Lord McKenzie of Luton
Main Page: Lord McKenzie of Luton (Labour - Life peer)Superannuation Bill
Lord McKenzie of Luton Excerpts
Baroness Donaghy
My Lords, I have pleasure in moving this amendment on behalf of my noble friend Lady Turner of Camden, who, as noble Lords will know, was taken ill on Monday. She was unable to attend the House today, but I am pleased to say that she is now at home. I am a lifelong admirer of Lady Turner and I hope that I can do justice to her amendment. I have a guess that this amendment might not be received in the same way as one or two of the previous ones.
These are worrying and uncertain times for civil servants, with their job security, pensions and standard of living under attack. I am sure that many noble Lords have received letters from individual civil servants about the impact of this Bill on their lives. They entered the Civil Service with certain expectations about their job security and pensions. The impact on their morale should not be underestimated, and I am concerned that the public focus on Civil Service pay and pensions is always on the higher paid. I notice that when this was discussed on 10 November, one contribution made out that an annual salary of £40,000 to £50,000 was the norm. I know that Members of this House will realise that that is not the norm. The majority of civil servants earn very modest salaries and even more modest pensions. It is not my intention to hold up the House by quoting the figures, but I know that the Minister will be aware of them.
I acknowledge the reassurance of the noble Lord, Lord Wallace of Saltaire, that negotiations will be genuine. However, the general tenor of the Bill will not reassure civil servants. I believe that it is reasonable to reach agreement with trade unions. There is a long and honourable tradition of this in the joint Civil Service negotiating bodies and I hope that the Bill’s tenor will do nothing to undermine it. It is in that spirit that I move the amendment tabled by my noble friend Lady Turner.
Lord McKenzie of Luton
My Lords, I thank my noble friend Lady Donaghy for stepping into the breach. She did indeed do justice to our noble friend and colleague Lady Turner. Perhaps we can take this opportunity of sending our best wishes to her for a speedy recovery.
I very much agree with the thrust of the amendment, which pretty much replicates a debate that we had in Grand Committee. The difficulty, in a sense, is that the approach is predicated on Clause 1 not standing part of the Bill, so there is a potential inconsistency between these two provisions. In so far as the cap is concerned, we are very clear that it should go from the Bill in its entirety, which would negate this amendment if it were to be pressed and were successful. However, we agree that there must be consultation with every effort made to end up with a negotiated settlement. My right honourable friend in the other place, Tessa Jowell, made clear that we accept that there would be circumstances in which changes would have to be made that did not rely on agreement. We do not recognise this lightly, nor indeed does the Minister. To that extent we may differ a little on my noble friend’s amendment, but we have some other amendments constructed to achieve in large measure the same thing, which is to get rid of the caps.
Lord Maclennan of Rogart
My Lords, I thank the noble Baroness for moving the amendment and I join the noble Lord, Lord McKenzie, in sending good wishes to the noble Baroness, Lady Turner. However, I fear the amendment as drafted goes too wide, as was implicit in the remarks made by the noble Lord, Lord McKenzie. It might have the effect of reinstating the veto, which it is the purpose of this Bill in large measure to withdraw. I am glad to recognise what was said in another place by Tessa Jowell and the inconsistency of that, as I see it, with the amendment tabled.
“(2) Where a civil service compensation scheme, or any part of that scheme, is challenged in Court, the provisions of that scheme and any settlement made under that scheme shall remain in place until the Court has made a final determination about the legality of that scheme.”
Lord McKenzie of Luton
The purpose of this amendment is to consider alternative options to resolve the problem which the caps are said to be intended to address. We remain firm in our view that the caps are not necessary, are counterproductive and would present their own series of operational complications if they were ever in effect and applied.
