Anti-social Behaviour, Crime and Policing Bill

Commons Amendment

4.55 pm

Motion A

Moved by Lord Faulks

That this House do not insist on its Amendment 112 and do agree with the Commons in their Amendment 112A in lieu.

112A: Page 121, line 24, leave out “was innocent of” and insert “did not commit”

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The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, the House will recall that Amendment 112 changed the definition of a miscarriage of justice for the purposes of paying compensation. At the heart of all our discussions lies the question: what is a miscarriage of justice? It is a strong term, which cries out for proper definition. There is general agreement, including from the Grand Chamber of the European Court of Human Rights in Strasbourg, that it is more than a simple acquittal. The fact that someone was tried and the evidence proved insufficient to convince a jury of their guilt does not mean that a miscarriage of justice took place. Nor do the Government believe that someone whose conviction was overturned because changes to the evidence against them, such as developments in expert knowledge, made that conviction unsafe has necessarily suffered a miscarriage of justice. Although following the quashing of a conviction someone will be presumed innocent, there may be a retrial on the basis of the remaining evidence, at which there is the potential for a new conviction. Justice cannot be said, in these cases, to have miscarried.

The Government firmly believe that a miscarriage of justice can be said to have occurred where someone who was innocent was convicted. The question therefore becomes: how do you know that happened? In our previous debates, some noble Lords have asked how applicants for compensation can be expected, sometimes years after their wrongful conviction, to prove their innocence. The answer is that they will not. In all cases, the Court of Appeal will have already considered a new fact—the new fact that led to the quashing of the conviction—and this new fact will exonerate those who are truly innocent. These are the people who have truly suffered a miscarriage of justice: people who were convicted because the fact which now exonerates them was unknown or unrecognised, be it the proof that they were somewhere else, the DNA that convicts a different perpetrator or the evidence that the offence simply did not take place. It is the nature of the new fact that demonstrates innocence, and the applicant for compensation does not need to provide any further evidence to prove themselves eligible for compensation within the statutory test.

The Government remain firmly of the view that the definition of a miscarriage of justice, which was inserted by Amendment 112 in your Lordships’ House, does not provide the necessary clarity. It is similar, although not identical, to the wording used by the noble and learned Lord, Lord Phillips, in the Supreme Court’s judgment in Adams and, as he said:

“This test will not guarantee that all those who are entitled to compensation are in fact innocent”.

We believe that the test should guarantee exactly that, because we believe that only those who are shown not to have committed the offence for which they were convicted have truly suffered a miscarriage of justice and deserve recognition and recompense for that. However, I am sure that none of your Lordships wants those who are in fact guilty to receive compensation.

The amendment adopted by your Lordships on Report would have required the new fact to show,

“conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”.

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Careful reading of this proposed definition makes it clear how difficult a burden this places on the Secretary of State. It would require him, when considering an application for compensation, to look not just at the new fact but at the whole of the evidence, and to decide whether there is any possibility that a conviction might result. The aim of the Supreme Court in the Adams judgment was both clarity and fairness but, with all due respect, I suggest that it did not in fact achieve either. Rather, it required an adjudication from the Secretary of State considerably more complex than that which we are now proposing.

During the debate that took place on the previous occasion when this matter was before your Lordships’ House, the noble Lord, Lord Pannick, indicated that it was very unsatisfactory that the Secretary of State should be asked to pronounce on guilt or innocence. I am not sure that, on that occasion, I gave a sufficient response. Let me do so now.

5 pm

The applicant will have to satisfy the Secretary of State that he is eligible for compensation within the meaning of the statutory test. If your Lordships accept the government amendment, the word “innocence” is removed altogether from his consideration of the application. Let me make it perfectly clear that the difference between what we now suggest should be part of the Bill and what was originally there is only a question of words. It would not result in a different determination in any one case. But words matter in this context because there is a deep, visceral unease about anything that may be said to run contrary to the presumption of innocence—hence the changing of the words.

However, the question—I revert to the Secretary of State’s function—is what he will use to decide whether an applicant is eligible. That is the question. The Court of Appeal will have provided a detailed judgment explaining why, so long after a conviction, a new fact has enabled it to conclude that the conviction should be quashed. In my experience of reading the decisions of the Court of Appeal Criminal Division, the basis on which a conviction is overturned is always made perfectly clear. The Secretary of State will simply look at that judgment and be able to decide, in accordance with a straightforward test that we are proposing by this amendment, whether an applicant is entitled to compensation. It is clear that the Court of Appeal will have set out in detail why it has come to that conclusion and whether it fits the clear definition that we suggest is appropriate.

The test proposed in your Lordships’ House on Report is also highly ambiguous. What one person believes is evidence sufficient possibly to bring about a conviction, another may argue could never have had such a result. The effect of this would undoubtedly lead applicants to contest decisions denying them compensation. Applicants denied compensation following the Adams judgment have, in some cases, spent years attempting unsuccessfully to get those decisions overturned by the courts. Indeed, as recently as 27 February, the Court of Appeal rejected three further cases, so the effect of the test is clear to this extent: it will inform more litigation. We do not

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believe this is fair, either on applicants or on the taxpayer, who often funds both sides in this fruitless litigation.

Our objections to Amendment 112 are firmly based on points of principle; this is not primarily about saving money. That said, here as elsewhere, we must deliver value for money for the taxpayer and, accordingly, it is in no one’s interests for us to be spending at least £50,000 contesting each decision to refuse compensation. That, by the way, is an estimate of the Government’s average costs per case. The taxpayer also usually funds via legal aid the unsuccessful applicant’s costs of litigation, which, in many cases, are considerably higher than the Government’s. The total cost of each unsuccessful judicial review can, therefore, run into hundreds of thousands of pounds. If we maintain an ambiguous definition, we expect the flow of judicial reviews to continue, however many times the court ultimately concludes that the Secretary of State’s interpretation was the correct one. We believe that a simpler test, which focuses only on the new fact and what that new fact shows, will make it easier for all concerned, while ensuring that those who have truly suffered a miscarriage of justice will be quickly compensated for it. That said, we have listened to the concerns that noble Lords raised about how the clause was originally drafted.

The rationale for the presumption of innocence is that it is better that 99 guilty men go free than that one innocent man is convicted. That stems from our abhorrence of the idea of an innocent man losing his liberty. Here we are concerned not with liberty but with compensation or, in other words, money, so the considerations are different.

We recognise the difficulty around the use of the term “innocent”. The European Court of Human Rights has suggested that the presumption of innocence is engaged when considering whether a miscarriage of justice has taken place. All those who have not been convicted, or whose conviction has been quashed, are presumed innocent. To avoid any implication that this is not respected, or that the Secretary of State intends to adjudicate on this question, Amendment 112A uses different language. The issue now is not whether a person is considered innocent or guilty. The issue is whether a miscarriage of justice took place when the applicant was first convicted. This will be true only if the applicant did not commit the offence, if that is what the new fact shows. That is what Amendment 112A would achieve.

Your Lordships’ House has quite properly asked the House of Commons to examine this issue again. It has now done so and has clearly resolved both to reject Amendment 112 and to agree the government amendment in lieu. Now that the elected House has reaffirmed its view on this matter, I urge your Lordships not to insist on their amendment, to reject Motion A1 and to let this Bill now pass. I beg to move.

