, designed to make the commission an implementer of government policy. The requirement on the Government to consult is extraordinarily limited, and the obligation on the commission to report compliance will expose the commission to the cry “Enemies of the People”, as happened in 2016 when the judges held that Brexit required the consent of Parliament. I might remember, too, that the Lord Chancellor of the day did not push back on that criticism. I acknowledge that the substantive statement is subject to the affirmative resolution procedure, but I also point out that, in the House of Commons at least, that will be the subject of the most strenuous whipping. In any event, of course, the statutory instrument procedure is not subject to amendment.

I have been in public life for 40 years—not as long as my noble friend Lord Cormack, but perhaps long enough—and I have come to a very settled conclusion: if you give powers to the Executive or to officials, in time they are certain to be abused or misused. That will certainly happen. As my noble friend Lord Young of Cookham—I have known him for over 60 years—rightly pointed out, the present Prime Minister illegally thought to prorogue Parliament. I am told by reading the newspapers that, at this moment, the Government are thinking of simply abrogating the Northern Ireland protocol—a treaty obligation to which the Prime Minister signed up very recently and on which, at the time, he incorrectly stated that it did not create a hard border between Northern Ireland and the rest of the United Kingdom.

As has been rightly said, in particular by the noble Lord, Lord Grocott, election law is extraordinarily sensitive. I for one am not prepared to give powers to a Government that, if used, misused or abused, will certainly damage yet further the respect for our democratic institutions. It is for that reason that if, as I hope, the noble and learned Lord moves to test the opinion of the House, I shall support him.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I would like to join in on all these comments about the Prime Minister’s failings, but I just do not think there is time in this debate.

I support the noble and learned Lord, Lord Judge, and will obviously support the amendments, but before I speak to those specifically, I hope noble Lords will not mind if I speak briefly about what we are facing this week—and possibly next week—because the Government have created a legislative deadlock. This was not the fault of your Lordships’ House; it was the fault of the Government, and if this legislation is not passed in the next few days, it falls completely. I have no problem with that—I would like to see it all fall—but the fact is that that probably is not a position your Lordships’ House can take. However, we can obtain very significant concessions from the Government. They will not want to lose all these Bills, and this is an opportunity for us to throw out the worst bits of the legislation that we have all argued about over the past few months.

I make a plea to the Labour Front Bench and the Cross-Benchers that we maintain the maximum amount of toughness in the face of what the Government are trying to push through this House. We should not fumble this opportunity to improve Bills that we have tried to improve, only for almost all those amendments to be ripped out by the other place. So, I am looking forward to today. I have sat here and listened to the speeches with a real smile on my face; it has been wonderful.

Amendments 45 and 46 are a perfect example of why we should not back down. We have to insist that we will not pass the Bill if Clauses 15 and 16 remain in it. The Electoral Commission, as we have heard, said it best, and I agree. It says that the proposals are

“inconsistent with the role that an independent commission plays in a healthy democratic system.”

This Government are trying to reduce the amount of democracy we have in Britain, and that is a terrible failing for a democratically elected Government.

The Greens are very grateful to the noble and learned Lord, Lord Judge, for leading on these essential amendments. I am sure he is going to carry the House with him, and we will obviously vote for them again and again—as many times as it takes to force the Government to drop them or lose the Bill entirely.

Detainee Mistreatment and Rendition

Viscount Hailsham Excerpts

Tuesday 16th July 2019 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, given that this matter has been considered since at least July last year, and that we are to have a definitive Statement later this week, that must mean the Government know their position already. What is the procedural or substantive reason for not making a proper response to the Question before the House?

[Lord Young of Cookham]

Because I do not have it. My noble friend will know that there is a process to be gone through. The announcement yesterday was in response to an Urgent Question; it was not planned by the Government. The announcement planned by the Government will take place later this week, as announced by the Chancellor of the Duchy of Lancaster yesterday.

