Deregulation Bill

Baroness Donaghy Excerpts

Thursday 5th February 2015 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I thank the noble Lord, Lord Nash, the Minister, for finding time for two meetings to discuss our concerns about this issue and the removal of a safeguard from the child protection system. We thought carefully about bringing this issue back to the House at this point but there is a high level of risk associated with the child protection functions, and the fact that the regulations were tabled and passed only last year suggests that the arrangements are still very much at an early stage and that it is really premature to remove the requirement for these delegated services to be registered.

We note that local authorities will remain accountable to the regulators for the quality of the services provided, but the fact is that the regulated services will not sit directly within the purview of local authorities and we know that commissioning, contract compliance and adhering to rules around commercial secrecy are still in their infancy and untried with respect to child protection decision-making functions. Indeed, in our meetings the Minister himself referred to the poor commissioning and contracting skills of local authorities that he had identified, and we agree with his concern. These new functions will take time to bed down. Staff need to be trained. They need some experience and you cannot achieve that overnight. For local authorities, quality assurance in external organisations may prove very difficult to achieve. An experienced principal social worker describes numerous occasions of near-misses in contracted-out services affecting children and adults in community settings, and the incredible frustration of trying to get contractors and agency suppliers to take remedial action to improve the quality of care provided.

With the extension of delegated functions to include child protection functions, among others, the risks will increase sharply. There is the potential for the emergence of much larger market providers with subcontractors—of firms establishing a string of not-for-profit subsidiaries with supply lines that are difficult to hold to account. These are the concerns of the College of Social Work that we are reflecting today. We understand that local authorities will be inspected to check whether they have commissioned the functions and services appropriately and whether they are ensuring contract compliance. There are concerns about the quality of that inspection and the training of the staff within the inspectorate. There are matters there that need to be dealt with.

The Minister kindly sent us some key extracts from the Ofsted documentation which make it clear that inspection of local authorities will take place about every three years. Yes, a local authority will be reinspected within 12 weeks following the delegation of functions if the local authority had previously been judged inadequate. But local authority services may be perfectly adequate even if their commissioning and contract compliance skills are yet to be developed, so there is no reason to believe that there will be an inspection within 12 weeks. In that case, we are talking about three years. An awful lot of children may be damaged in that time. In this context we should be strengthening rather than scrapping the registration requirement. This should at least ensure that any organisation taking on this work has the basic structures, supervision arrangements and risk management procedures in place. The Minister argued, very reasonably, that Ofsted does not have the resources to undertake this registration function effectively. If that is the case, the delegation of these services should not go ahead until the ways and means are found to provide that assurance.

We know that in this very difficult field disasters will occasionally happen. Social services staff may not be proficient in commissioning and contracting, as I have already said, but they have considerable experience in child protection. Every day, children are protected by social workers from sick, disturbed or dangerous parents. As in the terrorist field, the perpetrators have to succeed only once, whereas the staff in these agencies have to fail only once and all hell is let loose, as we know.

These are extraordinarily difficult and stressful areas of work. We should not increase the risks involved. We understand that a number of local authorities are being instructed to delegate these functions. There will be the possibility therefore of a pilot, which could be risk-assessed. Our amendment requires the undertaking of a risk assessment of the delegation by local authorities of their child protection functions and services before the registration of those services can be abolished. That is the whole point: it is early days and it is premature to be taking this step.

We also propose that the report on the risk assessment be published within 18 months of the passing of the Act. We assume that the Government of the day would take appropriate action if the assessment showed that the risks of delegating those functions were unacceptably high. I look forward to the Minister’s reply and beg to move.

[Baroness Donaghy (Lab)]

My Lords, this amendment is about child protection and ensuring appropriate government responsibility for the regulation and quality of care offered by outsourced social work providers. Although most local authorities do their best to uphold standards, this important area cannot be left entirely to them, with very occasional inspections from Ofsted—as the noble Baroness, Lady Meacher, has just said.

Local authorities have stated that it is,

“important to ensure there is a proper, external to the local authority, registration process to enable a local authority to be confident in using the services provided by the SWP”—

that is, the social work provider. The government proposal is that the external providers of social work services will not be inspected in their own right by Ofsted, nor will they be registered as providers in the way that children’s homes and adoption societies are, so there is already an anomaly here. There will be no overview of their activities across local authorities where they hold contracts and no visible assurances for the public about their financial viability, quality or working practices.

In June 2013, the Delegated Powers and Regulatory Reform Committee criticised the Government’s proposals to remove regulation of social work providers. It stated:

“Registration … would allow the imposition of national minimum standards and requirements as to the fitness of providers, and would also provide a mechanism for removing providers who were failing to meet standards”.

The Government subsequently retained separate registration, but not inspection, for external providers through the Providers of Social Work Services (England) Regulations 2013, to which the noble Baroness, Lady Meacher, has already referred. The discussions are less than 14 months old, and now the Government seek to remove even that provision of registration. This is in the context of there having been no empirical review of the 2013 regulations to see how they are working. Our amendment asks for a pause for the review to be conducted to satisfy ourselves that the most vulnerable children in our society have some protection.

Finally, social workers, whether working for the public or private sector, have a difficult if not impossible task with a heavy if not impossible workload. They take decisions every day which could mean life or death. Yet the only time that they receive publicity is when things go wrong. I believe that it is the duty of Government to ensure that standards across the profession are of good quality and that local authorities are not left high and dry on this issue. I hope that noble Lords will see fit to support this amendment.

Recall of MPs Bill

Baroness Donaghy Excerpts

Wednesday 14th January 2015 Lords Chamber

[Lord Foulkes of Cumnock]

I cannot think of anything worse than to be called a secret believer in proportional representation. I disavow any support for that. I am a long-term supporter of first past the post. I think that my noble friend has actually made a very good argument. If we were discussing the Bill and the provision that I said might be considered as one of the options, we could decide whether or not it should be in. But I do not want any of these provisions. I have not made it clear enough. I do not want a Recall of MPs Bill. All I was saying is that, if we are including these provisions, there are others that might have been considered for inclusion, but were not. That is totally illogical. My noble friend has made a very good argument for not including that in a Bill, if it had been suggested.

[Baroness Donaghy (Lab)]

I was not going to speak in this debate, but I think it is important that some of us who have not got a parliamentary background contribute. I congratulate the noble Lord, Lord Finkelstein, on making his contribution, even though I do not reach the same conclusion as he does.

I am raising this as a former member of the Committee on Standards in Public Life, rather than as a parliamentarian. I know that this remark is tinged with Second Reading—but this is the worst form of populism. One has to ask the question, will it improve standards in public life? My view is that it will not. Will it improve the standing of Members of Parliament? My view is that it will not. Could it be the thin end of the wedge? That is open to debate. It is very important that we do not go down this sentimental road of talking about all these brave MPs who have done this, that and the other. We need to look at it from the point of view of the future. Are there other ways of improving the standard of Members of Parliament? Yes, by enhancing parliamentary democracy. I am concerned that an agreement has been reached by the Front Benches to support this Bill but that it does not necessarily enhance parliamentary democracy. I have to say that it is in the interests of Front-Benchers who want to be in government, or are in government, to improve and enhance the power of the Executive, if necessary at the expense of parliamentary democracy. I do worry about that.

