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Oral Answers to Questions
(9 years, 6 months ago)
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Sir Andrew Stunell (Hazel Grove) (LD)
1. What recent progress her Department has made on increasing the number and quality of apprenticeships.
The Minister for Skills and Equalities (Nick Boles)
We have already delivered over 1.9 million apprenticeships during this Parliament, and are on track to achieve our ambition of 2 million apprenticeship starts. We are working with groups of employers to develop new trailblazer standards, and last week we launched the latest set of trailblazers in sectors ranging from the nuclear industry to TV production and fashion.
Sir Andrew Stunell
Will the Minister join me in commending Stockport council and employers in Stockport on the record numbers of apprentices that have been recruited? Does he, however, recognise that there is an increasing need for pre-apprenticeship help for 16-year-olds so that they can enter apprenticeships, and will he agree to meet some of my colleges and providers about that subject?
Nick Boles
I am certainly happy to congratulate any authority that itself takes on apprentices. We all need to set an example in all parts of Government and indeed in this House, as many Members are doing. Of course I would be happy to meet my right hon. Friend. I hope that he will welcome the traineeships programme, which was introduced by this Government specifically to provide people in that age group with a stepping stone to an apprenticeship or to a job.
Andrew Gwynne (Denton and Reddish) (Lab)
Despite the Minister’s opening statement, fewer than one in 10 employers in England offer apprenticeships, which must surely be improved upon. Labour will ensure that all public sector contracts worth more than £1 million require the contractor to take on apprentices. That was the subject of my private Member’s Bill, which, sadly, was blocked by Ministers. Why do Ministers not wake up, smell the coffee and realise that that is the best bang for the buck of public procurement contracts?
Nick Boles
Well, of course I am sure that the hon. Gentleman meant to congratulate the Government on our fantastic achievement in creating far more apprenticeships. They are real apprenticeships—those that involve a job and last more than 12 months—unlike the ones that his Government produced. He is right that we need many more employers, public and private, to want to create apprenticeships. The way to do that is not to force them to do so, but to make it attractive to them to do so. That is why we are introducing new incentives through the apprenticeship grant, and why we are putting employers in charge of the standard of an apprenticeship so that they know it will be useful to them and not just some bureaucratic tick box.
Stephen Hammond (Wimbledon) (Con)
In my constituency of Wimbledon, we have woken up and smelt the coffee. Will the Minister join me in welcoming the Take One initiative under which Merton chamber of commerce, following on from the Government, is brokering relationships between apprenticeships and training providers and firms, with 150 extra people taking an apprenticeship this year as a result of that scheme?
Nick Boles
I strongly welcome that scheme and any other scheme that tries to make it easier—particularly for small employers, who sometimes face some level of risk—to take on an apprentice. There are all sorts of schemes, and I congratulate the one in my hon. Friend’s constituency.
Charlie Elphicke (Dover) (Con)
2. What recent steps her Department has taken to improve schools which have been placed in special measures.
The Minister of State, Department for Education (Mr Nick Gibb)
We act swiftly to tackle failure. If a local authority maintained school goes into special measures, Department for Education officials contact it within five days of being notified, and begin to work with it towards becoming a sponsored academy. Since 2010, we have opened 1,042 sponsored academies, which have nearly all resulted from this process. If an academy goes into special measures, the regional schools commissioner responds equally swiftly.
Charlie Elphicke
Is the Minister aware of the striking progress that has been made at Deal’s Castle community academy in just a few short months, thanks to strong intervention by his Department? Will a decision on sponsorship for the academy be made soon?
Mr Gibb
I know that my hon. Friend has worked tirelessly behind the scenes to ensure early resolution of the problems the school has faced since it went into special measures. We are working closely with the Castle Community Trust, and on securing a strong sponsor for the school quickly. Ofsted’s monitoring inspection on 10 September confirmed that the academy’s plans are fit for purpose, and that necessary improvements are being made.
Jenny Chapman (Darlington) (Lab)
Schools in special measures should demand the highest possible standards of their teachers, but the 2011 teaching standards do not apply to such schools if they are academies or free schools. The standards include things such as the management of behaviour. Is it not more important than ever that the standards should apply to schools when they are in special measures, whatever their governance arrangements?
Mr Gibb
I do not think that the hon. Lady is right. The teaching standards apply to all qualified teachers. If she is referring to the issue of qualified teacher status, she should be aware that the vast majority of teachers in academies are qualified teachers and so are required to abide by the teaching standards. Even for teachers who are not qualified, who might be lecturers from universities or people who have come from industry to teach physics or science, the head teacher is able to use the teaching standards in assessing them.
John Robertson (Glasgow North West) (Lab)
3. What assessment she has made of the effect of her Department’s policy on qualified teacher status on educational outcomes.
The Secretary of State for Education (Nicky Morgan)
Pupils have the best chance ever of attending a good or outstanding school. That is thanks, in no small part, to the quality of the teachers in those schools. In fact, the number of teachers who do not hold degrees has fallen by almost half since 2010. Our policy is to put our trust in the professionalism of head teachers, who are best placed to recognise outstanding teaching and recruit the best possible teachers for their schools.
John Robertson
Perhaps the Secretary of State could clarify which of the eight requirements in the 2011 teaching standards should not apply to every teacher in every classroom?
Nicky Morgan
I note that, as a Scottish Member of Parliament, the hon. Gentleman is asking about English educational standards, but I am happy to answer his question. I wondered whether he might apply for the job of the Labour party’s leader in Scotland, but I see that he is here. There are fewer unqualified teachers in state-funded schools than there were in 2010. The Government trust head teachers to get in the best possible people to broaden young minds.
Mr James Gray (North Wiltshire) (Con)
Does the Secretary of State not agree that, up and down the land, there are some outstanding and inspiring teachers who do not hold professional qualifications? The hon. Member for Stoke-on-Trent Central (Tristram Hunt), for example, brags that he sometimes teaches in Stoke schools when they allow him and that he has taught a primary school about the armada, of all things. Is he really the sort of person who should not be allowed into a school?
Nicky Morgan
My hon. Friend tempts me to speculate on the shadow Secretary of State’s qualifications to teach in schools. He is absolutely right that it is for heads and teachers to decide who is best qualified to teach in their schools. In state funded schools, 96% of teachers hold qualified teacher status. The figure is 97% in maintained schools and 95% in academies.
Tristram Hunt (Stoke-on-Trent Central) (Lab)
Last week, I visited schools in Warrington, Chester and Milton Keynes. Will the Secretary of State tell the House why children in those places do not deserve to be taught by teachers who can
“Adapt teaching to respond to the strengths and needs of all pupils”;
who can “Manage behaviour effectively”; and who can
“be aware of pupils’ capabilities…and plan teaching to build on these”?
Nicky Morgan
It is interesting that the hon. Gentleman should stick, yet again, to qualified teacher status. We all saw what happened when he tried to introduce his new policy of a Hippocratic oath for teachers, which was condemned by the “Left Foot Forward” blog as “patronising”. I see that he had to turn to Twitter for inspiration for his questions today. He could have asked questions about so many subjects. Instead, he talks about the 3% of teachers who are unqualified. Why does he not talk about the 97% of teachers in our schools who are qualified and who are doing a brilliant job? Why does he not talk about trusting heads and teachers to have the best possible qualified staff in their schools?
Tristram Hunt
What guff! Clearly the Secretary of State does not value those teaching skills. They are the criteria of the 2011 teaching standards that are used to determine qualified teacher status, which her Government have abandoned. Warrington, Chester and Milton Keynes have all seen rises in the number of unqualified teachers. Given that the quality of teaching is the most important determinant of success, will she confirm that the Tory party has gone soft on standards and is putting ideology above the interests of pupils?
Nicky Morgan
Well, what wishful thinking and, indeed, guff from the hon. Gentleman. If he wants to talk about the quality of teachers, he needs to look at the outcomes. This country has more good and outstanding schools than in 2010. He ought to listen to the families who want their children to be taught well. If he is so worried about unqualified teachers, what does he say to the schools in Stoke that allow him in to teach?
John Pugh (Southport) (LD)
4. What assessment she has made of the effect of pension changes on school budgets; and if she will make a statement.
The Minister for Schools (Mr David Laws)
The employer contribution rates for the teachers’ pension scheme will increase by 2.3 percentage points following the recommendation to reform public sector pensions by the former Labour Minister, Lord Hutton of Furness. That will ensure that high-quality teacher pensions remain sustainable and affordable.
Mr Laws
We have delayed the increase until September 2015 to give schools and head teachers time to plan; protected the schools budget in real terms in 2015-16; and—I know that my right hon. Friend will welcome this—allocated an extra £390 million to raise school funding in the most underfunded parts of the country. All those measures mean that the increase in pension costs is affordable.
Chris Skidmore (Kingswood) (Con)
5. What assessment she has made of the adequacy of the provision of primary school places in a) Kingswood constituency and b) England.
The Minister for Schools (Mr David Laws)
Some 260,000 additional school places were created between May 2010 and May 2013, and we are on track to meet the extra pressures for places across the country.
Chris Skidmore
Since May 2010 a new 420-place primary school has been approved in Kingswood, to open in September 2015, as well as another 420 primary school places in other schools. This week, a new £5.4 million primary school has been approved for Emersons Green East. Can the Minister estimate the total amount of extra funding and investment that has gone into the Kingswood constituency for primary school places in the past four years?
Mr Laws
My hon. Friend is absolutely right, and I congratulate him on his work to help us ensure additional places in his constituency. I confirm that under the previous Labour Government, £17 million was made available in his local authority area for basic need, and that has risen to £23 million in this Parliament. We have allocated another £9 million over the next two years, meaning that £32 million extra has been made available by this coalition Government for school places in my hon. Friend’s area.
Kevin Brennan (Cardiff West) (Lab)
Lib Dem councillors in Cambridge are calling this a crisis, and Tories in Surrey are saying there is a severe shortfall in places for next September. Bradford council says that it has a primary school places problem, and in nearby Leeds a secondary free school has attracted only 11 additional pupils this term. When will the Minister drop the ideological policy on primary school places that was adopted by his Tory master, and put parents and pupils first?
Mr Laws
We are putting pupils and parents first, and we are reversing a decline in primary school places. Under the last Labour Government, 200,000 primary school places were taken out of circulation, precisely at a time when the birth rate was rising. We will not follow such an irresponsible policy.
Mr John Leech (Manchester, Withington) (LD)
The coalition Government have rightly given their support to the proposed new West Didsbury primary school, to provide much-needed additional places. As we conclude the final consultation phase, will my right hon. Friend assure me that the Government will maintain coalition support for those vital new places, despite ideological opposition from Manchester city council?
Steve Rotheram (Liverpool, Walton) (Lab)
6. What progress she has made on introducing the technical baccalaureate.
The Minister for Skills and Equalities (Nick Boles)
Schools and colleges started teaching the 230 new tech-level qualifications that will count towards the “tech bac” from September this year.
Steve Rotheram
On 21 July the Minister told the House:
“I am very hopeful that about 25% of young people will take up the opportunity of a “tech bac”.—[Official Report, 21 July 2014; Vol. 584, c. 1141.]
Will he update the House on enrolment figures so far, and say how far they go towards meeting the Government’s target of 320,000 young people?
Nick Boles
It is probably better to explain how the “tech bac” works. It is, like the EBacc, a group of qualifications, and we will know how many students have achieved the “tech bac”, or are studying for it, only when the 16-to-19 tables for 2016 are produced in early 2017. There will not be any figures under any Government for the number enrolled in “tech bac”—students do not enrol in it; they are measured after the event on whether they have achieved the qualifications that count towards the “tech bac”.
Nick Boles
The hon. Gentleman keeps asking questions from a sedentary position, but he has betrayed the fact that he completely misunderstands the policy. That is curious since the Labour party has spent a long time claiming that it was its policy in the first place. “Tech bac” is a group of qualifications. Students do not enrol in it; they discover whether they have achieved it at the end of the period.
Stephen Mosley (City of Chester) (Con)
If the “tech bac” is to be a success, it will need the full support of future employers. Will my right hon. Friend let the House know what efforts he is making to ensure that employers recognise the “tech bac”, support it, and are encouraging young people to get involved?
Nick Boles
My hon. Friend has, of course, thoroughly understood the policy, and it would make no sense if there was not intense involvement by employers in the design of those qualifications. That is what we are doing, and we want to hear from any employers about what further improvements we can make to that qualification design.
David Wright (Telford) (Lab)
Is not careers advice therefore important in partnership with employers? The CBI has described the system of careers advice as being on life support. What will the Minister do to improve careers advice and ensure that people moving out of the baccalaureate can go forward and get employment?
Nick Boles
We have changed Ofsted guidance to ensure it can check whether schools are adequately fulfilling their responsibility to provide independent advice and guidance to young people. We have also changed the nature of the National Careers Service contracts to ensure that it spends 5% of its contract value on providing career advice and guidance to young people. We have therefore taken a great many steps, but we never think that the job is done—we are not remotely complacent—and we are open to other suggestions, including the hon. Gentleman’s, on how to improve the quality of advice and guidance provided to young people.
Stephen McPartland (Stevenage) (Con)
7. What steps the Government have taken to improve participation rates of female pupils taking STEM subjects.
The Secretary of State for Education (Nicky Morgan)
Both of my ministerial roles give me a personal passion about this issue. As a result of our reforms to GCSEs, this year a record proportion of pupils entered the science EBacc subjects—68.7%—and girls perform even better than boys thanks to excellent teaching, but we want to continue to make progress, which is why the Government are supporting the “Your Life” campaign, which will change young people’s perceptions of where maths and science can take them.
Stephen McPartland
I am glad that the Women’s Engineering Society is based in Stevenage. The WES and I are concerned that, although young women enjoy science, technology, engineering and maths subjects, they do not associate them with a career choice. Will the Secretary of State join me in welcoming “Sparks”, the new WES initiative designed to encourage young women to turn that interest in STEM subjects into a career choice in engineering?
Nicky Morgan
My hon. Friend is absolutely right. We welcome all initiatives that aspire to get more girls into careers such as engineering. I entirely welcome the “Sparks” initiative, which the WES, based in Stevenage, has launched. Working with more than 200 partners from the UK’s best-known businesses and educators, and with the support of organisations such as WES, our “Your Life” campaign will promote STEM subjects leading to a wide range of career options.
Sir Peter Luff (Mid Worcestershire) (Con)
My right hon. Friend will be aware that, in the UK, we have the lowest participation rate of women in engineering of any country in the European Union. She welcomes “Sparks” and “Your Life” but, in that context, will she welcome tomorrow’s engineers week, which is next week? It aims to change perceptions of engineering, particularly among young ladies in the 11 to 14 age group?
Nicky Morgan
My hon. Friend is absolutely right. I am happy to add my support to the national engineers week next week. As I said at a recent event, I understand that we need 83,000 more engineers every year for the next 10 years, and they cannot all be men.
Andrew Stephenson (Pendle) (Con)
8. What steps her Department is taking to improve school buildings where most needed.
Graham Evans (Weaver Vale) (Con)
10. What steps her Department is taking to improve school buildings where most needed.
The Minister for Schools (Mr David Laws)
Investment in the school estate is one of the Government’s highest priorities. This Government will invest £5.6 billion on maintenance and improving the condition of school buildings between 2011 and 2015. In addition, the £2.4 billion priority school building programme is addressing 260 schools in the worst condition.
Andrew Stephenson
Parents in Pendle are delighted with three brand new primary school buildings that opened in September, but many more schools in Pendle are in need of improvement. Will my right hon. Friend the Minister and our Secretary of State be willing to visit Pendle to see the progress we have made, but also some of the challenges our schools still face?
Graham Evans
What steps are being taken to support the installation of energy-efficient measures such as solar panels, similar to the ones installed at the outstanding Helsby high school in my constituency of Weaver Vale?
Mr Laws
The Government are committed to helping schools to become greener and more energy efficient. That is why we have invested £20 million so far in the Salix energy efficiency loan scheme, supporting a wide range of energy-efficiency technologies with projected energy savings in excess of £40 million.
Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)
Earlier this month, I was pleased to visit the outstanding St John Bosco college in Croxteth in my constituency to see its brand new buildings. Bosco is one of the schools that lost out when the Government cancelled Building Schools for the Future in 2010. Will the Minister join me in congratulating the school and the Labour mayor of Liverpool, Joe Anderson, on ensuring that the rebuilding of Bosco went ahead?
Mr Laws
I am always delighted to see new school estate being built and improved. I am delighted also to say that in a few months the Government will be able to announce multi-year allocations of maintenance money across England, as well as a Priority School Building programme 2 that will be targeted at schools in the worst condition across the country.
Joan Walley (Stoke-on-Trent North) (Lab)
St John’s Catholic academy in Kidsgrove is one of the schools that lost out back in 2010 when it should have had a new school building on what are currently two separate sites. When the Minister comes to announce the successful bids for phase 2 of the Priority School Building programme, will he make sure that that Kidsgrove school is included, and will he take account of the substantial subsidence on the older site and make sure that we have a school building fit for education?
Mr Laws
We have now received all the bids for the Priority School Building programme 2. We are assessing those and hope to make decisions towards the end of this year. As a consequence of the points that the hon. Lady makes, I will take a particularly close look at the school that she mentions.
Damian Green (Ashford) (Con)
Will the Minister join me in congratulating the John Wallis Church of England academy in south Ashford? Its results have been transformed since it became an academy, and this term it has been transformed physically, with new buildings giving top-class provision for both academic and vocational subjects. Will he also welcome the fact that these new buildings were provided at considerably less expense than would have been incurred under the previous Government’s Building Schools for the Future programme?
Mr Laws
My right hon. Friend is right. I am delighted to hear about the new buildings in his constituency. We are not only allocating a massive amount of money for improving the school building stock and making sure that there are extra places, but we are building new schools at a considerably reduced cost, compared with the very expensive Building Schools for the Future programme.
Richard Burden (Birmingham, Northfield) (Lab)
Balaam Wood academy in my constituency needs vital rebuilding work in order to secure its future serving one of the most deprived parts of Birmingham. It was in line for Building Schools for the Future money, but, as we know, that was scrapped. It is still waiting to hear whether it will get support under the Priority School Building programme, but if schools like that in local authorities try to use their own land and assets creatively to finance such things, they face massive bureaucracy from the Department. Why do the Department and Ministers make it so easy for free schools to get capital and so difficult for local authority schools?
Mr Laws
If the hon. Gentleman is concerned about the school in his constituency, I would be happy to meet him to discuss it. We would want to remove any bureaucracy where schools are sensibly trying to draw together capital plans, but we also have the Priority School Building programme and the ongoing academies capital maintenance fund. They are satisfying the condition needs of many schools across the country.
Stephen Timms (East Ham) (Lab)
9. What plans she has to increase the number of apprenticeships for 16 to 18-year-olds; and if she will make a statement.
The Minister for Skills and Equalities (Nick Boles)
We are providing an additional £170 million to fund over 100,000 incentive payments of £1,500 to employers who take on a young person aged 16 to 24.
Stephen Timms
The official statistics show a big fall in the number of apprenticeship starts for under-19s, from over 130,000 in 2010-11 to 95,000 last year. Why has there been that fall? Why has it been allowed to happen, and how optimistic is the Minister that the measures he has just announced will turn around that very disappointing state of affairs?
Nick Boles
I am always optimistic, but it is easier to be optimistic when the desired result has already happened. Provisional data for 2013-14 indicate a slight increase in apprenticeships for under-19s and for 19 to 24-year-olds. We are therefore hopeful that that improvement will continue. However, there is a serious point here, which is what employers think about offering apprenticeships to people who may be as young as 16 and perhaps do not have all the emotional maturity and the employability skills that employers expect in an apprenticeship that will last at least a year and be quite demanding. That is exactly why we have created traineeships as a stepping stone to apprenticeships. It may well be in the future that for many 16-year-olds the right answer is to do a traineeship first for six months and then to move on to an apprenticeship, rather than to go straight into an apprenticeship.
Sir Tony Baldry (Banbury) (Con)
Unemployment is falling fast. In my constituency there is now significantly less than 1% unemployment. Employers will have to recognise that it is in their own interest to take on apprentices, because if they do not embrace apprenticeships, they will not be able to find people with the skills they need in a few years because such people simply will not be there.
Nick Boles
That is a powerful message, and I am grateful to my right hon. Friend for delivering it. It is a message that all of us in the House, whatever party we represent, should be taking to every business and employer in our constituencies. If they are not offering apprenticeships now, why not? What is holding them back? We want them to come forward and offer apprenticeships and traineeships for our young people.
David Rutley (Macclesfield) (Con)
11. What steps she is taking to equip young people with the skills they need to succeed in the workplace.
The Minister for Skills and Equalities (Nick Boles)
We have reformed the way in which 16-to-19 education is funded and the qualifications that count in league tables. We have also raised the quality of apprenticeships and traineeships, and enabled more students to take part in work experience. Students who do not hold at least a grade C in maths and English GCSE at age 16 are now also required to continue to study those subjects.
David Rutley
It is good to see schools such as All Hallows Catholic college making enterprise a priority in education. However, a recent study by the Chartered Management Institute pointed out that while 89% of businesses rate business experience as part of education, only 22% are prepared to provide such opportunities for young people. What steps are the Government taking to encourage more businesses to step up to the plate and provide opportunities for young people across the country?
Nick Boles
The key change that we have made is to make it easier for colleges and schools to go out and actively create those work experience opportunities. Previously, colleges and schools offering 16-to-19 education were funded on the basis of the qualifications that students were taking, and that meant that they were not being rewarded for their work in creating work experience. Now they are funded per student, and work experience is specifically allowed as one of the things for which they can be funded. That has meant that further education colleges are now directly incentivised to create those work experience opportunities.
Derek Twigg (Halton) (Lab)
Has the Minister had any specific discussions with schools about pupils with learning disabilities and how we can help them get into work more quickly?
Nick Boles
It is incredibly important that opportunities to work are not preserved for one group in society. We will be a fair and prosperous society only if we create opportunities involving all people, whether that is women in engineering or people with learning disabilities and other special needs. I visited my local college in Grantham the other week; it is working closely with local employers to create opportunities for young people with learning disabilities and other special needs to gain experience of employment. That is exactly what a great FE college will do in a community, and there are many such around the country.
David Mowat (Warrington South) (Con)
22. Our new studio school in Warrington is providing a brilliant link between the school and the work force. It is supported by parents and all local employers. Will the Minister confirm that he intends to accelerate the roll-out of studio schools in Cheshire and more generally?
Nick Boles
We are happy to take proposals for new studio schools from any area and any group of people who want to set one up, as we are for free schools and new university technical colleges. We do not have a prescriptive, one-size-fits-all policy: we believe in letting a thousand flowers bloom, and studio schools are an important part of that.
Jake Berry (Rossendale and Darwen) (Con)
Does my hon. Friend agree that one of the best ways in which schools can prepare young people for the workplace is by bringing businesses into their buildings? With that in mind, will he join me in congratulating Nigel Dawson and the Fearns community sports college in my constituency, which is hosting my jobs fair next week, on Halloween, with 200 vacancies and 31 employers in the school grounds during the holiday?
Nick Boles
That is exactly the kind of enterprising initiative that we want all schools to undertake. It did, of course, take a particularly enterprising Member of Parliament to persuade them to do so, and I know that other schools will want to follow his lead.
Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab)
12. What plans she has to reform careers advice.
The Secretary of State for Education (Nicky Morgan)
One of my priorities is to ensure that young people leave school prepared for the world of work and able to take advantage of the opportunities available to them. As my hon. Friend the Minister for Skills and Equalities has just said, we want to see improvements to the quality of careers advice available to young people, with many more schools and employers working together to provide excellent support. We have already made a number of changes in this area, including issuing revised statutory guidance to schools.
Mr Blunkett
But the Minister of State was reminded earlier this afternoon that the CBI had described careers advice and education as being on life support. That is generous in that it presumes that any support at all is being given to careers advice. Given that the National Careers Council, the Gatsby Charitable Foundation and, most recently, the Social Mobility and Child Poverty Commission have expressed genuine concern about what is happening, will the Secretary of State put in place a monitoring process and, at the very least, instruct Ofsted to give no school a mark greater than “requires improvement” if its careers education and advice is not up to scratch?
Nicky Morgan
As the right hon. Gentleman said at the end of his question, we already have a monitoring process, which is that Ofsted has a duty to look at the independent careers advice available to schools. I would not want to say that everything is all sorted out and that there are not patches across the country, but I would just point out that a recent survey carried out by CASCAiD, a careers advice company in my constituency, said that, I think, about 86% school students said they had already had access to some form of careers advice. He is right, however, to say that there is more we can do.
Mr Graham Stuart (Beverley and Holderness) (Con)
On Friday. alongside the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson) and the hon. Member for Scunthorpe (Nic Dakin) I helped to launch the Humber careers gold standard, a new programme developed by the Humber local enterprise partnership to provide a rigorous but realistic framework to encourage the delivery of impartial, relevant and inspiring careers guidance for young people that will be rolled out across schools in the area. Will the Secretary of State encourage schools and colleges to participate in the Humber careers gold standard, and will she monitor its performance so that we can derive lessons for the nation as a whole?
Nicky Morgan
I thank the Chairman of the Education Committee. I encourage schools and colleges to take part in the Humber careers gold standard. I think my hon. Friend’s more general point is that there are already some exceptional schemes across the country and we need to harness them. We need to work with businesses, employer organisations, schools and colleges to ensure that such opportunities are available to all students right across the country.
Nic Dakin (Scunthorpe) (Lab)
I was pleased to join the Chair of the Select Committee at the launch of the Humber careers gold standard. Does the Secretary of State agree that regional hubs may well be part of the way forward for better quality careers information, advice and guidance, but that they need to be properly funded? Will she make a commitment to ensuring that they are properly funded?
Nicky Morgan
I agree with the hon. Gentleman that regional hubs offer an important opportunity for schools. I hope that all hubs are working in particular with local enterprise partnerships, which offer great opportunities. Many of them have already bid for skills projects as part of the city deals and regional growth funding granted by the Government. I shall certainly look at the funding, but I would never like to pre-empt any Treasury approvals.
Mark Pawsey (Rugby) (Con)
Does the Secretary of State agree that evidence of effective careers advice can be seen in the increasing numbers of pupils taking STEM subjects—science, technology, engineering and maths—which is important in meeting the needs of industry? Will she join me in congratulating Rugby high school in my constituency where, in the past three years, the number of those taking maths at A-level has increased by 50%?
Nicky Morgan
I certainly congratulate all those involved at Rugby high school in encouraging our young people to take maths and to continue to study all maths and science subjects. As we have already heard, it is absolutely essential that our young people continue to study STEM subjects, because there is a real need for them among the businesses in our economy.
Lucy Powell (Manchester Central) (Lab/Co-op)
We are seeing the impact of the Government’s woeful record on careers in their flagship early years apprenticeship scheme. Figures I have uncovered show that, despite Ministers doubling the bursary, just 38 people applied in the first six months. The Government were aiming for 1,000. The scheme has now closed. The Government have dismantled careers services, leaving no pipeline to get the best young people into this important scheme to improve quality in the early years. What lessons does the Secretary of State draw from this appalling experience?
Nicky Morgan
I do not think that 1.8 million apprenticeships is anything to be sniffed at. In fact, the Government have created more apprentices and we are committed to creating 3 million more in the next Parliament. As for what the hon. Lady says about careers advice, we have already, as from 1 October, extended the National Careers Service. Ofsted is expecting careers guidance, but I have already said that there is more to do in terms of building partnerships between employers and schools.
John Mann (Bassetlaw) (Lab)
14. If she will bring forward legislative proposals to allow failed academies to return to local authority control.
The Minister of State, Department for Education (Mr Nick Gibb)
We have no plans to legislate to allow failed academies to return to local authority control. We take swift and decisive action to deal with any academies that are failing, which may include issuing a warning notice, terminating their funding agreement or securing a new high performing academy sponsor to take the school forward.
John Mann
So much for democracy! What if the parents want a return to local authority control for a failed academy? What if the teachers want a return to local authority control? What if it is a village primary academy and the whole village would like a return? What is wrong with that? Why can that not happen?
Mr Speaker
That was five questions from a very experienced Member—and exceptionally cheeky chappie.
Mr Gibb
What parents want is every local school to be a good school, and that is what the academies programme is delivering. Sponsored schools that have been open for four years are showing a 5.7 percentage point improvement in their GCSE results compared with their predecessor schools, so it is a programme that is working. I am afraid that in the past too many schools were left languishing under local authority control.
Mr Ronnie Campbell (Blyth Valley) (Lab)
15. What assessment she has made of the effectiveness of the system of academy sponsorship; and if she will make a statement.
The Minister of State, Department for Education (Mr Nick Gibb)
There are 642 approved academy sponsors, and 349 of them are good or outstanding converter academies. Results over a number of years show that established sponsors are delivering sustained improvements, helping to transform the life chances of thousands of pupils. There is a rigorous and thorough process for approving sponsors and reviewing their growth and performance, and regional schools commissioners now lead in identifying new sponsors, challenging existing sponsors and advising on appropriate sponsor matches for new academies.
Mr Campbell
The Secretary of State indicated some time ago that she was in favour of allowing Ofsted to check on academy schools. Why has she changed her mind? Or is the Chief Whip still in charge of her Department?
Mr Gibb
Of course, Ofsted does inspect academies and does have the power to inspect chains of academies, as we have seen recently with its inspections of a series of academies in the E-ACT and Academies Enterprise Trust chains. The truth is that Ofsted has the power to inspect chains of academy schools.
Dr Julian Huppert (Cambridge) (LD)
16. What steps she is taking to help schools deliver free school meals to all infant pupils.
The Minister for Schools (Mr David Laws)
Thanks to the hard work of schools, caterers and local authorities, free meals are now being offered to infants in schools across England. Some 98.5% of schools served hot meals from the beginning of September, which is a fantastic success, and by January 2015 we expect almost 100% of eligible schools to be delivering hot meals.
Dr Huppert
I thank my right hon. Friend for his answer and the policy. Having seen and tasted these meals in action in Cambridge, I can assure him that this policy is welcomed by pupils, staff and parents alike. However, an issue has been raised to do with the consequences for the pupil premium. How will he ensure that schools still get the pupil premium—another excellent policy—despite the fact that we are now giving free school meals?
Mr Laws
I am delighted to hear that my hon. Friend has been enjoying the free school meals in his constituency and sampling them in different establishments. He is right that pupil premium registration is extremely important, which is why we have given guidance to all schools in the country. From the pilot areas, we know it is achievable to ensure that pupil premium registration continues. In the medium term, we will explore data-sharing arrangements so that schools no longer have to deal with this burden themselves.
Mr Speaker
I am sure we are all glad that the health and nutrition of the hon. Member for Cambridge (Dr Huppert) are assured beyond doubt.
Guy Opperman (Hexham) (Con)
Wylam first school is a big supporter of the free school meals programme. It has purchased the specific equipment needed, but has still not received the funding it is entitled to, given the guidance from the Department for Education. I have a meeting on this matter fairly soon with the Minister, but will he expedite it with his civil servants to ensure a resolution in weeks, not months?
Mr Laws
I shall certainly follow up that issue on behalf of my hon. Friend. I am pleased to tell him that earlier this month the Department announced it was making available almost £25 million in additional capital to schools to support this policy. This money has come from an underspend in the existing free school meals budget.
Angela Smith (Penistone and Stocksbridge) (Lab)
17. How many free schools for 16 to 18-year-olds have opened in the last four years.
The Minister of State, Department for Education (Mr Nick Gibb)
A total of 14 16-to-18 free schools have opened in the last four years, including the highly innovative King’s college London mathematics school and Exeter maths school, which aim to increase the levels of mathematical attainment by the most able students to enable them to study at top-rated universities, and Chapeltown academy, a new 16-to-18 sixth form committed to high-quality academic A-levels.
Angela Smith
The academy in Chapeltown that the Minister has just referred to opened in September and has been funded for 90 places, but the numbers recruited fall significantly short of that—I understand that the figure is something like 55. Why are the Government funding institutions that are not recruiting to full capacity while cutting the funding available to 16 to 18-year-olds already in education or training in existing institutions?
Mr Gibb
The hon. Lady raised her opposition to the establishment of the Chapeltown academy in an Adjournment debate in April, when she said that
“there is no evidence whatsoever that there is demand for these additional sixth-form places.”—[Official Report, 30 April 2014; Vol. 579, c. 964.]
In fact, 58 places have been taken up. Free schools often have smaller numbers in the first year than their maximum, but numbers tend to increase in the years ahead. To quote its website, the school wants to
“Increase aspirations to attend the world’s best universities, and boost attainment at A-Level”.
Why can the hon. Lady not support such a school, with such great ambitions for young people?
Mr Nigel Evans (Ribble Valley) (Con)
18. What steps she is taking to ensure that parents wishing to send their children to faith schools can do so.
The Secretary of State for Education (Nicky Morgan)
Faith schools play an important role in our education system and I firmly support them. All parents can express a preference for a place at any state-funded school, including faith schools, with a minimum of three preferences in rank order. Where a school receives more applications than it has places available, those places must be allocated in accordance with its published admission arrangements. In 2014, 86.5% of parents secured a place at their first-preference school.
Mr Evans
I welcome that response, but parents with youngsters who happen to live in Clitheroe and want to send them to a Catholic school have to pass a non-faith-based comprehensive on the way. Therefore, the local authority will not give them any assistance whatever with school transport. This is a hideous form of discrimination that ends up giving parents a huge bill at the end of the year, particularly those with two or three youngsters. What can be done to make the choice more effective without clobbering parents?
Nicky Morgan
I thank my hon. Friend for his question and I understand the points he has made. Although local authorities must have regard to parents’ wishes to have their children educated in a school based on religion or belief, there is no statutory duty to require them to provide free transport to that school; rather, they must provide free transport for pupils to attend the nearest suitable school beyond the statutory walking distance. “Suitable” in this context means providing education appropriate to age and, where relevant, any special educational needs a child may have. I understand the frustrations of many parents and will perhaps look at this again.
Keith Vaz (Leicester East) (Lab)
I was late for the start of questions because I was attending the opening day of the Sikh faith school in Leicester. May I thank the Minister for all the support that she and Lord Nash, the Minister in the other place have given to the school, and may I ask her to come and visit it as soon as possible?
Nicky Morgan
I thank the right hon. Gentleman very much indeed. In fact, news of his tour to the school had already reached me, and I am delighted to see him in his place. I look forward to visiting the school very much and I am absolutely delighted to wish it all the very best for its successful opening and its continued success in the terms ahead.
Mr Speaker
There is probably a picture of the right hon. Gentleman on the wall of the school—as there is, in my experience, in most restaurants around the United Kingdom.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
T1. If she will make a statement on her departmental responsibilities.
The Secretary of State for Education (Nicky Morgan)
As this is the first topical questions session since the summer results, let me congratulate all students who achieved GCSE and A-level results this summer, as well as their hard-working teachers and their families who supported them. I would particularly like to pay tribute to those achieving phonics results—we saw 102,000 more six-year-olds achieving the reading standards this year—and also to congratulate the winners and the nominees at the excellent national teaching awards, which I attended last night.
Mr Sheerman
Sixth-form colleges in our country used to be the jewels in the crown of our educational system. Seventy-eight per cent. of them are now cutting back in special subjects in the broader curriculum, and in many of the tutorials and special things they could do for their students. Sixth-form colleges have had three major cuts in funding; they are anticipating a fourth. Why is the Secretary of State punishing our sixth-form colleges in this way?
Nicky Morgan
We certainly are not punishing sixth-form colleges, but the hon. Gentleman will know that the economic situation this Government inherited has led to some very difficult decisions. We have no plans to reduce the 16-to-19 funding rate in the academic year 2015-16, but we cannot confirm the base rate of funding until we know how many places we are going to have to fund. We will not have confirmation of student numbers until the end of January, which is why we have not yet confirmed the national funding rate for 16 to 19-year-olds.
Duncan Hames (Chippenham) (LD)
T3. School sixth forms have a different funding formula, but they are under a lot of financial pressure. As the participation age is raised, they find themselves having to do a lot more with less. When will the Government be able to extend the protection of schools funding, which currently goes only up to age 16, to include sixth forms as well?
The Minister for Skills and Equalities (Nick Boles)
It is right—I think my hon. Friend would agree—to focus funding on school-aged children below 16, because that is the stage in life at which education has the most dramatic impact on the young person’s chances. That is why he is a supporter of and part of a Government who protected school funding up to the age of 16, but was unable to extend that protection to sixth forms—
Mr Speaker
I am always disappointed when I do so. I think that the “War and Peace” version should be lodged in the Library of the House for the delectation of hon. and right hon. Members in the long winter evenings that lie ahead.
Steve McCabe (Birmingham, Selly Oak) (Lab)
The Minister has decided to establish a second independent trust to provide children’s services in Slough, following the experiment in Doncaster, but what evidence is there of the success of that approach? Will he place such evidence in the Library and will he, like me, call for a rigorous independent evaluation of the experiment?
The Parliamentary Under-Secretary of State for Education (Mr Edward Timpson)
The hon. Gentleman will know that the formation of the Doncaster trust was carried out over a long period with much reflection on what was the best solution for Doncaster, bearing in mind the specific issues it faced. Part of that has been making sure that the lessons we learn from Birmingham, and from Slough and other local authorities where there has been too much failure in children’s services over too many years, will form the picture of understanding of what works best. There is no “one size fits all” solution. The Hackney education trust was an extremely effective example of how standards can be raised over a 10-year period of stability. Our thinking reflects much of the result that came out of Hackney, but we have worked closely with the relevant local authorities and found the best solution for each individual local authority.
Steve McCabe
That is perfectly all right, Mr Speaker. Does the Minister want an independent evaluation of the experiment?
Mr Timpson
First, it is not an experiment; it is a carefully thought out approach to improving children’s services in Doncaster and Slough. A whole system of checks and balances is of course in place to ensure that those standards are rising—both through Ofsted and the evaluation of the close monitoring by the Department in the early stages. Evaluation is in place, but our principal aim is to ensure that we raise standards for children in those local authorities so that they get the care and protection they need.
Mr Philip Hollobone (Kettering) (Con)
T7. Given the low proportion of men working in primary schools and given the Secretary of State’s joint role as Minister for Women and Equalities, what steps will my right hon. Friend take to encourage the recruitment of more male primary school teachers?
The Minister for Schools (Mr David Laws)
My hon. Friend is quite right to say that we need to do more to attract male teachers into primary schools. A low percentage—15%—of current primary school teachers are male. We are trying to improve our communications to attract more men to teach in primary schools. We are improving the level of bursaries and since 2010 there has, in fact, been a 10% increase in the number of male teachers in primary schools, but we need to do more.
Hugh Bayley (York Central) (Lab)
T2. What have the Government done to make schools more energy-efficient and to make pupils more aware of the need to cut carbon emissions? Will the Secretary of State voice her support today for the run on sun campaign of Friends of the Earth to install solar panels in schools?
Caroline Dinenage (Gosport) (Con)
There has been a 15% increase in the number of students enrolling at sixth-form colleges without a GCSE in maths, yet these post-16 education providers are excluded from the £20 million golden hellos available to attract maths teachers to further education. Given that maths skills are so crucial to young people’s futures, what is the Department doing about that?
The Minister of State, Department for Education (Mr Nick Gibb)
We introduced the golden hello scheme to support the recruitment and retention of well-qualified maths teachers in the publicly funded further education sector who can teach at GCSE level and above. Sixth-form colleges are not included in the scheme, because, along with school sixth forms, they are eligible for the recruitment support and incentives offered by the National College for Teaching and Leadership, which are not available to FE colleges.
Mr Nicholas Brown Newcastle upon Tyne East) (Lab)
T4. Some 34% of the newly qualified teachers who entered the state-funded teaching profession in 2000 had left the profession 10 years later. What does the Minister think accounts for that poor retention rate?
Nicky Morgan
I am always very unhappy to hear about good, highly qualified teachers who decide that teaching is no longer the profession for them. There are, of course, myriad reasons why people decide to leave any particular profession, but over the last four months I have been going around the country meeting teachers, and it is clear to me that the issues of work load and inspections, and some of the expectations of the Ofsted regime, are affecting teachers. That is why, last week, the Government launched the work load challenge for teachers and published the “mythbuster” with Ofsted.
Steve Brine (Winchester) (Con)
During the current Parliament, Hampshire county council has invested just over £10 million in new primary school places in my constituency. They include places at The Westgate school, which is Hampshire’s first all-through school, and at the Winchester primary academy which is to be established by the University of Winchester Academy Trust on the new Barton Farm development. Will the Secretary of State hop on the train to Winchester with me and see for herself what a positive campaign for new primary places can do? I may even make her a cup of coffee in the office, which is just around the corner.
Nicky Morgan
How could I refuse an invitation like that—a cup of coffee made by my hon. Friend’s own fair hands? I should of course be delighted to visit Winchester as soon as my diary allows it.
Nic Dakin (Scunthorpe) (Lab)
T5. Why, although School Direct has under-recruited, giving numbers back yet again this year, has the Secretary of State increased its allocation for 2015-16, putting secure teacher supply in jeopardy, as yet another university pulls out after losing numbers as a result of the programme?
Mr Laws
The hon. Gentleman should know that we have massively over-allocated places this year both in the higher education sector and through School Direct. The challenges that we face in some of the shortage subjects are not as a consequence of School Direct; they are reflected in higher education institutions as well.
Simon Wright (Norwich South) (LD)
The pupil premium is making a massive difference to many young people who risk falling behind. Young carers’ GCSE performance is, on average, the equivalent of nine grades lower than that of their peers, but many do not receive the pupil premium. Will the Minister consider the case put by the Carers Trust and Norfolk Carers Support for extending the premium to all young carers?
Mr Timpson
We do need to do more to support young carers. We changed the law recently to enable all of them to benefit from a proper assessment of their needs, so that they can be given the support that they require. As the hon. Gentleman will know, we also extended the pupil premium recently to cover children in care, children who are adopted, and, more recently, children receiving early-years education. However, I shall be happy to look at the hon. Gentleman’s proposal. I know that he works closely with the Norfolk young carers forum, and I also know that my hon. Friend the Minister for Schools will be meeting representatives of the Carers Trust in November to discuss precisely this issue.
Julie Hilling (Bolton West) (Lab)
T6. About 150,000 people die each year who might have been saved had someone only known what to do. Will the Secretary of State agree to make the teaching of emergency life support skills compulsory, so that every school leaver is a life-saver?
Nicky Morgan
Like the hon. Lady, I appreciate the importance of teaching life-saving skills. There have been calls for it to be part of the personal, social, health and economic education curriculum, and we are considering that. The difficulty is that the more I mandate, the less time is available for teaching, and the more burdened teachers become. However, I agree that this is a very important issue.
Philip Davies (Shipley) (Con)
As the chairman of the all-party parliamentary group for state boarding schools, I know that the Secretary of State is very supportive of such schools. Will she meet me, and my hon. Friend the Member for Stourbridge (Margot James)—who has been doing a great deal of work in this regard—as a matter of urgency, so that we can discuss the ridiculous interpretation of the regulations by the Office of the Schools Adjudicator in relation to out-boarding?
Nicky Morgan
I would be delighted to meet my hon. Friend and the hon. Member for Stourbridge. We are aware that a small number of state-funded boarding schools and academies are charging for day places, and in some schools the admission arrangements are unclear. We are looking into the matter, and I am also aware of the adjudicator’s investigation.
Barbara Keeley (Worsley and Eccles South) (Lab)
May I add my voice to the call for all young carers to be included in the pupil premium? We have an excellent young carers’ group in Salford, but that cannot make up for the fact that the support is not there. Young carers are more vulnerable, and they do 40% less well academically than other pupils. Will the Minister commit himself to including all young carers?
Mr Timpson
I hear the hon. Lady’s call—a call I have now heard from both sides of the House. She may like to take into account the fact that about 60% of young carers will already benefit from the pupil premium through their free school meal allocation, but of course we need to make sure that all young carers get the support they need. As I have already indicated, a meeting is taking place with the relevant Minister to discuss this matter further.
Mr David Ward (Bradford East) (LD)
Will the Minister meet me to hear about the fantastic work and the effort being made in our Bradford schools to deal with the very large numbers of children of new-arrival EU migrant families, and also to hear about the incredible strain that that is putting on the provision of places and raising of attainment in our schools?
Nicky Morgan
I thank the hon. Gentleman for his question. I am always happy to meet hon. Members about their schools. If I cannot do it, one of the Ministers certainly will meet him to hear about those issues.
Ms Karen Buck (Westminster North) (Lab)
Hon. Members and local authorities across the country have expressed concern about the shortage of school places. Why, then, does the Minister think that Westminster city council had 235 empty primary school places this summer and has suffered a 16% drop in applications for primary schools since 2011?
Mr David Burrowes (Enfield, Southgate) (Con)
There are reports that Ofsted is demanding that a Christian school invites an imam to take collective worship and that Jewish schoolchildren have been asked intrusive questions about their views on sexuality. Does that really promote British values?
Nicky Morgan
I thank my hon. Friend. That is clearly a matter for Ofsted and it is investigating exactly what was said to the school. I think we would all agree that the fundamental British values of respect, democracy and tolerance are shared by all schools and all people of all faiths.
European Council
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Prime Minister (Mr David Cameron)
Yesterday British forces concluded their combat mission in Afghanistan. I know the thoughts of the whole House will be with the friends and families of every one of the 453 British soldiers who lost their lives in this long campaign. We will never forget their sacrifice for us.
When al-Qaeda attacked the twin towers in 2001, it planned that attack from Afghanistan, operating freely under the Taliban regime. Our incredible servicemen and women have driven al-Qaeda out, and they have built up and trained the Afghan forces—none of which even existed in 2001—so that the Afghans can take control of their own security. I said when I became Prime Minister that I would bring our combat troops home. Today they are coming home, and we should be incredibly proud of all that they have done to keep our country safe.
With permission, Mr Speaker, I would like to make a statement on last week’s European Council. Before turning to the issue of our contributions to the EU, let me first update the House on three significant agreements where the UK played an important role: on Ebola, on climate change and on the situation in Ukraine.
First, on Ebola, the world is facing one of the worst public health emergencies in a generation. Playing our part in halting the rise of this terrible disease is not just meeting our moral obligations, but the single most effective way of preventing Ebola from infecting people in the United Kingdom. Britain has been making a major contribution to the international response, pledging more than £205 million and sending troops and health workers to west Africa, but Britain must also use its influence to get other countries to step up their contributions. Before the Council, I wrote to all my fellow leaders, urging that we significantly step up our collective response. At the meeting member states agreed to my proposal to more than double the EU effort by pledging over €1 billion in assistance. The Council also agreed to increase the deployment of medical and support staff in the region, and for member states to guarantee proper care for our courageous health workers.
Secondly, it is vital that Europe plays its part if we are to secure a global deal on climate change in Paris next year. One problem we have faced in the past is that instead of just setting a binding target on carbon emissions, the EU has set binding national targets on things like renewables and energy efficiency. These diktats on how each country should reach its commitments can pile up costs on our industries, consumers and families who do not want to pay more on their energy bills than they have to, and they create an unnecessary trade-off between cutting carbon emissions and promoting economic growth.
At this Council, we have chosen a different path. We have reached a landmark commitment to deliver at least 40% reductions in greenhouse gases by 2030, but we have rejected any new binding national targets for renewables or energy efficiency, giving us full flexibility over how we reduce our carbon, allowing us to do so at the lowest possible cost for businesses and consumers. This is another example of where British leadership has helped the EU to step up and meet its international obligations, while at the same time protecting our national interest by keeping energy bills down for businesses and Britain’s hard-working families.
The Council also discussed the situation in Ukraine and relations with Russia. We welcomed the Minsk agreement between Kiev, Moscow and the separatists, but the Council was also clear that much more must be done to implement that agreement before the EU should consider lifting any of the sanctions put in place in response to the conflict and in response to Russia’s actions. The Council welcomed the parliamentary elections that took place in Ukraine yesterday, and it made it clear it would not recognise the outcome of any elections organised by the separatists outside the framework of Ukrainian law.
Let me turn to the issue over the UK’s contributions to the EU. I want to be clear with the House how the demand for the UK to repay money has come about, and why the scale and timing of this demand is unacceptable. Mr Speaker, in an organisation like the EU, if your economy grows a little faster or a little slower, then there can be adjustments every year to the amount that you pay. In some years, the UK adjustment has been negative—as it was in 2008, 2009, 2011 and 2012—and in some years we contribute a little bit more. This happens every year. And when the UK is growing at 3% a year and many European economies are growing much more slowly, it would not be surprising to find Britain being asked to pay a little bit more this year. But what has never happened is for €2 billion to be demanded. This represents around 20% of our net contribution to the EU last year.
Member states collectively are being asked to pay almost four times the highest gross figure requested in recent years. It is simply not acceptable for the EU to make these kinds of demands, and to do so through a fast-tracked process lasting barely a month. €2 billion is bigger than many countries’ entire gross contributions; it cannot just be nodded through by the EU bureaucracy as some kind of technical adjustment. It is British taxpayers’ money, and it is not small change, but it is a vast sum. So this has to be examined in detail and discussed properly. That is why I interrupted the Council meeting on Friday to seek an urgent resolution to this issue. I was supported by the Prime Ministers of Italy, Holland, Malta, Greece and others, and the Council agreed that there would be an urgent discussion with Finance Ministers to resolve the issue going forwards.
The issue is not just the scale of the money being demanded, but the timetable. The Commission admits that it does not actually need this—indeed, the President of the Commission was not even aware of it on Thursday evening—so there is no pressing need for the money to be paid. There are fundamental questions over the fairness of these payments. For example, the proposal is for funds to be taken from the UK to correct historic contributions to the EU budget dating back to 2002, and to be redistributed based on the current share of gross national income to countries which only joined the EU in 2004 and 2007. But it is not just that Britain would lose out. It is also perverse that a country like Greece—at the heart of the crisis in the eurozone—is being asked to find money to pay back to countries like Germany. The revised gross national income statistics on which these adjustments are based are also not yet finalised. The numbers are a “provisional estimate” and the EU-wide process to quality-assure the figures will not conclude until well into 2015.
Britain will not be paying €2 billion to anyone on 1 December, and we reject this scale of payment. We will be challenging this in every way possible. We want to check how the statistics were arrived at and the methodology that was used; we will crawl through this in exhaustive detail.
The events at last week’s Council will not—to use some British understatement—have enhanced the reputation of the European Union in the United Kingdom. As the Italian Prime Minister put it, even the EU’s founding fathers would turn to Euroscepticism when faced with some of the things that you have seen here. The European Union has to change. It has to regain trust, and that starts by understanding and respecting the fact that these payments and adjustments are about the hard-earned taxes of its citizens. This is just one of the many challenges in our long campaign to reform the European Union, but it is vital we stick to the task. We have already cut the EU budget, got Britain out of the bail-out schemes, vetoed a treaty that was not in our national interest, made vital progress on cutting red tape and completing the single market, and we are leading the push for what will be the biggest bilateral trade deal in history, between the EU and the US.
None of this is easy. Progress is hard-won. It requires perseverance and hard work. We will carry on defending our national interest and fighting with all we have to reform the EU over the coming years. At the end of 2017, it will not be the Brussels bureaucracy or the politicians of any party who will decide whether we remain in the EU. If I am Prime Minister, it will be the British people who make that decision through an in/out referendum. Others who aspire to this office and who refuse to give the British people their say, should explain themselves to the House and the country, and I commend this statement to the House.
Edward Miliband (Doncaster North) (Lab)
I thank the Prime Minister for his statement. Let me start by echoing his words about the contribution of our armed forces in Afghanistan. All our thanks are with those who have served our country, and all our thoughts are with the families of those who lost their lives. We will continue to support the Afghan Government through political and humanitarian aid, as well as our training mission. Every one of our troops who served in Afghanistan can take pride in their mission and what they achieved, and the House and the whole country are proud of them.
I also echo the Prime Minister’s words about Ukraine and support for its Government. On climate change, I welcome the climate and energy package, paving the way for the global UN summit in Paris next year. What action will he be taking in the coming months to encourage other countries, especially China and the United States, to bring forward ambitious targets and policies in advance of that conference?
Turning to the Ebola crisis in west Africa, the whole world has been horrified by the devastating scenes. Our hearts go out to the communities that confront the threat on a daily basis. I welcome the Government’s efforts to help affected countries. We are proud of the work of our armed forces, our health professionals and our aid community. What effort was made at the summit to encourage other countries to do what Britain has done by sending health workers and personnel to the affected region?
Let me turn to the EU budget change. The Commission’s handling of the matter has been cack-handed and unacceptable, and it has caused consternation in several other states. The urgent priority now is for the Government to pursue all diplomatic means to get the best deal for Britain, but the Prime Minister must also explain whether the Government carried out due diligence in their handling of the matter. He says that he was made aware of the matter only on 23 October, while the Chancellor said that he had “no warning”, but that is simply not the case. The budget changes arise due to changed estimates of gross national income—GNI. The scale of the changes should not have taken anyone in government by surprise because extensive coverage was given to significant changes to our national income arising from the inclusion of the shadow economy, which is worth more than £50 billion.
Will the Prime Minister confirm that the Office for National Statistics agreed to, and has been part of, these substantial and planned changes throughout Europe for at least two years—since 2012? Will he further confirm that the ONS stated publicly in May 2014 that the changes would impact our budget contribution? It said in a press release that GNI
“is used in the calculation of a Member State’s contribution to the EU budget.”
The Treasury was clearly aware of the situation, because I have here a letter that the then Economic Secretary, the right hon. Member for Loughborough (Nicky Morgan), wrote to a parliamentary Committee on Europe not seven days ago, but seven months ago—on 11 March 2014. She said in that very interesting letter that changes to GNI would take place in time for 2014 and wrote about the “high priority” that the Government were giving to addressing them. The changes had been planned for a number of years, the ONS publicly declared that they would have an impact on our budget contribution, and Ministers knew about them and claimed that they were a “high priority”, so when the Prime Minister replies, will he really maintain that there was “no warning” and that Treasury Ministers knew nothing about the changes? Surely the Treasury must have made its own assessment of the impact on the EU budget that would follow. As a matter of basic competence, if it did not do that, why not? This matters because the Prime Minister could have done much earlier what he did at the last minute on Friday: called for a meeting of Finance Ministers and entered negotiations about the demand.
Is not the truth that this is a familiar pattern with this Prime Minister: months and months when he does not do the work, followed by last-minute pyrotechnics when it goes wrong? No one will be fooled by it. He spends all his time negotiating with his party about Europe, when what he should be doing is the basic work of getting a better deal for Britain. Once again he shows that, for all his bluster, he has been asleep at the wheel and the British people are paying the price.
The Prime Minister
Throughout all that, the right hon. Gentleman would not answer one simple question: would Labour pay the bill? That is the problem: there is absolutely no leadership available on the Opposition Front Bench. [Interruption.] Let me answer all his questions—[Interruption.]
Mr Speaker
Order. Mr Gwynne¸ I recognise your voice very distinctly, and simply erecting a piece of paper in front of your mouth does not hide the fact that it is you. Calm yourself, man. Let us hear from the Prime Minister.
The Prime Minister
It is very noisy today, Mr Speaker—a bit like a meeting of the Scottish Labour party.
Let me answer all the right hon. Gentleman’s questions. On climate change, he asked specifically what we would now do to push China and America to make bigger concessions. I think that the European Union now has the opportunity to give a real lead, because we have set out the major steps that we are prepared to take, with a reduction of at least 40% in carbon emissions.
On Ebola, the right hon. Gentleman is absolutely right that we need not only money from other European countries—we got that at the weekend—but the commitment that they will help their health staff to travel to west Africa. There is now a clearing house for medevac arrangements, negotiated by my right hon. Friend the Foreign Secretary, which I think will make a real difference.
On Afghanistan, I welcome the support that the right hon. Gentleman has given. I think that it is good that there is cross-party support for the backing that the Afghan Government should know they will get from Britain in terms of aid and paying for the Afghan national security forces.
On the budget, let me say this to the right hon. Gentleman: the point is that we cannot know how much we are liable to pay until the European Commission produces the figures for every country in Europe. That information was not available weeks ago or months ago; it was discussed at a meeting in Brussels only on Friday. That is why Labour left the country in such a mess: they do not know the difference between gross contributions and net contributions. That is the problem.
Basically, the right hon. Gentleman’s case comes down to two complaints. The first is that somehow we are giving too much money to Brussels. That is from a party that gave away the British rebate and paid an extra £2 billion a year as a matter of official Government policy. The second complaint—we heard it from the shadow Chancellor—is that somehow under this Government the Chancellor and the Prime Minister do not properly communicate with each other. I have to say that we see in front of us the authors of the most dysfunctional Government in British history. The Prime Minister in that Government did not even know what was in the Budget the day before it was brought to the House of Commons. The idea that they should lecture us on how a Government communicate must be one of the most ridiculous ever brought before the House. With the shambles in the Scottish Labour party, we learnt one thing this weekend: even his own party does not see him as a leader.
Sir Richard Ottaway (Croydon South) (Con)
People need a reason to believe that the EU is good for them, and late demands for €2 billion with six weeks to pay do not help, especially when the calculations include earnings from prostitution and drugs, none of which ends up in the Treasury. Is it any wonder that voters have their doubts about the merits of membership of the European Union?
The Prime Minister
My right hon. Friend makes an important point. For those of us who want to argue that the European Union is capable of reform, this was not a good development. It is important to understand that these are provisional estimates and that EUROSTAT is still travelling to every country to work out what the numbers actually are. There are important challenges to be made. But clearly the idea of a bill being presented in that way, with so little time to pay, is not acceptable.
Mr Jack Straw (Blackburn) (Lab)
On migration from the European Union, may I ask the Prime Minister to name five towns which, in his view, have been swamped by it?
The Prime Minister
I would say to the right hon. Gentleman, for whom I have a huge amount of respect, that, to be fair to the Secretary of State for Defence, he corrected himself this morning, and I think he was absolutely right. It is right for politicians to raise concerns about immigration, but we should always choose our language carefully. He said this morning that he wished he had chosen his language in a different way, and I agree with that.
Mr Kenneth Clarke (Rushcliffe) (Con)
May I sympathise with the Prime Minister on being taken by surprise on a subject that everybody in the Foreign Office and the Treasury must have known was coming along for the past five months, because British officials carried out the huge revision of the British GNP? I congratulate him on now choosing the sensible points, which are how to challenge the methodology and get the size of this reviewed, and how to get rid of the nonsense that it is all to be paid in a lump sum in a fortnight. Many other countries will join him in trying to sort that out.
Did the Prime Minister raise the European arrest warrant and the 34 other desirable directives which, I trust, we are going to opt into? Does he agree with my right hon. Friend the Home Secretary that these opt-ins are absolutely essential for the sake of our policing and criminal justice system if we are to make sure that it is up to dealing with international crime?
The Prime Minister
Let me say to my right hon. and learned Friend that of course these changes happen every year—they are expected every year and discussed every year—but what has never happened before is a change on this scale, and no one was expecting that. As for the opt-out or opt-in on justice and human rights, it is very important to recognise that we have already achieved the biggest transfer of power from Brussels back to Britain by opting out of 100 different pieces of legislation. We now need to make sure that we keep our country safe.
Caroline Lucas (Brighton, Pavilion) (Green)
A binding energy savings goal would have guaranteed €2.5 trillion in savings to consumers in the UK and across the EU, yet the UK opposed it. How can the Prime Minister pretend that this has anything to do with leadership when experts are claiming that it is a go-slow on efficiency? Far from being good for industry, it sends a strong signal to energy efficiency businesses to start to divest from the UK and from other European countries?
The Prime Minister
Respectfully, I disagree with the hon. Lady. We all want improvements in energy efficiency, and we are seeing them here in the United Kingdom. Having a proper market for carbon and a proper price for carbon helps that to happen. But it is not necessary to have additional binding targets for nation states as well as the target for reducing carbon emissions, because that skews the market and we end up spending more money than is otherwise necessary to get the outcome that both she and I want, which is to tackle climate change.
Sir William Cash (Stone) (Con)
We continue to applaud the Prime Minister for his statement at Bloomberg that our national Parliament is the root of our democracy and for his demand for radical change in the European Union. As regards the outrageous behaviour over the £1.7 billion, but also the question of immigration, given its connection with the charter of rights and the need for treaty change, will he now agree that we should pass legislation in this House, as he himself supported on the Deregulation Bill when he was Leader of the Opposition, notwithstanding the European Communities Act 1972, so that we will then regain power over legislation in this House and over the EU?
The Prime Minister
I have followed my hon. Friend’s arguments about the “notwithstanding” clause very closely over many years. I believe that the right approach is to have a renegotiation in order to deliver the things where we want to see change. We want change in terms of getting out of ever closer union, safeguards for the single market, and action on immigration, so the right approach is to conduct that renegotiation.
Keith Vaz (Leicester East) (Lab)
May I welcome what the Prime Minister has said about the Defence Secretary’s statement, because it did cause a great deal of offence? At the summit, did the Prime Minister have a chance to discuss with President Hollande the President’s suggestion of a reception centre in Calais, which is opposed by the mayor of Calais, who will be giving evidence to the Home Affairs Committee tomorrow? Does he agree that the issue is also illegal migration, and that countries such as Greece and Italy must do their bit to stop people entering illegally in that area?
The Prime Minister
I look forward to the mayor of Calais appearing in front of the right hon. Gentleman’s Select Committee. It is very important that they are having those discussions. We are working with the French at every level to make sure we do not go back to the bad old days of Sangatte, but instead improve security around Calais. That is why the NATO fence is being erected even as we speak and why those conversations continue. I look forward to seeing how the Committee gets on tomorrow.
Sir Menzies Campbell (North East Fife) (LD)
May I endorse my right hon. Friend’s remarks about Afghanistan and those who gave their lives there? On this occasion, however, could we spare a thought for those who have survived, but who none the less have been subject to grievous injury?
Has my right hon. Friend noticed that the most recent Ipsos MORI poll shows that support for the United Kingdom staying in Europe has risen to a 23-year high—56% for and 36% against? Does he believe that that will be of some comfort to him not only in forging alliances in Europe in order to bring about the reform we all think is appropriate, but in helping him combat UKIP and anyone else who wants to bring Britain out unilaterally?
The Prime Minister
My right hon. and learned Friend is absolutely right in what he says about the injured who have returned from Afghanistan. Members on both sides of the House now need to make a commitment that Governments for many years to come will look after these people and make sure that we continue to funnel the LIBOR fines into defence and veterans’ charities, as we have been doing.
On the issue of European reform, the most popular and the right approach is not to accept the question of in/out today on the current terms, but to negotiate better terms and then give the British people the choice. That is the right approach.
Mr Ben Bradshaw (Exeter) (Lab)
Following on from the Prime Minister’s answer to the right hon. and learned Member for Rushcliffe (Mr Clarke), will he confirm that he will give his own Home Secretary, the police and the security services the tools they need to fight international crime and terrorism by making sure we have a vote in this place on the European arrest warrant before the end of November?
The Prime Minister
We have not changed our plans on this in any regard at all: the plans we have set out are still the plans to have that vote. What matters most of all is that we give the police and the security services the powers they need to keep our country safe.
Mr Andrew Lansley (South Cambridgeshire) (Con)
Does my right hon. Friend believe that the provisions for the UK rebate on the EU budget contribution apply to any additional demand made by the Commission? I think that they should and, therefore, that whatever the final calculation of any demand may be, up to two thirds of it should be rebated back to the United Kingdom.
The Prime Minister
My right hon. Friend is absolutely right. One of the important questions that needs to be asked and properly answered about this proposed sum of money, which, as I have said, is still an estimate, is how much of it is applicable for the rebate. Obviously, that would make a potentially significant difference to the amount.
Kate Hoey (Vauxhall) (Lab)
The public do not really care about who knew what when; what they really care about is the bottom line of £1.7 billion being paid back from our taxes. Will the Prime Minister do what any Government should do: say what they mean, mean what they say and then do it? In other words, do not pay, because that is exactly what this country would like to see happen.
The Prime Minister
As ever, the hon. Lady has hit the nail on the head: it is not the who knew what when, but the bottom line that matters. I have been very clear: we are not paying €2 billion on 1 December—[Interruption.] Let me finish. We are not paying a sum anything like that. That is very clear. As I have said, when the economy grows, we can pay a bit more, but when the economy shrinks, as it frequently did under Labour, we pay a bit less, but what is not acceptable is a €2 billion bill and we will not be paying it.
Mr Bernard Jenkin (Harwich and North Essex) (Con)
May I remind my right hon. Friend that our net contribution to the European Union is already larger than our fastest growing expenditure programme on overseas aid and we are paying that money to an organisation that has not had its accounts signed off for 19 years? Therefore, may I commend him for taking a robust stand on this matter, and will he undertake to make sure that Parliament gets a vote before we pay another penny?
The Prime Minister
My hon. Friend is absolutely right: we should be seeking value for money for every penny that we give. Of course, we should not forget that every year we are effectively paying about £2 billion more because Labour gave away part of the rebate. That is what happens. Labour Front Benchers make plenty of noise now, but when they were sitting on the Government Benches they betrayed Britain by giving away the money. Let us remember: why did they give away the money? They gave away the money because there was a promise of reform of the common agricultural policy, and they got absolutely nothing.
Mr Dennis Skinner (Bolsover) (Lab)
Are we seriously being asked to believe that this Government have got a Chancellor who failed to understand the calculation of drug use in the compilation of these figures, with the result that everybody in Britain is getting screwed?
The Prime Minister
Oh, dear. I will tell the hon. Gentleman what we have got: we have a Chancellor who has delivered the fastest rate of growth of any G7 country, and we have a Chancellor who has delivered the biggest fall in unemployment since records began. I would have thought that the Labour party would want to know about more people getting into work.
Sir Edward Garnier (Harborough) (Con)
Does the Prime Minister agree that this country has a proud record of assisting countries in difficulties? What this Government have sent to west Africa to help with Ebola is just the latest example of that. Will he accept that such programmes can be delivered only by individual people—men and women from this country—going out there to help, and placing themselves in great danger? Young men such as Dr Oliver Johnson, who is only 28 years old, along with many other colleagues who have trained and are working in this country, have gone there. We thank the Government for sending the money, but will the Prime Minister remember them?
The Prime Minister
My hon. and learned Friend makes an incredibly important point. About 650 British health workers have volunteered to go to Sierra Leone to help in this way. They are people of huge courage, dedication and public service. What we must do is make sure that they have the logistical support, which is why we are sending over 750 troops and a warship equipped with helicopters. We will also establish a training centre to train over 850 local health workers every single week; that will soon be up and running. Crucially, if we want health workers to go to west Africa, we must have the medical evacuation capabilities to bring them home in the event of their becoming ill. We are putting that in place, and I believe that we are leading Europe on that issue.
Mr Nigel Dodds (Belfast North) (DUP)
May I join the Prime Minister in his remarks about the service and sacrifice of our servicemen and women in Afghanistan? That service and sacrifice must never be forgotten. May I commend him on what he is doing to try to get other countries to step up to the mark on contributions towards fighting Ebola? On the terms of the EU budget, does he accept—to coin a phrase often understood in Ulster—that sometimes it is right to say no and to mean it?
The Prime Minister
Yes. I have said no in Europe: I said no to a rise in the EU budget; I said no to an entire treaty; I said no to the European bail-out funds. People in Europe know that when I say no, I mean it.
Mr Peter Bone (Wellingborough) (Con)
Over the weekend, my joint listening campaign with Tom Pursglove, the excellent Conservative candidate for Corby, was out knocking on doors. One particular person who spoke to Tom said, “I’ve been a Labour voter all my life, but Dave has said no to paying £1.7 billion, Dave has said no to unrestricted immigration from the EU and he’s going to give us a referendum, so for the first time ever I’m going to vote Tory.” Does my right hon. Friend think that the rest of the country will follow that chap?
The Prime Minister
I am very grateful to my hon. Friend for his very hard work in Wellingborough and next door in Corby. People can see that under this Government and my prime ministership—when it comes to the European treaty, when it comes to the bail-out fund and when it comes to the budget—we have got a good deal for Britain.
Graham Stringer (Blackley and Broughton) (Lab)
If after the due diligence the eventual payment that this country is asked to make is outside the norms, will the Prime Minister give this House a vote?
The Prime Minister
I am not accepting that we should pay anything like what has been asked. I think it is very important that we make that clear. I am always happy to have votes in this House. They can happen through Opposition days, Back-Bench days or, indeed, Government days.
Sir Malcolm Bruce (Gordon) (LD)
The Prime Minister said at the start of his statement that he went asking for €1 billion to tackle Ebola and he got it, and that he went asking for a climate change agreement that had been piloted by the Secretary of State for Energy and Climate Change with his green growth group and he got it. Does that not demonstrate that leadership from the UK can deliver results in Europe, and that we should stay in?
The Prime Minister
I very much agree with my right hon. Friend that, on climate change and Ebola, we demonstrated that Britain can lead in Europe and get results. However, as I explained at the press conference after the European Council, those successes were rather marred by the disappointment and, frankly, the anger over the way in which the bill was presented.
Ms Gisela Stuart (Birmingham, Edgbaston) (Lab)
The Prime Minister has always made it clear that his support for EU membership in 2017 will depend on substantial reforms, which he will have to negotiate. To do that, he will need allies. He told the House that he had the support of the Prime Ministers of Italy, Holland, Malta, Greece and other countries on the rebate. However, the Dutch Finance Minister has said that his country will pay, the Irish have said that they will pay and the Maltese have said that they will pay. If that is the kind of support the Prime Minister gets from his friends, how does he think he will achieve anything for 2017?
The Prime Minister
The hon. Lady is not reflecting accurately what those countries have said. They are deeply unhappy with the bills with which they have been presented. They want the estimates to be re-examined and are very worried about the payments that they might have to make.
Alistair Burt (North East Bedfordshire) (Con)
May I, too, take my right hon. Friend back to the beginning of his statement? Nearly four years ago, I attended the funeral of Linda Norgrove, a young woman from the Isle of Lewis who gave her life supporting widows and orphans in Afghanistan. As we rightly remember the contribution of our forces over the past 13 years, can we also remember those in the NGO community, some of whom lost their lives defending the people of Afghanistan and a number of whom will stay on to keep helping the people of Afghanistan and to fulfil this nation’s commitments?
The Prime Minister
My right hon. Friend is absolutely right to raise the issue of aid workers, who have put so much into rebuilding Afghanistan. I will never forget meeting Linda Norgrove’s brave parents, who were desperately sad at the loss of their child. She put a great deal into Afghanistan and came very close to being rescued and brought home. I commend my right hon. Friend for all the work that he did on such consular cases as a Foreign Office Minister.
Mr Mike Weir (Angus) (SNP)
The Prime Minister said in his statement that he would check the statistics and the methodology, and “crawl through this in exhaustive detail”. However, it is clear that the Treasury knew about the matter way back in May. Will he confirm that the Government let the rules relating to the own resources package, which covers this area, go through the European Council on 26 May “without discussion”, to quote the official press release? Why did he not go into these matters at that time? Were the Government asleep at the wheel? Did they hope that no one would notice?
The Prime Minister
The hon. Gentleman is simply wrong. It was not until the meeting in Brussels on Friday night that the scale of the payment was clear. Until we know what every country is required to pay, we cannot know what we are meant to pay. Those are the facts, even if they might be inconvenient for the story that he wants to put across.
Mrs Anne Main (St Albans) (Con)
My constituents would rather see the £1.7 billion spent on them and their country than on some EU bean counter. Did the Prime Minister manage to get any detail on how the shadow economy, which we are apparently doing so well out of, was calculated? Are there any facts and figures to support that?
The Prime Minister
Complicated calculations are carried out by the Office for National Statistics in the United Kingdom, by EUROSTAT throughout Europe and by the independent statistics organisations of every country. That is why the figures are estimates and why they have to be checked so carefully.
Mr Frank Roy (Motherwell and Wishaw) (Lab)
Did the Prime Minister raise with his European counterparts the need for a vibrant steel industry in the United Kingdom, and the need to ensure that companies in the United Kingdom are not threatened by asset strippers who are based in Europe?
The Prime Minister
I am grateful to the hon. Gentleman for asking that question because one reason for fighting for a climate change deal that focused on carbon emission reductions, rather than on other targets, was so that we could reduce carbon at the minimum cost not only to our businesses, but to households through the bills that they pay. As he knows, we are helping steel producers and other high energy users with a specific scheme that has been drawn up by the Department for Business, Innovation and Skills.
Sir Edward Leigh (Gainsborough) (Con)
Has the problem with such rows over the past 30 years not been that British Prime Ministers have been ambushed and have protested loudly, there have been useful headlines in the Daily Mail and The Sun, and then two months later, there have been shoddy compromises, usually on the basis that there is no alternative under the treaties? If there really is no alternative under the treaties, is not the obvious conclusion that the British people might be tempted to say that we should leave the European Union?
The Prime Minister
I am not quite as gloomy as my hon. Friend, and I think there have been occasions such as when we got out of the bail-out schemes, when we cut the European budget, and when we vetoed a treaty, where Britain taking a very firm stance has sent Europe in a different direction.
Mike Gapes (Ilford South) (Lab/Co-op)
Will the Prime Minister take this opportunity to recognise the important contribution to the European Union agreement of this country’s Climate Change Act 2008, which was introduced by the Leader of the Opposition and supported subsequently by this Government? Will he also take this opportunity to tell his Back Benchers that we would not have got the European Union agreement covering 28 countries if we had continued only to have national policies, and that therefore our membership of the EU is vital for our continent’s future?
The Prime Minister
I have always supported our Climate Change Act in Britain, and when I was Leader of the Opposition, I pressed Tony Blair—who then stood at this Dispatch Box—to introduce such climate change legislation. This deal ensures that those countries that do not have climate change legislation now have to live up to the expectations we have set for ourselves. Now what we need is for Europe to take a leading role in terms of China and America, as has been pointed out.
Mr David Nuttall (Bury North) (Con)
Does the Prime Minister agree that the latest £2 billion bill from the European Union provides a good opportunity to remind the British people just how much it costs each year for this country to belong to the European Union? I reckon it is about £44 billion net in this Parliament alone. That cost is just one reason why so many millions of people want to vote to leave the European Union.
The Prime Minister
Of course, the only way that people will have that vote is by having a Conservative Government after the next election, when they will get the choice. The other point I would make is that the bill is lower because we have cut the EU budget, and taken that step that will constrain EU spending all the way out to 2020. The real debate that then has to be held is about whether the money we are putting into the European Union, and what we get out of our membership, makes it worth it. My view is that if we can reform the European Union there will be a strong case for staying in. I say that simply because I put one simple test on these things: what will make Britain stronger and more influential in the world? What will enable us to act on the things that we care about? That is the test that we should put and argue about.
Michael Connarty (Linlithgow and East Falkirk) (Lab)
The Prime Minister and the Government told the European Scrutiny Committee that they were going to have a blocking minority to stop the port services regulation by which the European Union would take over regulatory services in all the ports. That is opposed by every employer association around the ports, and by all employment organisations and trade unions. The Prime Minister failed to get that blocking minority. Is that not an example of what is happening? He does not have the confidence of other people in Europe to stand up to the European Union.
The Prime Minister
That is simply not true. What we have done in case after case is build alliances in order to get the outcomes that we need within the single market. Of course, that has been made more difficult by the fact that the Government he supported gave away veto after veto after veto, but we are effective in building minorities and getting what we need.
Mrs Cheryl Gillan (Chesham and Amersham) (Con)
The Prime Minister will know that the President, Jean-Claude Juncker, has a €300 billion investment plan that European officials are now openly saying is the start of fiscal union. Will the Prime Minister assure me and British taxpayers that the UK will never become part of an EU fiscal union while he is our Prime Minister?
The Prime Minister
I can certainly give my right hon. Friend that guarantee. In my view, the eurozone will do more things together. That is precisely why we need the treaty change, to give Britain a better place in a European Union where some members will be integrating faster. As for the €300 billion package proposed by Jean-Claude Juncker, it is not very clear at the moment how much of that is public, how much is private, how much is new, and how much will be generated by new money into the European Investment Bank. We will seek further answers on that in December.
Jeremy Corbyn (Islington North) (Lab)
Around the table in Brussels, did any Minister bring up in a humanitarian way the crisis of hundreds of people dying in the Mediterranean as refugees from war, famine and environmental disaster? European policies as a whole and western policies in part have contributed to this disaster. Was there any discussion of it?
The Prime Minister
We did not have a discussion at this Council on the migration pressures in the European Union, but we have done so before when I have made the point that some of the action taken in the Mediterranean has almost encouraged people to get on to completely unsafe craft and head off to sea. We need to ensure that we tackle all those problems, but our aid budget does a huge amount to try to help people stay in their countries—dealing with the sources of conflict and poverty—rather than leave and seek a new life in Europe.
Paul Burstow (Sutton and Cheam) (LD)
Given the Government’s success in securing the EU’s 2030 carbon reduction target, will the Prime Minister say how we will build on the momentum of the agreement, which demonstrates that the world’s largest trading bloc is committed to those reductions, to get China, the US and others to sign up?
The Prime Minister
We have an opportunity to use the action Europe has taken—the 40% reductions by 2030—to argue that America and China need to take their steps to play into the Paris talks that will take place late in 2015. It is obviously difficult, because the EU cannot exactly have an agreement and hold back some of its eventual offer, but once again we have shown that we, some of the most advanced countries in the world, are prepared to put our own house in order.
Chris Bryant (Rhondda) (Lab)
I presume the Prime Minister is in favour of Britain remaining in the European arrest warrant, and that he agrees with the Home Secretary. A nod will suffice.
Chris Bryant
I do not want an answer yet—I have not finished. Presuming I am right and that the Prime Minister supports Britain remaining in the European arrest warrant, and presuming that many of his Back Benchers do not support him, I have a pleasant surprise for him: he should table the measure next week before the Rochester and Strood by-election, and we will vote it through for him.
The Prime Minister
I am not sure there was a question in the end. Do I just need to do the nod, or what would the hon. Gentleman like?
Jacob Rees-Mogg (North East Somerset) (Con)
The Prime Minister has saved the European Union from the crime of living off immoral earnings. That has made him enormously popular. Will he follow up his popularity by refusing the European arrest warrant, and most importantly by telling the Home Office that it is not befitting a great Department of State to give briefings that are not entirely accurate factually?
The Prime Minister
We need to have a proper discussion about how we keep the country safe given all the risks we face and given that we have secured a massive act of repatriating powers from Brussels to Britain in the huge amount of opt-outs in justice and home affairs, which I am sure he supports. My point on the European arrest warrant is that we have made changes to it, so we can now refuse arrest warrants in minor cases. British judges are able to consider whether extradition is proportionate and can block any arrest warrant where the incident does not amount to a crime in UK law. Those things have changed since the arrest warrant was first put before the House.
Kelvin Hopkins (Luton North) (Lab)
As has been long predicted, the eurozone is proving to be an economic disaster, dragging down both the European economy and the world economy. It now appears that 25 eurozone banks are on the brink of failure, and the long-term future of the euro is in serious doubt. Is the Prime Minister advising his colleagues—his fellow Prime Ministers in Europe—of the advantages of a national currency?
The Prime Minister
I think my colleagues in Europe well know my views about the euro. My point—I made it at the European Council—is that we need a combination of structural reforms to improve the performance of labour markets, the benefit of which we have seen here in the UK; setting and meeting targets on reducing budget deficits; and an active monetary policy, which has been hugely helpful here and in America. The steps we have seen in Europe are welcome but, frankly, I would like to see more.
Mark Pritchard (The Wrekin) (Con)
I congratulate the Prime Minister on standing up for Britain in Brussels. Did he hear Pierre Lellouche, the former Europe Minister for France, say on BBC Radio 4 yesterday that it was crazy for the European Commission to reward a failing socialist French Government for their economic failure while penalising the UK’s Conservative Government for their economic success?
The Prime Minister
My hon. Friend makes an important point. I was so surprised when I heard that statement that I got together a clear copy. Pierre Lellouche says that the unemployment rate in Britain
“has gone down to half what it is in France. The growth rate is four times what it is in France—and we go and punish the British? It’s madness.”
This is a huge outbreak of good, sound thinking across the channel.
Cathy Jamieson (Kilmarnock and Loudoun) (Lab/Co-op)
We have heard a great deal about what the Prime Minister will not pay in relation to the EU budget, so can he give us any indication of what he is prepared to pay? Will he confirm that the UK would face fines if anything was not paid by the appropriate date?
The Prime Minister
I was very clear in the statement that every year we have these adjustments, and they are normally modest adjustments, sometimes up a bit, sometimes down a bit. What is not acceptable is a bill for €2 billion with only a month to go.
Mr John Baron (Basildon and Billericay) (Con)
Has not the time now come to make it clear to the EU that Britain will not even consider any form of rebate of £1.7 billion until the EU gets its shambolic accounts properly audited and signed off? Otherwise, how can we have any faith in any of the figures produced by that organisation?
The Prime Minister
Obviously, I have great sympathy with my hon. Friend on the fact that the EU accounts are not signed off every year, and further work is necessary on that front. What we need is some urgent work to get to the bottom of what these figures are meant to say, how they were drawn up and whether any errors were involved. I have been very clear about not paying on 1 December—not paying anything like the number that has been named.
Kevin Brennan (Cardiff West) (Lab)
As the leader of our country and on a matter of such national importance, does the Prime Minister believe that he should have been informed about the amount of the contribution when other members of his Government were informed?
The Prime Minister
The fact that a memo was drawn up in the Treasury on Tuesday and I was told on Thursday would be instantaneous, compared with a new Labour gap, and compared with Budgets being prepared by the then Chancellor for months and the Prime Minister being told sometimes just a few hours before the Budget was delivered, even after it had gone to the printers. The hon. Gentleman does not have a leg to stand on.
Richard Drax (South Dorset) (Con)
Does my right hon. Friend agree that significant repatriation from the EU is highly unlikely? I and, it seems, most of the country feel that common sense needs to prevail. We should go back to a trade agreement, as we originally had, and drop this whole socialist nightmare that leads to massive bills, which he is now facing.
The Prime Minister
It is worth one last effort to try to renegotiate Britain’s place inside the EU, to give the British public a proper choice between a reformed membership of the EU or leaving. That is what people want. That is what I will deliver. I think it is possible to get a deal that would make it in Britain’s interests to stay. My hon. Friend may take a different view, but let us get the deal and then trust the people.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
The then Economic Secretary to the Treasury, now sitting next to the Prime Minister, sent a letter to Lord Boswell on 11 March this year noting the UK’s GNI reservations, the EUROSTAT verification visit to the UK in February and the fact that the Government “give high priority” to addressing these issues. If these issues were indeed a high priority, could it be that in the interim the Treasury dropped the ball, and could that be why Britain is in this situation today?
The Prime Minister
Very well read, but we have dealt with this issue already. It is only when the figures are available from all the European Union countries that it is possible to see what the net contribution for Britain will be. It is only at that point that that judgment can be made.
David Morris (Morecambe and Lunesdale) (Con)
I congratulate the Prime Minister on being the first Prime Minister since the great Margaret Thatcher to say no to Europe. Does my right hon. Friend agree with my constituents, who have just given me a survey to say that the only way to vote for an in/out referendum on Europe is to vote Conservative in 2017?
The Prime Minister
My hon. Friend is right. Whatever view people take about whether Britain should be in the European Union or out of the European Union, there is only one way to secure that referendum.