EU Referendum: Lessons Learned

Viscount Hailsham Excerpts

Monday 20th May 2019 Lords Chamber

[Lord Young of Cookham]

As the noble Lord will know, that is not the Government’s policy, nor would it be consistent with the decision of the electorate two years ago. To return to the first part of his question, I agree that we should have a debate. A good report on referendums was produced by the Constitution Unit at UCL, on which the noble and right reverend Lord, Lord Eames, sat, together with Jenny Watson, the chair of the Electoral Commission. There have been other reports on referendums, which I mentioned in my original reply. I agree wholeheartedly that we could have a useful debate. I am not in favour of a royal commission—we do not have time for that.

[Viscount Hailsham (Con)]

My Lords—

[Lord Tebbit (Con)]

My Lords—

[Viscount Hailsham]

My noble friend has referred to deadlock. Does he agree that the answer to that is to hold a further referendum?

[Lord Young of Cookham]

I think I heard the question of my noble friend Lord Hailsham more clearly than the one behind me. I think my noble friend said that we should have another referendum. If he wants another referendum, and if there is enough support for it in the other place—which at the moment looks doubtful—everyone in the other place who wants another referendum should vote for the deal. They can then seek to amend the legislation to facilitate a referendum, but without a deal and without a Bill, you cannot have a referendum.

Policing and Crime Bill

Viscount Hailsham Excerpts

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

[Lord Rosser]

My Lords, the purpose of this amendment and its associated new clause is to establish the principle of parity of legal funding for bereaved families at inquests involving the police. Of course, we debated this in Committee.

The lack of such funding and the associated injustice was highlighted by the somewhat sorry saga of the Hillsborough hearings, and the extent to which the scales were weighted against the families of those who had lost their lives. Publicity was given to the issue because of the high-profile nature of the Hillsborough tragedy and the steps that were taken in its aftermath to pin the blame for what had happened on supporters at the game, perhaps in an attempt to cover up where responsibility really lay, and which emerged only years later.

The other week, according to the media, the coroner dealing with the first pre-inquest hearing into the 21 victims of the 1974 Birmingham pub bombings backed applications for their bereaved families to get legal funding for proper representation. He commended the application, said he did not have the power to authorise funds and commented that for those families who wanted to be legally represented, there was a compelling case for proper legal representation. However, inquests at which the police are legally represented are not confined to major tragedies such as Hillsborough; numerically, they are more likely to cover the death of a member of an individual family.

Many bereaved families can find themselves in an adversarial and aggressive environment when they go to an inquest. They are not in a position to match the spending of the police or other parts of the public sector when it comes to their own legal representation. Bereaved families have to try, if possible, to find their own money to have any sort of legal representation. Public money should pay to establish the truth. It is surely not right, and surely not justice, when bereaved families trying to find out the truth—and who have done nothing wrong—find that taxpayers’ money is used by the other side, sometimes to paint a very different picture of events in a bid to destroy their credibility.

In the case of Hillsborough, the Lord Chief Justice made a specific ruling when he quashed the original inquest. He said he hoped that given that the police had tainted the evidence, the new inquest would not degenerate into an adversarial battle. However, that is precisely what happened. If there is to continue to be an adversarial battle at inquests involving the police, we should at least ensure that bereaved families have the same ability as the public sector to get their points and questions across—and frankly, in the light of what can currently happen, to defend themselves and their lost loved ones from attack and, if necessary, to challenge the very way in which proceedings are conducted. This is a bigger issue than simply Hillsborough, since it relates to the situation that all too often happens to many families but without the same publicity as Hillsborough.

In response in Committee, the Government accepted that all would sympathise with the intention of the amendment. They went on to say that the former Home Secretary had commissioned Bishop James Jones to compile a report on the experiences of the Hillsborough families, and that we should wait for his report before considering the issues further. Clearly, the coroner at the pre-inquest hearing into the 21 victims of the 1974 Birmingham pub bombings did not feel it necessary to wait for the Jones report before expressing his views on the application for funding for proper legal representation.

