Breathing Space Scheme: Consultation Response

Lord Young of Cookham Excerpts

Wednesday 19th June 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, with the leave of the House, I shall now repeat a Statement made today in the other place by my honourable friend the Economic Secretary to the Treasury. The Statement is as follows:

“With permission, I should like to make a Statement to the House on supporting people in problem debt. This is an issue close to my heart. As a former member of the All-Party Parliamentary Group on Hunger and Food Poverty, I have seen at first hand the hardship that problem debt can cause. Now that I am in a position to bring about change, I am very focused on improving the lives of the most disadvantaged.

Problem debt places a heavy burden on households and can lead to family breakdown, stress and mental health issues. The Government have taken steps to prevent problem debt from occurring and to support those who have fallen into it. We have reformed the regulation of consumer credit and widened access to professional debt advice, and we are helping to build individual financial capability. Today, I can update the House on the Government’s plans to go further, with the introduction of a breathing space and a statutory debt repayment plan. I am very grateful for the support of my honourable friend for Rochester and Strood, whose Private Member’s Bill and ongoing work has made a key contribution to this becoming government policy.

For people who are just getting by, even a small income shock can provoke a cycle of debt dependence that can be difficult to escape. If then faced with invasive debt enforcement, it is no wonder that many people in problem debt simply disengage. The first step to countering problem debt is to ensure that consumer credit firms are properly regulated; loans should not be made to people who cannot afford to repay them. The Government have empowered the Financial Conduct Authority to ensure that firms lend responsibly, protecting consumers from overborrowing. At Budget 2018, the Government announced new measures to increase access to affordable credit by helping foster a larger, more vibrant social lending sector.

In parallel, we have put in place support to help people make good financial decisions. The new Money and Pensions Service brings together three existing publicly funded money and pensions guidance services into one new organisation, providing free support and guidance on all aspects of people’s financial lives. Importantly, it also has a statutory duty to develop and co-ordinate a national strategy to improve people’s financial capability.

Despite these preventive measures, I recognise that many still fall into problem debt. For these people, further support is required. Seeking professional advice is a vital step in moving towards a sustainable debt solution. That is why we have increased public funding for free professional debt advice to almost £56 million this year, delivering 560,000 sessions in England. But more needs to be done. The Money and Pensions Service estimates that there are up to 9 million overindebted people in the UK, but only a fraction access free debt advice each year. That is why I can announce today, following consultation, how the Government will deliver their manifesto commitment to introduce a breathing space scheme for people in problem debt.

The scheme has two parts that, together, will protect debtors from creditor action, help them get professional advice on their debt problems and help them pay off their debts in a sustainable way. Breathing Space will provide debtors with a 60-day period in which interest and charges on their debts are frozen and enforcement action from creditors is paused. Creditors must not start new court action; communications with debtors relating to enforcement of their debt must stop; and benefit reductions to claim debt will pause. During this time, debtors will have to seek professional debt advice to find a sustainable solution to their debt problem. These protections will encourage people in problem debt to seek advice earlier and give them the head space to identify the right debt solution for them.

The statutory debt repayment plan is a new debt solution that extends the breathing space protections to debtors who commit to fully repaying their debts to a manageable timeline. Importantly, these payment plans will be flexible to changes in debtors’ life circumstances in order to remain sustainable over the long term. If their disposable income decreases, their payments will go down, and vice versa.

The Breathing Space scheme will make a real difference to the most vulnerable families across the country, and I recognise the sense of urgency across the House to deliver this policy quickly. So I am committed to delivering the scheme swiftly, working closely with key stakeholders to make sure that it works in practice. The Government will lay regulations on the breathing space element of the policy before the end of the year and intend to implement it as soon as possible in early 2021. We will continue to develop the statutory debt repayment plan to a longer timetable.

In addition, I am pleased to announce that the Government will go beyond their manifesto commitment in two areas. As many of us have heard in our constituencies, people’s experience of problem debt is changing. As I have seen at first hand, it is wrong to assume that overindebtedness is simply a product of taking out too much credit. Many people struggle to meet essential bills and can end up owing money to multiple creditors in the public and private sectors. For this policy to be successful it must properly reflect the issues that debtors are dealing with, so I can announce today that the Breathing Space scheme will cover a broad range of debts—not just financial services debts but arrears owed to utility companies and to central and local government. Council tax arrears, personal tax debts and benefit overpayments will be included, among others. This broad protection will make the policy effective for debtors and fair to creditors.

The House will recognise also the strong links between mental health issues and problem debt. Sadly, up to 23,000 people in England each year struggle with problem debt while in hospital because of mental health issues. The Breathing Space scheme must work for everyone facing problem debt. In particular, it must be open to the most vulnerable in society. To that end, I can confirm that people receiving treatment in mental health crisis can enter Breathing Space without seeking advice from a debt adviser, which could be a significant barrier for many. These protections will last the entirety of an individual’s crisis treatment, followed by a further 30 days to allow them to get back on their feet and decide whether they wish to enter the main Breathing Space scheme or work out another solution for their debts. Given that mental health issues are often recurring, there will be no limit to the number of times an individual can enter via this mechanism.

I thank the honourable Members for Liverpool Wavertree and North Norfolk, and my honourable friend the Member for Plymouth Moor View for their dedicated work on this issue, and the Money and Mental Health Policy Institute for raising this important issue.

Millions of people struggle with problem debt and the burdens it brings. The Government have committed to helping these people take control of their finances and get back on a stable financial footing. The Breathing Space scheme that I have described today will fulfil this commitment. I commend it to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord Sharkey (LD)]

My Lords, I thank the Minister for repeating the Statement. We on these Benches very much welcome the introduction of the breathing space and the statutory debt repayment schemes, although we do have a few questions about execution.

To debtors, this reform may seem to have been quite a long time coming: I can recall discussions in Parliament in 2015, as well as outside long before that. The proposal was, of course, included in the Conservative Party’s 2017 manifesto. Many people and organisations have played a part in getting us to this stage. I particularly want to mention StepChange and the noble Lord, Lord Stevenson of Balmacara. The critical point in getting the Government to do something arose during the passage through this House of what is now the Financial Guidance and Claims Act 2018. The amendment to the Bill by the noble Lord, Lord Stevenson, about breathing space now appears as Section 6 of the Act. This section encouraged and enabled the Government to do what they have announced today.

Turning to the schemes themselves, we are pleased that the Government have in most cases followed the advice they were given in the consultation—which seemed to be a model of its kind, unlike some of the other consultations that the Minister and I have had to discuss in this Chamber. We believe that the eligibility criteria for the breathing space scheme are broadly right, although we have doubts about the restriction to only once in 12 months. We encourage the Government to think again about this and—as they say they are minded to—to include provision for joint debts to qualify for inclusion in the scheme.

We are also happy to see that local and central government debts are to be included in the new scheme and very pleased to see the inclusion of small sole-trader debts, which we think is a vital element. We especially welcome the unlimited extension and repeated entry to the scheme for those in mental health crisis.

The Government’s very helpful consultation and policy response paper does qualify the inclusion of universal credit advances and third-party deductions from universal credit. The document is very vague about the timing of their eventual inclusion. I ask the Minister to give the House a little more detail and encourage him to speed up the process of including these two elements.

When it comes to which ongoing bills should be paid during the breathing space, I think that the Government have it about right in giving debt advice agencies the discretion over whether to remove people who do not keep up specified ongoing payments from the scheme.

Debt and debt repayment continue to be severe problems for millions of people in this country. As the Minister noted, the Money and Pensions Service has estimated that around 9 million people are overburdened with debt. We also now know that real incomes have started to fall again.

The Government’s proposals are a significant step forward in addressing problem debt, and we welcome them. However, we are disappointed with the timetable for the introduction of these measures. Early 2021 seems a very long way off—probably an intolerably long way off if you have unmanageable debt. All the Government’s proposed measures can be introduced by SI. Parliament is not currently overpressed with business. Why can we not use some of that time to bring forward the implementation date?

[Lord Young of Cookham]

I thank both noble Lords for their generous welcome to the announcement, in particular the noble Lord, Lord Stevenson. I remember the forceful case he made during the passage of the Financial Guidance and Claims Bill, drawing on his experience in StepChange, which drew on research showing that schemes such as this stop people getting into a cycle of debt and end up with the creditors getting more than they would, had such a scheme not been available. As the noble Lord, Lord Sharkey, said, his amendments to the Bill enable us to make progress. As he said, I was a co-pilot with my noble friend Lord Freud on the Bill—the two intellectuals Freud and Young took that Bill through the House.

I take the point from the noble Lord, Lord Stevenson, about 60 days possibly being not long enough. He will know that that is more than the six weeks pledged in our manifesto and more than the six weeks available in Scotland. We believe we have that right. I agree entirely with what he said about the Insolvency Service’s register being private and not public. I take his point, which was also made by the noble Lord, Lord Sharkey, about trying to speed things up.

I take the point that the 9% top slice that the agencies will get is less than the 13% currently available, but by contrast this is guaranteed in a way the 13% might not be. Also, we believe it will be on a much broader base. Of course we will keep the revenue stream under regular review, but we think we have it about right.

On loans, the FCA has announced a tough new package of measures on high-cost credit. It has the powers to introduce caps, but perhaps I can make more inquiries about that specific point. I have no hesitation in agreeing to a meeting with the noble Lord, Lord Stevenson, which I welcome. Perhaps it would make sense to involve the Economic Secretary to the Treasury, who has prime policy responsibility for the subject matter.

I am grateful to the noble Lord, Lord Sharkey, for his welcome of the scheme. The once-only ability to go into the breathing space does not apply to those with mental health problems. We wanted the first time to have a sustainable, long-term solution to the debt problems and there was an anxiety about the possibility of abuse if people could go on applying. We will look at that. He has a valid point about joint debts. Likewise, often a small trader’s personal finances are inextricably involved with the business. It makes sense to have eligibility for small traders up to the VAT limit.

On universal credit, any overpayments will be stopped immediately, although there is an IT issue that prevents the same process being applied to other payments. Perhaps I could write to the noble Lord, but the objective is to address those IT problems as soon as possible.

Finally, the noble Lord mentioned the timetable. This was raised in the other place. He might have followed the exchanges. The Economic Secretary said that he had had discussions with his officials to try to drive the timetable through as quickly as possible. There are some IT issues about making sure the public sector interface with the Insolvency Service can react to people entering and leaving the breathing space. We want to get it right, but I will certainly tell the Economic Secretary that both noble Lords expressed anxiety about the timetable and asked whether it could possibly be accelerated.

[Lord Boateng (Lab)]

My Lords, the scheme is welcome. My early experience as a lawyer helping to run a citizens advice bureau service in north-west London taught me that two particular categories of people are often overlooked on this issue. The first is those who cannot read or write, who can find themselves falling into enormous difficulties as a result of not being able to share that fact with the authorities. The other is those who do not read, write or even understand English. Speaking from experience, I think it is absolutely vital that the scheme provides adequate resources for training facilities that meet the needs of those two special and sometimes overlooked groups.

