Child Maintenance and Other Payments Bill

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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
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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