8 July 2013 : Column GC1

Grand Committee

Monday, 8 July 2013.

3.30 pm

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): Good afternoon, my Lords. I remind the Committee that, in the event of a Division in the Chamber, the Committee will adjourn for 10 minutes from the sound of the Division Bell.

Public Bodies (Abolition of the Registrar of Public Lending Right) Order 2013

Considered in Grand Committee

3.31 pm

Moved by Lord Gardiner of Kimble

That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of the Registrar of Public Lending Right) Order 2013.

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

Lord Gardiner of Kimble: My Lords, the Government are proposing to use the powers in the Public Bodies Act 2011 to abolish the registrar and transfer its public lending right functions to the British Library. Both the registrar and the British Library are non-departmental public bodies of the Department for Culture, Media and Sport.

The Public Bodies Act 2011, which received Royal Assent in December of that year, is the legislative vehicle resulting from a 2010 government-wide review of all public bodies. Its overriding aims are to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked first to address the overarching question of whether a body needed to exist and whether its functions needed to be carried out at all and, following from this, whether it met specific tests that would justify its retention.

The department was of the view that the public lending right functions must be maintained as they are required by law, but that it was not necessary for the registrar to be retained as a stand-alone public body in order to carry out those functions. Therefore, options for a suitable, and more efficient and economical, home were explored.

Perhaps I may give some brief background on the public lending right scheme and the public body managing it, formally known as the Registrar of Public Lending Right. The position of registrar was established by the Public Lending Right Act 1979, which gave authors a legal right to receive payment for the free lending of their books by public libraries. Under the 1979 Act, funding is provided by central government, and payments are made to eligible authors and other rights holders

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in accordance with how often their books are lent out from a sample of UK public libraries. The registrar is a corporation sole and is appointed by the Secretary of State for Culture, Media and Sport to maintain a register of eligible rights holders and books, and to supervise the administration of the scheme. Around 23,000 rights holders receive a public lending right payment each year, up to a maximum of £6,600.

The registrar receives grant in aid from the department to fund both the administration costs and the payments to authors. Given the current economic climate, the decision was taken in October 2010 to reduce the resource grant-in-aid budget for public lending right by 15% in real terms over the spending period from April 2011 to April 2015, and the proportion of grant in aid used to administer the scheme was capped at £756,000 a year. With the registrar currently operating at near maximum efficiency, and given the limitations in efficiency savings that a body of its kind could make, this necessitated some radical thinking in order for the public lending right scheme to operate within its new budget while minimising the effect of the reduction in funding on authors.

Transfer of the public lending right functions to the British Library emerged as the preferred option because it fulfils the Government’s aims of maximising the efficiency, economy and effectiveness of the public lending right scheme and reducing the number of public bodies. The transfer offers greater efficiency savings than are achievable by a stand-alone body the size of the PLR. The transfer is expected to save £750,000 in real terms over 10 years and therefore maximises the proportion of available grant in aid which could be allocated to authors.

This low-risk transfer will retain the operation and workforce in Stockton-on-Tees, which is working well at present and is highly valued by respondents to the consultation, and the increased efficiency and economy of the scheme will benefit PLR rights holders. Furthermore, the transfer would not only ensure continuity of efficient systems and processes but would develop a more solid infrastructure, which the larger organisation enables.

Subject to the approval of Parliament, it is expected that the abolition of the registrar and transfer to the British Library will take effect on 1 October 2013. The current registrar will be contracted by the British Library from the transfer date for an appropriate period of time, likely to be until March 2015, to ensure a smooth transition and successful transfer of knowledge.

I turn now to the scrutiny given to this order, which was laid before Parliament on 9 May. Orders under the Public Bodies Act have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days if that is felt necessary. This order has been scrutinised by several Select Committees: in your Lordships’ House by the Secondary Legislation Scrutiny Committee; in another place by the Culture, Media and Sport Select Committee; and collectively by the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period.

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The Secondary Legislation Scrutiny Committee reported on this order on 23 May. The committee was satisfied that the order met the four tests set out in the Public Bodies Act, noting in particular the strong case of increasing economy. The Act states that a Minister may make an order,

“only if the Minister considers that the order serves the purpose of improving the exercise of public functions”,

having regard to: securing accountability to Ministers, which the order achieves by amending the British Library Act 1972 to stipulate that its annual report must include a report on the PLR scheme; efficiency, which the order achieves by enabling the more efficient running of the PLR scheme through a larger non-departmental public body, with all the advantages of shared back-office services and economies of scale; effectiveness, which will be maintained as authors will continue to receive the same high-quality service already provided by the PLR office; and economy, with the savings in running costs to maximise the proportion of grant in aid available for distribution as PLR payments.

The committee recommended that the department should carry out a review of the effectiveness of the post-transfer arrangements in spring 2016; that is, within a year of the end of the transition period. The department acknowledges the conclusions of the committee and has taken on board the views expressed; in particular, it agrees with the recommendation to review the transfer in 2016.

The department remains committed to the public lending right scheme, which is a source of income for many authors and other rights holders. The value that the Government place on the PLR scheme was evident in the recent announcement that the scheme will be extended to cover on-site loans of e-books and audiobooks, with effect for loans from July 2014. PLR will continue to evolve in line with technological advances in public libraries, and the department is committed to ensuring that the scheme continues to be managed as efficiently and economically as possible, for the benefit of authors.

In challenging economic circumstances, the transfer offers the best means of safeguarding the future of the scheme and maximising the proportion of available grant in aid to be distributed to authors, thereby supporting and rewarding their creativity at the same time as offering better value for money to the taxpayer. Therefore, it is right that the functions should be transferred to the British Library, and I commend this draft order to the Committee.

Lord Stevenson of Balmacara: My Lords, I want to start where the Minister finished, by welcoming the extension of the PLR to e-books and audiobooks on-site. This was subject to much discussion in the Chamber a few weeks ago, when the Minister was not able to give us an assurance one way or another, but, since then, other events have intervened. The Chancellor’s announcement in the recent spending review was very welcome. However, I note that this applies only to e-books and audiobooks borrowed on-site. It still

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leaves open the question of how the PLR is to be extended—if, indeed, it is to be extended—to those borrowed through the web or alternative ways yet to be discovered. Given the way in which the technology is moving, e-books will not be requested in terms of their physical presence in the library. Perhaps the Minister could respond to that when he sums up this debate.

I would also like to praise the way in which the department has gone about this operation. It has been a long time since I have read such a good consultation exercise. I am constantly coming up against them in secondary legislation debates, where they are sometimes somewhat perfunctory in approach. This seemed to be a genuine consultation which offered real alternatives and suggested possibilities available for those who wished to consult. It is a model of its type. The department should be very pleased that it has been bold enough to try to take this all the way out and to take responsibility for the answers that came back.

The problem with a consultation as open as this is that it might get answers back that, perhaps, the department was not looking for. It is therefore not altogether surprising to discover that nearly 95%, I think, of those who responded were against what the department was proposing. Given that the department consulted authors and others interested in the written word, the responses were somewhat well written, rather redolent of deeper and other worries, and must have made rather uncomfortable box reading for the Minister when he came to review them. Not surprisingly, the department has found a way of eliding any real criticism from approaching its proposed solution. It will not take account of the consultation or, indeed, the very singular report that came in from those who were consulted. I am sorry about that. It is quite clear that this measure does not command support among those who were consulted.

That raises the question of why this is being done. Is it because the department wants to reduce the number of its bodies? I find that rather surprising because it was clear throughout both the consultation exercise and, indeed, the reports of the various committees of your Lordships’ House and the other place that have looked at this, that the registrar does a good job and has done it with considerable economy. There are no apparent suggestions that the registrar is at fault in any of the ways in which it is going about its job. The registrar is regarded as a friend of the authors and seems to have good relationships also with the public libraries that have to come up with the funding as a result of the lending and to work with a very small staff and a very inexpensive foundation in Stockport. The registrar seems to be doing a very good job indeed.

It is relevant that the jobs have been located to a relatively poor area of the country, and it is good that there are jobs of this high calibre there involved in such good activity. It is therefore a bit surprising that the department does not recognise that, by making this change, we are also introducing some risk about whether those jobs will continue. The real essence of what is requested at the heart of this proposal is that costs be reduced rather than that the number of bodies

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be reduced, because the transfer is actually being made to the British Library. Although it looks as though we are losing one body and simply absorbing it into another, it is clearly a different function which must be added on to the existing work of the British Library. To some extent, therefore, there is not really a reduction in its activity or the management spread in which it will be involved.