[Lord Young of Cookham]

The noble Lord makes a valid point. Those who are innumerate or illiterate will have difficulties in this area. The Money and Pensions Service will ensure that there are debt advice agencies available that can meet the needs that the noble Lord has just explained, also ensuring that those who may not have English as their first or second language are also able to access the debt advice agencies. Our objective is to make the breathing space available to everyone who has a debt problem, whatever their background.

[The Lord Bishop of Leeds]

My Lords, I welcome this Statement, and thank the Minister for repeating it. I also want to note the work that the Church of England and the Children’s Society have done promoting these matters. I am particularly pleased that public and utilities debt is to be included in this, but—taking advice from Donald Tusk, who said “Don’t waste the extension”—can the Minister say who will ensure that plans are put in place for sustainable debt resolution? It was said that debtors will have to seek professional advice. How will that be ensured, so that we do not simply prolong the problem of debt where it will be exacerbated? Secondly—and I am sorry if I missed this in the Statement—when might we expect the new regulations to be published?

[Lord Young of Cookham]

On the latter point, the first regulations will be laid towards the end of this year. I will write to the right reverend Prelate about the timetable for the sustainable development plans. Can I pay tribute to the work that the Church has done in this area? There is the Just Finance Foundation, founded by the most reverend Primate the Archbishop of Canterbury, the Lifesavers financial education programme, very active in primary schools, and Christians Against Poverty, a registered debt advice agency. I pay tribute to the work that they do.

The idea is that those who enter into a breathing space will, after a dialogue with the debt advice agency, then have a sustainable debt plan which takes into account the resources that are available and arrives at something which enables them to meet their debts—but over a period ideally not more than seven years. It is designed to ensure that they have enough to meet their obligations, including their ongoing debts. There may be some cases where the income simply is not available to enter a sustainable debt plan, in which case they may be advised for bankruptcy or IVA. The idea is to give a breathing space of 60 days in which a person can come to terms with their financial circumstances and have professional advice about the best way through, enabling them to get their life back on an even keel.

[Baroness Ford (CB)]

My Lords, like other noble Lords I greatly welcome the announcement made today and, in particular, the provisions and support offered to people with mental health difficulties and debt. However, when someone is in a crisis involving their mental health, they are probably at their least able or well-equipped to access the kind of advice that the Minister has described. Can he say whether there are plans in place to train and support health professionals in the NHS—particularly mental health professionals—to give support and advice to those who need to access the breathing space period?

[Lord Young of Cookham]

The noble Baroness makes a very good point. There is a crucial role in this for an approved mental health practitioner, who could be a social worker or a GP with the relevant qualifications. The AMHP can say to the debt advice agency that this person has a debt problem and is unable to go through the whole process of putting together a plan. But they get a buy-in to the next round, in that their debts are frozen, they enter the breathing space and they do not have to enter into a repayment plan until such time as the crisis is over and they are able to do so.

I take on board the noble Baroness’s point that we need to ensure, first, that there are enough approved mental health practitioners; and, secondly, that they know what to do if they meet somebody with a debt problem—to contact one of the debt advice agencies and get the breathing space.

[Lord Mackay of Clashfern (Con)]

I thank my noble friend the Minister for mentioning the CAP, a charity established in the north of England which I have known of for quite a while. I get its reports regularly and it seems very successful in dealing with this sort of difficulty. I hope that as the government machinery is developed, we might learn a little from that. I commend the thought that that might be a useful form of co-operation. It may be that such co-operation exists already; if so, so much the better; if not, please do.

[Lord Young of Cookham]

The answer to “please do” is, “Yes, I will”.

[Lord McKenzie of Luton (Lab)]

My Lords, like other noble Lords I warmly welcome today’s announcement. At the start of his presentation, the Minister talked about progress that was being made other than via these announcements, and he referred to financial capability. Can he update us on what progress has been made in that area? He touched upon the issue of overpayments of social security, whether through universal credit or otherwise. Can he say again how that fits into this scheme and whether the sanctions delivered on people might be covered by it?

[Lord Young of Cookham]

The second part of the noble Lord’s question is easier to answer than the first. Any overpayments to the DWP will stop. People will not have their benefits docked if part of their benefit is an overpayment of a previous benefit; that will stop from day one. Likewise, if they have been overpaid universal credit and it is being docked because that is being paid back, that will stop on day one. On financial capability, I remember the noble Lord’s interventions during consideration of the Bill referred to by the noble Lord, Lord Stevenson. I mentioned in passing the work of the Church in financial education, but the noble Lord’s question deserves a more substantive reply than I can give at the moment. Perhaps I could write to him about progress on developing financial capability.

[Baroness Altmann (Con)]

My Lords, I declare my interest as set out in the register, as an adviser to a social enterprise which helps people in debt to manage and consolidate their debt more cheaply in the workplace. I congratulate my noble friend the Minister on this Statement, and in particular I congratulate our honourable friend the Economic Secretary to the Treasury, who has clearly listened carefully to the debates and points made on this issue. The extent of the measures announced today goes a long way towards proving that he is genuine in saying that this issue, which we have worked on extensively across this House, is close to his heart. I pay tribute also to the noble Lords, Lord Stevenson and Lord Sharkey, who were instrumental in this area, and thank the Government for introducing something so necessary. I have one brief question. Will the Minister find out what plans the department has to make sure that these schemes are publicised, so that those who need them are rapidly directed to the help that will be available?

[Lord Young of Cookham]

May I, in turn, compliment my noble friend, who was a Minister at the DWP and can perhaps claim some maternity regarding some of the policies we are now discussing? She made a very valid point about the role of your Lordships’ House. I recall the debates on the Bill; it was improved as it went through, partly as a result of the intervention of the noble Lord, Lord Stevenson. My noble friend mentioned publicity, and I entirely agree. When the time is right and we are ready to launch the new scheme, it should of course be well publicised so that those in financial difficulty know that it is available and, crucially, how to access it.

[Lord Young of Norwood Green (Lab)]

My Lords, I do not know whether the Minister saw the recent “Panorama” programme that included a section on guarantor loans and the disgraceful activities of a company that was loading an individual up with another £10,000-worth of debt. Not only was she unable to pay; I think her mother was also involved. I recommend that the Minister watch that programme if he has not seen it, because the activities of some of these companies are reprehensible and are putting people in impossible situations. I heard reference to the possibility of the FCA introducing caps. Can he confirm that the FCA will take action?

[Lord Young of Cookham]

I am not sure whether the noble Lord followed the exchanges in the other place, but an honourable Member raised the question of guarantor loans. I think I am right in saying that the Economic Secretary to the Treasury said that he had recently met the FCA about guarantor loans, so perhaps I could write to the noble Lord about the outcome of that exchange.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, does the Minister accept that the picture he has painted of millions of people in debt and in poverty is at odds with the rosy picture that the noble Baroness, Lady Buscombe, tried to paint at Question Time earlier today? Could he have a word with his noble friend and explain to her that United Nations rapporteurs have no incentive to tell other than the truth? That is what they are there for. When that Minister comes here, it is to answer questions from the right reverend Prelates and Cross-Benchers, as well as from Members from political parties. It would do her and the House a great deal of service if she would make some attempt to answer them fairly and honestly.

[Lord Young of Cookham]

I am reluctant to rise to the bait that the noble Lord dangles in front of me. My noble friend made a robust defence of government policy.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I have probably mistimed this but the Minister, who is well known for his quickness on his feet in debate and for his ability to spin out of absolutely nothing a brilliant joke, may have slightly overstepped himself. When he tried to pay tribute to the work done on the Bill, he got himself to the point where he could use the wonderful phrase, “Young and Freud did it”. In fact, it was the noble Baroness, Lady Buscombe, who took the Bill through this House, with his great co-piloting. The dual team was indeed a dream team and we had a great time. The noble Baroness also got the issue that we are trying to get very well. She did a lot of work behind the scenes and I pay tribute to that.

[Lord Young of Cookham]

The noble Lord is absolutely right. There are so many Bills going through the House on which my services are sometimes required that I may have muddled them up. My noble friend Lady Buscombe is not a great philosopher, unlike my noble friend Lord Freud. I am grateful to the noble Lord, Lord Stevenson, for putting the record straight and pay tribute to the work that my noble friend did. I know that she worked extremely hard to get consent and was as generous as she could be—within the constraints, as he will understand—in bending government policy to accept opposition amendments.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Young of Cookham Excerpts

Report stage (Hansard): House of Lords
Tuesday 18th June 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I came here this afternoon intending to support my noble and learned friend Lord Judge. However, something said by the noble and learned Lord, Lord Mackay of Clashfern—who also had the sagacity to promote me—has given me a slight worry. I was going to support my noble and learned friend Lord Judge on the basis that clarity is all important, but I now wonder whether his amendments are sufficiently clear.

It is made plain you do not have to answer the question, but what if you answer it untruthfully? I confess that I have not sufficiently explored the overall legislative context in which this happens, but the noble and learned Lord, Lord Mackay, says that it is made plain elsewhere that not only do you not have to answer a question but also, if it is one of those questions that you do not have to answer, whatever answer you give, however misleading or absurd, will not expose you to prosecution. However, the formulation in Amendment 1, and equally in Amendment 2, begs rather than answers the question: if you choose to answer, must it be a truthful answer? That itself could give rise to a difficulty which may not exist absent these amendments.

[Lord Young of Cookham (Con)]

My Lords, I thank the noble and learned Lord, Lord Judge, for tabling his amendments, and thank all those who have taken part in this debate. I agree with the noble Baroness, Lady Barker, that the census is an important civic event; we should all discharge our responsibilities and complete it. I will try and deal with the various issues that have been raised during the debate.

We had a useful and informed debate on this in Committee, when the noble and learned Lord did not press his amendments which sought to clarify whether removing the penalty also removed the offence. He did that after an offer to have further discussions before Report to see if there was a way through. I am very grateful to him, and to my noble and learned friend Lord Mackay of Clashfern, who I saw having a discussion outside the Bishops’ Bar last week; I realised that if I joined it I would not understand a word that was exchanged, but I noticed that a cloud of white smoke emerged. They subsequently agreed to come to a meeting with Ministers and officials last week, where I hope we found a way through which satisfied all concerned. I hope that this afternoon we can validate this great meeting of minds.

In Committee, the noble and learned Lord, Lord Judge, raised an important issue on ensuring that there is no ambiguity as to the voluntary nature of certain census questions in the minds of those who will answer them. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. I agree with him that from the point of view of the respondent—the most important person—this must be clear. So far as the guidance on the front of the form is concerned, we have no issue with his proposal. I can confirm that the Office for National Statistics is committed to the inclusion of wording on the front page of the census for England and Wales, as proposed in the amendment. This will make it clear that the census is compulsory, that some questions are voluntary and that not answering these voluntary questions is not an offence. I hope this commitment will meet the shared objective of the noble and learned Lord and others, and of the Government, on ensuring clarity for the public.