Clive Efford (Eltham) (Lab)
Given that the recalculation of GNI has been known about for two years, it is a bit rich for the Prime Minister to say that he wants to understand the detail of the methodology. Should he not have been engaging with that recalculation and investigating its exact implications on behalf of the British people?
The Prime Minister
As I have explained, these calculations take place every year, but not normally on the scale that has happened this year. It was only on the Friday before the European Council meeting that the figures were available.
Richard Harrington (Watford) (Con)
I commend the Prime Minister for his rejection of this ridiculous €2 billion surcharge. I assume that the success of his long-term economic plan will lead to a similar adjustment every year, so how can he ensure that that will not happen?
The Prime Minister
My hon. Friend makes a very good point. If an economy outperforms other economies, that can lead to an increase in contributions. We have obviously seen an out-performance of the UK economy, which means that it was likely—as I said in my statement—we would be asked to pay a little bit more, but not €2 billion more. That is the figure that is completely unacceptable—[Interruption.]
Mr Speaker
Order. Front Benchers on both sides are in a very excitable state. They should take their cue from the Leader of the House, who is sitting in statesmanlike fashion and from the hon. Member for Kingston upon Hull East (Karl Turner) who—uncharacteristically, I must testify—is not shrieking.
Geraint Davies (Swansea West) (Lab/Co-op)
May I wish you, Mr Speaker, and the Prime Minister many happy returns on the 100th anniversary today of Dylan Thomas’s birth in Swansea? Will the Prime Minister support the Bill I will present today to provide for greater scrutiny by this House and the European Parliament of international trade agreements, including the transatlantic trade and investment partnership, so that such issues are not decided by eurocrats and negotiators from the US, which may lead to multinationals suing the Government for passing laws that protect citizens and workers? Should we look at it, or should it just be the eurocrats?
The Prime Minister
Let me join the hon. Gentleman in paying tribute to Dylan Thomas and to Tom Hollander for his superb performance in the drama about the former’s life in America. The hon. Gentleman is right to say that we need to scrutinise TTIP properly, but we must do so on the basis of the truth rather than scare stories. I worry that a lot of scare stories are going around about health services, food safety or investor protection clauses, and perhaps his Bill and closer scrutiny can lay some of those to rest.
Philip Davies (Shipley) (Con)
We already hand over the best part of £20 billion a year to be part of an inward-facing, backward-looking protection racket, propping up inefficient European businesses and French farmers. The British public do not expect the Prime Minister to hand over a bit less money or to hand it over a bit later: they expect him to tell the European Union to stick the money where the sun does not shine. What is the worst that the European Union could do if we did that? Ask us to leave? In my dreams!
The Prime Minister
I do sometimes wish that my hon. Friend would tell us what he really thinks, instead of this shrinking violet approach. We do not necessarily agree on the future, but we do agree that there is only one way to give the British people that choice.
Helen Goodman (Bishop Auckland) (Lab)
We have learned that of the upward revisions to GDP £4 billion is attributable to illegal drugs and £5 billion to prostitution. Is that the great fruit of the Tories’ long-term economic plan?
The Prime Minister
If the hon. Lady looks at the figures, she will see that quite a big change came about because of the way in which charitable income and charities’ finances are calculated. As I have said, the figures are horrendously complicated, because some of them date back to 2002, and some are based on a fundamental reassessment of how these things should be measured. But we will get to the bottom of what the figures mean only when we look at what happens in every single EU country.
Chris Heaton-Harris (Daventry) (Con)
Be it in Leeds or Brussels, I am pleased to see that our Prime Minister is no push-over. Every facet of the EU budget—how it is calculated and how it is spent—is horrendously complicated, opaque and remarkably unsatisfactory. If the Prime Minister does not get what he wants by the diplomatic route, I suggest that the British people would be happy for our country to be infracted by the European Commission and behind him 100% in the court case.
The Prime Minister
I thank my hon. Friend for his support on the issue of the EU payments. May I also thank him for what he said about the incident in Leeds? It would be nice to put on the record for once the debt I owe to the close protection team who look after me and the very good job they do. I was in a meeting in Leeds speaking to a group of city leaders and other politicians. John Prescott was in the room as I gave the speech. As I left the room I thought the moment of maximum danger had probably passed, but clearly that was not the case. [Laughter.]
Paul Blomfield (Sheffield Central) (Lab)
The Prime Minister heralded the appointment of Lord Hill to a key economic portfolio in the Commission as evidence of his influence in Europe. Will he therefore explain to the House why the overwhelming majority of Conservative MEPs last week refused to support the nomination of Lord Hill and other commissioners, despite his attempts to persuade them otherwise?
The Prime Minister
First of all, let me agree with the first half of the hon. Gentleman’s question. It is excellent that Lord Hill has the crucial portfolio of financial stability and financial services, including much of banking union. This is exactly the sort of job that Britain should have in the European Commission to maximise our influence. That is very important. MEPs vote for a range of different reasons and I am sure some of them were bearing in mind other elements at the Commission, but I am clear that it is a great success for Britain that our commissioner has such an important job.
Mr Jonathan Djanogly (Huntingdon) (Con)
There has been significant speculation that the €2.1 billion surcharge is politically motivated in terms of timing if not amount. Does my right hon. Friend give that any credence? If so, does he think that legal redress could result?
The Prime Minister
My hon. Friend makes an important point to which I do not know the answer. Obviously, these numbers, which are estimates, were meant to be under intense discussion and scrutiny, and then have a proper announcement. Instead, they came out leaked to a newspaper on Thursday evening. I do not know who was behind that or what the intent was, but what one has to do is act on the information one has. As soon as I heard about it, I assembled the coalition of Italians, Dutch and others to make sure that this is properly looked at.
Nia Griffith (Llanelli) (Lab)
In spite of the Prime Minister’s protestations, Treasury Ministers have known about this budget contribution for months. Now that the Prime Minister has finally caught up and presumably been briefed, will he tell us what changes and concessions his Ministers have asked for?
The Prime Minister
The Whips’ handouts have been effective because lots of people have read them out, but I am afraid they are based on a fundamental misunderstanding. It was only at the meeting on Friday in Brussels that the numbers on net obligations became clear. That is the point. Until everybody’s calculations are known, what Britain would be asked to pay cannot be known.
Andrew Bingham (High Peak) (Con)
I was out selling poppies in Glossop on Saturday and constituent after constituent came to me to express their outrage at this unacceptable demand for €2 billion. In fact, one constituent even likened the EU to Dick Turpin, the difference being that Dick Turpin had the decency to wear a mask. Does the Prime Minister agree that the view expressed to me by my High Peak constituents represents the view across the country that this bill is unacceptable?
The Prime Minister
I entirely understand the reaction of my hon. Friend’s constituents. It is exactly the reaction I found in my constituency at the weekend: people outraged that so much money could be asked for with so little time to pay it and with so little thought for the taxpayers who would be called on to do so.
Mr Ronnie Campbell (Blyth Valley) (Lab)
Some years ago, this country voted for the Common Market not this bureaucratic nonsense, so why does the Prime Minister not grasp the nettle and have a referendum on the day of the election next year and let the British people decide?
The Prime Minister
There is a clear message: vote Tory in Blyth Valley and get a referendum.
Richard Fuller (Bedford) (Con)
In a few months, the Prime Minister will begin the serious business of renegotiating our relationship with the European Union. Does my right hon. Friend truly believe that the leaders of the European Commission, in asking for this vast amount of money, have any understanding of how exasperated the British taxpayers are at continuous demands for money that could be spent on British hospitals and British schools?
The Prime Minister
The Commission will see how strongly people feel. One of the great puzzles is that on Thursday night, when this emerged, the President of the current Commission, José Manuel Barroso, knew nothing about the payments, which raises interesting questions in itself. Clearly, the Commission needs to understand that this is taxpayers’ money and that it is not acceptable to behave in this way.
Mr Ian Davidson (Glasgow South West) (Lab/Co-op)
I welcome the Prime Minister’s decision not to pay the €2 billion and his statement “or anything like it”. I wish to be helpful. Would it not help his own position if he agreed to bring back for a vote in the House the amount he finally proposes to negotiate?
The Prime Minister
I think we are some way away from that, because we have to go through the estimates, find out what is wrong with the figures and how we can best change them, and go through all those processes before we reach that eventuality.
James Morris (Halesowen and Rowley Regis) (Con)
Notwithstanding this unacceptable demand from the European Commission, does the Prime Minister agree that economic stagnation in the eurozone poses a significant risk to the UK’s economic recovery, and do we not need to redouble our efforts to encourage our European neighbours to make the necessary economic reforms to stimulate growth across the eurozone?
The Prime Minister
My hon. Friend is absolutely right. Our growth figures came out during the European Council and demonstrated that Britain was growing at more than 3% this year and that manufacturing, construction and services were all contributing to that growth. There are very few countries in Europe with growth rates anything like that. Indeed, there is a risk to Britain from contraction in the eurozone, and as I said in answer to an earlier question, we need the eurozone to have not just proper fiscal targets, but an active monetary policy and structural reforms to get more of its people back to work.
Mr David Crausby (Bolton North East) (Lab)
When the Prime Minister says that the bill came as a bombshell, the House must surely accept his word, but did his officials not give him in advance an estimate of the bill, and if they did, how much was it?
The Prime Minister
They did not, and they could not have known, because it was only at the Friday meeting, the week before the European Council, that the figures became apparent; that was when what the Commission was proposing for every other EU country could be seen. As has been explained, the Treasury then drew up a memorandum on the Tuesday before the European Council, and I was told on the Thursday. Those are the facts, even if they are inconvenient for those who want some great conspiracy and who believe that in the wonderful days of Blair and Brown information was shared so openly across government. I am afraid that does not stand up to the facts.
Andrew Gwynne (Denton and Reddish) (Lab)
ITV News is reporting online that Mr Dominik, the EU Budget Commissioner, has confirmed that UK civil servants knew the precise revised sum some weeks ago. Given that the Prime Minister acknowledges that he knew the mechanisms in place, and given that Treasury officials knew the precise sum weeks ago, what part of it did the First Lord of the Treasury not understand?
The Prime Minister
I am glad the hon. Gentleman raises the point about the lunchtime news programmes, because not all of them have been accurate. One made the assertion that these numbers were discussed at the October ECOFIN, but that is simply not the case. As I said, the key meeting was an officials’ meeting in Brussels on the Friday before the European Council—that was the first time the numbers were seen—and the Treasury drew up a memorandum on the Tuesday. One would expect the Treasury to look at such estimates and work out an action plan to deal with them, and then the Prime Minister is told. That is how things work. I do not know why Opposition Members are looking for a mystery here; it is very straightforward.
Sir Tony Baldry (Banbury) (Con)
Is not the fact that EU Commission officials can describe a demand for €2 billion as “an adjustment” an indication of just how far they have lost touch with ordinary voters, not just in Britain, but throughout the whole EU? This is an accountability issue. In challenging these payments, is my right hon. Friend standing up not just for the citizens of Britain, but for citizens throughout the whole EU who want the EU to succeed, but want it to be more accountable?
The Prime Minister
My right hon. Friend is absolutely right. The description of it as a “technical adjustment” is what caused the Italian Prime Minister, me and the Dutch Prime Minister to really be very angry. This is a huge amount of money. It was €2 billion for Britain, and—from memory—for Holland, a much smaller country, it was €600 million. This is serious money, not some small adjustment.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
The Prime Minister’s statement on important threats such as climate change and Ebola shows just how important it is for us to work with our European neighbours. However, do not the points made by the right hon. and learned Member for Rushcliffe (Mr Clarke) and my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) that the Treasury knew about this EU surcharge well beforehand and that the Office for National Statistics was supplying data months ago show that the Prime Minister is just shedding crocodile tears?
The Prime Minister
Where the hon. Lady is right is that of course there is a process for statistics authorities to share statistics across Europe. That happens every year, but the key moment is when those statistics come together and we can see what a country’s draft obligations would be. That is what happened. I know there is a desperate search for a “Who knew what, when?” story, but I think Opposition Members are missing the point—put forward so brilliantly by the hon. Member for Vauxhall (Kate Hoey)—that it is the bottom-line issue that matters. Labour does not want to go to that, because it is not prepared ever to face up to the challenges we are sometimes set in Europe.
Chris Kelly (Dudley South) (Con)
Does my right hon. Friend agree that the cost of Labour in this context since 2005 has been a reduction in our rebate of nearly £10.5 billion and that a further cost of Labour would be its Front Benchers caving in and paying this enormous sum if they were in government, something to which my constituents in Dudley South say no?
The Prime Minister
My hon. Friend is absolutely right. Labour gave away £7 billion of our rebate and our ability to veto what was not in our national interest, signed Britain up to a euro bail-out mechanism to bail out countries that were in the eurozone, and agreed to increases in EU budgets year after year. This Government have taken a very different approach.
Andrew Bridgen (North West Leicestershire) (Con)
My constituents, like people across the country, are doubly astounded, first, that our country effectively faces a fine for its success and hard work and, secondly, that the money would be used to prop up the failed economic policies of the likes of François Hollande—policies supported by the Leader of the Opposition in 2012. Can the Prime Minister assure my constituents that we will say no to the demand to pay this bill from the European Union? Instead of coming to Britain for a bail-out, the European Union should first of all put its own house in order.
The Prime Minister
My hon. Friend makes important points. I have made clear the approach we are going to take, and we should also continue to pursue the economic policies that are making Britain such a strong and growing success.
Julian Smith (Skipton and Ripon) (Con)
There was huge support across the Yorkshire dales for the Prime Minister’s strong position in the Brussels meeting. Can he clarify whether he got any messages of support for that position from the Leader of the Opposition and whether there was any clarity on whether Labour would pay this sum?
Mr Speaker
Order. I think the questions really ought to focus on the policy of the Government and not be a kind of back-door way of trying to talk about Opposition policies. It is improper, and unfortunately it was not very subtly disguised.
Jake Berry (Rossendale and Darwen) (Con)
I congratulate my right hon. Friend on his strength of leadership on this specific issue, but will he confirm that if this €2 billion bill is not reduced or is increased, he will convert his “No, no, no” to a “Never”?
The Prime Minister
I have been very clear: we are not paying this on 1 December; nor are we paying an amount of this nature. We are very clear about that. If, through these processes, we have to pay a little bit more or a little bit less, as we do every year, that is a different matter. I could not have been clearer about this.
Rehman Chishti (Gillingham and Rainham) (Con)
Touching on economic issues, in paragraph 7 of the conclusions, the Prime Minister will be aware that the EU recently granted Pakistan favourable trading status, linked to its basic human rights. In the light of the recent decision by the high court in Pakistan to sentence under its completely unacceptable blasphemy laws Asia Bibi, a Christian mother of five children, to death by hanging, 45 Members of Parliament from across the House have written to the Government of Pakistan urging them to review this miscarriage of justice. Will the Prime Minister ensure that our Government push Pakistan to review this miscarriage of justice?
The Prime Minister
My hon. Friend makes a very important point. As he knows, we have been pushing the Pakistan Government to amend the blasphemy laws, and I will be speaking to the Prime Minister tomorrow.
Mr Speaker
If the hon. Gentleman was in the Chamber at the start of the statement, I will call him, but if he was not, I will not.
Mr Cunningham
Is the Prime Minister prepared to compromise over the rebate, because so far he has made no statement to rule that out?
The Prime Minister
I hate to say it, but had the hon. Gentleman been here throughout, he would have heard my answer, which is this. Paying a little bit more or a little bit less because of a normal annual adjustment is one thing; €2 billion is quite another.
David Mowat (Warrington South) (Con)
It is a big success that we have managed to get the EU to move towards decarbonisation targets and away from renewables targets, but the Prime Minister may be aware that what was agreed on Friday is considerably less onerous than the targets set out in our own Climate Change Act 2008. Does he have any intention of reconciling those two positions over the next few years?
The Prime Minister
First of all, what we have agreed is less onerous than the package negotiated by a previous Government that set out binding targets for 2020 that have added costs to bills. My advice is that what we agreed is broadly consistent with our carbon budgets; we can achieve what we will be expected to achieve within our carbon budgets.
Jason McCartney (Colne Valley) (Con)
My constituents do not give a Yorkshire pudding about who said what and when. What they do care about is Labour-run Kirklees council looking at not filling in potholes, consulting on whether to keep libraries open and struggling on funding. Will the Prime Minister, on behalf of my constituents, continue to pledge to say no to this huge bill, so that we can spend money right here on our constituents?
The Prime Minister
My hon. Friend is absolutely right: people want us to stand up against unacceptable bills from Brussels and make sure that money is spent on our people’s priorities.
Martin Vickers (Cleethorpes) (Con)
I congratulate my right hon. Friend on his response to this outrageous £1.7 billion demand. Clearly, the EU is similar to the Labour party, in that it wishes to penalise success and reward failure. When he renegotiates our terms of membership, will he ensure that—second only to dealing with the free movement of labour—he will seek to reduce the power of officials, introduce real democratic accountability and return powers to this Parliament?
The Prime Minister
I think there is a lot in that agenda that we need properly to engage with. We have set out the things I most want to renegotiate. It is obviously going to be difficult, but as I have said, it is worth doing that to give the British people a proper choice between a reformed in and out.
Steve Brine (Winchester) (Con)
I thank the Prime Minister on behalf of thousands of my constituents in Winchester. Seemingly, many of them of contacted me this weekend to say thank you for his defence of their money. To borrow a current phrase, the European Union is treating Great Britain like a kind of branch office. Does the Prime Minister understand—I know it is difficult—that many of my constituents see this as a further reason why, with a heavy heart, this club is just not working for us any more?
The Prime Minister
I am grateful to my hon. Friend for what he says about his constituents. I think it is worth while having that renegotiation so that we can give the British people a choice. We demonstrated at the European Council that when it comes to climate change and Ebola, we were able to push for action that will benefit people in our country and across the continents. I do not accept that Britain cannot win in Europe; we can, but we need to make sure that we have the right deal to get public support behind this organisation. Clearly, what happened before the weekend in terms of this bill is not helpful.
Robert Halfon (Harlow) (Con)
I thank the Prime Minister for standing up to Brussels and for the cut in the EU budget. Given that the EU has had a negative impact on jobs and wages, particularly for low earners, is it not the EU’s responsibility to save hard-working taxpayers money rather than try to increase the taxes they pay? Does this not make the case, which he has made so well, for an in/out referendum on the European Union?
The Prime Minister
My hon. Friend is on to a very important point—that because of the difficulties in the eurozone, people have seen Europe as the source of some of our problems rather than the source of opportunities. That puts even further pressure on the EU to recognise that and to cut its cloth accordingly to try to save people money rather than cost them money.
Jeremy Lefroy (Stafford) (Con)
Annexe II of the Gleneagles agreement of 2005 states:
“The EU has pledged to reach 0.7 per cent”
of overseas development assistance as a percentage of gross national income by 2015. Given that we are nearly in 2015, will my right hon. Friend confirm whether the Commission has been sending out payment reminders on behalf of the poorest people on earth—in the case of Germany, for $11.8 billion a year; in the case of France, for $8 billion a year, and in the case of the United Kingdom, zero?
The Prime Minister
My hon. Friend has made a good point. We made a promise to the poorest in the world, and we have kept our promise to the poorest in the world. Other countries that made those pledges at that meeting—including Italy, France and Germany—have not kept their promises, and they should answer for themselves. When it comes to issues such as Ebola, however, it is necessary to spend money quite rapidly. I would say to people in our country that it is not just our moral responsibility to help people in west Africa, but it is essential in order to prevent Ebola from coming here. A country needs to have deep pockets and resources in order to take the action that is required.
Neil Carmichael (Stroud) (Con)
The unwelcome scale of the surcharge does at least suggest that the European Commission has recognised the strength of the British economy, the value of the long-term economic plan, and the success of the Government’s approach to reducing our deficit. When the Prime Minister seeks to recalibrate the scale and pace, will he underline the need for the European Union to adopt the same economic strategies as us?
The Prime Minister
My hon. Friend is doing a very good job in finding a silver lining for this cloud, namely the fact that our economy is growing. As I said in my statement, that was going to involve our having to make some sort of additional payment, but the scale is completely unacceptable. As for the lessons that can be learnt from the success of what we are doing here in Britain, I think that there are examples that can be followed in the rest of Europe.
Henry Smith (Crawley) (Con)
The constituents to whom I spoke over the weekend, on the doorstep and in community meetings, were certainly not amused by the irony of a surcharge of £1.7 billion from the European Union having to be paid because our economy is so successful, and they were very much behind my right hon. Friend in wanting to say no to the payment. Does the Prime Minister agree that we should take no lessons from the Labour party, who gave away £7 billion in terms of our rebate in return for absolutely no reform of the European Union?
The Prime Minister
My hon. Friend is entirely right. Not only was that money given away in terms of the rebate, but we saw EU budgets go up and up year after year because of a failure to control spending. That is the lesson that we must learn. We have to be very tough on these things in Europe, which Labour consistently failed to be.
Andrew Jones (Harrogate and Knaresborough) (Con)
Does the Prime Minister agree that if we are to keep Britain secure from the threat of Ebola at home, we need to contain it abroad? Should we not recognise the hundreds of people in our national health service who have volunteered to go out to west Africa, and congratulate them on their work in keeping us secure?
The Prime Minister
I think it quite extraordinary that 650 people in our country have already volunteered to go. As I said in my statement, we are sending out troops to help with the logistics and the planning. We must ensure that the medevac proposals are really robust, so that if any people do get into trouble, they can either be given excellent treatment in one of our facilities in the country, or be brought home.
Charlie Elphicke (Dover) (Con)
I welcome the agreement entered into between the United Kingdom and France to tackle the chaos at Calais, where the mayor has lost control of the streets. May I urge him to initiate a pan-European push to tackle the evil of human trafficking, which is so often organised, and to tackle countries such as Italy—which is the first safe country for treaty purposes—rather than allowing people to be waved through to Calais?
The Prime Minister
My hon. Friend is absolutely right. As well as having proper controls at Calais and at our own border, we must ensure that when people arrive in the European Union, they claim asylum and register in the first country that they reach rather than being passported through to the channel ports.
Michael Ellis
Thank you very much, Mr Speaker. You were spoilt for choice then.
Does the Prime Minister agree that the euro bureaucrats have made a mistake? They thought that they could push this Prime Minister into doing what a Labour Government clearly would do, and accepting everything that was said. This Prime Minister and this Government will not be treated like that. They will not be treated like a branch office; they will not be treated in the way in which the Labour party has treated its Scottish comrades.
The Prime Minister
Labour did provide a rather odd distraction over the weekend, with the extraordinary meltdown of its party in Scotland. My hon. Friend is absolutely right: we must demonstrate that when something unacceptable like this is put on the table, we are willing to say no.
Mr Hollobone
May I inform the Prime Minister that the clear and strong view from the Kettering constituency is that absolutely no way should we be paying this extra money? Before he goes back to Brussels, may I encourage him to have a good rummage through the cupboards in Downing street, dig out the prime ministerial handbag which was last deployed by its original owner in the early 1990s, and clonk it around the head of the Commission?
The Prime Minister
My hon. Friend has made an excellent suggestion. I am not sure that the handbag is actually passed down in that way, but the metaphorical handbag is still available, and there are times when it needs to be used.
Point of Order
Andrew Gwynne (Denton and Reddish) (Lab)
On a point of order, Mr Speaker. During the Prime Minister’s statement, the Treasury has confirmed that its officials were told, but that the junior civil servants did not pass the information further up the chain of command. Perhaps when the Prime Minister goes back to No. 10 Downing street he can fully apprise himself of these new facts and then come back, out of courtesy to the House, to correct the record and fully apprise us of who knew what and when, and why the Prime Minister, as the First Lord of the Treasury, was not told.
Mr Speaker
I thank the hon. Gentleman. No judgment is required in this matter by the Chair, but he has put his point on the record. We will leave it there.
Bill Presented
International Trade Agreements (Scrutiny)
Presentation and First Reading (Standing Order No. 57)
Geraint Davies, supported by Nia Griffith, Kelvin Hopkins, Mr Jim Cunningham, Mark Lazarowicz, Sir Gerald Kaufman, Mr Mike Weir, Jim Sheridan, Jim Dowd, Paul Flynn, Mr Roger Godsiff and Mark Durkan, presented a Bill to require scrutiny of and enable amendments to international trade agreements, including investor state dispute settlements, by the European and UK Parliaments; and for connected purposes.
Bill read the First time; to be read a Second time on Friday 16 January 2015, and to be printed (Bill 108).
Recall of MPs Bill
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
21:56 - divided: - Ayes: 166 / Noes: 340 - Question accordingly negatived.
Zac Goldsmith (Richmond Park) (Con)
I beg to move amendment 1, in clause 1, page 1, line 3, leave out from “becomes” to end of clause and insert—
“the subject of a recall referendum where—
(a) a notice of intent to recall, signed by a number of persons not less than the effective number (5% of persons in member’s parliamentary constituency entitled to vote), in accordance with section (Notice of intent to recall) of this Act, has been deposited with a petition officer, and
(b) 20% of persons entitled to vote have then validly signed a recall petition in accordance with section (Notice of intent to recall) of this Act.
(3) In this Act “recall petition” means a petition calling, in terms determined under section 9(4), for a member to be subject to a recall referendum.
(4) The member’s seat becomes vacant and a by-election held where, in accordance with section 15 of this Act, the majority of people who have voted in a recall referendum, vote in favour of the member being recalled from Parliament.
(5) The provision made by or under this Act does not affect other ways in which a Member’s seat may be vacated.”.
This amendment changes the Bill to remove the proposed conditions of recall on the grounds of imprisonment or suspension by the House to the decision making of constituency voters. It sets out the essential three stages - notice of intent to recall (5% of voters), recall petition (20% of voters) and then a referendum. Only if all three stages are passed is there a by-election.
The Second Deputy Chairman of Ways and Means (Dame Dawn Primarolo)
With this it will be convenient to discuss the following:
Amendment 42, page 1, line 4, leave out “or second” and insert “, second, or third”
Amendments 42 and 43 and NC6 and NC7 form part of a group of amendments and new clauses which provides a route for recall for members of the public independent of any parliamentary committee, or criminal convictions. It allows for an alternative and additional trigger for the recall process which provides direct access whereby one hundred constituents may petition an Electoral Court in the case of improper behaviour or gross dereliction of duty on the part of an MP, and seeks to avoid any conflict with the provisions of the Bill of Rights.
Amendment 48, page 1, line 4, after “second”, insert “or third.”
Amendment 41, page 1, line 10, at end insert—
‘(2A) No action shall be initiated against an MP in relation to a recall petition process on the basis, or as a result of votes cast, speeches made or any text submitted for tabling by such an MP, within, or as a part of, a parliamentary proceeding.”
Amendment 47, page 1, line 16, at end insert “or,
(c) the MP has been convicted of any offence under section 10 (Offence of providing false or misleading information for allowance claims) of the Parliamentary Standards Act 2009.”
This amendment adds a further recall petition trigger to the Bill, where an MP is found guilty of an offence under section 10 of the Parliamentary Standards Act 2009 for making a claim for expenses or allowances that they know to be false or misleading in some material respect.
Amendment 45, page 1, line 18, leave out subsection (4) and insert—
‘(4) The second recall condition is that the House of Commons orders the suspension of the MP from the service of the House for a specified period and—
(a) where the period is expressed as a number of sitting days, the period specified is a period of at least 10 sitting days, or
(b) in any other case, the period specified (however expressed) is a period of at least 14 days.”
This amendment reduces the length of suspension required to trigger a recall petition from 21 sitting days to 10 sitting days and from 28 days to 14 days.
Amendment 39, page 1, line 18, leave out “orders” and insert “has ordered.”
Amendment 43, page 1, line 24, at end insert—
‘( ) The third recall condition is that—
(a) an election court has considered a petition claiming that the MP has committed an act which, had it been committed in England and Wales, would have constituted misconduct in public office, and
(b) the court has determined, prima facie, there is a case to be answered, and
(c) the court has notified the Speaker of its decision under sub-section (b).”
Amendments 42 and 43 and NC6 and NC7 form part of a group of amendments and new clauses which provides a route for recall for members of the public independent of any parliamentary committee, or criminal convictions. It allows for an alternative and additional trigger for the recall process which provides direct access whereby one hundred constituents may petition an Electoral Court in the case of improper behaviour or gross dereliction of duty on the part of an MP, and seeks to avoid any conflict with the provisions of the Bill of Rights.
Amendment 40, page 2, line 2, after “starts”, insert “or started”
Amendment 49, page 2, line 5, at end insert—
‘(5A) The third recall condition is where an MP is also—
(a) a Member of the Scottish Parliament,
(b) a Member of the National Assembly for Wales,
(c) a Member of the Northern Ireland Legislative Assembly,
(d) a Member of the London Assembly,
(e) a directly elected Mayor,
(f) a local government Councillor,
(g) a member of a Parish Council, or
(h) a member of the European Parliament
and the Speaker receives or otherwise takes notice of the fact that that such an MP has been
suspended from a role mentioned in this subsection for a period equivalent to, or greater
than, that specified in subsection (4).
(5B) The Secretary of State may amend the list of bodies in subsection 5A by an order laid before the House of Commons and made under the affirmative resolution procedure.”
This amendment adds a further recall petition trigger to the Bill, where an MP has been suspended from another elected role or office for an equivalent or greater number of days than is set out in Clause 1, subsection (4). (NB Amendment 45 seeks to reduce that period.)
Amendment 46, in clause 2, page 2, line 16, leave out paragraph (b)
This amendment removes the exemption from recall petition in the case of an MP who receives a custodial sentence but for a crime committed before this Act comes into force.
Amendment 44, in clause 5, page 4, line 11, leave out “second” and insert “, second, or third”
New clause 1— Notice of intent to recall—
‘(1) A notice of intent to recall is to read as follows—
“If you agree that [name], the member of the House of Commons for [constituency] should be subject to a recall petition, please sign below”.
(2) A notice of intent may be deposited with the petition officer by a person who promotes the call for the member to be recalled from Parliament (“the promoter”).
(3) A notice of intent to recall deposited under subsection (2) must be accompanied by a declaration made by the promoter, verifying that to the best of that person‘s knowledge the notice is in accordance with this Act and any regulations made under it.
(4) A person who makes a declaration under subsection (3) where that person knows that the declaration is false or is reckless as to that fact, commits an offence.
(5) As soon as reasonably practicable after a notice of intent to recall has been deposited with the petition officer—
(a) the petition officer shall, in accordance with subsection (6) determine whether the notice of intent to recall is effective, and
(b) if so, the petition officer shall send a copy of the notice to the member.
(6) A notice of intent to recall is effective for the purposes of this Act if the petition officer is satisfied that the number of persons who have validly signed the notice of intent to recall is not less than the effective number determined in accordance with subsection (9).
(7) But subsection (5) shall not apply if it would require the petition officer to determine that the notice of intent to recall is effective at a time—
(a) within the period of 7 months ending with the polling day for the next parliamentary general election;
(b) when the MP is already subject to a recall petition process, or
(c) When the MP’s seat has already been vacated (whether by the MP’s disqualification or death, or otherwise).
(8) For the purposes of this section a person (“P”) validly signs a notice of intent to recall if—
(a) P signs the notice within the period commencing 28 days prior to the date upon which the notice is deposited with the petition officer and ending on that day, and
(b) P signs the notice on a day on which P would be entitled to vote as an elector at a parliamentary election in the constituency.
(9) In each year, the petition officer of each constituency in England and Wales, Scotland and Northern Ireland shall on the relevant day, determine the number that is equal to 5% of the number of persons entitled to vote as an elector at a parliamentary election in the constituency (“the effective number”).
(10) “The relevant day” for the purposes of subsection (9) means, the day on which the registration officer publishes a revised version of the electoral register under section 13 of the Representation of the People Act 1983.”.
This New Clause adds in the process for notices of intent to recall; who is eligible to sign such a notice and how the petition officer is to determine whether it is effective, leading on then to a recall petition notice being issued.
New clause 2—Promoter’s statement of reason and Member’s statement in reply—
‘(1) A notice of intent to recall may be deposited with a petition officer by a person (“the promoter”):
(a) who promotes the recall from Parliament of the member to whom the notice relates;
(b) who is entitled to vote on the day it is deposited as an elector at a parliamentary election in the constituency to which the notice relates; and
(c) whose name appears on the notice.
(2) The promoter must ensure that the signing sheet for a notice of intent to recall include s a statement of reasons for calling for the member’s recall to Parliament (“The promoter’s statement of reasons”).
(3) The member may respond to the statement of reasons in a written statement in reply (“member’s statement in reply”) sent to the petition officer after the notice of intent to recall has been deposited with that officer.
(4) The notice of petition sent out under section 8(1) must be accompanied by—
(a) the promoter’s statement of reasons, and
(b) any statement in reply if provided to the petition officer within 2 working days of the notices being sent out.
(5) The statement of reason and any statement in reply must not exceed 200 words each and must be made available by the petition officer at the designated places throughout the signing period.”
This amendment makes provision for the person who deposits the notice of intent to recall with the petition officer, known as the promoter, to include with the notice, a statement of reasons. The member then has a right of reply and both the statement of reasons and any statement in reply must be available with a recall petition throughout the signing period.
Amendment (a) to new clause 2, line 11 at end insert—
“(a) the statement of reasons shall not include reasons relating to the Member’s freedom of expression within his/her Parliamentary role such as those expressed through speeches and votes.
(b) Where the petition officer considers that a statement may contravene (a) he may refer the statement to the Speaker whose decision shall be final.”
To ensure that recall procedure is not commenced because a constituent does not agree with the Member’s political or personal views.
New clause 6—The third recall condition; method of petitioning an election court—
‘(1) This section applies when persons allege conduct by an MP which constitutes misconduct in public office.
(2) A petition under this section may be presented by one hundred or more of those who are registered as electors in the relevant constituency.
(3) The petition shall be in the prescribed form, state the prescribed matters and be signed by the petitioners, and shall be presented to the High Court, or to the Court of Session, or to the High Court of Northern Ireland, depending on whether the constituency to which it relates is in England and Wales, or Northern Ireland.
(4) The petition shall be presented by delivering it to the prescribed officer or otherwise dealing with it in the prescribed manner; and the prescribed officer shall send a copy of it forthwith to the Speaker and to the relevant MP.
(5) The election court shall be constituted as if it were constituted under section c123 (constitution of election court and place of trial) of the Representation of the People Act 1983 and sections 124 and 126 of that Act shall apply as if it were so constituted.
(6) “Prescribed” has the same meaning as in section 185 (Interpretation of Part III) of the Representation of the People Act 1983.”
New clause 7—The third recall condition; consideration by election court—
‘(1) This section applies when a petition alleging conduct by an MP which constitutes misconduct in public office is considered by an election court under section (The third recall condition: method of petitioning an election court).
(2) The court may consider such conduct whether or not it is committed in England and Wales, and whether or not it is committed directly in carrying out the office of member of parliament.
(3) The court must examine evidence adduced of misconduct, and any evidence produced in rebuttal by the MP.
(4) The court must consider whether, on the basis of such evidence, a person might properly be indicted for the common law offence of misconduct in public office.
(5) For the purposes of this section, gross dereliction of duty as an MP may be considered misconduct in public office.
(6) If the court considers, on the basis of such evidence, that the allegation of misconduct is—
(a) not supported by the evidence; or
(b) trivial or vexatious in nature; or
(c) brought for party political purposes;
then the court must dismiss the petition.
(7) If the decision of the court is that the alleged behaviour is such as to satisfy subsection (4), then it must notify the Speaker that it has so determined.
(8) Nothing in this section shall be construed as affecting any provision of the Bill of Rights 1689.”
Amendments 42 and 43 and NC6 and NC7 form part of a group of amendments and new clauses which provides a route for recall for members of the public independent of any parliamentary committee, or criminal convictions. It allows for an alternative and additional trigger for the recall process which provides direct access whereby one hundred constituents may petition an Electoral Court in the case of improper behaviour or gross dereliction of duty on the part of an MP, and seeks to avoid any conflict with the provisions of the Bill of Rights.
Amendment 34, in schedule 1, page 17, line 6, leave out from “effectually” to end of paragraph 1 and insert
“carrying out the functions under this Act and Regulations made under it in relation to notices of intent to recall, recall petitions and recall referendums”
This amendment extends the general duty on the petition officer to reflect the addition of the notice of intent to recall and referendum stages to the Bill.
Amendment 6, in clause 7, page 5, line 22, leave out “receives a Speaker’s notice” and insert
“has determined that a notice of intent to recall is effective”.
This amendment makes clear that the date upon which the petition officer determines that a notice of intent to recall is effective is the relevant starting date for the recall petition process.
Amendment 7, page 5, line 36, leave out “received the Speaker’s notice” and insert
“determined that the notice of intent to recall is effective”.
This amendment makes clear that the date upon which the petition officer determines that a notice of intent to recall is effective is the relevant starting date for the recall petition process.
Amendment 8, in clause 8, page 6, line 13, leave out subsection (2).
This amendment removes the power to make regulations requiring information on the recall condition to be included in the notice of petition to be sent to registered electors.
Amendment 9, in clause 9, page 6, line 27, leave out from “constituency]” to end of subsection (4) and insert
“to be subject to a recall referendum. If the recall referendum leads to the loss of his/her seat this does not prevent the member standing in any consequent by-election.”.
This amendment changes the wording in the recall petition to reflect that if successful there will be a referendum and that if the recall referendum leads to the loss of the member’s seat, he or she may still stand for election in any consequent by-election.
Amendment 10, in clause 10, page 7, line 9, leave out “Speaker’s notice is given” and insert “petition officer has determined that the notice of intent to recall is effective”.
This amendment has the same effect as those for Clause 7.
Amendment 11, page 7, line 22, leave out “Speaker’s notice is given” and insert
“petition officer has determined that the notice of intent to recall is effective”.
This amendment has the same effect as those for Clause 7.
Amendment 35, in schedule 2, page 21, line 10, leave out “Speaker‘s notice is given in relation to a recall petition” and insert
“petition officer determines that a notice of intent to recall is effective”.
This amendment has the same intent and achieves the same effect as for the amendments to Clause 7.
Amendment 12, in clause 13, page 8, line 37, leave out “Speaker’s notice is given” and insert
“petition officer has determined that the notice of intent to recall is effective”.
This amendment has the same effect as those for Clause 7 and reflects the fact that the recall conditions and the role of the Speaker are removed.
Amendment 13, page 8, line 44, leave out “Speaker’s notice was given” and insert “petition officer determined that the notice of intent to recall was effective”.
This amendment has the same effect as those for Clause 7 and reflects the fact that the recall conditions and the role of the Speaker are removed.
Amendment 14, page 9, line 3, leave out subsections (4) and (5).
This amendment has the same effect as those for Clause 7 and reflects the fact that the recall conditions and the role of the Speaker are removed.
Amendment 15, page 9, line 9, leave out “receiving a notice under subsection (5)” and insert “becoming aware that this section applies”.
This amendment has the same effect as those for Clause 7 and reflects the fact that the recall conditions and the role of the Speaker are removed.
Amendment 16, in clause 13, page 9, line 16, leave out “receiving a notice under subsection (5)” and insert “becoming aware that this section applies”.
This amendment has the same effect as those for Clause 7 and reflects the fact that the recall conditions and the role of the Speaker are removed.
Amendment 17, page 9, line 22, leave out subsection (8).
This amendment has the same effect as those for Clause 7 and reflects the fact that the recall conditions and the role of the Speaker are removed.
Amendment 18, in clause 14, page 9, line 31, leave out subsection (2)(b).
This amendment reflects that the Speaker’s role in the recall petition process has been removed.
Amendment 20, page 9, line 44, leave out “Speaker’s notice is given” and insert
“the petition officer determined that the notice of intent to recall was effective”.
This amendment has the same effect as those for Clause 7.
Amendment 21, page 10, line 24, leave out subsection (8).
This amendment is consequential on the amendment removing subsection (2) of this Clause.
Amendment 22, in clause 15, page 10, line 27, leave out from “officer” to end of Clause and insert—
“determines that the recall petition was successful the officer shall issue a notice of recall referendum
(2) Where a notice of recall referendum has been issued, the petition officer shall hold a referendum on the question set out in subsection (3), within a period that is no less than 21 days and no more than 27 days after the date of the notice.
(3) The questions that is to appear on the ballot papers in a recall referendum is—
“Should [name of member of Parliament] be recalled from the House of Commons?”.
(4) A person is entitled to vote in a recall referendum under this Act if that person would be entitled to vote on that day as an elector at a parliamentary election in the constituency.
(5) A person who is entitled to vote in a recall referendum may do so in person, by post or by proxy.
(6) This subsection applies where more votes are cast in a recall referendum in relation to a member of Parliament in favour of the question asked in subsection (3) than against.
(7) Where subsection (6) applies, the result of the referendum is that the member’s seat becomes vacant and a by-election will be held.
(8) The petition officer must—
(a) determine the result of the recall referendum as soon as reasonably practicable after the date on which the referendum took place,
(b) immediately notify the member and the Speaker of the result of the referendum, and
(c) as soon as reasonably practicable, publish the result of the referendum.”.
Where a recall petition has been successful, this amendment sets down the requirement for a recall referendum: it provides the wording for the recall referendum ballot and if passed for the member’s seat to become vacant. This thereby triggers a by-election.
Amendment 23, in clause 16, page 10, line 40, after “amend”, insert—
“(a) Schedules 3 to 5 to apply to expenditure and donations in relation to notices of intent to recall and recall referendums and reporting requirements in connection with the financial control of notices of intent to recall and recall referendums.”.
This amendment extends the regulation making power in this Clause to enable the controls on expenses, donations and reporting requirements set out in the Schedules to be extended to notices of intent to recall and recall referendums.
Amendment 36, in Schedule 3, page 24, line 5, leave out “Speaker‘s notice is given” and insert “petition officer determines that a notice of intent to recall is effective”.
This amendment has the same intent and achieves the same effect as for the amendments to Clause 7.
Amendment 24, in clause 17, page 11, line 11, after “petition”, insert “or recall referendum.”.
This amendment extends the controls on loans to accredited campaigners to be extended to recall referendums.
Amendment 25, page 11, line 18, after “petition”, insert “or recall referendum.”.
This amendment extends the controls on loans to accredited campaigners to be extended to recall referendums.
Amendment 26, page 11, line 22, leave out “has the same meaning” and insert “and ‘recall referendum’ have the same meanings.”.
This amendment extends the controls on loans to accredited campaigners to be extended to recall referendums.
Amendment 27, in clause 18, page 11, line 27, leave out “recall petition” and insert
“notice of intent to recall, recall petition or recall referendum.”.
This amendment extends the regulation making powers to cover notices of intent to recall including the promoter’s declaration of compliance and recall referendums.
Amendment 28, page 11, line 28, leave out “recall petition” and insert “notice of intent to recall, recall petition or recall referendum.”.
This amendment extends the regulation making powers to cover notices of intent to recall including the promoter’s declaration of compliance and recall referendums.
Amendment 30, page 11, line 31, at end insert—
(0) make provision extending section 13 to apply to the early termination of a recall referendum process.”.
This amendment extends the regulation making powers to cover notices of intent to recall and recall referendums.
Amendment 29, page 11, line 38, at end insert
“(including extending section 12 to cover the signing of notices of intent to recall, any offence under [section Notice of intent to recall] and voting in recall referendums)”
This amendment extends the regulation making powers to cover notices of intent to recall including the promoter’s declaration of compliance and recall referendums.
Amendment 37, in schedule 6, page 57, line 35, leave out from “after” to end of line 36 and insert
“a petition officer has determined that a notice of intent to recall is effective”.
This amendment has the same effect as those for Clause 7.
Amendment 32, in clause 22, page 14, line 30, at end insert—
“‘notice of intent to recall’” means a notice calling, in terms determined
under section (Notice of intent to recall) for a recall petition to be issued;”.
This amendment adds in necessary definitions to reflect the other amendments to the Bill.
Amendment 33, page 14, line 43, at end insert—
“‘recall referendum’ means a referendum asking, in terms determined under section (Notice of intent to recall) whether the seat of a member should be vacated in accordance with this Act;”.
This amendment adds in necessary definitions to reflect the other amendments to the Bill.
Clause stand part.
Zac Goldsmith
I rise to speak to the amendments in my name and those of 80 or so colleagues across the House, and in so doing make a plea to this House. Today, hon. Members will be able to decide if we want a genuine voter-led system of recall with tight caps on spending and a high enough threshold to prevent vexatious abuse; or if we want a bogus system of recall that is possible only in the narrowest of circumstances and with prior permission of this House. Given that under the Deputy Prime Minister’s current proposals just six Members in the past quarter of a century would have qualified even for the possibility of recall—and four of them resigned in any case—we can at least agree that the Bill in its current form is a waste of time, but it is worse than that. If enacted, it will confirm the suspicion of many voters that politicians pretend to listen but then deceive. We are only having this debate because at a certain point before the last election the mainstream parties felt obliged to do something to address the increasingly strained relationship between people and power, so it would surely be a madness for us to legislate today on the assumption that our voters cannot be trusted.
We had a good debate on Tuesday of last week and I listened closely to the concerns raised around the amendments that I and colleagues are sponsoring and, for context, I want briefly to recap the effect of the amendments. The process is effectively threefold. First, if 5% of the local electorate sign a notice of intent to recall, within a one-month time frame the returning officer would announce a formal recall petition. Secondly, it would take 20% of voters—14,000 or so—to sign the recall petition in person within an eight-week period to trigger a recall referendum. The referendum would be a simple yes or no—“Do you want your MP to be recalled; yes or no?” If more than 50% say yes, there would then be a by-election.
Michael Fabricant (Lichfield) (Con)
The only concern colleagues with longer memories may have about my hon. Friend’s amendment, which I think is very powerful, is the risk of vexatious claims being made for party political or other purposes. Is my hon. Friend convinced that that could not arise with his amendment?
Zac Goldsmith
I thank my hon. Friend for his intervention, and I will focus above all on the point he raises in the few minutes I will take up during this debate. The process is deliberately very difficult. There are several hurdles—I have just identified three of them—and I think my hon. Friend will agree they are very high.
Steve Brine (Winchester) (Con)
On step two and the 20% threshold, my hon. Friend said last week and will probably say again today that this needs to be done in person at the town hall or suchlike. What guarantee is there that the easy, “click-send” mentality that so many of us see now in this job will not one day be extended to this process? As a result, vexatious recalls will be much easier to pursue.
Zac Goldsmith
Such a move could happen only by permission of this House. We will struggle today to get any kind of meaningful reform, and the concern that this House will casually extend the remit of recall to include digital democracy is a hope too far for those who believe in direct democracy.
Mr David Davis (Haltemprice and Howden) (Con)
My hon. Friend will remember that when this proposal—an online process rather than a physical one—was put to 40,000 people online, including online campaigners such as members of 38 Degrees, the vast majority, well over 90%, said, “No, this is a bad idea”. The process should be serious, physical and involve a proper hurdle.
Zac Goldsmith
That is exactly the point: the barriers are high enough to prevent vexatious abuse. However, I recognise that concerns were expressed across the House during last Tuesday’s debate, and they fall broadly into four categories. Three are largely technical and can easily be accommodated. The first relates to cost controls, the second to thresholds, and the third to the frequency with which recall petitions can happen. I will deal with those quickly before coming to the more profound concern that was raised—
Mr Russell Brown (Dumfries and Galloway) (Lab)
Will the hon. Gentleman give way?
Zac Goldsmith
If the hon. Gentleman does not mind, I will deal with these points first.
On the concern about costs, the Deputy Leader of the House, the right hon. Member for Carshalton and Wallington (Tom Brake), said that under the amendment there would be no cost controls at all on the first part of the recall process, the notice of intent. As he wrapped up Tuesday’s debate, he said that it would effectively be a free-for-all. I know he has read the amendments, so I am surprised he said that, because there are controls that mirror exactly those for the petition stage in the Government’s own Bill. Irrespective of that, it is perfectly possible to build in further controls—strict limits on expenditure and so on—and I have indicated to the Opposition and colleagues in my own party that if they table amendments on Report to bolster those cost controls, I would be very happy to support them.
The second issue, which relates to thresholds, is also technical. The principal concern involves the notice of intent to recall, the fear being that it would be too easy to secure 3,500 signatures—or 5%—in one month and that there would therefore be too many recall petitions.
Zac Goldsmith
I will in just a moment. The notice of intent to recall is the least formal part of this process and exists for only one reason: to ensure that where a recall petition happens, there is a genuine demand for it, and not only among a small handful of local cranks. The threshold is about right, but I have said to the Opposition and party colleagues that if they seek to raise it on Report, I would be happy to support it in the interests of achieving meaningful reform.
The third concern relates to the fear that Members would face endless recall attempts, amounting almost to a form of harassment, an issue raised several times in last week’s debate. I see no need for a limit, as the experience of recall around the world shows that its use is extremely rare and that it is used only in extreme circumstances. In 100 years of recall in the United States, where there are virtually no financial controls or controls on broadcasters and so on, it has happened only 20 times. There have been 40 recall referendums—
Zac Goldsmith
I will in a moment, when I have finished dealing with this point. However, as I have said to the Opposition and to my colleagues, for the sake of achieving meaningful reform I would not oppose sensible proposals to establish some reasonable limit.
Zac Goldsmith
When I have finished this point. Obviously, it would make no sense to limit the number of times a notice of intent to recall can be started because technically, that would enable one lonely crank in a constituency to exhaust those options for the rest of the constituents, with just a single signature. Logically, if there is to be a limit in this process, it would have to apply to the number of recall petitions themselves. I encourage the Government, the Opposition or any Member to bring forward a proposal on Report to set a limit on what would be possible.
Mr Kevan Jones
I also heard the figure of 40 being mentioned on the radio and in last week’s debate, but in the United States in 2011, there were 150 recall elections at various levels, with at least 30 in Michigan. Although the hon. Gentleman gives the impression that the method is not used in the United States, it is used extensively at all levels of government, and mainly by the Republican right to destabilise local Democrats.
Zac Goldsmith
I am afraid that I did not catch the data that the hon. Gentleman set out, so would he mind repeating those figures?
Mr Jones
In 2011, there were 150 recall elections in the United States—this is not just at state level, but at a local level—and there were 30 in Michigan alone. The hon. Gentleman makes a point about endless recalls but, in practice, people in the United States who are subject to recall do not contest the process, but resign.
Zac Goldsmith
The hon. Gentleman’s point relates to attempts at recall, not recall elections themselves.
Zac Goldsmith
Yes, it does. In California, which has had more recalls than any other US state, there has been one successful recall of a governor, when Gray Davis was replaced by Governor Schwarzenegger. From 2011 to 2013, nine of the 120 elected representatives faced recall, but not one of those processes was successful.
Zac Goldsmith
I will move on from that point, but I am sure that the hon. Gentleman will have the opportunity to speak.
I have set out the technical points that were raised on Second Reading, and I hope that hon. Members realise that it would be relatively easy to deal with them on Report.
Mrs Cheryl Gillan (Chesham and Amersham) (Con)
When there is an unpopular policy in a constituency—HS2, for example—and the MP cannot speak out in public, for instance because they are a Front Bencher, would not my hon. Friend’s proposals make such a Member very vulnerable? Can he assure me that his proposals could not be used to blackmail Members of Parliament who might not be able to speak out as they would wish?
Zac Goldsmith
My right hon. Friend’s point goes to the heart of our debate because it deals with a much more profound concern than those three technical points with which I have attempted to deal. This is the line in the sand on which we will need to decide today. It relates to the fear that elected representatives could be unfairly hounded from office—kicked out because of how they voted on issues such as gay marriage, the badger cull or HS2. It is the idea that the mere existence of recall would make Members nervous about expressing themselves on controversial issues, and that rich and powerful vested interests could chase from Parliament those who dare to stand up against them.
Zac Goldsmith
Those fears, however sincere, are misguided, and I want to explain why before I take any further interventions.
First, on a technical level, the numbers make such a thing virtually impossible. To reiterate, under my proposals, no Member could be recalled unless 50% plus one of his or her constituents voted for that recall, so there would be no question of a minority hounding an MP out of office—unlike with the Government’s plans, under which, bizarrely, 10% of constituents could throw out their MP, even if the other 90% absolutely adored them—and no Member could even face a full recall vote unless 20% of electors, or roughly 14,000 people, made the effort to go in person to a town hall, within a limited time frame, to sign a petition asking for one. We heard last week from hon. Members who had received 500 e-mails about badger culls and 400 e-mails about equal marriage, but those figures of 400 and 500 would be nowhere near enough to topple an MP, to trigger a referendum, or even to get to the point of having a recall petition. Those numbers are pitifully small compared with those required to clear the hurdles even to instigate the process that I am describing. What is more, those letters that MPs receive are often online and in template form; they can be sent at the mere click of a mouse. We are talking about a completely different scenario.
It is no coincidence that many of the Members who have unfairly faced the greatest difficulty during this Parliament, the very people whom the critics of recall might imagine to be the most vulnerable to attack, have put their names to my amendments, and they were the first to do so—my hon. Friends the Members for Wellingborough (Mr Bone) and for Ribble Valley (Mr Evans) and my right hon. Friends the Members for Sutton Coldfield (Mr Mitchell) and for Meriden (Mrs Spelman). They did so because they know that the existence of recall is the best possible way of challenging a noisy minority of critics either to put up or shut up. They know that when a recall petition fails to materialise, a Member will be able to turn to his or her tormentors and say, “The silent majority does not share your view.”
Sir James Paice (South East Cambridgeshire) (Con)
I entirely share my hon. Friend’s view that many of the letters we receive are identical, having been prompted by one source, and that they represent a tiny minority. Could not that be said of the e-mails and letters we have received in support of his amendments?
Zac Goldsmith
Even if my right hon. Friend had received not a single letter in support of recall, that would not change my own commitment to trying to secure this very minor but nevertheless meaningful reform.
The key point that I plead with Members to consider is that people can be trusted. They are not a mob of fools who are easily driven to the polling booths by manipulative media barons; they are our friends, our neighbours and our family. They can tell the difference between the rare examples of misbehaviour or betrayal so egregious that justice demands recall and the much more frequent instances of legitimate disagreements on policy or of trivial, minor foolishness. Although he spoke against recall very well last week, I think that the right hon. Member for Holborn and St Pancras (Frank Dobson) made that point himself, albeit inadvertently, when he said that his predecessor could easily have been recalled because of her views on abortion—she represented a largely Catholic seat—but she won seven elections, and in each one her majority grew. Voters are like us: they can respect and support someone without having to agree on every single issue. Very few people in this world are motivated purely by one concern over one issue.
Kate Hoey (Vauxhall) (Lab)
The hon. Gentleman referred to what my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson) said last week. Will he also consider the example of my constituency, as I was one of only two Labour MPs who voted not to ban hunting? That was an issue that could have prompted calls for a recall, but it would not have happened, because people accept that individual MPs have very strong views on individual issues.
Zac Goldsmith
The hon. Lady makes a brilliant point. She represents an urban seat where there are not many fox hunts, as far as I am aware, and the fact that she faced so little comeback from her constituents reflects the high esteem in which they hold her and it is testament to how rarely recall would be used in reality.
I want to answer the point made in an earlier intervention about conscience voting. There are times, I believe, when a betrayal might be so extreme as to merit a recall. I know that I was elected in Richmond Park and north Kingston largely because my constituents felt that I would be able to bat for them on the issue of Heathrow expansion and put up a serious fight. I made promises at the time that I would disown my own party and, if necessary, trigger a by-election to combat that enormous threat to my constituents. If I had U-turned straight after the election, having made those solemn vows to my constituents, and helped to facilitate a third runway, should I have been able to do so with impunity? I do not think so. Perhaps that is the line in the sand in the debate we are having today.
Richard Fuller (Bedford) (Con)
I fully support my hon. Friend’s amendment. He is doing a very sound job of trying to persuade people by saying how rare and infrequent these events may be and reassure them that there will not be opportunities for vexatious recalls, but is not the true power behind the amendment the fact that it is the only one that trusts the British people to make those decisions, rather than people in this House defending their own?
Zac Goldsmith
My hon. Friend will not be surprised to hear that I absolutely agree with his comments. [Interruption.]
Chris Bryant (Rhondda) (Lab)
I think my hon. Friend the Member for Newcastle upon Tyne North (Catherine McKinnell) might choose to address herself to this debate in a different way.
I have not signed the hon. Gentleman’s amendments, although I happen to agree with him. I want to raise two issues that he still has not addressed sufficiently. First, 5% is a very small number. He suggested that he might accept a higher number on Report. Would he be prepared to accept 10% or 15%? Secondly, some of us think that the financial provisions are not tough enough in the Bill or in law. Will he support further amendments at a later stage?
Zac Goldsmith
The notice of intent to recall is the most informal part of the process—its only purpose is to demonstrate that it is not a waste of time. I do not mind if the level is 5%, 10% or 15%; the House has to decide on that and will have an opportunity to do so on Report, I hope, if these amendments are accepted. I will not vote for the lower thresholds because I have made a commitment to the House. On the question of whether it is 10% or 15%, I would be interested to see what the House thinks.
On financial controls, very strict limits should be applied on the notice of intent to recall. I cannot see that the process would merit more than a few hundred pounds being spent on it, and I certainly do not think it should be in the thousands. As I said, the regulations relating to financial controls in my amendments exactly mirror the controls in the Government’s Bill. I think they can be improved. I encourage the hon. Gentleman to have that argument with the Government, and I will back him up in doing so.
Mr Brian H. Donohoe (Central Ayrshire) (Lab)
How is the hon. Gentleman going to get the whole thing about the costs involved in doing this—£500, or whatever else—into an area that can be organised in such a way that it would be seen by all?
Zac Goldsmith
That is an interesting question. The structure of this place is such that those discussions could be quite difficult. The formal point at which we would be able to have them would be on Report. If my amendments are accepted, it would be for anyone in this House to table further amendments. If they want to do so with me and the Committee that I was part of, we can do that. I encourage the hon. Gentleman to get in touch with me—I am happy for him to do that—because this process should as open as possible. I will not dig my heels in on these matters, because they are not issues of principle but technical issues that can and should be addressed.
Crispin Blunt (Reigate) (Con)
My hon. Friend alluded to the example of his undertakings on Heathrow. Members of the party that joined the coalition made undertakings at the election about student finance, and then, in the interests of good government, swallowed hard, and will almost certainly take the pain at the next election for the breach of their promise to the electorate. However, they made a decision in the interests of the sound administration of the country, and they should be commended for that. They should be free to make those decisions, as we all should, when sound administration requires it. The problem with the amendment is that it works against decent government, which, overall, our constituents should expect of us.
Zac Goldsmith
I would give two responses. First, if we existed in a world where recall was possible, I suspect that the promises made before the last election would not have been made. In the context of a recall regime, we would have to be much more careful about the promises we made because we would know that we could be held to account after making and then breaking them.
Secondly, if circumstances require a broken promise—an abandonment of a manifesto pledge—in a system of recall, or, frankly, without it, it is incumbent on Members to go back to their constituents and explain why that promise had to be broken. In the case of the Liberal Democrats, I know that my right hon. Friend the Member for Kingston and Surbiton (Mr Davey) has spent a lot of time speaking to and engaging with students of all ages to explain why the U-turn was necessary. I can absolutely guarantee that whether or not he wins at the next election, he would not have been recalled on the back of what was a profoundly broken promise. My hon. Friend the Member for Reigate (Crispin Blunt) must have confidence and faith in his voters. Voters can see through these things.
Sir Edward Leigh (Gainsborough) (Con)
A lot of us are worried about my hon. Friend’s amendment because we do not want recall procedures to be started on the basis of the votes we cast here or of what we say. Has he seen the amendment in my name and that in the name of my right hon. Friend the Member for South East Cambridgeshire (Sir James Paice), which make it absolutely clear that no recall procedure should be initiated on the basis of how we vote or speak in this House? Would my hon. Friend be prepared to accept those amendments?
Zac Goldsmith
I have seen my hon. Friend’s amendment and I understand why he and my right hon. Friend the Member for South East Cambridgeshire have tabled their amendments, both of which say more or less the same thing. However, as I said a few moments ago, this is the line in the sand for me. I think we can trust our voters. When the Division bell goes, Members will have to decide whether they believe we should trust people with this power. As Members make their decision, I hope they will properly consider whether the arguments they have heard against recall—vested interests, an over-mighty press and a fallible public—are in fact arguments against democracy itself.
Mr Russell Brown
On Second Reading, the hon. Gentleman said:
“I suspect that every politician, at one point or another, would find themselves the subject of the 5% recall petition stage.”—[Official Report, 21 October 2014; Vol. 586, c. 793.]
That is how the process would begin, but the hon. Gentleman needs to differentiate between misconduct and wrongdoing and policy. As the hon. Member for Gainsborough (Sir Edward Leigh) has said, a process based on political party policy should not be allowed to begin.
Zac Goldsmith
My point about the 5% in Tuesday’s debate was that every constituency, without exception, will have one or two or a handful of people who will want to initiate the process. My point was that the 5% notice of intent to recall might well bubble away in constituencies up and down the country, but in a world where recall existed that is something to which we would become accustomed. If a petition began to reach the 3,500 mark in a one-month period, I would say that that would be a fairly good indication that the recall petition was merited in that constituency, for whatever reason it had been initiated.
Neil Carmichael (Stroud) (Con)
In signing this amendment I have signalled my support in principle of it, but I think it would be strengthened if the petition officer had before him a definition of what should represent justification for recall. He could then judge, at the very start, whether it was a case of hounding out or something less serious.
Zac Goldsmith
I would argue that that is exactly what the coalition Government have attempted to do, but they have failed. It is very hard to define wrongdoing by a Member of Parliament, because our jobs mean something different from constituency to constituency. Any number of Committees, my own included, have attempted to define wrongdoing by MPs, but it is almost impossible to do so. For example, an amendment tabled by the Liberal Democrats, with support from Members of other parties, suggests that an MP who engages in “gross dereliction of duty” would qualify for their new trigger for recall, but how is it possible to define the duty of MPs when there is no job description? Would that include an MP who never turns up to Parliament to vote? I suspect not, because if it did we would have a problem with Sinn Fein and open a whole can of worms that many Members would not want to open at this stage.
Those amendments are a complete waste of time because it is impossible to define wrongdoing. The only people who are qualified to define whether an MP is behaving well or badly and living up to expectations or not are the people that MP represents. That is why the protection needs to be in the threshold, not in the definition.
Mr Andrew Robathan (South Leicestershire) (Con)
I compliment my hon. Friend on showing enormous sincerity in moving his amendment. Will he explain exactly how this petition of 5% would work? I am so old that I remember studying the Chartists’ petitions, and their third petition in 1848—I was not there—was somewhat discredited by the fact that “Victoria Regina” had signed it, which was thought rather unlikely. “Mickey Mouse” often comes up in petitions. Of course, it would have to be a name and address in the constituency, but that is quite difficult to check, so could my hon. Friend please explain how that would work?
Zac Goldsmith
My right hon. Friend is right that that is difficult. Before I answer his question directly, let me repeat that this is the least formal part of the process and it is not covered by normal election rules. Yes, policing this process would be harder, but the promoter—a person has to deliver the 5% of names to the returning officer—would be bound by the criminal law in the same way that other elections are governed in this country. If the promoter deliberately included signatures of people who were not eligible to vote, double signatures, signatures of people who were too young or who were from other constituencies, or made-up names, that would be a very serious criminal offence. Could it ever happen? Of course it could. Does election fraud happen in constituencies? Of course it does. It is not possible to have a perfect system, but the protection is in the fact that the promoter would be bound by the criminal law.
Mr David Burrowes (Enfield, Southgate) (Con)
I congratulate my hon. Friend on tabling his amendments. The momentum for recall came from manifesto commitments focused on serious wrongdoing. Is it not possible to uphold the principle of letting the people decide, but to place parameters on serious wrongdoing—we will not define it ourselves, because it is not possible to be do so—to ensure that the people can decide what it is? Can we ensure that the focus of our principles and intentions is on that?
Zac Goldsmith
I thank my hon. Friend for his intervention. In fact, an open recall system of the sort I propose gives local constituents the power to decide what constitutes serious wrongdoing. For my part, I believe that it would not be abused by voters. They would be able to tell the difference between a disagreement on a simple policy issue or a frivolous mistake in someone’s private life and issues that are so serious they merit recall.
Jacob Rees-Mogg (North East Somerset) (Con)
I am honoured to be allowed to intervene on this brilliant speech by someone who actually trusts the voters. It seems to me that if all we are concerned about is wrongdoing, that is covered by the Standing Orders of the House, under which we are entitled to expel Members who do something of which the House disapproves. That makes the Bill as framed—without my hon. Friend’s excellent amendments—unnecessary. We should do the whole thing properly, or not at all.
Zac Goldsmith
Again, my hon. Friend will not be surprised to know that I absolutely agree. My concern is that many of the arguments against recall imply that, to paraphrase Lenin’s infamous dictum, democracy is so precious that it must be rationed.
Stephen Pound (Ealing North) (Lab)
I am extremely grateful to the hon. Gentleman not just for the Lenin quote, but for his extraordinary generosity in giving way. Will he just elucidate one absolutely straightforward point, not a great philosophical issue? The London borough of Ealing faces £87 million of cuts. Who would pay for this process? Will it be yet another impost on a struggling local government?
Zac Goldsmith
I believe that, under the Government’s Bill, the cost of the petition and the by-election would be borne centrally. My right hon. Friends on the Front Bench are welcome to intervene if I am wrong. The same would be true in the alternative that I am proposing. I have checked with Electoral Reform Services, which routinely conducts referendums, and I have been told that the cost would be £35,000 for a recall referendum. That works out at about 40p per person. If that is the price people have to pay for decent representation, I suspect that most people would regard it as a price worth paying.
Michael Connarty (Linlithgow and East Falkirk) (Lab)
The hon. Gentleman knows that on certain matters I admire his commitment. My problem is that the Bill has been advertised, particularly those using the 38 Degrees website, as a serious amendment to get rid of bad apples. The 38 Degrees document in fact says that people can have a recall for no reason: they do not have to state a reason. Will he clarify the confusion in the public mind? He plays fast and loose with the statement that anyone who opposes this is against democracy. Will he be quite clear that he does not support the idea of having a purposeless petition, or one in which the purpose is not stated, against a Member? We now have a situation in which the will of the Scottish people is quite clearly to stay in the Union, but we are being threatened—thank goodness, we can take it up at the general election—and under recall, his rule could be used to try to overturn the will of the people and to be anti-democratic.
Zac Goldsmith
This is a point of difference. I do not believe that voters will attempt to recall—and they certainly would not succeed in recalling—anyone who is not a bad apple. I do not believe that voters will remove people over a policy difference. I made that point earlier. The question comes down to whether or not the hon. Gentleman trusts the voters. It is as simple as that. I cannot guarantee that frivolous attempts will not be made—of course I cannot—any more than I can guarantee what will happen in his seat or anyone else’s at the next election. Democracy is unpredictable, but ultimately I have confidence that voters will make the right decision.
Gordon Banks (Ochil and South Perthshire) (Lab)
The hon. Gentleman has talked about many technical points, so may I offer him a technical point? Would it not add to the level of democracy if the names and addresses of everybody among the 5% or 20% were made available to the public, just as a marked register is made available after an election, so that everybody could see who they were?
Zac Goldsmith
That is an interesting debate to have. Instinctively, I would be reluctant to go down that road, because I do not think that people should have to declare their vote. I do not believe that any amendments to that effect have been tabled to the Bill or to my amendments, but we could have that debate on Report. I take the hon. Gentleman’s point on board.
Zac Goldsmith
I have allowed too many interventions and I want to come to an end to allow other people to take part.
Regardless of their views on recall, I hope that Members will at least acknowledge that something has gone wrong with our politics. The question is what we should do to fix it. Surely the Government Bill—this desperate pretence at reform—is not the answer. Its every clause betrays a lack of confidence in voters, with or without the feeble Government amendments—the last-minute tweaks of the last couple of days. If we as a Parliament are so untrusting of our fellow citizens that we refuse to allow them even the remotest opportunity to hold us to account, other than twice a decade, we will merely confirm their low opinion of us. We should think the best of our voters, demonstrate our confidence in their moderation and good sense, and enact a true recall Bill.
Thomas Docherty (Dunfermline and West Fife) (Lab)
It is a pleasure to serve under your chairmanship, Mr Amess.
I will speak first about the clause as it stands. I will then explain the purposes of the Opposition amendments and set out our view of the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith) and others. Finally, I will briefly address the amendments tabled by the hon. Member for Somerton and Frome (Mr Heath) and others. Later in the debate, when the arguments have been set out more fully, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) will make another contribution to sum up our position.
I want to place on the record Labour’s support for the principle of recall when an elected representative’s conduct falls well below the standards that Parliament and their constituents expect. That is why our manifesto in 2010 promised to introduce recall legislation and why we supported the Bill’s Second Reading last Tuesday. We made it clear during that debate that we would table amendments to strengthen the Bill. Before I turn to the amendments that we have tabled, as promised, I will talk briefly about the Standards Committee, which recommends the suspensions from the House that could trigger a recall.
The Opposition agree with those inside and outside Parliament who believe that we must reform the Standards Committee in order to build public trust. Although amendments on the Standards Committee were not within the scope of the Bill, I want to place on the record the Labour party’s support for a radical overhaul of the Committee. That would include the removal of the Government’s majority and an increase in the role and authority of its lay members. We propose that at least half the Committee should be lay members and that the Chair of the Committee should not be a Member of Parliament. I note that the right hon. Member for South Cambridgeshire (Mr Lansley), who was the Leader of the House for two years, has backed changes to the Standards Committee. If his comments are indicative of a wider view on the coalition Benches, let us move swiftly to build cross-party support for reform of the Standards Committee.
We tabled four of the amendments that are being considered today and I will set out how each of them would strengthen the Bill. Amendment 45 seeks to amend the threshold for recall that relates to suspensions from the House of Commons. The Government propose that MPs will have to be suspended for more than four sitting weeks or 28 calendar days for the threshold to be reached for recall petitions. According to the excellent research services of the House of Commons Library, it appears that that threshold would have been met on only two occasions over the past two decades, and that no one found guilty during the cash for questions scandal received a sufficiently long suspension to meet the Government’s proposed threshold.
Labour believes that that is not acceptable and therefore proposes the halving of the threshold figures. We are clear, however, that we should not lower the threshold to such a level as would merely allow vexatious and mischievous claims. In addition, we must recognise that parliamentary dissent is part of our democratic heritage, and a Member who is standing up sincerely for their beliefs should not find their right to protest compromised by unnecessary recall petitions. None of those who were suspended for protesting in the Chamber—unless they were serial repeat offenders—would be caught by our amendment. Therefore, we believe that it strikes the right balance of strengthening the right to recall without jeopardising parliamentary democracy.
John McDonnell (Hayes and Harlington) (Lab)
May I be absolutely clear on this? Is my hon. Friend saying that there could be a cumulative number of days and number of suspensions—I take this as a matter of personal interest?
Thomas Docherty
I am most grateful for my hon. Friend’s intervention. We are clear—I look to the Minister to clarify this when he responds—that it is a case of suspension, not a running total, although one hopes that we will not see my hon. Friend too near to the Dispatch Box and the mace in the near future.
Mr Jim Cunningham (Coventry South) (Lab)
Earlier, my hon. Friend touched on a point that the hon. Member for Richmond Park (Zac Goldsmith) never really cleared up because he did not distinguish between malpractice, bad practice and criminal activities, and political activities. That is the weakness in his amendment—it does not distinguish between the two and we could end up with a recall because of someone’s political opinion in the Chamber or outside. Does my hon. Friend agree?
Thomas Docherty
I am grateful for that intervention, and my hon. Friend spoke very well last week when he pointed out, and Labour Members agree, that we are representatives, not delegates, in this place. That is an important principle, particularly for those of us in the Labour movement. He is entirely right—I will come to this later—that the basis for recall should be wrongdoing and someone’s conduct, not the causes that they support.
Richard Fuller
The hon. Gentleman said earlier that he wanted to stop the public having this choice to avoid vexatious or mischievous recall petitions. Does he believe that Members would be subject to that because the public are not smart enough to understand what is mischievous or vexatious, or that they would be too open to manipulation as the result of a recall petition?
Thomas Docherty
The hon. Gentleman was slightly misinformed about what I said. We believe that the people of Dunfermline and West Fife are very smart: they sent me to the House of Commons and voted no overwhelmingly a few short weeks ago.
Jonathan Edwards (Carmarthen East and Dinefwr) (PC)
Further to the intervention from the hon. Member for Bedford (Richard Fuller), is the problem with the Labour party’s position that it would essentially put power of recall in the hands of a Westminster Committee, whereas other amendments would put power in the hands of the people?
Thomas Docherty
I appreciate that this might be a novel concept for some Members of the House, but Labour is sticking to what its manifesto said. We said in our manifesto that we would support recall for those who have committed wrongdoing. That is what we are proposing tonight, and that is what our amendments seek to strengthen.
Thomas Docherty
I will make a little progress if I may. Amendment 47 relates to MPs who have fiddled their expenses.
Chris Heaton-Harris
Surely amendment 45 puts even more pressure on the Committee that decides on suspensions because it knows that the threshold has been reduced from what the Government propose—28 days, or whatever—to 10 days. I would much rather leave it to the people, but in my opinion we would be putting pressure on the Committee that would make the judgments, and any punishment would therefore fall the wrong side—or the right side for the hon. Gentleman—of those 10 days.
Thomas Docherty
I have a great deal of respect for the hon. Gentleman, but I struggle with his logic. Does he trust the independent Standards Committee? As I said a few moments ago, it would be genuinely independent and would have a majority of lay members. A Member of Parliament would not chair it. If he does not believe that an independent Committee can judge fairly and rationally the bad conduct of his colleagues, I am not sure what his faith in the system would be.
Thomas Docherty
I am going to make progress—many hon. Members wish to speak.
As I have said, amendment 47 relates specifically to MPs who have fiddled their expenses. It is worth noting that since the introduction of the Independent Parliamentary Standards Authority not one MP has been caught trying to abuse the new system. The cases that have come to light in this Parliament have related to the last vestiges of the old, discredited system. Nevertheless, it is crucial that Parliament listens to the concerns of the public to ensure that if a Member of Parliament is found to have abused the new system a suitable course of action is available. That is why the amendment would ensure that, when the IPSA compliance officer finds that an MP has committed a serious breach of the rules, and the MP is convicted of making a false expenses claim, they will be subject to recall.
Some colleagues might question why the Opposition have singled out expenses for qualifying for recall, even when a non-custodial sentence is given. Labour Members believe that a flagrant misuse of public funds by an elected representative is unacceptable and that extraordinary measures are required. We hope that MPs in other parties agree with that principle.
Bill Wiggin (North Herefordshire) (Con)
I have listened carefully to the hon. Gentleman’s points. Everything he has said points to a proper judicial process rather than an internal one. Would his supporters prefer that?
Thomas Docherty
That is why we have set out that there should be three routes to recall. Hon. Members will know that the occasions on which recall should be required will be very few and far between, but the hon. Gentleman is right that we are proposing three methods of recall. For the benefit of the Committee, it is worth capturing them again.
Thomas Docherty
Let me finish dealing with the earlier intervention.
The first criterion is that a Member of Parliament is convicted and given a custodial sentence. The second is that they have received a suspension from the House for a specific period—amendment 47 tackles that. The third is that a Member is found to have fiddled their expenses and receives a conviction. Those are three clear examples of wrongdoing. None of them is about how a Member votes in the House, their views or other such behaviours. That is the difference between the Opposition and the hon. Member for North Herefordshire (Bill Wiggin).
Mr Davis
The fact that the hon. Gentleman proposes three different methods does not solve the flaw in the central method, which is that a Committee of the House will make a ruling. If the ruling is, in effect, a career capital punishment for a Member of Parliament, the decision should be judicial. I am sorry, but no lay Committee and no Committee of the House is equipped to make such a decision. It must be judicial.
Thomas Docherty
I am genuinely not sure I follow the logic of the right hon. Gentleman’s position.
Thomas Docherty
To be fair, the Prime Minister could not follow the right hon. Gentleman’s logic when he was a member of the shadow Cabinet.
To reiterate the Opposition’s position, recall must be based on a measure of wrongdoing. It cannot happen just because a group of constituents, or a well funded vested interest group, seek to remove a Member of Parliament because they disagree with them.
Chris Bryant
My hon. Friend is trying to grasp a complicated matter. The Bill of Rights makes it absolutely clear that no proceeding in Parliament should be questioned or impeached by any court of law or any other place. Unless we change the Bill of Rights, it seems difficult to allow a court or another body outside Parliament to judge what a Member may or may not have done in the proceeding in Parliament. Does my hon. Friend’s proposed Standards Committee, which he wants to make more independent, meet that same rule?
Thomas Docherty
With your indulgence, Mr Amess, perhaps I may spend 30 seconds on the issue of parliamentary privilege. In part, the Standards Committee is outside the scope of the Bill, because it would remove the exclusive cognisance of the Committee, and it would be open to judicial review, either by the complainant or the Member of Parliament if either party was unhappy. As the learned and knowledgeable Clerk sitting close to you, Mr Amess, will agree, there are already some exceptions to the issue of privilege, such as the Register of Members’ Financial Interests. The register is not covered by parliamentary privilege, so if a Member makes a declaration, the courts are able to use that as evidence in criminal proceedings, as I think happened a few years ago—my hon. Friend the Member for Liverpool, West Derby will probably be able to tell me which case it was. My hon. Friend the Member for Rhondda (Chris Bryant) is right: we have to be careful that we do not end up creating endless litigation that would result in far greater frustration for our constituents and the parliamentary process.
Jacob Rees-Mogg
The hon. Gentleman will recall that the Procedure Committee discussed the question of lay members of the Standards Committee voting and concluded that if they did have votes, they would be outside privilege. Therefore, there is a real difficulty in having voting lay members on any Committee of Parliament.
Thomas Docherty
The hon. Gentleman will recall that the Committee was not unanimous on that matter. That is why we are offering to work on a cross-party basis—I see that the Deputy Leader of the House is in his place—away from the Bill, on a reformed Standards Committee that will genuinely command the confidence of the public and the House and also meet our constitutional requirements.
Amendment 46 relates to the issue of whether only offences committed after this Bill comes into effect should be subject to recall. That appears to be the case as the Bill stands. As an example of the problems that would create, let us take the case again of Bill Walker, the disgraced former SNP MSP. It was only after he was elected that it came to light that he had, over a 30-year period, repeatedly assaulted four members of his family. He was subsequently tried, convicted and sentenced to a year in prison. However, as the Bill stands, had Mr Walker been an MP, he would not have been covered by the recall provisions. Of course, the recall provision should not apply if the electorate are aware of a previous conviction when electing a Member of Parliament, but it surely cannot be right that if an historic offence comes to light and a conviction is then forthcoming, voters cannot remove and replace that convicted politician. We hope that the Minister will recognise that important oversight in the Bill and work with us to tidy it up through this amendment or on Report.
Amendment 49 deals with offences committed by MPs who also hold other elected offices. Although the Bill is so narrowly drawn that we cannot extend its provisions to other elected posts, we think that it is at least sensible to extend it to cases in which MPs hold a dual mandate. Let us use as an example a hypothetical case in which an MP is also a councillor. If that MP is found guilty of a breach of the councillors’ rules, such as interfering inappropriately with a constituent, and suspended for a certain period, it would be bizarre if they could not be recalled by their constituents as an MP.
Our amendments are designed to strengthen the Bill. They seek to strike the right balance between protecting parliamentary protest and ensuring that MPs who commit wrongdoing are held to account. They would widen the scope for recall and lower the threshold to ensure that genuine wrongdoing does not go unpunished. I hope that they will command support on both sides of the House.
I want to turn briefly to the amendments in the name of other hon. Members, and to turn first to the amendments in the name of the hon. Member for Richmond Park. He has campaigned on this issue since he was first elected in 2010 and held consistently to his views. We are concerned, however, that he has not been able properly to define wrongdoing, despite being pressed to do so not just in Committee today and on Second Reading last week, but on many previous occasions. The dangers associated with not having a requirement to demonstrate any wrongdoing are clear: a well-funded campaign group or vested interest would be able to remove a Member of Parliament simply because it disagreed with his or her views.
Zac Goldsmith
The hon. Gentleman is right that I have not been able to define wrongdoing, but neither has anyone in the Committee. All he has been able to do is create thresholds that demonstrate certain elements of wrongdoing, and one falls into terrible difficulties when one tries to do that. For example, reducing suspension from 21 to 10 days would have meant that the right hon. Member for Yeovil (Mr Laws) would not have fallen foul of the provisions, despite the fact that many people think he probably should have, whereas the hon. Member for Bradford West (George Galloway) would have fallen foul of the provisions even though his crime was not apologising for impugning the honour of certain Members of this House. We may not like it, but that is hardly a recall offence. The trouble with the mechanism that the hon. Member for Dunfermline and West Fife (Thomas Docherty) is introducing is that it will have a perverse outcome, not a democratic outcome.
Thomas Docherty
Opposition Members disagree. We believe that there is a clear measure. If someone is convicted of a criminal offence and sent to prison for a non-expenses-related offence, that is clear wrongdoing. I appreciate what the hon. Gentleman says about struggling to define wrongdoing, but he seeks simply to blow off the doors for recall.
Zac Goldsmith
I am struggling to define wrongdoing, but I challenge anyone here to define wrongdoing in a way that would genuinely capture wrongdoing by MPs. It is simply not possible. My argument is that it is not necessary because we have a jury out there: they are called constituents and we can rely on them. My concern is that even with a relatively straightforward threshold such as jail, there could be perverse outcomes. For example, the hon. Member for Brighton, Pavilion (Caroline Lucas)—I apologise for bringing her into this—could have been sent to jail for two or three days for her role in a protest against fracking. I have no doubt that she would have been welcomed as a hero by her constituents for doing so, but under the hon. Gentleman’s mechanism and under the Government’s mechanism just 10% of her constituents could have thrown her out of Parliament. Yes, she may have been able to claw back in through a by-election, but I suggest that a situation where 10% of the people can throw her out of Parliament and make her lose her job on the back of something most of her constituents would appreciate, is another example of a perverse outcome.
Thomas Docherty
I am grateful to the hon. Gentleman for his second speech so early on. I do not disagree that there is a particular issue—I, too, apologise to the hon. Member for Brighton, Pavilion—in relation to parliamentary protest. I am not saying for a second that this relates to the hon. Lady, but the Opposition have been struggling with the question of when knocking off a policeman’s helmet is an act of civil disobedience and when it is an act of assault. That is why we are not getting in the way in trying to subdivide an act. As the hon. Gentleman says, the decision is for any Member’s constituents to make.
As the impact assessment states, even under the Government’s system, which as we have already stated is relatively modest, the cost to the taxpayer of both the recall petition and the by-election would be £300,000. I am slightly perplexed about where the Electoral Reform Society got its figure of £35,000. A sum of £300,000 is to most of us real money and there is a real danger that, without any control over the grounds of recall, not only would the system be open to abuse by well-funded special interest groups that dislike how an MP has voted in the House, but the cost to the taxpayer would be astronomical.
