Deregulation Bill
Lord Tunnicliffe Excerpts(9 years, 5 months ago)
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Lord Tunnicliffe
Lord Tunnicliffe (Lab)
My Lords, in moving Amendment 92C, I will also speak to Amendment 92D, and—this may sound peculiar—I will specifically not speak to Amendment 93. What arguments I shall make in speaking to these two amendments should not be read across to our position on Amendment 93, which stands up on its own, and which will be well presented by the noble Lord, Lord McNally, and supported by my noble friend Lady Thornton.
Essentially, the amendments probe Clauses 83 to 86. Once again, we have degrouped from the proposed original grouping the question that Clause 83 stand part of the Bill. We did that because we want to make it clear that we are not against the underlying concept of this group of amendments, providing that they are benign in intent, and that the Government are willing to accept either our amendment or appropriate other amendments which secure the benign nature of the intent.
It is interesting to look at just how important these clauses are. The Minister, Oliver Letwin, who has the wonderful title of Minister for Government Policy, said in another place:
“In that context, clause 61”—
which is now Clause 83—
“which is probably the single most important clause in the Bill, creates a growth duty”.—[Official Report, Commons, 3/2/14; col. 37.]
Therefore the Minister for Government Policy thinks that it is the most important clause in the Bill.
In Second Reading in the House of Lords, the noble Lord, Lord Wallace of Saltaire, was a little more careful. He said:
“Clauses 83 to 86 create a statutory duty for non-economic regulators to consider economic growth when carrying out their functions. This duty will be supplementary to”—
we may come back to those words, perhaps not today, but in the course of the passage of the Bill—
“and will not supplant, the regulators’ other statutory obligations. It will make them take economic growth into account as they exercise their regulatory functions. Guidance on this has just been published”.—[Official Report, 7/7/14; col. 16.]
I will come on to that guidance.
The importance of this clause is a matter for appraisal. It rates the positive value of this set of clauses between zero—which is pretty low—and £240 million per annum. I am reminded of Tesco’s “Every little helps”. However, it is a little. Some £90 million may be a big figure, but it is stretched across the whole gross domestic product of something over £1.5 trillion, and I ran out of noughts while trying to find out what percentage it is of that. A more down-to-earth figure is that it represents £3 per annum, per worker. Therefore this is a push in the right direction, if you believe in all the benefits, but not that significant a push. If it is the most important clause in the Bill, as the Minister said in the other place, it does not say a lot for the other clauses.
The reason I stress the size of the impact is that when we make a piece of law, we have to consider the unintended consequences. This set of clauses could have serious unintended consequences, because they go to the root of the concept of regulation. To quote Oliver Letwin, a right-wing Tory Minister:
“I will begin by saying something that several in the House might find mildly surprising in the context of this debate: regulation is often sensible and necessary. It is no part of the Government’s plans or our view of life to suggest that regulation is never useful. Indeed, like previous Governments, this Government are presiding over an immense amount of regulation, much of which is constructive and helpful”.—[Official Report, Commons, 3/2/14; col. 35.]
I passionately believe in regulation. I believe that it is the essence of what creates a society. It is the process by which individuals are protected from abuse by persons—I draw the distinction in the sense that “persons” includes firms, the state and all different collections and interests—while enabling the flourishing of society in general. It is essential to civilisation and for most people, it is barely noticed. That is one of the problems with regulation: there is little appreciation of how important it is in society. It is as old as history, of course. The first regulations that we tend to learn about are the Ten Commandments, and they go on and on. We call them laws but, in many ways, criminal laws are just as much regulations as regulations which are not criminal laws, and they overlap.
In this House, due to our longevity, one can pray in aid the Clean Air Acts. One has to be fairly old, but the noble Lord, Lord McNally, will remember the 1962-63 smog in London, which brought the city to a halt, a phenomenon which was common.
Lord Tunnicliffe
We were there together. The regulations that cleaned up the atmosphere totally changed the city of London. It was worth cleaning the buildings afterwards. Nobody knows about the Clean Air Acts, but they are central to our lives.
When I was young, aeroplanes used to crash quite frequently. Being an airline pilot was a dangerous pastime. People used to go on to aeroplanes wondering whether they would get to their destination. People do not think about that now. They assume that it is safe. What makes it safe is a great feast of regulations that governs every bit of that activity to make it incredibly safe. We do not think about regulation when we go into a restaurant; we go in assuming we are not going to be poisoned. Why can we make that assumption? Because there is a raft of regulation that makes sure food is safe; everything from what varieties are allowed into this country in the first place to how it is handled, how it is checked and so on. Regulation is a crucial part of our lives but most people do not notice it.
I notice it because I have been involved in regulation for 50 years. My initial training was as a pilot, and you immediately realise how regulation contributes to the safety of the operation. Over those 50 years I have been a pilot, an air operator, a railway operator, chairman of the United Kingdom Atomic Energy Authority, chairman of the Rail Safety and Standards Board and involved in safety in the MoD. Finally, as a Whip, I had to explain the failure of regulation that caused the Nimrod crash in Afghanistan and killed servicemen unnecessarily. I am a passionate believer in regulation and its protection.
Let us turn to what the clauses do. One of the most useful documents when looking at legislation is the impact assessment. The reason it is useful is that it is usually written by reasonably junior people and they are, putting it nicely, less nuanced than some of the more superior documents. You frequently get to what people are thinking about when they have the legislation in mind. The relevant part of the impact assessment is pages 16 and 17. It is all relevant, but pages 16 and 17 set out the areas of advantage that the impact assessment envisages these clauses will bring about. They include: reduction in duplication costs for information, £28.17 million; reduction of information requirement costs, best estimate, £41.43 million; reduction in time required for inspections, £7.21 million; reduction in unexplained duplication of inspection, £1.01 million; reduced reliance on external contractors, £12.4 million. I remind the Committee that the range is nought to £240 million and the best estimate is £90 million. Those impacts of these clauses are benign. They are about the process of implementing regulations. They are about being sensible with the regulator and making sure there is no duplication, that regulators talk to each other and that processes are efficient. If all these clauses have impacts like those, they are benign, and we support them.
The problem is the clauses themselves. Clause 83(2) states that,
“the person must … consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that … regulatory action is taken only when it is needed, and … any action is proportionate”.
