7 Feb 2013 : Column GC83

7 Feb 2013 : Column GC83

Grand Committee

Thursday, 7 February 2013.

Scotland Act 2012 (Consequential Provisions) Order 2013

Scotland Act 2012 (Consequential Provisions) Order 2013 16th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

2 pm

Moved By Lord Wallace of Tankerness

That the Grand Committee do report to the House that it has considered the Scotland Act 2012 (Consequential Provisions) Order 2013.

Relevant Documents:16th Report from the Joint Committee on Statutory Instruments

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, the Scotland Act 2012 makes provision for a new route of appeal to the Supreme Court for compatibility issues. As noble Lords may recall from our debates on the Scotland Bill, compatibility issues are questions raised in Scottish criminal proceedings about European Convention on Human Rights issues and European Union law issues. These would previously have been devolution issues. The Scotland Act 2012 also makes provision for compatibility issues to be referred to the Supreme Court in certain circumstances.

The draft order is made under Section 42 of the 2012 Act, which allows for provision to be made that is consequential on the Scotland Act 2012. The draft order makes consequential amendments to legislation to ensure that compatibility issues are properly taken account of in the criminal justice system. The draft order is subject to the affirmative resolution procedure because it makes amendments to an Act of the UK Parliament and an Act of the Scottish Parliament, and it is usual for such amendments to be subject to the affirmative procedure.

The draft order amends the Legal Aid (Scotland) Act 1986 to enable criminal legal aid to be provided in relation to compatibility issues. Section 21 sets out the meaning of “criminal legal aid” for the purposes of the Act and this includes appeals and references to the Supreme Court of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 21 so that criminal legal aid also includes appeals and references to the Supreme Court of compatibility issues.

Section 25AB of the Legal Aid (Scotland) Act 1986 makes provision for criminal legal aid in connection with appeals and references to the Supreme Court in respect of devolution issues raised in Scottish criminal proceedings. The draft order amends Section 25AB so that it also makes provision for criminal legal aid in connection with references and appeals to the Supreme Court in respect of compatibility issues.

The draft order also amends the Criminal Justice and Licensing (Scotland) Act 2010. Sections 132 to 140 of this Act make provision for the disclosure of information by the prosecutor where a person convicted of an offence seeks to appeal against any aspect of that

7 Feb 2013 : Column GC84

conviction. The draft order amends Section 132 so that the definition of appellate proceedings includes an appeal to the Supreme Court against the determination of a compatibility issue. This ensures that appeals in respect of compatibility issues will be treated in the same way as appeals of devolution issues in criminal proceedings for the purpose of disclosure of information by the prosecutor. The draft order, if approved by each House of Parliament, will come into force on 22 April 2013—the same day as the other orders relating to compatibility issues.

For completeness, it is perhaps worth mentioning that other consequential amendments are needed in relation to compatibility issues, but as these amend secondary legislation they are subject to the negative resolution procedure and are included in the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013. This order has been considered by the Joint Committee on Statutory Instruments, which made no comment on it.

Transitional provision—that is, provisions that are not included in the draft order that we are debating—has been made in respect of compatibility issues to ensure that the provisions of the 2012 Act take effect as quickly as possible. This will prevent two different criminal appeals systems operating in Scotland for a lengthy period and allow the benefits of the new system to take effect as quickly as possible. The transitional order achieves its aim by converting devolution issues relating to ECHR or EU matters in criminal proceedings that have been raised before 22 April 2103 into compatibility issues. The proceedings will then continue under the new compatibility issue procedure.

The Scotland Act 2012 also makes amendments that impose a time limit of 28 days on applying for permission to appeal a compatibility issue or a devolution issue in criminal proceedings to the Supreme Court. An application for permission must be made within 28 days of the date of the High Court’s determination. If that permission is refused, an application to the Supreme Court for permission must be made within 28 days of the High Court’s refusal. Both limits may be extended by the respective courts, where this is equitable given all the circumstances.

Again, transitional provisions—not included in this order—have been made in respect of existing devolution cases in criminal cases where there is a right of appeal. The time limit of 28 days will apply from 22 April this year, as opposed to the date on which the devolution issue was determined or when permission to appeal was refused.

This will also apply to devolutions that are converted into compatibility issues. The Government have been working closely with the Scottish Government in making arrangements for the commencement of these provisions in the 2012 Act. The Scottish Government have also discussed the arrangements with various bodies including the Supreme Court, the Crown Office, the Law Society of Scotland, the Faculty of Advocates, the Society of Solicitor Advocates and the Scottish Legal Aid Board. Both Governments are working together to publicise the transitional arrangements being made regarding compatibility issues and the changes made to the

7 Feb 2013 : Column GC85

devolution issues by the Scotland Act 2012 so that practitioners are aware of these. I commend the order to the Committee and I beg to move.

Lord McAvoy: First, I thank the noble and learned Lord, Lord Wallace of Tankerness, for his very full explanation. I also thank the noble and learned Lord’s staff for their courtesy and co-operation. They are so polite that they even supplied me with questions to ask him. He has, however, dealt with these issues in his speech.

We support this continuing step on the path of devolution: it is a fine example of how the two Parliaments can work to make sure that devolution is furthered in a moderate, non-contentious way. I hope that continues and that comparatively small issues such as this order and the way it has been implemented will play a part in indicating to the people of Scotland that, when it comes to a referendum, they should vote very firmly to stay within the United Kingdom. I have nothing further to add, unless the noble and learned Lord’s staff have supplied him with questions to ask me. I thank all concerned for their courtesy.

Lord Wallace of Tankerness: I am grateful to the noble Lord and endorse his sentiments about the importance of showing how the two Parliaments and two Governments can work together in the interests of the people of Scotland.

Motion agreed.

Environmental Permitting (England and Wales) (Amendment) Regulations 2013

Environmental Permitting (England and Wales) (Amendment) Regulations 201316th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

2.08 pm

Moved By Lord De Mauley

That the Grand Committee do report to the House that it has considered the Environmental Permitting (England and Wales) (Amendment) Regulations 2013.

Relevant Documents: 16th Report from the Joint Committee on Statutory Instruments

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley): My Lords, these regulations are principally to transpose in England and Wales the industrial emissions directive. It is not a completely new directive. It recasts seven current directives into a single one about regulating emissions from various industrial activities. It therefore provides a welcome simplification of EU legislation.

It also maintains and in some cases clarifies or strengthens the provisions of the component directives. Like the component directives, it aims, through a permitting system, to achieve a high level of protection for the environment taken as a whole. That is consistent with our belief that we need to improve the environment for future generations, make our economy

7 Feb 2013 : Column GC86

more environmentally sustainable and improve our quality of life and well-being. The directive applies to some 10,000 industrial installations in England and Wales, ranging from power stations to intensive pig farms and from waste incinerators to dry cleaners. Nearly all are already subject to one or more of the component directives.

The directive contains provisions to improve the implementation of current controls on a range of industrial activities where appropriate, particularly through better development and application of best available techniques, known as BAT. The concept of BAT is founded on the need for the techniques to be both technically and economically viable in the industry sector concerned.

The directive includes only relatively small and justifiable additions to the range of industrial installations covered by the directive. Reflecting productive UK input during negotiation, the directive reflects UK practice in respect of risk-based inspections and site monitoring. For the same reason, it also contains important optional time-limited transitional provisions regarding control of emissions from large combustion plants—notably those in the electricity generating sector. These should assist the UK in managing the transition to low-carbon power generation while maintaining security of electricity supplies.

The directive also covers waste incineration plants and a wide range of activities in which volatile organic solvents are used. Its requirements in those respects are virtually unchanged from those in the component directives. In both cases, we have taken the opportunity in England to ensure that only those requirements will be applied.

We also considered whether, for installations subject only to the directive’s controls on solvent emissions, we should take the directive’s option of requiring only registration rather than permitting. Consultation showed little support for that and so we have not done so. However, we continue to explore with the local authority regulators how further simplification can be made in the current permitting requirements and the associated compliance assessment procedures. That exploration will include further review of the case for a registration system. If a case is found, we will further amend the regulations at the first available opportunity.

Another directive derogation allows a single permit to cover several operators. While this may be of use elsewhere in Europe, consultees in England and Wales could see no practical use for it. These regulations therefore do not transpose it but, again, we would amend the regulations if businesses were to demonstrate to us that a single permit for several operators would be of significant practical benefit.

I hope that I have demonstrated that there has been extensive discussion with industry and regulators throughout the negation of the directive and during the preparation of these regulations. Nothing in them should therefore come as any surprise.

The component directives are currently transposed through the Environmental Permitting (England and Wales) Regulations 2010. They transpose not only the component directives but a wide range of other environmental directives in a way that standardises, as

7 Feb 2013 : Column GC87

far as possible, the mechanics of permitting, compliance assessment and enforcement. The regulations before the Committee therefore amend those regulations so as to transpose the industrial emissions directive. Within that framework, we continue to look for ways in which administrative burdens on operators subject to the directive can be reduced. In particular, regulators continue to develop simplified arrangements for permitting, compliance monitoring, data reporting and charging for permits.

The regulations before the Committee also remove some otiose descriptions of industrial activities which have no foundation in the component directives and they repeal three other statutory instruments which have no current purpose. I therefore commend these regulations to the Committee as providing transposition of a directive in accordance with our EU obligations, simplification of current regulations and protection for the environment.

Lord Knight of Weymouth: My Lords, I am grateful to the Minister for his opening remarks on what are clearly very important though somewhat technical regulations. I am sure that the noble Lord has been sweating under a towel overnight and getting his head around all the detail.

The Opposition obviously support the notion that we should take a set of regulations and try to bring them together under a single overarching regulation. That is good practice. It is something that we sought to do in the past and will seek to do in the future. Certainly, as the impact assessment says, leaving the existing regulations unamended would lead to infraction and the probability of heavy daily fines for failure to transpose. Clearly it is in the public interest that we proceed with these regulations.

