Lord Rooker
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(10 years ago)
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Lord Wallace of Saltaire
My Lords, I thank the noble Lord, Lord Kennedy, for his remarks, which ranged much more widely than the limited proposals in Clause 72. Clause 72, on the whole, makes technical changes to the governance arrangements for the Electoral Commission. Clause 73 makes similar technical and modest changes to the governance arrangements for the Local Government Boundary Commission.
As the noble Lord said, the Electoral Commission is the independent body established by Parliament and overseen by the Speaker’s Committee with governance arrangements set out in Schedule 1 to the Political Parties, Elections and Referendums Act 2000, known to us with great affection as PPERA.
At present, the Electoral Commission has to provide a five-year corporate plan, with the new plan having to be prepared and submitted annually. The National Audit Office is also required to undertake annual value-for-money studies. The Speaker’s Committee has reviewed these governance arrangements, comparing the Electoral Commission with other modest similar-sized organisations, and has recommended the following changes. First, a five-year corporate plan should be produced in the first financial year of a Parliament. The statutory requirement to update this on an annual basis should be removed, although the Speaker’s Committee should retain the right to request updated plans outside the five-year cycle. Secondly, value-for-money studies by the NAO should be linked to the production of the organisation's five-year plan and not on an annual basis.
Noble Lords will be aware that the approach that central government take to the funding of public bodies is through a spending review. These spending reviews are fixed and spending is planned over a number of years. As such, the existing statutory provisions for the Electoral Commission to provide annual updates to their corporate plan seem excessive.
In terms of removing the statutory requirements for annual value-for-money studies, the NAO has said that it supports such a reduction as the current statutory provisions are disproportionate to the size and spending power of the Electoral Commission. Clause 72 simply implements the recommendations put forward by the Speaker’s Committee. The Government see these as sensible and proportionate changes to the governance arrangements for the Electoral Commission
The noble Lord, Lord Kennedy, raised some wider issues about whether it is not now time, after 14 or 15 years of operation of the Electoral Commission, to review the overall balance, and whether the current arrangements, including, as he said, a Select Committee as well as the Speaker’s Committee, provide sufficient oversight. That is an interesting discussion to throw out. As he rightly remarks, we will not get very far with this over the next five and a half months. But this House may appropriately return to this after the election when we have seen how the Electoral Commission has operated with its responsibilities, which are most important in the course of and the run-up to an election campaign. Perhaps at that point he and I and others might talk together about how we take such wider issues further.
Lord Rooker (Lab)
My Lords, before we leave this clause, I would like to take this opportunity to ask the Minister a question. I am a strong supporter of the Electoral Commission, with no qualification whatever; but next year’s election will be the first time that it has had four and a half years to plan for the date. Therefore, is there an absolute rock-solid guarantee that there will be no chaos in any of the polling stations in this country of the kind that occurred in 2005?
Lord Hunt of Kings Heath (Lab)
My Lords, I join my noble friend and add to what he said. My noble friend knows that I come from Birmingham and I was shocked by some of the behaviours I saw outside some Birmingham polling stations, to which I suspect he is referring. I particularly remember a polling station in Moseley, where large groups of men—about 20 or 30—were outside. This was clearly intimidatory; it was very difficult—particularly for women—to go and vote. The current system is so slow to react to situations like that when they arise. This is a very serious matter: in some parts of the country, people are not able to exercise their democratic right to go to a polling station free and unfettered.
For some years, the Electoral Commission took the view that it could only take measures that applied to each part of the country in an equal way. That was madness; it has been clear for a number of years that we have a real problem in some polling areas and we need a response from the Electoral Commission that recognises that.
Lord Rooker
I did not want to interrupt the noble Earl but perhaps I may intervene as he has raised that point at the beginning of his speech. I know that it will take time to write to my noble friend but in two days’ time this Committee will be discussing the growth duty. It would be useful to have a response before we start that debate because there are a couple of amendments relevant to the growth duty. The Joint Committee fully supported the Government’s response on the growth duty in January, but the committee received representations from certain regulators. I do not recall whether the CQC was one of them—I do not think that it was—but there was an open discussion when we were taking evidence about this. Therefore, it would be quite useful to have an answer by Thursday to the specific question raised by my noble friend because there would still be time to table an amendment. Sometimes it takes a few days or even weeks to get a letter, even with the best intentions of the Minister.
