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Grand Committee

Wednesday, 18 July 2012.

Arrangement of Business


3.45 pm

The Deputy Chairman of Committees (Lord Brougham and Vaux): My Lords, if there is a Division in the Chamber, the Committee will adjourn for 10 minutes.

Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012

Considered in Grand Committee

3.46 pm

Moved By Earl Attlee

That the Grand Committee do report to the House that it has considered the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments

Earl Attlee: My Lords, the devolution of policing and justice in 2010 was a major step forward on the path towards the political stability that Northern Ireland now enjoys. Noble Lords will be aware that the prospect of devolving policing and justice was raised in the Belfast agreement of 1998, the joint declaration of 2003 and the St Andrews agreement of 2006. However, it was only in 2010, through agreement reached at Hillsborough Castle, that a clear timetable was established for the devolution of policing and justice functions to the Northern Ireland Assembly, which then formally took place on 12 April 2010.

It was necessary as part of the devolution process to make a number of consequential changes to the statute book in order to transfer a wide range of statutory functions conferred on government Ministers to the appropriate authorities in the devolved Administration. The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 made the vast majority of these transfers of functions. However, due to the timing of the 2010 order, there were provisions of the same parliamentary Session that did not take into account the transfer of policing and justice functions and these now require amendment. In addition, a small number of provisions were also either missed or now require technical correction.

The main purpose of the draft order before us today is therefore to make the necessary amendments to the statute book to complete the transfer of policing and justice functions to the devolved Administration. Most amendments are achieved through straightforward substitutions of references such as “the Department of Justice” for “the Secretary of State”. Where the function being transferred involves both policing and justice matters and excepted matters, such as national security or immigration, provision has been made to divide these functions between the Secretary of State and the Northern Ireland Department of Justice to

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make clear their respective roles and responsibilities. This follows the approach taken to similar provisions in the 2010 order.

I can confirm that the Department of Justice in Northern Ireland has been fully consulted during the preparation of this draft order and fully supports it. The same is true of Whitehall departments that may be affected. I hope that noble Lords will also support the making of this draft order. It may, in effect, make relatively minor, common-sense amendments to the statute book but this is in pursuit of the much more significant aim of completing the devolution of policing and justice to the Northern Ireland Executive, which itself has led to a level of political stability in Northern Ireland not seen in a generation. I therefore commend the order to the Committee.

Lord McAvoy: My Lords, I immediately declare that the Official Opposition are in support of this move. It is worth spending a minute or so on how we got here. As the Minister rightly said, the devolution of policing and justice was a huge achievement after long and painstaking negotiations. I was long enough in the other place to remember the commendable efforts of the Government led by Sir John Major in initiating this process. When Labour came to power, we knew how sensitive and complicated all these issues were. We worked with all parties and the Irish Government to ensure that the transfer of power and the creation of a new Department of Justice in Northern Ireland were stable and sustainable.

David Ford is doing a very good job in difficult circumstances. He has the full support of Vernon Coaker, shadow Secretary of State for Northern Ireland, in carrying out his challenging and important job. He and the Northern Ireland Executive have done good work in continuing progress in building peace. However, the violence of last week, most notably in Belfast, where 20 police officers were injured, shows that there is much to be done. Parading and areas of dispute around parades have a knock-on effect on community relations and the terrorist threat. Heightened tensions mean heightened security and we should all be aware of the desire of dissident republicans to wreck the peace process. I pay tribute to the Police Service of Northern Ireland for the courage and determination they show every day to protect and serve everyone in Northern Ireland.

Significant responsibilities on national security still lie with the Northern Ireland Office. The boundaries are sometimes blurred between what is national security and what is the responsibility of the devolved Administration and the PSNI. That is inevitable and part of the process. We all know that there are no cut-and-dried, easy solutions in Northern Ireland. In the attempt to take everyone with us, there will be blurred edges.

This order is an attempt to do something about that, and my contribution today will be mainly to ask some questions. I am not quite sure of one or two things. I apologise for that. I am new to this job and to studying the legislation affecting Northern Ireland. I hope to learn quickly enough. Article 7 says:

“(2) In paragraph (1) for ‘Secretary of State’ substitute ‘Department of Justice’.

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(3) In paragraph (2) for ‘Secretary of State’ substitute ‘appropriate authority’”.

Is there a reason why these cannot both be allocated to the Department of Justice? In paragraph (4), can the areas of authority be defined a bit better between the Department of Justice and the Secretary of State? Can this section be explained a bit better? I do not quite grasp why the responsibility lies where it does.

In Article 14, there seems to be some dubiety about the status of the National Policing Improvement Agency. I am informed by our Home Office spokesman that the agency is being abolished as part of the Crime and Courts Bill. If it is being abolished, why is it mentioned here?

Apart from these questions, the Official Opposition fully support this move. It makes further progress in devolution in Northern Ireland and we are fully supportive of the Government’s actions.

Lord Alderdice: My Lords, I, too, support this small piece of legislation. I do not think it is particularly contentious, but I would like to use the opportunity to pick up on some matters of devolution.

As the noble Lord, Lord McAvoy, has said, a considerable amount of work has been done in ensuring that these last few pieces of the devolution of policing and justice functions are completely satisfactorily. When my predecessor as leader of the Alliance Party, Sir Oliver Napier, was Minister of Law Reform in the ill fated 1974 power-sharing Executive, one of the key problems was that policing and justice functions had not been devolved. Therefore, when things got out of control it was, partly at least, because the power-sharing Assembly did not have the possibility of enforcing its own rule. When my successor as leader of the Alliance Party, David Ford, became Minister of Justice, it was in the context of agreement on the devolution of policing and justice—something that Seamus Mallon, the deputy leader of the SDLP and later Deputy First Minister, pointed out was the absolutely critical thing in ensuring that there was a serious and stable devolution settlement. He was right about that, although for a long period it was believed that it was so contentious that it was quite impossible. There was an element of truth in that. Without other political agreements, perhaps it was impossible.

However, there is one aspect of policing that remains contentious and difficult, when many others are now able to be discussed—a policing board, district policing partnerships and so on. It was the aspect referred to by the noble Lord, Lord McAvoy, in which I have been slightly involved lately—the question of contentious parades. These are not easy matters, as all noble Lords around the Room know very well. One of the things that struck me is that some of those who have been saying in strident terms that the problem is mistaken judgments by the Parades Commission have had least to say in terms of proposals for better decisions by a Parades Commission or another body. I am not sure that I see another way of addressing this problem until we find ourselves considering another instrument that is devolving responsibility to the First Minister and the Deputy First Minister or to the Executive itself.

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For as long as there is a Parades Commission that is acting independently and where elected representatives at the most senior level do not have responsibility for decisions being taken about these issues, but policing itself has to gather up the problems, we will continue to have this kind of contention. I should like to ask the Minister whether, if this order goes through—as I have no doubt it will—he will take back to his right honourable friend the Secretary of State for Northern Ireland and other colleagues a proposal that they look seriously at the devolution of responsibility to the Office of the First Minister and Deputy First Minister whereby they would have to resolve the problem of parades. Some might say, “That is impossible”, but some would have said that about policing in general. It is not a sustainable position, when people are appointed to make difficult decisions and are backed up by the Government here in London, that those decisions are always second-guessed by way of criticism without there being any specific proposal for a realistic alternative decision.

I hear each side saying that the answer is for the fellows on the other side to back down. We were very used to that in the past, but there must come a time when we will have another devolution order in this place that will put the responsibility back to where it actually belongs, the elected representatives of the people of Northern Ireland to make decisions about these matters and then to live with them.

However, I want to say how much I back this order and how striking it is that an issue involving devolution of policing and justice, modest as it is, is no longer a matter of contention.

Lord McAvoy: Has the noble Lord had any thoughts about the process that could be used by the First Minister and Deputy First Minister to arrive at conclusions?

Lord Alderdice: I am hesitant because, of course, as soon as one makes a proposal, the likely response is to knock it down. However, I make the following observations. First, it is clear that the elected representatives did have a set of proposals that they were prepared to bring to the Assembly but which the Orange Order at that stage was not prepared to accept. I believe that the Orange Order has come some distance since that time and, in my discussions, properly mandated representatives of the Orange Order engaged with local nationalist constituents. That would not have happened some years ago. It was a promising thing, even if agreement was not able to be reached. I encourage the First and Deputy First Ministers and the parties in the Assembly to pick their proposals up and to try to push them through.

4 pm

Secondly, my noble friend may be able to correct me if I am wrong, but I think that I am right in saying that, in extremis, where it is impossible for the police to police a decision of the Parades Commission, the Secretary of State retains some kind of residual function and responsibility. I wonder whether, through that residual responsibility, it might be possible for him to indicate to the First and Deputy First Ministers

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that he would welcome their coming forward with proposals, whether based on some of their previous proposals or something that they bring forward de novo.

Lord Empey: My Lords, the bulk of these proposals are, I understand, tidying up and technical in their nature. Therefore, some pieces of legislation were in process through this place at the time that devolution was implemented, and consequently missed the deadline for inclusion in the legislation at that stage. However, I want to ask the Minister about one area: Clause 9 of the Immigration and Asylum Act 1999.

Before the Minister answers, I make the general point that people have short memories. It is not that long ago that we would have been talking about significant numbers of disturbances in July. This year, most of the cameras were fixed on an area that hardly stretches the distance from where the Deputy Chairman of Committees is sitting to the end of this Room. Consequently, we have to take into account the fact that there has been dramatic change and progress, something which is frequently forgotten.

Parading has been an issue for centuries. This is not new. I think that it has moved on significantly, because there is a greater acceptance of people’s different cultures and the way in which they celebrate their cultures. Of course, the country as a whole is having to come to terms with that. There has been progress.