The Government were asked in Committee for clarity on the scope and terms of reference of Bishop Jones’s inquiry and whether it would look not only at the circumstances where large numbers of families are potentially involved but at situations where one bereaved family may be traumatised by what has happened to the victim, and faces the full panoply of legal representation by a police force that is an interested person for the purposes of an inquest into the death of a member of an individual family. The Government replied that they would see and respond to Bishop Jones’s review in due course, but added that he was still considering the terms of reference for his Hillsborough review with the families and intended to publish them shortly. That suggests that the outcome of the review is some way away and will be much orientated to Hillsborough, rather than to the issue of funding at inquests generally where the police are represented.

In Committee, the Government also said that the amendment would place a significant financial burden on the Secretary of State. That may not necessarily be the case since the requirement for parity of funding, where the police are represented at taxpayers’ expense, may lead to a harder look at the level and extent of representation required by a police force at an inquest, or indeed whether in some cases such legal representation is really needed at all. In any case, the lack of the terms of this amendment did not prevent the significant amount of funding that finally had to be provided in relation to Hillsborough—which I think the Government said amounted to £63.6 million. So even without this amendment, because of the way in which the situation was handled, that was apparently the amount that they ended up paying out.

The Government also raised what they themselves described as technical issues with the amendment, but accepted that those were detailed points and secondary—an acknowledgement, I suggest, that they could be addressed if necessary. We surely do not need further delay for the outcome of an inquiry where the terms of reference have apparently not even been finalised, where there is little likelihood of a speedy report and where the Government’s commitment is only to consider the review in due course. Despite the Government saying in Committee that all would sympathise with the intention of the amendment, there is no commitment even in principle to address the issue of inequality in funding for bereaved families at any time, yet alone within a credible and realistic timescale that shows that this is a matter of some priority. I suggest that we need to act now to change a process and procedure that appears at times to be geared more to trying to grind down bereaved families than to enabling them to get at the truth and obtain a feeling that justice has been done. I beg to move.

[Viscount Hailsham (Con)]

My Lords, I regret to say that I cannot support this proposed new clause, although I have a great deal of sympathy with the thinking behind it. I am quite sure that we should move to a situation where, in appropriate cases, there could be parity of funding. Where I differ from the noble Lord is in the suggestion in the proposed new clause that it should be the police commissioner who makes the recommendation. In my view, it should be the coroner. The truth is that we are dealing with a judicial process, and clearly some people will want to be represented, but whether or not what they have to contribute is relevant is something that only the person in charge of the judicial process can really determine, and that is the coroner. He alone can have a clear view of the issues and the relevance of the participation of the relevant parties. Also, we are really in the process of people making applications for funding that may themselves be resisted. There has to be a process whereby those submissions can be determined. It seems to me that that has to be the coroner.

I point out just two other considerations. I can conceive of circumstances in inquests where the police commissioner has a conflict of interest—either that he or she may be the subject of criticism in the course of the inquest, or that he or she might seek to take regulatory action against chief officers as a result of the inquest. That is a potential conflict of interest that we need to reflect upon.

Lastly, we need to entrust this process to an independent figure. The elected police commissioner is not an independent judicial figure; indeed, as he or she comes to the end of their elected term they may have every sort of personal reason to bump large wads of cash to people coming along to apply for it. It is not a happy situation. If the noble Lord, Lord Rosser, were to come forward with a proposal to the effect that the coroner should be in a position to make these recommendations, I would be happy to support it subject to any contrary argument. But as to the proposal that the police commissioner should trigger the recommendation, I absolutely cannot support it.