Earl Howe
I note the request from the noble Lord, Lord Rooker, and I can only undertake to do my best on that front. If I can get an answer to the noble Lord, Lord Hunt, by tomorrow, I will. I cannot promise that but I shall use my best endeavours to get an answer to him as quickly as I can.
The noble Lord referred to the administration process at Mid Staffordshire. He is right that the cost of administration has been significant. I cannot confirm the precise cost at this stage but it is substantial and I think that that serves to illustrate that the administration process is not one that any Government, or indeed Monitor, should give the green light to wantonly or ill advisedly. It is a last-resort solution and should always remain so. Clearly, in a challenged health economy, as that has been and still is, it is not surprising that the net result of the exercise is not just a substantial bill in terms of the trust special administration but a very substantial capital commitment by the Department of Health to augment the facilities in the trusts concerned to ensure that the quality of care is as we would all wish it to be. From memory, that net investment will be about £0.25 billion. Therefore, the people of that area should feel satisfied that this process has led to a result that will give them significantly enhanced facilities.
As for the noble Lord’s question about public consultation, this amendment has nothing to do with the process by which a decision is reached on a trust in administration or the consultation requirements that go with it. It merely streamlines the process that takes place after that final decision is taken so that it is not cumbersome.
The noble Lord asked me about the indemnity associated with PFI agreements in relation to a trust that has been taken over. My understanding is that the indemnity does transfer. That is the advice that I have received, but if I need to qualify it in any way, I will correct it immediately after Committee.
As regards the Secretary of State’s approval for trust mergers, it is important to point out that Section 56A provides for the acquisition by an NHS foundation trust of another FT or an NHS trust, and it confers on the sector regulator, Monitor, the power to grant an application for an acquisition. The section was intended to enable acquisitions to take place expeditiously with a minimum level of bureaucracy. The decision to undertake an acquisition, if it is between two foundation trusts, is taken by the FTs themselves with Monitor undertaking a minimal administrative function to implement the decision as long as the set legal process has been followed.
Lord Rooker
My Lords, I have to be brief but I think that I can say without contradiction that the speech that we have just heard from the noble Lord, Lord Sharkey, was made on behalf of the Joint Committee. I cannot think of a single member who would dissent from what he said, which was based, essentially, on our report. When the report was written, over 12 months ago now, it was of course written not just on the basis of Schedule 16, now Schedule 20. There was also the famous list of six other clauses, about which we took evidence on the basis that they were the worst and most offensive Henry VIII clauses ever put before Parliament. The Government took fright at that and took them out of the Bill, so they are not there. The Government were quite right to do that, so they have made the right decision.
However, the committee was faced with the context of cutting corners on parliamentary scrutiny. We had these six clauses, which were pretty bad, and we then got this great list of material, some of it self-evident, that was of no practical use. We also got the Law Commission in front of us. We also realised quite clearly from the evidence—not just the written evidence but what was before our own eyes—that there was a dispute between the Ministers and the Law Commission. It was self-evident, from both the body language and the actual language, that Ministers thought that the Law Commission was working too slowly—not getting on with it and not chopping enough legislation out of the way. But of course that is the way the commission works, and it quite clearly indicated to us that the staff and resources for this were pretty small beer.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank my noble friend Lord Sharkey for moving his amendment and allowing us to have this opportunity to discuss Clause 82 and Schedule 20, which provide for a number of legislative measures to be repealed or revoked. I am grateful to the noble Lords who have taken part. I get the general message and I hope that I can respond to the points that have been made.
The conditions that are proposed in my noble friend’s amendment would include the need for the Law Commissions of Scotland and of England and Wales—to report, before commencement, on whether or not the legislation to be removed still has a practical use. The amendment, as my noble friend would acknowledge, does not require the Law Commissions to undertake this work. Rather, it indicates that it would not be possible to move forward with regard to the repeal or removal of these provisions from the statute book until such time as the Law Commissions had reported on the legislation contained in Schedule 20. In the absence of any report from the Law Commissions, the obsolete law would simply remain on the statute book.
I hope that there is common ground in this Committee that it is a worthwhile objective to make the statute book simpler to use for practitioners and those in different walks of life when they run up against the law. It is better if it is easier to navigate for the end users of the law. My noble friend makes the point, which I agree with, that the Law Commissions do not have a political agenda. While it is true that many of the provisions in the schedule are a product of the Red Tape Challenge in the sense that they come from a political origin, the purpose of this is to repeal redundant legislation and legislation that is no longer of practical use. The selection of this particular obsolete legislative list may have had a political element in its origin, but in the end the purpose is to ensure that redundant legislation is not on the statute book. Again, I hope that that is a politically neutral statement to make and something that we can all subscribe to.