On the cost argument, which I presume has been part of this, there will also be costs in the British Library. The change seems to be financed by the reduction of one post—that is, the loss of the registrar post. Indeed, the whole operation seems to revolve around the fact that the cost of that post will no longer be counted against departmental spend. Of course, when the Minister introduced this, he made clear that it was now unlikely to result in savings until March 2015, which perhaps cuts into the overall savings that have been requested. Several respondents and both committees which have looked at this have pointed out that the existing provision in the registrar’s office is extremely efficient. When the House of Commons reviewed this in May, it said:

“So far the office of the Registrar has been successful in keeping its operating costs below the budget cap of £756,000 per annum which was set at the last comprehensive spending review. Operating costs in 2011/12 represented 11.6% of the PLR payments … made to authors”.

It goes on to say:

“The Registrar has identified savings that will bring annual running costs down further … from 2014/15 onwards”,

which seems to be well within the 15% real-terms reduction that was requested by the department.

3.45 pm

If it is not really about reducing the number of bodies, because the work is effectively continuing, and is not about the cost, then why are we doing this? The effect of the change is to transfer to an existing non-departmental body, the British Library, a function which is in some ways at variance with the activities that it has to have. It introduces the rather unwelcome thought that the British Library—which in some sense prides itself on its independence and is, as it should be, at arm’s length from the Government—is now also an agent of the department in terms of its operation under the statute for the provision of payments to authors. That is, in a sense, mixing up apples and pears and is not very good.

The remote management point that is stressed in the department’s proposals suggests that an officer of the British Library based in Boston Spa will have responsibility for supervising the work of the existing or continuing staff after the registrar retires in Stockport. Can the Minister give us some sense of whether he believes that that will be a permanent arrangement or whether it might change? Again, that would mean a loss of jobs, as I have mentioned before.

I am pleased to hear from the Minister that he has accepted the suggestion of your Lordships’ Secondary Legislation Scrutiny Committee to review this proposal in spring 2016, which is sensible. I am certainly not going to use this opportunity to delay the order—which,

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in a sense, I regret, but I understand that it is not an issue which will catch much attention. I think the arguments are a bit thin, and I worry that the implications of what is happening here are that we will lose a small but valuable outpost of activity in Stockport, which has the confidence of authors and writers and has worked well with local authorities. Its incorporation with the British Library, although not unreasonable, is not in accordance with the majority of respondents. With that, I look forward to hearing the Minister’s comments.

Lord Gardiner of Kimble: My Lords, first, I thank the noble Lord for his generous opening remarks. I have studied a number of the consultation replies and, indeed, it has been a thorough piece of work. The noble Lord asked a number of questions with which I would like to deal.

On the extension of the PLR to remote loans of e-books, to put that in some sort of context, in 2011-12 almost 9 million audiobooks were borrowed, compared with 850,000 e-books. For the moment, therefore, audiobooks will be an important advantage for authors, although we absolutely need to ensure that, as technological changes emerge and increase, we recognise that there may need to be some further consideration. One of the main issues with which we would need to wrestle if there were to be consideration of extending PLR to remote loans is that any amendment we would seek to pursue to extend that right to incorporate remote lending would be subject to consideration of whether it would be compatible with the copyright directive. We would need to look into those matters. However, I am alive to the fact that this is very much an issue.

For the record, the registrar is based in Stockton-on-Tees, not Stockport. As the noble Lord says, the British Library is in Boston Spa, so they are two northern locations. It is fair to say that the department was very conscious of the responses, which is why, among other things, the British Library is retaining the current office in Stockton-on-Tees and authors will continue to receive that same service. As I have also mentioned, I want to acknowledge Dr Parker, the registrar, who will continue until 2015. That continuity is important to reassure authors and public lending right holders.

The other point is that the transfer is expected to save £0.75 million in running costs, in real terms, over 10 years. Minimising the cost of running the scheme maximises the proportion of grant in aid that will be available to be distributed as public lending right payments. We are trying to calibrate it so that the authors get as much as possible. The British Library is a larger non-departmental public body, which will help provide a solid infrastructure for the work that we think is very important to safeguarding the future of the scheme.

I can give categorical reassurances that there is a considerable desire to ensure continuity and that authors and public lending right holders are safeguarded. There is also the good news that we will extend, from next year, the loans of audiobooks and e-books on-site

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from public libraries. It is an advance, at least. The department is right in safeguarding the scheme but also maximising the available proportion of grant in aid. I commend the draft order to the Committee.

Motion agreed.

Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2013

Considered in Grand Committee

3.52 pm

Moved by Lord De Mauley

That the Grand Committee do report to the House that it has considered the Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2013.

Relevant document: 5th 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, this instrument seeks to correct an error in the 2012 regulations. The error concerns the formula used for calculating the glass remelt recycling target for producers of glass packaging. The consequence is that the proportion of producers’ glass obligations that have to be met by evidence from remelt applications is inadvertently higher than the intended 63% for 2013-15. This instrument corrects that mistake by substituting an amended formula which ensures that the 63% glass remelt target is correctly applied to a producer’s glass recycling obligation for 2013-15 and 64% for 2016-17. My officials have worked with the Environment Agency to correct the error and to check that no further changes are needed to the 2012 regulations.

Prior to the 2012 regulations coming into force, Defra carried out a written consultation, with officials engaging with a broad range of representatives from industry, regulators and other interested parties. The consultation included the correct target of 63% but the draft regulations accompanying the consultation contained the error, which went unnoticed at the time. To correct it, we recently completed a public consultation on this revised draft instrument. We invited views on the plans to correct the error and there were no responses.

In practical terms the error has had no impact on business, with UK environment agencies using a correct version of the formula and enforcing against the intended 63% target. This instrument does not impose any new burden on any business. However, I apologise unreservedly for the error and hope that I have adequately explained that this instrument is intended to do no more than correct a mistake. I commend the draft regulations to the Committee.

Lord Knight of Weymouth: My Lords, I am grateful to the Minister for introducing these regulations, and in particular for his apology. He will not be surprised,

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and may be relieved, to know that I do not oppose them since obviously it is appropriate to correct the error. Indeed, when I first looked at the regulations I naively did what people do, and that is simply to look at them. Of course, there is no mention of the error. I looked at the impact assessment, where again there is no mention of the error. My first question to the Minister, therefore, is what has been the impact of the error? What has been the cost to the taxpayer of getting this wrong and having to reconsult, even though there were no responses to the consultation?

The Explanatory Memorandum is perfectly clear: the instrument corrects an error in the formula for calculating the glass remelt recycling target for producers of glass packaging. He is not yet on his feet in the other place, but we anticipate from the media that the Secretary of State for Education will shortly be announcing changes to the national curriculum, among which will be that primary school children will have to learn their fractions. It is worth asking when Ministers will learn theirs too, so that we do not make these errors in the future.

The regulations are fine and they do a perfectly good job. I note in passing that these are regulations which the Government support—and that occasionally the Government support regulation. These are also regulations from Europe—and occasionally the Government support regulations from Europe. These are also regulations that gold-plate EU regulations, so there are times when the Government support the gold-plating of EU regulations. As I say, that should just be noted in passing. Having dealt with these regulations around a year ago, we are here because an error was made, so my only question of any substance for the Minister is: how much is it costing us?

Lord De Mauley: My Lords, as always, I am most grateful to the noble Lord for his comments. Before I address them, perhaps I could say that the target we are talking about offers both economic and environmental benefits for the United Kingdom. As valuable resources for our industries become scarcer and more expensive, we need processes in place to recycle and recover them in order to retain as much of their value as we can in the economy. Indeed, the Government want the United Kingdom to move towards a zero waste economy; that is, an economy where resources are fully valued. We want to see material resources reused, recycled or recovered wherever possible, and only disposed of as a last resort. The targets in these regulations play an important part in achieving this ambition. They will help the UK to go further in recovering the value of discarded packaging materials and help to tackle the wasteful practice of burying these resources in landfill. Overall, we estimate that the whole package of targets will provide a net benefit of over £180 million to the UK economy over the period from 2013 to 2017. Over 95% of those benefits will come from revenue generated from recycled materials. We will also see greenhouse gas savings associated with diverting waste from landfill and energy savings from replacing virgin materials with recycled ones.

The Government recognise that the economic benefits will not be shared by all. These regulations will place an increased cost burden on the producers of packaging

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materials. However, the recycling targets will help to support wider growth and the creation of jobs in the recycling sector. I am pleased to say that when we consulted on the regulations, most businesses, including the majority of those on which the increased costs will fall, supported our approach. As I said, I am sorry for the error made in the 2012 regulations and I thank the noble Lord for taking the time to debate this instrument today. It will permit producers to continue to meet their obligations under the correct glass remelt recycling target.

We have not calculated the cost of correcting the error. I do not anticipate that it will be material. It will consist basically of official time to check the regulations and prepare amended regulations. As I said in my opening speech, the effective cost of the correction is nil, because everybody has been operating on 63% anyway. The only other thing I would say to the noble Lord is that I always enjoy being ragged by him about my mathematics. With those comments, I commend the regulations.

Motion agreed.

