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Grand Committee

Tuesday, 18 November 2014.

Deregulation Bill

Deregulation Bill

Committee (7th Day)

3.30 pm

The Deputy Chairman of Committees (The Countess of Mar) (CB): My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Clause 68 agreed.

Schedule 18: Poisons and explosives precursors

Amendment 82

Moved by Lord Wallace of Saltaire

82: Schedule 18, page 175, line 13, leave out “A” and insert “Subject to subsection (3A), a”

Lord Wallace of Saltaire (LD): My Lords, Schedule 18 amends the Poisons Act 1972. It introduces a common licensing system for the acquisition, importation, possession and use of poisons as well as of chemicals that can be misused to make explosives—termed explosives precursors—within Great Britain.

Current poisons controls are outdated and ineffective. In 2012, the Poisons Board made a number of recommendations after being reconstituted to review the Poisons Act 1972 as part of the Red Tape Challenge retail theme. These included that the Poisons Act 1972, the Poisons Rules 1982 and the Poisons List 1982, which are owned by the Home Office, should be amended to reflect current retail market practices. It also recommended that greater clarity should be given regarding inspection and enforcement of retailers and businesses involved in the trade of poisons, which are very often of course for household use. Schedule 18 does that.

In making these changes, we are aligning controls of dangerous poisons with new regulations that control the sales of explosives precursors that are susceptible to being used to create explosives to commit terrorist attacks. The Control of Explosives Precursors Regulations 2014, which implement EU regulation 98/2013 on the marketing and use of explosives precursors, came into effect on 2 September 2014. The amendments to the Poisons Act 1972 will create a streamlined, cohesive regime that will make it easier for retailers to implement and reduce costs, because there is only one regime to follow.

Schedule 18 removes the current requirement for businesses to annually renew a local authority listing that allows them to sell common household products. This will save businesses some £20,000 a year. Paragraph 1 abolishes the statutory Poisons Board, whose constitution is written into the Poisons Act 1972. Abolishing the statutory body would mean that appropriate and specialist advice can be sought.

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The purpose of Amendments 82 to 87 is to make minor technical amendments to Schedule 18. Amendments 82 and 83 provide for the reporting duties in new Section 3C of the Poisons Act 1972 to apply to explosives precursors at all concentrations, as required by EU regulation 98/2013, which is directly applicable in the UK. New Section 3C will impose reporting duties in respect of both poisons and explosives precursors, and is therefore wider than the EU regulation. However, the reporting regime in respect of explosives precursors must be compliant with that regulation.

Amendment 84 creates a new power by which the Secretary of State may, by regulations, make provision modifying new Section 3A of the Poisons Act so far as it applies to any supplies that involve dispatch of a regulated substance to Northern Ireland or export of it from the United Kingdom. Currently, the proposed new Section 11(6) of the Poisons Act provides that any reference in the Act to supplying something does,

“not include … export to a person outside the UK”.

Amendment 87 will remove this aspect of the definition. Amendment 84 will enable the Secretary of State to make regulations about export from the UK, and dispatch to Northern Ireland, having regard to EU regulation 98/2013, in particular its territorial scope, and other prevailing circumstances.

Amendment 85 clarifies that the 12-month time limit for commencing criminal proceedings for offenders under the Poisons Act applies to summary offences only. There is generally no limit for triable offences.

Amendment 86 introduces a transitional provision relating to maximum statutory fines in the magistrates’ court pending the commencement of provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which will remove such maxima.

Amendment 87 is purely consequential on the new regulation-making power introduced by Amendment 84. That is to say, it changes the definition of supply for the purposes of the Poisons Act so it does not automatically exclude exports. I beg to move the amendment and that the schedule stand part of the Bill.

Lord Skelmersdale (Con): My Lords, I have been prompted to rise to my feet on Amendment 84, to which the Minister has just referred. I will ask a very simple question: are there no regulatory supplies from Northern Ireland, given that Amendment 84 refers to,

“any supplies that involve despatch of the substance to Northern Ireland or export of it from the United Kingdom”?

Of course, Northern Ireland is included in the United Kingdom, so I wonder if the Minister could, at some point in this debate, answer my question.

Baroness Smith of Basildon (Lab): My Lords, I had not intended to speak on this; I think the Minister might have moved “clause stand part” in error at the end of his comments, because my next amendment is a clause stand part debate. On the Northern Ireland question, my understanding is that Northern Ireland is part of UK, so I was rather surprised that the direction was to Northern Ireland and from the UK. That is a similar point to the one made by the noble Lord, so was it just an error in the drafting of the legislation?

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Lord Wallace of Saltaire: My Lords, Northern Ireland has separate legislation that controls sales of poisons and will implement separate legislation that controls sales of explosives precursors and their exports. The reasons for this are entirely clear and that is why this is concerned with Great Britain.

Baroness Smith of Basildon: Then the term “UK” might perhaps be incorrect in terms of drafting.

Lord Wallace of Saltaire: The UK is, of course, an integrated market, so it is difficult to say, “exports from Great Britain”. That is the reason why we vary between Great Britain and the UK in different references.

Lord Stevenson of Balmacara (Lab): We are getting somewhat held up: I am sure that this can be resolved very quickly. The point raised first by the noble Lord opposite was that we need to know what the Government are trying to say here. Are they saying that material exported out of the United Kingdom, including Northern Ireland by definition, is caught by this, or is it meant to mean that there is a separate territorial area called Northern Ireland for which different regulations apply and that therefore, the schedule bites only on Great Britain?

Lord Wallace of Saltaire: I will write to the noble Lord if I am misinformed, but I think that if this were to read, “Export for the United Kingdom” or “Despatch of the substance within the United Kingdom to Northern Ireland,” it would be entirely clear.

Amendment 82 agreed.

Amendments 83 to 87

Moved by Lord Wallace of Saltaire

83: Schedule 18, page 175, line 20, at end insert—

“(3A) For the purposes of section 3C however, and the meaning of “regulated substance” in or in relation to that section, a “regulated explosives precursor”—

(a) is a substance listed in Part 1 of Schedule 1A, and

(b) includes a mixture or another substance in which a substance listed in that Part is present,

but, in each case, only if the substance or mixture is not excluded.”

84: Schedule 18, page 178, line 18, at end insert—

“( ) The Secretary of State may by regulations make provision modifying this section so far as it applies to any supplies that involve despatch of the substance to Northern Ireland or export of it from the United Kingdom.”

85: Schedule 18, page 184, line 12, leave out “this Act” and insert “section 3A(3) or (4), 3B(3), 3C(8) or 7(2)”

86: Schedule 18, page 184, line 38, at end insert—

“(12) In relation to an offence committed before section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force—

(a) the reference in subsection (1)(b)(i) to a fine is to be read as a reference to a fine not exceeding the statutory maximum;

(b) the reference in subsection (4)(a) to a fine is to be read as a reference to a fine not exceeding level 5 on the standard scale.”

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87: Schedule 18, page 187, line 33, leave out from “charge,” to end of line 35

Amendments 83 to 87 agreed.

Debate on whether Schedule 18, as amended, should be agreed.

Baroness Smith of Basildon: My Lords, I am grateful for the Minister’s brief introduction to this debate, which he may want to repeat. The reason for tabling a stand part debate is not that we are necessarily opposed to the schedule, but a number of questions arise on which it would be helpful to have clarification. I raised this issue last week when we discussed the clauses on alcohol and the sale of liqueur chocolates to children. I find it difficult when asked to consider schedules to Bills—or any legislation—when there has been a government consultation but we do not have the responses to it. All that is available is the consultation document, the impact assessment and the government response to the consultation, not the consultation responses themselves.

I understand that in some cases there may be reasons of confidentiality, but the consultation document refers to personal information being kept confidential. That is of course appropriate, but I found it difficult to analyse and assess the Government’s proposals. It would have been very helpful to know what some of the experts and petitioners thought and what were the consultation responses. I shall come to a couple of reasons why.

The first issue is that of home use. The impact assessment says that known uses of Part 1 poisons for the home are rodent control and metal extraction. I have worked hard on this, but I do not know what metal extraction in the home is. I should be grateful if the Minister could enlighten me. I can think of other uses for small amounts of poison in the home, but metal extraction has got the better of me.

The list of consultees in the Government’s response to the consultation is interesting. Some clearly involve domestic uses, such as the British Tropical Fish Club, which apparently is different to the Tropical Fish Club. We have the Model Power Boat Association, the Pool and Water Treatment Advisory Group and the Ornamental Aquatic Fish Trade Association. It is more understandable why they would use Part 1 poisons in the home—albeit, I would think, in small quantities—but the issue of metal extraction has got me beat, so any advice would be gratefully received.

The Government’s charts in their summary of responses were helpful. Under questions for home users of Part 1 and Part 2 poisons, less than half of those who currently use such poisons would continue to do so. Perhaps the Government are seeking to reduce the number of poisons on the Part 1 and Part 2 list in the home, but I do not think that that was listed as an objective of the legislation. That is where the consultation responses would have been useful. Two of the questions in the consultation are: what do you use Part 1 poisons for and what you use Part 2 poisons for? Not being a scientist, not knowing what the chemicals are for, I would find that very useful.

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The consultation also asked whether alternatives could be used and what they are. In assessing whether it is justified to say that more than half the people would not continue to use those poisons, would it not be helpful to know—and to have it in the summary or published in the consultation—how many of those people are likely to use alternatives to what is available now? As it stands, we may be preventing people who have ornamental fish or tropical fish tanks at home enjoying their hobby, or their sport with model boats and so on. I do not know because we do not have that information. If the Minister can address the issue of the consultation and the points that I have raised about the alternatives available, I would find that quite helpful.

3.45 pm

The other point that I would like to pursue with the Minister is the issue of licences. What is being proposed is a new licence, with home owners having to obtain a licence in advance for Part 1 use, although business users would not. Can he help me to understand the logic of saying that while a home user would need a licence in advance for what I imagine to be relatively small amounts of chemicals, although since that is not in the consultation I do not know what for, a business user would not? I would assume that a business user would have a much larger degree. If he could explain that again, I would find it helpful.

When this was brought forward the Government, quite rightly, took specific advice on the poisons from the Poisons Board, which recognised and identified some weaknesses in the current regulatory regime. Those are listed in the impact assessment, which says that:

“The poisons register in its current form does not prevent someone purchasing poisons for misuse … Licensing retailers does not add significant protection against misuse”,

and that:

“Business-to-business transactions are not monitored”.

So I understand why regulatory systems would be changed to address weaknesses but where issues such as poisons and explosives are concerned there has to be a presumption in all cases about public safety, as I am sure the Minister would agree. Yet if we read further on, it is quite clear that the Poisons Board’s preferred option was not the option 2 of licensing, which the Government are now proposing, but in fact was option 3.

It would be helpful to know why the Government took the advice of the Poisons Board on what weaknesses there are in the current regime but then did not take its advice on what the solution should be. Part of it is this deregulatory mania which the Government have. While no one wants to see unnecessary regulation, I am sure that the Minister and other noble Lords would accept that there are times when regulation is appropriate, particularly in areas of public safety. I am struggling to understand the logic in some of the Government’s thinking on this issue.

Can the Minister also say something about the costs of licences? What he has in the documents that I have read—there are a few—is what the costs will be for implementing the new licences. He says that businesses

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will be liable for those costs, although it is something of an irony that after last night’s debate and other debates we have had on opting out of the European police and justice measures, the Government are now seeking some funding from the European Union to pay for specialised training in this area, so that businesses will not have to fund it themselves. However, the Government say that businesses will have to pay for training on the new regulations in regard to licences and that individuals will have to pay for those licences and, understandably, for cost recovery in regard to them. Unless I have missed it, I cannot find anywhere in the documents what the costs of those licences are likely to be. Is there anything that he can say to advise on what the costs will be?

I understand that the Government are committed to full cost recovery on licensing regimes but there remains one outstanding area where I am told that the Prime Minister himself has vetoed it. It is on the issue of firearms licences, which currently cost just £50 for five years and £40 for renewal. While I do not necessarily disagree with the Government’s view of having full cost recovery on these licences, it would be helpful if—again, on the issue of public safety—the Minister could say why those who have firearms and shotguns should not pay full cost recovery when somebody who wants some chemicals to keep their fish tank clean should pay full cost recovery. I am concerned that, having made a promise to have full cost recovery on all licences, there seem to be just two involving firearms that are exempt. I do not understand why that is.

Can the Minister also confirm that the enforcement body would be the Home Office? What funding has been made available for that? I am not convinced that the Home Office has a particularly good record on the Gangmasters Licensing Authority. If the Home Office is to be responsible, we need an assurance that this will be properly policed and enforced; otherwise it will be a step backwards.

If there are weaknesses in existing legislation, should not those who deal with the consequences of such weaknesses in terms of explosives and poisons be consulted? Although the weaknesses are identified by the Poisons Board, I am not sure what the consequences are. What I found curious in the list of consultees—I assume that it is an almost complete list—is that, for example, the British Fireworks Association and many others were consulted but the fire service was not. If there are issues around explosives or around poisons that may escape into the air and cause difficulties, surely the fire service should have been consulted alongside the British Fireworks Association and others. If there are medical concerns relating to the home use of chemicals—for example, if someone ingests them—should the NHS not be consulted? We need to understand the extent of any problem that now exists, if one does, and to see whether there is any way in which this can be better dealt with.

I have posed a series of questions to try to understand the Government’s thinking. As I have said, we never want to regulate for the sake of regulating, but nor do we want to deregulate for the sake of deregulating if we are removing public protection. However, here it seems that we are merely replacing one set of regulations

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with reregulation rather than deregulation, with additional costs to some users. If the parts of the Government’s consultation that we have been allowed to see are accurate, a number of people who currently use poisons in small amounts at home, such as for their fish tanks, may in future be prevented from doing so. If the noble Lord can address those points, that will be quite helpful.

Lord Wallace of Saltaire: My Lords, I thank the noble Baroness for that very detailed and well prepared set of questions. I have to agree with her that in a sense this is a much less deregulatory measure than many of the others in the Bill. It is a revision of regulations more than deregulation. Indeed, in terms of safety, these proposals are designed to strengthen controls over those selling and purchasing dangerous poisons and explosives precursors. We are continuing a long trend of tightening government regulation of poisons and, increasingly, of explosives precursors.