The issue of the Parades Commission is particular and has come in for a lot of criticism over the past few weeks. This, again, is not a new phenomenon, but if people want to find a solution to these issues, the only way that it will be found is through engagement with all political parties in a meaningful way and wider sections of the community at local level. An attempt was made two years ago to bring forward proposals but, sadly, not all parties were fully involved in that. That can easily be corrected. The particular proposals I would have had great difficulty with. Some of them were not thought through properly. Neither do I believe that it is beyond our collective ability to find a solution. Over time, we found solutions to things that people thought were absolutely impossible.

Yes, it can be resolved but it will require everybody to be engaged at a political level. That is the only way we were ever able to get agreement on the Northern Ireland Act 1998: because everybody was engaged. That could be repeated on the parades issue, and of course other contentious issues like how we treat the past. The whole issue of inquiries is very contentious. There is clearly a hierarchy of victims. We are coming up to the 40th anniversary of Bloody Friday in Belfast, which was a terrible event. There has been no inquiry into that. There are no prosecutions pending or investigations going on into that event. Nine people were killed that day; I remember it very well.

There is still work to be done. This is going to take a generation. People need to stand back, look at where we were and look at where we are. No matter how you measure it, it is a good story to tell. We should take comfort from that. The story coming out of Northern Ireland is predominantly a good news story, and I hope that other parts of the world that are still struggling can perhaps learn a little, and that perhaps we can help

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a little. I recently met some people from the Middle East and I am sure other noble Lords have done the same.

I specifically want to ask the Minister about Section 9 of the Immigration and Asylum Act as I am a little confused. I am not fully conversant with all sections of the Act but can the Minister explain it a bit more? Will he also tell us whether this legislation is applicable to Scotland? Policing and other functions are devolved to the Scottish Parliament, so is there consistency throughout the United Kingdom in the treatment and implementation of the Immigration and Asylum Act? There is an issue because, unfortunately, Northern Ireland is being used by some people as a back door into the United Kingdom. They are coming into the Irish Republic and are getting into the United Kingdom via Northern Ireland. There have been some cases recently of arrests being made, and I believe some people either have been, or are about to be, before the courts for immigration offences. Can the Minister expand a bit in his final answers on that question?

Lord Kilclooney: My Lords, I apologise as I have to be brief due to other commitments this afternoon. I want to refer to some of the comments made by the noble Lords, Lord McAvoy, Lord Alderdice and Lord Empey. This order of course has my personal support and, as a former Minister of Home Affairs dealing with the police in the middle of the last century, it is clearly of great interest to me. However, I am not going to talk about the past, I am going to talk about one or two present-day problems in Northern Ireland.

First, I note my entry in the register of interests, as I am going to talk about the media. The noble Lord, Lord McAvoy, mentioned contentious parades, and the noble Lords, Lord Alderdice and Lord Empey, emphasised what a great improvement there has been in Northern Ireland in that context. Incidentally, is it not a sign of the improvement in circumstances in Northern Ireland that 100 members of the Police Service of Northern Ireland incorporating the former Royal Ulster Constabulary, are coming to rescue London from its problems next week? That represents a change in what is happening within the United Kingdom.

One of the things that worried me during the past week, watching the media here in Great Britain, especially Sky and the BBC, was that they concentrated on one parade only, near the Ardoyne. There were hundreds of parades last week in Northern Ireland, all of which were peaceful and orderly—but not one reference was made to that by the media here in Great Britain. Worse still, they misrepresented what did happen. They reported—not simply alleged—that an Orange parade went through the Ardoyne. It did not go through the Ardoyne, it went down the main road past the Ardoyne. To walk through the Ardoyne would have been absolutely criminal, and madness. They do not get the terminology correct and give the impression of provocation. There was no riot immediately after that Orange walk—it was after a parade by supporters of the Real IRA, who went down that road a few hours later. Once again, the media did not make that clear here in London and there were terribly misleading reports.

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The second point—bringing us right up to date as we are talking about the Department of Justice in Northern Ireland and the devolution of powers from here to Stormont—regards a report recently in the Tyrone Constitution. It isa paper with which I am personally connected but I had no involvement in the report. It was a local report of an Omagh District Council meeting. Councillors from all parties, Sinn Fein, Ulster Unionists and the DUP, were reported as complaining about departments of government—I think the Department of Justice was mentioned—discriminating against the people outside greater Belfast. This is something now taking place under the terms of consultation. Who are these government departments, including the Department of Justice, consulting with and who are they offering jobs to? They are restricting the advertising of jobs and consultation documents to press within the greater Belfast area and no longer using the media outside Belfast. The result is that there is now a bias in favour of the people living within the greater Belfast area. As one who lives west of the Bann myself, I am getting complaints now from people—and the report in the Tyrone Constitution is typical of what I am hearing— that people in Londonderry, Tyrone and Fermanagh and Counties Down, Armagh and Antrim are no longer getting the same opportunities as people in the greater Belfast area.

To be personal and specific about one newspaper, the Belfast Telegraph, 55% of its readers now are restricted to the greater Belfast area. There are only about 700 copies of the BelfastTelegraph sold in each of the main towns in Northern Ireland, yet the weekly papers there, many of which are owned by companies with no connection to me, sell 10,000-12,000 copies. However, the Department of Justice advertises in the Belfast Telegraphrestricting most of the readers to the greater Belfast area, thereby ignoring the people in the other parts of Northern Ireland. I want to place that on the record today because, as we consider devolving more powers to departments in Belfast, they must treat all sections of the community in Northern Ireland fairly and not continue this discrimination against people living outside greater Belfast.

Lord Browne of Belmont: My Lords, I was a member of the Northern Ireland Assembly in 2010 when policing and justice were successfully devolved. It was a very difficult time but I am pleased to say that since then the Justice Committee has performed its task well. I think it has enabled both sides of the community to take responsibility for policing. I know that we all wish to move forward to a shared future. However, it is not without difficulty. Respect, as we have heard, for different traditions and cultures does not come easily and does not necessarily appear overnight. It will be a long-term learning process. We all face challenges in Northern Ireland but I am confident that issues such as parading, as we have heard, will be resolved and I know that there is a lot of work in the background going on that will help to do that. When these issues are resolved, I am confident that the Northern Ireland Executive can concentrate on the issues that are important to the people such as housing, education and the state of the economy.

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Finally, we owe a great deal of gratitude to the Police Service of Northern Ireland which has played a very constructive role in this process, but it still, as we have heard, has a very difficult task in ensuring that the law is enforced fairly and that those who resort to violence are brought to justice.

4.15 pm

Lord Bew: My Lords, I, too, support the order and I thank the noble Earl, Lord Attlee, for introducing it. I also thank the officials in the Northern Ireland Office for producing helpful explanations of some of the more technical parts of order. That is necessitated not simply by the fact there was legislation going through this place in 2010 but that other prior pieces of legislation such as the Policing and Crime Act 2009 had to be taken into account. So the logic behind the legislation is impeccable and not a problem at all.

I want to make just a brief remark about the general issue of the devolution of policing and justice. The noble Lord, Lord Alderdice, has already alluded to the fact that those of us who tried to make the argument for the Good Friday agreement in 1998 found that at the time that that was one of the most dangerous and weakest parts of the argument. I can remember leaving a television studio, having supported the Good Friday agreement, and receiving a call from the bowels of the Northern Ireland Office from a well-known senior figure therein congratulating me on the fact that I had actually avoided all discussion of the issue and had pushed it to one side. Although allowed for in theory in the 1998 Act, it was considered to be something for the far distant future—and I mean a future beyond the time we are now living in and acting upon. So it is quite remarkable that we have made this progress and that the parties of Northern Ireland have reached so much agreement about it. The logic of that progress has to be, as the noble Lord, Lord Alderdice, said, that we consider the role of the Parades Commission and the devolution of those powers to the First and Deputy First Ministers. I support his request to the Minister that at least some thinking should begin on this matter. The question of timing is inevitably a difficult one for the reasons explained by the noble Lord, Lord Empey.

I want to add one other point. We are extraordinarily lucky in the person of the Minister responsible for justice in Northern Ireland. He was, as the noble Lord, Lord Alderdice, knows, the leader of the Alliance Party, which he led with such distinction for so long. He has his critics, of course, but in Northern Irish terms he is a very consensual figure—as consensual as you are going to get. The political circumstances that led to his appointment will not necessarily subsist for ever, and that is understating the case. In the context of all we have said about the almost magical nature of the improvement in Northern Ireland, we have to be aware that there are still difficulties, one of which is the possible personality of the next Minister for Justice. However, that is a mere caveat, and I agree that in general things have gone remarkably well.

Earl Attlee: My Lords, I am grateful for the support of the noble Lord, Lord McAvoy, for the order. He said that he is new to the Northern Ireland brief.

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In 1998 I was the Opposition Spokesman for Northern Ireland, and I have to say that I enjoyed it, particularly when visiting the Province. I am also grateful to all noble Lords who have contributed to the debate.

The noble Lord, Lord McAvoy, asked me about Article 7: why should not all responsibility be transferred to the Department of Justice and why is there a split of responsibility for the policing of the airport? The policing of an airport involves both excepted functions such as national security and immigration, and devolved functions such as policing. This arrangement ensures that responsibility for key exempted considerations such as national security arrangements remain the responsibility of the Secretary of State while allowing the Northern Ireland Department of Justice to take full responsibility for those aspects that relate to the devolved functions. He also asked me about the interaction of the Crime and Courts Bill: whether it seeks to replace the National Policing Improvement Agency, why is that not referred to in the order. The Crime and Courts Bill is still passing through this House. We will ensure that it makes the necessary consequential amendments, but to legislate now would be the wrong thing to do.

The noble Lord, Lord Alderdice, talked about parades. I agree entirely with his observations about the difficult issues around the Parades Commission. The Government regret that community tensions spilt over into violence in the evening in the aftermath of the 12 July parade in the Ardoyne. The Government totally condemn all violence and we want to avoid a repeat of the violent scenes of riots in Belfast that have been beamed across the world each summer. We need to ensure that the marching season passes off peacefully. Violence around parades affects those living in the areas and does nothing to promote the good name of Northern Ireland. It is in everyone’s interests to find a locally agreed solution to devolving the regulation of parades. It was disappointing that the Northern Ireland Executive was unable to reach an agreement in 2010. I hope that it is something they can look at again and find a compromise solution to this problem that blights Northern Ireland every year.