Natural Resources Body for Wales (Consequential Provision) Order 2013

Considered in Grand Committee

4.01 pm

Moved by Baroness Randerson

That the Grand Committee do report to the House that it has considered the Natural Resources Body for Wales (Consequential Provision) Order 2013.

Relevant document: Report from the Joint Committee on Statutory Instruments.

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson): This order was laid before the House on 3 June 2013. First, I apologise to noble Lords for an error that appeared in paragraph 3.2 of the Explanatory Memorandum. The memorandum omitted to note that Part 7 of the draft order will apply retrospectively from 1 April 2013. Part 7 concerns transitional and savings provisions. This is in line with the provisions for Parts 1 to 5, and Articles 29 to 31. This administrative error has been amended, and corrected versions are now available.

The order is made under Section 150 of the Government of Wales Act 2006, which allows for consequential amendments to primary and secondary legislation in consequence of provisions made by an Assembly Act or subordinate legislation. The order is made as a consequence of the Natural Resources Body for Wales (Functions) Order 2013, brought forward by the Welsh Ministers, which was approved by the National Assembly on 19 March 2013. I shall refer to this as the functions order. The order transferred functions in relation to Wales from the Environment Agency and the Forestry Commission to the new body, Natural Resources Wales. It also abolished the

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Countryside Council for Wales and transferred its functions to the new Natural Resources Body for Wales.

This consequential order provides for the completion of legal arrangements for the Environment Agency, the Forestry Commission and Natural Resources Wales to operate together in their respective areas in the most effective and efficient manner. For example, it makes provision to remove Welsh Ministers from the appointment and funding of the Environment Agency and the Forestry Commission. It also amends the Environment Act 1995 to ensure that the new Natural Resources Body for Wales can make appropriate charging schemes in relation to the EU Emissions Trading Scheme, and that the Environment Agency and the Natural Resources Body for Wales can make cross-border arrangements for cost recovery and charging for water abstracting licences.

In preparing this consequential order, the Wales Office worked closely with the Department for Environment, Food and Rural Affairs and other key UK government departments, as well as the Welsh Government. We are all agreed that the provisions in this order are necessary to ensure that Natural Resources Wales can exercise its functions to fulfil its remit and co-operate effectively with its counterpart organisations across the UK.

This order is also important to the UK. Without it, the Environment Agency and Forestry Commission in England will be unable to delegate their functions to the Natural Resources Body for Wales and similar bodies across the border, and would therefore be unable to fulfil their remit efficiently and cost-effectively. For example, in the event of a pollution incident in Wales that impacted on England, the Environment Agency in England would not be able to delegate the clean-up to the Natural Resources Body for Wales. This could result in unnecessary duplication of decision-making and deployment of staff, and a waste of Environment Agency resources. That is just one example of the importance of this order to both the UK and Welsh Governments.

This order demonstrates the UK Government’s continued commitment to working with the Welsh Government to make the devolution settlement work. I hope that noble Lords will agree that this order is a sensible use of the powers in the Government of Wales Act 2006 and that the practical result is something to be welcomed. I commend this order to the Committee.

Lord Knight of Weymouth: My Lords, I am grateful to the noble Baroness for introducing the order so clearly. She will perhaps be relieved to know that I have not suddenly taken on shadow Welsh Office responsibilities but that in the comradely spirit of the Front Bench I am helping out and using my experience in shadowing Defra to have a look at the order and make sure that everything is as it should be from our point of view.

I can say from the outset that we are supportive of the order. From my reading of the Explanatory Notes and the other documentation, it appears that all the consultations have been carried out well by the Welsh Office and the Government. Obviously, the order brings

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forward measures that have come from the Welsh Assembly Government and we would not want to get in the way of their fine work.

Therefore, my only question to the Minister—and not wanting to delay the Committee—is that the merging of the devolved functions of the Environment Agency and the Forestry Commission with the Natural Resources Body for Wales will produce some interesting learning for the rest of the United Kingdom in terms of joined-up working in this area. Does the Minister know of any mechanisms that the Environment Agency, the Forestry Commission or indeed Defra will be putting in place to ensure that we can learn those lessons and see whether or not there are aspects of joint working that we could do better here as this new body proceeds in Wales? It is not always fashionable, I know, for us in England to learn from Wales—sometimes it is more likely for Ministers to be sent to New Zealand than across the Severn Bridge—but there are things that we could learn from our friends in the devolved Assembly and I would be interested in the Minister’s response.

Baroness Randerson: I thank the noble Lord, Lord Knight, for his positive words in support of this order. Referring specifically to the noble Lord’s question, it is very much the case that close and co-operative working will continue between the Environment Agency, the Forestry Commission and the new Natural Resources Body for Wales. It is essential that that close co-operation will continue, from the perspective of both England and Wales.

First, there will be training co-operation, which will greatly benefit the new body in Wales because it will be able to call upon training opportunities in England, where the numbers undertaking training are very much larger and therefore there is a wider range of opportunities. Close working is also very important because, of course, rivers do not follow national boundaries. The organisations concerned—the predecessor organisation in Wales and the continuing organisations in England—are used to working together and co-operatively in order to reduce costs. They work across border when there is agreement and it is essential that that kind of co-operation continue. I think that so long as there is co-operation, both in operational working and in training, there will be ample opportunities for the organisations which continue to exist in England to learn and to observe what is taking place in Wales.

Perhaps I may also briefly mention to the noble Lords that there was recently a triennial review of the Environment Agency and the Forestry Commission in England which looked at whether those bodies should continue in their current form, should be reformed or should be merged. That triennial review concluded that the bodies should continue but that there should be reforms. I think it is important that the lessons from that review be taken. By the time of the next triennial review, which will be in 2016, there will of course be ample opportunity to have learnt from the experience in Wales. With those comments, I commend the order to the House.

Motion agreed.

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Education (Amendment of the Curriculum Requirements) (England) Order 2013

Considered in Grand Committee

4.12 pm

Moved by Lord Nash

That the Grand Committee do report to the House that it has considered the Education (Amendment of the Curriculum Requirements) (England) Order 2013.

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

The Parliamentary Under-Secretary of State for Schools (Lord Nash): My Lords, I am grateful for the opportunity to debate the Government’s proposals for replacing the national curriculum subject of information and communications technology with computing in schools in England.

As noble Lords will know, the study of information and communications technology—commonly referred to as ICT—is a compulsory national curriculum subject in maintained schools in England at key stages 1 to 4. In February, my right honourable friend the Secretary of State for Education announced his intention to replace the national curriculum subject of ICT with computing. The report on the consultation on this proposal, published on 3 May, showed significant support for such a change, with the largest single group of respondents being in favour. I will outline the reasons why we think that this change to the name of the subject is necessary.

In spite of the revolution in how we use digital technology in society and in work, decreasing numbers of young people are obtaining computer science qualifications beyond age 16. Between 2003 and 2012, the number of students taking A-level computer studies fell by 60% and is now fewer than 3,500 entrants per year. Similarly, the number of entrants to undergraduate computer science degrees fell by 23% between 2002-03 and 2010-11, at a time when undergraduate enrolments grew in all other STEM—science, technology, engineering and mathematics—areas.

This is a major problem, since the UK’s long-term economic prosperity depends on our ability to be world leaders in developing digital technologies and understanding how they can transform all sectors of the economy. It is estimated that, over the next seven years, around 2 million new jobs will come from sectors that rely on technology, mathematics and science.

4.15 pm

We need to be at the forefront of innovation in the development of new digital technologies, drawing on an illustrious heritage that includes pioneers such as Ada Lovelace, Alan Turing and Tim Berners-Lee. However, we are facing a huge shortage in the number of people with the appropriate technology skills to fill these jobs and grow the high-tech, high-value industries in which the UK should—and must—be globally competitive. Clearly, something has to change. Two important recent reports—from the Royal Society on computing in schools, led by Professor Steve Furber,

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and from Alex Hope and Ian Livingstone on the computer games and visual effects industries—both conclude that the ICT curriculum in schools has been a major part of the problem.

The existing ICT curriculum, which was last updated in 2007 for secondary schools and 1999 for primary schools, has led us away from teaching pupils to program computers and develop a deep understanding of how computer technology actually works. For too long, and for too many pupils, ICT lessons have focused on basic IT user skills and avoided the more challenging aspects of the subject, such as control technology and statistical process control. Experts contend that the existing ICT curriculum fails to prepare pupils for higher-level study. As Alex Hope and Ian Livingstone argue, this is weakening the flow of talented and appropriately skilled employees into the computer games and visual effects industries in which the UK has, until recently, been a global leader.

However, the potential loss is much broader, since virtually all sectors of the economy make extensive use of digital systems, and high-level computing skills are required to develop and maintain the hardware and software on which so many businesses depend. Beyond the economic arguments for reforming the ICT curriculum, we are letting young people down if we do not provide them with knowledge of how digital devices actually work or enable them to create their own digital artefacts through programming.

