The Committee consisted of the following Members:
Fergus Reid, David Slater, Committee Clerks
† attended the Committee
The Parliamentary Secretary, Office of the Leader of the House of Commons (Tom Brake): The clause will reform the street trading licence appeals process in the City of Westminster and other London local authorities. Such street trading appeals in the rest of the UK are already heard by magistrates courts, or can be challenged by judicial review. At present, however, appeals arising in the London boroughs are heard by the Secretary of State. The clause will remove Ministers and Government officials from this judicial role by transferring the responsibility to hear London street trading appeals to local magistrates courts. This will ensure fairness and political impartiality in the interpretation of legislation. The changes will be achieved by making amendments to the City of Westminster Act 1999 and the London Local Authorities Act 1990. I commend the clause to the Committee.
Thomas Docherty (Dunfermline and West Fife) (Lab): I shall be equally brief. I have one quick question for the Minister. Perhaps he will have inspiration before I finish speaking. What estimate has been made of the savings generated to central Government by the switch? If he has the information to hand, what additional costs fall to the magistrates courts? If not, he may write to me afterwards, if that is convenient.
Tom Brake: I thank the hon. Gentleman for his question, which is a sensible one. The Government’s view is that the appeals process will run more swiftly in the local magistrates court. In past years, appeals heard by the Secretary of State for Business, Innovation and Skills have taken between one and five years to resolve—the hon. Gentleman would agree that that is rather a long time frame—and the majority have taken about two years. In contrast, it is reckoned that an appeal hearing with an estimated duration of half to one day would take eight to 12 weeks to list; an estimated appeal hearing of two days or more would take longer to list, but could be expedited in the case of urgent hearings. I hope that he agrees that this process will clearly improve the speed in which appeals are heard. On his specific question about the cost, the estimated saving associated with the measure is about £19,000.
The Solicitor-General (Oliver Heald): Section 15 of the Gangmasters (Licensing) Act 2004 confers a power on the Secretary of State to appoint enforcement officers to enforce the provisions of the legislation which prohibit an unlicensed person from acting as a gangmaster. The Secretary of State may enter into arrangements with the Gangmasters Licensing Authority or other bodies in appointing people to act as enforcement officers. All the enforcement officers are appointed from within the GLA.
It is believed that the effect of section 15 is that only enforcement officers appointed or arranged for by the Secretary of State may make decisions about whether to prosecute; it is not possible for officers to be appointed to investigate and others to prosecute. The difficulty that has arisen is that the Department for Environment, Food and Rural Affairs prosecutors have now been merged into the Crown Prosecution Service and we have one service. In the past, DEFRA had its own separate prosecutors, but now the enforcement officers make the decisions to prosecute, taking advice from the CPS. This is not ideal—it is a partial solution—so the clause amends section 15 of the Act to make it clear that the entire conduct of the prosecution, including the decision whether to prosecute, is, from a legal perspective, capable of being carried out by the CPS.
The change will benefit legitimate gangmasters, ensure that criminal ones are efficiently prosecuted, and avoid any technical difficulties that may arise. That is the basic thinking behind the clause, and I commend it to the Committee.
Thomas Docherty: I will not detain the Committee for long. I am not as well educated as you, Mr Hood, nor do I have the benefit of legal training, like my hon. Friend the Member for Kingston upon Hull East, or the Law Officer. Perhaps it is just my ignorance, but the Library briefing says that clause 51 will apply to England and Scotland, although the criminal justice system in Scotland is different. Will the Minister clarify the territorial extent covered by the clause?
The Solicitor-General: That is a very good question. The clause does not make provision for prosecutions in Scotland and Northern Ireland. Prosecutions on behalf of public authorities in Scotland are generally conducted by the procurator fiscal, and in Northern Ireland the Department of Agriculture and Rural Development is content to continue to refer matters to the Director of Public Prosecutions on a case-by-case basis. The clause covers England and Wales.
Clause 52 repeals section 4(10) of the Care Standards Act 2000, removing the requirement for providers of social work services to register with Her Majesty’s chief inspector. It also makes consequential tidying-up changes, including the repeal of section 4 of the Children and Young Persons Act 2008. Part 1 of that Act enables a local authority to enter into arrangements with providers of social work services that enable those providers to carry out some or all of the authority’s care functions in relation to children. The 2008 Act currently specifies such care functions to be those relating to looked-after children and care leavers.
When part 1 of the 2008 Act commenced in November 2013, the Government also introduced regulations governing the registration of all providers of social work services with Her Majesty’s chief inspector under the 2000 Act, as required by the 2008 Act. As a result of the requirement in the 2008 Act and the associated regulations, Ofsted is obliged to manage a registration scheme for any providers to whom local authorities choose to delegate children’s social care services.
The regulations governing the regime focus only on the fitness of providers, which a contracting authority would need to consider in any case as part of due diligence. They do not offer any additional assurance on the quality of the services themselves. Indeed, the registration could be seen to offer a false assurance of quality that the regime does not justify. When they introduced the regulations, the Government made it clear that the registration scheme was envisaged only as a temporary measure. It was introduced only to enable the wider commencement of part 1 of the 2008 Act. The legislation would otherwise have been lost under a sunset provision.
Clause 52 will remove the registration requirement. The Government previously sought to remove that requirement by means of a legislative reform order but, in the event, it was adjudged not to meet all the requirements of an LRO. That is why we are introducing the clause as part of the Bill. All the due diligence checks that Ofsted currently carries out as part of the registration arrangements will be done as a matter of course by local authorities that contract with third parties, as an essential part of the tendering and contracting process.
Chris Williamson (Derby North) (Lab): Has the Minister consulted with the British Association of Social Workers to get its view on the proposed change and to find out whether it agrees with the clause?
Kelvin Hopkins (Luton North) (Lab): Following the intervention from my hon. Friend the Member for Derby North, have the Local Government Association and the trade unions representing social workers been consulted? What were their views on the proposal?
Those removals will not in any way weaken the protections in the system. Ofsted will continue to inspect providers of social work services alongside local authorities, under its new single framework inspection arrangements. The clause is not connected in any way with Ofsted inspection and has no effect on it, other than the positive one of enabling Ofsted to focus only on inspection. It will therefore remove the potential conflict between Ofsted’s duties as a regulator and as an inspector, by enabling it to focus on its inspection responsibilities and removing the ambiguity of a provision that requires it to approve social work providers on one hand and hold local authorities to account for their services on the other.
Thomas Docherty: I will keep my remarks short, following the points made by my hon. Friends the Members for Derby North and for Luton North. If the Minister had looked though the excellent Library note, he would have seen that page 76 says:
It goes on to explain that 45% of respondents disagreed with the proposal and only 40% agreed with it. I assume that the remaining 15% were unsure. It is unfortunate that the responses were not included in the documentation published by the Department for Education, because that might have helped to give the Minister some inspiration in answering the questions. May I press him, while he gathers his inspirations together, to set out why the Government are proceeding, given that a majority of those who expressed an opinion were against deregulation? I may seek to catch your eye again, Mr Hood, but at this point I am happy to let him try to respond to the points that have been made.
Kelvin Hopkins: I thank my hon. Friend for his helpful intervention. I am concerned about any deregulation of the regime under which social workers are employed, because they do an incredibly responsible job. Overwhelmingly, social workers are very responsible, caring people, but from time to time I have come across one or two whose performance is not perhaps as one would like. Some of that is because they are constantly under pressure. The amount of work that social workers must deal with and the squeeze on local authority funding means that there are great pressures on their lives. They deal with very stressful experiences involving children and people in distress. Social work is important and must be regulated, sustained and supported.