Those words by themselves seem a pretty high test for a regulator. As I tried to illustrate, our lives are made acceptable and benign by regulators acting pretty well as they do at the moment to protect us. So are these new clauses a licence for regulators to approve regulations that kill people to save money? When you put it like that, I am sure everybody will say, “Of course not”. Nobody could believe that the intention of these regulations is to kill people to save money. The trouble is that in my very long career in regulation I have heard discussions about killing people to save money. Nobody uses terms like that. They will say: “The risk of this event is so low and the costs we are having to put in to prevent it happening are so high that it is unreasonable. Why are you forcing us to spend this money for this mitigating measure?”. These conversations go on. They go on in more complex circumstances. They go on in situations where a new regulation is being introduced which, as a consequence, mitigates most of the risk in a particular area as well as mitigating other risks. Other people can then say, “The residual risk is now so small, surely you do not want that regulation to continue in place, costing money, when people only kill other people very occasionally”. In other words, the risk is small enough to be put to one side. Do we intend praying in aid quite strong words such as necessary and proportionate for those sort of circumstances to be envisaged?
Lord Wallace of Saltaire
That is a very interesting point but very wide of the amendment under discussion. I am very happy to discuss that also with the noble Lord off the Floor. Perhaps I could add that the pre-legislative scrutiny committee thought that the clause was a useful part of the Bill. So in recognising all the critical comments that have been made by the opposite side, we are pleased that the committee examined this and thought that it was a valuable addition to a Deregulation Bill. Having made all those comments, and looking forward to further discussions, I hope that the noble Lord, Lord Tunnicliffe, will be willing to withdraw his amendment.
Lord Tunnicliffe
My Lords, I thank all who have participated in this debate. I can respond immediately to the point that has just been made. Our concern about these clauses is not about their existence but about their unintended consequences. The general view is that regulators should do their business in a way that aids society. The vehicle here for society is growth, but forget that—what we are talking about is getting regulators to have a wider concern for society. That is not contested; what is contested is whether the wording is safe and does not have grave unintended consequences. As I said at the beginning, and as the debate has proved in its sheer volume, depth and complexity, these clauses go to the essence of regulation, which is so important.
I very much thank the Minister for his offer to have discussions off the Floor. I think we will probably have to have discussions about discussions first, because we would have to try to bring some focus to those discussions. Clearly, with the CQC, we would particularly like its representatives in one form or another to try to explain how these growth clauses might affect it.
Deregulation Bill
Lord Tunnicliffe Excerpts(9 years, 6 months ago)
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Lord Tunnicliffe
“(5) Under the provisions of the Child Trust Funds Act 2004, the Secretary of State must issue guidance on the support to be provided to account holders when they reach the age of 18 by local authorities and persons authorised to manage a child trust fund for looked after children under section 3(10) of that Act.”
Lord Tunnicliffe (Lab)
My Lords, in moving Amendment 62C, I shall speak also to Amendments 62D and 62E. There are four clauses—Clauses 45, 46, 47 and 48—about child trust funds and they are so exciting that, at Second Reading, the Minister devoted two lines in Hansard to them, to call our attention to the fact that they were there. I hope the Committee will forgive me if, so that my amendments and remarks make sense, I outline the clauses and what they do. I hope the Minister will correct me if I make any errors.
The four clauses concern child trust funds. The first, Clause 45, is about looked-after children and changes the sole manager from being the Official Solicitor to others. Clause 46 is about child trust funds and the role of 16 and 17 year-olds. Clause 47 is about transfers and child trust funds morphing, for want of a better word, into junior ISAs. Clause 48 is the wonderful clause that creates the capacity for enormous regulation, right in the heart of a deregulation Bill—more of that later.
I start with Clause 45, which relates solely to looked-after children. We know that looked-after children are some of the most disadvantaged—probably the most disadvantaged—young people in our society. In some ways, they are a group of people of whom we, as a society, should be ashamed because of the paucity of their outcomes. We know from recent publicity that they are the subject of sexual predation and that they generally, in education, work and so on, have very poor outcomes. When child trust funds were invented in 2003 and introduced in 2004, the Government committed to ensuring that looked-after children would participate in them. In the period within which those children born became eligible for child trust funds—from 2004 to 2011—some 9,000 looked-after children got child trust funds.
To remind the Committee, child trust funds were funds to which the Government made an initial payment. That fund became the property of the child and was managed so that they did not have access to it until they were 18. In general, a parent looked after the management until the child reached the age of 16. However, in 2011 the present coalition Government decided that child trust funds could no longer be afforded but, in a little-known act of generosity, created junior ISAs so that looked-after children would have an equivalent benefit. It is rare for me to find an opportunity to praise the Government but, in this case, I am reluctantly forced to do so.
I do not know whether it was the creation of junior ISAs that led to the creation of the Share Foundation but it is the organisation that manages junior ISAs. It is a third sector organisation and, while it is difficult to judge from just looking it up on the internet, from everything I can find out about it, it seems a thoroughly excellent organisation. It does the management role, but it is also a charity that tries to get contributions to child trust funds for disadvantaged children. As far as I can see, it is to be admired.
The regulations under which child trust funds were set up stated essentially that where there was not a parent or guardian—where the child was a looked-after child—the manager had to be the Official Solicitor. The language of this clause makes it sound as though other people could become the manager. In practice, as far as I can tell from the facts and from the debate in the Commons, effectively the only other manager would be the Share Foundation, because it is a third sector organisation that has shown skill in those areas.
My Amendment 62C is a probing amendment. Essentially, it looks not at the commendable improvement in flexibility, which we support, but at the fundamental dilemma of the whole concept of the child trust fund: what does the child do with the money at 18? The Minister in the other place suggested that one of the possibilities might be to throw a big party. He also implied that that might be a regrettable outcome. We all want every child to act responsibly when they have the benefit of the child trust fund, and take control of it, at the age of 18. Our probing amendment seeks the agreement of the Government that a proper objective of government is ensuring that children have the education and skills to act responsibly.
The amendment seeks to understand what guidance the Government intend to give to local authorities and account providers to advise them on how to deal with this task of helping children to act responsibly. In responding to this, I wonder whether the Minister—I pause to check that I have his attention—might focus on the particular question of looked-after children. What general guidance will the Government give to try to ensure that looked-after children have financial training as they approach 18? As we all know, one of the problems with looked-after children is the precipice they face at 18, as they fall from one area of responsibility to another. It is a period when they particularly need financial education. The Minister might want to comment on that, as it was also the topic of a short debate in the other place on the general context of how all children are educated financially in the later years of their schooling, to prepare them for the difficult world of money.
Turning to Clause 46, we have no amendments. The clause merely gives some flexibility. The present regulations require 16 and 17 year-olds to take responsibility for the management of their child trust fund. This is a sensible piece of deregulation, permitting—if the child so wishes—the parent or guardian to continue responsibility. It is, dare I say, a sensible piece of deregulation.
I turn next to Clause 47, with which goes our Amendment 62D. The clause concerns the transfer of child trust funds into junior ISAs. However, it could never be that simple, could it? Anyone who cares to read the appropriate definition and looks for the words “junior ISA” will not find them; they will find the words “protected child account”. My understanding is that the rest of the world refers to these things as junior ISAs. If I have that wrong, I hope the Minister will tell me.