I also confirm that the voluntary questions in the form will be clearly marked as “voluntary”, as the amendments would require. This has been the case for the voluntary question on religion since its introduction in the 2001 census for England and Wales, and it has been effective. In each of the last two censuses, 4 million people in England and Wales—over 7% of the population—have chosen not to answer the religion question. This suggests that the public clearly understand this question to be voluntary.

To best fulfil the intent of the noble and learned Lord’s amendments, the wording on the form should be tested with the public to ensure that the messaging is as clear as possible, ahead of finalising the census questions. Stating the precise wording in the Bill would mean that it could not be amended in the light of that testing. The ONS is committed to carrying out this testing, following which the census forms for England and Wales will be put before Parliament and the Welsh Assembly, respectively, in census regulations. While the regulations are not amendable the ONS will engage with interested parties, including noble Lords, as it finalises the form and guidance.

The census is a devolved matter. Decisions on the questions, questionnaire and guidance to be issued in the 2021 censuses in Scotland and Northern Ireland are for the relevant authorities in those Administrations, through a similar secondary legislation process. I hope your Lordships agree that it would be inappropriate to make a decision for Northern Ireland, although we will of course make that Administration aware of the changes we propose for England and Wales through the ONS.

The secondary legislation for the 2021 census in England and Wales will begin to be brought forward later this year. As my noble and learned friend Lord Mackay said, an Order in Council will set out the detail of the questions to be asked in the England and Wales census. That order is in part subject to the unusual amendable affirmative procedure before both Houses. It will be laid in the autumn and the regulations, to which I have already referred, will follow in 2020.

I will try to deal with some of the questions raised during the debate. The noble and learned Lord, Lord Brown, asked about the questions being voluntary and whether the penalty for a false response should be removed. The answer is no: Parliament rejected an amendment to this effect in 2000 and it was right to do so. Not wishing to provide a response and wilfully providing a false response are different issues. Removing the penalty for providing a false response would pose a risk to the quality of census data in a way that allowing people not to provide an answer does not.

The noble Baroness, Lady Hayter, asked about military service—as she said, I wrote to her on it. The Armed Forces question is there to help public services serve those who have served their country and is underpinned by the Armed Forces covenant. No one in the household will know whether an individual fills in their own return; it will overwrite the household return. She was concerned about a lodger who might not wish to disclose their previous service to their landlord or landlady. The landlord would fill in the form for the household, but the lodger could apply for their own census form and fill it in without the knowledge of the householder. That would override the household return. No alternative data source fully meets the data that we need.

I think that I have answered all the questions that were asked. I recognise the concerns expressed by the noble Baroness, Lady O’Neill, and remind all noble Lords that we are happy to do a drop-in session to explore these points in more detail. Finally, I repeat my gratitude to the noble and learned Lord for his help in this matter and express the hope that, as a result of the commitments that I have given, he will not press his amendments.

[Lord Judge]

My Lords, I am grateful to everyone who has spoken today. I shall not put down an amendment to an amendment but, when we come to look at this matter again, we could add “or if you give any false answer” after “if you fail to do so”. That should not be a problem. There is time for reflection on these matters. The Order in Council has to be drafted; we can all have an opportunity to look again. In the meantime, I am grateful to the Minister for the assurances that he has given. In those circumstances, I beg leave to withdraw the amendment.

Referendums

Lord Young of Cookham Excerpts

Thursday 13th June 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I congratulate the noble Lord, Lord Soley, my constituency neighbour in another place for many years, on securing this debate. He has chosen a highly topical subject, the tension between parliamentary democracy on the one hand and referendums on the other, a subject which will engage the attention of my noble friend Lord Norton’s politics students at Hull for generations to come. I commend the noble Lord’s opening speech and the contributions of all noble Lords who have taken part in this brief but high-quality debate.

To answer the question the noble Lord posed, I refreshed my memory of the two- and-a-half-hour debate held in this House on 19 July last year, not just to remind myself of my views on the matter but to pick out some of the key messages. I was struck by what the right reverend Prelate the Bishop of Southwark said:

“Binary questions do not resolve complex matters of public policy”.—[Official Report, 19/7/18; col. 1352.]


My noble friend Lord Norton also spoke in that debate, using words which seem identical to those he used today:

“referendums are in conflict with responsible government … Decision-making through referendum is, strictly speaking, irresponsible”.—[Official Report, 19/7/18; col. 1356.]

I was struck by what the noble and right reverend Lord, Lord Eames, said. He contrasted the Good Friday referendum, when everyone knew exactly what was proposed, with the EU one, when they did not. The latter point was made today by the noble Lords, Lord Adonis and Lord Pendry. A point made in that debate, re-emphasised just now by the noble Lord, Lord Wallace of Saltaire, was that democracy is a conversation, a dialogue between Parliament and people, not an instruction from one to the other. Many noble Lords suggested then, as my noble friend Lord Cormack did today, that referendums should be a final step not the first step. If it is the first step, it should be advisory.

I do not know if any noble Lords listened, as I did, to Lord Sumption’s insightful Reith Lectures on law and the decline of politics. His assessment of the question posed by the noble Lord, Lord Soley, is well worth quoting:

“A referendum is a device for bypassing the ordinary political process. It takes decision making out of the hands of politicians, whose interest is generally to accommodate the widest possible range of opinion, and places it in the hands of individual electors who have no reason to consider any opinion but their own”.


He went on to say that:

“A referendum obstructs compromise by producing a result in which 52% of voters feel entitled to speak for the whole nation and 48% don’t matter at all”,


and that this was,

“the authentic language of totalitarianism”.

The noble Lord, Lord Soley, mentioned the role of dictators in referendums.

I do not go as far as Lord Sumption and, as the noble Lord, Lord Adonis, and many noble Lords have argued; I believe that there is a role for referendums in our democracy. What is crucial is the relationship between the two—a point just raised by the noble Baroness, Lady Hayter. It was interesting that half the speakers in today’s debate served in another place and are well able to judge and comment on this tension. I believe, as the noble Lord, Lord Adonis, said, that there is a valid case for referendums on certain issues, for example on self-determination—whether people want to stay under the jurisdiction of this Parliament. A recent example of this includes the 2014 referendum on Scottish independence, or, if it were ever called, a referendum in Northern Ireland on a united Ireland.

More generally, in a representative democracy it is important that citizens are engaged in politics. We rely on citizens to vote for their elected representatives in Parliament, Assemblies and councils. Referendums can take this engagement with citizens to a higher level. Citizens can directly vote on matters and see that their participation has real policy implications. They can see direct changes on issues that matter to them. Referendums can indicate public support for policy decisions and, if well-managed, can maintain the public’s faith in democracy. If less well-managed, they can have the opposite effect. The noble Lord, Lord Soley, mentioned the damage to our reputation overseas and to our cohesion domestically. The noble Lord, Lord Parekh, said that referendums can be a safety valve, but they can be the opposite if they are not well managed.

Turning to the 2016 EU referendum, the subject of the noble Lord’s speech, I note with interest that recent statistics show that public support for referendums has fallen from 76% before the 2016 referendum to 55% now, possibly because referendums, as the report from UCL published in July last year concluded,

“cannot replace the institutions of representative democracy. Citizens do not have the time or the resources to participate in all the policy decisions necessary for the functioning of a complex modern democracy”.

Many noble Lords have this afternoon displayed their discontent with referendums, and about the one in 2016. There have been accusations of “wrongdoing”, to quote the noble Lord, Lord Foulkes, and that the referendum was “ill-informed” or “irresponsible”. My own view is that there was in fact a case for the EU referendum and I believe the result was valid.

This important constitutional issue of our membership of the EU has divided our two main parties and our nation for 45 years and, in the two most recent elections for the European Parliament, the party that won wanted us to leave. However, as the noble Lord, Lord Soley, pointed out, none of the major parties at general elections have provided an outlet for that view, so seeking to resolve it through a referendum seemed eminently sensible, and Parliament agreed. The European Union Referendum Act 2015 was fully debated and approved by both the House of Commons and your Lordships’ House. There was a high level of engagement from the public, with a 72% turnout. My criticism of David Cameron is not that he called the referendum, but that he did not win it. As a foot soldier, I accept some responsibility for the outcome, but I say in passing that under any other Labour leader the result might have been different.

What has subsequently happened has shown the risk of running referendums alongside parliamentary democracy, as Parliament, as the noble Lord, Lord Wallace of Saltaire, pointed out, has so far been unable to convert the referendum result into actually leaving the EU. A majority remain Parliament finds itself at odds with a predominantly leave country, possibly because, as my noble friend Lord Norton implied, there is a debate about why exactly people voted as they did. On this impasse, I refer again to the report from UCL’s independent commission on referendums. This highlights that referendums must be used as supplementary tools alongside the institutions of representative democracy; they should not bypass or replace the democratic institutions that exist in our representative democracy.

That committee went on to argue, as many noble Lords have argued this afternoon, that there must be appropriate time for debate and political discourse, and the questions put to the public should be carefully considered. The UCL report suggests, as noble Lords have done, that referendums should be held at the end of the decision-making process, so that eligible voters can choose between developed alternatives. This seems to me a sensible ideal, even if it is not always possible to achieve and certainly did not happen with the EU referendum.

I was interested to read the conclusions of the Public Administration and Constitutional Affairs Committee in the other place:

“Confusion as to the possible consequences of a referendum result serves only to heighten the potential tensions between referendums and representative democracy and risks increasing the public’s disenchantment with politics”.


I think that provides a useful one-sentence response to the question posed by the noble Lord at the beginning of our debate.

A number of noble Lords, including my noble friend Lord Cormack and the noble Lords, Lord Foulkes and Lord Soley, asked why a supermajority was not required in the EU referendum. The referendum did not include a threshold requirement or a supermajority requirement and although I was not in the House at the time, I understand that no amendments for such requirements were debated during the passage of the Bill. That was in keeping with previous referendums in the UK, the only exception being the 1979 referendum on devolution. Without going into great detail, I draw the attention of the House to the UCL’s report on referendums, which set out in more detail why such thresholds are not necessarily a good idea.

A number of noble Lords asked for a referendum Bill before we embark on any further referendums. There will of course be an opportunity to scrutinise a referendum Bill before any future referendum, because any referendum requires a new Act of Parliament. This Government have made it clear that they have no plans for any more referendums—though the policy of the Opposition on that subject remains as yet unclear—but I say in conclusion that should any future Government think of holding a referendum, today’s debate will have provided food for thought before they finally push the button.

Preparing Legislation for Parliament (Constitution Committee Report)

Lord Young of Cookham Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, I begin by thanking the noble Baroness, Lady Taylor of Bolton, in her absence, and the members of her committee for their excellent reports, and my noble friend Lord Norton of Louth for introducing them. They have provided the basis for a well-informed, thoughtful debate on a specialised subject that may not feature on “Yesterday in Parliament” but which is vital to the effective holding of the Executive to account and, as a result, the operation of our parliamentary democracy—a point well made by my noble friends Lord Hunt, Lord Cormack and Lord Dunlop. That is the context in which we should approach this debate: these documents are essential to what Parliament is all about.