Motion A1

Moved by Lord Pannick

As an Amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 112”

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Lord Pannick (CB): My Lords, on Report your Lordships’ House supported an amendment to include in this Bill the criteria for the payment of compensation for a miscarriage of justice based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, speaking for the majority of the Supreme Court in the Adams case. The noble and learned Lord, Lord Phillips, himself spoke in favour of my Amendment 112 on Report. He has asked me to express his regret that he is unable to be in his place today to support Motion A1 because he is abroad.

We are concerned today with cases where an applicant has been wrongly convicted of a criminal offence. In many of these cases, he or she spent years in prison before the Court of Appeal overturned that conviction. Compensation is not paid, and rightly so, simply because the judge made an error of law or there was some other technical basis for the successful appeal to the Court of Appeal. The applicant must show, on the test stated by the Supreme Court—the test approved by your Lordships’ House—that a new fact has emerged that so undermines the prosecution evidence that no conviction could possibly be based on it. That is a very difficult test to satisfy, and rightly so.

I continue to believe that the test of the noble and learned Lord, Lord Phillips, for the Supreme Court is preferable to the Government’s approach, approved by the other place, and that the amendment approved by the other place, with great respect to them, is wrong in principle and would have very damaging consequences. That was true of the original criteria set out in this Bill and rejected by your Lordships’ House on Report—the criteria that the applicant must prove beyond a reasonable doubt that he or she is innocent of the offence—and it remains true of the variation introduced by the Government in the other place, that the applicant must prove beyond a reasonable doubt that he or she did not commit the offence. The Minister has very fairly acknowledged in his opening remarks that there is no substantive difference between proof that you are innocent and proof that you did not commit the offence.

I will first seek to explain why I say that the Government’s approach will have very damaging consequences. The Minister has suggested today that the judgment of the Court of Appeal will be the only evidence which the Secretary of State needs to see in order to form a judgment on whether the applicant did or did not commit the offence. However, the Court of Appeal very rarely says whether it thinks that a defendant has proved that he or she did not commit the crime. That is not the role of the Court of Appeal. It focuses on whether a new or newly discovered fact fatally undermines the case that is presented by the prosecution. The test of the noble and learned Lord, Lord Phillips, is consistent with what the Court of Appeal does. It has never been the role of Ministers in our jurisdiction—rightly so—to pronounce on whether a person has committed a crime.

The cases in which compensation is claimed for a miscarriage of justice will often be the most controversial and sensitive. When an appeal has been allowed in the Court of Appeal on the basis that the prosecution case has been fatally undermined by a new or newly discovered fact, and when the defendant is then released from

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prison, often many years after their wrongful conviction, it is very unwise for legislation to state that it is then for the Secretary of State to pronounce on whether she thinks that the defendant has proved that they did not commit the crime. I can think of nothing more likely to keep open the sore of a regrettable miscarriage of justice, and nothing more likely to involve a politician in controversial matters of criminal responsibility.

The Minister suggested that the Government’s approach would promote certainty in the law. I have to say to him that, far from promoting certainty, the Government’s approach will inevitably be a recipe for complex, expensive and highly acrimonious litigation. The Minister said that there had been a few cases since the Adams judgment, which, he said, itself suggested that the Adams criteria were uncertain. However, as the Minister recognised, none of those cases has succeeded, and he well knows that members of our profession are quite capable of litigating any statutory definition. I therefore agree with the Government that the Bill should define the criteria for receipt of compensation for miscarriages of justice but I cannot agree that the Government’s wording, approved by the other place, is sensible in practice. It will have disastrous consequences.

Perhaps I may also say something about the issue of principle because the Minister emphasised this point in his opening remarks. He suggested that only those who are truly innocent should receive compensation for a miscarriage of justice. I say to him with the greatest of respect that that approach is wrong in principle. Our law does not ask people to prove that they did not commit a crime; it is for the state to prove that they did commit a crime. The noble and learned Lord, Lord Hope of Craighead, who I am pleased to see in his place, addressed this point with characteristic clarity at paragraph 97 in his judgment in the Adams case. He said that a person against whom there is no sufficient and admissible evidence on which a conviction can be based should not be the subject of the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is,

“right in principle that compensation should be payable”.

My noble and learned friend added at paragraph 102 that if the evidence against the defendant is conclusively shown to have been completely undermined, then there has been a miscarriage of justice which is as great whether or not the defendant committed the crime because in neither case should the defendant have been prosecuted.

5.15 pm

The Minister emphasised in his opening remarks that these Adams criteria may occasionally result in compensation being paid to a person who may in fact have committed the crime. My noble and learned friend Lord Phillips powerfully answered that point in his judgment in Adams at paragraph 55. He recognised that his test—the test approved by this House on Report—

“will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.

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I commend the analysis of my noble and learned friend Lord Phillips to your Lordships as plainly correct in principle.

In the other place the Government did not address— far less answer—the concerns about the practical consequences and the issues of principle which I have summarised. I cannot—again, with respect—agree with the attempts by the noble Lord, Lord Faulks, to respond to those points today. This House should invite the other place to think again on such an important issue. I beg to move.

Lord Brown of Eaton-under-Heywood (CB): My Lords, I supported the Government on the clause at Second Reading and again in Committee and on Report. At the risk of wearying your Lordships and displeasing, yet again, those who procured the original amendment of the noble Lord, Lord Pannick, I support the Government again on their proposed amendment and I resist that of the noble Lord, Lord Pannick.

For my part, I, too, accept that this reformulation is in substance no different from its predecessor. Because it avoids the explicit language of guilt or innocence, it may be regarded however, as better able to resist what at one stage was suggested to be its vulnerability to challenge under Article 6 of the European Convention on Human Rights.

I do not propose to repeat all the arguments that I canvassed in support of the Government’s approach at the earlier stages. I now make just three basic points. First, there is all the difference in the world between, on the one hand, a person’s right to be acquitted and thereafter presumed innocent whenever there is any lingering doubt as to his guilt and, on the other hand, the right to monetary compensation for his incarceration pending that eventual acquittal. On Report, the noble Lord, Lord Cormack, reminded us all, and indeed the noble Lord, Lord Faulks, reminds us again, that it is better that 10—the noble Lord, Lord Faulks, says 99—guilty men go free than that one innocent man be convicted. Of course, that is so and it is integral to our criminal justice system, but it by no means follows that it is better that 10, let alone 99, guilty men get financial compensation rather than that one innocent man goes uncompensated. That illustrates the total distinction between the presumption of innocence and the right to go free if there is any doubt at all about the safety of one’s conviction and, on the other hand, the right to monetary compensation for the period of incarceration until that innocence can be established.

Secondly, the present formulation put forward again by the noble Lord, Lord Pannick, is, as has been explained, essentially that of the majority in the Supreme Court in Adams—a majority of five votes to four. The then Lord Chief Justice, my noble and learned friend Lord Judge, who, alas, cannot be here today, and I were in that minority of four. The majority preferred it to the test of the minority that the claimant should have to establish his innocence. In truth the majority’s formulation is a fudge—indeed, an unprincipled fudge. None of the parties in the case argued in support of it—not even leading counsel who appeared as interveners for Justice. They were all arguing for compensation to be paid to all those whose appeal eventually succeeds.