It is not for the Government, however, to comment on the independent decisions of the commission. I am sure that the Committee fully accepts that the Parades Commission is an independent body that has to make arduous decisions about contentious parades. It has to take many considerations and all factors into account in an attempt to reach a compromise. These are difficult, demanding and sometimes nearly impossible decisions to make, and we stand by its impartial judgment, particularly given that there is no other mechanism to adjudicate on parades in Northern Ireland.

The noble Lord, Lord Empey, also talked about the Parades Commission. All that I can add is that I sincerely hope that agreement can be reached at some point. I agree with him that good news is coming from Northern Ireland. We have come a long way since I was previously an opposition spokesman in the 1990s. The noble Lord asked whether all of Article 9 had been excepted and what the position was in Scotland. The article partly devolves certain functions, such as bail and regulation of the Immigration Services Commissioner, to the Northern Ireland Department

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of Justice. This brings the legislation into equivalence with Scotland. He asked: why are we altering an Act that deals with excepted issues? Certain aspects of immigration, such as bail, are fully or partly justice issues, and should therefore be devolved. This arrangement again brings the legislation as it relates to Northern Ireland into equivalence with that obtaining in Scotland.

The noble Lord, Lord Kilclooney, talked about the support of the PSNI to the Olympics. This arrangement was agreed some time ago and is not a response to the failure of security firm G4S to recruit enough staff for the Games. However, I should also like to take this opportunity to pay tribute to the PSNI, and the RUC before it, for their assistance on international policing operations that I have seen and have very much appreciated. I should also like to give thanks to the work of the PSNI.

The noble Lord also got on to somewhat wider issues, which he is entitled to do, about discrimination by the Department of Justice in terms of consultation and advertising. This is a matter for the devolved Administration, which I am sure he will recognise. His comments are on record and can be seen by the relevant Ministers. If I have missed out anything, I will write to noble Lords.

Motion agreed.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012

Considered in Grand Committee

4.25 pm

Moved By Lord McNally

That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012.

Relevant document: 2nd Report from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord McNally): My Lords, as noble Lords will be aware, the Rehabilitation of Offenders Act 1974 exists to support the resettlement of offenders into society where they have demonstrated that they have put their criminal behaviour behind them. After a specified period of time the Act declares most convictions spent and an ex-offender need no longer declare them. When they apply for most jobs, or seek insurance, they need not disclose this information and subsequently not suffer potential discrimination as a result of it.

The Committee will recall that we recently brought forward the first reforms to the Act for more than 40 years following a thorough and evidence-based review of the Act in the light of current sentencing practices. The amendments extend the scope of the ROA so that custodial sentences of up to and including four years can become spent, and in most cases reduce the time before which convictions can become spent. We will commence the reforms as soon as the necessary changes to procedures and processes have been put in place. This is likely to be spring 2013. The Government’s

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reforms restore the balance between the need for public protection and the freedom for an ex-offender to put their past behind them.

The exceptions order to the Act is a key part of maintaining this balance. The order lists certain activities that are exempt from the Act, such as work that involves significant contact with children or vulnerable adults. This means that where an individual is applying for a job within a specified activity, their full criminal record history is available to the employer. If an individual has a conviction that has been declared spent, the prospective employer can then see it.

We must be careful not to jeopardise the operation of the Rehabilitation of Offenders Act. The activities listed on the exceptions order are only those that present an opportunity for people involved to cause harm to the public where there is evidence that there is a real—rather than potential—risk to children, vulnerable individuals or some other particularly sensitive area of work. It is important to note that for the vast majority of purposes and employments, the Rehabilitation of Offenders Act still applies.

The careful balance between maintaining public protection and allowing offenders to lead law-abiding lives by removing barriers to employment needs to keep pace with the present. The exceptions order must therefore remain up to date with developments elsewhere. The order presented today is an illustration of the Government seeking to maintain this balance in line with recent changes to legislation and does not represent a significant extension to the scope of the order.

The first amendment adds the role of police and crime commissioner to the order, ahead of the first elections for this office in November. Police and crime commissioners will set the budget and priorities for the police force within their local area and will hold the local chief constable to account for performance and delivery. During the passage of the Police Reform and Social Responsibility Bill, now an Act, there was cross-party support in both Houses for the role of police and crime commissioner to be held to a higher standard in terms of disqualification on the grounds of previous convictions. Members of the police force are themselves held to a higher standard and it is crucial for a police and crime commissioner, who has oversight of the force in their local area, to be able to command public trust.

An individual is ineligible to hold the post of police and crime commissioner if they have any conviction for an imprisonable offence, whenever incurred and regardless of whether a sentence of imprisonment was actually imposed. The amendment to the exceptions order ensures that all candidates for the role of police and crime commissioner have to disclose all convictions when signing a declaration of eligibility to stand for election. Criminal records checks can then be made to verify this information. If a candidate is found to have given false information, they will be removed from post. Although this amendment extends the scope of the order to include police and crime commissioners, the numbers affected by the change are very small. The Electoral Commission will publish guidance to candidates and returning officers to include specific advice on disqualification and eligibility.

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4.30 pm

The second group of amendments are technical and ensure that the scope of the exceptions order remains largely unchanged following changes to the definition of “regulated activity” in the Protection of Freedoms Act 2012. The new, tighter definition of “regulated activity” is part of the Government’s programme to scale back the vetting and barring scheme. The Protection of Freedoms Act narrows the scope of “regulated activity”, which will only cover contact with vulnerable groups where there is a real opportunity to do harm—for example, with regular, unsupervised teaching of children and professional healthcare. Activities that are lower risk, such as those relating to supervised volunteers in schools and receptionists in hospitals, will no longer be covered by this definition.

The Protection of Freedoms Act also repeals provisions regarding “controlled activity” and the current definition of “vulnerable adult” in the Safeguarding Vulnerable Groups Act 2006. Currently, the exceptions order contains references to “controlled activity” and “vulnerable adult” as well as to “regulated activity”. If the order is not amended, the changes in the Protection of Freedoms Act will reduce the scope of people eligible for standard and enhanced criminal records checks once the provisions come into force in September.

The purpose of these amendments is to maintain the existing eligibility for criminal records checks for those activities that involve frequent contact with vulnerable groups but which do not come under the new, tighter definition of “regulated activity”. This ensures that employers and voluntary organisations will still be able to access criminal records checks from the Criminal Records Bureau to inform their employment decisions. Ministers gave assurances to this effect in both Houses during the passage of the Protection of Freedoms Bill.

This instrument also brings forward one reduction in the current coverage of the exceptions order. People who supervise 16 and 17 year-olds on unpaid work experience will be removed from the order so that they will no longer be asked to disclose their spent convictions by their employer. This change is part of the wider work that the Government are doing to encourage employers to offer work experience opportunities by reducing unnecessary bureaucracy and red tape. As people who supervise 16 and 17 year-olds in paid employment currently are not asked to disclose their spent convictions by their employer, we consider that this change brings unpaid work into line with established practice for paid employment without presenting additional risk.

The consolidation of the provisions regarding healthcare professionals simplifies the multiple references to health and social care occupations in the exceptions order. These changes will provide a unified definition of “health care professionals”, which will make the order more user-friendly. The amendments are technical and do not make any changes in eligibility for criminal records checks. They also reflect recent changes to the regulation of social work in England.

I hope all noble Lords agree that the exceptions order is an important means of protecting the public. The instrument presented today ensures that the legislation

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is up to date and effective in its aim, while maintaining the vital balance towards the resettlement of offenders that the Rehabilitation of Offenders Act seeks to achieve. I beg to move.

Lord Thomas of Gresford: My Lords, I only wish to raise one point, on guidance notes for police commissioner candidates. I want an assurance from the Minister that those guidance notes will be translated properly into Welsh. He may, or may not, know that there was considerable embarrassment following the elections to the Welsh Assembly last May when there was no proper translation into Welsh. As a result of that, one candidate did not divulge that he held a post that, between the previous election and that election, had disqualified a candidate from standing in those elections. He, being Welsh speaking, had only read the Welsh-language version and, accordingly, there was no problem. But another candidate, who did not speak Welsh, could only have read the English guidance notes, and he was disqualified by the Welsh Assembly although he was successful in the election.

Lord McNally: My Lords, I am assured that the Electoral Commission is responsible for publishing guidance, but I say to my noble friend that I will check with the commission on whether it plans such a Welsh-language edition. I cannot believe that it will not, given the normal practice in such elections, but I will make inquiries and write to my noble friend with, I hope, suitable assurances.

Motion agreed.

Data Protection (Processing of Sensitive Personal Data) Order 2012

Considered in Grand Committee

4.36 pm

Moved By Lord McNally

That the Grand Committee do report to the House that it has considered the Data Protection (Processing of Sensitive Personal Data) Order 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committees

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the order before us today specifies circumstances in which sensitive personal data may be processed in accordance with the Data Protection Act 1998. This is a technical order but the work it relates to is of the utmost importance. The circumstances set out in the order relate to arrangements put in place for disclosure of information about the Hillsborough disaster, and in particular the work of the Hillsborough Independent Panel. This order removes any doubt that sensitive personal data relating to the Hillsborough disaster can be disclosed to the panel and publicly, where disclosure is necessary to give effect to the disclosure protocol which guides the panel’s work.

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Before setting out further details about this order it may be helpful for noble Lords if I set out some of the background to the work of the Hillsborough panel. As noble Lords will be aware, 96 people were killed and 766 other people injured as a result of this tragedy, which remains the deadliest stadium disaster in British history. Since 1989, there have been a number of investigations and inquiries into the tragedy, but a sense has remained on Merseyside and beyond that the full story of Hillsborough has not been told. Because of the enormous strength of public feeling, the previous Government established the Hillsborough Independent Panel, with a remit to ensure maximum possible disclosure of records relating to the disaster. I want to reiterate that the current Government fully support the panel and its work. Indeed, this order has very much been made in that spirit.