[Lord Blair of Boughton]

I support the noble Viscount, Lord Hailsham, on that point. However, given that this is Report, I ask the Minister to bring back a government amendment that says that it is the coroner. We should not lose this opportunity. I support the noble Lord, Lord Rosser, in saying that we ought to have a process in which there is an equality of arms between the two sides. As I understand it, however—I stand to be corrected—the House can do that only if the Government bring forward an amendment on Third Reading which says what the noble Lord’s amendment does, but that it is not the police and crime commissioner; it is the coroner. I completely agree.

--- Later in debate ---

As it is clear that the online system is some way away from being introduced, I therefore ask again when the Government are going to increase the fee for civilian firearm and shotgun certificates in the interim period, prior to the introduction of the online system, to a level that enables the police to recover the full costs of their role in administering applications and eliminates any apparent subsidy from the taxpayer. What is the problem with eliminating that subsidy now, and what is the justification for continuing with the apparent subsidy? Surely the answer is that there is none.

[Viscount Hailsham]

My Lords, I would like to make a declaration of interest, in that I hold a shotgun certificate and a firearm certificate, and to that extent I may be supposed to have a personal interest. Moreover, I have a declaration of personal responsibility to make too, in that after the Hungerford shooting way back at the end of the 1980s I was the Minister in the Home Office—subject, of course, to Douglas Hurd, now Lord Hurd of Westwell—responsible for the carriage of the firearms Act in 1988. I also have a long-standing interest in the law relating to firearms.

I am broadly in favour of Amendment 169A. Indeed, it is a response to my former Parliamentary Private Secretary, Mr Geoffrey Clifton-Brown—and all credit to him for tabling it in the House of Commons. However, I have one reservation about proposed new subsection (1)(b) in the amendment, which states,

“in the case of a rifle, the borrower is aged 17 or over”.

Contrary to what the noble Lord, Lord Rosser, said, I think that that threshold is far too high. I look back to my youth when I used to use a .22 carbine, shooting on the lawn under the very close supervision of my father, who was, I think, a fairly respectable Member of this House. We felt that there was nothing improper about that so long as the supervision was close. I think that the age 17 threshold is too high. Personally, I would rather see a lower one—14 or something close to it. I agree that there should be supervision but I do not agree with the threshold.

I am very much against Amendment 169B, which concerns the full recovery of costs. I think we need to keep in mind the basic proposition that if you give powers to officials, on occasion they will be abused. That is one of the great rules of politics. Therefore, one needs to watch very carefully the powers you give officials.

In Lincolnshire, the chief officer pursues a sensible firearms policy. However, I am conscious that there are forces not too distant from Lincolnshire in which the firearms officers are fairly aggressive, driving up the cost. You should have a restriction of the reasonable cost, not the full cost, because it is possible for chief officers and firearms officers, through an overaggressive use of their investigatory and inspection powers, to drive the cost up, either because they want to deter firearms use or simply because they have a fairly aggressive approach. Therefore, my strong preference is that the limit be confined to a reasonable cost and not the full cost.

In acknowledging my own failings in 1987, I will go a little wider. There are three areas relating to the possession of firearms to which I hope my noble friend will give consideration in the future—or perhaps even in this Bill. First, what happens when your guest leaves by accident his or her gun in your house? This has happened to me. One of my guests, a Member of your Lordships’ House, was shooting with me in Scotland and he managed to leave his shotgun accidently when he went a long way south, 200 or 300 miles away. The gun was in the gun cabinet and perfectly locked up, but the estate owner was not certificated to hold it. I asked myself whether I should take it down to him. I was not certificated to transport it. What does one do? I am not going to tell you what I did for obvious enforcement reasons, but it is a dilemma. What is the law where a gun is accidently left behind but is secure in a gun case? We need to have provision to cover such a situation.

Secondly, and rather similarly, if you go shooting some distance from your home you take your gun in the car. You travel along the motorway—no doubt with your wife or your partner—and when you stop at a service station, for obvious reasons, you leave your gun, generally speaking, in the car, with your wife in the car looking after it. However, in the normal run of events, she is not certificated. In my case I have taken precautions in that regard, but your wife or partner in the car is in possession of a gun for which she is not certificated. That is potentially an offence.

