Clause
8
The
representative
function
Lorely
Burt (Solihull) (LD): I beg to move amendment No. 44, in
clause 8, page 6, line 5, leave
out ‘may’ and insert
‘shall’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 45, in
clause 8, page 6, line 14, after
‘any’, insert
‘appropriate’.
No.
46, in clause 8, page 6, line 15, after ‘organisation’,
insert ‘, where
appropriate’.
Lorely
Burt:
Sorry for any confusion, Mr. Weir. It is
a bit of a two-handed job for Liberal Democrat Members. I hope that
other hon. Members will not think of an appropriate epithet for us. As
long as it is not Thelma and Louise, I really do not mind.
Amendment No. 44 represents
the essence of what we wish to convey. We want to replace
“may” with “shall”. A great deal was made
of this in another place and by my hon. Friend the Member for Richmond
Park on Second Reading. I do not need to labour this as the point has
been made on a number of occasions. We are not just trying to split
semantic hairs here. We
are concerned that these basic functions should have to be fulfilled.
Saying “may” makes it optional, but saying
“shall” means that it will be
done. What underlies
our insistence that we should like to see this is the cost-cutting
options that may be involved if we adopt “may” rather
than “shall”. The body could choose to sit on its hands
and do nothing and that is the last thing that we would wish to see. I
am sure that the Minister would agree that we have nothing to worry
about in that respect but in that case I should be grateful if he
accepted that the stronger word “shall” should be
adopted.
Amendments
Nos. 45 and 46 insert the word “appropriate” and give
leeway for common sense. Because we have moved from “may”
to “shall” an adjustment is needed for reasonableness. If
the Government find our drafting clumsy, we would be more than happy to
accept any of their consequential amendments if they are prepared to
accept amendment No. 44.
Mr.
Ben Wallace (Lancaster and Wyre) (Con): I just want to
pick up on the earlier point made by the right hon. Member for
Coatbridge, Chryston and Bellshill about the very ethos of the consumer
council and where we go with it. I am a believer in
transparencyin government. My one concern here is that in
subsection (2) the council will decide who should see its
representations or its information. It is a consumer body to represent
us, often against business or unfair practices by other
authorities.
5.15pm
It
is important that it is not left to the council to decide under
subsection (2)(f) who
“might have an interest in the
matter in question.”
I
would like to make that decision and I think many consumers would. It
would be a good step forward if the Government considered, perhaps
before Third reading, whether there is any way in which they can
increase transparency. If we are to have faith in the system—I
notice that it involves many Ministers—why can we not have
access and decide more about where things
go?
Stephen
Pound:
I entirely concur with the hon. Gentleman’s
support for transparency in Government, which is normally a
characteristic of Opposition politicians rather than members of the
Government. Is he asking for a long stop whereby politicians are
involved at the entry point, or is he saying that we should define
every interested party? Surely the logic of his suggestion is that we
have a massive list of people who fall within the ambit of interested
parties, because ultimately anyone could be interested. Should there
not be some mechanism by which the new NCC, acting in good faith, can
define its terms and, if it fails to do so, will have the sanction of
our
opprobrium?
Mr.
Wallace:
We should look across the channelat some
of the German lander where there is transparency throughout and
complete openness. There is no presumption that anyone must decide. The
council can put the report in a package, stamp it and decide who to
send it to, but everything should be open
for deliberation and for us to look at. Of course,
confidentiality of complaints would have to be protected, but the
council could just publish recommendations or put them on the website
so that we can look and see what is going on. I do not see any reason
why that cannot be the case, other than perhaps for the investigative
part, which includes sensitive issues. That should be the start point,
and reasons should be given for rolling back from that start point.
That is the ethos of where the council should be. It is supposed to be
the champion for the people, so transparency is a good principle for it
to embrace.
That is
the main thrust that I wanted to make in my contribution. The only
other clarity that I want from the Minister is about the persons in
subsection (2) who can receive representations. It
states:
“any Minister of
the Crown or government
department”.
Why are the
words “or government department” included when they are
not included with Scottish and Welsh Ministers? This is a technical
query, because I presume that every “government
department” has a Minister of the Crown at its head, but I am
sure that I shall be
corrected.
Mr.
McCartney:
I thank the hon. Member for Solihull (Lorely
Burt) for the way in which she moved her amendment, and I thank my hon.
Friend the Member for Ealing, North (Stephen Pound) for his incisive
probing of the Conservatives’ position. I also thank the hon.
Member for Lancaster and Wyre (Mr. Wallace) for his
comments, and hope that I can respond to
them.