One of the roles of the panel, chaired by the right reverend Prelate the Bishop of Liverpool, is to oversee and co-ordinate the disclosure of records from public agencies including the police, and from government, including Cabinet documents. Some of this material consists of “sensitive personal data”, as defined by the Data Protection Act 1998. It is the sharing during the panel process and possible subsequent public disclosure of this material which concerns us today.

In the context of the Hillsborough Independent Panel’s disclosure of records, much sensitive personal data, such as medical records of survivors, will quite properly not be placed in the public domain. But the publication of other records would clearly add significantly to the public’s understanding of the events surrounding Hillsborough. Although I am, quite rightly, not aware of the details of these records, I understand that they include, for example, papers relating to various legal processes which arose as a consequence of the disaster. For these records, organisations within the scope of the panel’s work agreed that publication is in the public interest but want to be absolutely clear that such disclosure is capable of meeting the requirements of the Data Protection Act 1998.

The Data Protection Act 1998 gives individuals several rights in relation to their personal and sensitive personal data. It also places obligations on all organisations to ensure that, where personal data is processed, the impact of processing on the individual is appropriately considered. The Act also allows for the making of an order to create conditions that will enable disclosure where those existing conditions in the Act are deemed insufficient.

The order before us today specifies the circumstances where the processing of sensitive personal data may take place where that processing is disclosure of information relating to the Hillsborough disaster and that disclosure is necessary to give effect to the disclosure protocol which governs the work of the Hillsborough panel. The order and the protocol work in tandem and will, in effect, act as a two-stage process to determine disclosure. In considering whether processing sensitive personal data is necessary to give effect to the panel’s disclosure protocol, an organisation will have to look at the facts of each case and balance the benefits of disclosure against any impact that disclosure might have on an individual. The order

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helpfully ensures that this balance can be assessed with particular reference to the overall aims of the Hillsborough panel.

The order will not guarantee that any and all disclosures of sensitive personal data contained in documents relating to the Hillsborough disaster will automatically be lawful. Because of the way the Data Protection Act 1998 works, it will be for the organisations concerned to decide, once the order is made, whether the new conditions it sets out are met, so an organisation or the panel will need to look at whether the proposed disclosure is truly necessary to give effect to the panel’s arrangements. If it is met, the relevant organisation would also need to satisfy itself that the disclosure will comply with the rest of the Act and its principles, and any other relevant law.

It is clearly not the intention of the Government in making this order, or the Hillsborough Independent Panel in requesting it, that sensitive material is disclosed inappropriately or in a way that might cause distress to the families of the bereaved and those injured in this disaster. Therefore, I would like to assure noble Lords, in response to a concern raised in another place, that where sensitive personal information which is not otherwise publicly disclosed as part of the panel process is placed into the National Archives or local archives, all the safeguards which protect personal data will apply to this material. This includes the requirements of the Data Protection Act itself. That means, in particular, that it will not be disclosed to the general public, or at least until it can be guaranteed that its release would not cause distress or harm.

The Ministry of Justice and the Home Office have worked with the Information Commissioner’s Office and officials from the Hillsborough panel to seek a resolution to the data protection issues which have been raised. The order under discussion today is the result of that work. All parties are content that the order, if agreed by Parliament, provides a suitable legal channel for disclosure and is a proportionate response to the issue.

I am sure that I speak for all sides of the Committee when I say that the promise made to those affected by the Hillsborough disaster must be honoured, and that this Government have made a clear statement that we are committed to facilitating the fullest possible disclosure. I commend this draft order to the Committee and I beg to move.

4.45 pm

Lord Beecham: My Lords, as the Minister reminded us, it is now close to a quarter of a century since this terrible event occurred. The pain has yet to be assuaged and many questions have yet to be answered. I commend the Government on proceeding to facilitate the work of the independent panel.

I have one or two questions, beginning with the point made by the Secondary Legislation Scrutiny Committee about the title of the order. In paragraph 26 of its report, the committee says that it is disappointed that the title of the legislation does not make the Hillsborough connection clear, and that those with an interest in the investigation of the disaster should be able to find related information easily. It makes the

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perhaps general point that the titles of instruments should be clear and transparent. I wonder whether it is possible, even at this late stage, for the title to be changed so that anyone who wishes to refer to the instrument in due course can track it down with ease. Maybe there will not be many but there may well be some who wish to do that. In replying, perhaps the Minister will also indicate whether he and his ministerial colleagues will look at the more general point made by the committee about the titling of such documents.

One or two questions arise on the detail of the order, based on the Explanatory Notes, which are, as ever, very helpful. In particular, they say that the panel’s secretariat will discuss the implications of the order with the disclosing organisations and the Hillsborough families. I am not sure about the timing of that; perhaps the Minister will enlighten us. Have those discussions begun in advance of the order? In other words, has the draft order been discussed or is the intention to discuss it only when it is finally confirmed? I hope that discussions have already taken place. It would seem a little odd if they have not but I assume that they have. It would be very helpful to know about that.

A couple of other questions arise from the detail, particularly on the panel’s terms of reference and how the protocol that it seeks to adopt, and which the order facilitates, will work in practice. The Minister referred to exceptions to public disclosure, particularly information that indicates the views of Ministers. In the normal course of events that would be sensible. However, will Ministers’ views be particularly relevant? After all, they would be discussing any events after they happened, so their views would not materially contribute to the work of the panel in seeking finally to ascertain the causes of the tragedy.

As the noble Lord said, it is also indicated that individuals’ identities may well be protected. The notes indicate that certain categories of individual will be redacted from the information. I wonder about this in respect of two particular categories: police officers who were constables or other ranks up to and including sergeant at the time the document was produced, and the fourth category listed—although I will confine myself to two—of junior public employees who were not in a position to determine their agency’s response. In relation to the first category, I wonder what the rationale for that restriction might be. It may be that people at the rank of sergeant were not in a position to influence, one way or another, the outcome on the day. On the other hand, it is possible, I suppose, that they might have been and the difficulty of redacting means that perhaps people who are definitely not in a position to do anything might find themselves potentially under some kind of cloud or question as to what their role had been. This is a difficult area but can the Minister give an indication of the rationale of that and whether he is confident that in redacting all names of those ranks and below, and of the other category to which I referred, justice is being done to those who are in no way culpable on any view.

We welcome the progress that is being made. We welcome the way the working of the panel will now be facilitated but I would be grateful if the noble Lord could respond to the questions I have raised.

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Lord McNally: My Lords, I am very grateful to the noble Lord, Lord Beecham, for that intervention. The Hillsborough disaster is one of those events where you know where you were on the day. I was in Rochdale and I can remember hearing the tragedy unfurl on the radio. As an avid soccer fan I thought then, “Never again”. To be fair, much has changed in the way that football treats its fans in terms of ground safety so perhaps we can say never again. Also, successive Governments have realised that there are still open wounds in Liverpool and there are questions that need to be answered. Again, successive Governments have responded to that fact by the determination to carry through this very thorough inquiry under the very distinguished and trusted leadership of the Bishop of Liverpool.

On the question of the title, it is probably true to say that it would have been better to have had a title that stated the intention exactly. However, there were contrasting opinions on whether the panel and the bodies giving evidence to the panel were protected under existing legislation. In a way, this order is a little bit of belt and braces in terms of giving assurance so that the panel could do its work. Could it have been better described in the Data Protection (Processing of Sensitive Personal Data) Order 2012? In hindsight, perhaps it could and it could have made a specific reference to the specific case that it was there to address. However, we considered the views of the committee carefully and concluded that to deal effectively with its concerns might have brought potentially damaging delay into bringing this order forward. We have taken such action as possible with local media and others to make it clear that people will be able to locate this order. I would ask noble Lords to bear in mind that to have accepted the committee’s recommendations would have meant that the order would have had to have been withdrawn, re-laid and to have gone through the scrutiny process again. That might have pushed the House’s approval for the draft order—if it is forthcoming—back past the Summer Recess and would have had a knock-on effect on the expected delivery time of the panel’s findings.

The fact that there is no specific reference to Hillsborough in the title is not, I think, a catastrophic error. We have taken measures to try and guide people who wonder what it is and what it is for. I hope this explanation clarifies that.

Lord Beecham: I understand that and am grateful to the noble Lord. I am just wondering whether the pathway will be signalled on the website and so on, so that people looking at the Hillsborough website will be directed to it rather than having to comb down through long lists of statutory instruments. I have not looked at the website myself and so do not know how it is set up at the moment, but I assume there will be a website for the independent panel. If it is clear from there what this document is about and where it can be found, that would be sufficient. I assume that is what is happening but I would be grateful if the Minister could confirm that.

Lord McNally: I think I can confirm that that is what is happening and that anybody who goes to the Hillsborough website will be directed to it. The draft

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order has been discussed with the families at all stages and those discussions will continue. I note the point that the noble Lord made about Ministers but the Government have taken the decision that all material, including Cabinet minutes, will be published. I can understand that, as it is not just an inquiry into what happened in or around the ground—people will want to know about a range of issues. Over these 25 years, I have taken an interest in the follow-up to Hillsborough and, as such, one of the statements that I found most reassuring was the one by my right honourable friend the Home Secretary, when she made clear that the Government’s attitude would be full disclosure, within the limits that I referred to about due care and not putting the families through the trauma again by careless or unneeded disclosure.

One has to make a judgment about the protection of junior officers and lower-rank officials. It is a judgment call and if the panel brought forward events or findings that meant that a particular individual warranted being named for some action or lack of action, that would be a matter the panel would have to take into account. I also think that, if you are publishing, it is fair in terms of responsibility to have a certain redaction policy. We have made the judgment that it is, in fairness, right not to publish all the names concerned. I think those were the points that the noble Lord raised and I ask the Committee to approve the Motion.

Motion agreed.

Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012

Copy of the SICopy of the ReportCopy of the Report

Considered in Grand Committee

5 pm

Moved By Lord McNally

That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Her Majesty’s Inspectorate of Courts Administration and the Public Guardian Board) Order 2012.

Relevant documents: 2nd Report from the Secondary Legislation Scrutiny Committee;2nd Report from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the purpose of this order is to abolish two of the Ministry of Justice’s public bodies: Her Majesty’s Inspectorate of Court Administration, which I shall hereafter refer to as HMICA, and the Public Guardian Board, which I shall hereafter refer to as the PGB. This omnibus order provides for abolition of these bodies, with no transfer of functions in the case of the PGB and, in the case of HMICA, with a transfer of certain functions which I will outline shortly.

The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies, which had as its overriding aims to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities.

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In conducting individual reviews of their own public bodies, departments were asked, first, to address the overarching questions of whether a body needed to exist and whether its functions should be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case both HMICA and PGB, the Ministry of Justice felt that retention was not justified. They were therefore included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.

I will now give some background on each body in turn, beginning with HMICA. It was set up in 2003 and was given two main statutory duties—first, to inspect and report on the system that supports the business of the Crown Court, county and magistrates’ courts and, secondly, to carry out joint inspection, along with other criminal justice inspectorates, of the criminal justice system. However, the situation in which HMICA was working changed greatly after it was created. Her Majesty’s Courts and Tribunals Service, previously HM Courts Service, has since that time developed and put in place more sophisticated and robust ways of carrying out audits, which has mitigated the need for independent inspection of court administration systems.

The outcome of this was a decision by the previous Administration to close HMICA administratively. It was felt, given the more robust audit and monitoring processes then in place, that continuing to fund the body was unjustified and it was closed at the end of December 2010 with the full support of the Lord Chancellor and inspectorate’s senior management. This order, therefore, merely puts on a legislative footing that which has already been administratively achieved. Closing HMICA will save around £6.4 million against the Ministry of Justice baseline for this spending review period.

The Government remain committed to joint inspection of the criminal justice system, and this order includes a transfer of functions to the other criminal justice inspectorates, which will enable them to inspect HMCTS for the purposes of joint criminal justice inspections. This will ensure that no necessary functions previously carried out by HMICA will be left without a statutory basis.

The legislative abolition of HMICA also formed part of a Ministry of Justice consultation that took place in October 2011. Eighteen responses were received, of which seven were opposed to abolition, three expressed some concerns, six stated their support for abolition and two did not express a view either way. Among those who supported abolition, the overriding feeling was that there was no need for an independent inspection of the courts in the current climate, and that HMICA’s function could be adequately carried out elsewhere. Those who opposed abolition were generally concerned that a key government body would be left without independent scrutiny, and that the inspectorate’s specific functions would be left in jeopardy. These concerns have been addressed in the transfer of functions that have been written into the order, and the Ministry of Justice therefore finds no compelling argument within the consultation responses to change its proposal to abolish.

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I turn now to the Public Guardian Board, the second body addressed in this omnibus order. The PGB was set up in 2007 to scrutinise and review the way in which the Public Guardian discharges his or her functions and to make such recommendations about the matter to the Lord Chancellor as it thinks appropriate. While this is a worthwhile role, the Government believe that it can now be more effectively and efficiently delivered through new governance arrangements within the Office of the Public Guardian, which I shall hereafter refer to as the OPG, the executive agency which supports the Public Guardian’s work. The Ministry of Justice feels that a separate body for this purpose is no longer needed. As a result, the board was found not to meet the key tests for retention as part of the 2010 government-wide review of public bodies, and was listed for abolition in the Public Bodies Bill.

Following the abolition of the PGB, governance of the Public Guardian and his office will be provided, in line with usual government arrangements for executive agencies, through a management board within the OPG. This will be chaired by the OPG’s chief executive, with executive membership from the OPG and the Ministry of Justice as well as three non-executive directors. The presence of non-executive directors will provide independent scrutiny and challenge of the discharge of the Public Guardian’s functions and those of his office. Collectively, they will have relevant experience such as business and performance management, financial management and dealing with those who lack capacity. I must emphasise that the board itself has also accepted the proposal to abolish, and held its last meeting in June.

As well as fulfilling a key aim of the public bodies review of discontinuing activities that are no longer needed, the abolition of the PGB will provide savings in the region of £400,000 over the current spending review period. Implementation of the new governance arrangements for the OPG will incur some costs that will offset these savings, for which our best estimate is no more than £187,000 over the same spending review period. As with HMICA, the proposal to abolish the PGB was included in a full public consultation which ran from July to October 2011. There were a total of 12 responses, of which 10 did not oppose abolition as long as alternative governance structures for the OPG were put in place. Two were opposed to abolition due to concerns that the PGB’s functions would not be adequately carried out by other means. As we have ensured that the board’s functions will indeed be adequately replaced by the OPG’s management board, the Ministry of Justice finds no compelling reason to change the proposal to abolish.

I turn now to the scrutiny given to this order, which was laid before Parliament on 10 May. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if that is felt necessary. This order been scrutinised by several Select Committees: in this House, the Secondary Legislation Scrutiny Committee; in another place, the Justice Select Committee; and, collectively, the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period. The Secondary

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Legislation Scrutiny Committee reported on this order on 24 May, having requested a few points of clarification from officials. The committee was satisfied that the order met the tests set out in the Public Bodies Act, but specifically asked the Minister to address two key points during this debate, and I will now address these.

First, the report stated that public reassurance would be enhanced by the results of Her Majesty’s Courts and Tribunals Service’s scrutiny of court administration being published on an annual basis. I can confirm that Her Majesty’s Inspectorate of Prisons provides a full report of each inspection, and recommendations to improve outcomes are submitted to the relevant Secretary of State. Moreover, all these reports are published and publicly available.

Secondly, the report suggested that the Ministry of Justice should publish the outcome of the new governance arrangements for the Office of the Public Guardian. I can confirm that the Office of the Public Guardian publishes, and will continue to publish, an annual report, and that this will indeed cover governance arrangements as well as key performance indicators and monitoring outcomes. In fact, the latest OPG annual report was laid before Parliament only last week. Key stakeholders were also sent letters outlining the new governance arrangements before they came into effect, as outlined in the consultation response. The Ministry of Justice has taken on board the views of the Secondary Legislation Scrutiny Committee, and thanks it for its thorough reporting.

HMICA and the PGB are two public bodies that were created to carry out particular functions, but their roles have either been superseded by other bodies or can be carried out more efficiently and effectively through other means. HMICA is already closed administratively, and the Ministry of Justice has taken the opportunity within this order to put its residual functions on a statutory footing, ensuring ongoing scrutiny of court administration and the wider criminal justice system. The functions of the PGB have not been formally transferred but we have put robust governance mechanisms in place in the OPG that will ensure continued oversight of the work of the Public Guardian.

The Ministry of Justice remains committed to close scrutiny of the courts and tribunals system, and to continuing the excellent work of the Public Guardian. In the current financial climate, however, it is right that unnecessary activities and bodies across government should be removed; abolishing these two bodies will save the public purse several million pounds. I therefore commend this draft order to the Committee and beg to move.

Lord Beecham: My Lords, as the Minister has said, HMICA was effectively abolished last December. It is now, seven months later, that we have the interment in statutory form. Some sort of inquest might be thought appropriate.

This is another example of what I would call pre-legislative implementation, as I have done in respect of several other measures the Government have brought forward in the past two years. It is unfortunate that the decision has been implemented even before the relevant

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secondary legislation has been brought forward. Having said that, I do not dissent from the view that change is, if not necessary, then certainly not damaging, subject to the observations of the Secondary Legislation Scrutiny Committee about adequate reporting and annual reports to the public.

By sheer coincidence, I received a copy of the annual report of Her Majesty’s Courts and Tribunals Service just this week—a rather glossy document. There was very little in it about the actual operation of the courts and tribunals. There is a lot of financial information. I do not have the document with me, but my recollection is that there is only about a page or so of detailed reporting—in fairly minimal fashion—of the work of the service. Given the extra responsibilities, and while acknowledging that custodial arrangements will be dealt with separately, there ought to be a fuller report than has evidently been the practice thus far.

5.15 pm

In relation to the Public Guardian Board, the noble Lord has written to me, in response to a range of complaints that I voiced in connection with other matters, about the performance of the Office of the Public Guardian and the Court of Protection. It is true that the board accepted the Government’s proposal that it should be abolished. The saving made by doing so, incidentally, is only £100,000. Almost the whole of the rest of the £2 million or thereabouts comes from the abolition of the other body, so it is a modest amount. I shall repeat what I think I recall saying in the House, which is that it is not particularly satisfactory when the Public Guardian is also the chief executive of the organisation. A measure of independence in the chairmanship of that body, as opposed to making it an executive position, would have been desirable. I acknowledge that there are to be three other members of the board. There were seven members from a variety of backgrounds, but now there are to be only three. I have my doubts as to whether that is adequate, given the history of the organisation. There is a lot of ground to make up.

Having said that, the board itself has accepted its demise gracefully and I do not wish to challenge its view. However, I would like to place on the record our thanks and, I am sure, those of the Minister to those who over the past few years—the board has been going for only a short time—have done their best to improve what was a fairly unsatisfactory operation, and had begun to tackle some of the major problems. It would be reassuring if the Minister confirmed that some of the issues raised in the board’s farewell letter to the Lord Chancellor about, for example, “investment in new technology”, joint working with other organisations and the hoped for appointment of someone who would be a champion of the Mental Capacity Act are on the Government’s agenda—or at least are being considered. I am not asking him to confirm that these matters are to be dealt with now, but whether at least the last report of the chairman of the board will be considered.

We accept that these changes will be made. We look forward to rigorous annual reporting so that the performance of both the courts service and the guardianship office can be given adequate scrutiny in

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the public interest, particularly in relation to the public guardianship function because by definition we are dealing with many vulnerable people, so it is important that we should see perceptible progress being made in dealing with their affairs and providing a system that is accessible and efficient in so doing.