I am also extremely happy with the process that the department has adopted of consulting properly on how the transposition is taking place, with a very full impact assessment so that we can transparently see how this all works. As I say, these are quite technical, so the only questions I have may well have answers in the documentation and I just have not been able to resolve them, and perhaps one or two do not have answers in the documentation, and that would be a result as far as I am concerned because then I might have added a bit of value.

2.15 pm

It would be helpful if the Minister were able to give us one or two examples of areas where the department decided to regulate when transposing so that we can get a feel for how that judgment has been made. The most important question is in responding to the consultation. There is a very helpful summary of consultation responses in Annexe B to the Explanatory Memorandum. There are a lot of comments, such as that in B4, which states:

“These will be reflected in the final guidance”.

The question that inevitably follows for those who are following these important regulations is: when will the final guidance be published so that they can see how

7 Feb 2013 : Column GC88

the comments in the consultation have been incorporated in that important parallel document to the regulations?

An important but, I am sure, easily answered question, which may well be obvious and I have just not been able to pick it up, is about the costs that are shown in the impact assessment, which are clearly significant. My assumption is that they are not costs additional to those implied in the existing regulations but a summary of the cost of the regulation as a result of transposition. If I am wrong, and these are costs or savings that are as a result of transposition, that would be a useful clarification for me if nothing else.

I have two specific questions, both of which I think were asked in the other place when these regulations were debated this morning. First, the regulations seek new, optional provisions for large combustion plants. Is it the case that without this provision there may be difficulty in maintaining security of supply? Those who are monitoring this will be concerned about security of supply. Secondly, on the issue of air standards, this is a useful opportunity to ask what progress has been made in reaching full compliance with European air quality standards and what role will this permitting regime play in helping the Government to achieve that?

My final comment is that in the Explanatory Memorandum, which is to make things clearer, the wonderful word “otiose” is used, which was also used by the Minister in his opening remarks. “Otiose” is a great word and it has a very specific meaning. It is arguable that it is not in common parlance and some people might want that word explained. So, in passing, I say that I am just interested in the use of that word and whether there is clearer English, but it is not a substantive point. On that basis, I look forward to hearing the Minister’s response.

Lord De Mauley: I thank the noble Lord for his helpful comments. I shall deal with last question first. I have been given a dictionary definition of “otiose”; it is “of no use”. I hope that is helpful.

Lord Knight of Weymouth: It is extremely helpful. One could argue that my comment was otiose, in which case we become circular. However, that is a clarification.

Lord De Mauley: I would never argue that.

These regulations make the amendments necessary to transpose an EU directive which, in recasting seven into one, is largely a simplification. The alternative would have been yet another set of freestanding regulations obscuring the continuity of the regulatory requirements that the industrial emissions directive requires. Implementation of the directive’s requirements will correspondingly be in continuity with current arrangements for the permitting, inspection and compliance assessment of the installations it covers. For those installations subject to integrated pollution prevention and control, the concept of best available techniques and the consequences for periodic permit review is already well established and should

7 Feb 2013 : Column GC89

hold no surprises. By definition, best available techniques cannot remain static. By that same definition, they have to be technically and economically viable. It is for industry to contribute the information which, ultimately, only it can provide in order to ensure that conclusions on BAT accord with that definition.

In answer to the noble Lord’s first question, all derogations have been utilised, except for two cases where industry and regulators called strongly to keep the current UK systems in place. The consultation indicated that one derogation that would allow solvent emission activities to be registered rather than permitted might increase the regulatory burden rather than reduce it. Consultees could see no practical benefit in another derogation allowing one permit to cover multiple sites and operators. As I intimated in my opening speech, in both cases we would further amend the regulations to provide the derogation if a need were subsequently demonstrated.

The noble Lord asked when we would publish guidance on the directive. In relation to activities subject to integrated pollution prevention and control, it will be published very soon, in the light of consultation last year. For other activities, it will be published in the course of the next few months, subject to our consideration of the need for, and the form of, guidance from government and regulators.

The noble Lord asked a specific question about costs. The answer is that it refers to the costs additional to the current regulations. He asked how one is to know that the large combustion plant and power station provisions will not erode security of electricity supply. The provisions were negotiated on the basis of significant input from the industry and the Department of Energy and Climate Change. The indications were that the operational flexibilities that we gained would help to prevent a cliff edge developing as plants are retired during this decade.

He asked a question about air quality. The directive addresses pollutant emissions to air from industry and will contribute to maintenance and improvement of air quality, particularly in respect of nitrogen oxides and particulate matter. However, industry is not the only source of these pollutants. In 2010, industry accounted for some 43% of emissions of nitrogen oxides in England, while transport sources accounted for some 45%. For particulate matter, industry accounted for some 31% and transport 27%.

Economic growth is ultimately dependent on a healthy natural environment. The directive is about environmental protection and so is key in this regard. In transposing the directive, these regulations will play a significant part in nurturing that dependency. We look to the regulators to use to the full the proportionate approach that the regulations allow, and we look to industry to respond creatively. We look forward to the growth and further environmental improvement that could result.

Motion agreed.

7 Feb 2013 : Column GC90

Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (Amendment) Regulations 2013

Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (Amendment) Regulations 201316th Report from the Joint Committee on Statutory Instruments,24th Report from the Secondary Legislation Scrutiny Committee

Considered in Grand Committee

2.24 pm

Moved By Lord Ahmad of Wimbledon

That the Grand Committee do report to the House that it has considered the Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (Amendment) Regulations 2013.

Relevant documents: 16th Report from the Joint Committee on Statutory Instruments, 24th Report from the Secondary Legislation Scrutiny Committee

Lord Ahmad of Wimbledon: My Lords, the purpose of the regulations is to amend the wording to be used in a council tax referendum question, and make amendments to the ballot paper to reflect the wording agreed with the Electoral Commission.

As noble Lords will be aware, since we took office, the coalition Government have prioritised the protection of council tax payers. Council tax more than doubled between 1997 and 2010, and this Government have worked with local authorities to give council tax payers a break. We have put in place three council tax freeze schemes that have provided real help with the cost of living. The latest scheme potentially represents a real-terms council tax cut of around 2.5% in 2013-14. The Government encourage all authorities to take up the grant that we are offering and freeze their council tax once again.

As we promised in the coalition Programme for Government, we have abolished the old centralised system of council tax capping and established council tax referenda, so that voters could have the final say on any excessive increases. Following the Localism Act, a number of regulations were put in place to set out the processes that local authorities must follow if they set an excessive increase. The most substantive of these regulations are the Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (Regulations) 2012, which this Committee considered early last year. Both Houses approved the regulations. However, noble Lords will be aware that in preparing those regulations we were unfortunately unable to completely agree the wording of the referendum question with the Electoral Commission in time for the 2012-13 round of council tax setting. The Electoral Commission briefed Members of both Houses on their concerns about this.

During the debate on 14 February 2012, my noble friend Lady Hanham gave an undertaking that the Government would continue to work with the Electoral Commission and come forward with revised wording for the referendum question to be used in 2013-14. The House agreed that the regulations should be approved on this basis to protect council tax payers by not allowing referenda to go unregulated.

It is worth noting that no council tax referenda were held in the financial year 2012-13. Accordingly, no referenda have been held using the wording of the

7 Feb 2013 : Column GC91

question that we now propose to amend. My honourable friend, the then Parliamentary Under-Secretary of State, Bob Neill, subsequently wrote to Jenny Watson, the chairman of the Electoral Commission, proposing a revised version of the referendum question. The revised version removes the phrase “do you agree”, which the commission had concerns about. The revised question also asks voters if they want their council tax to be at the level that has been set, with a clear indication that a “no” vote will result in a lower amount being set. This change removes any possible ambiguity about a voter’s liability for a council tax bill they have received prior to the referendum being held.

Following discussion, the commission confirmed that it was content with the suggested wording. I would like to place on record my thanks to the Electoral Commission for its highly constructive and timely approach to this work, and its sensitivity to concerns. In signalling its agreement to the revised question, the Electoral Commission repeated wider concerns about the complexity of council tax referenda and the need for government to ensure that timely information is provided to voters who take part in a referendum. We remain content that the multiple provisions relating to the provision of information set out in the lengthy 2012 regulations are sufficient and we are not minded to pursue any changes.

However, we take the commission’s views very seriously and remain in dialogue with it through various cross-Whitehall fora, and will discuss the scope for an appraisal of the voter experience if and when a referendum is triggered. The revised council tax referendum question needs to be in place before the current round of local authority council tax setting is completed. The final referendum threshold will be put to the House for approval alongside the final local government finance settlement on 13 February. All local authorities must have set their council tax by 11 March.

These regulations make a sensible, measured amendment to the question that will be asked in a council tax referendum. They reflect the views of the Electoral Commission and I commend them to the Committee.

2.30 pm

Lord Beecham: My Lords, I congratulate the Government on accepting the advice of the Electoral Commission. Certainly, it is sensible to adopt the new wording although, as the Minister pointed out, there are other recommendations that the Electoral Commission made concerning how to promote interest in and understanding of the issue should a referendum take place. I note from the Government’s response and the noble Lord’s remarks that the Government will continue to work with the commission—and, I hope, the Local Government Association—about how that might be effected.

The timetable is ridiculously short in most cases between a council’s final budget decision—even after, as is the case in many authorities, months of consultation about their financial situation—and the date on which the referendum has to take place. It is less than two months—normally it is about six weeks—between the

7 Feb 2013 : Column GC92

final date for making a budget and a referendum. That is a difficult timescale and the Government need to look at how people might best be informed.

