Clause
10
Directions
and
guidance
Danny
Alexander:
I beg to move amendment No. 63, in
clause 10, page 5, line 8, at
end insert ‘and laid before
Parliament’.
It
is a pleasure, Mr. Taylor, to serve under your chairmanship
for the first time, but by no means the last—although it will be
the last time for several
months.
I refer to
what the Minister said in his closing remarks on clause 9, which is
about parliamentary accountability. A feature of the Committee’s
proceedings has been that a number of amendments have been tabled
seeking to strengthen parliamentary
accountability, in recognition of the fact that the new body is to be
further removed from Parliament than the Child Support
Agency. My
hon. Friend the Member for Rochdale tabled an
amendment that would have required parliamentary
approval for the appointment of the chair of the commission, and
further amendments were tabled on the subject of Parliament debating
the annual report. I am sad to say that a feature of the
Government’s response so far has been that, despite the rhetoric
of the new Prime Minister about strengthening the role of Parliament
and parliamentary accountability, Ministers have chosen to reject the
amendments. I hope that we will see a change in that pattern in
relation to this amendment, and I look to the Minister for a
response.
Clause 10
relates to the link that will continue to exist between the will of the
Secretary of State and the activities of the commission, an
arm’s length body or a non-departmental public body. The clause
quite rightly gives the Secretary of State the power to provide
guidance on how the commission should carry out its work, which is not
binding, and to issue directions, which are binding as I understand it.
In other words, he may give instructions that the commission will have
no option but to follow. It is right and proper that he should have
those powers because, although it is at arm’s length, the new
body is still a Government
one.
The purpose of
the amendment is to ensure that, when the Secretary of State chooses to
exercise the powers, giving guidance or directions to the new body,
Parliament should be made aware that he has done so. That relates to
several broader matters. It would ensure that the lines of
accountability between the Secretary of State and the commission are
clear and can be seen clearly. A degree of openness in the relationship
would be healthy—many hon. Members are still supporters of the
Freedom of Information Act 2000; I certainly am—as it would
allow ongoing scrutiny of the exercise of those functions.
The risk, when governmental
functions are transferred to arm’s length bodies, is that a
mechanism may come about that detaches responsibility
somewhat—it is not the Minister’s fault; it is the
commission’s. The commission is being given a degree of
responsibility and, therefore, it must accept that blame sometimes
comes with that.
Ultimately,
the commission must be answerable both to Parliament and to the
Secretary of State. If that information were laid before Parliament, it
would aid the public’s and Parliament’s understanding of
the way in which the Secretary of State is exercising his functions in
relation to guiding and directing the activity of the commission. I
suspect that if this were a private organisation, we would be hearing
shouts from defenders of commercial confidentiality on not putting the
information before Parliament. However, the body will be a public one,
not a private one, so I do not see that that objection should apply.
The Minister may wish to respond that at least some of the directions
may apply to particular cases and that there may therefore be data
protection reasons for objecting to the
amendment.
4.45
pm
Perhaps the
Minister will give a view on how he expects the powers to be used in
practice. One suspects that the vast majority of the guidance will be
general
guidance about the policies and practices of the organisation, and that
directions may relate to specific matters. Perhaps they will relate to
legislation or to issues that have become live in the public domain,
when the Minister sees fit to act in order to show that something has
been done or to make a change that is required by public opinion or
other reasons. In all those cases, I see no reason why the information
should not be made available to Parliament as a matter of course. With
those brief words, I hope that the Minister will accept those arguments
and see fit to welcome and adopt the
amendment.
Mr.
Boswell:
I welcome you to the Chair, Mr.
Taylor. The hon. Member for Inverness, Nairn, Badenoch and Strathspey
clearly identified that the clause is about what might be termed the
private dialogue that Ministers and the Secretary of State will have
with the chairman, the chief executive and the officials of the new
commission. That is a relationship with which I have had some
experience, and if I may use the occasion of the amendment to speak on
one or two related points as they occur to me, that might be helpful,
although I shall not do so at great
length.
My first
point is one that the Minister has made a number of times. It is
inconceivable that the affairs of the new commission will wither and
cease to be of interest in this place—clearly, they will not. I
can tell the Minister, if he is not already painfully aware of it, that
however much he may put the commission’s functions at
arm’s length and however much he may distance himself and say,
“This is a purely administrative battle,” all the dirt
will land on his desk, even if he does not deserve it. In that sense, I
sympathise with him—it is difficult to do that for Ministers,
but I shall. To put it in English, our constituents have suffered from
failures with the CSA, and if CMEC were to be as unsuccessful, we would
all be on his back to do something about
it.