Lord McNally: My Lords, again, I thank the noble Lord, Lord Beecham, for his constructive response. I am not sure that it was pre-legislative implementation; perhaps it was pre-legislative anticipation, but I take the point. I also accept his point about annual reporting. I am sure that the relevant bodies will note his comments that annual reports should be just that. There should be full coverage of all areas of responsibility, particularly when the body concerned has taken on new responsibilities.

I also take on board the point about the Public Guardian. There is concern and we must be sure that oversight is proper and full. One aspect that we now hear about in relation to our ageing population is the need to make sure that those whose mental capacities may be diminished have proper protection. It is important that that is assured. We believe that the presence of non-executive directors will provide independent scrutiny and challenge to the discharge of the Public Guardian’s functions and those of his office. Collectively, the directors will have the relevant experience, including in business, performance management, financial management and dealing with those who lack capacity. There will also be non-executive director representation in the Public Guardian’s two existing stakeholder groups, which meet four times a year. There will be continued liaison between the OPG, the MoJ’s sponsor team and relevant policy officials, including those who led on the Mental Capacity Act 2005. I hope that the noble Lord will accept those assurances that his very valid questioning on this is being addressed.

I do not think that any other points were raised. I emphasise again that each report and recommendation arising from all inspections of the courts will be published for public scrutiny.

Lord Beecham: I am very grateful to the Minister, who has answered fully. I am stretching the purpose of today a little wider than I should, but I wonder whether it is the Lord Chancellor’s intention to reply to the letter that he received from the outgoing chairman and whether that reply will be placed in the public domain.

Lord McNally: Knowing the Lord Chancellor’s courtesy in all such matters, I am sure that a full reply will be sent. I will see that it is also copied to the noble Lord, Lord Beecham.

When I saw that the title of the order included “public bodies” and I saw the noble Lord, Lord Beecham, come in, I was petrified. I thought that I would be grilled, so I was even more pleased than usual to see him take his place at the Dispatch Box, rather than as a Back-Bencher. Having made that confession, I commend the Motion.

Motion agreed.

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Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012

Considered in Grand Committee

5.23 pm

Moved By Lord McNally

That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012.

Relevant documents: 3rd Report from the Secondary Legislation Scrutiny Committee; 3rd Report from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the purpose of this order is to abolish two of the Ministry of Justice’s public bodies: the Crown Court Rule Committee, which I shall hereafter refer to as the CCRC, and the Magistrates’ Courts Rule Committee, which I shall hereafter refer to as the MCRC. This omnibus order provides for the abolition of these bodies, with no transfer of functions in the case of the MCRC, and in the case of the CCRC, with a transfer to the Lord Chief Justice of the function of making rules for the Crown Court.

The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies. Its overriding aims were to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked first to address the overarching question of whether a body needed to exist and its functions to be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case of the two court rule committees, it was considered that their functions needed to be carried out but that they could be effectively carried out by, or in consultation with, other rule committees. The Ministry of Justice felt that retention of the committees was therefore unjustified, and they were included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.

I will give some background on each committee, beginning with the CCRC. The Crown Court Rule Committee was created by the Supreme Court Act 1981 to examine any proposed amendments to Crown Court rules and, together with the Lord Chancellor, to make the necessary rules for the court. However, the committee’s role in making criminal rules has been superseded since that time by the creation of the Criminal Procedure Rule Committee in 2003, leaving it with a role in relation to only a few civil rules. Due to this reduced role, the committee is now rarely used and the Ministry of Justice therefore proposes that it be discontinued.

The Government recognise that the committee’s limited residual functions, though few, should still be carried out and require both technical expertise and impartiality. This order therefore transfers these functions to the Lord Chief Justice, who will be free to consult the other court rule-making committees, and any other

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person or body as he sees fit, before making rules in relation to the Crown Court. This transfer of function removes the need to maintain a separate committee for such a small workload, which reflects the wider aims of the Public Bodies Act to cut out unnecessary bureaucracy. It also means that a greater range of expertise will be available to the Lord Chief Justice, which is a more effective way to make court rules. This approach has been agreed in principle by the Lord Chief Justice.

The abolition of the CCRC and the transfer of its remaining functions to the Lord Chief Justice formed part of a Ministry of Justice consultation that took place between July and October 2011. Nine responses were received regarding the proposal, of which only a few opposed abolition, with the chief concern being that abolition would lead to a loss of people with appropriate expertise whom the Lord Chief Justice could consult before making rules.

However, as I have spelled out, the order will allow the Lord Chief Justice, after abolition, to consult any rule committee and any other person or body as he sees fit when making rules. As these committees have considerable rule-making experience, I am satisfied that there will be more than ample expertise on which the Lord Chief Justice will be able to call—indeed, there will be a wider range than is currently the case. For this reason, the Government see no reason to alter their proposal to abolish this committee.

The Magistrates’ Court Rule Committee is the second body addressed within this omnibus order. The MCRC was established under the Magistrates’ Courts Act 1980 as a body to be consulted by the Lord Chief Justice before he makes rules in relation to these courts. The MCRC is also consulted, along with other rule committees, before certain rules are made under the Courts Act 2003 relating to justices of the peace and justices’ clerks. The committee does not itself make rules but exists as a consultative body alone.

However, since the MCRC was established, the creation of the Criminal Procedure Rule Committee and the Family Procedure Rule Committee has greatly reduced its remit. The only remaining function of the committee is to be consulted on rules relating to civil non-family proceedings in the magistrates’ courts. There are relatively few such proceedings, and the need for amendments to the rules is very infrequent. The committee was called upon twice in 2009, not at all in 2010 and twice in 2011. This does not justify the retention of a dedicated committee.

5.30 pm

The Government recognise that the committee’s remaining consultative functions, though narrow, are both necessary and technical, and require impartiality to be carried out. However, they do not need to be performed by this committee specifically but may be performed by any person or body with the right technical expertise and impartiality. Due to the narrow scope of the committee’s remaining functions, this order makes no provision for the transfer of the MCRC’s functions to other rules committees. However, after abolition, the Lord Chief Justice will continue to make the rules upon which the MCRC is presently consulted, as he

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does now; before making these rules, he will still be able to consult any of the other rules committees as he sees fit. He has agreed in principle to this approach.

As with the CCRC, the abolition of the MCRC was included in a full public consultation published by the Ministry of Justice in 2011. Ten responses were received regarding the proposal; of those, five supported and two opposed abolition. Among opponents of the proposal, the main concern expressed was that, after abolition, there would be a lack of expertise available to the Lord Chief Justice when making rules. However, this was balanced by the response of the Magistrates’ Association, which said that the other rules committees were well placed to advise the Lord Chief Justice, as well as that of the Law Society, which equally had no objection to abolition. As with the CCRC, the Lord Chief Justice will be able to consult any rules committee when making rules on which the MCRC is currently consulted. We are therefore satisfied that there will no loss of expertise resulting from abolition, and see no reason to retain the committee.

I will now turn to the scrutiny given to this order, which was laid before Parliament on 17 May. Orders under the Public Bodies Act 2011 have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if it feels it necessary. This order has been scrutinised by several Select Committees: in this House, by the Secondary Legislation Scrutiny Committee; in the other place, by the Justice Select Committee; and, collectively, by the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period.

The Secondary Legislation Scrutiny Committee reported on this order on 31 May, and requested a few points of clarification from officials. The report stated that the committee was satisfied that the order met the tests set out in the Public Bodies Act 2011, and did not ask for any points to be addressed by me in this debate. I will therefore take this opportunity simply to thank the committee for its thorough report.

These two committees were created to make rules in relation to various parts of the courts system. However, since their creation, their functions have been largely overtaken by other rule-making committees. In the case of the CCRC, we have taken the opportunity in this order to transfer the remaining functions of the committee to the Lord Chief Justice, which will allow him to consult any rule-making committee or person that he sees fit when making rules. In the case of the MCRC, the Lord Chief Justice may already consult any such body or person in relation to the committee’s narrow residual scope as necessary, and no formal transfer is necessary.

I am therefore satisfied that, for both committees, the necessary remaining functions will continue to be carried out after abolition, with no loss of expertise in the making of court rules. Closing these two committees is consistent with cutting out unnecessary bureaucracy and making the carrying out of public functions simpler and more efficient. I therefore commend the order to your Lordships and beg to move.

Lord Beecham: My Lords, I have no problem with the substance of this order. However, the Secondary

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Legislation Scrutiny Committee does have a problem with the form; indeed, it had a problem with the form of the order we have just discussed, and they are not unrelated. The report on the previous order stated that:

“The content of the ED was adequate to explain the draft order but the Committee found its presentation confusing. The ED, like the draft Order, covers the abolition of two evidently unrelated public bodies, and rather than dealing with them separately and sequentially, it jumps between the two throughout. This presentation did not aid clarity when considering the draft Order. We recommend that in future the Explanatory Document laid with any omnibus Order that contains provisions about unrelated public bodies deals with each body separately and sequentially”.

The committee made much the same point in relation to this order, saying:

“The content of the Explanatory Document was adequate to explain the draft Order but the Committee found its presentation confusing and repetitive”.

Of course, I am being repetitive at the moment but that is because it is necessary to be so.

The committee does not have any quibble with the substance, but will the Minister ask those involved in the preparation of these documents to bear these strictures in mind so that clarity is served and what are potentially somewhat different bodies are dealt with separately rather than run together in a rather confusing way? However, we have no objections to the order itself.

Lord McNally: I am very grateful to the noble Lord, Lord Beecham, for drawing that to my attention. I am sure that the officials responsible for the drafting are not outraged by the suggestion. I can assure him that we always take note of such strictures, and if we can make orders clearer and less repetitive, that will be to the benefit of all concerned.

Motion agreed.