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Now no one pursues that absolutist view. Of course, under this fudge, compensation would still be required to be paid even to those who, albeit entitled to succeed on their appeals, can nevertheless be seen clearly to have committed the offence.

I have given various examples of this at earlier stages. Today I shall give just one. Let us suppose that a defendant confesses his guilt and in his confession discloses facts of which only the perpetrator of the crime to which he is confessing could have knowledge. Later, however, on a late appeal, he is able to establish that that confession was induced by, for example, a promise that if only he would confess his guilt he would get bail. Once that is established the confession has to be set aside as one induced by guilt, even though it is self-evidently true as a confession. He is entitled to succeed on his appeal but is he really to be regarded as entitled to compensation, which could run to hundreds of thousands of pounds? I would suggest not.

My third and final point is on certainty. Again, the noble Lord, Lord Faulks, has made this point. I should have said earlier that, alas, I missed the first few minutes of his speech as it never occurred to me, in common with one or two others, that this Bill would be reached at the stage that it was. I apologise for that but I think I heard everything that he said that needed to be heard by somebody supporting his case. The proposed formulation is very far from easy to apply. Perhaps a good illustration of that is the tragic case of Sally Clark—a case about which the noble Baroness, Lady Kennedy of The Shaws, spoke more than once at earlier stages of the Bill. It is a case which raises considerable and understandable emotions. On my reading of that case—I believe this to be correct—the Court of Appeal never went further than to say that on the fresh evidence that had come to light a jury might well not have convicted her. It was not said, in the words of the proposed amendment of the noble Lord, Lord Pannick, that the fresh evidence showed—let alone showed “conclusively”—that the evidence against her at trial had been so undermined that no conviction could possibly have been based on it. Maybe, in the light of all the material, the jury would have convicted; maybe it would not.

If it is said that I am wrong in my understanding of that case, it just goes to show that the proposed formulation will lead, not to the desired clarity and certainty in the law, but to further protracted litigation on this issue. As the Minister said, based on the Court of Appeal judgment, it is perfectly simple for him to form a view —yes or no—on whether, in the light of all the material, this defendant was indeed innocent of the charge and therefore whether or not it was a clear miscarriage of justice in that sense. The elected Chamber rejected this House’s amendment first time round and I respectfully suggest that we should not challenge it again.

Lord Hope of Craighead (CB): My Lords, I had the advantage of listening to the whole of the Minister’s address with great care. I respectfully say that it was very well put across. However, I remain of the view, advanced by the noble Lord, Lord Pannick, that the Commons amendment should not be accepted. I have spoken on this matter on a number of previous occasions, so I will make a few short points.

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I agree entirely with the Minister that the issue before us is what is meant by the phrase “miscarriage of justice”. This still remains in Section 133 of the 1988 Act because in this Bill we are adding a new subsection to try to explain what the basic rule, set out in subsection (1), is all about. Therefore one has to consider how that works out in practice, given the nature of our criminal appeal process. In effect, it is an element of working out the court’s function in the appeal and the position the Secretary of State must take, given the material in the Court of Appeal’s judgment.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, has confirmed that the Court of Appeal does not have to ask itself whether the appellant was innocent: it has to consider whether the conviction was unsafe. No one is suggesting that that should be the test applied when working out whether there has been a miscarriage of justice. The problem with the test which the Minister is now suggesting and which is in the Commons amendment is that it is striving for something which is, in nearly every case, almost impossible to demonstrate. I prosecuted for four years in the course of my career at the Bar and secured a number of convictions. It frequently occurred to me that we—by which I mean the jury, the prosecutors and everyone else who was looking on—were not there. It is so difficult to work out what actually happened: one can only proceed on evidence. The Crown’s function is to demonstrate guilt as best it can on the evidence but it is extraordinarily difficult to work out whether somebody did not commit the crime and put it in a positive way in favour of the accused if you did not actually see what happened when the crime was committed. You have to rely on other people to demonstrate that fact. That is the basic problem with the test being suggested.

In my judgment in the case to which the noble Lord, Lord Pannick, referred, I recorded that when Article 14 of the covenant, from which we take the phrase, was being discussed it was suggested that the test of innocence should be put in to elaborate what was meant by miscarriage of justice, but it was not put in to the final draft. The matter was considered then but it was taken out and we are left with a phrase which we now have to construe and apply.

Without going on any further, I suggest that a better way of approaching it would be to tie the phrase, as carefully as we can, into the way our criminal process works, in a world where there can rarely be absolute certainty. We cannot achieve mathematical certainty in our system of criminal justice: we are not expected to. Because of that, I suggest we take the practical approach embodied in the phrase proposed by the noble Lord, Lord Pannick. I support his amendment.

5.30 pm

Lord Brennan (Lab): My Lords, I remind the House that I served for 10 years as an assessor for compensation for miscarriages of justice. That role required me to assess compensation, not to determine eligibility. However, in order to determine compensation I was equipped with the factual basis for the ministerial decision to allow compensation to be awarded.

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We are here faced with a choice between two different ways of seeking to achieve justice, and the key test for this House should be which way better serves the interests of justice. The Lords’ amendment creates a stiff test: you have to show conclusively—it is a tough obstacle—that the evidence was so undermined that no conviction could possibly be based on it. The evidence so undermined is a matter for judicial assessment in this context. Whether it makes a conviction impossible to sustain is a matter for judicial decision. Both the assessment and the decision arise in the process of whether guilt has been established, not whether innocence has been shown.

Because of that well established system, judges, both at trial and in the Court of Appeal, look at these matters of assessment and decision very carefully. The process is a fundamental part of the system; it is well established. The judges, the lawyers and the legal commentators know what is happening. It accords with what we have traditionally thought to be the best of legal principle in applying our criminal law. A miscarriage of justice is an aberrant product of our criminal law going wrong in its process. The system I have just described has sufficient clarity in its process so that when the test in the Lords’ amendment is applied to it, justice will usually be done if there is a miscarriage of justice.

What of the government test? The words “innocent” and “did not commit” we can treat as synonymous for the purpose of this argument. The government test involves the Minister looking for material to show innocence from proceedings that were designed to establish guilt. Other than the Criminal Cases Review Commission, of the potential sources the key source of his or her approach will be what happened in court then, or afterwards if there was an appeal, or a newly discovered fact well after that. So the context of the ministerial decision will be outwith our present system.

Indeed, the Minister will be applying himself or herself to making a quasi-judicial decision: should this person, in justice, be given compensation for this miscarriage of justice? It is a very serious decision most pertinently determined by solid evidence, and from where is he or she to extract it in our present system? The new fact which establishes innocence or that someone did not commit the offence has to be very powerful indeed—for example, irrefutable DNA evidence or a subsequently discovered group of witnesses who prove a rock solid alibi. There are very few sets of circumstances.

It will be of significance to this House—and I trust to the other place if this goes back to it—that no one on the government side in any debate so far has chosen to illustrate by example how their test would work and why the Lords’ test is not appropriate. Although proceedings before the assessing Minister are confidential, it is open to the applicant to make them public. I shall refer to two public examples which show that the Lords’ test would work in justice and the government test would not.