There
is no sense, except a purely formal one, in which Ministers absolve
themselves of their responsibility by seeking to create some clear
space. On the other hand, if they are to do things sensibly, they would
want to give a measured management freedom. The Minister has referred
to that a number of times. He has sought to resist our amendments when
we have apparently, if only for debate, sought to fetter the discretion
of the commission or to make it too prescriptive.
In relation to the new
Government, which has been in place for some three weeks, my
impressions are that in rhetoric at least, some healthy changes are
taking place. We seem to be having a retreat from targets, for example
in local government, which I think is quite helpful. I do not believe
that people respond best to being ordered, pushed around or told
precisely what to do. If people have a clear remit because the
objectives are clear, and a degree of management discretion to effect
it, the last thing that people want—and the last thing that they
deserve—is Ministers digging them up by the roots every ten
minutes and saying, “Why didn’t you do this or
otherwise?”
Without
respect to party or individuals, the Committee will know that that is a
relationship or a set of constraints that has shot through the whole
process of government ever since the emergence of the concept of next
steps agencies and the separate evolution of non-departmental
public bodies, which have been in place for almost a generation. One has
to go back to Nye Bevan, to the days when he said that a dropped
bed-pan would be a matter for debate in the House of Commons. We have
rightly moved on from that, but the Minister therefore owes the
Committee some indication of his thoughts on guidance and directions,
and how he wants to conduct the relationship. I shall add a coda before I
sit down. My remarks could be construed as being rather sinister. They
could almost imply, for example, that the relationship had broken down
quite badly and that Ministers, having lost confidence in the body,
were issuing instructions to it, rather in the way that a permanent
secretary can distance himself from ministerial decisions by writing a
permanent secretary minute saying, “Not mine”, although
he would not be so impertinent as to say so. Ministers are accountable
here, so, quite rightly, they can take decisions against official
advice. They do that from time to time, and sometimes they are right to
do so, but it is not helpful if it happens all the
time.
In the spirit
of my comments on targeting, I should like the Minister to reflect on
the possibility of issuing annual guidance, which he may be minded to
do, or, in the context of a comprehensive spending review, to have a
dialogue that is enshrined in a formal letter and could well be
published. He should tell us. I have experience of running the two most
expensive non-departmental public bodies, in the shape of the Higher
Education Funding Council and the then Further Education Funding
Council. My role was to write them an annual remit letter in the
context of their funding arrangements and then to let them get on with
it. Both formally and in practice, that is the wisest course of
action.
In the
transition, there is a danger that Ministers might become too
prescriptive, as happened when the Further Education Funding Council
became the Learning and Skills Council. I well remember a remit letter
from the early days of the LSC that listed 76 urgent requirements. The
Committee needs to reflect on that for only a moment. If I were to say
to my secretary that there were 76 urgent pieces of work for her to do,
she would tell me where to put them. The only purpose of specifying 76
requirements is to enable one to take a forensic approach and say,
“You left out that one. You failed on that.” That does
not lead to a healthy relationship.
I say to the Minister that we
need to get a flavour of what guidance there will be, whether it will
be given regularly and the circumstances in which Ministers might feel
that it is appropriate. Above all, we need to know whether the
directions will reflect a particular need of Ministers, some points
that they think particularly important or something that has gone wrong
that they wish to
redress.
I promised a
quick conclusion and I shall deliver one. I hope that Ministers and the
hon. Member for Inverness, Nairn, Badenoch and Strathspey, who moved
the amendment, will not take it amiss when I say that the prescriptions
in the clause and the amendment slightly miss the point. Whatever is
specified in private and said, or not said, in public, it is important
that Ministers should have a dialogue with their non-departmental
public body that is not based on instruction, but that takes the form
of a regular
conversation. There needs to be a degree of
confidence, dare I say, that the chairman and chief executive are
encouraged to come in and talk, and that Ministers will not make
accusatory inquiries and perform press release-type stunts, but will
say, “Have you thought about this?” and “How are
you getting on with that?” A wise Minister does that all the
time and somehow contrives to do it without interfering. It is a
delicate
relationship. My
final point concerns information. My hon. Friend the Member for
South-West Bedfordshire talked about the need for quarterly reporting.
As a Minister, the only time when I ever had such difficulty and was
not happy with the chief executive in question was when something was
bounced on me. We had an administrative problem and, although it was on
nothing like the scale of those of the CSA, I did not enjoy having
35,000 unpaid student loans on Christmas eve. Indeed, I even threatened
to go to Glasgow to sign a few cheques to get something done about it.
It could all have been averted if we had had enough notice of the
problem. We would have put additional staff in a couple of months
earlier and found people in the Department to deal with
it.