Some of the recommendations—such as for a legislative standards committee, mentioned by my noble friend Lord Dunlop—are for the House to reflect on. I shall try to address the recommendations directed to the Government. The noble Baroness, Lady Taylor, and I have much in common when it comes to the subject, both of us having held the office of Leader of the House of Commons, and so chair of the PBL Committee, and that of Government Chief Whip, who has a key role to play in the deliberations and conclusions of PBL. Although I am standing here in my capacity as spokesperson for the Cabinet Office, I hope to respond to the debate with the experience I just mentioned at the forefront of my mind. I hope this means that I can address the issues from a similarly well-informed position to that of the noble Baroness who chaired the committee.

I will start with the committee’s fourth report, The Legislative Process: Preparing Legislation for Parliament. The Government considered the report carefully and provided a written response addressing specific areas of interest. I will set out some of the steps we are taking to improve the preparation of legislation for Parliament, and respond to some of the suggestions made in the debate. The committee said that the decision to legislate should not be taken lightly, and I could not agree more. At the moment, we find ourselves in atypical times in which it would be hard to say that we are overburdened with legislation. When I recently appeared before PBL with a Bill in my hand, the committee was actually pleased to see me.

In normal times, the PBL Committee remains a very strict gatekeeper. Demand for legislative time greatly exceeds supply—a point made by the noble Lord, Lord Beith. I am sure that any Minister, former or current, would agree that appearing before PBL is one of the most challenging experiences of being in office—a point made by my noble friend Lord Dunlop. It is a rigorous cross-examination, conducted without the Minister having recourse to any professional advice from his or her department and in which ignorance of the details of his Bill can result in delay or loss of the slot. Ministers have certainly left empty-handed, and any Minister looking to use legislation as a way to shine or to introduce legislation that is purely declaratory would have a very hard time. I can also say as a former Chief Whip that failure to impress PBL can also have an adverse consequence for the career of a Minister, however senior.

I was asked whether pre-legislative scrutiny was just an option. PBL asks all Ministers whether they can publish a draft of a Bill or go through pre-legislative scrutiny, so it is much more than an option: it is infinitely preferred. As the committee also observed, legislation is only ever as good as the policy development underpinning it. Evidence is vital—a point just made by the noble Baroness, Lady Smith. As acknowledged, this Government are placing renewed importance on ensuring that their policies have a sound evidential base. The case was excellently made by my noble and learned friend Lord Mackay when he spoke about how the Children Act was improved by access to expert evidence and experienced social workers, and that legislation has endured the test of time as a result.

We are now placing renewed importance on ensuring that our policies have a sound evidence base. For example, the What Works Network, set up in 2015, provides government departments, Ministers and front-line professionals with independent assessment of the available evidence in specific policy areas. There is now a central team in the Cabinet Office that helps bring these findings to the attention of policymakers. In its first five years, the What Works centre has produced 288 evidence reviews, including 48 systematic reviews on a wide range of topics.

I was interested to read the complaints by the Tobacco Manufacturers’ Association—here I want to settle some old scores—that,

“the loss of in-house departmental expertise as a result of central government retrenchment … has led to a situation in which policy development is informally contracted out to other organisations”,

leading to what it describes as,

“regulatory capture by politically-oriented and often taxpayer-funded campaign groups”,

That drew a hollow laugh for me as I recalled that when I was a Health Minister 40 years ago, public health measures to reduce the number of deaths caused by smoking, supported by the health department, were systematically blocked by the TMA’s lobbyists and its supporters in the House of Commons, but I must now move on to the serious issues addressed.

The committee welcomed the Government’s commitment to a greater use of Green and White Papers —a question asked by the noble Lord, Lord Tyler. The committee’s report notes that the Prime Minister recently indicated that,

“she would normally expect a Minister, before having legislation, to have gone through a Green Paper stage for discussion and then a White Paper stage to set out policy”.

I can tell the noble Lord, Lord Tyler, that we remain committed to that process and agree that it is a feature of good and proper policy development. However, time pressures to deliver legislation do not always make it possible.

Recent examples of such documents include the domestic abuse and online harms White Papers, and Green Papers on our integrated communities strategy and mental health provision for children and young people. Not only do those papers show the Government’s workings for their legislative proposals, they facilitate vital engagement with stakeholders, including parliamentarians. Many noble Lords have made the point that you cannot develop legislation in a vacuum, and the committee stressed the value of consultation, both formal and informal, as well as pre-legislative scrutiny by parliamentarians.

I was slightly surprised by what the noble Baroness, Lady Smith, just said about the regard that Ministers have for consultation. She has been a Minister, as have I. I have certainly paid attention to the results of consultation on policy areas for which I had responsibility, be it housing, transport or taxation. One advantage of modern technology is that it is now easier for government to reach stakeholders and the general public and engage them in consultation.

The noble Baroness asked me a number of detailed questions, and I will of course reply to her, but the report noted that the Government now collate all open consultations on a single webpage and that this is an important step in attracting extensive, diverse and expert input. This was a point raised by my noble friend Lord Dunlop. Our consultation principles stress the importance of targeting a full range of stakeholders. The committee notes that the department should consider targeting specific groups and suggests tailoring consultation to the needs and preferences of particular groups.

The committee rightly attached great importance to pre-legislative scrutiny. I reassure noble Lords that the Government hugely value Parliament’s scrutiny and the contribution it makes to the development of draft legislation. Noble Lords will be aware that in this Session, Bills that have undergone this scrutiny include the Parliamentary Buildings (Restoration and Renewal) Bill, the draft registration of overseas entities Bill and the draft domestic abuse Bill. So far this Session we have published 10 Bills in draft, nine of which have been scrutinised by either a Joint Committee or the relevant Select Committee in the other place; the 10th is the draft finance Bill. We hope to do even better. I thank all noble Lords who have been involved in the process of pre-legislative consultation. The hours of detailed scrutiny have led to the introduction of better legislation and an easier passage through both Houses.

A number of noble Lords mentioned post-legislative scrutiny. As noble Lords will know, departments produce post-legislative review memorandums for every Act three to six years after its commencement, as my noble friends Lord Norton and Lord Cormack mentioned. This is an initiative of the committee whose report we are discussing today and is now embedded practice. These documents provide a valuable opportunity to improve our process further by reflecting on whether legislation is operating as intended. If I could express a personal view, I am sorry that these memorandums, which the Government take very seriously, do not attract greater attention from those who follow the legislative process.

Finally, on this report, I would like to say a few words about the quality of legislation, an issue raised by my noble and learned friend Lord Mackay and my noble friend Lord Dunlop. The committee stressed the importance of clear, well-drafted and accessible legislation, to which the Government also attach great importance. We have come a long way in the clarity and accessibility of our legislation. My noble friend Lord Cope welcomed that improvement. The skilled lawyers within the OPC are constantly working to improve on this. For example, they have revised and updated their drafting guidance, strengthened their internal quality assurance processes and invested heavily in training new counsel, operating an apprenticeship model so that experience is shared. I place on record my thanks for their ongoing efforts to achieve this goal. Progress is still needed, particularly in the area of taxation, as mentioned by my noble friend Lord Cope.

Many noble Lords mentioned the work of the Law Commission, which has pointed to the particular value of reform and consolidation in the fields of immigration and sentencing law in England and Wales. Our commitment to tidying up our statutory landscape is reflected in the recent introduction of the Sentencing (Pre-consolidation Amendments) Bill, mentioned by my noble friend Lord Norton. This legislation is the first step towards making this complex area of law simpler, fairer and quicker to operate. First, we need to deal with the Bill; the sentencing code will be announced in due course. I note the suggestion that in this lull in parliamentary activity, we might use any spare capacity to make further progress with consolidation.

My noble friend Lord Cope mentioned the online statute book, which is delivered by the National Archives and is free to access. This is continually being updated to consolidate textual amendments into existing Acts. I am pleased to say that the update of primary legislation is almost completely up to date.

While we sometimes disagree on the content of legislation, our aspirations for the process are well aligned. We have come a long way in how we prepare and bring forward legislation, and remain committed to producing good law. As the committee’s fourth report set out, it is in everyone’s interest for our legislation to be evidence-based, influenced by diverse and expert input, scrutinised effectively and of the highest quality in drafting.

On skeleton Bills, the Government agree that Bills that contain vague powers because policy decisions have not yet been taken are usually not acceptable. However, a Bill setting out policy framework clearly, but using delegated powers to fill in details or implement part of it, may be justifiable in some cases.

Turning to the other report, on the delegation of powers, I pay tribute to my noble friend Lord Blencathra and his Delegated Powers and Regulatory Reform Committee. I take on board his warning about the Rivers Authorities and Land Drainage Bill, on which he has proposed summoning the author before his committee to discover exactly what is going on with it. The committee made a number of recommendations on the important role of delegated legislation in the legislative process. We have carefully considered the committee’s report and provided a detailed written response to each of its recommendations. As a Government, we very much endorse the committee’s emphasis on the valuable role we all play here in scrutinising delegated powers.

I will briefly set out some of the key points from the Government’s response. The noble and learned Lord, Lord Judge, expressed surprise that no statutory instruments had been rejected. I think he will find that quite a lot have been withdrawn and then resubmitted. This is probably a better process to go through than actually having them defeated. I know that some have been introduced, subsequently been found to be incorrect and a separate SI introduced to put them right. So it is not quite as black and white as the noble and learned Lord implied.

The committee observed that all involved in the legislative process have a responsibility to uphold what it referred to as “constitutional standards” in relation to delegated powers. The Government agree that a number of broad principles can be applied when considering delegations of power, although ultimately, it is for this House and the other place to consider whether a particular delegation is appropriate. It is impossible to prescribe a hard and fast set of rules to be applied uniformly to all delegations of power, as each delegation must be considered on its merits. In this respect, the Government agree with the committee’s observation that it is the constitutional obligation of Parliament to decide whether a proposed delegation of power is acceptable.

One of the committee’s key concerns is that delegated powers are increasingly being used by the Government for the purposes of legislating for policy and other major objectives, whereas they should be reserved for minor and technical matters. The Government agree that delegated powers should generally be reserved for prescribing matters of detail. I note my noble friend Lord Hunt of Wirral’s comment that it is not always possible to draw a clear dividing line between policy and detail. He takes the opposite view, and we will reflect on that particular point. I assure your Lordships that the Government always seek to ensure that the balance between what is contained within primary legislation and what is left for secondary is struck in an appropriate way.

A further concern expressed by the committee is the Government’s perceived use of broad, or even vague, powers on occasion. The Government agree that vague powers are to be avoided and we make every effort to ensure that proposed powers are formulated with a sufficient degree of precision and certainty. In any given case, it is for your Lordships to determine whether they are satisfied that the Government have justified the level of detail in a proposed power. As for broad powers, there may be some occasions where these are unavoidable. In these cases the Government aim to assist your Lordships by producing draft secondary legislation alongside the proposed power so that noble Lords can better assess how the power may be used in future.