There are issues such as the whole area of expenses, which people may think have been improved, but I do not. There is an argument for a very large salary for MPs, with no expenses and no second home allowances or anything else, and having a clean-cut, sensible and transparent system of payment, which is aligned to some recognised body and which could be determined by an independent body. You could then get rid of IPSA overnight. I have a number of other suggestions but will not take up the time of the Committee, and apologise to the noble Lord, because I realise this is not, strictly speaking, relevant to this particular amendment. However, the sooner this piece of popcorn disappears off the legislative agenda the better.

[Lord Martin of Springburn (CB)]

I have often been careful in the past to remind Members in the other place that they should not use amendments for Second Reading purposes, but perhaps I can stray, because the expenses situation has been mentioned by my noble friend and others and I find it interesting with regard to the recall of MPs. When I came into this House, some Members who had served in the other place were quick to condemn those who were, for want of a better word, exposed in the expenses scandal and said that it was a terrible thing. It was a terrible thing because five years of expenses were exposed at one time, because of freedom of information and the way it was handled. I have often thought this to myself and now say it out loud: if only some of those ex-Members who are now Members of the House of Lords and who were quick to criticise had been prepared to explicitly produce their bank statements, we might have been able to see what they claimed in parliamentary expenses.

However, that is not the reason I am on my feet. Forgive me if I do not get the first name right, but I remember Harold McCusker, who went to jail on a principle regarding the Troubles in Northern Ireland. He had a different point of view from myself and the noble Lord, Lord Maginnis, but I got on well with Harold McCusker. After he came out of jail, he said to me that it is a very humbling experience when the door is slammed on a prison cell, and you are in there wondering whether you have done the right thing. I often read the lovely articles that the noble Lord, Lord Finkelstein, writes when he speaks about recall and I ask him to think about the following point that I would like to make about expenses.

The media have their favourites—let us not kid ourselves. I go back to the expenses. There was a Member of Parliament—and good luck to him; I do not like using names, and in fact, I think there is a rule that we should not criticise Members of Parliament in the other place—who got into serious difficulty. Members of the media publicly said, and they were entitled to do so, “Well, you see, he was gay. He did not want his mother to find out about it”—I am not going to hammer this home—“because he was a Catholic”. Well, my mother brought up five children, and she was the most devout Catholic I ever met and am ever likely to meet. I tell you this: she would have known if one of her sons was gay. Then I look at the sum concerned, quite a fantastic sum of money. The power of forgiveness is important, and I do not deny anybody the right to defend someone who has erred. I think it was Robert Burns who said:

“Then gently scan your brother man,

Still gentler sister woman”,

and if you find that they have erred:

“To step aside is human”.

Here is the point I make to the noble Lord, Lord Finkelstein, and maybe he can think about it with some of his friends in the media. There was a man in the other place who went to prison. Those of us who were dealing with that individual before he went to prison knew that he should have been cared for with regards to alcoholism. He should have been in the Priory or some other institution. I speak as a teetotaller. At that time I spoke to parliamentary Whips about his difficulties. Anyone who knows about alcoholism knows that one of the difficulties with an alcoholic is you sometimes cannot tell them that they are their own worst enemy. For a small amount, he went to jail. Not one individual in the media stood up and said, “That man needs help rather than prison”.

Here is where I go when we come to recall. You get a recall, and let us say that you get people in a marginal seat. There could be a single issue in that constituency at that time. It could be a threatened hospital closure or some other big issue. Then mob rule can prevail.

The other place is entitled to do what it wants. Our great strength is to draw on our experience and the life that we have had and to say, “Watch, and be very careful what you are doing”. The aftermath of the expenses fiasco—the debacle, the scandal—has meant that it introduced IPSA. No one can even purchase as much as a postage stamp or a half a pint of milk but it has got to be made public. There is talk and complaint about that. The rigid system that exists there has come out of the difficulties of the past. We have a serious problem. Any time that I have been involved in legislation where both sides of the House and the third party are in agreement, then within a short space of time we rue the day that we made that decision.

Deregulation Bill

Baroness Donaghy Excerpts

Tuesday 18th November 2014 Grand Committee

Debate on whether Clause 71 should stand part of the Bill.

[Baroness Donaghy (Lab)]

My Lords, I am asking the Government to withdraw Clause 71 on social work services and registration. Clearly there is a history to this which I shall not spend a lot of time on, but I have to say a couple of things about it. First, the previous Labour Government issued a guarantee in 2008 that any delegated service would be required to register with the regulator. The Government propose to withdraw that provision. Secondly, in June last year the Delegated Powers and Regulatory Reform Committee criticised the Government’s proposals to remove regulation of social work providers. It said:

“Registration would allow the imposition of national minimum standards and requirements as to the fitness of providers. It would also provide a mechanism for removing providers who are failing to meet standards”.

The Government subsequently retained separate registration but not inspection for external providers through the Providers of Social Work Services (England) Regulations 2013. The discussions are as recent as that. Now the Government are seeking to reverse that decision and to remove the registration requirement. This is despite the fact that there was no clear support for removing regulation in the original consultation responses.

The Government did not consult on this issue as part of the consultation in April 2014 on extending outsourcing in children’s social work. During the debate in Committee in the House of Commons on whether the clause should stand part of the Bill, the Deputy Leader of the Commons, Tom Brake MP, acknowledged that there had been no clear support for removing the registration requirement.

The Office of the Children’s Commissioner for England raised concerns and stated:

“We consider all delegated social care services should be required to have formal registration with Ofsted in addition to an expectation that they will be held to account by rigorous and expert inspection, just as local authorities currently are”.

Ofsted conducted its own consultation on a regulation and inspection regime for social work providers. It consulted children and young people for their views, unlike the Government. Ofsted found that respondents to its consultation wanted thorough checks to be made on companies and applicants that plan to provide delegated functions. They also felt strongly that registration checks should be backed up by later inspection.

Local authorities thought it would be,

“important to ensure there is a proper, external-to-the-local-authority registration process to enable a local authority to be confident in using the services provided by the social work provider”.

I should, perhaps, remind the Committee that the Ofsted registration requirements cover important areas of social work provision, such as the “fit and proper person” test for those running social work providers, financial viability, registered manager, sufficiency of qualified staff, vetting checks and conditions of registration.

The Government propose that the external providers of social work services will not be inspected in their own right by Ofsted, and nor will they be registered as providers in the way that children’s homes and adoption societies are. There will be no overview of their activities across local authorities where they hold contracts and no visible assurances for the public about their financial viability, quality standards or working practices. Unison, the trade union that represents social workers, believes that the regulation and inspection of social care services are essential to safeguarding vulnerable children and their families. It also said that regulations should not be regarded as a burden in this extremely sensitive area.

Internal contract monitoring by local authorities cannot be relied on by itself to ensure that acceptable standards in the safety and quality of social work with looked-after children are upheld. By removing the separate registration of providers, the Government are relying on Ofsted to pick out issues about their fitness to operate as part of its inspections of individual local authorities. However, providers could operate across many local authority areas. Local authorities already face challenges because of funding cuts and it is likely that contracts will be held by larger private or voluntary sector contractors. Close ties with local authority teams and systems will be weakened; their interests and priorities will be different from those of the client authority. The drivers of service provision will be cost driven. Relying on local authority inspection will be inadequate and emphasises the need for a single registration point.