As a responsible Opposition we have sought to get to the heart of the issue. Following deliberations in Grand Committee, we received a helpful letter from the Minister, dated 16 November. Based on this communication we understand that the Government’s concern is that, in the event of a challenge on the legality of any new scheme, the courts will reinstate the unaffordable current scheme. In his letter, the Minister notes that once litigation has been started, that alone will put a question mark over which scheme should be regarded as being in force at any one date before all the appeals have been exhausted. The Government are concerned that, in this interim period, the default position as applied by the courts will not be the new scheme which we understand the Minister intends to lay before Parliament in January, but the more expensive current scheme. The Minister states in his letter that it should be Parliament that decides the default position—which, by implication, is to be the caps. The Minister argues that if the challenge is on human rights grounds, the courts would not have the right to set aside limits in primary legislation but would be limited to declarations of incompatibility.
The purpose of our amendment is to address this uncertainty in another and, we hope, less complicated and more effective way. The effect of the amendment would be to state quite clearly in primary legislation what would happen during a period when the scheme was undergoing a legal challenge that had not reached a conclusion. Rather than revert to the caps, the Act would stipulate that the scheme in operation would be the default position until the validity of the new scheme had been determined. Things would eventually come out in the wash when the court process had run its course. We will come to a substantive debate on the caps in the next group of amendments, and we consider that there are compelling reasons to remove the caps in their entirety. We are supported in this position by the recent report by the Joint Committee on Human Rights which cast doubt on the benefit or extent of the certainty that the Government would achieve by relying on this mechanism.
I should make it clear that we do not intend to press this to a vote, nor are we wedded to this precise wording. However, we are firmly of the view that if the Government consider that a fallback in primary legislation is necessary—we do not—it must not be the caps locking in via primary legislation. The scheme most recently introduced, albeit by order, is potentially one way of achieving this. I look forward to the Minister’s reaction to this amendment. Perhaps, when he responds, he will also cover what alternative mechanisms have been considered to address his concern. I beg to move.
The Chairman of Committees (Lord Brabazon of Tara)
I understand that there is a mistake in Amendment 6 as printed in the Marshalled List. Instead of “(2) to (ii)” it should read “(2) to (11)”.
Lord Wallace of Saltaire
My Lords, I appreciate that we will come on to caps in a later amendment, so it is a little difficult to know whether to respond in detail now or to leave it to later. We discussed this delicate set of issues quite extensively in Grand Committee, and I subsequently set out in a letter, which the noble Lord, Lord McKenzie, has mentioned and which has been placed in the House of Lords Library, that I wished to avoid being in the position that followed the High Court’s judgment of May 2010, which resulted in the February 2010 arrangement being squashed and the pre-February scheme being largely revived. I reiterate our strong intention to ensure that the proposed new scheme is legally robust and our consequent view that the scheme would ultimately survive any legal challenge.
Nevertheless, it is open to anyone to seek to challenge the scheme now or in the future, regardless of whether their intention is rational or their arguments are ultimately found to be meaningful by the courts. Such a challenge could result in the scheme being suspended until due legal process has been pursued. The Government take court rulings very seriously; we would always give the most serious consideration to court judgments and would certainly take the necessary steps to take account of any final ruling. As I previously explained, the question that arises is what the default position should be during any period of uncertainty caused by litigation. The Government continue to believe that it is right that Parliament, a democratically accountable body, should decide in an Act of Parliament what the default position should be, and that is the reason for Clause 3 as it is currently drafted.
I do, however, feel certain that a court would have views of its own about an Act of Parliament containing the approach set out in Amendment 6. This seeks, in effect, to oust the court’s power to strike down a scheme, an approach which the courts have often felt to be misconceived and on which the Government would not therefore be confident to rely. I also note that the drafting of the amendment is a little vague, which would not be helpful in conveying to a court a clear meaning of Parliament’s intent. For example, given all the opportunities for appeal or for proceedings to be taken on to the European Court, how could anyone be certain that the “final determination” has been made? Even if the intention and the process could be made sufficiently clear, I am not convinced that a court would always accept that a compensation scheme that is being challenged qualified as a scheme that should remain in place during that challenge.