The committee raised particular concerns over powers enabling the creation of criminal offences and the establishment of public bodies—a point made by the noble and learned Lord, Lord Judge. The Government agree that the cases for such powers are likely to be rare, although they may be appropriate occasionally if their use can be justified to your Lordships.

The committee also raised concerns over Henry VIII powers, and stressed the need for these to be fully justified. It is worth reading out what the committee said about Henry VIII powers. Henry VIII powers are,

“a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided”.

The Government agree that such powers should be taken only where they are strictly necessary. We are committed to providing a full and clear explanation to the House when taking such powers through information provided in the memo to the DPRRC. Each Henry VIII power needs to be considered individually on its merits. Sometimes, use of Henry VIII powers will produce a clearer legislative result than prescribing things in secondary legislation. Paragraph 19 of our response makes that point.

A number of noble Lords suggested that it should be possible to amend statutory instruments. That is not proposed by the committee, but the noble Baroness, Lady Smith, made a suggestion that the committee might like to reflect on—that it look again at the “take it or leave it” position of SIs. I would be interested in its reflections on that.

I am conscious that time is running out, but if I was asked to provide one example from my short time in your Lordships’ House—and to answer a question posed by my noble friend Lord Norton about what has changed—it is the effectiveness of scrutiny here. I would point to our recent debates about Henry VIII powers. I personally have no doubt that the trenchant criticism we have received, often from members of the Select Committee and usually from the noble and learned Lord, Lord Judge, has caused us to be more considered and cautious in our approach to utilising Henry VIII powers. I bear the scars of some of those debates and I believe that they have altered the terms of trade between primary and secondary legislation, and certainly business managers and the PBL will look carefully at any proposed Henry VIII powers even more so than they do at the moment. I think someone said that it was all a rubber stamp. Certainly, when taking these SIs through, the only thing that is stamped on is usually the Minister.

Finally, perhaps I might say a quick word to my noble friend Lord Trefgarne and thank the SLSC for the work it does. As he said, we will be providing a response to his report in due course, but we have gone further than any previous Government in being open and transparent about our plans regarding secondary legislation.

The Government’s responses to the reports have met with some headwind from noble Lords, and criticism of the Government is not unusual in Select Committee reports. However, the subject of these reports is different in some respects from others in that it focuses on a continuous process—namely, legislation—rather than, for example, a controversial policy decision that is difficult to reverse. To that extent, it is possible for the Government to take on board the gist of the criticisms in these reports, and indeed in our debate today, and seek to do better. That is what the Government propose to do and we will be incentivised in so doing by the threats from the noble Lords, Lord Tyler and Lord Beith, my noble friends Lord Hunt, Lord Cormack and Lord Norton, and the noble and learned Lord, Lord Judge, that the patience of your Lordships’ House is not unlimited. The Government have been warned.

Banks: Cash Withdrawals

Lord Young of Cookham Excerpts

Tuesday 11th June 2019 Lords Chamber

[Baroness Bryan of Partick]

To ask Her Majesty’s Government what steps they are taking to ensure that banks provide free withdrawals from current accounts at cash machines.

[Lord Young of Cookham (Con)]

My Lords, the government-established Payment Systems Regulator regulates LINK, the scheme that runs the UK’s largest ATM network. The regulator is using its powers to hold LINK to account over LINK’s public commitments to maintain the broad geographic spread of free ATMs across the UK. The UK has one of the most extensive free-to-use ATM networks in the world. Around 80% of the UK’s ATM estate is free to use and 97% of transactions occur on free-to-use ATMs.

[Baroness Bryan of Partick (Lab)]

I thank the Minister for his Answer and welcome the Government’s recent attention to this problem, but we have to bear in mind that the number of free-to-use ATMs that are closing is escalating. The report by Access to Cash Review, published a few months ago, warns that we are sleepwalking into a cashless society that will leave millions behind. Banks are encouraging a cashless economy because they can save on staff and property costs, but these savings are not passed on to customers. Instead, those who use apps and computers become unpaid workers of the bank, and those without access to technology are finding it harder to access bank services. Will the Minister support the proposal by Ged Killen, MP in the other place to ban charges for using ATMs and make banks responsible for giving their customers free access to their own money within reasonable distance from their homes?

[Lord Young of Cookham]

I understand the noble Baroness’s concern for those who do not have access to free-to-use ATMs. I hope she will be reassured that the number of free-to-use ATMs in Scotland increased by 85% between 2008 and 2018, from 2,800 to 5,200. But the noble Baroness’s Question encapsulates a real challenge for Governments today: how do we respond to technological change which is cost-effective, popular, cheap and embraced by the vast majority but, for whatever reason, is not used by a minority? The use of cash fell by 16% last year. Only 28% of transactions were in cash—that figure is forecast to fall to 10%—and 5 million adults apparently did not use cash at all last year. The Government’s policy is quite clear: we want the Payment Systems Regulator to hold LINK’s feet to the fire—to its public commitment to maintain the broad spread of free-to-use ATMs. It has powers of direction and can levy fines to deliver that commitment. On her final question, if you ban charges you lose the pay-to-use ATMs, of course, and might prejudice the existence of the free-to-use ATMs by reducing the revenue stream for ATM owners.

[Lord Kirkhope of Harrogate (Con)]

Does my noble friend not agree that it is very important to remember that ATMs do not just dispense cash? They are increasingly available for a range of banking activities, and very usefully too. Does my noble friend agree that when branches of banks close, we should encourage as much as possible that those important facilities are retained somewhere in the community—whether a village or town—that is losing its bank branches? Is that not a good thing which we should be encouraging?

[Lord Young of Cookham]

My noble friend is quite right; they are used not just for cash withdrawals but often for deposits or balance queries. I very much hope that banks respond to my noble friend’s suggestion that if they have to close the last branch in a town or village, they ensure that they leave behind a free-to-use ATM that will replace at least some of the facilities that it used to provide.

[Lord Sharkey (LD)]

My Lords, at the end of March there were 924 deprived areas without access to free-to-use ATMs, and this was a 12-month high. On 1 April LINK promised to address the problem by increasing payments to operators. It also said that if that did not fix the problem in two months, it could directly commission free-to-use ATMs in these deprived areas. The two months are up. Have the increased payments worked? Has LINK commissioned any free-to-use machines in these 924 deprived areas?

[Lord Young of Cookham]

The noble Lord is quite correct that LINK is directly commissioning ATMs in areas that do not have one but need one. If he has a particular area in mind that needs an ATM but does not have one, I am sure he will let LINK know. The company has tried to ensure the viability of free-to-use ATMs in deprived areas by increasing the transaction fee that the ATM owner gets to £2.75 per transaction, against the standard fee of 25.9p. LINK’s policy is that where it has to shrink the estate, it does so by removing ATMs that are close to another one—73% are within five minutes’ walk of another one—but maintaining free-to-use ATMs in remote or deprived areas.

[Lord Davies of Oldham (Lab)]

My Lords, I am sure the Minister will appreciate that the banks owe wider society a great deal after 2008. How is it, therefore, that somewhere like Hebden Bridge—and I do not always quote Yorkshire with enormous favour—has no bank and only six ATMs at present? Those six are being reduced to two, and the two are so busy that they run out of cash. How is this system, which the Minister has just commended, working?

[Lord Young of Cookham]

I will certainly draw LINK’s attention to the problems the noble Lord has just outlined in Hebden Bridge. I hope that Hebden Bridge also has some post offices. We have invested £2 billion in post offices since 2010 in order that they can provide access to cash and other banking facilities. However, I will contact LINK to see whether we can ensure that those cash machines in Hebden Bridge are fully charged, in view of the pressing demands of the residents of that town for cash.

[Baroness Greengross (CB)]

My Lords, this is certainly a long-standing problem. The Minister may be interested to know that my maiden speech in this House many years ago was during a debate about the LINK network’s policy on charging for access to cash, and that it was one thing if you could withdraw £200 but something else if you could only afford to withdraw £50. Despite all the technological advances in how we access money, it seems to be a case of plus ça change. My concern was for bank customers who might lack transport or have mobility restrictions. Does the Minister understand that this can sometimes mean that they are unable to reach a fee-free cash machine? What reassurances can he give me, all these years later?

[Lord Young of Cookham]

I commend the noble Baroness on her maiden speech and I am sorry that her ambitions have not been fully fulfilled. As I said a few moments ago, LINK is directly commissioning ATMs in areas that do not have an ATM but need one. In view of her question and that from the noble Lord, Lord Sharkey, it is now incumbent on those who champion the cause of free ATMs to bring to LINK’s attention those areas that do not have an ATM but need one, or those that have only a chargeable ATM.

GDP per Capita

Lord Young of Cookham Excerpts

Tuesday 11th June 2019 Lords Chamber

[Lord Wigley]

To ask Her Majesty’s Government what are the latest figures for the gross domestic product per capita for England, Scotland, Wales and Northern Ireland; and what is the percentage increase for each such figure since 1999.

[Lord Young of Cookham (Con)]

My Lords, the latest figures published by the Office for National Statistics show that in 2017 gross value added per head was £28,096 in England, £19,899 in Wales, £25,485 in Scotland and £21,172 in Northern Ireland, with nominal growth since 1999 of 75% in both England and Wales, 84% in Scotland and 70% in Northern Ireland.

[Lord Wigley (PC)]

My Lords, those figures speak for themselves. They reflect the failure over 20 years of successive Governments, in both London and Cardiff, to close the yawning income gap between Wales and England. Does the Minister accept that they would have been significantly worse were it not for the EU structural funds, of which Wales gets 22% of the UK allocation, compared to only 6% of UK-originated regional funding? As the Government are committed to replacing EU funding with a UK shared prosperity fund, will the Minister give a cast-iron guarantee that Wales will get a needs-based share of that new fund and not a Barnett-type, population-based share, which would see Wales lose £2 billion over the next six years compared to the funding we would have expected were we to remain in the EU?

--- Later in debate ---

[Lord Young of Cookham]

The noble Lord has been a tireless campaigner for 45 years, in the other place and now here, for reducing the inequalities between Wales and the rest of the United Kingdom. He cited income; the figures I gave were for gross value added. If you look at gross disposable household income, which is slightly different, the gap is slightly narrower but still there. Since 2010, Welsh gross value added per capita has grown by 24%, faster than in Scotland and Northern Ireland. To address his question, he is quite right that when the EU structural funds expire as we leave the EU, the shared prosperity fund will take their place. The size of the shared prosperity fund is a matter to be resolved in the current spending review. There will then be consultation on how it is allocated. However, I have received a very strong message from the noble Lord and from the Welsh Government that they want the replacement to be at least the same size as the structural funds and allocated primarily on the basis of need, and they want the devolved Assemblies and local partners to be involved in that decision. While I cannot give a cast-iron guarantee, I have given one with green tinges round the edge.

[Lord Blunkett (Lab)]

My Lords, is it not true—perhaps the Minister could confirm this—that the England figure hides the most enormous disparity between London and the south-east and the rest of the country? That gap in GVA, GDP and productivity can be met only by a proposal put forward by the commission chaired by the noble Lord, Lord Kerslake, equivalent to the kind of investment and programme put in place by West Germany when it combined with East Germany. That would overcome not only the disparity described this afternoon but the deep alienation and division that exists in our country.