As my noble friend fairly observed, and as the noble Lord, Lord Rooker, acknowledged, there are clauses that caused considerable offence to the Joint Committee. The Government have accepted that particular recommendation. Those clauses that contained future order-making powers for pieces of legislation that were considered to be redundant were removed. The argument that was made by my noble friend and by the noble Lords, Lord Rooker and Lord Stevenson, would have had greater force if the Government were still trying to defend an order-making position. That is not the case. We took into account the evidence submitted during pre-legislative scrutiny and in the Joint Committee’s recommendations, and the Government removed this power from the Bill.
The origin of this amendment is, of course, that the Joint Committee also recommended that the various items contained in Schedule 16—I think it was at that time—should be referred to the Law Commissions for confirmation that they were indeed no longer of practical use. As has already been alluded to by my noble friend, the Government did not agree with this recommendation. However, I begin by pointing out that one of the main criticisms of the order-making power was that there was an inappropriate level of parliamentary scrutiny.
This schedule, both in the form that it is in today and in its original form, has gone through pre-legislative scrutiny. I hear what the noble Lord, Lord Rooker, says—that he did not think that it was an adequate or long enough opportunity—but it has had pre-legislative scrutiny and Parliament has considered the Bill up to this point, and no evidence has been brought forward that the items contained within it are not redundant. There is an important exception to that, which we are about to debate in the upcoming group of amendments in the names of the noble Lords, Lord Grantchester and Lord Trees, where there was an issue identified by those with a particular interest in dog breeding, and we as a Committee will have an opportunity to consider this.
As the noble Lord, Lord Rooker, said, the report and legislation that comes forward from the Law Commissions takes about three minutes of parliamentary time. This—particularly these provisions—has taken up far more than three minutes of parliamentary time. That is not the point that I wanted to make. It is not just that Parliament has had the opportunity; it is that—and we know this through all the work that we do in Parliament, not just in this Bill but in a whole host of Bills—we are informed in our debates by a whole host of outside bodies that are more than happy to give us the benefit of their experience, expertise and knowledge on these issues.
The noble Lord, Lord Stevenson, referred to paragraphs 14 and 15 regarding the Atomic Energy Act 1946. In the 31 years since I was first elected as a Member of Parliament, I have never known the nuclear industry to be backward in coming forward if it thought there was a problem with something that Parliament was about to propose. There was also a reference to paragraph 28, omitting Section 10 of the Sea Fish (Conservation) Act 1992, which requires that a report on the operation of the Act be laid before Parliament within the period of six months beginning 1 January 1997. Clearly that had to be done by 1997. Having represented for 24 years, both in the other place and in the Scottish Parliament, a constituency that had very strong fishing industry interests, I make the point that the fishing industry was never slow in coming forward either. It had very good people working for it who would spot important issues. With the exception of the amendment that we are about to come on to, in the whole time that these measures have been out there—since, I think, the summer of 2013—no interested bodies have come forward and said that these pieces of legislation still have a purpose and should be kept on the statute book.
I believe that good housekeeping of the statute book is good governance. When we bring forward legislation in the normal course of events, a Bill often has a schedule attached to it that will have repeals. They have never gone anywhere near the Law Commissions, unless it happens to be one of the Law Commissions Bills, which now use the fast-track procedure. It is quite usual for Bills to have a whole series of amendments and repeals because they are no longer going to be of any use, given the new legislation that is coming through. What we are doing here is bringing together a number that one might say were not picked up at the time when other pieces of legislation were brought forward. Nevertheless, Parliament has been invited to accept, as we do on many other occasions, that they will no longer be useful.
Although it is true that some of the pieces of primary legislation contained here are repeal candidates for one of the Law Commissions’ Statute Law (Repeals) Bills, I also make three particular points. The Law Commissions tend to focus their resources on certain themes for each repeals Bill. If a repeal candidate does not fit within the theme of a Bill, it is uncertain whether it would be accepted by the Law Commissions for inclusion. The Law Commissions confine their repeals work to primary legislation. A number of the paragraphs—I think that my noble friend said that there were eight—relate to secondary legislation, which has not historically been within the purview of the Law Commissions when they do repeals work. Although secondary legislation can be revoked using the parent Act, this Bill provides an ideal vehicle to revoke these regulations in an efficient manner.