I am also concerned about the concept that social work can be contracted out. Direct employment for social workers, so that they are directly accountable to
Chris Williamson: I want to make a brief intervention, having been a social worker, albeit for a relatively short time. I obtained a CQSW social work qualification and certainly know the vitally important role that social workers play. My hon. Friend the Member for Luton North has already pointed out—[ Interruption. ]
Chris Williamson: I am grateful, Mr Hood. I could hear remarks, sotto voce, making reference to the fact that I was previously a bricklayer. That is true. Part of my working life was spent as a bricklayer. I have also worked in a factory, and I have been a market trader, a welfare rights officer and a social worker. Shall we get all that on the record, so we do not have any chuntering when I refer to previous occupations that I have held? I am a man of many talents.
Toby Perkins (Chesterfield) (Lab): I am glad that my hon. Friend laid out some of his impressive background. Given that background, he will be unsurprised to learn that a Survation poll today, which surveyed only people in work, found that Labour had a 17-point lead among workers, so let there be no doubt which the real workers’ party is.
Chris Williamson: My hon. Friend is correct. Labour is the party of all workers, including social workers. One of the things that I am concerned about—and I hope that when the Minister responds he can give us some reassurance—is that this provision should not be an attempt to make it easier to externalise and privatise social work.
My hon. Friend the Member for Luton North made a point about the importance of the direct provision of public services, particularly sensitive public services such as those provided by social workers. There is incredible pressure on social workers today as a consequence of the austerity measures that the Government are pursuing; the welfare reform programme they are implementing; mass youth unemployment; and lack of opportunity in large tracts of our country for many citizens. That adds considerably to the pressure. I know from personal experience as a social worker and a welfare rights officer under the previous Conservative Government the pressure that ordinary families experience when there are high levels of unemployment and widespread low pay.
It is important to recognise the central role of directly employed social workers, who provide a service, through the local authority, to the citizens in their area. I hope that when the Minister responds he can give us the reassurance that the clause is not an attempt to enable
I shall finish by quoting the findings of the citizens jury commissioned by PricewaterhouseCoopers two years ago. A wide sample of people—30,000 individuals—were asked about the delivery of public services and whether they should be delivered by directly employed public servants or by the private sector. The overwhelming majority of the British people, according to the citizens jury, felt that public services should be delivered by directly employed, directly accountable public servants, not by the private sector. The citizens jury looked at different categories, and although I do not know whether there was a specific category for social workers, it certainly looked at the emergency and other sensitive services. The majority view was overwhelming, and it was a significant majority for all public sector workers, from street cleaners all the way through to police officers and firefighters.
I hope that the Minister can give a vote of confidence from the Government to the work that social workers do in this country, and give them reassurance that the Government are not seeking to provide social work on the cheap or increase the externalisation of this vital service.
Tom Brake: I want to respond to the points raised in this short debate. I am happy to join the hon. Member for Dunfermline and West Fife in welcoming the fact that today is world social work day, and I commend the very tough job that social workers do. It is not a job that I would like to do. They face difficult challenges and deal with harrowing cases, so I am happy to join the hon. Gentleman and put that on the record.
Toby Perkins: The right hon. Gentleman is absolutely right to place on the record the admiration of all of us for the work that social workers do and the incredibly important task that they fulfil, but he should not put himself down. He talks about how tough it is to be a social worker, but he is a Liberal Democrat MP who will be trying to get re-elected, so he has a pretty tough task on his hands as well.
Chi Onwurah: I am sorry. Does the Minister agree that MPs who complain that their roles are making them more like social workers as constituency work increases, due in part to the cost of living crisis, do social workers a disservice? The work that social workers do is to be much respected, and the work that we do as MPs should be to support them in addressing the challenges that our constituents face.
Tom Brake: I am sure all members of the Committee are happy with the various roles they undertake as Members of Parliament, whether it is their parliamentary role, their legislative role or their constituency work.
On consultation, I am pleased to say that the British Association of Social Workers was consulted, as was the Local Government Association. It is true to say that the views were mixed. However, the Government have consistently argued that removing the registration regime preserves the necessary protections. We believe that part of the reason why concerns were expressed at the time was because the registration regime was not actually implemented. It is now being brought into force, and now that it is in operation, Parliament will be able to see more clearly that its limited scope simply duplicates existing controls without offering any greater assurance. Of course, such assurance is provided by the work that Ofsted does in terms of inspection, and also in the due diligence that local authorities have to do before they take on providers.
On privatisation, the legislation allowing independent providers to discharge local authority care functions was introduced by the previous Government, and has been on the book since 2008. The clause simply tidies up an unnecessarily burdensome piece of regulation that was included in the legislation at the time. It is our view—and I imagine it is the Labour party’s view—that localism is what should be in place, and therefore local authorities should have the freedom to engage the expertise of independent and third sector specialists as they consider how best to discharge their obligations to the children in their care. However, the decision as to whether to do so and with what partners to contract is entirely at the discretion of individual authorities.
Chris Williamson: I wonder whether the Minister would speculate that the reason why this section of the legislation, which the Government seek to repeal, was included was precisely because of the widening brief that was going to be made available in terms of the wider externalisation of social work services. There is another thing that the Minister needs to comment on. All the studies that I have seen suggest that private sector specialist social work provision is considerably more expensive than that provided by the public sector. The cost is some four times more or even greater. Would
Tom Brake: I thank the hon. Gentleman for that lengthy intervention. In relation to the cost, there will be specialists whose skills are such that they are perhaps not widely available in the social work work force across the country as a whole. By definition, if they are specialists, they are likely to be called on by different authorities to deal with very individual, complex cases. That may well mean, if they are working in the private sector, that that is more costly. I accept that that is an issue and it will be an issue, I guess, for local authorities to decide whether they want to buy in that service, if it is the best service available to support their work, or whether they want to train someone to take on those responsibilities.
Thomas Docherty: I have listened very carefully, but I do not think that the Minister has had an opportunity to answer my question, although he has been very diligent in answering others. Given that the balance of respondees was against the proposal, for what compelling reason did the Government—as is their right, of course—decide to go not with the majority, but with the minority? In particular, could he say more about who those respondents were? That would be helpful. I think that inspiration might be coming towards the Minister.
Tom Brake: The reason why the Government are going down this route is that we believe that simply registering services—Ofsted having a requirement to register services—does not add any value in terms of ensuring that those services are of the appropriate quality. It is the responsibility of local authorities—I am sure that the hon. Gentleman’s local authority and my local authority do this with great diligence—to ensure the fitness of the providers; and of course Ofsted then conducts the inspection to ensure that the quality is right. Our position is that, notwithstanding the fact that clearly there were objections, the sensible approach is the one that we are putting forward, which ensures that Ofsted can focus exclusively on its role of inspection and does not get diverted by also having responsibilities for registration. I commend the clause to the Committee.
Tom Brake: The clause, which I hope will be non-controversial and very straightforward, amends section 49 of the Electricity Act 1989 and section 36 of the Gas Act 1986, which govern the keeping of two registers by the Gas and Electricity Markets Authority, the governing body of Ofgem. Those registers contain the provisions of licences and exemptions that have been granted under the 1986 and 1989 Acts and information related to compliance with those licences. The registers currently exist in paper form as well as in electronic form. The
Currently, there is a requirement that the registers be made available for inspection by the public during certain hours and subject to the payment of such a fee as may be set by the Secretary of State. There are currently no specified hours for public inspection and no specified fee. Physical inspections of the registers have been very rare; indeed, Ofgem has not recorded any in the past five years. It is therefore becoming unnecessarily burdensome to keep the registers in a form suitable for inspection in person. The clause will allow Ofgem to stop producing paper versions of the registers as the electronic versions are available 24/7 online and free of charge.
