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I believe that the questions raised by the noble Baroness, Lady Hamwee, are fully answered. Who takes the decision? The Secretary of State takes the decision. Who do the people believe takes the decision? The people will see that the Secretary of State takes the decision in the national policy statement. Who should take the decision? The Secretary of State should do so. Ministerial accountability will be tested in parliamentary scrutiny. That is strengthened by our own amendment that the Government will need to respond to the views of committees of either House. So let us be clear: Ministers will be visible and at the front of the process rather than at the back end where the Minister takes a decision within the privacy of the private office.
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My second argument has already been dealt with by my noble friend Lord Hart. He pointed out that because the commission is unelected does not mean that it is unaccountable. I offer two instances. First, it will be appointed by, and need to report on its performance to, the Secretary of State; and, secondly, it will have to give full reasons for its decisions.
The third and the most important argument is that this regime will provide much clearer and more transparent decision-making than the current system. I believe that noble Lords have challenged and demolished the misconceptions about the nature of ministerial decision-making. It is often asserted that these decisions are essentially political acts. This morning, those arguments have been exposed as fragile by planning lawyers and Ministers with years of experience. I agree with the very frank appreciation of the process of decision-making by the noble Lord, Lord Jenkin, who has so much experience in this area.
Ministers who take planning decisions do so in a quasi-judicial fashion. They cannot be lobbied, or take into account representations received outside the prescribed procedures, and they cannot be challenged in Parliament. But as long as the roles of policy making and decision-taking are so entangled, as they are, there will be an understandable confusion and an obscuration of where decisions are taken.
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Under the regime in the Planning Bill, the process will be much clearer. The boundary between policy and planning will be clear and explicit. The current situation where the Secretary of State may in some instances set the policy, promote a scheme and then decide whether it should go ahead, effectively acting as judge, jury and defence counsel, will no longer apply. The basis on which decisions are to be taken will be absolutely clear and fair. I say to the noble Lord, Lord Burnett, that the commission will determine applications in accordance with the law. It will not take daft decisions. This is a process of such rigour—
Baroness Andrews: My Lords, I will not give way to the noble Lord as I need to press on. While, of course, it will need to consider important and relevant evidence and to reject projects where the costs outweigh the benefits, it will have no discretion to apply a different policy other than that set out in the national policy statement.
We are satisfied that the regime proposed in which Ministers are held clearly accountable for overarching policy, and in which individual decisions taken independently within this framework can be challenged in the courts as now, is fully accountable, clearer and more certain than the current system.
I turn to the amendments. If the IPC were only an advisory or recommending body, as the noble Lord, Lord Dixon-Smith, would have, much of the logic and the advantage of having ministerial accountability set out in the NPS would be lost; and the speed, efficiency and clarity of a single process would be lost. The incentive for Ministers to produce rigorous NPSs would be greatly diminished and there would be an inevitable tendency to use the decision process to tinker with policy. All that would significantly and unnecessarily increase the risk of challenges and uncertainty. Under our proposals, there would be a clear opportunity to challenge proposals after the IPC decision. The approach recommended by the parties opposite would mean that there would potentially be sequential challenges. That would create more uncertainty. People have said to us, loud and clear, that they do not want that.
I turn to Amendments Nos. 1 and 101, and to new Clause 101. The amendment of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, to Clause 101 would require that any decision taken by the Secretary of State be subject to annulment pursuant to a resolution of either House of Parliament, which would exacerbate the situation further, adding another layer of delay and uncertainty as everyone waits to see whether Parliament would intervene and annul the decision of the Secretary of State. That would be yet more uncertainty.
On Amendments Nos. 2, 4 and 106, I know that the noble Baroness, Lady Hamwee, has struggled “womanfully” to address the problem about which she feels strongly. As my noble and learned friend Lord Boyd made perfectly clear, whether one is talking about recommendation, ratification or reconsideration, one cannot invent a spurious process which simply
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A question was raised about why the Secretary of State was able to take a decision in six days on Stansted. I think that rather makes our case. The inspector reported in January; the department considered the evidence extremely carefully over the course of several months; and we had to refer back to the inspector on two occasions to obtain further detail. Ministers were involved throughout the whole process, but it took months to come to a decision. In the end, this is precisely why we believe that those who examine the evidence are the right people to take the decision.
With regret, I cannot accept the amendments. I am sure that the noble Baroness is also aware that her amendments would render the commission inoperable because it would require that all decisions taken under it, including matters such as whether to accept an application or how to examine it, would be subject to ratification.