My final point—I am sorry to trespass on your Lordships’ patience—relates to the keys of gun cases. Some of your Lordships may know of the unfortunate case where a lady admitted to a police officer that she knew where the keys to the gun case were, and she was done for being in possession of the gun. That is a complete nonsense. I did not tackle these problems when I was the Minister in charge of this issue, but I like to think that my noble friend will be more sensible than I was.

In the old days, enforcement of gun laws was fairly relaxed. The chief officer would know that so and so was a reliable citizen. However, that is not the case now—probably rightly—and what I have described can give rise to serious sanctions and penalties. That alarms me. I like to think that my noble friend on the Front Bench will reflect on my shortcomings as the Minister responsible for the 1987 Act and perhaps remedy the deficiencies.

[Lord Paddick]

My Lords, I support Amendment 169B in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark.

I accept the point made by the noble Viscount, Lord Hailsham, about reasonable cost as opposed to full cost recovery—or, at least, I could accept it if it was an approach the Government took across the board. However, in Committee I drew a parallel with the Immigration Act, where the Government proposed a philosophy of full cost recovery for visa applications and for the Immigration Service generally. I asked the Minister then, if she was not going to agree with amendments tabled to ensure full cost recovery for the issuing of firearm certificates, to explain why a different approach is being taken to the principle of full cost recovery when it comes to immigration. In particular, I asked her to refute the obvious allegation that the Government are discriminating against foreign nationals as against those who go hunting with guns for sport. I cannot recall the Minister specifically responding to that question; perhaps she could address it today.

Having apparently agreed in Committee to the principle of full cost recovery for firearms certificates, the Minister went on to say that there was a public consultation on these issues and that,

“there might be good reasons not to set fees at full cost recovery levels, either for a transitional period or for certain categories of licence holder”.—[Official Report, 9/11/16; col. 1163.]

There are very good reasons why visa applications and the like should not be set at full cost recovery levels, yet the Government appear determined that they should be, without any public consultation or a transitional period. Can the Minister explain why foreign nationals are being treated differently from those who possess firearms?

I asked the Minister in Committee what consultation there had been with groups that represent immigrants or those who might apply for visas before the Government implemented full cost recovery for immigration visas. Can the Minister please answer that question for the record, as she was unable to do so in Committee?

--- Later in debate ---

To answer the question of the noble Lord, Lord Paddick, the Government’s position is that all fees should be set on the basis of full cost recovery, as set out in Treasury guidance. There is therefore no discrimination against any particular category of fee payers. I hope with those words of explanation—

[Viscount Hailsham]

My noble friend was good enough to say she would write to me and I am grateful. Would she include in her letter a response on what I would summarise as the service station point, and the point about when one’s wife or partner knows the whereabouts of the key to the gun safe?

[Baroness Williams of Trafford]

I certainly will. I would be very careful before going to my noble friend’s house, given the guns and their placement in various cars and things. I hope Viscountess Hailsham will be careful, too. I will certainly write to my noble friend on all those points.

Community Pharmacy

Viscount Hailsham Excerpts

Monday 17th October 2016 Lords Chamber

[Baroness Chisholm of Owlpen]

The noble Lord is absolutely right. That service will not be undermined and it is extremely important that it carries on—again, particularly in rural areas.

[Viscount Hailsham (Con)]

My Lords, I echo the remarks made by my noble friend Lord Blencathra. Both of us represented rural constituencies: in my case for 31 years and in his case I think for nearly 30. The truth is that local pharmacies are terribly important in rural areas. I hope that my noble friend will have that in mind when the policies are addressed.

[Baroness Chisholm of Owlpen]

My noble friend is absolutely right. As I mentioned earlier, that is the point of the pharmacy access scheme, which is intended in particular to ensure that the right number of rural pharmacies are available in those areas.