A hundred years ago, a good many arsenic compounds were available for purchase and they were, on occasion, used for nefarious purposes as well. Over the last 40 years, the European Union has increased regulation and, in some cases, has banned a number of poisonous substances for use not only in the home but in gardens and allotments. Here, we are in part implementing those regulations. We are also concerned, as the noble Baroness will understand, with the use of substances which had not been misused as explosives precursors in the past but which are now widely recommended on the internet for those who wish to make explosives for nefarious purposes—hydrogen peroxide and others. I am referring to substances which, when purchased in large quantities, can be mixed into what then becomes explosives. There have been one or two cases of people being accused of terrorist offences who had managed to purchase large quantities of the same substances that hairdressers, for example, purchase in small quantities.

I note in the extensive list that I was given of the various different substances that there are a number of metallic substances. Their main home uses are listed as metal cleaning, etching, electroplating, painting and soldering. I am told that there are those who even use metal substances and metal complexes at home for extracting the gold from their old mobile phones. This is a delicate issue. Members of the Committee may not do this, but others may wish to do all sorts of things at home. Happily, my children did not get into chemistry particularly heavily. On the question of the Poisons Board’s preferred options, I am told that the Poisons Board accepted our policy approach and objectives in its final note to the Minister for Security and Immigration.

The noble Baroness has seen a summary of recommendations and I am happy to talk further to her about what extra things she would like to know about the replies to the consultation.

Baroness Smith of Basildon: It was not a summary of recommendations, but a summary of the consultation responses, and I identified one or two that were not included in the summary but would have been very helpful in considering this clause.

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Lord Wallace of Saltaire: My understanding is that Appendix A of the report on the consultation had a summary of consultation responses. I have now been deluged with notes that I will attempt to absorb.

The Department of Health was a statutory consultee as part of the Poisons Board and was consulted on the draft legislation regarding any consequential amendments. The Home Office ran an open research call to find research into alternative substances for Part 1 poisons and licensed explosives precursors. Research proposals are currently being evaluated. The Home Office remains the primary enforcement body, although a range of others, including the police, come into play at certain points.

In some ways I rather wish my wife were here. She is much more experienced in poisons for household and garden use. She has strong views about some aspects of EU regulations because a number of poisonous substances, in safe hands, are very useful to use in the home and garden. However, policy in the United Kingdom and in other countries has been moving in the direction of tightening up controls on these because of what can happen in unskilled hands and how desirable it may therefore be to tighten control of them.

On the question of how much a licence would cost, a new licence application costs £39.50 at the moment for a maximum three-year period. Any amendments to current licences are free of charge to encourage compliance with conditions to notify changes in circumstances. Replacements of lost or stolen licenses cost £25. The Home Office has kept costs to a minimum by using existing IT systems as far as possible. A similar background to the checking process for firearms licensing is being followed up, with some differences. No home inspections or face-to-face interviews will be conducted.

Firearms licensing is governed by a different policy and we are looking to full cost recovery in this area, but I will write to the noble Baroness about the comparisons that she has been making with the licensing of firearms. I understand the point that she is making.

Baroness Smith of Basildon: I appreciate that because I have had different responses from different Ministers on the issue. Before the Minister moves on, I asked about the cost of new licences. I am not sure whether that was the figure he gave me. If it was, I thank him. I was not 100% clear about whether it was the new licence for home use that he referred to. Can he clarify that he was saying that the fire service was not consulted? Will he confirm that he will publish the consultation?

4 pm

Lord Wallace of Saltaire: I do not have an answer on the fire service and will have to come back to the noble Baroness on that. The costs I was quoting are for new licence applications. I hope that that answers the majority of the questions raised by the noble Baroness, and I am happy to talk further or correspond if necessary on any other questions that I have not followed up. I thank her for the detailed effort she has made to ensure that we have got it right. It is an important area, although I have to say that when I

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looked at the extremely long list of the various substances that will now be controlled differently, I did not understand what a good many of them were or what their uses are. This is unavoidably a rather specialised field.

There is a regulation-making power in the schedule to vary, add or remove a substance or limit its concentration. After all, chemical substances are changing in terms of how they may be used, and our ability to combine chemicals for various purposes is also changing, so a degree of flexibility is highly desirable.

I have now been told that we have consulted the fire service, particularly on home storage, and that it supports the proposals.

Baroness Smith of Basildon: I am grateful for that, but I am puzzled why, in the list of consultees, the two I asked about were not included, although the Minister has been able to reassure me. It would be helpful to have a comprehensive list of consultees. I have one final point. I asked about the publication of the consultation responses—I made that same point in last week’s debate. Can he confirm that the Government, subject to the normal procedures of ensuring confidentiality of those who have responded, will publish the full consultation responses on the two consultations—poisons and explosives?

Lord Wallace of Saltaire: That is entirely understood. I will do my best on that, and will write to the noble Baroness with the assurances that she is asking for.

Schedule 18, as amended, agreed.

Clauses 69 and 70 agreed.

Clause 71: Reduction in regulation of providers of social work services

Debate on whether Clause 71 should stand part of the Bill.

Baroness Donaghy (Lab): My Lords, I am asking the Government to withdraw Clause 71 on social work services and registration. Clearly there is a history to this which I shall not spend a lot of time on, but I have to say a couple of things about it. First, the previous Labour Government issued a guarantee in 2008 that any delegated service would be required to register with the regulator. The Government propose to withdraw that provision. Secondly, in June last year the Delegated Powers and Regulatory Reform Committee criticised the Government’s proposals to remove regulation of social work providers. It said:

“Registration would allow the imposition of national minimum standards and requirements as to the fitness of providers. It would also provide a mechanism for removing providers who are failing to meet standards”.

The Government subsequently retained separate registration but not inspection for external providers through the Providers of Social Work Services (England) Regulations 2013. The discussions are as recent as that. Now the Government are seeking to reverse that decision and to remove the registration requirement.

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This is despite the fact that there was no clear support for removing regulation in the original consultation responses.

The Government did not consult on this issue as part of the consultation in April 2014 on extending outsourcing in children’s social work. During the debate in Committee in the House of Commons on whether the clause should stand part of the Bill, the Deputy Leader of the Commons, Tom Brake MP, acknowledged that there had been no clear support for removing the registration requirement.

The Office of the Children’s Commissioner for England raised concerns and stated:

“We consider all delegated social care services should be required to have formal registration with Ofsted in addition to an expectation that they will be held to account by rigorous and expert inspection, just as local authorities currently are”.

Ofsted conducted its own consultation on a regulation and inspection regime for social work providers. It consulted children and young people for their views, unlike the Government. Ofsted found that respondents to its consultation wanted thorough checks to be made on companies and applicants that plan to provide delegated functions. They also felt strongly that registration checks should be backed up by later inspection.

Local authorities thought it would be,

“important to ensure there is a proper, external-to-the-local-authority registration process to enable a local authority to be confident in using the services provided by the social work provider”.

I should, perhaps, remind the Committee that the Ofsted registration requirements cover important areas of social work provision, such as the “fit and proper person” test for those running social work providers, financial viability, registered manager, sufficiency of qualified staff, vetting checks and conditions of registration.

The Government propose that the external providers of social work services will not be inspected in their own right by Ofsted, and nor will they be registered as providers in the way that children’s homes and adoption societies are. There will be no overview of their activities across local authorities where they hold contracts and no visible assurances for the public about their financial viability, quality standards or working practices. Unison, the trade union that represents social workers, believes that the regulation and inspection of social care services are essential to safeguarding vulnerable children and their families. It also said that regulations should not be regarded as a burden in this extremely sensitive area.

Internal contract monitoring by local authorities cannot be relied on by itself to ensure that acceptable standards in the safety and quality of social work with looked-after children are upheld. By removing the separate registration of providers, the Government are relying on Ofsted to pick out issues about their fitness to operate as part of its inspections of individual local authorities. However, providers could operate across many local authority areas. Local authorities already face challenges because of funding cuts and it is likely that contracts will be held by larger private or voluntary sector contractors. Close ties with local authority teams and systems will be weakened; their interests and priorities will be different from those of the client

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authority. The drivers of service provision will be cost driven. Relying on local authority inspection will be inadequate and emphasises the need for a single registration point.

The focus of the single inspection framework is the local authority, and this will necessarily limit the range of regulatory action Ofsted takes in relation to the failings of an outsourced provider. Ofsted needs to be able to focus on the provider in its own right, rather than on individual local areas of work. It also creates a lack of symmetry in the system by requiring providers of children’s homes and fostering and adoption placements to be registered and inspected in their own right while providers of social work services—which are exercising major statutory functions, taking sensitive and critical decisions about placements for children—are not required to do so. How can the Government defend such inequality? Do the Government think that providing social work services is somehow less important? Are the Government confident that this act of abandonment will not lead to a lowering of standards?

Finally, the College of Social Work is calling on the Government to pause, so that the service implications of these regulatory changes can be fully considered in the light of real evidence. There needs to be detailed consideration of potential conflict of interest in the provision of children’s services and the management of risk. The College of Social Work has stated:

“The proposals raise serious and important questions about how services to some of the nation’s most vulnerable children and young people may be delivered in future”.

I can only echo that statement and ask the Government to withdraw Clause 71 before it is tested on Report.

Baroness Meacher (CB): My Lords, I support the noble Baroness, Lady Donaghy, and agree that Clause 71 should not stand part of the Bill. Among the main reasons for my position is, first, that the delegation of local authority statutory children’s services functions, particularly child protection functions, was approved only very recently, and we simply have not had the time to clarify whether the new arrangements are working. Secondly, the delegation of these functions was approved by statutory instrument, and therefore not subjected to very thorough parliamentary scrutiny—we already have, if you like, an unscrutinised situation, or one subject to inadequate scrutiny, yet these functions are crucial to the future lives of very vulnerable children.

It was presumably no accident that these statutory functions were not included in the Children and Young Persons Act 2008, which provided for the delegation of functions in relation to looked-after children and those leaving care. Those are very sensitive areas of work, and one can question their delegation, but these new functions were not included even then. I should make it clear that, along with members of the College of Social Work, I support the provision of children’s and adult services by the third sector in partnership with the statutory agencies—this is not an ideological point at all—but as recent scandals have shown, the third sector is not immune from providing very poor-quality services to very vulnerable people. It is this risk that needs to be guarded against in equal measure—

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I emphasise equal measure—with public services. I sometimes worry that the Government assume that any private service is somehow good, while public services are suspect. That seems to me to be an incredibly dangerous assumption.

I share the concern of the noble Baroness about the limited parliamentary debate about the new regulations and, more particularly, the concern that the removal of the one safeguard from these functions is proposed when the evidence for the efficacy or otherwise of these delegated services is not yet available. Will the Minister explain to the Committee why the Government are proposing to remove the requirement to register with the inspectorate from these newly delegated services? Is this a matter of cost? If so, what will be the annual saving to the Exchequer from this change? Has a cost-benefit analysis been done of Clause 71? Is there any evidence to suggest that the proposal will not lead to a deterioration in the quality of service provided? These really are very important questions for the Government to answer.

It would also be helpful to have some explanation about how the local authority responsibility for these delegated services will work. As I understand it, local authorities will remain accountable to the regulators for the quality of the delegated services, but they will surely need to undertake some form of inspection role in order to satisfy themselves that the services are of an acceptable quality. But will they be funded to do that? We know how hard-pressed local authorities are; if they do not have the funding for a job, they will certainly not be able to do it. If not, is it right that a local authority should be held responsible for poor-quality services that do not fall within its purview? It all feels really very difficult from the local authority point of view and therefore the whole thing feels shaky. Who is going to lose? The vulnerable children, at the end of the day. I hope the Minister will respond to these questions and provide some assurance to the Committee that the Government are not taking unreasonable risks in Clause 71.

4.15 pm

Baroness King of Bow (Lab): My Lords, I support this amendment which is also in my name. Never has there been greater concern around failures of child protection and greater revulsion about the scale and breadth of the abuse visited on vulnerable children. In light of so many recent scandals, the Government’s position seems at best puzzling and at worst possibly negligent at some point in the future. The amendment would ensure the continued requirement for those providing social work services on behalf of councils to be registered, regulated or inspected. The two key points at issue are the lack of consultation on the one hand and the general opposition from almost all those involved on the other, as well as the fact that we remain unclear as to how this will work in practice for local authorities.

The Minister will no doubt have read with great interest the views of the College of Social Work. The Government’s approach is puzzling because I accept that they want to improve safeguarding services. The Minister will no doubt set out, like his counterpart in

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the other place, that the Government views registration of providers of social work services on top of their contractual arrangements as a potential duplication. Those of us opposing this view it as a potential extra risk to children.

The College of Social Work points out that earlier this year the Government published a set of regulations to accompany the Children and Young Persons Act 2008 to allow local authorities to delegate almost all their statutory duties. These reforms, taken in the round, could have an extremely significant impact on the delivery of social work services in England. There is a feeling in the sector and indeed elsewhere that there has been quite simply inadequate debate around these very serious and important issues.

The College of Social Work summarised its objection to Clause 71 as follows:

“The new power to delegate social work functions is at the experimental stage and the evidence is not yet available for conclusions to be reached about the impact on the most vulnerable children and adults. It may in future be appropriate to remove this requirement to register with the regulator but it would be risky to remove this safeguard at the present time”.

My main question to the Minister is: why would he want to take this risk at the present time? Why would the Government want to take the risk, given all the problems that we know are taking place at the moment?

As we heard from my noble friend Lady Donaghy, the consultation carried out by the Government did not find support for this—far from it. Even Ofsted’s own consultation found a strong desire to maintain registration checks. Local authorities themselves are calling for external inspection. Why will there be no overview of quality and working practices in some of the key areas, as outlined by my noble friend Lady Donaghy? Why is asymmetry and inequality in the services essentially being written into the Bill?

In summary, if the registration requirements are removed, the Government are essentially dismantling what the CSW describes as the backstop. Will the Minister explain why in these current circumstances the Government would want to remove a safety backstop? Surely, if anything, the Government should be bolstering the backstop and not weakening it. For that reason, I support the proposition that Clause 71 should not stand part of the Bill.

Lord Wallace of Saltaire: My Lords, I recognise the passion with which these objections have been made, as well as the experience and expertise of those who made them. I shall be very happy to hold further conversations between Committee and Report to make sure that we can come to some agreement about the balance between regulation and potential risk, to which the noble Baroness, Lady King, rightly pointed. We are all quite clear that children’s services are a very important area where we must make sure that we get the balance right.