Assuming I have that wrong, the regulation addresses the issue whereby if you were born between particular dates—I think they are 2004 and 2011, roughly—you get a child trust fund and you cannot have a junior ISA. If you were born outside that time, you do not get a child trust fund but you can choose to have a junior ISA. In many ways, a junior ISA is much like any other ISA. Its essential feature is that it is a tax-advantaged savings product that can roll into the next year and not count against the limit. In fact, it is an ISA for which the manager is a parent or guardian. The two options this clause allows are for the child trust fund to be converted into a junior ISA or, at the age of 18, for the child trust fund to continue and remain in its tax-advantaged situation. That is how I read it and I hope I have it right. I assume that is because the present legislation is a bit woolly about what happens at 18 because 18 will not happen until 2020, and we have only just got around to thinking about what to do about it, but that is good. That is not a criticism; it is good to tidy things up.
The issues of flexibility, choice and competition are prayed in aid of this, and that is probably fair enough. The desire is that this choice and competition should improve the market for these products. Amendment 62D probes that to see how much the Government have thought this through and what their expectations are. The essential question behind the amendment is about the extent to which the Government intend to promote competition between providers. Are they going to go out actively to do that? Are they going to promote competition between child trust funds and junior ISAs or between junior ISAs? We all know that you can create a system of rules whereby financial instruments can move from one description or firm to another, but we also know that the ease with which that can be done varies radically between different financial instruments. I am interested in the extent to which the Government will be looking to make any such competition easy so that there is a genuinely competitive market. I hope that in answering that question, the Minister will be able to give some indication of the discussions he has had with providers about ways to improve competition.
Finally, Amendment 62E relates to Clause 48, which is an absolute delight to somebody like me. I, unlike the party opposite, do not think that every regulation is a bad thing. I believe that good regulation is the essence of a civilised society. Good regulation is a good thing. It is great that the coalition Government recognise this by creating a clause that allows them to make just about any regulation conceivable about child trust funds. Indeed, I really enjoy the language. If I go to page 38, new Section 7C(1) states:
“The Treasury may make regulations under this section if the Treasury think it appropriate”—
I love the word “appropriate” as it means “I have not got a decent argument”—
“to do so for the purpose of safeguarding the financial interests of children, or any group of children, who hold child trust funds”.
New subsection (3) states:
“The regulations may authorise the Treasury to require any account provider or any account provider that is prescribed, or of a description prescribed, in the regulations to take one or more of the following steps in relation to every child trust fund held with it”.
That seems to me to be a description of everything. The most draconian of all the steps thereafter is to,
“to transfer an amount in cash representing the value of all the investments under the fund (whether consisting of cash or stocks and shares) to a protected child account that can be used for investments in cash and is provided by a person specified by—
wait for it—“the Treasury”. The Treasury will be able to make any rules to move anything about to anybody.
Lord Wallace of Saltaire (LD)
My Lords, I thank the noble Lord for that speech and I am glad that he has so much enjoyed reading the details of Clause 48. I confirm that his understanding of these clauses is by and large correct.
The Government are most concerned, of course, about looked-after children. As I understand it, the change in the 2011 Act was introduced partly as a result of pressure from within the House of Lords, so we were doing our job properly at that time—I do not know who was involved in it; certainly, I was not myself. I am also told that a number of charitable bodies and philanthropists have in some instances added to these new junior ISAs for looked-after children, which seems to us to be a good public benefit and a step forward. That is very much part of where we are. The move to junior ISAs allows for a more flexible system, and it is expected that better-to-do parents and, speaking personally, better-to-do grandparents should contribute to junior ISAs when they can afford to do so. One is therefore most concerned about disadvantaged children.
The remainder of the clause concerns the transitional impact as one moves from child trust funds to junior ISAs; I wrote a note to the noble Lord, Lord Kennedy of Southwark, yesterday. Part of the transition is what happens to existing trust fund organisations, which may include credit unions, as much of the money is taken out. At a certain level, there is a point at which the scheme might become unviable. The Government are very concerned about those transition issues.
Financial education is a particular issue for looked-after children, but it is a broader issue for all children. This is why financial education now forms a part of the compulsory national curriculum in England in citizenship classes, which should teach 11 to 16 year-olds the functions and uses of money. Budgeting, managing risk and financial mathematics are also included in the maths curriculum for this age group. The noble Lord might say—I would probably agree with him—that we all know, and have often debated in this House, the inadequacies of citizenship education so far. There is clearly a long way to go. That is something on which I suspect that, again, the House of Lords in its revising role should keep exerting pressure on schools to make sure that citizenship education continues to improve. Of course, the child trust fund and the junior ISA provide excellent ways of increasing a child’s financial capacity and their capacity to learn about the role of savings, mortgages, trusts and the like.
The second amendment was about junior ISAs and protected child accounts. My understanding is that the reason for using “protected child accounts” rather than “junior ISAs” is that, as we have often discovered, the exact names of financial instruments may change over the years, but they will continue to be protected child accounts even if they are later renamed from junior ISAs to something else. That is the simple reason for that. At the moment, we are of course talking about junior ISAs. The question about the transition from one to the other is well taken. We are of course concerned to provide the maximum amount of competition. If the noble Lord is not satisfied with anything I have had to say on this point, I am happy to write to him further on that. One wants a range of providers. We want, however, to make sure that the providers are viable and have sufficient financial reserves.
The noble Lord asked about the Financial Conduct Authority. I can answer with reference to both of these amendments: the FCA has a crucial role in ensuring that account holders are treated fairly, but its remit does not extend to making detailed changes to the child trust fund account rules. Such changes will be required if the safeguards envisaged in Clause 48 are applied. Changes to the CTF rules are most appropriately brought before Parliament by Her Majesty’s Treasury. I am sorry that the noble Lord is so suspicious of Her Majesty’s Treasury—I picked up on that—which has been responsible for the development of child trust funds and the detailed account rules since the account was created.
I think that the noble Lord was most concerned about Clause 48, which is again about making sure that, as we go through the transition, which he rightly points out will be from 2020 to 2029, we guard against any untoward developments. That is why Clause 48 is there: it is very much precautionary. It is intended to ensure that if things that we have not yet anticipated come along, the Government are able to respond. We consider it prudent to seek these powers, given the background of uncertainty about the impact of transferability on the child trust fund market. We do not know—and I cannot speculate on at the moment—what action the Government may need to take in this area or the timescale for such an intervention. However, if it became necessary to use these powers, the Government would have to act promptly and appropriately. Therefore, we felt that we should include this measure, with the proviso that it would be subject to the usual public law safeguards. The overriding interest would be to safeguard the interests of the trust fund holder.