Trade Union Bill

Viscount Hailsham Excerpts

Wednesday 16th March 2016 Lords Chamber

I hope it is clear from my description that the biggest difference between my amendments and the current Clause 10 is that my amendments do not require existing contributors actively to opt in to political funds at this stage. It is much harder to obtain an active choice from existing members, many of whom have been paying into political funds for years. Whereas new members can be asked to make a choice at the point they join a union, with existing members there is no equivalent trigger point to persuade them to make a choice. Large numbers of existing members are likely to ignore mailshots asking them to make this choice and repeated prompting is likely to be necessary.

[Viscount Hailsham (Con)]

The noble Lord advances pragmatic arguments in respect of existing contributors, but what is the argument of principle? Given that the Government may be persuaded to introduce a generous transition period, why should existing contributors be denied the opportunity to opt in, which gives them some benefits?

[Lord Burns]

I do not propose at all that they should be denied the opportunity to opt in. The issue that is being challenged here is whether, having being asked to opt in and having failed to reply, they are automatically deemed to have opted out. That is the big difference. The question is: where is the inertia pressure? Under the current proposals in Clause 10, if someone fails to return the form that asks them to opt in or opt out, they are automatically deemed to have opted out. It is not a matter of principle because I have sought to argue that, over time, everyone will be subject to this proposal; it is just a question of how long it takes.

It is true that, at the moment, the power of inertia works in favour of the unions. That is reflected in the fact that only 11% of members make the effort to opt out of the political fund. But seeking to apply opt-in to existing members over anything other than a very long transition period will work against the unions because people have busy lives and the political levy is very small.

In the debate last week, a number of noble Lords implied that one benefit of an opt-in system was that existing members who did not opt in would be, by definition, demonstrating that they did not wish to contribute to the political fund. My argument, however, is that it is not as simple as that. As I have already said, although some people may well be exercising an active choice not to contribute, I suspect that the majority would not be exercising any choice at all. It would be extremely harsh to impose a strict guillotine date after which existing union members who had failed to opt in would automatically be opted out. It would also be out of line with policy in other sectors.

As an example, I return again to the Financial Conduct Authority’s proposed policies on general insurance add-ons and its suggestion that organisations that have sold products on an opt-out basis in the past need only,

“take reasonable steps to obtain active and express consent for the renewal of add-on products”.

Reasonable steps are said to include writing to customers at their next renewal date to remind them of their right to opt out of products, something that my amendments would achieve in respect of political funds. Unlike the existing Clause 10, the Financial Conduct Authority does not suggest a cut-off or guillotine date and, if this is the case for financial service companies, I really cannot see any reason why it should not also be the case for union subscriptions.

I have already mentioned the requirement to remind existing contributors to political funds annually of their right to cease contributing. I would hope that, in practice, unions would also take advantage of this communication to seek to persuade as many of their existing members as possible to take a positive choice to opt in, even though it would not be a requirement at this stage.

To summarise, if the opt-in were extended to existing members as proposed in Clause 10, even with an extended transition period, the result would be a significant negative effect on union and Labour Party funding. This would give us a wider political problem. The committee came to the view that, while there is no formal convention that all reform of party funding must take place by consensus, history shows that Governments of both main parties have acted with a degree of restraint and that, generally, this is desirable.

These amendments seek to ease the problem; in my view, they enable the Government to meet their manifesto commitment through gradually increasing the number of union members subject to the opt-in system and, at the same time, enable them to act with the restraint that is desirable in the field of party funding. I beg to move.

--- Later in debate ---

[Baroness Drake (Lab)]

My Lords, I support Amendments 9 and 10. Clause 10 has raised much concern and strength of feeling, and the debate has been binary: on the one hand, the view confirmed by the Select Committee that the Bill would have a significant and negative impact on Labour Party funding; on the other side, the Government’s adherence to their manifesto commitment to introduce opt-in to union political funds. The Select Committee attempted,

“to reconcile these two issues by setting out a proposed compromise”.