The Government’s view after consultation and consideration is that the double layer of inspection provided by Ofsted’s national perspective and the responsibility of local authorities to inspect and to license providers is duplication. Our view is that Ofsted’s existing duty to register providers who may discharge

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children’s social care functions is completely separate from its duty to inspect and to hold local authorities to account in the discharge of their functions.

I am also very grateful for the correct comment of the noble Baroness, Lady Meacher, that we are talking not just about for-profit providers but about third sector providers, which often provide very good services in this area. Nevertheless, one wants to make sure that those services are always of a consistent quality. She has a great deal of experience in this area. I have very limited experience but I am very conscious that third sector organisations can be absolutely superb but sometimes not superb.

It is argued that the removal of the requirement for providers to register with Ofsted is a benefit to the system because it ensures that there is no doubt or confusion about where the statutory responsibilities then lie. That makes it clear that local authorities are fully accountable for any decisions made by third parties to whom they have delegated functions. The argument here is that it should not be the responsibility of Ofsted to make sure that the third parties to whom local authorities wish to delegate functions are fit for the job.

Under the current registration regulations, Ofsted is required to check on: first, the fitness of the provider to do the work; secondly, the appointment and fitness of the registered manager; and, thirdly, the staffing arrangements and premises. The regulations also include provisions for making changes to any of the above. To cover Ofsted’s costs, providers are required to pay fees for registration and for making changes to the registration once made.

These requirements duplicate the “due diligence” that a local authority will perform as part of its procurement of a provider. No local authority would appoint a third party provider to undertake its functions without making such checks. However, the current system creates confusion as to where accountability lies. The requirement for providers to register with Ofsted is separate from Ofsted’s continuing duty to inspect and to hold local authorities to account. How Ofsted inspects local authorities is for it to determine. For other provision—as for children’s homes—it conducts separate inspections, but it has concluded that delegated functions should be inspected as part of the local authority single framework inspection and has published a plan as to how this will operate. The Government consider that that is adequate and that it provides the regulation required without unacceptable risk.

Baroness Donaghy: I apologise to the noble Lord for interrupting but I wish to seek clarification. Clearly, on the face of it, it does look like double accounting, but similar things exist in other areas—for instance, in the construction industry, where there is a pre-qualification system. At the moment local authorities are given confidence in employing a company which might cover a lot of local authorities. There might be a very small strapped-for-cash local authority—as nearly all of them are now—but it is given confidence because the name of that company is on a register. It has already qualified to meet a certain level of standards. I am not sure that in the Minister’s answer so far—he may be coming to

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it—he has explained how local authorities have the confidence to get to the pre-qualification stage of saying, “Okay, let’s look at these people with a view to hiring them”. I am not saying that they do not have the responsibility to inspect—of course not—but it could save a lot of time and money if there is already in existence a body of knowledge and a body of standards which local authorities can apply.

Lord Wallace of Saltaire: I understand that point. I am not entirely clear as to the balance between for-profit providers and not-for-profit providers but I am getting some information from my officials. There are some important distinctions here, which I would like to take back and discuss further with them because I recognise that it is absolutely important that we get this right. The Government’s case is that the clause provides the necessary protections without unnecessary duplication. I recognise that we need to provide the reassurance to all those who have spoken in this debate that we have got the balance right.

Incidentally, we did consult in January and February 2013 and got only some 20 responses, which broke on both sides. There were mixed opinions as to whether the registration regime should be removed; 45% said no and 40% yes. A majority agreed that the proposal would reduce burdens; 53% said yes and 32% no. So the answer is that it did not give us a clear set of arguments as to how to respond.

Again, I recognise the great concerns which have been put forward. The Government have argued consistently that removing this extra level of the registration regime preserves necessary protections. I am very happy to have further discussions between Committee and Report to make sure that we can provide those assurances before we return to this.

Clause 71 agreed.

Clause 72: Electoral Commission: changes to facilitate efficient administration

Debate on whether Clause 72 should stand part of the Bill.

Lord Kennedy of Southwark (Lab): My Lords, I will be brief in my remarks. I make it clear at the start that I am not in opposition to the clause. I am using this debate as a device to raise a couple of issues and I hope that the Minister will agree to meet me and discuss them outside the Room. I am sure that he will not be able to answer these things today but I wanted to raise these issues.

First, I have considerable respect for the Electoral Commission and its staff, who do some excellent work. I had dealings with them as a senior official of the Labour Party. I was for many years the director of finance and served on the political parties panel, and then I kind of jumped ship and became a commissioner. I served on the Electoral Commission for four years, so I have experience on both sides on the fence. However, the time is rapidly approaching when we need to review the governance arrangements of the Electoral

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Commission. I accept entirely that it will not happen this side of the general election, but whatever party or parties are in power post the general election next year, we will need to look at the governance arrangements.

I am sure that noble Lords will know that the commission was set up after the 1997 general election. There was an inquiry by the Committee on Standards in Public Life, undertaken by that body at the request of the then Prime Minister, Tony Blair. That then led to the Political Parties, Elections and Referendums Act 2000, which set up the commission. I have always been of the opinion that the Electoral Commission should be a regulator in equal measure of both parties and the electoral registration service carried out by local authorities in England and Wales and by the electoral management boards in Scotland. That is not the case at the moment, as it is skewed much more towards parties, but registration is so important that we need to balance that out a bit.

The commission itself reports to a body known as the Speaker’s Committee, which is made up of senior parliamentarians in the other place. I am not of the opinion that that body necessarily gives the correct level of challenge to the commission all the time. I also know that the Constitutional Affairs Committee has some role in working with it. However, the time has come to discuss that and look at it carefully, and perhaps to give it to a particular Select Committee in the House of Commons to look at it. That may be the Constitutional Affairs Committee or the Public Accounts Committee.

When I came on to the commission I served as one of the first political commissioners. I was on the commission with the noble Baroness, Lady Browning, Sir George Reid, who was the second Presiding Officer of the Scottish Parliament and really should be a Member of your Lordships’ House, and David Howarth, who was the Lib Dem MP for Cambridge.

I think that we all served very honourably and David still serves on the commission. We brought a lot of common sense to the discussion, but I sometimes felt that there was a bit of “them and us” in the commission. We were the political people and they could be a bit biased—could we really be trusted? We actually worked very honourably and well together. I think that we won people over in the end. We proved that it was rubbish, but it was an issue. Having people on the commission who are politicians or have a political understanding is important. We can bring a lot of common sense. I wanted to be involved and for that to be developed and increased. We will need a review to do that.

I will leave it there. I wanted to raise those issues and I hope that the noble Lord will agree to speak to me before Report. I entirely accept that we are doing this Bill here but I wanted to raise those issues because next year, whichever party is in power, there are things that we need to look at.

4.30 pm

Lord Wallace of Saltaire: My Lords, I thank the noble Lord, Lord Kennedy, for his remarks, which ranged much more widely than the limited proposals in Clause 72. Clause 72, on the whole, makes technical

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changes to the governance arrangements for the Electoral Commission. Clause 73 makes similar technical and modest changes to the governance arrangements for the Local Government Boundary Commission.

As the noble Lord said, the Electoral Commission is the independent body established by Parliament and overseen by the Speaker’s Committee with governance arrangements set out in Schedule 1 to the Political Parties, Elections and Referendums Act 2000, known to us with great affection as PPERA.

At present, the Electoral Commission has to provide a five-year corporate plan, with the new plan having to be prepared and submitted annually. The National Audit Office is also required to undertake annual value-for-money studies. The Speaker’s Committee has reviewed these governance arrangements, comparing the Electoral Commission with other modest similar-sized organisations, and has recommended the following changes. First, a five-year corporate plan should be produced in the first financial year of a Parliament. The statutory requirement to update this on an annual basis should be removed, although the Speaker’s Committee should retain the right to request updated plans outside the five-year cycle. Secondly, value-for-money studies by the NAO should be linked to the production of the organisation's five-year plan and not on an annual basis.

Noble Lords will be aware that the approach that central government take to the funding of public bodies is through a spending review. These spending reviews are fixed and spending is planned over a number of years. As such, the existing statutory provisions for the Electoral Commission to provide annual updates to their corporate plan seem excessive.

In terms of removing the statutory requirements for annual value-for-money studies, the NAO has said that it supports such a reduction as the current statutory provisions are disproportionate to the size and spending power of the Electoral Commission. Clause 72 simply implements the recommendations put forward by the Speaker’s Committee. The Government see these as sensible and proportionate changes to the governance arrangements for the Electoral Commission

The noble Lord, Lord Kennedy, raised some wider issues about whether it is not now time, after 14 or 15 years of operation of the Electoral Commission, to review the overall balance, and whether the current arrangements, including, as he said, a Select Committee as well as the Speaker’s Committee, provide sufficient oversight. That is an interesting discussion to throw out. As he rightly remarks, we will not get very far with this over the next five and a half months. But this House may appropriately return to this after the election when we have seen how the Electoral Commission has operated with its responsibilities, which are most important in the course of and the run-up to an election campaign. Perhaps at that point he and I and others might talk together about how we take such wider issues further.

Lord Rooker (Lab): My Lords, before we leave this clause, I would like to take this opportunity to ask the Minister a question. I am a strong supporter of the Electoral Commission, with no qualification whatever; but next year’s election will be the first time that it has

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had four and a half years to plan for the date. Therefore, is there an absolute rock-solid guarantee that there will be no chaos in any of the polling stations in this country of the kind that occurred in 2005?

Lord Hunt of Kings Heath (Lab): My Lords, I join my noble friend and add to what he said. My noble friend knows that I come from Birmingham and I was shocked by some of the behaviours I saw outside some Birmingham polling stations, to which I suspect he is referring. I particularly remember a polling station in Moseley, where large groups of men—about 20 or 30—were outside. This was clearly intimidatory; it was very difficult—particularly for women—to go and vote. The current system is so slow to react to situations like that when they arise. This is a very serious matter: in some parts of the country, people are not able to exercise their democratic right to go to a polling station free and unfettered.

For some years, the Electoral Commission took the view that it could only take measures that applied to each part of the country in an equal way. That was madness; it has been clear for a number of years that we have a real problem in some polling areas and we need a response from the Electoral Commission that recognises that.

Lord Wallace of Saltaire: My Lords, it would be foolhardy to give a cast-iron guarantee that no problems might break out. These are not purely matters for the Electoral Commission; as we all know; the local police and the local electoral registration officers have clear responsibilities here as well.

Lord Hunt of Kings Heath: In the case I mentioned, there was a police van outside; I approached the police van and the officer, of his own volition, went to speak to this group and kind of negotiated that the numbers would come down from about 20 to three or four on either side. I applaud the fact that a police constable, of his own volition, was able to make his own judgment, but that does not necessarily happen, and there is no guarantee that there will be police outside each polling station during the whole of the day. The other problem is that the polling officers are in the polling station in the school, a long way from the road where people can congregate. I accept the point he is making, which is that it is not just down to the Electoral Commission—but the Electoral Commission has a leadership role here.

Lord Wallace of Saltaire: My Lords, let me take that back and make sure that the Electoral Commission is informed of this. I trust that the incidents were reported to the local authorities and the local police at the time. I am conscious from my own experience with polling stations in parts of west Yorkshire that there can be problems; although my strongest memory of the last election is of passing a polling station 10 minutes before it closed and meeting a large extended family coming out of the polling station after voting, having a very sharp and loud argument as to whether each of them had voted the right way. I fear that, in this coming election, there may be rather more of that sort of confusion than any of us would really like to see.

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Meanwhile, I can assure the noble Lord that I will take these points back and make sure that they are reported to the Electoral Commission. I repeat that local issues like this are very much about local support. It is for the local police, local education and the local political parties, of course, to make sure that the police and the electoral authorities are doing their duty.

Clause 72 agreed.

Clause 73 agreed.

Amendment 87ZA

Moved by Earl Howe

87ZA: After Clause 73, insert the following new Clause—

“NHS foundation trusts and NHS trusts: acquisitions and dissolutions etc

(1) The National Health Service Act 2006 is amended as follows.

(2) In section 56A (acquisitions), after subsection (4) insert—

“(4A) Where the regulator proposes to grant the application, it may by order make provision for the transfer of employees of B to A on the grant of the application.”

(3) After section 56A (acquisitions) insert—

“56AA  Acquisitions under section 56A: supplementary

(1) On the grant of an application under section 56A—

(a) any order made by the regulator under section 56A(4A) takes effect,

(b) the property and liabilities of the acquired NHS foundation trust or NHS trust are transferred to the acquiring NHS foundation trust (other than rights and liabilities which may be dealt with by order under section 56A(4A)),

(c) the acquired NHS foundation trust or NHS trust is dissolved, and

(d) where the acquired trust is an NHS trust, the NHS trust order establishing it is revoked.

(2) So far as may be necessary for the purposes of subsection (1)(b)—

(a) anything done before the grant of the application by or in relation to the acquired trust is to be treated (on and after the grant) as having been done by or in relation to the acquiring trust;

(b) any reference in a document to the acquired trust is to be read as a reference to the acquiring trust.

(3) Anything (including legal proceedings) that, immediately before the grant of the application, is in the process of being done by or in relation to the acquired trust may continue to be done afterwards by or in relation to the acquiring trust.

(4) In subsection (1)—

(a) “liabilities” includes criminal liabilities;

(b) “property” includes trust property.”

(4) In section 57 (sections 56 to 56B: supplementary), after subsection (3) insert—

“(3A) The order may include provision for the transfer of employees of the trust or trusts dissolved by the order.”

(5) In section 64 (orders and regulations under this Chapter)—

(a) in subsection (4), before paragraph (c) insert—

“(ba) section 56A(4A),”;

(b) in subsection (4A), after “section” insert “56A(4A),”.

(6) In section 65LA (trusts to be dissolved), in subsection (3)(b), for the words following “trust” to the end substitute “—

(i) to an NHS body;

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(ii) to the Secretary of State;

(iii) between more than one NHS body or between one or more NHS bodies and the Secretary of State.”

(7) In that section, in subsection (5), for “to an NHS foundation trust” substitute “to an NHS body”.”

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, this clause makes amendments to Sections 56A, 57 and 65LA of the National Health Service Act 2006. These provisions are all concerned with the transfer of property liabilities and staff between NHS bodies. The changes proposed in the amendment simply clarify the provisions in the existing legislation to ensure that it can be used in a seamless and efficient way. They do not create new policy.