The focus of the single inspection framework is the local authority, and this will necessarily limit the range of regulatory action Ofsted takes in relation to the failings of an outsourced provider. Ofsted needs to be able to focus on the provider in its own right, rather than on individual local areas of work. It also creates a lack of symmetry in the system by requiring providers of children’s homes and fostering and adoption placements to be registered and inspected in their own right while providers of social work services—which are exercising major statutory functions, taking sensitive and critical decisions about placements for children—are not required to do so. How can the Government defend such inequality? Do the Government think that providing social work services is somehow less important? Are the Government confident that this act of abandonment will not lead to a lowering of standards?

Finally, the College of Social Work is calling on the Government to pause, so that the service implications of these regulatory changes can be fully considered in the light of real evidence. There needs to be detailed consideration of potential conflict of interest in the provision of children’s services and the management of risk. The College of Social Work has stated:

“The proposals raise serious and important questions about how services to some of the nation’s most vulnerable children and young people may be delivered in future”.

I can only echo that statement and ask the Government to withdraw Clause 71 before it is tested on Report.

[Baroness Meacher (CB)]

My Lords, I support the noble Baroness, Lady Donaghy, and agree that Clause 71 should not stand part of the Bill. Among the main reasons for my position is, first, that the delegation of local authority statutory children’s services functions, particularly child protection functions, was approved only very recently, and we simply have not had the time to clarify whether the new arrangements are working. Secondly, the delegation of these functions was approved by statutory instrument, and therefore not subjected to very thorough parliamentary scrutiny—we already have, if you like, an unscrutinised situation, or one subject to inadequate scrutiny, yet these functions are crucial to the future lives of very vulnerable children.

It was presumably no accident that these statutory functions were not included in the Children and Young Persons Act 2008, which provided for the delegation of functions in relation to looked-after children and those leaving care. Those are very sensitive areas of work, and one can question their delegation, but these new functions were not included even then. I should make it clear that, along with members of the College of Social Work, I support the provision of children’s and adult services by the third sector in partnership with the statutory agencies—this is not an ideological point at all—but as recent scandals have shown, the third sector is not immune from providing very poor-quality services to very vulnerable people. It is this risk that needs to be guarded against in equal measure— I emphasise equal measure—with public services. I sometimes worry that the Government assume that any private service is somehow good, while public services are suspect. That seems to me to be an incredibly dangerous assumption.

I share the concern of the noble Baroness about the limited parliamentary debate about the new regulations and, more particularly, the concern that the removal of the one safeguard from these functions is proposed when the evidence for the efficacy or otherwise of these delegated services is not yet available. Will the Minister explain to the Committee why the Government are proposing to remove the requirement to register with the inspectorate from these newly delegated services? Is this a matter of cost? If so, what will be the annual saving to the Exchequer from this change? Has a cost-benefit analysis been done of Clause 71? Is there any evidence to suggest that the proposal will not lead to a deterioration in the quality of service provided? These really are very important questions for the Government to answer.

It would also be helpful to have some explanation about how the local authority responsibility for these delegated services will work. As I understand it, local authorities will remain accountable to the regulators for the quality of the delegated services, but they will surely need to undertake some form of inspection role in order to satisfy themselves that the services are of an acceptable quality. But will they be funded to do that? We know how hard-pressed local authorities are; if they do not have the funding for a job, they will certainly not be able to do it. If not, is it right that a local authority should be held responsible for poor-quality services that do not fall within its purview? It all feels really very difficult from the local authority point of view and therefore the whole thing feels shaky. Who is going to lose? The vulnerable children, at the end of the day. I hope the Minister will respond to these questions and provide some assurance to the Committee that the Government are not taking unreasonable risks in Clause 71.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I recognise the passion with which these objections have been made, as well as the experience and expertise of those who made them. I shall be very happy to hold further conversations between Committee and Report to make sure that we can come to some agreement about the balance between regulation and potential risk, to which the noble Baroness, Lady King, rightly pointed. We are all quite clear that children’s services are a very important area where we must make sure that we get the balance right.

The Government’s view after consultation and consideration is that the double layer of inspection provided by Ofsted’s national perspective and the responsibility of local authorities to inspect and to license providers is duplication. Our view is that Ofsted’s existing duty to register providers who may discharge children’s social care functions is completely separate from its duty to inspect and to hold local authorities to account in the discharge of their functions.

I am also very grateful for the correct comment of the noble Baroness, Lady Meacher, that we are talking not just about for-profit providers but about third sector providers, which often provide very good services in this area. Nevertheless, one wants to make sure that those services are always of a consistent quality. She has a great deal of experience in this area. I have very limited experience but I am very conscious that third sector organisations can be absolutely superb but sometimes not superb.

It is argued that the removal of the requirement for providers to register with Ofsted is a benefit to the system because it ensures that there is no doubt or confusion about where the statutory responsibilities then lie. That makes it clear that local authorities are fully accountable for any decisions made by third parties to whom they have delegated functions. The argument here is that it should not be the responsibility of Ofsted to make sure that the third parties to whom local authorities wish to delegate functions are fit for the job.

Under the current registration regulations, Ofsted is required to check on: first, the fitness of the provider to do the work; secondly, the appointment and fitness of the registered manager; and, thirdly, the staffing arrangements and premises. The regulations also include provisions for making changes to any of the above. To cover Ofsted’s costs, providers are required to pay fees for registration and for making changes to the registration once made.

These requirements duplicate the “due diligence” that a local authority will perform as part of its procurement of a provider. No local authority would appoint a third party provider to undertake its functions without making such checks. However, the current system creates confusion as to where accountability lies. The requirement for providers to register with Ofsted is separate from Ofsted’s continuing duty to inspect and to hold local authorities to account. How Ofsted inspects local authorities is for it to determine. For other provision—as for children’s homes—it conducts separate inspections, but it has concluded that delegated functions should be inspected as part of the local authority single framework inspection and has published a plan as to how this will operate. The Government consider that that is adequate and that it provides the regulation required without unacceptable risk.

[Baroness Donaghy]

I apologise to the noble Lord for interrupting but I wish to seek clarification. Clearly, on the face of it, it does look like double accounting, but similar things exist in other areas—for instance, in the construction industry, where there is a pre-qualification system. At the moment local authorities are given confidence in employing a company which might cover a lot of local authorities. There might be a very small strapped-for-cash local authority—as nearly all of them are now—but it is given confidence because the name of that company is on a register. It has already qualified to meet a certain level of standards. I am not sure that in the Minister’s answer so far—he may be coming to it—he has explained how local authorities have the confidence to get to the pre-qualification stage of saying, “Okay, let’s look at these people with a view to hiring them”. I am not saying that they do not have the responsibility to inspect—of course not—but it could save a lot of time and money if there is already in existence a body of knowledge and a body of standards which local authorities can apply.

[Lord Wallace of Saltaire]

I understand that point. I am not entirely clear as to the balance between for-profit providers and not-for-profit providers but I am getting some information from my officials. There are some important distinctions here, which I would like to take back and discuss further with them because I recognise that it is absolutely important that we get this right. The Government’s case is that the clause provides the necessary protections without unnecessary duplication. I recognise that we need to provide the reassurance to all those who have spoken in this debate that we have got the balance right.

Incidentally, we did consult in January and February 2013 and got only some 20 responses, which broke on both sides. There were mixed opinions as to whether the registration regime should be removed; 45% said no and 40% yes. A majority agreed that the proposal would reduce burdens; 53% said yes and 32% no. So the answer is that it did not give us a clear set of arguments as to how to respond.