The Government’s usual approach is to consult on changes to the child trust fund rules where possible. However, while the Government will always look to consult and engage interested groups wherever possible, they must also be free to intervene at short notice in response to market conditions. I hope that provides the reassurance the noble Lord seeks.
Lord Tunnicliffe
Will the Minister be kind enough to comment on the parliamentary involvement?
Lord Wallace of Saltaire
I had better write to the noble Lord on that. However, I understand exactly what he is asking and can assure him that I will feed back to him precisely what role Parliament will have in overseeing any such necessary interventions. Having said that, I hope that the noble Lord will withdraw the amendment, and perhaps he and I might have a further discussion off the Floor of the Committee about the exact areas on which he would like further reassurance.
Lord Tunnicliffe
My Lords, I thank the Minister for that response. I will read it in Hansard with great care and compare our two contributions. I will certainly get back to him if I feel that there are any inadequacies. However, for the moment, I beg leave to withdraw the amendment.
Businesses: Regulation
Lord Tunnicliffe Excerpts(11 years, 10 months ago)
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Lord Tunnicliffe
My Lords, I congratulate the noble Earl, Lord Lytton, on the brilliant wording of his Question. He asked the Government whether they are making progress against the test of coherence, efficiently exercised regulations, and objective assessments of need, risk, proportionality and cost benefits. Will the Minister affirm that these are the criteria that the Government are using in the better regulation exercise? Will he further affirm that where removing regulations from consumers, customers and the general public is being considered, the same tests, particularly the objective assessment of need, risk, proportionality and cost benefit, will be considered before any protections are removed?
Lord Wallace of Saltaire
My Lords, I can confirm that. These are close to the five principles of good regulation as set out by Christopher Haskins in 1998 under the authority of the then Cabinet Office Minister, David Clark. We are continuing very much on a course set by previous Governments. There is a constant pull and push between demands for further regulation and the constant need to make clear whether the regulations are still needed. I was very pleased to see that one of the Red Tape Challenge repeals has included the trading with the enemy regulation, which is felt not to be so relevant today as it was perhaps 60 years ago.
Constitutional Change: Constitution Committee Report
Lord Tunnicliffe Excerpts(12 years, 5 months ago)
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Lord Tunnicliffe
My Lords, I thank my noble friend Lady Jay of Paddington for chairing this committee and producing this report and the members of the committee who took part in the study. Normally, that is a formality, but this report is unusual because it is so profound and important. I have listened to the debate and I will not waste the Committee's time by detailed comment on individual contributions, but by my count, nine or 10 of the 12 noble Lords who have spoken have been broadly sympathetic to the report and not sympathetic to the Government’s point of view.
I place myself clearly in the majority. We are sympathetic to the report and note that there are some caveats—the noble Lords, Lord Wills and Lord Rennard, had ways that they would like to develop the report into a procedure—but the clear concern about constitutional change and how it is managed is something that we share. In saying that, we accept the implicit criticism of some of the things that we did during our Administration in the constitutional field.
This House has an important role in our constitution. In terms of the legislative process and scrutiny of the Government of the day, this House is one of the key operational checks and balances on the constitution, but the House of Lords has a further role,
“a proper role in safeguarding the constitution”.
That last point is a quotation from Professor David Feldman, Rouse Ball Professor of English Law at the University of Cambridge, from the evidence that he gave to the House of Lords Constitution Committee in preparing this excellent report.
Not only do I agree with that view, I suggest that in the content of the report and in putting it forward as a comprehensive package of proposals for an agreed process of constitutional change, this House’s Constitution Committee is precisely carrying out the role of constitutional long-stop in safeguarding the constitution of our country.
Professor Feldman argues for constitutional change not being introduced for partisan reasons. That is a noble aim, but I fear that in the context of modern politics and modern political discourse it is an impractical one. Constitutional change is not high on the list of people's priorities, perhaps especially at times of great economic difficulties. Unlike inflation, jobs, health, crime and education, it is not usually a matter of high public or party-political interest.
However, political parties from time to time seek to change the UK constitution. After a long period of very little constitutional change, when we came in as a Labour Government in 1997—and I thank all noble Lords who referred to this period favourably—we did so with a clear mandate for constitutional change, which we enacted with a programme of constitutional change that Vernon Bogdanor, former professor of government at the University of Oxford, described as a formidable series of measures. That programme included a directly elected Scottish Parliament, a directly elected National Assembly in Wales, a directly elected Assembly in Northern Ireland, directly elected mayors in London and elsewhere, legislation on human rights, freedom of information, the regulation of political parties, reform of the House of Lords and the formation of the Supreme Court—a formidable list indeed. After such a constitutional desert, the country wanted and needed constitutional change, and that is what we as a Labour Government delivered. It was a change led by us as a political party, but it was constitutional change for the whole country.
The current Government are in a very different position. As a coalition formed after a general election and with no specific coalition mandate at all from the electorate, the coalition has tried to proceed with constitutional change very much on a partisan basis. The Parliamentary Voting System and Constituencies Bill earlier this year was a wholly partisan piece of legislation. Labour vigorously opposed it in this House, and we were right to do so.
One part of the Bill on boundary changes was designed to damage the Labour Party, although it is interesting and significant how many Conservative MPs whose seats are threatened by the now published proposed boundary changes are worried and are complaining to their party that, in seeking to hurt Labour, the Act may be a major piece of Tory self-harm. The other part, providing for this year’s referendum on an alternative voting system for the Commons, was again an entirely partisan measure designed to help the other half of the coalition, the Liberal Democrats, for whom a changed voting system had long been a holy grail. A shift to AV would also have greatly benefit benefited them electorally.
Constitutional change brought forward for such partisan reasons may indeed, as that piece of legislation is showing, have unforeseen consequences. However, while the principal purpose of this report is not particularly to limit the partisan nature of some attempts at constitutional reform, it might well have exactly that effect. The principal purpose of the report is to provide an agreed method by which constitutional change is brought about based on the notion that constitutional legislation is indeed, as the report puts it, qualitatively different from other forms of legislation and that the process leading to its introduction should recognise that difference. We on this side of the Committee agree with that view. We are sorry to see that the Government do not, as is indicated by the response to the committee’s report from the Deputy Prime Minister.
That response is a poor piece of work. Essentially, it does no more than say that because no precise definition of constitutional change is offered in the committee’s report, a separate process to deal with constitutional change is inappropriate. The Deputy Prime Minister may not be able to distinguish constitutional measures from other pieces of legislation, but the law certainly can and does. Constitutional law and the study of constitutional law is a long-established and distinguished branch of the law and the legal profession.