However, the principle of a referendum is extremely questionable. The Minister makes a virtue of the fact that the Government have facilitated a council tax freeze. That generosity would be more welcome if it had not been financed by topslicing the local government grant in the first place so that, in effect, money that would have come to local government is still coming but only for this particular purpose. It creates problems for local authorities because while the council tax is frozen, the base revenue budget is also in effect frozen. There is a growing gap between the council’s expenditure and its base budget and, as the noble Lord, Lord Shipley, pointed out in a debate the other week, this can and will ultimately cause greater problems. However, we are where we are.

I would like to ask a question—not about the levying authorities, which were dealt with in the Secretary of State’s Written Statement last week; I understand the position about that even though I do not necessarily go along with the whole argument—in relation to the police commissioners’ right to impose a levy because they, unlike other bodies, are not effectively accountable to local authorities. The regulations will place the precepting authority in the frame, so to speak, of the referendum question and that might be thought to be enough. However, I doubt it will be, because the levy will be collected via the council tax and that needs to be made clear to people. It needs to be made clearer even than perhaps baldly stating in the referendum question that this element, if it is in excess of 2%—I know of at least one police commissioner who is proposing a 3.5% increase in the levy—is not the responsibility of the council that collects the tax and sends out the bills. That matter ought to be addressed in more detail in the course of the review that will, no doubt, go on.

There is more to the recent debate about council tax referenda than these technical matters. Recently the Secretary of State came out with an extraordinary threat to penalise councils which opt to increase council tax below the Government’s imposed limit of 2%, above which a referendum would be required. The Secretary of State has accused councils which refuse to increase council tax by less than 2%—I refer to that document of record, the Daily Mail, for the remarks that he made—as being “democracy dodgers” by creeping under the radar and cheating their taxpayers. Of course, the councils would simply be applying the law and the system he pushed through and, indeed, levying a council tax increase below that which would trigger a referendum.

This is remarkable. My noble friend Lord Smith inquired of me whether the Secretary of State for Transport might say that people caught travelling—it is perhaps timely to mention such matters—at 69 miles an hour should nevertheless be deemed to be breaking the law because it is under the speed limit. What the Secretary of State is saying is that councils which levy council tax increases below 2% are somehow creeping under the radar and cheating their taxpayers. This is an appalling statement. It also ignores the fact that councillors remain accountable for their decisions through

7 Feb 2013 : Column GC93

the ballot box at local elections. A referendum that he seeks to impose is in his view somehow superior to accountability through the ballot box at local elections. He does more than criticise; he actually threatens to take into account decisions to levy an increase below 2% and effectively claw it back or impose tighter limits next year. Where is the justification for that threat?

I have to point out that the Government have sought no approval for their swingeing increases in VAT or the devastating cuts in council tax benefit, housing benefit and other welfare benefits which hit millions of people and will cost many households a great deal more than a 2% council tax increase, assuming that were being levied. In my authority, which I think is not going to increase the levy, a 2% increase would amount to something like £20 a year for 70% of the households in Newcastle. I repeat that the council is not proposing to levy a 2% increase. That pales into insignificance beside the amounts that those households will lose in the benefits to which I have referred.

Mr Pickles was recently on “Desert Island Discs”. He should have opted to take with him as his book a collection of his own speeches about localism and freedom for local authorities, and a copy of his own Localism Act.

Lord Tope: My Lords, I am just reflecting on that last remark. It seems to me to be the ultimate cruelty to be marooned on a desert island with a disc of your own speeches, particularly for Mr Pickles.

Lord Beecham: It would be even worse to be marooned with Mr Pickles.

Lord Tope: Then it would not be a desert island. Let us move on. I begin by declaring my interest as a councillor in the London Borough of Sutton, where the council has publicly announced that we will be recommending a council tax freeze for yet another year because we are in a position to do so.

The noble Lord, Lord Beecham, said—I think with some regret—that we are where we are. I think it is true to say that as all three speakers thus far in the debate are current or former councillors, we all probably regret that we are where we are. I certainly spent many happy years—I think initially with the Association of Metropolitan Authorities, but certainly with the Local Government Association—listening to Councillor Jeremy Beecham berating successive Governments for capping. I know that it was an enormous disappointment to him, as it was to all councillors, that a Labour Opposition, having been committed to abolishing capping for all its time in opposition, then spent 13 years in government failing to do so. I do not want to get into too much of a semantic argument about whether capping—which is effectively what it is—by the Secretary of State, with a right of appeal to a referendum, is qualitatively better than the situation that pertained before, but at least there is some sort of appeal.

I think that most of us do not expect there to be a referendum. It incurs considerable cost and there is uncertainty about the outcome; or perhaps it will not happen because there is a view that there is too much certainty about the outcome. Nevertheless, that appeal is there. I say to those authorities—probably mostly

7 Feb 2013 : Column GC94

Labour-controlled now—that if they feel strongly that the cuts they are having to make in the budget are too great, too painful and not in the public interest, perhaps they should consider having the courage to hold a referendum and test the will of the people. It is not a system I like or would want. I would be very pleased to see it go. However, as the noble Lord, Lord Beecham, said, we are where we are. That is what Parliament has legislated for and that opportunity is there. Therefore, if authorities feel strongly that they are in that position, I urge them to trust the people and take the risk—it is a considerable risk—of holding a referendum.

As the noble Lord, Lord Beecham, said, the timescale for being able to do this is incredibly tight and very difficult. I hope that I shall never be in this position but I am very unclear as to what local authorities will be able to do if and when they have a referendum. What are local authorities able to say in putting a case to the electorate on why they are having the referendum and what the arguments are? I am not clear about what role the Government will take. It is too late to say, after the event, that you should not have done this. Before they enter into the referendum, local authorities need clarity on what they are and are not allowed to do. Needless to say, political parties—as distinct from local authorities—are free, within the law, to say what they wish in support of whichever view they want to take on the referendum. We need much greater clarity about what local authorities can do, especially given that the timescale is so short. The wide expectation that there will not actually be any referenda has made people a bit complacent in providing that detail. That is wrong: we need more detail.

Secondly, what would the Government’s role be, should there be such a referendum? I agree with the noble Lord, Lord Beecham, that we are already seeing local authorities of two political persuasions being lambasted by the Secretary of State and Ministers and described as “democracy dodgers” for staying precisely within the law. If we believe in localism, as all of us in this room do, what role is it of the Secretary of State and Ministers to be writing letters to local papers and issuing press releases, attacking a local authority for using its best judgment to determine what should be the council tax increase within the limit set by the Secretary of State and entirely within the law? I ask this question because I worry about whether, should a local authority be brave enough to hold a referendum, the Government would come in on the side of a no vote, or would act—as they should—in a strictly neutral way and say nothing at all.

We have regulations before us today on which the Electoral Commission has said it is entirely happy with the question. I do not think any of us should, or would wish to, argue with that. It has said that the Government have met almost all its recommendations. I hope that when the Minister replies he will tell us about those recommendations that have not yet been met and what the Government propose to do about those.

Lord Ahmad of Wimbledon: My Lords, I thank the noble Lord, Lord Beecham, and my noble friend Lord Tope for their contributions to this short debate. I did not expect that we would start talking about time on

7 Feb 2013 : Column GC95

desert islands with my right honourable friend the Secretary of State. Regardless of the desire to spend such time or not, I shall certainly share those sentiments with him when I next meet him. However, knowing him personally, I can say that his amusing stories provide good entertainment.

My response to the point made by the noble Lord, Lord Beecham, about the Daily Mail and comments allegedly made by the Secretary of State, is the standard adage that you cannot believe everything you read in the newspapers. I thank both noble Lords for their general support of the principle behind what is sought in this. In putting this forward, the Government are clear that it is about giving local people the final say on any excessive council tax increases.

In response to the point made by my noble friend Lord Tope about the outstanding issues with the Electoral Commission, the commission has raised some wider points about voter awareness. He referred to his specific experience of the electorate and I can also refer back to my former experience as a local councillor. We struggled, and not just on this issue, with communication and information sharing. As we go forward, we will work with the Electoral Commission to address these important issues. I reiterate that we take the commission and its views very seriously. We are continuing a constructive dialogue with the commission across all aspects.

The noble Lord, Lord Beecham, raised issues about police and crime commissioners and the principle of precepts. The Government intend to bring forward legislative proposals to ensure that in future excessiveness will be determined with reference to the basic amount of council tax from band D, including all levies. There will be an announcement of that in due course. When I say, including levies, in consideration of any excessiveness that will ensure that all levying bodies are subject to the same financial discipline as other tax-setting bodies. There will be more detail on that.

Lord Beecham: In the event that a levying body exceeds the limit, will the cost of the referendum be charged to that body or to the local authority?

Lord Ahmad of Wimbledon: If the noble Lord will allow me, I will come back to him on that specific question. Nevertheless, to date there has not been a council tax referendum, and we are confident that the proposed referendum question and the information available to voters will be fit for the purpose intended. However, if and indeed when a referendum is triggered, we will discuss the scope for an appraisal of the voter experience with the commission. That is an important issue. Whenever or if this occasion arises, what we learn from that referendum will set many thoughts in terms of how we move forward.

The council tax freeze scheme in 2013-14 will, one hopes, make it unlikely that there will be any referenda next year. However, if any authorities choose to reject the freeze and go on to set an excessive increase, the revised referendum question will ensure that voters are presented with a clear an unambiguous choice around it. The principles around which any excesses are dealt with are covered, and it is clear that any setting of

7 Feb 2013 : Column GC96

council tax above the 2% threshold would be subject to a referendum. Those principles are quite clear. If a local authority was to proceed and still take it forward, and perhaps not call the referendum, the Secretary of State would obviously review any future dealings with that local authority as well.

That said, there is general agreement on the principles. It is about giving local people the final say on any excessive council tax increases. That was a promise of the Government and one on which we are delivering. I beg to move.

Motion agreed.