We have tackled the crisis in technology education in schools head-on; first, by withdrawing, or “disapplying”, the existing ICT curriculum last September. Subsequently, we worked with leading subject experts, convened by the British Computer Society and the Royal Academy of Engineering, on an ambitious and challenging new curriculum that places computer science and practical programming at its centre. From key stage 1 onwards, the new curriculum aims to develop pupils’ understanding of the fundamental principles and concepts of computer science and to enable them to write computer programs in several languages. Pupils will continue to develop skills in using a range of digital tools to carry out tasks, becoming digitally literate. For the first time, they will also be taught in primary school how to stay safe on the internet, keep personal information private and use technology respectfully and securely.

As we are overhauling the content of the curriculum, we are changing the name of the subject, from ICT to computing. There are good reasons for this. As the Royal Society report contends, the very title “ICT” is part of the problem, as it carries negative connotations of a dated and unchallenging curriculum that does not serve the needs and ambitions of pupils. Renaming the subject will encourage schools and teachers to develop fresh approaches to teaching the new curriculum content. We agree with the Royal Society and others that “computing” is an appropriate broad umbrella term, which covers the three principal elements of the subject included in the new curriculum—computer science, digital skills and information technology—but without being too strongly associated with any one of them.

We know that our proposals are ambitious and that many schools and teachers will be teaching computer science and programming for the very first time.

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Fortunately, it has never been easier for schools and pupils to get started with programming, through using low-cost hardware such as the Raspberry Pi computer, which costs around £30, through free programming languages such as Scratch and through the support of grass-roots organisations such as Computing at School. Furthermore, we are taking steps to ensure that teachers have the skills needed to teach the new computer curriculum. Over the next two years, we are providing £2 million in funding for the British Computer Society’s Network of Teaching Excellence, which will enable our best computing teachers to train thousands more to teach computer science and programming to their pupils. We will also be signposting teachers to the best resources worldwide to use in teaching the new computer curriculum.

These proposals have wide support. They have been greeted positively by important organisations including Microsoft, Google, Facebook, the British Computer Society and the Royal Academy of Engineering. In the consultation, a majority were in favour of the change. Also, many of those who disagreed with or were unsure of the change in title were actually concerned about the content and the challenges for schools in teaching the new curriculum and there were relatively few concerns that related directly to the name of the subject in itself. This was also the case for the responses to the more recent one-month consultation on the draft order. We are considering these concerns in the course of finalising the new computing programmes of study. Having considered the evidence from the public consultations, we remain certain that replacing “ICT” with “computing” will improve the status of the subject in schools and encourage schools to develop fresh approaches to the way in which they teach this vital part of the national curriculum.

As the Committee may have heard today, the statutory consultation of the draft orders for the new national curriculum commences today and will be complete on 8 August. The Government will therefore be considering any further feedback on the content of the programmes of study for computing as well as the other subjects of the national curriculum over the summer. We then intend to publish the final version of the new programmes of study for computing in the autumn, to be taught for the first time in September 2014. Subject to the will of Parliament, those programmes of study will be confirmed in the autumn. I commend the order to the Committee.

Baroness Jones of Whitchurch: My Lords, I thank the Minister for his explanation of the proposed name change; indeed, the order is narrow in its intent. On the whole, we welcome the change and the need to revitalise the ICT curriculum. We take on board the concerns that were raised by Ofsted, that the curriculum and teaching approaches had not kept pace with the rapid technological developments outside the school environment. While we share the concerns of many of the respondents that the term “computing”, which is now being adopted, suggests too narrow a focus, we also recognise the need to send a signal that the content has been substantially modernised.

We are also aware that, of all the subjects in the national curriculum, this one will continue to have challenges in keeping up with the pace of change. For

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example, it is easy to foresee that what we are now celebrating as a new computing course will appear in a few years’ time to be dumbed down and irrelevant to the demands of employers in the future. However, in the mean time, I have a few questions that I hope the Minister can address.

First, on professional development, the Minister made the point that some money was being made available for some of the professional development work. Does he feel that it will be sufficient? There is a serious issue about ongoing professional development throughout the system, starting at primary level, where updating computer skills will be part of a range of updated skills which all primary teachers will need to deliver the new curriculum. It is also an issue at secondary level, where it may not be easy but is possible to recruit specialist staff with up-to-date computing skills. However, if you are not careful, that knowledge and those skills can fall out of date very quickly.

Secondly, what more are the Government planning to do to attract new specialist computing staff to teach in schools? It is fairly obvious that there would be alternative, better paid jobs for high-class performers in computing. They may not necessarily rush into the teaching profession.

Thirdly, can the Minister confirm that the change in name does not represent a narrowing of the curriculum, and that pupils will be taught some of those broader skills such as internet use and safety, word processing and data processing, so that the subject will actually give people a range of knowledge and skills which the word “computing” does not necessarily encompass?

Fourthly, the teaching will be successful only if it is supported by sufficient funds to modernise IT facilities and to keep modernising them as technology changes. The noble Lord made reference to some low-cost initiatives in terms of facilities in schools. However, I have seen reference to 3D printers. That is fine, it is just one example, but 3D printers are very expensive. The fact is that, for children to have an up-to-date and relevant experience, you would need to keep providing not just low-cost but some quite expensive technological equipment in schools on an ongoing basis. Will sufficient funds be available to do that?

Finally, given that computing skills and the supporting equipment that would be needed are increasingly integral to the teaching of all subjects, not just computing, have the Government given sufficient thought to what computing skills should be taught within the confines of the computing curriculum and what computing skills need to be provided with all the other arts and science subjects that people will be studying, in all of which pupils will increasingly require computing skills to participate fully? Has that division of responsibilities been thought through? I look forward to the Minister’s response.

Lord Knight of Weymouth: My Lords, I draw the attention of the Committee to my interests in this area. I am a trustee of the e-Learning Foundation and have various other interests, including working with the Times Educational Supplementand with smart technologies. I am also a trustee of Apps for Good.

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I, too, attended the Bett conference at the beginning of last year, when the Secretary of State, Michael Gove, who is now on his feet in the other place talking about these issues, announced the disapplication of the programme of study for ICT. I broadly welcomed that announcement. It goes back to my dissatisfaction when I was Schools Minister with the ICT curriculum, particularly at key stages 3 and 4, and to how unengaging my son found the experience of doing the European Computer Driving Licence. My attempt to change things was to get Jim Rose’s primary curriculum review to include ICT as a core subject alongside English and maths. It was a battle that I eventually won by subterfuge, and Jim’s review included ICT at its core. I wanted young people starting secondary school to be plug-and-play ready to use ICT across the whole curriculum in their learning.

I was also informed, as I think the Minister was, and as he mentioned in his opening comments, by the changing nature of the labour market, which is essentially hollowing out due to globalisation and technological change. The growth in high-skill, high-wage work is at the higher end of the market and is very much informed by technology and people who are confident with it. Not all of it requires programming skill. Therefore, my first question is: how will the Minister ensure that digital skills remain across the whole curriculum and inform the way in which young people learn in all subjects, not just in the subject called computing?

I cannot see any occupation where we will not require people to be confident in using the internet and technology, and to have a basic understanding of how it works. I am chair of the Online Centres Foundation, which just today was renamed the Tinder Foundation. We are very active in digital inclusion, and we see people referred to us from jobcentres so that they can not just process a claim but apply for jobs, because 70% of employers require you to apply online. These are fundamental skills for every child to learn in order to be confident leaving school.

The issue of digital skills across the curriculum raises an additional question. It is a perhaps unfashionable question about pedagogy. As a Minister, I was always slightly reluctant to get involved in pedagogy because I am not a trained teacher. However, I regret that, and I have looked at the amount of investment that has gone into technology in schools over time and have seen that some of it was not spent well, because not every teacher was taught to be confident in using it, and to shift their pedagogy in order to use it well.

I have that worry about 3D printers, and I am specifically interested in finding out from the Minister whether, as 3D printers land in schools, they are not going to be used to prop doors open or get dusty in cupboards. Last Friday I was talking to teachers from the Isle of Portland Aldridge Community Academy down in Dorset following their being shortlisted for a TES Schools Award. Unfortunately the school did not manage to win an award, but it is worth noting that both the nominated projects involved 3D printers, so I can see that some fantastic pedagogy may emerge from this technology that encourages highly engaged teaching and learning.