The first is the “arms to Iraq” case, in which some of the defendants got to court and no evidence was ultimately offered against them—there never was a trial. Others of those cases were stopped during the trial and in yet more cases there were acquittals.

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The result of that set of circumstances meant that in the ones where no evidence was offered or the judge stopped the trial, there never was an appeal; there never was any new evidence because the scenario was well known. We did what we thought was legal because the government agents and people responsible said that we could do it.

In those circumstances, with no Court of Appeal judgment, on the test in the Lords’ amendment it is almost certain that those people would have received compensation. If you do not offer any evidence, how can you possibly say that the conviction could be sustained? If the judge stops it on the basis of the Lords’ test, why not give compensation? How could these men “prove their innocence” in the context of the government test?

There is another very telling example. Many of you will remember the case of Colin Stagg and the murder of Rachel Nickell on Wimbledon Common. She was stabbed to death, with 49 blows, in front of her two year-old child. Stagg was one of many arrested and he was eventually charged. The judge threw the case out at the end of the prosecution case. This was in the mid-1990s and Stagg was vilified in the national press almost from day one. When the judge stopped the case, he went back to Wimbledon and lived by night because he was hounded and harassed in the street by day. He lived a hermit life for years. Eventually the Minister decided, on all the material before him, to grant compensation, and I made an award. It was only a year or two later that someone else, Robert Napper, was arrested for that murder. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was confined to Broadmoor for the rest of his life.

How can anyone in this House plausibly suggest that Stagg should not have got compensation until someone else was proved to have been the person who killed Rachel Nickell? Who would not regard that as an affront to justice? The Minister at the time, in applying the law on eligibility at the time, gave Stagg an award. Under the Lords’ test he would get such an award today; under the government test he would not—he would have to wait and endure circumstances until someone else was shown to be the murderer.

Lord Brown of Eaton-under-Heywood: My Lords, I just ask my noble friend to agree that, under any test, neither of these cases would qualify for compensation because compensation is payable not on an initial acquittal, a first appeal or an appeal brought in time, but only ever on a late appeal. They would therefore not have qualified anyway: it is only for a restricted group of cases in which they are not included.

Lord Brennan: Now that I am in the same House as the noble Lord and not appearing in front of him as an advocate, I very firmly disagree. Compensation for miscarriages of justice does not depend on a successful appeal. For years, in certain cases, awards have been made without such an appeal. In the examples I have given, no contrary example has been given thus far to show why the other test proposed by the Government should be put forward. I make the following concluding

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submission: the Lords amendment is based on well founded principle—the Adams terminology—arising from a well established system of criminal law and criminal justice. The government test is neither of those things. The Lords amendment better serves the interests of justice and this House should send it back to the Commons for reconsideration by MPs and by the Government in the interim.

Lord Beecham: My Lords, I must first congratulate the noble Lord, Lord Taylor, who managed to escape the onerous task of replying or, indeed, of advocating the Government’s case. The noble Lord, Lord Faulks—the Minister—has, as it were, picked up a dock brief. He comes before the House as a poor man’s lawyer—or, I should say more relevantly, a poor Lord Chancellor’s lawyer.

It is instructive to consider how the debate on the Government’s proposal played out in the House of Commons. Deep concern and opposition to the original Clause 151 was voiced on all sides of this House in 19 speeches. Speakers included former Law Lords, lawyers of varying experience in this field and non-lawyers. Members may recall in particular the powerful speeches of the noble Lord, Lord Cormack, the noble and learned Lord, Lord Hope, who has addressed us tonight, and my noble friend Lord Brennan, who has also spoken to us, with his long history of involvement with this issue. These and other noble Lords voiced profound misgivings over the Bill’s requirement for those claiming compensation for a miscarriage of justice effectively to have to prove their innocence. I do not need to rehearse the arguments advanced at Second Reading, in Committee, on Report and again today. Only four speeches, other than those from the relevant Minister, supported the Government. Three of these, no less, were made by the eminent former Law Lord, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, from whom we have heard again tonight. The other was made by the noble Lord, Lord Faulks, before his accession to ministerial office. One Member expressed doubts in a speech at Second Reading and did not vote on Report.

The overwhelming body of opinion in debate in this House—right through the progress of the Bill—was, therefore, opposed to a proposal that was at odds with our historic attachment to the presumption of innocence unless and until guilt is proved beyond reasonable doubt. It was a proposal that, as I have mentioned in previous debates, would save all of £100,000 a year, given the paucity of successful claims—some two a year, as the Government’s own impact assessment made clear.

The Government have consistently claimed that the law was uncertain: it was not, though the Supreme Court invited the Government and Parliament—having reached a conclusion by a narrow majority in the Adams case—to consider the matter. However, the decision in the Adams case was clear, and the noble Lord, Lord Faulks, was kind enough to advise me yesterday that it has effectively been followed and upheld by the Court of Appeal. Therefore, it was with some astonishment that I read the terms of the government amendment and the debate on it in the House of Commons.

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The Minister, Damian Green, claimed:

“The Government have taken account of all the points that have been made and all the concerns that have been expressed and our position has changed as a result of the very good debates that have taken place in Committee as well as in the House of Lords”.—[Official Report, Commons, 4/2/2014; col. 163.]

The change, of course, is to drop the requirement for the claimant to establish that he was innocent of the offence and substitute the requirement to show that “he did not commit” the offence. I do not pretend to understand by what process of jurisprudential alchemy the base metal of proving innocence becomes converted to the gold of establishing that a claimant did not commit the offence. It is a distinction without a difference—an attempt to preserve the Government’s version of legislative maidenly modesty.

5.45 pm

Ministerial sleight of hand, however, did not stop there. The Minister sought to pray in aid the noble and learned Lord, Lord Phillips, who, as the noble Lord, Lord Pannick, has reminded us tonight, actually voted for his amendment. If Mr Green were to be charged with attempting to gain votes by false pretences, I would have to advise him to plead guilty; I think that even the Minister would have to advise him to plead guilty. I cannot see how he could prove his innocence or establish that he did not commit the offence that I have just invented. This, however, is a serious matter, both substantively and from the perspective of how the Government conduct their legislative business. The cases are few, but the principle is important.

There is another factor: last week, to her great credit, the Home Secretary established an inquiry into the use of undercover agents by the police. Who knows at this time what doubts might be cast on convictions procured by such means? What miscarriages of justice might now come to light? Now, I submit, is emphatically not the time to dilute the careful, moderate position established by the Supreme Court in the Adams case. On the contrary, it is time to affirm it and I hope the House will do so.

Lord Faulks: My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.

I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the

11 Mar 2014 : Column 1722

period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.

The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.

The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.

We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.

The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.

Lord Pannick: My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to

11 Mar 2014 : Column 1723

reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:

“I do sympathise with Lord Brown’s palpable sense of outrage … But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.

A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.

As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.

I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.

Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.

5.57 pm

Division on Motion A1, as an amendment to Motion A

Contents 214; Not-Contents 253.

Motion A1, as an amendment to Motion A, disagreed.

Division No.  2


Aberdare, L.

Adams of Craigielea, B.

Adonis, L.

Ahmed, L.