AV Dicey, the great constitutional theorist and founding father of constitutional law, in his seminal work on the constitution, An Introduction to the Study of the Law of the Constitution, defined the term “constitutional law”, which he saw as including,
“all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state”.
In defining constitutional law, Dicey managed as long ago as 1885 to do something that, apparently, is beyond the Deputy Prime Minister now. A series of distinguished constitutional lawyers have also done so and the merest glance at the groaning shelves of the constitutional law section of a good legal bookshop show that a good few others have managed it too.
We on these Benches urge the Government to think again on this report and rethink their response. They must come up with something better, even just a little better than this wholly inadequate little shard from the Deputy Prime Minister. That the response from the Government is inadequate is particularly unfortunate because the report it is responding to is particularly good.
These Benches agree that a situation whereby the Government are effectively able to change the constitution at will should be avoided. We agree that the desire of a new Government to act quickly is no justification for bypassing proper constitutional process. We agree that the Government should not seek to pass significant constitutional legislation during the wash-up. We tried it with the Constitutional Reform and Governance Bill, and this House made it clear that we were wrong, and we accept that.
We agree that a number of weaknesses in our current constitution arise from the fact that the UK has no agreed process for significant constitutional change. We need a clear and consistent process for significant constitutional change. When a government Bill proposing significant constitutional change is introduced into either House of Parliament, the Minister responsible for the Bill should make a Written Ministerial Statement meeting the terms proposed by the Constitution Committee in its report before us today. Governments should depart from this comprehensive approach only in exceptional circumstances and where there are clearly justifiable reasons for doing so.
This is a good report from a highly regarded and well respected committee of your Lordships’ House. Rather than denigrating it, as the Government’s response seeks to do, the Government should instead accept it, adopt it and implement it. Constitutional change is important in Britain, and it is important that we get it right. So far this coalition Government have not got it right. We as a Government did not get all our constitutional change right, we acknowledge that, but as I believe is also acknowledged, we put in place a series of constitutional changes which are important, which will last and which were, in a large part, right.
Putting in place a new process for constitutional change, as this report proposes, is a valuable and helpful notion. I urge the Minister in replying to put aside the Government’s sad little formal response and take the opportunity of responding in kind to the excellent proposals made by the House of Lords Constitution Committee.
Statistics and Registration Service Act 2007 (Disclosure of Pupil Information by Welsh Ministers) Regulations 2011
Lord Tunnicliffe Excerpts(12 years, 6 months ago)
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Lord Tunnicliffe
My Lords, the Minister will be delighted to know that I do not intend to oppose or object to these regulations. I can see the relief on his face at that statement. I will make a few comments on the reasoning and the likely outputs, and just touch on the confidentiality point.
The mood of the Explanatory Memorandum seems to suggest that the Welsh regulation—I will only talk to the Welsh regulation—is to facilitate the Beyond 2011 Programme. It does not quite say it, but the language of the Explanatory Memorandum seems almost to suggest that the decision has already been made not to have the 2021 census. In this day and age there are probably three reasons for having a census. The first is as a source of information for decision making. I have looked at the Beyond 2011 Programme and the sense of trying to produce something of equivalent capability for decision making is there in the terms of reference, and that is good.
We have also moved on in what the census is used for. The census has become highly valued in our society for academics, for what it can tell us about history, for the insights produced by past censuses— I am not sure what the correct plural is—that the academics have been able to glean, and the extent to which many citizens of this country find great value in being able to look back into their past, their families and the history of their surroundings. I hope the Government have not made the decision to abandon the 2021 census yet, and I hope that in making that decision they will take all considerations into account, including those that are of value to individuals as well as to the decision-making bureaucracy. Perhaps I should say administration—I would not call it bureaucracy because I like administrations.
My second question is: what are they going to collect? The terms are probably well defined in some administration Act, but I would be grateful if the Minister would flesh them out a bit. The two things that stand out are the ethnic group and the source of that information, and what we mean for these purposes. My wife was foolish enough to buy some tickets to the Millennium Stadium, so I have to be partly Welsh in this. I am not sure whether Welshness is ethnic or not, but as sure as hell it is sensitive. Is a sense of Welshness or Celticness part of what is being gathered here, as well as other things? Clearly it is an important issue in the country. What do we mean by the “source of that information”?
The second area is what is almost the political correctness around asking about a pupil’s level of fluency in English where their first language is neither English nor Welsh. I see that if your first language is neither English nor Welsh, fluency in English is quite important. However, fluency in English is also important if your first language is Welsh, because in the United Kingdom the extent of fluency in English must be important information about the way people live in the wider community. We move about this land from Wales to England. If one is gathering information about fluency in languages, one should gather it comprehensively. We have a peculiar situation where, as I read it, if you are fluent in Welsh your fluency in English is not even a consideration.
Lord Wigley
Before the noble Lord leaves that point, I say that I go along with what he says on the need to ascertain fluency in English. However, given the growing importance of the Welsh language in Wales, would he accept that there would be an equal case for ascertaining fluency in Welsh?
Lord Tunnicliffe
I certainly see that the people of Wales might think that there would be an equal case—and because I am not a brave person, I would support that.
The Explanatory Memorandum refers to a series of outputs. Paragraph 7.4(ii) refers to,
“differentiating migrants in order to improve our understanding of moves within and between local authorities in England”.
Once again, I am not clear what a migrant is. Is it somebody moving from Shropshire to Monmouthshire, or somebody with no connection to the United Kingdom who finds themselves in Wales as the first place they come to? Does it include somebody who comes from outside the United Kingdom who goes first to England and then to Wales? What level of granularity are we talking about when it comes to migration? Are we talking about small movements or larger ones?
Finally, I must say a word or two about confidentiality. The essence of much of the data-gathering law in this country is that it puts barriers between departments so that they cannot look at each other’s data, in order to maintain confidentiality. We then break down those barriers in order to use the data in a richer way. That is an entirely reasonable thing to do, but it is equally reasonable that whenever the barriers are broken down, as they are by these regulations, we should seek assurances that we are moving forward on confidentiality. It is no secret that there were unfortunate lapses under the previous Administration. I am absolutely sure that they were not in any way malicious. We acted in good faith and I am sure that this Administration, too, will act in good faith. However, have they made progress towards being able to assure us about improved confidentiality? Are there any new techniques, audits or penalties that will allow the Minister to say that confidentiality when this barrier is taken down will be even better than it was in the past? With those few comments, we are quite happy to support the regulations.