National Minimum Wage (Amendment) Regulations 2012

Copy of the SICopy of the Report

Considered in Grand Committee

5.38 pm

Moved By Lord De Mauley

That the Grand Committee do report to the House that it has considered the National Minimum Wage (Amendment) Regulations 2012.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments

Lord De Mauley: My Lords, the regulations do three things. First, and most importantly, they increase the minimum wage rate for adults and apprentices, and increase the maximum amount for living accommodation that counts towards minimum wage pay. Secondly, they reflect changes to the names of the apprenticeship programmes in England. Thirdly, they make it clear that deductions or payments for accommodation do not affect minimum wage pay where the accommodation is exempt from the minimum wage accommodation rules because it is provided by higher or further education institutions.

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I will concentrate my remarks on the minimum wage rates. As I am sure noble Lords will be aware, the increases contained in the regulations are those recommended by the Low Pay Commission in its 2012 report. In March, the Government announced that we had accepted all the commission’s rate recommendations. The regulations increase the adult minimum wage rate by 1.8% in October, from £6.08 to £6.19.

In making this recommendation, the Low Pay Commission concluded that caution was essential. While it recognised that real incomes have fallen, it believed that in the current difficult economic circumstances a large increase would carry too great a risk to jobs. We believe that this increase is appropriate. It is based on sound economic evidence, research, analysis and consultation by the commission. It maintains the relative position of the lowest paid and is one that businesses will be able to afford.

The Low Pay Commission also concluded that there is scope for an increase to the apprentice minimum wage that we introduced in October 2010. It recommended that the apprentice minimum wage should be increased by 5p to £2.65 an hour. We consider that this increase is appropriate.

At this point, I should mention what is not in this year’s regulations. Both the Government and the Low Pay Commission remain very concerned about the position of young workers in the labour market. I am sure your Lordships share that concern. Young people are more vulnerable than they have been previously as they have been hit harder by the difficult economic circumstances. That is why we asked the Low Pay Commission specifically to consider their position in the labour market. Their position has continued to be difficult and there is some evidence that in these tough economic conditions the minimum wage level may have an impact on their employment opportunities. This is because, over the last few years, youth minimum wage rates have increased faster than young people’s earnings generally. As a result, the so-called “bite” of the minimum wage for young workers—the minimum wage as a percentage of median earnings—has increased, while the bite of the adult rate has remained stable. Pay data from the Office for National Statistics shows the bite for 16 to 17 year-olds as being around 73%, with the bite for 18 to 20 year-olds at around 80%. This compares with the bite of the adult minimum wage of around 51%. The commission concluded that it would be imprudent for the bite to rise any further and therefore recommended, albeit reluctantly, that minimum wage rates for young workers should not be increased this year.

It is usually the case with economic downturns that the employment of young people turns down earlier and faster than that or older people, but then recovers faster. However, this time the employment of younger workers has yet to recover. In addition, since the start of the economic downturn, the number of younger workers who have never had a paid job or a place on a learning scheme has increased. We consider that the commission has taken the right approach. Freezing the youth rates has been a very tough decision. However, raising the youth rates would be of little value to young people if it meant it was harder for them to get a job in the long run.

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I turn now to the other elements of the regulations. The names of the apprentice programmes in England have changed, so the regulations make consequential changes to reflect this. Last year, we implemented regulations to exempt higher and further education institutions from the minimum wage accommodation rules where they provide accommodation to workers who are enrolled as full-time students with them. Regulation 2(5) puts right a minor omission in those regulations. It makes clear, for the avoidance of doubt, that deductions or payments for such accommodation are not included in calculating whether the minimum wage has been paid.

The Low Pay Commission’s rate recommendations were made against a difficult economic background. They are based on extensive economic evidence and take account of the prospects for the UK economy. We consider that they are appropriate and balance the needs of low-paid workers against the challenges that businesses face. I ask your Lordships to consider these regulations.

Lord Young of Norwood Green: My Lords, first, I apologise for missing the beginning. I had not expected things to go quite so quickly in the previous debate.

I only have a couple of points to make. I came in probably at the right time on the analysis in respect of young people. I do not disagree with the analysis that the noble Lord, Lord De Mauley, made about the “bite”. I noticed it was clearly a difficult decision because in the impact assessment it says:

“The labour market position of young people continued to worsen in 2011, with employment of young people continuing to fall and unemployment to rise (although the extent to which pay is a factor is not clear)”.

It concerned me a bit. They took, I thought, a very cautious view. If they had only increased it to £4 it would have been something, although admittedly marginal.

The only other question I would like to ask the noble Lord—I do not necessarily expect him to have the answer as I did not give him any warning of the question—is regarding enforcement, on page 13 of the impact assessment. I am interested to know whether the noble Lord has any information on the level of enforcement and whether that is improving—although one side of me would prefer the need for it to be less. Nevertheless, is any statistical information available from HMRC? If not, I should be grateful if the noble Lord could write and advise me. Other than that, I have no further comments to make.

Lord De Mauley: My Lords, this has been a short but important debate. I thank the noble Lord, Lord Young, for his contribution. He initially commented on the youth rate, and I understand why he would do that. As I think I explained, youth unemployment is a major problem that we are trying to address. We do not believe that increasing the cost of employing young people would help them, quite apart from businesses, for example. There is little point in pushing wages up if it means that jobs are no longer available. Once young people are in work, they are gaining important skills and experience that will help them to progress. The noble Lord would have made that point to me from

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this Dispatch Box a couple of years ago. They are not gaining those skills and experience if they are out of work. Hard times mean that we have to make hard decisions. The decision was a hard one, as the noble Lord knows. However, the evidence found by the Low Pay Commission makes a compelling case that it would not be prudent to increase the minimum wage for youth workers.

The noble Lord asked about enforcement. The Government are firmly committed to the minimum wage and to effective, risk-based enforcement. Paying anything less than the minimum wage is totally unacceptable. If we find examples of businesses breaking the law, we crack down on them. The Government actively target employers who flout their responsibilities and investigate any complaints made against them, taking them to court if required. We are clear that an effective compliance regime goes much wider than just enforcement. It must reach employers that are at risk of underpaying their workers as well as those who have already fallen foul of the rules. With this in mind, our strategy for minimum wage compliance focuses on how the compliance and enforcement landscape should look over the next three to five years. It recognises that our approach must continue to be based on intelligence and data.

Clearly, in the context of reduced budgets, we will need to prioritise. However, underpayment of staff wages is not an option. Our strategy is helping us to make informed choices, and ensures that we have the right tools for the job and that resources are focused where they are most effective. I can tell the noble Lord that in 2011-12, HMRC completed 2,534 minimum wage investigations. It found non-compliance in 879 cases and identified arrears of £3.5 million that were owed to 17,300 workers.

The Government are committed to the minimum wage because of the protection it provides to low-paid workers and the incentives to work that it provides. The Low Pay Commission’s rate recommendations strike the right balance between pay and jobs. It is important that we have a minimum wage that helps as many low-paid workers as possible, but it is equally important that we do not damage employment prospects by setting it too high.

Lord Young of Norwood Green: I thank the noble Lord for the information on enforcement, which was helpful. I did not realise that it was lurking there.

I want to say something further about youth unemployment because the latest figures have come out. I do not want to score points on this because I applaud some of the things that the Government are doing. The focus on apprenticeships is one of the good things. However, I did not want to lose the opportunity of saying that it is still not enough. The situation out there is very serious. In some areas, the levels of youth unemployment are alarmingly high. I am just using this opportunity to call on the Government to have a careful look at some of their policies. There is still a reluctance from the Government to accept that there ought to be a requirement in public sector contracts for companies who bid successfully to indicate how many apprenticeships they will take on. There is still an abysmally low number of companies that offer

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apprenticeships. That in itself might not solve all the problems, but when only something like 4% to 8% of companies are offering apprenticeships, there is a long way to go. Although the total figures for apprenticeships always look good, a significant number are adult apprenticeships. I do not say that there should not be adult apprenticeships, but that does not address the areas of major concern.

When going around a local estate, I could not help noticing four young teenagers—it was difficult to know how old they were, but they were definitely in their teens—who were certainly not at school, in college, in training or at work. It was the middle of the day. That is a wasted opportunity and potentially an opportunity for them to get into trouble. That is a situation in microcosm of the challenge we face. However, I thank the noble Lord for the information he has given us.

Lord De Mauley: Apart from the minutiae of how the issue is addressed, I would like to say that the noble Lord and I are at one in appreciating how important this problem is and the fact that it must be addressed. He might like to know that overall, with the investment announced in this year’s Budget, we will deliver at least 250,000 more apprenticeships over the next four years—I am not trying to score points here, but just as a comparison with the previous Government’s plans—which will total 360,000 places. That includes funding for training for up to 40,000 apprenticeship places over the life of this Parliament that will provide additional capacity to support young unemployed people, in particular through progression from the department’s work experience programme. The Government are launching a new £75 million programme of training and other targeted support focused on SMEs to help access advanced level and other higher apprenticeships. I hope that that is helpful to the noble Lord.

The regulations we have been discussing support the Government’s commitment to delivering fairness and supporting business. I believe that the provisions are fair and appropriate. The increase in the adult rate will maintain the relative position of the lowest paid while also being one that businesses will be able to afford. I hope that noble Lords can accept the regulations.

Motion agreed.

Community Interest Company (Amendment) Regulations 2012

Copy of the SICopy of the Report

Considered in Grand Committee

5.53 pm

Moved By Lord De Mauley

That the Grand Committee do report to the House that it has considered the Community Interest Company (Amendment) Regulations 2012.

Relevant document: 4th Report from the Joint Committee on Statutory Instruments

18 July 2012 : Column GC122

Lord De Mauley: My Lords, the community interest company form was introduced by the Companies (Audit, Investigations and Community Enterprise) Act 2004 and the Community Interest Company Regulations 2005. The legislation created a new type of company tailored for social enterprise that wanted to use the familiar company form but with the assurance that assets would be used primarily for the benefit of the community. The new form was intended to complement existing and well established forms such as charities and industrial and provident societies which are also commonly used in the social enterprise sector.