[Lord Young of Cookham]

The noble Lord makes a powerful case for a generous shared prosperity fund. The Government have tried to do what they can to reduce the disparity; extra funds were allocated to Wales in the 2018 Budget, giving the Welsh Government a £550 million boost. The GVA figures for London are slightly distorted by including people who commute into London but do not live in London. None the less, there is a regional imbalance. Public expenditure per capita is much larger in Scotland, Wales and Northern Ireland than it is for England. That is one of the ways that the Government seek to redress the imbalance the noble Lord just referred to.

[Baroness Kramer (LD)]

My Lords, the impact of the 2008 financial crash and the economic troubles that followed it was far greater outside London and the south-east than it was in this area. Since we are going into a period where the economy is weakening—we have had very poor first-quarter figures and the US economy looks like it is beginning to move into recession—what measures do the Government have in place to make sure that regional imbalance is countered? Have efforts such as the northern powerhouse and the Midlands engine actually delivered, or are they largely discussion and the creation of institutions that are not yet having any impact?

[Lord Young of Cookham]

I challenge what the noble Baroness said about the economy weakening. The economy has grown continuously for nine successive years. Employment is at a record level. Real wages are rising. The public finances are now under control. We are in the middle of the pack for future growth in the IMF forecast. Some of the issues she raised are matters for the spending review—both the amount of grant for local government and the shared prosperity fund—but she is unduly pessimistic in painting that scenario.

[Lord Hamilton of Epsom (Con)]

My Lords, is not the example of Germany, given by the noble Lord, Lord Blunkett, very relevant? Despite the billions spent by the West Germans on East Germany, it is largely emptied of business and people.

[Lord Young of Cookham]

I think the comparison was not direct, as I am sure the noble Lord, Lord Blunkett, will recognise. The disparity between the west and the east of Germany was far greater economically and in almost every other consideration, including socially, than the gap between England and the rest of the United Kingdom. While I understand where the noble Lord is coming from, the parallel he gave is not one that should be followed too closely.

National Health Service: Pensions

Lord Young of Cookham Excerpts

Monday 10th June 2019 Lords Chamber

[Lord Naseby (Con)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a trustee of the Parliamentary Contributory Pension Fund.

[Lord Young of Cookham (Con)]

My Lords, I am aware of concerns raised by NHS doctors about the impact of annual allowance tax charges. Although there are no plans to have a public consultation on the tax rules, on 3 June the Secretary of State for Health and Social Care announced his intention to consult on introducing a new pension flexibility for high-earning NHS clinicians affected by annual allowance tax charges.

[Lord Naseby]

The Answer that my noble friend has just given is most welcome, but it is perhaps a little tardy in the sense that this problem has existed for some time. The people who suffer are NHS patients, as consultants do not feel able to take on extra work. Is it not time that there was a total review of NHS pensions, as a whole lot of anomalies have developed over time? I now declare a second interest, as my wife is a retired GP. Prior to 1988, there was equality of contributions for men and women and equality for the beneficiaries, whether they were widows or widowers. However, for 24 years, despite having paid equal amounts, the future beneficiaries of female doctors—their husbands or partners—have had no benefit. Against that background—there are other examples—instead of a short-term review, is it not time that the NHS looked at all the anomalies that have arisen over time and tried to put them right?

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[Lord Young of Cookham]

My Lords, in the interval between my noble friend tabling his Question and today, the Government made a significant announcement on 3 June aimed at addressing the very problem that he addresses in his Question, and no doubt he can claim some credit for that chain of events. On the point about the impact on patients, between 2018 and 2019 57% of GPs who retired took early retirement. Some consultants are unwilling to take on extra sessions because of the impact on their pensions, and that has an impact on the quality of service that we can provide. On his more detailed question, I understand the sense of injustice that he feels about the circumstances that he has described. I will see whether the consultation that begins at the end of the month can be stretched to include the broader review that he has just proposed.

[Lord Davies of Oldham (Lab)]

My Lords, are not the Government being more than a little tardy in response to this situation? After all, they introduced the pension arrangements in 2015 and it is clear that they made a right mess of them in some respects. In addition to the range of people whom the noble Lord, Lord Naseby, spoke about a moment ago, both ends of the medical profession—younger doctors and consultants—are greatly aggrieved at the provision of pensions under the 2015 legislation. I just wonder why the Minister can say with equanimity that we are getting round to a consultation.

[Lord Young of Cookham]

It is important that noble Lords understand the background to the changes. One of the most expensive tax reliefs is pension tax relief. It costs £50 billion per year—roughly half the budget of the NHS. Two-thirds of that goes to additional, or higher-rate, taxpayers. The reforms introduced over the last two Parliaments were aimed at targeting the relief more effectively and saving £6 billion that could be redirected towards other priorities. Less than 1% of taxpayers will be affected by the taper of £40,000 that was introduced, and more than 95% of those approaching pension age will not be affected by the lifetime allowance.

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare an interest as a past president of the BMA, and as someone with an NHS pension whose husband does not stand to gain particularly by my death; so be it. Do the Government recognise the seriousness of the situation, given the open letter from the BMA to the Prime Minister published in the Financial Times today? The 50:50 suggestion that came from the Secretary of State is not the solution to the problem. Clinical services are already being severely jeopardised by consultants who drop their additional sessions; waiting lists are therefore already rising and those facing retirement have decided to carry on with leaving the NHS, thereby worsening our workforce problems.

[Lord Young of Cookham]

We join the noble Baroness’s husband in wishing her a very long life. So far as the issue she raises is concerned, the BMA asked us to introduce this flexibility earlier this year. The chair of the BMA council said:

“This is a step in the right direction”.


The Secretary of State is willing to discuss other models for pension flexibility; we very much hope that, if we make these changes, high-earning clinicians will be able to attend to more patients while saving for their retirements without incurring significant tax charges.

[Baroness Kramer (LD)]

My Lords, senior officers in the armed services face the same problem. I raise this because I know that the Minister will follow up on it. One showed me his tax returns: a £5,000 increase in income led to an additional tax payment—in just the first year—of just under £17,000. This is driving away not only senior officers but especially the high-fliers who, with early promotion, get into this conundrum very early in their careers.

[Lord Young of Cookham]

My Lords, the Armed Forces Pension Scheme continues to be one of the best available defined-benefit occupational schemes. Service personnel on the AFPS are not required to contribute towards their pension throughout their career. However, we continue to monitor the differences between the various schemes to ensure that they are fair and provide appropriate support to the workforce.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend the Minister not recognise that this is not a problem confined to the NHS or indeed the armed services? It arises because the former Chancellor of the Exchequer, George Osborne, reduced the size of the pension pot from £1.8 million to £1 million over a short period of time. As a result, if people with final salary pension schemes reach the age of 55 and do not retire but continue, they are taxed at an outrageous 55%. The remedy lies in the Treasury undoing the mess that it created in the first place.

[Lord Young of Cookham]

There are a number of contenders for the leadership of our great party at the moment. If my noble friend feels this is a cause which will gain currency in my party, no doubt he will pursue it with one of those candidates. However, I return to what I said a few moments ago. The changes we made were progressive, to ensure there was not an inequity in the tax relief benefit.

House of Lords: Gender Equality

Lord Young of Cookham Excerpts

Thursday 6th June 2019 Lords Chamber

[Baroness Deech]

To ask Her Majesty’s Government what steps they are taking to promote gender equality in the composition of the House of Lords.

[Lord Young of Cookham (Con)]

My Lords, in the past 20 years the percentage of women in your Lordships’ House has increased from 17% to 26.5%. In this Parliament, seven of the 17 party political appointees were women. The Prime Minister considers factors including skills, expertise, party political balance and diversity. Progress has been made, but there is still more to be done.

[Baroness Deech (CB)]

There is much to be said on this question, as the Minister has said, but I want to focus on just one issue. As long as we have seats for hereditary Peers, women continue to be ineligible for almost all of them. Succession to the Crown has been changed to allow women to succeed equally, and we even have women bishops. To add to the unfairness, eldest daughters are specifically forbidden under the Gender Recognition Act 2004 to change sex for the purpose of succession. Will the Government back the simple Bill put forward by Philip Davies MP to remove all remaining obstacles to equality and allow daughters to seek seats here? Our composition should be based on equality and fairness. We have to set an example. Saying it is complicated is no answer to such a question. We must end the inherent androcentric nature of this House.

[Lord Young of Cookham]

My Lords, I understand the noble Baroness’s wish to remove the barrier to women entering your Lordships’ House via the hereditary by-election principle by allowing the title to pass to the eldest child. I believe there are better ways to reduce the current imbalance. The noble Baroness’s solution involves, first, getting primary legislation through this House on the right of succession. The noble Lord, Lord Grocott, will tell the noble Baroness just how difficult it is to get legislation through this House that tampers with the hereditary principle. Secondly, it would then depend on a marked increase in the mortality of hereditary Peers, something which I know the noble Baroness does not want. Thirdly, it would depend on women winning the by-elections. I honestly think it is better to make progress and get more women in your Lordships’ House by continuing to drive up the percentage of life peerages, rather than by going around the course I have just enunciated.

[Lord Trefgarne (Con)]

My Lords, can I persuade the Minister to support my Private Member’s Bill, which arranges for hereditary peerages to go through the female line in certain circumstances?

[Lord Young of Cookham]

I understand that my noble friend has been round this course before. He submitted a Bill in 2015-16, 2016-17 and again in the current Session. The main purpose appeared to be to revive and maintain peerages rather than to pursue female succession as an end in itself. The Bill received a Second Reading in the 2015-16 Session but did not in the 2016-17 or current Sessions.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, every woman in this House bar one, to whom I pay great tribute, wants to be here on the basis of our own skills, our own experience and our own political and non-political background; we do not want to be here because of our fathers, our grandfathers, our great-grandfathers or other wonderful people who have come before us. I know that the Minister tries but can he undertake to continue, with his party, to try to move on the Bill introduced by my noble friend Lord Grocott? In the meantime, can he also ensure that everything that the Government do in advising the Appointments Commission, as well as in relation to political peerages, means that we move towards a 2:1 ratio in favour of women?

[Lord Young of Cookham]

The Bill introduced by the noble Lord, Lord Grocott, has had more time than any other Private Member’s Bill this Session, and many of us have spent enjoyable Fridays making progress on it. It is open to the noble Lord, if his appetite is unquenched, to ask my noble friend the Chief Whip for yet more time to progress with his Bill. I know that the current chair of HOLAC, the noble Lord, Lord Bew, takes this matter seriously. Since 2012, HOLAC has appointed seven women and five men.

[Lord Grocott (Lab)]

My Lords—

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[Lord Young of Cookham]

My Lords, yesterday I read the recently published UK Gender-Sensitive Parliament Audit 2018, which made the point that the noble Baroness has just made. The number of applications that HOLAC receives from men far exceeds the number from women. I agree that there is a role for all of us in driving up the number of applications from women. Perhaps I could write to her on her question about the percentage of senior appointments.