I emphasise once again, as we did on several occasions in Grand Committee, that the coalition Government hope not to need to use the powers in Clause 3, nor the powers in Clause 4 that support them. What we want is a new, reformed, sustainable, affordable and fair Civil Service Compensation Scheme that can be implemented once this Bill has received Royal Assent and which will mean that we will never need to use the caps in Clause 2. If we are taken to court and therefore need to fall back to a provision that means that the necessary reductions in the Civil Service workforce can be made without disproportionate cost and perverse effects, it is more reasonable to rely on such caps than on a clause that attempts pre-emptively to bind the court.
We shall shortly have the chance to discuss Clause 3 again as drafted, along with the provisions in Clause 4 that provide for the repeal, extension or revival of Clause 3. I do not think it would be right for us to agree to an amendment that might be interpreted by some as seeking to constrain the powers of the courts. So, for the reasons that I have given, I hope that the noble Lord will withdraw his amendment.
Lord McKenzie of Luton
My Lords, I thank the Minister for his explanation of why the Government are unable to accept this amendment. As I explained when I introduced it, we did not propose to test the opinion of the House, but simply to probe alternatives to the use of the caps as the default position. With respect, the Minister has said why he does not like our formulation, but he has not dealt with the point about what formulations other than the caps have been considered to create the certainty that he seeks and considers is necessary in circumstances where there is a challenge. We do not object to Parliament deciding in an Act of Parliament what that default position should be.
I take the point that the formulation of our amendment could be seen as seeking to oust the power of the courts.
Lord McKenzie of Luton
My noble friend suggests otherwise. I am reassured by that intervention, if it is in support of our amendment. Will the Minister and his team reflect further on this matter? It is difficult to conceive that the only default position would be the caps. We will come on to why the caps are so offensive to many and why we think that it is misguided to retain them. If he Minister does not like our alternative formulation, will he enter into discussion to see what alternatives there might be that do not involve the default position being those caps?
We have all had correspondence from people about their fear of the caps and what it may mean to their compensation arrangements. Being able to remove that without wishing to detract from the Government’s position of wanting some protection and a fallback is worthy of further exploration. I simply do not believe that you could have only the caps and no other formulation. I beg leave to withdraw the amendment and, in doing so, I ask the Minister to reflect further on this issue. We would be happy to have discussions with him between now and Third Reading to test the alternatives that might give him the protection he wants without those caps.
Lord McKenzie of Luton
My Lords, in speaking to Amendment 7, I shall speak also to the other amendments in this group. The purpose of this amendment is abundantly clear. It would remove Clause 3. Amendments 9, 10 and 14 are consequential, as the removal of Clause 3 would obviate the necessity of sunset and sunrise clauses, and provisions relating to orders. With the deletion of Clause 3, the caps, which have been at the core of so much dissatisfaction with this Bill and with this process, would go. They remain a continuing source of anxiety and many civil servants who fear redundancy believe that their compensation will be a fraction of what they hitherto considered to be their entitlement.
The caps set out in the Bill are not only punitive—certainly in relation to the current scheme—but they are, in terms of the Government’s own position, redundant. If the caps are a blunt instrument supposedly needed as a basis for discussion and to force agreement with the trade unions, they are no longer necessary, as an agreement is no longer a precondition of introducing a changed compensation scheme. We know that the Government are actively working up the detail of a scheme, which is expected to be introduced shortly after this legislation enters into force. Before the scheme order is laid, Clause 3 will have to be repealed for the scheme to be effective.
Lord Wallace of Saltaire
My Lords, the noble Lord opposite has raised a wide range of issues about the Bill. I recognise, again, the concern that a lot of civil servants have about the caps—perhaps on the misunderstanding that these are the only thing on offer. The Government have made it clear—and I will spell this out in answering a later amendment—that it is their intention to be more generous than the minimum caps expressed in the Bill. I remind noble Lords that Clause 3(11) gives the Government power to increase the compensation scheme but not to decrease it.
As noble Lords will recognise, the Bill at various points goes rather deeply into the relationship between Parliament and the courts. To anyone who would like to sink even more deeply into that area, I can recommend the evidence being given by various law professors to the European Scrutiny Committee in another place, where the doctrine of parliamentary sovereignty and the extent to which it depends on court rulings are being discussed in absorbing but extremely lengthy detail.