Allen of Kensington, L.

Alton of Liverpool, L.

11 Mar 2014 : Column 1724

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L.

Beecham, L.

Berkeley of Knighton, L.

Best, L.

Billingham, B.

Birt, L.

Blackstone, B.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Bradley, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Carter of Coles, L.

Chandos, V.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Corston, B.

Craig of Radley, L.

Craigavon, V.

Crawley, B.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Dear, L.

Desai, L.

Donaghy, B.

Donoughue, L.

Eames, L.

Elder, L.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Finlay of Llandaff, B.

Flather, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Glasman, L.

Golding, B.

Goldsmith, L.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Graham of Edmonton, L.

Grantchester, L.

Greengross, B.

Grenfell, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Hattersley, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hollick, L.

Hollis of Heigham, B.

Hope of Craighead, L.

Howarth of Breckland, B.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kestenbaum, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Knight of Weymouth, L.

Laming, L.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Leitch, L.

Lipsey, L.

Lister of Burtersett, B.

Low of Dalston, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

McKenzie of Luton, L.

Mandelson, L.

Martin of Springburn, L.

Masham of Ilton, B.

Massey of Darwen, B.

Mawson, L.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Moonie, L.

Morgan, L.

Morgan of Ely, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Murphy, B.

Newcastle, Bp.

Nye, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Palmer, L.

Pannick, L.

Parekh, L.

Patel, L. [Teller]

Patel of Blackburn, L.

Pendry, L.

Peterborough, Bp.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Puttnam, L.

Quin, B.

Ramsay of Cartvale, B.

11 Mar 2014 : Column 1725

Ramsbotham, L. [Teller]

Rea, L.

Rendell of Babergh, B.

Robertson of Port Ellen, L.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Sandwich, E.

Sawyer, L.

Scott of Foscote, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tonge, B.

Trees, L.

Triesman, L.

Truscott, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Wills, L.

Wilson of Tillyorn, L.

Wood of Anfield, L.

Woolf, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.


Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Bamford, L.

Bates, L.

Benjamin, B.

Blencathra, L.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Brown of Eaton-under-Heywood, L.

Browning, B.

Burnett, L.

Buscombe, B.

Butler of Brockwell, L.

Byford, B.

Caithness, E.

Carrington of Fulham, L.

Cathcart, E.

Cavendish of Furness, L.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Clement-Jones, L.

Coe, L.

Colwyn, L.

Cope of Berkeley, L.

Cotter, L.

Courtown, E.

Crathorne, L.

Cumberlege, B.

Dannatt, L.

De Mauley, L.

Deighton, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Falkner of Margravine, B.

Faulks, L.

Fellowes of West Stafford, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Gold, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Greaves, L.

Greenway, L.

Grender, B.

Griffiths of Fforestfach, L.

Hanham, B.

11 Mar 2014 : Column 1726

Harris of Peckham, L.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Holmes of Richmond, L.

Home, E.

Hooper, B.

Horam, L.

Howe, E.

Howe of Aberavon, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jopling, L.

Kakkar, L.

Kalms, L.

Kilclooney, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lexden, L.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Lloyd of Berwick, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

MacGregor of Pulham Market, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

Manzoor, B.

Marks of Henley-on-Thames, L.

Marlesford, L.

Mawhinney, L.

Mayhew of Twysden, L.

Miller of Chilthorne Domer, B.

Montrose, D.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Palumbo, L.

Palumbo of Southwark, L.

Parminter, B.

Patten, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Purvis of Tweed, L.

Rana, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Renfrew of Kaimsthorn, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Roper, L.

Ryder of Wensum, L.

Saatchi, L.

Sanderson of Bowden, L.

Sassoon, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shipley, L.

Shrewsbury, E.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Sterling of Plaistow, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Suttie, B.

Taverne, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Tebbit, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Vallance of Tummel, L.

Verjee, L.

Verma, B.

Vinson, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

11 Mar 2014 : Column 1727

Warsi, B.

Wasserman, L.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

Motion A agreed.

Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014

Motion to Approve

6.10 pm

Moved by Viscount Younger of Leckie

That the draft order laid before the House on 5 December 2013 be approved.

Relevant documents: 17th Report from the Joint Committee on Statutory Instruments, 26th Report from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 24 February.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): My Lords, this order delivers better, more effective consumer advocacy and more joined-up supervision of the estate agency regime. It marks the final step in the Government’s three-year programme of consumer landscape improvements, and its merits were debated at some length in Committee on 24 February. I will now once more set out for your Lordships why these changes are sensible, necessary and in the very best interests of the consumer.

Since 2011 we have streamlined and brought coherence to a landscape that was previously confusing and duplicative, and therefore inefficient. We have made it easier for consumers to understand where they need to go to get help and have given enforcers, advocates, and advice providers the tools that they need to do their new jobs. On 24 February the noble Lord, Lord Whitty, accused the Government of making these changes solely to save money or abolish quangos. This is simply not true. We are driven by a desire to improve the offer for the consumer. That is why we have created a landscape in which it is much clearer who is responsible for what, and in which there is much better co-ordination between consumer bodies and enforcers. This is markedly better than the previous arrangements because previously the consumer could have tried to phone lots of different organisations—their local council, a regional trading standards team, their nearby Citizens Advice bureau or the Office of Fair Trading—but now they need only ring one phone number, the single Citizens Advice Consumer Service helpline, to raise a concern, whether it is about their rights, a problem about a good purchased or a service performed or, if unsure, how best to take forward a complaint.

We have established a more strategic approach to consumer enforcement, education and empowerment through the creation of the Consumer Protection Partnership. Resources are now focused where they

11 Mar 2014 : Column 1728

are most needed and can have most impact because key partners within the landscape now collaborate to identify the most pressing risks to consumers and work together to eliminate this harm. We are already seeing the success from this approach. By working together to raise awareness of used-car scams during National Consumer Week last year, for example, members of the CPP reached significantly more consumers than if each had worked in isolation. So that is a good reason for change.

We have also acted to close a potential enforcement gap by establishing the National Trading Standards Board and Trading Standards Scotland. We are ensuring that complex criminal activity can be more effectively tackled by trading standards because these bodies co-ordinate and prioritise national and cross-local-authority-boundary enforcement.

I turn to the specifics of this order, which has three distinct purposes: to abolish the National Consumer Council and transfer its relevant functions to Citizens Advice, Citizens Advice Scotland and the General Consumer Council for Northern Ireland; to transfer the Office of Fair Trading’s estate agency functions to the Commissioners of Her Majesty’s Revenue and Customs and Powys Trading Standards; and to transfer residual OFT functions relating to its former consumer advice scheme to Citizens Advice and Citizens Advice Scotland. The scheme itself was transferred to the Citizens Advice service on 1 April 2012.

One or two noble Lords have already expressed sadness at the abolition of the National Consumer Council. As I said on 24 February, I personally recognise the great contribution that that body has made to consumer issues over many years and the fact that a number of your Lordships have played no small part in contributing to that, including the noble Lord, Lord Whitty, the noble Baroness, Lady Hayter, and my noble friend Lady Oppenheim-Barnes. However, no organisation is above change and improvement, and I firmly believe that the NCC’s strong track record will be enhanced when it joins the Citizens Advice service as a result of this order.