[Lord Grocott]

I am greatly encouraged by the Minister’s suggestion that I ask the Government Chief Whip, the noble Lord, Lord Taylor, for more time. I therefore ask him for more time.

[Lord Young of Cookham]

I may be in some trouble with my noble friend but that was actually in my brief.

[The Countess of Mar (CB)]

My Lords, as the last hereditary woman left standing, I ask the Minister to ask the Chief Whip to support the noble Lord, Lord Grocott, and the noble Baroness, Lady Hayter, in their requests.

[Lord Young of Cookham]

My Lords, my noble friend the Chief Whip will have heard both those bids and they will be discussed through the usual channels.

[Baroness Berridge (Con)]

My Lords, the question of diversity is one commonly asked when we are speaking outside of this House. It is important for the public to know more about the membership of the House. On approaching the Library, it surprised me to learn that there has been no voluntary monitoring form sent out to Members to collate information on other protected characteristics, such as geographical diversity, education and employment backgrounds. Will my noble friend ask the House authorities to send out a comprehensive monitoring form—the staff do this—so that we can tell the public more about who we are?

[Lord Young of Cookham]

I believe that one of the recommendations in the report that I referred to was that there should be more monitoring. That would also be relevant to the House of Lords Appointments Commission, which produces an annual report that describes its progress in making appointments. It would be up to HOLAC to include more details along the lines suggested by my noble friend.

European Parliament Elections: Non-UK EU Citizens

Lord Young of Cookham Excerpts

Wednesday 5th June 2019 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, with the leave of the House, I shall repeat an Answer to an Urgent Question asked in the other place yesterday by my honourable friend Kevin Foster, Minister for the Constitution. The Answer is as follows:

“The Government took all the legal steps necessary to prepare for the European parliamentary elections and put in place all the necessary legislative and funding elements to enable returning officers to make their preparations. We worked with returning officers, the Electoral Commission and other agencies, such as the Society of Local Authority Chief Executives and Senior Managers and the Association of Electoral Administrators, to support the smooth running of the polls. The Government are greatly appreciative of electoral administrators’ hard work inside and outside of election periods, which resulted in a higher turnout than for previous European parliamentary elections.

Electoral registration officers are under a statutory duty to ensure that people who are eligible to vote in elections have the opportunity to do so. For the recent European parliamentary elections—as for all previous such elections—this included making sure that EU citizens who are resident in the UK and registered to vote in local elections were made aware that they needed to complete a voter registration and declaration form, commonly referred to as a UC1 or EC6, so they could vote in the UK. The Electoral Commission supported EROs in this and encouraged them to take additional steps to raise awareness of this requirement locally, through social media channels and other means.

The UC1 form implements a requirement under EU law. EU Council Directive 93/109/EC requires all member states to send the details of any EU citizens’ declarations to the state they are a citizen of, “sufficiently in advance of polling day”, to ensure that an EU citizen does not vote twice in the same European parliamentary election. This is not a new requirement and has been in place for previous European parliamentary elections. Similar provision applies to UK citizens living in other EU member states. The UC1 form was accessible on the websites of the Electoral Commission, local authorities and Your Vote Matters.

On 5 April, the Electoral Commission published guidance for local returning officers and EROs on the upcoming European parliamentary elections. In it, the Electoral Commission reminded EROs to prepare and issue UC1 forms to EU citizens on the electoral register. On 3 May, the Electoral Commission published guidance advising EU citizens to avoid registering to vote using unofficial registration sites. The guidance further stated:

‘Any EU citizen who wants to vote in the European Parliamentary election in the UK must also print, complete and return a declaration form stating that they will only vote in the UK’.


The guidance also included a link to the Your Vote Matters website, where the form could be downloaded”.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I join the noble Lord in thanking returning officers and electoral staff for all that they do, and obviously I make my usual declaration as a vice-president of the Local Government Association. Does the noble Lord accept that this is a very unsatisfactory situation where people were denied their right to vote? Is it not another example of why we urgently need to review, amend and update all the laws on elections, electoral registration, campaigning and, of course, the functions and purpose of the Electoral Commission?

[Lord Young of Cookham]

I am grateful to the noble Lord for his response. I am sorry if anybody who had done the right thing was thereafter denied the right to vote. As he knows, the Electoral Commission will undertake its normal inquiry into this election, as with any other election, and of course we will reflect on the results.

On the noble Lord’s general point, I repeat what I have said on an earlier occasion—probably in response to a question from him—that we have an analogue system in a digital age. We are taking some steps: for example, imprints on digital communications; and the Electoral Commission is issuing statutory guidance to distinguish between candidate expenditure and national expenditure. But I repeat my acceptance of an offer that he made earlier to have an all-party meeting with the Minister for the Constitution to see whether we can find a consensual way forward to make sure that we have an electoral system fit for the digital age and fit for purpose.

[Lord Tyler (LD)]

My Lords, given that the Prime Minister dithered for four weeks between the agreement to extend the Article 50 process, on 11 April, and the official go-ahead for the EP elections, on 7 May, should not the Government take the principal blame for the foreshortened period and the consequent problems that were left in the hands of the electoral authorities? This was also, of course, the main cause of the difficulties with postal votes for UK citizens overseas. Does the Minister accept that this major democratic deficit would not have occurred if the Government had accepted the recommendations made by the Electoral Commission four years ago as a result of difficulties with the previous European parliamentary elections?

As the Minister has just said, and as he has repeated on a number of occasions, we are now faced with a legislative hiatus. Would this not be a good opportunity not just, as the noble Lord, Lord Kennedy, said, to look at the overall problems with electoral law but particularly to look at the problems that occurred with the last referendum so that we can get it into a better shape before we have the next one this autumn?

[Lord Young of Cookham]

The noble Lord raises a number of points, and I shall try to deal with all of them. We were working with the Electoral Commission on streamlining the process following its recommendations after the last European elections, but given the result of the 2016 referendum it was not the Government’s policy to take the reforms forward because our policy was to leave the European Union before the end of March 2019 and therefore before the next election was due.

On his accusations of dithering, I think I can rebut those. On 5 April, when it was clear that we would not be leaving the EU as planned, the Electoral Commission issued guidance that EROs should identify all EU citizens on the local government register and send them the UC1 declaration form accompanied by relevant information about what to do if they wanted to vote for a UK MEP. It also asked the EROs to take additional steps to raise the profile of this requirement. Perhaps I could write to the noble Lord about the arrangements for postal votes.

On the noble Lord’s final point, were there to be another referendum later this year, as he implied, he will know that there would be primary legislation to bring that into effect, and he would have the opportunity to propose any amendments that he wished to the current regime.

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[Lord Balfe]

I apologise. There are a number of points, but I will leave it at that.

[Lord Young of Cookham]

At the beginning of his questions, my noble friend generously suggested that I might write to him. It is an offer which I accept with alacrity.

[Lord Grocott (Lab)]

My Lords, could the Minister resist any temptation to spend too much time, energy and public money on dealing with all these questions? Of course, the simple way to avoid all the difficulties that Members have identified with these elections would have been to observe the decision of the British people in 2016 to hold no more of them. Can he help the House, at least in one respect, to avoid any further waste of money? There was a reference in his Statement to the fact that full funding was provided to returning officers for all their needs; I am sure that is the case. Can he tell us precisely what the cost to the taxpayer has been for holding these totally unnecessary elections; or, if he does not have the information available now, can he put it in the Library?

[Lord Young of Cookham]

I agree with the noble Lord that, had the other place agreed the withdrawal agreement that was put before it, we could have avoided these elections. It so happens that I have in front of me some information relating to his question. The cost of the last European elections was £109 million, but that was shared with local elections. The amount of money set aside this time, when they did not coincide with local elections, was £159 million.

[Lord Cormack (Con)]

My Lords, would it not help to calm those who were understandably upset by recent events if this House used much of the time we have at the moment, while we are treading water, to take the moral high ground and pass legislation giving full rights to EU nationals living in this country?

[Lord Young of Cookham]

I believe that was part of the agreement reached by the Prime Minister, which she put to the other place. I hope that however this matter is resolved, what my noble friend has suggested will indeed be the case.

[Lord Roberts of Llandudno (LD)]

My Lords, was part of the problem the fact that some of the electoral advice given to the various returning officers was not accurate? Many local authorities used discounted mailing, rather than Royal Mail. This made a massive difference to the number of days that posted items took to reach those eligible to vote. Should that not be put right in instructions from the Home Office to the electoral returning officers?

[Lord Young of Cookham]

As I said in response to the noble Lord, Lord Kennedy, the Electoral Commission will carry out its normal review and inquiry into the European elections. It will certainly look at the issue raised by the noble Lord that some of the forms do not reach the people eligible. The Government will of course take notice of any recommendations made.

[Lord Wallace of Saltaire (LD)]

My Lords, I am sure that the Minister will recall that, at the weekend, the Chancellor of the Exchequer suggested that the Conservative leadership election makes it now practically impossible for us to leave in good order on 31 October. Mr Michael Gove, as a candidate for that leadership, has also suggested that we might take rather longer. This begins to open up the prospect that we could indeed have the 2020 local elections before we get to the point of deciding whether we finally leave. We need to make absolutely sure that the position of EU citizens resident in Britain and their right to vote is clarified before we come to the next round of elections in which they are entitled to participate. Can he ensure that the Electoral Commission has that fully in mind?

[Lord Young of Cookham]

Is the noble Lord suggesting that there is a scenario where we have another round of European elections?

[Noble Lords]

Local elections.

[Lord Young of Cookham]

Yes, indeed, we will take account of any recommendations made by the Electoral Commission regarding what has recently happened and implement them before 2020.

Census (Return Particulars and Removal of Penalties) Bill [HL]

Lord Young of Cookham Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 4th June 2019 Grand Committee

[Baroness Hayter of Kentish Town (Lab)]

I have very little to add. I concur absolutely and reinforce the importance of the census, not just as a purely numerical thing but as rather more. I am sure the Minister will not have heeded too much the pleas of one of his predecessors, the noble Lord, Lord Maude, or the noble Baroness, Lady Finn. We should question whether we have this.

As was clear at Second Reading, we support the census and the initiative in this Bill. However, everyone agrees—this is not new—that it will be key for it to be done correctly with everyone’s confidence, particularly the populations who will now be able to answer questions deeply relevant to them. I also think it means that there should be no surprises when the census appears, either for the relevant groups, for whom this will be a welcome move forward, or for the rest of the form-fillers. There should be no surprise—or, if you like, antagonism—and I do not think there will be from the non-involved groups when these questions appear.

While we need to have the questions tested on those with a particular interest in answering them, we also need to test that they are understandable to those to whom they do not particularly apply. I am sure that the consultation on the questions will take account of this so that even those not interested in answering these questions will understand why they are there. We should not confuse people so we need to test the questions with all those who will fill in the forms.