If a non-certified copy or extract from any part of either register is requested, such a request will be covered by the normal rules governing freedom of information requests. As a safeguard, however, the clause preserves the Secretary of State’s power to set a fee for a certified copy of either register. The clause also ensures that any fees for certified copies or extracts from the register must be determined by the Secretary of State, not Ofgem. I am sure hon. Members will agree that these are straightforward amendments, based on a common-sense approach to access to a physical register that is rarely consulted.
Tom Brake: I do of course agree with my hon. Friend. The red tape challenge is making a real impact on business. Although some of these measures might be deemed to be small in nature, when taken together with the red tape challenge work they add up to a substantial saving for businesses and, indeed, the public sector.
Kelvin Hopkins: First, Mr Hood, I apologise for trying to intervene on an intervention. I make the point, however, that it is the Bill’s supporters who call it a Christmas tree Bill; we call it a ragbag or a hodge-podge or some other derogatory term. Surely a Christmas tree Bill would be full of presents and nice things.
Thomas Docherty: I will be equally brief. We all welcome the move not to print unnecessary papers and to reduce burdens. Will the Minister tell us how much not having to print copies of the register will save Ofgem?
Tom Brake: I thank the hon. Gentleman. I am a little worried about his repeated requests that I seek inspiration. I am not in need of inspiration, but, as it happens, I can confirm that the estimated saving per annum is about £6,000, which is not an insubstantial amount.
Chi Onwurah: I suggest that when the Minister says that the electronic register is available 24 hours a day, seven days a week, 365 days a year, he should remember that it is not available to the many under this Government who do not have access to broadband, be they in rural areas or in cities but without the means to afford it.
Tom Brake: Before the hon. Lady intervenes again, I should point out that it is immensely harder for people to go to the site to access the physical register than to go to their library, as they would have to make a prior arrangement and travel to view it. If she insists on intervening, however, I am happy to give way for a final time.
Chi Onwurah: I would like to respond to two points. I am not saying that it is easier to go there physically to access the register, but simply pointing out that we should never, ever forget those who—in part because of the policies of this Government—are prevented from accessing the digital and internet world. I can tell the Solicitor-General that libraries in my constituency, which may be closing or have had their hours shortened, have long queues of people waiting for free internet access, as they are often required to use the internet by DWP.
Tom Brake: I thank the hon. Lady for that. It sounds as if that may be an issue she needs to take up with her local authority, if it is not able to provide enough computers. I wonder which party runs her local authority. More seriously, it is worth reminding the Committee that this resource is usually accessed by companies rather than individuals. In most cases, the difficulties that she has highlighted will not arise, and of course
Andrew Bridgen (North West Leicestershire) (Con): Developing the Christmas tree analogy, although £6,000 might seem to be an inconsequential amount of money, most of my constituents would be very pleased to find £6,000 beneath the Christmas tree with the other goodies.
The Solicitor-General: The clause repeals the statutory duty placed on local authorities to prepare a sustainable community strategy for their area. Councils should be trusted to produce strategies of this nature as a matter of course, and we believe that the existing duty represents an unnecessary statutory burden.
Removing the requirement to prepare a sustainable community strategy will reduce the burden of bureaucracy on local authorities, and give them the freedom and flexibility to take decisions which are right for their local area. I would like to reassure hon. Members that the repeal of this duty will not affect community involvement, because the Government have introduced streamlined statutory best value guidance. That guidance sets out expectations and makes it clear that this is not optional—local authorities have to work with voluntary groups, community groups and small businesses. As a result, the existing statutory duty for an authority to consult representatives of people living, working or using services in this area will still apply.
In addition, in the Localism Act 2011, the Government introduced new rights and powers for local communities to challenge the way in which local authority services are run. The intention to repeal this statutory duty was announced in April 2011, and subsequently included in the streamlined and strengthened best value guidance of September of that year. As I have said, local authorities may still prepare a sustainable community strategy once the statutory duty is removed, but it is for them to decide the best way forward. I commend the clause to the Committee.
Thomas Docherty: Like the Law Officer, I am all in favour of streamlining something wherever it is practical to do so. Can the Minister set out how much he thinks will be saved by bringing down this bureaucracy?
Thomas Docherty: We have heard today several assertions by Government Members that the Bill—whether we call it a Christmas tree Bill or whatever else—will be a sign of this Government’s success in bringing down costs. However, the Government themselves do not have a clue. They are making wild assertions about how the Bill will help reduce bureaucracy or save money, but they have not even done the sums for it. That is very sad, because this is not a particularly contentious proposal. One would think someone as eminently sensible as the Law Officer, who I think is trying to catch my eye—
Thomas Docherty: One would expect him to do his homework before Committee, particularly as on the previous four clauses I have asked the Parliamentary Secretary what the cost is. I am disappointed. This is a sign that this is a PR exercise for the Government. The hon. Member for North West Leicestershire made the point that £6,000 is an important sum of money, but the cost of printing the Bill and of civil service time is probably far greater.
Thomas Docherty: I am reminded of the joke of the Scotsman who went from Glasgow to Aberdeen to get a free train fare back to Glasgow. Obviously, they would not do that in South Lanarkshire, Mr Hood, but perhaps in Fife they would. There is a danger, and I am sure, Mr Hood, that you will recognise that what we are seeing—
Thomas Docherty: One moment. I suspect the hon. and learned Gentleman has had some inspiration while we have been chatting away. I say to the hon. Member for North West Leicestershire that he really is on poor ground if he thinks he can justify spending thousands and thousands of pounds on printing documents and civil service time, on all the excellent Hansard and doorkeeper staff, plus our slightly less important time, sitting through a Bill Committee that will save less money than we have spent on introducing the legislation.
Thomas Docherty: I am a big believer in Christmas, and I would not want to see anything ruin Christmas for any of us, Christmas tree or otherwise. I welcome the assertion from the Law Officer that if laws are not being used, have never been used or will never be used, they should be scrapped. We will perhaps see that debate continue later this afternoon. However, I think I have made my point.
David Rutley: This is an important point. There is a presumption on this particular issue that we should leave it in place—that is what the hon. Gentleman said. We should think about the cost and effort put into producing these plans, which did not really serve much purpose in the first place. There is no requirement of duty. If there is a need for co-ordination and working together, we should get on with it. I think the hon. Gentleman misses the point. I would suggest—he is probably right—that not enough work has been done to show what the costs are, and my guess is that a lot of cost is involved. The other swathes of activity—
Thomas Docherty: I think we will continue to have this discussion on subsequent clauses, so I hope the hon. Member for Macclesfield will understand if I do not respond at any length to his intervention. We do not oppose the clause, but I think we have made our case quite well.
The Solicitor-General: The clause tidies up the statute book by repealing redundant legislation relating to local area agreements. Local area agreements have been abolished, so legislation about the policy, which includes statutory duties on local government, is no longer needed. I think the agreements went on 13 October 2010. I commend the clause to the Committee.
Thomas Docherty: The Minister is entirely right. It was October 2010 when the agreements went down. I will not say much more at this stage, as we might have a slightly more substantive discussion on the next clause.
The Solicitor-General: Clause 56 tidies the statute book by removing redundant references to multi-area agreements. The legislation relating to multi-area agreements has never been used and there are no plans to do so. MAAs were three-year agreements between local authorities, partners and the previous Government to work collectively to improve prosperity. The agreements were voluntary, and since the legislation came into force there has been no uptake. The national and local collaboration within voluntary multi-area agreements has been subsumed into local enterprise partnerships. I commend the clause to the Committee.