Michael Connarty
I asked the hon. Member for Richmond Park about definition, but he did not come back to me. I notice that in new clause 1, which he has tabled, there is no need to define the purpose of a recall petition at all—a petition can be called for no reason. He has tried to rescue himself by seconding new clause 2, which asks for a clear definition. The confusion is that he is mixing up populist politics with good jurisdiction. It is clear he is playing to a crowd that is basically following the 38 Degrees argument, which is that a recall can be called without stating any reason. Of course, that undermines the whole purpose of jurisdiction and having a recall Act.
Thomas Docherty
I am most grateful to my hon. Friend. The hon. Member for Richmond Park has been struggling for four years to come up with a workable definition. The reality is that a failure to do so does not give us a pass to proceed without a definition. We are deeply concerned that these provisions would be open to vexatious challenges.
Sir James Paice
I am following what the hon. Gentleman is saying very carefully. He is right that nobody has managed to define wrongdoing. Does he not accept, however, that the two different amendments tabled by my hon. Friend the Member for Gainsborough (Sir Edward Leigh) and I have in their own way sought not to define wrongdoing but to exclude certain issues relating to freedom of expression, which we will come on to later? Rather than defining wrongdoing, we could make exceptions to what is clearly not wrongdoing.
Thomas Docherty
My hon. Friend the Member for Liverpool, West Derby will touch on that point and on points made by the right hon. Member for Somerton and Frome and others.
Thomas Docherty
I want to make some progress. I have been on my feet for a significant period and perhaps longer than some of my colleagues would wish.
Without a clear definition or threshold to demonstrate wrongdoing, the amendments, however well intentioned, open the door to abuse. Furthermore, as the hon. Member for Richmond Park has admitted, he has provided no spending limits for his system, further raising the spectre, as we have heard, of US-style recall petitions. Those on the Labour Front Bench are clear. We support giving the public the right to recall their MP on the grounds of misconduct. We do not support recall on the grounds of how an MP votes. That would have a chilling effect on freedom of speech and limit the ability of MPs to represent their constituents effectively. We urge MPs to reject the amendments, because they do not provide robust safeguards. However, we recognise the diversity of opinion across the House and hope that our debate this afternoon might help us to find a way forward.
Zac Goldsmith
I would like the opportunity to put the record straight. I did not say that we had no financial controls attached to the amendments. On the contrary, we want all the controls in the petition stage to apply throughout the various stages in the Bill, so that the regulations provided by Government would be mirrored on the notice of intent to recall, on the recall petition and on the referendum itself. As I have also said, it is up to the hon. Gentleman and other Members to come forward with other ideas for further tightening the regulations to prevent abuse. I am sure that would meet the approval of the whole House.
Thomas Docherty
I am grateful to the hon. Gentleman, but I say very gently that he is seeking to amend the Government’s Bill and is then asking the Government to come up with suitable amendments to his amendments. That, I am afraid, is not how it works. Perhaps in a few months’ time he will be sitting on the Opposition Front Bench—we do not know what Boris will do—but he is not on the Front Bench at the moment. It is not for other people to come up with amendments that tidy up amendments tabled from the Back Benches.
Thomas Docherty
I will give way to the hon. Lady, because I have taken her name in vain on more than one occasion.
Caroline Lucas
The hon. Gentleman did take my name in vain and for the record I am very glad to be able to put him straight that I have never, ever knocked a helmet off anybody, much less a policeman. With respect, I think the arguments he is making are spurious. The amendments described by the hon. Member for Richmond Park are already in the Bill. Amendment 23 is also very helpful when it comes to regulating the amount of money we are talking about. Frankly, the idea that this is something cooked up by 38 Degrees is such an insulting suggestion. The hon. Member for Richmond Park and many more of us have been working on this issue for many, many years.
Thomas Docherty
I hope the hon. Lady will accept that I did not mean to imply that she had knocked off a policeman’s helmet. On her main point, I must say that simply working on something for a long time does not in itself solve the problem. I have been working for some time on trimming down but have not made enough progress; that does not mean I should simply stop and say it has been accomplished.
Mr David Heath (Somerton and Frome) (LD)
It is a pleasure to follow the hon. Members for Dunfermline and West Fife (Thomas Docherty) and for Richmond Park (Zac Goldsmith). I want to speak principally to the amendments in my name and those of other hon. Members on both sides of the House who have been kind enough to add theirs—amendments 42, 43 and 44 and new clauses 6 and 7—but first I want to welcome the Bill, which delivers on a manifesto commitment from at least three of the parties represented in the House. The other parties must forgive me as I do not know whether it was in their manifestos.
Mr Heath
The hon. Lady nods her head.
I am pleased that our commitment is finally being honoured. In government, I was frustrated at the time it took to get something before the House, and I think it is an open secret that I would have preferred it to have gone slightly further than the Bill before us, but nevertheless it is exactly in line with what those parties said they wanted and what they put to the people. I hope, therefore, that we can get away from this false dichotomy between a real recall Bill and a bogus recall Bill. This is not a bogus recall Bill, but it is one that could be strengthened, and that is exactly what we should be focusing on.
I think we might need to look at the constitution of the Standards Committee. As a former member of the old Standards and Privileges Committee, I think there is scope for changing the membership of the Standards Committee, although I would make one caveat about the voting rights of members. That point was covered in a Green Paper on privilege that I produced as Minister but which I do not think anybody read, apart from—possibly—the hon. Member for Dunfermline and West Fife. Either way, it was obviously minority reading, given that so many people since have commented from a position of sublime ignorance on the subject of privilege. Nevertheless, there are issues to consider and in principle I agree that we should reform the Committee.
We should not kid ourselves, however, that any Committee of the House will have the confidence of many members of the public. That is why I want a mechanism that provides the public with direct access to this process and which is not mediated by a custodial sentence or the decision of a Committee of the House. I am sorry but there is no way such a Committee could be seen as anything other than an old boys’ club. I winced slightly when I heard my constituency neighbour, the hon. Member for North East Somerset (Jacob Rees-Mogg), who is not in his place, refer to the capacity of the House to expel Members. This is not a gentlemen’s club. Can we please get away from the Victorian idea that we make the rules and deal with things? Our electorate has a right to be engaged in this process.
Kevin Barron (Rother Valley) (Lab)
Does the hon. Gentleman agree that the Standards Committee, whose lay members are denied a vote by the House, does nothing more than report to the Floor of the House? It is not a Committee that sits upstairs and comes to these decisions. The decision about whether somebody is guilty of misconduct—I have spent three years trying to find out exactly what that means—would be taken on an amendable report on the Floor of the House.
Mr Heath
The right hon. Gentleman is absolutely right, but that does not alter the fact that the public will not believe that any mechanism mediated by MPs, either in Committee or on the Floor of the House, is not going to protect MPs. I do not think it a fair criticism, but that prejudice is now impossible to remove, so let us accept it.
I want to find a new way to give the public access to the recall process. As was clear from the exchanges between the hon. Member for Richmond Park and the Labour spokesman, we are talking about behaviour that our constituents cannot accept, rather than views with which they disagree. As I think he knows, I have a lot of sympathy with much of what the hon. Member for Richmond Park is trying to do, and I accept his point about 20% being a difficult level to achieve—somebody would really have to incense their constituents—but I do not accept that 5% would be difficult to achieve for a well-funded campaign or even a political opponent who has lost an election and wants an immediate rerun. He blithely says, “Of course, all Members would probably have a petition process against them”, but that is not a satisfactory position for Members to be in. If someone wants to do radical things in the House and represents a socially conservative constituency, they will face problems of this kind. It does not take much to get 3,500 people to say they do not support gay marriage or some other policy on which we have legislated. I want to concentrate, therefore, on genuine misconduct.
Sir Edward Leigh
It could be the other way round—a social conservative could be attacked by more liberal constituents—but I agree with everything the hon. Gentleman has said. I presume he is in favour of the amendments from me and my right hon. Friend the Member for South East Cambridgeshire (Sir James Paice) providing that no process could be started based on votes cast or speeches made here. Is he in favour of what we are trying to do?
Mr Kevan Jones
Does the hon. Gentleman agree that the threat of recall would have an effect on MPs? In the United States, a lot of people who face a recall just resign. The hon. Member for Richmond Park (Zac Goldsmith) contended that the support of 50% plus one of voters would be required for a successful recall, but that is not the case; it would only require 50% plus one of those taking part in the referendum.
Richard Fuller
My hon. Friend just said that the threshold of 3,500 voters or 5% was low, and used the example of gay marriage as an issue on which a petition could easily be secured. Will he explain to the Committee how that would be so wrong for democracy? What would be so wrong for me, as the hon. Member for Bedford, to have to go back to my constituents under the threat of a potential recall because of something I had said in the House? I cannot understand what the problem with that would be.
Mr Heath
The hon. Gentleman might take a different view, but my personal view is that the general election process is where these things are decided, not on a single issue, but on the performance of the Member and the plurality of views that are expressed. To have a form of Athenian democracy in this country, where we have constant voting and constant re-election, does not seem to—[Interruption.] The hon. Member for Clacton (Douglas Carswell) is burbling from a sedentary position, but I do not think his party had anything about recall in its last manifesto, so perhaps he needs a further recall now, because if he votes for a recall provision this evening, he will be breaking his election pledge not to have one; I do not know.
Let us move on. I personally do not think that what the hon. Member for Bedford (Richard Fuller) described is in the interests of the sort of representative democracy that we have always enjoyed in this country. However, I do think—I feel this very strongly and have argued it passionately, both before the election and since—that we need to find a way of capturing those examples of misconduct that are not necessarily caught by the criminal law and might not attract the attention of the Standards Committee, or, even if they do, where the public do not accept that as a mechanism.
Geraint Davies
Does the hon. Gentleman accept that the constant threat of recall, particularly for those in marginal seats, might be intimidating and lead parliamentarians to champion popularity over principle, which would corrupt the democracy in which we live?
Mr Heath
I do think that is a recipe for “populism”—in the worst sense of the word—and that it is open to abuse. It is a naive view that it would not be abused by those with deep pockets and strongly held views. It would be, and I do not believe that is necessarily in the interests of parliamentary democracy as we understand it.
To return to misconduct, several Members have rightly said that it is difficult to define the misconduct that we are talking about, so I looked around for an objective test of whether somebody had behaved improperly. I found that in England there is such a test, which many Members will be familiar with. English and Welsh law has the common-law offence of misconduct in public office, which is often used against public officials—most commonly against police officers nowadays, but also against council officials or others in the public service, including occasionally civil servants. The offence is understood by the courts and has been in existence for a long time—since 1783: Rex v. Bembridge, if anyone wants to look up the start of the offence.
If it helps the Committee, I will give a simple definition. Actually, nothing is simple in this area, because it is open to interpretation, but the legal definition—the working definition for the moment—of the offence is where somebody
“wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification”.
To an extent, therefore, it is a catch-all offence to deal with people who behave improperly. I felt that it might serve as an appropriate trigger for the public to have recourse to the system without having to go through the other mechanisms.
Zac Goldsmith
The right hon. Gentleman describes the offence as a catch-all, but the advice that I have had—I have sought advice on this—is that it is a catch-virtually-nothing-at-all. The Crown Prosecution Service has issued guidance saying that it should apply
“only where…the facts are so serious that the court’s sentencing powers would otherwise be inadequate”.
The House of Commons Library says:
“There are few prosecutions, suggesting that action is taken only when misconduct is particularly gross”.
And the courts have said:
“The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice”.
Is the right hon. Gentleman really adding anything at all to the Bill?
Mr Heath
Yes, I think I am, for two reasons. First, I do not accept what the hon. Gentleman has just said, because the offence is actually quite frequently used nowadays in the courts of England—we are talking about more than a dozen and towards 20 cases a year. In fact, there was one only last week, when a senior police officer was indicted for the offence. Secondly, the reason the offence is not used against Members of Parliament at the moment is, of course, the potential difficulties with the Bill of Rights—I need to move on to that, because that is one of the difficulties.
Lady Hermon (North Down) (Ind)
I am most grateful to the hon. Gentleman for allowing me to intervene. He will of course know that the Bill as drafted extends to Scotland, England, Wales and Northern Ireland, but his amendment extends only to England and Wales.
Lady Hermon
Oh, so it extends throughout the whole of the United Kingdom? It would be helpful if the hon. Gentleman could confirm that and give some examples.
Mr Davis
This is meant to be helpful. In the several cases of misconduct in public office that I have had to deal with, the charge has been used because, really, there was nothing else that would catch the offence that had been created by the public official. I am sympathetic to the hon. Gentleman’s argument; the problem is that there is very little in the way of proper precedent that tells us what the offence really means. It seems to me that that is a very bad basis for any law at all.
Mr Heath
It is difficult, and as the right hon. Gentleman probably knows, the common law offence of misconduct in public office has been subject to scrutiny over recent years. Indeed, the Law Commission is studying it right at this moment to see whether it could be put on to a statutory basis, which might provide a better definition. Curiously enough, however, one of the attractions of the offence for this purpose is its lack of definition, because all I am trying to do is define the things that fall short of fraud, assault and battery or whatever, but that nevertheless clearly constitute improper behaviour in the conduct of a Member of Parliament.
What I am seeking to do is put the matter in the hands of the public, not MPs, so that there is a third trigger in the process. I am trying to ensure an objective test, which is applied in two ways. First, misconduct in public office is a recognisable offence. Notwithstanding what the right hon. Member for Rother Valley (Kevin Barron) said, it is one that the English courts understand—I will come back to the problem with the other jurisdictions in a moment. Then, using a court that is understood—the election court, which is established under the Representation of the People Act 1983, which provides for two High Court judges in England and Wales, two judges of the High Court of Northern Ireland or two judges of the Court of Session in Scotland—the matter would be assessed.
That would put Members of Parliament in the same position as other public servants, which is an important signal in itself. Notwithstanding the need for protection under the Bill of Rights, I do not see why we as Members of Parliament should not be in a different position from other public servants in other respects. I have also drafted my amendments so as to automatically provide a filter for claims that are trivial, vexatious or clearly simply party political in nature, rather than genuine claims of misconduct.
What are the difficulties with my proposal? There are two really big drafting difficulties that I encountered in trying to put it together. I think I am reasonably adept at drafting parliamentary amendments, but I have to say that these were significant problems. One problem is exactly the point that the hon. Member for North Down (Lady Hermon) made. We are talking about English common law and there is not a directly comparable offence of any kind in Scotland. I looked in vain for a common law offence in Scotland, and the nearest I could find was breach of duty, which is not the same as the common law offence in England. That is why there has to be a slightly, I would say, circumlocutory approach—perhaps that is not the right expression, but it is certainly complex—in that the courts would be asked to adjudicate on the offence as though it were committed in England, irrespective of where it was committed by the Member. I accept that that is a difficulty, and I would like better constitutional lawyers than I am to have a look and find a more elegant way of achieving the same objective.
Chris Bryant
It seems to me that there is another problem. The Crown Prosecution Service says clearly in its guidance on misconduct in public office:
“The suspect must not only be a ‘public officer’”—
not as straightforward to define as it seems—but that
“the misconduct must also occur when acting in that capacity.”
When does an MP act in the capacity of an MP except when proceeding in Parliament, which is the one thing that the hon. Gentleman wants to preclude?
Mr Heath
That is another precise difficulty in the drafting that I foresaw. If the hon. Gentleman looked at my new clause—there are so many tabled in the name of the hon. Member for Richmond Park (Zac Goldsmith) that I cannot find it at the moment. [Interruption.] Yes, new clause 7, which states:
“The court may consider such conduct whether or not it is committed in England and Wales, and whether or not it is committed directly in carrying out the office of member of parliament.”
In other words, it deals with the Member of Parliament irrespective of that hazy definition of what the terms of contract of MPs are. I accept that this is a difficulty, however, and I do not want to pretend anything other than that these are difficult issues. I hope the Committee will accept that this is a genuine attempt to find a solution to a very difficult problem.
John McDonnell
I commend the hon. Gentleman for the struggle he has entered into. Let me provide him with this practical example that occurred in my constituency in the 1980s. Statements were made in this House that we considered to be of a racist nature, and we thought that they would have been prosecutable if they had been made outside this place. The individual, however, was covered by parliamentary privilege, so was not brought to book. He could only have been brought to book if there had been a right for the electorate to trigger a recall.
Mr Heath
That is the other major drafting difficulty. I do not believe it would be right for me to put something before the Committee that accidentally repealed the Bill of Rights. I think the Bill of Rights provides important protection to Members. My proposals skate on the very edge of what counts as parliamentary privilege and what does not. If the words had been uttered here, they would not be covered by the recall procedure, but I do not think they should be covered by that procedure rather than by having a general election. That is my answer.
What mechanism am I proposing? It is for 100 electors from the constituency—[Interruption.]
Mr Heath
Thank you, Mr Amess.
I am proposing that 100 constituents—I deliberately kept the number low—can petition and make a claim of misconduct to an electoral court. That election court will then receive submissions relating to that claim or petition and will receive any rebuttal from the Member of Parliament concerned. The court will be asked not to find guilt—that would provide the difficulty over the clash with the Bill of Rights—but rather to certify that a prima facie case of misconduct has been made. The recall process would be triggered and it would then be for the electorate to decide. The jury would be, as was said earlier, the electorate, and they would decide whether they felt that the case was sufficiently proven and that they would no longer be prepared to accept the individual as their Member of Parliament. The recall process would then proceed.
Is my new clause a perfectly formed amending provision? I do not believe it is because of the very serious drafting issues I have mentioned. If, however, the Committee’s view is that misconduct should be captured, but thought and speech should not be captured, my new clause provides a potential mechanism for doing so. I hope to hear from the two Front-Bench teams—to be fair to the hon. Member for Dunfermline and West Fife, I have partially heard it already—that they are prepared to take the provisions away, talk to people much more learned in the law than I could be as a layman, try to provide a workable mechanism and then lay the proposals before the House on Report. It is essential to crack this nut of public access to the system. That is what I want to achieve. I will support the Bill irrespective of whether it contains a further trigger, but I would very much like to see a mechanism that gives the general public access to something that is currently exclusively the preserve of this House if not through custodial sentencing.
Mr David Davis
Before he concludes, I would like the hon. Gentleman to address two issues that can be seen in the central turmoil of the debate. The first is the trigger of 100 people. That is not a large number to get together, raising the risk of continuous vexatious references. How would he overcome that problem? Secondly, when the outcome is a finding against the Member by the electoral court, is that a 10% test, as in the Government’s proposals, or a full referendum test as suggested in the proposals of my hon. Friend the Member for Richmond Park (Zac Goldsmith)?
Mr Heath
The first point is explicitly covered in new clause 7(6), which states:
“If the court considers, on the basis of such evidence, that the allegation of misconduct is—(a) not supported by the evidence; or (b) trivial or vexatious in nature; or (c) brought for party political purposes; then the court must dismiss the petition.”
That is the filter that prevents people from bringing vexatious charges time and time again. In extremis, of course, the courts have the power to award costs if they feel that the same allegations are being brought forward again and again inappropriately.
On the second point about the threshold, my proposal is that this should act as a further trigger to the Government’s proposed mechanism. I am perfectly open, however, to discussion over whether a better and more appropriate threshold could be applied—both in terms of the original complaint and of the petition process. I do not have strong opinions on this; I would like to talk to others and see if a consensus could be reached.
Kevin Barron
Would the decision of the election court be challengeable? In other words, if someone were found to have been involved in misconduct, could they appeal against it, bringing an element of fairness into the procedure?
Mr Heath
My new clause is constructed in such a way that there would not be an appeal process because the court would not find on matters of guilt. It would find only on the prima facie case in the same way as a magistrates court when it sends an offence for trial at a higher forum. The electorate of the constituency are the court of appeal as well as the court of indictment, which seems to me appropriate.
Zac Goldsmith
One of my points was half-addressed earlier when the hon. Gentleman suggested that one of his arguments against the notice of intent to recall, which we are proposing, is that it would be awkward and inconvenient for MPs to have this bubbling away. However, the same arguments apply even more so to the fact that only 100 people could get headlines in the local papers such as “Misconduct Charges brought upon MP”—even if the attempt was vexatious. There is more room for that sort of mischief in the hon. Gentleman’s proposals than there are in my amendments. However, I have a question for him about the “gross dereliction of duty” in his new clause 7. How is it possible to find an MP guilty of gross dereliction of duty when there is no job description? Would this apply to an MP who refused to come here to engage, debate and vote, as is the case with some parties?
Mr Heath
If a Member of Parliament is elected and fails to carry out even the basic duties of a Member of Parliament, that Member of Parliament will, in my subjective view, be guilty of a dereliction of duty. If the hon. Gentleman is referring to the number of Irish constituencies represented by Members who have not taken their seats, I think, judging by the electoral history, that a recall procedure would be unlikely to succeed in the long run, simply because people would elect those Members again in the full knowledge that they would not take their seats.
There was a famous Member of Parliament who decided to go and run a pub in Northern Ireland, and did not attend the House of Commons for a very long time. I think that he was eventually persuaded to do so by inducements offered by the then Government, who were rather short of voting power at the time. It may be that his constituents were perfectly content with that position, but I think that it should at least have been argued that he was failing in his duties to the electorate and to the House.
Thomas Docherty
I intervene merely to seek more information. Will the right hon. Gentleman tell us what the scale of the costs of the election court is likely to be, and who he expects to meet them?
Mr Heath
So many Members have now referred to me as a member of the Privy Council that I think I must have received that status by acclamation. Will someone please tell the Deputy Prime Minister that I obviously behave as though I were a member of that august club, although I am not?
I assure the hon. Member for Dunfermline and West Fife that the arrangements would be identical to those that currently govern election courts and election petitions. However, if someone were clearly initiating vexatious proceedings, as is the case with the present election courts, the court could, if it wished, award costs against the petitioner, and might well do so if it felt that the process was being abused.
I hope that I have answered all the questions that have been asked. I am sorry to have spoken at such great length, Mr Amess, but I have done so mainly in response to interventions, which seems to be par for the course this evening. Let me end by saying that I think that my new clause is objective, and that it fulfils some of what Members on both sides of the Committee want to achieve. I do not claim that the drafting is perfect and cannot be improved, but I hope that the new clause will begin a process of discussion which may reach a conclusion allowing for many of the things that the hon. Member for Richmond Park and some of his supporters want to see achieved without opening the door to what some people equally adamantly do not want to see achieved, which is Members of Parliament being in constant fear of recall on the basis that they have voted to the displeasure of someone very rich in their constituency.
Mr Kevan Jones
It is a pleasure to serve under your chairmanship, Mr Amess.
I support recall, as outlined in the Bill, for serious misdemeanours. Those of us who were in the House at the time of the expenses scandal knew that things had to change, and, as was pointed out by my hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty), the proposal on which we are being called to vote today was in our manifesto.
I shall oppose the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith), and, although I know it is a dangerous thing to do, I shall support those tabled by the hon. Member for Gainsborough (Sir Edward Leigh). This must be the first and only time I have agreed with him about anything. I also want to say something about the attempt by the hon. Member for Somerton and Frome (Mr Heath) to find a middle way.
The Bill has been publicised as though it constituted a method of giving the electorate more of a say. It has been suggested that anyone who speaks against it does not trust the voters, and is somehow less of a politician because he or she is afraid to stand for election. It is a bit like being accused of being a witch. Well, each and every one of us has the guts to stand in every election, and to put our record before our voters. I have always said that the one thing that distinguishes all those who stand for election to Parliament or a local council, or for any other elected office, is that they have the courage of their convictions, the courage to stand before their peers and ask for their trust. We should recognise that, because it is an important principle.
I think that we may have given too much away to the unelected quango state and the like. We seem to have believed that if we fill organisations with independent people who have no political influence at all—I do not know whether they are born or develop—there will be better decisions. I am a great big believer in the importance of elected office. I think that it is something of which we should be proud, and for which we should argue forcefully as parliamentarians and other elected office holders.
The Bill is strange in that it has united UKIP with the far left in the belief that it somehow represents a radical way forward. I do not think that it does. I think that it is very dangerous. It does not empower voters, and it will undermine the democracy that we in this country take for granted.
The effects of the amendments tabled by the hon. Member for Richmond Park would be very simple. The amendments remove the notion that someone must be recalled on grounds of imprisonment or suspension, and allows the recall of Members for any reason. I think that this the first time I have ever heard a Member present the argument that his proposals will never actually be used. The hon. Gentleman said that it would be very difficult, and that the barriers were very high. Why put such a proposal on the statute book? Is it conning the electorate to give them something that is so difficult to achieve? Is the hon. Gentleman being dishonest with the people who he suggests will be empowered ?
Zac Goldsmith
Let me put the record straight. That is not what I said at all. I have never described the hurdle as impossible. I have said that it is a difficult hurdle—a deliberately difficult hurdle—which is high enough to prevent vexatious abuse, but low enough to be surmounted. Amendment 1 is deliberately designed in that way. It is nonsense to pretend that we are creating an impossible hurdle: I never said anything of the sort.
Mr Jones
Let me tell the hon. Gentleman what he said a moment ago. I did take notes. He said that it would be very difficult, and that the barriers would be very high. During our debate on Tuesday, he said:
“I know…Members worry that recall might somehow turn us into delegates and no longer representatives…but that is not realistic. Voters care about a wide range of issues”.—[Official Report, 21 October 2014; Vol. 586, c. 796.]
The hon. Gentleman was suggesting that the process would be difficult for some reason, but it will not be difficult. He and those who are backing him are implying that people will not be “picked off” because of the way in which they vote, which is complete nonsense.
In a speech that he made the other day, my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson) gave the very good example of his predecessor Lena Jeger, who had argued strongly for abortion reform although her constituency was largely Catholic. Given the thresholds in the Bill, I think that it would have been easy for her to be recalled. Let me give another example. I do not think that the hon. Member for Richmond Park was here when she was in the House, but there was a very courageous Labour Member of Parliament called Ann Cryer, who represented Keighley. In the face of a great many personal threats and a great deal of local hostility, she argued against forced marriages and highlighted the issue of birth defects in the Asian community. She was also one of the first people to talk about issues that have now gained popularity—trafficking and the abuse of white girls in Keighley. She was very unpopular in the constituency.
Is the hon. Gentleman trying to tell me that somehow the Asian community in that constituency, or at least part of it, could not have put Ann Cryer under pressure by means of recall? I do not think that that would have been the case. She would have come under huge pressure. She received death threats on occasion as a result of some of the things that she said, and many of the things that she said were proved to be correct. Courageous people such as Ann Cryer should be free to speak out although large sections of their constituencies consider what they are saying to be wrong, or disagree with them. I think, knowing Ann, that had this measure existed, she would have acted in the same way, but she would have come under a great deal of pressure to temper her views.
Mr David Davis
I do not remember Lena Jeger, but I think I am right in saying that in each of her successive elections her majority increased despite her stance on abortion. I believe that the same was true of Ann Cryer, whom I remember well—and the hon. Gentleman is right to say that she was courageous.
Mr Jones
I will come on to that in a minute, because we have to look at the process of what is before us. There is this idea that somehow a Member of Parliament is not going to be affected by recall, despite the pressure they are going to come under, and that they will keep speaking out. I do not think that is the case. We only have to look to the examples in the United States to realise that.
Geraint Davies
My hon. Friend will know that I was formerly the MP for the marginal seat of Croydon Central and that I lost it. At one point I stood up to defend the rights of my constituent Feroz Abbasi in Guantanamo Bay, saying he should face a proper trial and have proper treatment. There might have been further pressures on me other than the marginality of my seat in that regard, as I might have been facing the possibility of recall by a vociferous minority of UKIPians or others who might have asked why I was talking about what they might assume to be terrorists—as opposed to innocent constituents. If I had come under such pressure, I hope I would still have acted according to principle rather than popularity, but it is intrinsic in what is said in respect of the proposals of the hon. Member for Richmond Park (Zac Goldsmith) that this corrupts those who want to stand for principle over popularity.
Chris Bryant
I just wonder whether we might bear in mind Sidney Silverman and David Steel, who both courageously advanced causes that were considered to be very unpopular at the time. They both represented marginal seats, and I would argue that they kept their seats because they were prepared to say uncomfortable things.
Mr Jones
No, as I want to make some progress first. [Interruption.] The hon. Member for Richmond Park says “Absurd” from a sedentary position. He has had enough of a say, talking, I have to say, in some cases complete rubbish. He now has to sit there and listen to me.
In the debate on 21 October the hon. Gentleman, in trying to demonstrate that somehow his Bill would never be used, said:
“I know that other hon. Members worry that recall might somehow turn us into delegates and no longer representatives…but that is not realistic. Voters care about a wide range of issues, and it is rare for recall to be motivated only by one issue.”
I said from a sedentary position, “Gun control.” He then said,
“There are no examples of that.”—[Official Report, 21 October 2014; Vol. 586, c. 796.]
Well, I will turn to an example in a minute.
Caroline Lucas
I am very grateful to the hon. Gentleman for giving way, but the frustration many of us in the Chamber are feeling is that he says on the one hand that a vociferous minority can remove an MP via recall, whereas it is a four stage process that precisely requires a majority in order to remove someone, so that is clearly not the case.
Mr Jim Cunningham
The hon. Member for Richmond Park (Zac Goldsmith) said earlier that the threshold would be so high it would be very difficult for vexatious claims to be made. Why does he not separate that in the Bill? Why does he not drop that—completely separate it—if he does not intend that?
Mr Jones
My hon. Friend makes a good point. Like a lot of other things the hon. Gentleman says, he has not actually thought about that in practice. The problem I have with the word “vexatious” is that somebody such as Ann Cryer might come under such a recall Bill, given what she was arguing for, and it could be argued that the people arguing against her were not being vexatious but were arguing against a clear, important role that she was performing.
Graham Jones (Hyndburn) (Lab)
The question of what these limits are is important. What does recall mean to a person of limited means when they are up against big money?
Mr Jones
Exactly, and I made that point last week. If I had the £250 million or £300 million the hon. Member for Richmond Park has, I would not have to worry. [Interruption.] Well, I am sorry, but it is a matter of fact. [Interruption.] Of family history, as my hon. Friend the Member for Cardiff West (Kevin Brennan) says. If someone has that amount of money, it influences the way in which they can conduct recall elections. If I had that amount of cash, I do not think I would be bothered even if I lost it.
Mr Jones
I am going to answer the hon. Lady’s point if she is patient.
On the hon. Lady’s point about the electorate, the hon. Member for Richmond Park said it is necessary to have 51% of the electorate. No, it is not. In Colorado the recall election had a turnout of 36%, and under what is being proposed by the hon. Gentleman and his supporters it is only necessary to have 51% of the turnout. A small number of people might turn out, and a huge swathe of people in a constituency who might have strong views on other issues but not the issue in question might not be mobilised and might not vote. So to the idea that somehow this would be democratic, I say there could be a situation where there was a 60%, 65% or 70% turnout at a general election, and then a much lower turnout for a recall election—as low as 10% if police and crime commissioner elections are anything to go by—could determine the future of that Member of Parliament. It would take a very strong individual then to stand up before the electorate after the damage done in that process, because we all know what would happen with that individual.
The idea that somehow large numbers of people would give power to the mass of people is therefore complete nonsense. In the United States this gives power to large numbers of small groups of well-organised individuals. People should google the Koch brothers and the American Legislative Exchange Council—which is actually the libertarian wing of the Tea party and is where this proposal is coming from. I think this is very dangerous for progressive politics both in the United States and this country.
Mike Gapes (Ilford South) (Lab/Co-op)
Is my hon. Friend aware that I received an e-mail a few days ago from the British equivalent of the Tea party: the front organisation of the right wing of the Conservative party, the TaxPayers Alliance, which is supporting these proposals?
Mark Durkan (Foyle) (SDLP)
My hon. Friend began by saying that he supports recall as set out in the Government’s Bill. However, surely it provides that, on the basis of either of the triggers, a petition of simply 10% of the electorate can take a Member out completely, regardless of what the other 90% say. How can we give any weight to his argument about democracy, given that he supports 10% being able to oust a Member straight away?
Mr Jones
I must say that I do have problems with that system, but I also know that under it, at least we are talking about someone who has been found guilty of some wrongdoing. If the amendment were accepted, as in the United States, a small number of well financed people would be able to go after certain individuals.
The hon. Member for Richmond Park referred to a figure of £35,000 for a recall election. The recent recall election in Wisconsin cost $35 million. The idea that several recall election referendums around the country could be done on the cheap is fanciful, to say the least.
Thomas Docherty
Has my hon. Friend read the Government’s impact assessment, which says that, even under their proposals, the likely cost of recall and by-election is £300,000-plus? Does he agree that it is slightly ironic that, under the amendment of the hon. Member for Richmond Park, the TaxPayers Alliance is proposing a free-for-all that could quickly rack up millions of pounds of spending?
Mr Jones
That is the flaw in the argument, and it is clear that the proposer of the amendment has not even thought about that cost element.
There is a cost involved in democracy, and I support paying that cost. However, we have general elections, at which people can indicate whom they want to represent them. I have no truck with the argument that the hon. Member for Richmond Park and his supporters are advancing that somehow the system is broken. Time and again, the phrase “Westminster establishment” is used. He may well be a member of an establishment; I am not, and nor are most Members of this House.
Mr Jones
In a minute. Most Members of Parliament do their best for their constituencies. The situation now is very different from the days when Members never lived in their constituencies or went anywhere near them. In the light of developments such as electronic media, MPs are more accountable to their constituents than ever. I want to knock on the head the idea that we come to Parliament, sit on these green Benches and never give a thought to the opinions of our constituents, and do not talk to them daily.
Wayne David (Caerphilly) (Lab)
My hon. Friend said that in his view, there is no such thing as a Westminster establishment. Does he agree with me that there is also no such thing as a Westminster class? Those of us who live in the real world know what class politics is really all about.
Mr Jones
I agree. I would not consider myself to be in the same class as the hon. Member for Richmond Park, for example. The fact is—[Interruption.] I am not antagonising my constituents, as the hon. Member for Perth and North Perthshire (Pete Wishart) says from a sedentary position. Most Members of Parliament get elected to try to do the best for their constituencies, and it is insulting to say they do not. I may disagree politically with other Members of this House—of all shades—but the majority are in politics not only to do what they can to help their constituents, but to make the world a better place as they see it. The same was true of my time in local government; I think I met only one or two rogues—who were perhaps in politics for different reasons—when I was a councillor. It is a bit patronising for people to dismiss that point.
We must get back to recognising that standing for elected office is a noble thing that people should strive for, not just in this place but in councils and elsewhere. I respect anyone who has the guts to stand for election. Many commentators criticise what MPs do, but if they were asked if they would stand for election and be subject to such scrutiny not only at election time but throughout the life of a Parliament, not many would say yes. We must recognise the value of standing for elected office.
Steve Baker (Wycombe) (Con)
I am extremely grateful to the hon. Gentleman for giving way, and the whole House will appreciate the compliment he has just paid to Members. However, if he is afraid that this extension of democracy will result in the supplanting of socialist Members with libertarian ones, why does he not just propose spending limits?
Mr Jones
The hon. Gentleman is talking complete nonsense. The idea that the Bill is an extension of democracy to the average elector is complete rubbish. It will limit what we in this House can do, and put control of the agenda in the hands of well financed individuals. Yes, I trust my electors: that is why I keep on standing for election and do monthly constituency surgeries to listen to what they have to say. That is why I attend public meetings and speak to my electors when I go to get the Sunday newspaper, for example. We need to dispel the nonsensical idea that Members of Parliament do not speak to their electorate; these days, very few would even get elected if they took that approach.
Geraint Davies
My hon. Friend may be interested to know that in my patch, Swansea, there was a bid by a big financial organisation to have motorbike riding on the beach. It was heralded in the press as a very popular idea, but I spoke out against it, saying that it would do enormous environmental damage, encourage hooliganism and so on. Let us say that the financial forces behind that proposition coalesced behind the popular view—those who wanted a motorbike riding free-for-all—and I was threatened with recall. That would be another example of how this proposal would intimidate democracy and those of us who stand up for principle over popularity.
Kevin Brennan (Cardiff West) (Lab)
If the hon. Gentleman turned up a bit more, he would know that.
Mr Jones
My hon. Friend makes a good point from a sedentary position.
There are occasions—I gave the example earlier of Ann Cryer—when Members take positions that are at odds with certain sections of their constituents, but that is the beauty of Parliament. It is about being able to argue not just on our constituents’ behalf, but for the progressive changes and legislation that, if we had recall, I doubt would have been delivered. That is why I find it very odd that people who are supposedly on the left support this type of recall—
Zac Goldsmith
I thank the hon. Gentleman for giving way. He said earlier that the Colorado state legislators were recalled over gun issues, arguing that the Koch brothers had put millions of dollars into that campaign. In fact, the spending by those calling for the recall was exceeded fourteenfold by those arguing against it. Yes, big money is involved, but I think the hon. Gentleman has got the maths wrong. That aside, our proposals would have very strong limits on funding and, as I and colleagues have said, we would welcome even further controls, so his arguments are just nonsense.
Mr Jones
The hon. Gentleman cannot have it both ways. He cannot argue for his proposal and then say, following my raising the issue the other day, that if someone else wants to bring in spending limits, they can. He should have thought this through. He knows exactly what he is doing: this proposal will give powerful individuals with deep pockets a big influence over how our democracy is conducted. I am sorry, but I do not agree with that. It is wrong. The supporters of this proposal are saying, “Are you afraid of your electors? Are you going to give ordinary electors a say?” That is not what the proposal will do. It will give well organised, well financed individuals a lot of say over who sits on these green Benches.
Mr Lansley
My hon. Friend the Member for Richmond Park (Zac Goldsmith) says that he is proposing strong financial controls, but his amendment 23 would provide only that Ministers should have the power to apply controls on spending to the notice of intent and recall referendum processes. He does not say what the controls or the financial limits might be. Indeed, the limit during the recall petition period for which the Bill provides is £10,000 per accredited campaigner, but there is no limit on the number of accredited campaigners.
Mr Jones
I am glad that the right hon. Gentleman raises that point because in the United States, to get round any spending limits, a plethora of organisations will be set up to force a recall, meaning that they can carry out vigorous and targeted campaigning. We should remember that such recall would not be like the general election, with 650 contests being fought, because resources could be concentrated on one single constituency, meaning that big money would influence the outcome.
Thomas Docherty
My hon. Friend is being most generous by giving way again as I know that he wants to get towards the end of his speech. On spending limits, is he aware that the Scottish National party ran a series of front organisations during the referendum in Scotland so that they could each spend to the £1.5 million limit? Does he agree that one of the great concerns about the proposal of the hon. Member for Richmond Park (Zac Goldsmith) is that it could give rise to co-ordinated attack after attack from organisation after organisation?
Mr Jones
We all know that organisations get around election limits—we need only to look at the last election in Richmond Park and the activities of its MP—so it would be difficult to control the amount being spent. In the United States, seats are targeted well in advance so that once an election is lost, money goes in to undermine an individual.
Implementing the power to recall for any reason whatsoever would be not an advancement of democracy in this country; it would be a retrograde step. It is suggested that the power would be rarely used, but people would work out clear ways to use it and how to finance the process. I therefore ask the Committee to oppose the amendments tabled by the hon. Member for Richmond Park.
The hon. Gentleman’s proposals would not give the ordinary elector any more power, but would benefit those who want to drive through a political agenda. There are those on the left of my party who think that the process would somehow empower individuals and represent a radical statement, but that is not the case. Under the proposals, progressive legislation would be killed in the House, as views that people passionately believed in and courageously set out—such views may later become the norm in the nation—would be killed not following proper debates and votes in the House, but because someone could finance a recall election that would either put such an individual under pressure to be quiet, or actually force them out.
The Minister of State, Cabinet Office (Greg Clark)
It is a pleasure to serve under your chairmanship, Mr Amess. The hon. Member for Dunfermline and West Fife (Thomas Docherty) has given you some timekeeping assistance through his suggestions, and I shall try not to fall foul of that.
As the group includes many amendments and new clauses, I shall say something about the overall choice facing the Committee that is embodied by the measures, before giving the Government’s assessment of each, which I hope will help the Committee. If there is time, the Parliamentary Secretary, Cabinet Office, my hon. Friend the Member for East Surrey (Mr Gyimah), will make a speech at the end of the debate, so colleagues who speak after me will have an opportunity to hear a reaction to their remarks.
As I explained on Second Reading, the Bill has had a difficult history. Some people are against it—and indeed against anything that introduces a system for recalling MPs. The Political and Constitutional Reform Committee concluded of the draft Bill:
“We do not believe that there is a gap in the House’s disciplinary procedures which needs to be filled by the introduction of recall.”
My hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) made a similar point. Others, including my hon. Friend the Member for Richmond Park (Zac Goldsmith), believe that we should adopt an entirely different model of recall: one that is not triggered by proven misconduct, but can instead be initiated by a petition of the electorate for any reason at any time.
That disagreement could lead one to suppose that the Government’s Bill is just another contribution to a debate without consensus, and that it has no greater or lesser significance than any other approach, but that would not be right. The Bill is fundamentally different from the approach of no recall, or that of recall for any reason at any time, although I hesitate to tease my hon. Friend by referring to that as the Martini recall—any time, any place, anywhere. The Bill as drafted implements completely and faithfully the promises that the main parties made in their manifestos at the general election. The Conservative manifesto promised that
“a Conservative government will introduce a power of ‘recall’ to allow electors to kick out MPs, a power that will be triggered by proven serious wrongdoing.”
The Labour manifesto said:
“MPs who are found responsible for financial misconduct will be subject to a right of recall if Parliament itself has failed to act against them.”
The Lib Dem manifesto said:
“We would introduce a recall system so that constituents could force a by-election for any MP found responsible for serious wrongdoing.”
The coalition agreement reflected those positions.
As drafted, the Bill would cause a recall petition to be triggered if an MP was sentenced to a term of imprisonment of up to a year or a suspended sentence of any length—hon. Members will know that disqualification is already automatic following immediate imprisonment of more than a year—or, in other words, if serious wrongdoing was proved; or if an MP was suspended by the House for at least 21 sitting days, or 28 continuous days, which again would indicate proven serious wrongdoing. Members will of course consider carefully all the amendments that have been tabled, but it is only reasonable to observe that both other views, whatever their merits, do not implement the particular commitments that all parties made to the electorate at the previous election.
Chris Bryant
I am grateful to the Minister for how he is presenting his argument as, ironically enough, debates in the House are often most fractious when there is the smallest difference between people. However, I suggest that the flaw in his argument is his reliance on the words “misconduct” and “wrongdoing” which, under the Bill, will be determined only by MPs. That is the problem for many members of the public, as they would like to be able to decide what constitutes wrongdoing and misconduct.
Greg Clark
The hon. Gentleman expresses his reasonable and important point well. As I said on Second Reading, I do not take the view that the Bill cannot be strengthened. One thing we can conclude from the Second Reading debate is that we will want to reflect, in Committee and during the Bill’s later stages, on the public’s involvement. The Bill can be improved and clarified, and I repeat my personal assurance that the Government will be open to reflecting improvements in the Bill during its passage.
Amendment 42, a cross-party amendment that was ably spoken to by the hon. Member for Somerton and Frome (Mr Heath)—although he is my hon. Friend, he has the demeanour of a right hon. Member—proposes a constituent-led trigger for recall, albeit one based on misconduct. That important suggestion has much to commend it, so I will reflect carefully on the amendment. Similarly, the Opposition have suggested making the trigger more sensitive and sending the clear message that the criminal abuse of the parliamentary expenses system should trigger recall, and I appreciated the spirit in which the hon. Member for Dunfermline and West Fife spoke to those proposals. While my colleagues and I will vote to maintain the balance that the Bill as drafted strikes, and for a faithful adherence to the manifesto on which we stood, it might well be possible for us to support changes on Report. That demeanour is an appropriate response to today’s proceedings and last week’s Second Reading debate, given that no overwhelming case has been made at this stage for sending the Bill back to the drawing board and starting again.
Wayne David
Would the Minister like to go a little further and indicate whether he is prepared to have genuine cross-party talks to see whether it is possible to establish a consensus?
Greg Clark
Well, I think that we are having them now in Committee; the parties are approaching a serious subject and seeking to strengthen the Bill. Of course, those talks can also take place between now and further occasions when the Bill is debated. The hon. Gentleman makes a reasonable point.
Mr David Davis
My right hon. Friend is handling this in his characteristically rational way, but he made one comment that I really cannot leave unchallenged. He said that the Bill is progressing without any serious assault on its central tenet. Its central tenet is that for a wide range of offences, which under the current criteria would include the expulsion of the hon. Member for Bradford West (George Galloway) for impugning another Member of this House—not a financial or criminal offence—Members could be cast to a jury in which effectively one member, or 10%, could vote and find them guilty. In other words, 90% of a Member’s constituents could think that they should stay and 10% could think that they should go, and on that basis, under the Government’s proposals, the Member would be thrown out.
Greg Clark
I learnt to take a rational approach during my many happy years working with my right hon. Friend, so he will forgive me if I apply it here. I will move on to talk about the point he makes later. Suffice it to say that if the figure of 10% was reached, that would trigger a by-election in which the Member could of course stand. I know that he has personal experience of doing that. Indeed, I campaigned for his successful re-election.
Let me reflect on some of the concerns raised on Second Reading that are germane—you will be relieved to hear, Mr Amess—to the amendments before us. Members were concerned that a process that allowed recall for any reason could be put to vexatious use in a number of different respects. First, it could be used to hound someone out of office because of honestly held and sincerely expressed views. Secondly, it could be used to wage a war of attrition, with recall petition after recall petition being opened by just 5% of the electorate who have conceived a grievance against a sitting MP. Thirdly, it could be used for limitless expenditure on propaganda intended to destabilise an MP, by vested interests that the MP might be brave in confronting, well before any spending limits for an actual recall petition kicked in.
Mr Kevan Jones
We have heard the word “vexatious” used a lot in this debate, but people with strongly held views on abortion, for example, are not vexatious. I am not suggesting that the Minister is saying that, but I think that we need to differentiate between vexatious silliness and people having strongly held personal beliefs that might be at odds with certain groups within their constituencies.
Greg Clark
The right hon. Gentleman—everyone who has contributed today seems to be right hon. The hon. Gentleman is absolutely right. Of course Parliament, and election to it, should be the subject of significant debate on issues of contention; that is the purpose of Parliament, and of standing for election. Therefore, it is not right to assume that any challenge to an MP would be, in and of itself, vexatious—quite the opposite—but at times it might be possible for people with less high-minded motives to take that approach.
Let me briefly address the principal amendments and new clauses in this group. Amendment 1 and new clause 1, tabled and spoken to by my hon. Friend the Member for Richmond Park, would delete the two conduct-related triggers for the recall of an MP and replace them with a system of petition-based recall for any reason, to be initiated by 5% of the electorate signing a notice of intent to recall. That would trigger an official recall petition that, if signed by 20% of the electorate within eight weeks, would lead to a recall referendum. If the majority of those voting in that referendum voted for recall, the seat would be vacated and a by-election called. There is nothing to stop repeated, or even parallel, notice of recall petitions being lodged, all with attendant publicity and each requiring only 5% of the electorate to sign, meaning that an MP could suffer a prolonged bombardment of negative publicity in that way.
Mr John Redwood (Wokingham) (Con)
The Minister said on Second Reading that he thought that the Bill needed to be improved and that there could be amendments. If not these, does he have in mind some Government amendments to deal with some of the issues about democracy?
Greg Clark
I do, and if my right hon. Friend—I know him to be right hon.—is patient, I will make those suggestions later.
New clause 2 is operable only if amendment 1 and new clause 1 are passed. It provides for a 200-word statement by the promoter of the recall petition, and a reply by the defending MP, to be included in the petition. Let me say something about some of the flaws in that understandable provision. The notice of intent to recall could contain accusations that are unfounded or unproven. Although the MP would of course have the right to reply, the inclusion of an unfair and unfounded statement on an official communication to every elector would almost certainly damage their reputation, particularly as the petition officer has a duty to send the statement to everyone on the electoral roll. Indeed, the statement could be positively libellous, and although the MP could seek damages though the courts, the injury to their reputation would be difficult, if not impossible, to repair.
Mr Lansley
Whereas my hon. Friend the Member for Richmond Park (Zac Goldsmith) included in clause 9 of his Recall of Elected Representatives Bill a provision whereby any process would be stayed where there was an indictment on a chargeable offence, that has not been included in the amendments before us today. Does my right hon. Friend agree that that is another flaw in the amendments? Clearly a notice of intent could include statements that would be prejudicial to a police investigation, as well as potentially very libellous and unfounded. My right hon. Friend has not yet noted this—I am sure that he has read it—but in those circumstances the Member would be given two working days in which to frame a reply to the statement of reasons.
Greg Clark
My right hon. Friend is absolutely right. He points to some other flaws in the amendment, which in itself is designed to be sensible and constructive, as having a statement and a rebuttal is clearly sensible.
Let me turn to the amendments tabled by a group of colleagues on both sides of the House, including the hon. Member for Somerton and Frome, my hon. Friend the Member for Finchley and Golders Green (Mike Freer), the hon. Members for Sheffield South East (Mr Betts), for Cambridge (Dr Huppert) and for Birmingham, Yardley (John Hemming), the right hon. Member for Exeter (Mr Bradshaw) and my hon. Friend the Member for Crawley (Henry Smith). I have a great deal of sympathy with the thinking behind the amendments, which the hon. Member for Somerton and Frome set out comprehensively. They would give the public a role, which some have felt has been missing, in initiating recall, and provide an answer to the charge that one flaw of the Bill is that it is about MPs marking their own homework. Those are two themes that emerged on Second Reading. In line with our manifesto commitments, and with the views of many Members who spoke on Second Reading, and indeed today, the important point about the amendments is that they would keep the recall process focused on misconduct, which I think is the advantage of the approach he has set out.
The amendments propose that where misconduct in public office is alleged, electors in a constituency would be able to start a petition to initiate a recall process. They would require 100 electors to support the petition before it could be presented to an election court. I do not need to labour the point—my hon. Friend mentioned it—that this is a suggested way forward that clearly raises important legal drafting requirements, so I do not think that it will be possible at this stage to commit to endorsing them. But I think that he has proposed an important avenue and the possibility of a third trigger that is linked to an initiative of the public, which is valuable.
With regard to some of the difficulties, there is a widening of the definition of misconduct to include “gross dereliction of duty”. As others have said, that would require some understanding of what that might embrace.
Lady Hermon
In relation to the possibility of the Government looking at a third trigger relating to misconduct in public office and the question whether that applies equally to Northern Ireland and Scotland and to England and Wales, may I say ever so gently to the Minister that issues such as parading, stopping parading, flying flags and not flying flags can be criminal offences in Northern Ireland, and public representatives may become involved in them, so drafting this provision carefully in relation to Northern Ireland will take some time?
Greg Clark
We will attend to the points that the hon. Lady makes. They apply perhaps with even more force to the possibility of a recall in Northern Ireland being triggered initially by 5% of the electorate, for any reason. In relation to the arrangements in Northern Ireland, we have taken care not to cause repeated debate and contention when that would be against the interests of democracy in the Province. Nevertheless, I will reflect on her words.
Anne Marie Morris (Newton Abbot) (Con)
May I take the Minister to task about his comments on new clause 2, which stands in my name? He suggested that there is almost a greater likelihood of libellous statements being put on the statement of reasons than on anything else. In an election process, many pieces of paper are put into the public domain, and they are properly scrutinised. I do not believe that anybody who puts out something that is potentially libellous will not feel the full force of the law. The duty of care remains, come what may, and this document is no more susceptible to a problem than any election leaflet.
Greg Clark
My hon. Friend takes me to task in a very gentle way. It may be true that election leaflets may contain statements that are contentious to the point of being alleged to be untruthful, but a statement that is supplied by the returning officer to every elector may be viewed as having official authority, whereas the leaflets that we produce at election time, whatever our intentions, may be discounted to a greater extent, if I may put it that way.
Anne Marie Morris
But the Post Office delivers our election addresses to every single household, and that gives them some standing: they are not just pieces of marketing.
Greg Clark
My hon. Friend makes a reasonable point. She will remember that I applauded the intention of her new clause, which was to allow a reason to be given for a recall. However, even the arrangements that we have at present were not sufficient to deal with a case where a very offensive statement was circulated linking the candidacy of Members of the European Parliament to a protest against the murder of Lee Rigby in a wholly distasteful way. These things are not proof against abuses of the kind that I mentioned.
Kevin Brennan
Is the Minister’s understanding of the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith) that they could cause an hon. Member to be subject to a recall petition for voting against those amendments?
Greg Clark
I do not know whether departure from an election manifesto would constitute a reason for recall under my hon. Friend’s proposals, but the hon. Gentleman stood on the same manifesto as we did in favour of our brand of recall. He is tempting me on to a path that it is probably not profitable to go down.
Let me say to my hon. Friend the Member for Somerton and Frome and the colleagues who signed his amendment that I understand where they are coming from. I am willing to contemplate ways to improve this Bill, and between now and Report I undertake to reflect seriously on how that can be done.
I have much sympathy with the amendment to new clause 2 tabled by my right hon. Friend the Member for South East Cambridgeshire (Sir James Paice).
Greg Clark
No. I want to make a bit of progress, if I may.
The amendment would ensure that the statement of reasons could not contain reasons relating to a Member’s freedom of expression in Parliament, including what an MP said or how he or she voted. In other words, recall by petition would be focused on conduct, not causes. However, it would not stop people campaigning for recall based on what the MP did in Parliament; it would simply prevent the statement of reasons from being disclosed in relation to the statutory requirement to avoid such matters. Other publicity could state with impunity other reasons, perhaps the real reasons, behind the move to recall an MP. It therefore would not work as a safeguard, which many Members will wish for, to prevent Members’ freedom of expression from being used to recall them. I hope that my right hon. Friend will reflect on that, and we will look to see whether the spirit of the amendment might be carried forward separately.
I turn to the amendments tabled by my right hon. Friend the Member for South Leicestershire (Mr Robathan), who is not in his place. They would give the Bill retrospective effect in that a currently serving MP who had been suspended by the House for at least 21 sitting days would be liable to a recall petition. Only one such person is currently sitting in Parliament—the right hon. Member for Leicester East (Keith Vaz), who was suspended for a month in 2002. The House tends not to favour retrospectivity. In general, the courts impose punishments for offences that were current at the time of the offence.
Jim Dowd (Lewisham West and Penge) (Lab)
For the sake of clarity, if the amendment were to be passed, would, for example, the 10-day suspension of the right hon. Member for Yeovil (Mr Laws) be in the bank so that he could afford only another 11, were that to arise?
Greg Clark
No, because suspensions are not cumulative, and that would be below the trigger level.
It is in a similar spirit that I approach the amendments tabled by the hon. Member for Dunfermline and West Fife and his colleagues. I welcomed the tone of his remarks and his commitment to finding ways to strengthen this Bill, where they are available, so that it can command the support of the House and, indeed, the country. Amendment 45 makes the second trigger more easily sprung, if I may put it like that. It would reduce the suspension that triggered recall from 21 to 10 sitting days—this is partly an answer to the hon. Member for Lewisham West and Penge (Jim Dowd)—or from 28 to 14 continuous days were it to be expressed in that way. Since 2000, four MPs have been recommended for a suspension that would trigger the second condition for recall. Under the amendment, nine rather than four MPs would have been subject to recall.
I accept the constructive spirit in which the amendment was offered, but let me explain my difficulty with it. There are two ways in which an MP can be suspended from the House: first, through a recommendation by the Standards and Privileges Committee; or secondly, and this relates to your chairmanship of this Committee, Mr Amess, through disorderly conduct in the Chamber and then being named by the Speaker. If an MP is suspended after being named by the Speaker, the suspension is for five sitting days for a first offence and 20 sitting days for a second offence. Setting the figure at 21 sitting days, as the Bill does, excludes the possibility that a suspension from the House following being named by the Speaker for a second offence would trigger recall. I do not think that was the intention of the disciplinary measures that are in place.
Members in all parts of the House have incurred the sanction of the Chair. Being suspended is not a trivial matter. It seems to me, however, that breaking the rules of order in the Chamber is not the same as a suspension for misconduct based on a recommendation by the Standards and Privileges Committee. Tam Dalyell, for example, was suspended for 20 days in 1989 for having been named twice. Because of this technical overlap, I hope that the hon. Member for Dunfermline and West Fife will reflect on the drafting of the amendment and not press it to a vote.
Mr David Davis
This goes straight to the point that I raised with my right hon. Friend about the hon. Member for Bradford West (George Galloway), who, if I remember correctly, was suspended for 21 days for refusing to apologise after impugning the merits—shall we say?—of other Members of this House. Many things would lead to this. Ian Paisley the elder was, I think, named a couple of times and suspended. These things should not come anywhere near to causing a recall. That is part of the problem with the Government’s mechanism, which is being held up as precise and effective but is in fact a blunt weapon of considerable size and unexpected outcomes.
Greg Clark
My right hon. Friend makes the same point as I am making to the hon. Member for Dunfermline and West Fife. The reduction of the trigger would bring into scope the suspensions that are occasioned for disorderly conduct in the House.
Sir Edward Leigh
Will the Minister give the Government’s view on my amendment? If the amendment tabled by my hon. Friend the Member for Richmond Park fails, my amendment would still stand, because it applies to the whole Bill. It states that no action would be initiated on the basis of votes cast or of what a Member says in the Chamber or does in motions. Are the Government prepared to look kindly on my amendment and consider it?
Greg Clark
I always look kindly on any proposals by my hon. Friend. I intend to finish with his amendment, so I will come to it. I completely respect and approve of the sentiment behind it, and I hope my hon. Friend will accept what I say in response to it.
Let me make some progress, because I have spoken as much as other Members have. Labour’s amendment 46 would ensure that a Member of Parliament who was convicted and sentenced to imprisonment for an offence committed before this Bill is enforced would be subject to a recall petition process. It would cover historic offences that, though not committed at the time of the MP’s election, were not known to the electorate at the time.
I have great sympathy for that point. As I said earlier, retrospectivity is extremely rare in this House, but this is an important point about the electorate’s ability to judge a Member’s misconduct. If a Member had committed an offence and the information was not in the public domain, and if they were elected with the electorate being in ignorance of that offence and it subsequently came to light and was the subject of a conviction, I think that that is a circumstance in which it would be reasonable for that Member to be recalled. I will return to the issue and hope the hon. Member for Dunfermline and West Fife will engage in some discussions with me, which might satisfy the hon. Member for Caerphilly (Wayne David), who is sitting behind him, to see whether we can more perfectly capture that point in the Bill.
Amendment 47 would mean that a Member of Parliament convicted for any offence under section 10 of the Parliamentary Standards Act 2009—that is, an offence related to MPs’ allowances—would be subject to recall regardless of the sentence imposed. I think the whole House will want to send a clear signal that criminal abuse of the expenses system will lead to judgment before constituents as well as court. The amendment is technically deficient, because the way in which it would be placed in the Bill would rule out the possibility of an appeal, unlike the other criminal triggers. I again offer to work with the hon. Member for Dunfermline and West Fife to see whether we can agree on a considered reflection of that purpose for Members to consider on Report.
Finally, as far as amendments tabled by Opposition Front Benchers are concerned, amendments 48 and 49 would mean that, if an MP was suspended from their role in another elected capacity, including from their parish council, district council, county council, devolved legislature, city council or the European Parliament—the hon. Gentleman mentioned a hypothetical example that might have caused him to reflect on this matter—they should be able to be subject to recall from this House.
There is certainly a debate to be had about recall for elected offices, as I made clear on Second Reading. This is a limited Bill, but that is not to say that there is not a good case to be made for provisions to be extended elsewhere in due course. Until that debate is concluded, however, it would seem odd that a councillor could be recalled from this place because of a suspension from the council when they could not be recalled from the council itself. It also raises the question of whether a parish council’s standards for suspension, for instance, are an accurate reflection of the practice in this place. Without being churlish to the hon. Gentleman—I had some experience in opposition of drafting amendments—I should like to point out that it is pointless to include a reference to the European Parliament, since one cannot be an MP and an MEP at the same time.
Jonathan Edwards
Unfortunately, my new clause 4 was outside the scope of this Bill, but it would have empowered the devolved institutions with the ability to introduce their own recall mechanisms, if they wished to do so. On Second Reading, the Minister said there had been no such request from the devolved Parliaments. If that request was forthcoming, when would the Government be able to legislate?
Greg Clark
I cannot answer that question. The scope of the Bill is set. We had not at that time had such a request and I cannot say whether one has been made since.
Mr Kevan Jones
The Minister has mentioned the European Parliament. Does he not think it ironic that MEPs can be convicted of fraud of their expenses and still remain Members of the European Parliament? From 2009 to 2014, I think that three UKIP Members fiddled their expenses but were not thrown out of the European Parliament.
Greg Clark
I repeat what I said on Second Reading: I think there is a strong case to extend these provisions to other elected bodies, but the Bill proposed by our manifestos and the coalition agreement related to this place.
Amendment 41, tabled by my hon. Friend the Member for Gainsborough (Sir Edward Leigh), would not allow speeches, questions or voting to be reasons for recall. I completely sympathise with my hon. Friend’s intention. Having served under his chairmanship of the Public Accounts Committee, I saw the ferocity of his interrogation of some witnesses, and were they misfortunate enough to be his constituents, that might well lead them to trigger a recall petition, which would be completely inappropriate.
I am afraid, however, that the amendment would have unforeseen consequences. Specifically, the suspension of a Member for tabling parliamentary questions in return for payment might be precisely the sort of misconduct for which this Bill is designed to trigger recall. Therefore, to exclude questions, speeches and so on would not serve the purpose that my hon. Friend and I would wish to see, but I understand and agree with the spirit behind his amendment. When we come to Report and as the Bill progresses, I will reflect seriously on the issue. If he will join me in a conversation about that, I will see what we can do at the next stage.
I hope I have given a reasonable assessment of the Government’s take on the amendments and that the Committee can continue its debate on that basis.
Geraint Davies
I have in my hand “Profiles in Courage”, a book written by John F. Kennedy 50 years ago when he was in hospital with a back injury inflicted during the war. It is about eight Senators in American history whose common characteristic was that they stood up for principle against the popular view and often against their own party. They often suffered the electoral consequence of that, which eventually resulted in the termination of their political careers.
I want to focus on the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith), because it strikes me that the essence of what they propose is in fact in direct contradiction with the aim of encouraging noble behaviour such as that of past politicians—not only in America, but here—who stood up for what they believed was right, not what was popular.
During this simple debate, many of us—possibly all of us—will have been inundated with e-mails from 360 Degrees. [Hon. Members: “38 Degrees.”] 38 Degrees—that’s the one. I remember it well. 360 Degrees is the evolutionary future—the mutation—of 38 Degrees. If the hon. Gentleman’s amendments are agreed to, we could look forward to powerful groups with vested interests—be they people who are on the political margins or those with financial interests—focusing their fire through mass mailings in order to conjure up an apparent demand for the recall of a particular Member over something that had nothing to do with their misconduct, but everything to do with a political position that might not be popular.
Like other Members, I fear that politics today—and this is the view of the public—is too much driven by focus groups or politicians seeking to please particular people, rather than giving some leadership and seeing the fruits of their fortune mature over time. As I mentioned earlier, I stood against a particular planning decision on beach motorbiking, which seemed popular at the time. After debate and consideration, the council came round to the view that there would be environmental damage to the beaches and an impact on Swansea’s image as a quality tourist destination, and residents came round to the view that it would spark weekend motorbike joyriding and so on. Over time, the view of the public in fact changed, but had there been a recall system at that time, had there been financial support from those who wanted to make money out of that venture—there could be thousands of such examples—it not only might have ended the career of the MP, but more likely have been background noise that caused intimidation.
If companies with financial interests in planning, or a group of such financial organisations, persevere on a particular issue over several years and choose to target different people at different times, they can corrupt or distort the way in which certain Members behave through intimidation behind the scenes or directly. That is a very dangerous direction in which to be going.
Alongside that is the issue of particular political groups or parties. To return to the example of Guantanamo Bay, some people in my then constituency took the view that my standing up for a constituent there—for their rights to a fair trial, a fair hearing and fair treatment—was completely irrelevant, because my constituent was obviously guilty before having been tried and I should not be talking about him. If somebody had wanted to make a big issue about that, I might have been in a more difficult position. As I mentioned earlier, I like to think that I would have continued to stand up for principles rather than popularity, but we are all in Parliament in a democratic situation. The point I am trying to make is that, in the round, if we allow the amendments of the hon. Member for Richmond Park to go through, it would be an intrinsic corruption of our democracy.
Mr David Winnick (Walsall North) (Lab)
Before Chris Mullin became a Member of Parliament, he campaigned with great courage for the release of the Birmingham Six, for which he was denounced by so many newspapers and all the rest of it. Knowing him, he would have done exactly the same if he had been a Member of Parliament, but can my hon. Friend imagine what would have happened to him with a recall and how difficult it would have been for him to campaign so courageously, even though he had a pretty safe seat when he did become a Member?
Geraint Davies
The point about Chris Mullin is well made. Different people with different temperaments in different situations, with different constituencies with different profiles and majorities, will face different stresses and strains—not just actual and in your face, but behind the scenes. As I have said, that might have a very corrosive influence on democracy itself, and we should stand fully against it.
All of us like to think that despite pressure behind the scenes or otherwise, one would put principle before popularity. With fixed-term Parliaments, we know that we will have five years of making difficult decisions, but have the time to explain such things. However, we might be faced with instant demands or pressures, which—let us face it—might be orchestrated by political parties against those in particularly marginal seats. There would be issue after issue, and requests to do this and to do that. People from 38 Degrees, or whatever it is called, are just the tip of the iceberg. Lots of other groups would insist on the immediate satisfaction of their demands. It is easy to get groups of people to send in letters without their thinking through the issues. It would all become a sort of crowd mentality, and before we knew it, people who should be MPs would be intimidated and not stand, and it would also interfere with the quality of people who came forward.
Jonathan Edwards
Surely the defence against the scenario that the hon. Gentleman presents is the fact that the threshold, as suggested in the amendments of the hon. Member for Richmond Park (Zac Goldsmith), would be 20% of the electorate, and that people would physically have to visit the town hall and put their name to a recall petition. [Interruption.] Well, it would be 20% to initiate the final recall mechanism for a recall by-election. In my constituency, that would be more than 11,000 people. If 11,000 people went to the town hall in Ammanford and wanted my recall, I would resign myself.
Geraint Davies
Yes, but my understanding is that 5% would be needed to start the process.
My issue is with recall being within the armoury of those who want to intimidate people for any reason. On the face of it, it might be for a policy reason, but I thought that we were supposed to be discussing behavioural issues in relation to conduct and doing the right thing. Obviously, if we break a law, we should not be above the law, but I might be an MP and support the wrong football team. People may laugh at this, but people might say, “We don’t want someone for Liverpool who supports West Ham”, and there might be enough of them to mount a challenge, which would be a massive distraction.
Mr Kevan Jones
Tempting as it is to get 11,000 people to turn up tomorrow in the constituency of the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards), the important point is that—as in the case of Ann Cryer, which I raised earlier, or the very good example given by my hon. Friend the Member for Walsall North (Mr Winnick)—in a well-organised campaign with finance or perhaps a newspaper behind it, it would not actually be that difficult to get such numbers of people to turn up.
Geraint Davies
That is completely right. Even if it was not possible in many cases to muster such forces, it would obviously be possible in some. The question is whether that is right, and whether it would necessarily be a good reason for recall. Cases have been mentioned of having to confront in particular communities very difficult human rights issues that are difficult to talk about in the first place, but the threat of recall would hang over someone in a marginal seat that had certain movements or certain communities. One needs to be able to talk freely about such matters without intimidation.
Thomas Docherty
My hon. Friend mentioned representing somebody who had not been found guilty of anything. I do not know whether he is aware of this, but under the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith), if a Member of Parliament faces trial, that due process might be completely bypassed and the MP would go straight to a recall petition. An hon. Member who was subsequently completely exonerated of all charges might have lost their seat in the heat of such a moment.
Geraint Davies
Precisely. If one’s defence is, “I’m not a murderer,” all that people hear is the word “murderer”. Clearly, enough charges might be brought against a person who is targeted for whatever reason, perhaps by a political party or financial interest that knows someone else can be put in if they are got out of the way. The example has been given of the American gun lobby displacing someone who wanted to improve people’s protection against guns and replacing them with someone who was clearly in the gun lobby’s pocket. Once a few heads had rolled in various constituencies over time, other MPs would think, “I don’t want to end up like Harry or Harriet”, or whoever it happens to be, and we would get into all sorts of difficulties.
We should guard against the rush to populism in the amendments of the hon. Member for Richmond Park. We should uphold judgment and principle, rather than quick popularity. I find the amendments very worrying, which is why I wanted to speak on this issue.
Lady Hermon
The hon. Member for Belfast East (Naomi Long) is not present, but I am sure that she will not mind if I speak for her on this one occasion. She is a member of the Alliance party. She does not sit on Belfast city council, but her party colleagues on the council decided to fly the Union flag on the 17 flag-flying days, rather than 365 days a year. As a consequence, she received death threats. What concerns me about the proposal of the hon. Member for Richmond Park (Zac Goldsmith) is how vulnerable the hon. Lady would become to those who want to make vexatious claims about something over which she had no control.
Geraint Davies
I am grateful for that example. It is difficult to imagine how much harassment there would be if the amendment was agreed to. Harassment can happen through a range of mechanisms and can be sophisticated. People would protest using electronic and social media, as well as conventional media, to threaten people with recall. Ultimately, we are all human and we have families. Members will say, “I haven’t done anything wrong, but this is affecting my children in school.”
We need the space to discuss things with clarity and, hopefully, rationality. Obviously we express differences, and we all understand that that can provoke passion. However, to have a mechanism by which we could all be targeted or intimidated, that could distort people’s judgments, and that could affect whether people were here or not would be fundamentally in conflict with the ideals to which we aspire in this House.
Anne Marie Morris
Passing a recall Bill is one of the most important things that we can do to restore trust between Members of Parliament and their constituents. I wish that I had heard the word “trust” more in this debate. There is too much concern about the machinations of political parties trying to use the process in an abusive way. Although I understand that concern, surely the most important principle for an MP is that the relationship they have with their constituents must be based on trust.
That is why I supported the introduction of the Bill. It is also why I strongly support the amendments of my hon. Friend the Member for Richmond Park (Zac Goldsmith). I have worked with him on a number of the amendments. Accepting them is one of the only ways in which we can support the true meaning of democracy and ensure that our constituents have a genuine say. Although the Government Bill is well-meaning, to have a mechanism that can be triggered in such limited ways does not underscore the trust that must exist between MPs and their constituents. That trust is critical.
I hear the concerns about abuse. It is partly because of those concerns that I tabled new clause 2. I am pleased that there are 67 supporters of that proposition. The new clause intends to take on the challenge of how we should deal with the reason an MP should be subjected to recall. We have talked about the challenge of describing and defining wrongdoing. As has been said many times, it is virtually impossible to do so. The new clause would enable the public to put forward very clearly why a particular Member of Parliament should be subjected to recall.
There are three parts to new clause 2. First, there must be accountability in any system. That is why the reason for recall has to be put forward by a named individual. The name of the individual must be on the record and must be clear at every polling station at which the petition and, ultimately, the referendum are determined. The individual must be willing to put his name forward.
On Second Reading, it was suggested that an individual who was not the prime mover behind the recall petition might be used. I believe that the electorate are sensible enough to work out when something is a sham and when the person is just a place saver. I am therefore not convinced that that is a real risk.
Mr Kevan Jones
I am sorry, but having read the hon. Lady’s new clause, I do not think it would do anything of the sort. It would leave it wide open for the reason to be a matter of conscience on which the Member has spoken in the House or a matter of conduct in their family life that is nothing to do with this place. The reason could be anything. Only one elector would have to be identified. What about all the other electors? Would she insist that they have their names and addresses published as well?
Anne Marie Morris
The hon. Gentleman has not heard my comments on the second part of the new clause. I was talking about the named promoter and will get on to the reason and the right of reply for the Member of Parliament.
The hon. Gentleman’s question about the promoter has already been answered by a number of Members who support the amendments of my hon. Friend the Member for Richmond Park. The general view is that we do not publish how people vote in this country. That is not a matter of public record. Although I understand the concern and think that the idea is worth considering—
Anne Marie Morris
No, I will not give way. Although I understand the concern, I do not think that that will be an issue.
The second part of the new clause, on which the hon. Gentleman also commented, is the reason. He is right that any reason may be given, but he is wrong if he thinks that the electorate are sufficiently unintelligent and disengaged that they will not read the 200 words carefully to understand what it is about, particularly given the percentages that would be required. This is the opportunity for members of the public to clarify what the individual has done wrong.
One concern that the Minister raised was that the statement might be libellous. I explained that that would be no more of a risk in this document than in any other document that is put out in the same way.
Mr Kevan Jones
The hon. Lady has not answered my point at all. Like the other supporters of the amendments of the hon. Member for Richmond Park (Zac Goldsmith), she says that any reason may be given for the recall of any Member of Parliament. Some well intentioned individuals might use the provisions, but some people would finance a campaign. In the example that was given by my hon. Friend the Member for Walsall North (Mr Winnick), I am sure that a newspaper would have backed a campaign to recall the former Member for Sunderland South. The same might have been true of the example that I gave of Ann Cryer in Keighley.
Anne Marie Morris
At the end of the day, it depends upon trust and the view that we take of the electorate. I trust the electorate to make sense of what is written and to make a sensible judgment. The public have to deal with all sorts of comments and accusations in the media every single day. They do not believe everything that is written. I dispute what the hon. Gentleman says because he completely underestimates the trust and intelligence of the British electorate.
Ian Swales (Redcar) (LD)
More than 50% of the electorate voted against most Members of the House, including myself and the hon. Lady, when we were elected to this place. Does she not see the trap that political opponents will cause petitions to be raised to try to overturn the results of elections?
Anne Marie Morris
Anything is possible. We live in the real world of good and bad, but if we make decisions about introducing such legislation on the assumption that the worst will happen, rather than looking at the best that will happen, and we do not focus on trust, we will be giving the wrong message to the electorate. It should not be a message about us being concerned about some political group ganging up against us—that is the wrong message to give to the electorate. The message should be, “We trust you to make sensible decisions.” That for me is imperative.
Lady Hermon
I am most grateful to the hon. Lady for allowing me to intervene. May I draw her attention to a particular and important scenario in Northern Ireland? Although Northern Ireland was safe enough to host the G8 summit at Lough Erne and the World Police and Fire Games, it is not safe enough for us to know what amount is donated to political parties, and we still have anonymity of political donations to political parties. I would therefore have no idea who had sponsored a recall motion to get rid of me in North Down, and similarly, none of my colleagues from other parties in Northern Ireland would know that because of the anonymity. Big money can buy a recall in Northern Ireland. Will the hon. Lady address that issue?
Anne Marie Morris
Clearly, I have no knowledge of Northern Ireland and exactly how it operates, but the hon. Lady makes a fair point and there are issues about funding. However, that applies in every political situation, and I do not think that her points invalidate the suggestion in new clause 2.
It seems to me that along with my hon. Friend the Member for Richmond Park we have put forward a form of accountability, and with the provision of a reason we have provided some transparency. Under the Government’s arrangements there is no explanation or reason.
Thomas Docherty
The hon. Lady is generous in giving way and I have two quick points. At the moment, a voter may choose not to take part in the full register and be only on the so-called edited register. How would new clause 2 apply to such a person? Secondly, is she saying that a Member of Parliament could be recalled not because of something that they did, but because one of their fellow party members did something—such as in the example given by the hon. Member for North Down (Lady Hermon)—or because their party supports a policy? Will the hon. Lady clarify those points?
Anne Marie Morris
On the first point, the rules will be exactly the same as in a general election, so I do not see that there is a problem. On a Member being recalled because of something that one of their colleagues said, again I go back to my fundamental point of trust. We either trust the electorate or we do not. They can either see that something is frankly true, or they can see it as rubbish. That would be my view.
New clause 2(3) would enable an MP to have a right of reply. There is currently no provision in the Government’s Bill to give the MP any right of reply, and such a provision would provide fairness.
Dr Julian Huppert (Cambridge) (LD)
The hon. Lady keeps saying that the Government’s proposals—which I think could be improved—do not require somebody to say what the problem is or allow a response, but does she accept that such a process would take place when somebody has been convicted of a criminal offence or been suspended for 21 days, so the problem ought to be fairly obvious?
Anne Marie Morris
The hon. Gentleman makes a fair point, but I suppose that I simply do not think the grounds are wide enough. From everything that the Minister has said, it seems that although there are firm red lines that will not be crossed, even he is looking at the Bill to see how it can be improved. Let us talk about the art of the possible rather than the current constrained position in the Bill.
Jim Dowd
I am not entirely unsympathetic to the thrust of the amendments tabled by the hon. Member for Richmond Park (Zac Goldsmith), but for one reason above all others—I think this is the Government’s reason—I am not yet convinced that I will vote for them. We must understand what the threshold is for the process. The Government’s position, even though I do not support it in total, is that a single set of circumstances can deal with this issue. New clause 2 has no threshold, so therefore if one process was concluded unsuccessfully, it would not stop somebody from starting the whole process again. Can the hon. Lady give me any guarantee that that would not happen, once people had been subjected to this measure, and given the damage that even the question of facing recall could do to an individual—
The Temporary Chair (Mr Jim Hood)
Order. Interventions must be a lot shorter than that, and not replaced by speeches.
Anne Marie Morris
Gosh, that was quite a long intervention and I am not sure I remember it exactly. May I indulge the hon. Gentleman, Mr Hood? Could he remind me in one sentence of what he actually said because the intervention was so long?
Anne Marie Morris
I thank the hon. Gentleman for his indulgence; that was a much shorter and better comment. We discussed that point in the Committee, and my recollection is that there is provision to deal with that, so that someone cannot keep requesting recall time and again, as the hon. Gentleman suggests. I apologise for the fact that I cannot point him to the chapter and verse, but I agree that it is an issue that ought to be considered.
Mr Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)
Surely the stop for the process continuing over and over again is the fact of previous failure. A previous failure will obviously stop it, because if people are getting nowhere they will not continue.
Anne Marie Morris
The hon. Gentleman is right and that is the way it should work. However, the mechanism that my hon. Friend the Member for Richmond Park and I are proposing is broader and provides some comfort to those who are concerned that the process will be subject to political game playing.
I have talked through the issues of the promoter, the reason and the opportunity for an MP to be given a right of reply, but I am sure that many amendments could be tabled to my hon. Friend’s proposals to address some of those issues. For example, we could require the statement of reasons to start with a certain sentence, which would mean that the statement had to be about something that we all feel is inappropriate behaviour from a Member of Parliament. There are things that could be done, but they depend on whether we think our starting point should be the Government’s narrow starting point, or a much broader starting point that would come from a position of trust.
Anne Marie Morris
No, I will not: read my lips.
You have been incredibly indulgent, Mr Hood, and I know that many other Members wish to speak in this debate. New clause 2 goes to a matter of trust and is sufficiently important for me to ask for it to have a separate vote when we decide on the amendments. On that note, I will conclude my comments.
John McDonnell
I am grateful to the Minister for his response on the calculation of days. To be absolutely clear—again, this is not out of personal interest at all—I take it that this totting-up process is within one parliamentary Session. I would be happy if the Minister confirmed that.
John McDonnell
If there is to be an additional number of days, those cannot be carried over from one Session or some of us may well be in trouble or face the 20 days. I take the straightforward view that this is an evolving piece of legislation, and I am grateful—the Committee will not often hear this—for how Front Benchers have tried to get a dialogue going to hone the legislation to make it effective. I do not know—who am I to speak for the general public?—but from what I understand, I do not think those who have been campaigning for the right of recall for some time will be satisfied either with what the Government are proposing or with the Opposition amendments. I think the public want something much more direct on the ability to recall an MP not just for misconduct or wrongdoing, but because they have said or done something that is so outwith the opinion of their constituents, or so obnoxious, that people are willing to campaign for their recall.
I do not find that a problem. Democracy is a rough old trade at times. We live and die by the sword and the votes. On a number of occasions since I have been in the House, elements within my electorate would have sought a right of recall because of my views on Ireland—I chaired the Guildford Four campaign for a number of years—or, at one point in time, because of my views on the life expectancy of Mrs Thatcher. They should have that right. They should be able to bring together fellow constituents to suggest that something is so appalling that a Member of Parliament should be brought before the court of the electorate once again.
The fundamental issue is the one that my hon. Friend the Member for North Durham (Mr Jones) raised. How do we get that equivalence of influence or power? I understand his argument that one newspaper with vast amounts of resources could campaign against an MP. The Sun had a pop at me at one point in time but, when that occurred, my popularity went up and my majority increased—that has happened to others. He makes a valid point that that might be different if there is a by-election threat or recall outside a general election.
We need further thought on the right of reply, which the hon. Member for Newton Abbot (Anne Marie Morris) mentioned. How can that be strengthened in terms of both the statements that are made and the media? That throws up the issue of media ownership, which is a wider debate. We will be forced to come back to that and other issues at a later stage, but my view is that the electorate are not just demanding the right of reply, and there will be a reaction if we do not give them a right of recall beyond the proposed one.
Some people are not happy with the right of recall campaign by 38 Degrees. It was effective not because it was backed by big finance or a national newspaper, but because it was a grass-roots campaign. E-mails coming in their hundreds can be annoying to some MPs, but they demonstrate the vibrancy of our democracy and people’s interest.
Politics has changed in this country. People’s views are no longer shaped solely by the newspaper they read or by the influence of the magnates who own large sections of the media. We are witnessing a lot more people power. People are able to influence individual campaigns and therefore, rightly, to influence MPs’ views. My hon. Friend the Member for Swansea West (Geraint Davies) was anxious about individual campaigns—he mentioned a planning proposal for the beach. I welcome those campaigns. I welcome people’s ability to mobilise and express their views, no matter how forcefully. I find that, when I explain to campaigners that I cannot support them, I win their respect. I am sure the situation is the same in his constituency on most occasions.
Geraint Davies
I welcome campaigns in my constituency and a vibrant and active democracy. The question is whether we allow a situation whereby an MP is subject to a series of recall demands or intimidation, which would take us to a different place from the one that my hon. Friend describes, which is simply a healthy democracy.
John McDonnell
I do not believe that people petitioning or lobbying, or even media campaigns, are intimidation.
John McDonnell
Well, the right to recall time and again is the exercise of the democratic will of the local people. I do not find that intimidating. It is a democratic expression of views and I welcome it.
In Scotland, there was a huge turnout in the referendum. All of us welcomed it. People might not have welcomed the result at the end of the day, but we all welcomed that turnout. It is alleged that there were elements of intimidation in the campaign. Nevertheless, people had the sense to make up their own minds, whatever intimidation went on.
Jeremy Corbyn (Islington North) (Lab)
I thank my Friend for giving way on that point. I support the amendment we will vote on later. Clearly, what he says about expanding democracy and participation is true—it is welcome and good. Does he agree that there is a very large elephant parked outside the Chamber, namely the House of Lords, which is not subject to any kind of electoral accountability, and yet has a huge influence on legislation and can decide the future of Bills and laws in this country? Surely we need the right to recall or remove Members of the House of Lords.
John McDonnell
We will draft amendments for the next stage of the Bill. I had not even thought of amending it to that extent, but my hon. Friend makes an important point. We could make it a constitutional reform Bill.
Geraint Davies
I completely agree that the referendum in Scotland was a great expression of the democratic process, but does my hon. Friend agree with a series of referendums on Scotland? An MP could be recalled every couple of months if there was a focused attack on them. I presume he would not want another vote in Scotland, but perhaps he would.