Again, I recognise the great concerns which have been put forward. The Government have argued consistently that removing this extra level of the registration regime preserves necessary protections. I am very happy to have further discussions between Committee and Report to make sure that we can provide those assurances before we return to this.

Deregulation Bill

Baroness Donaghy Excerpts

Thursday 6th November 2014 Grand Committee

[Lord Young of Norwood Green]

I ought to clarify that, as I thought I had made clear in my contribution, this is obviously a probing amendment in a way. We sought to oppose the removal of that particular paragraph, which specifies, as the noble Baroness, Lady Perry, rightly says, a particular teaching qualification. If the noble Baroness reflects on my contribution, however, she will note that we talked about a qualification—something like level 2 in English and maths.

I concur with the noble Baroness’s point. I, too, have been to FE colleges. The one that stuck in my mind was teaching painting and decorating. They said that it used to be a hopeless course until they got the current teacher in, who had run his own successful business in painting and decorating for 20 years. What he did not know about sticking a piece of paper on a wall—I say that ironically—was not worth knowing. He was an inspirational teacher, with much the same effect as that referred to by the noble Baroness.

This is in the nature of a probing amendment. My final point was to ask whether there would be any guidance and criteria. I hesitated to interrupt the noble Baroness, but I hope that that has been helpful.

[Baroness Donaghy (Lab)]

My Lords, some noble Lords know that I spent 33 years at the University of London Institute of Education, so teacher training is in my blood. I support my noble friend on this amendment. I do not think there is any intention that we should not recognise some flexibility in the system for those who do not have a traditional academic background. I am sure that that is not what my noble friend meant.

Years ago, I was secretary to a committee of all 36 principals of teacher training colleges in the south-east of England; this was so long ago that some of them wore hats to the committee. Perhaps the noble Baroness, Lady Perry, also knows about a particular set of principals who were a formidable group of, mainly, women. Garnett College in the Roehampton area—the noble Baroness is nodding—trained mature entrants. It was a one-year course, mainly for technical education. To this day, I do not know why that college was closed; that was a disgrace. It gave a chance to people who did not have a traditional background. They may have come from what were in those days called the colonies. There was a great tranche of administrators and officials coming from a lot of former African colonies looking for work in their 40s and 50s. There were also ex-service personnel and others who found work as teachers and managed to get an equivalence recognition of their background and experience before they entered the course.

Even for the main Senate House, there used to be a mature entrance system for 600 people a year, who would just have to pass a basic, opening gateway course, as I think they are called now—they were not called gateway courses in those days. It admitted 600 people a year for a shortened teacher training course. Again, it was people who had experience but no traditional academic background. So it cannot be beyond the wit of man or Governments to recreate that kind of system to allow for non-traditional entrants into the system. I firmly believe that we should not go backwards on requiring teacher training of some kind. In the health service, I often chair consultant appointment panels. One of the requirements for the successful applicant is that they should have gone on some teacher training and/or some leadership skills training. We insist on such standards for our consultants so that they can teach the next generation. It would be the height of irony if we should give a hint that we do not expect certain standards from our teachers.

I hope that the Government will rethink on this, if only to get some new thinking about how we train teachers in the non-traditional subjects and the more technical subjects, and how this will fit in with the university technical colleges developed by the noble Lord, Lord Baker of Dorking. This is an extremely important pathway into those colleges and we should give some active thought to it. If we do not have the teachers trained to make those pupils fit for those technical colleges, we will be failing them at a very early age. With those words—I am delighted to see that the noble Baroness, Lady Thornton, is now here— I will sit down.

[Noble Lords]

Hear, hear!

Deregulation Bill

Baroness Donaghy Excerpts

Thursday 30th October 2014 Grand Committee

If the Government are determined to do away with the provision in the 1973 Act, we need to know what is coming in its place. We need to be reassured that it really will be fit for purpose and will safeguard the interests of the organisations, commercial businesses and, particularly, the individuals in communities to which I have referred. In conclusion, I hope that the Minister will also reassure us that this section of the 1973 Act will not be repealed—if that is the right word—before we have the new regulations debated, discussed, agreed and in place, at least so that the protection remains in place throughout.

[Baroness Donaghy (Lab)]

My Lords, I thank the noble Lord, Lord Tope. I spoke on this issue at Second Reading and little did I know that I would be entering this twilight world of virtual hotels and absence of health and safety. It is a very new world and perhaps not one that I would welcome. I make no apology for speaking about a London issue. I am a Londoner by adoption. I have done my fair share of one-room bedsits and one-bedroom flats, so I think I have some knowledge of the standard of private sector renting. The big issue why it is special for London is the high proportion of flat-dwellers. We must emphasise that because it means that there is a whole new relationship with fellow homeowners, which does not necessarily exist in a street of houses.

I support what the noble Lord, Lord Tope, said. This is not a cosy, house-swapping issue. This is big business. We are talking about Airbnb valued at £10 billion and IHG valued at £8 billion and also about a crisis in housing supply in London. Can the Minister say how the Government reconcile that shortage and the fact that this is going to make accommodation even more short? How does that reconcile with the model tenancy agreement that the coalition Government are preparing? How can we be sure that there is going to be enough accommodation left for those who want to rent on a longer basis?

Noble Lords have already spoken about undermining the tourist industry. I will not go on about that, but I support everything that has been said about it. All the organisations that have approached other noble Lords have also approached me. I believe that the health and safety issue is important, because the Chief Fire Officers Association wrote in March to Airbnb saying the fire safety information given to people using its properties was wrong.

Finally, let me deal briefly, because others have covered the issues that I wanted to, with the libertarian issue. It is quite right that the homeowner ought to have the right to deploy their property in whatever way they choose. That has to be balanced by the right of the property owner not to have a major change in ambience of the place that they purchase. That is particularly true in blocks of flats. There is an expectation when someone buys a property within a block of flats that the ambience will not change, that it will be secure and settled and that it will not turn into the A&E department of the local private hospital, into a hotel, or into more unfortunate areas such as brothels and housing benefit fraudsters at the other extreme. The right of homeowners has to be balanced by the need for people to have some security in the property that they buy in London. If the noble Lord, Lord Tope, were to pursue this on Report, I would support the clause being deleted entirely, but as a reasonable compromise, I will support my noble friend Lord McKenzie.

[Lord Mawson (CB)]

My Lords, I am not an expert in this area, but following a discussion with an entrepreneur who is active in this field and behaving responsibly and who has developed a successful business in response to a real market, I thought it important that an alternative case be put. Over the years, I have often heard a strong case from the public sector as to why it would be unhelpful for a particular change to happen. I have heard attempts to hold the sea back before, but it has often proved impossible in the end. Change happens. As a social entrepreneur and innovator I have certainly been told by the public sector on numerous occasion that, “the sky will fall in” if such and such a change should happen. Having usually stayed the course, I noticed that, in reality, it never did and a new, often positive reality emerged.

The noble Lord, Lord Fowler, gave some excellent illustrations of this phenomenon, and attempts in the past to hold back business development, in his Second Reading speech. I shall articulate an alternative scenario to that painted by colleagues. I have heard considerable opposition to this change and concern over the unintended consequences that may arise as a result. However, I have yet to hear enough focus on the benefits of this reform, which in many people’s eyes is a sensible and forward-thinking piece of policymaking. It is these benefits that I shall focus on.