Citizens Advice will be established as the publicly funded advocate for consumers, bringing together its existing wealth of knowledge of the problems faced by everyday consumers and Consumer Focus’s technical knowledge on the regulated gas, electricity and postal services industries. This change will create an even stronger voice for consumers, challenging public policy-making more effectively. This will mean better consumer outcomes because the issues that they are complaining about, such as confusing energy contracts, misleading prices and aggressive sales practices, will now directly influence consumer protection policy.

The transfer of the Consumer Futures function is a testament to this Government’s confidence in the major role that Citizens Advice plays in our civil society. We firmly believe, contrary to some claims in the other place, that the leadership of Citizens Advice is best placed to deliver the Consumer Futures functions alongside its bureaux and helpline services. In 2012-13 the Citizens Advice consumer helpline dealt with almost 837,000 new cases, while 91% of consumers reported that they would use the service again and 60% said that they could not have resolved the problem

11 Mar 2014 : Column 1729

without the help and advice that they received. So there is evidence that change both has been necessary and is working.

Last week the noble Lord, Lord Whitty, expressed concern about funding for Citizens Advice, implying that it would have insufficient resources to deliver these new functions. I can confirm that Citizens Advice will of course continue to receive the same amount of ring-fenced funding, from an industry levy, to allow it to enhance the delivery of this important work.

These changes will also create a stronger link between national enforcement of the Estate Agents Act 1979 and local intelligence from the trading standards community by appointing a lead enforcement authority to carry out the work on behalf of all trading standards authorities. This will be overseen by the NTSB, ensuring a strong connection between local enforcement trends and national cases.

This lead authority model has been extremely effective in delivering other trading standards services. For example, fraud worth more than £145 million has been tackled by the Scambusters and the Illegal Money Lending Team in the past 18 months. The Illegal Money Lending Team is a trading standards unit based in Birmingham City Council, but it provides an England-wide service and has received plaudits for its successes. The funds for policing the UK estate agency market will be transferred from the OFT to Powys County Council via the NTSB’s enforcement grant, and ring-fenced to ensure that it is used for the purpose intended.

When the order was debated in the other place, as well as in the previous debate in the Lords on 24 February, there was some concern about the process for appealing against warning and prohibition orders issued by Powys County Council. I confirm that the Government are not proposing any changes to the estate agents appeal process under the Estate Agents Act 1979 through this order. An appeal can be made to the First-tier Tribunal (Estate Agents), which forms part of the General Regulatory Chamber of the First-tier Tribunal. This is the same appeals process as applies to dozens of areas of civil law. I am pleased to report that Powys County Council has written to the noble Baroness, Lady Hayter, to clarify this point. I hope that consequently the noble Baroness is reassured on this issue.

Questions have also been asked, both here and in the other place, about whether Powys County Council has the capability to undertake its new lead enforcement role. When the decision was made to transfer the OFT’s powers to a single trading standards authority, an open competition was run to select the local authority best placed to discharge the functions. All England and Wales local authorities were invited to bid for the work. Six bids were submitted, all of which were scrutinised by a panel that was chaired by the noble Lord, Lord Harris, and involved senior representatives from trading standards. This panel judged Powys to be the local authority best placed to provide the function and I have every confidence in the ability of its trading standards officers to carry out the work effectively.

On 24 February the noble Baroness, Lady Hayter, also expressed concern about accountability for and monitoring of these functions within our new consumer

11 Mar 2014 : Column 1730

landscape. Citizens Advice and Citizens Advice Scotland both have well established grant funding relationships with my department and are already fully accountable for the use of public and levy funding through conditions placed in their annual grant letter.

Powys County Council will also be accountable to my department via the annual grant letter process. Powys will report to the NTSB as the co-ordinator of trading standards and the NTSB will be accountable to BIS, my department, for delivery of that work. Accountability for the functions under the money-laundering regulations is discharged through HMRC cost controls. I hope that noble Lords will agree that these arrangements are clear and robust.

Another issue raised on 24 February by the noble Lord, Lord Harris, and the noble Baroness, Lady Hayter, concerned the approval processes for estate agent and letting agent redress schemes. As noble Lords will no doubt be aware, the Department for Communities and Local Government is responsible for introducing redress schemes for the letting and property management sector.

The procedure for approving redress schemes in both the estate agent and letting agent sectors are outside the scope of this public bodies order, which deals only with the transfer of responsibility for approving the estate agents’ scheme from the OFT to Powys County Council. However, I can confirm that officials from BIS and the OFT have been in contact with their colleagues in DCLG to help them take account of the lessons learnt from regulating estate agents when designing the new letting and property management redress scheme. Although the two sectors may have many different characteristics, the process for mandating letting and property management agents will mirror that for estate agents.

This order also creates efficiencies by transferring responsibility for oversight of estate agents’ compliance with the money-laundering regulations to HMRC. This capitalises on HMRC’s expertise in supervising other sectors for the purpose of money laundering and creates opportunities to exploit synergies to uncover other forms of non-compliance, which will give the taxpayer extra value for money. My understanding is that the Opposition welcome this change; indeed, at the debate on 24 February the noble Baroness, Lady Hayter, said herself at column GC 301, “this bit is brilliant”.

Section 8(1) of the Public Bodies Act provides that Ministers may make an order only where they consider that it serves the purpose of improving the exercise of public functions. Such orders must have regard to efficiency, effectiveness, economy and securing appropriate accountability to Ministers. The changes I am proposing meet all these criteria. I remind your Lordships that the Secondary Legislation Scrutiny Committee supported our view that we have thoroughly met all the relevant requirements. Indeed, the committee was satisfied enough to invoke the 40-day, rather than 60-day, scrutiny process.

In conclusion, the changes made by this order complete the Government’s programme of improvement to the consumer landscape. In abolishing the National Consumer Council and transferring relevant functions

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to Citizens Advice, and transferring the OFT’s estate agency functions to HMRC and Powys County Council, this order puts the finishing touches to a landscape that will work more efficiently and effectively for the public.

I commend the order to the House.

Amendment to the Motion

Moved by Baroness Hayter of Kentish Town

As an amendment to the above Motion, at end insert “but this House regrets that the draft Order fails to produce a coherent framework or single voice to protect consumers; fails to harmonise redress for estate and letting agents; and fails to produce adequate parliamentary or ministerial accountability for the new framework”.

Baroness Hayter of Kentish Town (Lab): My Lords, contrary to what has been said, the decision to abolish the NCC was taken to implement the coalition’s promise in the coalition agreement to,

“reduce the number and cost of quangos”.

It was not taken in the interest of consumers, nor after any criticism of the NCC. Indeed, the NCC’s work has been widely recognised in the UK and beyond.

The Government said that they wanted to “simplify” the architecture of consumer representation; but they set about dismantling the NCC, and merging the OFT with the Competition Commission, before looking at the full range of responsibilities of each of those bodies. In fact, there was precious little overlap between the work of Citizens Advice and the NCC, while some of the OFT’s work—particularly on codes, anti-money laundering and redress—really does not sit happily with the Competition Commission.