Before I conclude, I want to make a further brief set of comments. We brought back to this House a number of amendments which I believe address the second of the questions which started my personal debate with the noble Lord, Lord Dixon-Smith, on this Bill: we need to be assured that this is a workable process. The job of this House is to ensure that whatever we bring forward will work. We have brought forward a number of amendments which not only strengthen the workability of the process and improve it, but also strengthen accountability. We have strengthened the role of this House by putting an explicit reference in the Bill to its role in scrutinising national policy statements. We have strengthened its sustainability duty. We have given high quality design greater prominence. We have strengthened the role of planning authorities by putting national parks authorities on the face of the Bill. We have clarified the considerations that the Secretary of State should take into account when deciding when to review national policy statements. We have made it absolutely explicit in Clause 12 that all national policy statements should meet the tests set out in the Bill for consultation, scrutiny and appraisal of sustainability. We have given the IPC new powers to appoint legal advisers in the examination of applications and clarified when the examining authority should invite participants to cross-examine witnesses.
The Bill is better and stronger as regards democracy and accountability. All that will add to a process which we have tried very hard to ensure is speedier, clearer, more certain and more transparent. That will ensure that the independence of the IPC is not achieved at the expense of confusion or compromise, and that ministerial accountability is in the right place and will be strong enough for parties opposite to have every confidence in it.
Lord Dixon-Smith: My Lords, this has been a long, interesting and in some ways very detailed debate, which I find saddening and depressing. For 28 years, I was a member of a county council and for five years I served on a county planning committee when the county was the planning authority. When I first stood for election, I could genuinely say to my electorate,
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Forty years ago—heaven help me when I think of that number—somebody introduced public consultation into the planning system. The planning process has been going downhill ever since. I accept that we are where we are and the position is not satisfactory. The body of objections that we have heard from most Members opposite were unquestionably right in their criticism of the existing system. That is fair enough. The existing system is wrong, but we are not discussing the existing system; we are discussing the Bill. Our amendment would not prolong the existing system. Most people seem to have forgotten Clause 105, which time limits the Secretary of State’s decision. If the national policy statements are appropriately and correctly approved, if the commission, as I would expect it to, properly and equitably follows the processes to its, in our case, recommendation, and in the Government’s case, decision, the efficiency of the system will work perfectly satisfactorily, if—and I admit this is an “if”—we as politicians can behave responsibly and act with sufficient expedition. I entirely acknowledge that under the existing system that has not happened for a host of not good reasons. I find it very sad that the Opposition—sorry, the Government—appear to be rather nihilist in this matter. The time may come when that remark of mine is entirely appropriate, except that I may be sitting over there.
My noble and learned friend Lord Mackay of Clashfern got it right when he said of the remarks made by the noble and learned Lord, Lord Boyd of Duncansby, and, effectively, so many other noble Lords on that side of the House, that if the reality is that politicians are not to be trusted with executive decisions, we need to start thinking very seriously because they should not take any executive decisions. If that is the conclusion that we are to draw from this debate, that is why I am depressed and saddened by what I have heard today. This is a significant matter. I have more faith and confidence in the future and in the politicians who we will have in the future. I am not being party political when I say that; I think that we will find that we will change in nature and become more positive.
I do not accept—although I have to acknowledge that it is more expeditious—that the continentals have some great advantage in this. If one goes to the continent, there are a great many things that still need to be done. If one asks whether the French system is satisfactory from the point of view of the general populous, the general populous accepts what is done, but on the whole is not very satisfied with it because it has very little input. That may be a wonderful model for a Government, but it is not in keeping with our traditions in this country.
This is a matter of sufficient significance that we ought to test the opinion of the House.
1.14 pm
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 112; Not-Contents, 158.
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Addington, L. [Teller]
Ampthill, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bates, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnett, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Carnegy of Lour, B.
Cathcart, E.
Chelmsford, Bp.
Clement-Jones, L.
Colwyn, L.
Cotter, L.
Crickhowell, L.
De Mauley, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Goodhart, L.
Goodlad, L.
Greaves, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Hayhoe, L.
Higgins, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Inglewood, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Laird, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Livsey of Talgarth, L.
Ludford, B.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Pilkington of Oxenford, L.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Renton of Mount Harry, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Ryder of Wensum, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tordoff, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Tyler, L.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
Adonis, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Best, L.
Bew, L.
Bilston, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Bridges, L.
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Brookeborough, V.
Brookman, L.
Cameron of Dillington, L.
Campbell-Savours, L.
Carter of Barnes, L.
Chandos, V.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Condon, L.
Corbett of Castle Vale, L.
Craigavon, V.
Crawley, B.
Darzi of Denham, L.
Davies of Oldham, L. [Teller]
Dearing, L.
Desai, L.
Dixon, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gilbert, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Greengross, B.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Birmingham, L.
Jones of Whitchurch, B.
Jordan, L.
Kilclooney, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Mandelson, L.
Maxton, L.
Meacher, B.
Mitchell, L.
Montgomery of Alamein, V.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Moser, L.
Murphy, B.
Myners, L.
O'Neill of Clackmannan, L.
Ouseley, L.
