Examination of Witnesses(Questions 80-92)
MR TONY
MCNULTY
MP, MR DAVID
GREEN AND
MS SARAH
MILLINGTON
WEDNESDAY 8 JANUARY 2003
80. I am not all that much the wiser as a result
of that, but perhaps other members are quicker than me. Mr McNulty,
can you just explain to me where the buck stops, because you must
have dealt with constituency cases and I suspect most of us round
the table deal with constituency cases when you want to know whose
door you can go and bang on to get something done or the tenant
knows who they can take to court. As a result of this, supposing
we go back to your replacement windows scenario and the windows
have been put in at number eight and perhaps a Mrs McNulty is
not happy with the way in which the replacement windows have been
put in because the water is streaming down them and the condensation
is really bad and she wants to get something sorted out, but the
people who put the windows in say it is not their fault, it is
the ventilation strip above the window, does that mean she still
has the same rights in the future as she has now either to go
to court or to go and bang on the door of the managing agents
and get them to redress the problem rather than having to take
on a variety of people who are providing the services?
(Mr McNulty) I think ultimately the council are still
the landlord so the responsibility lies there. I think what this
does is bring into play both the overall agent, i.e. the lead
contractor and to an extent the subcontractor. I wish that the
sort of problem Mr Bennett is outlining was unique to the introduction
of PFI and housing but it sounds terribly familiar in all sorts
of other ways.
81. I am not suggesting that. I am suggesting
it is a fairly common problem. What I want to know is that as
this goes through it will not make it any more difficult to get
the matter resolved because in the end the buck will stop with
one individual rather than it being divided up between the responsibilities
of several people.
(Mr McNulty) Despite the subsequent division the council
is still the landlord and the final arbiter and the key democratic
focal point. It may increase the targets for the council subsequently
to get their pound of flesh once the buck does stop with them
in terms of their legal responsibility being with other agents,
but I do not perceive, given the detail of this, it worsening
Mrs McNulty at number eight's accountability trail at all.
82. So what is the point of taking out the phrase
"as agent"?
(Mr McNulty) The very much less than understandable
legalese that my colleague on my left just went through for you.
I think it is more about the division and the ability to subcontract
down, as I understand it in my pidgin legalese, has to be duly
apportioned elsewhere. "As agent" means you are acting
on behalf of the principal, i.e. the council. That is no longer
the case if you are subcontracting down and the subcontractor
is acting on behalf of the main contractor who is acting on behalf
of the principal. So "as agent" is too restrictive in
legalistic terms and it means no more than that as I understand
it.
Chairman
83. Mr White is our expert on plain English
so I am going to ask Brian to come in.
(Mr McNulty) With the best will in the world, that
does not help us where lawyers are concerned.
Brian White
84. One of the things this Committee has to
do, Minister, as you will be aware, is not just allow departments
to take legislation and copy it from somewhere else, it has to
look at whether it is in plain English or not, if it is comprehensible
and simply to copy it is not good enough. Why did not the Department,
in bringing forward a Regulatory Order, in looking at regulatory
reform, not ensure it was in plain English? Why did you not try
and make subsections 13 and 14 understandable so that you could
have answered the question rather than refer it to the lawyer?
(Mr McNulty) I suspect a lot of troubles in the language
looks like that is exactly what we have done. You will know that
however much we ask departments or individuals to use plain English,
there are a set of specific legalistic buzz words that, whatever
we think they might mean, mean something specific and in that
context and under contract law agent has a whole range of legalistic
consequences that go far beyond mine or your ken or mine or your
affiliation and affection with plain English.
85. So why are the explanatory notes not better?
(Mr McNulty) It says in our notes, "The Department
. . ."—it should say Office—". . . would
like to apologise for any lack of clarity in the explanatory document."
I think that could have been explained far better than it was
and I would duly apologise to the Committee for that. I cannot
apologise either for the English legal system or its vocabulary.
Chris Mole
86. Minister, the Department's explanatory note
observes that in Unison's response they raise a number of pertinent
points in relation to staff who transfer to a PFI contractor.
What do you mean by the "pertinent points" in respect
of the Unison response and what was the general reference to workforce
issues?
(Mr McNulty) I think in the broadest sense, as it
says in paragraph 14 above that, much of Unison's concerns were
about TUPE positions, the transfer of undertakings, the protection
of employment regulations 1981, they were very much in that context.
I think if clauses 100 and 101 of the Local Government Bill secured
in Second Reading yesterday go through that will regularise some
of the positions that many of the unions have difficulties with
under TUPE, but I think Unison's principal concerns were in regard
to TUPE and general pertinent workforce issues. If I was party
to it at the time I would have said otherwise, although the first
port of call in terms of unions was the TUC which seemed rather
strange to me in terms of a wider public consultation, but subsequently
it did go to all the relevant and pertinent public sector unions,
Unison, Amicus, GMB and UCATT, so their concerns are along the
lines of TUPE and the transfer of staff.
87. But you have not responded specifically
to their points in your departmental response.
(Mr McNulty) Because there is no specific variation
of the current national provision in terms of TUPE or any other
transfer of staff or undertakings that are unique to this Order
in any way, that is why there has been no specific response to
their concerns other than the other points they made about contract
specifications and those sorts of elements which will partly address
some of their concerns with the workforce.