It identified a way forward, which, put at its simplest, means introducing the principle of opt-in for new members while seeking to mitigate the worst of the impact on union political funds and the Labour Party through changes to the provisions in Clause 10.

The principle of opt-in is in the manifesto, but the detailed process for implementing it is not. Amendment 9 captures the unanimous view on the desirable changes to Clause 10 and the majority view on the position of existing members. As the Select Committee observed, Clause 10 is very far from commanding a consensus, not only because of the impact on the Labour Party but because of the obstacles the Bill presents to the successful implementation of opt-in—what I would call the double-jeopardy effect.

The amendment would require new members to contribute to the political fund only if they have opted in, in writing or electronically. To restrict the opt-in system to an in-writing, on-paper process is an obstacle to successful implementation and is much less likely to achieve a good response rate. Doing something through the post can be harder than doing it online. People can mislay their form. It provides what in behavioural terms are points of friction, which encourage inertia and will discourage opt-in. Members do not make a decision on whether to opt in or not; rather, they make no decision.

The Government, in arguing for opt-in, refer to the shift in the market where consumers purchasing products or services are increasingly being asked to give active consent when entering a new commitment. But increasingly those opt-in decisions can be made electronically—indeed, that is at the very heart of our e-commerce world. Allowing opt-in to political funds electronically goes with the market shift. The amendment contains no requirement for members to renew their opt-in decision every five years, but would provide greater transparency in that all members, existing and new, must be reminded every year of their right to opt out and cease paying into the political fund. The Certification Officer must, in a code of practice, set out the annual reminder communications that unions must issue, monitor unions’ compliance and report.

The arguments against a five-year renewal are several. Regulated annual reminders to members of their right to cease paying is a more proportionate approach and is consistent with market practice. In the market, where an initial opt-in decision is required for membership, services or financial products, there are many instances where consumers are not required to renew their decision, although it is not unusual to send an annual reminder. The default is that the policy agreement or service continues. This can be compatible with Financial Conduct Authority requirements. It is reasonable for the provisions of Clause 10 to take a similar approach, given that other products in the market are normally of much greater value than a 9p political levy.

The Bill is disproportionate as, every five years, a member’s opt-in decision expires unless they have renewed it—so every five years, the union would have to contact all members to ask them to renew. The Select Committee reported that the administrative and financial burdens on unions arising from this requirement would be considerable and disproportionate against the size of the 9p contribution. The exercise would cost a union one year of political fund contributions every five years.

Depending on when a union last held its last political fund ballot, which it is required to do every 10 years, it could face the tasks of initially contacting or persuading all existing contributing members to opt in; contacting and persuading all contributing members to renew their decision to opt in five years later; then conducting a full postal ballot of all members to secure a renewed authority to have a political fund—all in the space of about six years, and all expensive.

The amendment increases the transition period to at least 12 months, to be set following consultation with the Certification Officer and the trade unions. Most witnesses agreed that a three-month transition period is far too short. Retailers were granted two years to prepare for charges on plastic bags. Following the Health Act 2009, which banned cigarette displays, the coalition brought the provisions into force in 2012 for larger shops and 2013 for smaller shops. The right-to-rent landlord checks in the Immigration Act 2014 came into force in 2016. Three months appears to be very mean-spirited when compared with the two or three or four-year transition periods allowed under other legislation on issues of considerable moment.

The Certification Officer advised that Clause 10 would require unions to revise their rulebooks and secure his approval. Many unions need to get member approval at an annual or special conference. This will take time and expenditure. Rules revisions, developing guidance on training for union staff and reps and other changes are too great a task to be completed in three months. It is setting unions up to fail. Moving to opt-in is not the only demand on union resources coming out of this Bill. Dealing with the abolition of check-off will be a major priority, too.