Patel of Bradford, L.
Paul, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Quin, B.
Radice, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
St. John of Bletso, L.
Sandwich, E.
Scotland of Asthal, B.
Simon, V.
Slynn of Hadley, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Vadera, B.
Valentine, B.
Walpole, L.
Walton of Detchant, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
1.26 pm
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The Parliamentary Under-Secretary of State, Department of Health (Lord Darzi of Denham): My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, I suggest that Report begins again not before 2.26 pm.
Moved accordingly, and, on Question, Motion agreed to.
Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2008
1.27 pm
The Parliamentary Under-Secretary of State, Department for Children, Schools and Families (Baroness Morgan of Drefelin) rose to move, That the draft order laid before the House on 15 October be approved.
The noble Baroness said: My Lords, the orders arise from two different effects of the 2006 Act on the barring of unsuitable persons from work with vulnerable groups. First, the Act requires us to go through a transition from barring decisions taken under the current schemes by the Secretaries of State, as happens now, to barring decisions under the new vetting and barring scheme, which is to go live in October 2009. The barring decisions under the new scheme will be taken by the new Independent Safeguarding Authority or ISA, referred to in the legislation as the Independent Barring Board. Secondly, the Act was passed in 2006, before amendments to the current List 99 scheme in 2007 which expanded List 99 coverage to foreign offences, so we want to update the Act to catch up with the expansion of the List 99 scheme.
I thank both the Joint Committee on Statutory Instruments and the Merits Committee for carefully considering the orders. As noble Lords will be aware, neither committee found anything to comment on in the orders, but the Merits Committee reported the orders because it felt that they were of interest, and published brief supplementary information provided by my officials.
I have published an information note for noble Lords to support the debate, which explains in detail how we wish to make use of the functions created by the foreign offences order in future proposed regulations on automatic barring. I will not repeat the detail from that note about the automatic barring regulations as the regulations will be affirmative and we will have the opportunity to debate them in their own right. I will, however, outline the main reasons for the orders.
First, we propose to handle the transition by undertaking it in stages. The transitory provisions order requires Ministers to stop taking barring decisions on new referrals under the current schemes. Instead, it requires the ISA to take the barring decisions on those referrals under the Safeguarding Vulnerable Groups Act. Ministers will decide on the remaining tail of existing referrals. Bodies such as employers, who have a duty under the current legislation to make a referral—for example, where they dismiss an employee because of a risk of harm to children—will generally have to make new referrals directly to the ISA. The exception is that
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We aim to bring the transitory provisions order into force by 19 January 2009, a very important date. The ISA will start to take decisions from the date on which the order comes into force, subject to parliamentary approval not only of these orders but of the regulations on which offences will lead to an automatic bar. We aim to lay those regulations promptly if Parliament approves the foreign offences order.
The main benefit of starting ISA decision-making before the vetting and barring scheme goes live is that it helps us to manage the transition more smoothly. All individuals placed by Ministers on current barred lists will be referred to the ISA. The ISA will then include them, or consider including them, in its barred lists under an order made by Ministers in the spring. By moving decision-making to the ISA from January 2009, we will reduce the number of individuals whom first the Secretary of State and then the ISA must decide whether to bar. Instead, the ISA will take a single decision straightaway. This is the most streamlined and efficient approach. It will also minimise any period, after the new scheme goes live, when current arrangements will need to be preserved while the Secretary of State completes the decisions on the tail of cases that are for him to decide and the ISA migrates those cases to the new barred lists. If I dare, I shall say a little more on this in a moment.
Secondly, the foreign offences order enables the 2006 Act to catch up with an improvement that was made in 2007 to the List 99 regulations, to which I have already referred. This provided for an automatic bar in the case of a person convicted of a specified foreign offence. We want to have this power under the 2006 Act as well to increase protection for vulnerable groups and to honour our commitment that statutory safeguards under the Act are not less than those under current schemes, including List 99.
The information note, which we have circulated, sets out how we intend to use that power. It contains a list of offences and the circumstances of commission. We propose that when the ISA is informed of an individual being convicted or cautioned for any of those offences in those circumstances, or convicted of an overseas equivalent offence, the ISA must automatically bar that individual.
I will say a little more about the transitory provisions order and our reasons for proposing to tackle this stage of transition in this manner. My right honourable friend Ruth Kelly made a commitment to Parliament in January 2006 to put decision-making in the hands of experts who are independent of government. Having the ISA take over decision-making on new referrals at this stage is the earliest possible fulfilment of a major part of that commitment. It also supports the ISA in preparing in a stable and thorough way for the launch of the new scheme, which is scheduled for October 2009. Reducing the number of decisions to bar individuals which the Secretary of State must take—individuals whom the ISA would then have to consider for inclusion on its barred lists—helps the ISA to complete a significant share of those transition cases before the go-live date.
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