Today, the Minister for the Cabinet Office wrote to the chair of the Joint Committee on Human Rights. That letter will be in the House of Lords Library by the end of today; I hope that it will also be copied to noble Lords opposite. Perhaps it would be helpful if I read out two paragraphs from it. They state:
“I welcome the Committee’s acknowledgement that measures interfering with the peaceful enjoyment of possessions are capable of being justified by a sufficiently compelling public interest provided the interference is not arbitrary, is proportionate and does not affect the very substance of the right … Your report goes on to say that in the context of economic and fiscal policy generally, the European Court of Human Rights allows a considerable degree of latitude to States in deciding what is in the public interest, and that it is reluctant to interfere with that judgment unless it is manifestly without reasonable foundation. You also note that the European Court of Human Rights has generally been deferential to arguments of fiscal necessity although it has carefully preserved a scrutiny role and made clear that even interferences which are justified by fiscal considerations must not be arbitrary or so excessive that they remove the very essence of the right. As both this Government and its predecessor concluded, the current scheme is simply unaffordable for the taxpayer and over-generous when compared with comparable schemes elsewhere”.
I reiterate the point that the caps that Clause 3 sets out on the value of benefits under the Civil Service Compensation Scheme are a fallback. I have just explained that the Government are not persuaded that there is a better way to provide it. There is broad agreement that the compensation scheme must be reformed. Your Lordships will appreciate that, after two years of negotiation, we now need to proceed with a new scheme with some urgency, not only because the economic situation requires it but because civil servants will become even more anxious if the current uncertainty remains for longer.
The retention of Clause 3 means that a failure to implement a new scheme would prevent government departments making the changes to their workforce that they need to make for the future as well as now. The clause guards against a situation in which we would have no choice but to revert to the old scheme, which is, as I have said, unaffordable, unsustainable and out of place.
I appreciate that the other amendments which are grouped with Amendment 7 are consequential on it, since, if Clause 3 were not part of the Bill, much of Clause 4 would also not be needed. None the less, I am well aware that there is also concern about the power in Clause 4 to extend or revive the caps in the Bill, particularly some of those that would be among those deleted by Amendments 9 and 10. As Members who have read their Marshalled Lists will note, I have already put down amendments, which I hope we will have the opportunity to discuss later, which seek to respond to points made in this House and the other place about some of those delegated powers.
The Government are determined to ensure that there is certainty that a new and affordable compensation scheme can be put in place. I very much hope that that is the consensus among all your Lordships. The Government remain convinced that Clause 3 and the provisions that support its variation are the appropriate and proportionate way to secure that certainty. For these reasons and all those that I have previously given, I ask the noble Lord opposite to withdraw Amendment 7. I repeat that I shall say something further on a later amendment about the way in which we hope to provide a more generous compensation scheme.
Lord McKenzie of Luton
I thank the Minister for what he said in his response, although it does not take us far enough. I look forward to what he has to say on subsequent amendments and look forward to reading a copy of the letter from the Minister for the Cabinet Office.
From what was quoted from that letter, it did not seem to deal with the particular point about the caps being arbitrary and disproportionate. The Government in their own language have talked about them as blunt instruments and have identified them as a minimum and as a starting point for negotiations. The Government themselves have, in agreement with most of the trade unions, developed a scheme which is substantially in excess of what those caps provide. The very existence of those caps, according to the JCHR—and one can see the reasoning—are a threat to the compatibility of the policies with the convention. It does not help the Government’s case at all to retain those caps. On the basis of what the Minister argues, is it not the case that it would take only one person to appeal the new scheme for the Government to consider imposing the caps? They would remain an ever present threat for all of our civil servants while that is under way. That is one of the reasons why they should go from the Bill.
I can see from the Minister’s face that I am unlikely to convince him and to cause him to change his mind immediately. What I need to do is to test the opinion of the House on this matter.
“( ) Section 3 comes into force at the end of the period of 1 month beginning with that day.”