The clause is needed to remove the current uncertainty over the powers of an NHS foundation trust in Section 56A to acquire another NHS foundation trust or NHS trust, and to correct the omission of key powers with respect to the transfer of staff and criminal liabilities in this provision. It would also explicitly extend Monitor’s power in Section 65LA to transfer the property and liabilities, including criminal liabilities, of an NHS foundation trust dissolved following special administration.

I am sure that it would help the Committee if I expand on those initial comments. The existing Section 56A provisions are uncertain and open to interpretation. Critically, there is no express explanation in the provision of what happens to the acquired trust’s property and liabilities, or third party rights and obligations. As a consequence of this uncertainty, NHS foundation trusts are unlikely to utilise the current provision for fear of legal challenges. We are keen to ensure that where acquisitions are deemed to be in the best interests of patient care, legislation supports this approach. Accordingly, paragraph 1(3) of the clause inserts new Section 56AA to provide for a direct transfer of property and liabilities by operation of law. The grant of application would also be conclusive proof that the acquired trust is dissolved, and in the case of an acquired NHS trust the establishment order revoked.

The Government are committed to ensuring that staff involved in transfers from one public body to another are treated fairly and consistently, and that their rights are respected. The amendment to Section 56A would give Monitor an additional discretionary power to make an order for the transfer of staff from the acquired to the acquiring trust. This would ensure that in cases where TUPE does not apply, or where it is unclear whether it does, Monitor can set out a clear mechanism of transfer that specifies which of the staff are transferring and the implications of transfer. The amendment would also apply to orders made under Section 57 in respect of mergers and separations.

It is established Department of Health policy that criminal liabilities must be preserved on dissolution and transfer of an NHS trust or NHS foundation trust, so that organisational change does not prevent the initiation or continuation of criminal proceedings. New Section 56AA creates a statutory authority for the criminal liabilities of an acquired NHS trust or an NHS foundation trust to transfer to the acquiring trust. Amending Section 65LA will enable Monitor to implement the recommendations of a trust special

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administrator. Property and liabilities, including criminal liabilities of a failed NHS foundation trust, may need to transfer to more than one NHS body. Currently, Monitor can only transfer to a single NHS foundation trust, and this is not adequate.

As stated earlier, these changes simply clarify the provisions in existing legislation that already support the NHS in taking the decisions necessary on how to continue to deliver high-quality patient care. I beg to move.

4.45 pm

Lord Hunt of Kings Heath: My Lords, like the noble Earl, I make a happy, though unexpected intervention in the proceedings of this Grand Committee. I thank him for giving me advance warning that he intended to move an amendment on the question of trust mergers. I certainly would not oppose the amendment, but I should like to put some points to him. As this is being introduced at such a late stage, perhaps I could ask him about the Department of Health’s approach to deregulation, because it is entirely relevant to the amendment.

The noble Earl will know that a later clause in the Bill introduces a new duty for non-economic regulators to have regard to the desirability of promoting economic growth while exercising their regulatory functions. From the list that we have been given by the Government, we understand that the Care Quality Commission is encompassed in the list of organisations to which the new provisions may apply. The Opposition have asked the CQC for its views on the clause, but we have been informed that the Department of Health has told the CQC that it was not appropriate for the CQC to respond to our query, given that it is an arm’s-length body of government. I am surprised by that. As the noble Earl has frequently said to us, the CQC is an independent body. I am surprised that the CQC even approached the DoH for advice, and I am shocked that the DoH should prevent CQC from giving its advice to parliamentarians on the Bill. I do not expect the noble Earl to respond to this point today, because I doubt that he could, but I ask him to respond to me in due course.

What is the Department of Health’s approach to deregulation? My understanding is that it is in favour, and recently told the Health Select Committee that, unless issues of public safety are concerned, it is not in favour of extending statutory regulation to other professions within the health service, which is entirely consistent with what Ministers are saying in the Bill.

The noble Earl will not be surprised that I then want to ask why the department is still attempting to require non-doctor public health specialists to be statutorily registered. I recently asked a Written Question about that. I cannot for the life of me see that public health non-doctors pose any risk to public safety. That conviction has been reinforced by the evidence that the Professional Standards Authority for Health and Social Care, which is the overarching regulator, has now given to the Government, in which it confirms my view that minimal risks are posed by public health specialists. There is a very limited number of them. Whether they are statutorily regulated or not is not a

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major issue. The problem is that, by so doing, the Government are threatening the viability of a voluntary register, the UK Public Health Practitioner Register, because it depends on the fees of those non-doctor specialists for its viability. I should have thought that a voluntary register accredited by the Professional Standards Authority is just what a deregulatory approach would lend itself to.

Again, I do not expect the noble Earl to give me a response today, but I wanted to raise with him that there is considerable puzzlement that a Government who brought forward this deregulatory Bill is hell-bent—for some reason that no one can understand—on forcing a statutory approach to non-doctor public health specialists, which will put at risk a voluntary register that is entirely consistent with the deregulatory approach that the Government are taking within the Bill.

I will ask three or four questions about the noble Earl’s amendment. It arises from the issue in Staffordshire. Essentially, the services that were being run by the Mid Staffordshire foundation trust are being transferred to two other trusts: North Staffordshire and the Royal Wolverhampton, one a foundation trust and one an NHS trust. The technical amendment that the noble Earl has brought forward seems eminently reasonable in that context, but I wonder whether he would care to reflect on the process by which that has occurred. He will know of the trust’s special administrators, who were appointed to deal with the problems at Mid Staffordshire. I was very surprised that the estimated cost of that process has been between £12 million and £15 million. Can the noble Earl confirm that and say whether he really thinks that we got value for money from that process?

The second question is whether he can assure me that this new amendment will not make it easier to force through mergers without proper public consultation. Staffordshire health service has a bit of form recently. He will know that the clinical commissioning groups have made some very controversial decisions, including—I think this was announced yesterday—the outsourcing of much of their commissioning responsibility. It is notable that the CCGs are very reluctant to debate or discuss those proposals in public. We have debated Lewisham hospital in south London, which is in a special administration process, and we have had some discussion about how services in Staffordshire are to be reorganised. I have been to a number of meetings in Staffordshire and there is real concern that a lot of these major changes are taking place without adequate public consultation. For instance, in relation to services in Mid Staffordshire, assurances were given—it was called the double-lock assurance—by the Secretary of State that there would, as I understood it, be proper public involvement and support for the changes. I am not entirely sure that that has happened.

I would just like to make two further comments. As I understand it, by statute, mergers have to be approved by Monitor, the economic regulator for NHS foundation trusts—and presumably, for non-foundation trusts, by the NHS Trust Development Authority, acting on behalf of the Secretary of State. In the light of experience, does the noble Earl not think that the Secretary of

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State should have to give their approval to mergers even if they involve foundation trusts? I realise that this amendment is based on parent legislation that goes back further than 2006—perhaps to 2003—and that we now have a much more fragmented system than we had then.

A trust merger is not a business arrangement; essentially, what usually happens is that one trust has fallen into a great deal of trouble and has to be rescued. That will often have a dynamic impact on the services to be provided; Mid Staffordshire is a good case in point. Given that, should the Secretary of State, because of his direct accountability to Parliament, not have to sign off that merger? The noble Earl may know of Clive Efford’s Private Member’s Bill, which I think is being debated in the Commons on Friday. There is a clause in the Bill which actually says that the merger of NHS trusts or foundation trusts should require the consent of the Secretary of State, so I am sure that this is a matter to which the department will be giving consideration.

My final point is about the impact of the amendment on PFI schemes. The noble Earl has already explained about the transfer of criminal liabilities, which makes eminent sense, but let us say trust A is being acquired by trust B. As I understand it, trust B takes on the liabilities of trust A. But what happens to the indemnity that the Secretary of State has made in respect of a PFI scheme entered into by trust B? When trust A takes on trust B’s liabilities, including possibly a PFI scheme, does the Secretary of State’s indemnity also now apply to trust A? I understand that the Department of Health has said that it does not and I would be grateful for some clarity on that.

Earl Howe: My Lords, I am grateful to the noble Lord for his comments and questions. I shall certainly write to him on the two issues that he raised: first, in relation to the CQC and to extending statutory regulation to non-doctor public health specialists.

Lord Rooker: I did not want to interrupt the noble Earl but perhaps I may intervene as he has raised that point at the beginning of his speech. I know that it will take time to write to my noble friend but in two days’ time this Committee will be discussing the growth duty. It would be useful to have a response before we start that debate because there are a couple of amendments relevant to the growth duty. The Joint Committee fully supported the Government’s response on the growth duty in January, but the committee received representations from certain regulators. I do not recall whether the CQC was one of them—I do not think that it was—but there was an open discussion when we were taking evidence about this. Therefore, it would be quite useful to have an answer by Thursday to the specific question raised by my noble friend because there would still be time to table an amendment. Sometimes it takes a few days or even weeks to get a letter, even with the best intentions of the Minister.

Earl Howe: I note the request from the noble Lord, Lord Rooker, and I can only undertake to do my best on that front. If I can get an answer to the noble Lord,

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Lord Hunt, by tomorrow, I will. I cannot promise that but I shall use my best endeavours to get an answer to him as quickly as I can.

The noble Lord referred to the administration process at Mid Staffordshire. He is right that the cost of administration has been significant. I cannot confirm the precise cost at this stage but it is substantial and I think that that serves to illustrate that the administration process is not one that any Government, or indeed Monitor, should give the green light to wantonly or ill advisedly. It is a last-resort solution and should always remain so. Clearly, in a challenged health economy, as that has been and still is, it is not surprising that the net result of the exercise is not just a substantial bill in terms of the trust special administration but a very substantial capital commitment by the Department of Health to augment the facilities in the trusts concerned to ensure that the quality of care is as we would all wish it to be. From memory, that net investment will be about £0.25 billion. Therefore, the people of that area should feel satisfied that this process has led to a result that will give them significantly enhanced facilities.

As for the noble Lord’s question about public consultation, this amendment has nothing to do with the process by which a decision is reached on a trust in administration or the consultation requirements that go with it. It merely streamlines the process that takes place after that final decision is taken so that it is not cumbersome.

The noble Lord asked me about the indemnity associated with PFI agreements in relation to a trust that has been taken over. My understanding is that the indemnity does transfer. That is the advice that I have received, but if I need to qualify it in any way, I will correct it immediately after Committee.

As regards the Secretary of State’s approval for trust mergers, it is important to point out that Section 56A provides for the acquisition by an NHS foundation trust of another FT or an NHS trust, and it confers on the sector regulator, Monitor, the power to grant an application for an acquisition. The section was intended to enable acquisitions to take place expeditiously with a minimum level of bureaucracy. The decision to undertake an acquisition, if it is between two foundation trusts, is taken by the FTs themselves with Monitor undertaking a minimal administrative function to implement the decision as long as the set legal process has been followed.

5 pm

In other words, the section is designed to allow the trusts in question to work with Monitor to determine their future without a role for the Secretary of State and to have the governors who represent the public and patients approving the whole process. If the target trust is an NHS trust as opposed to a foundation trust, the support of the Secretary of State must be secured—that is not changing. But we feel that there is merit in having a locally driven decision in which local people take ownership. We do not think that value would be added by requiring the Secretary of State in the case of two foundation trusts to have a role in the process. I beg to move.

Amendment 87ZA agreed.

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Clauses 74 to 78 agreed.

Amendment 87A had been withdrawn from the Marshalled List.

Amendment 87B

Moved by Baroness Scott of Needham Market

87B: After Clause 78, insert the following new Clause—

“Births, marriages and death registration: historical searches

(none) After section 34 of the Births and Deaths Registration Act 1953, insert—

“34A Historical searches

(1) The Registrar General may provide a copy of an historical record held by him, which need not be a certified copy, to any person who makes a search and requests such a copy.

(2) A copy provided under subsection (1) may not be used in place of a certified copy as proof of an entry in the register.

(3) For the purposes of this section—

(a) an “historical record” means any entry in a register held by the Registrar General which is more than one hundred years old on the date on which such a request is made;

(b) a copy of a record which is not a certified copy means a paper, electronic or other duplication as may be prescribed in regulation.

(4) The Registrar General may charge such fees as appropriate in relation to making and delivering a copy of a record which is not a certified copy, but such a fee shall be no more than £3.00 per record.””

Baroness Scott of Needham Market (LD): I rise to offer the Government an early Christmas gift, cunningly disguised as Amendment 87B. It is a rare jewel; a genuine piece of deregulation which no one as far as I can tell opposes, which saves money and does not cost anything. I shall explain.

In 1837, a system of civil registration of births, deaths and marriages was introduced into this country. For most of the time since then, it has been a legal requirement to register these events with the district registrar who issues a certificate. The framework has remained largely unchanged since then. Anyone can order a copy of a certificate from the General Register Office, which is currently set at a cost of £9.25. Because possession of a certificate does not confer identity, these certificates could be used for any purpose and many of us at some point or other may have used this service to order a copy certificate.

The one group of people in this country who could really use this service much more extensively are those, like me, who are researching their family history. Should noble Lords think this is a minority pursuit, one website alone, Ancestry, has 2.7 million global subscribers. The success of programmes such as, “Who Do You Think You Are?”, along with the relative ease of internet searching has led to an explosion of interest in genealogy. This will almost certainly increase this year as the result of the wonderful coverage of the centenary of World War I.

Genealogists from across the globe can trace their ancestors back to these islands. The Irish and Scottish Governments have been much quicker than the English and Welsh Governments to appreciate the great tourist value in people looking for their roots. For genealogists, the information on general registration certificates is

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invaluable. Birth certificates contain the father’s name and occupation and the mother’s maiden name. A marriage certificate will record both the father’s name and occupation, so in theory, you could use the general registration to trace ancestors back for well over 200 years. An ancestor dying in 1837 at the start of registration might well have been born in the 1750s.

Sometimes, the GRO is the only way of resolving the matter by distinguishing between individuals of the same name on census and parish records, but this valuable resource is nothing like as well used as it could be because the only form in which it is legally allowed to be given is by ordering and paying £9.75 for the full certificate. That is not the case in many jurisdictions. In Ireland, for example, the essential information is provided for €4. In Scotland, an extract can be ordered online through the authorised provider, ScotlandsPeople Centre. The General Register Office issues many thousands of historic copies every year. Even at £9.75 it does not make a profit from them. As I will explain in a moment, it would almost certainly be happy to find a less onerous way of doing this kind of historic business. It would also fit in very well with the Government’s deregulation agenda and the drive to digitise public services.