Thomas Docherty: While we do not seek to oppose the Government on this measure, we draw the Minister’s attention to the pre-legislative report by the draft Deregulation Bill Committee. I think that some members of this Committee served on that Committee—the hon. Member for North West Leicestershire, for example, is nodding his head. I gently remind him what he signed up to. The Minister is absolutely right when he says that, for example, the LGA regards this as a tick-box exercise: I have no problem at all with that. However, Essex county council, which is run by the Conservative party—to go back to the point made by the Parliamentary Secretary that we should look at which political parties run which councils—has a specific concern about the measure. My apologies to the city in Denmark if I pronounce this wrong, but there is a danger that the UK may fall foul of its commitments under the Aarhus convention. [ Interruption. ] I have learned something new, Mr Hood, just by being in your company today.
Essex county council, that socialist heartland, was particularly concerned, as was Friends of the Earth—an unusual combination, perhaps—that not having these provisions would make it more difficult for local authorities to meet their requirements under the Aarhus convention. The Aarhus convention goes introduced in 1998, when Tony Blair was Prime Minister. Aarhus was one of the meeting places for ministerial conferences, and the convention said that each country had to put in place mechanisms to make sure that the public had access to a range of information held by local authorities, cities and the UK Government. Will the Minister address that, given that this was in the draft Bill which was signed up to and, I am assuming, supported by the hon. Member for North West Leicestershire, who is doing a very good job of pretending not to be listening?
Thomas Docherty: Will the Minister say what steps have been taken by the Government to respond to the very sensible concern raised not just by Essex county council and Friends of the Earth but also by the draft Bill Committee?
The Solicitor-General: I thank the hon. Gentleman for his contribution. I am very happy to write to him in more detail, but certainly my briefing is that this is in accordance with all international agreements and all the requirements of the law. I am happy to commend the clause to the Committee, but I will write to him in more detail.
The Solicitor-General: The clause repeals the statutory duty for local authorities to involve local representatives, and gives effect to the repeal of a series of duties to consult that are listed in schedule 16. The repeal of the statutory duty to involve local representatives gives local authorities discretion to decide when and how to engage with local people. They should be trusted to engage without a duty on them to do so. Removal of the statutory duty to involve local representatives will free local authorities from unnecessary top-down burdens and enable them to focus on serving their local communities. This fits in with the localism agenda. However, the Government have published, as I have mentioned, separate light-touch guidance on engaging with local communities and the voluntary sector, and have made it clear that that is not optional. This is short statutory guidance on the best value duty, setting out reasonable expectations of the way in which councils should work with voluntary and community groups and small businesses when facing difficult funding decisions.
It makes it clear that councils should consider overall value, including social value, when considering service provision. The existing duty for an authority to consult representatives of people in their area under the best value duty continues to apply. An additional duty in primary legislation is duplication.
The intention to repeal the statutory duty to involve local representatives was included in the streamlined and strengthened best value guide that was published in September 2011 and announced in April of that year. I commend the clause to the Committee.
‘( ) An order under this section may not amend subordinate legislation made by the Welsh Ministers.’.
This amendment ensures that the power to spell out dates described in legislation cannot be used to amend subordinate legislation made by the Welsh Ministers.
Tom Brake: Clause 58 confers a power on Ministers to amend legislation by order to spell out dates described in it. Clause 58(1)(a) specifically allows a Minister to replace in any Act of Parliament references to
It will often be convenient to make the amendments at the same time as making the commencement order. The power could, for example, be used once the commencement date is known but before the provision has actually come into force.
Clause 58(1)(b) provides a more general use of the power. It can be used to replace a reference in legislation to the date on which any other event occurs with a reference to the actual date on which that event occurs. For example, this could be used for a sunset clause where a provision ceases to have effect at the end of the specified period, beginning with the day on which it came into force. This is both a simple and sensible measure that supports the Government’s good law initiative. It will help users of legislation to see relevant dates on the face of the legislation, rather than having to search through commencement orders to find out when a provision came into force. I therefore commend the clause to the Committee.
Thomas Docherty: I shall be quite brief. I welcome the clause. It really is in the portfolio of the Parliamentary Secretary. Despite his best efforts, the exact process was not as clear to the many people watching our deliberations today. May I tease out from the right hon. Gentleman exactly when such changes will be made? Will it be during the passage of the Bill? Will it be subsequent to Royal Assent? If the Minister could briefly outline it in a way that a simple person like me can understand, that would be most beneficial to our process.
I think the hon. Gentleman was after some worked examples, so it might help if I give him some. First, section 4(7) of the Holocaust (Return of Cultural Objects) Act 2009, with which he may be familiar, says:
After the Bill is enacted, subsection (1)(b) will allow us to amend that provision to say, “This Act expires at the end of the period of 10 years beginning with 12 November 2009.” And it is possible to add further explanation, such as, “the day on which this Act is passed.”
After the implementation of subsection (1)(b) we could amend that provision to say, “The Minister must, before the end of the period of five years beginning with 8 November 2006, the day on which this Act was passed, appoint a person to review generally the operation of this Act.”
It might also help if I explain a little about how the information will be made available to the public. It should be possible for general users—as opposed to specialists, who will use commercial services—to access legislation online through www.legislation.gov.uk and see legislation that is up-to-date and therefore includes those specific commencement dates. The advantage of that will be that general users will see the relevant commencement date embedded in the legislation, rather than have to locate it. I hope that explanation is helpful.
Thomas Docherty: I am grateful to the Minister for that useful explanation. I want to take him back to a point that he made earlier about devolved bodies; can he confirm that the provision would not apply to Wales or any legislation passed by the Scottish Parliament or the Northern Ireland Assembly?
It is worth adding a little more information about when changes can be applied. The legislation is flexible. Changes could be made after Royal Assent, at the time of commencement orders for particular provisions or retrospectively to spell out dates in existing legislation, as with the two examples that I walked through with the hon. Gentleman.
‘“subordinate legislation” has the same meaning as in the Interpretation Act 1978.”.’. —(Tom Brake.)
This amendment is consequential on amendment 17.
Tom Brake: The clause introduces a new section into the Merchant Shipping Act 1995, to provide a mechanism to allow changes to international agreements in the maritime sector that the UK is already a party to to take effect in UK law without the need for further legislative or regulatory provision. That reform, identified as part of the maritime theme of the Government’s red tape challenge programme, will help to speed up the implementation of changes to international conventions, which is a key industry demand. It would mean that industry would only have to familiarise itself with the relevant international agreement, rather than also having to refer to the national legislation implementing and sometimes interpreting the changes to the agreement. It would also allow the Government over time to consolidate and simplify radically the maritime legislative framework—another key industry demand.
The principle of allowing ambulatory references in legislation is well established, most notably in relation to the European Communities Act 1972. Moreover, the power does not apply to the implementation in the UK of any new conventions, for which primary legislation would still be required. Equally, it does not apply to any EU legislation. I hope that is of reassurance to Members who may have been concerned.
When the Government want to apply the ambulatory reference approach to any existing maritime conventions subject to specific frequent technical changes, an existing secondary legislation-making power would be needed to provide for that. The level of scrutiny appropriate to the subject matter of such secondary legislation will already have been considered by Parliament, and if an ambulatory reference is to be included in such legislation, the Government see no reason why there should be any change in that. Ultimately, that will mean that Parliament will still in all cases have the ability to consider the instrument containing the ambulatory reference under the affirmative or negative procedures.