John McDonnell
There may well be another referendum in due course. We might have to listen to the electorate on that and respect their views. If there is a continuous flow of recalls in an individual constituency, that might reflect that there is something seriously wrong within it. I believe the electorate are wiser than that. If a small group campaigned against an individual MP, the electorate would see through it. The electorate who vote in a recall are the same as those who will vote in a general election. I do not see that there would be a significant difference, apart from, as my hon. Friend the Member for North Durham has said, the focus of big money or a powerful magnate on a short campaign, which we need to address in the debate.
Mr Kevan Jones
I hear what my hon. Friend says, but he should look at what has happened in the United States. Big money gets behind the campaign. There is a recall when the big money does not like the result—the gun control lobby in Colorado is a good example. The turnout in the recall election can be quite small—I believe it was 36%. The hon. Member for Richmond Park (Zac Goldsmith) said that we would need 51%, but it will be 51% of a small amount of the electorate.
John McDonnell
I say again that my hon. Friend makes an extremely valid point on the influence of big money in recall elections, but I remind the House that, even after a recall, the individual has the right to stand at the general election, when the same electorate will vote. Therefore, if an individual is unfairly treated in a recall ballot in that way and unfortunately loses, they can stand at the general election, in which they will have the same standing as every other candidate who puts their name forward. There are protections, but he has a valid point that Front Benchers need to consider. How can an individual have the right to voice their views during a recall campaign in a balanced way, with an equivalence of resources and access to the media? That goes beyond new clause 2, tabled by the hon. Member for Newton Abbot, which I support. When the recall campaigns take off, they will be driven in some instances into the local media, and in some instances the national media.
It is a simple principle: trust the electorate and the people. The proposed system still has the hurdle of the House taking a decision on whether a recall process is set in motion. The proposal still involves the House narrowing the definition of the basis for recall. Our constituents might have a much wider view of misconduct and wrongdoing, and we must listen to them.
This is not just about restoring confidence in Parliament. We went downhill in the expenses scandal—that disaster affected all MPs, no matter how honest they were, and those who drove us into the mire damaged us all. We are slowly building confidence. I agree with other hon. Members: people come into the House to do good. This was an honourable profession, and I believe it still is. For most of us, the proudest moment of our lives was when we were elected to represent our constituents. The recall discussions will give the message that we have listened and are willing to tackle the problem, no matter how hard it is.
Naomi Long (Belfast East) (Alliance)
I accept much of what the hon. Gentleman says. However, does he agree that MPs from the larger parties have a degree of protection in that they can afford to continue to fight against recall petitions and elections, and that if MPs from minor parties, who have limited resources, are constantly put under the pressure of recall, they would be eliminated not for any wrongdoing, but simply because they can no longer afford to fight to hold their seat?
John McDonnell
That is a valid point about equivalence of arms, and the Front Benches should examine further the controls on expenditure during such periods, as well as the right of access to the media. I should point out, however, that some of us in the larger parties might not get complete protection in some instances—I shall put it no more strongly than that.
I support the amendments, and I welcome the willingness of those on the Front Benches to work together to get a workable piece of legislation that we can all support. I also look forward to the amendment to abolish the House of Lords to be tabled by my hon. Friend the Member for Islington North (Jeremy Corbyn).
Nadine Dorries (Mid Bedfordshire) (Con)
I speak to the amendments as someone who is accustomed to being in the eye of a political storm. I am possibly the only MP in the Chamber who has had an attempt at recall mounted against them. When my hon. Friend the Member for Richmond Park (Zac Goldsmith) first tabled the amendments, he asked me to speak about my own experience. At the time I decided not to do so, because I did not think it was particularly appropriate. But having heard some of the hot air in the Chamber tonight, I feel compelled to use my own example, and its consequences, to lay some of those bogus arguments to rest.
Two years ago today, I took part in a reality TV programme called “I’m a Celebrity…Get Me Out of Here” and I disappeared to Australia. The hon. Member for North Durham (Mr Jones) asked what would happen if a local or national newspaper ran a campaign against an MP, but I had every national newspaper against me and not just for a day but for a month—in my study they stand waist high. Of course, none of those newspapers said that Parliament was in recess. None of them said that I did not miss any Government legislation. None of them said that I had spent every day of the summer in my constituency office and the trip was my holiday. There were even Members who joined in the outcry against me, giving comments to the newspapers from their sun loungers from Barbados to Benidorm. Nobody said, “Oh, by the way, we are in recess”, and a massive media storm ensued. Even my local radio station, BBC Three Counties, went to my constituency and vox-popped constituents. It did not take comments from constituents who were backing me—it refused to do so. The national media created a perfect storm and rode on the crest of it for an entire month, giving them thousands of column inches.
In the middle of all of that, someone decided that I should be recalled and that they would get together a national petition. Out of the entire UK population of 65 million, one month to the day after the furore started, a national online, click and send petition—the type to which someone can contribute when they have had a bottle of red wine, or been down the pub, or read the local newspaper and got really angry with what they have read—had just 766 signatures. Facebook was a different story. The petition got just 16 likes.
So it is nonsense to say that the media can attack Members or whip up their constituents to get them recalled. There was no national newspaper, political programme or radio station that did not have it in for me during that month when I was in Australia—
Mike Freer (Finchley and Golders Green) (Con)
Will my hon. Friend give way?
Nadine Dorries
I am not going to give way at all.
Anyone would think that every one of my constituents loathed me, but they did not. In fact, hardly any of my constituents signed that petition.
Nadine Dorries
No. The hon. Gentleman has taken up enough time with interventions tonight.
My constituents did not sign that petition because they know the kind of MP that I am. I am not a party-political MP. When I am in my constituency I am not a Conservative MP—I represent everybody, regardless of what political party they vote for, and my constituents know that. They also know that I will go the extra mile. I do not do surgeries once a month—most times I do them every week. My constituents know that I will go the extra mile for them. They know that I do not get involved in grubby political games in Parliament. They know that I represent them. I put my constituency before my party, and I put my constituents before Westminster. I have always done that—
The Temporary Chair (Mr Jim Hood)
Order. The hon. Gentleman has had a lot to say tonight in interventions, and he should stay in order when the hon. Lady is on her feet.
Nadine Dorries
My constituents know exactly what type of MP I am. There has been an elephant sat inside—not outside—the Chamber tonight, and it is the reason why the Government have introduced the Bill. They have not introduced it because the public have infinite trust in us, or because they think MPs are wonderful people that work hard for their constituents. The Bill has been introduced because the people do not trust politicians any more. They have no faith in us. They need to know that they can have more democratic control over what we do here because they do not like a lot of what they see going on.
I know that most MPs come here to work hard and look after their constituents, but the Whips Office holds the keys to power and ministerial ambition so there is a difference between the consideration that some MPs give to their constituents and what they give to their own political ambition and their climb up the greasy pole. The difference is as vast as that between sound and silence. Many MPs are one person in their constituencies and a different person entirely at Westminster. People are sick of the Whip system, the parliamentary system and the party-political system. They do not want to see that any more because they want people to represent them. They want their opinions represented here. They do not want grimy deals done such as, “Don’t defect to UKIP and I’ll make you a Minister” or “Don’t vote for this Bill because the Liberal Democrats don’t want you to.” They know about those deals and they are disgusted. That is why we have the Bill.
The amendments could have been a little grittier, but it is vital that we vote for them. It has been argued tonight that Members could be removed for their position on a particular policy, but if they are good MPs that is nonsense. It has been argued that an MP could be removed because of a political row, but I am sure that all the 766 people who signed that petition were supporters of the Opposition. During the 2009 expenses crisis, one thing we knew was that everybody nationally hated MPs, but on a constituency basis many people said, “No, we don’t like MPs, but our MP is okay.” That is because they know what we do for them and the type of person we are. When MPs do fall down, it is because they ignore their constituents, do the grubby deals and put their own personal ambition above the interests of their constituency. A former Minister complained about the Bill today. I asked whether he would vote for it if he was still a Minister, and he said, “Of course I would.” That is the root of the problem—collective responsibility and putting party first.
We need this Bill. I do not believe that we will have the benefit of the British public’s trust unless the Bill goes further and we vote through the amendments tabled by my hon. Friend the Member for Richmond Park. Any MP arguing that thousands of people, just because they are political opponents, would walk down to the town hall and put their names on a register to get them out because the local newspaper has a campaign against them, is talking absolute nonsense. Nobody has anything to fear. If you are a good MP, if you put your constituency first, if you are part of the people in your constituency, and if you take no notice of your Whips Office but do what you should do in principle and do what is right for the people who elected you, then you have nothing to fear from either the amendments or the Bill.
Mr Winnick
I shall be brief. Let me make it quite clear that I certainly have respect for the electorate. Having been elected nine times, and crossing my fingers that there will be a 10th time, I have every reason to respect the electorate, but my respect would be the same if the electorate’s decision had been different.
Mr MacNeil
On the fear of recurrent recalls, does the hon. Gentleman agree that an amendment should be tabled requiring that a person pay a deposit to call a recall referendum, as is the case for elections to Parliament, in order to inhibit constant recall mechanisms and time wasting? The deposit might be redeemable only on a successful recall.
Mr Winnick
It might or it might not.
In future reform campaigns, we will need the courage of MPs to do as I have indicated and not to feel inhibited by the greater pressure put on them by the recall mechanism. If an MP in a highly marginal constituency—my first, and only, majority in Croydon was 81—was elected with a majority of, say, 100 or 150, perhaps winning it for their party for the first time, would they, being keen to get re-elected, think that the time to take up a controversial issue? They might wonder what purpose it would serve, given their slender majority. Of course, it is easier for Members with larger majorities to pursue such campaigns, but those with tiny majorities would feel greatly inhibited from doing what they might otherwise consider necessary.
Mr Andrew Turner (Isle of Wight) (Con)
I accept the point about tiny majorities, of course, but the question is whether we adopt the proposal from my hon. Friend the Member for Richmond Park (Zac Goldsmith), the proposal for a 50% threshold to get rid of an MP or the Government’s proposal for 15% or 20%—or is it 5%? Whichever way, it is a relatively small number. That is the problem.
Mr Winnick
Yes, it might be. As I said at the start, there is bound to be a recall mechanism that the House will approve by a majority—that is inevitable—but I stress what the Labour spokesman and others have said about the importance of distinguishing between conduct and policy. I was in the last Parliament and I have no doubt that we did ourselves a great deal of damage. It is said that the House of Commons has never been popular. It was said last week that in October 1834, when the building went up in flames, people actually cheered, and I have even heard it said—although I find it difficult to believe, because I am not aware of any great scandal or any allegations of MPs taking unfair rations—that the House of Commons was not particularly popular during the war. We should not have any illusions. Nevertheless, damaging and justified accusations were made against many Members and, even though a large majority of MPs were found not guilty of fiddling their expenses, collectively the accusations did us a great deal of damage, and had that damage not been done, it is unlikely we would be discussing this matter now. I have no illusions about that.
I do not question for one moment the sincerity of the hon. Member for Richmond Park. I know that he has a genuine view, which he has expressed—indeed, I think he expressed it before he came to the House of Commons—but I have to say, for the reasons I have stated, that I have some disagreement, to say the least with what he is proposing. I would rather have a different mechanism.
The only other point I would make is about the danger of tit for tat. I will not mention a certain Member, but I can imagine that in this Parliament there would have been a great deal of pressure from one side to start the recall mechanism. If that had happened, the other side would inevitably have acted in the same way. It is always the same in the House of Commons: if one side starts a process that is damaging to the other side, the other side responds accordingly. We could have this tit-for-tat business—it might not happen, but it is a possibility—where MPs put great pressure on their leaders by saying, “Why don’t we start the recall process? The other side did it over X; why don’t we do it over Y?” I wonder whether that would do much good for the reputation of the House of Commons.
Susan Elan Jones (Clwyd South) (Lab)
It seems to me that one of the big issues with trust in politicians concerns money. Does my hon. Friend agree that we really should look at Members’ second jobs, which has a lot to do with the erosion of trust?
Mr Winnick
I am sure my hon. Friend is right. At the end of it, I hope we will all reach a consensus of a kind—well, at least a majority.
Mr MacNeil
The hon. Gentleman mentioned tit for tat, but does not game theory suggest that if someone knew that starting a recall effort would be reacted to by the other side—if, indeed, the motive was political—that would prevent the process from starting in the first place? The potential for tit for tat eliminates that possibility, which brings us back to dealing with genuine scenarios.
Mr Winnick
It might do, and that scenario might not arise in the first place. I am just saying that there is a possibility that if that did happen, it could damage the reputation of the House of Commons. All these are matters that I hope will be taken into consideration.
I hope that we will reach a majority—I said “consensus” earlier; “majority” is a better word—so that we can say we will have a mechanism, but one that will work. It should also be one—this is the purpose of my intervention in the debate—that does not hinder Members of Parliament in raising issues, however controversial or unpopular, that they believe to be right.
Sir Edward Leigh
I rise to speak to amendment 41, standing in my name, which would add the words:
“No action shall be initiated against an MP in relation to a recall petition process on the basis, or as a result of votes cast, speeches made or any text submitted for tabling by such an MP, within, or as a part of, a parliamentary proceeding.”
It is quite obvious what I am trying to get at, and I am afraid I disagree with my hon. Friends the Members for Mid Bedfordshire (Nadine Dorries) and for Richmond Park (Zac Goldsmith). I believe that parliamentary privilege and our freedom to say anything in this House, knowing that we will be held to account only in a general election, is a very powerful defence of liberty against tyranny. It is a matter of the utmost importance, and I think that the amendment tabled by my hon. Friend the Member for Richmond Park is extraordinarily dangerous.
I know that the very phrase “parliamentary privilege” sounds a bit old fashioned and pompous, but it is terribly important in our history. As the Library put it,
“The ancient origins of parliamentary privilege, and the archaic language that is sometimes used in describing it, should not disguise its continuing relevance and value. As we have noted…the work of Parliament is central to our democracy, and its proceedings must be immune from interference by the executive, the courts or anyone else who may wish to impede or influence those proceedings in pursuit of their own ends.”
For centuries, we have maintained from the Bill of Rights the absolute freedom of extraordinarily difficult, unpopular, unfashionable people to say difficult, unfashionable, unpopular things in this House, knowing that nobody outside in any court—this is where I disagree with my hon. Friend the Member for Somerton and Frome (Mr Heath), who wants to set up some electoral process or court, or whatever it is called—can hold them to account. Every Member has known for centuries that they have the freedom to express very unpopular opinions, knowing that they can be held to account only at a subsequent general election.
Mr MacNeil
What I think the hon. Gentleman has been describing over a period of centuries has been the evolution of politics and the evolution of democracy right on to the granting of universal suffrage. I would argue that what the hon. Member for Richmond Park (Zac Goldsmith) is suggesting and wants us to move towards is the next extension in that evolution of democracy that started those 300 or 400 years ago.
Sir Edward Leigh
I know that that is what my hon. Friend the Member for Richmond Park argues and I know that the new hon. Member for Clacton (Douglas Carswell) argues the same—that this place is somehow increasingly irrelevant, part of a Westminster political class or an elite and that we need rather to transfer power into some sort of referendum-based democracy. This, however, is a sort of Poujadist argument, and if we look at history, we find that it has often led to tyranny. Dare I say it, some insurrections that have come from the right—I shall not mention any political party that has been in the news recently—often result in stirring up a feeling in the country that things are really appalling. Then a particular group of people can be picked on—it may be Poles now, it might have been Jews in the last century and might have been Catholics in the 17th century—and popular opinion can be whipped up, followed by an attack on the so-called establishment or on particular MPs for what they are saying.
There is a lot of wisdom in this place. We are a parliamentary democracy; we discuss things among ourselves. That is not an elitist thing to say. We are having a good debate now, and we have heard wonderful speeches from the hon. Member for Swansea West (Geraint Davies), who argued for one point of view, and from the hon. Member for North Durham (Mr Jones), who has argued from a different point of view. We have heard different speeches from my hon. Friends the Members for Mid Bedfordshire and for Richmond Park. We will hear other speeches from the Minister, who might offer us a half-way case. We are discussing the issues in a rational and popular way, but we know that nothing we say here, no vote that we cast and no speech we make can ever be held against us until that awesome day—general election day—arrives, when we are exactly the same as anybody else.
We are not talking about any particular group who can spend vast sums of money—the hon. Member for North Durham reminded us again and again of what happens in the United States—to attack us on a particular issue and try to get rid of us on that basis. We stand with 650 other people. We are equal and the people vote us in or out on the basis of a broad range of policies.
I know that the Government will say that my amendment is not necessary, because it will involve the procedures of the Privileges Committee and all the rest of it. I think, however, that my amendment probably is necessary in this sense. I am grateful to the Minister for saying that he would look on it with a kindly light. We live in a very judgmental age. We have had instances with the hon. Member for Bradford West (George Galloway), who as usual is not in his place. He comes here and rants and says the most outrageous things. We have had cases in the past involving Tam Dalyell, that wonderful man, and Ian Paisley, that equally wonderful man. They were expelled from Parliament.
The hon. Member for Hayes and Harlington (John McDonnell) mentioned one of my own colleagues saying something in the Chamber that was frankly racist. If he had said it outside the House, he might have been taken to court. I do not want to use a cliché, but, although what he said may have been completely wrong, I, like Voltaire, may disagree with or hate what he said, but respect his freedom to say it in this place. If you cannot speak your mind here, knowing that you cannot be held to account, where else in our kingdom can you speak your mind?
What my hon. Friend the Member for Richmond Park is doing is fundamentally very dangerous indeed. It goes against centuries of our history. Is our history so very wrong? Have we not ensured that our country is the only country in Europe that has never been a police state, and has never had a police state imposed on it? Has not the House of Commons, through all those centuries, guarded by these privileges, protected fundamental freedoms? Is that not something to be proud of? For those reasons, I—along with Members in all parts of the House—will vote against my hon. Friend’s amendment. Freedom of speech—allowing Members of Parliament total freedom of expression, with a very few traditional exceptions, such as insulting the sovereign—has always been defended by Parliament.
Sir Edward Leigh
If the hon. Gentleman wants to insult the sovereign, I personally am perfectly happy with that. I do not think that he should be recalled by a group of MPs for insulting the sovereign, or for anything else.
Sir Edward Leigh
All right, I will give way, just to please the hon. Gentleman.
Mr MacNeil
I am listening to what is quite an egalitarian speech. I am a monarchist myself, but I do not like the idea of separating one person from another in this context. The hon. Gentleman himself referred to the monarch coming into the Chamber. I think that the strand of history that we are talking about has featured the elites giving way when they have had to give way, and that is happening again now. The elites are giving way, or they should be giving way.
Sir Edward Leigh
The myth that is being propagated by some Members—not least by the new hon. Member for Clacton, whom I respect in many ways—is that we are an elite. We are not an elite. We have all been elected by people, and we can all be unelected by people.
We in the House of Commons must be prepared to be proud of what we have achieved. We must acknowledge all the appalling errors that we have made over Members’ expenses and a number of other issues; no doubt we have been found wanting in many respects; we are only human beings, and all the rest of it. But the argument that there is a better form of democracy—that some kind of participatory democracy based on referendums and people getting together and collecting petitions is more democratic than debate in this House—is fundamentally flawed. I realise that that may be an unfashionable opinion.
Sir Edward Leigh
As I have taken the hon. Gentleman to task so strongly, I think it only fair that he should have a chance to gainsay me.
Zac Goldsmith
I shall not seek to persuade my hon. Friend on the fundamental issue of principle that he is discussing. I think that he has correctly identified the line in the sand. People will have to take a view based on what he has said, or on what I and others have said, in relation to that fundamental principle. However, I have a question for him. He fears that my amendments open up the possibility of Members being held to account for things that they say in the Chamber, but surely that is even truer of the Bill. Plenty of Members have been sanctioned, thrown out of the House and suspended for considerable periods as a result of things that they have said and done in the Chamber. The Government’s programme would, at that stage, require a petition to be signed by only 10% of their constituents for them to be thrown out altogether. They would cease to be Members of Parliament. Yes, they might be able to fight back in a by-election, but they would be thrown out of their jobs. That is surely a greater threat to the principles that the hon. Gentleman is guarding.
Sir Edward Leigh
To be honest, I do not really understand that intervention. I have mentioned the hon. Member for Bradford West, Tam Dalyell and Ian Paisley, and I have done some research on which Members have been thrown out for expressing their opinions. Since the Bill of Rights, the only one to be thrown out has been John Wilkes, Before the Bill of Rights—this is quite important; people have always felt this to be a crucial part of the liberties of this country—it was quite common to throw Members out. For instance, one Member was thrown out for inventing orders from the Duke of York to down sail, which prevented England from capitalising on its naval victory off Lowestoft in 1665. Another Member, Edward Sackville, was thrown out because he denounced Titus Oates as a “lying rogue” and he disbelieved in the Popish plot. Another one was thrown out for associating with the Duke of York in alleged complicity in the meal tub plot, and so it goes on. So it was actually very common to throw people out for expressing opinions that the Executive did not like.
Jacob Rees-Mogg
The early examples of people being thrown out were not necessarily because they offended the Executive, but often because they offended the House. The Popish plot was not popular with the Executive—they were reluctant to believe it—but the House of Commons was obsessed by it.
Sir Edward Leigh
Yes, that is a very fair point. In those days some Members were thrown out because they held opinions that were wildly unpopular with the general public.
John Wilkes absconded to France after being charged with libel over issue No. 45 of the North Briton. He was convicted of libel and blasphemy and seditious libel. He was then returned to the House by his own electors, despite having been expelled, and he finally managed to establish his right to stay in the House. I think that was the last case of a Member who was expelled from the House for his views. So, in defence of the Government and of the present system, I think we can pretty fairly establish that nobody in the last 200 years has been expelled from the House, or had any sort of recall-type of procedure initiated, on the basis of just the speeches they made or the votes they cast.
I do think my amendment is important, however, and I am grateful that the Minister is prepared to look at it in a positive light, because, assuming the amendment of my hon. Friend the Member for Richmond Park fails, and assuming the Government’s Bill goes through much as it is now, I think we will want it on the face of the Act, for the absolute avoidance of doubt, that no recall procedure can be initiated on the basis of what we say in this place or how we vote in this place. Somebody could say something that is so outrageous—it might be racist or it might be the sort of comments the hon. Member for Bradford West makes from the far left—and that goes so much against popular opinion that, strangely enough, the Privileges Committee might start initiating this procedure. I know we think that is unlikely. I am talking about a belt-and-braces procedure, but I just want to be absolutely certain that we defend our ancient privileges.
We must remember that these are not privileges for us. These are not our privileges; they are the privileges of the people who demand that we have free speech here.
Stephen Pound
I appreciate the historical information we have got in this debate, which will certainly mean we are better educated at the end of the evening, but on the subject of Parliament exercising its own rights in terms of outrage, may I remind the hon. Gentleman—not that he needs reminding—of Charles Bradlaugh, who was a perfidious atheist representing the then borough of Northampton, and who was returned here four times, and the House dealt with it? It refused to allow him to take his seat on four occasions, and then decided, “Why not?” and let him in. It was dealt with in-house.
Sir Edward Leigh
It was dealt with in-house. He was a great man. He argued his case. He came here four times and finally, sensibly, we bowed to modern reality and we let him in.
Before I sit down, I shall give another historical example that shows how generous we have been. Arthur Alfred Lynch was an Irish nationalist MP for Galway city. He was tried and convicted for high treason. He fought on the Boer side during the South African war; he fought against us. He was sentenced to death, but it was commuted to life, and he was pardoned in 1907. As an astounding testament of our legacy of clemency and tolerance in this country, he was readmitted to the House in 1909 when West Clare returned him to Parliament. Indeed, the King even commissioned him a colonel in the Royal Munster Fusiliers during the great war.
I am sorry to give these historical examples, but they just show how extraordinarily generous we have been to people who honestly disagreed with us, and even fought against us in a war, but then were returned by their constituents. We said, “Yes, all right, you have made your point, but you are an honourable man so we’ll let you in.”
Dr Huppert
It is a pleasure to hear the hon. Gentleman praise Charles Bradlaugh, a notable atheist, but he has not quite addressed the point that was made earlier. What would happen with cash for questions, for example, where an essential factor is the question in this House? How would his amendment deal with that?
Sir Edward Leigh
The Minister dealt precisely with that point, and I am quite prepared to engage in discussions with the Government. I do not want to defend somebody who puts down questions for cash. That was not the purpose of my amendment. In fact, the hon. Member for Somerton and Frome came up to me at one point and said, “If you inserted the word ‘properly’ in the middle of the amendment to make sure you were acting in a proper fashion, and you were just expressing a point of view that this procedure should not be started, we could resolve the issue.” So I am sure we can deal with this point.
My right hon. Friend the Member for South East Cambridgeshire (Sir James Paice) has a very similar amendment that would kick in if that of my hon. Friend the Member for Richmond Park is passed, so we are working in tandem on this. If the latter amendment is passed—I do not want to speak for my right hon. Friend, who can speak for himself—I urge Members on both sides of the House to think carefully about my right hon. Friend’s amendment. It would make it clear that, although we had accepted the point of view of my hon. Friend the Member for Richmond Park that the process should be taken out of our hands entirely, this whole recall procedure could not be started just on the basis of how one speaks and votes. If, as I suspect from the speeches we have heard, we reject my hon. Friend’s amendment, I hope the Government will look kindly on my amendment so we can include it in the Bill and clearly preserve the freedom and liberties of this House, which we value so highly.
Sir James Paice
When my hon. Friend the Member for Gainsborough (Sir Edward Leigh) said that I can speak for myself, I was beginning to doubt whether I was going to get the opportunity, particularly as it is probably a couple of hours since the Minister replied to the speech that I had not then given.
I should start by pointing out that I am speaking with complete independence, because whatever happens to the Bill, it will not apply to me as I am not seeking re-election. I am therefore looking at it, I hope, as objectively as possible. As my hon. Friend has just said, my amendment (a) is to new clause 2, so if new clauses 1 and 2 fail, my amendment obviously falls. I have some sympathy with those amendments, although nothing like enough to make me support them as they stand.
My hon. Friend—he is a friend—the Member for Somerton and Frome (Mr Heath) deserves credit for trying to find a way forward beyond the way the Bill goes, but nothing like as far as my hon. Friend the Member for Richmond Park (Zac Goldsmith) has gone. I am slightly in conflict with my hon. Friend the Member for Gainsborough (Sir Edward Leigh) because, despite his brilliant historical exposition of the freedoms we have in this House, I think the time has come when we have to recognise that the public do not trust us to manage our own affairs. We have accepted that in respect of allowances, although I will not go down that road. We are not all particularly thrilled with what we have, but never mind: we have accepted it. I think we probably have to accept it in this context, as well, but in nothing like as wide open a way as the amendments tabled by my hon. Friend the Member for Richmond Park and others suggest. As I say, I pay tribute to my hon. Friend the Member for Somerton and Frome, and I was really pleased that the Government intimated that they will look at his proposals.
I want briefly to explain why I wanted to table this amendment. If the Committee is minded to support my hon. Friend the Member for Richmond Park, it is crucial that we narrow down the field to which recall could be applied. I know that he and others take a different view—that the field should be wide open and we should entirely trust our constituents in that regard—but as many Members have said this evening, I seriously wonder whether we are creating a problem unnecessarily, and an opportunity for large pressure groups, probably backed with big money, to make a big impression on this House and to counter and influence the way in which Members vote.
The hon. Member for Swansea West (Geraint Davies), who is no longer in the Chamber, cited his experiences, and the hon. Member for Walsall North (Mr Winnick) referred to when he was a Croydon Member—there seems to be a history of Labour Members representing Croydon marginals for short periods—with a majority of 81. Fortunately, I have not been in that position, but I fully understand why people with such a majority may feel pressurised about how they vote. This is not a party issue, and I am delighted that Conservative Members have a free vote, as is only right and proper.
Mrs Anne Main (St Albans) (Con)
My right hon. Friend talks about Members who, like me, represent marginal seats. We must be careful that we do not give the public the completely wrong impression that we are not going for this idea because we are running scared of being destabilised in such seats.
Sir James Paice
I note what my hon. Friend says, but I would not be prepared to say that, if I had a majority in the order of 100, I would not be very concerned about what people thought about me. I am concerned anyway, but at least, for the reasons that my hon. Friend the Member for Gainsborough set out, I am able to stand here and say whatever I like in the knowledge that I am protected by privilege. I would not wish to abuse that privilege—I do not think that I have ever sought to do so—but if what a Member said could be held against them, as might be the case if the amendments are agreed to, we could jeopardise their opportunity to speak with the freedoms that we rightly pride in this place.
Like other Members, I have looked up a couple of statistics. Only 207 hon. Members—less than a third—received over 50% of the vote. Indeed, 100 Members received the votes of less than 25% of their electorate, which demonstrates just how tight things really are. We can imagine the opportunity for well organised and probably well funded pressure groups to exert influence on Members with a small proportion of the vote—just enough to have scraped home—through the threat of recall. It is easy for Members to say, as some have, “I am far too strong-minded and I will not be bought,” but I challenge that. It would be a brave individual who faced such pressure yet did not feel that they might have to bend to it.
I will not add to what we have heard about vexatious cases, but those of us who have been here for a number of years know that all Governments, of all complexions, become very unpopular at sometime during their mid-term—some are unpopular for the whole term—yet despite that, they quite often get re-elected. However, during that mid-term period of unpopularity, it would be possible to have a series of recalls in tight marginal seats simply to change incumbency, and that could end up changing the Government. I do not have a problem with a change of Government between general elections—that is democracy—but it would be wrong if that were to arise because of a concerted effort targeted at specific MPs on the basis of things that they had said or votes they had cast. That was why I tabled amendment (a) to new clause 2, which would protect Members by not allowing reasons relating to their freedom of expression from being cited in a statement of reason.
In response to the speech I had not then given, the Minister said that my suggestion would work only to a certain extent, because it would not stop such issues being raised as part of a general campaign. However, if those issues could not be cited as reasons for seeking a recall petition, that might be enough to stop a campaign from starting, as other reasons would need to be cited in the statement. It is perfectly true that there could be other mechanisms for publishing the real reason, which is how the Member had spoken or voted, but I think that preventing that being promulgated as the official reason that goes out with the petition would offer considerable protection.
If there is a better way of doing that, obviously I, like other Members who have proposed amendments, would be happy to listen to it. However, if the Committee is minded to support new clause 2—as I have said, I could not possibly support it unless my amendment (a) is accepted by its proposers—I would have to oppose the whole raft of amendments standing in the name of my hon. Friend the Member for Richmond Park and other hon. Members.
If we stopped people on the street and asked them about recall, most would say—if it registered at all—that it relates to misconduct and bad behaviour. Very few would relate it to votes, speeches or views. Nevertheless, I think that there is that risk, and I want to protect hon. Members from it. My amendment would prevent anybody giving as a reason for recall anything that fell under freedom of expression. My hon. Friend the Member for Gainsborough has tabled a similar amendment, but I will not repeat what he has said.
Having been a Member for more years than I care to remember, I fear that the idealistic way in which the amendments have been cast means that they are just too broad. As I said at the outset of my comments, I fully accept the need to go further than the Government are going, and I think that there is a need for popular involvement, but it has to concentrate on the real issues that cause the public concern: unacceptable behaviour by their Member of Parliament that devalues their role. We all agree that that is necessary. The issue is whether we extend that to matters relating to freedom of speech, which I think would be a step too far.
Crispin Blunt
I am delighted to have the opportunity to speak at the end of the debate, presumably before my hon. Friend the Member for Richmond Park (Zac Goldsmith) responds. It has been a really excellent debate. However, we need to remember where the Bill, and the amendments that have been tabled, come from. They arrived in all the parties’ manifestos in 2010 as a response to the expenses disaster. All of us who lived through that know how debilitating it was and understand the enormous damage it did to the reputation of this place.
We have here a collapse of institutional self-confidence. With regard to how we can regulate ourselves and prostrate ourselves in front of our electorate, almost nothing is good enough in addressing that lack of confidence and trying to regain some of our reputation with the electorate. I suggest that the proposition coming from the Government, in the form of the Bill, and the amendments proposed to it are a continuation of that. As an institution, we are like a whipped dog that is simply cowering ever lower.
Counter-intuitively, I think that it is about time we started making the case for this institution and for how it works, as political parties that are here to support an Administration that is able to put through a credible programme of government for four or five years—now five years, by statute—and to govern effectively in the interests of the country.
My hon. Friend the Member for Mid Bedfordshire (Nadine Dorries) put the populist case absolutely wonderfully in her brilliant polemic, but I am afraid that a rather difficult practical case must be put in opposition to it. If we all took her principled view about our duties in this place, we would not have an Administration for four or five years who were capable of putting together a coherent programme of government and addressing the issues of the country over the lifetime of a Parliament. I know that she does not like the Whips Office—I served in the Opposition Whips Office for about five years, so in that sense I am guilty as charged—but, as Enoch Powell said, Whips are the sewers of the system; they are absolutely essential to the general health of the entire system. She criticises her colleagues for doing “grubby deals” on this and that, but that is what we have to do in order to build a coalition either within a political party or between political parties to deliver coherent government.
Nadine Dorries
I am grateful to my hon. Friend for giving way, because not giving way is the maxim by which I live my life. I totally understand his point about the coalition. However, it has been reported tonight that the Prime Minister and the Chief Whip will not be voting for these amendments because the Liberal Democrats have asked them not to. How does that benefit government? How is that principled?
Crispin Blunt
I have absolutely no idea. The Prime Minister is trying to run a coalition. He has to keep within this coalition our colleagues who are helping us to govern and delivering a majority in voting for taxes that make for some form of fiscally sensible arrangement. Of course there are going to be grubby deals—they have to be done. My hon. Friend has possibly given an example, although I have no idea of whether what she says is accurate.
The proposals by my hon. Friend the Member for Richmond Park open us up to the possibility of being subject to recall all the time. That would make it immensely more difficult to support a Government in maintaining a coherent programme. There is a reason why Governments do the difficult things in the first few years of the Parliament: it is because they know they are going to be unpopular.
Part of my hon. Friend’s argument was to say, “The key thing here is about public confidence.” I accept that there is a lack of public confidence in this institution; that is why the Government have finally got round to proposing this measure. However, we must ask ourselves whether that will be addressed by our cowering yet lower in the face of it, or whether we should get off our knees, have some institutional self-confidence, and make the case that we are, in fact, regulated to an enormous extent as Members of Parliament. We have the Parliamentary Commissioner for Standards, the Independent Parliamentary Standards Authority, the criminal law—which, if we are convicted, will result in our being thrown out—the Standards and Privileges Committee, the Register of Members’ Financial Interests, and all the rest. An enormous number of bodies now oversee this place and our behaviour.
The question is whether this Bill is trying to address a real, practical problem about our behaviour, individually or collectively. The answer, I suggest, is no. Is there a reputational issue? Of course there is, and we have to work out the right solution to that. The Government’s proposals, which try to find a limited way of doing something to create the principle of recall, are not right and do not address the issue practically, while the proposals by my hon. Friend the Member for Richmond Park are frankly dangerous. I absolutely agree with my right hon. Friend the Member for South East Cambridgeshire (Sir James Paice) and my hon. Friend the Member for Gainsborough (Sir Edward Leigh) about the dangers that they open up. Those arguments were also made by the hon. Member for North Durham (Mr Jones).
Mr Lansley
I put it to my hon. Friend that there is a gap in the regulation, which the Bill is intended to fill. When the public see instances of gross misconduct that result in either a court sentence or a substantial period of suspension from this House, they say that in any other normal profession people would lose their jobs under such circumstances. This Bill puts Members in that position when it might not have happened otherwise.
Crispin Blunt
Do we have an actual problem or a perception of a problem that does not actually exist? In practice, we do not have a problem. If a Member is sentenced to imprisonment for a period of less than a year, it is highly likely that they will choose to stand down, as has happened. Equally, the same thing is likely if Members receive a sentence from the Standards and Privileges Committee, as happened with our former colleague Patrick Mercer, who decided to stand down. There is not a practical issue that we are trying to address. I accept there is a perception issue, but we have to work out the right way to address it.
The hon. Member for Swansea West (Geraint Davies) made a further practical argument against the measures proposed by my hon. Friend the Member for Richmond Park. When I lost the executive vote on my reselection, the issue was put to a simple vote of the members of the Conservative party in Reigate, but take it from me: that occupied most of my attention for the two months it took to complete the ballot. I won by a margin of five to one, but the process was something of a modest distraction from my other work representing my constituents. The hon. Member for Swansea West made an absolutely valid point: the suggested process would be the most enormous distraction from the duties we are actually here to do.
As my hon. Friend the Member for Gainsborough has said, are we not already subject to recall? Every five years we have to face the electorate in a general election.
Mr MacNeil
The hon. Gentleman has raised a number of points, but his speech is dominated by the idea that there is a battle between parliamentarians and the voters. He has questioned whether there are problems, but of course there must be problems if standards bodies such as the Independent Parliamentary Standards Authority have been set up. Perhaps those sticking plasters have been set up because adequate mechanisms have not been available to the electorate to get a hold of Members of Parliament and bring them to account in good time. That is all hidden under the blanket of the general election. That is why we are having this debate. This is revolutionary democracy. The cat is out of the bag. If this does not happen now, proper recall will come at some point. It always happens. The elites, the powerful and the parliamentarians of Westminster will always rail against it, but in the end they will have to yield.
Crispin Blunt
I say in all candour that we need to pay attention to how we are going to stand up for Parliament as an institution, because things are changing out there. There are now very strong single-issue lobbies that were not there before, and new electronic media give them a way to come together quickly and run very strong campaigns.
The problem we face is the collapse of interest in political parties. All the political parties are suffering from a diminution in membership.
Crispin Blunt
I enjoyed the hon. Gentleman’s intervention on my hon. Friend the Member for Newton Abbot (Anne Marie Morris). He told her that the thing that would stop endless petitions against individuals who were then targeted by particular lobbies was failure. I look forward to hearing about the dissolution of the Scottish National party after its failure in the referendum on independence. The party has failed, so is that it? Is the SNP going away and packing up its tents? I rather suspect not, and we can expect the same of single-issue campaigns, which will target Members—particularly those who are brave enough to stand up for unpopular causes—and continue to be on their tail, if we agree to the proposals of my hon. Friend the Member for Richmond Park.
Money is also an issue, as the hon. Member for North Durham has said. My campaign to get reselected was targeted at about 500 Conservatives in Reigate. That campaign had minimal costs, but I then had to say thank you to all the people who campaigned for me and so on, and the cost of that non-campaign headed into four figures. Hon. Members should imagine having to campaign in their constituency. If they were standing up for an unpopular cause and their party did not roll in behind them—the hon. Member for Hayes and Harlington (John McDonnell) gently predicted that his party might not be too keen to rally to his aid—they would be very exposed by recall. Some of us do not have the resources to fight such campaigns.
Robert Halfon (Harlow) (Con)
I feel that my hon. Friend is creating an Aunt Sally that does not exist. As I understand it, the amendments tabled by my hon. Friend the Member for Richmond Park (Zac Goldsmith) require 20,000 people to go to a town hall to vote for a recall. That is very unlikely, even with outside organisations trying to stir things up.
Crispin Blunt
That was the superficial attraction of the amendments tabled by my hon. Friend the Member for Richmond Park. I thought that I might even vote for them because they at least to some extent made the public relations purpose of the Bill more effective by meeting the challenge of involving the public in this exercise. The superficial attraction of his argument was the one expressed by my hon. Friend the Member for Harlow (Robert Halfon), which is that recall will not happen away, because no one will be able to clear this hurdle. It has hardly ever happened in the United States, and we have made it so difficult to achieve that recall will not do anything in practice. We therefore need not worry because this is simply about public relations, and the public relations tricks are dealt with better by the amendments tabled by my hon. Friend the Member for Richmond Park than by the Government’s Bill.
Institutionally, we now need to make the case for this institution. It is wrong to address an issue of perception through legislation. We should make a case—the kind of case brilliantly made by my hon. Friend the Member for Gainsborough—about what a representative democracy is about in principle. That is changing in this environment of much greater popular engagement. The problem we face is that we must, at the same time, produce coherent administration. We have to support a Government who have a programme and will vote the taxes and do the unpopular things required to administer this country effectively. If we give in to the kind of populist pressure coming from my hon. Friend the Member for Mid Bedfordshire or my hon. Friend the Member for Richmond Park, who spoke in a very principled way, we will create for ourselves a practical problem about what we are here to do, which is to ensure the sound administration of the United Kingdom.
Zac Goldsmith
Does my hon. Friend not agree that more or less every 30 or so years since the first Reform Act of 1832, the franchise has been expanded and democracy has been updated to adjust to social changes. That happened right up to 1969, but since then the world has changed beyond recognition for the reasons he has eloquently described, not least the internet, social media and so on. Does he not accept that there is a need for democracy to be updated again, or have we reached ground zero in the political history of democracy in this country?
Crispin Blunt
We have a practical problem about how we adapt as an institution—both the Government, and Parliament in holding the Government to account—and about how we as elected representatives manage it. Of course the temptation is to begin to go down the road of constant referendums or opinion polls by e-mail, but that does not put together a coherent programme for Government. That is the issue we must address, and I do not think that the Bill or my hon. Friend’s amendments will do the job.
Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)
My hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty) spoke to set out our case for our amendments and to respond to those tabled by the hon. Member for Richmond Park (Zac Goldsmith) and others. In my speech, I will focus on the cross-party amendments tabled by the hon. Member for Somerton and Frome (Mr Heath) and others.
I want to restate the fact that Labour supports the principle of recall. It was in our manifesto, which the Minister quoted:
“MPs who are found responsible for financial misconduct will be subject to a right of recall if Parliament itself has failed to act against them.”
Against that test, our view is that the Bill is not strong enough. That is why we tabled the amendments that my hon. Friend the Member for Dunfermline and West Fife set out on lowering the suspension limits that might trigger recall and adding additional conditions, including on conviction for financial misconduct.
Mr Gyimah
This has been a good, if long, debate, and after four and a half hours of Committee we are still very much on clause 1. As the Minister of State, Cabinet Office, my right hon. Friend the Member for Tunbridge Wells (Greg Clark) said, the Bill faithfully implements the commitment given at the last election to introducing recall for MPs for misconduct. Some colleagues believe that is unnecessary and that the House—and courts—already have sufficient sanctions. Others believe that what was promised should not have been promised, and that constituents should be able to trigger a recall of their MP for any reason at any time. Faced with those two alternatives, I think the Bill deserves support. It does what we said we would do, while safeguarding the right of MPs to speak freely without imperilling their position in this House before the verdict of their constituents at a general election.
As I summarise the points raised, I would like to get away from the distinction that some Members have tried to draw between bogus and real recall. As my right hon. Friend the Minister made clear, the Government have committed to considering how a number of the amendments can be reflected in the drafting of the Bill, including a means for constituents to trigger a route for recall from proven misconduct, and the link with convictions under the parliamentary expenses system. Those are all constructive ways of dealing with the shared desire across the House to make this a Recall Bill that is robust and commands the confidence of the electorate.
Let me turn to some of the speeches made today. My hon. Friend the Member for Richmond Park (Zac Goldsmith) spoke passionately—as he is known to do on these matters—and touched on the threshold, cost controls and the fear of endless harassment.
Stephen Barclay (North East Cambridgeshire) (Con)
Will the Minister clarify whether a threshold could be dovetailed on to another election—for example the Scottish referendum or a European election—as a way of distorting the achievements of that threshold, or whether it would need to be secured on a separate date?
Mr Gyimah
I think the answer is that a threshold could be on any date.
My hon. Friend the Member for Richmond Park said that the threshold, cost controls and endless harassment were technical issues that we could deal with quite easily. As we learned in Committee, however, such issues are germane to his recall proposal, and therefore to his argument.
Several Members made the point that not only was the threshold of 5% for the initial stage of recall too low, but it could be requested again and again, meaning that a Member could face several notices of recall during a Parliament. While those notices of recall may not be successful in themselves, as the hon. Member for North Durham (Mr Jones) pointed out, the sheer fact that a Member could face recall on any issue at any time again and again could serve to stop them performing their duties—apart from the fact that dealing with a recall could be a complete nuisance.
The hon. Gentleman also touched on cost controls, and something my hon. Friend the Member for Richmond Park did not explore in great detail is the point that before the notice of petition is given under his scheme of recall, a lot of money could be spent that is not recorded anywhere at all, in order to destabilise an MP and make it difficult for them to fight the recall when it happens. The hon. Member for Belfast East (Naomi Long) noted that compared with the main parties, minor parties do not have the funds to fight even one recall petition, and the same applies to Independent MPs. Cost control is not a simple, technical issue, but is central to the argument for full recall and something that I do not believe has been addressed today.
My hon. Friend the Member for Richmond Park spoke of MPs in the context of their role as legislators. MPs are not just legislators; some are members of the Executive. How will the Minister for planning, the Minister for fracking, the Minister for benefit reform or the Minister for austerity deal with a situation in which recall can be initiated against them on a 5% threshold? In other words, it would be almost impossible for certain MPs—[Interruption.]
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
Order. The Minister will be heard.
Mr Gyimah
It would be very difficult for certain Members, especially those with relatively small majorities, either to serve in the Executive or to take the unpopular decisions that Governments must take. As my hon. Friend the Member for Reigate (Crispin Blunt) said, to govern is to choose.
The hon. Member for Somerton and Frome (Mr Heath) came up with an interesting mechanism to deal with wrongdoing and giving the public a say. As my right hon. Friend the Minister said, we will consider that interesting idea on Report.
My hon. Friend the Member for Gainsborough (Sir Edward Leigh) demonstrated why is he is such a valued Member of the House. He expounded on why our history is important, but why we cannot dismiss what the House stands for, and the privilege of an MP to speak and take unpopular positions. At the same time, we must deal with the needs of our electorates and respond to their concern about wrongdoing.
My right hon. Friend the Member for South Cambridgeshire (Mr Lansley) made an empathetic speech about Members who have very small majorities. He was very honest in saying that, with the size of his majority, he could afford to take some unpopular positions without worrying about going back to his constituency one weekend to find a notice of a petition against him on a 5% threshold, and that his constituents had begun proceedings to get rid of him.
My hon. Friend the Member for Reigate made the passionate case that the House of Commons suffers from a collapse of institutional self-confidence—it was the kind of case that Sir Humphrey might describe as “very brave”. He said that MPs must make the case for the status quo without responding to the public’s desire for a mechanism to bring MPs to account when there is serious wrongdoing, which the Government and all the main parties recognise.
Crispin Blunt
I can see from my Twitter feed that my courage is already a matter of comment, but my question to the Minister is this: are MPs not already held to account? He implies that we are not, but we are massively held to account by any number of different bodies.
Mr Gyimah
My hon. Friend is absolutely right to say that oversight is exercised over MPs and that MPs are held to account in a number of ways, but there is a gap within the existing framework, namely the opportunity for constituents to get rid of an MP in a case of serious wrongdoing. Currently, the Representation of the People Act 1981 allows an MP to be automatically disqualified if they are convicted and sentenced to a period of more than a year. However, if the period is less than a year, the MP can decide to stay in post. The Bill gives the public a route at that point to get rid of the MP. The Act does not allow an MP who is given a suspended custodial sentence for any period to be disqualified from the House. The Bill fills that gap. The Mental Health Act 1983 provides for disqualification if an MP is imprisoned or sentenced under the mental health provisions for more than a year, but if the term is under a year the MP remains in post.
Stephen Phillips (Sleaford and North Hykeham) (Con)
As I understand the Bill, it proposes that in the event of a custodial sentence of less than 12 months the recall mechanism can be triggered. Many offences are punished not by custodial sentences but by serious community penalties. Why have the Government taken the view that offences punished by such sentences should not trigger the ability to recall the Member?
Mr Gyimah
I must correct my hon. and learned Friend on a point of detail. Recall would—not can—be triggered if a Member received a custodial sentence of less than 12 months. What drives the Government’s recall process is the level of seriousness. So, for example, a fine for non-payment of the television licence is not in the same category as serious assault or theft. However, a community sentence that brought the House into disrepute or for conduct in breach of the Members code of conduct could trigger the second recall petition under which the Member may be suspended for 21 days at the recommendation of the Standards Committee. That could result in recall and a by-election if the 10% threshold was reached.
Stephen Phillips
The Minister is right: that could trigger the Standards Committee to act, but it might not. Is not the difficulty that it looks again as though the House is seeking to regulate itself rather than hand power to our constituents?
Mr Gyimah
We are looking at the operation of the Standards Committee and how it can be strengthened, as the Minister of State, Cabinet Office, my right hon. Member for Tunbridge Wells said earlier. I assure my hon. and learned Friend that, even under the current terms of the Bill, if a Member is reported to the Independent Parliamentary Standards Authority, it would have to investigate. If the Member has breached the code of conduct, the Standards Committee can make a recommendation to the House of a suspension for 21 days, and that could trigger a recall petition. So a Member receiving a non-custodial sentence could still face recall.
Amendment 1 deals with the point that recall could be triggered over and over again. New clause 2 concerns the 200-word statement by the promoter of the recall petition. That makes sense if someone brings a recall petition against a Member under the scheme proposed by my hon. Friend the Member for Richmond Park—they should be able to put their accusations on paper and the Member should have the right of reply—but it risks accusations that are unfounded getting into the public domain and being given credence because they have been distributed by the local authority. Damage to the Member’s reputation could be done just by allowing people to promote their reasons for recall.
Steve Baker
The point was made earlier in the debate that leaflets seek to undermine our reputations in every general election. What is the difference?
Mr Gyimah
The leaflets that are put out at the general election are not paid for from the public purse, nor are they distributed by the local authority. In this context, the leaflet would be drafted by a member of the public, paid for by the taxpayer and distributed by the local authority, which could be seen to endorse those views. That could damage someone’s reputation.
Amendments 42, 43, 44, new clause 6 and new clause 7 deal with the cross-party amendment and focus recall on misconduct. As I said, we will consider that in detail. Amendment (a) to new clause 2, tabled by my right hon. Friend the Member for South East Cambridgeshire (Mr Paice), focuses recall on causes not conduct. As tabled, it would not stop people campaigning for recall and would not act as a safeguard to Members’ free expression. We therefore urge him to withdraw his amendment.
Amendments 34, 6, 7, 10, 35, 12 to 18, 20, 21, 36, 37, 8 and 9 are consequential amendments on the recall process and so are not worth touching on in detail now. Amendments 39 and 40 deal with retrospectivity. The House tends not to favour retrospectivity. In general, the courts impose punishment for offences that are current, so I urge the withdrawal of those two amendments.
Amendment 46 covers historic offences which, although committed at the time of the MP’s election, are not known to the electorate at the time. This makes an important point on the electorate’s ability to judge a Member’s misconduct and we will return to the amendment on Report. Amendment 47 deals with criminal abuse of the expenses system, which would lead to judgment before constituents as well as the court. There is a technical deficiency in the way the amendment is currently drafted, but we will reflect on this matter and return to it on Report. [Interruption.]
The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)
Order. The Committee should be listening to the Minister. If Members wish to chat they can go elsewhere.
Mr MacNeil
Is it not the reality that, after manifesto promises, a mealy-mouthed recall Bill will be considered with disdain by the public, and will set the reputation of Westminster even lower?
Mr Gyimah
I appreciate the hon. Gentleman’s point that we have to respond to the real need, especially post-expenses crisis, to allow the public to kick MPs out after wrongdoing, but we have to do that in a way that is consistent with our democratic arrangements. We have a parliamentary democracy in which the legislature is fused with the Executive. The three other countries similar to us, New Zealand, Australia and Canada, do not have recall. A lot has been made of the United States of America, which has recall but, as the hon. Member for North Durham pointed out, it is often used there for politically motivated reasons. We wish to respond to the need for the public to be able to get rid of their MPs, but the Government want to do so in a way that is consistent with our democratic arrangements while preserving some of the best aspects of our system, for example MPs being able to speak their mind and campaign for unpopular causes.
My hon. Friend the Member for Richmond Park argues that recall will be very rare under his scheme, while giving people real power. He has to decide whether his recall mechanism will give real power and be effective in getting rid of any MP the public want to get rid of, or that it is rare and therefore not effective. It sounds to me like his argument tries to have it both ways and that is not the way that recall should work. If we are to have a recall system, it should be one that the public can trust and understand. They should know that when they engage in it, it will end in a Member being booted out of this House if need be.
The four-stage recall mechanism proposed by my hon. Friend the Member for Richmond Park starts with a 5% threshold and then moves to a 20% threshold, then a 50% threshold and then a by-election. I would hazard a guess that constituents would be fed up by the end of it. Someone who signed the notice of petition at the first stage would think, “I thought I’d got rid of that MP five months ago”, but the process would still be ongoing. On the other hand, the Government’s proposal would be as speedy as possible. I therefore urge Members to reject the amendment and the following consequential amendments.
Zac Goldsmith
The technical concerns—thresholds, costs, frequency—can and will be dealt with on Report and should not be an excuse to reject the amendments as a whole. At stake is a matter of principle. Do we trust our voters to hold us to account? The public today are better informed, better educated and less deferential than at any time in our history, and recall is not radical, but merely a nod to those changes that would be used rarely and only in extremes. It might even be described as a gesture, but that does not make it a trivial matter; sometimes a gesture is the most important thing—a signal from one party to another that starts the process of healing and reconciliation. I fear that if we play games, constructing a bogus alternative to recall, voters will see through it and, sooner or later, begin seeking more drastic solutions. I therefore press the amendment to a vote.
Question put, That the amendment be made.
Business without Debate
JTI Gallaher
(9 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Ian Paisley (North Antrim) (DUP)
On 7 October, my constituency received the devastating news that a 150-year-old manufacturing industry was to be brought to an end.
JTI Gallaher employs 900 people in Ballymena. It has existed in Northern Ireland since its foundation 150 years ago in the city of Londonderry, and it has been a mainstay of employment in Northern Ireland. It has stood along with key industries such as linen-making, textiles, rope-making and shipbuilding, and it has itself been part of one of the key industries in Northern Ireland. In my constituency, it alone employs those 900 people. It is regarded as one of the largest employers in the constituency, and, indeed, in Northern Ireland as a whole.
Let me put this into a local perspective. In a country of 1.8 million people, that employer’s wage input into my local economy is £60 million, and it puts a further £100 million into the entire Northern Ireland economy through transport, packaging and other associated industries.
In philanthropic terms, the company supports—and indeed is the lifeblood support of—key charities, including Age UK, the Harryville partnership in Ballymena and the Ulster orchestra. We are hearing much locally about the future of the Ulster orchestra. Let us be absolutely clear about this: without JTI Gallaher there would be no Ulster orchestra.
I want to put the 900 jobs into a UK-wide perspective. If those jobs were lost here on the mainland of the United Kingdom, it would be the equivalent of 32,000 people being told that their jobs are over. I welcome the fact that we have a Minister at the Dispatch Box, but I have been totally underwhelmed by the response of this Government to that blow to our economy. There has been no statement from that Dispatch Box about it. The Secretary of State has not come to that Dispatch Box. To say the sense of betrayal in my constituency is palpable would be an understatement.
Sammy Wilson (East Antrim) (DUP)
Does my hon. Friend agree that the Government have surrendered to the lobby from those who oppose smoking? They have put people out of jobs and yet their very objective will not be achieved, because all that will happen is that people will move over to an illegal market, with far more dangerous tobacco products and the financing of criminal gangs?
Ian Paisley
I thank my hon. Friend for his intervention.
There are three reasons why this factory is going to be closed. The first of the two main reasons is over-regulation. I am the first to say that smoking needs to be regulated—I do not smoke, I do not want my children to smoke, and the product is harmful so it has to be regulated—but to over-regulate it to such a degree that we close the industry down without stopping people smoking is just foolishness.
The second key issue is the illicit trade. As a result of over-regulation—my hon. Friend pointed to this—one in four cigarettes smoked across the whole of the United Kingdom is an illicit cigarette that has been smuggled in. That damages not only the economy and the country, but these jobs.
Sir Gerald Howarth (Aldershot) (Con)
Does the hon. Gentleman agree that the Government’s absurd proposal for plain packaging of tobacco will not only be dangerous to tobacco smokers, but is partly instrumental in the loss of jobs in his constituency?
Ian Paisley
The European tobacco directive has undoubtedly helped to kill this industry, but let us be absolutely clear: the betrayal of the Government in putting in place plain packaging has said to an entire industry, “There’s no point staying in this country. There’s no point continuing to manufacture in the United Kingdom.” All it has done is driven—and it will continue to drive—those jobs to eastern Europe while cigarette smoking continues in Northern Ireland.
Jim Shannon (Strangford) (DUP)
Europe clearly has a reason for the directive that is coming through, but does my hon. Friend recognise the good work MEPs Diane Dodds and Jim Nicholson did on behalf of JTI? Does he think Europe could have done more, and does he feel that the Minister should have more interaction with Europe?
Ian Paisley
My hon. Friend raises an interesting point which I want to address slightly later by talking about how Europe has played a devastating role in this development.
Mr Nigel Evans (Ribble Valley) (Con)
Does the hon. Gentleman agree that the Government caving in on this one, and indeed leading the charge on plain packaging, interferes with the intellectual property of companies, which is a dangerous precedent, and that we will end up not with more people giving up smoking, but with the exporting of jobs and the importing of tobacco products?
Ian Paisley
The hon. Gentleman is absolutely right when he says that plain packaging will not do what it sets out to achieve. It will not reduce consumption; it will simply help to destroy an industry.
I appeal to the Government tonight. They could help me to save jobs in my constituency and help me save this industry by indicating firmly that they will review immediately their decision to implement plain packaging, allowing me to go back to the company and argue that it is worth its while staying in a country that wants to encourage, not discourage, manufacturing.
David Morris (Morecambe and Lunesdale) (Con)
Does the hon. Gentleman agree that it is not just his constituency that would feel the economic impact of the closure of the JTI factory, but the whole of the north-west of England? Located in my constituency is Heysham port, which is the reserve port for JTI’s goods. My port will lose out on business from JTI should the factory close.
Ian Paisley
It is not only that the 900 directly employed people in my constituency will lose their jobs. The hon. Gentleman mentions associated companies. Yes, I will lose £60 million from my local wage economy, but approximately a further £100 million will be lost from the local economy in terms of the costs associated with transport, haulage firms and packaging companies. All those other aspects of associated business and trade will be gone. It is therefore no wonder that the hon. Gentleman is concerned about the impact that the closure will have on employment in his constituency.
Mr Aidan Burley (Cannock Chase) (Con)
Does the hon. Gentleman agree not only that the decision by JTI, based on the tobacco products directive, shows why the Government must immediately cancel their plans to proceed with plain packaging for tobacco products, but that all the evidence from Australia shows that this will simply drive more customers into the illegal trade, where there are none of the health benefits the Government want to see and none of the money coming into the Exchequer that they would wish? Moreover, it will lead to even more of the job losses he is suffering in Ballymena.
Ian Paisley
I thank the hon. Gentleman for that. Government policy should be based on evidence. If there were evidence to show that plain packaging will reduce consumption, the Government would have every right to attempt to implement the policy. But given that it is basically guesswork, and that the trial on the ground in Australia shows that consumption is not decreasing as a result of plain packaging, but that illicit trade is increasing, the Government should take stock immediately.
Ian Paisley
I give way to the Chairman of the Northern Ireland Affairs Committee.
Mr Robertson
As a fellow member of the Select Committee, does the hon. Gentleman remember that when we looked into the illicit trade issue and interviewed the head of the relevant department in Her Majesty’s Revenue and Customs, his view was that plain or standard packaging would actually increase counterfeiting and the illicit trade?
Ian Paisley
The hon. Gentleman is making my case for me. He is clearly demonstrating, through his knowledge of this subject and what HMRC has told him that the Government’s policy is wrong-headed and will not prevent people from smoking. I say again: I want to see a reduction in smoking, but we have to have a policy that works and is proven to work. The evidence is not there to achieve the Government’s policy.
Dame Angela Watkinson (Hornchurch and Upminster) (Con)
Does my hon. Friend agree that when this Government sent their draft regulations to the EU indicating their intention to introduce standardised packaging, that created the uncertainty in the industry that has affected Gallaher so badly—it is now unable to forward-plan—and yet no ministerial decision has been made and no debate has taken place in this Chamber? We have passed enabling legislation, but we did not make a final decision.
Ian Paisley
I thank the hon. Lady for bringing me on to a key point—the impact of the European directive and, importantly, the Government’s betrayal of this industry. The Prime Minister answered a parliamentary question earlier last year on minimum pack size, which is what the tobacco directive is all about. He said:
“It does not, on the face of it, sound a very sensible approach. I was not aware of the specific issue, so let me have a look at it and get back to my hon. Friend.”—[Official Report, 9 October 2013; Vol. 568, c. 160.]
The Prime Minister was answering a question from a Government Member, and I believe that he has been let down by a failure of his party and colleagues to negotiate the matter appropriately in Europe.
While the then public health Minister, the hon. Member for Broxtowe (Anna Soubry), had control of tobacco products directive negotiations for the UK Government, she was required to keep Parliament informed of developments via the European Scrutiny Committee. When she was brought to that Committee on 17 July 2013, she had to apologise for poor political practice, saying:
“I do not hesitate to apologise for the fact that this Committee has not been fully informed. I only wish that, as a Minister, I was aware of all the things that happen within my portfolio.”
That is an appalling indictment of a Minister who took her eye off a brief and allowed the policy to be rammed through with the consequences that we are feeling today. We will reap a terrible harvest in Northern Ireland as a result.
The provisions under the TPD on the minimum pack sizes that may be manufactured have the direct impact that 82% of the output of my constituency’s factory will be made illegal. The Government have done that with the sweep of a pen—it is little wonder that 900 people are being told that it is over for them. The Government could have said, “Let’s continue to manufacture, but not sell in the United Kingdom,” or looked at other options, but instead they implemented a policy even though their Minister said that she was not fully aware of what was happening. That is a betrayal. It is a scandal that the Government were not paying proper attention.
The Government cannot say that they were not warned. I have spent three years in the House warning the Government about their actions. I was able to attract 82 signatures to an open letter to the Secretary of State for Health from Members on both sides of the House, including former and current Cabinet Ministers. The letter stated that if the Government continued with the tobacco directive and plain packaging, it would have
“disastrous consequences for independent retailers, consumers and those employed in the legitimate tobacco supply chain.”
It said that the products affected involved
“a very significant level of employment in UK factories.”
It said:
“Should these packs disappear, the machinery needed for them will be made redundant alongside the workforce who are employed to operate them. In the current economic climate, can the Government afford to put so many UK manufacturing jobs at risk?”
My constituents got the answer on 7 October: they were told by this Government that they could be put at risk, that they did not matter, and that their jobs and livelihoods were over.
What frustrates me most is that the Government had warning upon warning upon warning from not just me but colleagues. The Chair of the Home Affairs Committee visited my constituency and the factory to find out about smuggling. The shadow Secretary of State for Northern Ireland visited the factory, as did the previous Northern Ireland Secretary. The Minister’s predecessor has visited the factory, as have my Northern Ireland colleagues and other MPs, including members of the Northern Ireland Affairs Committee. However, when I asked the Government to come and to say, “This fight is on. This is about saving jobs,” I got the terrible message that they did not want to be associated with the industry. I can represent jobs in my constituency without being associated with smoking. It is a pity that there was not just a wee bit of strength—a wee bit of backbone—in the Government when it was needed. They could have stood up to Europe and said, “We’re not implementing that. That’s the end of our jobs.” Instead, they have stubbed those jobs out, just like a fag end, and my constituents are facing the terrible consequences of that tonight.
There are some things that the Government could do, and I want to turn to those briefly in my closing remarks. First, I think that they could look afresh at the issue of plain packaging and recognise that it offers them a negotiating opportunity with the company. Removing the proposals for plain packaging and the threat to the industry for the next five years would provide an opportunity to stretch those jobs out a little longer. I have managed to help negotiate a two-year stretch for those jobs. If we could push that to five, six, seven or even eight years, because the Government are prepared not to roll over on plain packaging, that would help considerably in defending and keeping those jobs.
Dame Angela Watkinson
Like my hon. Friend, I am a non-smoker, but I never miss an opportunity to ask smokers whether their tobacco purchasing habits would change if plain packaging were introduced. They find the idea laughable, so the whole thing is based on a false premise.
Ian Paisley
I agree with my hon. Friend.
Secondly, I want the Government to help the work force via the European globalisation fund, because many of my constituents currently in employment will need to be retrained. The skilled engineers, for example, could work on oil rigs or do other engineering work, but the certifications needed cost thousands of pounds. The globalisation fund, if accessed by Her Majesty’s Government, would allow for those certificates to be paid for and help those employees under a restructuring deal.
Finally, if the work force come up with an alternative plan to help save some of those jobs, I want the Government to assist them by allowing them access to Invest Northern Ireland and other skilled business planners so that they can put in place an alternative plan that will hold water and can be put to the company’s headquarters in Geneva. That way, they can see for themselves that there may be a viable alternative. If that happens, we might be able to postpone what is happening in Northern Ireland, but I am really concerned that the Government have put out these jobs for ever.
The Parliamentary Under-Secretary of State for Northern Ireland (Dr Andrew Murrison)
I am grateful for the opportunity to respond to my hon. Friend the Member for North Antrim (Ian Paisley) and congratulate him on the robust way in which he has put the case. His constituents will be very pleased with that, and I think that it does him great credit. The closure of the JTI Gallaher factory in Ballymena and the loss of hundreds of jobs and some £60 million from the town’s economy, and indeed from the whole economy of Northern Ireland, is a major blow. He is quite right to put that in proportionate terms, making a comparison with Great Britain and how we might view such losses on the mainland. He is quite right that this is indeed a major blow for the whole of Northern Ireland. I will do what I can to assure him that the Government are doing what we can, under the terms of the 1998 agreement, to protect jobs in his constituency and promote the prosperity agenda in Northern Ireland at this difficult time.
As my hon. Friend said, the factory in his constituency has been producing tobacco for 150 years and is the last tobacco manufacturing concern in the UK. I recall my own visit to one of the last tobacco factories in the UK, in Bristol 30 years ago—ironically, I was at medical school. Cigarette factories then were commonplace, and I think that he would admit that their decline is in some respects a good thing, since it tracks the fall in smoking, but not if production is simply shifted abroad. Of course we would all much rather have those jobs here in the UK and, specifically in the context of this evening’s debate, in Northern Ireland.
The announcement takes place against the background of the Northern Ireland economy continuing to move away from its reliance on industrial production. It is still too reliant on the public sector for jobs, as he knows. The economy in Northern Ireland is rebalancing, with the generation of creative industries, life sciences and the knowledge-based sector, which accounts for the large majority of all foreign direct investment into Northern Ireland. Aerospace, for example, continues to perform well in a very competitive market.
I accept, of course, that it is cold comfort for JTI employees to be told that software and financial services are experiencing the fastest growth or that Belfast is the No. 1 destination globally for financial technology investment. My hon. Friend will be aware, however, that the prospects for the tobacco industry overall are not very good. Indeed, they point to long-term decline as demand for cigarettes continues to fall and smoking rates edge downwards all the time. This is of course good news for health, but very bad for jobs in his constituency.
In 1974, almost half the UK population smoked—a remarkable thing to reflect on now. Last year, the figure had fallen to 18.7%. About 68% of smokers want to quit and are increasingly aware of the dire health implications of smoking. The tobacco industry has recognised the declining market caused by consumers’ health concerns and is diversifying into electronic cigarettes and associated technology that is deemed to be safer.
Dr Murrison
If my hon. Friend wants to intervene, I ask him to do so briefly as I do not have much time.
Sammy Wilson
Does the Minister accept that while there may be a decline, the irony is that while the Government are encouraging the private sector to grow in Northern Ireland, in this instance Government policy has squeezed the private sector?
Dr Murrison
I think that is a little unfair. Perhaps as I go through my remarks, my hon. Friend will be somewhat assured that the Government are doing what they can to promote the private sector, in particular, in Northern Ireland. I think he should know that from his experience of Northern Ireland overall, where the private sector is doing relatively well and the economy is, without a doubt, rebalancing, albeit at a rate that is perhaps not as fast as we would have liked.
There have also been job losses from the mechanisation and streamlining of tobacco production, and that has had a greater impact on jobs than tobacco control measures implemented by this Government. My hon. Friend the Member for North Antrim would probably accept that, given the changing nature of this industry, which he will have seen over many years.
On the tobacco products directive, my hon. Friend should know that I am generally loth to accept anything that comes out of the European Union, particularly when it results in regulation. However, it is fair to say that the tobacco products directive aims to protect health—that of his constituents, my constituents, and all constituents. Tobacco use is responsible for an estimated 700,000 avoidable deaths in the EU every year, and smoking accounts for over one third of respiratory deaths, over one quarter of cancer deaths, and about one seventh of cardiovascular disease deaths. I have seen these cases; I saw them day in, day out when I was practising regularly. I am sure he would agree that if we are to make any progress in improving public health, we have to cut the consumption of cigarettes. I do not think there is any difference between us on that.
Mr Burley
Does the Minister accept that smoking is not illegal in this country, and unless he is proposing to make it illegal, it makes no sense to regulate the industry into the hands of organised crime, whereby money will not be going into the Exchequer and there will not be the health benefits he is talking about? It is not an illegal activity, and we have a duty to protect jobs in manufacturing products involved in a legal activity.
Dr Murrison
It is clearly not an illegal activity, and I hope it never will be. For as long as people wish to smoke, they are entitled to do so. HMRC has the control of tobacco smuggling in Northern Ireland as its joint No. 1 priority. In my view, people are entitled to smoke if they want to, but if we are interested in improving public health, there are measures we can take to reduce consumption. Tobacco consumption is in long-term decline, as I described, and we need to try to work out what that means for the industry in this country, particularly in Northern Ireland, and how we can diversify it to create new jobs to replace those that are being lost. In the very few minutes that I have available, I will try to describe how the Government propose to do that.
No decision has yet been made on standardised packaging of tobacco products. Ministers at the Department of Health will review the results of the recent consultation before taking a position. My hon. Friend the Member for North Antrim has read Sir Cyril Chantler’s report and it does not give him much comfort, but I am sure that my colleagues at the Department of Health will note the contents of this debate very carefully and that they will be mindful, as all Ministers are, of the particular impact this issue is likely to have in Northern Ireland, for the reasons my hon. Friend has elegantly laid out.
It is important that we find new and sustainable work for JTI employees. Obviously, the Executive are in the lead, notwithstanding what my hon. Friend the Member for East Antrim (Sammy Wilson) has said about the Westminster Government in his typically robust terms. I know that Arlene Foster, the Minister for Enterprise, Trade and Investment, and Dr Stephen Farry, the Minister for Employment and Learning, have conducted a skills audit at the factory.
I have spoken to Arlene myself and she is very much on the case. Stephen Farry is on record as saying that his priority is to re-skill the work force and to ensure access to training courses, particularly in further education and especially at the Northern regional college. My own constituency experience very much suggests that the focus and priority in situations such as these has to be re-skilling and up-skilling the work force, and I am very pleased that that work is under way. The Government will, of course, support that wherever they can, but I must emphasise that, under the devolved settlement, it is first and foremost a matter for the Executive, which I suspect my hon. Friend the Member for North Antrim knows full well.
The auguries are good—my hon. Friend knows that. Northern Ireland continues to do well in respect of inward investment. Indeed, under devolution it has attracted more than twice its share of UK incoming jobs and investment. Since the start of 2014, Invest Northern Ireland has announced more than 1,250 new jobs from 11 new inward investors. That is an incredible achievement of which Northern Ireland should be very proud indeed. The future looks bright and maintaining that momentum has to be the priority of both the Executive and the Government. My hon. Friend can be absolutely certain that we will do whatever we can to support the prosperity agenda in Northern Ireland and make sure that his constituents benefit fully from that, given what has happened recently in relation to JTI Gallaher.
The economic pact published last year represents a different approach to delivering the Government and the Executive’s shared aims of rebalancing the economy and building a shared future. It recognises that working together can deliver better results for the people of Northern Ireland. “Building a Prosperous and United Community: One Year On”, published in the summer, makes for good reading. It is a backdrop against which I hope the work force in my hon. Friend’s constituency will emerge well from the setback that he has so ably brought to the attention of the House.
Question put and agreed to.
Ministerial Correction
(9 years, 6 months ago)
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Health
(9 years, 6 months ago)
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Heidi Alexander
London ambulances are taking, on average, two minutes longer than they did three years ago to respond to the most serious call-outs. The chief executive of the service is quite open about the fact that she does not have enough staff on each shift every day. This is a service in chaos. Will the Minister be explicit about the support her Government are giving to ensure that my constituents, and Londoners, get the service they deserve?
Jane Ellison
This affects my constituents too, as I am also a London MP and therefore take a very close interest in it. I think it is unfair to say that the trust is in chaos. It is taking urgent steps to address the situation, including recruiting extra paramedics, increasing overtime, and reducing the number of multiple vehicles attending each call. We are working with Health Education England to increase the pool of paramedics, with 240 being trained in 2014, going up to 700 in 2018. Urgent measures are being taken to address the problem right now. I have had those assurances directly from managers in the trust whom I met very recently.
[Official Report, 21 October 2014, Vol. 586, c. 748.]
Letter of correction from Jane Ellison:
An error has been identified in the response I gave to the hon. Member for Lewisham East (Heidi Alexander) during Questions to the Secretary of State for Health.
The correct response should have been:
Jane Ellison
This affects my constituents too, as I am also a London MP and therefore take a very close interest in it. I think it is unfair to say that the trust is in chaos. It is taking urgent steps to address the situation, including recruiting extra paramedics, increasing overtime, and reducing the number of multiple vehicles attending each call. We are working with Health Education England to increase the pool of paramedics, with 340 being trained in 2014, going up to 700 in 2018. Urgent measures are being taken to address the problem right now. I have had those assurances directly from managers in the trust whom I met very recently.
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Written Statements
(9 years, 6 months ago)
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EU Informal Foreign Affairs Council
(9 years, 6 months ago)
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The Minister for Business and Enterprise (Matthew Hancock)
My noble Friend the Minister of State for Trade and Investment (Lord Livingston) has today made the following statement.
The EU Informal Foreign Affairs Council (Trade) took place in Rome on 15 October 2014.
I represented the UK on all the issues discussed at the meeting. A summary of those discussions follows.
Transatlantic Trade and Investment Partnership (TTIP)
The presidency took stock of the recent negotiating rounds. Member states reiterated their commitment to securing a deal, recalling the geopolitical importance of the agreement and looking ahead to fresh impetus after the US mid-term elections. Member states agreed on the need to improve transparency and public engagement, in order to highlight the benefits of TTIP more effectively and respond to concerns. There was a discussion on several areas of the negotiations, including trade in services, geographical indications, energy and investor-state dispute settlement (ISDS).
The Council meeting was preceded by a dinner attended by EU Trade Ministers, EU Trade Commissioner De Gucht and the US Trade Representative, Michael Froman. The discussion reflected on progress so far, areas of difficulty in the negotiations and public concerns in the EU. Several member states intervened on specific issues, including transparency, the energy sector and services.
Russia/Ukraine
Commissioner De Gucht provided reassurance that only the EU and Ukraine could table files for amendment and stated that he could not see the European Parliament agreeing to any significant changes. Member states then engaged in a limited debate.
WTO Doha Development Agenda
The Commission reported that there had been no progress in Geneva towards securing Indian agreement to the trade facilitation agreement reached in Bali last year. Discussion ensued on potential ways forward.
AOB - State of play of legislative items Trade Defence Instruments and International Procurement Instruments
The presidency noted that there had been no agreement on these files within Council to date, and that there would be further discussion on them at a later date. There was no debate.
Kay Review Report
(9 years, 6 months ago)
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The Secretary of State for Business, Innovation and Skills (Vince Cable)
I would like to inform the House that the Government are today publishing a report on progress made in implementing the recommendations of the Kay review of equity markets. Copies of the report will be placed in the Libraries of both Houses.
In July 2012, the Kay review report set out a vision for reform of UK equity markets to ensure that they support long-term investment, constructive relationships between companies and in their investors, and sustainable value creation by British companies. The Government have welcomed the review and responded in November 2012 setting out a number of steps it would take to deliver against its recommendations, and calling for a sustained commitment to reform from both, Government and market participants.
In the response we committed to publishing an update on progress achieved by the Government, regulatory authorities and market participants, to deliver the review’s specific recommendations, and to respond to its wider principles and directions. The report meets that commitment, providing a broad stock-take of measures taken by the Government and regulatory authorities relevant to the delivery of the recommendations and wider principles of the Kay review. It also summarises progress made by business groups and the investment industry to develop good practice as Professor Kay suggested.
The Government believe this represents significant progress to implement the agenda set out in the Kay review. However a further sustained commitment from Government and market participants will be needed to deliver this important agenda. The report therefore also highlights plans for further work in a number of areas.
This programme of work should be seen in the context of the Government’s Industrial Strategy which reflects the long-term focus recommended by Professor Kay. The strategy aims to develop enduring partnerships between Government and business to give confidence for investment and growth.
Today’s report also incorporates the Government’s response to the Law Commission review of fiduciary duties. The Government have already welcomed the Law Commission’s report, published in July 2012, which was commissioned in response to a recommendation of the Kay review. In particular we have welcomed its clear guidance on the factors which fiduciaries and other investment intermediaries should consider when investing on behalf of others. We now set out a more detailed, positive response to the Law Commission’s specific recommendations, which include a commitment to ensure that the Law Commission’s core findings with respect to consideration of long-term factors in investment decisions will be embedded in regulatory guidance.
Alongside today’s progress report, we are also publishing two additional documents resulting from the Government’s programme of work to implement the Kay review. Copies of each of these documents will be placed in the Libraries of the Houses.
First, we are publishing an independent research paper, commissioned as part of our response to the Kay review, into the metrics and models used to assess company and investment performance by long-term investors. Our intention is to convene a number of focused round-table discussions involving investors, asset managers and companies, and relevant regulatory authorities, to discuss the findings of this research and to agree what practical steps may be appropriate. These may include the development of guidance on good practice or regulatory reforms.
Secondly, we are publishing the note of a BIS round-table of expert stakeholders which we convened to consider whether policy measures restricting the role of short-term shareholders during a takeover bid could be made to work in practice. We had committed to look in detail at this question in our response to a recommendation of the BIS Select Committee report on the Kay review of November 2013.
Overall, the discussion reached a clear consensus, broadly in line with the Government’s previous analysis, that there are a series of legal and technical implementation issues which would be extremely difficult to overcome in introducing such a measure, and that it appeared unlikely that a disenfranchisement measure would eliminate the influence of short-term shareholders in a takeover bid. In light of these conclusions and the level of consensus among those attending the round-table, we have no plans to introduce a disenfranchisement measure.
Separately, the progress report provides a more general summary of policy developments relevant to Professor Kay’s recommendation that the Government keep the scale and effectiveness of merger activity under review, and in particular notes the Takeover Panel’s recent proposed changes to the Takeover Code. Copies of each of these documents will also be placed in the Libraries of both Houses.
First World War Centenary Cathedral Repairs Fund
(9 years, 6 months ago)
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The Secretary of State for Culture, Media and Sport (Sajid Javid)
I am today publishing the list of successful bidders to the second round of the First World War Centenary Cathedral Repairs Fund.
The £20 million Fund, which was announced by the Chancellor of the Exchequer at Budget 2014, enables cathedrals to undertake urgent repair work. Cathedrals are powerful symbols of Britain’s shared history and are especially important as the nation comes together to commemorate the centenary of the first world war.
Decisions on funding allocations are taken by an expert panel which considers the grant applications against the published criteria for the scheme and decides which cathedrals should receive funding. The panel is chaired by Sir Paul Ruddock and includes senior figures from English Heritage, the Heritage Lottery Fund, the Church of England and the Catholic Church, as well as church architects, architectural historians and grant giving experts.
I am pleased to confirm that the panel has decided to allocate funding of almost £8.3million to 31 cathedrals in the second round. These are as follows:
Cathedral | Denomination | Funding | Project |
|---|---|---|---|
Arundel | Catholic | £200,000 | Repairs to south side windows |
Birmingham St Chads | Catholic | £227,000 | High level repairs |
Blackburn Cathedral | CofE | £314,251 | High level repairs |
Bradford | CofE | £349,479 | Repairs to State Gate |
Bristol | CofE | £184,000 | Replacement boilers |
Canterbury | CofE | £150,00 | Repairs to north west transept |
Chelmsford | CofE | £268,622 | Repairs to tower |
Chester | CofE | £300,000 | High level works and emergency lighting |
Chichester | CofE | £100,000 | Replacing roof to south-east transept |
Clifton (Bristol) | Catholic | £600,000 | Roof repairs |
Coventry | CofE | £216,265 | Repairs to crypts |
Ely | CofE | £392,060 | Repairs to south transept |
Exeter | CofE | £277,547 | Repairs to Chapel of St Andrew and St Catherine |
Hereford | CofE | £300,000 | Repairs to roofs |
Lancaster | Catholic | £15,000 | Replacement electrical distribution board |
Lincoln | CofE | £300,000 | Repairs to north-west transept triforium roof |
Liverpool Anglican | CofE | £275,000 | Repairs to Lady Chapel and nave roof |
Manchester | CofE | £225,000 | Roof replacement/reinstatement |
Newcastle | CofE | £155,572 | Repairs to library roof |
Norwich | CofE | £491,000 | Works to north clerestory and presbytery |
Peterborough | Catholic | £88,433 | Repairs to Old Baptistry Gable |
Portsmouth | CofE | £594,783 | Repairs to tower and south transept |
Rochester | CofE | £153,000 | Repairs to roof |
Ripon | CofE | £354,617 | Repairs to north transept and east elevation |
Sheffield St Marie | Catholic | £270,528 | Repairs to spire |
Southwark (St Georges) | Catholic | £167,000 | Repairs to parapets |
Truro | CofE | £500,000 | Repairs to nave and nave aisle roof |
Wakefield | CofE | £220,000 | Repairs to lead roof of quire and nave |
Wells | CofE | £160,000 | Repairs to north nave aisle roof |
Worcester | CofE | £250,316 | Repairs to east window |
York Minster | CofE | £200,000 | Repairs to Camera Cantorum Stonework stonework and roof |
Total Amount | £8,299,473 |
The panel will meet again in February 2015 to take decisions on applications to the third and final round of the First World War Centenary Cathedral repairs fund.
EU Environment Council
(9 years, 6 months ago)
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The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dan Rogerson)
My right hon. Friend the Secretary of State for Energy and Climate Change and I will attend EU Environment Council in Luxembourg on 28 October.
Following the adoption of the agenda there will be an approval of the list of “A” items. There will be one legislative item which is an orientation debate on the Waste Package. There will be two non-legislative items: firstly, the adoption of the Council Conclusions on the preparations for the 20th session of the Conference of the Parties (COP 20) to the United Nations Framework Convention on Climate Change (UNFCCC) and the 10th session of the meeting of the Parties to the Kyoto Protocol (CMP 10); and secondly, the adoption of Council Conclusions on Greening the European Semester and the Europe 2020 Strategy.
There will be a Ministerial lunchtime discussion on the EU 2030 Climate and Energy framework. It is anticipated that the Italian Presidency will circulate questions following discussions on the EU 2030 Framework at European Council on 23-24 October.