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4.30 pm

I am not persuaded that we have in place a system for scaling teaching innovation around how we use technology. It is the mistake that has always been made with new technologies in learning: we have no system for scaling proper, high-quality continuing professional development to ensure that teachers can design really engaging learning experiences using new technologies. To me, that is essential. We no longer have the British Educational Communications and Technology Agency. I understand the reasons for the Government’s decision to get rid of it three years ago, but we have only one official in the whole of Sanctuary Buildings—the whole department—on ICT. She is a great official who does a fantastic job, but it is only part of her role. That seems inadequate to ensure that every school is procuring efficiently when buying this technology and that we are continuing to strike really good deals with the likes of Microsoft, thus saving huge amounts of public money in respect of licensing. Are we able to provide any kind of lead on how we teach when using this technology? As the Government acknowledge in wanting to bring forward these changes, and as the Secretary of State acknowledged in his Bett speech in January 2012, technology is an important tool in educating children because it is a huge part of the world in which they are growing up. However, we have only one official in the department, which does not make any sense to me.

I have one or two other questions for the Minister. He is right to point to Raspberry Pi and I pay an unfashionable tribute to Google for funding its provision in a number of schools so that it is even cheaper than the Minister has said. However, it is not just about Raspberry Pi. Does the department have a view on personal, one-to-one computing in schools, about bringing in your own device and whether that is a way forward in terms of it being affordable? Does he have a view on the use of the pupil premium for children from poorer homes so that they are able to access personal devices for homework as well as when they are at school? If he has the answers to these questions, they will be listened to carefully and very warmly received by a large community out there.

Finally, I have a question that relates to teacher training, which has already been mentioned by my noble friend Lady Jones. As I understand it from the British Computer Society and CAS, there has been some discussion with higher education institutions about how they could be at the heart of a network to deliver some of this teacher training. That is commendable at the geekier end, but the mistake would be to think about computing as computer science, a name that was conjured up at one point, and forget the wider application of computers and computing. In terms of teacher training, is the Minister looking at peer-to-peer learning and how we could use the model created in the specialist leaders of education scheme, which has been so successful in driving school improvement at relatively low cost, in order to identify the teachers who are driving forward really good pedagogy and practice around the teaching of computing, as it will now be called following this order? Having done that, will we be able

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to scale that expertise in order to engage other people, and how can we motivate teachers to perform that good work for children in this country?

Lord Nash: I am grateful to the noble Baroness, Lady Jones, and the noble Lord, Lord Knight, for their excellent speeches and their broad support for the name change and the need to revitalise the ICT curriculum. The noble Baroness asked the very important question of what steps the Government are taking to ensure that the professional development of teachers keeps pace with the curriculum change. In addition to the points I mentioned in my opening speech, and to provide more detail on one of them, the National College for Teaching and Leadership has established an expert group to signpost schools, teachers and trainees towards existing high quality curriculum resources. We will consider the group’s recommendations carefully as we prepare for the implementation of the new national curriculum from September 2014. The £2 million funding for the computer science CPD runs until 2015. By then, we will ensure that teachers in approximately 16,000 primary and secondary schools are capable of teaching computer science. We think that this number is very adequate.

Secondly, the noble Baroness asked what the Government are planning in order to ensure that we attract new specialist computer staff to teach in schools. We have made available bursaries of up to £9,000 for suitably qualified candidates to help ensure that computer science undergraduates consider teaching as a career option. Furthermore, there are up to 100 scholarships worth £20,000 each for exceptional applicants. Initial teacher training providers are also offering subject knowledge enhancement courses to graduates from non-computer science courses which have a significant technology component. These courses will provide candidates with the computer science knowledge they require to go on to study the computer science PGCE.

Thirdly, the noble Baroness, Lady Jones, asked me to confirm that the change in name does not represent a narrowing of the curriculum and that pupils will be taught e-safety. I can confirm that the name change represents a rebalancing rather than a narrowing of the curriculum. The purpose of the study statement for the new computing curriculum states that pupils should become digitally literate—as the noble Lord, Lord Knight, stated was so important—through this particular curriculum subject. There is content on digital skills at key stages 1 to 3. Keeping our children and young people safe on the internet is a top priority for this Government and the noble Lords know that it is an area in which we are doing a great deal of work. This is why for the first time children will be taught in primary school how to stay safe on the internet, to keep personal information private and to use technology respectfully and securely. We have also strengthened the requirements around e-safety at key stages 3 and 4. Throughout their schooling, pupils will be taught to recognise inappropriate contact and conduct as well as to know each appropriate way to report concerns. We have been advised on this by leading e-safety experts, including the Child Exploitation and Online Protection Centre, the UK Safer Internet Centre, the NSPCC and Professor Sonia Livingstone.

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Fourthly, the noble Baroness asked whether the teaching would be successful. It needs to be supported by sufficient funds to modernise ICT facilities and keep them current. Evidence from the British Educational Suppliers Association shows that school spending on digital technology, hardware, software and services is increasing annually. Schools are choosing to make this expenditure—there is no ring-fenced capital or revenue funding for digital technologies. I agree with the noble Lord, Lord Knight, that if it were true that there was only one official focusing on this in the department, that would be too few. I understand that there is one leading official who is supported by the STEM team. However, I undertake to investigate the position further so that we can consider whether we have enough support.

We will work with the Design and Technology Association, the Royal Academy of Engineering and others on support for the new design and technology curriculum, including 3D printers. We are working with teachers to identify the resources that schools can use to teach computing and design and technology. I was delighted to hear that the noble Lord, Lord Knight, recently visited the Isle of Portland Aldridge Community Academy and thereby celebrated the success of the sponsored academy programme initiated by the previous Government. The noble Lord asked about the pupil premium and whether it can be used for purchasing personal devices. I know that some schools provide iPads and I am sure that it will become a growing trend. It is a scenario that I would be grateful to discus with him further because his expertise is clearly greater than mine and I would welcome the opportunity of doing so.

The noble Baroness, Lady Jones, asked whether, given that computing skills and equipment are increasingly integral to the teaching of all subjects, the Government have given sufficient thought to what computing skills should be taught. As she knows, this Government are keen to trust teachers to use their own discretion. Together with the training that we will be providing, it is up to schools to determine where and how they teach computing skills in the context of other curriculum subjects, although clearly some areas of the curriculum have strong affinities with the content of the computing programmes of study, most notably maths and design and technology. The noble Baroness pointed out that this subject will need to be refreshed constantly. I hope that this is the start of that process so that in future all Governments keep it constantly under review, which is so important in such a fast-moving world.

In addition to the publication today of the new curriculum for computing, I look forward to the implementation of the new national curriculum in its entirety and, in particular, a return to its intended purpose: a minimum national entitlement organised around subject disciplines across core and foundation subjects. The new national curriculum will provide schools with a set of expectations that match those in the highest-performing education jurisdictions in the world and will challenge them to realise the potential of all their pupils in an increasingly competitive global marketplace.

Motion agreed.

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Armed Forces (Retrial for Serious Offences) Order 2013

Considered in Grand Committee

4.42 pm

Moved by Lord Astor of Hever

That the Grand Committee do report to the House that it has considered the Armed Forces (Retrial for Serious Offences) Order 2013.

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

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, there are two instruments for consideration today, the Armed Forces (Retrial for Serious Offences) Order 2013 and the Armed Forces (Court Martial) (Amendment) Rules 2013. I shall say a few words on each, starting with the former. For your Lordships’ convenience, I shall refer to it as the retrial order.

This instrument enables persons acquitted of certain very serious offences by a service court—for example, the court martial—to be retried in the service justice system. This may happen only if new and compelling evidence comes to light in relation to those offences and if it is in the interests of justice for a retrial to take place. These are high hurdles to clear.

Our purpose in making this order is to follow the same path as Part 10 of the Criminal Justice Act 2003, which reformed the law relating to double jeopardy. Before the 2003 Act, a person who had been acquitted of an offence could not be retried. The 2003 Act changed the law to permit retrials in respect of a number of very serious offences where new and compelling evidence has come to light, but separate provision is required to apply this to our service justice arrangements.

We are now filling that gap. I do not want to give the impression that this measure is driven by specific concerns about members of the Armed Forces who are evading justice because they cannot currently be retried. It is intended simply to bring the two systems of justice into line on this matter, extending the same principles from one to the other; nor would I want to give the impression that we are doing this now for any reason other than we want to have the legislation ready.

The Armed Forces (Retrial for Serious Offences) Order makes provision for the retrial of persons previously acquitted in the service justice system of a “qualifying” offence. Qualifying offences are set out in Schedule 1 to the order. They include a very limited number of criminal offences—such as murder, manslaughter and rape—and, because this legislation is for the services, a small number of disciplinary offences, such as assisting the enemy.

The order sets out the arrangements governing the investigation, charging and application for a retrial of an acquitted person for a qualifying offence. Retrial is a complex matter and there are, as I said, high hurdles to get over first. In broad terms, the order will enable the service police to reinvestigate the commission of a

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qualifying offence by a person previously acquitted of the offence. Investigative measures may, in most cases, occur only if the Director of Service Prosecutions consents; and he may only give his consent if he is satisfied that it is in the public interest to proceed with an investigation and that there is either some new evidence that warrants an investigation or some evidence would come to light if the investigation takes place.