Non-Domestic Rating (Rates Retention) Regulations 2013

Non-Domestic Rating (Rates Retention) Regulations 2013 15th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

2.47 pm

Moved By Lord Ahmad of Wimbledon

That the Grand Committee do report to the House that it has considered the Non-Domestic Rating (Rates Retention) Regulations 2013.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments

Lord Ahmad of Wimbledon: My Lords, the regulations we are debating today are one of the last remaining building blocks needed to implement the rates retention scheme on 1 April this year. We will also cover the Local Government Finance Act 2012 (Consequential Amendments) Order 2013.

Only a little over two years ago, this Government announced that they wished to end the current system of business rates being centralised. That is an ambition that those of us who have worked in local government have heard many times over the years but, up to now, with no expectation of it being achieved. With the passing of these regulations and others which will follow shortly, we will start to deliver this particular government intention and policy. It has been widely recognised in both local government and business that the current rating system does not provide an incentive for local authorities to support growth. Currently, when a new business or development moves into an area and generates extra business rates, that is passed on in full to central government—never mind the fact that the local authority may have to meet new costs associated with it. That is a system that has been widely criticised and will end on 1 April; from then, under the new business rates retention system, local authorities will retain 50% of their local business rates income. If local government uses its expertise and local knowledge to create a strong economic environment and encourage development and new businesses into its area, it will be able to share in the resulting growth in business rates.

In this House, we have had many opportunities to consider the new rates retention scheme, particularly through the Local Government Finance Act 2012. That scrutiny allowed us to make a number of amendments to the Bill to improve the operation of the rates

7 Feb 2013 : Column GC97

retention system. In particular, on 10 October last year, we brought forward a group of amendments to allow local government to use a “collection fund” approach to rates retention. This is a system that has been requested by local government. It is a system with which it is familiar and that all people who have served in local government know is used for council tax. The regulations we are considering today implement that system.

Throughout the development of the rates retention system, we have ensured that local government has been fully consulted on the principles behind the scheme and, importantly, its practical implementation. These regulations were developed in partnership with experts in local government and were published in draft for consultation last October. This proved to be a valuable exercise and we are confident that as a result the system will be workable. The rates retention regulations implement the collection fund system. They will also ensure that local authorities are fully funded for qualifying rate relief awarded in enterprise zones.

I turn first to the operation of the collection fund system. It provides stability for local government budgets. This is because, under these regulations, an estimate made by billing authorities of the coming year’s rating income is used to fix the shares paid to major precepting authorities and to be retained by the billing authority for its own budget. These amounts do not change in the year, even if the amount of rates collected changes. Thereby, authorities can plan with certainty for the coming year.

Of course, the estimate for the year is unlikely to be perfect and we can expect the actual amounts collected from ratepayers to be different. Under the collection fund system, that will generate either a surplus or a deficit. Again to provide financial stability that surplus or deficit will be rolled forward into the calculations for future years. This avoids sudden changes in a local authority’s budget.

The rates retention regulations also provide that the central share will be paid to central government in 10 monthly instalments, in line with the instalments of rates income paid by ratepayers to local government. The same instalment schedule will be used for other payments to and from central government in the rates retention system. The regulations also offer that schedule for use between billing authorities and precepting authorities, but we have ensured that, if they wish, they can agree different arrangements.

I turn to the funding of relief in enterprise zones. The regulations ensure that local authorities are fully funded for qualifying rate relief in enterprise zones, which will provide an important boost to economic growth across the country. The Government have promised that ratepayers moving into an enterprise zone before 1 April 2015 can receive up to five years of rate relief, up to the state aid de minimis limit. However, under the rates retention scheme, local authorities would normally have to share in the cost of that relief. We have agreed that central government should fund enterprise zone relief in full. Therefore, these regulations allow local authorities to deduct from the share of rates income they pay to central government their share of

7 Feb 2013 : Column GC98

the cost of relief in enterprise zones. As a result, local authorities will be no worse off financially from central government’s policy of awarding rate relief in enterprise zones.

I turn briefly to the Local Government Finance Act 2012 (Consequential Amendments) Order 2013. These are technical amendments that, for want of a better term, tidy up the draft regulations. They make a number of technical and consequential changes to other legislation, where it refers to the current system of redistributed non-domestic rates. The draft order replaces those soon-to-be-obsolete terms with references to the new rates retention system and locally retained non-domestic rates. The order also makes technical changes to the way that authorities must calculate their council tax requirements to ensure that these calculations correctly reflect the rates retention scheme.

In conclusion, these regulations will provide local authorities with in-year stability of income from the rates retention scheme through the collection fund system, and will ensure that local authorities are fully compensated for the cost of qualifying rate relief in enterprise zones. They have been discussed in detail with local government and utilise systems that we know work well for council tax.

Lord Beecham: My Lords, I am sure that those of my constituents in the west end of Newcastle who have been glued to BBC Parliament during the course of these 20 minutes will have been enthralled by the presentation. I congratulate the Minister on taking us through an inherently complex, not to say abstruse, area of local government finance and legislation in the clear way he has. I have nothing really to say, he will be relieved to hear—as, no doubt, my constituents will be—about the regulation. It seems eminently sensible.

I want to sound a slight note of warning about the arrangements for enterprise zones. I very much welcome the provisions here, but we will be returning at some later point to the safety net in terms of business rates, which brings to mind the danger that businesses relocating into the enterprise zone will be vacating premises that may stand vacant and not produce a business rate income for the local authority, thereby contributing to the amount—which at the moment stands at 7.5%—above which compensation will be paid. That is not so much in relation to today’s regulations, I have to confess, but I take the opportunity of drawing the Government’s attention to the potential complexities to which these regulations might add and the probable inequity of a limit set at that level. This is just a gentle warning, but I think that in due course a committee will want to revert to that issue. However, in relation to these two sets of regulations, we have no objection.

Lord Ahmad of Wimbledon: My Lords, first, I thank the noble Lord, Lord Beecham, for his support and for the sterling job the noble Lord does in representing the voice of the people of that area.

That said, this is something from my experience in local government. I know that when I served as a councillor, we lobbied long and hard to ensure that local authorities that work hard to attract new income

7 Feb 2013 : Column GC99

and businesses into their area were allowed to retain and reap the rewards of their efforts in retaining business rates.

The noble Lord, Lord Beecham, as ever, reminds us that there are issues around the levy. I note what he said about the 7.5% safety net regulation, and I am sure that we will return to discussions on that. I am minded of the total support for the specific regulations and am thankful for the support of the Committee.

Motion agreed.

Local Government Finance Act 2012 (Consequential Amendments) Order 2013

Local Government Finance Act 2012 (Consequential Amendments) Order 201315th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

2.58 pm

Moved By Lord Ahmad of Wimbledon

That the Grand Committee do report to the House that it has considered the Local Government Finance Act 2012 (Consequential Amendments) Order 2013.

Motion agreed.

2.58 pm

Sitting suspended.

Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012

Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 201215th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

3.06 pm

Moved By Earl Howe

That the Grand Committee do report to the House that it has considered the Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) Regulations 2012.

Relevant documents:15th Report from the Joint Committee on Statutory Instruments

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, these regulations make provision for three things: first, for local authorities to take certain steps in the exercise of public health functions; secondly, the making and recovering of charges in respect of certain steps taken by local authorities in the exercise of their public health functions; and, thirdly, a duty on certain providers of health and social care services to allow local Healthwatch organisations or contractors to enter and view their premises. The regulations are affirmative and apply to local authorities in England only.

I start by explaining the mandatory aspects of the regulations. Part 2 sets out certain steps which must be taken by local authorities when exercising their own, or the Secretary of State’s, public health functions.

7 Feb 2013 : Column GC100

These include the provision of arrangements for weighing and measuring children, health check assessments, sexual health services, a public health advice service for clinical commissioning groups and information and advice in relation to arrangements for protecting the health of the local population.

Although the regulations are primarily concerned with steps to be taken by a local authority in the exercise of its own functions, in some cases the regulations require the local authority to exercise a Secretary of State public health function—for example, arranging contraceptive services as part of local authority sexual health services. Regulation 2 ensures that the authority can exercise the Secretary of State’s ancillary powers to assist the delivery of that function, for example, exercising the power to commission those services from a third-party provider.

Regulation 3 requires local authorities to provide for the weighing and measuring of certain children in their area by reference to the age of the children and the type of school which they attend.

Regulation 4 imposes a duty on local authorities to provide health checks to be offered to eligible persons in their area, the relevant criteria being a person’s age and existing health status. Regulation 5 makes provision for the conduct of the health checks, including the dissemination of information about dementia to older persons.

Regulation 6 requires local authorities to provide open access sexual health services in their area. That general duty does not extend to offering services to persons undergoing sterilisation or vasectomy procedures, or to services for treating or caring for persons infected with human immunodeficiency virus.

Regulation 7 creates a duty on local authorities to provide a public health advice service to any clinical commissioning groups in their area in order to assist CCGs to commission health services. The range of matters which the advice service covers will be kept under review and agreed between the local authorities and the CCGs.

Regulation 8 imposes a duty on local authorities to provide information and advice to responsible bodies and other relevant bodies within their area in order to promote health protection arrangements against any threat to the health of the local population, including infectious disease, environmental hazards and extreme weather events. We expect the local authority director of public health, with Public Health England, to lead the initial response to most public health incidents at the local level. When performing this duty, the local authority will be exercising the Secretary of State’s duty as to protection of public health, as set out in Section 2A of the National Health Service Act 2006.

Noble Lords may find it helpful if I describe the context of these regulations. The Health and Social Care Act 2012 gives upper tier and unitary local authorities a new duty to take appropriate steps to improve the health of their populations and certain other public health functions. In general, the intention is to permit the greatest degree of flexibility to local authorities to shape services to meet local needs. But there will be certain circumstances where a greater degree of uniformity is required—for example, where

7 Feb 2013 : Column GC101

services must be provided in a universal fashion if they are to be provided at all, or where certain steps are essential to the efficient running of the new public health system.