First, this reform will deliver a more optimal use of space and existing assets. With such well-documented pressure on our housing capacity, surely it makes sense to make better use of the residential property that we already have and to allow our properties not to lie empty for short periods when owners are away. I declare an interest as someone who lets out rooms in my London home. Secondly, a system which no longer makes people feel fearful of criminal sanction simply for renting out their residence when they are away will mean that families, many of whom are in need of additional income, will be free to tap into an additional revenue stream. Much of this revenue will be taxed and will ultimately boost revenue for the Exchequer to spend as it chooses.

Thirdly, it is evident that increasing the variety and stock of locations for tourists to stay will not only boost tourism in the capital, but will give a boost to local businesses that will benefit from this new mode of travel. This extra tourist footfall has the potential to reach parts of our economy that tourist dollars have previously never reached. Furthermore, when tourists decide to stay in people’s homes rather than in hotels, they tend to spend their money in local businesses, local restaurants and local museums. Finally, it should be pointed out that the costs for a family wanting to stay in a hotel in London are incredibly high and many people are simply priced out of a trip to our capital city. Short-term holiday lets provide travellers, especially families, with more choice and often more suitable properties in which to reside while on holiday.

We must be clear that the internet has fundamentally changed the way in which people live, work and travel. Either we decide to embrace this shift in our policy-making and our regulation or we will be left behind, as other cities embrace what is increasingly a preferred way to travel. The emergence of platforms such as Onefinestay, which has been mentioned and which enables people to rent out their residence safely and securely on a short-term basis when they are not at home, is something that we should embrace and not hinder.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)]

My Lords, first, I thank all noble Lords for their contributions to the debate. Many noble Lords have spoken from their personal experience in London and as representatives of various London councils.

Perhaps at the outset I may say that I am not an adopted Londoner; I am a born and bred Londoner and someone who has represented a London council and sat on the London Councils body itself, so I am aware of some of the key concerns that have been raised about the provisions. However, I cannot claim to have made a coherent contribution to the 1973 Act. I hope that my contributions today will be somewhat more coherent, but that is for others to judge.

The amendments, which would allow local authorities to make their own exemptions for particular properties and areas, would, in the Government’s view, risk removing the certainty and consistency that are behind our proposals for all London residents. Indeed, they would create a patchwork of different regulatory approaches across the capital, potentially resulting in unjustifiable differences between local authority areas. Residents may find that their near neighbours have either greater or lesser freedoms to let their property short term, which in many cases would be difficult for them to understand.

Let me be absolutely clear: we intend to retain the important safeguards of Section 25, which protect London’s housing supply for Londoners who live and work permanently in the capital city. However, through Clause 34, we want to provide certainty for all residents in all London local authority areas that they are able to let their homes on a short-term, temporary basis, such as when they are on holiday, without having to deal with the unnecessary bureaucracy of applying for planning permission.

These amendments also seek to exempt from deregulation properties that are not the main residence of the landlord. I reiterate that, through Clause 34, the Government only want to allow residents to be able to temporarily let their homes. This measure will do nothing to make it easier for those seeking to short-term let property on a permanent or commercial basis. Rather than specifying how the deregulation will work on the face of the Bill, the clause seeks the power to make regulations which will provide the legal framework. These will follow the affirmative procedure and will be subject to debate and the approval of Parliament on important issues, including in precisely what circumstances short-term letting will not require planning permission.

I turn to the detail of Clause 34. The clause updates an outdated 40 year-old law restricting Londoners from being able to temporarily let out their homes or spare rooms. Section 25 of the Greater London Council (General Powers) Act 1973 prohibits the use of a,

“building, or any part of a building”,

for “temporary sleeping accommodation” for fewer than 90 consecutive nights without planning permission for temporary change of use. In London, residents failing to secure planning permission face a fine of up to £20,000 for each offence. The regulations that the Government are bringing forward will clarify for London residents what is permissible.

[Baroness Donaghy]

What is the record of the number of fines imposed?

[Lord Ahmad of Wimbledon]

The noble Baroness makes a very valid contribution. Both the noble Lords, Lord McKenzie and Lord Tope, have mentioned that, and I shall come to it in a moment.

We are seeking to provide clarity for Londoners across all boroughs. The noble Lord, Lord Mawson, mentioned London as a capital city and its economy. Last summer nearly 5 million overseas visitors came to the capital. Some of those visitors, as well as UK residents, want to experience London as a local by staying with Londoners who live in London permanently or indeed in their homes while the resident is away on holiday. We know that there are currently thousands of London properties and rooms advertised on websites, but each is potentially in breach of Section 25 as it stands. That is the important point here, and I shall come to that in a moment. There is uncertainty for householders as to whether their local authority will take action against them for unauthorised short-term letting. Today’s technology enables internet sites, which we have heard about in the debate, to offer services to manage and quality-control short-term lettings. Planning legislation for the capital needs to catch up with the 21st century way of living. Noble Lords talked about their personal experience. Every year, thousands of visitors enjoy their holidays in Londoners’ homes, and such short-term letting is prevalent in areas such as Wimbledon during the tennis fortnight.

Through regulations, we want to provide certainty and consistency for all residents in all London local authority areas about when it will be permitted for householders to temporarily short-term let their property without the need for planning permission. The Government’s amendment to Section 25 crucially retains the main provision for protecting London’s housing for those who live and work permanently in London, while seeking to bring the current legislation up to date. Importantly, we want to make it clear that we do not seek to allow the short-term letting of London’s housing stock on a permanent or commercial basis. The Government do not seek to repeal Section 25 of the 1973 Act or amend its primary purpose of protecting London’s housing supply for Londoners who live and work permanently in the capital. Moreover, the Government fully recognise that London’s homes should not be lost to investors to let out exclusively for short-term lets, and our reforms will not enable this. It is the Government’s intention simply to allow Londoners to let their homes on a short-term, temporary basis, such as when they are on holiday, without having to deal with the unnecessary bureaucracy of applying for planning permission.

Clause 34 enables the Secretary of State for Communities and Local Government to bring forward regulations to prescribe the circumstances in which the use of a home as temporary sleeping accommodation is not deemed a material change of use, requiring planning permission. The clause also allows for regulations to exclude individual residential premises, and premises in particular areas, from any relaxation of Section 25.

I come to some of the questions that were raised. The noble Baroness, Lady Donaghy, the noble Lord, Lord McKenzie, and my noble friend Lord Tope asked about prosecutions. London boroughs have taken enforcement action against short-term letting. For example, in Westminster action has been taken against statutory nuisances and anti-social behaviour. This clause is designed to redress the sporadic enforcement of Section 25. It certainly creates greater certainty for residents who want to let their properties short term. The Government’s intention is to allow more people to enjoy and visit London. We are proposing allowing temporary, short-term letting for only householders and not commercial or permanent short-term letting.

Deregulation Bill

Baroness Donaghy Excerpts

Monday 7th July 2014 Lords Chamber

[Baroness Donaghy (Lab)]

My Lords, it is always a pleasure to follow the noble Lord, Lord Cope of Berkeley. He will not need reminding that it was Moses who created the first 10 regulations.