However, there is a power for service police to take investigative steps without the consent of the Director of Service Prosecutions if it is necessary to do so to prevent the investigation being prejudiced. Additionally, a person previously acquitted of a qualifying offence may be arrested only if a judge advocate has issued a warrant for their arrest. Where a person has been charged with a qualifying offence, and if the Director of Service Prosecution consents, a prosecuting officer may apply to the Court Martial Appeal Court for an order to retry the person. Where such an application is made, the court must make the order applied for if it is satisfied both that there is new and compelling evidence against the acquitted person and that it is in the interests of justice to do so. As the Committee will recognise, therefore, a strong set of safeguards has been built into the new procedures.

It is important to clarify the position of those who have left the Armed Forces. In most cases, there are strict limits in place that prevent former service personnel being charged with a service offence when they have been out of the Armed Forces for more than six months. However, this time limit can be waived if the Attorney-General consents. The time limit applies in relation to all former service personnel who are suspected of committing a service offence and not just to those who might face retrial. These provisions also apply to civilians subject to service discipline.

The order also makes provision for the production of evidence and attendance of witnesses at the hearing. It creates a right of appeal to the Supreme Court. There is provision for the Court Martial Appeal Court to make an order restricting the publication of material which might otherwise prejudice the administration of justice and, furthermore, it makes it an offence for a person or an organisation to breach an order prohibiting publication. It provides for the period of time in which certain arrangements for the retrial must be made and for the holding in custody, and release from custody, of a person, previously acquitted, who is charged with a qualifying offence. There are also a small number of supplementary provisions relating to the rules governing the service of documents and the exercise of functions of the Director of Service Prosecutions and the Court Martial Appeal Court.

I now turn to the second order, the Armed Forces (Court Martial) (Amendment) Rules 2013. The court martial was established by the Armed Forces Act 2006 as a standing permanent court that replaced the system of ad hoc courts martial that were convened by the services. The court martial may sit anywhere, within or outside the United Kingdom. It comprises a civilian judge, known as the judge advocate, and lay members—sometimes referred to as the board members—who are usually officers or warrant officers. Its rules of procedure are set out in the Armed Forces (Court

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Martial) Rules 2009. I shall call these the 2009 rules. These broadly follow those that apply in the civilian system, but reflect the different make-up of the court martial. The main purpose of the second instrument before us today is to amend these rules, specifically Rule 29, to reduce, in certain circumstances, the number of lay members that sit on the panel of the court martial.

The court martial rules—in fact, the rules of all service courts—are kept under review by the Service Courts Rules Review Committee. This is a non-statutory body under the chairmanship of the Judge Advocate-General. Currently, Rule 29 of the 2009 rules provides that where court martial proceedings relate to a more serious offence, there shall be at least five lay members. The Service Courts Rules Review Committee considers that in cases where a defendant or co-defendants all enter a guilty plea before the trial begins, it is not necessary to have five lay members. It has therefore recommended an amendment to Rule 29 that reduces the minimum number of lay members required to sit in the court martial in these circumstances from five to three. The aim of this is to reduce delay and the cost of proceedings in the court martial, but it is not cutting corners. It is a sensible adaptation of the system to a particular set of circumstances.

The instrument does two further things. It prescribes a procedure for the court martial to certify to a civilian court, which has the power to commit for contempt, the failure of a person to comply with an order of a judge advocate to produce material to a service policeman or to give a service policeman access to it. It also removes a piece of legislation made obsolete by changes made in the Armed Forces Act 2011.

The Armed Forces Act 2006 gave Her Majesty’s Armed Forces a service justice system that provides consistent and fair access to justice for all, whether they are in Aldershot or Afghanistan. We have faith in this system and, more importantly, our Armed Forces have faith in it. However, we continually look for ways to enhance our processes and to keep the service justice system in line with its civilian counterpart. The orders that we are considering today contribute to that effort.

Finally, I will say a few words about ECHR issues. It is the custom for Ministers commending instruments subject to the affirmative procedure to say whether they are satisfied that the legislation is compatible with the rights provided by the European Convention on Human Rights. I am happy to inform the Committee that I believe that the instruments we are considering today are indeed compatible with the convention rights.

Lord Trefgarne: My Lords, I am of course grateful to my noble friend for what he said but will make just a few remarks about the Armed Forces (Retrial for Serious Offences) Order. We need to be careful that we do not surround the activities of our Armed Forces, in particular our Special Forces, with such a panoply of legislation that they will have difficulty discharging their duties in the manner that we would wish. Of course the Armed Forces cannot be exempt from the law, but if they are at risk—or fear that they are at risk—of too zealous an application of the relevant legislation, there may be difficulties of a wider kind.

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I apologise for going back so far, but some of your Lordships may recall an incident in Gibraltar in 1988 when Special Forces were involved in an operation against IRA suspects. At the time, there was much initial discussion, although it did not go on for ever, as to whether they had complied with the law or not. It was a very finely balanced judgment and a question of whether they had complied with the rules of engagement, as they are called, laid down by Ministers in respect of the use of firearms in circumstances such as then prevailed. I was much involved in the discussion; indeed, there was a very important debate in your Lordships’ House at that time, to which I replied. It was established that they had indeed complied with the required legal provisions and therefore that no question of any offence arose. However, there was a coroner’s examination of the matter in Gibraltar. The outcome of that was not initially certain but eventually it was clear.

It is important that in general terms we do not surround our Armed Forces, and particularly our Special Forces, with such a panoply of rules and regulations that when the time comes for them to do maybe some pretty dreadful—but nonetheless necessary —things, they are inhibited by a possible fear of vexatious prosecution or perhaps a second prosecution, as provided for by this order. I need to be careful, as there is a particular case before the courts at present which must take its course. However, I hope my noble friend can assure me that nothing in this order will create a situation where the activities of our Armed Forces, including our Special Forces, are placed at risk or in greater difficulty.

Lord Rosser: My Lords, we have two orders which, on the face of it, go in slightly different directions. The second order, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings for serious cases where a guilty plea has been entered, could be argued to be weakening the panel, at least as far as lay members are concerned.

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): My Lords, the Division Bell is ringing. The Committee will adjourn for 10 minutes.

4.57 pm

Sitting suspended for a Division in the House.

5.07 pm

Lord Rosser: Perhaps I may resume my contribution, which I had hardly started. I should say again that the second instrument we are discussing, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings where a guilty plea has been entered in serious cases, could be argued to be weakening the panel, at least as far as lay members are concerned. The first instrument we are considering seems to go in the other direction, since among other things it now provides for a panel to be able to hear a

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case again if new and compelling evidence comes to light following a person or persons being acquitted of certain serious offences.

I understand what has driven the order; namely, bringing service proceedings into line with the civilian justice system. I had assumed that the terms of the order would apply only if the person or persons concerned in respect of whom new and compelling evidence had come to light were still members of the Armed Forces, but I think that the Minister referred to a six-month period that could possibly be waived. I am not sure whether that means that for a period of six months after someone has left the Armed Forces, in the circumstances set out in this order, they could still be recalled and retried through the court martial system. I would be grateful if he could clarify the situation when he responds. What would happen if there were two or more defendants, one or more of whom was still in the Armed Forces and one or more of whom was not? How would the reopened case be dealt with? Would it be dealt with within the court martial system?

As I say, I understand what is driving the order, but what is driving the second instrument is a little less clear. Paragraph 7.2 of the Explanatory Memorandum states that the change being proposed,

“is aimed at reducing both delay and the cost of proceedings”.

Reducing delay can certainly be in the interests of justice, but reducing the cost of proceedings sounds as though the instrument is, at least in part, financially rather than justice driven, or at least financially at least as much as justice driven. No figure is given for the reduction in the cost of proceedings, and, as far as I can see, the Explanatory Memorandum is also silent on what the reduction in delays would be, and on how such a reduction would be achieved as a result of the proposals set out in the rules.

Currently, at least five lay members are required to sit in court martial proceedings that relate to a more serious offence, as listed in Schedule 2 to the Armed Forces Act 2006. Under the new rules, the minimum five lay members would be reduced to a minimum of three and a maximum of five in cases relating to a more serious offence where the defendant or defendants entered a guilty plea before the trial began, and where sentence had to be passed. As the Minister said, this arises from a review and recommendation of the Services Courts Rules Review Committee. Is there to be any reduction in the number of non-lay members sitting in court martial proceedings? Are lay members represented on the Services Courts Rules Review Committee that carried out the review and made the recommendation in front of us today?