Turning to my amendment, I recognise and say at the outset that my limited expertise will not have produced an amendment that the Government would accept in its current form. But the fundamental point, aimed at allowing the GRO to change the regime for historic events of more than 100 years ago, is one that I hope the Government will take away for consideration. It would mean that for a much reduced fee—I have suggested £3—the data could be sent by e-mail, rather than issued in a long-form certificate. One hundred years simply reflects the period at which census data is made public, and was the period chosen in the 2002 White Paper. A different time could be chosen, or differentials between births, marriages and deaths established.

This issue has been discussed since 1990. A public consultation in 1999 showed overwhelming support for such a change. The GRO itself proposed similar changes in a 2005 regulatory reform order. Ironically I was a member of the Delegated Powers and Regulatory Reform Committee at the time, but sadly the GRO proposed a whole package of measures rather than simply this specific change. Had there been this change only, it probably would have been successful, but unfortunately the package was considered far too wide ranging for a regulatory reform order.

I caution the Government against putting off making this modest reform until a wider package of measures can be drawn up in their own Bill. The reality is that GRO reform is always unlikely to be a priority in the legislative programme of any new Government. The fact that the GRO has been unable to get a Bill in three terms of the Labour Government and one term of the coalition Government says it all. As I said, this is a probing amendment only, which I hope that the Government will take away and consider. I recognise that the GRO will need time to consult on changes and draw up the details, but this can be done by secondary legislation. The important thing is to get this change into this Bill. I beg to move.

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Lord Wallace of Saltaire: My Lords, I thank the noble Baroness very much. In listening to her, I was remembering that I discovered a new third cousin 10 days ago when the political adviser to someone in the Government in the Emirates got in touch with me. I recognised his unusual name, which happens to be my mother’s maiden name. In inviting him, I asked him to bring the names of his great-grandfather and great-great-grandfather. He arrived with an A3 family tree and the comment from his uncle that the missing bit was a group who had moved away from Somerset, which is where this uncommon local name comes from, and were alleged to have set up as fishmongers in Leicester. That was my grandfather. I now have a new third cousin and quite a useful set of additions to our family tree. I also have a strong desire to visit Australia where the third cousins who have made good live. They are apparently very generous to their visitors. I should also say that this summer my wife and I were in north Yorkshire looking for her family and we spent a very enjoyable and constructive time in the local history section of Stockton library. The local historians were extremely helpful and provided us with a number of useful bits of family history, including some birth certificates for nothing. The local dimension is as important as the national one.

I can reassure the noble Baroness that officials in the Home Office who lead on this issue will be very happy to meet her soon to discuss the issue further. There are, however, a number of technical issues which mean that the Government cannot accept the amendment as it stands for reasons that I will summarise. The proposed new clause would enable copies of historic births, deaths and marriage records aged 100 years or more to be provided in formats other than a paper certified copy or certificate. It allows for such copies to be produced on paper, electronically or in another prescribed format with a stipulated cost to the customer of,

“no more than £3 per record”.

The amendment seeks to address restrictions laid out in primary legislation that currently prescribe that the only way to access information from a civil registration record, regardless of age, is to purchase a certificate either from the GRO or from the register office where the event was registered, at a standard cost of £9.25 or £10 respectively. While recognising that allowing historic civil registration records to be treated differently from modern records may support government objectives around transparency of data and digitisation, there are some aspects of the clause that make it unworkable in its current form.

For example, the proposed new clause limits the amount that can be charged for an historic record to £3, but further work would be needed to ensure that this allows for compliance with Treasury rules regarding the management of public money—such as rules about full cost recovery. Of course, specifying the fee cap within the clause hinders a regular review of fee levels, as any resultant changes would require further amendment to primary legislation.

The title of the amendment refers to,

“Births, marriages and death registration”,

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but the draft clause seeks to amend only the Births and Deaths Registration Act 1953, which does not provide for the issuing of marriage certificates. We would expect any amendment that provides for a change to the issuing of marriage certificates to be included in the separate marriage legislation, which is the Marriage Act 1949. In addition, the clause applies the same definition of “historic” to all types of records, but this is not aligned—as the noble Baroness has suggested—with the systems of civil registration in place in Scotland and Northern Ireland, which operate under separate legislation. The legislation in place in Scotland and Northern Ireland provides for records to be defined as historic at 100, 75 or 50 years respectively, depending on whether the information relates to a birth, marriage or death, which goes further than the proposed clause suggests.

The clause makes no changes to the information available from the register office where the event was registered, meaning that while the GRO could make historic records available more cheaply centrally, local register offices would have to continue to provide any information from a record, regardless of its age, in the form of a certificate. The impact on the local registration service of introducing a legal distinction between modern and historic records needs further consideration: the amendment as it stands would disadvantage local authorities, which would continue to be legally obliged to maintain the original historic records but would see the demand for information from them decrease as customers chose a cheaper, centrally provided service.

The Government therefore cannot accept the proposed amendment as drafted on the grounds that a number of aspects would prove problematic in practice. In addition, by defining all records as “historic” at 100 years, rather than following the precedent of Scotland and Northern Ireland, and preventing the change to be applied to marriage records by failing to amend the Marriage Act 1949, the clause as it is currently drafted fails overall to achieve the intended aim of opening up as wide a range of records as possible to greater public access. We therefore express sympathy with the aim but reservations about the clause as currently drafted; and offer an invitation to meet and discuss further. On that basis, I urge the noble Baroness to withdraw her amendment.

Baroness Scott of Needham Market: My Lords, I am grateful to the Minister and certainly look forward to having a meeting to see how we can progress this further. I have been trying to talk to somebody about this for about five months now, so I hope that even at this late stage, it is not too late to bring something forward for the next stage of the Bill, because this is a very important issue for people researching family history. As I have already said, there are many millions of such people. The point about local offices is, of course, valid, but the fact is that most people who order copy certificates would do so through the website of the national GRO. That particularly applies to people from abroad. We should be doing everything we can to open up our records where appropriate to people resident both here and abroad who look to us as their historic homeland.

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I look forward to having meetings as soon as possible and perhaps taking this further. I beg leave to withdraw the amendment.

Amendment 87B withdrawn.

5.15 pm

Schedule 19: Removal of consultation requirements

Amendment 88

Moved by Lord Wallace of Saltaire

88: Schedule 19, page 195, line 33, after “(1)” insert “, if that sub-paragraph comes into force before paragraph 123(c) of Schedule 12 to the Local Audit and Accountability Act 2014,”

Lord Wallace of Saltaire: My Lords, I have an extremely long speaking note on this. Amendment 88 is a minor and technical amendment to Paragraph 14 to Schedule 19 to the Bill. It makes clear that the repeal to a provision of the Public Audit (Wales) Act 2004 made by that paragraph will come into force only if a duplicated repeal of the same provision made by the Local Audit and Accountability Act 2014 has not yet commenced. The purpose of the amendment is legal clarity. I beg to move.

Amendment 88 agreed.

Schedule 19, as amended, agreed.

Clauses 79 to 81 agreed.

Clause 82: Legislation no longer of practical use

Amendment 89

Moved by Lord Sharkey

89: Clause 82, page 58, line 14, at end insert—

“(2) This section and paragraphs 1 to 39, 41 and 42 of Schedule 20 may not come into force until the three conditions set out in subsections (3) to (5) are met.

(3) The first condition is that the Law Commission and the Scottish Law Commission (“the Law Commissions”) have reported on whether each item of legislation to be repealed by paragraphs 1 to 39, 41 and 42 of Schedule 20 is, or may be, of practical use; or is no longer of practical use.

(4) The second condition is that the reports of the Law Commissions under subsection (3) have been laid before each House of Parliament.

(5) The third condition is that the Secretary of State has, by regulations made by statutory instrument, removed from the list of legislation to be repealed in Schedule 20 any provisions which the Law Commissions have reported are, or may be, of practical use.

(6) A statutory instrument containing regulations under subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(7) Paragraph 40 of Schedule 20 comes into force on the day on which this Act is passed.”

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Lord Sharkey: My Lords, I move Amendment 89 and shall speak briefly to Amendments 103 and 104. Amendment 89 deals with Clause 82 and Schedule 20.

Clause 82 is very short. It contains 17 words. It asserts that the laws listed in Schedule 20 are no longer of any practical use and it repeals or amends them all. Schedule 20 is in 10 parts and runs to more than seven pages. It lists at least 84 pieces of primary legislation, seven of which are whole Acts, and eight pieces of secondary legislation. Those numbers will rise in a moment when the Minister moves Amendments 91 and 92, which, at this late stage in the Bill, add a further two pieces of secondary legislation and another three whole Acts to the list of repeals.

Schedule 20 and the Minister’s further additions today are a widely varied and miscellaneous collection. They range from apparently obvious candidates for repeal to deeply complicated amendments. It is probably not dangerous to repeal the 22 Sections of the Town Police Clauses Act 1847, creating as it does offences to do with every person who rolls or carries a cask, every person who beat or shakes any carpet, every person who keeps a pigsty and even—the politician’s favourite—every person who flies a kite.

However, most of the provisions in Schedule 20 are not like that. They are repeals of complicated sections of Acts or of whole Acts themselves. There is even one Schedule 20 provision to be repealed which seems not to be “not of any longer of practical use”. That is Paragraph 40, which repeals Section 13 of the Defamation Act 1996, which allows an individual litigant in defamation cases to waive the ban in Article 9 of the Bill of Rights on proceedings in Parliament being impeached or questioned in court.

That section of the Defamation Act has been much discussed by your Lordships and the Commons, and I support its removal. However, this section is still of practical use. We are removing it because we think that it is wrong, not because it is useless. It may be in the wrong place in the Bill.

In its report, the Joint Committee recommended that items in what was then Schedule 16 be referred to the Law Commissions for confirmation that they are in fact no longer of practical use. We did that because we felt that:

“The skills, research and consultation needed to ensure that Parliament, external organisations and the public can be satisfied that a piece of legislation is genuinely obsolete strongly suggest that the Law Commissions are better placed to conduct that work than Government departments. Added to which, the independence of the Law Commissions from Government and their track record since 1965 reinforce the trust that Parliament places in the … Law Commission Bills including SLR Bills”.

The point here is this. Who do we trust to certify that Acts or parts of Acts are genuinely no longer of any practical use? Should it be the department’s assessment agreed by a Minister, or should it be by an independent body, such as the Law Commission, to ensure thoroughness of inquiry and absence of any suspicion of political bias? Or should it be Parliament itself? Parliament has not thought so, for good reason. To examine in exhaustive detail the possible consequences of repeals would overwhelm Parliament and would reintroduce the possibility of suspicion of political

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motivation. That is why Parliament delegated the job to the Law Commissions and why it approved an accelerated procedure for Law Commission Bills.

In the present case, as this Bill passed through the Commons, there was no real discussion of Schedule 16, which is now Schedule 20. So the question resolves itself into this: is it better to accept, without evidence or supporting argument and without substantive discussion, the Government’s assertion that the items in Schedule 20 are really no longer of any practical use or is it better to let the uniquely qualified and independent Law Commission certify that for us? The Joint Committee thought that the second option was better but the Government did not agree. In their response to the Joint Committee’s report, they made three points.

First, they noted that Governments frequently repeal legislation. However, they do not say how frequently this extends to the en-bloc repeal of over 90 items of legislation. Secondly, they disagree on whether departments have the expertise to determine whether legislation is obsolete or to know the importance of accuracy and giving consideration to saving transitional or consequential provisions. Here, they are pleading not guilty to something that they have not been accused of. The Joint Committee simply noted that the Law Commission was better qualified for this task than the departments are. The Government also make no mention in their response of the importance of having independent judgment, free from the possibility of the suspicion of political bias. Thirdly, they agree that some of the provisions in the then Schedule 16 are the type of repeal candidates that can be referred to the Law Commissions. They do not say which or how many.

When the Joint Committee heard evidence from the Law Commission, we were impressed not only by its obvious independence and professionalism but by its willingness to take on more work. We were also struck by the fact that in its last trawl of government departments for suggestions for repeal to be included in the forthcoming SLR Bill, none of the items now in Schedule 20 was put forward. When we asked the Government why this was so, they gave two reasons. In his letter to the committee of 5 November 2013, Mr Clarke noted that the Law Commission generally brings forward an SLR Bill every four years, with the last being in 2012 and the next in 2016. However, as departments have been asked to implement Red Tape Challenge measures in this Parliament, he went on to say that there are a number of such measures in Schedule 20. He did not say which.

Mr Clarke also told us that the existence of legislation that is no longer of practical use had come to light in the course of mainstream departmental work and that the Bill provides the Government with an appropriate legislative vehicle to repeal it and rationalise the statute book. Neither of those points quite answers the question of why none of the Schedule 20 items was referred to the Law Commission when it asked in June 2011 for proposals for repeal.

The Law Commission has also received no suggestions for repeal at all from the Red Tape Challenge people, the Better Regulation Executive. All this raises another question: “What’s the rush?”. Why cannot the Schedule 20

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items be left to the independent review of the Law Commissions to decide whether they really are obsolete or not? The Joint Committee asked the Law Commission how long it would take for it to review the legislation in Schedule 20. The answer was that it would probably take between four and 12 months. What is the problem with waiting that long? In previous Committee sessions the noble Lord, Lord Deben, whom I am sorry not to see in his place, and other noble Lords have wondered whether parts of the Bill are there simply so that the Government can say that they have repealed so many pieces of allegedly burdensome legislation, and that this can be a big number.

The situation that we find ourselves in is this. The Government are proposing the wholesale repeal of at least 84 pieces of primary legislation and seven pieces of secondary legislation. If the Bill passes as it stands, this legislation will be repealed without any real examination by Parliament or any examination at all by the Law Commissions. The Government assert that the departments are qualified to make a proper assessment of whether the candidates for appraisal are obsolete. This is an unevidenced assertion but, even if true, it does not mean that they are best qualified. We have heard nothing to suggest that the departments’ assessments are as deep, as consultative or as rigorous as the assessments made by the Law Commissions.

Of course, any departmental assessment approved by a Minister leaves the whole process open to the suspicion of political bias. This is not an independent assessment process; by contrast, assessment by the Law Commission is exactly that. It is independent of government and it has a statutory duty to apply the three tests of external expertise, impartiality and independence in its SLR function. How does a departmental and ministerial review pass these three tests?