We have consulted widely on these mandatory functions and set out our conclusions in July 2011 in the document Healthy Lives, Healthy People: Update and Way Forward. We will also issue appropriate guidance to support local authorities in delivering these functions.

Turning to Part 3 of this instrument, Regulation 9 makes provision for a local authority to make and recover charges in respect of certain steps taken in the exercise of its duty as to health improvement. However, there are some circumstances where it is legitimate for local authorities to charge organisations—for example, for providing information and advice to local employers—and the regulations permit charging in such cases. The regulations also permit individuals to be charged for services that do not have the purpose of improving their health. This might include training in public health.

However, I should stress now that this regulation means that no individual can be charged for steps taken to improve their health, nor will local authorities be able to charge organisations or individuals for anything done in the exercise of the mandatory functions under Part 2 of the regulations. We have previously made clear our position on charging for health services: there will be no new charges during the current Parliament. Regulation 9 is entirely consistent with that commitment.

We have prepared guidance for local authorities which makes it clear that anyone who was receiving a health improvement service from the NHS free of charge will continue to receive it free of charge when responsibility for it transfers to local authorities. Conversely, the guidance also makes clear that the effect of the Act and these regulations is not to convert large swathes of existing activity that local authorities may charge for—such as leisure or social care—into health services that must now be provided free of charge.

On the regulations covering entry and viewing by local Healthwatch representatives, Part 4 imposes a duty on certain providers of health and social care services to allow authorised representatives of local Healthwatch or its contractors to enter and view certain premises owned or controlled by them. This gives local Healthwatch the ability to enter premises where health and social care services are being provided in order to observe activities and gather views from people who use those services. This will enable local Healthwatch to feed back evidence about the quality of care provided in a report with recommendations to providers and commissioners about how the quality of that care can be improved.

We are clear that local Healthwatch is not an inspectorate. It does not have the status of a regulator—that is the role of the Care Quality Commission. We need to avoid duplication of roles and confusion among service users or service providers as to the various roles and responsibilities within the system. We are giving local Healthwatch a role that is different from

7 Feb 2013 : Column GC102

and complementary to that of the regulator. It is there to listen to the voice of patients, service users and residents on how their services can be improved.

3.15 pm

Authorised representatives of a local Healthwatch or its contractor are those who have been authorised in accordance with arrangements made by a local authority or a local Healthwatch organisation. They will have received training for this role and Criminal Records Bureau checks will be done.

It is important to understand that, having entered premises, an authorised representative has a duty not to act so as to compromise the privacy and dignity of service users or their care. This is covered in Regulation 13. Regulation 11 provides that there is no duty on services providers to allow entry if these matters would be compromised by the presence of an authorised representative.

We have extended this role to local Healthwatch contractors in the legislation to permit flexibility where, for example, a local Healthwatch has contracted with people who have been involved in local involvement networks, or LINks, and who have been authorised representatives. This is about being able to build on existing skills available and not necessarily having to start from scratch.

Potentially, local Healthwatch can make announced and unannounced visits. We know of LINks that have made unannounced visits giving as little as an hour’s notice and of others who have been invited to visit care premises. Therefore, within bounds—for example, reasonableness—local Healthwatch has flexibility, but what lies at the heart of this is the ability of a local Healthwatch to go and get people’s views recorded, heard and acted on.

I hope very much that your Lordships are reassured that we recognise the importance of this activity for local Healthwatch for it to be able carry forward the role of LINks effectively. In conclusion, I commend these regulations to the Committee.

Lord Willis of Knaresborough: My Lords, I rise in this packed Chamber at this late hour to discuss these regulations. I say that light-heartedly, but the raft of regulations going through the House as a result of the Health and Social Care Act 2012 is incredibly important. The fact that the regulations are being very effectively scrutinised by this House demonstrates the commitment to getting the implementation of the 2012 Act right, so my comments this afternoon on behalf of the Liberal Democrats are meant to be helpful to the Minister. I will do my best.

There is significant support for these regulations, not least because there is significant agreement among the political parties that the direction of travel for local authorities to be at the heart of a renewed emphasis on public health is absolutely right. It always struck me, as a former council leader, as bizarre that I had responsibility for the efficient collection and disposal of refuse but that protecting and promoting the health of the people whom we represented was a peripheral activity. Indeed, when the Government introduced the scrutiny committees, supported by the Labour Party,

7 Feb 2013 : Column GC103

they emphasised the importance of local politicians taking an interest in health. That engagement—certainly for my local area—was incredibly helpful and supportive. I regard this as the next step. Local authorities should be involved in the scrutiny of health, and most activities from economic generation to housing and education are all part and parcel of improving public health; they are not separate silos.

Before I deal with some of the specific regulations within this SI, I raise an issue which is not in the regulations but which requires a response from the Minister. I refer to public health research, and he will not be surprised that I raise it. In some ways, public health research has gone under the radar—I confess a lack of emphasis myself—yet if we are to improve public health, and local authorities are going to be at the heart of that agenda, it is crucial that research is part of it. Traditionally, local authorities have not funded, nor have they been responsible for research in public health. That resource has come from the primary care trusts and SHAs.

Currently, 187 public health clinical academics with honorary contracts, and 26 academic dentists with honorary NHS contracts are working in England. Of those, 56 clinical academics and four dentist academics are part or wholly funded by PCTs and SHAs. However, that funding—some £15 million—has now been swept up by being transferred to the Commissioning Board, which, as the Minister knows, does not have a mandate to honour the honorary contracts determined by the Follett principles. In fact, public health research is not in the Commissioning Board’s mandate. That responsibility, rightly, lies with Public Health England. Fifteen million pounds is of course a relatively small sum—loose change to the Commissioning Board—but it is the main source of funding for vital public health research which can be commissioned by public health directors in local authorities. If we are serious about local authorities commissioning research—and I think that these regulations are serious about that interface—they must have access to research capacity.

This is an urgent issue, which is why I raise it at the beginning of my remarks. The existing honorary contracts legally run out on 31 March, and continuity over existing research programmes is absolutely crucial unless we are to see the abandonment of key strands of public health research. Will the Minister say what plans he has to resolve this very small but important issue? In particular, will he instruct the Commissioning Board to transfer the £14.7 million of public health funding that it has obtained from PCTs and SHAs to Public Health England as an interim measure until a more secure funding stream can be found for public health research?

Continuing the theme of research, perhaps I may seek clarification on two other matters in the current regulations. This SI gives local authorities powers as directed by the Secretary of State which are in effect transfers of existing powers. They are largely welcomed and give much needed continuity. Therefore, I do not think that there is any argument about the transfer of those powers. However, a person who has one or more of the declared morbidities will be checked on a more regular basis—that is, if you have hypertension, you

7 Feb 2013 : Column GC104

will be checked annually. However, will the broader health check given to eligible persons be carried out on non-eligible persons on a five-yearly basis or will it be in the sequence of their morbidity? In other words, if you have hypertension and are checked annually, will you have all the other health checks at the same time, will you have to wait for five years to have them, or will you not get those other checks? The regulations do not make that clear. This is important because the health check data obtained via Regulation 5(3) is valuable not only for individual patients but for research groups.

Indeed, with regard to the information obtained under Regulation 5(3), will the data automatically be made available in an anonymised format, with open access for research groups, but allowing for patient opt-out? If so, will it be the responsibility of the Department of Health, the NIHR, the Commissioning Board or Public Health England to prescribe a format for data collection and storage? I make that point because, if the information is collected in different formats, it becomes less valuable in terms of interrogating it for effective research.

Let me move on to Regulation 6, which I am somewhat confused by the thinking behind. While I fully understand why services such as abortion, sterilisation and vasectomy should be moved into the NHS, given their “clinical and surgical nature”, surely the same could be said about specialist STD management and specialist contraception services, which carry significant clinical risks—not to mention a minefield of legal and ethical dimensions. For instance, IUD insertion management can be an incredibly invasive and difficult issue. The decision to ask local authorities to exclude HIV patients from other sexual health services and treatment for other STDs appears to be at odds with offering patients a comprehensive sexual health service. Why are we separating those out? There is confusion over the implication for people who move out of an area to be tested for HIV, for instance—a more likely scenario in places such as London, Manchester and Birmingham, where specialist clinics with the latest technology quite rightly are emerging. Yet there is confusion over where people will be treated if they are tested elsewhere and how that will be cross-charged.

Who will have responsibility for treating an HIV person with another STD? Will patients continue to have the right to access sexual health services, including related treatment and care, wherever they choose in England, regardless of their place of residence? Will there be no loss either in expertise or in the infrastructure needed to commission complex sexual health services, and will those services and pathways of care be fully integrated? I ask that because small authorities may not have the capacity to be able to have that range of services. Will they therefore be able to commission those services elsewhere and send people from one local authority to another? Will the pressures on local authority budgets not simply result in a diminished quality or availability of care?

How do we guarantee that what we are promising in the regulations can be delivered, given the pressure on budgets? For instance, 25% of the budget for public health is likely to be spent on promoting and supporting

7 Feb 2013 : Column GC105

the treatment of sexually transmitted diseases and sexual health. That represents a huge amount of the budget, and for some authorities, particularly in large, deprived urban areas, the proportion could be even greater. Will there be a seamless integrated pathway of care for people living with HIV? We cannot ask such people to be treated differently to any other group in the population, and that is what these regulations appear to be saying. Perhaps the Minister can give me some comfort on that.