My mother used to say, “Say something positive first, dear”, so this is my positive bit. I welcome the proposal in Clause 70 to clarify the role of the Director of Public Prosecutions under the Gangmasters (Licensing) Act 2004. Anything that strengthens the arm of the Gangmasters Licensing Authority’s work is to be welcomed. I believe firmly that its remit should be extended to cover the construction industry, as it is an area that is crying out for some protection for exploited workers. However, today I shall concentrate on two areas: Clause 1 on health and safety for the self-employed, and Clause 34 on short lets in London, which have already been referred to by the noble Lord, Lord Grade, and a noble Lord who is not in his place.

I will deal with the short lets in London first. If this measure is passed, and I profoundly hope that it is not, the unintended consequences will be detrimental to rich and poor alike. This is a strange gloss on the Prime Minister’s slogan that “We’re all in this together”. Take a settled residential block north of the river. All the residents are comfortably off, with security provided 24 hours a day. If this legislation is enacted, the sub-letters and online letting companies will march in. The premiums are such that you can make three times as much income as you can from ordinary longer-term lettings. Even if we disregard the diminution in housing stock in London, which is already at crisis point, the health tourists would move in and out with their families, treating the place like a hotel and an A&E department combined.

If you are really unlucky, the prostitutes and housing benefit fraudsters will move in, while at best it will become a temporary residence for overseas businessmen and their families, who are often no respecters of other people’s property or peace of mind. The residents will experience an increase in unauthorised rubbish dumping—and flooding, if they live in flats below the temporary residence. By the way, it will be virtually impossible for the fire authorities to keep track of this. The nature of the residential block will change and there will be nothing that the majority of residents can do about it. They in turn will be tempted to move in order to escape the disruption when temporary letting becomes the norm in that block of flats. To my knowledge, this is already happening at the margins.

As the noble Lord, Lord Tope, said, the British Hospitality Association, the Bed and Breakfast Association and many others have sent submissions about this clause. Westminster City Council has provided an excellent briefing as well. That council has done a sterling job in fending off the marauders. Yes, I am praising a Conservative council. All those bodies are saying the same thing: the proposed change will pave the way for largely unregulated short-term online rental companies to operate more freely in London and remove the main mechanism by which regulators currently have the chance to ensure the safety of the public. The largest of these online companies, Airbnb, has over 23,000 premises in the UK for paying guests—premises which do not comply with government guidelines on fire safety.

Other cities in the world are striving to adopt the same controls that we are about to throw away. Paris, New York and Singapore have experienced housing inflation and anti-social behaviour in residential neighbourhoods. Westminster City Council has dealt with 7,362 enforcement cases in the past 15 years, equating to nearly seven years’ housing supply. In fact, this proposal is so unpopular, I think it must have been cooked up at the same dinner party as employee share ownership and the abolition of 100 year-old health and safety legislation on strict liability.

I turn to the proposal in Clause 1 to exempt the self-employed from health and safety law if they are not on a prescribed list. The Government claim that they are following a recommendation by Professor Lofstedt, but that is only partially true. The professor must be rather bruised by his encounters with this Government. He makes a recommendation that is circled about with conditions and caution, and it is snatched by this Government like a hungry child wanting a liqueur chocolate—of course, they will be able to have liqueur chocolate fairly soon. Professor Lofstedt indicated that any exemption should be for those,

“whose work activities pose no potential risk of harm to others”.

The Minister for Government Policy, Oliver Letwin, said that,

“about two thirds of the people in the country who are self-employed will no longer be covered by the Health and Safety at Work etc. Act”.—[Official Report, Commons, 3/2/14; col. 41.]

That really gives the game away, doesn’t it? It is a sad day when we mark the 40th anniversary of that Act in this way.

It is also regrettable that the Institution of Occupational Safety and Health was dismissed by the Solicitor-General as an organisation of “consultants”. I know that IOSH has written to correct this but it should be remembered that it has a royal charter and 44,000 members worldwide and is recognised by the ILO. It is a distinguished and knowledgeable organisation and is severely concerned by this clause. It deserves to be listened to.

The current draft of prescribed activities, produced very late in the day, includes construction, which I know a bit about. I am not reassured. I make it clear that I am not referring to the large construction companies, which are seized of the business case for a healthy and safe building site. It is the refurbishment industry, which is notorious for recruiting underskilled workers and for accidents. What happens if an employer informs his workers, who may be bogus self-employed, that, “This is not a building site so we’re exempt”? They are desperate for work and will take what they are given. Will the Government make it clear what is and what is not a building site? Is scaffolding around a house or a trench dug in the garden to be covered by the word “construction”? Are self- employed plumbers, electricians and carpenters covered in domestic housing? If not, how will the householder be alerted?

It is estimated that 90% of construction workers in London are self-employed or bogus self-employed. There is a worrying proportion of cowboys operating in London: small operators who know that there is a slim chance that they will be inspected by the HSE and who will exempt themselves from the prescribed list with little or no comeback, so there is an increased risk premium in London for workers and the public.

I remind the House that we kill 50 construction workers a year in accidents at work, let alone serious injuries and the scandal of unreported accidents. In addition, 32 construction workers die every week of lung-related diseases, and that figure is going up, not down. If three-quarters of the self-employed are to be exempt, as Oliver Letwin says, this must include some construction and allied workers.

The current Health and Safety at Work etc. Act is simple and easily understood. Everyone knows where they stand. Creating a prescribed list will cause confusion and encourage the cowboys.

Standards in Public Life

Baroness Donaghy Excerpts

Tuesday 4th February 2014 Lords Chamber

[Baroness Donaghy (Lab)]

My Lords, I am grateful to the noble Lord, Lord Bew, for initiating this short debate. I was acting chair of the Committee on Standards in Public Life during most of 2007 and a member of the committee when Sir Nigel Wicks was in the chair and the public attitudes survey was inaugurated. I remember clearly how excited we were about the significance of the survey, particularly its long-term tracking of standards in public life.

The main thrust of my contribution is to ask the Government to think again about the withdrawal of funding for the public attitudes survey. I have been in contact with Sir Nigel Wicks and he has permitted me to communicate his “great disappointment” that the Government are withdrawing funding for future surveys. They provide an authoritative and transparently impartial method for tracking public perceptions and expectations of standards in public life. They give all concerned with standards in public life feedback on how the British people view a fundamental element in the working of our democracy. Sir Nigel is firm in the belief that the value of the public attitudes survey could not be replaced by a series of ad hoc surveys, conducted by bodies other than the committee. Such surveys would lack the authority derived from the committee’s own authority and knowledge, as well as the continuity provided by the regularity and consistency of the committee’s surveys. This would make it virtually impossible to identify trends and changing attitudes.

I can only echo Sir Nigel’s words and ask the Minister to consider the long-term implications of the Government’s decision to cease funding. The work of the Committee on Standards in Public Life is admired by the rest of the world for its independence and robust defence of standards. It will appear very strange for politicians, who admittedly are not too high on the popularity poll, to take the decision to weaken fundamentally the authority of these surveys.

The Future of the Civil Service

Baroness Donaghy Excerpts

Thursday 16th January 2014 Lords Chamber

[Baroness Donaghy (Lab)]

My Lords, I thank the noble Lord, Lord Hennessy, for introducing this debate and echo the concerns of others that the ingredients for improving efficiency and effectiveness in the Civil Service are not even provided at present. I was a member and former acting chair of the Committee on Standards in Public Life. We did a considerable amount of work on the role of the Civil Service and the importance of its independence. I wish that I had more time to say more about that.

Secondly, as chair of ACAS, I was responsible for promoting good employment relations. Had I been approached about whether a 30% reduction in the number of senior civil servants would improve employment relations and increase effectiveness, I would have been delighted to give my view.