The Government have now discovered this. They have replaced the NCC and the OFT with the CMA, CA, CAS, CCNI, SCOTSS, TSI, NTSB, PCC, CPP and HMRC. To help Hansard and others, that alphabetical soup stands for: Competition and Markets Authority; Citizens Advice; Citizens Advice Scotland; Consumer Council for Northern Ireland; Trading Standards in Scotland; Trading Standards Institute; National Trading Standards Board; Powys County Council; Consumer Protection Partnership; and HM Revenue and Customs. For some code approval there may also be the PSA—the Professional Standards Authority. That is hardly a clear and coherent system, either for business or for consumers. Our own Secondary Legislation Scrutiny Committee actually called for greater clarity for consumers about this new landscape. This mish-mash is not clarity.

Furthermore, none of those bodies has any direct representation from consumers. None of them has a consumer panel, nor any requirement to include someone with a background in consumer representation, despite our endeavours to ensure that for the CMA during the passage of the Bill. My concern might be driven by the need for any organisation funded to protect consumers to have some accountability to consumers; but I know that this House, quite rightly, has a broader concern about accountability to Parliament and to Ministers.

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Indeed, the test of the Public Bodies Act 2011 is that measures should lead to a more efficient, effective and appropriate level of accountability to Ministers. This order fails that test.

I will take the example of estate agents, which has been mentioned already. For some years they have had to belong to a redress scheme. The OFT approved such redress schemes and could ban estate agents who broke the rules. This responsibility for redress schemes—and through them for 25,000 estate agents across England and Wales—will move to Powys County Council, which is an authority responsible to its Welsh electorate. However, for estate agents in England and Wales the elected authority of Powys will be accountable to BIS; it will report to the National Trading Standards Board in its role as co-ordinator; and it will be responsible to the Trading Standards Institute for the administration of its grant. Our Secondary Legislation Scrutiny Committee raised serious concerns about how Powys could reconcile its accountability to several different bodies. The Government have yet to answer those concerns.

Furthermore, as the House may recall and as the Minister mentioned, the ERR Act now also requires letting agents to belong to a redress scheme. Obviously, the two existing OFT-approved estate agent redress schemes will apply to be approved for letting agents. Will it be the same body—namely, Powys—that will approve redress schemes for letting agents? No—that would be far too simple. The Department for Communities and Local Government is keeping that to itself and it will be handled quite differently, even if lessons are learnt.

Not only that, but there is a risk that Scotland, Wales and individual local authorities in England will all have different approval schemes for redress schemes for the rental sector, with a consequent lack of consistency for landlords and tenants. Landlords and agents with property in more than one area could have varying rules to apply in different parts of the country. That does not just sound like madness; it is madness. At the moment we have just two redress schemes handling estate agent complaints. It would have been so sensible for them to handle letting agent complaints, given that virtually every estate agent is also a letting agent.

Instead of that, the two existing schemes will have to seek authorisations from two or more different bodies, no doubt on slightly different criteria and over slightly different timescales, and report back annually to any number of different authorising bodies. Is this getting rid of red tape for redress schemes? Will it help consumers if there are different arrangements for handling complaints about buying as opposed to renting property, or if they are dependent on where people happen to live? The answers are, I think, obvious. Why on earth can these two almost identical redress mechanisms not be harmonised?

6.30 pm

The choice of a single local authority—Powys—to undertake this national task raises some serious questions. The original bid to the NTSB was from Powys and Anglesey. The latter was, among other things, to have heard appeals from estate agents dissatisfied with a Powys ruling. We have been told, and I have been

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reassured, that that is no longer the case as the First-tier Tribunal will now hear appeals. Today, I received a letter from the Minister in the other House saying that Anglesey will not have any role, and I hear from Powys—which, I think, has still failed to set a budget—that it is still looking at how to set up the system, although I gather that it now has one officer seconded to the OFT to find out how on earth to do it.

However, despite the assurance about Anglesey, today I got a letter from Jenny Willott, the Minister in the other House, saying that Anglesey is no longer to have any part in this procedure, despite having been on the original bid. Later this afternoon, I heard that an officer from Anglesey was in London today, finalising its role in the oversight of the redress schemes. Perhaps the Minister will clarify this for us. We need clarification before we agree this order. Is it now simply Powys that is due to oversee this or is it Powys and Anglesey, to which the committee chaired by my noble friend awarded the contract?

I note that the Minister said that he had confidence in this set-up. It is so important to house buyers that the complaints system should work. If he has that confidence, perhaps he will explain what exactly the role is and whether anyone is clear that Powys knows what it is doing. When my honourable friend in the other House asked whether we could see all the documents on the bid in time for this evening’s debate, the Minister’s colleague in the other House said that it was an FoI request and the documents would not be available until next month—so we have not been able to have the full bid papers and documents pertinent to the consideration of this order for today’s debate. Surely we should know the exact arrangements before we agree the order.

I turn to the transfer to Citizens Advice of the NCC’s policy work and statutory information-gathering powers. I should first say that, the merger having happened, we clearly wish Citizens Advice and Citizens Advice Scotland well with their remit. Citizens Advice Scotland has sent me an impressive list of its consumer education, advice and campaign work. We hope that the Government will fund both of them properly and we look forward to them working to enhance consumer protection. However, we remain concerned about European consumer policy, non-functioning markets, vulnerable consumers and future input into legislative work. Traditionally, the NCC was very active on longer-term policies, and I fear that without a single powerful consumer voice to shape public policy, the consumer interest may be weakened.

Furthermore, there is the issue of the accountability to Ministers of an independent charity, rightly and properly overseen and directed by its charitable trustees, for the use of public money and statutory powers. For example, what would happen should Citizens Advice, driven by the inexhaustible demands of desperate clients, underuse its powers simply by force of circumstance? We argued unsuccessfully during the ERR Bill that the CMA should have reserve powers to ensure that sufficient attention was paid to this new element of the CA’s remit and to ensure that it linked sufficiently with all the other players, such as trading standards, Powys and TSI, but we did not get it, so it remains unclear what would happen should Citizens

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Advice fall down on this part of consumer protection. I do not suggest it will, but who would know? Who would check? Certainly not consumers, as they no longer have an independent voice.

Vincent Cable’s letter of 17 January to the noble Lord, Lord Goodlad, said that the Consumer Affairs Minister will hold Citizens Advice to account for the effective delivery of these functions on behalf of consumers—but how will that happen? Will it be simply through the terms of the grant? How will the Minister hear consumer views, and what action could she take if Citizens Advice failed to prioritise, for example, users of government-provided services? How could Parliament exercise any oversight on this?

There is also the issue of whether Citizens Advice will remain an independent charity, because the ONS has said that because it is spending public money, it is in fact now a public body. Has Citizens Advice become a quango? Therefore, have we gone through all this to get rid of a quango called the NCC and see Citizens Advice turned into a quango—so we have not reduced even by one the tally that the Government wanted to get rid of?

Much consumer law is made in Europe, and we worry whether the new architecture will ensure the continuation of the European work undertaken so effectively by the NCC. There is no mention of the EU in the explanatory document, or in the Secondary Legislation Scrutiny Committee report. Who will influence and help shape the rules coming out of Brussels on behalf of UK consumers?