As regards Regulation 8, health protection is at the core of the new arrangements and, as I said earlier, none of us, of any political persuasion, do not very strongly support the direction of travel of the Government. Local authorities are enthusiastic about this role of being responsible for health protection. However, an effective response to an early outbreak or emergency requires clear roles and responsibilities, strong leadership and timely intervention. This regulation does not appear to do any of those things. Indeed, rather than building on the DoH guidance of September 2012 on health protection in local government, in which the Government clearly stated that local authorities would be expected to ensure that partners have effective plans in place and that the director of public health would have a leadership function, these regulations give local authorities no more responsibility than requiring other bodies to draw up plans and requiring the local authorities themselves to issue guidance. There is nothing here to say whether plans will be mandatory or optional. That is hardly encouraging if a major crisis develops with potential or actual loss of life. Would the director of public health have a recourse in law to say, “Not me, guv, I asked them all to issue guidance and they did so and therefore my responsibility is over.”?

3.30 pm

Will the Minister assure me that local authorities, through their directors of public health, will have an active role in protecting health at local level and a statutory responsibility for leadership? Will that role include giving local authorities responsibility for ensuring that all local partners have health protection plans in place and that the local response is co-ordinated effectively? If they are given that mandatory requirement, they will do it. Will he confirm that he will issue guidance to that effect? If the local authority will not be responsible for ensuring that plans are in place or that local responses are co-ordinated, will the Minister explain who will be responsible within those local areas, if it is not the director of public health?

On Regulation 9, I strongly welcome the powers of local authorities to cross-charge for services they offer. I think that that is absolutely right and proper as this will help those authorities which develop specialist services. If one authority in London offers a specialist service for diagnosing sexual health problems and that attracts clients from the rest of London, I think that is a good thing. It is right to have a Rolls Royce service and cross-charging for that seems to me important to sustain a revenue stream.

I am pleased—as I am sure everyone else is—that no service which is currently free will in future be charged for and that no new health service will be charged

7 Feb 2013 : Column GC106

for either. However, it would be useful for my noble friend to repeat those assurances for the record. The draft regulations state:

“Where a local authority exercises its functions under section 2B of the Act, it may make and recover charges in respect of any of the steps which are prescribed under this regulation”.

I appreciate that Regulation 9(3) clarifies this with regard to future services to improve public health. However, in what circumstances does the Minister envisage that a service to improve public health could be charged for? He mentioned training in his opening remarks. If, for instance, a new contraception service is introduced, would there be a charge for training people to provide that service? Who would pay for that training? Would it be the local authority or the Department of Health? Where would the budget come from? It is conceivable that a new treatment may become available and yet the local authority or, indeed, individuals would have to pay for the staff delivering that treatment to be trained. Will the Minister provide assurances that public health services provided by local authorities will remain subject to the provisions of Section 1(3) of the National Health Service Act 2006 and be free at the point of delivery, and read that into the record? Will he confirm that powers under Section 2B of the Health and Social Care Act 2012 will not be used to impose charges for services that are currently provided free and that individuals will face no further charges for services for improving an individual’s health?

Finally, I come to Part 4 of the regulations, concerning the interface between Healthwatch England and service providers. I am not going to rerun the debates on Healthwatch England, but it is disappointing that we see its role in these regulations only with regard to premises. In other words, Healthwatch can make sure a counselling room is clean and tidy with the necessary flowers and fish tank, but the fact that the person delivering the service may be unqualified, incompetent or even dangerous, or all three, is of less consequence. I exaggerate—not for the first time—but there is nothing in these regulations about the regulation of public health specialists other than medics. The Government made a commitment last January to regulate, by statute, the registration of public health specialists from backgrounds other than medicine and dentistry and acknowledge regulation as a key part of the infrastructure of the new English public health system which starts in April 2013.

We understand, from a letter from Anna Soubry, the Minister for Public Health, that there is, as yet, no planned date for this work, which could take at least two years to complete, and that there are no plans to start until the department’s work on,

“a number of high-priority programmes”,

was completed. The implication is that public health regulation is not a priority, particularly where it concerns individuals other than medics in delivering those services. There is an increasing number of individuals and organisations offering health-related services who are not regulated, trained or accountable, and that is clearly unacceptable. Regulation will provide a crucial mechanism for identifying problems at an early stage and providing opportunities for these to be addressed. The public have a right to be assured that, if things go

7 Feb 2013 : Column GC107

wrong, there will be accountability, sanctions and procedures to prevent future mistakes. Can the Minister provide reassurance that the statutory regulation of public health specialists from backgrounds other than medicine and dentistry will be in place by the end of 2014, which seems a reasonable timescale? When will work actually commence on the necessary processes for ensuring the implementation of this statutory regulation?

Lord Collins of Highbury: I express my thanks to the noble Lord, Lord Willis, for his comprehensive contribution this afternoon. He has covered quite a lot of the questions that I would have asked and there is no point in repeating them. However, I should like to pick up some specific points.

First, in relation to sexual health, like the noble Lord, Lord Willis, we welcome these regulations, particularly the very important principle of the maintenance of open access. HIV has never respected local authority boundaries, nor have other sexually transmitted infections. I have spoken in the Chamber of my concerns about how the new system of commissioning and fragmentation can put at risk regional and sub-regional co-ordination of HIV prevention work. This morning, I visited Positive East, a community facility based in the East End, which does excellent work in a number of boroughs in the east of London. It also participates in outreach and preventive programmes across London and it remains particularly concerned about the future. I appreciate that, while HIV Prevention England is commissioned by Public Health England to run a national HIV programme and local authorities will commission local HIV prevention and testing services, there remains a gap in regional co-ordination. This was highlighted in a health Question in the other place on 15 January, when the Minister assured Members of Parliament that this regional work would continue, but the detail on whether there would be national leadership remains unclear.

What steps will the Government take to encourage co-ordination of sexual health services across boroughs and localities? For example—this was raised by the noble Lord, Lord Willis—25% of HIV prevalence in the UK is in London, which previously had an integrated pan-London programme for HIV prevention. What measures have been put in place, as the noble Lord has already said, to facilitate cross-charging between sexual health clinics for out-of-area residents?

An issue which arises from these regulations is the concern that has been expressed about the pressure on budgets and, certainly, consistency across the country. I am acutely aware that, come the local elections, there will be not so much prioritising of these important issues. This could be a concern. I do not think that sexually transmitted infections have been the highlight of many party manifestos, but they are important issues in public health.

There is no mention in the regulations about the quality of open access health services and the minimum expectation that the Government have of locally commissioned sexual health services. The Minister has repeatedly said that the answer lies in localism—in local circumstances—and that these issues are best

7 Feb 2013 : Column GC108

addressed locally. However, there is a requirement to ensure that there is proper maintenance of standards on these issues.

Will there be any obligations or duties on local authorities to promote HIV prevention? Currently there are no known incentives on prevention, only on tackling late diagnosis, in the new public health outcome framework.

The other issue which I am particularly concerned about and which I have raised in the House is the question of HIV testing. This is highly fragmented under the new NHS arrangements. I have asked the noble Earl before, and I repeat: how will the Government ensure that HIV testing recommendations from NICE and the British HIV Association are consistently implemented across the country? In some areas of high prevalence it is recommended by NICE that HIV testing should be routinely offered in primary care settings. Will this be implemented? How will this work be funded and provided?

The noble Lord, Lord Willis, also touched on the issue of the treatment of people living with HIV and the treatment of other sexually transmitted infections they may have. I am not sure how that will be covered.

I am also concerned about the question of offering services and treatment through self-management, if you like, for people living with HIV. That is one of the key things I saw at Positive East today. This is not only about the supply of drugs and treatment but about employment advice, general housing conditions and other issues that we have already covered in debates in the Chamber. The funding and support of those activities concerns me. Where is it going to fall? Who is going to take responsibility? Fragmentation is a real worry.

I shall not cover specific local government issues around public health because the noble Lord, Lord Willis, has covered them excellently. However, I wish to pick up on some of the points that the Minister raised in relation to local Healthwatch and its access. We had a major debate on Healthwatch this week, which preceded the Statement on the Francis report on Mid-Staffs. Given the measures outlined in these regulations, will the department review them in the light of the recommendations made by Francis? Issues were raised by Francis which, I suspect, are not adequately covered by the regulations, particularly with regard to access.

3.45 pm

The Minister referred to wanting to have a clear separation of the CQC role from that of Healthwatch. As a patient organisation, particularly in the light of the Francis report, Healthwatch needs to be certain that the CQC is doing its job. It is not a neutral thing. It is not a case of saying, “We’re happy, we don’t need to do that because the CQC is doing it”. Local Healthwatch is not the regulator; it is the voice of the patient. It is the patient who is everywhere and is able to see everything. The idea that we can limit access in the way that is being suggested in these regulations is not altogether clear. Certainly, NALM has raised some of these issues with me. There is an exclusion,

“in respect of any premises, or parts of premises, if the presence of an authorised representative on those premises, or those parts of premises, would compromise … the effective provision of care services”.

7 Feb 2013 : Column GC109

What does that mean? What is the role of local Healthwatch? Would the CQC be excluded on the same basis? These are points that NALM has raised with me.

There is another issue about parts of premises that are excluded. We talk about the communal parts of the premises, but there is an exclusion,

“in respect of any premises, or parts of premises, at any time when care services are not being provided on those premises or those parts of premises”.

When premises are closed in order, for example, to renovate or decorate, sometimes it would be highly appropriate for a local Healthwatch to look at the progress of such renovation or at whether it has been done to an appropriate standard, particularly if there have been complaints or issues before.

There is another exclusion,

“if, in the opinion of the services-provider, the authorised representative in seeking to enter and view, or observe the carrying-on of activities on, premises is not acting reasonably and proportionately”.

The Minister mentioned this point but, in the light of the Francis report and what we have heard of Mid Staffs, who is making that judgment about “reasonably and proportionately”? A representative of NALM made the point to me that he was reported by a nursing home manager simply for taking notes as he walked around. That was considered to be not reasonable. I think it is reasonable and proportionate. That concern has been raised by LINk representatives.