Finally, the amendment does not extend the opt-in requirement to existing members as part of the Bill. But it does require them to be covered by the transparency requirements to annually notify members of their right to opt out. This gives effect to the majority view in the report. Not extending the opt-in to existing members as part of the Bill is fairer and more even-handed. Human behaviour is such that persuading existing members to make an active choice is much more difficult. They are more likely to make no choice. As the noble Lord, Lord Burns, said, there is no trigger point such as joining the union. Response rates will be lower and greater expenditure will be incurred in prompting, chasing and following up. Not extending to existing members, but providing them with regulated annual notification of their right to opt out, increases transparency.

The noble Lord asked what the principle was here. The principle is that when you introduce a new regime for future members, you should have a protection regime for existing people. There are precedents. The principal protection for the existing members under this amendment is a compulsorily regulated regime of notifying members of their right to opt out, which will be monitored and reported on by the Certification Officer.

As the Select Committee observed, even without some of the onerous provisions in Clause 10, there will still be “a sizeable negative effect” on members contributing to political funds. The Select Committee’s overarching proposal was that the Government should implement their other manifesto commitment: to convene cross-party talks and make an urgent effort to reach agreement on party funding. The majority view was that the question of extending the opt-in to existing union members should not be part of the Bill but should be considered as part of those talks. As the Select Committee observed:

“The further danger of proceeding down a non-consensual route is that any cut in the Labour Party’s funding will simultaneously reduce the incentives for the other parties to make concessions with a view to achieving comprehensive reform”.

The amendment strengthens transparency considerably. It introduces opt-in going forward, but it also introduces fairness, proportionality and, even more important, what has been missing—a level of even-handedness.

[Viscount Hailsham]

Notwithstanding my considerable respect for the noble Lord, Lord Burns, and my noble friend Lord Cormack, now my near neighbour, and indeed the noble Lord, Lord Tyler, I am not with them on the amendment.

The amendment is in paragraph 142 of the Select Committee report. I am an advocate of the alternative view: a generous transitional period for existing members. I should like to think that the Minister will offer a more generous transitional period than she is presently contemplating. I cannot help feeling that, if she did, she would attract considerable support.

My reasons are very simple and can be briefly expressed. First, as a matter of principle, existing members should be covered by the opt-in provisions. The noble Baroness, Lady Drake, referred to the amendment as fair and even-handed. It is nothing of the kind. It actually deprives existing members of the greater ability to opt out, if they want to. There is nothing fair or even-handed about the amendment; it has a contrary effect.

However, I agree with another point made by the noble Lord, Lord Burns, and, incidentally, my noble friend Lord Cormack: that it would unbalance party funding. That is not in the general interests of the country or, therefore, within the general consent of this House. I therefore think that the alternative approach formulated in paragraph 142(b) of the Select Committee report is the way forward. A more generous transitional period for existing members seems to me to catch the sense of the House.

[Lord Forsyth of Drumlean]

What does my noble friend mean by a generous period, because, clearly, if it were 10 years or five years, that would be a completely different argument?

[Viscount Hailsham]

That, truth to tell, is a matter of negotiation. My noble friend Lord Forsyth and I have often negotiated in the past. When one seeks a compromise, one negotiates: one sees what will meet the general will. I cannot go further than that. One problem with the amendment moved by the noble Lord, Lord Burns, is that it does not contemplate an active moment when existing members will be covered by the new provisions. That matter also needs to be addressed and is wholly uncovered by the terms of his amendment.

[Lord Forsyth of Drumlean]

I am very grateful to my noble friend, but he cannot stand up and say, “We ought to have a more generous period”, and then not say what he thinks will be workable.

[Viscount Hailsham]

Of course I can—I am not the Minister, nor am I in the business of negotiating. When we were on the Front Bench together, we often had to negotiate about policy, one with the other. If I was in the business of negotiating, I would have a proposition to put forward. All I am saying to the Minister is that, if she were to be generous in her approach, I suspect that would get a lot of support in this House.