Secondly, many of the provisions contained within the schedule came out of the Red Tape Challenge. The noble Lord, Lord Rooker, clearly made the point that none of these had in the past been referred to the Law Commissions. I do not think that we are running away from the fact that many of them do come out of the Red Tape Challenge. However, many of the themes were launched after the Law Commission for England and Wales invited submissions from government departments in June 2011 on what should be included in what was its last statute law repeals report, published in April 2012.
The next repeals Bill will not be introduced until 2016, and it is my understanding that the focus of the Law Commission’s repeals work will be on laws relating to overseas territories and churches. The Government do not see why the removal of redundant legislation should wait when the Bill that we have before us provides a legislative vehicle for doing so.
Finally, it is worth noting that government departments are key consultees for the Law Commission in seeking to make these kinds of repeals. As the Law Commission for England and Wales states on its website:
“Sometimes it is impossible to tell whether a provision is repealable without factual information that is not readily ascertainable without ‘inside’ knowledge of a Department or other organisation”.
I know that my noble friend said that the Government were answering a question that they were not asked but it is important to make it clear that this is not arbitrary work and that we have within the departments a considerable amount of expertise. One of the examples that was given in, I think, the response to the Joint Committee’s report is in this Bill. I think that it was one of the other clauses which drew the short straw in having to deal with part 1 of Schedule 6 to this Bill. It repeals the Deeds of Arrangement Act 1914 as part of a package of insolvency measures. Research, conducted by departmental lawyers, indicated that there was still one person who had a deed of arrangement under the 1914 Act, and a decision was made to include a special saving provision in paragraph 3 of Schedule 6.
The noble Lord, Lord Naseby, was not here to move his Amendment 90 but my noble friend Lord Sharkey referred to paragraph 40, which relates to Section 13 of the Defamation Act. I accept and acknowledge that it is not what I would call a redundant provision; it can be argued that it continues to have legal effect. However, the position is that it was a non-government amendment—one that was accepted by the Government due to a previous commitment to remove Section 13 of the Defamation Act when an ideal legislative opportunity presented itself. I think that, left to the Government’s own devices, it would not have appeared in Schedule 20, but that is where it was moved and that amendment was accepted by the House authorities as the case was made that it fitted within the scope of the Bill. That is why it finds itself here and I think that generally it is a provision that is much welcomed. In those circumstances, I invite my noble friend to withdraw his amendment.
Lord Wallace of Tankerness
I do not think that there is a perfect answer to the earliest one being in the 19th century. If the purpose of this is to try to remove redundant legislation, it can be redundant if it no longer serves any useful purpose. An example is the Sea Fish (Conservation) Act 1992, which is very recent—indeed, I remember taking part in the debates on the Bill that became that Act in the other place. But the purpose of this provision is to remove from the statute book measures which, for example, may have expired or served their purpose, which have been superseded by other legislation or which are simply no longer relevant because they relate to an activity that no longer takes place. I accept that flying kites still takes place, but it takes place in a legitimate way. The fact that there was no provision identified prior to the 19th century I do not think in any way detracts from the ones which have been included, which I would certainly argue that Parliament has had a proper opportunity to consider.
Lord Rooker
I have one last, general question on this, which comes as a result of listening to these last two debates. Can the Minister give a commitment that the Government will not bring any new material forward for Schedule 20 at further stages of the Bill?
Lord Wallace of Tankerness
As I am not the Minister in charge of the Bill, I am not sure I can give that commitment and am wary of doing it, having just invited the noble Lord, Lord Skelmersdale, perhaps to suggest candidates—although I did qualify that invitation by saying that he should give plenty of time so they could be properly looked at and considered.
Lord Wallace of Tankerness
I am advised that it is not the Government’s intention to bring forward further pieces of legislation into this. We take heed of the warning that the noble Lord, Lord Rooker, has very effectively delivered.
Lord Rooker
It is not a warning; it is just the fact that it is quite clear that people inside the government machine—I do not blame them—are now looking at what is going to be changing in the future that will make legislation redundant before the action takes place. This is a very suitable vehicle for piling other stuff in, which is clearly the implication of what we have just heard about dog chipping. It is something that is coming in the future that will require this change—here is a nice vehicle. I just wonder what else is around. It would be very unwise from a parliamentary scrutiny point of view.