The clear
intention behind amendment No. 44 isthat the council should be
required to fulfil its representative functions provided by the Bill. I
am happy to make it absolutely clear to the Committee that we have
given the new council three statutory core functions, which are set out
in the Bill. It cannot sit on its hands and do nothing, because it will
have a legal requirement.
First, its representative
function is critical. The other two are research and information. The
representative function is advocacy. The research function is
influencing future policy and direction not just inthe
marketplace, but in public policy areas. The information function,
which we discussed during our previous debate, is critical and gives
people not just rights, but the capacity to exercise those rights.
Information is critical for consumers in the sort of marketplace that
we now operate in, and consumers need to be able to make a valued
judgment. The only way to do that is to have the knowledge to make that
judgment, and if something goes wrong when it has been exercised
effectively and fairly, to have the additional knowledge of who to seek
out in the system to obtain redress when goods or services have been
sold inappropriately or not on the basis of a legal requirement on the
body or organisation that is selling the goods or
services.
Lorely
Burt:
The Minister talks about core responsibilities and
functions. The same terminology, “may”, is used in
respect of the research and information functions. I understand his
saying that
this is so hugely a core function, but there is
still no requirement to comply. My understanding of the wording is that
the council might decide not to implement this function, so what in the
word “may” enables or requires it to fulfil those
functions.
Mr.
McCartney:
I was getting to the point that the hon. Lady
made. First, let us agree that these are statutory functions, and as
such there is the interlinkof the independence to carry out
those functions. Secondly, the reason why there is discretion to
exercise the functions and why we do not compel the bodies to discharge
them is not a get-out clause; this is about ensuring that they have the
capacity within their resources and work programme to be able to deal
with these functions as they see fit.
For example, the reason why
the council may provide advice about the consumer matters under the
clause is because it must decide first on which consumer matters it
should provide advice and to whom. That is very important. That is why
it is given discretion to determine the type of advice and to whom it
should be given. The exercise of these functions flows from the
decisions of the council and the priorities identified in its forward
work programme.
Again, that forward work
programme is accountable, because it is a public consultation process.
So, this is about the substance of the council’s activities.
Thereis a statutory opt-in, as well as transparency and
accountability to the work programme. That is the right approach,
because Parliament is establishing this body on the basis of giving it
the responsibility of acting on behalf of the consumers in an effective
way. For example, it may well be that an additional resource will be
required for an information campaign. Why should the body not be able
to make a decision when that is a priority and part of its work
programme? Should it say, “We can’t make that a priority
because we have to spend 33 and a third per cent. on all of the issues
on that basis. Were we not to do so, it wouldlook like we are
not carrying out our obligations effectively”? Such a situation
would be nonsense, because an organisation cannot operate effectively
in that way.
It is
important that organisations are given the maximum potential for making
those decisions. We should remember that when they make those decisions
they are accountable in the annual report, in the programme and in the
carrying out of that programme. It is important that we do not view
these clauses in isolation, because each adds something to the creation
of the new, stronger consumer advocacy body and they all fit together,
piece by piece, to complete the picture. We have set out the core
functions of the council, and the provisions in clause 5 set out the
need for the body to determine its priorities, including how these
functions will be exercised. That is important because of what I said
just a moment ago.
The new council will be a
stronger consumer champion and will have the benefit of significant
expertise in representing the consumer interest at its disposal. We
shall surely be in a better position than we are today to determine how
its functions might best be exercised to the benefit of consumers. I
cannot accept the amendment because it is right that the new body
should have the flexibility to be able to make
decisions on what actions are appropriate in the interests of
consumers. The
essence of amendments Nos. 45 and 46 isabout ensuring that the
new body, in conductingits representative function, represents
the views of consumers on consumer matters to the appropriate bodies. I
again confirm that that is our intention. Although I do not accept
amendment No. 44, the sentiments behind it are exactly those behind
what the body will carry out in practice. On amendment No. 45, I give a
commitment that the intention behind the clause is as I have
mentioned.
While we
are able to identify specifically some of the people who might be
involved, such as a “Minister of the Crown” or a
“government department”, a Scottish Minister or a Welsh
Minister, it is necessary to allow the new council the flexibility to
work with others as it considers what is most suitable at the time.
That goes to the heart of independence, does it not? We cannot give
independence and then say, “This independence can be exercised
only through the Crown. You can’t possibility do this unless you
go through the Minister.” That goes to the point made by the
hon. Member for Lancaster and Wyre. The new NCC does not have to go
through the prism of either a Government Department or a Minister of
the Crown; that was the point of the previous amendments. It can go
direct, of its own volition or on behalf of a constituent.