My second point goes beyond my amendment in this group. We need to make sure that we see a very high completion rate of the census as a whole as well as on these additional questions. A lot of good PR will be needed to achieve that. Explanations and preparations need to be made well before the census form arrives, whether online or through people’s letterboxes. While I realise that this is beyond the scope of the amendment before the Committee, it would be useful if the Minister could say a little about the publicity covering the questions once they have been agreed.

I want to raise only one other point, perhaps a little cheekily because again it is not part of the amendment. At Second Reading we asked about the additional question on military service. Is there any update on how the consultation on that issue is taking place?

[Lord Young of Cookham (Con)]

My Lords, I begin by thanking the noble Baronesses, Lady Barker and Lady Hayter, for their amendments. I agree with what the noble Baroness, Lady Barker, said about the census. It is an important civic event and we recognise it as exactly that. The amendments relate to the guidance on how census questions on sex, sexual orientation and gender identity should be answered. I agree entirely with the noble Baroness, Lady Barker, that we need to approach this matter with sensitivity, and I think we have done so.

Before we turn to the detail of the amendments, perhaps I may clarify a point regarding the questions for Armed Forces veterans, a point just raised by the noble Baroness, Lady Hayter. At Second Reading, the noble Lord, Lord Wallace of Saltaire, pointed out the difference between a note circulated by the Royal British Legion and the proposal in the White Paper on the Armed Forces question. I said that the ONS will consult the Royal British Legion and others on the detailed question or questions. I can confirm that they have indeed been consulted during the preparation of the ONS proposals for the Armed Forces question. The RBL has confirmed that it is content with the question and the guidance proposed. It accepts that as the census is a household questionnaire, it can capture only dependants who actually live with a veteran.

Perhaps I may also take the opportunity to clarify a point raised by the noble Baroness, Lady Barker, at Second Reading on the guidance to accompany completing the sex question in the next census, an issue that she has raised again today. The guidance accompanying the 2021 census is already in development. I can confirm that draft guidance for the sex question makes it clear that people do not need to answer according to the sex on their birth certificate, and that that is case whether or not they have a gender recognition certificate. This is consistent with the guidance that accompanied the 2011 census. The draft guidance for 2021 states that you can fill in whatever you prefer. I hope that gives the noble Baroness, Lady Barker, the reassurance she seeks on the question she posed. I have written to her to clarify the point and copies of the letter are available in the Library. I have also had the pleasure of meeting the noble Baroness and the noble Lord, Lord Stevenson, to discuss the issues. The proposed guidance for the sex, sexual orientation and gender identity questions has been shared with those noble Lords who spoke at Second Reading.

The noble Baroness, Lady Hayter, raised the importance of intelligibility. These questions must be understood by everyone. There are four key guiding factors in the terminology that the ONS is using. First, the census form must be understood by the whole of the usual resident population. Secondly, it must be inclusive of the whole of the population of interest; that is, those whose gender is different from the sex they were registered with at birth. Thirdly, it should be publicly acceptable to the whole of the usual resident population. Finally, it should allow individuals to identify as they wish and should not be limited by overarching terminology.

I turn to the probing amendments tabled by the noble Baronesses, Lady Barker and Lady Hayter. As I have just set out, the proposed guidance is already in development. This House need not wait for the Act to be passed to consider this guidance, and it can be assured that we are consulting on it. I can confirm that the ONS is in the process of sharing the proposed guidance for the sex, sexual orientation and gender identity questions with interested parties, including LGBT, equality and women’s groups. These include Stonewall, the Equality and Diversity Forum, and the Equality and Human Rights Commission. In all, the ONS is consulting with over 50 organisations. The Scottish Trans Alliance is among these organisations and I can confirm, further to my meeting with the noble Baroness, Lady Barker, and the noble Lord, Lord Stevenson, that officials from the ONS have held a constructive meeting with it to discuss the research informing the questions, design and guidance. I know that officials will be happy to continue that dialogue to answer any further questions they may have. Of course, the views of noble Lords as the Bill passes through this House will also be taken on board. The ONS has offered to host dedicated sessions for noble Lords to discuss the guidance.

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[Baroness Barker]

My Lords, I thank the Minister very much for that—does he wish to add a further point?

[Lord Young of Cookham]

I have received some in-flight refuelling about the pertinent question the noble Baroness asked about the campaign and publicity. She is absolutely right that we have to inform people about what is happening. The ONS will undertake a national campaign as well as local campaigns. It has been working closely with the GEO on the campaigns and it will also work closely with local authorities and the third sector to reach out to all communities to help them fill in the census and to identify as they like.

[Baroness Barker]

I thank the Minister for that; it is extremely helpful. It reflects, albeit in a condensed form, a longer and rather more detailed conversation that we had about these matters.

I stress that this is not only an important matter of civic engagement. As officials from the ONS have been at pains to point out to us in briefings, this is an opportunity to gather data not otherwise available. Therefore, it is extremely important that the data gathered is as true, full and inclusive as possible. Apart from anything else, this data will inform public policy for decades to come. It is therefore important that we enable people. The people I have talked to often struggle to know how to fill in a form. They wish to fill in forms honestly but they struggle to do so, because it is not always clear. Therefore the more that can be done to include people, the better. I agree with the noble Baroness, Lady Hayter, that it is important that, in seeking to make this as good as it can possibly be for a minority population, we do not end up confusing everyone else as well. That is not the intention. I welcome the offer to look at this in greater detail over the summer and the autumn as the census rehearsal happens—what an exciting prospect that is.

This is an important matter for us all. I thank the Minister very much and beg leave to withdraw the amendment.

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[Baroness Hayter of Kentish Town]

I heard the noble and learned Lord, Lord Judge, talk of crime and penalty; I expected him to talk about crime and punishment—the more commonly used word.

I have two points. The secondary one is that, hearing this, I have a slight worry about the issue I raised before, about military service. Albeit that it is not in here, it is nagging at me. It is possible that some people would not want to declare that they had served in the military. I know we have not exempted that in the Bill. It does not come under the voluntary category. It will be added, and will be a compulsory question. There is something vaguely nagging at me. Maybe this is not the point at which to raise it, but perhaps a letter could be sent about what consideration was given to why that was not an area where people could choose not to declare. It is not just about old cases from Northern Ireland; there may be other reasons. I have a slight nag about that distinction, which I raised at Second Reading.

I hope that if the noble and learned Lord, Lord Judge, does not get a satisfactory answer on this issue, he will bring it back on Report. It is something we would want to support. When I walked into the room, I thought this would take just a second and assumed that the Government would accept this. Not having seen the letter, I was absolutely astonished to hear that they were not. I hope there will be a change of heart by the Government and, if not, that the amendment will be brought back on Report.

[Lord Young of Cookham]

My Lords, let me try to deal with the very serious issues raised by the amendment moved by the noble and learned Lord, Lord Judge. The noble Lord, Lord Beith, has trumped my Second Reading story of having moved the 1981 census order by going back to 1975.

I take very seriously any amendment moved by the noble and learned Lord, Lord Judge. He will not remember this, but two years ago we crossed swords on the Higher Education and Research Bill, when he tabled an amendment which it fell to me to answer. It was on a legal matter, so it was a home game for him and an away game for me. I gave what I thought was a very considered, detailed and lengthy response to his amendment. I just looked up what he said in response:

“My Lords, we have just heard an utterly reasonable argument but, with great respect, it is wrong”.—[Official Report, 8/3/17; col. 1419.]


With a judicial flick of the wrist, in a few sentences, my argument was disposed of; a Division was called and the Government lost. Therefore, I take this amendment very seriously and I hope to set out the reasons why we have real difficulty in accepting it.

The two amendments insert two new subsections after Clauses 1(3) and 2(3), seeking to clarify that omitting to provide particulars concerning sexual orientation or gender identity is not an offence. Amendment 2 applies to England and Wales and Amendment 3 to Northern Ireland. A similar amendment was debated in another place during the passage of the Census (Amendment) Act 2000, which noble Lords may recall added the possibility of asking a question on religion to the census Act in England and Wales, and removed the penalty for non-response. That amendment was rejected, following reassurances from the promoters of the Bill, and I hope to provide similar reassurances to noble Lords today.

The short point is that the current drafting already achieves what these amendments aim to do. Unlike the amendments, they do so in a way consistent with the existing law. By removing the penalty attached to a failure to answer, the clear parliamentary intention is to remove the criminal offence. This reassurance was given in 2000, and I give it again today. “No person shall be liable to a penalty” is tried-and-tested legislative language. It was used in the National Insurance Act 1911 and the National Health Insurance Acts 1924 and 1936. It was used in the Census Act (Northern Ireland) 1969 in respect of religion. Most recently, it was used by this Parliament and the Scottish Parliament in the Census (Amendment) Act 2000. Its meaning is clear.

I shall quote what is in the letter, which some noble Lords may not have seen. It is an extract from Hansard by the then Economic Secretary to the Treasury, speaking on behalf of the Government against the amendment similar to the one we are debating now. It says:

“I can assure the House that the legal opinion that my officials have taken on this matter confirms the view … that the removal of the penalty for anyone failing to provide particulars on religion makes the census question on religion voluntary, as only the criminal sanction in section 8 of the 1920 Act makes it statutory to comply with the census in the first place”.—[Official Report, Commons, 26/7/00; cols. 1150.]


On the point from the noble Lord, Lord Scriven, I am not aware that there is any doubt in the public’s mind at the moment, since the 2001 or 2011 census, about the status of the voluntary nature of answering those questions.

I will go on to some other reasons why we have real difficulty with the amendments. They would—inadvertently—land a pebble in what we regard as clear water. They are limited to the questions on gender identity and sexual orientation, as required by the scope of the Bill. However, the effects would go far and wide. They would imply that where the law removes the penalty alone, the intention is to leave in place the offence. That would cast doubt on what was previously clear. In this way, they would risk the voluntary nature of the religion question being called into question, both now and historically. They would entail the same risk for the Scottish census. This risk would extend to other law, historical and current, which uses the same language.

I am grateful for the close and proper attention to and scrutiny of this measure by the House, particularly the Constitution Committee. It is right that we ensure that the law is clear and coherent, and that the public are clear, as the noble Baroness said, that in refusing or neglecting to answer questions on sexual orientation or gender identity they will not be committing an offence. The Bill, consistent with the Northern Ireland Parliament’s approach in 1969, and the approach of this Parliament and the Scottish Parliament in 2000, achieves that.

If the noble and learned Lord has doubts, I am more than happy to arrange a meeting with relevant officials and other noble Lords between now and Report, to see if we can find a way through, given the narrow scope of the Bill and therefore the limitation in impact of any amendment such as the one we are debating. Against that background, and in good faith, I hope the noble and learned Lord feels able to withdraw his amendments.

[Lord Judge]

I am very grateful to everyone who has spoken, and to the Minister—I sometimes think of him as a sort of ministerial Hercules. Getting this right is not a Herculean task, and I should certainly welcome the opportunity to talk to him about it. I shall withdraw the amendment for the time being, on a wait-and-see basis.