The Solicitor-General: The clause introduces schedule 17, which contains specified legislation no longer of practical use. There are reasons why legislation is considered to be no longer of practical use, examples of which include that such legislation has expired; has served its purpose; has been superseded; is no longer relevant; or relates to activity that no longer takes place. We do not intend in any way to duplicate the Law Commission’s statute
There are two reasons why the provisions are dealt with in the Bill. First, many of the provisions in schedule 17 are secondary legislation and the Law Commission confines its work to primary legislation. Secondly, many of the provisions came out of the red tape challenge that the Departments concerned were tasked with implementing in this Parliament. It is therefore a chance to meet that commitment, because the next statute law repeals Bill from the Law Commission will be introduced in 2016.
‘Atomic Energy Act 1946 (c. 80)
10A Omit sections 6 and 7 of, and Schedule 1 to, the Atomic Energy Act 1946 (which confer powers to do work for the purpose of discovering certain minerals and to compulsorily acquire rights to work such minerals).
10B (1) The following amendments are made in consequence of paragraph 10A.
(2) In the 1946 Act—
(a) in section 15(1), omit the words “, except an order made under section seven thereof or an order varying or revoking such an order,”;
(b) in section 16, omit the words from “Provided that” to the end of the section;
(c) in section 19, omit paragraphs (c) and (d);
(d) in section 20(1), omit the words “, except sections six and seven thereof,”.
(3) In the Atomic Energy Authority Act 1954, in Schedule 3, omit—
(a) the paragraph beginning “In subsection (1) of section seven”;
(b) the paragraph beginning “At the end of section sixteen”;
(c) the paragraph beginning “In paragraph (c) of section nineteen”.’.
This amendment removes the Secretary of State’s powers to carry out work on any land to discover whether minerals from which “prescribed substances” (such as uranium) can be obtained are present and to acquire compulsorily the exclusive right to work such minerals. The powers have not been used for at least thirty years and are no longer needed.
The amendment will remove the Secretary of State’s powers to carry out work on land to discover whether minerals that are prescribed substances can be obtained at present or whether compulsory acquisition might be necessary. Those substances are uranium, plutonium and other substances prescribed by order under the Atomic Energy Act 1946. However, as that Act is no longer used, I hope that the Committee will accept the amendment to remove that power.
Thomas Docherty: Mr Hood, you have taken a close interest in how minerals are extracted, having been at the coal face over the years. We agree with the Government, given that we do not dig up uranium in the United Kingdom. I understand that we are now all in favour of nuclear power—it was great to see the Liberal Democrats embracing it so enthusiastically with such joy on their faces.
Thomas Docherty: I am most grateful to the hon. Member for Birmingham, Yardley for that helpful intervention. Given that we are not digging up uranium in the United Kingdom—it comes from Australia and Canada—and that by my calculation the 1946 Act has been 68 years on the statute book, it is probably a good time to ease the pages a little bit.
Kelvin Hopkins: My hon. Friend the Member for Dunfermline and West Fife has suggested that we are all in favour of nuclear power. Some of us are strongly opposed to it, as it is expensive, dangerous and unnecessary.
Thomas Docherty: That is also true of Liberal Democrats, but we have not outlawed them yet. No one is perfect, even my hon. Friend. I am sure that, given a bit longer, he will see the light—pardon the pun.
‘Nuclear Industry (Finance) Act 1977 (c. 7)
12A Omit section 3 of the Nuclear Industry (Finance) A ct 1977 (which provides for expenditure which the Secretary of State may incur with a view to, or in connection with, the acquisition of shares etc in the National Nuclear Corporation Limited to be paid out of money provided by Parliament).’.
This amendment removes the Secretary of State’s power to incur expenditure in the acquisition of shares or securities of the National Nuclear Corporation Limited (NNCL). NNCL is now wholly in private ownership and this power is no longer needed.
This amendment would remove the Secretary of State’s power to incur expenditure in the acquisition of shares or securities of the National Nuclear Corporation Limited. That was a company that was involved in constructing nuclear power stations and was part of a restructuring of the nuclear industry in years gone by. The power is no longer needed, as all share purchases have been completed and the corporation is no longer in existence.
Thomas Docherty: I am particularly grateful to the Government for bringing this forward because, having worked in the nuclear industry, I had never heard of the National Nuclear Corporation. Despite my best efforts on the internet during the course of this Committee, I am still struggling to find much information. Will the Minister outline for my benefit which of the power stations in the United Kingdom that he just referred to the NNC was involved in constructing?
The Solicitor-General: I am happy to write to the hon. Gentleman. I am afraid that I do not have the list that he so wishes for in front of me. I can assure him that it did once have a role, but it is no longer with us.
‘Breeding of Dogs Act 1973 (c. 60)
23A In section 1 of the Breeding of Dogs Act 1973 (licensing of breeding establishments for dogs), omit subsection (4)(i) (requirement for local authority, in determining whether to grant a licence, to have regard to the need for securing the keeping of accurate records).
23B (1) The following amendments are made in consequence of paragraph 23A.
(2) In section 1 of the Breeding of Dogs Act 1973—
(a) at the end of subsection (4)(g), insert “and”;
(b) omit the “and” following subsection (4)(h);
(c) in the closing words of subsection (4), for “paragraphs (a) to (i)” substitute “paragraphs (a) to (h)”;
(d) omit subsection (4A).
(3) In the Breeding and Sale of Dogs (Welfare) Act 1999, omit section 2(3).’.
This amendment removes the requirement for licensed dog breeders to keep records in a prescribed form. From 6 April 2016, all dogs will need to be identified with a microchip and their details, along with the owners’ details, recorded on a database. This renders the current requirement unnecessary. This will apply to England and Wales only.
The Solicitor-General: The repeal of section 1(4)(i) and (4A) of the Breeding of Dogs Act 1973 will remove an unnecessary burden on licensed dog breeders to record the details of their dogs in a prescribed way. From April 2016, all dogs in England—and from March 2015 all dogs in Wales—will be required to be identified by a microchip, and the details of dog and owner will be recorded on a database. There will therefore no longer be a need for licensed dog breeders to go on recording details of their dogs in a prescribed form after April 2016, because they will already be doing so through the microchipping requirements, which I have described, and the database. That will apply to all dog owners in England and Wales. The amendment will apply only to England and Wales because Scotland has not yet proposed to introduce compulsory microchipping of dogs.
As from 2016, which is when the repeal will have effect, all dogs in England—and, from March 2015, all dogs in Wales—will need to be identified by a microchip.
Caroline Nokes (Romsey and Southampton North) (Con): I welcome the introduction of compulsory microchipping for dogs, but I have an element of scepticism about this. Since about 2009 it has been compulsory to microchip horses, yet there is no comprehensive database on which details of all horses in the country can be found, and the passport system for horses can be described only as a failure. I hope that the regime for dogs will be a success.
The Solicitor-General: I thank my hon. Friend for that intervention, because I was not aware of that problem. I will report that useful information to the Ministers concerned. It is important that the system works and is as effective as we all hope.
I turn briefly to amendments 23 and 26, which are consequential to amendments 21 and 22. Amendments 23 and 26 ensure that the repeals and other changes made by amendments 21 and 22 extend only to England and Wales. Their effect is also that the provisions inserted into schedule 17 by amendments 21 and 22 will come into force on a day appointed by the Secretary of State in a commencement order. I am afraid that I do not have more detail on the interestingly described Scottish rearing establishments so, if I may, I offer to write to the hon. Member for Dunfermline and West Fife.