It is extremely important to be aware of the distinction between good employment relations and Civil Service independence, and not confuse the two. When I arrived at ACAS—and its staff were Civil Service-related—it was clear that there was a need for a major reorganisation to recognise the changes in the world of work. This was a big project that involved the staff and was achieved with consent. It took time. If you are going to get the best out of staff, you need to inspire and motivate. Even within the term of one government, there can be between two and eight changes of Minister and junior Minister, all with different priorities. A new Minister comes in and says, “Why are we wasting taxpayers’ money on this?”. The Civil Service has to be able to show the origin of the project, usually the Minister's own predecessor, so accountability is extremely important.

Ministers with perhaps only one or two years of office before them naturally want to get things done. If they see Civil Service caution as an obstacle, they are tempted to be surrounded by their own creatures. Of course, there are Ministers with experience who have been managers. Too often, however, our leaders come from a much narrower background and have absolutely no experience of management or transparent appointment procedures. To extend political appointments will only make a bad situation worse. I only hope that there will be a code of conduct to ensure transparency of appointment and pay. If the limit for Civil Service commissioners’ approval remains as high as £84,000, it will miss the point. Some of these prime ministerial wannabes will do it for nothing and will come from a background where they can afford to. While I accept that project management in government does not have a great record, let us be clear: it can happen even when a non-civil servant is drafted in from top business. The MoD might well be a good example.

Finally, enshrining Civil Service objectivity in law was a good thing and I acknowledge the Government’s achievement in that. But it is in danger of being a totem when huge staff cuts and the growth of political cronyism are the reality.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Baroness Donaghy Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Baroness Donaghy (Lab)]

My Lords, I have three reasons for wishing to speak in this debate. First, I am a former member and acting chair of the Committee on Standards in Public Life. The noble Viscount, Lord Younger of Leckie, and the noble Lord, Lord Lang of Monkton, referred to the work of that committee, which spent considerable amounts of time looking at the well-being issue. There is no doubt of the importance of that area. I remember chairing a meeting in which a number of professional associations connected with lobbying were proposing a voluntary code of conduct. The real problem is to identify what constitutes lobbying or a lobbying group. During the meeting it became clear that those who abused the process would never volunteer to sign up. We were talking to the good guys. I do not underestimate the problems that the Government have in establishing clear criteria and an effective registration system: it is not easy. However, this Bill will not stop the big players or catch the bad players. It needs a major rewrite and a cross-party approach.

My second reason for speaking is as a former chair of ACAS. The certification office, which is referred to in Part 3 and has not had very much attention up to now, was part of the ACAS family. I know the excellent work that it does and I regretted that it was listed in the bonfire of the quangos. Was that only one or was it two years ago? I fully accept that it was a merger of two tiny organisations with the loss of one photocopier and that it was done for PR reasons so that the Government could claim that they were cutting red tape. The certification officer was and is required to submit an annual report to the chair of ACAS and to the Secretary of State at BIS. Just as I received them when I was chair, the new chair of ACAS will similarly receive those reports. I wish Sir Brendan Barber a very successful tenure as the new chair of ACAS.

Having claimed to scale down the certification office, the Government are now going to increase its role substantially. I understand that Ministers are setting aside £160,000 for this, so at least they recognise the increase in administration. Whatever the Government decide to require of the certification office, I am confident that it will deal with it in its usual competent way. However, I have to ask for an assurance from the Minister on a number of points. Nothing in the Bill will give the certification officer extra powers to stop industrial action or to issue injunctions. I am assuming that this will continue to be dealt with by the courts and is not an extra role for the certification office. I want a categorical assurance that trade union members in sensitive occupations such as prison officers will not be at risk of their home addresses being exposed, particularly those prison officers who work in Northern Ireland.

I also want an assurance that it is not the Government’s intention to politicise the post of certification officer. It enjoys a good deal of trust and confidence, which, once lost, would be difficult to regain. I remind the House that the certification office registers employers’ associations as well. It does not have a political fund, just like the majority of trade unions do not have a political fund. Political funds are clearly the focus of this Government’s attention. For example, if you are an employer in the nuclear power industry and you succeed in having a full-time secondment to BIS, as has happened and probably will continue to happen, who needs a political fund? In fact, who needs to lobby at all?

It is not my intention to spend time on the legal aspects of Part 2. Others are far better qualified than me to cover this. However, the Political and Constitutional Reform Committee, as has been said, in its comments on the Bill has said that it is “seriously flawed”. It calls for the Bill’s withdrawal and for a special committee to be charged with improving the Bill within six months,

“because it is in all our interests … to produce an Act that works”.

I certainly support that recommendation.

I am also grateful to Citizens UK for its briefing on Part 2. It is a civil society organisation bringing together faith groups, community and educational institutions, trade unions and other membership-based organisations to campaign on issues such as social care, the living wage, street safety or the civil status of immigrants. It seeks to achieve change by dialogue and consensus, rather than by confrontation. Citizens UK has written that,

“the Bill represents a severe curtailment of democracy and the right to campaign”.

If peaceful, official organisations are silenced in the year running up to elections, that may well lead to a spate of spontaneous or unorganised activity, to which the noble Earl, Lord Clancarty, has already referred. That could be highly effective but possibly unsafe.

If Part 2 were to prevent the National Union of Students, for instance, and individual student unions from campaigning on higher education fees, what is to stop individual students from driving around university towns with a large van with a screen on top showing a DVD on a continuous loop of Nick Clegg saying, “I’m sorry. I’m sorry. I’m very, very, very sorry” for the change of policy on fees? We may see some interesting initiatives.

My third and final reason for contributing is as a former president of NALGO, now UNISON, and a former president of the TUC. I was a lay activist and not a full-time official. I was in a trade union which did not affiliate to the Labour Party or have a political fund. It was only when NALGO was prevented by the courts from campaigning for public services that we decided we should have a political fund. The vote in favour was overwhelming. The general political fund, as it was called, gave money to various causes and political parties and groupings, and continues to do so. It produces an annual report which is summarised in the union journal so that 1.3 million members can read it.

Only when the merger between NALGO, NUPE and COHSE took place did we have to come up with a solution about party political affiliation as the other two unions were affiliated to the Labour Party. The solution was elegant. Members could choose to join the general political fund, the Labour Party affiliated fund, both funds or neither. There were four choices. If noble Lords will excuse the pun, I am labouring this point because every union has a varied history and traditions. Some 166 unions send returns to the certification officer and only 15 unions are affiliated to the Labour Party. Part 3 will affect all those unions if they have more than 10,000 members. Those with below 10,000 members constitute a mere 2.7% of the total. This fishing net—fishing was referred to earlier—has such a small gauge it would probably be banned by the EU.

The Minister in the House of Commons acknowledged that maintaining an accurate register of members is already difficult. Workers move from building site to building site—that is, if they have not been blacklisted by some hidden lobby group. Workers drive around the country or their town. They do shifts and hot-desking. They are volunteers and they do a substantial amount of the work in their union. Adding to their burden could be seen as anti-trade union. The Government should be very careful not to focus all their attention on a few trade union full-time officials. The effect on lay members will be the test. It will not undermine confidence in the union. It will be seen as part of the package of pay freezes, changes in pensions and loss of job security.