LINk representatives have raised other points about areas of premises that might be considered out of bounds. If we are talking about community facilities, then what about kitchens? You go to see the quality of care of social care residents and you are told that you can go into the living or lounge area—and you can see how neat and tidy that is—but you are not permitted to go into the kitchen or other areas where quality really matters. I am not sure about the logic of that.

That covers all the major points. I reiterate that in general terms, as the noble Lord, Lord Willis, has represented it, my party shares the consensus about how important these changes are in terms of public health. We welcome the regulations, but we think that the issues that have been raised with us and that I raised today should be addressed.

Earl Howe: My Lords, I am grateful to both noble Lords, my noble friend and the noble Lord, Lord Collins, for their comments and questions, and in particular their overall welcome to these regulations. Quite a number of questions and issues have been raised, and I will endeavour to cover as many as possible now, but if noble Lords will allow I will follow up this debate with a letter on some of the more detailed comments, when I have not got the answers readily to hand.

I was grateful to my noble friend Lord Willis for his constructive opening remarks and for putting these regulations into their fuller context. He is right to flag up the wider dimension that the context of these regulations opens the way to. I begin where he did, on public health research funding. I quite agree about the importance of maintaining that work. Currently, PCTs

7 Feb 2013 : Column GC110

and strategic health authorities fund public health research from their local spending allocations, in particular paying for public health academic posts, located within academic and research institutions. I can tell him that, in finalising spending plans, officials from the department, from Public Health England and the NHS Commissioning Board are working together to identify and continue this funding for the coming financial year. As soon as I have further news on that front, I will be happy to share it with my noble friend. He can be sure that it is very definitely on everybody’s radar.

My noble friend went on to discuss Regulation 4, which relates to health checks. First, the requirement to offer a health check is to offer the check within five years of a person becoming eligible for it. However, a local authority could, if it wished, offer checks to non- eligible persons, if it considered it appropriate to do so. Local authorities have that freedom; all the regulations do is to lay down the minimum requirements.

Both noble Lords spent some time discussing sexual health services. Improving sexual health is clearly a key part of improving public health and well-being. Our view was, and is, that local authorities are particularly well placed to commission sexual health services, as they will also be commissioning services for other public health issues such as drug and alcohol misuse, weight management and quitting smoking. They are also best placed to make the wider links between sexual health and well-being, such as to education, leisure and family support. Clearly, they will also want to work collaboratively with commissioners of sexual health and HIV services that will remain in the NHS. During our consultation there was strong stakeholder support for local authority commissioning of sexual health services. While it is important to get the arrangements absolutely right—we are clear that there are some issues of detail that we need to resolve—there is broad support out there for the decision that we have taken on this front.

The new commissioning arrangements will allow each organisation—local authorities, clinical commissioning groups and the NHS Commissioning Board—to play to their own strengths and to commission high-quality services for patients. Local authorities will commission most sexual health services: they will be able to make the crucial links between sexual health and other public health services, as I have mentioned. Clinical commissioning groups will commission abortion, sterilisation and vasectomy because these services need to be governed by robust systems of clinical governance, which currently exist in the NHS. HIV treatment will be commissioned by the NHS Commissioning Board, which has specialist expertise in commissioning high-cost, low volume services such as HIV treatment. At a local level, the health and well-being board will bring commissioners together to ensure that there is no fragmentation or gaps in service provision, a concern that the noble Lord, Lord Collins, understandably raised.

As noble Lords will know, these commissioning arrangements were set out in a local government fact sheet on commissioning responsibilities which we published at the end of 2011. However, I emphasise that we have worked, and will continue to work, closely with colleagues in the NHS and local councils to make

7 Feb 2013 : Column GC111

sure that local authorities and other commissioners experience a smooth transition to their new responsibilities. We intend to conduct a further consultation in 2013 on whether clinical commissioning groups are best placed to commission abortion services in the longer term.

The noble Lord, Lord Collins, mentioned comorbidities, as did my noble friend. A person with comorbidity— let us say HIV and another condition—should clearly receive treatment from the most appropriate source. The two services will often be under the same roof in practice but it is important to ensure that the commissioning of those services is joined up for such patients.

On the issue of charging—both noble Lords asked about this—the first point to emphasise is that an individual who was receiving a health improvement service from the NHS free of charge will continue to receive it free of charge when responsibility for it transfers to local authorities. The kinds of activity that local authorities can charge for are as follows: providing information and advice; providing services or facilities designed to promote healthy living; providing or participating in the provision of training for persons working in, or seeking to work in, the field of health improvement; and making available the services of any person or any facilities—for example, providing staff and facilities to enable a company to conduct public health research.

4 pm

Take, for example, a company that wants to offer its staff free help to stop smoking as part of their employment package. A local authority could under its new public health functions decide to provide the company with that service to help individuals to address behaviour that is detrimental to their health. The regulations allow the local authority to recover its costs from the company, but not to make a profit. Without the regulations, the local authority would either have to provide the services to the company free or, more likely, not at all. If the local authority provides a smoking cessation service directly to the public, the regulations will not allow it to charge.

It is worth noting that the regulations specify that a local authority can charge for such activity only where the information, advice or other service or facility has been requested by or agreed with the recipient. A local authority cannot, for example, send unsolicited advice or information to an organisation and then impose a charge.

Local authorities will not be able to charge a person for any service intended to improve that person’s health. If an employer wants to offer its staff a service, then it is open to the local authority to provide that service to the company under its public health duty and to recover its costs, as I have mentioned, but budgets for training staff will, as now, come from a number of sources and local authorities will be able to provide free training if they wish.

My noble friend asked about Section 1(3) of the 2006 Act. Section 1(3) of the Act will apply to local authority public health services and the authority can charge only in the circumstances in Regulation 9 or under existing regulations for prescription and other NHS charges.

7 Feb 2013 : Column GC112

He asked about local directors of public health. We expect local authorities and directors of public health to take the leading role in responding to incidents. If the local authority does not believe its advice is being heeded, it will have a duty to escalate the matter to Public Health England and the Secretary of State, who will consider appropriate intervention. There is that backstop arrangement, which should reassure my noble friend and, I hope, the public that there is no question of a service locally being delivered poorly and there being no intervention to put that right.

Lord Willis of Knaresborough: Will the Minister state categorically that, in the event of a major public health incident within a local authority area, it will be the director of public health who has the lead responsibility in co-ordinating a response to that event?

Earl Howe: We expect that that will be the case but it will depend on the nature of the incident and how big a public health emergency we are dealing with. We might find, for example, that if it is an emergency that covers more than one local authority area, a particular director of public health will take responsibility on behalf of all the local authorities. We would expect Public Health England to be on the scene for any major incident and to advise, but the central point is that there has to be somebody with ultimate responsibility for what goes on on the ground. Clearly, who that person is will depend on how major or minor the incident is and the nature of that incident. It would be open to the director of public health to delegate certain functions but, again, we would expect the director of public health to retain an oversight role to make sure that functions were appropriately performed.

The noble Lord, Lord Collins, referred to the important area of prevention. He expressed concern about local authorities investing in prevention work. I was grateful to him for what he told me about the work currently being done in London on HIV prevention. The mandate to the NHS Commissioning Board does not specifically cover prevention, but local authorities will want to undertake prevention activity because this will improve the health and well-being of their population and reduce costs. Sexual health services are also a preventive activity in their own right—for example, the provision of contraception to prevent unplanned pregnancy and the testing and treatment for STIs to prevent onward transmission.

On HIV, one of the public health outcome indicators is to reduce late HIV diagnosis, and prevention activity can clearly play a crucial role in that. We are aware that in London, in particular, councils will be working together to review arrangements for pan-London HIV prevention work. The noble Lord may well be aware of the work going on to underpin the current pan-London HIV programme. The current programme comes to an end at the end of March and this has been known by all the providers and voluntary sector organisations for some time. Therefore, a needs assessment of pan-London HIV prevention was undertaken in 2011. London Councils and the mayor’s office are absolutely sighted on the need for effective HIV prevention in the capital and urgent discussions are under way about taking this forward from April.

7 Feb 2013 : Column GC113

HIV services will continue to be commissioned by the NHS. More generally, local authorities will be able to enter into cross-charging arrangements if they wish. In London, we introduced secondary legislation last year to allow the Greater London Authority to undertake public health activity in partnership with the boroughs, and that was obviously designed to facilitate co-operation across boundaries.

The noble Lord asked how we would ensure that HIV treatment was standardised across the country and whether we were intending to publicise HIV prevention. Local authorities will certainly be able to run awareness and information campaigns, and they will be funded to do so. HIV treatment will, as now, be commissioned by the NHS and be informed by the existing standards and guidance.

My noble friend mentioned the letter from my honourable friend Anna Soubry, which stated that there are no plans to do anything on the regulation of public health specialists at present. He sought reassurance on the regulation of public health specialists being in place by the end of next year. During the debate on the Health and Social Care Bill we made the commitment to regulate non-medical public health consultants after conducting a consultation. That remains the case. However, the process will take 12 to 18 months to complete and so, at this point, I am reluctant to commit to a particular date for implementation. I should be happy to follow up that comment in a letter to my noble friend.

He also raised the issue of the interface between Healthwatch England and services providers. Part 4 refers to the duty on services providers to allow entry to local Healthwatch rather than Healthwatch England. If local Healthwatch representatives observe anything that might be unsafe or poor care of any kind, they can report those matters directly to the Care Quality Commission to investigate. I hope that that addresses an issue also raised by the noble Lord, Lord Collins, because it is clearly very important for local Healthwatch not only to have a hotline to the CQC where necessary but to co-ordinate its work, where relevant, with that of the CQC—exactly as LINks do at the moment.