Lord Wallace of Saltaire
My Lords, I thank both noble Lords who have contributed to this brief debate. I feel that the issues of data sharing and data confidentiality are like the issue of the security of the Palace of Westminster. We start off in entirely contradictory directions. We want to bring as many people as possible into the building because we want to be as open as possible, but at the same time we want to maintain the highest possible level of security. It is extremely difficult to combine those aims. We all recognise that it is much the same with data. The Government collect a great deal of data and it is immensely convenient for the purposes of economic and social policy to share as much of that data as possible, but we all know of the problems of confidentiality and of allowing the state to build up a vast database that reveals everything about every individual. The previous Government passed the 2007 Act as part of the effort to reconcile these contradictory directions and to provide an independent authority which would build in the tension between what Ministers want and what is required in terms of the confidentiality of data while attempting to avoid imposing on individuals and businesses the requirement to fill in forms every other day of the week.
Perhaps I may say a little about the Beyond 2011 Programme and the future of the census. A decision has not yet been taken as to what we will do about the 2021 census, but I recognise from the papers I have read that there are a number of question marks over it. First, this year’s census cost £500 million to collect, and it is estimated that the 2021 census may cost around £1 billion. That is an issue that one has at least to consider. Secondly, the accuracy of the census has been going down from one successive census to the next because people move around much more rapidly than they used to. Preliminary estimates of the accuracy of this year’s census are that for each local authority area it is between 94 per cent and 80 per cent. When one has dropped to 80 per cent accuracy, one is into quite severe problems, particularly in terms of social policy, because it is for precisely those vulnerable communities where children do not have good English and where there are new migrants to this country, whether from Pakistan, Hungary or Patagonia, that all the different instruments of local and national government which combine to assist such communities need to be pulled together.
What is going on in the Beyond 2011 Programme is a series of experiments to see how far we can improve the accuracy of data and how far we can perhaps provide, from alternative measures, a rolling programme of surveys and estimates which will substitute for the census in the future. I recognise that the census itself has immense historical value. In our house in Saltaire, which was built in 1863, we have in the hall the five censuses from 1871 to 1911. They tell us who lived in the house, how many people there were, where they were born and so on. The documents provide a fascinating snapshot of what was happening in a mill village during that period. We would indeed lose a very interesting historical record, but resistance to filling in the census form is sadly also growing. This year we ourselves faced questions such as which of our two houses we should put down, and as our younger people come and go, we wondered who we should list as actually resident in the house.
We have been extremely speedy in getting through our statutory instruments this afternoon, and I must say that the expert officials who were going to give me advice in answering all the questions will arrive within the next half-hour. Therefore, in answer to some other questions that were put to me, it would be better for me to write to noble Lords than to offer them my half-informed impressions.
There was a good question about the definition of a pupil’s first language. Again, it is quite right to recognise not just bilingualism in Welsh and English but, as in the part of England in which I do my politics, bilingualism in Urdu and English, or a whole range of other languages; for example, in Bradford and Leeds I am very conscious that the census failed to pick up quite substantial refugee and other communities. In the last election my wife and I canvassed a street that was almost entirely inhabited by people from Burma. I do not think that had been picked up by the authorities at a national level, but the local schools knew what was going on because that was where their children were going. That is part of the reason and justification for this sort of element.
I look forward to hearing from the noble Lord, Lord Wigley, perhaps on another occasion, just how large the migrant flow from Patagonia to Wales is—one of the many flows that are, as we know, going on in all directions at the moment. West Yorkshire certainly has a very large number of different communities and some of them are extremely mobile. A very large number of Poles, Lithuanians and Ukrainians came in the past 10 years. We do not know how many of them are still in West Yorkshire or how many of them have gone home. Again, that is the sort of thing that these sorts of surveys and statistics help us to discover.
I hope that noble Lords will accept that I will write to them about the other questions that they raised. I commend these regulations to the Committee.
Armed Forces Bill
Lord Tunnicliffe Excerpts(12 years, 8 months ago)
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Lord Dannatt
I support the general tone of the three amendments, which promote the mood in the country that we have not got our medal policy right. For three years, I took part in discussion as Chief of the General Staff within the Chief of Staff's committee when we discuss medal issues as they arose in relation to Iraq and Afghanistan. After extensive discussion, we often arrived at conclusions. On a number of occasions, those conclusions were turned down because they offended the existing HD committee rules.
We have talked about double-medalling. There are many examples of the sanctioning of double-medalling. I give an example from my own experience. I was the commander of British forces in Bosnia in 1995-96 and, over that six-month period, the UN operation ended and the NATO operation began. The soldiers under my command for that six-month period had three months under the UN and three months under NATO. It was decided that, because they had served in one campaign loyally over that six-month period, they should have the UN medal and, for the very difficult start of the NATO operation, they should have the NATO medal. Therefore, for that six-month period they got two medals.
There are other examples of how the double-medalling rule has been broken. We have heard examples concerning the PJM. I visited Malaysia as Chief of the General Staff just ahead of the 50th anniversary of independence. It was embarrassing to be quizzed on Malaysian television about the fact that our servicemen could not wear this medal. The awful compromise arrived at in the end, compounding the original compromise that you could accept the medal but not wear it, was that it could be worn for a short period in certain circumstances. I believe that that makes a mockery of the existing rules and regulations of the HD committee.
It is said that these things are decided simply by a committee of civil servants. However, when it comes to evaluating an act of gallantry of the highest order, with a candidate for the Victoria Cross or George Cross, the head of the service of that candidate is brought into the discussions with the committee. Therefore, again, there are more anomalies within the system.
In supporting the general tone of these three amendments, my request is for the Government to recognise that there is a degree of dissatisfaction among the serving community, and particularly among the veteran community, about the inequity in the treatment of medals in recent years. I ask that in the immediate future the composition, rules and regulations of the HD committee be looked at again and reviewed in a transparent and open way so that everyone—serving or veteran—feels that they have been dealt with fairly.
Lord Tunnicliffe
My Lords, I have to confess that I come to this Committee briefed by my own party to take a neutral position. Equally, I have to recognise that, if this matter were to go to a vote on Report and we took a neutral position, the Government would not be realistically challenged. In light of the breadth and depth of the speeches that I have heard today and in light of what the Government have to say, I shall be reconsidering our position.
Lord De Mauley
My Lords, first, I ought to apologise on behalf of my noble friend Lord Astor, who of course would have been here to respond to these amendments. However, as your Lordships will know, he is on standby to deal with a Statement in the Chamber and is therefore unable to be here.
I have to declare a couple of interests: first, as president of the Council of the Reserve Forces and Cadets Association and, secondly, as the Colonel Commandant of the Yeomanry.
The noble and gallant Lord, Lord Craig, was very modest about his collection of medals. I can be even more modest about mine.