Thomas Docherty: I will try to keep my remarks suitably brief, but perhaps I can pick up on the point made by the hon. Member for Romsey and Southampton North. If she was looking for horses, I think she would find that, certainly last year, many of them were in Tesco and Iceland. I am a vegetarian, but I have been informed by several of my carnivorous colleagues that they were very tasty.
Obviously we do not oppose these very sensible amendments. Today is an auspicious day for all activists in political parties and, much more importantly, for posties up and down the country, because today the Dangerous Dogs Act 1991, as amended, comes into force. Thankfully, that means that when a dog comes up to the letterbox as someone is putting a leaflet through, they will at least have the comfort, as they count what is left of their fingers, of knowing that the dog’s owner can now be prosecuted. Given that the legislation proceeded on a cross-party basis, we will obviously support these amendments.
The Minister is absolutely right that the new system will make the previous regime redundant, but perhaps he will return to a point that was made earlier and tell us—perhaps he already has, but I did not catch it—from
Many of my constituents are worried about dogs and come to see me about dangerous dogs in their area that attack them and their dogs. Although they are all meant to be microchipped, which I very much welcome, not all of us will have immediate access to equipment to check a dog that has been microchipped. However, if a dog is wearing a collar with a name and address on it, we can immediately find its owner, so perhaps collars with names and addresses on them are a sensible addition to microchipping. I am not entirely at ease with getting rid of the requirement for collars with name tags.
We need legislation to deal with the serious problem of irresponsible dog breeding. People breed dogs in terrible circumstances. Dogs that are bred for fighting suffer, and often people suffer due to the effects of what the dogs do, because they can become very dangerous when they are not properly trained and cared for. I like belt and braces for such matters, rather than simply leaving it to microchipping. I will not vote against the amendments at the moment—my hon. Friend the Member for Dunfermline and West Fife suggested that we do not do so—but I hope that we will give constant attention to the need to ensure that we control dog owners and dogs in the long term.
The Solicitor-General: The provisions in the schedule will be commenced by order and the aim is to ensure that there is no gap so that there will not be difficulties. The duties that we are talking about are on licensed establishments. Clearly many owners will want to put a tag and a nice little collar on their dog. In fact, I have recently bought my schnauzer, Boadicea, a very pleasant collar indeed.
‘Breeding and Sale of Dogs (Welfare) Act 1999 (c. 11)
26A (1) Section 8 of the Breeding and Sale of Dogs (Welfare) Act 1999 (sale of dogs) is amended as follows.
(2) Omit subsection (1)(e) (offence for keeper of a licensed breeding establishment to sell to the keeper of a licensed pet shop or a licensed Scottish rearing establishment a dog which, when delivered, is not wearing a collar with an identifying tag or badge).
(3) Omit subsection (3) (offence for keeper of a licensed pet shop to sell a dog which, when delivered to him, was wearing a collar with an identifying tag or badge but is not wearing such a collar when delivered to the purchaser).
(4) In consequence of sub-paragraph (2)—
(a) in subsection (1), at the end of paragraph (c), insert “or”;
(b) in that subsection, omit the “or” following paragraph (d).’.—( The Solicitor-General .)
This amendment is also linked to the requirement, from 6 April 2016, for all dogs to be identified by microchip, and removes the offences relating to identification by a collar and a badge. This will apply to England and Wales only.
‘The Treason Felony Act 1848
The Treason Felony Act 1848 is repealed.’.
‘The Treason Felony Act 1848
In section 3 of the Treason Felony Act 1848, leave out from “to deprive” to “countries, or”.’.
John Hemming: I must make it clear I am not an antidisestablishmentarian, but I am also not a republican. I am very happy with the royal family and I think we should remain the United Kingdom—fully united. There is no question about that. However, if somebody were to imagine, for instance, that a Barack Obama was the president of the UK, I do not think it would be appropriate to deport them to Australia or New Zealand. The difficulty with the Treason Felony Act 1848, which is what my probing amendments 1 and 13 relate to, is that section 3 of it states that if any person shall
that person will be subject to what would have been transportation, but is now life imprisonment. Interestingly, the Government thought that that measure had been repealed—they announced last year that it had been—but we then read a story in The Guardian with the headline “Calling for abolition of monarchy is still illegal” US “justice ministry admits”. It went on to say that the
John Hemming: Did I? Sorry; I apologise to the Committee. Some people think that Barack Obama is our president, but I apologise for misreading the quote. It is the UK Justice Ministry that announced the abolition of the Act and then was embarrassed by having to say—
Andrew Bridgen: As my hon. Friend was reading out that ancient legislation, it occurred to me that the previous Labour Government were in breach of it when they took the royal yacht from the Queen. Does he agree?
We are considering two amendments—1 and 13—because, to be fair, the 1848 Act covers things that people would not want to go on, although they probably illegal under other statutes. Obviously we do not want people to encourage others to invade the UK or whatever, but we need to move on and make it clear—
John Hemming: No, this is not about an open-door immigration policy, but I am merely saying that advocating having a republic should not be a criminal offence. It is a question of freedom of speech and people’s right to express their views. I disagree with those views, but people should have a right to express them without the fear of life imprisonment. The Guardian, owing to the legislation, did not publish certain arguments in favour of the UK being a republic, although of course if the country was a republic, it would be difficult to call it the UK.
Research has found that the 1848 Act was last used in a prosecution case in 1879, so it is clear that the Act would fall within the remit of schedule 17, under the terms of clause 60, on the basis that it is, one hopes, of no further use.
John Hemming: I apologise for not having that information; I have only a short briefing note. One presumes, however, that the fact that the Act has not be used for more than 100 years means that it is of no further use, unless there is somebody who believes that we should resist people arguing for different constitutional structures in this country.
Obviously these are probing amendments, but the Act does have an effect, given that I understand it caused The Guardian not to advance certain arguments. I have been clear that I am happy with the royal family and I do not think we should become a republic, although, as I said, I am not an antidisestablishmentarian.
John Cryer: This is an interesting pair of amendments. The hon. Member for Birmingham, Yardley implied that nobody would object to the removal of the measure from the statute book, and he is probably right, although one exception might be the hon. Member for Romford (Andrew Rosindell). As a former neighbour and a friend of the hon. Member for Romford, I can say that there are times when he seems to be the only thing between the royal family and the abyss. He is a royalist to his fingertips. Although we always got on when I was the Member for Hornchurch, I have always been a republican and, obviously, the hon. Member for Romford is an ardent royalist. Despite the fact that I am in a minority—I am happy to admit that I am in a small minority in this
John Hemming: It is interesting that, under the Treason Felony Act, even to imagine the country as a republic would be an offence that could result in transportation. How could 20% of the country be transported to Australia? Would it have those people?
John Cryer: I spent four months in Australia in 1991-92 and thought it was a great country. If somebody had offered to transport me before I became an MP, I might have been happy to go. In fact, I came back to Britain in March 1992 to campaign in that year’s election when, of course, we got stuffed. I remember thinking on the day after polling day, “Why didn’t I just stay in Australia on a beach somewhere instead of coming back here?” I quite like Australia.
The context in which the 1848 Act was passed was paranoia and fear about what was then regarded as a spectre stalking Europe: the rising industrial working class. That was reflected in a number of publications that year, including “The Communist Manifesto”, which talks in its opening paragraphs about a spectre stalking Europe. I understand the fear among members of the establishment and the 1848 Government. It was only a decade after Victoria came to the throne and the monarchy was extremely fragile. She ascended to the throne at the end of a series of reigns that were deeply unpopular and tainted by continual scandal. I could say that that period of almost permanent instability remained with western Europe until 1945.