It would be helpful to know what the savings would be, since it is not immediately obvious that savings of any significance are likely to arise, unless reducing the number of lay members from five to three will be used as a reason for reducing the total number of lay members eligible to sit. To enable me—if nobody else—to get some feel for the impact that the proposed changes might have, perhaps the Minister will answer the following questions, if not today then at a later date. How many court martial proceedings with lay members were held in 2012? What was the total number of cases they heard? What was the total number of

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days in aggregate for which the courts martial sat? Is the number of sitting days going up, going down or remaining static each year? What is the total number of lay members eligible in aggregate to sit in court martial proceedings? What is the average number of sitting days for a lay member each year?

Furthermore, in how many cases in 2012, if this statutory instrument had been in effect, would the number of lay members sitting on a panel have been reduced from five to three, and what percentage of cases where the sole defendant or co-defendants pleaded guilty before the commencement of the trial would that have represented? Does the change provided for in the statutory instrument have the support of the lay members currently eligible to sit?

Paragraph 8.1 of the Explanatory Memorandum states that the rules have been the subject of “rigorous consultation” with the various bodies and organisations to which it refers. I am not sure of the difference between “consultation” and “rigorous consultation”, and I suspect that the Minister is not, either. Therefore, I am not inviting him to answer the question. However, does one of those bodies and organisations listed in the Explanatory Memorandum as having been consulted represent or speak for the lay members whose numbers are going to be reduced under the terms of this statutory instrument?

I conclude by saying that while we have no intention of opposing the order and rules, I would be grateful if the Minister would respond, at some stage if not today, to the points I have made. Unless there is a corresponding reduction in non-lay members sitting in court martial proceedings, the statutory instrument alters the balance between lay members and non-lay members in sentencing for serious offences where a guilty plea has been entered. I am not clear of the justification for this, in the interests of justice. The decision on whether one is found guilty of an offence is a profoundly significant one for a defendant, and so, too, is the decision on sentence where lay membership involvement has been reduced where there has been a guilty plea, since that sentence—we are talking about serious offences—can take away an individual’s liberty for a considerable period of time.

5.15 pm

Lord Astor of Hever: My Lords, I am grateful for the support that both noble Lords gave to the two instruments that we have considered today. Taking the question from my noble friend Lord Trefgarne first, I agree with him that we should not surround our Armed Forces, particularly our Special Forces, with too much of a panoply of legislation. However, we feel that we have got this right. My noble friend mentioned the Special Forces, and in particular the Gibraltar case. He has raised a really important point, not just for Special Forces but for all members of the Armed Forces, and I am very grateful to him for that. My answer is that our Special Forces personnel are in the same position as regards the law as any other member of the services. I am sure that neither they nor the Committee would wish it to be any other way. However, I emphasise that there are a strong set of safeguards before any retrial can be set in motion. I stress that the

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particular demands of service life and the requirements of operations are always in the minds of those investigating and prosecuting alleged offences.

I turn to the questions asked by the noble Lord, Lord Rosser, although I will not necessarily deal with them in the order that he asked them. First, he asked whether there are lay members on the Service Courts Rules Review Committee and whether the order has their support. The committee is chaired by the Judge Advocate General—the senior service judge—and includes the Director of Service Prosecutions and legal and policy representatives from the Ministry of Defence. The Association of Military Court Advocates is also represented. In its work, the committee consults the services, the Service Prosecuting Authority, the Association of Military Court Advocates and the Military Court Service. It does not make the rules itself but makes recommendations to the Secretary of State, who does make the rules, and any necessary changes, through the procedure being used today. As I explained, this order is the result of a recommendation from the committee.

The noble Lord asked how many court martial sittings there were last year with lay service members on the panel. Last year, I understand that 516 service personnel were court-martialled with lay members. How many cases were heard in a court martial is, in essence, the same question, and the answer is also 516. The court martial sat for 689 days in 2012. The noble Lord asked if the number of sitting days was going up, going down or staying the same. I am advised that it appears to be staying the same.

The noble Lord asked about the total number of lay members who are eligible to sit. In principle, all officers and warrant officers of the three services who are eligible and qualified in accordance with the Armed Forces Act 2006 may sit in the court martial. In some cases, certain civilians may also be eligible. Who is eligible in any given case depends on a wide range of factors specific to each case. I am aware that that may not fully answer the noble Lord’s question, and I will pad that out in a detailed answering letter.

The noble Lord asked whether it weakens the panel for a court martial if it is reduced from five lay members to three. We feel that it does not. In fact, most courts martial have a three-man lay panel for sentencing and for trial purposes. This change simply recognises that, where an accused is charged with a more serious offence and admits his guilt, there is no need for a five-man panel.

The noble Lord asked about the average number of sitting days per lay member per year. Again, we will have to do a bit of digging around to find out the answer to that. I shall write to the noble Lord.

Finally, the noble Lord asked what the difference is between “consultation” and “rigorous consultation”. “Rigorous consultation” is a shorthand way of referring to the fact that any proposals that we make for changes to the service justice system are based on a collaborative and open process between the Ministry of Defence and those who administer, and are subject to, the service justice system.

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I shall study the official record of the points that have been raised and will write if I have anything to add to our exchanges.

Motion agreed.

Armed Forces (Court Martial) (Amendment) Rules 2013


Considered in Grand Committee

5.20 pm

Moved by Lord Astor of Hever

That the Grand Committee do report to the House that it has considered the Armed Forces (Court Martial) (Amendment) Rules 2013.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013


Considered in Grand Committee

5.21 pm

Moved by Lord Freud

That the Grand Committee do report to the House that it has considered the Social Security, Child Support, Vaccine Damage and Other Payments (Decisions and Appeals) (Amendment) Regulations 2013.

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

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, I am pleased to introduce this instrument, which was laid before the House on 13 June 2013. I am satisfied that it is compatible with the European Convention on Human Rights.

The regulations provide for the introduction of the mandatory reconsideration process for vaccine damage payments, child support maintenance payments, mesothelioma lump sum payments and all social security benefits, save for universal credit and personal independence payment, which have been subject to mandatory reconsideration since April this year.

Currently, a claimant can ask for a decision to be reconsidered by a decision-maker, which may result in a revised decision. In practice, however, many people do not do so and instead make an appeal from the outset. This is more costly for the taxpayer, time-consuming, stressful for claimants and their families, and for a significant number of appellants unnecessary. I say this because the reason that the vast majority of decisions are overturned on appeal is because of new evidence presented at the tribunal.

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I hope that noble Lords will agree that we need a process that enables this evidence to be seen or heard by the decision-maker at the earliest opportunity. It is accepted that this does not mean that all decisions will be changed and that appeals will be unnecessary, but we believe we should have a process that at least promotes this possibility. Mandatory reconsideration does just that.

Mandatory reconsideration will mean that applying for a revision will become a necessary step in the decision-making process before claimants decide whether they wish to appeal. Importantly, the intention is that another DWP decision-maker will review the original decision, requesting extra information or evidence as required via a telephone discussion, and, if appropriate, correct the decision. When this happens, there is no need for an appeal—an outcome that is better for the individual and better for the department.

I assure noble Lords that claimants will of course be able to appeal to Her Majesty’s Courts and Tribunals Service if they still disagree with the decision. The means of doing this will be set out in a letter detailing the outcome of the reconsideration and the reasons for it. We would hope that because of the robust nature of the reconsideration and the improved communication, this new process will result either in decisions being changed or, where this does not happen, claimants deciding that they do not need to pursue an appeal.

We undertook a formal consultation before we introduced mandatory reconsideration for universal credit and personal independence payment. A number of respondents suggested that there should be a time limit on the reconsideration process and there have been further representations about this. While we understand the concerns, we are not making any statutory provision for it. Some cases are more complex and require additional time—particularly, for example, cases where extra medical evidence may need to be sought. Others will be completed in days. It will be a case of considering each case on its merits.

However, we are considering the scope for internal performance targets. While these will reflect the requirement to deal with applications quickly, it will not be at the expense of quality. The process will fail if clearance times become the driver. We will be back with unnecessary appeals and all that that entails. It is a balancing act which we must get right. We will monitor developments closely and adjust accordingly. We may in due course learn from the experience of UC and PIP but at this time we have had so few requests for mandatory reconsideration that we have not as yet learnt anything which will inform our future handling of these applications. We will of course continue to monitor the situation ahead of October.

I turn now to the payment of benefit pending reconsideration and appeal. This has caused a lot of concern, particularly in relation to employment and support allowance. First, I want to make the point that there is no change from the current policy. If someone is refused benefit under the existing provisions and they request a revision of that decision, benefit

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will not be paid pending the consideration of that request. It will be the same for mandatory reconsideration. Secondly, there is no change in relation to appeals. If someone appeals a decision under the existing provisions, no benefit is paid pending the appeal being heard—save for ESA, which I will come to. This must be right. It would be perverse to pay benefit in circumstances where the Secretary of State has established that there is no entitlement to benefit.