I have listened carefully to the very powerful speeches that have been made in this debate. They have all explained the lack of satisfaction with the position, which of course I shall report back to the department. I shall do my best to respond to noble Lords’ points, although I do so with some trepidation, as I have little doubt that I will not satisfy every noble Lord.
Amendment 25 in the name of the noble Lord, Lord Touhig, involves the proposal to insert a new clause, which would see the creation of a new committee to make recommendations to Her Majesty on the grant of medals to members of the Armed Forces. My understanding of the amendment is that it would affect two aspects of the grant of medals in particular. The first is the institution by Her Majesty of new medals for the Armed Forces and the second is the rules concerning the acceptance and wearing of foreign medals.
I should say that recommendations on individual operational gallantry awards are dealt with differently from these matters, but I do not think that we are particularly focusing on those today. They are made by the military chain of command up to the Ministry of Defence, where they are approved by the Secretary of State before being submitted to Her Majesty.
As to the first of the two areas that would be affected—the institution of new medals—I hope that it will be helpful to recall that in 1939, on the outbreak of war, the King was anxious to ensure that there be co-ordination regarding honours and decorations, both military and civil. He directed that the head of the Civil Service should set up and chair a permanent committee to take this in hand and to advise him. This is what we now know as the Committee on the Grant of Honours, Decorations and Medals—as the noble Lord, Lord Touhig, said, the HD committee.
The need for that committee reflects the fact that there is not a simple division between the institution of civil and military awards. For example, major wars impose exceptional demands on all parts of society. The HD committee is chaired by the Cabinet Secretary and its members include Permanent Secretaries from a number of departments, together with the private secretaries to the sovereign and the Prime Minister. It was essential to this approach that the work of the committee should be dispassionate so that the King could be properly advised as to his constitutional role as the fount of honour.
While it must be recognised that there is a political element in decisions on honours, the intention was that decisions on new awards should, so far as possible, avoid politics and the pressure that could be exerted by interest groups. This is perhaps particularly important in relation to decisions about awards to members of the Armed Forces. What is important is that when considering proposals for military decorations the committee and the sovereign have a full appreciation of the case for the proposals and advice based on an understanding of the Armed Forces and their role. This is provided in two ways. First, any such proposals are considered by the Chiefs of Staff, and their written case for the proposal goes to the committee. Secondly, the Ministry of Defence and the Armed Forces are well represented on the committee, with both the Permanent Secretary and the Defence Services Secretary—a serving military officer of two-star rank—being members.
Under the proposed amendment, the members of the new committee would be appointed by the Secretary of State. They would include Members of Parliament and persons who the Secretary of State decides represent members of the Armed Forces. While I can entirely understand the motives of the noble Lord in proposing the amendment, I, like the noble Viscount, Lord Slim, remain firmly of the view that we should neither introduce a directly political aspect to the advice given to Her Majesty, nor try to reflect a supposed view of members of the Armed Forces by persons considered by the Secretary of State to be their representatives.
Moreover, the HD committee would cease to have a role in advising on or making recommendations about the grant of medals to servicepeople. This would mean that we would lose this very important interrelationship with other departments provided by the HD committee and the ability to consider civilian and military awards in the round. It would also mean that the advice on civilian awards would be given on a completely different basis from the advice given on military awards. An example of the need for such discussion was the HD committee’s recent consideration of the creation of a Diamond Jubilee medal. Traditionally, such commemorative medals are issued not just to members of the Armed Forces but to members of the emergency services and those from some other areas of public service. It would have been impractical for such a medal for the Armed Forces to be considered in isolation.
The division of responsibility created by the establishment of a new committee would introduce major difficulties in the other area affected by the amendment—the rules on the award and wearing of foreign awards. It would raise wider issues on the need for consistency in relation to civilian and military awards, and on the important general principle that UK citizens, especially Crown servants—whether military or civilian—should be awarded honours by the sovereign for their services to the sovereign and their country. I shall come back to that point when I turn to the amendment proposed by the noble and gallant Lord, Lord Craig of Radley. I suggest that we already have a politically independent body, free from any suggestion of partisanship, that is charged by the sovereign with advising on matters relating to honours, decorations and medals and has stood us in good stead for more than 70 years. I see no justification for the fundamental change proposed.
The noble Lord, Lord Touhig, suggested an inconsistency of allowing the PJM to be awarded but not worn, other than for one week. Despite the words of some noble Lords today, the five-year and double-medalling rules are the convention by which decisions are considered on medals. However, each situation is considered on a case-by-case basis. Exceptions to the normal conventions are very unusual but are sometimes made after consideration of all the relevant and significant factors. These might be political, diplomatic or other special reasons.
I turn to Amendment 26 from the noble and gallant Lord, Lord Craig of Radley. It proposes the insertion of a new clause, which would permit serving or former members of the Armed Forces to wear, without restriction, medals awarded by Commonwealth Governments. Our rules are strict and long-standing. As I have mentioned, they reflect the wish in 1939 of King George VI to ensure, so far as possible, consistency across government in our response to proposed awards by foreign states. The UK rules provide that no UK citizen, civilian or military, should accept and wear a foreign award or that of an international organisation such as the UN or NATO unless given permission to do so.
There are several reasons why these rules were put in place and why they have, I suggest, stood the test of time. First, they reflect the need to avoid the difficulties that can arise from of any suggestion of patronage or influence if other states honour UK citizens, and especially where they honour UK citizens for the performance of duties owed to their sovereign and their country. Secondly, the rules are aimed at maintaining the status and integrity of our honours system by generally excluding those of other countries for services for which honours have already been awarded by Her Majesty.
In support of these principles, Her Majesty is advised on the award and wearing of foreign and Commonwealth honours and medals by the HD committee. The committee, as I have outlined in response to the previous amendment, is a deliberately non-political committee of very senior Crown servants, representing the departments most involved in issues of medals and honours and the Armed Forces. The committee advises Her Majesty on the rules, acceptance and wearing of foreign and Commonwealth medals and honours. Its work is administered by the Cabinet Office and, in respect of foreign awards, the Foreign and Commonwealth Office which liaises with the Governments of other countries on issues relating to proposed awards.
Her Majesty and her Government equally respect the rules of other countries about what honours may be given to their citizens. The principles I have already mentioned, especially the one that honours for service to the United Kingdom should be awarded by Her Majesty, are applied most strictly to those whose service, whether civilian or military, is to the Crown. Even for Crown servants, exceptions are recognised. An important example is where a Crown servant is seconded to a foreign or Commonwealth country or their Armed Forces in a theatre of operations and works directly for them. In such cases, an award by that country may well be appropriate. Such proposals are considered through the Foreign and Commonwealth Office and the HD committee on a case-by-case basis.