Furthermore, the process of assessment and review by the Law Commission is extremely rigorous. It involves research and consultation, and it finishes in a report and a draft Bill. The research phase tests each repeal candidate—there may well be more than a hundred in any repeals project, although there are fewer than that in Schedule 20—to check whether any of it is of any practical utility. This includes checking parliamentary records, including the original debates, examining other public records and studying a range of legal and historical works to provide context and background information. The research is then written up and issued as a consultation paper to people in central and local government, in industry and elsewhere. This consultation typically goes on for up to three months, dealing with inquiries and responses. After the consultation, the report and draft Bill are produced. This is all very rigorous and very thorough, as it must be if we are to be certain that legislation is really no longer of any practical use.

However, this raises a question about departmental assessments. Can the Minister say whether the departments followed the same process? Was there consultation and, if so, with whom? Are there written reports for the proposed repeal candidates? If so, can we see them before Report? On the one hand, we have the Government’s unevidenced assertion that it is safe to

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repeal the legislation in Schedule 20; on the other hand, we have the Joint Committee’s recommendation that these items be referred for rigorous, impartial and independent review to the Law Commission for certification that it is safe to repeal them. We know that it would take the commission only between four and 12 months to do this. So, again, why the rush? Why not give these pieces of legislation the kind of scrutiny Parliament set up the Law Commission to provide? The Joint Committee thought there was a strong case for doing exactly that.

Amendment 89 proposes exactly what the Joint Committee recommended. Amendment 103 accepts the repeal of Section 13 of the Defamation Act 1996 by exempting it from the provisions of Amendment 89. Amendment 104 makes Clause 82 and Schedule 20 come into force in accordance with the provisions of Amendment 89. I beg to move.

Amendment 90 (to Amendment 89) not moved.

Lord Rooker: My Lords, I have to be brief but I think that I can say without contradiction that the speech that we have just heard from the noble Lord, Lord Sharkey, was made on behalf of the Joint Committee. I cannot think of a single member who would dissent from what he said, which was based, essentially, on our report. When the report was written, over 12 months ago now, it was of course written not just on the basis of Schedule 16, now Schedule 20. There was also the famous list of six other clauses, about which we took evidence on the basis that they were the worst and most offensive Henry VIII clauses ever put before Parliament. The Government took fright at that and took them out of the Bill, so they are not there. The Government were quite right to do that, so they have made the right decision.

However, the committee was faced with the context of cutting corners on parliamentary scrutiny. We had these six clauses, which were pretty bad, and we then got this great list of material, some of it self-evident, that was of no practical use. We also got the Law Commission in front of us. We also realised quite clearly from the evidence—not just the written evidence but what was before our own eyes—that there was a dispute between the Ministers and the Law Commission. It was self-evident, from both the body language and the actual language, that Ministers thought that the Law Commission was working too slowly—not getting on with it and not chopping enough legislation out of the way. But of course that is the way the commission works, and it quite clearly indicated to us that the staff and resources for this were pretty small beer.

5.30 pm

It is the risk of error that we are concerned about. Basically, we are assuming that at the next stage and at Third Reading Parliament, at the request of Ministers, will get rid of a host of legislation without any detailed scrutiny. That is the reality. If Ministers wanted 84 amendments for Report stage—I think that it is 84—to enable them to speak to every substantive part of the schedule and to explain to Parliament, beyond what is in the notes on clauses, which are not sufficient,

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exactly how they were certain that the legislation was of no practical use, they could do that because it could be arranged.

The point that we are making is that the Law Commission has a function that Parliament trusts. Again, the Joint Committee was told, “Oh, they take too long; it’s pressure on Parliament”, but the average Law Commission Bill takes three minutes on the Floor. That is the reality. So we were told a porkie to start with. Parliament trusts the Law Commission because both Houses know exactly what the process is. After First Reading and Second Reading, the Bill goes to a committee—there is a separate procedure in Parliament for looking at Law Commission Bills. That is why over the years both Houses have trusted Law Commission Bills, and we are now deviating from that on a grand scale.

As the noble Lord, Lord Sharkey, said, in the trawl by the Law Commission for legislation that was from a bygone age and of no use and obsolete, not one of these items was offered up by a government department for the previous Law Commission Bill. I know why; I explained at one point. When you are in a department and something comes from the Law Commission, by and large it is not given top priority. Ministers do not say to their Permanent Secretary, “You’ve got to find stuff for this”. When it comes from the Cabinet Office, from Ministers who say, “We’ve got a Deregulation Bill. We want a list of stuff for the bonfire”, Ministers say to the Permanent Secretaries, “Get some evidence. Get a list”. That is how this has arisen. By and large, there is not any pressure in the department on Law Commission Bills. With everything else that goes on there, it is just not a priority. It is sad, but that is the reality of the situation. So we end up with a political list that is driven by Ministers—I do not complain about that; I am saying what the reality is.

There has to be a better way of doing this, simply because Parliament is not scrutinising what is in this schedule and we cannot be absolutely certain that we have got it right. I am not saying that the Law Commission is perfect; it is not. It made one mistake—I think that it was in 1965—in something that was put forward for abolition. I forget what it was about—it was allotments for returnees from the First World War or something like that. Someone was thinking of using that bit of legislation and there was one mistake. I do not think that that can be said about the Government.

So we have a problem. The Law Commission does not take up parliamentary time, but we end up having more parliamentary time on this Bill because of suspicion. There is a distinct lack of parliamentary scrutiny of what is going to happen with Schedule 20—there is no question about that—and that is a worry. It is not as though there is not time to deal with this. When the Joint Committee was set up, it was given a specific date by which to report to Parliament—if I recall, it was 16 December last year—and that is what we did because it was what we were ordered to do by the House. It was only at the very last evidence session that we were told by Ministers, “Oh, it’s a carry-over Bill”. We had mentioned it, and no one had ever told us that it was a carry-over Bill. So there was time to do more work on it, yet it only came out when we had

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Oliver Letwin, Michael Fallon and Ken Clarke in front of us. It was a carry-over Bill but that was the first time that that had been raised. Therefore, there was a bit more time to do something about it. I am not saying that it would have solved all the problems but we could have taken a little bit more evidence.

My concern over this, as the noble Lord, Lord Sharkey, has explained in a much more considered way than I have, is that we are cutting corners on parliamentary scrutiny. We do not normally do that unless there is a good and urgent reason, and in this case there is not. Ministers ought to be aware that mistakes arise. Ministers are never around when they do because it may be a year or two years afterwards that something pops up, so Parliament gets it in the neck and it will be said that we were not doing our job. That is my worry here. This exercise ought not to be repeated. It is clear that there is a problem with the Law Commission as far as the present set of Ministers are concerned; clearly they wanted a list. All that I can do is thank the Government for taking out the six clauses that they removed from the Bill, which would have made matters even worse.

I am still very unhappy. Most of this is obsolete, which is self-evident when you read it. However, we cannot be absolutely certain because we have no independent evidence that it is of no practical use. That is the worry that we ought to place on the record.

Lord Skelmersdale: My Lords, it seems that we are discussing, in an amendment to Clause 82, the whole subject of Schedule 20. Five or six years ago I put down a Question for Written Answer, “To ask Her Majesty’s Government” what the oldest piece of legislation still on the statute book was. It dated from the 14th century, though I cannot remember what it was. Looking very quickly through the items in Schedule 20 I notice that there is nothing older than the 19th century. Why? It is a mystery. I certainly go along with what the noble Lords, Lord Sharkey and Lord Rooker, said about an appropriate and responsible body to delve into and probe obsolete legislation. I could not agree with them more.

Lord Stevenson of Balmacara: My Lords, although I may be being a bit previous in saying this, I think that I am the only Member of your Lordships’ House who so far has sat through every minute of the debates that we have had in Second Reading and Committee. I draw two conclusions from that. Today’s open and discursive discussions illustrate that it is a strange experience to be able, in your Lordships’ House, to roam so widely through these uncharted territories of legislation. Some of it, as has been pointed out, goes back a long way, though not all that far back. We have also tried to come to some conclusions about how we might look at this.

There are two conclusions to draw. First, the exercise in pre-legislative scrutiny that was done in the Bill is a very good thing. The reports that this scrutiny generated, and the actions that were taken and the improvements that were made to the Bill by that process, exemplified by my noble friend Lord Rooker, are things that we should bear in mind. Secondly, we need to utilise that

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experience better. Perhaps it is something for another time. The periodic appearances of my noble friend Lord Rooker and the noble Lord, Lord Sharkey, have always generated, when they are here, a much better and more focused discussion in our considerations than when they are not; they have been present a lot and have raised good points. It has struck me that when we have been able to interrogate and listen to what they have been saying we have learnt a lot more about the process that we otherwise do.

That leads to a broader truth that came out in all the presentations that we have had around this amendment so far; we are probably rather ill equipped in Parliament under the processes that we have to follow to do the deep and important thinking about some of the legislation that has gone or is currently going through the House. I absolutely take the point that was made by the noble Lord, Lord Sharkey, and my noble friend Lord Rooker that it is inefficient for Parliament to try to scrutinise line by line material which is obscure and possibly not very well expressed in terms of the material we are given and the notes.

I do not want to go through each of the paragraphs in Schedule 20, but I wish to share with the Committee two things about the process. One is that without a Keeling schedule relating to the particularities of the Bills being amended, it is almost impossible to work out what they are. One simply does not have the expertise or even the time to do that, and it would not be fair to ask civil servants, even if they were able to do it, to help the Opposition on this matter. For example, in paragraph 1, the best I could get from the Bill team—and I thank them very much for it—was a set of summaries in which they tried to characterise what is being done by the various enactments. The first, which is an amendment to the Companies Act 2006 simply says:

“The provisions to be repealed were originally included in the Companies Act 2006 to address an anticipated transitional issue in relation to moving the rules requiring audits of some small charitable companies from the Companies Act to charities legislation … This means the provisions are no longer needed”.

You do not have to be an expert in logic to realise that there a bit of imaginative leap in that. I do not know what legislation is being referred to, and I have not been able to track it down, so I am taking at face value what is, I am sure, good advice that the original legislation has indeed been overtaken by changes in charities legislation, but I do not know that. Therefore, I am not able to scrutinise as effectively as I would like the work that has been done.

These are points already well made by the noble Lord, Lord Sharkey, and my noble friend Lord Rooker, and I do not want to go over them. I have a number of points throughout paragraphs 1 to 42 on these matters. I could go through them, but it would take up the good will in this Committee, so I will not do it. However, it makes the point for me that we have to have a body that we can trust as a Parliament to certify that the Bills or legislation that we wish to see excised from the statute book are no longer of practical use. That body has to be independent. It has to have the time to do research, it has to be able to certify to Parliament that it has done a full and comprehensive study of the work, duly taking evidence and drawing

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conclusions from work carried out in other ways, to provide a draft Bill to be taken forward. Otherwise, we are cutting corners, as my noble friend Lord Rooker said. We simply cannot be certain that what we are doing in this process is not allowing infelicities, injustices and other things to happen in areas where it would be wrong for Parliament to take things forward.

I said I would not go through them, but I cannot resist just one more example. In paragraphs 14 and 15, there are proposals to excise Sections 6 and 7 of the Atomic Energy Act because they are no longer of any use. I could quote the whole of the Explanatory Notes, but I shall jump to the end. They state that the measures define “prescribed substances” that include,

“uranium, plutonium and other substances prescribed by order which can be used for the production of atomic energy or research”.

Then they state—I do not know how to judge this statement—that,

“the United Kingdom no longer needs to search for these substances as it has a steady supply from politically stable countries”.

Need I go on? What sort of judgments are implied in that? To whom and to what Minister has that been put up as a submission? Which Minister has signed off in his or her mind that we no long require for our future energy sources for the longer term to have the right to search for uranium, plutonium and other substances which we need to keep our atomic energy systems going because we can get them easily on the open market from politically stable countries? Okay, Lord Copper, I get what you are at, but this is not sufficient to make a decision of that nature. I may be extending to make the point, but it is typical.

I signed up to this amendment because I thought it was the right thing to do. Having listened to the persuasive arguments of the noble Lord, Lord Sharkey, the detailed criticisms made by my noble friend Lord Rooker and the points made by the noble Lord, Lord Skelmersdale, about how neat and necessary it is to have a proper system here, it seems to me that we need to think very hard about this.

I appeal to the Government; they would not lose this clause if they decided to accept what is proposed here. They could take credit for making sure that the standards that we set in this Parliament are for the long term and for the good. That would be something that we would all applaud.

5.45 pm

The noble Lord, Lord Wallace of Saltaire, and I were members of a group that met on a regular basis—a large and rather expert group—under the acronym BGI: the Better Government Initiative. It was mainly led by a number of ex-Permanent Secretaries, but it had distinguished members such as the noble Lord who were brought together because it was felt that, in the period that did not coincide with but was certainly coterminous with the previous Labour Government, standards of legislation preparation had fallen. I remember weighty tomes being circulated about various processes that had to be gone through.

Things have got worse rather than better under the coalition Government. I am sure that no individual is to blame for that, but this Bill is an example. Material

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that we are discussing now was not discussed in the Commons. It was not discussed by the Pre-Legislative Scrutiny Committee, as we have heard, and there has been no real opportunity to call those who drafted it to account. A blow for better government: that is what I am appealing for to the noble and learned Lord, Lord Wallace.

The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD): My Lords, I thank my noble friend Lord Sharkey for moving his amendment and allowing us to have this opportunity to discuss Clause 82 and Schedule 20, which provide for a number of legislative measures to be repealed or revoked. I am grateful to the noble Lords who have taken part. I get the general message and I hope that I can respond to the points that have been made.

The conditions that are proposed in my noble friend’s amendment would include the need for the Law Commissions of Scotland and of England and Wales—to report, before commencement, on whether or not the legislation to be removed still has a practical use. The amendment, as my noble friend would acknowledge, does not require the Law Commissions to undertake this work. Rather, it indicates that it would not be possible to move forward with regard to the repeal or removal of these provisions from the statute book until such time as the Law Commissions had reported on the legislation contained in Schedule 20. In the absence of any report from the Law Commissions, the obsolete law would simply remain on the statute book.

I hope that there is common ground in this Committee that it is a worthwhile objective to make the statute book simpler to use for practitioners and those in different walks of life when they run up against the law. It is better if it is easier to navigate for the end users of the law. My noble friend makes the point, which I agree with, that the Law Commissions do not have a political agenda. While it is true that many of the provisions in the schedule are a product of the Red Tape Challenge in the sense that they come from a political origin, the purpose of this is to repeal redundant legislation and legislation that is no longer of practical use. The selection of this particular obsolete legislative list may have had a political element in its origin, but in the end the purpose is to ensure that redundant legislation is not on the statute book. Again, I hope that that is a politically neutral statement to make and something that we can all subscribe to.