In all
seriousness, Ministers will need to give regard, as I am sure they will
wish to, to the nature of their private dialogue with such
organisations. That is a perfectly proper thing to do—it is not
subverting the will of Parliament. Equally, they need to tell us here
and now, in response to the amendment, on which subjects they propose
to give guidance and direction, in what circumstances, how frequently
and to what effect. If the Minister will reflect on that, it would be
helpful.
Andrew
Selous:
It was remiss of me, Mr. Taylor, not
formally to welcome you to the Chair when I spoke earlier, but I do so
now warmly. I have had the pleasure of serving under your chairmanship
before, and I know that you will be fair and allow the most robust
scrutiny, so long as it remains in order.
I have sympathy with amendment
No. 63, and I agree with the remarks of the hon. Member for Inverness,
Nairn, Badenoch and Strathspey. It is a short amendment to what seems
to be a relatively brief and innocuous clause, but our debate shows
that within even the most anodyne clauses deeper and more significant
issues can lie, as was ably illustrated by my hon. Friend the Member
for Daventry.
During
our third sitting, the Minister said about CMEC that
“It will operate at
arm’s length from Ministers and the
Department”,
and a
little later, he said that the
“autonomy that goes with a
non-departmental body is crucial”.——[Official
Report, Child Maintenance and Other Payments Public Bill Committee,
19 July 2007; c. 90.]
We
understand the Department’s reasoning for that, given what has
happened up to this point, but when we come to clause 10, it will raise
questions as to where the balance lies, as my hon. Friend the Member
for Daventry and the hon. Member for Inverness, Nairn, Badenoch and
Strathspey have pointed out. It would be good to get a feeling on what
the Minister thinks of the in-extremis powers that he is giving himself
and the Secretary of State as a reserve. How frequently, if at all,
does he imagine them being put into action?
I think the points on
transparency were well made, and they have been made frequently today
in respect of other amendments. My hon. Friend certainly did the
Committee a service when he spoke of the role of targets in general,
and he was absolutely right to do so. During my relatively brief six
years in the House, I have often had the sense that public servants,
both local and national, spend more time looking up towards Whitehall
targets than looking at—I do not mean looking down
on—customers, people, local residents, people of this country
and those whom they serve. The intention is that targets will achieve
good delivery. We all understand that, but the reality is often not
what Ministers
intend.
I am
interested in the distinction between guidance and general or specific
directions. I do not know about the experience of
other hon. Members, but in my constituency guidance in the education
system seems to have the status of holy writ to teachers. It seems that
guidance is put on a pedestal and no one dare do anything else. I know
that is not the case legally, and the helpful explanatory notes to the
Bill point out that the commission should “have regard”
to guidance but that it must “comply” with directions, as
provided for under subsection (2).
The
Chairman:
Order. I am conscious of the
generous remarks that the hon. Gentleman made a moment or two ago.
However, the amendment is narrow—it relates only to line
8—and his comments are developing into a stand part
contribution.
5
pm
Andrew
Selous:
I am grateful for your guidance,
Mr. Taylor. It was certainly not my intention to start a
stand part debate. If I strayed a little wide, I shall redirect myself
to amendment No. 63. The central question is, why should there be
secrecy? Why should these matters, this guidance and these directions
not be made public? I cannot think of a good reason. As was said
earlier, the commission is not a private organisation. In the spirit of
openness and transparency that has been urged on the Minister so
frequently in the course of our deliberations, I hope that he will look
favourably on the amendment.
Mr.
Plaskitt:
I am grateful to the hon. Members for Daventry
and for South-West Bedfordshire for their contribution to the debate
prompted by the amendment. I am particularly grateful to the hon.
Member for Daventry for having shared his experience with the
Committee. We all appreciate having had the advantage of witnessing his
graceful glide-path, to which he referred this morning, and I hope that
it will result in a smooth landing for him.
The hon. Members for Daventry
and for South-West Bedfordshire both want me to expand a little on the
use of guidance and directions, but the hon. Member for Daventry has
the answer to his own question. As he has said, there will have to be
well-established dialogue between Ministers and the senior staff of the
commission. Of course, that is right. I suspect that out of that will
come the judgment as to how much guidance is needed—there might
well be more of it at the onset of the commission than there is later,
although I shall not try to specify how much, because it will rightly
come out of that dialogue. We anticipate using directions only in
emergencies. The
debate was prompted by the hon. Member for Inverness, Nairn, Badenoch
and Strathspey, who moved the amendment, and I intend to smile on
him—a bit. Because it is a non-departmental public body,
ultimate accountability for the commission’s performance and
actions remains with the Secretary of State, and supervision for
direction and guidance is therefore provided for in this clause. It is
not unusual to have such provisions in the founding legislation of
non-departmental public bodies, and similar legislation can be found in
the Environment Act 1995 and the Serious Organised Crime and Police Act
2005.