Lord McKenzie of Luton
Amendment 8 addresses a practical issue concerning the timing for a new scheme, the coming into force of the Bill and the operation of any caps, now that they look likely to remain. It would delay the commencement of Clause 3, which sets the caps, until a month after the Act is passed by Parliament. Indeed, we would be amenable to a later date, should the Government consider that more time is necessary; or to the more flexible option of that clause being subject to a commencement order to be laid by the Minister.
We took from our earlier discussions that the sequence of events would be as follows. On day one, the Act would enter into force. On day two, Section 3 would be repealed by order. On day three, an order outlining the new CSCS would be laid, to be brought into effect immediately. However, from our discussion with the Minister and his officials earlier this week, it appears that there may now be a noticeable gap between the entry into force of the Act and the laying of the scheme order. This may be influenced by the timing of the conclusion and outcome of trade union ballots, which we understand will be on 14 January 2011. We are concerned that this delay will mean that people will be subject to the effects of the caps before the Government get around to repealing them and making an order for the new CSCS.
This produces an intolerable situation, in which those made redundant or agreeing to voluntary separation between entry into force of the Act and the laying of the order for the new scheme would face the limits imposed by the caps. It would be possible to cater for this by inserting a delay for the coming into effect of Clause 3, hence our amendment. We have assumed a delay of one month but the Minister may wish to comment on whether this period is likely to be sufficient. As noted, an alternative way of dealing with this would be for there to be a power to bring the section into being by order so that alignment could be assured, although Clause 4(4) might need to be adjusted if this route were followed.
This practical issue is yet another reason why the caps are more trouble than they are worth and why they should be removed from the Bill, but I acknowledge the vote that we have just had. However, if removal or delayed introduction are not supported, what will happen in this interim period? Will departments be advised not to proceed with any separations until a new scheme or order is made? What advice has been given to date? When we raised this issue with the Minister in our meeting, it was clear that officials had not given total thought to the matter. What reassurance can the Minister now give to civil servants who are expecting redundancy? If Royal Assent is given before the Recess and the new scheme does not come into effect until mid-January, or even later, it will consign potentially thousands of civil servants to a pretty miserable Christmas. How will the Minister ensure that there is a level playing field in operation? Since each department is, I understand, a separate employer, it would remain within the discretion of a department to treat individual employees as it saw fit. In the absence of repealing Clause 3, this would mean that it had to impose the statutory maximum on any redundancy payments. This would be the law. What is to stop departments with hard-pressed budgets being tempted to proceed in the window where the caps drive the compensation limits? Should this happen, what commitments should be given about bringing people up to the level of the new scheme when this is introduced?
These are real practical issues. We do not raise them just to be picky over the wording of the Bill. If the caps are to take effect in the circumstances outlined, they will have a real and detrimental impact on the lives of people subject to the scheme. If the Minister is not able to meet us on the detail of the amendment, I would press him to be very clear on the record about how the Government are to handle these matters. I beg to move.
Lord Maclennan of Rogart
My Lords, I feel some sympathy with the practical inquiries that have been made. It appears unlikely that there will be no redundancies between the date of the passage of the Bill and the introduction of the new compensation scheme. It is also possible that someone may test the compatibility of the Act with the human rights convention before the new compensation scheme has been introduced. Some reassurance is needed. The Government have given indications that they do not wish there to be a significant lapse of time between the enactment of the Bill and the introduction of the new scheme—which would obviate the problem—but that is not now a certainty. In those circumstances, if the Minister is not able to answer the question today, it would be very helpful if he undertook to answer this after due consideration of the issues raised by the noble Lord, Lord McKenzie.
Lord Wallace of Saltaire
My Lords, the Opposition wish to cast me—or the Government—as Scrooge, or I believe it is the Grinch that the younger generation talk about. The idea that the Government are looking for the opportunity to dismiss huge numbers of civil servants between 23 December and 10 January is an interesting but an unlikely one—indeed, an unreal one. The Government are still looking to lay the new scheme on the second sitting day following Royal Assent. An order to move the caps would be laid in the first sitting day following Royal Assent, which would have advice issued on the operation of the cap by the Minister to the department. As we have already said, we would be minded to increase the level if no agreement has been reached. As the noble Lord has already remarked, a number of unions are already balloting their members on the scheme that has currently been offered, with the negotiation and participation of several of the unions concerned.