There is a series of AoB items covering:
a) Recent international meetings:
i) Twelfth Conference of the Parties (COP12) to the Convention on Biological Diversity (Pyeongchang, Republic of Korea)
ii) Seventh Meeting of the Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol on Biosafety (COP-MOP 7) (Pyeongchang, Republic of Korea)
iii) First Meeting of the Conference of the Parties serving as the meeting of the parties to the Nagoya Protocol on Access and Benefit Sharing (COP-MOP 1) (Pyeongchang, Republic of Korea)
iv) Fifth Meeting of the Parties (MOP5) to the Aarhus Convention on access to information, public participation in decision-making and Access to Justice in Environmental matters (Maastricht)
v) Second Meeting of the Parties (MOPP2) to the Protocol on Pollutant Release and Transfer Registers (Maastricht)
vi) Fourth Meeting of the Conference of the Parties to the Framework Convention on the Protection and Sustainable Development of the Carpathians (Mikulov, Czech Republic) and the Czech Presidency to the Convention 2014.
b) European Sustainable Development Week (ESDW).
Sewage Discharges (England)
(9 years, 6 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dan Rogerson)
The Government are committed to improving water quality and protecting the environment. Following consultation on our proposals earlier in the year, the Government have decided to implement a simpler regulatory framework to control small sewage discharges in England. The approach has three main strands:
simplifying the regulatory framework
a more risk-based approach to sensitive areas
communication and engagement with rural householders, business and other stakeholders, as part of wider ongoing work to improve water quality.
I will today lay new regulations [Statutory Instrument No. 2014/2852] which amend the Environmental Permitting (England and Wales) Regulations 2010. These changes will come into effect on 1 January 2015 and will remove unnecessary administrative burdens on many rural households and businesses whilst keeping the essential controls to protect the environment and prevent pollution.
The new approach focuses action on making sure septic tanks and sewage treatment plants are well maintained and not causing pollution through poor maintenance or installation, and that water resources, drinking water supplies, sensitive areas and rare habitats continue to be protected. Over the coming months and during 2015, DEFRA and the Environment Agency will work with stakeholders and partners to communicate the new approach to rural households and businesses.
The amendments simplify existing regulation by removing the requirements to register, keep records of maintenance and notify when a discharge ceases. The requirements to prevent pollution are retained and will be known in future as the general binding rule this means that the basic rules that people need to follow are not changing. The amendments also update the definition of an “operator” - the person in control of a small sewage discharge.
Environmental permits for small sewage discharges will continue to be used in certain areas to protect drinking waters sources and other sensitive areas. Permits, where required, will set extra conditions in addition to the general binding rules.
In summary the regulatory framework will now comprise:
General binding rules that apply to all small sewage discharges in England. These rules set the conditions that septic tanks and treatment plants will need to meet in order for them to be used without an environmental permit.
In or near sensitive areas described in the Environment Agency’s designated sensitive areas list for small sewage discharges, new discharges (i.e. those started on or after 1 January 2015) will be required to have an environmental permit. Existing discharges (i.e. those already being made before 1 January 2015) will be governed by the general binding rules. Additional measures to protect local environments may be set through environmental permits depending on the type of area and local conditions. The Environment Agency will take a risk-based approach to permitting and will work with Natural England, other stakeholders and local communities to take account of local conditions and evidence.
For areas in groundwater source protection zone 1s, all small sewage discharges to ground, both existing and new, will continue to require an environmental permit.
Discharges from septic tanks and treatment plants that do not meet the conditions for a small sewage discharge will continue to need an environmental permit.
The general binding rules consist of the controls specified in the amended regulations laid today together with technical requirements specified by the Environment Agency as the Regulatory Authority. The technical requirements include: the design and manufacturing standards; construction, installation and operation specifications; sitting and installation of infiltration systems; and the capacity of the works and equipment.
Copies of the general binding rules, together with some additional information on the new approach will be placed in the Libraries of both Houses. The Government response to the consultation, published on 9 October 2014 is available on Gov.uk. The Environment Agency will publish guidance when the regulations come into effect. In the meantime questions or requests for advice on the new approach can be directed to the Environment Agency’s National Customer Contact Centre on 03708 506 506.
High Speed 2
(9 years, 6 months ago)
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The Secretary of State for Transport (Mr Patrick McLoughlin)
Sir David Higgins, the Chairman of HS2 Ltd, has today presented the Government with his recommendations on how to transform transport connectivity in the north. His report, Rebalancing Britain, has confirmed the Government’s strategy of developing HS2 is the right one.
In particular, Sir David confirms that the strategic goal of the Y network to link Birmingham to Manchester and Leeds by high speed rail is right and should be delivered as quickly as possible. He makes recommendations for some small modifications.
In addition the report says that a new east-west high speed link could halve journey times between Manchester and Leeds, transforming the economic geography of the country.
In response, the Prime Minister and the Chancellor have today given the green light to develop proposals for HS3: a high speed rail link designed to bring together the north’s great cities thereby cutting journey times, boosting businesses and creating more jobs and security for hardworking people.
The Government also welcome the report’s recommendation that co-operation on transport issues should be formalised in the north. We will create a new body called Transport for the North (TfN), made up of the main northern city regions. This body will work together with other authorities and stakeholders and allow the north to speak with one voice on the big decisions, to benefit the region as a whole.
I would like to invite these cities to come together and work with the Government on the options for HS3, alongside a wider transport strategy for the north. I intend that this Government-led strategy will be developed with input from Network Rail, the Highways Agency as well as TfN, and will stretch from Liverpool to Sheffield, Hull and Newcastle.
I also welcome Sir David’s recommendations on the modifications to the Y route, and will commission HS2 Ltd to do more work on the route and stations for phase 2.
This includes further work on Leeds station, south Yorkshire and east Midlands’ hubs, the approach to Manchester, the Golborne link, the link to the East Coast Main Line and proposals for a hub station at Crewe. We will also continue to look at options for benefiting those places not directly on the line of route.
On the western leg, the Government’s consideration of the evidence so far indicates that routing the western leg via Crewe would be the right strategic option. That is still to be confirmed. But we will work on ways to accelerate delivery of the section to Crewe, pending a decision on the route in 2015.
In turn, I would ask HS2 Ltd to work with Stoke, Stafford and Macclesfield to enable direct high speed train services to serve those towns and cities via the Handsacre junction and classic network.
The report concludes that the route into Manchester should run via Manchester airport, with decisions on an airport station to be taken in due course.
It also says that further work is necessary on the Golborne link, both the route and the depot location. I will ask HS2 Ltd to continue work on this.
On the eastern leg, the location of the east Midlands hub needs to work for both Derby and Nottingham, and provide the best possible connectivity to the wider region. I am asking HS2 Ltd to continue work on this.
Sir David remains convinced on current evidence that Sheffield Meadowhall is the right location for the south Yorkshire hub. I am waiting for further evidence from Sheffield before a final decision on this.
The Leeds station site needs to work for both improved east-west connectivity and for HS2. I will request a full review of options for the station, in conjunction with Leeds city council.
I will also ask HS2 Ltd to conduct a review into the cost, and the time it takes to build high speed rail lines, drawing on international experience, to find ways of bringing down the cost of phase 2.
We will take decisions on how to take phase 2 forward in 2015.
We are making good progress on the phase 1 Hybrid Bill, and we expect to start construction in 2017. This will improve journey times not only to and from Birmingham, but to the north and Scotland.
The Government’s vision is that our high speed rail network will provide the spine of our 21st century transport system. The network will bring closer together the key economic centres in England and Scotland. “Rebalancing Britain” supports the delivery of our vision - working with interested organisations and planning the railway as effectively as possible.
Grand Committee
Consumer Rights Bill
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, it is now 3.30 pm. I must start, as I am obliged to do, by advising that, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Clause 51: Reasonable price to be paid for a service
Amendment 50A
“( ) Where the consumer is required to pay for a service via a third party as part of another contract, for the purposes of assessing whether the charges they are required to pay are reasonable, they will have a right to the full details of any contract including all charges and costs to which they are contributing.”
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 50A is about transparency of charges. This is something we know that the Government support. They are very much in favour of transparency, particularly given their very welcome provision elsewhere in the Bill to make letting agents disclose their charges. However, other groups of home owners and tenants have a similar need to know what they are being asked to pay, whether it is insurance in respect of a holiday or an add-on to a main product. I hope that the example I am about to give will help the Minister to respond to the amendment. It concerns leasehold management where there is leasehold ownership of a block of flats and either the managing agent or the ground landlord takes out an insurance policy or has building work done, but then, because of the contract, the leaseholders have to pay up although they are not shown the details of the cover, if it is insurance, or, indeed, of the price and bids for the work if it is, for example, building or gardening. These details are available to the freeholder, and probably to the managing agent, but not to the leaseholder. When they ask for this, the insurance company or, indeed, the contractor in the case of buildings often says that their agreement is with the freeholder and therefore they will not give the leaseholder the information, even though the leaseholder is paying.
We have had an example of this from my colleague in the other place. It will be obvious who it is when I say that this was about some leaseholders in Walthamstow. They managed to get their hands on their insurance policy and discovered that there was an extra premium covering terrorism. We were slightly surprised that Walthamstow should be high on that agenda. When they inquired, they discovered that it was because a newspaper article had once reported that somebody involved in a plot to blow up a plane lived in the area. That may be an extreme example but I think that we all know of cases where the person who actually pays is not the contractor or is not the person who is party to the contract; they have to pay via a different contract. Therefore, Amendment 50A says basically that when somebody has to pay via a third party, they should have the right to obtain the information relating to the charge to which they are contributing. I beg to move.
Baroness Jolly (LD)
My Lords, like other noble Lords, I, too, have looked carefully at the discussions on this issue which took place in the other place and I am aware of the circumstances and purpose which has given rise to the amendment. As I understand it, the purpose of the amendment is to assist leaseholders in establishing whether the insurance cover and the contributions paid towards the insurance premium are reasonable. I entirely agree that transparency is important and that leaseholders should have access to information about insurance and, indeed, other service charges.
Having carefully considered the amendment, its purpose and effect, I am happy to reassure noble Lords that the law already provides leaseholders with the right to obtain the information that this amendment seeks to provide. Leaseholders contributing towards the cost of building insurance and service charges more generally have for some years had the right to access and obtain copies of this information. This includes being able to request in writing a copy of the insurance policy or the landlord/managing agent providing reasonable facilities to inspect the policy and all other supporting documents, for example. This is in addition to the ability to request a summary of service charges in general, which would include the costs of insurance, and to inspect the invoices, receipts and other supporting documents that make up the costs.
If a landlord or, indeed, a managing agent on their behalf, fails to comply with a request for information without reasonable excuse, they commit a summary offence, which is subject on conviction to a level 4 fine on the standard scale of up to £2,500. Ultimately, as noble Lords will be aware, leaseholders can apply to the First-tier Tribunal Property Chamber for a determination about the reasonableness of the costs of insurance that they contribute towards and other service charge payments. Grounds could include, for example, that the level or type of insurance is not appropriate, in addition to the reasonableness of the premium.
It is, of course, in the interests of parties to try to resolve concerns or disputes amicably, by discussion or alternative dispute resolution where possible, before resorting to the tribunal system. Noble Lords will also be aware of the requirement for letting and managing agents now to belong to one of three redress schemes approved by the Government. This requirement came into force on 1 October 2014, and is something that the noble Baroness, Lady Hayter, inspired through the Enterprise and Regulatory Reform Act. It is also important that we avoid creating a situation in which changes to legislation result in confusion or doubt about how existing legislation operates, or in weakening that legislation. This could potentially act to the detriment of the very leaseholders whose interests noble Lords are looking out for.
Guidance about leaseholders’ rights, including acquiring information about insurance, can be found on the GOV.UK website. Free, independent, initial legal advice about leasehold law and the rights available, including accessing information is also available from the government-sponsored body, the Leasehold Advisory Service. I hope, therefore, that I have been able to reassure the Committee that the law already provides leaseholders with the protections and rights the amendment seeks to introduce, and on why the Government are not convinced that noble Lords’ amendments will achieve their goals. For those reasons and the reassurance I have provided, I ask the noble Baroness to withdraw the amendment.
Baroness Hayter of Kentish Town
I particularly thank the Government for giving serious consideration to this. It is interesting that the Minister said, quite rightly, that we do not want conflicting laws. Part of the problem is that what she quoted about the right of leaseholders to take the freeholder to the leasehold tribunal to get this information does not enable them to get it from the insurance company. It seems to be the insurance companies that do not seem to know that they should be providing residents with information on their cover. Residents can obviously get a copy of the insurance but it will not cover all these small points. What we were trying to write into the Act was to make sure that everyone knows their responsibility, including insurance companies, who should not wriggle out of giving this information. I think that the noble Baroness is going to give me some more helpful comments.
Baroness Jolly
Certainly. The landlord or freeholder has to get the information from the insurer in the first place in order to show it to the resident.
Baroness Hayter of Kentish Town
I thank the noble Baroness for that clarification. The point was that leaseholders were hoping to get the information directly from the insurer because that is where their money went. I will withdraw the amendment because there is another issue that we shall come to about the amount of risk that is covered. That is for the next amendment. I beg leave to withdraw the amendment.
“( ) Where the consumer is being supplied with a financial service, the consumer shall be provided with such information as shall enable them to know the risks that were taken into account in calculating the applicable premium and the profit that either—
(a) the financial services company, or(b) the financial broker,anticipates to make on that premium if there is no claim on the policy.”
Baroness Hayter of Kentish Town
In moving the amendment, I shall speak also to Amendment 50D in this group. Amendment 50B does what all good financial service providers should, which is to help people to understand risk so that they can make an informed choice about the sort of product to buy and the sort of price that is worth paying. The amendment very much covers financial products such as annuities, where consumers are really buying blind as very often providers fail to reveal the risks covered or their service charge. It is bundled up in one price, without knowing the degree of risk that is covered or, indeed, the service charge being taken by the provider. So consumers are presented with an insurance quote for terrorism, in the example just given, but that may not explain the underlying risk that it has been assessed that they face and therefore need to be covered for, and they have no way in which to find out why that quote comes to be. Is the risk associated with where they live, underneath a plane that might drop, or is it based on their life expectancy or assumptions about future market movements—or, as we have seen, some change in the likelihood of flooding, terrorism or anything else? In other words, the underlying risk is not obvious.
The amendment tries to get greater clarity, in addition to the financial market, about life annuities and things like that, and car insurance. The Competition Commission in 2013 reckoned that car insurance was not working well for consumers, as they have very little information about the add-on to insurance products, such as replacement cars in the event of an accident. It is impossible to know how much that cover is worth when it is in with your car insurance.
In the Commons, the Minister said:
“The amendment is unnecessary because the Financial Conduct Authority’s conduct of business rules already cover the provision of pre-contract information”,
and claimed that,
“the requirement to disclose risk information … could have an adverse impact on the insurance market”.—[Official Report, Commons, Consumer Rights Public Bill Committee, 4/3/14; col. 428.]
According to the Government, it would require insurers to disclose their business model and confuse consumers, because companies use different models to calculate risk. What it means is that the degree of risk that the insurance company thinks it faces, and therefore why the charge should be there, is absolutely not explained to customers or clients.
The Minister also cited an apparent absence of demand for consumers to know how their premiums are calculated. I consider that that somewhat underestimates people’s attitude for information. As soon as they understand the importance of it, and therefore the effect that it has on the price and how much they are willing to pay, they may understand more. If young drivers, who get a very high premium, are told that that is because so many young people drive at night, they may be able to say, “I promise not to drive my car at night—could I have a lower insurance premium?” We know that exactly that has happened, but it took that degree of knowledge for young drivers—admittedly, represented more as a group—to be able to negotiate a different sort of insurance once they knew the underlying risks for which the insurance company was charging them more.
Transparency from providers to consumers should be one of the things that we try to get. It is particularly important with car insurance because it is a captive market—we all have to have it. I am assured that that means 26 million cars, which sounds like rich pickings for any industry. It is not a very competitive industry, in that only four companies account for half the £13 billion market. So premiums are high, and it is an example of where groups of consumers, if they understand more about their risk, might be able to negotiate a better deal. It is probable that everyone in this Room has managed to lower their car insurance premium by phoning up and complaining. You can usually get your car insurance reduced, which tends to suggest that it is not a very competitive market.
We will come on to another issue, which is that the add-ons often cover things like legal expenses, but again we are not told what the real degree of risk is and therefore it is impossible to know whether they are worth buying or whether it would be better to cover oneself through the house insurance premium for all legal costs rather than just those for the car. Without this knowledge, it is very difficult to shop around.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)
My Lords, I have a lot of sympathy with the intention behind Amendment 50B. It seeks to help consumers get a better deal from their insurers through the provision of more information, which would help them to make an informed choice. I am glad that we are discussing the issue today. But I am equally concerned that the amendment could lead to customer confusion and might even hamper competition in the insurance market, which ultimately is not in the interest of consumers. I shall first address the requirement under the amendment to disclose risks taken into account when setting insurance premiums. An example of that would be the age of a driver, as has been mentioned.
The idea of equipping the consumer to make informed choices is in my view an admirable one, but mandating the provision of complex information would be likely to result in the opposite outcome. A complex algorithm would not help the consumer and competition could be affected. In my experience, there is good practice out there. As it happens, only yesterday I was renewing my motor insurance on my mobile phone, which kept giving up on me, so I had to ring in again. However, in the end I did succeed. It was actually quite interesting because I had a discussion about some of the options. I asked, “If I take one of my sons off the insurance, will it be cheaper?” and so on. They were very clear and also went through extra things that one might want to purchase but had no obligation to do so. Those were the sorts of thing that the noble Baroness mentioned, such as legal expenses or a replacement car.
As we know, it is important that consumers—who are busy and not always financially literate—take in the key information needed to decide whether to buy an insurance product. To overload them with more information can put them off reading any of it at all. There appears to be little appetite from consumers to understand the complexities of how premiums are arrived at. We know that consumers concentrate on price. A key part of price competition comes from the respective capabilities of insurers to assess risk. Asking insurers to disclose these assessments could harm competition as it would be tantamount to giving away the secrets of an insurer’s business model. I think that that was the argument discussed in the other place. Further, the price of premiums could increase as a result of this amendment as it imposes an additional cost burden on insurers to provide a breakdown of detailed premiums—which inevitably will be passed on to consumers. This cost burden could damage an industry that employs 320,000 people in the United Kingdom.
The amendment also has a requirement to disclose profit relating to a policy where no claim has been made. Information about expected profit if there is no claim on a policy can be only speculative. Insurance works by pooling risks together—that is the whole principle of it. If no claim has been made on a policy, this does not necessarily mean that an insurer makes a profit on that policy. I also highlight that the Financial Conduct Authority’s conduct of business rules already cover the provision of pre-contractual information by insurers—that is, what you are told before signing up—so creating a separate set of rules in this area is unnecessary.
The Financial Conduct Authority’s General Insurance Add-ons Market Study highlighted that there is currently no consistent or common method for measuring the value of these products, and proposed that insurers should publish claims ratios to increase transparency and focus on value. This would be an aggregate: how much they pay out relative to income for the whole fund. The FCA has not yet concluded that work so it is important that we allow the regulator space to draw its conclusions before taking additional action. Of course, it has powers to add or amend its rules—in this case, the Insurance: Conduct of Business Sourcebook.
Turning to Amendment 50D, I am again concerned about the risk of adverse consequences for consumers and about the potential conflicts with existing rules on claims handling set by the FCA. I will explain my concerns by going back to the fundamental nature of some insurance claims. For example, as the noble Baroness mentioned, property insurance claims for riot or flood damage can take a long time to resolve simply because of the scale and nature of the damage. A flooded property can take many months to dry out and it is vital that the property is dry before any renovation takes place. In these cases, to assist the claimant through a period and alleviate hardship, interim payments and temporary accommodation are usually paid immediately.
Instead of helping consumers, the amendment could have perverse effects. It could encourage insurers to rush people back into their homes and close the claim just to be within the law rather than because it is the best outcome for the customer. I am sure that that is not the noble Baroness’s intention but that is a risk, as was suggested in the other place—and one that I am very keen to avoid in this important piece of legislation. Further, I am particularly mindful that artificial deadlines would put a strain on customers to quickly evidence the loss to validate their claims, and might even encourage what could be seen afterwards as fraud.
I know from experience that processing and verification can take some time. I also know that insurers, in general, take their obligations very seriously. Insurance is an important industry and pays out £452 million every day. Good insurers earn loyalty and a good reputation which allows their business to flourish and grow.
I think it is also relevant to set out how the Government have responded to recent flooding in the UK. To ensure that home insurance is affordable for 350,000 properties at highest flood risk the Government have worked with the industry to create Flood Re. We debated this during the passage of the Water Bill. When up and running in 2015, Flood Re will effectively limit the amount that most UK households at the highest flood risk will pay for flood insurance. We have also announced record levels of government investment in managing flood risk.
Still on the subject of delays, the insurance industry complies with all-encompassing consumer protection and redress rules set down by the FCA which in many cases exceed the measures proposed in the Bill. The FCA’s Conduct of Business Sourcebook, which I have already mentioned, requires that insurers settle claims promptly once settlement terms are agreed. The FCA has recently undertaken work on household claims in particular. This year, it conducted a review which concluded that there was no evidence of insurers deliberately delaying settlement. Where things go wrong, as they unfortunately occasionally do, consumers have the right to complain to their insurer and can also go to the Financial Ombudsman Service. A ruling made by the service is binding on the financial service provider.
We have discussed a very serious matter. I feel we have the balance right in this Bill, for all the reasons I have outlined, and I ask the noble Baroness to withdraw the amendment.
Baroness Hayter of Kentish Town
The Minister clearly needs some advice about topping up her phone battery if she is going to be renewing her insurance that way. We trust she got it through all right.
I am delighted that the insurance industry is paying out £452 million a day. We do not know how much it is getting in per day, which from the point of view of the consumer is the interesting figure. I was trying to multiply 452 by 365, but I did not manage to do it. However, that is the issue. If you get a no claim bonus for not having made a claim in the previous year, which I hope the Minister got, the real issue is that you have no idea of its value. In other words, you do not know how much the insurer has saved by the fact that you have not claimed.
I think I made it clear, after what was said in the Commons, that we are not saying that this will be an artificial deadline. The amendment states only that the fact that someone has had to move out of their primary accommodation can be taken into account when determining the timeframe. We were not saying that it was the determinant.
On Amendment 50B, the issue is that we want consumers to shop around. We want them to have the details to be able to judge price, and without some of the underlying assumptions it is hard to do that. I hope we can find a way of strengthening the consumer in this way, whether through the FCA or this Bill, but the FCA’s responsibilities are wider than just consumers whereas this Bill has consumers at its heart.
Baroness Neville-Rolfe
We have consumers at our heart in relation to this Bill and many other pieces of legislation, but there has to be a balance. I am sure we agree that if you put up costs inappropriately, the consumer is the loser because costs tend to be passed on in higher prices. We have to work together to find the right balance.
Baroness Hayter of Kentish Town
I certainly agree with that, but I am not always convinced that having better-informed consumers leads to higher prices. That may be for another discussion. I beg leave to withdraw the amendment.
Baroness King of Bow
“( ) Where the service provided is for an additional assistance service, a reasonable price will be one which is judged by reference to the guidance set out by the original provider of the service who has approved the provision of such an additional service including specifying a range of costs for its provision which can be considered reasonable.
( ) An “additional assistance” service for the purposes of this Act is any service assisting a consumer to use the original service that does not alter the original service provider’s intent in operating this service.”
Baroness King of Bow
My Lords, Amendments 50C and 56A both seek to ensure that the final provider of services approves any website offering services through them. This area is the digital equivalent of the cowboy mechanic charging people left, right, and centre for services they do not need. We know it is important to take action on copycat websites: the question is, how far will we go?
I start by examining how far they go to con consumers out of money. The examples are legion. I shall not detain the Committee for too long, but I will follow the top three copycat websites with a special commendation for con artistry, because I simply could not resist. Here are the top three copycat websites, in reverse order, identified in a poll of 1,750 people for moneysavingexpert.com. These people were all caught or nearly caught by those website scams.
In third place are websites for driving licence applications and renewals. They are supposed to cost £20 but these websites were charging up to £80. In second place are passport applications and renewals. They are supposed to cost £137; people were being charged up to £237. In first place are European health insurance cards. These are free, yet hundreds of people were being charged £25 for a free service.
There is a special commendation for con artistry. This goes to the copycat websites covering tax returns, because they are simply superb at what they do; that is, conning and scamming people. As we know, HMRC provides a free service to all taxpayers, yet the taxreturngateway.com website charges consumers between £150 and £1,000 for processing a self-assessment tax return. The company said this was justified because forms were checked for mistakes, but Which? points out that this is clearly misleading as that is exactly what the HMRC official site does.
You might think that you would have to be a bit of an idiot to pay for a free service; in that case I put myself in the idiot bracket. To be slightly gentler, we might be called idiots/people in a rush. You know how it is: you have a lot of things to do, you go online, and you click on what you believe to be an official site. I did that before I travelled to America. Instead of paying $14 for an ESTA visa I paid $40. Yes, I did feel like an idiot when I realised that I had paid a 300% surcharge simply because I was convinced I was on an official website when I was not.
The important point is that as the Government move to put more public services online, it is incumbent upon them to take all possible measures to prevent public service users and consumers being ripped off on an hourly basis. The Government have taken action on this. It is good news, for instance, that Google have removed misleading sponsored adverts. But at the end of the day it is the Government who need to take responsibility in this area, certainly more than a private company.
This is about consumers being legally scammed and ripped off in a calculated manner. The new single web domain, GOV.UK, is indeed welcome for providing the best way to access government services. But the Government can do more to prevent this problem at source, and this is what the amendments propose. Agencies should be able to detect, for instance, when mass applications are coming from the same IP source, because at that point there is an opportunity to evaluate whether the companies are providing a service that is actually value for money. If they are not, these websites can then be blocked by the agency.
For instance, many noble Lords in this Room will presumably be aware of what TfL has done, for instance. Consumers were regularly being overcharged for the congestion charge by copycat websites, with between £2 and £8 being added to their payment. TfL has now said in a public consultation:
“We are proposing an amendment to the Congestion Charging legislation so that we can refuse to accept Congestion Charge payments which are made by these unofficial websites or other unauthorised third parties which mislead road users into paying a fee in addition to the Congestion Charge. TfL will accept payments from third parties for someone else’s vehicle where there is no charge or commercial gain for making payment on their behalf; for example, payments made by people using car hire vehicles. We are planning to refuse payments from unauthorised third parties from December 2014”.
That is incredibly welcome, but instead of every single provider having to change legislation, why can we not ensure through this legislation that other providers can do the same?
The Transport Select Committee is the latest body to criticise the Government on this, saying:
“It is illegal to deliberately mislead the public or obtain money by fraud; the agencies providing services on behalf of the Government should do everything practicable to prevent users of their services from being misled or becoming the victims of fraud”.
TfL’s work here is a really strong and practical example of why just getting Google to police the internet is not the only thing on which the Government should concentrate. It is not the only practicable action that the Government can take.
Another point is that companies and service providers want to be able to control who sells on their services. We can all understand that—sometimes they may be a good thing. One option to explore is around having approved retailers, and we have that example with the Post Office. The ASA has also taken action on misleading adverts and websites. Can the Minister confirm that it cannot take further action against those websites as they exist at present? What further protections will the Bill give consumers in dealing with that problem, above and beyond what the Government have done to date? Does the Minister see a case for expanding “check and send” style services available in local post offices, where they provide a clear benefit for consumers?
In summary, I recognise that the Government have taken action in this area. Indeed, the letter from the Cabinet Office Minister dated 8 October illuminates the impact of government activity to date, which is a very good thing. But the fact is that clearly more could be done to stop copycat websites at source. That is what these amendments ask for, and that is why I beg to move the amendment.
Lord Harris of Haringey (Lab)
My Lords, I repeat my declaration of interest: I chair National Trading Standards. Its particular relevance to this amendment is that that body funds and supports the work of the National Trading Standards eCrime unit, which has recently taken action that has led to the arrest of a number of people associated with the delivery of copycat websites.
In moving this amendment, my noble friend highlighted the sorts of issues that arise in this regard. The most striking example is that of the European health insurance card, which is provided free. Those who have applied for renewal, as I have recently, will have found it an extremely simple and easy process. The fact that people were persuaded to pay up to £25 demonstrates how easy it was for the scammers behind some of these sites.
It is also clear that this is extremely big business, and there is no doubt that the area is under-reported. My noble friend in moving this amendment admitted her embarrassment in realising that she had been caught in this way. I rather suspect that most of us would feel embarrassed and stupid. Because people do not apply that often for European health insurance cards or passports, they would simply write it off to experience and hope to remember to do it differently in 10 years’ time, or whenever the time came.
The reality is that this area has been under-reported for many years. I am reluctant to comment too much on the arrests that have taken place, or the individuals involved, but I saw an article in the Mail on Sunday, which no doubt checked its legal position, about the scale of the revenues, and so on, that may be involved in this. It is clear to me that we may be talking about tens of millions of pounds, and maybe more, which individual citizens have paid unnecessarily through these copycat websites. The profits for those behind them are no doubt extremely large. So something needs to be done.
Again, my noble friend referred to the recent letter from the Cabinet Office setting out a number of initiatives that should take place, but there are a number of areas where everyone needs to make their contribution. Clearly, we as members of the public need to be better informed, and I am pleased that the National Trading Standards eCrime unit recently produced a public information guide called The Owl and the CopyCat, which was designed to demonstrate to people exactly how they ought to behave, and the dangers of going on copycat websites. So the public have a responsibility.
Secondly, the search engines have a responsibility. It may well be in their commercial interest to accept ads from these dubious websites and to place them at the top of search results, but that is not acceptable, and I am pleased that the Government have sought to persuade the search engines that this is inappropriate.
Thirdly, there is a responsibility on law enforcement and trading standards to investigate and to establish whether offences have been committed in terms of misleading the public.
The fourth area relates to the legitimate websites themselves. This is what the amendments in this group are all about. They will know—they must know—where the money is coming from. They will know if it is being channelled through particular IP addresses. They should take steps to monitor what is happening; they should take steps to intervene. The amendment clearly makes it an offence to charge unreasonably for any services associated with applying for a particular public service: the additional assistance element. The second amendment in the group suggests that the legitimate websites should look at whether the charges are legitimate, appropriate and proportionate to what is required.
I mentioned the European health insurance card. The process for applying for this is extremely simple. It is difficult to see what conceivable value additional assistance could provide as far as that is concerned; you would still have to provide your national insurance number or whatever it is to the copycat website, and that is all you have to enter. I recently had the experience of applying for a Russian visa for my daughter. This is an arduous process at the best of times. It is even more arduous when dealing with the bureaucracy of the Russian state. When I embarked on the process, I found what I assumed were a number of copycat websites. I thought, “No, I won’t be caught like this, I’ll go through the GOV.UK website, which will refer me to the correct Russian visa site and so on”. I embarked on the process and I have to say that at the end of it I would happily have paid somebody fifty quid to deal with the bureaucracies involved.
That is why we should take this back to what is an appropriate and legitimate charge for additional assistance. What the copycat websites are doing is saying somewhere in the small print that they are not the official site but are providing a service. We need to get beyond that and ask, first, whether the service that they are providing is necessary and, secondly, whether the charge that they are making is proportionate to the complexity of what they are providing to the consumer.
These amendments go beyond that to say that it would be entirely possible for the official websites to determine which additional service providers are authorised and to produce a scale of legitimate charges that could be made.
If we are placing an obligation on members of the public to be more vigilant and to carry out their own due diligence, and if we are placing an obligation on the search engine providers to be more vigilant and provide that service, surely it is legitimate to say to the legitimate websites that they should exercise due diligence and provide information and a measure by which we can determine whether any additional assistance provided is worth it. Where it is not, they should not accept payment from those sources.
Baroness Neville-Rolfe
My Lords, I make it clear that sites that try to palm themselves off as legitimate government services need to be stopped. We do not want cowboys battening on the services that are legitimately provided by the state. Therefore I sympathise with these amendments. This is a problem that the Government recognise and are taking action on. I was to glad to hear from the noble Lord, Lord Harris, about some of the successes that trading standards has had. He is right to emphasise the scale of the issue and the numbers involved in copycat websites.
We know that the way most people inadvertently end up on misleading websites of this kind is by clicking on adverts that are prominently displayed on search results pages. The Government Digital Service, which the noble Baroness mentioned in relation to the Cabinet Office letter, has been working with search engine providers such as Google to take down adverts for these sites. They are in breach of the search engines’ own policies and many of them have been removed.
There are a lot of parallels here with the problem of websites offering copyright-infringing material which also tend to be found through search results. We have been working on that, too. I have had meetings with some of the ISPs and others, and I am pleased to say that the main search providers are fully engaged on the issues.
We have also made sure that the existing law is being effectively enforced. Earlier in the year, my colleague Jenny Willott MP provided £120,000 in additional government funding to the National Trading Standards eCrime Team to support enforcement action against copycat websites. In late June, four search warrants were executed on properties in England. The operation led to the arrest of five individuals and disrupted the operation of at least 25 copycat websites. A criminal investigation is ongoing. This sort of action matters because it sends a message to the cowboys that this will not be tolerated.
Government agencies are also proactive in this area. The Intellectual Property Office is pursuing, prosecuting and putting out of business two operators of websites masquerading as official IPO services. That action was pursued successfully using the common-law remedy for passing off.
The noble Baroness, Lady King, mentioned the ASA. It continues to take action on a case-by-case basis and can take action on repeat offenders. It took action in November 2013 on Jars Services Limited which was trading—wait for it—as www.drivinglicence.org.uk. In September 2013, it took action against TAD Services trading as UK-Passport.net, and in June 2013, it took action against European Health Insurance Card trading as EHIC. The noble Baroness made a good point about the areas where this fraud is being perpetrated. We need to work to get those sites taken down.
The IPO case has been helped because for the first time ever, we have set up a website where consumers and traders can report copycat sites. This is specifically to protect and empower other consumers. Full details can be found on the excellent GOV.UK website which we are all pleased to see up and running. It allows a modern and dynamic response appropriate to the online era.
I reassure noble Lords that there is already law in place to protect consumers from being misled into a purchase. The Consumer Protection from Unfair Trading Regulations 2008 have been much mentioned during our debates and are very important. We also take enforcement action against these websites under intellectual property law. With a robust legal framework in place, we have been working to enforce the law and go further in partnership with industry.
However, I am not convinced that the law needs to be changed in the way proposed today. The amendment would in effect require government to regulate every third-party service. Government would need to approve it, issue guidance and determine reasonable cost scales. That would be a significant intervention in this marketplace. We should not take such steps unless the interventions we already make are not working and there is clear evidence that further intervention is needed.
People’s behaviour and expectations with regard to online services are constantly evolving and difficult to predict. We are keen not to stifle innovation or negatively impact websites that are honest and legitimate and provide value-added services. The most effective option is to enforce the existing legal sanctions against misleading websites which breach consumer protection legislation or IP law. In addition, we are going further by supporting search engines in assessing whether a third party offering services related to a government service is actually a genuine service. This complies with the search engines’ own guidelines and polices.
Lord Harris of Haringey
Could the Minister elaborate on that point? If the Government are working with search engine providers and essentially saying to them, “This is a legitimate additional service provider”, or, “That is not”, are they not already starting the process of regulating what she talked about as a legitimate marketplace? They must make that judgment already to be able to say to the search engine providers, “This is an illegitimate, copycat website”, or, “That is a legitimate service provider”.
Baroness Neville-Rolfe
My Lords, I thank the noble Lord for raising that point. I know what is happening in certain areas but not across the board. If I may, I will take the noble Lord’s question away and come back to him. It is also important to publicise better the sort of things that are being done in this area. I have tried to do that in a small way today, as has the noble Baroness, Lady King. For the present, I ask her to withdraw her amendment.
Baroness King of Bow
My Lords, from what the Minister said and in conjunction with the points raised by my noble friend Lord Harris, I think the Government are saying, essentially, that it would be too much work for government departments to approve websites offering additional services. The point I wanted to make—as my noble friend did—is that that does not really make sense, for a couple of reasons. First, the extra work is minimal. Indeed, as my noble friend pointed out, it appears that it is already being done to some extent at the moment. Secondly, that extra work—whatever it may be—is insignificant when compared to the detriment being done to the consumer. That is the point we must consider here.
We also have to take into account all the time currently spent by government departments or other offices answering consumer complaints in this area. For example, the DVLA has received 170 complaints about scam websites since 1 March. The Home Office, in nine months in 2013, received 590 written customer complaints about scam passport sites. As for TfL, it had an extraordinary 1,000 complaints a day. Does not that shed some light on one of the reasons why TfL has been so proactive in this area? Would it not be helpful if Government encouraged other providers to be just as helpful to the consumer?
The other problem with the Government’s approach of leaving it really up to Google to monitor websites is that although Google has agreed to take down some of the adverts and monitor future ones, this requires much more continuous monitoring work than cutting off copycat websites at source. Critically, this approach also inevitably leaves some consumers unprotected for some stretches of time, and therefore undermines consumer rights. As my noble friend Lord Harris made clear, these websites are big business. They make their living by inflicting detriment on the consumer in an entirely parasitic manner. If we are all to play our part, it must include legitimate providers taking the time to say whether a site provides an additional service. That is the purpose of these amendments.
At the start of her speech the noble Baroness said that these sites need to be stopped. I welcome that forthright attitude, but I am sure she will understand my disappointment that it simply is not being followed up with what would be very simple measures.
Baroness Neville-Rolfe
Perhaps I could make one point about the idea of new legislation, which I think is what the noble Baroness is calling for. We are very concerned not to stop legitimate organisations that do provide added-value services related to those provided by government from advertising via search engines. That is an important objective; there are always two sides to these questions. At the same time, as I said earlier so robustly, we want to stop those who make false or misleading claims, who do not provide any added value to users, and who thus understandably frustrate and upset those who, as in the example given by the noble Baroness, choose the wrong sort of website.
The difficulty is that people’s behaviour and expectations with regard to these services are constantly evolving and difficult to predict. That is why we are pursuing the option of supporting search engines in assessing whether a third party that is offering services related to a government website is actually a genuine one which complies with the search engine’s own policies. I think that it would be difficult for us to do this on our own. We have set up the website page www.gov.uk/misleading websites, which I mentioned earlier, and we will monitor the effectiveness of this approach over the coming months. We need to work in this evolving and important area, and I can assure the noble Baroness that we are determined to make a difference.
Baroness King of Bow
The problem I have with the Minister’s response is twofold. First, the legitimate business issues she is talking about would not suffer any problems as a result of the amendments we have put down because they would be providing additional services. Secondly, when the Minister tells us, as she just has in her intervention, that Google is looking at which copycat websites are appropriate and which are not—obviously if they are appropriate, they are not copycat websites, but I am sure the Minister gets my meaning—if we take the example of TfL and the congestion charge, surely TfL is better placed to determine whether a website is providing an additional service or not. Why should the people at Google, clever as they may be, essentially have to do the job that a provider is far better placed to do? I genuinely do not understand the Government’s persistent objections on these points and I would be very grateful if the Minister could pay serious attention to reviewing them. However, until that point, I will withdraw the amendment.
Baroness Neville-Rolfe
Before we finish on this important matter, which I think we both care about a lot, perhaps I may say a few more words. Before we decry the work being done with Google—I think the noble Baroness is asking whether it is sufficient—in the period between November 2013 and June 2014, click-through rates to the official sites improved as a result of work with Google. From November 2013 it was 43% on passports and by June 2014 it was 72%. Obviously there is still a problem, but we are seeing an improvement. Driving licences: 41% in November 2013 and 69% in June 2014, and of course we are now in October. I believe that this is an area where we have to work with the industry. However, I will respond to the point made by the noble Lord, Lord Harris, about how we can link in and identify the third parties in every relevant area. As I say, I will come back to him and to the Committee on that issue.
Baroness King of Bow
I thank the Minister for that intervention. One of the issues comes back to what I have heard the Government say—namely, that they are going to take all practicable measures to deal with this matter. Our point is that these amendments represent very practical measures that could deal with it. I mentioned the letter from the Cabinet Office setting out the impact that the Government’s steps had had, and I welcomed them. The Minister just referred to driving licences and said that the relevant figure had gone up from 41% to 69%— that being the number of consumers coming through legitimate routes as opposed to other routes where they may face surcharges. However, that still leaves approximately a third of consumers uncovered. Given that we are discussing the Consumer Rights Bill, I simply cannot understand why we would not want to strengthen the position of the one-third of consumers and ensure that they have the whip hand rather than the parasites who are out to make money unfairly. Therefore, although I shall withdraw the amendment, I do so with a heavy heart, albeit a hopeful one, because I am sure that the Government will agree that these are fair amendments that would help consumers save money and stop legal scams. I beg leave to withdraw the amendment.
“(3A) Where the conduct of the service can be reasonably considered to lead to a risk to the personal safety of the consumer, the consumer has a right to—
(a) a full refund of the cost of the contract, and(b) any additional fees associated with the service.(3B) Any action taken under subsection (3A) will not prevent the consumer from seeking other remedies or further compensation for the consequences of this installation.”
Baroness Hayter of Kentish Town
I am feeling very proud as I managed to renew my passport online and got it from the Passport Office in, I think, 48 hours. I thank the Passport Office for being able to do that online and for its incredible efficiency.
In moving Amendment 50F, which stands in my name and that of my noble friend Lord Stevenson, I will speak also to Amendments 50H and 50J. These concern issues that we addressed when we discussed the Bill’s provisions in relation to goods. We are worried about consumers whose personal safety is at risk due to the quality of workmanship in their house. They should not have to have the same people back to make a first attempt at repairing whatever they have botched before being able to ask for a refund of their money and any associated costs. The importance of the amendment will be clear to all consumers.
A trading standards representative gave written evidence to the Public Bill Committee in the other place that the remedy in the Bill was insufficient where dangerous service was involved. In these circumstances consumers should have the right to end the service and get their money back. At present, the Bill enables consumers who find that a service is not undertaken with reasonable skill and care—a normal service, if you like—to have that service undertaken again and to get their money back or obtain a price reduction only if the repeat service does not work. These amendments address the problem whereby a consumer’s personal safety is at risk and would allow them to move straight to obtaining a refund rather than risk their safety any further by having to have a repeat performance by an incompetent or careless supplier.
On a previous occasion we gave the example of a gas fitter who services a boiler and causes a leak or a builder who knocks down the very wall that he is meant to be building. These may appear extreme cases but, sadly, we know that they happen and we know that we would not want such tradesmen back in our houses. Therefore, we would like a consumer to be able to obtain a refund and employ another company in these circumstances without first having to have the same company attempt to repair the damage.
I know that the Government have looked at these measures in another place and feel that they are not necessary as the consumer will retain access to a common-law remedy for damages. The Bill sets out clear remedies and courses of action but for consumers to have to argue with the tradesperson in court in order to solve this problem does not seem to us a clever way forward, in addition to all the expensive legal action that is bound to be involved. This amendment would give clarity and keep these issues out of court. I beg to move.
Lord Harris of Haringey
My Lords, I will speak in support of this amendment. I declare a personal interest in this matter. I appreciate that this Committee has turned into an opportunity for all of us to explain our recent experiences of various sorts, but I suspect that this is one of the most recent experiences. Having had a series of problems with a boiler installed in my home, we called out—for the second time in this instance—a contractor to come to try to put it right. Last Tuesday evening I got home and, despite a slight cold, detected what I took to be a smell of gas. We summoned the appropriate people, who came with their little sniffer things, and so on, and declared that whoever had allegedly repaired this boiler and the flues had left it in a state whereby not only was there a serious gas leak but there was a serious leak of carbon monoxide. Fortunately, the boiler is in a basement area, although presumably it could have become an excitingly combustible place. However, the reality was that it had been left in a seriously dangerous situation.
After I had spent some time swearing at the contractors—and I am tempted to use parliamentary privilege and name them, so that residents of north London are warned of these people—the offer was made that they should come to put it right. They were shocked, as I was, that they might have left this in a dangerous situation. My immediate reaction, which remains my reaction, despite the fact that we have no gas at all in the house, because the gas board has been in and disconnected everything for the sake of safety, was that these were the last people whom I would like to come in and rectify the problem. Indeed, I notice that the contractor has e-mailed and phoned me today, clearly because he wants to be paid for the work that was originally done.
This is precisely one of those areas where the consumer needs a very clear legal position. I had not actually looked at my noble friend’s amendment until today, but this is exactly what is required under these circumstances. I wish that this could be made retrospective and that I would simply be able to point to Section 54 of the Consumer Rights Act, as it would then be, and say, “Hang on, there’s no question that we’re having a full refund of the cost and any additional fees associated with bringing somebody else in”. That is what most sensible people would expect. If the Government are serious about giving the consumer sensible rights, they should provide that in the Bill.
Baroness Jolly
My Lords, we have taken great care in developing these remedies, for obvious reasons, and we have had a very good example today. Services are a vital part of our economy. In addition, SMEs and micro-businesses make up the vast majority of services businesses. It is therefore essential that we get these remedies right.
When we consulted on these remedies in 2012, respondees supported the approach that we are taking. They considered it a sensible, balanced approach. Based on the support that we received for this approach to remedies, I am not convinced we need to amend them as this amendment proposes. The remedies that we have are clear for traders and consumers, and it is set out clearly in the Bill when the consumer can ask for each remedy. This is important: The British Retail Consortium told us that it agreed that,
“this approach would be helpful to the extent it is practical and realistic”.
However, we have also catered for the more extreme cases where personal safety is at risk. Here I should say that these notes were written before we had heard the story just told by the noble Lord, Lord Harris. Let me reassure him that the Bill does not force the consumer to have a trader whom they do not trust back in to repeat a service. The remedies set out in detail in this chapter of the Bill are not the only remedies available. To make this clear, we have written into Clause 54 that the consumer retains their access to common-law remedies.
Baroness Oppenheim-Barnes (Con)
Before my noble friend goes too far, what are the other remedies and how soon are they available?
Baroness Jolly
I will come back to the noble Baroness with chapter and verse on the remedies, but they will not be available until the Bill has been passed.
The remedies consumers retain under common law are the right to damages or, in some cases, the right to treat the contract as at an end, rather than being limited to the statutory remedies in the Bill, as long as they do not claim for the same loss twice. I am sure that no noble Lord would do that.
I recognise that consumers and traders will not want to go to court in most cases. That can, in some cases, be expensive and time-consuming. However, knowing that they retain the right to go to court is intended to empower the consumer to ask for their money back. It should also encourage the trader to agree with the consumer to do this. The consumer’s rights under this chapter of the Bill are not the only legislation ensuring that services are performed safely. For example, building regulations require that building work does not compromise the safety of people in and around the building.
Many service providers rely on their reputation and word-of-mouth recommendations. If they have made a mistake, they will want the opportunity to return to fix it. It would not be fair on those traders to take away that opportunity. Many consumers would also want the trader to rectify a problem with a service rather than have the inconvenience of finding another provider. There is also nothing to stop the trader volunteering to give the consumer a price reduction without a re-performance. The trader and the consumer are free to come to an arrangement separate to the statutory remedies in the Bill. Reputable traders will negotiate a remedy with the consumer, taking into account what the consumer has asked for. Given that consumers will be able to access compensation where re-performance is not desired and that our consultation showed broad support for our approach, I ask the noble Baroness to withdraw the amendment.
Baroness Hayter of Kentish Town
The noble Baroness, Lady Oppenheim-Barnes, asked a wonderful question. It was short and acute and went to the heart of the issue because the other remedies, the common-law remedies, are expensive and take a long time and any trader will know that no one is going to take them to court for £200 or £300—even my good and noble friend Lord Harris of Haringey. I am tempted to offer to come and help.
Lord Harris of Haringey
Is this on the public record, because I am still in discussion with the trader concerned?
Baroness Hayter of Kentish Town
I take my noble friend’s point about making this retrospective.
There is a serious issue here. The consultation at the beginning may not have thrown this up because when any of us respond to consultations we have not always thought about all the implications and what could happen and that there might be something dangerous. I urge the Government not to rely too much on consultation on what was a big Bill at the time. No one actually thought about this.
There are a number of issues. The major one is that on quite an important issue it reverts to the old way, which is to go to court, and that does not suit consumers. I do not think it is very good for court expenses or for the trader. Just because the consumer has a right to a refund and to find another trader, it does not mean that they will. The Minister said that some consumers will want the same trader back because they do not want to look for another one. That is fine. Nothing will stop them doing that. The amendment does not require the consumer to have a refund instead of having the old trader back. It states that they should not have to go through one repair before they have their money back.
As I think we said when we raised this and the other safety issues at an earlier stage, this is something we will need to come back to because if consumer rights do not provide the basics such as keeping consumers safe, there is something missing. We will have to think about how we can pursue this on Report. For the moment, I beg leave to withdraw the amendment.
“Services delivered on behalf of a commissioning bodyServices delivered on behalf of a commissioning body
(1) In this section “commissioning body” means a government department, local authority in England or other public body.
(2) Where a commissioning body commissions another person to deliver a service to a consumer, the contract between the commissioning body and the provider of the commissioned service must include—
(a) a requirement for the provider of the commissioned service to operate a complaints procedure;(b) provision for reporting any complaints to the commissioning body; and(c) a requirement for the provider of the service to provide information about the complaints procedure to the consumer.(3) The information required by subsection (2)(c) must include—
(a) an explanation that the complaint can be referred to the commissioning body;(b) where the commissioning body is named in Schedule 2 to the Parliamentary Commissioner Act 1967, an explanation that the complaint can be referred to the Parliamentary Commissioner for Administration; (c) where the commissioning body is named in section 25 of the Local Government Act 1974, an explanation that the complaint can be referred to the Commission for Local Administration in England.”
Baroness Hayter of Kentish Town
I move Amendment 50K in this group on behalf of my noble friend Lord Stevenson and I will speak to Amendments 50M and 105A. This is an important and rather different set of amendments. Amendment 50K was tabled because of the increasing use of private or voluntary sector bodies to deliver services that historically were carried out by central or local government. In the UK, we have a long-standing and highly regarded system of ombudsmen for such services—for local or national government—whether provided by the NHS or by local councils, with such ombudsmen being free, independent and easily accessible. Indeed, it is one of the many advantages that users of local government services have, including recipients of social care. Where they have a complaint about any service, they can at a final stage take that to the independent Local Government Ombudsman, who adjudicates on the matter and can award redress if the service was found not to be up to standard. However, it is not clear to everybody whether users of contracted-out or commissioned services have equal access to the relevant ombudsman, so the amendment seeks to clarify this, not least to mandate clear signposting to first-tier complaints systems as well as to the ombudsmen.
There are wider questions about the redress landscape, which the Public Administration Select Committee has described and which Oliver Letwin, I understand, is now about to review. There are issues about the way things work now—for example, with, we hope, increasing and better co-ordination between hospitals and social care and a seamless move between the two. Interestingly enough, if there is a problem on the health side, it goes to one ombudsman, whereas if it is on the social care side, it goes to a completely different ombudsman. On the handover between the two, it can be difficult to know who was at fault. Even if you can identify that, you then have to find which ombudsman is the appropriate one. Luckily—I hope that some people in the Room will excuse me for saying this—both those ombudsmen are women, so they tend to get together and sort it out, but of course that will not always be the case with such organisations. The Committee will understand the problem.
This amendment does not try to solve the particular problem of overlap, but it deals with situations where a public authority contracts out work to a private provider. It aims to ensure that the user still has a clear pathway to the relevant ombudsman. Given that many public services are delivered these days through a range of bodies, it is hard for the consumer to follow the chain of accountability and to know where to turn if a service lets them down. Indeed, people do not always realise that if a local council has contracted out, it is still accountable, even though it may be another organisation that is delivering the service on the council’s behalf. Whoever is delivering publicly funded services, we believe that users should have access to clear, effective complaints processes, as well as the reassurance that in the final analysis they could take their complaint to an independent ombudsman.
Amendment 50K would ensure that the contract between the commissioning authority and the provider requires a proper complaints procedure, in addition to users knowing that they can refer their concern back to the local authority and then to the ombudsman. At the moment, councils always signpost complainants to the Local Government Ombudsman, but this amendment would ensure that all users of public services—we are particularly talking about social care—are equally well informed.
A brief example from the Local Government Ombudsman was where it had to remind councils that they remain responsible for the actions of, for example, care homes with which they work. The LGO undertook an investigation into Merton Council, which was responsible for a contracted private home. That home asked the family of an elderly resident to pay a top-up fee, but in fact the home had no right to that fee. The family happened to contact the council about where the payment should go and it was only then that it came to light that they were not due to pay the fee because the council had paid everything and the care home was not entitled to any more money. Interestingly, that complaint ended up in the right place because it had come to the notice of the local authority. However, in her findings, the Local Government Ombudsman, Dr Jane Martin, found against the local authority, reminding it that the law is clear: the actions of the care provider shall be treated as actions on or on behalf of the council, so the council was responsible for the care home seeking to extract funding from the family. She went on to warn other councils that they are responsible for any contracted activities that are provided. Clearly, not all councils and not all care homes know that and, even more obviously, not all users know it. We want public providers to ensure that all users are clear about their right to go to the independent ombudsman.
In the case of the Parliamentary and Health Service Ombudsman, the health service is already required to signpost patients to the ombudsman. However, that is not the case for government departments, agencies or other bodies, such as the Electoral Commission, the Charity Commission and Monitor, against which complaints can be taken to the Parliamentary and Health Service Ombudsman. If even those bodies do not know, certainly anyone they contract to do their work will not know either. An individual consumer could be applying to find out something from the Charity Commission and have a complaint, but of course they would not be signposted on. If they were involved in any payment, which they could be if it was for a service, they should be covered by this Bill.
The Parliamentary and Health Service Ombudsman knows that, where signposting is inadequate, there is a strange absence of complaints. Research undertaken in 2012 showed that almost half of the inquirers said that they had not been informed about the Parliamentary and Health Service Ombudsman by the service provider. It is interesting to note that the remit of ombudsmen allows them to follow the public pound and therefore review the actions of bodies acting on behalf of the relevant public bodies, but few citizens know that. Under this Bill, where there is any sort of consideration or payment, as there could well be in respect of a day centre or for other services, we want to ensure that people are absolutely clear about their right to go to an ombudsman.
Amendment 50M speaks for itself. It asks the Government to look at how consumers who use contracted-out or commissioned public services are going to get a better deal along the lines provided for in the Bill. The chapter on services is pretty clear. When we have our windows cleaned or a kitchen installed, as we discussed last week, we know our rights. We know from earlier discussions that the Bill is also going to cover public services where there is an element of payment. We will be interested to know how the users of publicly funded but privately provided services will have their rights under this Bill enforced, as well as what independent advice they might be given to help them in this regard.
Finally, Amendment 105A would require statutory regulators to ensure that they develop proper user or consumer representation on their boards, as well as reviewing annually the consumer experience of the industry, including whether they are sufficiently well represented and listened to so that their rights under this and other legislation are protected.
Regulators exist in exactly those industries where the consumer cannot on their own behalf get a fair deal because the industries are effectively monopolies, or because the nature of the service is so complicated and specialised, as in the law, that clients are in no position to evaluate it or shop around, or because it is an essential service, or for some other market failure. Despite this, not all regulators put the consumer, in whose interest they are meant to work, first—sometimes because of industry capture or sometimes because they fail to see the consumer impact as they work at such a helicopter level. However, it is usually because they do not embed the end-users’ views into their decision-making. They decide policy without researching the consumer’s experience or views. They simply do not understand the ordinary person who pays the bill. This amendment would embed the consumer voice into the regulators’ governance, where it should have been from the start. I beg to move.
Lord Knight of Weymouth (Lab)
My Lords, the amendment raises an interesting question, which I thought I should take the opportunity of posing to the Minister. A cursory glance at Hansard from the other place suggests that the Government’s intention is that consumer rights in this legislation should apply to consumers of public services as well as private services, which is what the amendment addresses. The question that arises refers back to the last time I attended this Committee, when we were discussing consumers’ rights in the context of digital.
With normal goods, one has the right to return them and seek a refund or replacement. I am intrigued as to how that would work with some public services. For example, does this apply to the licence fee? If I do not like what I consumed on my television, do I have the right to a refund or replacement? Of course not, but how does that work in the context of the Bill? If I have paid tuition fees and I am not satisfied with the nature of the service that I receive from a university— I hazard a guess that quite a few students might at times have problems with, for example, the amount of access they have to face-to-face tuition—am I considered, in the context of the Bill, to be a consumer with the same rights as I would have in the private sector? I should be interested to know how that plays out. Or do we, as the amendment suggests, rely on the regulator? In which case, is that all pinned down properly in the Bill?
Lord Whitty (Lab)
My Lords, I support what my noble friend has said in moving the amendment. I want to address for a couple of minutes Amendment 105A, which deals with the issue of consumer representation and how it is reflected within the structures of our regulators.
In general, it is stated early in each of the relevant Acts that the regulators are there to protect, advance or reflect the interests of consumers of gas, electricity, water, telecoms or whatever it may be. Much of the drive within those regulators is indeed geared towards that. However, it is also true that a whole lot of other broader, less direct duties in relation to consumers fall to those regulators. Successive Governments have, rightly or wrongly—I will not go into that too much—placed additional responsibilities on regulators to have regard to wider issues, to long-term and short-term issues, and to social and environmental consequences, for example. One understands all this if we are to develop industry in a way that meets those wider objectives and looks after the interests of consumers.
Put gently, in some cases the duty to look after the interests of consumers, in a simple sense, has been slightly lost. Some of that reflects the fact that the personnel who form the boards and the senior management of these regulators by and large do not come from a consumer background. They come from various technocratic and business backgrounds and in some cases from an academic background and they have the expertise that is necessary to understand the industry that the regulator is dealing with. However, the voice of the consumer in a clear sense is much more difficult to identify.
Baroness Jolly
My Lords, this has been a fascinating debate. Some really interesting questions have been posed, not least by the noble Lords, Lord Knight and Lord Whitty. I reassure noble Lords that I will write to all noble Lords who I have not answered by the end of my response and place a copy in the Library.
We all care passionately about the provision of public services. I am sure I do not need to remind noble Lords that our reason for not including improvements to our public services explicitly in the Bill is not that we do not consider them important. They are vital, and I am proud to say that this Government have done much to change and improve public services.
This Bill will benefit all consumers by setting out in one place consumer rights. This Bill will empower consumers. To maintain that clarity and consolidation, we have not included specific provisions for public services in the Bill. When asked in the other place, the Office of Fair Trading said:
“If you want to deal with consumer rights and the public sector, there is probably a different way to go. This is a simplification and consolidation Bill that is trying to ensure that consumer rights are clear and in one place”.—[Official Report, Commons, Consumer Rights Bill Committee, 11/2/14; col. 49.]
While there are no explicit provisions in the Bill on public services, some public services will attract the rights and remedies under the Bill. Services will attract these rights and remedies if they are supplied under a contract between the consumer and a public body. That is the test. This is because the definition of “trader” is wide enough to capture the activities of any government department or local or public authority. Consumers of public services provided under a contract with the provider will therefore benefit from the Bill with clearer rights, clearer remedies and ultimately better outcomes. That is a good thing. We will make it clear in our guidance to consumers and traders that this is the case.
Turning to those public services that are not covered by the provisions in the Bill, let me be very clear that these consumers are nevertheless protected—and in a way that often provides more tailored, specific and appropriate safeguards, designed to fit the particular service. Many of these tailored regimes already incorporate just the sorts of protections that these amendments discuss: independent advocacy, regular reporting and established ombudsman schemes.
Several sectors have well established alternative dispute resolution services. For example, the role of the Parliamentary and Health Service Ombudsman is to investigate complaints that individuals have been treated unfairly or received poor service from government departments, other public organisations or the NHS in England. The ombudsman’s powers are set out in law and the service is free for everyone. In 2012-13, the Parliamentary and Health Service Ombudsman resolved 26,358 inquiries for consumers. In 2012-13, the Local Government Ombudsman responded to more than 90,000 contacts from the public.
We all share the vision of public services provided to a high standard, where consumer feedback and consumer choice work to push up standards. The noble Baroness, Lady Hayter, mentioned the issues of signposting to ombudsmen. As my honourable friend Jenny Willott explained in the other place, the Minister for Government Policy, my right honourable friend Oliver Letwin MP, commissioned Robert Gordon to review the ombudsman landscape, thus considering the case for a single public sector ombudsman. He will report to the Minister before Christmas and we are committed to considering his recommendations. It would be premature to take action in this Bill before the review is completed.
I turning to the specific amendments tabled. The first is Amendment 50K. I am sure that all noble Lords are aware of the Open Public Services agenda. It is based on five principles for reform: decentralisation; choice; diversity of provision; fair access; and accountability. To achieve these objectives, we want to ensure that consumers of public services are empowered to raise concerns and that service providers learn from those complaints. In March, the Public Administration Select Committee published a report following its inquiries into complaint handling across government and the role of the Parliamentary and Health Service Ombudsman. As my right honourable friend the Minister for Government Policy made clear at the time, we agree that the ombudsman can play an important role in improving complaints handling and we are committed to working collaboratively with the Parliamentary and Health Service Ombudsman and other public service ombudsmen to deliver an accessible and effective complaint-handling process from first contact with a service to final resolution by an ombudsman.
There is now a set of choice frameworks covering NHS care, social housing, schools, funded early education and adult social care. These documents clearly set out the choices available to service users, as well as instructions for seeking redress if those choices are not satisfied. To offer clarity to the noble Baroness, Lady Hayter, these frameworks tell the consumer who is responsible and who to complain to. We are now looking at new digital channels for the public to register complaints about public services. This is in response to the Public Administration Select Committee’s report on complaint handling in the public sector. By way of example, we are working with the Department for Work and Pensions and the Land Registry on initial trials during the autumn.
On independent advocacy, as we said before in Grand Committee, we also prioritise making sure that consumers know their rights. Consumers of public services have access to advice, information and advocacy from government-funded channels such as Citizens Advice or GOV.UK. In addition, other bodies such as Age UK act as consumer advocates, especially for more vulnerable consumers.
Citizens Advice provides much of this advocacy. A spokesman was asked in the other place about including reforms to public services within the Bill. He said:
“I am not sure about that, if I am honest. It is not something that we have thought through sufficiently to get to a yes or no answer to that question. There are other ways of dealing with public sector services problems than a consumer rights Bill”.
When asked the same question, Which? said that,
“there are so many things that could fall within the scope of the Bill or could be added to it, and it could become unwieldy. So it is a question of priorities”.—[Official Report, Commons, Consumer Rights Bill Committee, 11/2/14; col. 7.]
I agree with those views. Public services are indeed important. We are committed to their improvement, but that is ongoing—outside this Bill.
Moving to the regulated sectors and Amendment 105A, it is important that consumer rights in regulated sectors are protected and that they are given sufficient information to make informed decisions. Regulators already have a statutory duty to look after consumer interests and must report annually on how they do this. Also, consumers within the sectors regulated are represented by relevant consumer bodies: for example, the Consumer Council for Water, Passenger Focus and Consumer Futures, which is now part of Citizens Advice.
There is also a lot happening to ensure consumers are able to get the best possible information across the board. In 2012-13, Citizens Advice helped 2.1 million clients through its bureaux with free advice. There were nearly 1 million contacts through its consumer helpline and also 14 million hits to its website. Some 91% of consumers reported that they would use the service again. This service reports to Government twice yearly on its performance against agreed standards.
Noble Lords can therefore feel reassured that regulators indeed do a lot for consumers already. With regard to the provision of advice and information, Citizens Advice reports twice annually on its performance. There is also much being done both by regulators and government to help consumers. Therefore, the amendment proposed is an unnecessary duplication of effort. I ask noble Lords not to press their amendments and to withdraw Amendment 50K.
Baroness Hayter of Kentish Town
My Lords, I thank my noble friends Lord Knight and Lord Whitty for the questions they raised and for their support. The public service issue is really interesting. It is no secret that now that universities have realised that it will affect them, one or two are getting a little jumpy. That shows what a very good Bill we have here. There is an interesting thing between those students who would pay a fee—the word in the Bill is “consideration”—and those who would not, where the latter would not be in as good a position as regards their rights. We will come back to this when we move an amendment on higher education. It might be useful at that stage—I give a bit of notice—to tease out some of those things. There was a lot of interest in this from colleagues around the House, many of them chancellors of universities, who I think have already been in touch with the Minister. Certainly, those of us interested in consumer rights are very happy that it will cover this, but I know that some clarity will be needed.
Working backwards, I am very sorry about the comment on regulators. As someone who chaired one of the consumer panels, was vice-chair of another panel and sat on another, it was not the same as being embedded in and a member of the regulator. Partly, you do not get things until they are more or less in the public domain, by which time of course decision-making is a long way down its route. Actually, it is in getting questions asked at the beginning, and the beginning of the formulation of policy and decision, where we want to embed a real consumer voice.
Baroness Hayter of Kentish Town
I think that I have made the point that the difficulty, even with consumer panels, is that they are not included at the beginning of policy development. That is even more the case as regards external bodies such as Citizens Advice, which see something only once it has been published and are therefore always in the negative position of trying to take action afterwards. As my noble friend Lord Whitty said, the whole point is to get the voice of the consumer absolutely embedded into the way in which the regulator defines the problem, what it looks for and how it does its research.
I want to make only one other point in response to the Minister on the issue of signposting to an ombudsman. She mentioned that Robert Gordon is looking at—and I welcome the report he is preparing—the possibility of there being a single ombudsman. The Minister said that it might be premature to require signposting but it seems to me that whatever we come out with, the issue of signposting will still be key.
Baroness Jolly
I think that the noble Baroness may have misheard me. What I actually said was not that it would be premature to signpost but that it would be premature to take action in the Bill before the review was completed.
Baroness Hayter of Kentish Town
While I understand that, the only action that we want is on signposting. If anything were to be commissioned, signposting would have to take place, and whatever Robert Gordon comes out with, that requirement should still be there. Indeed, if there were to be a single ombudsman, there would have to be a new name and, no doubt, a new location and website. It would be even more important to signpost.
As I said, we will come back later to the issue of public services, in which I know there will be a lot of interest. However, I hope that the Government will look at the regulators. Even if it is not in this Bill, they could still take action with each regulator because the issue represents the other side of the Bill. It is not simply about providing consumer rights but about making sure that those rights are looked after by every regulator. I beg leave to withdraw the amendment.
Lord Whitty
“Access to data
Schedule (Access to data) has effect.”
Lord Whitty
I shall speak also to the rather more substantial Amendment 81A for which Amendment 50L is the paving amendment. For this purpose I have briefly and temporarily transformed from a humble Back-Bencher to speak on behalf of the Labour Front Bench, but it will not last.
These amendments are about access to data for consumers. It is true that under existing data protection legislation British consumers have a legal right to request access to the personal data that businesses hold about them, but the majority of consumers have no idea of that, very few of them do it and, for those who do, it takes an inordinately long time to get the information out. Which? did a survey indicating that for those who do, it can take up to 40 days.
The Government are seized of this issue because in 2011 they set up the midata project, which is a voluntary programme covering four specific sectors. They are very important sectors, but there are only four: energy, mobile phones, providers of credit cards and providers of current accounts. The aim was to give consumers better access to their personal data in portable electronic form. The midata project has so far been somewhat disappointing. After 2012, the Government took an order under the Enterprise and Regulatory Reform Act to compel businesses within those areas to release consumers’ consumption and transaction data in a machine-readable portable electronic form on request. This has not really worked, and there has been no extension beyond those sectors. Data sharing between individuals and service providers and between intermediaries and those suppliers is still clunky and limited and, particularly for vulnerable consumers, difficult and potentially hazardous.
Our amendment in the new schedule which Amendment 81A would introduce is designed to tackle these problems by, first, ensuring that access to data is clearly a key consumer right and, secondly, by making sure that the Government use the powers that, in general, they already have to ensure that consumers are able to access portable data through the midata project and the provisions of the Enterprise and Regulatory Reform Act. That includes engaging third parties—the so-called next generation intermediaries in particular—to that data with appropriate protections. That can lead to redressing the balance significantly by at least allowing for the possibility of some collective bargaining for a group of consumers.
The amendment also asks the Government to report on other sectors to which the present midata provisions should and could apply; provides for traders to have to ensure that they have the best information; ensures safe data handling, including the consent of the individuals concerned and the appropriateness and identity of those concerned; and ensures that where there is a public benefit from generalising that data on an anonymised basis, it is genuinely anonymised and that consumers know their rights about their own data.
This amendment requires the Government to use their existing powers and to report back on how those powers should be extended. It requires them to look at other services and at the interplay with the intermediaries. First-generation intermediaries are what we call, generally speaking, comparison sites. There are problems with the quality of the data in comparison sites, as recent reports have shown. It is not always clear what range of companies within the sector comparison sites cover, nor is the commercial relationship between the comparison site and the providers clear.
The authentication of comparison sites is not yet substantially in place. The former Office of Fair Trading attempted to establish a confidence code. In the energy sector, there was a point when my old organisation, Consumer Focus, was subcontracted by Ofgem to look at the effectiveness of comparison sites, but there is no overall approach to ensure that those sites are genuinely doing the intermediary job of providing a range of information that would ensure that consumers can make a sensible and understandable choice. Millions of consumers benefit from access to comparison sites, but some sites are significantly better than others. Some are more subject to possible corruption—although corruption may be too strong a word. The relationship with the people whose information they provide to consumers is on a commercial basis and excludes other providers. This is an area in which the Government should intervene, as technology allows us to move further into the use of consumer data in these areas.
My noble friends under earlier amendments referred to the issue of the public sector, which also runs major projects on consumer transactions, particularly in the NHS and social care. Access to and knowledge of that information needs to be covered by any regulation and any provision of extension of rights for consumers on the data that public services provide. That includes not only the public services in the sense of the NHS itself but those organisations commissioned by the NHS to provide public services—so when they are outsourced, data also need to be covered by the provisions. We need tough penalties for the public sector as well as for the private sector when such information is misused.
This is a wide area on which we are asking the Government to report, but an important one. An empowered consumer should be able to rely on these intermediaries to present the information to them and to ensure that their own transactions are not misused in the compilation of both the providers’ and the intermediaries’ use of data. I would hope that the Government could at least accept the principle that a report on these areas should be required and should be, in our words,
“within six months of the passing of this”,
Bill, so that we can look at what further provisions are necessary. Then we can protect the consumer while enhancing the effective use of data and access to data in a way that empowers rather than threatens consumers, particularly the more vulnerable ones. I beg to move.
Lord Knight of Weymouth
My Lords, I strongly support this amendment. There are many good reasons to want to extend access to data for consumers of both private and public services. When Tim Berners-Lee famously invented the world wide web, he as famously said, “This is for everyone”. The use of digital products and services is something on which consumers are demanding movement, given that they observe a concentration of power over the internet in five companies globally, and have an increasing concern over the privacy of their data.
To give those consumers access to their personal data, as a starting point, is a way of giving more public reassurance about how their data are being collected and stored. It is also important in respect of innovation in the delivering of services. We have seen in public service delivery terms some of the innovation around the use of personal budgets. The ability to bring together services is an aspect that the use of personal budgets has demonstrated. That in turn can be significantly enabled by the use of personal data.
The register shows that I am the chair of the Tinder Foundation. It is nothing to do with the dating app, more to do with the organisation that runs all of the UK online centres. It is the main digital inclusion delivery organisation here in the UK. I am aware of the issues around exclusion by dint of access to technology and access to age; but I am also aware of some of the extraordinary stories of how people using data and using technology are able to join services together and improve their own personal outcomes.
I am also deputy chair of the Nominet Trust, which is a trust funded by Nominet, which registers domain names, to invest in social innovation, and I see some of the extraordinary innovation that is starting to come through from, largely, the voluntary sector, but also the private sector and just occasionally the public sector. It is that innovation that I am particularly keen to see. So I am delighted to see in this new schedule a section around access to information on public services.
If, for example, I had a chronic health condition and I went to see my GP, it would be great if the GP could say, “License to me just for five minutes, so I can put them through this digital tool, your shopping data from, say, Tesco, along with some of your health data, and some of your housing data”. The GP could see my lifestyle through the temporary licensing of personal data and then be able to give a much more accurate diagnosis of what was going on, how I might make some lifestyle changes and perhaps reduce my reliance on prescription drugs because some other behavioural changes can have a better outcome than use of those drugs. Similarly, I can see how advisers working for Jobcentre Plus could join up data on a temporary basis and provide a much more personalised service for people. Also, when I look at the GOV.UK site for its explanation of midata, it gives the important reason of improving buying choices for consumers as one of the reasons why it has set up midata.
This amendment is exceptionally modest in what it asks the Government to do. It is asking the Government merely to report. It is not really asking the Government to do very much except tell us what is going on. In that respect it is highly flexible; it accepts that there may implicitly be some burdens on small and medium-sized enterprises and that the Government will need to tell us which regulated persons should provide consumer data—so it is perfectly reasonable in the way that it has been drafted. It is the natural next step on from the Data Protection Act to the Enterprise and Regulatory Reform Act of last year that we should be pushing further on this. These digital services are moving extremely quickly, and it is important that this Parliament shows the same agility that is being shown in the outside world. I strongly support these amendments.
Baroness Wilcox (Con)
I found it quite frightening listening to what the noble Lord was saying there. That sounded like the beginning of a great fire that he was putting his foot into. I go to my doctor and give him permission to find out data from me: where I shop, where I do this, where I do that. It is a simple thing to say, but where does it move next? I go to my moneylender and he says, “Well, tell me about this, give me permission to see that”. This sounds terribly frightening to me.
Baroness Oppenheim-Barnes
On the same point, I am appalled at what is being proposed for doctors. As things are, they never look at their patients any more. They screw up their eyes and look at the screen; they cannot see the current condition of their patient. On a very good World Service programme a little while ago, three people were interviewed about the medical profession. One very prominent doctor in America, who had previously been in the deepest jungles, said that doctors in America could not compete with those in the jungles because they knew their patients and their patients’ background and did not sit staring at a screen instead of at the patient.
Lord Knight of Weymouth
The noble Baronesses articulate concerns that I know are active, and they do a great job in doing so. I am not suggesting that doctors should have rights to any of that data but that it would be up to the individual patient as to whether they temporarily license that data, to assist—
Baroness Wilcox
A patient who has gone to a doctor is more than likely not feeling well and is frightened and looking for any help they can get. It is so easy to say yes and to open up that can. It is such a dangerous subject to put in as a lightweight amendment to a Bill like this.
Lord Knight of Weymouth
My Lords, I was using an example that I thought was perfectly realistic. We have seen with the furore around how care data have been handled or mishandled by the Government that the subject of health data is very sensitive, so perhaps I should have used a different example. However, personally, I am of the view that there are times when I want people who are advising me and the professionals assisting me to have rich sources of information about me and my condition, and that is a decision that I can make.
We need all to ensure that we are properly informed as consumers—and this legislation is trying to do that. To me, data are not a scary thing as long as we have proper individual rights over them. What scares me is that I cannot see what data people have about me and I cannot see how other people are using them. I may have some rights through the Data Protection Act but that does not give me any rights to see digital data. It gives me rights to see things on paper. Tesco can come and deliver in a pantechnicon all the data that it has about me, but I cannot then manipulate the data, which is in the end what I would really like—the ability to see them, manipulate them and then decide what I want. There are examples where you might want to use some of your data and license them on a temporary basis to people who then advise you so that they can better personalise their services. But that is a debate that this House should and I am sure will have.
Baroness Jolly
My Lords, Amendment 50L, proposed by the noble Baroness, Lady Hayter, and the noble Lords, Lord Whitty and Lord Stevenson, and the accompanying schedule are about consumers having wider access to the data held on them. I make it clear that the Government support the principle that the public should have access to the data that is held on them; it is in line with our open data policies and activities and with the approach we are taking to the new European data protection regulations. We embrace the principle that, when social benefits can be obtained from anonymised datasets—so-called big data—that should also be supported. That is why, alongside the midata programme, which is concerned with commercially held data, we are also exploring how the data held on individuals by government departments might be made available to those individuals in a useful way. This work is in its early stages, but it is designed to ensure that individuals have access to the information that is held about them by the public sector. It is probably worth mentioning now that the Secretary of State for Health has committed that by 2015 we should all have access to our full health records. In parts of the country where this has been trialled, it has hugely empowered individuals.
I turn now to personal data held by companies and the midata programme. There have been two developments this year that are relevant to the debate. In the personal current account sector, we secured a commitment earlier this year from the big banks to provide consumers’ transaction records—their midata—as downloadable files with a consistent format. This work is progressing well and in June we were able to announce that the technical specification of the data fields to be made available has been agreed. This is no mean achievement. The work is on track to be completed by the end of March next year. This is something that Which? and the comparison sites have been calling for, and so it is very encouraging that the large majority of current account holders in the UK will soon have easy access to their midata files.
The second development is in the energy sector where the facility to download midata files has been available for some time. The Secretary of State for Energy and Climate Change and the Minister for Consumer Affairs held a round-table meeting in June to discuss how the user experience of comparing the market could be made easier using automation. The round table involved energy suppliers, comparison sites, app developers, consumer groups, the Connected Digital Economy Catapult and Ofgem. As a result, a working group comprised of representatives of all these stakeholders has been looking at the feasibility of providing third parties with automated access to consumers’ energy data at those consumers’ request and with their explicit consent. This will avoid the rather tedious process for many of looking for their energy consumption and manually filing it in an online form in order to get an accurate comparison.
The noble Lord, Lord Whitty, raised the issue of collective switching, which is becoming very popular and is reducing energy bills for those who engage. In 2013, DECC awarded 31 successful projects a share of a £5 million competition for collective energy purchasing. I am pleased to report that the work has gone well and that a second ministerial round table at the end of the month will discuss the rollout of this project. The Government hope that the facility for consumers to compare deals quickly and with accurate energy consumption will be available this winter. Again, this is something that has the support of consumer organisations as well as the comparison sites.
The noble Lord also raised the issue of the Consumer Focus Confidence Code. In energy, Ofgem has taken over the former consumer confidence code. Other regulators such as Ofcom and the FCA also oversee comparison sites. In July, the Minister for Consumer Affairs published the results of a review of the voluntary approach to the midata programme that has been followed so far. It addressed the issue of whether the Enterprise and Regulatory Reform Act 2013 powers that became available to us were needed to speed up implementation. The conclusion of the review, in the light of the good progress I have described, was that it is not useful to proceed with legislation at the moment, but that the situation would be kept under regular review. Similarly, where it may be useful to apply the powers to other sectors, the Government are open to this where there is a strong case that doing so would deliver tangible benefits that a voluntary programme could not. The amendment encourages us to go faster and to use the legislation to force the pace. This could disrupt the voluntary programme which has already achieved a great deal. While it is a useful challenge, we do not need new laws to do this, as I hope I have demonstrated; we are doing it already.
The amendment also proposes that the midata powers should be extended to all services provided by the public sector. I have referred to work that is under way to explore how data held on individuals by government departments may be made available to those individuals in a useful way. I have also explained the reasons why services not provided by a trader to a consumer under a contract are not covered by this Bill. The amendment proposes that the Bill should require a report on the information that is provided to consumers about the services they may be commissioning themselves. A good example of where this is already happening is in the provision of care and support under the Care Act 2014. The obligations of local authorities to provide the information people need in an appropriate way are set out in statutory guidance that was published last week. This is just one example of where I believe the Government are already delivering what is being asked for in this amendment.
Finally, the amendment asks for an annual report about the impact of government policies in these areas. I have already talked about the Open Public Services agenda, and the Cabinet Office publishes an annual report on its work on this agenda, which has as an explicit objective to give people the power of choice about what services they receive and the information and insight they need to support that choice.
This year’s report was published in March on the GOV.UK website. One example given is about supporting parental choice on education: the Department for Education’s school and college performance tables provide parents with detailed performance data on primary and secondary schools and providers of 16 to 18 education. The tables received 2.8 million unique visitors in 2013. They provide contextual information, including absence rates, workforce numbers and finance and school census data. The Ofsted School Data Dashboard, which has received 800,000 unique visitors since it was launched in February 2013, provides an analysis of school performance over a three-year period, adding further insight to support parents.
In the light of what I have said, I hope that the Committee is persuaded that the Government take the provision of information to consumers of both public and private services seriously and that good progress is being made. I therefore ask that the amendment be withdrawn.
Lord Whitty
My Lords, I am grateful to the Minister for outlining the developments that have taken place in midata and related projects in recent months. Clearly, the Government have in mind the need to address some of the problems that arise from this range of data and the opportunities that they give and the dangers that they present.
The exchanges between my noble friend Lord Knight and the noble Baronesses, Lady Oppenheim-Barnes and Lady Wilcox, indicate the difficult road that we have to travel on this because there are some serious potential public benefits from the use of aggregated data and their use in individual circumstances provided the individual understands and knows that that is what is being done to their own individual information and has clearly consented to that.
In many fields this is not yet an issue but it will become one in a range of fields, as was recognised when the midata project was first being discussed. I am grateful for the information on the progress that has been made in relation to current accounts, for example. The purport of my amendment is not to tell the Government where they are to draw the line or where the need to protect the consumer should prevent potentially beneficial use of the data, or vice versa—that is, where the rights of the consumer could be overridden by the use of public data—but to assess across the board where we are on all this.
We ask for a report within six months. That may be a bit fast given that one or two other things have to happen within the next six months. However, the Government should pull all this together within a reasonable period. This is not a prescriptive amendment; it would require an overall analysis by the Government. I still think that is necessary. Some big issues are involved here and there is great potential in both the public and private sectors but there are also issues around confidence, control and vulnerability on the part of individual consumers which also need to be addressed, and I do not think that an entirely sector by sector approach will be sufficient.
I hope that the Government will consider this again, perhaps over a slightly longer timescale than is prescribed in the amendment. We will have to return to this issue at some stage, not necessarily during the passage of the Bill, but within a relatively short period of time. In the mean time, I accept that I should withdraw the amendment.
Baroness Oppenheim-Barnes
“Display of information about rights under this Part
(1) Suppliers of goods and services to which this Part applies shall be required to display at the point of sale information in plain and intelligible language and in a reasonable format which explains to consumers the relevant rights of consumers under this Part.
(2) The “point of sale” in subsection (1) means—-
(a) the trader’s premises;(b) any other premises at which the contract is agreed;(c) if the contract is agreed via the trader’s website, that website.(3) If the contract is agreed via email, the requirement in subsection (1) is for the information to be given in the email offering or (as the case may be) accepting the contract.
(4) If the contract is agreed orally but outside premises as mentioned in subsection (2), the supplier must at the point the contract is agreed give to the consumer a written notice containing the information required by subsection (1).”
Baroness Oppenheim-Barnes
My Lords, I start by apologising if I repeat things that I said at Second Reading but I regard all three of my amendments that I have tabled as a dress rehearsal for Report. I am particularly grateful to have been joined in support for these amendments by two other former chairmen of the National Consumer Council: my noble friend Lady Wilcox and the noble Lord, Lord Whitty.
My first amendment, Amendment 51, is something that I feel deeply about and is important to any sort of success in the Bill. I think of all the years that I and others have spent introducing consumer legislation and sitting on Committees—Second Reading Committees and other Bill Committees. At the beginning the of the Bill’s Committee stage in the other place, witnesses were called from all three consumer bodies that are best known and have the most experience. The stunning information that they gave was that 75% of all consumers had no idea of their rights or obligations. Therefore, every piece of past consumer legislation that I and others have been involved in has proved to be fairly worthless. We now have this important Bill, which is very welcome and comprehensive, and on which the Government have spent time, involving witnesses and great expense. We should realise that without this amendment, we might all be wasting our time.