The power of
direction will be used only in exceptional and time-critical
circumstances—states of crisis such as that which occurred in
1999 when the Passport Agency failed to process applications within
agreed deadlines. The agency agreed a recovery plan with Ministers, who
in turn authorised the recruitment of additional staff. Ministers also
facilitated arrangements for emergency extensions of passports at post
offices, and reversed a decision taken by the agency to reduce security
checks.
In less
time-critical situations, the Secretary of State can use the power of
guidance to assist the commission. Unlike the power of direction, under
which the Secretary of State’s instructions must be followed by
the commission, any guidance, notwithstanding what has been said in the
course of debate, provided by the commission must be taken into
account, but it does not have to be followed to the letter in every
case. The Secretary of State for Environment, Food and Rural Affairs
uses that power and provides guidance to the Environment Agency on, for
example, the collection of waste in ways designed to protect human
health. However, it is for the Environment Agency to determine how it
exercises that function and to ensure that the power of guidance does
not impede its ability to use its judgment in particular
cases.
The amendment
would require that any guidance or directions provided to the
commission should be laid down in Parliament. I understand the hon.
Gentleman’s desire to ensure even greater openness with regard
to the operation of the commission and agree with him about that. I
must highlight the fact that we see a distinction between the power of
direction and that of guidance. The provision to give guidance to a
non-departmental public body is nothing exceptional. It would be
unusual to publish such guidance and therefore
unnecessary—indeed, inappropriate—to lay guidance notes
before Parliament. However, with regard to the Secretary of State
providing direction to the commission, I am happy to give further
consideration to the amendment.
Over the summer, I want to
look at other examples of how similar powers are used across the
Government, and specifically at whether such directions are laid before
the House. I will return to the matter once I have considered it
further. I want to give positive consideration to the idea that the
hon. Gentleman has put before us in respective directions in light of
the amendment.
Mr.
Boswell:
I always respect a Minister who listens to the
argument and reflects on it. That is hugely helpful to the
Committee.
While we
are bagging at least one assurance that the Minister will look at
something, I have one further point. If he is in formal correspondence
with the commission, perhaps on an annual basis or in the context of
its annual report or the financial settlement, will he reflect on
whether, either as a matter of practice or by using guidance in some
other way, he might consider the possibility of publishing that kind of
dialogue? I fully understand that if he has some internal
guidance—something that perhaps reflects operational factors,
starting factors or otherwise—that he does not wish to disclose.
There may be cases, matters of staffing and otherwise, in which that
might be inappropriate.
It might be good practice for
the Minister to consider some sort of an annual “remit”
letter—I use the word loosely—so that we had some context
in which to frame our consideration of the relationship and the
continuing work of CMEC.
Mr.
Plaskitt:
It may be appropriate to consider the key issues
that could be raised in the context of the annual report. I will take
that away and look at it over the summer together with the suggestion
to adopt what has been proposed in respect of laying directions before
Parliament. At this stage, I ask the hon. Member for Inverness, Nairn,
Badenoch and Strathspey to withdraw his amendment, on the understanding
that I will give it serious further consideration and come back to the
Committee in the
future.
Danny
Alexander:
I am grateful to the Minister for both the
content and the spirit in which he delivered his remarks to the
Committee. I welcome his commitment to give further consideration to
directions, and I understand what he is saying about guidance. If he is
in a reflective mood, perhaps he will consider whether, in the run of
things although not necessarily in every case, there are ways in which
such guidance could be put in the public domain that fall short of
laying it before
Parliament.
For
example, is it a matter that could be published on
the website of the Department for Work and Pensions or of CMEC? I
suppose that the commissioner will have his own plans for making such
documentation open to the public short of laying it before Parliament.
I well understand that distinction. I am grateful to the Minister for
his remarks, and I look forward to hearing what he comes back with
after the recess.
Mr.
Boswell:
Before we leave the matter, I briefly invite the
Minister to consider a point that I suspect will be put to him. There
might be certain cases in which direction is not appropriate for
publication on the grounds of confidentiality or, in extreme cases,
national security. I would not expect him to produce that, but he may
need to produce some kind of rubric that will cover him in those very
narrow cases.
Danny
Alexander:
I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
The
Chairman, being of the opinion that the principle of the
clause and any matters arising thereon had been adequately discussed in
the course of debate on the amendment proposed thereto, forthwith put
the Question, pursuant to Standing Orders Nos. 68 and 89, That the
clause stand part of the
Bill.
Question
agreed
to.
Clause 10
ordered to stand part of the
Bill.
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