It is difficult to imagine now just how close Victorian society was to destabilisation, and a revolution might have taken place in certain circumstances. It is difficult to imagine now that that could happen again. It is only sensible that the 1848 Act is removed from the statute book, but perhaps we ought to contact the hon. Member for Romford to find out if he wants to pop along and speak in defence of the Act, although I do not think that even he would want to defend it.
Thomas Docherty: I must confess that this is the debate I have been looking forward to for the past two weeks. My Front-Bench colleagues know that I have been enthusiastic about the amendment because it forms part of the fascinating story that was eloquently told at the start by the Member for Birmingham, Yardley.
As my hon. Friend the Member for Leyton and Wanstead said, we must look at the context of when the 1848 Act was passed. It was a time of huge turmoil. Revolutions were under way in Denmark, France, the German states, Italy and the Austrian empire. The monarchy was overthrown in France and I think I am right in saying that it was the end of absolute monarchy in Denmark. We had a young, new queen on the throne.
The United Kingdom had gone through a period of turbulence over the previous 200 years. One king—the last one to be born in Dunfermline—had his head chopped off in 1649, albeit not because he was from Dunfermline, but because he was a pretty terrible king. We had the restoration of the monarchy in 1660 and the so-called Glorious Revolution in 1688 kicked another
Thomas Docherty: I am grateful that the hon. Gentleman has turned his lowly eyes towards Europe because we all rest better knowing that he is concentrating on things other than the BBC. Many of us are concerned about Ukraine and events elsewhere that are being discussed in the Chamber.
John Hemming: Does the hon. Gentleman find it particularly unusual that the offence is potentially a thought crime, in that imagining something is a crime? Is he aware of any other statute that legislates for a thought crime?
Thomas Docherty: It is an interesting point. Part 4, which has already been repealed, said that if someone’s only crime was to speak about the overthrow of the monarchy, the rules for evidence were different. I was surprised, Mr Hood; I thought, “How can someone speak without thinking?” But having sat through this Committee for several days, I have begun to understand. The hon. Member for Birmingham, Yardley is right. Outside the Bible, the idea that someone commits a crime simply by imagining something is absurd.
The Opposition are clear. This matter should not detain the Committee long. We listened carefully to the Law Officer. When we discussed clause 54, he said that we should get rid of unnecessary laws. Well, we agree with the Government. We welcome the initiative shown by the hon. Member for Birmingham, Yardley, and we support his amendment. Given what the Government have already said, I am sure they will be supporting their Member too.
After everything we have been through in Committee—after all the happy afternoons we have spent together, Mr Hood—if we have learned one thing, it is that the Government are committed to taking off the statute book stuff that has never been used. I have it from Wikipedia that 1883 was the last time the 1848 Act was used in the United Kingdom, but we do not need to argue about whether it was in the late 1870s or in 1883. I can inform the Committee that the Act was last used in Australia in 1916 against members of the Industrial Workers of the World as part of the attacks on trade unionists. I am sure all historians of workers’ rights know, as I am sure you do, Mr Hood, that there is a suggestion that that was just an attempt to lock up people who were opposed to the first world war. I am not sure where they would have been transported to, given that they were in Australia.
My hon. Friend the Member for Leyton and Wanstead mentioned the hon. Member for Romford, and I checked with that other great parliamentarian, the hon. Member for North East Somerset (Jacob Rees-Mogg), who says that he is content that the Act should be abolished. As the Government will clearly support the amendment today, my only regret is that we will not have an opportunity on Report to hear the hon. Gentleman doing far better than me in taking us through the Act’s history.
As I have said, we are clear that the 1848 Act is exactly the kind of legislation that should be included in the Bill. It has not been used for a hundred and two score years, the Government have no intention of using it and there is no expectation on either side of the House that the Act will be used in future under any circumstances.
John Hemming: Does the hon. Gentleman accept that there are elements of section 3 of the 1848 Act that mean a better drafting of the amendments would be advisable? That is why amendment 13 is stronger.
Thomas Docherty: I think the hon. Gentleman has done a good job of drafting the amendments. He is far too modest—he is well known for his modesty, and we often have to tease from him, after some reluctance, his views on the Bill of Rights and parliamentary privilege.
John Hemming: Let me explain to the hon. Gentleman that probing amendments are deliberately phrased to tease out the Government’s position. Amendments 1 and 13 are different in effect so that they may extract the Government’s views on different aspects of the 1848 Act.
Thomas Docherty: So it was a deliberate ruse by the hon. Gentleman. He keeps referring to probing amendments, but we will press the amendment to a vote in the unlikely event that the Government, having banged on for weeks about the need to take unnecessary legislation off the statute book, do not support it. We think the 1848 Act is exactly the type of thing that should be taken off the statute book. We know the Government are consistent, and we know they will welcome this helpful intervention by their friend, the hon. Member for Birmingham, Yardley. We therefore know that amendment 1 will pass on to the statute book as part of the repeal process in the very near future. Like the hon. Gentleman, we therefore commend the amendment to the Committee.
The Solicitor-General: Amendment 1 would repeal the entire Treason Felony Act 1848, whereas amendment 13 would repeal part of that Act. The background, of course, is that we have a number of treason Acts, which are designed to protect our constitution from overthrow by overt acts. Section 3 of the 1848 Act makes it an offence, punishable by a maximum sentence of life in prison, to contrive by an overt act to deprive the Queen of her Crown, to levy war against the sovereign or to encourage foreigners to invade the United Kingdom. The Act covers acts that have a violent character.
“by Force or Constraint to compel Her…to change Her…Measures or Counsels, or…to put, any Force or Constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any Foreigner or Stranger with Force to invade”.
Of course, that is ancient language, and we would not write laws in that way today. However, I can imagine circumstances where, in a case involving terrorism, one wanted to add to the indictment an offence that reflected the fact that what the people concerned were about was the overthrow of our Government. Of course, the reference to the Queen is the reference to the Queen who is the constitutional protection for our democracy; she is a constitutional monarch.
What I am saying to hon. Members—I will outline it more fully in a minute—is that although there is ancient language and of course there is no question of anyone being prosecuted for publishing anything these days, because that all has been established as a result of the European convention on human rights, when it comes to overt acts or violence in this country that might overthrow the Government, one would repeal this Act at one’s peril.
Thomas Docherty: I am most grateful to the Solicitor-General for belatedly giving way; some of us might think that what he thinks of as making “one more point” is slightly more than that. He spoke several times about violence and violent acts—
Thomas Docherty: I am sorry, but the hon. and learned Gentleman referred to violent acts. Can he perhaps tell me how he thinks his imagination is an act of violence? What goes on in the Law Officer’s head that does not go on in anyone else’s head?
An overt act of waging war is violence on a major scale, is it not? An overt act of using force to constrain the Government is an overt act of violence. What we are talking about are overt acts and if this Act is amended as suggested, there would be a gap in the protections.
Of course, the hon. Gentleman will say that this Act has not been used for many years, but that does not mean that it is not useful to have it in the locker for a particular kind of case that would come up only rarely.
Thomas Docherty: I am genuinely struggling to understand what those specific cases are, given that the Act was not used during either of the world wars, when there were citizens of the United Kingdom plotting to overthrow the Government and the Crown; it was not used against the terrorists from Northern Ireland when they, for example, blew up members of the royal family, military personnel, civilians and politicians; and it was not used at any point in the more recent war on terror. What category of person would the Law Officer, in his distinguished role, see this Act being used against, given that it was not used against Nazis, Kaiserists, Irish terrorists or Islamic terrorists?
The Solicitor-General: The hon. Gentleman will understand that in the context of a war, such wide-ranging emergency powers are taken that it is a very different situation to peace time. Perhaps I can just develop the argument a little bit.