In many cases, employees and their trade union rely on the employer for up-to-date membership lists. Apart from giving more work to the employer, the proposed legislation could see a situation where the employer provides a list and then complains to the certification officer about its accuracy. Part 3 is an unnecessary and irritating diversion from the real issue of lobbying, which is where the power really lies and who abuses that power.

Accountability of Civil Servants: Constitution Committee Report

Baroness Donaghy Excerpts

Thursday 7th February 2013 Lords Chamber

[Baroness Donaghy]

My Lords, I congratulate my noble friend Lady Jay on her presentation of this important report. We were both members of the Committee on Standards in Public Life and our tenure overlapped for a short while. I much admired her commitment and objectivity on the subjects covered in this report and I continue to admire her contributions in the House.

I was a member of the committee from 2001 to 2007, when it was chaired by Sir Nigel Wicks and Sir Alistair Graham, in two very different styles. I was also acting chair of the committee during most of 2007, pending the appointment of Sir Alistair’s successor, Sir Christopher Kelly. The committee covered all the subject areas in this report and I draw attention to its ninth report, Defining the Boundaries Within the Executive: Ministers, Special Advisers and the Permanent Civil Service.

One of the important jobs of the committee, particularly for the chair and secretariat, was meeting delegations from other countries that aspired to the principle of political impartiality: a Civil Service able to transfer its loyalty from one elected Government to the next, and upholding integrity and appointment on merit. Many of those countries were in a pre-Northcote-Trevelyan state, where patronage led to the appointment of,

“men of very slender ability, and perhaps questionable character, to situations of considerable emolument”,

in the Civil Service. Other countries aspire to our system. There is a very thin line—one that newly elected Governments do not always appreciate—between our system and the return to patronage and corruption. I particularly like the quotation in the report by the noble Lord, Lord Wilson of Dinton, who, in a plea to allow the Constitutional Reform and Governance Act 2010 to settle in, said:

“There has always been a tension in politics between patronage and merit; it is an old battle ... Merit ultimately won, but the patronage virus is never dead and constantly needs to be beaten back”.

It is particularly on the appointment of senior civil servants that this pressure is felt. I am concerned at the continuing rumours that the Cabinet Office Minister is seriously considering legislation to give Ministers greater powers of appointment. Francis Maude has said that,

“It would be perfectly possible under the legislation passed by Parliament in 2010 for the Civil Service Commission to provide ministers with a choice between appointable candidates. I am sorry the commission has decided not to support this”.

The Committee on Standards in Public Life often met organisations covering similar areas, including the Civil Service Commission and the Office of the Commissioner for Public Appointments. I presume that that still happens. We were aware then of pressures on the Civil Service Commission to change its criteria. I imagine that the same is happening now. I hope very much that the Civil Service Commission will stand firm on this issue of further ministerial involvement in senior appointments.

The report holds the line to a large extent, for which I am grateful. However, I cannot resist commenting on the recommendation that Ministers contribute to the appraisal of certain civil servants. When I was chair of ACAS, I was asked to participate in a Civil Service appraisal exercise to ensure fairness between departments. I freely admit that I was overwhelmed by paperwork, with a lever-arch file for everyone under consideration: a veritable mountain of information. How this involvement in appraisals will work needs careful thought. With the greatest respect to Ministers, some will be better able or prepared than others to enter this arena.

I welcome the fact that the committee does not recommend that accountability and responsibility are seen as two separate elements. That way confusion lies. Yes, I checked the Oxford English Dictionary this morning. “Accountable” is defined as,

“Bound to give account, responsible”,

and “responsible” is defined as,

“liable to be called to account”.

I also welcome the recommendation in paragraph 53 concerning the Civil Service as a constitutional check. Civil servants who are accounting officers take their role very seriously and it is a real check on ministerial nonchalance. I know of at least one example where a formal, written direction from the Minister was sought. To add any additional powers or be overprescriptive would act as a barrier to the working relationship of a Minister and his or her senior civil servant.

The committee is absolutely correct in paragraph 59 that,

“ministers are responsible for the actions of their special advisers”.

However, in practice it is all too easy for a Minister to distance himself from the rogue activities of a special adviser, and too little is known about the day-to-day working relationship of more junior civil servants and special advisers. Ministers have been known to encircle themselves with their special advisers—if it is possible to encircle with two people—who then act as a barrier to the extent that a special adviser starts to look very much like a manager. A civil servant wishing to do well and mindful of their future career is unlikely to complain to their senior about this. Of course, there are also examples of the relationship working well. I am simply saying that too little is known about the day-to-day practicalities.

On the issue of project management, I believe that this subject deserves a whole separate debate. There are huge timing problems on large projects, largely because of delays in releasing money, interdepartmental differences in priorities, constant revision of the details of projects and the appointment of consultants who charge the right price but are not up to the job. I am sure we could all write a book about that. The committee’s recommendation that,

“there should be a presumption that a single senior civil servant will lead the implementation of a major project from beginning to end”,

sounds good but will probably not work in practice unless the responsibility rests with a single department and no one has the right of veto. Peter Riddell referred to the fact that some projects lasted,

“the time of three Secretaries of State”.

That can be a very short space of time in some departments. At a more junior ministerial level, the Minister in charge of construction averaged eight months in the last Government.

My biggest concern about the report is in the area of accountability of civil servants to Parliament. I understand that there is probably huge pressure to change the rules and that the committee wants to tilt the balance,

“more in favour of the right of committees to request attendance of specific individuals”.

This is on the back of what is seen as a resurgence in the activities of Select Committees. It is not the first time and will not be the last; Select Committees rise and fall depending on the personality of the chair and the issues under consideration. I attended a number of Select Committees in the distant past, and received absolute courtesy from some and absolute rudeness from others. The big difference between my appearances—on dull and worthy subjects, it has to be said—and those of civil servants was that I could answer back. Civil servants should continue to give evidence to Select Committees,

“on behalf of their Ministers and under their directions”,

as stated in the Osmotherly rules. No one is trying to say that civil servants are,

“unfortunate, beleaguered public servants who cannot speak for themselves”.

I agree with Sir Alan Beith on that, but I do not agree with his conclusions. Of course Select Committees have the right to ask questions and elicit the truth, but care should be taken about the atmosphere surrounding such questioning. If I was a civil servant listening to the radio announcement that my head was going to be put on a spike by the chair of a Select Committee later that morning, I do not think it would encourage a free and frank exchange.

I hesitated about mentioning the name David Kelly as I feel sure his family do not want what happened to be resurrected and would want to live in peace. However, I was in a building with a number of senior civil servants when the news broke about his death. What was significant was not that they were terribly upset—of course they were—but they felt that their reputation had been impugned. It was an era when civil servants were being encouraged to be bold and imaginative and to take the initiative, and the encouragement of outside appointments was the order of the day. No one was going to be bold and imaginative after that day. So the context in which a civil servant is questioned, the tone adopted and the recognition that the quality of a policy is not for comment by that civil servant are extremely important.

Finally, with my ACAS hat on, I would advise caution about Select Committees recommending, even in extreme cases, that a,

“department consider appropriate disciplinary procedures . . . where there are strong grounds for doing so”.

What would the strong grounds be? If any Permanent Secretary found himself or herself in such a position, I would be very happy to represent them.

In conclusion, I am grateful for the opportunity to comment on this very measured and balanced report. The relationship between politicians and civil servants is endlessly fascinating, and we must not forget that the eyes of the world are on us whenever we make changes.