Not only do consumers want this legislation but businesses do, too. The British Retail Consortium said that it would be only too happy to join in this. The point of sale is the point at which the consumer decides to buy the goods or pay for services. It is essential that they know what their rights and obligations are at that stage. This is possibly the most crucial of all amendments because without it the Bill could simply go through, be welcomed by all who knew about it—certainly by most noble Lords here—and be worth nothing. This amendment, I hope, is the first crucial step in righting that wrong. It probably needs more detail by the time it comes to Report, and needs to provide precisely what information is required. I was very impressed by similar amendments tabled by my noble friend Lady Neville-Rolfe regarding goods bought online, which will be covered in this way.
This is a matter for which under no circumstances would I accept anything less than approval. It is fundamental; it says what it says quite clearly. I am grateful to the National Consumer Federation for helping me to draft these amendments and for its support. I hope that other Members of the Committee will also be in support.
Lord Blencathra
My Lords, I support my noble friend in this amendment, in particular subsection (4). I am glad that my noble friend used the word “obligations” because if I had looked at this earlier I would have wanted to move an amendment calling it “Display of information about rights and obligations”, because that can have a greater impact on the consumer. I support the amendment because I concluded, in the last few years that I was a Member of Parliament in another place, that some of the worst cases coming to my constituency surgeries were people who had been stitched up by the big utility companies and the mobile phone operators. In many cases there were only oral contracts. When they had a concern, they would get on to the helpline. As innocent constituents, they kept making the mistake of thinking that if they phoned and got through to the special helpline the problem would be solved. Of course, the people on the special helpline would say, “Yes, that’s fine, we’ll take your point into consideration and it will be amended”—but still the threatening letters and the bailiff’s letters came because, very often, the people running the helpline had no power to alter the computer accounts for the company.
A written statement is absolutely essential if there is an oral contract. As the noble Lord, Lord Harris of Haringey, pointed out that we seem to go by personal example. I shall cite one example of why I think the mobile telephone companies in particular are among the worst offenders. Some years ago, I took out a contract for a mobile phone. It was clear when I had the paperwork the first time that, if I cancelled the contract within two years, I would pay a heavy penalty. I was content with that and went blithely on my way. As it transpired, exactly 23 months later, I got a telephone call, “Hello Dave, it’s your mobile phone operator here—do you realise, Dave, that you can get a better tariff from us? We’ve looked at what you pay and you can reduce the Bill by about £2 a month, and you’ll get a free telephone upgrade”. I thought that was jolly good and asked what the catch was. “Oh, no catch, Dave, that’s it”. So I agreed to it. A few months later, when I fell out with that telephone company because I did not like the service and wanted to cancel, they said, “You can’t cancel, your contract’s only three months old”. I said, “No it’s not—it’s 27 months old”. “Oh,” they said, “that telephone call you had created a new contract”.
I appreciate that all of you here are commercially savvy and knew that, but in 2009 or 2010, I did not realise that. But then I found more and more constituents with the same problem. They were being sold things over the telephone, particularly electricity contracts from one particular supplier, and they never got the follow-up paperwork. It is absolutely essentially that when any contracts are made or revised orally, the consumer gets a written statement pointing out their rights and obligations. I hope that with changed or improved wording my noble friend the Minister will be able to accept the principle of this amendment.
Lord Harris of Haringey
My Lords, I should add that this is not simply about protecting the consumer—poor Dave, or whoever else it might be. It is also about protecting the legitimate businesses that are operating properly, because it makes it more difficult for those trying to pull a fast one on Dave or anybody else, because they will not get away with it. For that reason, to protect the consumer and legitimate businesses, I hope that we get some progress on this amendment.
Baroness Wilcox
I shall make only a brief comment because I want to hear what the Minister is going to say. It would be useful to reflect upon the fact that the National Consumer Federation is the only consumer organisation in the country that is not supplied with money from anyone other than its members. It is a small organisation that was set up originally by the National Consumer Council and Which? because they wanted a grassroots response rather than simply remain in their ivory towers writing their great papers. I was the chairman, then my noble friend Lady Oppenheim-Barnes, followed by the noble Lord, Lord Whitty, who took it to greater heights. For a small group like that to have got as many people into this Room as there are at this moment says good things about our country and about our consumer representation. There is always a place for a small group which can get someone like my noble friend Lady Oppenheim-Barnes to take it forward. I am very proud that she has done so.
Baroness King of Bow
My Lords, I support Amendment 51 tabled in the names of the noble Baroness, Lady Oppenheim-Barnes, and my noble friend Lord Whitty. My Amendments 48B and 50G were spoken to last Wednesday, but they were originally grouped with Amendment 51. I know that the Committee is pushed for time, so I will not repeat in detail the arguments that we had around point of sale. Suffice it to say that if consumers do not have clear and transparent information, their consumer rights are effectively undermined. That is the crux of the matter and it is the argument which has been made again now.
This is an amendment essentially to ban smoke and mirrors and to ensure that consumers actually get their rights in practice as well as in theory. The noble Baroness, Lady Oppenheim-Barnes, said how deeply held her feelings are on this matter, and she is quite right. We have to get the basics right. To my mind, this amendment will serve to do just that. Without the basics, consumers will not have their rights safeguarded. For those reasons, we are delighted to support this amendment.
Baroness Jolly
My Lords, as I said when we discussed point of sale information for goods and services in previous sessions, the Government believe that it is really important that consumers should feel confident about exercising their rights. Last Wednesday the noble Baroness, Lady King, reminded us that Martin Lewis from moneysavingexpert.com had stressed the importance of a simple and clear version of our consumer rights when he gave evidence to the BIS Select Committee on the Bill. We agree with him, which is why I am delighted that moneysavingexpert.com is one of the consumer organisations that is working with us on the high-level summary of consumer rights that the Minister and I have mentioned on a number of occasions. This summary covers our rights when we buy goods, services or digital content, and members of the implementation group are working to ensure that it is written in plain English.
In the debates relating to previous amendments concerning the requirement to provide consumer information at the point of sale or at the point of complaint, I set out the Government’s objections to requiring every single business providing goods, services and digital content to set out a consumer’s rights every time they make a purchase. Perhaps I may briefly reiterate. These were, first, that consumers are already faced with a lot of information at the point of sale, and I suspect that most of us are not going to take in information that is not immediately relevant to our purchase decision. Secondly, it is will be particularly irritating to be faced with an oral statement or handed a piece of paper setting out our rights every time we buy a newspaper in the corner shop or arrange by phone to have the dog walked—not to mention the burden this would place on the trader. Thirdly, it could cause significant confusion where the trader’s own policies were more generous than consumers’ statutory rights or where sectoral regulation of services requires specific remedies that the trader must offer.
My noble friend the Minister mentioned the concerns of a major retailer that a requirement to set out a consumer’s basic rights would completely undermine its core message. This was that a customer who is dissatisfied for any reason could bring the product back because it wanted to do what it and the customer thought was right in the circumstances, even if that went beyond what the law would require.
In answer to a point made by the noble Baroness, Lady Oppenheim-Barnes, the British Retail Consortium has said that it would happily join in providing information at the point of sale but does not support the mandatory provision of consumer information for reasons I have given. The BRC, the Federation of Small Businesses and the British Chambers of Commerce all oppose this too.
Fourthly, it would be perplexing for consumers to have to have their attention drawn to their full rights at every point in the complaints process even in circumstances where they have said what they want and the trader has immediately agreed.
On the point made by the noble Lord, Lord Blencathra, on consumers who are sold things over the telephone and have no written follow-up, the consumer has to be given a range of pre-contractual information under the Consumer Contracts Regulations 2013, so a situation in which a consumer does not know they are entering a contract should no longer arise, with effect from 2013. For all these reasons, we do not believe that requiring this information to be given to all consumers before they purchase goods or services or, indeed, afterwards, would achieve the best outcome for consumers or for businesses.
Lord Harris of Haringey
The noble Baroness gave the horrifying image of someone’s rights having to be read to them before they could buy a newspaper. Would her objection to this provision disappear if there were a de minimis element within it so that the transaction had to be worth more than £5 or £25, for example? It would be helpful to know that. Secondly, is the argument that consumers will be confused if they are told that they have more rights rather than less the best that the Minister can deploy, because that is essentially what she said? Given that the noble Baroness, Lady Oppenheim-Barnes, suggested that she might bring this amendment back on Report, it is important that the Minister who is to reply on that occasion deploys some rather better arguments.
Baroness Jolly
I can rely on the noble Lord, Lord Harris of Haringey, to put me on the spot. The de minimis element of £5 may be worth looking at but that sort of decision is considerably above my pay grade. Noble Lords should consider how irritating it is to listen to commercial adverts. The advert itself may be absolutely fine but then all the rights are read out so quickly that you cannot take them in, or at least I cannot do so.
We have strong backing from business organisations to promote the summary of consumer rights to their members on a voluntary basis. It will be a central tool that we provide to businesses in April. It will help them comply with the new obligations they will have and explain these rights to their customers, so avoiding costly shop-floor mistakes that undermine their reputation. We do not need every single retailer in the country to be obliged to display the summary of consumer rights to achieve our objective of increasing consumer knowledge and confidence but we will be looking for a significant take-up. We consider that this approach, supported by Which?, will be far more effective, and far less burdensome, than the mandatory approach proposed by these amendments. Therefore, I ask the noble Baroness, Lady Oppenheim-Barnes, and the noble Lord, Lord Whitty, to withdraw this amendment.
Baroness Oppenheim-Barnes
I am very disappointed because the response we have had sounds like a wonderfully constructed Civil Service briefing. There is a very simple definition of merchantable quality. When I was Minister of State for Consumer Affairs, I was already very concerned about people not being aware of their rights. I therefore introduced an education pack into schools. I introduced it in every type of school. First, the children—young men and women—concerned were very interested. They did not find any difficulty in defining merchantable quality. One, who was only 10 years old, said, “My mother just bought a knife that says it was extremely sharp. It doesn’t cut anything. Is that merchantable quality or not?” That is simple to answer. I am not suggesting the kind of information provided at the point of sale needs to be complicated; it is very important that it would be drafted in a way that was comprehensible to most people, not too long and not too detailed. If this amendment was finally passed I would want to have a great deal to say about a description of merchantable quality, both from experience and, believe it or not, from school children.
Baroness Oppenheim-Barnes
“Application of this Part to regulators
(1) This section applies to regulators which are involved in protecting consumers (“consumer regulators”).
(2) It shall be the duty of consumer regulators to promote the rights of consumers under this Part.
(3) In exercising their functions, consumer regulators shall have regard to the desirability of promoting—
(a) accurate, plain and intelligible information for consumers about goods and services;(b) fair and reasonable practices in the selling of goods and services;(c) fair and reasonable pricing of goods and services;(d) the inclusion of comprehensive information on goods and services in contracts;(e) quick and fair means for consumers to make complaints and have disputes resolved. (4) Any fines levied by a consumer regulator on a trader for breaches of rights under this Part shall, following deductions by the regulator for its reasonable administration costs, be used to compensate consumers for breaches of their rights under this Part.”
Baroness Oppenheim-Barnes
This amendment is also very important. It is common knowledge that not a great deal is known about the actual defined duties of the regulators. I remember when I received the first Monopolies Commission report in my department, to the effect that the nationalised electricity industry was of positive disadvantage to consumers for all sorts of reasons. At that point we were able to start looking at privatising the industry, because one of the most cogent parts of the report was that it was not operating either in the interests of its customers or of its employees, which was true. So we then started to embark on a long series of denationalisation and privatisation of the utilities. When we did so, it was implied that the regulators would be very important, they would have great powers, and that they would exercise those powers on a regular basis, and also investigate. There has been a feeling recently that the regulators are not necessarily asking all the right questions.
Once again, the National Consumer Federation has given a number of examples which refer to the actual requirements as far as these people are concerned. It is its job to identify risks, scan the horizon and use consumer insight, creating the right incentives for the market to work well for consumers, ensuring that the data is published, and working closely with other regulators. It does not give the impression of being in touch at all at the moment. It needs to involve consumers and their representatives, including consumer bodies, to have a regular dialogue. What is most important is to ensure compliance with licence conditions and other rules through investigations and effective enforcement as well as imposing penalties for firms which, as we know, often amount to many millions. Only recently one of these regulators has, for the very first time, insisted that in the case of that particular fine, a certain amount had to be paid in refunds to consumers as a result of the firm not doing what was necessary, or what the regulators required them to do.
The very important first move that I would like to see, as part of this amendment, would allow them to go a lot further than that. We hear about the multimillions that are paid in fines and we are not sure where it all goes, although we know that it goes to the office of the regulators. But there is no reason now why my proposal should not be a requirement on regulators, without any real change of law, when a really bad result, certainly as far as consumers are concerned, has led to a fine. This is another very important amendment, because it is very basic and deals with problems that a lot of people do not comprehend today. They see these big fines—they read about them in the newspaper—but do not actually see them directly benefiting them. They will do, but it is not all that clear.
As I said, this amendment is a quick and fair move for consumers to make complaints and involve themselves in disputes, and also proposes, in subsection (4), that these,
“fines levied by a consumer regulator on a trader for breaches of rights … shall, following deductions by the regulator for its reasonable administration costs, be used to compensate consumers”,
who have been put at a disadvantage. Again, this is not asking the Government to do anything but to define more clearly the role of the regulator: what it should be and how this should be carried out. I beg to move.
Baroness Maddock (LD)
My Lords, I support my noble friend on this, partly because during the passage of the Energy Bill—the noble Lord, Lord Whitty, was there when we did this—I managed to get the Government to accept my amendment to promote more accurate information on energy bills. In reading my noble friend’s amendment here, I would like the regulators—just as in my amendment that is now law—to “uphold” rather than “promote” in subsection (2). I would also want them to be “upholding” rather than “promoting” in subsection (3)(a), with reference to energy bills. That is something that they should make sure happens. It is part of the law. I strongly support my noble friend here. It would be very good if we could get this in other areas. We have something rather better in energy bills thanks to the Government accepting an amendment last year in the then Energy Bill.
Lord Berkeley (Lab)
My Lords, very briefly, I support this amendment. Subsection (2) says:
“It shall be the duty of consumer regulators to promote the rights of consumers”.
I have been looking at the duties of Ofwat, the water regulator. It says that,
“our primary duties are to: … protect the interests of consumers, wherever appropriate by promoting competition … ensure that the companies properly carry out their functions … ensure that the companies can finance their functions”,
and,
“ensure long-term resilience”.
In the case of Thames Water, which is the biggest water utility, the regulator over the past 10 years has allowed the company to reduce its asset base to about a quarter of what it was, so it cannot now finance the tunnel that it wants to built under the Thames—the Thames tideway tunnel—without going into a kind of complex financial structure involving a separate infrastructure provider. The relationship between the infrastructure provider and Thames Water is extremely unclear. Who is liable if something goes wrong? That is also unclear, but the Government have been very nice and given them a guarantee if they run into financial trouble, because the provider is Macquarie Bank—and we would not want it to get into financial trouble, would we?
The extraordinary thing is that the regulator seems to think that this does not need any questioning or that any information should be given to the 12 million customers of Thames Water who are going to have to pay. There is a debate about how much they are going to have to pay a year, but it will be somewhere between £60 and £80 extra. This is a sewage charge, but all the people living in Oxford, Witney, Newbury or anywhere which is part of the group, even though they are not going to benefit from the Thames tideway tunnel, will have to pay. I think the regulator has been asleep on the job.
This amendment should make things better, but Ofwat already has a primary duty to protect the interests of customers, and it is clearly not doing so. Therefore, this amendment, if it is accepted by the Government, should put more pressure on it and some of the other utilities to do what they should do: to look at the needs of the customers, see whether there is an alternative and keep customers informed about what is going on. It is a good amendment and it will be interesting to hear what the Minister says in response.
Baroness Wilcox
My Lords, as we know the regulators were set up at very different times and in very different ways. There is not one thing that all the regulators sign up to. They have all been established individually. This comes up again and again, and here it is again: who guards the guards? Who regulates the regulators? Last time round, the great argument was that we must be totally independent because then and only then can we serve the people we are supposed to serve well. I understand that, and I understand regulators wanting to keep their independence, because it is very important. However, the differences between the ways in which the regulators work and live keeps coming up, so I ask the Government: who is guarding the guards?
Lord Blencathra (Con)
My Lords, I support the thrust of this amendment. As my noble friend Lady Wilcox said, the regulators were all set up at different times and in different ways. I am not sure whether it is best to have an amendment in this Bill or to look at regulations applying to all the different regulators and toughen up their charters, so to speak. Perish the thought that I should disagree with the noble Lord, Lord Berkeley, but, leaving aside the London tideway tunnel, my experience of Ofwat was that it was slightly better than many of the other regulators because while the water and sewage industry needs billions of pounds’ worth of infrastructure development, at least Ofwat keeps a tight grip on many of the companies and guards consumers’ interests slightly better than some other regulators.
Leaving water aside, in my experience the worst regulator was Ofcom, which is utterly wet and useless in regulating telephone operators. Perhaps it is, understandably, too focused on radio and the independent television sector and on selling off 4G and things like that, but I do not feel it has been very effective in regulating mobile telephone companies.
I hope the Minister will accept the principle that regulators have to do more to protect consumers’ interests, tailor-made to their current legislation and the job they are doing in their own regulatory field. This Bill may not be the best vehicle for such legislation, but I hope the Minister will accept the principle that regulators have to do more to protect consumers’ interests.
Lord Whitty
My Lords, I, too, support the thrust of this amendment. As I said on an earlier amendment, the consumer interest has often been lost or redefined in the way in which regulators operate. They have often very effectively—I accept that some are more effective than others—looked at the outcome for consumers in terms of price and particular aspects of consumer service. This amendment requires them also to look at process—as to how customers are treated and informed and how prices are set and complaints are dealt with. It would probably be better if something relatively common appeared in the individual pieces of legislation for each regulator, but we have an opportunity in a general consumer Bill to set down the principle. I would hope that the Government could accept that the principle should be set down in something like the words here. The noble Baroness is probably pushing the boat a little far with subsection (4) in that no doubt somebody at the Treasury has already had a look at it and will be advising the Minister appropriately from that point of view. So while I support the principle, in reality the Minister will not be able to accept that—but I hope that she can accept the rest of it.
Baroness Hayter of Kentish Town
I was about to thank the noble Baroness, Lady Oppenheim-Barnes, for this amendment but, having seen all the troops she has on her side, it might be better for Labour to say, “We think this is dreadful”. It might make it easier for the Minister to accept it. However, I shall resist that temptation because I think that it is a brilliant amendment, and we are happy to support it. Earlier today we clearly failed to persuade the Government to embed the consumer voice right in the top echelons of regulators—that has been the tone of the debate—but this is another way to achieve the same end. The examples given by the noble Baroness, Lady Maddock, as well as those from the noble Lords, Lord Blencathra and Lord Whitty, about different regulators show how often, without that consumer voice, they fail to protect the consumer. The question from the noble Baroness, Lady Wilcox, about who regulates the regulators is very interesting because the answer ought to be, “the consumers”. The more that it is open to them, the better it will be.
The amendment is excellent. It would put in place the possibility of redress without consumers necessarily having to take their individual case to an ombudsman. It would ensure a proper complaints procedure for mistakes and poor service, falling short of a breach of rights, that nevertheless lead to substantial losses to the consumers. As has been said, it is extraordinary that regulators, which are supposedly in existence because a particular market has failed consumers, still often fail to put consumers first. They have allowed users to be muddled by confusing prices, ripped off by poor deals and ignored when making complaints. Consumers are often made to feel like the least important part of the food chain. As my noble friend Lord Berkeley says, it is often without their long-term interests being placed at the centre of regulators’ thoughts.
I look forward with interest to how the Minister is going to accept this amendment—because I am sure that she will.
Baroness Jolly
This has been a very interesting debate, interwoven with sorry tales about regulators. Of course, the noble Lord, Lord Blencathra, as an MP, regularly heard these tales from constituents coming into his constituency surgery. One of the regulator’s primary objectives is to take account of consumer interests. They must report annually on how they fulfil their functions, and they have done much good work for consumers. Water companies have agreed to return £1 billion to consumers after negotiating with Ofwat and the Consumer Council for Water. All but two water companies agreed in their plans to keep prices at inflation levels. Ofcom has capped second class mail prices, while Ofgem has made npower pay £55 million to consumers due to incorrect billing. However, it is also important to know that Citizens Advice does a lot of advice in this area.
I refer noble Lords back to my comments on Amendment 105A regarding the good work that Citizens Advice is doing. In addition to those comments, I shall expand on the benefits that that body provides to consumers. It promotes consumer rights and clear, intelligible information for consumers. Sixteen million people were helped through the Citizens Advice digital service, while 84% of clients said that their understanding of their rights had increased and 86% of clients reported a positive impact of advice on their lives. All this is a key port of call for consumers in the regulated sectors. I also mention that relevant consumer bodies play a vital role in this regard, especially in helping consumers on matters around redress, complaints and securing the best deals in issues such as utilities. The effect of this amendment would be to place extra requirements on regulators and increase bureaucracy when there is a drive to cut the costs of regulation and increase efficiency. The Government believe that in many cases it would also replicate protections that already exist and take away the discretion of regulators to decide what is appropriate in the circumstances.
On regulators levying fines for breach of any part of this amendment, the enhanced consumer measures set out in Clause 79 and Schedule 7 to the Bill would achieve a similar aim. In summary, there is a limited benefit in adding more duties on the regulators. Noble Lords can be reassured that much is being done for consumers by regulators, but of course we salute the wonderful work being done in the world of consumer rights as championed by my noble friend, and we will be happy to meet her to discuss the amendment. However, I ask her to withdraw it.
Baroness Oppenheim-Barnes
I thank my noble friend for that reply. She will not be surprised to hear that I am, shall we say, disappointed, but obviously I am not put off. I do not want to be accused of currying favour with the Opposition because that is not my primary objective, but nevertheless from time to time they do seem to have a closer grasp, although not as close as those of us who have been MPs and have held constituency surgeries where these things come up over and over again. There is a distinct division in your Lordships’ House between those of us who have such experience and those who do not. I think that this is one of the occasions when it shows. For the moment, I reluctantly withdraw the amendment.
Baroness Oppenheim-Barnes
“Obligations on suppliers of utilities
(1) This section applies to suppliers of electricity, gas, water, sewage systems, telephony (including mobile telephony), internet connections and analogous utilities (“utilities suppliers”) and consumers of those utilities.
(2) Utilities suppliers shall provide consumers with the options of receiving bills in paper or electronic format.
(3) Utilities suppliers may not levy a charge on consumers who opt to receive bills in paper format, and may not reduce prices for consumers who opt to receive bills electronically.
(4) Utilities suppliers shall provide consumers with the option of paying bills by cheque.
(5) Utilities suppliers may not levy a charge on consumers who opt to pay by cheque, and may not reduce prices for consumers who opt to pay by means other than a cheque.
(6) In this section “cheque” has the meaning given in the Bills of Exchange Act 1882.”
Baroness Oppenheim-Barnes
I know that this is also very popular with people throughout the country. Again, it deals with obligations on the suppliers of utilities and the way in which the regulators would actually set about ensuring that all the provisions set out in the proposed new clause are met. They define what the duties should be in relation to these utilities. Once again, I am grateful for the support I have been given by supporters of the Keep Me Posted campaign around the country in drafting the amendment.
The use of digital information is not just a matter for old crones who cannot actually operate the technology. Although I am one of them, I nevertheless realise that there are many who can but who have the same problems. I am hoping that all the various obligations that this amendment would put on the suppliers of utilities, being a little more prescriptive than the previous one, are acceptable. That applies absolutely more than ever to subsection (4) of the proposed new clause:
“Utilities suppliers shall provide consumers with the option of paying bills by cheque”,
as well as not levying a charge. I went into that part of the new clause in some depth recently when I looked up some old bills. I could see that in 2005, the postage cost 45 pence. It is now 52 pence, but the actual amount that you have to pay can be anything upwards from £6, although it is less than that for some of them. The postal costs of sending out those letters are 22p, not 45p or 52p. My noble friend Lady Neville-Rolfe said in reply to my noble friend Lord Hodgson’s good amendment on this point that it is not for the Government to tell companies how they should organise their costs. I entirely agree; it is for the regulators to do that. It is not a thing for Governments but the regulators.
Many people feel dismay when they receive these extra charges because some 7 million people do not have access to broadband. They are being fined for something they have no hold over whatever. Everyone objects to being charged for something that has been their right for many years. Suddenly they have to pay something extra, and it affects in particular the elderly and those who rely on carers. It is not only those people who are affected, although they are obviously the most important; it affects many people who do not have the computer skills they need because they say they cannot take anything in until they have typed it from the computer on to a piece of paper. That applies through all levels of education and age. I am not going to name names, but one of the most senior physicians in the country expressed exactly that view and said to me: “Can I write to someone about this? Who should I tell?”. I said: “You’ve told me”, and so have many other people.
It is a cruel policy to fine people in this way. It is a form of fine for being unable to do something digitally, perhaps due to other conditions. The subsections in the amendment deal particularly with each problem. It does not involve huge ramifications or costs for the Government. It does not even have marginally big costs for the industry; so, once again, I consider the amendment to be crucial. I am sorry to have to bring all of them out like this, one after another in a non-yielding way, which is not my normal way. I therefore hope that noble Lords will support me.
Lord Clarke of Hampstead (Lab)
Noble Lords will know that I am not a regular attender on the Bill but the amendment, once I had read it, sparked off all sorts of thoughts, particularly for those who I meet in branches of the Post Office and desperately want to use normal transaction methods. The terms of the amendment will be welcomed by countless customers who have not been, and perhaps do not want to be, involved in electronic transactions. It is a fact of life that many find the modern method of conducting exchanges with suppliers, especially of utilities, by electronic means a convenient way to settle their accounts or bills. It is also a fact that many do not want to avail themselves of this advantage of modern technology. They are quite happy writing out their cheques, sending off payment for their bills and getting a nice receipt back through the post. I must declare an interest as a former postman, so the idea that people might start using the post gives me a lot of satisfaction.
A particular point of the amendment which I am delighted to see is the safeguard against the form of financial punishment that comes in if people do not want to take up the advantages of getting 10 direct debits, paying three weeks in advance and all that nonsense. People who do not want to do it should not be made to pay for those people who do. If people are getting the advantage of these financial rebates or discounts, they are being paid for by somebody, and they are being paid for by the other people who are not involved in reductions in tariffs.
I came in tonight to say how pleased I am to see this amendment because it is what a lot of people want: straightforward exchange, paying bills, getting receipts and tucking them away in a drawer. If you ever have to tidy up people’s affairs after they have departed this earth, you will find that some people keep their bills for many years.
The debate on the previous amendment gives me the opportunity to talk about a particular regulator. The noble Baroness, Lady Oppenheim-Barnes, referred to the cost of postage, and I am delighted that she did because the regulator has not done much of a job on the question of payment to Royal Mail by its competitors. Are talks going on which will make it a bit fairer? The competitors of Royal Mail are dumping their post into the system and under the universal service obligation, Royal Mail has to deliver it, which is the expensive part. Are any discussions going on that will bring this downstream access, as it is called, under some control so that the competitors’ payments to Royal Mail bear some relation to the true cost? At the moment, to maintain the universal service obligation Royal Mail has to subsidise its competitors because there is a requirement they are all owed a margin of profit. The Government should be looking at that margin of profit with the regulator.
I am delighted with this amendment. I just hope that the people of this nation will be able to say that they can sleep in their bed at night not having to worry about www dot coms. My noble friend Lord Harris made me feel much more competent when he explained the difficulty he had dealing with a particular whatever they call these websites. That is me. It shows that I am not all that dim. I am fairly dim, but I am in good company with my noble friend Lord Harris.
Baroness Maddock
My Lords, not for the first time, I am supporting my noble friend Lady Oppenheim-Barnes on the thrust of this amendment. I declare an interest. As somebody approaching 70, I pay my bills by cheque and I do no money transactions, if I can possibly help it, online. That is how I like to do it. My mother died in the summer aged 95. In the end, I had to keep track of what was happening with her bills. It would have been very difficult if she and I had both being trying to do things online. It is not that I cannot use a computer, but I do not choose to do finance on one. It would have been extremely difficult. When I was sorting out her estate, I noticed that you are always paying in advance so they always have your money when you have not had the utility, whichever it is: gas, electricity or something. That is one of the reasons why I do not want to do it. I will pay for it when I have had it, thank you.
The issues that we are discussing here in one way amount to age discrimination because people like me, people who are older than me and people who are caring for people older than me find this extremely difficult. It is quite a serious thing. It may be that it will not matter to my grandchildren. We will all have died out and the utilities will not have to worry about these things, but for the moment it is quite a serious issue for people who are older, and particularly for their carers.
Lord Hodgson of Astley Abbotts
My Lords, I rise briefly to support my noble friend’s amendment. We had a preliminary canter over this ground when the Committee sat last week. I said then that I thought Amendment 53 was far more felicitously phrased than my amendment, and, indeed, it has so proved. The case is powerfully made. However, I take slight issue with the noble Baroness, Lady Maddock: this is not about age discrimination but about a consumer’s right to choose the way they receive bills and the way they wish to pay them. They should not face additional charges or discrimination in that sense. It does not matter whether they are 21, 81 or 101, that is the way it should be because that is the right the consumer should have. I support my noble friend’s amendment. I would like her to have thought of a way of ensuring that the banks do not charge for providing statements, which they are doing now increasingly, as statements are often important as a means of identification. Her amendment is much better than mine and I hope that the Government will be more sympathetic towards it than they were towards mine last week.
Lord Berkeley
My Lords, I, too, support this amendment. As the noble Lord just said, it does not apply just to old people like me but to many people who do not have access to the internet, or they or their carers are unable to use it, as other noble Lords have said.
I should point out one thing one has to watch if one is doing things electronically—that is, how do you file things? It is fine getting a bill on your mobile phone, but what do you do with it subsequently? How do you keep a record of it? There are many ways of doing it but it is not just a question of paying it directly through bank transfer, you have to keep a record and feel comfortable that it is secure. Security is becoming more and more difficult so these regulated monopolies, as many of them are, need to be aware of the importance of people getting paper bills if that is what they want.
When you read a meter you can put the reading on a postcard, if you want, or you can fill it in online. One of these days, I think that meters will be read down the phone line or the electricity line with no human input. They might get it right. If they do not, heaven help us. A friend bought a house from me and six months later he got a bill for £10,000 for water because there had been a leak. That had probably been happening since the war, about 50 years before, and it had soaked away into London gravel. You can imagine how you end up with a bill like that electronically but it was all quite difficult.
The other issue is paying by cheque. I tried to pay my EDF bill by direct debit this weekend and failed completely. My bill did not say how you could do direct debit, although there was lots of detailed stuff on the back of the paper bill. So I thought I would phone them up. I hung on for half an hour for a nice, friendly voice but got nothing at all, so in the end I went on the website. I found that EDF has a new website and you could do it on the web. But how many other people will think, “What do you do?”. You get a second reminder every two months. You put a cheque in the post or whatever you do but you cannot even talk to them down the phone. A friend of mine in the Isles of Scilly has four BT lines because they have four houses that they let out in the summer. This weekend, she told me she spent a total of six hours on the phone to BT. They have not had two of the lines working for a month. They tried dealing with this electronically and down the phone. Today they spoke to five different people at BT and still do not know if it is working. Before the utilities start charging people, they should get the service right. This is a very important amendment for both the paper/electronic debate and paying things by cheque. I strongly support it.
Baroness Wilcox
My Lords, the one thing we must not do is sound naïve. For all we would agree with this, and all the reasons we have heard, we should not penalise the energy companies for doing something that cuts the price for a lot of people by using a mechanism that makes things work better. If we need to be able to help a group of people who cannot yet benefit from that mechanism, then we are asking the utilities to subsidise them. I just want to be sure that we realise we are saying that. We should not be saying that we need to penalise utilities for doing what they are doing. Really, we are looking for there to be access or some other way to do this. Many hard-pressed households welcome the opportunity to save money this way, et cetera. I just put that point in.
Lord Berkeley
Is the noble Baroness straying into the territory of Animal Farm: four legs good, two legs better—or whichever way it is? Is not everybody equal?
Baroness Wilcox
Does the noble Lord mean equal opportunity? No, we are not born equal, that is for sure. Some people are tall, some fat and some short. We are not born equal but we should have equality of opportunity. That is what the noble Lord is arguing for.
Lord Harris of Haringey
My Lords, I think we are straying into unnecessary territory here—very philosophical points which are no doubt extremely interesting. I will not rehearse at length the argument I made when this Committee last discussed this matter. However, there is an obligation on government as far as this is concerned because government do not enable us to have some simple system of verifying who we are. When we need to verify our identity, we are required to turn up with a paper copy, sent to us via the post, of a utility bill. All my utilities are trying to move over to sending everything electronically but an electronic copy does not suffice for those purposes. Until such time as we have a system of identify verification, people will rely on receiving paper utility bills.
I have one other point why paper utility bills are important. We are encouraged by government to switch suppliers. This is part of the philosophy of improving competition. You switch suppliers. You move to another supplier. You have a new website to go into and a new password. All these passwords, I am sure, we do our best to remember and not write down somewhere. Of course, you can no longer access the website of your previous supplier because you are no longer their customer. If you need to check back on whether the prices are indeed comparable, that data are no longer available unless you, the customer, spend money on printing them out and keep a paper copy. Surely that is the wrong way round.
Lord Stoneham of Droxford (LD)
My Lords, I am slightly reluctant to speak against the experience of the noble Baroness, Lady Oppenheim-Barnes, and indeed that of my noble friend Lady Maddock, but, going against the grain of the debate, I think that I ought to do so. We have to say that the digital economy has provided huge savings and efficiencies in payment, booking and ticket systems, and the consumer should be allowed to benefit from that. We have to encourage these changes and simply to say that we are not going to do so is basically saying that the future is the past. I do not think we can ignore them.
I take the example of easyJet, an independent company away from the utilities. Are we saying that the equivalent of easyJet, which started competing against British Airways, would not have been allowed to discount its prices and reward customers who book online? I just do not think that that is the way forward. By all means say that we do not want extra charges put on people who are paying by cheque during the transition, but do not say, as it does in this amendment, that we should not offer a discount to those who are actually giving up their money more quickly by paying with a card or by direct debit. They are allowing the banks to release the money four days ahead, so why should they not get the benefit of that? It is a cheaper way of paying. It is wrong to say that this form of progress should be held up.
The other thing I would say is that I find it slightly patronising of older people. I chair a housing association for retired people. I was staggered when we did a survey for our annual conference, where the average age was the late 70s. We asked people whether they used IT to do a certain number of things. Some 80% said that they used the internet as a phone because they were using Skype, which is cheaper. Some 80% said that they bought tickets and booked their holidays on the internet because it is cheaper. What really shocked me as someone who worked in the newspaper industry and who thought that newspapers would always have a future because retired people would always want to read a newspaper was that 80% of them get their news from the internet. We cannot ignore these changes. What we should be concentrating on here is what the noble Lord, Lord Hodgson, was talking about in the debate last week. We want regular paper records to be sent to customers who are using the internet process as well as to people who pay by cheque. But please do not let us say that we are going to go back to the past by letting the banks hold on to our money for four days when we can pay directly and get a cheaper price by doing so. Retired people can get that benefit as well. We must not end that progress.
Lord Blencathra
My Lords, I strongly support almost all of this amendment except that I agree with the noble Lord, Lord Stoneham of Droxford, that we should not penalise those who pay by direct debit. I also agree that there should be incentives for people to pay by direct debit if they wish to do so. But the danger is that we are heading towards it becoming compulsory for all. Whether it is old people, young people or old gits like me, we have the right to get things on paper and not be cajoled, threatened and blackmailed by the utility companies and others into making all our transactions by direct debit.
Lord Stoneham of Droxford
Can I interrupt the noble Lord? Fifty years ago my father used to go to the retailers and pay every single bill in cash. Are we saying that progress should not have allowed him to pay by cheque?
Lord Blencathra
Of course not. The point I am making is that we should have the freedom to choose. I am one of those who for contrary and bloody-minded reasons goes to the Post Office in the Central Lobby to collect £145-worth of postal orders to pay my TV licence. I do that because I resent the fact that the Post Office is losing that business. It costs me an extra £10 or £12, but over the years I have despaired as all Governments have accidentally or deliberately driven business away from the Post Office and have moved more and more things on to direct debit. What would we have said 30 years ago if a Government had said, “We’re going to drive all those old age pensioners into getting their money in their bank accounts and they won’t be able to get it in cash”? We would have been appalled, but we are rapidly heading that way. All Governments are enthusiastically persuading pensioners to do that.
Lord Hodgson of Astley Abbotts
If my noble friend looks at his BT bill more closely, he will see on the right-hand side of the page in small print, “If you wish to avoid this charge you can do so by getting a direct debit or by calling this number”. It is a direct push to try to stop people getting paper bills and paying by cheque.
Lord Blencathra
I entirely agree with my noble friend. To be fair to my noble friend Lord Stoneham of Droxford, that is going further than providing an incentive. There is a threat involved there, and that is not right and not fair.
I am not careless with money, but I then checked other bills, which I had not bothered to do properly before to find other mistakes. When I get a paper bill, I see the level of my gas bill and I go around switching off the heating for a while. If it is being taken directly from your bank account and you have no bill, just some annual statement, you do not see what gas, electricity and utilities are costing. There is a saving to consumers if they can see their bill in paper format.
A further point: I believed when I was a boy and growing up that the decent thing to do was to pay one’s bills within 30 days. Now it seems to be down to about 21 days. However, the demands that one should pay everything by direct debit or only get 10 days to pay a telephone bill are obscene. It is wrong and we should have legislation that forces the utility companies not to charge extra for cheques and not to give an unfair disadvantage to cheque-payers. Finally, not that it concerns this House, there are votes for whichever party defends consumer interests on this issue. There are votes to be lost unless we let the dying minority of consumers pay by cheque.
Baroness Hayter of Kentish Town
I think we will just call the noble Lord, Lord Stoneham, a brave man. I would not take that lot on.
The noble Lord, Lord Hodgson, is right. We had a brief canter around this area last week on his amendments. I just want to thank the noble Baroness, Lady Oppenheim-Barnes, for focusing the Government’s attention on this. As I think the noble Lord, Lord Hodgson, said, this is a Consumer Rights Bill and this is a very basic right: to be able to have a choice about whether to have your bills on paper and to pay by cheque—without paying for the privilege.
We need to keep at the centre of our debates those customers who struggle to get paper bills, and easily accessible and understandable information. The figure of 7 million has been mentioned of people who do not have internet access. We have a lot of people who find that even reading is quite difficult, let alone trying to do it on a small handheld telephone. But as we mentioned last week, there are other people as well, not just those who do not have access to printers, but who, for example, need a domestic bill to prove their identity, as my noble friend Lord Harris of Haringey has said. But there are also carers and cared-for people, as the noble Baroness, Lady Maddock, has highlighted. There are also divorcing couples, which is the time when you have to start splitting bills; the self-employed who need to make claims; people who work away or are in hospital for a long time, who may not have access to their normal internet and can quickly lose track of what is happening.
I will take two minutes to tell you the very sad story of a friend of mine who was virtually battered to death. She was in hospital for a very long period after this. But the only way she was able to help the police find the culprit was when she woke up in hospital. The usual thing happened, her post came in. Her bills came in and she was able to see that a credit card had been used. The police could then go and see where that money had come from, and find a photograph of the culprit. I am glad to say that the attempted murderer is now well locked away. But there are all sorts of reasons why people feel secure when they are able to see that sort of data on paper.
That may be an extreme example, but people want to check on what bills have come; they want to check on who paid them; flat sharers want to be able to divvy them up; and people who have got any problems, particularly with paying bills, as we mentioned last time, where they have to work out which bill to pay when in order to make sure that nothing is cut off. They literally do this with paper. I sometimes think that those who run the utilities just do not understand how people live. Maybe they should spend a day with my noble friend Lord Clarke of Hampstead sitting in a post office and hearing about how people do things; they would learn a little more.
Finally, some companies take particular advantage of their poorer customers. On the wider issue of price, we know that energy suppliers target their lowest price at the big users and actually penalise their smaller customers for not using very much, and then go on to make it even worse by charging those very customers if they want their bills on paper.
It is great that some people can do all of this electronically, but they are likely to be younger, and more savvy. I wonder whether the utilities really have to make life difficult for the rest of us—who want paper bills and the use of cheques—to encourage others to take up the electronic option. People who choose to do it electronically do not do it to save £6; they do it because that fits in with their way of life. I doubt very much they need a £6 bribe, if you like, to go electronically. That may have been the case earlier on, but now it is not the reason. Rather it is an excuse for the utilities to get a bit of money out of people who want to pay by cheque rather than, any longer, acting as an incentive. I hope that the Minister hears the strength of feeling. She may recall when we had the debate in the Chamber that this was the feeling across the House, and there will be a lot of support. It would be advisable for the Government to take the initiative and do this rather than have the sort of defeats that we have seen tonight in the Chamber.
Baroness Oppenheim-Barnes
My Lords, I would like to make a point in the limited time remaining, which is that the companies that continue to give paper bills and continue to give the sort of services we have asked for are not losing anything, because of all the extra money they have earned from the vast majority of people who are paying online. So there is no financial loss to any of these companies, and particularly to BT.
Baroness Neville-Rolfe
My Lords, first, I thank my noble friend Lady Oppenheim-Barnes for her amendment, for her previous two amendments and for providing us with a useful and constructive discussion. She was not here for what I was going to describe as a gallop, but my noble friend Lord Hodgson rightly described as a canter, around this issue in our previous session. I shall not, in the interests of time, repeat everything I said on that occasion. For example, we had a good discussion about the point that the noble Lord, Lord Harris, made about ID. While I have the floor, I also pay tribute to everything that my noble friend Lady Oppenheim-Barnes has done for the consumer over many years. Things have improved as a result of things done recently, from domestic and EU sources. This Bill, if we can get it through, will make further improvements.
I was also glad to hear of my noble friend Lady Maddock’s experience, which I shall come back to in a minute. I am well aware of the Keep Me Posted campaign, which the noble Lord, Lord Harris, mentioned, and have indeed talked to some of the campaigners about their plans. It is good for the postal angle to have been articulated by the noble Lord, Lord Clarke of Hampstead, whom I thank. I also understand that this amendment is talking about the regulated areas, not everything in general; that point is well made.
We are returning to an issue that has been debated in the House on a number of occasions. It is very much a House of Lords issue and I therefore thank everyone for their thoughtful contributions. The amendment is addressed to utility suppliers but my noble friend Lord Hodgson mentioned banking, which is not in the amendment but, no doubt, similar considerations apply. All these sectors have regulators to ensure that consumers are treated fairly, in accordance with licensing rules and wider consumer protection law, including those intended to protect the more vulnerable in our society—a point that I am going to come back to.
Customers may take queries or complaints to the relevant regulator and receive some form of assurance on their position—for example, should a business seem to be charging excessively for supplying a paper statement or for processing a cheque payment. I believe that we have already established a consensus that some individuals value retaining the option of paper transactions. We are all clear that the terms of the contract must be set out at the outset, at the time of agreeing the contract, and that they must be clear and transparent. In particular, consumers need to be clear and agree if there is to be a change in the way in which they receive and pay their bills. In this way, the customer knows how bills and statements are to be provided and on what terms. As I mentioned in our previous debate, paper bills and cheque payments have never been free. The fee for processing them was always borne by the consumer but was tied up in the administrative costs of the utility, and the charge was spread across the customer base. Thankfully, today these charges are more transparent and linked to costs.
This amendment would be of particular disadvantage to online customers, for whom statements are readily available and can be printed if necessary, especially by the young but increasingly by our digitally aware “silver surfers”, because many people are embracing the internet at every age in a very surprising way. I welcome the opportunity to save money that paperless bills offer, and so do many people. Paying by direct debit, which was condemned by my noble friend Lord Blencathra, can also enable people—some of them vulnerable and elderly—to budget more effectively than being faced with quarterly or lump-sum bills. There can be some value there. For them, the proposed statutory requirement set out in these amendments adds little but the possibility of extra costs.
It is undoubtedly more expensive for a regulated business to print out and post bills to its customers than it is to deliver them electronically online. It is not for the Government to dictate that certain costs cannot be accounted for with the consequent burden instead being potentially passed on to all customers. It is surely reasonable to incentivise customers to use the cheapest processing mechanism by sharing savings with them. This amendment would outlaw that and almost certainly drive up the charges to online customers.
Baroness Maddock
When my mother died, the utilities were all very good. They have special sections to deal with this. I had thought that things would be terrible as I do not usually find them terribly helpful but actually most of them deal with these situations quite well. However, for me, having the paper copies was important as I could see what was going on. However, I cannot fault the utilities as they were very good.
Baroness Neville-Rolfe
It is always good to have that sort of good experience on the public record. I thank the noble Baroness for that intervention.
The noble Lord, Lord Clarke of Hampstead, asked whether there were any talks going on with the regulator to ensure that payments to Royal Mail are fairer. I will need to write a letter to the noble Lord on what is largely a Royal Mail competition issue, if I may. I was also pleased that the noble Lord, Lord Blencathra, shared his experiences, knowing that he comes from the north of England, even though I do not think that I agreed with him on every aspect. The noble Lords, Lord Hodgson and Lord Blencathra, talked about meters. The Government are working with industry on smart meters which will enable readings without a visit to a house and therefore make the cost of energy use more visible. That will be better for consumers.
In conclusion, this is a difficult area, as we do not want society to incur the costs of printing and sending off bills to everyone if that is not needed. The trouble is that if there is no cost to paper bills, people will just opt for paper anyway even if, like me, they can manage online. I think that that is a risk. I know that is not a popular thing to say but I hope that noble Lords will reflect on that aspect of things. There is already a range of billing, payment and statement options available on the market. We agree that it is important that the appropriate protections on access to paper bills are kept in place, and are doing that through our licensing regimes and specific regulatory and sector interventions and by driving quality, choice, fair prices and value for money for consumers through good competition and good consumer law.
We will of course reflect on what has been said in this lengthy and important debate, and see if anything can be done. However, in the light of what I have said, I ask my noble friend to withdraw her amendment.
Baroness Oppenheim-Barnes
I thank my noble friend for that very careful and detailed response, which was extremely interesting. She paid a lot of attention to what has been said. I am afraid that she will not change my mind but on this occasion I beg leave to withdraw the amendment.
Baroness Neville-Rolfe
“(2) References in this Part to treating a contract as at an end are to be read in accordance with section 19(13).”
House of Lords
Introduction: Lord Lennie
Introduction: Baroness Pinnock
Schools: Academies
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Jones of Whitchurch
To ask Her Majesty’s Government what steps they are taking to improve the financial regulation of academy schools.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, academies are subject to considerably more rigorous financial regulation than local authority maintained schools. For example, they have to publish annual, independently audited accounts; local authority maintained schools do not. They are subject to the rigorous oversight of the Education Funding Agency and anyone in a governing relationship with an academy, or an organisation closely linked to it, can provide services to a local authority maintained school at a profit; they cannot to an academy. However, we are continually looking at ways to refresh the financial regulation of academies.
Baroness Jones of Whitchurch (Lab)
I thank the Minister for his reply, but is he concerned about the increasing number of stories of academy chiefs being paid inflated salaries, heads employing family members and friends to provide school services, lavish expenditure on hotels and travel and, recently, a head paying £26,000 for furniture for her office? This is not their money, it is taxpayers’ money, but it seems that a small minority are using the academy funding system as a cash cow. Does the Minister accept that the Government’s centralised oversight of these schools makes it more difficult to supervise academy school expenditure effectively? Does he now accept that that was a mistake?
Lord Nash
The noble Baroness picks out some isolated examples. I point out to her, as I have before, that 36 of the 55 pre-warning notices that this Government have issued to academy sponsors have been to sponsors approved under the previous Government. This Government have considerably tightened up financial oversight and improved things such as control of grants. Of course, these figures are but nothing compared with the £10 billion overspend the National Audit Office tells us that the previous Government were heading for under the Building Schools for the Future programme.
Baroness Perry of Southwark (Con)
Will my noble friend tell us whether there is any information about the innovations and improvements that heads have been able to make since so many of them were given the freedom to manage their own budgets?
Lord Nash
My noble friend is quite right that there have been many examples of this, including more efficient purchasing, longer school days, greater freedom over the curriculum, the ability to employ subject-specific teachers in primary schools, the ability to find the money to engage more effectively with the professional communities and business, and the generation of income more effectively from their own facilities.
Lord Singh of Wimbledon (CB)
My Lords, while rigorous financial regulation is important, I am alarmed to hear of a high-achieving school in a deprived area in west London where children are made to endure classroom sizes of up to 80 without adequate toilet facilities. The DfE will not release money for new premises until the financial management is completely up to scratch. Does the Minister agree that it is wrong to use children in this way?
Lord Nash
I do not recognise the example to which the noble Lord refers. I would be grateful if he would write to me as regards his specific example. The pressure on pupil places has been considerably relieved by the amount of money that this Government have spent on them, but I would be particularly interested to hear about this case.
The Earl of Listowel (CB)
My Lords, is the Minister concerned to hear that a head teacher said at a recent seminar that she was having to pay rent arrears and pay for food in her impoverished community to enable children to get to school, to be able to concentrate and to do well? She was embarrassed to do this but she felt that she had to.
Baroness Garden of Frognal (LD)
Will the Minister say, where instances of apparent fraud have been notified in accordance with the guidelines, what action the Government have taken?
Lord Nash
Where we receive an instance of fraud we immediately investigate. The EFA has investigated 35 cases of fraud in academies in two years. That compares with 191 reported in maintained schools over one year. If we feel that there are causes for concern we will inform the police or, in more minor cases, introduce a financial notice to improve.
Baroness McIntosh of Hudnall (Lab)
My Lords, can the Minister tell the House how many of the cases of fraud that have been alleged were uncovered by investigation by his department or by Ofsted, and how many by whistleblowers?
Lord Lexden (Con)
Is my noble friend confident that the Government’s financial controls are sufficiently extensive and rigorous?
Lord Foulkes of Cumnock (Lab)
My Lords, since we have time, could the Minister now try to answer the question posed by my noble friend Baroness Jones?
Green Climate Fund
The Lord Bishop of St Albans
To ask Her Majesty’s Government what plans they have to pledge funding to the Green Climate Fund.
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con)
My Lords, the UK recognises the importance of a successful initial resource mobilisation process, and is keen for the fund to become operational as soon as possible. We aim to pledge at the initial Green Climate Fund pledging meeting arranged for 19 and 20 November, ahead of the United Nations climate change negotiations at the start of December. We are a strong supporter of the Green Climate Fund, because we see it as a key new vehicle for helping developing countries adapt to climate change and follow low-carbon development paths.
The Lord Bishop of St Albans
I thank the Minister for her reply, and I am grateful for all that the Government are doing in this important area. So far, 10 countries, I think, have pledged contributions to the Green Climate Fund, but despite his warm words recently in New York the Prime Minister was not among those offering to make a pledge. Can we have some information about how much Her Majesty’s Government intend to pledge, and can we know what else we shall put on the table, if we are to have credibility at the discussions in December in Lima?
Baroness Verma
My Lords, the UK is committed to scaling up climate finance, and we have already committed £3.87 billion from our International Climate Fund between 2011 and 2016. The first £1.76 billion of this has already been committed from the International Climate Fund, and is expected to achieve the following lifetime results. However, the right reverend Prelate is right that we need to encourage all member states to come up to the mark and ensure that they are all contributing. This is a very important area. The UK is absolutely committed, and the Prime Minister has made that very clear. He will announce his pledge in November.
Lord Teverson (LD)
My Lords, regarding recent international climate negotiations, does my noble friend agree with me that we should congratulate the DECC team and the Secretary of State on the climate energy deal done at the European Council over the past couple of days? Does she agree that that illustrates that, by leadership from Britain, by persuasive argument and by building up a team of other member states around us, we can succeed in European negotiations and win for Britain?
Baroness Verma
My noble friend is absolutely right, and I could not have put it better than he has.
Lord Clark of Windermere (Lab)
My Lords, the Minister carefully explained to the House the expenditure by HMG on international climate initiatives, but can she be quite specific? Is she saying that in November the Prime Minister will actually make a pledge to the Green Climate Fund?
Baroness Verma
My Lords, in case I was not clear in my initial Answer, I repeat that the Prime Minister, like leaders from a number of other countries, will pledge our support in November.
Lord Tebbit (Con)
My Lords, will my noble friend say whether this money, if it is produced and paid out, will be from some magic source of which we are not yet aware, or will it be simply more borrowing to add to the deficit and to our debt?
Baroness Verma
My Lords, with other countries, we pledged to ensure that £100 billion will be made available to tackle global climate change issues. Our contribution to that thus far is £3.87 billion.
Baroness Worthington (Lab)
My Lords, on Friday the IPCC will publish the synthesis report for its fifth assessment report into climate change. It is likely to say, yet again, that there is now incontrovertible proof that climate change is a serious issue and we all must take notice of that. Does the Minister accept that Friday might be a good opportunity to point that out to some of the Back-Benchers in her party?
Baroness Verma
The noble Baroness is right. The fifth assessment report has concluded that, and many around your Lordships’ House recognise that. It is not just about Back-Benchers on my side; it is about ensuring that we deliver an informed debate, and perhaps thus far that debate has not really taken place.
Lord Lawson of Blaby (Con)
My Lords, I echo my noble friend Lord Teverson in welcoming the agreement reached within Europe the other day because it was clearly non-binding, as the noted energy expert Nick Butler has pointed out in an excellent article in today’s Financial Times. It is non-binding in two ways: it applies to the European Union and not to any of the member states, where decisions are in fact taken; and it is explicitly open to review in the light of the forthcoming global conference on these matters.
Baroness Verma
My noble friend is absolutely right: that it is not a binding target. However, in the UK we have not been under binding targets before but have managed to ensure that our uptake of renewables has increased. We have almost doubled our renewable energy sources since coming into government in 2010. It does mean that we have an agreement now from 28 members, all agreeing that the targets, being non-binding, enable each member state to be free and flexible in how it reaches those targets.
Viscount Ridley (Con)
My Lords, does my noble friend the Minister agree that the fifth assessment report of the Intergovernmental Panel on Climate Change has confirmed, in the same words, that there has been a “hiatus” in global warming for at least the past 15 years? Will she give us the opinion of her scientific advisers as to when that hiatus is likely to end?
Baroness Verma
My Lords, my noble friend raises a couple of issues that we would dispute in a longer debate. What we do recognise is that a change in weather patterns is happening across the globe and that climate change is occurring; it may have slowed down but that is a good thing, and it could well be that some of the measures we are taking today have helped that to occur. If we are to respond seriously to climate change and changing weather patterns, we need to be able to put in place things that mitigate and adapt to those different patterns.
Baroness Farrington of Ribbleton (Lab)
My Lords, would the Minister care to confirm my understanding that, on greenhouse gases, this agreement is binding?
Baroness Verma
My Lords, the UK Government asked for a 40% carbon emissions ambition to be reached. That is something the Prime Minister put forward earlier this year. I am glad to say that all the European countries have agreed to that 40% greenhouse emissions target.
Lord Tomlinson (Lab)
May I ask the Minister to return to the question asked by the noble Lord, Lord Tebbit? It is a very pertinent question. Is the money that is going to be pledged in November already in the Budget, or is it to be an increase in the borrowing that the Government will have to undertake, at a time when they have just hit a record for the amount of borrowing?
Baroness Verma
My Lords, we are clear that we need a Green Climate Fund. We will use a number of financial instruments to be able to achieve that.
UN Security Council
(9 years, 6 months ago)
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Lord West of Spithead
To ask Her Majesty’s Government what benefits being a permanent member of the United Nations Security Council brings to the people of the United Kingdom.
The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)
My Lords, as a permanent member of the United Nations Security Council, the United Kingdom is in a privileged position to play an active role in maintaining international peace and security. We use this position to work hard towards constructive solutions to international crises, to promote British values and to confront threats to UK security. This gives us a positive impact on stability overseas, which directly affects the security and prosperity of the people of the UK.
Lord West of Spithead (Lab)
My Lords, I thank the Minister for that reply. Clearly membership is of use and value to our nation. In that case, and in the context of the national security strategy, have we looked in detail at what capabilities and attributes we need as a permanent member, bearing in mind that many countries feel they ought to be there? Does the Minister feel that the 14% cut in our defence budget since 2010 and the cut to our diplomatic capability enable us to continue in that position? Having mentioned the military, I am sure all of us want to express our admiration for the bravery and sense of duty of our men and women who have just finished 13 and a half years in Afghanistan.
Baroness Anelay of St Johns
My Lords, I gladly add my words to that sentiment for our serving personnel now and in the past and, indeed, for the United Nations peacekeepers who come from around the world to carry out such difficult tasks. With regard to matters of defence spending and the calculation of how a contribution may be made, in looking at our participation in United Nations matters we take into account overall plans with regard to security at home, in NATO and overseas more broadly. That is part of the work that is done. On the second limb of his question regarding defence spending, we are committed to allocating 2% of GDP to defence and that will continue at least until the general election. After that, of course, there is another spending review.
Baroness Falkner of Margravine (LD)
My Lords, does my noble friend agree that the privileged status that permanent membership brings also carries a responsibility to have a leadership role among other nations and organisations? In the light of that, have Her Majesty’s Government carried out an assessment of what might happen to Britain’s privileged status if it were to withdraw from the European Union?
Baroness Anelay of St Johns
My Lords, it is clear that at the formation of the United Nations, after the problems with the League of Nations, we were one of the major five states and therefore part of the permanent five members of the United Nations Security Council. We remain there and our position is strong. I do not see any future in discussing our removal. Indeed, the discussion in the United Nations area is about enlarging the Security Council. There is no threat to our membership that I can foresee now or in the future.
Lord Hannay of Chiswick (CB)
My Lords, will the Minister, in the same sense in which she has just replied, confirm that there is no possibility that Britain could lose its place as a permanent member of the Security Council unless it developed suicidal tendencies? The charter makes it perfectly clear that you would have to change the wording to remove one member, and that could be done only if all five permanent members then ratified it. It is, therefore, up to us. As far as the qualifications for permanent membership are concerned, it might be useful to look at the report of the High-level Panel on Threats, Challenges and Change, which set out a long list of criteria which it believed any new permanent member ought to be able to fulfil before being accepted.
Baroness Anelay of St Johns
I entirely agree with the noble Lord, Lord Hannay, who has great experience of these matters not only in the diplomatic field but because of his role in the All-Party Parliamentary Group on the United Nations. I was very glad last week to be invited to stand alongside the United Nations Association to celebrate its 69th birthday. He is right with regard to membership, and our position there is secure.
Baroness Morgan of Ely (Lab)
My Lords, the costs of UN membership are charged proportionately according to the size of a country’s population and national income. Will the Government make an equally strong song and dance about UN membership if fees go up, as they have done with the EU? Will we see members of the Minister’s party advocate withdrawal from the UN if they do?
Baroness Anelay of St Johns
My Lords, our position on the United Nations is something of which we are proud. We are proud that it works for peace and we are proud that we are part of the multicultural approach to resolving the world’s crises and the humanitarian efforts. We are going to stay there.
Lord Howell of Guildford (Con)
Does my noble friend agree that if we are looking for benefits for the British people from international institutions we might invest more time and effort in developing our links with the Commonwealth, which contains 2.3 billion people who use English as their working language and most of the big growth markets of the future?
Baroness Anelay of St Johns
I entirely agree with my noble friend about the importance of the Commonwealth. The main objectives of the Foreign Office are always to look at policy through the prism of security and prosperity. The Commonwealth is a crucial aspect of that.
Troubled Families Programme
Lord Horam
To ask Her Majesty’s Government what progress is being made with the Troubled Families programme.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con)
My Lords, the Troubled Families programme is performing very well and strongly. By June this year, more than 116,000 of the 120,000 families we pledged to turn around had been identified. One hundred and ten thousand of these were being worked with, and almost 53,000 have already been turned around. Updated figures will be released shortly, showing that the programme remains firmly on track.
Lord Horam (Con)
My Lords, this is an important programme because it affects the most disadvantaged families in the country. Does my noble friend think that the co-ordination between the Department for Work and Pensions and his own department which has been criticised in the past is now good? I see from his figures that the programme has been expanded since it started. What are the financial implications of that?
Lord Ahmad of Wimbledon
My noble friend raises two important points. Co-ordination was a challenge, but, increasingly, we are working well across the board, both centrally and locally, in the delivery of what is an important programme. More recently, we announced joint working with the Department of Health in identifying certain issues pertinent to troubled families. My noble friend referred also to the expansion of the programme. The programme is indeed being expanded further to include up to 400,000 more families, meaning help for even more people.
Lord McKenzie of Luton (Lab)
My Lords, I hope we all agree that it is important that the Government provide effective and hands-on support to families with multiple and complex needs. But can the Government clarify whether a family once “turned around”—in their parlance—by a local authority can subsequently re-enter the Troubled Families programme? If so, how many have and what does that say about the sustainability of outcomes which the Government are claiming?
Lord Ahmad of Wimbledon
The noble Lord raises an important point. This is about ensuring that the issues which lead to families being defined as troubled—I am sure that many noble Lords are aware of the criteria—are intervened on for the long term and turned around. The noble Lord asked specifically about re-entering the programme. The issue is not about the families concerned re-entering the programme but ensuring that the mentor and the local officials who are appointed continue to work with them. As the noble Lord rightly points out, our intention is not just to take them out of the programme on a temporary basis but to ensure long-term sustainability in education, work and good health.
Baroness Benjamin (LD)
My Lords, every day before we went to school, my beloved mother used to say, “Education is your passport to life. You go to school and learn, learn, learn”. Sadly, not many parents, especially those with troubled families, motivate their children in this way, even though research has shown that reading with your child for just 10 minutes a day can have an enormous effect on their education. What are the Government doing to encourage parents in troubled families to get their children not just to attend school but to be ready to learn? How is the pupil premium helping families in this regard?
Lord Ahmad of Wimbledon
My noble friend refers to what she did before she went to school. Often, when I returned from school, I would turn on the television, albeit briefly, and I would see her teaching me a few things, and I am sure that she will continue to do so in the years ahead. Of course, the Troubled Families programme is targeted specifically at the importance of education and ensuring not just attendance at school but development and achievement there. That is why the Troubled Families programme is so important. It is about a person going in and ensuring that they deal with all facets of what is challenging a particular family.
The Lord Bishop of Rochester
My Lords, tomorrow morning the Prison Reform Trust will publish the latest edition of its well regarded Bromley Briefings Prison Factfile. Among other things that will show the continuing correlation between exclusion from school, being brought up in care and offending behaviour. In the light of this and of other responses already given, can the Minister give an assurance that the Troubled Families programme is being well co-ordinated with the Ministry of Justice’s young offenders policy?
Lord Ahmad of Wimbledon
I can give the right reverend Prelate that assurance. Indeed, in a previous incarnation when I was the Whip for the justice department, I saw the importance of many rehabilitation programmes directly through visits programmes. He raises an important part of the mix that defines troubled families. As he is well aware, one of the key elements is youth crime and targeting youth crime and anti-social behaviour. Again, what we are seeing, for the first time I believe, is not just departments working together, but people at a local level working well together to ensure that all people involved, whether in youth crime, those involved in not attending school, as my noble friend said, or those who are not in employment, get sustainable solutions for the long term.
The Earl of Listowel (CB)
My Lords, I pay tribute to Louise Casey, who has provided admirable leadership in this area and, previously, in removing rough sleepers from the streets of London and elsewhere. I declare my interest in the register in property. Is the Minister concerned about the unfit housing available to many of our poorest families—overcrowded, often damp, neglected, and without play areas for children? Can he say what he is doing with his colleagues to ensure that pregnant mothers and mothers with very young children have decent homes so that they can feel comfortable to rear their children, making strong bonds of affection with them and avoiding this route into troubled families, with their children developing poorly and their relationship with their children deteriorating over time?
Lord Ahmad of Wimbledon
First, I join the noble Earl in his tributes to Louise Casey. She has undertaken a great initiative on the programme referred to. She is also, as the noble Earl is aware, dealing with the very challenging issues that we currently face in Rotherham and we wish her well in the inquiry there. I am sure that is the sentiment of all in your Lordships’ House. On the issue of housing, of course the Government appreciate the importance of good, sustainable housing. Therefore, as many noble Lords will know, we have embarked on a programme of housebuilding that is helping those who are most challenged in the rental sector. We are encouraging buy to rent and we are also encouraging more people to enter the housing market. The Government have a raft of different housing initiatives because we believe, as the noble Earl rightly points out, that a good home and a good home for a family at the beginning is the keystone, pivotal point and foundation to ensure that a child and, indeed, the whole family progresses.
Baroness Corston (Lab)
My Lords, quite a proportion of troubled families are headed by women who are in contact with, or have been in contact with, the criminal justice system. Is it not vital that the Government continue to support the more than 50 women’s community centres in England and Wales which help such women turn their lives around and make them parents of whom their children are proud? Will the noble Lord speak to his colleagues in the Home Office and the Ministry of Justice to make sure that the Transforming Rehabilitation programme does not leave these women’s centres behind? That is what I am most concerned will happen.
Lord Ahmad of Wimbledon
The noble Baroness raises a very important point. Indeed, in raising that issue she has both great experience and has done an incredible amount of work in the area of women’s rehabilitation, particularly women offenders, and I pay tribute to that. She has raised an important point about the need to work together and to ensure that the women’s groups work at a local level. On a slightly different matter, before coming to the House, I met a women’s group dealing with domestic violence and identifying those issues. I talked about extending the programme to 400,000. One of the defining criteria now will be looking at domestic violence to ensure that those who are impacted are assessed and, most importantly, helped and brought back so they can be proud of their own contribution and the contributions of their families to society as a whole.
Lord Cormack (Con)
Is there not a chance that we would have fewer troubled families if there was a greater emphasis on citizenship education in our schools?
Lord Ahmad of Wimbledon
As ever, my noble friend raises an important and pertinent point. Of course, I agree totally, but citizenship alone cannot turn everything around. Unfortunately, we have identified families up and down the country who need such intervention in education, employment, health. Together with that, they will want to serve as proud citizens, and citizenship classes are important in that.
Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014
Baroness Neville-Rolfe
That the draft regulations laid before the House on 7 July be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 23 October.
Legal Services Act 2007 (Approved Regulator) (No. 2) Order 2014
Lord Ashton of Hyde
That the draft orders laid before the House on 13 June and 7 July be approved.
Relevant documents: 4th and 6th Reports from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 23 October.
Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 2014
(9 years, 6 months ago)
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Lord Wallace of Tankerness
That the draft order laid before the House on 7 July be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments. Considered in Grand Committee on 23 October.
Criminal Justice and Courts Bill
(9 years, 6 months ago)
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17:14 - Division on Amendment 146 - Ayes: 247 / Noes: 181 - Amendment 146 agreed.
17:55 - Division on Amendment 157 - Ayes: 228 / Noes: 195 - Amendment 157 agreed.
18:45 - Division on Amendment 164 - Ayes: 219 / Noes: 186 - Amendment 164 agreed.
Lord Pannick
Lord Pannick (CB)
My Lords, the amendment and some of the other amendments in this group are in my name, that of the noble and learned Lord, Lord Woolf, and those of the noble Lords, Lord Carlile of Berriew and Lord Beecham. Under this group of amendments, your Lordships turn to Part 4, with its provisions relating to judicial review. On Second Reading and in Committee, noble Lords from across the House expressed concern that the provisions in Part 4 would damage judicial review for no good reason. It is very disappointing that, since Committee in July, the Government have not come forward with any amendments of their own to address those concerns. I would be very surprised to be told that the Minister made that decision.
I invite your Lordships to bear two principles in mind when considering all of the Part 4 amendments. First, judicial review is a vital means by which central and local government and other public bodies can be held to account to ensure the legality of their actions before independent judges in public. Secondly, when proposals for amendment of judicial review are brought forward by Ministers—who are, after all, the main defendants in such litigation—the proposals require the most careful scrutiny by the House.
Clause 70 would prevent a judicial review application proceeding to a full hearing and any remedy—I emphasise, any remedy—at the full hearing if the defendant shows that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. I have three main objections to the clause.
First, it ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the Government or other public bodies. If Ministers have applied the wrong rule, or they decided a matter without giving a person a fair hearing, the court will say so and it will give a declaration, even if, on the particular facts, the error made no difference. This surely serves the public interest because the risk of a public hearing before independent judges encourages high standards of administration, and once the court has given its judgment, Ministers and civil servants know that they must change their conduct for the future. That is precisely what they do. Clause 70 would undermine these valuable purposes of judicial review.
My second concern is that Clause 70 ignores the fact that even if the defect did make no difference on the facts of the individual’s case, the individual may have a personal reason to seek a declaration that there was unlawful conduct. Last year Lord Reed emphasised for the Supreme Court in the Osborn case that the law requires public bodies to adopt a fair procedure to ensure not only that the right conclusion is reached on the merits of the case but also that the subject of such a decision is not left with a sense of injustice.
My third and final concern about Clause 70 is that, far from speeding up judicial review procedures, it would require the court at the preliminary stage to conduct a detailed review of what would have happened if the defendant had acted differently. That would be time consuming, expensive and an extremely difficult exercise for the judge. It would promote satellite litigation.
Clause 70 would have very damaging effects—nor is it necessary. Judges have ample powers, which they use, to dismiss hopeless or abusive cases. To those of your Lordships who think that there is too much judicial review and that it takes too long, I say that Clause 70 is a blunt instrument to use in such a sensitive context. It would impose an absolute duty on the court. It would prevent the judge from considering whether, in the particular circumstances of the individual case, there is good reason to allow the claim to proceed or to grant a remedy such as a declaration.
Amendment 146, which I commend to the House, would maintain a judicial discretion to consider the circumstances of the individual case. That is surely appropriate in this context. Amendment 146 is to be read together with Amendments 147, 149, 151, 152 and 154, each of which substitutes judicial discretion for the judicial straitjacket which is proposed by Clause 70.
I have spoken briefly in moving this amendment because there is a great deal of business for the House to get through today on Part 4. I hope that that will not lead your Lordships to doubt the importance of this issue. I beg to move.
Lord Beecham (Lab)
My Lords, the last four years have seen the construction of major roadblocks on access to justice. Some 650,000 claimants a year, and their dependants, can no longer benefit from civil legal aid or advice, resulting in the collapse of law centres, extreme pressure on advice agencies and the expense and delays caused by litigants in person unable to receive legal advice in the preparation or presentation of their case. As we heard just last week, the family courts are often now clogged with litigants in person. The imposition of charges for employment tribunal claims have led to an 80% reduction in applications. Large cuts in fees for criminal legal aid threaten to reduce the chances of a fair trial.
However, as the noble Lord, Lord Pannick, has made clear, Part 4 of the Bill proposes even more insidious changes which would narrow the scope of judicial discretion in cases in which the lawfulness of decisions made by the Government themselves, or by public agencies, is challenged through the process of judicial review. As the Equality and Diversity Forum reminds us in its briefing, the Master of the Rolls, Lord Dyson, has asserted that,
“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.
The Bill seeks deliberately to make it more difficult and potentially more expensive for citizens, either as individuals or whose interests may be represented by a charity, to seek a ruling from the courts as to whether decisions which might have far-reaching effects were properly made. I remind your Lordships that they already have first to obtain the leave of the court to bring such a case, and very often matters can be and are resolved at that stage.
Lord Horam (Con)
My Lords, the noble Lord, Lord Pannick, said in his introduction to this group of amendments that he could see no good reason why the Government have brought in these changes. However, he will recall that these changes in this Bill, and in the Infrastructure Bill, were first mentioned by the Prime Minister in his speech to the CBI in 2013. That was the genesis of this group. The noble Lord is nodding, so I think I am right.
The reason for that is that the Government are concerned, as the Minister has said on a number of occasions, about the fact that we have fallen behind as a nation on infrastructure. I am not making a party point; it happened under the Labour Government and the coalition Government as well, which means that, frankly, we have too few trains to deal with commuters, too many jams on the roads, too few houses, too few schools in the right place, et cetera. Now is the perfect time to give a kick-start to infrastructure. This is why Christine Lagarde. the chief executive of the International Monetary Fund, is pleading with Governments around the world to give more attention to infrastructure spending in their economies. Larry Summers, the ex-US Treasury head has said that at the moment infrastructure spending on housing, trains, or whatever is virtually a free lunch because interest rates are so low.
This is the situation that we face and which the Government are addressing. Therefore, they brought forward the Infrastructure Bill, which we are considering in another part of the House, and these clauses to this Bill. The reason is that judicial review has and is causing delay to many projects up and down the country. I will not go into the details that were advanced before the Recess. My noble friend has outlined some of the examples and I will not weary the House with them again. The examples of delay are obvious. It is also inhibiting the decision-making in government bodies. James Morris, the Member of Parliament for Halesowen and Rowley Regis, who before becoming a Member of Parliament was the chief executive of Localis, the local authority think tank, made the point that judicial review has now entered the bloodstream of decision-making in local authorities and other government bodies to the extent that when a decision is made they have to know whether it will be judicially reviewed and have to hire a barrister to find out the implications of all that. That is slowing down the decision-making in local authorities when we are urging them simultaneously to get a move on with lots of projects up and down the country. Indeed, I think that the Chancellor of the Exchequer is in the north of England at the moment urging local authorities to do more there.
Judicial review is also undoubtedly abused. My noble and learned friend Lord Mackay of Clashfern made the point in our earlier debates that it is very often used as a blocking device. It is meant to be about the process but very often the people who use judicial review are not concerned with the process; they are using it merely as a means to stop a particular development.
Lastly, judicial review is costly. There have been arguments about exactly how much it has increased in quantum over the past few years, and if you take out the immigration cases I can see that there has been an increase, but it is certainly not that much. None the less, as was made plain once again at Question Time today from the opposition Benches, the deficit has proven difficult to control and we are spending far more money than we are raising from taxation. This is an area where public expenditure has increased, and it has not received the cuts and restraint that other areas in this field have.
The professional interests here—the lawyers and so forth—have objected to the Government’s measures. There can be no objection to their objections; I fully understand where they are coming from, and it is very reasonable that the Government’s argument should be tested fully as to why they are using this particular technique to try to improve infrastructure in this country. The professional interests have used a number of arguments. The first is that there is no reason for this measure, but I think we have now demonstrated that there is clearly a need for further help with infrastructure and to clear away some of the roadblocks from it.
It is understandable that they would be concerned about human rights and the rule of law. We are discussing a clause that would make no difference, or would be highly unlikely to do so, to any end result from a judicial review. It is very difficult to argue that there is a significant change or a significant diminution to human rights if the end product of any particular judicial review would make no difference to the reality of the situation.
Even if that were the case, as my noble friend Lord Marks said at an earlier stage, we should trust the judges. If, let us say, the quantum of judicial review were 100 and it came down as a result of this Bill to 80, I would trust the judges to make the appropriate judgments about what was important and what was not—which cases merited discussion and which did not. That is their role; they are clearly very experienced at it and they have a good reputation, and I see no reason why that should not carry on.
The noble Lord, Lord Pannick, said again today that the measures would not work and would actually slow things down. The Minister gave a detailed rebuttal of that at an earlier stage before the recess—he set out various points on 28 July at col. 1462 of Hansard—and I will not go into that again. However, the truth is rather different. I would make a general point here: no Government of any shape or kind can always predict exactly what the consequences of any measures are. All those who have been Ministers know that you take a suite of measures and apply them, and some will work while some will not and some will work better than others. That is the nature of government; you do not always know what will work. Therefore, for the noble Lord to say that these measures will not work is stretching credibility. It is not a sustainable argument to say in advance what will work and what will not.
I also think, although obviously I am not a lawyer, that it is very unlikely that the judges will make things work in such way that they are inefficient. We know that there is a long trail of meritless cases and that about only 20% of cases get through to the final stage so there is a lot of unmerited work there, and surely that can be conducted more efficiently. It seems to me, looking at it as an economist, not as a lawyer, that there is a pressing need to ensure that this process does not, as many people are saying, inhibit decision-making in the public body. It does not, it seems to me, have an implication of a serious kind for human rights or the rule of law. As the Prime Minister said in his speech to the CBI, when the conditions are so right, it is necessary that we get a move on with infrastructure building in a significant way as soon as possible. It has coalition support. The noble Lord, Lord Beecham, made a plea to the Liberal Democrats; but I point out to him that at the other end of the Palace the Bill has the support of the Liberal Democrats. It is a coalition Bill, not just a Conservative Bill, and the coalition has supported it thoroughly.
We should look at this extremely carefully and consider whether this relatively small adjustment to judicial review—which is valued, and will continue—is not the right thing to do in the present circumstances and for the future of our country. It is in the public, and also the national, interest.
Lord Woolf (CB)
I am grateful to the noble Lord. I had prepared a speech of some length, but I realise, as did the noble Lord, Lord Pannick, that it is important to confine the argument at this stage of the Bill as far as possible. I detain your Lordships only because the Bill is extremely important so far as Part 4 is concerned. In deference to the eloquent speech we have just heard, I want to make a few submissions that are important for the context of why noble and learned Lords—who perhaps do not have interests of their own in raising this matter, which the noble Lord, Lord Horam, hinted at—are very concerned about the Bill.
The reason is that judicial review is the final resort available to the citizen to protect himself against unlawful action. It is a residual remedy and is not available in cases where a specific remedy is given, for example by statute. The only course it is then proper to take is the statutory route that has been laid down by Parliament. Having been a counsel for about five years who frequently was involved in the sort of planning and development matters to which the noble Lord referred, I can say that in most, although not all, of the areas we are concerned with there is specific legislation with specific provisions that explain the circumstances in which proceedings can be challenged before the court. The nature of those circumstances is carefully laid down and is now well known. I do not dispute that that may well need to be looked at again and taken through a critical examination.
However, I emphasise that what the noble Lord, Lord Pannick, was objecting to, and what I object to, is this limitation being placed on judicial review, which is part of the explanation of why in this country we have not needed an entrenched constitution that defines the responsibilities of the Executive and the judiciary and why in the United States they attach so much importance to the separation of powers, which is not part of our law.
We are dealing here with the residual remedy of citizens to deal with their fear of unlawful action by the Executive; that is what we are dealing with in most cases of judicial review. That being so, I suggest that the discretion of the judge to examine the position of the Government, the position of other public bodies and the position of the citizen, and then in accordance with the facts of each individual case decide whether it is appropriate to give relief and what relief should be given, is extremely important.
The amendments that bear my name, following that of the noble Lord, Lord Pannick, are designed not to tackle what is proposed root and branch, but to tackle those parts which say that a judge “must” do something as opposed to “may”. We do so not because we think that judges will be offended if they are told that they “must” do something. We do so because it is critical, if judges are going to get the right answer and do their best to get a just result, that they have the discretion to tailor their response to the facts of a particular case. However carefully we legislate, it is dangerous to go down the line of telling the judges what they have got to do. Everybody accepts that the independence of our judiciary is important. I emphasise the importance of that independence not because it is some right of the judiciary; it is important because the citizens know that a matter in issue, particularly in these important areas, will be considered by a judge who is independent. If we protest that we do not want the judiciary’s discretion cut away, we do so for that reason.
I will say no more because the other matters will, I know, be canvassed by others. However, I hope that I have made it clear why I think that this is a worrying piece of legislation, why I think that Part 4 needs to be carefully considered, and why I share the regret of the noble Lord, Lord Pannick, that although an array of legal talent spoke at Second Reading and explained their worries, it has not been felt right to consult them and try to find better ways of doing this, as has happened in many other parts of the Bill.
Judicial review deals with the public’s rights. In those circumstances, I suggest that if we are not going to fall into the trap indentified by Lord Hailsham in his Dimbleby lecture of 1976 of having an elective dictatorship in this country, we have to safeguard judicial review.
Lord Marks of Henley-on-Thames (LD)
I cannot support Part 4 of the Bill. I hope that the House will forgive me if I, too, make some general observations on the whole of Part 4, not limiting myself to Clause 70, to avoid taking up too much time later. As the noble Lord, Lord Pannick, says, there is much work to be done.
At Second Reading, the Minister assured the House that this package of proposals amounted to no more than “proportionate and common-sense reform” of judicial review. My noble friend Lord Horam called it a “small adjustment”. I regret that I see Part 4 as a serious infringement of the right of the citizen to challenge unlawful action by the Executive before the courts and thus, frankly, as an assault on the rule of law. This was the point made so eloquently and forcefully by the noble and learned Lord, Lord Woolf.
This part of the Bill aims to choke off challenges to unlawful action by the Executive. I fear that, if enacted, it will achieve precisely that. The degree to which it is proposed that judicial discretion be curtailed by these proposals is consonant only with a determination that judges should be limited so far as is possible in the exercise of their power to overrule unlawful government action. As the noble Lord, Lord Pannick, pointed out, the effect of Clause 70 would be to stifle any challenge right at the outset of permission stage, where the Executive may have acted unlawfully but where it appears highly likely that that unlawful action has not made any difference to the outcome for the applicant. Whatever superficial attraction there is for such a rule as between the parties to a particular application, the net effect on the public interest, in what are public law cases, would be that unlawful action by the Executive would go unchecked and unreversed.
Clauses 71 and 72 taken together would provide a code for ensuring that any person of means who is minded to support a challenge to an executive decision is to be obliged to provide information, again at the permission stage, about all his current resources and all his likely resources—full financial disclosure, in other words. The court is then to be told that it must consider making an order for costs against any such person based on that information. Many applications for judicial review are funded by public-spirited supporters seeking to have unlawful action by the Executive corrected. Frequently, such supporters have no financial stake in the litigation at all. No one can pretend that the provisions of these two clauses are not calculated to deter public-spirited individuals from lending financial support to judicial review applications.
Clause 73 on interveners provides for a draconian scheme of punishing those who intervene in costs. The general rule—subject to departure in only exceptional circumstances—would be that an intervener would be unable to recover costs from the losing party, win or lose, no matter how meritorious the intervention, how much the intervention is found by the judge to have assisted the court, and how far the intervener brought their broad experience in the field and new and telling arguments to the hearing of the application. Furthermore, and perhaps even more iniquitously, the court would have to order the intervener to pay all the costs of the other parties in the proceedings as occasioned by the intervention. Again, the court would be able to depart from this rule only in exceptional circumstances.
No one can fail to see that that code will deter interventions. It will make it very difficult for those many well known and thoroughly respected charities, and other campaigning organisations with relevant experience and a deep knowledge of their fields, to mount legitimate challenges to unlawful executive action. It will make it very difficult for those organisations to raise money in those circumstances.
At Second Reading, the Minister said in relation to interveners that the Government were,
“persuaded that there may be a case for some modification of the provisions”.—[Official Report, 30/6/14; col. 1542.]
and that he looked forward to “considering possible amendments”. As has been said, a number of amendments have been proposed by noble Lords, but none has been accepted for consideration by my noble friend and his colleagues in his department. The proposed rules on cost-capping in Clauses 74 and 75 again would severely restrict the ability of the courts to protect meritorious applicants in public interest cases from adverse orders for costs. Again, the effect would be to chill and to stifle such applications by the financial threat posed to those of limited means by the risk of an adverse costs order. The fact that a cost-capping order would be available only after permission was granted would only add to the overall effect.