The noble Lord, Lord Collins, asked me about local Healthwatch in the context of the Francis report, published yesterday. All I can say at this point is that, as the Leader of the House said yesterday, my right honourable friend the Secretary of State will be considering all the recommendations in Robert Francis’s report in detail over the coming weeks. Clearly, we will need to reflect very carefully on the implications of his recommendations and we will be providing an initial response next month.

Finally, the noble Lord, Lord Collins, raised the issue of local Healthwatch being able to enter and view premises and, in doing so, access all areas in those premises—for example, areas being renovated, kitchens and so on. Local Healthwatch representatives will be able to access communal areas but there are restrictions based on the privacy of residents or patients and the need to respect that, and on intruding on the provision of care while it is being delivered. The enter-and-view powers are activities for the purposes

7 Feb 2013 : Column GC114

of Section 221 and relate to service improvements. These regulations support local Healthwatch’s role in that respect.

On the issue of the reasonableness of local Healthwatch’s enter-and-view activities, the service provider’s view has to be one that is held reasonably; otherwise the provider would be acting unlawfully. Regulation 13 requires local Healthwatch, when on any premises, not to act in a way that would compromise “effective provision of care” or the,

“privacy and dignity of any person”.

These terms bear their ordinary meaning and, in our view, they are clear. They have worked well on the ground so far. They are, of course, based on the 2008 regulations and we are confident that they will serve the new system well.

I am aware that there are several matters of detail that I have not covered but I shall, as promised, look carefully once again in Hansard at all the questions posed by both noble Lords and write accordingly.

Motion agreed.

Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2013

Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2013 15th Report from the Joint Committee on Statutory Instruments

Considered in Grand Committee

4.14 pm

Moved By Baroness Stowell of Beeston

That the Grand Committee do report to the House that it has considered the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2013.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments

Baroness Stowell of Beeston: My Lords, the Crime (International Co-operation) Act 2003 provides a framework within which the UK can make and execute requests for mutual legal assistance. In an effort to further improve international co-operation, we are seeking to designate the Republic of Armenia, the Republic of Chile and Ukraine as participating countries for the purpose of various sections of that Act. The designations that will be made under the order are necessary as these three countries have ratified the second additional protocol to the European Convention on Mutual Assistance in Criminal Matters 1959.

This convention is an important instrument as it forms the international basis for numerous incoming and outgoing requests. The second additional protocol is aimed at strengthening mutual legal assistance among parties and widening the scope of available mutual legal assistance. Under the 2003 Act, a state must fall within the definition of participating country contained in Section 51(2)(b) of the Act in order for the UK to seek and provide mutual legal assistance to a country in accordance with these provisions.

7 Feb 2013 : Column GC115

A country falls to be regarded as a participating country if it was a member state of the European Union on the date at which the relevant provisions of the 2003 Act were commenced or if it has been designated as a participating country by an order made by the Secretary of State. As Armenia, Chile and Ukraine are not EU member states, this order seeks to designate them as participating countries for the purpose of various sections of the Act.

The effect of the designations will be as follows. First, designation of the relevant states as participating countries for the purposes of Section 31 of, and paragraph 15 of Schedule 2 to, the 2003 Act will allow the UK to execute requests for witnesses in this country to give evidence in foreign proceedings by telephone and ensure that where such evidence is given the process is supervised by a court in the participating country.

Secondly, designation of the relevant states as participating countries for the purposes of Section 47 will allow the temporary transfer of UK prisoners to that participating country to assist with investigations into an offence which was, or may have been, committed in the UK. Thirdly, designation for the purpose of Section 48 will allow the temporary transfer of prisoners from a participating country to the UK to assist with investigations into an offence which was, or may have been, committed in that participating country.

The UK is committed to improving the provision of mutual legal assistance, and this order will enhance the level of co-operation that the UK can offer to, and seek from, other countries. This is a key tool in combating cross-border crime and ensuring justice for British victims of crime. I commend the order to the Committee, and I beg to move.

Lord Rosser: My Lords, it would probably be an exaggeration to say that there was an enormous amount of interest in this order. Nevertheless, I thank the Minister for the explanation of the purpose of the order, which activates powers within the Crime (International Co-operation) Act 2003 to add to the list of countries with which mutual legal assistance in criminal matters exists. The 2003 Act was enacted to implement ratification of the EU Convention on Mutual Assistance in Criminal Matters 2000. The 2000 convention extended and improved the facilities for mutual legal assistance created under the earlier non-EU convention of 1959.

The 2000 EU convention requires participating member states to meet requests from each other to facilitate criminal investigations, including sharing of investigation documents, transmission of stolen objects, video conferencing of witnesses, covert investigations and interception of telecommunications.

Non-EU countries which have ratified the second additional protocol to the 1959 European Convention on Mutual Assistance in Criminal Matters can be added to the list of EU member states that are required to participate, but this designation as a participating country must be done by order, and this order adds the Republic of Armenia, the Republic of Chile and the Ukraine to the list of participating countries. The second additional protocol, to which I have referred,

7 Feb 2013 : Column GC116

provides for hearings by teleconference, as the Minister has said, and for the temporary transfer of detained persons to another country.

In view of recent pronouncements, it is not clear whether the order we are being invited to approve will have a long shelf life. Last October, the Home Secretary announced that the Government planned to opt out of all 134 EU crime and policing measures negotiated prior to the Lisbon treaty through the UK’s prerogative under Protocol 36. That approach is, of course, in line with the apparent majority government view that the EU should be a free trade area and not much else beyond that.

The 2000 EU convention is now due to be amended by the directive on the European investigation order, which is currently waiting for adoption by the European Parliament. As I understand it, if the European investigation order directive is not adopted by the time the Government decide to exercise their opt-out from the 134 EU policing and crime measures, which the Government could do at any time before 31 May 2014, the EU 2000 Convention on Mutual Legal Assistance between the UK and EU member states on criminal investigation matters would cease to apply to the United Kingdom.

Other significant mutual agreements that would also be lost by the 2000 EU convention ceasing to apply to the UK include: the establishment of the European arrest warrant, which has seen 600 criminals returned to Britain to face justice, including terrorists, and, most recently, a teacher suspected of abduction; minimum standards across the EU for counterterrorism co-operation, skills and expertise; sharing of criminal records, which would include, for example, those of a known sex offender travelling to Britain from another EU member state; co-operation on the identification of laundered money; co-operation between member states in tracing and freezing criminal assets; agreements with Interpol on sharing intelligence; and agreements with the United States on the processing of passenger name records data by airlines.

Given that the Home Secretary has already indicated her preference to opt out of all 134 EU crime and policing measures, including, presumably, the 2000 EU convention, what is the Government’s purpose in seeking to add to the list of partner countries with which mutual assistance under the 2000 convention applies? Can the Minister say what will happen to the mutual assistance agreements with these three additional countries referred to in this order if the Government proceed with their declared wish to exercise their opt-out from the 134 EU crime and policing measures, including, presumably, the 2000 EU convention? Will we still have a mutual assistance agreement with the three countries referred to in this order or is the mutual assistance agreement with these three countries dependent on our not having opted out of the 134 EU crime and policing measures, including the 2000 EU convention, since the agreement with these three countries is not bilateral but through the European Union?

If the Government feel that there is merit in having mutual assistance agreements with the Republic of Armenia, the Republic of Chile and the Ukraine, will the Minister say what effect the 2000 EU convention

7 Feb 2013 : Column GC117

ceasing to apply to the United Kingdom would have in terms of our ability to pursue criminal investigations and bring to justice offenders based in these three additional participating countries?

Baroness Stowell of Beeston: Although he did not say it, I take it from his comments that the noble Lord, Lord Rosser, supports the order. I am grateful to him for that.

On his broader point about the Government’s decision on opting out from the European justice and home affairs measures in the European Union, as he knows, discussions about this are taking place within the Government and an assessment is being made of the value of those arrangements to the UK. As my right honourable friend the Home Secretary said very clearly to Parliament, the Government’s current intention is to opt out of all measures and to seek to rejoin those where it is in the national interest to do so. The Government have committed to a vote in both Houses before a final decision is made. The priority is to ensure that the final decision is, as I say, in the UK’s national interest.

If the UK decides to opt out, en masse, of all 134 EU measures, we still have the Council of Europe convention of 1959. This is not an EU measure and so it does not fall within the scope of the 2014 opt-out decision. However, in light of the fact that, as the noble Lord said, there are no other noble Lords participating in the debate today, my answer to the point that he raised is clear: this order is necessary to allow the UK to continue to fulfil its international obligations and to ensure that the UK can successfully prosecute international crime and achieve justice for British victims of such crime. Again, I commend it to the Committee.

7 Feb 2013 : Column GC118

Lord Rosser: I am certainly not going to oppose the order but if the European Investigation Order directive is not adopted by the time the Government decide to exercise an opt-out from the 134 EU policing and crime measures—which they could do at any time before 31 May 2014—is it true that the EU Convention on Mutual Assistance in Criminal Matters between the UK and EU member states ceases to apply to the United Kingdom? If that is the case, what effect does it have on the mutual assistance agreements with the three countries referred to in the order?

Baroness Stowell of Beeston: As I have made clear, the Government’s intention is to opt out of the measures and seek to rejoin those where it is in the national interest to do so. That is clearly what the Home Secretary has said and that is what we will do.

Lord Rosser: I have asked a specific question. I do not mind if the Minister is not able directly to answer the question today—I do not expect her to be a walking encyclopaedia—and I will be happy if she undertakes to write to me with a response. That would be quite satisfactory.

Baroness Stowell of Beeston: As I understand it, we have already opted in to the European Investigation Order and have subscribed to that. Yes, it is in scope but, as I have already said to the noble Lord, our intention is to rejoin those measures where it is in the national interest to do so. I think I have now answered his question.

Motion agreed.

Committee adjourned at 4.28 pm.