Since July 2005, when the legislation came into force, over 6,700 social entrepreneurs or social enterprises have chosen to register as community interest companies. CICs—I shall resist the temptation to call them “kicks”, although I think it is a fairly widely used expression—carry out a wide range of activities taking in sectors such as health and social care, retail, manufacture, the environment, business support, working with young people not in employment, education or training, older people, addressing cultural needs and running community cafés and centres. The Regulator of Community Interest Companies, Sara Burgess, is an independent regulator for this legal structure.

The regulator discharges its responsibilities by ensuring CICs comply with a community interest test on registration. They are then monitored and supported to ensure that they continue to operate in the interest of community benefit and are transparent in the way they do this. A statutory asset lock ensures that there is limited or no private gain. The community interest company report is a key feature of the model. The directors of a community interest company must produce a report annually to show to the public and the regulator that the community interest company is continuing to meet the community interest test and engaging appropriately with stakeholders.

When the relevant aspects of the Companies Act 2006 were implemented, they made a number of changes. Unfortunately a gap was created, so that although all CICs have to prepare an annual report, not all of them have to file it. Filing the report is optional for small companies that benefit from certain accounts and reporting exemptions, when it was always intended that it should be compulsory for all community interest companies. The vast majority of community interest companies are small. I am delighted to say that I can reassure your Lordships that in practice CICs have filed reports. However, it is important to put the point beyond doubt, and indeed Parliament imposed a duty on Ministers to do this.

The regulations will make provision requiring the directors of all community interest companies to submit a copy of the annual community interest company report to the Registrar of Companies together with the community interest company’s annual accounts as a package. Placing the report on the companies register should be compulsory for all community interest companies, even for those that are small. CICs are subject to a light-touch regulatory regime to minimise burdens for them, and the report is therefore one of a very limited number of means by which stakeholders and the regulator can check that a community interest

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company is complying with relevant rules. The report contains important information on the impact of the community interest company’s activities, directors’ remuneration, the payment of dividends to shareholders and the consultation of stakeholders.

The regulations will, as always intended, apply late filing penalties if the package is received after the filing deadline, address the gap created in the implementation of the Companies Act 2006 and ensure that the transparency offered by the submission and publication of the CIC reports continues as it was intended. I therefore commend the regulations.

Lord Hodgson of Astley Abbotts: My Lords, I will make a comment or two. The CIC is a very valuable corporate form and has enabled the development of the social enterprise sector. The asset lock has proved valuable and a good way of developing an alternative to the purely charitable structure. I therefore fully agree with my noble friend that we need to close this loophole. However, when I read in the Explanatory Memorandum a government department using the words, “to minimise the burden” it is like the letter I get from my power supplier or my mobile phone company saying, “We are going to introduce some changes, which are going to improve the service we are providing you”. You know immediately that the service is going to deteriorate considerably.

What the Explanatory Memorandum is trying to parade here is the idea that this is somehow helping CICs. In fact, this measure is helping the CIC register and Companies House, because the memorandum states that,

“it has been decided that the directors of a CIC should be required to deliver the annual community interest company report to the Registrar of Companies together with CIC’s accounts and reports”.

It might be that a CIC would find it more comfortable not to do this—it might want to send it a different time of year. However, this is designed to help the regulator by making the CIC send the two reports at once. All I am saying to my noble friend is that it is sophistry to pretend that this is minimising burdens. If his department would like to minimise the burdens, it could quite quickly arrange for Companies House and the CIC registrar to agree one form that combined the two. You could have a CIC company reporting form that included both parts of what a normal limited company would provide as well as the particular assurances for the CIC.

6 pm

I say to him—this is in no way a criticism—that in these circumstances, Companies House is obdurate, which is not too strong a word, in not being prepared to move forward the regulatory structure in a way that reduces the burden. Eighteen months ago, I was asked by the Minister for Civil Society, Nick Hurd, to undertake a review of the burdens that were affecting the development of the charitable sector. My report was called Unshackling Good Neighbours. One thing suggested in that was that Companies House and the Charity Commission should get together and provide a common report for charitable companies, of which there are 30,000. Fifteen months on from that report, there is

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absolutely no progress at all. The Government’s response, which my committee is going to discuss for the next couple of weeks, states,

“Companies House and the Charity Commission are working together to address this issue and are considering both the joint submission of accounts and common annual returns… There is willingness and commitment from both organisations to address this recommendation, although there are technical challenges to be overcome… These differences do not necessarily prevent a single portal being developed, but they do add complexity and a business case is under development to ensure that any changes are made following a full appraisal of the benefits”.

If ever I heard the long grass whispering, this was it. A bit of business case development 15 months in is not good enough. I am not asking my noble friend to take responsibility for this. I am saying that we really can do something to improve the way in which Companies House, the CIC regulator and—parenthetically, it is nothing to do with our discussion this afternoon—the Charity Commission work together to reduce the regulatory burden. As my noble friend has told us, there are 6,700 CICs, but there are more than 30,000 charitable companies. We are talking about being able to get rid of 30,000 to 50,000 forms if Companies House can be persuaded actually to walk the walk as opposed to talking the talk about minimising burdens when, in fact, it is doing no such thing. It is just reorganising the regulations—quite rightly, because I accept that it is closing a loophole—in a way that benefits them and has no benefit to the CICs whatsoever. I urge my noble friend, let us find a way to get Companies House to collaborate with the CIC regulator on the one hand, the Charity Commission on the other and, in so doing, take a small step in reducing regulatory burdens for this charitable and social enterprise sector.

Lord Young of Norwood Green: My Lords, I confess that I was in complete ignorance of community interest companies until I saw this, and I learnt quite a bit looking at it. They are one of our more interesting innovations, given that a significant number have been created and continue to be created. I have looked on the website at the latest grouping. I admit that until I listened to the noble Lord, Lord Hodgson, I saw this order as correcting an error.

I have some sympathy for the view of the noble Lord, Lord Hodgson, that we should try to make things as easy as we can. I was impressed when I read the impact assessment that all of them have submitted their reports. I hope that I have got that right. If only we could ensure that all companies managed to do that, it would be a major step forward. Nevertheless, I will be interested to hear the Minister’s response to the view of the noble Lord, Lord Hodgson. I have no further comments.

Lord De Mauley: My Lords, I thank my noble friend Lord Hodgson and the noble Lord, Lord Young, for their consideration of the draft regulations. To address my noble friend’s point about the claim in the documentation to reduce the regulatory burden, I can first establish that it is at least not increasing it, because all CICs were already filing. I think that the contention is that it is more straightforward to have one account

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filing date and one set of penalties, and also that e-enablement will allow easier submission. I throw myself on his mercy, but those are the suggestions that I put to him.

His greater point about the co-ordination between the registrar of companies and the Charity Commission —I think that was the nub of it—I will take back to the appropriate departments. I think that it will be more than one department, but it is a valid point.

Consistency is essential in the regulatory environment, where light-touch regulation means that there are limited measures to ensure that CICs are meeting the obligations laid out in the legislation. I commend these regulations.

Motion agreed.

Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012

Copy of the SICopy of the Report

Considered in Grand Committee

6.05 pm

Moved By Lord De Mauley

That the Grand Committee do report to the House that it has considered the Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments

Lord De Mauley: My Lords, the Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 unsurprisingly makes consequential amendments to various pieces of primary and secondary legislation, which already disqualify a person from holding certain positions in the event of their bankruptcy. This order extends those disqualifications to persons subject to debt relief orders and to debt relief restrictions orders or undertakings.

It has long been held that going bankrupt should disqualify a person from holding certain offices and positions, and legislation is in place to provide for this. Debt relief orders were introduced in 2009 and in many ways have a similar impact to bankruptcy. Both provide individuals with debt relief and subject them to certain automatic restrictions. It makes sense to introduce consistency between the further restrictions that apply to bankrupt individuals and those that apply to people subject to a debt relief order. That is what the order seeks to achieve. It will prevent individuals subject to a debt relief order holding certain positions, for example that of pensions trustee. It also prevents their holding some board memberships—for example, acting as a school governor or member of a local authority. The order will add a debt relief order to the

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existing list of formal insolvency procedures, primarily bankruptcy, in around 120 separate pieces of legislation.

These disqualifications are necessary as bankruptcy will often have been caused by some form of financial mismanagement. It is therefore considered prudent that individuals subject to bankruptcy should not hold specific high-profile positions of trust in which financial judgment may be required. This measure will also result in better governance of the bodies in question as it will reduce the risk of someone who has become insolvent being appointed to one of the specified positions.

The list of disqualifications to which a bankrupt is subject was reviewed in 2006 as part of provisions introduced following the Enterprise Act 2002. Any disqualifications thought unnecessary were removed at that time. Those that remain are still felt to be relevant and necessary. I commend the order to the Committee.

Lord Young of Norwood Green: My Lords, I thank the Minister for his concise but comprehensive explanation. I must admit that, again, I have learnt something. I was a school governor and we asked the governors to declare their interests. Most are CRB checked but we never thought to ask them about this area—it may be that we should have done so.

I do not have any arguments against what seem to be sensible changes but I draw something to the Committee’s attention. I went through the impact assessment, the end of which says:

“I have read the Impact Assessment and I am satisfied that … it represents a fair and reasonable view”.

I cannot read the signature of the Minister but it does not look like the noble Lord’s. However, the front page includes two typographical errors that mean it does not make sense. It states:

“This statutory instrument will make such necessary changes and ensure that where it is appropriate for particular public posts”—

I think it means “post-holders”—

“to have been personally insolvent”.

It does not make sense. I think there is also a typographical error in the last sentence of the next paragraph. It is somebody’s responsibility to check them; I just draw them to the Minister’s attention. Other than that, I am happy to agree to these changes.

Lord De Mauley: My Lords, we are grateful to the noble Lord for his close scrutiny—

Lord Young of Norwood Green: Vigilance.

Lord De Mauley: His vigilance, indeed. I will certainly look into those matters. In the mean time, I hope your Lordships will agree to consider the order.

Motion agreed.

Committee adjourned at 6.10 pm.