As my noble friend fairly observed, and as the noble Lord, Lord Rooker, acknowledged, there are clauses that caused considerable offence to the Joint Committee. The Government have accepted that particular recommendation. Those clauses that contained future order-making powers for pieces of legislation that were considered to be redundant were removed. The argument that was made by my noble friend and by the noble Lords, Lord Rooker and Lord Stevenson, would have had greater force if the Government were still trying to defend an order-making position. That is not the case. We took into account the evidence submitted during pre-legislative scrutiny and in the Joint Committee’s recommendations, and the Government removed this power from the Bill.

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The origin of this amendment is, of course, that the Joint Committee also recommended that the various items contained in Schedule 16—I think it was at that time—should be referred to the Law Commissions for confirmation that they were indeed no longer of practical use. As has already been alluded to by my noble friend, the Government did not agree with this recommendation. However, I begin by pointing out that one of the main criticisms of the order-making power was that there was an inappropriate level of parliamentary scrutiny.

This schedule, both in the form that it is in today and in its original form, has gone through pre-legislative scrutiny. I hear what the noble Lord, Lord Rooker, says—that he did not think that it was an adequate or long enough opportunity—but it has had pre-legislative scrutiny and Parliament has considered the Bill up to this point, and no evidence has been brought forward that the items contained within it are not redundant. There is an important exception to that, which we are about to debate in the upcoming group of amendments in the names of the noble Lords, Lord Grantchester and Lord Trees, where there was an issue identified by those with a particular interest in dog breeding, and we as a Committee will have an opportunity to consider this.

As the noble Lord, Lord Rooker, said, the report and legislation that comes forward from the Law Commissions takes about three minutes of parliamentary time. This—particularly these provisions—has taken up far more than three minutes of parliamentary time. That is not the point that I wanted to make. It is not just that Parliament has had the opportunity; it is that—and we know this through all the work that we do in Parliament, not just in this Bill but in a whole host of Bills—we are informed in our debates by a whole host of outside bodies that are more than happy to give us the benefit of their experience, expertise and knowledge on these issues.

The noble Lord, Lord Stevenson, referred to paragraphs 14 and 15 regarding the Atomic Energy Act 1946. In the 31 years since I was first elected as a Member of Parliament, I have never known the nuclear industry to be backward in coming forward if it thought there was a problem with something that Parliament was about to propose. There was also a reference to paragraph 28, omitting Section 10 of the Sea Fish (Conservation) Act 1992, which requires that a report on the operation of the Act be laid before Parliament within the period of six months beginning 1 January 1997. Clearly that had to be done by 1997. Having represented for 24 years, both in the other place and in the Scottish Parliament, a constituency that had very strong fishing industry interests, I make the point that the fishing industry was never slow in coming forward either. It had very good people working for it who would spot important issues. With the exception of the amendment that we are about to come on to, in the whole time that these measures have been out there—since, I think, the summer of 2013—no interested bodies have come forward and said that these pieces of legislation still have a purpose and should be kept on the statute book.

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I believe that good housekeeping of the statute book is good governance. When we bring forward legislation in the normal course of events, a Bill often has a schedule attached to it that will have repeals. They have never gone anywhere near the Law Commissions, unless it happens to be one of the Law Commissions Bills, which now use the fast-track procedure. It is quite usual for Bills to have a whole series of amendments and repeals because they are no longer going to be of any use, given the new legislation that is coming through. What we are doing here is bringing together a number that one might say were not picked up at the time when other pieces of legislation were brought forward. Nevertheless, Parliament has been invited to accept, as we do on many other occasions, that they will no longer be useful.

Although it is true that some of the pieces of primary legislation contained here are repeal candidates for one of the Law Commissions’ Statute Law (Repeals) Bills, I also make three particular points. The Law Commissions tend to focus their resources on certain themes for each repeals Bill. If a repeal candidate does not fit within the theme of a Bill, it is uncertain whether it would be accepted by the Law Commissions for inclusion. The Law Commissions confine their repeals work to primary legislation. A number of the paragraphs—I think that my noble friend said that there were eight—relate to secondary legislation, which has not historically been within the purview of the Law Commissions when they do repeals work. Although secondary legislation can be revoked using the parent Act, this Bill provides an ideal vehicle to revoke these regulations in an efficient manner.

Secondly, many of the provisions contained within the schedule came out of the Red Tape Challenge. The noble Lord, Lord Rooker, clearly made the point that none of these had in the past been referred to the Law Commissions. I do not think that we are running away from the fact that many of them do come out of the Red Tape Challenge. However, many of the themes were launched after the Law Commission for England and Wales invited submissions from government departments in June 2011 on what should be included in what was its last statute law repeals report, published in April 2012.

The next repeals Bill will not be introduced until 2016, and it is my understanding that the focus of the Law Commission’s repeals work will be on laws relating to overseas territories and churches. The Government do not see why the removal of redundant legislation should wait when the Bill that we have before us provides a legislative vehicle for doing so.

Finally, it is worth noting that government departments are key consultees for the Law Commission in seeking to make these kinds of repeals. As the Law Commission for England and Wales states on its website:

“Sometimes it is impossible to tell whether a provision is repealable without factual information that is not readily ascertainable without ‘inside’ knowledge of a Department or other organisation”.

I know that my noble friend said that the Government were answering a question that they were not asked but it is important to make it clear that this is not arbitrary work and that we have within the departments a considerable amount of expertise. One of the examples

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that was given in, I think, the response to the Joint Committee’s report is in this Bill. I think that it was one of the other clauses which drew the short straw in having to deal with part 1 of Schedule 6 to this Bill. It repeals the Deeds of Arrangement Act 1914 as part of a package of insolvency measures. Research, conducted by departmental lawyers, indicated that there was still one person who had a deed of arrangement under the 1914 Act, and a decision was made to include a special saving provision in paragraph 3 of Schedule 6.

The noble Lord, Lord Naseby, was not here to move his Amendment 90 but my noble friend Lord Sharkey referred to paragraph 40, which relates to Section 13 of the Defamation Act. I accept and acknowledge that it is not what I would call a redundant provision; it can be argued that it continues to have legal effect. However, the position is that it was a non-government amendment—one that was accepted by the Government due to a previous commitment to remove Section 13 of the Defamation Act when an ideal legislative opportunity presented itself. I think that, left to the Government’s own devices, it would not have appeared in Schedule 20, but that is where it was moved and that amendment was accepted by the House authorities as the case was made that it fitted within the scope of the Bill. That is why it finds itself here and I think that generally it is a provision that is much welcomed. In those circumstances, I invite my noble friend to withdraw his amendment.

Lord Rooker: What is the Minister’s answer to his noble friend Lord Skelmersdale?

Lord Wallace of Tankerness: I do not think that there is a perfect answer to the earliest one being in the 19th century. If the purpose of this is to try to remove redundant legislation, it can be redundant if it no longer serves any useful purpose. An example is the Sea Fish (Conservation) Act 1992, which is very recent—indeed, I remember taking part in the debates on the Bill that became that Act in the other place. But the purpose of this provision is to remove from the statute book measures which, for example, may have expired or served their purpose, which have been superseded by other legislation or which are simply no longer relevant because they relate to an activity that no longer takes place. I accept that flying kites still takes place, but it takes place in a legitimate way. The fact that there was no provision identified prior to the 19th century I do not think in any way detracts from the ones which have been included, which I would certainly argue that Parliament has had a proper opportunity to consider.

Lord Skelmersdale: Surely the noble and learned Lord will appreciate that the statute book is far, far too long. Therefore, if you can get rid of legislation from between the 14th century and the 19th century, somebody ought to jolly well have a go at it.

Lord Wallace of Tankerness: I am in sympathy with what my noble friend says: the statute book is far, far too long. There is probably someone behind me sweating as I say this but I am sure that if he has candidates that

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he wants to bring forward to addend rather than amend Schedule 20 before Report stage, and if he gives us sufficient time, they could be looked at to see whether they would be worthy of inclusion.

6 pm

Lord Sharkey: I am grateful to all the noble Lords who have spoken and to the Minister for his reply, apart from his reply to my noble friend Lord Skelmersdale in the last sentence. It is the case, despite the Minister’s assertions, that the items in Schedule 20 have not really been subject to scrutiny in any meaningful sense. I agree, of course, that we have now taken up more than three minutes of parliamentary time by discussing the items in Schedule 20, but we have not actually discussed or examined the items themselves in any detail. What we have discussed is whether they should be there in the first place, which is of course not the same thing.

The argument that interested parties essentially would have complained if they had found any faults—a kind of way of saying “The dog did not bark, so clearly these are okay”—makes me wonder, in a way, why we need any kind of parliamentary scrutiny or scrutiny by the Law Commission at all. We could just say “The dog has barked” or not and carry on that way. I do not think that that would work. On waiting for interested dogs—or interested parties—to bark there are, of course, interested parties but the difference between them and the Law Commission is that the Law Commission is precisely not an interested party.

In closing, there are some questions that the Minister did not answer. Perhaps I could persuade him to write to me, in particular about departmental processes, which are at the heart of the matter, the processes that these proposals have gone through and how those processes in fact impact with the processes that the Law Commission itself would use. It would be very helpful to know how those compared.

The real question, however, and I do not think that the Minister touched on this at all, is one that I asked twice, which is: “Why the rush?”. I do not understand why we have to rush this when we know that the Law Commissions could do this in between four and 12 months.

Lord Wallace of Tankerness: I am grateful to my noble friend for giving way. First, the amendment does not make any requirement on the Law Commissions to do this, so there is no guarantee that it will be done within the next six to 12 months. Secondly, these are matters which have been out in the public domain since the summer of 2013. By the time that this Bill proceeds to Royal Assent, it will be the best part of 18 months, if not longer. I do not consider that a rush.

Lord Sharkey: To answer my noble and learned friend’s first point, I will certainly alter the amendment to make sure that the Law Commissions are required to do it in the appropriate time, and I am grateful for that advice. I do not propose to go any further on the issue of rush because I do not think that our minds are meeting on this. I meant the rush to do it without certification, not just getting it done. That seems to me

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the heart of the matter. Given that we are in Grand Committee, I beg leave to withdraw and may return to this at a later stage.

Amendment 89 withdrawn.

Clause 82 agreed.

Schedule 20: Legislation no longer of practical use

Amendment 91

Moved by Lord Wallace of Tankerness

91: Schedule 20, page 201, line 8, at end insert—

“Highways (Assessment of Environmental Effects) Regulations

28A The following Regulations are revoked—

(a) the Highways (Assessment of Environmental Effects) Regulations 1988 (S.I. 1988/1241);

(b) the Highways (Assessment of Environmental Effects) Regulations 1994 (S.I. 1994/1002).”

Lord Wallace of Tankerness: My Lords, Amendments 91 and 92 add to Schedule 20, which—as we have just debated—makes provision for legislation that is no longer of practical use to be removed. I will start with Amendment 91. Both the 1988 and the 1994 Highways (Assessment of Environmental Effects) Regulations inserted a new Part 5A (Environmental Impact Assessments) into the Highways Act 1980. These provisions have now been superseded by the Highways (Assessment of Environmental Effects) Regulations 1999, which inserted a replacement Part 5A.

Amendment 92 seeks to repeal the Sea Fisheries Act 1868, the Fisheries Act 1891 and the British Fishing Boats Act 1983 in their entirety. The 1868 Act implemented a fisheries agreement between the United Kingdom and France and amended UK law on sea fisheries. Much of the Act has already been repealed and the remaining provisions relate to requirements on the carriage of fishing vessel registration documents and to the enforcement of those requirements. Such requirements are now set out in directly applicable provisions in European Union law. The Fisheries Act 1891 implemented the International Declaration on North Sea Fisheries, made by the United Kingdom and Belgium, and amended UK law on sea fisheries and on salmon and freshwater fisheries. Again, much of the Act has already been repealed and its extant provisions relate principally to the declaration. The subject matter of the declaration is now regulated by EU law, under the common fisheries policy, which is implemented other than under this Act.

The British Fishing Boats Act 1983 prohibits the fishing for and trans-shipment of sea fish by or from British fishing boats, unless those boats satisfy conditions relating to the nationality of the crew prescribed by order. The British Fishing Boats Order 1983 requires at least 75% of the members of the crew to be British citizens or other EU nationals. The Act and the order are no longer enforced and nationality requirements are set out instead in immigration legislation.

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As the Committee will know, fisheries is now largely a devolved matter for Scotland, Wales and Northern Ireland and the Government are working with the devolved Administrations to secure legislative consent Motions to repeal these three Acts. I beg to move.

Amendment 91 agreed.

Amendment 92

Moved by Lord Wallace of Tankerness

92: Schedule 20, page 201, line 10, at end insert—

“Sea Fisheries Act 1868 and other fisheries legislation

28B The following Acts are repealed—

(a) the Sea Fisheries Act 1868, including so far as it extends outside the United Kingdom by virtue of section 70 of that Act;

(b) the Fisheries Act 1891;

(c) the British Fishing Boats Act 1983, including so far as it extends outside the United Kingdom by virtue of an Order in Council under section 10 of that Act.

28C (1) The following amendments are made in consequence of paragraph 28B.

(2) In the Fishery Limits Act 1976, in Schedule 2, omit paragraph 7.

(3) In the Debtors (Scotland) Act 1987, in Schedule 6, omit paragraph 24.

(4) In the Merchant Shipping Act 1995, in Schedule 13, omit paragraphs 2, 9 and 68.

(5) In the Statute Law (Repeals) Act 1998, in Schedule 2, omit paragraph 9.

(6) In the Tribunals, Courts and Enforcement Act 2007, in Schedule 13, omit paragraph 67.”

Amendment 92 agreed.

Amendment 92A

Moved by Lord Grantchester

92A: Schedule 20, page 201, line 29, leave out paragraphs 31 and 32

Lord Grantchester (Lab): My Lords, I declare my interest as a dairy farmer, but I no longer have a dog and do not use a dog on the farm. Paragraphs 31 and 32, to which these amendments refer, arise from Part 6 of Schedule 20, “Animals and Food”. Schedule 20 is entitled,

“Legislation no longer of practical use”.