The clause specifies a
Minister of the Crown or a Government Department because the
Departments with responsibility for bodies that provide goods and
services have opinions. For example, if there were a future EU
directive similar to this legislation, each Department would have a
view on it and would be entitled to express it. It would be entirely
wrong if the NCC could not—independently of the Department of
Trade and Industry—discuss with those Departments its view on
consumer interests. This is about independence, and that means setting
out what that independence means in practice in all circumstances. I
hope that I have reassured the hon. Gentleman that that is what the
discretion is about—it allows the NCC the right to work with
whomever it wishes to work with. That might mean that it goes direct to
the Liberal Democrats, Scottish Nationalists or another political
party, or to an advocacy organisation or non-governmental
organisation.
For
example, there are many organisations that are active in the field of
sustainable development and hundreds at national, regional and local
level working on behalf of people with disabilities. It should not be
for the Secretary of State to determine which of them the NCC should
engage with. That would curtail its independence. It is important for
its advocacy role that it should have absolute latitude to determine
who its partners are. I hope that my explanations have helped the hon.
Members for Solihull and for Lancaster and Wyre to accept that the
Government’s intentions are completely honourable. We want to
give the council maximum opportunity to operate
effectively, independent of Ministers and the Department where
appropriate.
Mr.
Wallace:
I want to test the Minister slightly more on the
matter of Departments. I am not talking about the Secretary of State
directing where the council should go. Let us say that we are
considering the
impact of an EU directive, or an allegation about a
Department that provides a service but is acting against the consumer.
It is important that the council should have the right to go to that
Department, but surely it should go through the Minister of that
Department, because that would oblige that Minister to take
responsibility. If it is pointed out to a Minister that his or her
Department is acting against the consumer, but nothing happens, we in
this place have a right to ask that Minister, “Why did you do
nothing about it?” Why does subsection (2)(a) need to
say
“any Minister of the
Crown or government
department”?
Why is the
“or government department” added on? Can it not be just
that it has to go to any appropriate Minister of the
Crown?
Mr.
McCartney:
This is a function of Government. On some
occasions, the council will require direct access to the Secretary of
State for a specific reason. On others, as part of a consultation
process, it will ask for something to be prepared on behalf of the
Department for Ministers to review, or will want their opinion consumer
issues. That is how it is done. If it were not done that way,
Government would grind to a halt. Every day, hundreds of legitimate
representations are made to Departments across Whitehall by
organisations that have a relationship with
Government, seeking information or consulting on the development of
policy or its implementation. That is reflected here. It is not unique.
It happens on all
occasions.
As to
Scottish and Welsh Ministers, the hon. Member for Lancaster and Wyre
was a Member of the Scottish Parliament, so he knows how that works
better than I do. The issue is accountability, and the capacity of the
NCC to determine for itself whether it sees fit in the first instance
to approach a Department or a Minister of the Crown. It should be able
to make that choice.
Lorely
Burt:
I am grateful to the Minister for the time and
trouble that he has taken to give a full and moving explanation as to
how he feels that the clause will work. I have no doubt about his
intentions to make it work in the way that all Committee members want
it to. I have a tinge of anxiety due to the wording, but I shall not
press the
amendment.
5.30
pm
Mr.
Wallace:
I understand that any Department’s
response is made in the name of the Minister of the Crown. There is no
third party or lack of liability. Any response, by the lowliest civil
servant or the most senior, is made in the name of the Crown. To say
that putting “Ministers of the Crown” would delay that
process is not logical, because every day questions are put by civil
servants to each other in the name of the Minister of the Crown. If I
were to say, “The National Consumer Council went not to a
Minister, but just to the Ministry of Defence”, the defence from
that ministry would be that no one was in charge; the matter just went
to the MOD. Surely, we do not need to say “or government
department”, just “Minister of the Crown”. That is
the accountability trail. I do not understand why that would delay
things. How many things happen every day that do not go via the
Minister at all, although we know that they are done in the name of the
Minister of the Crown?
Mr.
McCartney:
There is a second example, although the one
that I gave was legitimate and stands. Some non-ministerial
Departments—Ofgem and Ofwat, for example—do not have
Ministers. Are we to exclude those? I understand why the hon. Gentleman
is making that point, but frankly it belies a lack of knowledge about
how Government structures
work.
Lorely
Burt:
I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
8 ordered to stand part of the
Bill.
Clause 9
ordered to stand part of the
Bill.
| 