I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard. This is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. There could therefore be a gap in payment. However, during that period—and I repeat my message that applications will be dealt with quickly so that this is kept to a minimum—the claimant could claim jobseeker’s allowance or universal credit. In other words, alternative sources of funds are available. The claimant may choose to wait for the outcome of his application and, if necessary, appeal and be paid ESA at that point. It is accepted that the move from stopping ESA to claiming and being paid jobseeker’s allowance will not happen overnight, but provided that the claimant does not delay in making his claim, the wait for his first payment of jobseeker’s allowance should be short.

Finally, another change to mention linked to the introduction of mandatory reconsideration is that all appeals will be made directly to HMCTS and not as now to this department. This change brings the DWP in line with other departments’ appeals processes. This is a positive move as it will allow HMCTS to book hearing dates more quickly than is possible currently. The department believes that the regulations will result in a clearer, escalating dispute process that will deliver a fair and efficient system for people who dispute a decision. I commend this statutory instrument to the Committee.

Baroness Sherlock: My Lords, I thank the Minister for his explanation of these regulations, which will extend the provision of mandatory reconsideration to a range of benefits and payments administered by the DWP. I also thank the Minister for clarifying which benefits the regulations will apply to—I understood him to say that they would apply to all benefits administered by the DWP with the exception of universal credit and PIP. When he comes to respond, can the Minister clarify the way in which these regulations will apply specifically to JSA and ESA? I had thought that they were in some part addressed by earlier regulations. It is possible that only the direct lodgement elements of JSA and ESA are affected by these regulations, the commencement having been done by the previous set. Perhaps the Minister could clarify that when he comes to respond.

5.30 pm

The interim response to the consultation published by the Government in June 2012, to which the Minister referred, noted that the department had received 154 responses to the consultation. Although that was of

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course about the earlier decisions around mandatory reconsideration, the principles are broadly the same. That interim response said:

“The responses have been analysed and the proposals reviewed in light of all the comments made. The Department does not propose to make any significant changes to the draft regulations”.

Can the Minister assure the Committee that the department took rather more notice of the content of those 154 responses than that paragraph might suggest? In fact, those responses raised some pretty big questions. Perhaps the Minister could take us through the reasoning behind the decision to which he referred in his opening remarks. I have looked at some of the comments made by outside organisations such as Citizens Advice, the Child Poverty Action Group and others. I will draw out one or two quite specific points.

First, as the Minister mentioned, a number of respondents proposed that there should be a time limit for the department to complete its reconsideration of disputed decisions. I take the point that a time limit would make it difficult to accommodate the huge variety in the nature of cases but can the Minister deal with the fact that, at the moment, if the department were—unimaginably, obviously—to drag its feet in response to an application, a claimant can move matters along by lodging an appeal? These regulations would preclude that possibility. Can the Minister tell the Committee how the interests of the claimant will be protected in these circumstances? After all, 39% of all social security and child support appeals to the First-tier Tribunal were successful in the period from January to March 2013, the last quarter for which statistics are available. Since there were 130,517 social security and child support cases determined in those three months, I make that over 50,000 people who had been denied benefits to which they were lawfully entitled. That, presumably, could be 200,000 in a 12-month period, were the pattern maintained. I presume that the Minister would accept that the Government owe a duty of care to those citizens to remedy these errors swiftly.

It is also worth noting that the Courts and Tribunals Service is facing a significant increase in its caseload, driven mainly, it reports, by the 37% increase in the number of social security and child support appeals in 2012-13 as against the previous year. The last statistical bulletin suggests that this was driven primarily by appeals in relation to ESA, which more than doubled between the final quarter of 2011-12 and the comparable period of 2012-13. In fact, those ESA claims accounted for more than 70% of all the social security and child support receipts in the final quarter of 2012-13. Does the outstanding caseload for social security and child support tribunal cases—which is now 41% higher at the end of 31 March 2013 than it was a year earlier—suggest that there will be a greater delay for claimants, not only in being allowed to lodge an appeal but then in the time it might take for that appeal to be heard?

Can the Minister tell the Committee what assessment the department has made of the likely change in the end-to-end elapsed time for a claimant wanting to challenge a decision to secure a successful appeal? We could, for example, see them being delayed from making an application for reconsideration, so that there are more reconsiderations, which take longer. There would be a delay, therefore, before they are allowed to appeal

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and potentially a delay in having any appeal heard, as a result of the increasing caseload faced by the Courts and Tribunals Service.

This matter was raised by the Social Security Advisory Committee in response to these draft regulations. The government response to SSAC’s question as to how the department would ensure prompt decisions is at paragraph 8.3 of the Explanatory Memorandum. It verged on the gnomic:

“The Department is committed to ensuring action is taken promptly by introducing a range of performance indicators. Work to develop these indicators are ongoing”—

sic—

“and will be finalised prior to October 2013”.

Are they the same performance indicators whose scope the Minister said he was considering? If so, can he give us any hints as to what they might be, whether they are definitely going to be introduced and, if so, when?

Furthermore, paragraph 12 of the Explanatory Memorandum published with these regulations suggests that the Government do not intend to publish data on the number of requests they receive for reconsideration, how long it takes to process them or the outcome of the reconsideration requests. Can the Minister tell me if I have got that right? If so, how can Parliament scrutinise the effectiveness of this process, which the Government intend to replace a statutory process which is, at least currently, subject to published data?

The other big issue raised in response to the consultation was the proposal the Minister referred to; that the department should consider paying ESA pending reconsideration. The Minister indicated that this was not a change from the current process and that ESA is of course paid only at the assessment rate once an appeal is started. However, as he acknowledged, an applicant may not now go to appeal and is therefore obliged to wait for however long it takes the department to reconsider his or her case. Can the Minister take me through what would happen to someone in that circumstance? If the claimant did what he suggests, and applied for JSA, would they therefore be subject to the full range of conditionality and sanctions that would apply to anyone else making an application for JSA?

If that is the case, can the Minister help me understand what would happen if a claimant, for example, who believed they were not fit for work none the less had their application for ESA turned down? They start a process of reconsideration and appeal but meanwhile, because they have nothing else to live on, decide to apply for JSA. However, they are sanctioned for failing to take up a job or to follow an instruction which they do not believe they are fit to do. Let us suppose that claimant is eventually successful, and the tribunal agrees that they do not have to undertake work because they are not fit to do it. What would then be the status of any sanction that was applied to the claimant in those circumstances?

Another issue that was raised in relation to these proposals was about what would happen if the department refused to reconsider a decision, either because it felt there were no grounds or because the claimant was late in making the application. Can the Minister confirm

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that that means that the applicant could not go to appeal because there had been no reconsideration and that is a necessary gateway, if you like, before being allowed to appeal? Are there any circumstances in which a claimant could appeal without having had a reconsideration? If so, what time limits would apply? Can the Minister—this is particularly important—tell us how broad he is willing to make the grounds for considering a late application for reconsideration? Many concerns have been expressed about vulnerable clients, particularly perhaps those with mental health issues, who might struggle with that. How broad will he be able to be with that?

The principles of mandatory reconsideration were discussed in some detail during the passage of the Welfare Reform Bill, so I have not revisited them today. I realise that I have asked a number of detailed questions, but they do seem to be crucial. I hope the Minister will answer them now or, at worst, when he comes to write, if necessary, after the event.

Lord Freud: I thank the noble Baroness for responding with her customary detailed and forensic approach to this. She has raised a number of important issues, which gives me an opportunity to set out the Government’s thinking a little further. I can assure the noble Baroness that we will be closely monitoring the new process and its impact on claimants and appeals during the early stages of its implementation. Clearly, it is a key change and we must get it right. I will deal with as many of the specific questions as I can and turn to the printer to answer the others.

The noble Baroness asked, first, to what these regulations apply. Earlier regulations dealt with the contributory JSA and ESA—in practice we have taken that apart—which is the new ESA and JSA element. These regulations apply to the legacy versions of income-based ESA and JSA. The two income-based benefits will be gradually replaced by universal credit.

On the question of conditionality, we would see modified conditionality for a person requesting mandatory consideration—that is, conditionality that would be adjusted for the fact that the person was in that position. This is the current position and, in practice, there will be no change on that basis.

On the publication of data, the issue is that the data effectively will not meet the standards for publication, which, as the noble Baroness knows, are pretty strict. That means that they will not be publishable because the collected data will not be validated. That is the issue. A validation system for this would be costly. Therefore, we have no plans for publication, although we will look at how we can get more information out. We are looking at how we monitor the process in the early period to make sure in particular that we get the timings right and that appropriate information is made available.

On the question of late application for reconsideration, the decision-maker is in a position to extend the time to apply if the claimant has good reason for not having applied within the deadline, which is one month. However, there is an absolute deadline of 13 months that the decision-maker cannot go beyond.

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I think that I have answered the bulk of the questions, but there are a few more on which I will write to the noble Baroness to make our position clear. On that basis, I commend these regulations to the Committee.

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Motion agreed.

Committee adjourned at 5.43 pm.