One Government or another have, for two years or more, been negotiating on this scheme. Further delay does not seem desirable. I offered repeated assurances about the Government’s purpose in retaining, and our intentions on using, Clause 3 in the Bill—whether there might be some circumstances in which, for whatever reason, the new scheme could not be implemented. We do not see a justification for any further delay. I am not persuaded that we should accept Amendment 8 or any other proposal to further delay any part of this package. The Government are able to carry through the implementation rapidly. Members will understand that government, as well as Parliament, tends to slow down a little over the Christmas and new year break. If these matters are not completed by the time we rise on 22 December, action will be taken very quickly when we all return on 10 January. It is not an enormous delay and I therefore do not see the necessity of the amendment. I therefore ask him to withdraw it.
Lord McKenzie of Luton
My Lords, I thank the Minister for his response but it does not altogether deal with the issue that I seek to raise in this amendment. I can see that if the new scheme proceeds very quickly in early to mid-January, there is a limited window within which my concerns might arise. However, as I understand it, there is no certainty that the date will be the middle of January; it could be later. We do not know what will happen with the trade union ballots and whether that may affect the Minister’s view. This is absolutely not about delay because it does not touch on the date for the introduction of the scheme; it is about seeking to align the time at which the caps bite with the scheme, otherwise you would have a period in which the caps drove the compensation scheme, and that is a cause for concern.
I can see that encouragement and guidance might be given but, at the end of the day, departments are their own masters in this matter and in circumstances where departments are faced with very squeezed budgets the measure could give rise to difficulties. If the scheme is laid on 10 January—I think that is what the noble Lord suggested—I accept that there is only a very narrow window. If there were to be a wider gap—I think that this is taking us on to the next amendment—one way the Government might respond would be to increase the caps under Clause 3(11). That would certainly help to ameliorate the issue but not deal with it completely. Perhaps we should await the debate on the next group of amendments, but the Minister might reflect further on this. I hope that he will be as specific as he can on the record—if not today, perhaps at Third Reading—on a not insignificant gap opening up between the date that the caps come into effect, the date that the scheme is laid and comes into effect, and the Government’s response to that. That would be helpful because, as I say, we have identified a genuine concern. I am grateful to the noble Lord, Lord Maclennan, for recognising that concern. I am happy to leave it at that for now but ask the Minister to reflect further on this to see what reassurance he can give on the record in the event of the gap widening. Subject to that, I beg leave to withdraw the amendment.
“(a) may only be made if, at the same time, the Minister makes an order under section 3(11) of this Act to align the provisions of section 3(2), as far as practicable, with the current terms of the civil service compensation scheme; and(b)”
Lord McKenzie of Luton
My Lords, in moving Amendment 11, I shall also speak to Amendment 12. We have been unsuccessful in deleting Clause 3, although we expect it to be repealed at some stage before the new scheme is introduced. The Minister has confirmed that that is the case. Government Amendments 13 and 15, which we will support, mean that Clause 3 can be revived for a period of up to six months, provided that the revival takes place within the three-year period starting when the Act is passed.
Amendment 11 would require that any revival of Clause 3 must be accompanied with an order under Clause 3(11) uprating the caps to a level consistent with the CSCS then in operation—that is, the revised CSCS introduced by order following the coming into force of the Act. It is accepted that a precise alignment may not be possible, hence the “as far as practicable”. I cannot see that the Government should have any difficulty with this unless there is an issue about wording, which could be revisited at Third Reading. It is understood that this would be their intention in any event. I think that the Minister hinted that that was the case in our debate on the earlier amendment, but perhaps he would confirm that. There would be no downside, as the measure would align the caps only with the new scheme; there is no additional financial commitment. It would help to address the concerns raised by the JCHR and provide some comfort to civil servants who believe that, at the end of the day, the caps will determine what they get.