I turn very briefly to my amendments to Clause 70, which are in my name and those of my noble friends Lord Carlile of Berriew and Lord Macdonald of River Glaven. All the amendments in my name should have my noble friend Lord Macdonald’s name to them as well, but for some reason his is not in the Marshalled List. He apologises that he is unable to be here at this stage but he will be here later. I should make clear at the outset that I support the amendments in the names of the noble Lords, Lord Pannick and Lord Beecham, the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, which import a general judicial discretion in this area. However, our amendments are designed to ensure that, even where unlawful executive action may have made no difference to the particular applicant before the court or tribunal, the court or tribunal will still be entitled to consider the lawfulness or otherwise of the executive action concerned, to rule on it and to hold the Executive to account accordingly if the public interest so requires it. That principle should apply at the permission stage as well as at the stage of final hearing. We should not forget that these are public law applications designed to protect the citizen and to hold the Government to account. We should be astute, in this House in particular, to ensure that where government acts unlawfully the courts are not debarred or otherwise prevented from saying so.
Baroness Campbell of Surbiton (CB)
My Lords, I, too, wish to add my support to these amendments for the reasons so clearly explained by my noble friend Lord Pannick and others. As noble Lords are aware, I have contributed to the debate on this part of the Bill throughout its passage through the House. Let me explain why. I have supported the amendments because I want to show how these government reforms will affect disadvantaged citizens, especially the 10 million disabled people in this country who seek legal justice. Sometimes I think that we forget about the disadvantaged, the poor and the disabled who have no means or recourse to abuse. They simply want access to justice.
I know—I really know—what disabled people experience on a daily basis. I do not need to remind the House that when public authorities get it wrong, my God, they get it wrong and it has devastating effects on the individual. It hits disabled people particularly hard because they are the most in need of taking public authorities to court to get justice for their services—the services that they rely on to survive and live. They are absolutely, disproportionately dependent on public services and judicial review. As I said before, I have never known judicial review to be abused by disabled people or the charities that support them.
Claude 70 will effectively allow public authorities to ignore due process. That cuts across the public sector equality duty, which is so crucial in holding public authorities to account. Coupled with the cuts to legal aid, Clause 70 will effectively deny access to justice to those who most need it—not the big companies or multinationals, but just the people who need it, those at the margins of society. That is not the kind of justice we want in our democracy for vulnerable citizens. This clause has absolutely no place on the statute book in these terms.
Lord Carlile of Berriew (LD)
My Lords, my name is added to a number of these amendments, and I will not repeat everything that has already been said, most especially by the noble Lord, Lord Pannick, the noble and learned Lord, Lord Woolf, and my noble friend Lord Marks. However, I cannot let this debate pass without making three comments about the unusual speech made by my noble friend Lord Horam.
First, his speech was inaccurate. He blamed judicial review for delays in infrastructure development and for making infrastructure development more expensive. Had my noble friend taken the trouble to read the successful judicial reviews of infrastructure development, he would have found that in 95% of the cases—and I may be underestimating that—the judicial review was granted because of the incompetence and sloppiness of officialdom ranging from government departments through to local authorities and other statutory organisations. The answer to that is for those public authorities to prepare their cases properly, to make their planning applications in due form and for Ministers, in appropriate cases, to call in major planning issues so that they can be decided more quickly.
Secondly, my noble friend’s speech was unusually statist. In his career he has, in a very distinguished way, exercised his principles repeatedly, having been a member of three political parties. As I understand it, he left his first party—the old Labour Party—because he regarded it as too statist, yet nothing could sound more statist than what he said just a few minutes ago. I am personally in favour of HS2, fracking and the Severn barrage.
Lord Carlile of Berriew
My thanks to the noble Lord, Lord Thomas. However, I would be the last person to deny those who are opposed to those sometimes controversial schemes the opportunity to question them, if appropriate, by way of judicial review. Taking the contrary view is statism of the most extraordinary kind.
Thirdly, my noble friend’s speech was unjust because it seemed to remove the notion that there should be issues of principle about which people can take dramatic action. He has done it himself twice by changing parties as he moved from old Labour towards the party which he now represents with distinction in your Lordships’ House. However, that is the sort of exercise of principle, on more than one occasion, which the noble Lord, Lord Pannick, was talking about in moving the amendment. These are not pragmatic actions over small sums of damages; they are actions over great issues of principle. Even if some claimants would not actually win their personal actions for judicial review, we know, from the cases which we have all read and in which some in your Lordships’ House have appeared, that enormously important issues of principle for the future arise from them.
I will stray into future amendments, as others have done. Some of those points of principle have been made extremely successfully by interveners—NGOs that have chosen to put in submissions. Some have done so so effectively that their written submissions have changed the course of a case. Surely we should not inhibit justice by these rather mean provisions, which, in my view, my party—the Liberal Democrats—should never have given a single piece of powder or a single piece of shot to support.
Lord Irvine of Lairg (Lab)
My Lords, I will make a few remarks in support of the noble Lord, Lord Pannick, my noble friend Lord Beecham and the noble and learned Lord, Lord Woolf. In their consultation paper, which preceded the proposed changes, the Government acknowledged:
“Judicial review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful. The Government will ensure that judicial review continues to retain its crucial role.”
So far, so good. Unhappily, however, to my mind the Bill fails to deliver on that pledge. I shall confine my remarks to Clause 70 but, as other noble Lords have demonstrated, it is only one example of many.
The judiciary is a vital component in our separation of the powers. Judicial review is indispensible in a democracy proud to be governed by the rule of law. It ensures that public bodies act according to law. They cannot be above the law. Ministers, who are politicians, often will be frustrated if their decisions are challenged or quashed, but that is an intrinsic aspect of government subject to the rule of law, as is the need for Ministers to be aware of their duty to comply with the law. A Government who are confident that their decisions cannot be readily challenged risk becoming a Government who no longer have to respect the rule of law. That is a risk that no Secretary of State for Justice, who also bears the title of Lord Chancellor and is under a duty to uphold the rule of law, should be prepared to countenance.
Clause 70 would enable the Government to escape the consequences of unlawful action if they could persuade the courts that it was “highly likely” that they would have taken the same action had they acted lawfully. The current legal position is that where a public body has acted unlawfully the court may in the exercise of its discretion refuse to grant relief if it is satisfied that the decision would inevitably have been the same had the public body acted lawfully. That discretion is very rarely exercised, for good reason.
Procedural failures are more than “mere technicalities”. It is important that decisions are made properly by those entrusted with them by Parliament or Ministers. Procedural protections are built into Acts of Parliament or statutory instruments because of the importance of participation in decision-making by those affected by decisions or by the public at large. If a decision is unlawful because a defendant has acted unfairly, failed to observe a consultation obligation imposed by Parliament or failed to follow a procedure prescribed by Parliament, the rule of law requires that a claimant should have a remedy. To hold otherwise runs the risk of unlawful administrative action going unremedied. To my mind, the current law gets it right. The only exception should be those exceptional cases where a defendant can persuade the court that the same decision would have been inevitable.
Clause 70 is likely to encourage decision-makers to ignore participation rights. Yet the failure to comply with procedural obligations results in worse decisions as the decision-maker will not have taken into account the full range of relevant material before making the decision. It also undermines public confidence in the decision-making process. Those who have had the right to be heard before a decision is made will feel a justified sense of grievance about the fairness and quality of these decisions.
Moreover, and perhaps more importantly, lowering the threshold to “highly likely” will require the court to second-guess government decisions. The court will be required to substitute for the decision that has actually been made the decision it thinks the Secretary of State would make if the evidence that the court has looked at had been looked at by him. That is entirely inappropriate because the role of the judiciary in judicial review is to examine the lawfulness of public decision-making, not to substitute its own decision for that of the original decision-maker.
Finally, law reports are littered with cut-and-dried cases that turned out to be nothing of the sort. The best known expression of this came from that distinguished judge, Mr Justice Megarry, in John v Rees in 1970. He said that,
“experience shows that that which is confidently expected is by no means always that which happens … the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were”,
completely “answered”.
The effect of Clause 70 is best summed up in the words of the senior judiciary of England and Wales in response to the Government’s consultation:
“A lower threshold than inevitability for the application of the ‘no difference’ principle envisages judges refusing relief where there has been a proved error of law and the decision under challenge might have been different absent that error”.
I agree. The threshold defined in Clause 70 would immunise unlawful decisions from challenge before the courts, and I say that it should be rejected.
Lord Tebbit (Con)
My Lords, as the noble and learned Lord, Lord Irvine, was speaking, I was trying to cast my mind back to a certain event. I think the noble and learned Lord said that politicians should take action only after due and proper thought, and I seem to recollect an occasion when this House was impaired in its meeting because the Prime Minister had accidentally kicked the Lord Chancellor off the Woolsack. I wonder whether that was what the noble and learned Lord had in mind when he was speaking just now; certainly it is what came back to my mind.
I find myself concerned about a number of matters before us today. The noble Lord, Lord Pannick, talked about the “legality” of Ministers’ words and about “unlawful conduct” of Ministers. The noble and learned Lord, Lord Woolf, spoke of “unlawful actions”. That is all fine. I think that there should be the capability for judicial review in such circumstances. But those circumstances conform to my understanding of the only three grounds on which judicial review used to be granted: that the act or decision of the Minister or official concerned was contrary to law; that the act or decision was ultra vires; or that no reasonable man could possibly have reached such a decision.
I would be much happier if I could be assured—not only by my noble friend who will answer the debate, but by some of the distinguished lawyers who have spoken—that that remains the case. I have had the impression recently, when reading about some cases in which judicial review has been granted, that a judge has decided that a rather better decision might have been the one that he proposes to make now. I am glad that the noble and learned Lord, Lord Woolf, shakes his head at that, but I think that he understands a little of my anxiety, and that of a number of others. It seems to me that it would not be right for judges to substitute their judgment for that of officials or Ministers who lawfully took a decision.
Even worse, the noble Lord, Lord Beecham, quoted a judge who said that he thought that Parliament might not have the right to change the law that it had made. That seems a very peculiar doctrine. In that case, who does have the right to change such a law? Would it be the judges, or would it be, I do not know, a mob in the street, perhaps? Surely it is only Parliament, which has made a law, that has the right to change it.
The noble and learned Lord, Lord Woolf, spoke of the dangers of elected dictatorship. Of course those dangers are there. I do not like elected dictatorships, but in this country there is a very good mechanism for getting rid to them—at the next election. I would rather do it that way than have some judicial process for getting rid of them. I hope we shall hear no more talk about that, because I do not like unelected dictatorships either, even if they sit in law courts.
I have some very clear worries about the manner in which judicial review has developed in recent years. I hope that we will be able to come to a conclusion here, all of us, that we should go very firmly back to those three criteria alone and no others—no talk about judges perhaps deciding that there is an elected dictatorship and something should be done about it; otherwise, their places on their benches might be at risk.
Lord Lester of Herne Hill (LD)
My Lords, the House will be glad to know that there is a limiting factor on how long I can speak for, which is the state of my bronchial tubes; they are so excited by the subject that I am danger of choking altogether.
I am very glad to be able to reassure the noble Lord, Lord Tebbit, and I am particularly glad to follow the noble and learned Lord, Lord Irvine of Lairg. I remember when he had ceased to be Lord Chancellor and a Labour Government were tabling an obnoxious provision, I think to take away the rights of asylum seekers in the courts, and the noble and learned Lord simply put his name down to speak—that was all he had to do and the Labour Government saw the error of their ways and did the right thing.
I wish I could say the same of the present Government, whom I support within the coalition. They have had two warnings from two different committees, on both of which I serve: the Joint Committee on Human Rights, which has given two reports; and the Constitution Committee, chaired by the noble Lord, Lord Lang, five of whose members are members of the Conservative Party and, not as far as I know, dangerous radicals. One might have thought that the warning given by the Constitution Committee that, the judges having expressed their concerns, the Government should heed the warning, might have cut some ice within the Ministry of Justice and with Mr Grayling. I am very sorry that that has not been the case.
Part 4 places obstacles in the way of people seeking to challenge the legality of the actions of the Government and other public authorities. It interferes with the discretionary powers of the courts by placing handicaps in the way of public interest groups and their lawyers, and the ordinary woman and man in the street, in seeking to ensure that the Government and other public authorities act lawfully, fairly and rationally in accordance with logic and accepted moral standards of good government.
Judicial review is the process by which the courts enforce compliance by public authorities with the law. It is an appropriate and necessary judicial function because, as Lord Bingham pointed out in his great little book, The Rule of Law, the courts act as,
“auditors of legality: no more, but no less”.
Tom Bingham summed up the basic principle in the following way—and this I say to the noble Lord, Lord Tebbit, because even if he regards me as an unreliable Liberal Democrat, perhaps he will take it from Lord Bingham, one of our greatest judges, in his book—when he said:
“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably”.
Those are the principles of administrative law in this country—no more and no less—and they remain as they were when Lord Bingham wrote and as they were 30 years ago.
Lord Tebbit
Who does my noble friend think should make the judgment as to whether the powers that were legally used were fairly used? Different people have different judgments about what is fair. That of the Liberal Democrats is very different from that of the Conservatives—indeed, it is sometimes different from that of the Labour Party.
Lord Lester of Herne Hill
I ask the same question of the noble Lord, Lord Tebbit. If he thinks that Ministers, not judges, should make the judgment, then we are in wholly different places. The answer to the question of the noble Lord is that in the end it is for Parliament to make the laws, it is for the Executive to administer the laws, but it is ultimately for the courts to decide and to declare what the law is when it comes to public law, as for any other kind of law.
It is important to emphasise, for the benefit of the noble Lord, Lord Horam, in particular, that there is no automatic right to judicial review. It has to be applied for. It is granted only if the administrative court is satisfied that the application raises a properly arguable case by someone with a sufficient interest—not a mere busybody—who has exhausted any effective alternative remedy, such as a planning appeal.
The application has to be made without inordinate delay. The concerns of the noble Lord, Lord Horam, about delay are, therefore, met by the strict requirements of the administrative court. If the application succeeds, the court has a broad discretion that the remedy is necessary and proportionate. It will not permit the procedure to be abused. It will punish any abuse of procedure with an appropriate cost order.
If, as the Justice Secretary contends,
“‘left-wing’ campaigners have exploited the process of judicial review to frustrate government initiatives”,
—dear me!—the courts have ample powers to ensure that judicial review is not abused, including making cost orders against those who abuse the procedure.
It is an ancient principle, probably going to back to Magna Carta, that under the common law, which is at the heart of our system, no one shall be judge in his own cause. In seeking to interfere with the powers of the courts, and to place obstacles and handicaps in the way of application for judicial review, the Justice Secretary and the other Members of the Government—Liberal Democrat as well as Conservative—are judges in their own cause. They have a political self-interest in what is in Part 4.
But this House is in a different position. We have a vital constitutional role in protecting the rule of law and the accountability in law of Ministers and of government departments and of all public authorities. The House has the opportunity this afternoon to fulfil that role by placing the wider public interest against party-political interest. That is why, though I do not enjoy being a rebel, if there are Divisions on any of these amendments in the name of the very distinguished supporters of this one, I shall cross the floor and shall vote with them.
Lord Deben (Con)
My Lords, many Members of your Lordships’ House will understand that I very often come to debates on legal matters in order to make sure that legally trained people do not have it all their own way. I have always felt it a danger of this House that legal issues are debated by judges, who, it is often suggested, may have ulterior motives. I speak today because I think the judges are entirely right, and the concern that I have is a concern for my own historic profession of politician.
I well remember the occasion on which I was able to use the fact of judicial review to get my civil servants to understand why I would not accept a particular appeal on a planning matter. It was because it was quite clear to me that the very powerful interests, whose infrastructure aim I entirely approved, had failed in their duty to look for alternatives to the proposal that they were putting forward. They had not, therefore, fulfilled the law. Now, sometimes it is easy for a Minister to make such a decision, but sometimes it is inconvenient. It is important that embarrassment and inconvenience should not be allowed to go so far that it means that Ministers make decisions which are unlawful. Somebody has to decide when a decision is lawful and when it is not. That is what judicial review is about; it is a very simple concept.
Lord Spicer (Con)
I am most grateful to my noble friend for giving way. He is making the distinction, in a brilliant speech, between judges making the law and interpreting the law, but is that not precisely what the European Court does: it makes the law, which is then interpreted back?
Lord Deben
Happily, we are not discussing the European courts at the moment. In case anyone did not know, I am entirely in favour of our membership of the European Union. I think we should keep the defence of people’s freedom by the Bill of Rights that we have in the European Union, invented after Winston Churchill. I could go on for a long time, but I will not be led there by my noble friend. The truth is that we are talking about British law, British judges, British courts and the British defence of freedom that is judicial review. I hope that your Lordships’ House will remember the words of the noble and learned Lord, Lord Woolf, when he remarked that this is part of the structure that saves us from having to have a written constitution. This is the mechanism that we have invented. As a mechanism, every now and again it is annoying to Ministers. That should be a judgment of its correctness. That is what it is there for: to make Ministers annoyed enough to make sure that they do the right thing. In that sense, I have in the past—as is bound to be true after 16 years as a Minister—been annoyed by the facts of judicial review, but it made me a better and fairer Minister because I had to think of the law and not of my opinion at a particular point.
I want to say just one other thing. My noble friend Lord Horam said we should trust the judges. That is precisely what those of us who support the amendments are asking. We are saying that we should not say the judge shall not; we should say that the judge has the right to decide. We think there ought to be discretion but the Government are saying that there should not. I find that unacceptable. I do not want the division of powers that one sees in the United States. I want the kind of elegant association of powers that we in this country have worked out over the years. However, an elegant association of powers is held in place by very delicate mechanisms, which we fiddle with at our peril. This is one of those very delicate mechanisms that we will not fiddle with without very considerable effects. Just in case anybody heard the comment about left-wing people misusing this, I remind the House of what happens in the United States where it is almost universally right-wing people who make life almost impossible for elected Governments by using their system of separation of powers. How extremely clever we have been over the centuries to produce something that works so well, is so delicate and interrelates so well. Having done that over centuries, let us be a bit careful about being too clever with it now.
Baroness Williams of Crosby (LD)
My Lords, we have heard a brilliant speech. I associate myself very much with what the noble Lord, Lord Deben, said about the absolute necessity for Ministers to be obliged to bear in mind all the time how far their policies and decisions are in line with the law. Like the noble Lord, Lord Deben, I was also a Minister for a long time. During that period, on more than one occasion, I was confronted in a very direct way with challenges to the decisions I had made, particularly about issues around comprehensive schools. What I learnt from that experience was, first, to be very careful and thoughtful about any proposals that my department made in my name. Secondly, I learnt to have great respect for the often painful occurrence of reviewing my decisions in great detail, no doubt to the displeasure of a number of local authorities who did not share my view.
I want to make two other quick points. First, our own great Conservative Party has always been deeply suspicious of statism, unlike many right-wing parties in Europe and elsewhere, and has always had a commitment to the idea that the Government might be wrong and that they should be subject to the rule of law like all other citizens and parties in society. I find it, therefore, all the more puzzling that a party with that record and reputation can put forward this extraordinary Bill. I am here, not having taken part in the earlier stages—I had no intention of taking part—only because, when I read in detail both the Bill and the amendments, I became very troubled indeed.
The second crucial point is that the Conservative Party has always been centrally loyal to the concept of its patriotism to the British tradition and British values. As my noble friend Lord Marks, the noble Lord, Lord Deben, and the noble and learned Lord, Lord Woolf, have all said, at the very heart of the best of British values is the concept of accepting the rule of law. It is worth saying that almost no other country in the world—certainly no court, such as the European Court of Human Rights, which is nothing to do with the European Union, as may not be realised; it is to do with the Council of Europe—allows an individual, someone with no standing, no resources and no money to challenge the might of the state itself.
I am very troubled by some of the clauses, which will make it difficult for that same humble individual citizen to stand up to the state because he or she lacks the resources to do so or the ability to pay for brilliant lawyers. That is exactly the opposite of what we thought—what I have always deeply believed—that judicial review was all about. Whatever the process may be called, the truth of the matter is that the public broadly, to put it bluntly, trust the judiciary rather more than Governments, who come and go. Our judiciary has undoubtedly formed itself a substantial reputation.
The noble Lord, Lord Deben, rightly referred to the judicial system in the United States. Many Members of this House will be aware that over the past five or six years, there has been an absolutely steady uniformity of verdicts—five to four, five to four, five to four—on one issue after another, because, like it or not, the judiciary in the United States is politically chosen. That is why you cannot treat it in the fullest sense as independent; it is heavily dependent on who was President at the time that a particular judge was appointed.
Let us take pride in what we have been and what we are: one of the few countries in the world where an individual is treated as having the full right to challenge the Government and other forms of the Executive. Let us recognise that that has been treated in much of the rest of the world—not least on the continent of Europe —as one of the outstanding claims for the United Kingdom to be treated as an exceptional country, one that, ever since the days of Winston Churchill and the Council of Europe, has been persistently followed. It has had a huge influence on, for example, eastern and central Europe who follow us in that concept of the rule of law.
I conclude by saying that it would be an act of absolute tragedy if we were to allow a law to go through that begins to put in doubt that reputation.
Lord Cormack (Con)
My Lords, not for the first time, the noble Baroness, Lady Williams, has delivered a brilliant speech—a wonderful defence of Conservative values. I congratulate her on that. She made an extremely telling point when she talked about the politicisation of the judiciary in the United States.
I am very proud to be an honorary citizen of Texas, but when I was in Texas in 1984, at the time of the presidential election, I was invited to go to a $1,500-a-plate barbecue in aid of the man who was running for chief justice of Texas. I said to my congressman colleague, “We don’t do it like that in the UK, and I am bound to say that I am extremely glad of that”. I am very glad that that is still the case.
We have heard some outstanding speeches this afternoon. My noble friend Lord Deben was at his very best. We heard a very powerful speech from the noble and learned Lord, Lord Woolf, and a short, telling, moving speech from the noble Baroness, Lady Campbell of Surbiton, who was, in effect, speaking for the least of the little ones—to use a biblical phrase.
It is a pity that we are here again, because we have been around this course before in debates on the Bill. I had very much hoped that my noble friend who will be responding to the debate, for whom I have a genuinely high regard, would have been able to persuade the Lord Chancellor and others to have taken note of the telling points made in your Lordships’ House. I cannot help but wonder if the fact that we no longer have a distinguished lawyer as Lord Chancellor has something to do with it.
In his speech, the noble and learned Lord, Lord Woolf, talked about the significant and powerful difference between the words “must” and “may”. It is a disservice to our democracy to fetter the judiciary. Of course, they can sometimes be exceptionally tiresome. There is not a single Member of your Lordships’ House—other than, perhaps, those who are learned in the law—who has not been exasperated and annoyed from time to time by what judges have said, but the rule of law is what guarantees our liberties in this country. I am so glad that the noble Lord, Lord Lester, quoted from that brilliant book by Tom Bingham. We must not allow any Government to fetter the freedom of the judiciary.
I have mentioned Magna Carta before and I make no apology for mentioning it again. It was alluded to by the noble Lord, Lord Lester. Next year we shall commemorate Magna Carta and celebrate its 800th anniversary. Already, two of the barons who look down on us in this place have gone: one is gracing an exhibition of Victorian sculpture in the United States and the other is to guard the entrance to the British Library’s great exhibition devoted to Magna Carta next year. Much of Magna Carta is not relevant today, but its centrality is:
“To no one will we sell, to no one deny … justice”.
We are moving in that direction if we do not amend the Bill in this way. That is not a good way to commemorate and celebrate.
The Prime Minister has made a number of extremely powerful comments about Magna Carta, after the first unfortunate one on American television. He has said how crucial it is that we recognise the values encapsulated in that most seminal document in our constitutional history. For all the pettifogging, interference and annoyance that might be caused, one of the things that we have to defend is the right of people like the noble Baroness to take on the big powers and the establishment.
How much I agreed with my noble friend Lord Carlile of Berriew when he was talking about those infrastructure projects. I do not agree with him on the infrastructure projects—on some I do, on some I do not—but that is another matter entirely. I agree that there must be the opportunity to challenge. No Government should have the power to prevent such a challenge simply because it is inconvenient.
I hope that, in winding up, the Minister will be able to indicate that he has listened to the almost unanimous voice in this debate. I hope that, even at this late stage, he will do something—perhaps introducing an amendment at Third Reading—to recognise that the case made by the noble Lord, Lord Pannick, in his opening speech and the case made so very powerfully with such quiet effectiveness by the noble and learned Lord, Lord Woolf, has been listened to in government circles and will be heeded.
Lord Phillips of Worth Matravers (CB)
My Lords, if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them. I simply say to the noble Lord, Lord Tebbit, that Parliament did not create judicial review; the judges did. It was, I hasten to say, before I became a judge and was one of the best things that our common-law judges have ever done. These amendments are designed to ensure that Parliament does not damage that which the judges created, and they deserve the support of this House.
Baroness Kennedy of The Shaws (Lab)
My Lords, I know that there is always a sigh in this House when a debate is dominated by lawyers. However, I remind the House that sometimes it is lawyers who know the pain that citizens in our country experience, because we represent them, and that this is about the actual lives on which judicial review has an impact. It is always about the person whose business is to be closed down from trading, based on a department’s or a local authority’s decision that they want to challenge, or the person whose mother is in a care home and suddenly finds that it is being moved or closed down, with no consultation as to the impact on her and her family. It may be about the effect on a disabled child of a decision about their schooling. Those things are about real people’s lives and that is why this is not just a constitutional debate of high flown words or complicated legality—it is about the real impact on the lives of ordinary people.
When your Lordships come to vote in our Lobbies, as I am sure you will be asked to do, I say to those of you who are not lawyers that this is really about people’s lives and about the law coming into play to protect citizens. That is why lawyers and organisations such as the Bar Council, the Law Society and Justice—cross-party and no-party organisations—know why the rule of law matters in our nation and our democracy. This is not, I say to the Minister’s noble friend Lord Tebbit, about judges somehow usurping the power of Parliament. This is about justice, fairness and the things that we hold dear, so I say to my colleagues in this House who are not lawyers that this is not a festival of lawyering. It is about ordinary people.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, we now turn to Part 4 of the Bill, which has proved to be one of the more contentious areas at Second Reading, in Committee and today. The debate has ranged far and wide and it has been magnificent. We have discussed the constitution of the United States, the merits of the European Union, the Council of Europe, King Charles I, fracking, the Severn barrage and HS2, to name a few topics. I am sure that noble Lords will understand if I do not deal with all of them.
Similarly, there have been speeches of an omnibus nature, particularly by the noble Lord, Lord Beecham, and my noble friend Lord Marks, in the sense that they have covered matters beyond Clause 70. I will deal with those arguments when we come to the relevant groups. We are focusing on Clause 70 at this juncture. The Government have listened with great care to the arguments raised by noble and learned Lords and noble Lords during those debates. I assure my noble friend Lord Cormack that I have listened carefully again this afternoon to the speeches made by a large number of your Lordships. However, we do not resile from our central contentions, which I trust the House will allow me to set out briefly.
First, it is our contention that judicial review, when used properly, is an essential component of the rule of law. It allows individuals and businesses to invite the court to test the lawfulness of public bodies’ actions. Secondly, judicial review as it presently stands is not always perfect. On several occasions, the Government have set out some of the examples of delay and cost which can be caused, such as the challenge to the exhumation licence concerning the mortal remains of King Richard III which the noble Lord, Lord Beecham, described as “ludicrous”, despite his own view that York is the more appropriate resting place.
Thirdly, while we have taken some steps, working with the judiciary where appropriate, to rebalance the current approach, such as through the creation of the planning court, some further reform is needed. Noble Lords may be aware that the use of judicial review has increased more than threefold in recent years from around 4,200 in 2000 to around 15,600 in 2013.
The noble and learned Lord, Lord Woolf, was kind enough during our Committee debates to offer me a copy of De Smith’s Judicial Review, of which he is a distinguished editor. I have to say that he honoured his pledge most generously. I have been in receipt of De Smith and I have done my best to reacquaint myself with its contents. The preface to the seventh and most recent edition reads as follows:
“English administrative law is now one the most celebrated products of our common law and doubtless the fastest developing over the past half century”.
We accept that many judicial reviews will be well founded and brought in good faith, and that much of the growth has been driven by the number of immigration and asylum cases, but it remains a simple fact that a well timed judicial review can delay the implementation of crucial policies or projects for months or even years. Even when decisions are perfectly in line with due process, months can be spent preparing for and defending claims when that time would be better spent taking forward the reforms that the country needs.
The debates have been, perhaps predictably, dominated by those with long experience of the law and, of course, on the government Benches we welcome the expertise which has been brought to bear, even if we do not always welcome the contents of all the speeches. However, there is another side to judicial review—one which pertains to what happens, or does not happen, outside the courtroom as judicial reviews proceed. As they proceed, arguments are made and countered; witness statements are prepared and probed; and fine points of law are weighed and determined. Crucial projects with direct implications for jobs are delayed, perhaps lost.
For example, a judicial review was initiated by a competitor to the proposed development of a supermarket in Skelton, North Yorkshire. That challenge was described by the judge at the earliest possible opportunity as “a hopeless case”. Yet work was delayed for six months. Irrespective of the rights and wrongs of the case itself, is it right that a hopeless judicial review can be used to such effect? The risk of this happening was recognised by that great judge Lord Diplock who, when emphasising the importance of the permission stage in judicial review said:
“The requirement may also prevent administrative action being paralysed by a pending, but possibly spurious, legal challenge”.
I quote from Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses 1982 appeal case 617 at page 643.
It is important that we do not ignore the fact that such cases place a considerable burden on the public purse in terms of the time of judges, lawyers, Ministers and officials. Overall figures are not recorded, and are probably not recordable, but by way of illustration, I can report that the total legal costs of the Richard III case to the Ministry of Justice alone have been put at more than £90,000, none of which is recoverable. Consequently, we make no apology for having taken some sensible steps already, and none for making a few more small but important changes.
Outside your Lordships’ House the debate about these reforms has been rather long on hyperbole. Reference has been made during the debate today, and indeed in Committee, to left-wing causes. Of course, I entirely accept that it is irrelevant whether a cause is left-wing, right-wing or apolitical. What matters is whether the challenge is justified and whether it has merit. However, I have seen it suggested that the Government wish to do away with judicial review altogether and even that these reforms will lead to imprisonment without trial. As I will explain, these fears are entirely ill founded. The Government believe that the roles of Parliament and the courts should exist within a relationship of mutual respect and co-operation. In that context, I should emphasise what the provisions do not do: they do not seek to undermine or fetter judicial discretion; they do not seek to challenge the basis on which judges approach questions of judicial review; and we have not altered legal standing, much as that was open to criticism. That was a response to the consultation paper.
Lord Pannick
I am grateful to all noble Lords who have spoken in this fascinating debate. Clause 70 has been defended by the noble Lords, Lord Horam and Lord Tebbit, and by the Minister, whom I thank for his very full response to these amendments, on the basis that there is too much judicial review, it takes too long and is too expensive, and that something needs to be done about it. However, as so many of your Lordships have explained this afternoon, that fails to recognise the threat that Clause 70 poses to the rule of law. As we have heard, that is not something, as the Minister was suggesting, that only lawyers are concerned about.
For my part, I am perfectly prepared to accept greater powers for the courts to throw out abusive cases. I am happy that we should speed up the legal process and make it less expensive. My concern is that Clause 70 is a blunt instrument. It would impose a duty on the judge to dismiss cases which raise issues of public and legal importance. That is why Amendment 146 proposes that Clause 70 should confer a discretion rather than impose a duty; the Minister repeatedly referred to a “fair balance”, and that is a fair balance.
As the noble and learned Lord, Lord Woolf, said this afternoon, if the judge is to do justice in this important and sensitive context, he or she must retain a discretion so that judges can continue to decide issues of great public importance. That is what is at stake here. Should an Act of Parliament say that the judge has no power to rule that a governmental exercise of power is unlawful? With all due respect to the Minister, that is not a modest reform. I invite your Lordships to retain judicial discretion. The Minister spoke of mutual respect between Parliament and the courts. I think that mutual respect is best maintained by writing judicial discretion into Clause 70.
I am sorry that the Minister should suggest today that this House performing its vital role of scrutiny of the Bill by retaining judicial discretion is somehow an inappropriate challenge to the elected House. It is nothing of the sort.
Lord Pannick
Amendment 146 is to be read together with Amendments 147, 149, 151, 152 and 154, each of which would substitute judicial discretion in Clause 70 for absolute judicial duties. I wish to test the opinion of the House.
Lord Pannick
Lord Pannick
Lord Pannick
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Lord Beecham
Lord Beecham
My Lords, in the interests of making progress with more important matters, I shall not move this amendment.
Lord Pannick
Lord Pannick
My Lords, I shall speak to Amendments 157 to 163. Clause 71 requires the provision of information about financial resources in judicial review claims. Clause 72 will regulate the use of information about financial resources on the assessment of costs in judicial reviews. The position is that the Government are seeking to impose duties on applicants for judicial review to provide information about financial resources when no such duties are imposed on claimants in other forms of civil litigation. I am aware of no general evidence of any mischief which these clauses are designed to remedy. They will have a severely inhibiting effect on judicial review applications.
If a claimant is able to demonstrate that they have a properly arguable case on the merits and they satisfy other requirements such as standing and time limits, they should not be further obstructed and deterred by complex requirements to disclose financial information. Even if there were a problem which needed to be addressed, I am concerned that Clauses 71 and 72 again, like Clause 70 on which the House has just expressed its view, are drafted in terms of judicial duties rather than conferring a discretion on the judge which would enable him or her to have regard to the circumstances of the individual case. Amendments 157, 158 and 160 would replace judicial duties with a judicial discretion. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I support these amendments. First, I declare an interest as the honorary president and a former director of the Child Poverty Action Group. It is an organisation which helped to pioneer the use of judicial review for the marginalised citizens about whom we heard in debating the previous amendment, thus emphasising that we are talking about not just the interests of lawyers but the interests of some of the most deprived, marginalised citizens of our country. I speak also as a member of the Joint Committee on Human Rights. I remind your Lordships’ House that in the first of our two reports on our grave concern about the human rights implications of these changes, we said:
“We therefore do not consider the Government to have demonstrated by clear evidence that … judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate”,
notwithstanding what the noble Lord, Lord Horam, said with regard to the previous amendment. I have reread our debates on this issue and I have read all the briefing that we have received. I can only come to the conclusion that the provisions in Part 4 are a series of highly imperfect solutions looking for a problem—a problem that no one else can see.
As regards Amendment 157, in Committee I raised the concerns of NGOs. I said that they warn of,
“the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs”.—[Official Report, 30/7/14; col. 1601.]
Michael Spencer, solicitor for the Child Poverty Action Group, said:
“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.
The Minister responded quite fully to my concerns and fears. He said that,
“we do not believe that the provisions would affect the common law position concerning when costs would be awarded against a party … These clauses should not cause anyone to pay costs who would not do so under the current law, except those who should but of whom the court is unaware. I hope that will allay, to some extent, the fears that some have about making challenges to a school or some other small project, which they might reasonably hope would be the subject of a judicial review”.—[Official Report, 30/7/14; col. 1612.]
However, I fear that the concerns and worries of groups outside this House have not been allayed. As the most recent briefing from this very wide group of NGOs, which represents a wide range of lawyer and non-lawyer interests in this area, still raises concerns, I discussed with Justice why it was still worried about this, despite the reassuring words that the noble Lord gave us in Committee. Justice said:
“While the Minister’s assurance is welcome, as the Minister explains, he cannot predict how the courts will respond to the change in position proposed by the statute. Similarly, Parliament cannot have a full picture of the rules which the court will be applying, as the Bill provides for the detail of the change to be in the rules to be set down by the rules committee. Yet, there is nothing in the Bill which would send a message to the courts that they should not depart from their previous approach to the allocation of costs. If the Government doesn’t intend to change the position in the common law, the question is: ‘Why not make that clear on the face of the Bill?’. Instead, by leaving the ambiguity in place, and creating a clean statutory slate of instructions for the courts, Ministers are creating a real risk that individuals will be deterred from litigating while the costs risk is ascertained. As and until the position is clear, individual solicitors will be unable to advise their clients on the likely costs risk, if any. Caution will be required. The breadth of the disclosure requirement in Clause 71 makes this chilling and deterrent effect particularly dangerous”.
I will not go on but there is a real danger here that I hope we in this House will prevent happening.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, support Amendment 157 for the reasons already given by the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. There are indeed currently real perils in Clause 71 in the way of the chilling effect that it must inevitably have. In Committee on 30 July, as reported at col. 1607, in relation to what was then Clause 65 and is now Clause 71, the Minister twice said that the senior judiciary welcomed this provision. I was troubled by that and looked at the response of the senior judiciary of last November. I hope that I have the right document and that I have isolated the right paragraphs; that is, paragraphs 34 and 38. I am sure that the Minister will correct me if I am wrong, They suggest that, in certain circumstances, there should be mandatory disclosure of financial circumstances. As I read that response—and I am unsurprised by this—the important point is that it refers only to when determining whether to make a protective costs order or when questioning,
“whether to make a costs order against a non-party”.
Those are not routine events, and they would not require, as the clause as it stands does, a disclosure of financial resources on all applications. If I am wrong about that the Minister will correct me, but if I am right, with respect, that wholly deprives him of the support on which he rested in Committee: the senior judiciary’s response.
Lord Marks of Henley-on-Thames
My Lords, I simply do not accept that it is right that a requirement for financial disclosure should be imposed before the permission stage in a judicial review application. The time for considering such information is when the order for costs is considered, and not before. At the costs stage—the stage with which Clause 72 is concerned—it is clear which side has won, and the judge knows who is and who is not vulnerable to a costs order. Only at that stage is the issue of financial support relevant, and at that stage the present position is that the judge already has the power to make a costs order against a non-party who has financially supported an unmeritorious application. There is no utility in expanding or developing that power further. But if there is to be legislation, I urge the House to accept that it should be left to the discretion of the judge as to what order for costs he makes. There may be some sense, however, in legislating for the court at that stage to have the power to require financial information in order to help the judge form a conclusion. That is the limited purpose of my amendments to Clause 72. With your Lordships’ consent, I shall detain the House no further.
Lord Mackay of Clashfern (Con)
My Lords, those of your Lordships who were present in Committee will remember that I read out a substantial section of a book by the noble Lord, Lord Adonis, in which he described what I understood to be the use of judicial review as a means of frustrating a government policy that had been passed by Parliament. I shall not repeat the detail now; it is in the book and I have put it on the record here. The problem on which the noble Lord focuses in that passage is that the arrangements made for pursuing this policy involved looking round for somebody who could be a legally aided litigant, and would therefore be provided with legal aid and also protected against costs in the event of his losing. The full detail is given in those passages.
It seems to me that some mechanism is required to enable the judges to deal with such points as part of the decision on whether permission will be granted to a particular individual to proceed. So far as I am concerned, judicial discretion in this area would be perfectly reasonable and, as has been said earlier, rules of court would be required to deal with it. There is definitely a problem here that needs to be dealt with at the opening stage of the proceedings in order that justice may be done in relation to that kind of campaign, which I have no reason to doubt is accurately described by the noble Lord, Lord Adonis, whom I am sure your Lordships know and respect.
Lord Lester of Herne Hill
My Lords, my experience of protective costs orders arises from the Corner House case. Corner House was a tiny NGO with almost no money and it was challenging the lack of proper consultation when the export credit guarantee issues arose in relation to possible corruption. My recollection is that the Court of Appeal developed at common law the idea of a protective costs order, but it was extremely careful to limit that so that anyone with real funds would have to account at the earlier stage before such an order would be made.
I have not been aware, in subsequent case law since the decision of the Court of Appeal in the Corner House case, of protective costs orders being abused. My impression is that the courts have been strict, disciplined and very jealous of the need to avoid any waste of public money. Therefore, although I agree with the noble and learned Lord, Lord Mackay of Clashfern, that there may be some scope for rule-making, I do not believe that there is any need for a statutory requirement such as the one we are now considering.
Lord Beecham
My Lords, the Opposition will support the amendment moved by the noble Lord, Lord Pannick. It seems to me quite possible, within the framework of that amendment, to proceed along the lines mentioned by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Lester.
Lord Faulks
My Lords, Clauses 71 and 72 are about transparency. They require an applicant for judicial review to provide, with their application, information on funding for their case and that the court considers this information when exercising discretion to order costs. It is important to emphasise that, while permission will not be granted until information has been provided, there is no question of preventing permission if the applicant’s funding is insufficient, and the judiciary continue to have complete discretion in relation to the making of costs orders against third parties disclosed in that information.
Requiring the applicant to provide this information to the court will give the court the information necessary to achieve flexibility in apportioning costs fairly, and to prevent a third party from using a front man or shell company to shield themselves from incurring their share of costs. Your Lordships have heard that there is a potential problem, and although it is not always easy to know what the situation is, this provision should enable the courts to make their decision based on evidence. We say that the judges do not always have all the relevant information available or presented to them, which has the potential to hinder their ability to order costs in a just and equitable manner.
Amendments 157 and 158 would stop the provision of information about financial resources being mandatory, allowing for permission to be granted where no information has been provided but permission is “nevertheless appropriate”—which is undefined. The Government consider this unnecessary, as the clause does not stop permission being granted if insufficient finances are available. It requires only that the court should be provided with an accurate picture. The court still has discretion.
The clauses will not require onerous or invasive information from applicants, and the information requested should always be information that the applicant would have, even if they did not have funding at that stage. The clauses are designed to promote transparency in court proceedings, not to provide for a time-consuming forensic examination of an individual’s financial affairs.
The noble Lord, Lord Beecham, has not moved Amendment 156. The amendments tabled by the noble Lord, Lord Marks, and Amendment 162, tabled by the noble Lord, Lord Pannick, seek to change when the court should have regard to funding information, and what that information should be. My understanding is that they rely on Clause 71 being removed from the Bill and set out the power for the court to require the applicant to provide certain information about funding when the court is determining, or intends to determine, costs. They also limit the information to sources of funding that are actually available to the applicant, rather than sources that are likely to be available, and rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.
Amendment 161A would mean that those who are likely to fund and drive litigation could escape the appropriate costs liability simply by not promising to provide the support. Amendments 160 and 161 seek to instate a position where the court need not consider financial information provided by the applicant, even if it considers it appropriate. In my view, these amendments are unnecessary and defeat the point of Clause 71 in making sure that the court has clear and transparent information early in proceedings.
The key to Clauses 71 and 72 is they do not create new cost liabilities for claimants, nor does the sufficiency of funding they demonstrate have an impact on the progression of the case. In answer to the noble Baroness, Lady Lister, the courts would not be expected to make an award against a third party who was simply funding the litigation and not seeking substantially to control, influence or benefit from it. I said words to that effect in Committee; I say them again now, and I hope those words will be useful when anyone comes to interpret this provision should it become law. It is clear that the applicable case law requires more than only funding; as in the case law referred to by my noble friend Lord Lester, the person must be seeking to drive the litigation or to benefit from a potential remedy in the case. I should emphasise that.
Under those principles, costs awards are not prescriptive, nor is it our intention that they should be. We are simply allowing the court to make decisions with the appropriate information available to it. For example, the court will not have to make an award against a parent in a school challenge case and would not be expected to do so. We do not agree with Amendment 162 that prospective funding or the ability of company members to provide financial support can be excluded from this consideration, nor do we agree that the court should consider only those who have promised to provide funding. In our view, that creates an easily avoidable threshold.
We also do not agree that this information should be provided only on the making of an order by the court, as stated in Amendment 159B. There is no reason why the court should not be informed of the parties driving litigation early on in proceedings, as this would enable the judge to make decisions on costs without having to order the parties to provide information. Essentially this amendment seeks to favour the opaque, rather than the transparent. What information an applicant should provide will be set out in court rules. The rules will not require invasive financial information but will require the claimant to be clear about the sources of their funding. It will be perfectly acceptable to update the court if funding does not materialise; that was a point made in Committee and I would like to make that clear. The requirements will not be burdensome for claimants. The Government have on many occasions stated that they wish to see a light-touch approach, and I am sure that any rules will be fair and proportionate to the court’s need for transparency.
The noble and learned Lord, Lord Brown, made reference to the judiciary’s response. I am sure he has read carefully what it is and I am in no position to contradict it. My understanding was that the judiciary had welcomed transparency, although, having revisited what I said in Committee, I did not seek to rely specifically on that as the only basis for this argument. He may well be right that the comments were directed more at non-parties than in the situation of an applicant. If I inadvertently misled Parliament, I make it absolutely clear that that was not my intention.
The requirement for transparency is wholly understandable and wholly consistent with judges making decisions on the best possible information. The question is: is this going to be chilling? I suggest that it will not be chilling to those who have good reasons for bringing claims and who are, as one would expect, open and frank about what, in financial terms, is driving the challenge.
This has been a useful debate and I hope it has enabled me to be clear about what lies behind Clauses 71 and 72 and to allay any remaining concerns. The Government take the view that these clauses do not take away the judge’s discretion. As is always the case, he or she will make the decision on the basis of the facts of each case. These clauses enable the judge to have better information before exercising the discretion. No judge wants to exercise a discretion in the absence of all the information that could reasonably be made available to them. It is not obvious to me why this is as objectionable as it is said. With that reassurance, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Pannick
My Lords, the purpose of Amendments 157, 158, 160 and 161, which are all of a piece, is simply to ensure that the court has a discretion rather than a duty in relation to information about the funding of judicial review. It is very important to be clear in the Bill that the court retains a discretion in relation to these matters. That is what these amendments seek to do in relation to funding issues. I wish to test the opinion of the House on Amendment 157.
Lord Pannick
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“( ) The High Court and the Court of Appeal shall have a discretion whether to order an intervener to pay the costs of a relevant party to the proceedings, and shall have a discretion whether to order a relevant party to the proceedings to pay the intervener’s costs.”
Lord Pannick
My Lords, I shall speak also to Amendment 165. Your Lordships now turn to Clause 73, which concerns the costs of interveners in judicial review proceedings. Your Lordships will know that often in judicial review cases the court allows a person or body to intervene because they have knowledge or experience which may assist it in resolving the legal issues. Clause 73 states that interveners may not receive their costs other than in “exceptional circumstances”, and it adds—this is my concern—that, unless there are exceptional circumstances, an intervener must pay any costs that have been incurred by a party as a result of that intervention.
I cannot understand why such a provision is necessary or appropriate. The current legal position is clear and fair: the court has discretion over whether to order a party to the judicial review to pay the intervener’s costs or whether to order the intervener to pay costs to a party. Clause 73 is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points that assist it in arriving at its substantive judgment. The Minister may say that the intervener can resist paying costs on the basis that there are “exceptional circumstances”, but there is nothing exceptional about the intervener assisting the court: it happens every week in judicial review cases. In any event, if there is a statutory presumption, rebuttable only by showing exceptional circumstances, that the intervener must pay the costs, public interest bodies will be far less likely to intervene. The courts will be denied assistance from those public interest bodies, which will be greatly to the public detriment and greatly to the detriment of the legal system, whether the intervention is from Liberty, the GMC, the UN High Commissioner for Refugees or, indeed, the Home Secretary—because a number of interventions in judicial review cases are made by government departments. None of this makes any sense whatever.
Amendment 164 would provide that it is a matter for the discretion of the court whether to order costs to be paid by or to an intervener. I commend that amendment to the House. I beg to move.
Lord Hope of Craighead (CB)
I support the amendment. It is a feature of Clause 73, as I am sure the Minister will have noticed, that it does not mention the Supreme Court—one should be thankful for small mercies—but it creates a very unbalanced situation. As the noble Lord, Lord Pannick, has explained, interventions are extremely helpful. Nobody has a right to intervene—courts at every level give permission if they are persuaded that the intervention would be of use to them—so that I cannot see that there is any compelling reason for turning interveners away. The court values them, and certainly, from the point of view of the Supreme Court, in my experience where we allow an intervention we derive benefit from it.
The regime that the clause seeks to create seems rather unbalanced. From the Supreme Court’s point of view, as we are a court of appeal, it would much rather, I am sure, that those who had a point to make were able to make it at the Court of Appeal level if not at the level of the High Court. While I welcome the absence of the Supreme Court from this clause, it adds to my feeling that there is something wrong about it. Given that the intervener has no right to intervene and that the courts are perfectly capable of controlling the volume of intervention and the time taken by interveners, which the Supreme Court does regularly, I cannot see any value in the reform, if one can call it that, that the clause seeks to bring about.
Lord Low of Dalston (CB)
My Lords, it is a pleasure to find myself speaking after the noble and learned Lord, Lord Hope—not for the first time. I am very worried about a particular aspect of the provisions we are considering today; namely, their impact on children. That is thrown into sharp relief by Clause 73, which requires that interveners pay the costs of their intervention in the circumstances outlined by the noble Lord, Lord Pannick, save for those which are “exceptional”.
We had a briefing here, which a number of noble Lords may have attended, from a number of children’s organisations representing children and manifesting their concern for the rights of children. The points that they made were extremely powerful, and I am glad to have the opportunity of raising them in this debate.
Following cuts to legal aid, children are increasingly forced to face court proceedings without a lawyer. In these circumstances, litigation brought by charities, NGOs and children’s rights organisations in the public interest is ever more important. Equally, in the new environment where they are increasingly faced by litigants in person, the courts increasingly value the contribution of third-party interveners providing expert advice to assist them on specific points of law and fact, including points on what is in the children’s best interests.
As the noble and learned Baroness, Lady Hale, said in a speech that she gave to the Public Law Project conference in October 2013:
“Once a matter is in court, the more important the subject, the more difficult the issues, the more help we need to try and get the right answer … interventions are enormously helpful”.
That is the testimony of a justice of the Supreme Court. As the noble and learned Lord, Lord Hope, pointed out, the noble and learned Baroness will not necessarily be deprived of such interventions in the Supreme Court, but I am sure that she was referring also to the value of interventions in lower courts.
Children and young people are disproportionately affected by the legal aid changes. They are often powerless to prevent the circumstances that give rise to the legal problems for which they seek resolution, such as homelessness, and they certainly cannot assert their rights without the help of a lawyer. They are either forced to fend for themselves as litigants in person without the skills to do so, have their problems inappropriately channelled to overstretched and inadequate complaints procedures, or have them go unresolved altogether.
The effect of the proposals about which we are talking today will be to inhibit legitimate challenge, limit judicial discretion to act in the public interest and shield public agencies from effective scrutiny. Despite what the Minister said earlier, it is difficult to escape the feeling that these provisions curtailing the scope of judicial review are animated by a belief that applications for judicial review are somehow vexatious. However, consider the sort of cases that we are talking about—cases where highly vulnerable children and young people seek protection from abuse and exploitation. Those affected include homeless children and young people; children who have been sexually exploited or abused—how salient is that today?—trafficked children; those with mental health problems and learning difficulties; children in care, care leavers and children affected by care proceedings; and young refugees and asylum seekers. The changes we are considering will inevitably have a chilling effect on charities and other organisations that seek to protect children’s rights through court action in the sort of cases I have mentioned. I urge noble Lords to support the amendments, which would negate these provisions, Clause 73 specifically.
Lord Lester of Herne Hill
My Lords, I wish to make a couple of points in addition in support of the amendment. My personal experience in cases has been that third-party interveners in judicial review proceedings perform a vital task in enabling the judicial review court, if it so wishes, to open its windows on to a wider range of considerations. We are not dealing with a dispute between two civil parties. We are dealing, as has been said, with judicial review designed in the public interest to resolve questions of public law. One such case has been implicitly referred to by the noble Lord, Lord Pannick—the case in which the High Commissioner for Refugees intervened in a difficult point about the proper construction of the refugee convention read with our other provisions. The court found it extremely valuable and it enabled the court, led by Lord Bingham, to give an authoritative ruling on what were novel issues about the refugee convention.
Another case was from Northern Ireland. One of the strange things about the Bill, which I hope the Minister will deal with in his reply, is that this provision does not apply to Northern Ireland or Scotland. The Northern Ireland Human Rights Commission had to struggle for some years to have a right of audience at all and to be able to make third-party interventions. Members of the House will remember that a couple of years ago, the Attorney-General for Northern Ireland wanted to commit Peter Hain for scandalising the judiciary by daring in his memoirs to criticise the Northern Ireland High Court judge. The Attorney-General applied to commit for contempt. I was instructed by the Northern Ireland Human Rights Commission to make a third-party intervention. I like to think that the result of that written submission is what caused the Attorney-General to drop the whole idea, as he did.
Unless I am completely wrong, we are now in the curious position that the Northern Ireland Human Rights Commission will be able, with its very limited budget, to be a third-party intervener without this costs effect, whereas the Equality and Human Rights Commission, for example, with its limited budget, will not be in the same position. That seems arbitrary and it will make it harder for our senior judiciary to be helped by third parties, which is the whole object of the third-party intervention.
Another example from the distant past concerned privacy in relation to the disclosure of patients’ medical information in the Court of Appeal. I seem to remember that a third-party intervention in that case was absolutely crucial. It is vital that small NGOs and ordinary citizens who have something to contribute, if the court decides that it wants to hear from them or read their written submissions, should be able to do so without the threat of costs orders being made against them.
Baroness Campbell of Surbiton (CB)
My Lords, I wish to add my support for the amendments proposed by my noble friend Lord Pannick. This provision will, indeed, deter interventions from organisations with limited resources—organisations, as my noble friend Lord Low suggested, that are likely to have the best and most pertinent expertise about the more vulnerable sectors of our society: children, disabled people, elderly people. Judges have publicly recognised the value of specialist knowledge in helping them to make informed decisions, as demonstrated by my examples in Committee. I had the privilege to be involved in interventions in two landmark cases where my organisation and individual knowledge could contribute to the outcome, which everybody heralded as a great success. I know that the Government’s reforms would have deterred me and my organisation from intervening. I believe that cases will be very poor for that.
It is critical that intervention remains readily available and that we do not deter weak charities and individuals who are quite sceptical about getting involved at all. Let us face it, intervening in a High Court case is a scary prospect. I know because I remember I was terrified. Therefore, I believe that these provisions will have a devastating effect, particularly on the community that I know best, disabled people—the very people who need the most support, protection and expert advice, coming from maybe some of the people who know them best and who have themselves experienced what they might have been going through or might go through. Clause 73 cannot be allowed to stand because there will be no interventions of such knowledge and value—interventions that have literally changed the lives of some disabled individuals and interventions that will change the lives of those who come before the courts in the future.
Lord Faulks
My Lords, I am grateful to all noble Lords who have taken part in the debate on interveners. The position is that any person may apply to the court to give evidence or make representations in judicial review proceedings. However, we think it is right that people who intervene in judicial reviews should have a fairer financial stake in the case and do so in a way that does not cause the true parties to the judicial review additional costs.
Clause 73 aims to strengthen the costs rules in relation to third parties who voluntarily apply to join in judicial review cases as interveners. It does this by establishing two presumptions: first, that the court will order an intervener to pay their own costs—that is normally the position now; secondly, that it will order an intervener to pay the reasonable costs that they cause a party to the judicial review to incur by their intervention. However, neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for that presumption to be rebutted. Neither presumption will apply when the court invites an intervention—and courts do quite often invite interventions. The clause will not affect the judge’s ability to invite whichever interventions, from whichever interveners, he or she sees fit.
The clause has been subject to significant debate and, as I said at Second Reading and in Committee in this place, and as my honourable friend Shailesh Vara said in the other place, the Government wanted to look again at how best to ensure that interveners consider carefully the costs implications of intervening, while not deterring appropriate interventions in appropriate cases, and, as a result, whether any changes to the clause were required. We have taken into account the views expressed in this House and the other place. The Government have listened to the concerns raised in Parliament and by stakeholders but consider that the current clause is right and are not persuaded that amendment is needed. The Government have considered and discussed the clause in some detail. I know that my ministerial colleagues have also discussed it with fellow Peers. I regret to say that we have been unable to agree an alternative formulation. The Government recognise that interveners can add value to a case and we do not want to stop that. However, interventions should be made in the right cases after careful consideration beforehand. That means that interveners should have a fair financial stake in the case.
Lord Deben
My Lords, I am grateful to my noble friend for giving way. I am listening very carefully. The tiny bit that I do not understand is why the judge should not have discretion to decide whether the case merits payment of costs or not. The discretion is very bound, because he has to maintain that these are exceptional circumstances. I find that difficult. Why cannot he be given the right to say, “In this case, they ought to pay because they have been in one way or another negligent”, or have overcharged, and in another case that they should not? Why cannot we leave it to the judge? It is his court and he should make the decision.
Lord Faulks
My Lords, of course that is the burden of the argument in favour of the amendment, and that is the current situation. The clause is intended to place a higher burden—we accept that it is a higher burden—on interveners to think carefully about the intervention that they intend to make as to whether it is truly worth while.
Before my noble friend’s intervention, I was stressing that the judge has discretion over both aspects: causation and quantum. The intervention may have caused only a degree of additional costs, rather than the entire costs of the action, which will modify the intervener’s exposure to costs. That will be a matter for the discretion of the judge. Of course, it is ultimately up to the judge to decide what are exceptional cases. Judges have different views as to what constitutes an exceptional case, but ultimately it is for the judge. It is very rare, if at all, that one sees appeals on questions of costs having any success. Amendment 164 would remove both presumptions that the clause creates, replacing it with a general discretion, which my noble friend would like, for the court to award costs either for the intervener against a party or to require the intervener to pay the parties’ costs. That is the status quo.
Clause 73 has been criticised for being too broad and meaning that interveners could be expected to pay costs in any circumstances. Critics have said that that means that an intervener would not be able to intervene in important cases and provide assistance to the court, as the risk of adverse costs is too unclear and potentially too great. Under Clause 73, what amounts to exceptional circumstances will ultimately be set out in court rules. That will provide clarity for an intervener at the point where they are considering whether to intervene on the manner in which they should carry out their intervention or risk costs.
Clause 73 does not mean that in every case where an intervener is involved they will be forced to pay all the costs of all of the parties, but it is right that they have a fairer financial stake. All those with experience will confirm that, just as interveners can add value, they can delay and hinder and make arguments that simply amplify or repeat—
Lord Lester of Herne Hill
I am grateful to the Minister, and I apologise for intervening at this late stage, but I do not understand from his reply how he can cite cost saving as a justification for giving detailed instructions to the courts about matters that are well within their discretion. Nor do I understand why a different rule should apply to the Supreme Court from that applied in others or in Northern Ireland from that applied in England and Wales.
Lord Faulks
I think that I have answered my noble friend’s point on the difference between the Supreme Court and the courts at a lower level. On costs, as I said, with this clause we hope to deter inappropriate interventions and also to make interveners think about the scale of their intervention so as to reduce the costs for all parties, whether applicants or respondents, and to ensure that those interventions are relevant and genuinely assist the court.
These clauses apply to judicial review in England and Wales. Scotland and Northern Ireland have separate legal jurisdiction on this question because it is devolved, but of course if they intervene in a court in England and Wales that would be a different matter.
Interveners can also, as I think is accepted, make arguments that go beyond what is necessary. The changes that Clause 73 introduces reflect the Government’s intention of ensuring that they do so in an appropriate manner. We submit that the overall effect of the clause, while not drastic, will reduce the number of cases—and the noble Lord, Lord Pannick, says that there are very many cases where interventions take place—in which the taxpayer is expected to shoulder the burden.
That is what Clause 73 does and why the Government, having considered the issues, are of the view that the provision represents a sensible, workable and balanced position that takes proper account of the role of the judiciary, which will remain at the centre of this issue. Therefore, having provided an explanation of the Government’s thinking, I ask the noble Lord to withdraw the amendment, and I commend Clause 73 to the House.
Lord Pannick
I am grateful to the Minister and to all noble Lords who have spoken. This short debate has, I think, illuminated and emphasised just how bizarre Clause 73 is, because there is no dispute that interventions by third parties at all levels of judicial review assist the court by the provision of information. That is simply not in dispute.
There is also no dispute that interventions by third parties are already under the control of the court. They are under the control of the court as to whether they are allowed, on what grounds, and with what consequences on costs, having regard to the issues in the case. It is true, as the Minister says, that there have been more interventions in recent years, but that is only because courts find them helpful and have allowed third parties to intervene. If interveners act inappropriately —and I am not aware of any cases where this has occurred, with the exception of one possible case in the Appellate Committee, which, as it is now the Supreme Court, would not be covered by this provision in any event—the judge has ample power, at present, to order the payment of costs. That point was correctly made by the noble Lord, Lord Deben, who also rightly referred to the limited scope of the exceptional circumstances provision. The problem is that there is nothing exceptional about interveners assisting the court. That is what they normally do.
When an expert body is deciding whether to intervene and assist the court, it will know, if Clause 73 is enacted in its present form, that there is a strong presumption that it must pay the costs. The inevitable consequence is that it is unlikely to intervene. This will not achieve the Minister’s policy aim of, as he said, deterring inappropriate interventions; it will deter interventions, however helpful they may be to the court.
Clause 73 makes no sense whatever. It makes no sense, with great respect, to speak of a need to make interveners have a financial stake in the proceedings. The court has ample power to penalise them in costs. Amendment 164 will maintain judicial discretion in Clause 73, just as your Lordships have decided that judicial discretion should remain in Clauses 70, 71 and 72. I wish to test the opinion of the House.
Lord Ashton of Hyde (Con)
My Lords, in moving that further consideration on Report be now adjourned, and before those who are participating in the Bill depart from the Chamber, it may be helpful to confirm expectations of timings for the next items of business. The Leader of the House will shortly repeat a Statement on the EU Council. The dinner break business, in the name of the noble Lord, Lord Hunt of Kings Heath, will follow immediately after. I would urge noble Lords to monitor the business, as that for the dinner break is not time-limited. The Report stage of the Criminal Justice and Courts Bill will therefore start immediately after the conclusion of the dinner break business at, very approximately, 8 pm.
Consideration on Report adjourned.
EU Council
(9 years, 6 months ago)
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The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, with the leave of the House I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“Mr Speaker, yesterday British forces concluded their combat mission in Afghanistan. I know that the thoughts of the whole House will be with the friends and families of every one of the 453 British soldiers who lost their lives in this long campaign. We will never forget their sacrifice for us. When al-Qaeda attacked the twin towers in 2001 it planned that attack from Afghanistan, operating freely under the Taliban regime. Our incredible service men and women have driven al-Qaeda out and they have built up and trained the Afghan forces, none of which even existed in 2001, so that the Afghans can take control of their own security. I said when I became Prime Minister that I would bring our combat troops home. Today, they are coming home and we should be incredibly proud of all that they have done to keep our country safe.
With permission, I would like to make a Statement on last week’s European Council. Before turning to the issue of our contributions to the EU, let me first update the House on three significant agreements where the UK played an important role: on Ebola, on climate change and on the situation in Ukraine.
First, on Ebola, the world is facing one of the worst public health emergencies in a generation. Playing our part in halting the rise of this terrible disease is not just about meeting our moral obligations; it is also the single most effective way of preventing Ebola infecting people here in the United Kingdom. That is why Britain has been making such a major contribution to the international response, pledging more than £205 million, and sending troops and health workers to West Africa. However, it also means that Britain must use its influence to get other countries to step up their contributions, too.
Before the Council I wrote to all my fellow leaders, urging that we significantly step up our collective response. At the meeting, member states agreed to my proposal to more than double the EU effort by pledging more than €1 billion in assistance. The Council also agreed to increase the deployment of medical and support staff in the region and for member states to guarantee proper care for our courageous health workers.
Secondly, it is vital that Europe plays its part if we are to secure a global deal on climate change in Paris next year. One of the problems we have faced in the past is that instead of just setting a binding target on carbon emissions, the EU has set binding national targets on things such as renewables and energy efficiency. These diktats over how each country should reach its commitments can pile up costs on our industries, consumers and families who do not want to pay any more on their energy bills than they have to. They also create an unnecessary trade-off between cutting carbon emissions and promoting economic growth. At this Council, we have chosen a different path. We have reached a landmark commitment to deliver at least 40% reductions in greenhouse gases by 2030. We rejected any new binding national targets for renewables or energy efficiency, giving us full flexibility over how we reduce our carbon, allowing us to do so at the lowest possible costs for consumers and businesses. This is another example of where British leadership has helped the EU to step up and meet its international obligations, while at the same time protecting our national interest by keeping energy bills down for businesses and Britain’s hard-working families.
The Council also discussed the situation in Ukraine and relations with Russia. We welcomed the Minsk agreement between Kiev, Moscow and the separatists. However, the Council was also clear that much more must be done to implement that agreement before the EU should consider lifting any of the sanctions put in place in response to the conflict and in response to Russia’s actions. The Council welcomed the parliamentary elections that took place in Ukraine yesterday. It made clear that it would not recognise the outcome of any elections organised by the separatists outside the framework of Ukrainian law.
Let me turn to the issue over the UK’s contributions to the EU. I want to be clear with the House how the demand for the UK to repay money has come about and why the scale and timing of this demand is unacceptable. In an organisation like the EU, if your economy grows a little faster or a little slower, then there can be adjustments every year to the amount you pay. In some years the UK adjustment has been negative, as it was in 2008, 2009, 2011 and 2012. In some years we contribute a little bit more. This happens every year. When the UK is growing at 3% a year, and many European economies are growing much more slowly, it would not be surprising to find Britain being asked to pay a little bit more this year. What has never happened is for €2 billion to be demanded. This represents around 20% of our net contribution to the EU last year. Member states collectively are being asked to pay almost four times the highest gross figure requested in recent years.
It is simply not acceptable for the EU to make these kinds of demands, and to do so through a fast-tracked process lasting barely a month. Two billion euros is bigger than many countries’ entire gross contributions. It cannot just be nodded through by the EU bureaucracy as some kind of technical adjustment. It is British taxpayers’ money and it is not small change—it is a vast sum. So this has to be examined in detail and discussed properly. That is why I interrupted the Council meeting on Friday to seek an urgent resolution to this issue. I was supported by the Prime Ministers of Italy, Holland, Malta, Greece, and others. The Council agreed that there would be an urgent discussion with Finance Ministers to resolve this issue going forwards.
It is not just about the scale of the money being demanded; it is also the timetable. The Commission admits that it does not actually need this—indeed, the President of the Commission was not even aware of it on Thursday evening. So there is no pressing need for the money to be paid. There are fundamental questions over the fairness of these payments. For example, the proposal is for funds to be taken from the UK to correct historic contributions to the EU budget dating back to 2002 and to be redistributed based on the current share of gross national income to countries which only joined the EU in 2004 and 2007. It is not just Britain that would lose out. It is perverse that a country such as Greece, at the heart of the crisis in the eurozone, is being asked to find money to pay back to countries like Germany. The revised gross national income statistics on which these adjustments are based are also not yet finalised. The numbers are a ‘provisional estimate’ and the EU-wide process to quality-assure the figures will not conclude until well into 2015. So Britain will not be paying €2 billion to anyone on 1 December, and we reject this scale of payment. We will be challenging this in every way possible. We want to check on the way that the statistics were arrived at and the methodology that was used. We will crawl through this in exhaustive detail.
The events at last week’s Council will not—to use some British understatement—have enhanced the reputation of the European Union in the United Kingdom. As the Italian Prime Minister put it, ‘Even the EU’s founding fathers would turn to Euroscepticism when faced with some of the things that you’ve seen see here’. The European Union has to change. It has to regain trust. That starts by understanding and respecting the fact that these payments and adjustments are about the hard-earned taxes of its citizens. This is just one of the many challenges in our long campaign to reform the European Union. It is vital that we stick to the task. We have already cut the EU budget, got Britain out of the bail-out schemes, vetoed a treaty that was not in our national interest, made vital progress on cutting red tape and completing the single market, and we are leading the push for what will be the biggest bilateral trade deal in history, between the EU and the US.
None of this is easy. Progress is hard-won. It requires perseverance and hard work. We will carry on defending our national interest and fighting with all we have to reform the EU over the coming years. At the end of 2017, it will not be the Brussels bureaucracy or the politicians of any party who will decide whether we remain in the European Union or not. If I am Prime Minister, it will be the British people who make that decision through an in/out referendum. Others who aspire to this office and who refuse to give the British people their say should explain themselves to this House and the country. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Royall of Blaisdon (Lab)
My Lords, I am grateful to the noble Baroness, the Leader of the House, for repeating the Statement given by the Prime Minister in the other place.
Let me begin by echoing the words of the Prime Minister about the contribution of our Armed Forces in Afghanistan. On these Benches, as in the rest of the House, our thoughts are with those who have served our country and the families of those who have lost their lives. Britain’s commitment to Afghanistan will continue beyond the handover of Camp Bastion. We must continue to support the Afghan Government through both political and humanitarian aid as well as in our training mission. Every one of our troops who served in Afghanistan can take pride in both their mission and in what they achieved, and our whole country is proud of them. I also echo the Prime Minister’s words about Ukraine and support for its Government.
On climate change, we welcome the climate and energy package, paving the way for the global UN summit in Paris next year. What action will the Government be taking in the coming months to encourage other countries, particularly China and the US, to agree a more ambitious target, sending a clear leadership signal to all countries in advance of the summit next year? Specifically, why was the energy-saving goal watered down from the Commission’s recommendation of 30%? All opportunities must now be taken to strengthen these elements of the package over the coming months.
I turn briefly to the Ebola crisis in west Africa. The whole world has been horrified by the devastating scenes in West Africa, and our hearts go out to the communities that are confronting this threat on a daily basis. We welcome the UK’s efforts to help affected countries. We are proud of the work of our Armed Forces, our health professionals and our aid community. I welcome the fact that the Statement said that member states agreed to increase the deployment of medical and support staff in the region.
I turn to the EU budget change. The Commission’s handling of this matter has been cack-handed and unacceptable and, as the noble Baroness said, has caused consternation in a number of other member states. The urgent priority now is for the Government to pursue all diplomatic means to get the best deal for Britain. We are bound to wonder if they have done due diligence in their handling of what one might term a fiasco. The Prime Minister says that he was made aware of this matter only on 23 October, and the Chancellor said that he had no warning. However, that is simply not the case. These changes to the budget arise from changes to estimates of gross national income, or GNI. Can the noble Baroness confirm that the Office for National Statistics agreed to, and has been part of, the substantial and planned changes to GNI across Europe for the past two years, since 2012? Can she further confirm that the ONS stated publicly in May 2014 that these changes would impact on our budget contribution? It said in its press release:
“GNI … is used in the calculation of a Member State’s contribution to the EU budget”.
Clearly, the Treasury was aware of this. My right honourable friend the leader of the Opposition quoted in another place from a letter from the then Economic Secretary to the Treasury, the right honourable Member for Loughborough, who wrote to the parliamentary committee on Europe a full seven months ago on 11 March. In her letter she said that changes to GNI were going to take place in time for 2014, and wrote about the high priority that the Government were giving to addressing them.
So these changes were planned for a number of years, the ONS publicly declared that they would impact on our budget contribution, and Ministers knew about them and claimed that they were a high priority. Are there any further budgetary adjustments coming down the line that will affect any amounts due or owing—adjustments that are currently not in the public domain? I think that we deserve to know.
It is hard to see how the Prime Minister can maintain his assertion that there was no warning and that Treasury Ministers knew nothing about these changes. Surely the Treasury must have made its own estimates of the impact on the EU budget that would follow. The reason why this matters is that in our view the Prime Minister could have done much earlier what he did at the last minute on Friday when he called for a meeting of Finance Ministers and entered negotiations about this demand. I think we would all be interested to know how he plans to go ahead and sort out this fine mess.
It is clear that the Prime Minister spends all his time negotiating with his party about Europe, when what he should be doing is negotiating with our partners in the rest of Europe about a reformed Europe and getting a better deal for the British people in the European Union. It is the British people who are paying the cost for the Prime Minister’s focus on his party rather than working in the best interests of the country.
Baroness Stowell of Beeston
My Lords, I am grateful to the noble Baroness, Lady Royall, for her comments in response to mine on Afghanistan and Ukraine.
In starting my response to the points that she has made, it is important for me to make it clear that the Prime Minister played a leading role in Brussels last week on climate change and Ebola, two very important matters on the agenda at the Council meeting. He achieved very good results that were good for Europe and for the United Kingdom; they felt right and they felt fair. This is in stark contrast to the way in which the previous Government approached some of the negotiations on matters such as climate change in the past. The same cannot be said, though, in terms of it being right or fair, when we consider what happened on the EU budget surcharge.
Taking the questions that the noble Baroness put to me, and starting with climate change, the target of at least a 40% reduction in carbon emissions has been described as ambitious, but it is a very sensible one. The way that we are approaching this, in not having the subtargets as binding agreements on member states, is very important. However, we are now in the best possible position to push our international partners, such as America and China, to bring forward ambitious climate pledges to reach a global deal next year.
On Ebola, the noble Baroness was right to say that the Prime Minister succeeded in ensuring that we attracted a financial commitment from member states, so Europe as a whole now will be contributing €1 billion to fighting Ebola. However, it is not just about the money; we also got a commitment that other European member states will help with their healthcare workers and ensure that they travel to affected countries. This is something that we need to continue to apply pressure on and ensure that we all do our fair share in ensuring that Ebola is properly tackled out there in west Africa.
As far as the budget is concerned and the points that she made about the surcharge, I do not think that it is right to focus on who knew what and when. What people really care about is how much is being demanded and the fact that this amount is unprecedented in the level that is being sought by the EU. It is true to say that there is a process every year that is standard in calculating these contributions, but it has never led to the kind of demand that we have seen on this occasion. Importantly, with regard to the level that the UK is being asked to contribute, no member state will know what amount it is being required to contribute in terms of its net contribution until it is clear what amount the EU is going to return, having identified what the countries’ gross contributions are. It is the net contribution that is key in this context, and it is that net contribution that the Prime Minister has made clear is absolutely unacceptable. He has made it clear that the way in which the European Commission has behaved in going about this process is not right, and that is something that we will ensure is properly addressed in the way in which the Prime Minister has described today.
Lord Wallace of Saltaire (LD)
My Lords, we now have 20 minutes for questions on the Statement. I remind noble Lords that it is not a short debate. Noble Lords are asked to keep their questions short so as to enable others to follow.
Lord Hamilton of Epsom (Con)
My Lords, does my noble friend accept that it is quite acceptable for the EU to want to recalculate the basis for calculating gross national income? However, why does this tax have to become retrospective? Can she explain to us why this has to be a retrospective exercise? Why is it not just being taken forward from here, if we get the agreement of Ministers, with the tax applying in the future, not the past?
Baroness Stowell of Beeston
My noble friend has highlighted one of the issues that we have to explore in greater detail in the process of talks that will start in the emergency discussions between Finance Ministers later next week.
Lord Tomlinson (Lab)
My Lords, I think we can all agree that the figures that have been produced need to be pored over in the greatest detail and justified, if they are justifiable. However, we have all read in recent days and weeks about the domestic changes that we have made to the calculation of GNI. I ask the Minister —as the Government seem to have been quite coy about this—whether, in the recalculation of GNI, we have included two service industries that have not been included previously, one of which is the illegal drugs trade and the other prostitution. If that is the case, what was their contribution to the increase in GNI and are we in fact the victims of our own success in boasting about the growth of GNI?
Baroness Stowell of Beeston
There is a lot of talk going on at the moment and many suggestions are being made. People are trying to complicate yet further something that is already incredibly complex. As the Prime Minister has been emphatic in saying, this is a standard process that happens on an annual basis. The UK expects to play its part in this process in the way it has done in the past. What has not happened before, but has happened this time, is this kind of demand being made at this sort of level. We need to understand the detail before we can go any further forward on this matter.
Baroness Falkner of Margravine (LD)
My Lords, I associate myself with the Prime Minister’s remarks on the drawdown from Afghanistan in offering our deepest support for the 453 men and women who gave their lives in that cause. I also say to the Minister that we must not forget the many thousands who have been injured and maimed and who continue to live. We must remember our obligation to them as well.
On the EU budget contribution, does the Minister agree that since these reservations, voiced by Eurostat, go back to 2002—indeed, I understand that there were six reservations—they would have been known about by the Labour Government in all the years since 2002, and that the statistics that needed to be looked at have not come out of the blue for either side? Will she tell the House whether the emergency Finance Ministers’ meeting on 7 November will hold bilateral discussions with the other eight states that are similarly affected in order to build a consensus that this cannot go down the route which the Prime Minister is resisting and which they are trying to make him take? Will she also tell the House whether I am right to say that the amount sought is 0.01% of GNI?
Baroness Stowell of Beeston
My noble friend is right to remind the House that in the context of Afghanistan we must also remember those Armed Forces personnel who were very badly injured through their service on our behalf in that country. I am grateful to her for reminding us of that.
On her point about bilateral conversations on 7 November, I do not have the detail about the way in which the meeting and the conversations are going to be constructed that day. However, it is important for us to be clear that other member states are affected by this and that they feel as strongly as we do. The Italian Prime Minister has it made clear, as he said when he was talking about the demands put on some member states by the surcharge, that this is not a figure but a lethal weapon. On my noble friend’s specific point, I may have to write to her if I am not able to give her an answer during the course of answering the Statement.
Lord Kerr of Kinlochard (CB)
Will the Minister confirm that the GNP funding stream was invented here in London, was introduced 20 years ago and has worked extraordinarily well for this country in comparison to the old VAT-based stream? Will she also confirm that the reason the sums are large is that the refund to those who have overpaid is a multi-year refund, covering up to 20 years? Furthermore, will she confirm that for the United Kingdom to refuse to contribute to those who have overpaid would be illegal, unreasonable, unwise and unjust?
Baroness Stowell of Beeston
As I said in an earlier response, the Prime Minister is clear that this demand, and the scale of it, have come out of the blue without any proper preliminary discussions. We now have to consider it very carefully and in great detail, and that is what we are going to do.
Lord Pearson of Rannoch (UKIP)
My Lords, in all the hullabaloo about yet another £1.7 billion of our taxpayers’ money going down the drain in Brussels, I notice that the Statement fails to mention a brilliant new spending spree to which the Council agreed—a mere €300 billion over 2015 to 2017. However, the Council conclusions mention it on page 10, where it is referred to as the,
“Strategic Agenda for the Union in Times of Change”.
Can the Minister tell us what the UK’s share will be of this new €300 billion and when we will pay it? Presumably we are looking at about another €30 billion or so over the next two years. Can she also tell us whether the Prime Minister was a party to this further lunacy or whether he was outvoted?
Baroness Stowell of Beeston
The package to which the noble Lord refers is the new investment package that the new Commission is proposing for the eurozone. Clearly, if it is the eurozone, that does not include the United Kingdom.
Lord Howell of Guildford (Con)
My Lords, is not the real and deeper lesson of this whole budgetary saga that the European Union administration is struggling to cope with a 20th century, highly centralised EU model in 21st century conditions that are completely different and in which these heavily centralised provisions no longer operate or are even necessary? Are the Minister and the Prime Minister not right to focus on the need for fundamental reform, such as many people throughout Europe, as well as many Governments, are calling for, and on winning the allies to build up a course for a better European Union that will fit 21st century conditions?
Baroness Stowell of Beeston
My noble friend is absolutely right. That is what the Prime Minister is seeking to do and he is attracting a great deal of support from other member states in reforming the European Union, because it is clear that that is what needs to happen.
Lord Davies of Stamford (Lab)
My Lords, the Prime Minister is putting it about that there is nothing he could have said or done about this until he knew the full details, which happened only on Thursday, and the Minister has been trying to defend him on that basis. However, is that not complete and obvious nonsense? It has been known for many months that these negotiations were continuing between Eurostat and the ONS. Anybody half awake would have known that, even if the recorded growth discrepancies in any one year were fairly small, resolving the whole matter by a single payment could amount to paying a very considerable cash sum. All that the Chancellor and the Prime Minister had to do was simply to follow carefully, via the ONS, how the discussions were proceeding to see whether that danger was materialising. They monumentally failed to do that: they took their eyes completely off the ball and have no one but themselves to blame for the surprise that they found on Thursday and Friday.
Baroness Stowell of Beeston
I know that the noble Lord follows European matters quite closely but, from what he has just said, he is clearly not familiar with this process, which happens every year. Each country puts forward the calculations of its own measures and then the Commission has to look at each country’s submissions alongside one another. It then proposes what will be refunded in the light of that. No nation state will know the net payment until the last minute. That is why all of the nation states that were affected by this dramatic increase were as surprised as Mr Cameron.
Lord Hannay of Chiswick (CB)
Will the Minister not agree that it is sad that we should be welcoming, as I welcome, the three points on which the Council made great progress with British leadership—climate change, Ukraine and Ebola—but yet again we are caught up in one of these kerfuffles? Would the noble Baroness not accept that, frankly, to suggest that the Prime Minister only heard about this from the British Permanent Representative in the car on the morning of the meeting, when the matter had been notified by the Commission about 11 months ago and had been agreed with various emanations of the British Government in the summer, is not credible? There was a slip-up somewhere and the Prime Minister was not properly briefed; that is surely the truth of the matter.
Given the point of the noble Lord, Lord Kerr of Kinlochard, about the great benefit to this country of the switch from TVA to gross national income calculations from the time of the Edinburgh European Council in the 1990s onwards, would it not be helpful to the House if the noble Baroness were to let us have the Treasury calculation of just how much Britain has benefited over the years from having a GNI calculation? It is surely also important to recognise that the EU is not the only organisation that works in this way. The United Nations assessed contributions are based on GNI calculations; no doubt our GNI contribution will go up a bit as a result of the success of the Government’s policies. This is the normal way in which these organisations work. Should we not be a bit calmer about it?
Baroness Stowell of Beeston
I have tried to make it clear, both in the Prime Minister’s Statement that I have repeated and in the responses I have given to points made today, that the Prime Minister has been very active in taking a leading role in Europe, both on the specific agenda items that I have talked about and in saying that we believe, as do others, that the European Union needs to reform. The Prime Minister is absolutely clear that there are real benefits to this country from being in Europe and he has spoken loudly about those benefits.
However, the situation in which we find ourselves with the budget on this occasion cannot be as the noble Lord describes. Why are other European leaders also surprised to find themselves in receipt of a big bill, as the UK was last week? I will see whether there are any specific further data that I can share in response to the noble Lord’s point, but I say to him that people in this country see the benefit of Britain’s place in Europe. They see that it has an important place in achieving some important international objectives, whether about Ebola or climate change. However, those successes and important advances do not come at any price. The way in which the European Union sometimes behaves and operates means that it lets itself down in the eyes of the people who have to fund its membership.
Lord Forsyth of Drumlean (Con)
My Lords, does my noble friend not agree that what the noble Lord, Lord Hannay, describes as a “kerfuffle” is about £1.7 billion? We have not got any money. We are borrowing money in order to pay our bills. Surely the point is that the European Union is spending too much. It simply cannot issue continuing demands as it has and argue that that fits some formula or other. Will my noble friend note that the Opposition have singularly failed to indicate whether they would pay this money or not? The truth is that they are a pushover as far as this is concerned. Is my right honourable friend the Prime Minister not right to try to get the European Union to put its house in order and live within its means, as everyone else has to do?
Baroness Stowell of Beeston
My noble friend is absolutely right on every point. I would add that we should remember that it is not clear for what purpose the European Union needs this extra money, and that this is an organisation whose accounts have been qualified for many years.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
The noble Lord was not here for the beginning of the Statement.