88. So you could give an assurance to this Committee
that the Regulatory Reform Order does not worsen the position
with regard to employment protection for those who transferred
from one contractor to a subcontractor?
(Mr McNulty) Absolutely. That would prevail under
the current TUPE arrangements that prevail in the national domain.
Hopefully, should the will of the Government coincide with the
will of Parliament in terms of the Local Government Bill, as I
read them they will be enhanced anyway in the context of some
of the elements we are dealing with in the local Government Bill.
Mr Havard
89. As I understand it your Office has given
the assurance to Unison in relation to ALMOs that they will have
this protection in the way you have just described. However, one
of Unison's problems is if the whole proposal gives extra flexibility
to local authorities presumably it helps to improve their management
processes, which would probably be a jolly good idea as well,
it gives them more flexibility, but they may choose to use it
more broadly than they are currently using it. I am unclear as
to how they will use it and where and I have heard statements
that there are no plans to do much more with it at the moment,
but Unison's problem is should it then be used more extensively
in the housing management field or other parts of local authority
activities and does the same protection then follow. You have
given them specific assurances about the current situation, but
if you are giving flexibility to broaden it even further how are
they protected in those circumstances?
(Mr McNulty) There is nothing in the short term with
these two or three PFI contracts in mind that may or may not come
to fruition with or without the Order. If ALMOs, TMOs or any other
variation or model of public sector social housing were to go
down this route, the one thing I cannot rule out is any change
or otherwise to the TUPE system in future. As of now, the assurance
already given to Unison is that there is nothing in here that
worsens the protection of their members in terms of TUPE regulations
and that will prevail in the future. I hope my interpretation
of the clauses in the Local Government Bill are right, that changes
we are doing elsewhere in a national context to TUPE especially
in terms of pay and conditions for those work forces who do transfer
will be enhanced and that enhancement will follow through on this,
but as I understand it there is absolutely nothing in here or
any subsequent utilisation of this in areas outside the PFI contracts
that will lessen the protection afforded to public sector workers
under the TUPE regulations now. It is a point of real concern.
Andrew Bennett
90. You have told us you have a problem with
the five or six PFIs that are coming along. You could have chosen
to have gone for a very narrow piece of regulatory reform to deal
with those. You have actually chosen to go for something that
is wider, as you told us earlier, which deals with a whole lot
of problems. Would it not have been fairer to have dealt with
the very specific problems of these five in this Order and then
left the wider issues for the Housing Bill which is going to come
along in due course?
(Mr McNulty) I do not think so, not least because
the problems are the same. The problem is the legalistic point
to do with the sub-delegation of the housing management function
in the sense that there are two or three PFI contracts that may
be able to be let by local authorities and in a far more satisfactory
way as a result of this Order than they would otherwise. I do
not think it would have been a terribly good use of the RRO process
just to do it specifically round those contracts given that its
application and its reform had far wider implications, neither
can I prejudge the direction and evolution of ALMOs, TMOs or some
of these other aspects or how they utilize them. The reform process
is about deregulating a particular piece of what we now see as
inappropriate legislation and a burden and barrier to flexibility
for local governments. How that is utilized I think is a secondary
point. It is not our job to pop back to the Committee any time
we fancy changing or deleting something for specific contractual
purposes but to look at the widest application and whether it
is appropriate to reform things in the widest context, which is
what we have done.
91. But this is not really deregulation, this
is actually new regulation and different regulation. Does the
Department have a clear line as to what should be done by primary
legislation and what should be attempted through this channel?
(Mr McNulty) I think we do. I do not think we do,
I know we do. We have the draft Housing Bill and we have the Local
Government Bill which in a wider context will impact on local
Government, so that has some degree of impact on this. The best
advice we have in terms of the Parliamentary dimension is even
if—and it does not really accord with our timetable—the
Local Government Bill would have been the appropriate vehicle,
it would have pushed the scope of that Bill in parliamentary terms
beyond its long title, so it was not an appropriate vehicle. We
are very clear on what we want in terms of secondary legislation
and aspects of the deregulatory route in terms of securing what
we want in terms of housing.
Chairman
92. Any other questions from members? Is there
any point you feel you or your team have not made and would like
to make before you go? There were a couple of points where we
have said you would give a written reply. You will recognise our
time-tabling means that if you want these to be taken into account
they have to be dealt with speedily. Is there any point you wish
to make before you depart from us?
(Mr McNulty) I would make three simple points in conclusion.
Number one, I think I would disagree with Mr Bennett, this is
deregulation and a release of burdens or at least an expansion
of flexibility rather than otherwise, which is part of the definition
of burden. Number two, it has been a great privilege to be the
first Minister to appear before a Joint Committee in terms of
the specifics of an RRO. Thirdly, can I simply put on record Lord
Rooker's apologies for not being here. I think most of the Committee
are fully aware why I am here rather than Lord Rooker. I should
have said that at the beginning. Thank you very much for your
time.
Chairman: We are sorry that Lord Rooker could
not be with us. We more than welcome you here, but we do understand
the unfortunate situation which has prevented him from being here.
Can I thank you very much for coming along.
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