These paragraphs state that under the Breeding of Dogs Act 1973 and the consequential Breeding and Sales of Dogs (Welfare) Act 1999, and their regulations, a local authority need no longer have regard to requiring dog-breeding records to be kept when granting a dog-breeding licence.

When introduced in the Commons stages of the Bill, it was explained that these requirements, to which we shall come shortly, will no longer be required because as from 6 April 2016 all dogs will need to be identified with a microchip. First, however, the legislation cannot be said to be no longer of practical use. The Microchipping of Dogs (England) Regulations 2014 have yet to be examined in either House; I have yet to examine the regulations in detail. Are they the silver

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bullet to negate the need for the requirement to keep records? Can the Minister guarantee that the Microchipping of Dogs (England) Regulations will be right first time, so that we do not need a period of time to determine from evidence that they are working effectively without further adjustment? Would the Minister not agree that these paragraphs are being introduced prematurely? They give the impression that the Minister’s department was given a target of provisions to be cast aside into this Bill as a vehicle as it passed by. How foolproof the microchipping regulations are going to be needs to be determined before any consequential action is taken.

Secondly, the Committee can ask these questions because the information required to be kept by the provisions of the Acts already stated is not the same information required to be kept on a microchip. I hasten to add that we on these Benches are greatly in favour of the microchipping of dogs, but that is about identity, whereas the Breeding of Dogs Act 1973 is concerned with the welfare of breeding dogs. Under the Act, a licensed dog breeder must ensure suitable accommodation, exercise facilities and adequate provision to prevent the spread of disease. There are also other provisions. Under the 1999 Act, accurate records must be kept in the prescribed form and be available for inspection concerning the mating of dogs, number of litters and so on. That information is entirely different from the information that will be recorded on microchips and, crucially, it is in a standard format that is convenient for licensing authorities. By contrast, the details on a microchip will be restricted to the name and address of the owner at the time of microchipping; the name of the dog; and its breed, colour, gender and date of birth. Can the Minister confirm that Paragraphs 31 and 32 categorically do not affect the welfare elements in the Breeding of Dogs Act 1973 and that the prescribed form of information will still be required?

Thirdly, the welfare of dogs is an important matter of concern to many people and organisations. I have received expressions of concern from the Advisory Council on Welfare Issues of Dog Breeding, the British Veterinary Association and CARIAD—Care and Respect Includes All Dogs. The Minister’s department has recently published updated guidance to support local authorities in the interpretation of the dog-breeding regulations, particularly the Breeding of Dogs Acts 1973 and 1991 and the Breeding and Sale of Dogs (Welfare) Act 1999. That has been produced in conjunction with the Chartered Institute of Environmental Health, the Kennel Club, the RSPCA and the Dogs Trust. Indeed, the Government commissioned the independent inquiry on dog breeding and welfare standards by Professor Sir Patrick Bateson, which also supported those concerns. The Local Government Association has also written to state that it does not support the paragraphs.

Fourthly, the Government do not appear to have conducted consultation on the issue. Consultation is accepted as necessary for new legislative proposals, but does it not also need to be carried out on deregulation? Your Lordships’ Secondary Legislation Scrutiny Committee will be particularly concerned to ensure that there has been adequate and meaningful consultation on the future microchipping statutory instrument. Will

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it be concerned about the removal of requirements of the Acts concerning dog breeding? Perhaps the Minister can explain the extent of any consultation undertaken and its relevance in regard to my earlier remarks concerning the welfare issues in the dog-breeding Acts.

Lastly, there is concern that a period may open up between the enactment of the Bill and the operations of the provisions on microchipping. At the very least, the paragraphs need a guarantee that they will not become operable before the necessary databases, believed to be increasing to six, are all fully tested and successful in the integration of records from microchipping. Enforcement authorities could be left without any method by which they could trace dogs, assess the welfare of breeding dogs or protect other dogs and the public from the risk of the spread of disease or the trafficking of illegal dogs.

Those are grave charges against the introduction of these provisions into the Bill. I ask the Minister in his reply to this probing amendment to clarify that these paragraphs do not delete the full panoply of requirements concerning the issuing of dog-breeding licences by local authorities. I beg to move.

6.15 pm

Lord Trees (CB): My Lords, I am all for getting rid of rules and regulations that have served no purpose and are redundant, but when we take a scythe to the deep undergrowth, we risk cutting down some very useful plants. I contend that that is happening here in reference to Part 6 of Schedule 20, which amends the Breeding of Dogs Act 1973 and the Breeding and Sale of Dogs (Welfare) Act 1999. What the provision would do, as the noble Lord, Lord Grantchester, has explained, is to remove a critical requirement for the licensed breeder to maintain records to a prescribed form with respect to the breeding of their bitches.

I contend that to remove this requirement is a retrograde step at this time. What we are talking about here is animal welfare and puppy farming. We are witnessing a huge, unprecedented growth in the commercial breeding of dogs purely for financial gain. In many cases, animals are kept under very inappropriate conditions. This is a matter of considerable concern to the public, to the animal welfare charities and to politicians. We had a debate on dog welfare in this House about a year ago, in which puppy farming was dealt with, and there was a debate in the other place on this issue as recently as early September.

We have laws in place to safeguard the animal welfare of breeding bitches: the aforesaid Acts of 1973 and 1999, which laid down limitations on the number of litters that a bitch can be allowed to produce per year and in a lifetime, the minimum age for breeding and so on. However, the Bill proposes to dismantle the very tools that will allow local authorities to ensure that those important laws, which we all agree that we still need, are being obeyed. So the current regulations are relevant and all that removing them will do is to provide meat and drink for unscrupulous dog breeders to exploit their breeding bitches.

As I mentioned, this matter was debated in another place on 4 September, when the Parliamentary Under-Secretary of State’s attention was drawn to this issue.

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However, in summarising on that debate he made no reference to this problem but did reference the recommendations of the Chartered Institute of Environmental Health on the sorts of conditions which should be included in any regulations. It is made quite clear in the chartered institute’s guidance that maintaining complete and accurate records is regarded as essential. The current requirements are not onerous. There is a simple pro forma to fill in and you keep a record every time that the bitch breeds. To remove that will not see a surge in the gross domestic product of the United Kingdom, so why imperil animal welfare for no obvious purpose?

I suspect that the answer will be that these current requirements are redundant because it is proposed to bring in mandatory microchipping in 2016. I am totally in favour of mandatory microchipping but as was explained by the noble Lord, Lord Grantchester, the microchipping regulations do not cover the areas of concern that I am expressing. Microchipping is there to link a human being with a dog. I have looked at the draft regulations, which require no more than certain details of the owner and certain details about the dog—its colour, breed and so on. The microchipping regulations do not include any information about the sire or dam of the dog in question or, if it is a bitch, whether it has bred at all, how many litters it has had, when it has had those litters and so on, so they do not substitute for the requirements which it is proposed to abolish.

Removing the current requirement is opposed by the Advisory Council on the Welfare Issues of Dog Breeding, the Dogs Trust, the British Veterinary Association and indeed, by the Local Government Association. Removing the requirement will hardly benefit the economy and will certainly not benefit animal welfare, but it will benefit unscrupulous dog breeders in their attempts to exploit their dogs. I contend that the current regulations are relevant and not redundant. I ask the Minister to reconsider.

Lord Stoneham of Droxford (LD): Given the noble Lord’s great knowledge on this issue, can he comment on the problem of dangerous dogs and interbreeding, and whether this will weaken our controls in that area?

Lord Trees: It might conceivably in the sense that breeders need to record the details of the sire as well as the bitch in the prescribed form. It could have an effect on the matter raised by the noble Lord. Clearly certain breeds are proscribed, so they would not—or should not—be used for breeding, and presumably would not be entered here. That may have some bearing on the matter. The primary concern is the exploitation of bitches in general and overbreeding because of the financial advantages.

Lord Wallace of Tankerness: My Lords, I thank the noble Lord, Lord Grantchester, for giving the Committee an opportunity to consider these important matters, and the noble Lord, Lord Trees, who brings considerable experience and expertise to such issues. I have a dog,

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but as it is in Scotland it will not be affected by paragraphs 31 or 32 of Schedule 20, covered by the amendment moved by the noble Lord, Lord Grantchester.

I should say at the outset, and quite properly as I am sure the Committee would agree, that the welfare of dogs is vital. We have been described as a nation of dog lovers and we would want nothing less. I understand that the provision in paragraph 31 relates, as has been said, to questions of the keeping of records and does not impinge on other parts of the legislation dealing with welfare. Paragraph 32 is consequential on paragraph 31. That is an important concern to the noble Lord. There are many other provisions that seek to secure the welfare of dogs. I acknowledge from the concerns expressed, not least in the comments of the noble Lord, Lord Trees, that some of these records are important for welfare.

As has been identified, the underlying reason for including these paragraphs in the schedule is because most of the information held on paper records will, as from April 2016, be held on a microchip database. It is also the case that any information that is not held on a microchip database, and which a local authority considers a particular licensed dog breeding establishment should record, can be made an additional condition of the licence, so there is provision if there is concern about a particular breeding establishment. However, we recognise that the repeal of these paragraphs is not intended to commence until the microchipping is in place. The relevant commencement provisions are at Clause 90(2)(n). Subsection (2) states:

“The following provisions come into force at the end of the period of 2 months beginning with the day on which this Act is passed”,

and receives Royal Assent.

Paragraphs 31, 32 and 37, the subject of the next amendment, are excluded from coming into effect after two months but rather, as I read it, will come into force on such a date as the Secretary of State may by statutory instrument appoint. There was concern about this being introduced before the microchipping provision. That will not be the case, but I can go further than that because the Government have been aware of some of the concerns and have decided to consult the key stakeholders on this issue. If there is enough evidence to support retaining the requirement for licensed dog breeders to keep records, the Government will not commence the repeals contained in paragraphs 31 and 32 of Schedule 20.

Lord Grantchester: Will the Minister clarify that the Clause 31 reference to Section 4(i) refers only to the identity of any dog and that there is nothing else involved, such that it entirely mirrors the provision that a microchip will provide?

Lord Wallace of Tankerness: I will be told by those sitting behind me if I am getting this wrong, but my understanding is that what is required under the 1999 regulations, which I assume are made under the registration provisions that we are talking about, is the name of the dog, the date of birth, the address, the breed, the description, the sale details, the weight of the dog, the mating date, the sire details and the

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number in the litter. The microchipping database covers all but four of these. The four it does not include are the weight of the dog, the mating date, the sire details and the number in the litter. I think that that is as full an answer as I can give the noble Lord.

Lord Grantchester: I am very grateful to the noble and learned Lord for being so helpful. I am very grateful for the support of the noble Lord, Lord Trees, in this short debate. I levied five charges in terms of anxiety and concern on this legislation and I have listened carefully to what the Minister said. I think it will need a period of reflection. Most notably, I ask him to provide details of the consultation exercise that has been conducted so that we can have a look at it before Report. Having said all that, I am very grateful that the noble and learned Lord is content that the border is secure in respect of dogs moving across jurisdictions and I beg leave to withdraw the amendment.

Amendment 92A withdrawn.

6.30 pm

Amendment 92B

Moved by Lord Grantchester

92B: Schedule 20, page 202, line 12, leave out paragraph 37

Lord Grantchester: This amendment removes paragraph 37 of Schedule 20 concerning the requirement for a dog to wear a collar with an identifying tag at sale under the provisions of the Breeding and Sale of Dogs (Welfare) Act 1999. This provision is also predicated on the successful introduction of microchipping. Many of the points mentioned in the previous amendment on dog breeding welfare are also relevant here concerning whether the future introduction of compulsory microchipping will necessarily be proven to render the various Acts’ provisions to be no longer necessary, bearing in mind the comments we have just exchanged concerning whether the exact provisions mirror the microchipping possibilities. Under the Breeding and Sale of Dogs (Welfare) Act 1999, which amends and extends the 1973 Act, a puppy may be sold directly to a future owner or, if to a third party, only if the owner possesses a pet shop licence.

A licensing officer can assess whether or not a breeder is meeting theconditions only if the details of the sale and the purchaser are recorded. The microchipping of breeding dogs and puppies does not enable checks on whether puppies have been sold by a breeder to dealers who do not have a pet shop licence. The information on a microchip, limited as it is, merely records hoped-for accuracy at the time of implant. Thereafter, any new keeper must ensure the records on the database are updated accordingly. I understand—although I have not studied this—that the requirements of the microchipping regulations that are shortly to be introduced will deem a dog to be not microchipped if these databases are not correctly updated. Surely, the successful working of this must be evidenced before this clause is implemented. In this regard, I am not just referring to the implementation

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of this Act after the regulations on microchipping but to a period of time to ascertain that this is all working smoothly.

I imagine that most people have very limited information on any tag on a collar: perhaps just the dog’s name and a phone number. This, at least, is likely to be up to date. If a dog becomes lost, then anyone who comes across the dog can ascertain the present owner—should the dog still have the collar, I grant you. Members of the public will not be able to read a microchip and take the initiative to reunite dog and owner, which can only increase the likelihood that people will deliver dogs to councils. Councils will find it increasingly burdensome to deal with the consequences of this. Does the Minister’s department intend to fund fully this new burden of looking after and aiding the identification of dogs and tracking their owners?

Of more significance, as I have alluded to, is the potential gap between the successful operation of microchipping of dogs and the removal of the requirements under paragraph 37. There should certainly be a much longer requirement for the new regulations to work through the likelihood of sales of dogs as they mature than there is in the prior amendment. I very much look forward to looking at the regulations concerning microchipping. I am certain that microchipping will improve the situation. However, the regulations cannot be seen to be the panacea that can allow these present provisions to be disregarded. They should continue to operate alongside the development of microchipping. I beg to move.

Lord Wallace of Tankerness: Once again, I thank the noble Lord, Lord Grantchester, for moving his amendment and raising an important issue. The amendment would have the effect of continuing to require licensed dog breeders to identify any dog which is sold to a licensed pet shop or Scottish rearing establishment with a tag or badge.

As has been acknowledged, the underlying reason for paragraph 37 is that from April 2016 all dogs will need to be identified with a microchip and therefore there will be no need for dogs sold from licensed dog breeding establishments to pet shops, or indeed to Scottish rearing establishments, to be identified by a tag or badge. It is important to make clear that there will still be a requirement for all dogs in public places to have an identifying badge. That requirement is not removed by this paragraph. It is considered appropriate to retain that, even after compulsory microchipping is introduced, because if a member of the public finds a dog loose in the street, they are not likely to have a scanner in their possession to know where to return the dog.