Baroness Royall of Blaisdon
My noble friend was not in the Chamber. It is not appropriate for him to speak.
Lord Dubs (Lab)
My Lords, I pursue the point of my noble friend Lord Tomlinson because I was a bit puzzled by the answer. To what extent has the increase in GNI been caused by estimates for drugs and prostitution? Is this the first time that we have done that, and how large were those figures? Above all, were they accurate? Are we not, in fact, making it difficult for ourselves by adding in such figures in such a way that we are then being hit on the head by Brussels?
Baroness Stowell of Beeston
The noble Lord is focusing on the wrong thing. What is vital is that we have been presented with a massive bill which is wholly unacceptable and have been given a wholly unacceptable timeframe in which to pay it.
Lord Lawson of Blaby (Con)
I think that the noble Lord has already had a go. Is it not the case that the agreement on climate change, happily, does not amount to a row of beans? The official conclusions say that,
“all Member States will participate in this effort, balancing considerations of fairness and solidarity”.
In other words, there is no target for any individual member state, and I commend the Government for having made it clear that energy policy is the responsibility of member states, not of the European Union as a whole, so it does not mean anything.
Is not the fundamental question of the contributions a problem? While the late Lady Thatcher succeeded in securing a substantial improvement in the net contribution which we paid, not only was that net improvement insufficient to do us justice but the previous Labour Government also gave a large part of it away in exchange for a promise of reform of the common agricultural policy, which has not happened. This is why the issue is so sensitive. We already pay more than our fair share into the European Union budget.
Baroness Stowell of Beeston
My noble friend is absolutely right to point out that the previous Government gave away our rebate, to the tune of £2 billion. That has really affected the demands that Europe makes on our budget.
On my noble friend’s point about climate change, I certainly disagree with his description of what has been agreed in Europe on emissions reduction targets of 40%, but I say to him and the House that the way in which we have reached that agreement is different from the way in which previous Governments did so. We have made sure that we are able to retain flexibility in this country and are able to deliver on these targets in a very cost-effective way.
Lord Soley (Lab)
Will the Minister accept that there are a number of people besides myself in this House who would like a clearer answer to the questions asked by the noble Lord, Lord Kerr, who has great experience and knowledge of these matters? I would be grateful if she could look at them in Hansard tomorrow and put answers of some type in the Library. They are important. I know that they are complex, and I am not necessarily saying that she ought to have the answers at her fingertips, but I would like to hear them.
Finally, as long as the Prime Minister keeps giving into and appeasing those in his party who want to take us out of Europe, sooner or later they will push him into a corner, where he will have to abandon that appeasement. Frankly, he needs to stand up and fight for whatever it is that he believes in.
Baroness Stowell of Beeston
On the question asked by the noble Lord, Lord Kerr, and reinforced by the noble Lord, Lord Hannay, as I have already said, I will see what it is possible for me to provide by way of a written answer. As to the noble Lord’s broader point, I restate that the Prime Minister is absolutely committed to securing good reforms in Europe. He is approaching this in a very constructive way because he wants to see a Europe that works properly for the people of Europe. That is what he will succeed in achieving. When he has done that he will hold a referendum in 2017 in which people will have the final say.
Care Quality Commission (Reviews and Performance Assessments) Regulations 2014
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Hunt of Kings Heath
That this House regrets that the Care Quality Commission (Reviews and Performance Assessments) Regulations 2014 include no provision for the regular assessment of performance by clinical commissioning groups and local authorities in the commissioning of health and social care and of the NHS Commissioning Board in relation to specialty commissioning (SI 2014/1788).
Lord Hunt of Kings Heath (Lab)
My Lords, the statutory instrument that we are debating tonight arises from an amendment that the Government sought parliamentary approval for during the passage of the Care Bill in 2013 and 2014. That amendment related to the scope of periodic performance assessments to be undertaken by the CQC and the method by which such reviews are to be devised and will allow an aggregate performance rating to summarise and compare the performance of organisations or the services provided. It is for the CQC to devise such quality standards and methodology in consultation with the Secretary of State and those key stakeholders that the CQC considers appropriate. The scope of those performance assessments is set out in these regulations, which by virtue of Regulation 1 will come into force on 1 October this year. That means that the CQC will be under a duty to undertake performance ratings of those registered service providers and regulated activities that such providers carry out, as prescribed by Regulation 2 and the schedule to these regulations.
I remain somewhat sceptical of the ability of the CQC to place such huge organisations as hospitals in one of only four categories. The Explanatory Note to the SI refers to work commissioned by the Secretary of State on the use of aggregate ratings of providers. This is not the first attempt at performance ratings, but the fascinating piece of work produced by the Nuffield Trust and commissioned by the department has a number of warnings on this. The trust says in its report:
“A rating by itself is unlikely to be useful in spotting lapses in the quality of care”,
particularly for services which “complex providers like hospitals” give.
“It is here that the analogy with Ofsted’s ratings of schools breaks down. Hospitals are large, with many departments and different activities, seeing large numbers of different people every day, carrying out complex activities, many 24/7, and in which people are sick and can die. Put another way, the risks managed by hospitals vastly outweigh those managed in schools. For social care providers the risks may be lower, but many are still dealing with frail, ill and otherwise vulnerable individuals”.
Its conclusion is that,
“unless there is a ‘health warning’ on a rating to clarify to the public what it can and cannot say about the quality of care, there is an inevitable risk that the rating (and the rating organisation) will be discredited, as lapses occur in providers scored as ‘good’ or ‘excellent’”.
It says that it will be just a matter of time. In summary the Nuffield Trust concluded that,
“the overall approach to ratings should allow complex organisations to be assessed at different levels and to promote service-specific ratings where possible, particularly in the case of hospitals”.
I would be grateful if the noble Earl could comment on this, particularly on how he considers the rating outcomes of individual providers are to be communicated to the public in an understandable way that none the less pays due regard to the complexity of the ratings so well described by the Nuffield Trust.
My real objective in bringing these regulations before your Lordships’ House is not so much what is in the statutory instrument as what is not. I go back to our debates during the passages of both the Care Bill and the Health and Social Care Bill in 2012. The noble Earl will know that I have expressed considerable concerns about the fact that the way in which clinical commissioning groups and local authorities commission services is no longer to be subject to regular review, audit and, indeed, rating by the CQC. During the passage of the Care Bill only a few months ago we discussed concerns about the quality of local authority commissioning of care services in the context of the scandal of 15-minute visits and zero-hours contracts. We argued then that the CQC should undertake regular inspections of local authority commissioning performance.
I suggest that the same goes for clinical commissioning groups in the National Health Service. When we debate NHS issues the noble Earl frequently—indeed, consistently —refers to the importance of commissioning. Whenever he is pressed on problems or gaps in services he has put his trust in more effective commissioning. However, it is very difficult to see how the performance of commissioners is properly assessed and held to account in the current structure. The noble Earl has previously argued that we should rely on such things as CCG outcome indicators, backed up by scrutiny from local Healthwatch. I think that that is a pretty weak response. So far there is scant evidence to show that this is effective. I am sure we would acknowledge that often when things go wrong in a health system it is a failure of the system—of course of the providers giving the services, but also of commissioners and, indeed, local authorities. Let us take the four-hour A&E target, which is proving to be a major challenge up and down the country. There will of course be issues in the organisation of the hospital itself, but there will also be issues around the organisation of primary care, the way in which services are commissioned and the ability of local authorities to ensure that there are specific and sufficient facilities in the community for when patients are discharged from hospital.
It is a matter of regret that the CQC, as the primary regulator on quality and standards, is no longer concerned on a regular basis with the performance of local authorities as commissioners, and with clinical commissioning groups. It is true that the CQC has the power to conduct special reviews where concerns have been raised about a particular commissioner. I do not know whether that has happened yet—maybe the noble Earl will be able to tell me—but it seems to me that that is not anywhere near sufficient.
I also want to discuss the position of NHS England. The noble Earl will know that, although the original changes brought about by Mr Lansley were designed to hand over nearly all the commissioning budget to clinical commissioning groups, a rather substantial amount of money was ultimately retained by NHS England for commissioning of specialist services. It would be fair to say that NHS England’s performance on that has given cause for concern. The noble Earl will be aware that the budget for specialist commissioning is hundreds of millions of pounds overspent. In essence, we had an out-of-control budget and the board of NHS England seemingly unaware of what was going on. If an NHS provider had performed so lamentably its board would have been sacked, and rightfully so. I ask the noble Earl how the board of NHS England has been held to account for its lamentable performance relating to specialist commissioning. Have sanctions been applied? At the very least, should the CQC not assess NHS England’s commissioning performance?
In our previous debate on NHS England, the noble Earl informed us:
“NHS England has its own governance processes in place, including the development of the direct commissioning assurance framework to demonstrate that it meets the standards required. As this is developed further, elements will be introduced to bring external scrutiny to its board and function”.
He also said:
“Ultimately, NHS England is held to account by the Department of Health for its commissioning activity against its delivery of the priorities set in the mandate”.—[Official Report, 21/10/13; col. 813.]
I am sure the noble Earl thought that they were comforting words, but how on earth does this apply to the debacle over specialised commissioning? To my knowledge, that has still not been properly resolved.
I am not convinced that the Government have the right approach to commissioning. If commissioning in the health service and in local government is as important as the Government say it is, surely it is in the public interest that the CQC should take a much stronger role in checking and rating the performance of commissioners, and indeed of health and care system performance generally. I hope that this leads to a good debate. I beg to move.
Baroness Wall of New Barnet (Lab)
My Lords, I support in principle the wording of the business that we are dealing with, particularly the emphasis on regular assessment of other than the provider trusts. I share with the House and the Minister why I now feel that that is even more important. I declare an interest as chairman of Milton Keynes Hospital NHS Foundation Trust. Just last week, we were inspected by the CQC. Obviously, we do not yet know the outcome of that. The CQC was with us for four days and there were 40-odd people there.
As the noble Earl is aware, I have been very supportive of the CQC and share his aspirations for it. To be honest, our inspection was extremely thorough. We have to wait with bated breath for the outcome, but the enthusiasm, what was described as the buzz around the hospital and the way that people felt strongly about the services that they were giving made a huge difference to the whole thing. I am only three months into that trust, but this was not about preparing for the CQC; it was about the culture of the organisation and wanting to improve. I hope that the CQC comes back with recognition of that, whatever the outcome might be.
The inspection was carried out under the new way of doing things, which I think is great. There were many more people across all the spectrums of our services, at a professional and clinical level. That was superb. The reporting back every night was very good and helpful to the chairman and chief executive. All that felt good and thorough, which is what it is all about. I agree with my noble friend’s view about extending that for the very reason that he just gave. The importance of that inspection to the outcome for our patients was absolutely paramount, regardless of what the outcome might be in terms of the grading or level of assessment we might be given. But without that thoroughness and rigour, particularly with the CCGs, who are the ones making decisions about our services, with the GPs who run them—unless there is a deep dive, as we would call it, into any other part of the health service—the gaps that are still a worry for us may remain.
In particular, my noble friend Lord Hunt said that there was an issue around local authorities. All trusts are struggling terribly with A&E. There are many reasons for that, as my noble friend has said. But one of the big reasons is the lack of rigour in social care and local authorities’ commitment to or understanding of the role that they play. From the experience that we have had over the past week, I believe that this is not a threat to people: it is empowering for them to have the CQC in there, ensuring that the rigour that they are supposed to apply to their work is there and that the role they play in patients’ experience really makes a difference. I urge the noble Earl to consider this opportunity yet again. We made a decision in the Care Act, which I think even more now is really a mistake from which we need to move on. I do not share the cynicism of my noble friend, but I share the concern about whether the CQC can embrace all that.
The investigation into my trust was supported, as I understand it, by far more clinicians than ever before and far more people had a much greater knowledge of the health service. If the CQC can continue to develop in that way, I believe it is in its interest—and, more importantly, in our patients’ interests—that those commissioning groups go wider and deeper into other than the provider trusts.
Baroness Barker (LD)
My Lords, I spent a happy weekend making a start on the 500 pages of regulations that have been issued under the Care Act. What can I tell noble Lords? I am living for pleasure alone. I regard this Motion as the first of many to come our way.
I thank the noble Lord, Lord Hunt, for the opportunity to go back to some of the discussions that we had during the passage of the Bill, particularly on commissioning. We had long debates about commissioning and the extent to which it did or did not impact on services. We also talked at considerable length about the differences between the commissioning of healthcare in the NHS and commissioning in social care. In these regulations, we are beginning to see some attempt to have proportionate and slightly different attitudes towards commissioning in both those settings. I would like to see us taking a more proportionate look at commissioning across the board. To a certain extent, these are the first of the regulations that begin to do that.
We also had extensive discussion about whether performance ratings should be specific to particular services within hospitals or whether they should go across the piece. My recollection, informed quite often by people with valuable experience such as the noble Baroness, Lady Wall, was that there would be a lot of data generated in hospitals, particularly clinical governance data, which would be there to inform one’s opinion about a particular service in a hospital. However, what would have been missed, and what was missed so spectacularly in Mid-Staffordshire, was the across-the-board bad management practices throughout a hospital that undermined patient care. That was why we ultimately took the decisions that we did about the nature of performance review.
I want to pick up two particular issues that are brought to the fore by these regulations. I notice that prison healthcare has been exempted. I understand that there is a sense in which the NHS or the CQC would be able to look at the performance of only a part of prison healthcare. But prison healthcare is, in terms of mental health, addiction services and so forth, becoming much more important. There is a much clearer focus on the amount of ill health that people have within the criminal justice system. I want to be sure that we are not enabling those prison health services to escape proper scrutiny.
My final question to the noble Earl is more fundamental. We had extensive debates during the passage of the Care Bill about the right of entry for those people who are involved in carrying out performance reviews and the extent to which the people responsible for them should be able to go into any service to assure themselves that those services are safe and the people within them are not being abused. I do not see anything in these regulations that gives comfort to those of us who believe we took the wrong decision during the passage of the Bill and that, as a consequence of our failure, there may well be people in health and social care settings who are being abused at worst or ill treated at best.
Baroness Wall of New Barnet
I thank the noble Baroness for giving way. In response to her comments on nurses and hospitals, she is absolutely right. I emphasised the clinical stuff. However, the CQC interviewed everyone on our board: the non-executive directors, me—as chairman—for an hour and a half, and all our executive directors. It interviewed not just the clinical staff but the whole of the trust to make sure that we all understood what we were doing in the job we are employed to do.
Baroness Barker
I thank the noble Baroness for that. I trust that if the CQC was doing its job, it would really go to the seat of power in a hospital and interview the porters.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, this has been a useful debate. Although the Motion to Regret moved by the noble Lord, Lord Hunt, relates to regulations which, as he said, cover a certain area of the CQC’s activities, I note his broader questions and will come to those.
These regulations set out which health and adult social care providers will be rated following inspection by the Care Quality Commission. They came into force at the beginning of this month. However, it is clear that the noble Lord’s main concern is not so much about the regulations, although he did query aspects of them and I will address those in a second. I think—or, at least, I hope—that there is a good deal of agreement between us about the way in which the CQC now approaches its task of assessing service providers. The noble Lord’s concern lies largely around the accountability arrangements for commissioning. I will begin by setting out the purpose of the regulations and summarise the considerable progress that the CQC has made in inspecting and rating service providers.
Noble Lords will recall that the Care Act put in place a new system of reviews and performance assessments of providers to be developed by the CQC. The regulations referred to in the Motion specify which providers will be rated by it. They cover NHS hospital trusts and foundation trusts, general practices, independent hospitals and providers of adult social care. The CQC has set out its approach to inspection and ratings in a series of handbooks for each regulated sector. Each service is judged against a number of key questions: is it safe; is it caring; is it effective; is it responsive; and is it well-led? The CQC produces a rating against each of these areas at both location and provider level.
This new system is providing information about the quality of care that goes beyond mere compliance with minimum standards. This information is of value to patients and service users, to commissioners and, of course, to the providers themselves. The noble Lord, Lord Hunt, referred to the comments of the Nuffield Trust around hospital ratings and questioned how such ratings could be communicated to the public in an understandable way. We have committed the CQC to publishing clear, authoritative ratings of providers. Not only are these ratings broken down into the five key questions about services that I have just referred to, but the CQC has also published, where it has been possible, ratings of specific hospital services. The CQC is under an obligation to consult on the development of its ratings methodology. It has done so, and will continue to do so as its methodology grows more sophisticated over time. I completely take the point that ratings must be robust and stand up to scrutiny, but the CQC’s view is that it is more than possible to construct indicators that are genuinely representative of an organisation’s performance.
The CQC has made rapid progress on developing and implementing the ratings system. It has already published more than 130 ratings of NHS providers, and has recently published the first ratings of adult social care providers. Over the next few years, it will inspect and rate every provider that is covered by the regulations. Noble Lords will recall the debate we had last year on whether the CQC should also carry out routine inspections of commissioners. The CQC’s primary purpose is to regulate service providers and the Care Act clarified this by removing its power to carry out periodic reviews of commissioners of both health and adult social care.
Some providers argued that the system we were putting in place left them solely accountable for failings in care that could have some of their roots in commissioning decisions. I listened carefully to the comments of the noble Baroness, Lady Wall, and the noble Lord, Lord Hunt. I accept that there is a link between commissioning and quality of care and that, in some instances, it would be appropriate for the CQC to review commissioners. We have therefore maintained a power for the CQC to carry out special reviews of commissioners under Section 48 of the Health and Social Care Act 2008. However, this will be used only where there is clear evidence that failings in commissioning are leading to poor care for patients and service users and it is subject to the approval of the relevant Secretary of State. Let me be clear: where it is justified by the circumstances, the CQC will be able to inspect commissioning.
Although the CQC is not routinely reviewing commissioning, there are other arrangements for the oversight of commissioners. The noble Lord, Lord Hunt, asked me whether any special inspections of commissioners had happened yet. The answer to that is no in relation to local authorities’ commissioning of adult social care, but the CQC is undertaking a special review of children’s safeguarding in Doncaster. I understand that this review will look at both the provision of services and their commissioning by the local NHS. The review is due to be published in the coming months.
For adult social care, the Care Act puts in place clear duties on local authorities to have regard to the importance of ensuring the sustainability of the market as a whole in order to meet the care needs of local people. Last week, my department published statutory guidance for local authorities as part of a package of secondary legislation which implements the Care Act. This includes a chapter on commissioning and market shaping. Furthermore, the Local Government Association and the Association of Directors of Adult Social Services will shortly publish a set of new standards for commissioning services that has been produced with stakeholders. These standards will provide clarity on what good quality commissioning looks like. They will build on best practice and encourage councils to conduct more thorough self-audit and peer review in order to move towards excellence, covering, for example, commissioning for outcomes, integrated commissioning and workforce issues.
Where local authorities struggle to meet these commissioning standards, they are able to seek support through a system of sector-led improvement. Where a need has been identified, a variety of improvement support can be offered. This may include advice and visits from peers in high performing local authorities; mentoring and leadership training for councillors and officers; and bespoke support from national experts. This approach has been developed in partnership with local government partners in order to improve local authorities’ performance and capabilities. It supports local authorities to take responsibility for their own performance and drive improvement, developing a system of performance management by councils for councils. Sector-led improvement is based on the principles that councils are primarily accountable to their local communities; they are responsible for their own performance and improvement; and they have a collective responsibility for the performance of the sector as a whole.
Turning to commissioning of NHS services, NHS England is responsible for the performance management of clinical commissioning groups and has a statutory duty to carry out an annual performance assessment of each CCG. NHS England must be assured that commissioners are acting efficiently and effectively on behalf of local patients. Using the principles set out in the CCG assurance framework, NHS England supports and challenges CCGs to meet the needs of their local population. The assurance process is informed by robust and diverse sources of evidence, including the CCG outcomes indicator set and a detailed delivery dashboard.
Where concerns are identified, improvement actions are agreed. NHS England has broad powers to ensure that these improvements are made, whether this is through the provision of support and advice or by taking action when a CCG is at significant risk of failure. Examples of the support that can be made available are advice and expertise, facilitating peer review and partnership with other CCGs, or the brokering of conversations between CCG and providers by the area team.
The CCG assurance process has so far worked well. NHS England’s year-end CCG assurance assessment for the year 2013-14 showed that 210 out of 211 CCGs were assured, with 132 receiving some support to improve in particular domains of the assurance framework. An NHS England-commissioned survey of stakeholders, including local health and well-being boards, Healthwatch and patient groups, found that 68% had confidence in CCGs to commission high quality services.
The approach taken in this first year rightly focused on developing the capacity and capability of CCGs, as relatively young organisations, building on the domains which were the foundation of CCG authorisation. This focus on developing the organisational health of CCGs has meant that, as of July 2014, only 13 CCGs still have conditions or directions remaining in relation to their authorisation, compared with 153 CCGs initially authorised with conditions. In one case, a CCG was not assured and NHS England has put legal directions in place to improve its performance. As intervention is the element of the assurance framework which most affects CCG autonomy, careful consideration is, of course, required before NHS England will take this course of action.
Assurance ratings are based on the area team’s assessment of the level of the CCG’s insight of the identified issues and its willingness to take the necessary steps to improve. In cases where serious concerns arise, NHS England has shown that it will take necessary and appropriate intervention action. These legal interventions can take many forms, such as directing the CCG how to perform a certain function or asking another CCG to perform that function. They may even require the removal or replacement of the accountable officer or dissolution of a group.
Noble Lords may have seen recent reports of how NHS England is considering developing the CCG assurance framework to emphasise CCG achievement as well as capability. The detail of the assurance framework is, of course, a matter for NHS England but I am sure that noble Lords will be encouraged that NHS England is reflecting on how the assurance system can be improved. Ultimately, the Secretary of State is accountable to Parliament for the performance of the health system and will hold NHS England to account for how it has fulfilled its responsibilities, including how it has ensured that the health services which both it and CCGs commission are high quality and deliver value for money.
The noble Lord, Lord Hunt, asked about how NHS England is held to account by the department. The Secretary of State has formal accountability meetings with the chair and chief executive of NHS England every two months, which are structured around the mandate objectives and NHS England statutory duties. These are also attended by other NHS England board members, Ministers, the senior departmental sponsor and the Permanent Secretary. These meetings focus on strategic issues and any issues of delivery. Actions for NHS England are agreed in the meetings, recorded in the minutes and followed up in subsequent Secretary of State meetings. This process feeds into an annual assessment of NHS England by the Secretary of State. It is a legal requirement that this is laid before Parliament in response to NHS England’s annual report and covers NHS England’s performance in respect of mandate objectives and fulfilment of its statutory duties.
Meanwhile, NHS England is holding itself to account internally for its commissioning responsibilities. Just as there is a CCG assurance framework, a reciprocal direct commissioning assurance framework has been produced to demonstrate that NHS England is also exposing itself to similar scrutiny of its own commissioning responsibilities. NHS England has made a commitment to CCGs and wider stakeholders that it will apply the same level of scrutiny to its own direct commissioning responsibilities as it does to CCG commissioning. The assurance framework is used to identify concerns where the direct commissioning functions of area teams are particularly challenged. In these circumstances, the issues will be escalated through the line management arrangements in order to ensure that extra scrutiny or support is given as required. Ultimately, NHS England’s board will assure direct commissioning processes.
The noble Lord’s particular concern was around specialised commissioning and the overspend that we saw last year. In quarter 4 last year, NHS England forecast an overspend in specialised services of £172 million, an adverse variation to plan which was in excess of £291 million. Departmental analysis found that last year’s overspend in specialised services was due to a combination of factors, some historical and intrinsic, others unique to 2013-14. In April this year NHS England established a specialised commissioning task force in order to make some immediate improvements to the way in which it commissions specialised services and to put commissioning arrangements on a stronger footing for the longer term. The task force is led by Richard Jeavons, Director of Specialised Commissioning, NHS England. Additional resource from within NHS England has been diverted to the task force to ensure that it has the right mix of skills and expertise to enable it to meet its objectives. The task force comprises seven distinct work streams, which are focusing on financial control during the current year and planning for the 2015-16 commissioning round.
NHS England provides updates on the work of the task force to external and internal stakeholders every three to four weeks. There are also briefings given at key meetings and to key groups—for example, the Patient and Public Voice Assurance Group. Updates can be found on the NHS England website. NHS England describes its specialised commissioning task force work as a way to secure financial control in 2014-15 and to plan for 2015-16; it is not a wholesale review of specialised commissioning. The aim is to improve ways of working and to ensure that specialised commissioning is undertaken in the most efficient and effective way possible. The department is working closely with NHS England as it develops proposals for change. NHS England will continue to be held to account through the regular accountability meetings and the annual assessment that I have referred to.
Although these arrangements for the oversight of commissioning are new, I am confident that they are robust. The CQC’s new approach to inspection and the information that it provides about the quality of care through ratings is itself of use in commissioning, and where there is evidence that commissioning decisions are leading to poor care, it will, as I have said, be possible to escalate this to the CQC. I believe that these arrangements strike the right balance, allowing the CQC’s focus to remain on its core task of inspecting and regulating health and adult social care, but retaining an ability to look at commissioning issues when necessary.
Lord Hunt of Kings Heath
My Lords, I am sure that the House is most grateful to the noble Earl for such a comprehensive description of the relationship between the department, NHS England and commissioners for health and social care. I congratulate my noble friend Lady Wall on her appointment to the chairmanship of the Milton Keynes Hospital NHS Foundation Trust. I echo her thoughts about the new inspection regime, which is a vast improvement on the old regime. I also acknowledge that the CQC has made some excellent appointments at senior level to help the inspection process.
That is a very good start, but there are gaps in relation to the commissioning of services. I would like to follow up the question asked by the noble Baroness, Lady Barker about prison health services. The Explanatory Memorandum states that regulated activities provided by prescribed service providers in prisons are excluded because:
“A performance rating might be helpful to the commissioners of these services, but only if it can be uniformly awarded to all providers in the sector and at present, not all prison healthcare is regulated by CQC”.
This is not the time to go into that in more detail, but I should be grateful if the noble Earl would be prepared to write to us about it—unless he wishes to intervene now. I am grateful that he indicates that he would be prepared to write to us, because it is an important point. There have been vast improvements in the health service within prisons in recent years and I would have thought that they would welcome some ratings from the CQC. I hope that the Government will look into that.
On the substantive point, I simply want to say to the noble Earl that many of the issues that the health service and care services face are very pressing and very challenging. Those services depend on all the people within a system—both commissioners and providers —working together. I still believe that there is a strong case for there to be assessment by the CQC to help systems generally to learn from others, to see where weaknesses are and to improve the whole system approach—something that is missing from the current regime. This has been a good debate. I beg leave to withdraw my Motion.
Criminal Justice and Courts Bill
(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
20:40 - Division on Amendment 166 - Ayes: 58 / Noes: 149 - Amendment 166 disagreed.
Lord Pannick
Lord Pannick (CB)
My Lords, this group of amendments is concerned with Clauses 74 and 75, and it relates to costs capping orders, or protective costs orders, as they were previously called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs should the claim fail.
At the moment costs capping orders are a matter for the discretion of the court. They are rarely made, particularly in contexts other than environmental claims, which Clause 76 rightly recognises to raise special considerations because of an international convention, the Aarhus convention. The Minister, in correspondence, has helpfully referred to three or four cases a year of protective costs orders being made outside the environmental field. It is not a major problem. I have seen no evidence to suggest that the current exercise of the costs capping order power by the courts has caused any problems at all, other than the general problem that government departments would much prefer not to be the subject of judicial review applications at all.
Amendment 166 addresses a particular vice of Clause 74. Clause 74(3) provides that a costs capping order may be made,
“only if leave to apply for judicial review has been granted”,
but such a provision would defeat the very object of a costs capping order. If an applicant cannot seek and obtain a costs capping order in an appropriate case until leave to move for judicial review is granted, applicants will inevitably be deterred from bringing those judicial review proceedings in the public interest in the first place. They will be deterred because of the risk of having to pay an unquantified amount of costs at the permission hearing. I suggest to your Lordships that protective costs orders should remain available, if and only if the judge considers it appropriate in the circumstances of the individual case, prior to the grant of permission to move for judicial review. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I am sorry I missed the beginning of the noble Lord’s introduction of this amendment but I got called out. I simply want to speak on behalf of the Joint Committee on Human Rights. Our latest report says:
“We remain of the view expressed in our Report on judicial review that restricting the availability of costs-capping orders to cases in which permission has been granted would be a disincentive to meritorious public interest challenges being brought”—
that argument has been made—
“and we maintain our recommendation that the Bill be amended to remove this restriction”,
and that we explicitly support,
“Lord Pannick’s amendment … which would preserve the court’s current power to make a costs-capping order at any stage of judicial review proceedings, including before permission is granted”.
I hope that your Lordships’ House will feel able to support the amendment moved by the noble Lord, Lord Pannick.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, support this amendment. By the same token that the House approved the earlier amendments, logically this amendment must be allowed as well. The vice of the proposed legislation is once again the narrowing of the courts’ discretion and the chilling of the judicial review. In this case, in the most important area of public interest litigation, it is really imperative that this amendment succeeds.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am grateful once again to noble Lords for their contributions—brief but helpful. Your Lordships will understand that the amendments tabled by the noble Lord, Lord Pannick, seek significantly to undermine Clauses 74 and 75. I will begin by reminding the House what the clauses do. They build on case law, in particular the Corner House case, to establish a codified costs capping regime for judicial review proceedings with the aim of governing what we ordinarily refer to as protective costs orders.
The Government’s position, which I made clear throughout Committee, remains clear. We believe that costs protection should be available in appropriate cases but costs capping orders should not be made widely or, indeed, routinely. Alongside Clause 76, to which the noble Lord, Lord Pannick, referred, which excludes certain environmental cases from the new regime, these clauses ensure that costs protection is granted only in cases where there are serious issues of the highest public interest that would not be taken forward without an order. It is only in these cases that a public body defendant should have to pay its own costs regardless of whether it wins or loses.
As noble Lords have explained already, part of Amendment 166 would remove the effect of Clause 74(3), which provides that costs capping orders should be made only where permission to proceed to judicial review has been granted. I do not believe this is correct. It would mean that claimants with weak cases would benefit from costs protection even if the court subsequently decides that their case has no merit and that it should not be given permission for judicial review. This would leave the public body paying the costs of dealing with an ex hypothesi unmeritorious case.
As it stands, the clause does not mean that the costs of applying for permission will not be covered by the order. As is the situation now, if made, an order will be able to cover costs incurred prior to the grant of permission. This, I think, is the answer to what the noble Lord, Lord Pannick, described as a particular vice of these provisions. The claimant can, as now, ask the court to make the order as part as the permission application. But we feel that it is right that a claimant should bear the financial risk of bringing a weak claim.
Amendment 166 once again seeks to remove the requirement for the court to be provided with information on funding available, as well as what is likely to be available to a claimant, for use by the court when deciding whether to make a costs capping order, and for court rules to set out what that information should include.
As I have said, it is the Government’s position that a claimant should be required to provide information on how their case will be funded. Under the current regime, and as set out in the Corner House case, courts are required to consider the financial resources of those who request costs capping orders. This is the very essence of why we have costs capping orders, something that we should, of course, replicate in this new regime.
Furthermore, setting out what information is required in court rules will give clarity to applicants about exactly what they need to provide. We cannot prejudge what the rules will say; I am sure noble Lords will be aware that this is a matter for the Civil Procedure Rule Committee. During the course of debates, some doubt seemed to be cast on the independence of the Civil Procedure Rule Committee. With respect, I think that doubt was misplaced. It is a committee chaired by the Master of the Rolls and contains, among others, Lord Justice Richards, all of whom, I am sure, with their experience and independence, will provide rules entirely independent of what the Secretary of State might or might not want. Of course, we expect that the information requested will be proportionate.
I turn to Amendment 167, which seeks to remove the third requirement in subsection (6), which is that an order can be made only if, without an order, it would be reasonable for the claimant to discontinue the judicial review. Again, this was a requirement of the Corner House case, and it is right that this remains. Doing anything other than this would make no sense. It would mean that well resourced claimants, including large companies, would be eligible for a costs capping order provided they could show that, without one, they would discontinue the claim, even though it would be entirely unreasonable for them to do so. This simply cannot be right. Indeed, it would mean they could be granted a costs capping order despite not being eligible under Corner House and the current regime.
Amendments 168 and 173 of the noble Lord, Lord Pannick, seek to remove entirely from Clauses 74 and 75 powers afforded to the Lord Chancellor to amend lists of matters within these clauses through statutory instrument. It is the priority of the Government to respond at pace to any future developments. These amendments would simply prevent our doing just that. It may well be that, in future, developments mean that it is considered necessary to make changes to the matters set out in these lists. Of course, as I have said, Parliament will still be able to scrutinise any changes as both powers are subject, not to the negative, but to the affirmative resolution procedure.
Turning now to Clause 75, which sets out in subsection (1) five non-exhaustive factors that the court must consider when deciding whether to make a costs capping order and its terms, Amendment 170 seeks to make it optional for the court to have regard to these factors. With the exception of paragraph (e), these factors are based on the principles taken from the Corner House case, and all five factors are important in ensuring that a costs capping order is not awarded where it is unnecessary, as is the Government’s case.
The courts retain significant discretion, as the clause does not dictate how much weight, if any, should be given to each factor. Furthermore, the list is not exhaustive, so the court may consider any other factors that it considers relevant.
The other amendments proposed by the noble Lord, Lord Pannick, would amend that list, first, so that the courts would not be required to have regard to whether the applicant might receive funding in the future and, secondly, so that the courts would not have to consider whether someone who might provide future funding would benefit from the judicial review. They would be told to ignore factors which, I respectfully suggest, are relevant. This would mean that the court would not have available to it a full picture of the claimant’s financial position when deciding whether it was appropriate to grant costs protection and, if so, at what level that protection should be set.
It is vital that the courts are made aware of the full financial underpinnings of a claim. This allows the court to assess whether a claim, although notionally brought by a claimant of limited means, is sufficiently well resourced not to require taxpayers’ subsidy by way of costs protection. It also allows the courts to ensure that, if they do make a capping order, the cap is made at the right level. Otherwise, it could result in the taxpayer being asked to pick up the bill for the defendant’s costs when the claimant would in fact have been in a position to pay.
If—and this is an important point—future financial support is not forthcoming, the claimant will be able to inform the court so that it can take the change of circumstances into consideration. We will invite the Civil Procedure Rule Committee to include this safeguard, which may be necessary, in court rules.
On removing the requirement that the court consider the benefit to a potential third-party funder, the Corner House case recognised that a claimant’s private interest in a case is a relevant factor when considering whether to grant a costs capping order. This requirement reflects that principle and the court should consider it as part of the full picture.
The clauses retain the principle that costs are a matter for the judiciary, a theme which has run through our debates today. When considering an application for a costs capping order in an individual case, it will be for the judge to decide whether the particular proceedings are in the public interest, whether an order should be made and, if so, what the terms of that order should be. That represents no change to the current position.
The noble Lord, Lord Pannick, effectively posed the question, “What’s wrong with the current position?”, and he did not understand there to be many cases concerned. I have asked for further data on this. I have to confess to the House that the Government’s data on costs capping orders are limited, but we have indicative figures from the Treasury Solicitor’s Department which estimate that, between September 2010 and August 2014, it was involved in at least 38 cases where protective costs orders were awarded, of which 14 related to non-environmental cases. However, these figures will not represent all judicial reviews, as the Treasury Solicitor’s Department does not represent all government departments, nor will the figures cover non-governmental defendants such as local authorities, so that the actual number of such orders may be that much higher. The noble Lord, Lord Beecham, may be fed up with references to the Richard III case, but a protective costs order was made there and, as he will well know, the Government were unable to recover any money from the claimants because it was a shell company. It was created entirely to pursue the litigation, which turned out to be entirely baseless.
These are unusual orders. They should be made where the judge has as much information as he or she should have in order to be able to make them. Any other provision is simply saying, “The judge shouldn’t take into account matters which most people would think were relevant”. These clauses are to ensure that costs capping orders are made only in cases that genuinely need them—we are talking about public money here—and are set at a level that properly reflects the financial position of the claimant. With that perhaps rather overlong explanation, I ask noble Lords not to press their amendments and to agree to Clauses 74 and 75 standing part of the Bill.
Lord Pannick
I am grateful to the Minister for his detailed explanation, which, far from being overlong, was very helpful, because I see the force of what he says—except in relation to Amendment 166, which addresses the removal of a power in the courts to make a costs capping order at the outset of the proceedings. There is no question of a costs capping order being made routinely, which was the Minister’s concern. These orders are in the discretion of the court. The court will not make such an order unless it is satisfied that the claim is sufficiently well founded to justify such an order.
I do not think it is any answer for the Minister to say that if leave is granted, a costs capping order can then be made. The problem, as the Minister knows, is that if a costs capping order cannot be made at the outset then these public interest claims will be deterred. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out, Amendment 166 has precisely the same purpose and effect as the three amendments already debated and voted on in your Lordships’ House this afternoon—that is, to retain judicial discretion, in this case as to when it is appropriate to make a costs capping order. In relation to Amendment 166, I wish to test the opinion of the House.
“Capping of costs: environmental cases
(1) This section applies to judicial review proceedings which constitute or concern an Aarhus Convention claim.
(2) Sections 71, 72 and 73 shall not apply to proceedings to which this section applies.
(3) Notwithstanding anything in sections 74 and 75, in proceedings to which this section applies the court shall make a costs capping order in favour of an applicant for judicial review of its own motion or upon the application of any party in any case where the court considers that if a costs capping order is not made the proceedings are unlikely to be fair, equitable, timely and not prohibitively expensive as required by the Aarhus Convention.
(4) Rules of court may prescribe the terms upon which a costs capping order may be made in accordance with subsection (3) provided that such terms are calculated to ensure that the proceedings will be fair, equitable, timely and not prohibitively expensive.
(5) In determining whether proceedings are likely to be fair, equitable, timely and not prohibitively expensive, the court shall have regard to any relevant reports of the Compliance Committee established pursuant to the Aarhus Convention.”
Lord Marks of Henley-on-Thames (LD)
My Lords, I moved amendments in these terms in Committee and so I will try to be brief, although the area they cover is quite complicated. Clause 76 is in the Bill because the Aarhus convention of 1998, which was ratified by this country in 2005, committed the United Kingdom to ensuring that environmental litigation will be,
“fair, equitable, timely and not prohibitively expensive”.
My amendments are founded on the principle that Parliament has a duty to ensure that this country acts in a way that is compliant with its international obligations.
Clause 76 recognises that the restrictions on costs capping orders as proposed in the Bill have the effect of making environmental litigation prohibitively expensive in any case. That is true ex hypothesi, because in a case where a judge would decide that a costs capping order is needed in order to enable an applicant to pursue the application, it follows that the application, if pursued without such an order, would be prohibitively expensive. It is for that reason that rules of court have already introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums. Those sums are £5,000 against an individual applicant, £10,000 against a corporate applicant and £35,000 against a defendant.
However, the costs capping provisions are not the only provisions of the Bill that would put us in breach of the Aarhus convention: so would the provisions on disclosure of actual and likely financial resources and on the consequential orders for costs based on that information, as disclosed. Those provisions would have the effect that sources of support for judicial review applications would be choked off, making them prohibitively expensive for applicants without means, who would be left without the support of those people deterred from giving such support. The provisions on interveners and on costs capping would also have the effect of making environmental cases prohibitively expensive. Our amendments are therefore directed at broadening Clause 76 to exclude Clauses 71 and 72 on information about resources, and Clause 73 on interveners, for environmental cases as well as the costs capping provisions.
A further difficulty with Clause 76 is that it is permissive only and not mandatory, so that the Lord Chancellor is not required to make any regulations excluding the operation of the restrictions on costs capping. The provision is limited to ensuring that he is entitled to do so, if he chooses. Any such regulations that he chooses to make may also, under Clause 76(2), be as wide or as narrow as he chooses. Regrettably, this Lord Chancellor has given us little confidence that he is concerned to make challenges on judicial review less expensive.
Our amendments would also allow for costs capping orders in any case where the court considers that without such an order, the proceedings are unlikely to be,
“fair, equitable, timely and not prohibitively expensive”,
so as to bring the provisions squarely in line with our obligations under the convention. In our Amendment 174A, subsection (4) of the proposed new clause would introduce an objective test which would,
“prescribe … terms upon which a costs capping order may be made”,
to ensure compliance, once again by using the words of the convention. This is particularly important because the compliance committee established under the Aarhus convention has already found the United Kingdom to be non-compliant in a number of respects. The safe course is to ensure that the statute complies with the convention specifically and that there is a requirement that the regulations and rules of court do the same.
A further problem arises regarding definition. Clause 76(1) says that the definition of environmental cases is those cases which are environmental,
“in the Lord Chancellor’s opinion”.
Amendment 174B, which introduces a definition squarely based on the convention, is intended to address that difficulty and introduce an objective test. I beg to move.
Lord Faulks
My Lords, Clause 76 allows for judicial review claims on issues which relate entirely or partly to the environment to be excluded from the revised costs capping regime established by Clauses 74 and 75. This is to ensure continuing compliance with our obligations under the Aarhus convention and the various European directives which implement it. The requirements include that relevant procedures must not be prohibitively expensive. This is relevant to judicial reviews in certain environmental cases. Consequently, Clause 76 allows for environmental judicial reviews to be excluded from the approach in Clauses 74 and 75.
Lord Marks of Henley-on-Thames
My Lords, I am rather surprised that my noble friend regards my performance on this Bill as meriting promotion to “noble and learned Lord”.
We have both been brief. I rehearsed the arguments for the amendments in Committee and my noble friend rehearsed the arguments against. I will seek leave to withdraw the amendment but I say only this: I have a prediction that if these provisions are enacted in their present form, it will not be very long before the Compliance Committee established under the Aarhus convention draws attention to non-compliance by this country with its international obligations under Aarhus, not only in respect of Clauses 74 and 75 but in respect of Clauses 71 to 73 as well. I would regard that as a great pity because international obligations are a matter of great importance. With that observation, I beg leave to withdraw the amendment.
Lord Faulks
“Reporting restrictions: providers of information society servicesChildren and Young Persons Act 1933 (c. 12)1 After Schedule 1 to the Children and Young Persons Act 1933 insert—
Schedule 1AProhibition on publication of certain matters: providers of information society servicesDomestic service providers: extension of liability1 (1) This paragraph applies where a service provider is established in England and Wales (a “domestic service provider”).
(2) Section 39 applies to a domestic service provider who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales.(3) In the case of an offence under section 39, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales, and (b) the offence may for all incidental purposes be treated as having been committed at any such place.(4) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 39 may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits3 (1) A service provider is not capable of being guilty of an offence under section 39 in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or(b) the transmission in a communication network of information provided by a recipient of the service,if the condition in sub-paragraph (2) is satisfied.(2) The condition is that the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and (b) the transmission of information in a communication network,includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 39 in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and(b) the condition in sub-paragraph (3) is satisfied.(3) The condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) where sub-paragraph (4) applies, expeditiously removes the information or disables access to it. (4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.Exception for hosting5 (1) A service provider is not capable of being guilty of an offence under section 39 in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 39.
(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Publication” has the meaning given in section 39.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”, (4) “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of interpreting references in this Schedule to a service provider who is established in England and Wales or an EEA state—
(a) a service provider is established in England and Wales or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in England and Wales or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider‘s activities relating to that service.”Youth Justice and Criminal Evidence Act 1999 (c. 23)2 After Schedule 2 to the Youth Justice and Criminal Evidence Act 1999 insert—
Schedule 2ARestriction of reporting of criminal proceedings for lifetime of witnesses and victims under 18: providers of information society servicesDomestic service providers: extension of liability1 (1) This paragraph applies where a service provider is established in England and Wales, Scotland or Northern Ireland (a “domestic service provider”).
(2) Section 49, so far as it relates to a publication falling within subsection (1A)(a) of that section, applies to a domestic service provider who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales, Scotland or Northern Ireland.(3) In the case of an offence under section 49, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales, Scotland or Northern Ireland, and(b) the offence may for all incidental purposes be treated as having been committed at any such place.(4) Section 49, so far as it relates to a publication falling within subsection (1A)(b) of that section, applies to a domestic service provider established in England and Wales who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales.(5) In the case of an offence under section 49, as it applies to a domestic service provider established in England and Wales by virtue of sub-paragraph (4)—
(a) proceedings for the offence may be taken at any place in England and Wales, and(b) the offence may for all incidental purposes be treated as having been committed at any such place. (6) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits3 (1) A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or(b) the transmission in a communication network of information provided by a recipient of the service,if the condition in sub-paragraph (2) is satisfied.(2) The condition is that the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and(b) the transmission of information in a communication network,includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and(b) the condition in sub-paragraph (3) is satisfied.(3) The condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) where sub-paragraph (4) applies, expeditiously removes the information or disables access to it.(4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.Exception for hosting5 (1) A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 45A(2).
(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Publication” has the meaning given in section 45A.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”,and “the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).(4) “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of interpreting references in this Schedule to a service provider who is established in England and Wales, Scotland, Northern Ireland or an EEA state—
(a) a service provider is established in England and Wales, Scotland, Northern Ireland or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in England and Wales, Scotland, Northern Ireland or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider‘s activities relating to that service.””
Lord Pannick
“Legal aid for judicial review
(1) The Lord Chancellor may not use the powers in section 2 or 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to impose further eligibility criteria for receipt of legal aid, or further to restrict the scope of legal aid, for judicial review proceedings (including applications for permission to apply for judicial review).
(2) Any statutory instrument made or to be made under the provisions referred to in subsection (1) and which otherwise conflicts with the restrictions set out in that subsection ceases to have effect in relation to legal aid for such proceedings.”
Lord Pannick
My Lords, Amendment 176 raises an issue of some constitutional importance. The proposed new clause would prevent the Lord Chancellor using the powers that he was granted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, to restrict eligibility for legal aid in judicial review proceedings. Your Lordships will recall that during the debates on LASPO Ministers repeatedly assured the House that the restrictions on legal aid contained in the LASPO legislation did not affect judicial review. Had the Bill made express provision restricting legal aid for judicial review, I think that Ministers would have found it difficult to secure the approval of the House for such provisions.
Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation so that such proposals could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. Such subordinate legislation, as your Lordships well know, receives only limited scrutiny in this House. Detailed amendments cannot be tabled and debated, and the convention is that we very rarely indeed table, far less approve, a fatal Motion. To give one example of the problem, on 7 May your Lordships’ House debated a Motion of Regret that I had tabled in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014.
Restrictions on legal aid for judicial review are far too important a matter for secondary legislation. If the Lord Chancellor wants to restrict the scope of legal aid in the context of judicial review, let him bring forward proposals in primary legislation. Those proposals can then be properly scrutinised and amended as appropriate. The purpose and effect of Amendment 176 is to secure that objective, and I commend it to the House.
Amendment 177 would introduce a further new clause to prevent the Lord Chancellor implementing a residence test for legal aid in judicial review proceedings. If I may, I will leave the noble Lord, Lord Beecham, to explain the purpose of that amendment, which I support. I beg to move.
Lord Beecham
Having been given that cue by the noble Lord, Lord Pannick, I cannot resist the temptation to rise now and speak to the amendments. Both of the amendments, as the noble Lord has said, relate to the issue of the availability or otherwise of legal aid in judicial review cases, and the noble Lord’s amendment deals with the broad problems implicit in the Secretary of State’s use of delegated powers to remove funding for applications for legal aid except where permission is granted or subject to an ex gratia scheme. In his characteristic way, the noble Lord has dealt comprehensively, not to say devastatingly, with that general issue.
Amendment 117 focuses exclusively on the Government’s attempt to deny legal aid for applications for judicial review by the imposition of a residence test. Noble Lords will be aware that an order under the provisions of LASPO to implement this approach was laid in the summer and was due to be debated under a Regret Motion in July, but that it was withdrawn in the light of the decision of the Divisional Court, with Sir Alan Moses—then Lord Justice Moses—presiding, which pronounced the provision unlawful.
The order would have imposed a prohibition on anyone over the age of 12 months—I repeat, 12 months—who had not been continuously resident in the UK for 12 months at some time from obtaining legal aid for judicial review cases. In its seventh report of 2013-14 the Joint Committee on Human Rights had criticised the Government’s proposals on a number of grounds, including their reliance on the possible availability of exceptional funding when, as we know, only 2% of applications for exceptional funding are successful. It took exception to the Government proceeding by way of secondary legislation, as the noble Lord has already mentioned, given the important human rights considerations urging that changes should be effected through primary legislation. Of course this Bill could have provided such a legislative vehicle if the Government had not chosen to use it in the way they have by tabling amendments on other, less fundamental, issues.
The Joint Committee was particularly exercised about the position of children, people with problems affecting their mental capacity and detainees seeking a remedy, for example, for abuse inflicted while in detention. It made the obvious point that the Government’s ostensible justification for denying legal aid to non-residents, on the grounds that they do not make a financial contribution to taxation, could not in any event apply to children. In its first report of the present Session, the committee joined the Children’s Commissioner in condemning the application of the residence test to children as a contravention of the UN Convention on the Rights of the Child. How long, one wonders, might it be before UKIP or the Tea Party tendency call for us to withdraw from the UN, on that sort of approach?
Some 30 highly reputable organisations have supplied a briefing which I commend to Members of your Lordships’ House, if you have not already seen it, setting out in clear terms 10 powerful objections to the proposed test. Interestingly, the first of those contained quotations from the noble Lord, Lord McNally, and the former Lord Chancellor, Ken Clarke, in debates on the then LASPO Bill. At that time the noble Lord, Lord McNally, affirmed that,
“the reforms establish an affordable system while ensuring that no one is denied … justice”.—[Official Report, 20/12/11; col. 1717.]
He went on to say that,
“there is no question as to what services might be funded; they are in the Bill for all to see”.—[Official Report, 5/3/12; col. 1569.]
Mr Clarke said that,
“we are continuing legal aid in all cases involving judicial review ... That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice”.—[Official Report, Commons, 17/4/12; col. 227.]
Those remarks are of course entirely consistent with much of the debate that we have heard tonight and the amendments that have been carried already. They would, and should, apply to this proposal to restrict legal aid in cases involving a residence test, even to the extent of applying to children.
However, those assurances given at that time clearly carried no weight with the present Secretary of State; nor did the criticisms to which I have referred, although some of us are, if anything, astonished by their moderation, especially when set alongside the court judgment mentioned earlier and which is now under appeal. That judgment held that the residence test was both ultra vires, because it was not authorised by LASPO, and discriminatory, unlawful both at common law and under the Human Rights Act; but, significantly in the light of the threatened onslaught on the latter to garner votes from UKIP, that it was unlawful with or without the latter. Lord Justice Moses, as he then was, stated that,
“it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not … In the context of a discriminatory provision relating to legal assistance invoking public confidence”—
which, I note in passing, was an ostensible reason for the measure given by Ministers—
“amounts to little more than reliance on public prejudice”.
Sir Alan went on to identify a number of situations described in the large volume of evidence filed in the case which underlined the force of his concerns. Incidentally, it was a case of judicial review, which perhaps demonstrates the merits of that process. He then went on to refer to the extraordinary comments of the Lord Chancellor, who, during the case and pending judgment, went on record as saying,
“most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway … And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court”.
On this Sir Alan remarked that Mr Grayling was:
“Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent”.
That is a perfect depiction, one might think, of the Lord Chancellor as the Luis Suarez of our justice system—which are my words, not Sir Alan’s. Sir Alan went on to quote a 40 year-old judgment of Lord Scarman:
“Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.
It is shameful that while the Government are justifiably promoting the use of our courts and lawyers to wealthy foreigners and overseas corporations, they should seek to deny access to justice to those in dire need of it but without the means to procure it on the grounds that they have not been resident for 12 months. In a previous debate this afternoon I referred to the Minister who advised organisations like those who have supplied briefings for Members on these issues to “stick to their knitting”. I had hoped that Members of your Lordships’ House would not emulate those earlier knitters, the tricoteurs of the French Revolution, but would instead have sought to prevent the guillotine falling on some of the fundamental rights enshrined in and enforced by our system of justice. However, it is apparent that there would not be a majority to achieve that objective, given the late hour and the fact that most Members have now departed. In the circumstances, I will not be asking the House to divide on this issue, but I very much regret that the Government have set their face solidly against doing anything to retract an obnoxious and objectionable proposal which does them no credit whatever and, in fact, given his attitude, demeans the position of the Lord Chancellor.
Baroness Campbell of Surbiton (CB)
My Lords, I strongly support the two amendments in this group. My noble friend Lord Pannick has explained their crucial importance, as has the noble Lord, Lord Beecham. I wish to highlight only one point, which is why I am here at this hour—very usual for me.
It is crucial because if there is one element in the Government’s so-called “reforms” that causes me the most anguish, it is restrictions on legal aid. For many, many disadvantaged people, legal aid is the only way they can pursue their legitimate rights. When it is denied, justice is denied. This is particularly true of judicial review proceedings. I want us to leave here tonight contemplating the fact that, in the landmark decision this summer, the residence test was found unlawful. The court reviewed real-life examples of people who would be ineligible for legal aid in future. The one that struck me the most was the example cited of “P”, a severely learning-disabled adult who had been forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time. For me, this story encapsulates why we must support these amendments in some way. If we do not vote tonight, we must truly think about how we are going to address this situation. The Government’s residence test for legal aid has no basis in law and, I am afraid, will without doubt deny justice to those who need it most—perhaps the man in the dog kennel.
Lord Deben (Con)
My Lords, many cases have been put before us in these debates in which we have argued the facts. We have disagreed about whether particular measures will have this or that effect. This is not the same kind of discussion. I can see that we could have quite a lengthy discussion about the access to our courts of foreign nationals and the cost to the nation of that.
However, that is not what I want to argue here. I want to argue something that is more serious because it is not a matter of opinion but of behaviour. If a responsible Minister has made an undertaking about a law and that has been accepted by the House, if that undertaking is to be changed, it must be changed in front of the House in circumstances in which the House can make a decision. I am a bit tired of the constant statement by Ministers that there is the affirmative resolution procedure, as if that made any real difference. We all know perfectly well that the system that we have means that there is very little effective parliamentary control over legislation that is passed by those techniques.
If Parliament has been assured by a Secretary of State that a particular situation pertains, it is morally unacceptable that some other Secretary of State can reverse that without Parliament being able to argue the case. I say that as somebody who may not have gone all the way along with some of the arguments about access to justice for people wherever they come from and the rest. I certainly have some concerns—I think many Members of the House have concerns—about the way that our system has been used in the past. I certainly have a real concern about the exclusion of children; I agree with the noble Lord opposite on that. However, that is not the issue for the House today. That is why I am very sorry that we are debating it so late, at a point when the Opposition have decided that it is perfectly possible to send all their people home. Some people might ask why people thought that they would have an early night when matters of real importance—this amendment and the previous one—were being discussed. I think that many will ask that question.
The Government and the Minister need to stand up and explain to the House how it is possible, in a democratic society, for a Secretary of State to give an undertaking to the House as to what a Bill means and for that then to be changed without an opportunity for debate in the House. That is a really serious issue and not one of an ordinary kind. Although we will not vote on this, because one can see the nature of it, I hope that the Minister will take back to his colleagues that this is not a debate of the same kind that we have had up to now. It is a serious issue because people must trust the words of Ministers when they speak officially. I was a Minister for 16 years and I do not think that I can remember a moment when I would have reversed the public statement of a predecessor without giving an opportunity for that debate to take place publicly and clearly. On this occasion, the House has every reason to say that this is not good enough.
Lord Phillips of Sudbury (LD)
My Lords, in 1949, when the Legal Aid and Advice Act was brought in, the state of affairs in this country was radically different for the ordinary man and woman in the street from what it is now. I speak in terms of legal services and the availability of the same. In 1949, after the Legal Aid and Advice Act was passed and the scheme introduced, 95% of all law firms in the United Kingdom undertook legal aid. I can assure your Lordships that every single one of those firms would have done a great deal of pro bono work in the communities that they served. Indeed, not to have done so would have been a deathblow to their local reputation and workflow.
In the interim, everything has changed in that regard. Today, the number of firms doing substantial amounts of pro bono work and which are therefore available to the bemused citizen has, I am afraid, shrunk to a very small number. Indeed, the irony is that the bigger and richer the law firm, the less pro bono work it does. I speak as president of the Solicitors Pro Bono Group, or LawWorks as it is commonly known. In the mean time, the volume of legislation that we pass in this place has rocketed. Indeed, it is ironic that LASPO, the Act that underpins these amendments—I am speaking particularly to Amendment 176—is 302 pages long, is complex beyond measure and has rather more pagination than the entire statutes of 1906, which I had cause to look at the other day. Our output is something in the order of 13,000 to 15,000 pages of statute law a year, with only 2,000 or 3,000 pages of repeals. The problem for the ordinary citizen in terms of the law, access to the law and getting help and assistance when they desperately need it has never been remotely as great. Indeed, it is one factor in this strange mood that prevails in our country today—a mood of disillusionment and mistrust.
The amendment is absolutely essential. Make no mistake, judicial review is more and more important in the world that we inhabit, precisely because of the astonishing complexity and volume of the law with which we are surrounded and the need, therefore, to enable citizens and organisations to have access to the courts for judicial review when it is needed. One might think that JR cases are rocketing, but according to the report of the Joint Committee on Human Rights in April this year on the implications for access to justice of the Government’s proposals to reform judicial review, that is not the case. That may be surprising, but I suspect it has as much to do with the lack of pro bono availability —although there are some wonderful exceptions—and the legal aid position as is. The proposal in Amendment 176 to prevent a future Lord Chancellor from imposing further eligibility criteria or restricting the scope of legal aid without coming back to Parliament must be right. I hope that the Minister, for whom I have great respect, will see the importance of this.
Access to justice is surely the ultimate hallmark of a democratic society that is working. We as a Parliament do not walk our own talk unless, as well as passing these tidal waves of legislation, we make available to the citizen the means of accessing that legislation when needed. Otherwise, frankly, we are hypocrites and aiding and abetting a society in which money wealth is ever more dominant. Where justice is concerned, that must surely be wholly unacceptable.
Baroness Lister of Burtersett
My Lords, my noble friend Lord Beecham referred to the Joint Committee on Human Rights report on the residence test and legal aid for children. I want to return to a point I raised in Committee from the Joint Committee’s report, which referred to child protection cases. The committee said:
“We are confused as to why the Government excluded certain child protection cases from having to satisfy the residence test, but did not exclude from the test all legal remedies including judicial review. Whilst welcoming the funding of legal advice, we do not understand the justification that it is a good use of public money to give funding for advice that cannot be taken through to a judicial review”.
The Minister responded in Committee that,
“the Government’s position is that they do not believe that the JCHR should have concluded what they concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account”.—[Official Report, 30/7/14; col. 1666.]
I am not sure that the committee actually said that. The committee acknowledged the Government’s argument that they would prefer that people do not have to make an application for judicial review. I am an adult and I would not want to go to judicial review without the help of a lawyer—lawyers do have their uses—and it is a bit unrealistic to expect a child to do so. However, the Minister carefully avoided the key point we were making, which is that,
“it is inevitable that judicial review will be a necessary remedy in certain cases. We are concerned that, if the residence test applies, there will no longer be the risk of a judicial review when a local authority fails a child in its care. This deterrent effect of a judicial review encourages local authorities to discharge their duties properly”.
We are therefore going back to the points made earlier about accountability and the deterrent effect. If a local authority knows that legal aid is not there, the chances of judicial review being brought are highly remote. The deterrent effect is, therefore, lost and the accountability of local authorities is diminished. That cannot be right.
Lord Faulks
My Lords, this has been a passionate debate. We heard from the noble Lord, Lord Pannick, in close co-operation with the noble Lord, Lord Beecham, who, to continue the football analogy, persisted with his tactic of man-marking the Lord Chancellor. The debate was also enhanced by the contribution of the noble Baroness, Lady Campbell. My noble friend Lord Deben made a number of criticisms of ministerial colleagues for announcements. I must, and will, deal with those. My noble friend Lord Phillips told us about bygone days, when the way legal practices functioned was very different. I have, through my relations, memories of rather a different approach to the law than that which pertains now. Legal aid was certainly commonplace in the provinces then and people were charged what solicitors thought they could afford. We live in a very different era now. The noble Baroness, Lady Lister, repeated her concern at the effect of the residence test on some children in some circumstances.
Amendment 180 would bring the new clauses into effect at the end of the period of two months beginning with the day on which the Act is passed. Amendment 176 seeks to prevent the Government making future changes restricting the availability of legal aid for judicial review through secondary legislation under LASPO. Specifically, the amendment would prevent future changes being made through the powers conferred under Sections 2 and 9 of LASPO. It is important to pause here as there is a danger of confusion. Section 2 deals with remuneration and Section 9 with scope, where these have the effect of imposing further eligibility criteria for legal aid in judicial review cases, or of restricting the scope of legal aid for judicial review. The amendment also seeks to annul any statutory instruments that have previously been made through the powers available under Sections 2 and 9 of LASPO, in so far as they restrict eligibility or scope in relation to judicial review.
As noble Lords will already be aware, remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO so that where an application for judicial review is issued, the legal aid provider will undertake work on the application at financial risk, unless permission is granted or a discretionary payment is made. This point was elegantly made by my noble and learned friend Lord Mackay of Clashfern. There is, of course, a difference between scope and remuneration in this context, and that is a partial answer to the point made by my noble friend Lord Deben. A theme correctly adopted by the Government, throughout the difficult period that has persisted since they came into power, is that limited legal aid resources should be properly targeted, particularly at judicial review cases where they are needed most. The legal aid system is there to command public confidence and credibility. It was in that context that we introduced amendments to the Civil Legal Aid (Remuneration) Regulations to limit the circumstances in which legal aid providers should receive payment for work carried out on an application for permission.
It may be helpful if I explain that our figures suggest that there are a significant number of unmeritorious cases—751 in 2012 and 2013 alone—which receive public funding but where permission is refused. Therefore, they have apparently satisfied the Legal Aid Agency that there is sufficient to justify legal aid. In fact, on the old test, they have failed to surmount the rather low hurdle of permission. This change was introduced to incentivise providers to consider more carefully whether to commence judicial review proceedings and hesitate before commencing claims that are unlikely to receive permission. In genuinely meritorious cases, the provider is still paid because the case is granted permission, the case concludes prior to permission and their costs are paid by the defendant, or, where the case concludes prior to permission and they cannot get costs, the provider can apply to the Legal Aid Agency for discretionary payment. Unfortunately, I do not think that my noble friend Lord Deben was able to be present when we had a lengthy debate on these issues, and the question of legal aid for judicial review and its limits in relation to remuneration and scope was debated.
Remuneration continues to be paid in the usual way for the earlier stages of a case to investigate the prospects and strength of a claim and to engage in pre-action correspondence aimed at avoiding proceedings under the pre-action protocol brought in by the noble and learned Lord, Lord Woolf, who is in his place, to discourage proceedings where the matter could be sorted out through an exchange of letters pursuant to the protocol.
I should stress that the regulations made under Section 2 of LASPO do not affect the availability of civil legal aid to individuals, the scope of civil legal aid for judicial review or the eligibility of applicants for legal aid in judicial review proceedings. Where a client is in receipt of legal aid, he or she will remain so for the life of the case unless it is withdrawn for other reasons. These changes relate only to the remuneration of legal aid providers. To put it more simply, it is the lawyer who loses out. The client does not lose legal aid.
As the amendment seeks to prevent the Government using Sections 2 or 9 of LASPO to impose further eligibility criteria for receipt of civil legal aid or to restrict the scope of legal aid, the amendment would therefore not achieve what appears to be the intended effect of, among other things, annulling the recent amendments I have referred to on remuneration. The amendment would however have the consequence of preventing the Government imposing additional eligibility criteria or restricting the scope of legal aid for judicial review, other than through primary legislation. It would also annul previous amendments debated and passed by Parliament in relation to the scope of legal aid for judicial review.
The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers, and the eligibility for and scope of civil legal aid, are subject was considered only recently by Parliament during the passage of LASPO. We continue to believe that the level of parliamentary scrutiny is appropriate.
Perhaps I may remind the House about what happened during the passage of the LASPO Bill. Parliament was assured that the scope of judicial review would not be amended, which is entirely correct, but we do not accept that the proposals we are discussing are inconsistent with LASPO. In other words, the issue of bad faith, which is effectively alleged by my noble friend, simply does not arise. LASPO contains a very clear power to amend the scope of civil legal aid, as per Section 9, to which I referred earlier. There is no exception for judicial review.
Therefore, it is wrong to say that LASPO was enacted on the basis that the scope of legal aid would never be amended to create some sort of estoppel, as my noble friend seems to suggest.
Lord Deben
My noble friend will entirely solve my problem if he can say absolutely directly that nothing that the then Lord Chancellor said is in any way inconsistent with what we are now doing. In other words, what Kenneth Clarke said as Lord Chancellor, and what he promised, are entirely carried through and there is no contradiction whatever. In that case, I have no problems at all and will be happy to support him, but that is what we want to know.
Lord Faulks
I am sorry that my noble friend is not satisfied with the explanation that I have been rather laboriously making—which is that it all depends on the difference between scope and remuneration. The scope of legal aid has not been altered; we are simply talking about an amendment to remuneration at one stage of the process—a particular regulation which was considered in Committee. It was the subject of a debate on these matters. Admittedly there was opposition to it on the basis that this could stifle people from bringing judicial review, but it was not then suggested that there was some violent inconsistency between the LASPO Bill and what was said during its passage, and the change pursuant to Section 9. Now, however, it is being suggested that there is some bad faith on the part of the Government.
Lord Beecham
Did the Minister really say that the application of a residence test does not—
Lord Faulks
I am not talking about the residence test at all. I shall come to that shortly, but it is a different issue. Noble Lords are perfectly entitled to ask me questions about it at that stage. I am talking about the suggestion that—regardless of the residence test, which is a separate issue that I shall come to later —the provisions on legal aid for judicial review in some way breach an undertaking that was given to Parliament. That seems to be the burden of what is being suggested.
The power to make changes in the future should not be unnecessarily constrained as proposed. Any changes made to scope, under Section 9, and eligibility, under Section 11, are subject to the affirmative procedure, ensuring full parliamentary debate as appropriate. I am sorry that the affirmative procedure is not considered to be as satisfactory as primary legislation. Nevertheless, it remains a proper way to bring such matters before Parliament.
As I said in Committee, making such changes by primary legislation would be a cumbersome process and a disproportionate use of this House’s time. It would stop the Government of the day making necessary changes without primary legislation, even where change was necessary to ensure that the provisions remained up to date. The House may possibly remember—the noble Lord, Lord Pannick, may well remember—that during the passage of the previous Bill, certain noble Lords, of whom I was one, were anxious that the power should include both improving and increasing the scope of legal aid, if it was considered appropriate, and that became part of the LASPO Act.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend, but does he not accept that the procedure of dealing with changes via statutory instrument offers no protection whatever? There is no power to amend a statutory instrument; one can only reject it. I simply ask my noble friend: when did this House last reject a statutory instrument?
Lord Faulks
I am unable to answer that specifically. I am afraid that I do not know. I accept that there is a difference in the process, and I am sure that rejection is very rare indeed. However, that does not mean that a statutory instrument is not scrutinised. It is scrutinised, but there just happens to be a different method of scrutinising it—as my noble friend knows only too well.
Furthermore, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. The approach envisaged by LASPO remains appropriate and effective, ensuring that any restrictions—indeed, any changes to eligibility or scope—whether technical or major, will get the scrutiny they require, but this should not necessitate primary legislation.
Finally, the amendment would have the serious effect of annulling any previous instruments made under Sections 2 or 9 of LASPO that restrict eligibility for, or scope of legal aid for, judicial review, including the provisions of an order debated and approved by Parliament in 2013 to ensure that the exclusions relating to judicial review agreed at the time of LASPO function as Parliament intended. Noble Lords will recall that the relevant amendment made under the 2013 order, which made it clear that legal aid for judicial review is governed by paragraph 19 of Part 1 of Schedule 1 to LASPO—and not any other provision—passed without opposition. The effect of the noble Lords’ amendment would be to annul the provisions for judicial review within the 2013 order, undermining the intention of Parliament.
Lord Pannick
I am very grateful to the Minister. As I mentioned in opening this short debate, Amendment 176 raises an issue of considerable constitutional importance. I am particularly grateful to the noble Lord, Lord Deben, for explaining so clearly and powerfully the nature and the importance of the constitutional issues.
As far as I am concerned, the constitutional issue is very plain: whether Ministers should be able to reduce legal aid for judicial review by the use of LASPO powers. Despite emphasising when the LASPO Bill was being debated that the scope of legal aid for judicial review was not being altered, the regulations certainly have reduced the scope of legal aid for judicial review. There is now no legal aid until leave to move is granted, other than in exceptional cases.
Lord Faulks
I am very grateful to the noble Lord for giving way, but does he accept that there is a distinction between the scope of legal aid and the remuneration of one stage of that scope? Legal aid can be available. Whether the lawyer is paid, in the case of an unsuccessful application for permission, does not remove the individual’s essential right to legal aid.
Lord Pannick
If you give an assurance that the scope of legal aid for judicial review is not being reduced or altered by LASPO, it seems that then introducing regulations which provide that there will be no remuneration for legal aid unless and until leave to move is granted and that there will be no remuneration for legal aid in residence regulations—although I appreciate they have been quashed—is indeed tantamount to reducing the scope of legal aid for judicial review. There is no point in saying that we are protecting legal aid as to scope for judicial review if you do not pay lawyers for providing the legal advice and assistance. That is what legal aid is about. So, with great respect, I do not accept the distinction between scope and remuneration. That simply will not wash, in my respectful submission.
Tonight I am not concerned with inviting the House to consider the merits or otherwise of the Government’s policies. We will all have our own view on the merits of the policy and whether legal aid is too wide or not wide enough. My concern is the constitutional one of whether it is appropriate to amend this important area of the law by secondary legislation in the light of the assurances we were given and when, I suggest, but for those assurances the Government would have had even more difficulty than in fact they had in getting the LASPO Bill through this House.
The Countess of Mar (CB)
I am sorry to remind the noble Lord, but this is Report and nobody should speak after the Minister except the person winding up.
Lord Pannick
I am very happy if the noble Lord wishes to clarify a matter. He does not; so be it. For my part, I remain troubled by this matter. I continue to think that it is important. I am not going to pursue it tonight but no doubt there will be other opportunities at some stage to do so. I beg leave to withdraw the amendment.
Lord Pannick
Lord Pannick
My Lords, your Lordships have heard today that Part 4 of the Bill contains a number of extraordinary provisions. Amendments 178 and 179, the final group of amendments for debate, provide an appropriate finale to our consideration of Part 4 because they address the quite extraordinary powers that are conferred on the Lord Chancellor by Clause 79.
If your Lordships take time to read Clause 79, you will see that the Lord Chancellor is given a power not merely to,
“make consequential … incidental, transitional, transitory or saving provision”,
to none of which I object. He is also given a power to make “supplementary” provisions by subordinate legislation. This power extends, so the Bill says, to amending, repealing or revoking legislation.
These are quite extraordinary powers, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Deben, explained to the House in Committee. I can see no justification whatever for conferring such powers on a Minister, far less in the sensitive context of judicial review, which, as your Lordships have heard this afternoon, is an essential element of the rule of law and the purpose of which—or at least one purpose of which—is to control the powers of Ministers. The Minister gave in Committee no explanation that I could understand as to why these extraordinary powers were required. I look forward to hearing his observations tonight. I beg to move.
Lord Deben
Happily, I am able to say now what I was going to say earlier, which is that I am one of those people who want to cut the amount of money that we have spent on legal aid. I take a very clear view that it is out of line with the arrangements in any other country that you might like to compare it with and that it is perfectly right for the Government to take those measures. However, that is why the Government should be a little concerned that people who are on their side have found unacceptable the mechanisms by which we have extended the powers of Ministers without due parliamentary control. This is the problem. Ministers should recognise that this is where the difficulty comes.
What we are saying is that the purpose is wholly acceptable but that to give Ministers powers of this kind is unacceptable and, as far as I can see, there is no good reason for doing it. That is the problem for the supporters of the Government and of their stance, which is why it would be helpful if the Lord Chancellor were to understand that we think that Parliament should have control in these very important areas, that we should not leave it to supplementary legislation even if it is of an affirmative kind and that—I am sure that my noble friend the Minister is entirely straightforward in his view about the connections between this and what was promised—when there is a fear that what has been promised has not been carried through, we should err on the side of being careful that Parliament should understand, accept and vote on those matters.
It is a matter not only of morality but of courtesy. I feel that we have not been given the kind of service which it is proper to ask of Ministers on this occasion. As one who supports these measures to a large extent, I am sorry that I shall be put in a position of not being able to support them simply by the mechanisms that have been presented. I suspect that quite a large number of my colleagues on this side of the House who have supported the Government would have been much happier in their support had the presentation been fundamentally different.
Lord Woolf (CB)
My Lords, I do not want to hark back to what I said earlier today, but when one comes to consider the powers given in Clause 79(1) and (2), it is important to bear in mind the special status of the matters which we have been dealing with in Part 4, to which I presume the final provisions in Part 5 are meant to relate. It is just a matter of discernment of the sensitivity of interfering with the basic means of the citizen to protect himself against excess of power by the Executive, among others. Where that is at stake, to give a power which allows supplementary provisions to be made by secondary legislation is wrong in principle. The Government, who I am sure are anxious to show that they are sensitive to the importance of judicial review and the independence of the judiciary—as they say so often—should feel uncomfortable with, at the same time, asking for a blank cheque with regard to the supplementary powers referred to in Clause 79(1) as well as those to amend, repeal or revoke legislation.
Lord Beecham
My Lords, it will come as no surprise to noble Lords that I support the amendment of the noble Lord, Lord Pannick, and the observations that both he and the noble and learned Lord, Lord Woolf, have made. It was interesting to reflect on the defence that the Minister made in Committee on these matters. He said:
“In particular, there is the sense, expressed by a number of noble Lords, that this particular Secretary of State and Lord Chancellor does not have sufficient regard for the rule of law and, essentially, there is a lack of confidence that he will exercise his powers in a way that Parliament would find satisfactory”.—[Official Report, 30/7/14; col. 1670.]
I think that summed up the position very well, not merely of your Lordships’ House but of the Joint Committee on Human Rights and many other bodies, not least the Divisional Court in the case about which we have heard and which is currently the subject on appeal.
The Minister, on that occasion, and in dealing with virtually the same amendment as that which we are now debating, described the situation created by the Bill—Clause 73—as “a pretty commonplace provision”. He said that,
“it is commonplace because noble Lords might like to know that Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains”,—[Official Report, 30/7/14; col. 1670.]
a similar provision, as does Section 53 of the Pensions Act 2014, and Section 20 of the Offender Rehabilitation Act 2014.
It is perhaps not surprising that that should be the case, given that it is precisely the same Government who have enacted all those measures. Whether there are antecedents under previous Governments, I do not know. Even if there were, the crucial point is that judicial review relates to the fundamental rights of the citizen. These other matters, important as they are—the noble Lord referred to other items of legislation last time—may well be significant, but there can be nothing more significant than the application of the rule of law and access to justice to test whether decisions have been made lawfully. That is an absolutely fundamental right. Even if there were precedents in respect of other legislation, that does not for a moment justify their extension to this very sensitive and important area.
The noble Lord, Lord Deben, has demolished any case for the robustness of the affirmative procedure as a process that allows effective scrutiny, and other noble Lords are, of course, aware of the limitations of the affirmative procedure. It is simply impermissible to frame legislation in such a way that the Secretary of State could act by secondary legislation without in any way defining what it might be, how far it might go, who might be affected and what it would do to the core principle we have debated for much of today about the right of the citizen to protection against unlawful decision-making by the Executive in any form—not merely the Government but other forms of executive agency. That strikes me as a very poor argument indeed.
The Minister is no doubt unable to depart from the stance that he has hitherto adopted. I, frankly, cannot believe that his heart is in it, whatever he will say at the Dispatch Box. It is a blot on the Government’s bona fides in this area to proceed with legislation in this form. Clearly, there is no way we can take it further tonight, but I hope that the Minister will report back to the Secretary of State and encourage him to redeem his reputation.
Lord Faulks
My Lords, the final speeches at this stage of our scrutiny of the Bill have very much echoed what was said in Committee. As I explained then, it is often necessary to give full effect to the provisions of an Act by making further provision in secondary legislation. Indeed, the noble Lord, Lord Pannick, acknowledged as much in his remarks in that debate. However, he and other noble Lords questioned, as they seek again to do in Amendment 178, the inclusion of a power to make supplementary provision.
Concern was expressed in Committee that the drafting would permit the power to be exercised to make provision about anything which the Lord Chancellor considered fell within the scope of the general area or subject matter of the Bill. This evening, the focus has been on judicial review. The noble and learned Lord, Lord Woolf, rightly stressed its importance and that of the independence of the judiciary. Of course I entirely accept that, and I hope that nothing I have said during the course of our debates has sought in any way to undermine those core principles of our system. However, Clause 79 refers to any provision of the Bill. As noble Lords will be aware, that is a final provision to deal with all the various provisions, which cover quite a wide field, it has to be said. Our debates have ranged over many areas of law and many provisions.
Lord Woolf
I am grateful to the Minister for giving way. Is he suggesting that Clause 79(1) would not as a matter of practice be applied in the case of Part 4?
Lord Faulks
No, I am simply saying that it is not exclusively directed at Part 4. It is to do with any provision in the Bill; it is a general provision for implementation. It would include it, but it would include anything else that came within the scope of Clause 79.
I explained in Committee the narrow construction given to such powers. The noble Lord, Lord Pannick, said that this was an extraordinary provision. The noble Lord, Lord Beecham, however, acknowledged that it found its way into other Acts of Parliament—apparently without demur from the Opposition, including the Coroners and Justice Act 2009, which, as the noble Lord will appreciate, was before this Government came to power. The suggestion that it is somehow the Conservatives or this Conservative-led coalition who have form for introducing such provisions is simply not correct. The Legal Aid, Sentencing and Punishment of Offenders Act and the Offender Rehabilitation Act contain powers to make supplementary as well as consequential and incidental provision. There are recent similar examples within the responsibility of other departments. Those cannot be levelled against the Lord Chancellor, who has been demonised in our debates. They include the Pensions Act, the Local Audit and Accountability Act and the Infrastructure Bill currently before Parliament.
Since Committee, we have considered carefully whether it would be sufficient to rely on that part of the power which is undisturbed by the amendment. Of course, the power is quite wide even without the supplementary provision. It is right to acknowledge, as I did in Committee, that there is a degree of overlap between the various concepts used and adjectives deployed. The fact that the existing powers agreed by Parliament included the power to make supplementary provision suggests that the overlap is not complete. For that reason, we think that the right course is not to amend the provision—with the reassurance as to the possible use of the power, which I mentioned. In other words, this will not be construed as giving any Minister the opportunity to make provisions which are not in the Bill—what he might have liked to have been in the Bill in retrospect—but construed very much in the way that such provisions are customarily construed.
Lord Beecham
In that event, is the noble Lord prepared to say that the supplementary power will not be applied to the judicial review provisions of the Bill?
Lord Faulks
I am not going to give any such undertaking from the Dispatch Box. It will be construed as a matter of statutory construction, and Parliament will view it if there is a change, but I am not going to limit any future Minister or future Parliament on what they want to do in any part of this legislation. This is a standard measure which the noble Lord’s colleague on the Labour Benches, the noble Lord, Lord Davies, though harshly critical of almost every provision in the Bill, said was absolutely standard in all legislation. He contrasted this with other provisions in the Bill which he found more offensive. He is unfortunately not in his place today to expand on his views.
Noble Lords have been concerned that such powers could be used unchecked. I accept, of course, that it can be difficult to determine whether a particular instrument falls within the power under which it is made, but that is the function of the Joint Committee on Statutory Instruments—which, as I am sure noble Lords will agree, is assiduous in reviewing secondary legislation, and, as part of its remit, specifically considers whether the power to make an instrument is wide enough to cover all that is in it.
I turn now to Amendment 179, which seeks to remove the power for any implementing provision to amend primary or secondary legislation in any way whatever, whether it falls within the category of “supplementary” or within any of the other categories mentioned in Clause 78. The noble and learned Lord, Lord Woolf, previously expressed some concerns about the meaning of this provision. In particular he asked why the drafting referred to both the repeal and revocation of legislation and why Clause 79(5) applied only to repeals but not revocations. I am happy to provide clarification on that score. Proper drafting practice is to refer to the repeal of primary legislation but to the revocation of secondary legislation. There is no practical difference between the two. Subsection (5) refers to repeals and not revocations because that provision is only about the enhanced parliamentary scrutiny for instruments which amend or repeal primary legislation, which I alluded to in Committee.
As I explained before, the removal of this provision from the legislation would be a serious constraint on the implementation of the Bill. It would, for example, prevent consequential amendments being made to primary legislation for provisions which have, despite the department’s best efforts, been missed. It may also impede the consequential amendment of existing secondary legislation, something which it is not normally appropriate to do in the Bill itself. Without such amendments it may not be possible to bring provisions of the Bill into force.
Amendments to existing legislation can of course only be made if they fall within the scope of the power. That means that they can only be made for the purpose of implementing what is already in the Bill. I would remind the House that any instrument which amended primary legislation would require approval both in your Lordships’ House and in the other place. I hope that the reassurance that I have already given about that will also go some way to alleviating concerns about the commonplace power in subsection(2), without which it may not be possible to properly give effect to parliamentary intentions.
I am sorry that my noble friend Lord Deben feels that there has been a lack of transparency in the way that the Government have approached this Bill, if that was what he was suggesting. I have endeavoured to assist the House in Committee and on Report. I am sorry that he, as a supporter, feels that we have not assisted him or the House sufficiently. It is a matter which I very much regret and I hope that it is not a view shared around the House by supporters of the Government. I hope that, with the further reassurance that I have given in this respect, the noble Lord will withdraw his amendment.
Lord Pannick
I am again grateful to the Minister. It is not much comfort that Clause 79 applies to a number of subjects, including judicial review, and that it is not the only subject of this odd clause. Nor is it much of an argument that provisions of this sort can be found in some other pieces of legislation. Perhaps we have not as a House adequately addressed the issues when those Bills came before us. That is no reason for not doing so now. Nor, if I may say so, am I much reassured by the Minister’s reliance on the comments of the noble Lord, Lord Davies of Stamford, in Committee. That is perhaps not the strongest point that the Minister has made during our debates tonight, although I recognise that the hour is late and some account can be taken of that. For my part, I still do not understand why the word supplementary is needed in this Bill.
Lord Faulks
Lord Faulks
“( ) Paragraphs 23 to 25 of Schedule (Mutual recognition of driving disqualification in UK and Republic of Ireland), and section (Mutual recognition of driving disqualification in UK and Republic of Ireland)(6)(b) so far as it relates to those paragraphs, come into force on the day on which this Act is passed.”
Lord Faulks
“(3A) Section (Reporting restrictions in proceedings other than criminal proceedings)(9) and paragraph 1 of Schedule (Reporting restrictions: providers of information society services) extend to England and Wales only.”
“( ) sections (Disclosing private sexual photographs or films with intent to cause distress) to (Meaning of “private” and “sexual”);”
“( ) Schedule (Disclosing private sexual photographs or films: providers of information society services);”
Lord Faulks