Amendment 12 would reduce the time during which revival can take place from three years to one year. We have heard no detailed explanation of why three years is included in the Bill, so the Minister might take this opportunity to explain that in a bit more detail. He might also take the opportunity to be a bit more specific about the precise circumstances and the process under which any revival might proceed. I beg to move.
Lord Wallace of Saltaire
My Lords, I thank the noble Lord for the care with which he has approached this entire Bill. It is a complicated Bill and a complicated scheme; all those in the previous Government and in this Government who have been involved in these negotiations will know how complex it is, particularly when issues of judicial challenge come in. I assure your Lordships, once again, that the Government intend to repeal Clause 3 when the new scheme is ready, in order to enable that scheme—as I have explained, we have agreed that it will be more generous than the minimum reasonable levels set out in the caps—to be laid before Parliament and to take effect. It is not our intention to leave the caps in force for any length of time, since we want to make progress in delivering a reformed compensation scheme for the Civil Service. However, if Clause 3 were not yet in force when the new scheme is ready, as we hope will be the case before the end of the year, we would need to do one of two things. We would either proceed with laying the scheme before Parliament, without having available for several weeks the potential fallback of Clause 3, or we would move that a new scheme be put into place at that point.
I have listened with interest to the noble Lord’s detailed arguments and I thank him for giving me notice of Amendments 11 and 12 earlier this week. I have some sympathy for the reasons behind Amendment 11, but I shall explain that there are reasons why the Government are unable to accept this particular approach. The noble Lord has made it clear that Amendment 11 is aimed at testing the intention behind the power in Clause 4 to revive the caps in Clause 3 and to ensure that they would be reviewed if there were circumstances in which they had to be revived at a later date.
Our view is that there are some significant problems with the drafting of Amendment 11, which we do not think could be resolved. First, the amendment requires the revived caps to be aligned,
“with the current terms of the civil service compensation scheme”.
On the face of it, this might mean maintaining compensation payments as closely as possible with the terms of the proposed new Civil Service Compensation Scheme, which it is intended to put in place as soon as possible after the Bill receives Royal Assent. However, if the new scheme were struck down by challenge in the courts, it seems quite possible that it would not be interpreted as “the current terms”; rather, those terms might need to be interpreted as the terms of the previous, pre-2010, scheme, which would solve nothing, as that is the scheme that both this Government and our predecessor concluded must be reformed.
Even if this were not the case, the wording,
“align ... as far as practicable, with the current terms”,
is not at all clear and might itself be subject to challenge. It would not be as simple as the Government changing the caps to the numbers of months’ service specified in the scheme—for example, replacing 15 months with 21 months. We have made it clear that such an approach would not work, as staff accrue compensation payments differently under the existing and proposed new schemes and so simply changing the number of months stated in the caps would not keep compensation payments within the same cost envelope. We are simply not confident that the words “as far as practicable” would provide sufficient flexibility to set caps that would fully take account of differences in accrual or other issues determining the likely profile of departures.
While for these reasons I have considerable difficulties with the drafting of Amendment 11, that is not the end of the matter. The Government have provided in the Bill a power at Clause 3(11) to increase by order the number of months specified in the caps. I emphasise again that this is a power to increase and not a power to decrease the caps. The powers are there for a reason, which is that, just as the noble Lord has indicated, there might well be very good reasons why the caps should be increased should they need to be imposed following a revival of the provisions in Clause 3. If the Government had no intention of ever increasing the caps, they would not have sought this power.
Lord McKenzie of Luton
My Lords, I thank the Minister for what he has put on the record, which is helpful. Obviously we shall want to read what he has said and reflect on it. I noted that there were references to “significant detriment” and “fair and affordable”, which is not overly precise language. However, I accept the thrust of what he said, which provides some comfort on the issue of revival of the caps. The noble Lord, when a little on the back foot, sought to pick away at the detail of an amendment—I suppose I did that as a Minister—but, if necessary, that could be tidied up at Third Reading. The key thing is that we have something robust on the record. I would like to reflect on this and to read Hansard just to see in the cold light of day how far this goes, but it has been helpful. There is certainly no intention to press these amendments to a vote today. I beg leave to withdraw the amendment.