However, the effect of the proposed amendment would be to apply a different approach to the award of medals to the members of the Armed Forces, as opposed to other UK citizens, if the proposed award is from a Commonwealth country. The especially close links between all countries of the Commonwealth, especially the close constitutional connection between those countries where Her Majesty is Head of State, is deeply respected and enormously valued. None the less, it would not be advisable to apply a totally different rule for the special category of awards proposed by the amendment.
Lord Tunnicliffe
My Lords, I put my name down as opposing this clause purely as a formality. When I first looked through the Bill, it seemed to me that the clause effectively took away all consultation on the matter of the application of by-laws. This was discussed at a private meeting and I have received a very constructive response from the Minister. However, the procedure that the Minister describes is an administrative one, and I advised him—I hope he has advised his representative today—that I would be entirely satisfied if he were to read the appropriate assurances in the letter into the record. A letter is an ephemeral thing, whereas Hansard is permanent and more effective. I beg to move.
Lord Wallace of Saltaire
My Lords, I am happy to do that. Indeed, my speaking note covers one of these points. I respond by explaining that the Military Lands Acts 1892 and 1900 allow the Secretary of State for Defence to make by-laws to regulate the public use of military land and certain areas of the sea used for military purposes. Under the 1900 Act, by-laws affecting public rights of use of the sea and shore also require the consent of the Board of Trade. Therefore, one of these Acts referred to defence, the other to the Board of Trade.
Change is needed because over the years the wide-ranging responsibilities of the Board of Trade have been reduced and redistributed. Following transfers of functions, these responsibilities are currently held by the Department for Transport. The clause therefore amends the Military Lands Act 1900 in order to remove the requirement that the Secretary of State for Defence must seek the consent of the Board of Trade when he proposes to make by-laws in respect of certain sea, tidal water and shore areas that might affect certain public rights. The rights in question relate to navigation, anchoring, the grounding of vessels, fishing, bathing, walking and recreation.
As well as removing the requirement for the Board of Trade’s consent, the clause requires that, before making such by-laws in the future, the Secretary of State for Defence should take all reasonable steps to ascertain whether the by-law would injuriously affect existing public rights. If it would, he must satisfy himself that the restriction is required for the safety of the public or for the military purpose for which the land is used, and that the restriction imposed is only to such extent as is reasonable.
The procedure for giving public notice and allowing and considering public objection to any by-law currently runs under two different provisions: one for the Board of Trade—and so, now, for the Secretary of State for Transport—in the 1900 Act, and one for the Secretary of State for Defence through the 1892 Act. However, the provisions are almost identical in effect and the clause therefore provides for the repeal of the provision referring to consultation by the Board of Trade and leaves in place the provision exercised by the Secretary of State for Defence.
The clause will therefore not affect the consultation that is carried out before making military by-laws. As now, the legislation will require the Secretary of State to publicise his proposals, to give an opportunity for the making of objections and to consider those objections before deciding. The clause also amends the Military Lands Act 1892 in relation to the procedure for publishing by-laws once they have been made. The clause removes the requirement for the Secretary of State to publish the by-laws in such a manner as appears to him necessary to make them known to all persons in the locality, and replaces it with a requirement that he publish the by-laws in such manner as appears to him appropriate. This is because interest in the effect of by-laws is no longer limited to the immediate locality.
As part of this process of consultation, the relevant Defence Minister writes to the MP in whose constituency the site is located to tell them about the forthcoming public consultation. Advertisements are then placed on the Ministry of Defence website, in national and local newspapers, post offices and libraries, and on notices around the site. In addition, depending on the location of the affected site and the interests that are engaged, Ministry of Defence officials may contact the relevant devolved Administration; the county, district or unitary authority; the parish council, community council or parish meeting that covers the site; the police authority for the area, or its successor as agreed under the Police Reform and Social Responsibility Bill; all people who have expressed an interest; and a range of government and other organisations, such as the Health and Safety Executive, the Environment Agency, the Forestry Commission, the Civil Aviation Authority, the Maritime and Coastguard Agency, the Crown Estate and, if church property is likely to be affected, the appropriate diocese.
Consultation normally runs for five weeks, although we would consider objections that were received after the end of the period as long as the by-laws had not yet been made. All comments are considered and, if possible, changes are agreed with the MoD site operator. All representations are summarised together with the department’s response and presented to the Minister before he is invited to sign to bring the by-laws into force. As a general rule, the Ministry of Defence consults more widely than we are required to do so by statute. We have no plans to reduce the amount of consultation that we usually undertake, and the provisions in the Bill will not alter our approach in this area.
In view of this full explanation, I hope that the noble Lords, Lord Rosser and Lord Tunnicliffe, will agree with me that Clause 24 should after all stand part of the Bill.
Before I complete the contribution from the Government to today’s Committee stage, I should like to say a few words on a separate but related issue—the report on the Armed Forces Bill published by the Delegated Powers and Regulatory Reform Committee on 14 July. My noble friend the Minister has written to the committee chairman, my noble friend Lady Thomas of Winchester, with the Government’s response to the report. In doing so, he undertook to speak to one of the powers to which the committee drew attention. This was in relation to Clause 32, which deals with the commencement of the legislation, and in particular the transitional measures with reference to courts martial proposed in subsection (5). In his absence, I hope that the Committee will allow me to do so. The report noted that the House may wish to seek a further explanation and satisfy itself that the provisions of subsection (5) should require no parliamentary scrutiny. As the report notes, it is usual for the standard form of transitional power conferred in Clause 32(4) to be exercisable without parliamentary scrutiny.
Subsection (5) is not intended as an extension of the power in subsection (4) but is considered useful to make it clear that the power in subsection (4) will be needed to deal with particular situations that may arise under new Schedule 3A to the Armed Forces Act 2006. The situation that we have in mind is that, if an accused person elects trial by court martial instead of by his commanding officer, the court’s powers are limited to those of the commanding officer.
The Bill affects, but does not diminish, commanding officers’ powers of punishment, so it will be necessary to provide for the powers that the court martial will have in a trial after commencement of the Armed Forces Act in the case of an accused who had made his election before commencement. This is therefore very much a transitional measure. I reassure the Committee that our intention is to ensure that the court martial will not be able to impose a more severe sentence than that which a commanding officer could have imposed when the accused made his election. For those reasons, I hope that the Committee will accept that it is appropriate that provision under subsections (4) and (5) should be made by statutory instrument with no parliamentary procedure.
Lord Tunnicliffe
My Lords, I thank the Minister for his full and accurate response on the matter of consultation and for reading it into the record. I am satisfied that the clause should stand part of the Bill. I shall read in Hansard with great care what he said on the Constitution Committee’s response and we will return to it if there is a problem. However, at first pass it seems that the matter is properly covered.