Let me deal with the point about writing or printing anything that advocated any of those actions. The effect of the amendment would be that it would no longer be an offence to contrive to deprive the sovereign of the Crown, or to advocate that by publication. That still leaves in section 3 of the 1848 Act the crimes of contriving to levy war against the sovereign and contriving to encourage invasion.
Treason felony is one of several treason offences. It was created at a time when treason was punished with death and juries were sometimes reluctant to convict. One of the purposes of the 1848 Act was therefore to provide that certain treasons were punishable with a non-capital penalty. Treason offences in general are rarely used: treason felony has not been used in the past 30 years and, we believe, not since the 19th century. Alternative charges are available where treason might have been the charge, such as murder or terrorism. Nevertheless, it is possible that there will be occasions when treason or treason felony might be appropriate to charge where a person advocates the overthrow of the monarch by violent or other unlawful means. It is a matter for the Crown Prosecution Service to decide under which legislation any prosecution in a particular case should be brought.
We recognise the concerns about the right to freedom of expression. The courts, however, are bound to interpret legislation in light of the Human Rights Act 1998 and the European convention on human rights, and that has been made clear. In the Rusbridger case in 2003, the
The Government recognise that the legislation is old and has not been used in recent times. However, that does not inevitably mean that any particular part of it is redundant. We do not support repeal without proper review and, if appropriate, consultation. Any changes would also require the Queen’s consent, as they would very much affect the Crown’s interests and it would be only right and proper to consult the royal household in the process.
There are numerous treason Acts—I think about 10—so this area of law could be reviewed more widely than simply looking at this provision. I emphasise that reform of the Treason Felony Act 1848 would take a good deal of work and consideration, and that is not a priority for the Government. I urge my hon. Friend the Member for Birmingham, Yardley to treat his amendment as a probing amendment and perhaps to withdraw it.
John Hemming: I said earlier that this is indeed a probing amendment and I intend to withdraw it. Such amendments would need drafting work for the exact reasons that the Solicitor-General gave. I think, however, that there is a mischief on the statute book. From reading the 1848 Act on the legislation website, it is clear that if someone published on Twitter that we happened to have a President, that would be in itself a criminal offence. In fact, the Human Rights Act requires legislation to be interpreted “where possible” in accordance with the European convention on human rights, but that does not override domestic legislation. If legislation is clear, as it is in that case, to imagine being a republic—
The Solicitor-General: The hon. Gentleman intervenes fascinatingly, if I may say. This is an offence with ancient language, so it needs to be read in the light of our modern convention obligations, international law and the way in which our current law has developed. In 2003, in a case brought by Alan Rusbridger of The Guardian , the House of Lords—our highest court—said that, in modern times, in the light of article 10, section 3 would not be used in relation to the publication of articles advocating the abolition of the monarchy by peaceful means. That would also cover imagining such an abolition.
Yes, the Treason Felony Act is old school and my hon. Friend raises a point that is right to consider and to review with consultation. However, I do not want to see the element of protection that it still provides removed in the case of overt acts of violence that might be
In circumstances in which there are hostile forces in the world that are keen to overturn our democratic institutions and constitutional monarchy, we would be leaving a gap were we to say that we only had the protection of being able to charge people if they were encouraging someone to invade or to wage war on this country. With someone who wants to engage in violent, overt acts in this country with the intention of overthrowing our monarchy or our constitutional arrangements, one can conceive of a situation in which the 1848 Act might be useful, although I accept that it could be better expressed.
John Hemming: Does the Minister not accept that in the context of amendment 13, rather than of amendment 1, there is work to be done to make it clear to people outside this House that to argue for a republic is not in itself a criminal offence?
Chi Onwurah: Does the Minister see a contradiction in a measure, despite its not having been used for 140 years, remaining on the statute books? In other cases of legislation not being used—copyright for only three years, for example—it was determined to remove the legislation, even though the underlying issue remained.
The Solicitor-General: I do not think that we have used the Treason Act 1351 for many a year—I cannot imagine when we might have done—but we have never repealed it, because this House has recognised over the centuries that treason, the overthrow of our constitutional arrangements, is something so serious that laws against it are needed. I do not think that the sort of point made by the hon. Lady does justice to the question of where treason fits in our constitution. This is something at the high end of concern.
Karl Turner (Kingston upon Hull East) (Lab): I have to concede that the Minister’s remarks are persuasive. Will he confirm to the Committee, however, with the benefit of his position as a Law Officer, that there are other provisions in criminal law that cover the points he mentions? Overt acts of violence are already covered in criminal law.
The Solicitor-General: I have fully accepted that point, that there are terrorism and other offences that cover some of the criminality concerned. I think, however, that if someone commits such crimes with the purpose of overthrowing our constitutional arrangements, and
As the hon. Member for Leyton and Wanstead said, 1848 was a troubled time, with revolutions throughout Europe. People were determined to change the order, and in some cases they did so. The hon. Gentleman would have supported some of those challenges and not others but, having said that, we, too, live in a world that is changing rapidly and where there are some hostile forces abroad. I wonder whether we should rush to change our arrangements that have lasted over time.
Andrew Bridgen: I have listened to the debate with great interest. Does the Solicitor-General agree that because we have no formal written constitution, all we have to support our great history of an unwritten constitution are ancient laws like these? Even though they are unused, they are still useful in supporting that great history.
Thomas Docherty: I listened carefully to what the Solicitor-General has said, but it is completely contradictory. On the one hand, we have gone through a Bill revoking provision after provision, and the Government have said that they have not been used for years. The last provision we dealt with, I think, had not been used for 30 years. On the other, the Treason Felony Act 1848 has not been used for 140 years and the Government embarrassingly thought that it had been scrapped, yet they have no inclination to take it off the statute book. It makes us wonder what the purpose of the Bill is. We have been considering it for three or four weeks, and it is clear that it is a public relations exercise. It is an attempt by the coalition parties to say, “We have done something and we should be commended.”
The 1848 Act is a perfect example of something that is cluttering up the statute book, and we are clear that we want to have another look at it at an appropriate point. I am conscious that we have had a good-natured debate, and it would be unfair to show up the hon. Member for Birmingham, Yardley by making him vote against his own amendment. In the spirit of it being
The Solicitor-General: Schedule 17 contains a number of specified Acts and pieces of secondary legislation that are no longer practically useful. Rather than going through every one, I will give a couple of examples. Part 2 of the schedule repeals sections of the Newspaper Libel and Registration Act 1881 that require owners of newspapers that are not companies to register, make an annual return and pay a fee. The sections were enacted to facilitate libel actions, but the world has moved on and libel law has changed.
Another example is part 7 of the schedule. It revokes a redundant piece of secondary legislation from 1948 that restricts admissions to the Greenwich Hospital school to the sons of officers and men of the Royal Navy and other seafarers. The Greenwich Hospital Act 1990 introduced wider admission criteria and the school, which is now the Royal Hospital school in Ipswich, admits boys and girls aged 11 upwards, regardless of seafaring connection. The 1948 order should have been revoked in 1990, but it was not. To regularise the position, it is included in the schedule. Although the removal of legislation in schedule 17 is a modest, tidying-up exercise, it is important to rationalise the statute book, to make it easier for people to use and to clear away the undergrowth.
Thomas Docherty: To speak briefly—I think we have got to the end of the debate—these are all sensible tidying-up exercises, although it is interesting that none of the pieces of legislation in the schedule have been fallow for 140 years like the Treason Felony Act 1848. None the less, we think that 140 years should not be the benchmark we aim for with repealing legislation and we therefore support the schedule.