The decision to wind up the NCC having been taken, we want the new system to work as well as it can for consumers. Our regret is that this order implements an overhasty, ill thought-out change caused simply by the Government wanting to reduce the number of quangos, and that it fails to produce a coherent framework or a single voice to protect consumers. It fails to harmonise redress for estate agents and letting agents, and it fails to produce adequate parliamentary or ministerial accountability for the new framework. I beg to move.

Baroness Oppenheim-Barnes (Con): My Lords, I quite naturally have a great interest in this debate as not the mother or even the grandmother but probably the great-grandmother by now of the introduction of the very first National Consumer Council. My noble and learned friend Lord Howe was the Minister in charge and I think the first chairman was John Methven. The next chairman was the noble Lord, Lord Borrie. I had just come to office as a Minister of State and to establish my neutrality all my senior officials said, “You won’t want to reappoint him. He’s a supporter of the Labour Party”. I said, “I want to reappoint him because he’s the best for the job and has always been the best for the job”. Right up to the very end, he was the best for the job. That is just establishing that I am not making very much in the way of party political points. However, I would be much more sympathetic to what the noble Baroness has said today if not for the fact that during the Committee stage of the Enterprise and Regulatory Reform Bill I had a strong amendment to take out the provision that virtually ended the life of the Office of Fair Trading and another for the Monopolies

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Commission but I received no support whatever from the party opposite. If I had received support—meaningful support—I would have been quite willing to table amendments at Third Reading that would have had a great deal more importance and significance. After all the things that the noble Baroness has said, I regret very much that I did not get that support at that time.

When one looks back over the years, when we started the Office of Fair Trading and when the Monopolies Commission existed and then the NCC—of which I subsequently became chairman—things were done in great detail for the benefit of consumers and to a very high standard by both those organisations, and no one is sure what exactly is replacing them. It looks extremely like just another government department, which is not exactly what we would have accepted as a replacement that would be as available and as important as those two bodies. They have had a very quick demise, considering the date of the Bill and what was then going to happen. I regret this very much indeed. However, I say on behalf of the Government and also on behalf of the Conservative Party that we have been the leaders in all matters of consumer protection. We did not have junior Ministers; we had Ministers of State, with their main responsibility being consumer affairs. We did not have secondary Ministers. For the whole 13 years that I was in your Lordships’ House in opposition, we did not have anything very important and the only Minister was a very junior Minister, who had other things in his portfolio—which I think included the little matter of Northern Ireland.

I feel that the noble Baroness has to be fair in these matters and explain why I received no support. We might have had a different outcome or influenced the Government in what they were going to do next. Now we have a big, new Consumer Rights Bill going through the other place, which I know the noble Baroness supports, as do I. We might want to tweak it here and there—indeed, that is quite likely—but it establishes that this party and this Government are not anti-consumer. As a past chairman of the NCC, I understand her concerns and I sympathise. I want to give the Government a chance to take note of what we are saying and of what we said in Committee and at Third Reading, but there are still some areas that are not clear and not satisfactory. It is not just the voice or anything of that nature but how it is going to work, which is the most important thing about it.

Therefore, I have a great deal of sympathy with this Motion of Regret. However, I still would like somebody on the Opposition Front Bench to give the right amount of praise to Conservative Governments over the years for what they have done for consumers and for the trails that they blazed, and to welcome the new consumer legislation, which is still in the other place but will be in your Lordships’ House, I believe, in the autumn. Those are my views. They are mixed, but the principle of the Motion is one with which I have to sympathise.

6.45 pm

Lord Borrie (Lab): My Lords, my noble friend Lady Hayter of Kentish Town gave a brilliant exposé and critique of the Government’s approach on this vital

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matter of organisations and their relationship with each other in the order. I want to concentrate on two matters. One is the National Consumer Council, which is to be abolished by the order; I regard that as a matter of regret. The other is concerned with estate agents. What I want to say about the National Consumer Council is, if you like, old stuff. The Government have heard not just from this side of the House but also from the other side, from people such as the noble Baroness, Lady Oppenheim-Barnes, that, in its day, the National Consumer Council, led by such as herself and the noble Baroness, Lady Wilcox, did a distinguished job with dedicated staff, reasonably well resourced. It did a great deal of research on behalf of the consumer with no ties of any other kind that would have spoilt that.

Being in charge of the Office of Fair Trading for many years, I remember that the pieces of research done by the National Consumer Council were extremely valuable to us. They were thorough and done from a consumer angle that enabled one to counter the other angles that the Government were always getting from the CBI, the Institute of Directors and so on. There needed to be a consumer voice, and the NCC gave it.

Where we have got to at the moment is that we have an order to abolish the National Consumer Council. The Government have made what efforts they can to pass some of its responsibilities on to other bodies. Citizens Advice has long had devoted workers in the field of advice and education, not just on consumer matters but on all sorts of other personal matters of welfare, social security and so on. I do not denigrate the work of the citizens advice bureaux or say that things should not be transferred to them from other bodies. However, the National Consumer Council provided more than simply advice and education, and we are losing something. The Government have never really explained who is to do it now because the other bodies referred to—the co-ordinating bodies such as the National Trading Standards Board, well chaired by my noble friend Lord Harris of Haringey—have other responsibilities. They do not have time, in many cases, to do lengthy research to help government departments and the Office of Fair Trading. Indeed, the Office of Fair Trading is also to disappear in three weeks’ time—on 1 April, I believe, which seems a very suitable date. It is to merge with the Competition Commission to form the Competition and Markets Authority. We have talked about that in the past and I, for one, am reasonably satisfied that what has been achieved in bringing those two bodies together will give them a good start on 1 April to progress their work. However, I still do not understand, and I seriously regret, the abolition of the National Consumer Council.

As far as estate agents are concerned, Members of the House will know that the Estate Agents Act 1979 was a very substantial Act dealing with dishonesty and other breaches of criminal law that required some attention; perhaps that attention should take the form of banning the estate agent from continuing to work as such. Prior to the banning order there would be warnings and so on. The Office of Fair Trading has done that throughout the existence of the Estate Agents Act.

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Once the Office of Fair Trading had disappeared, as was intended by the Government through the order now before us, who was to do the work of enforcement, banning estate agents when they had proved themselves to be dishonest and ought not to practise as such any longer? The answer is Powys trading standards department, or Powys Council. I have nothing against Powys; I do not even need to look at an atlas to know where it is. It is, none the less, a smallish area—which happens to be in Wales rather than in England. I have no doubt that my noble friend Lord Harris of Haringey, who may speak in this debate, will say that a competitive tendering process was brought about by the Government, which many county councils responded to, and Powys turned out to be the best. I did not know the various detailed points, which seem to be continuing to change even today, meaning that the order before us is not finally complete. Those matters mainly concern Anglesey —I also happen to know where that is, and I know that it does not border on Powys. However, there we are; there might be some mutual arrangement between Anglesey and another county council.

Since there was a competitive tendering bid, I dare say that it has been clearly established, according to those who examined the matter, that Powys was better than any of the other applicants. That does not mean that it is better than the Office of Fair Trading has been over the past 20 years, or however long it is. Neither does it offer any help to the Minister in suggesting that it is a suitable recipient of the very considerable banning order powers that the Office of Fair Trading has had and used from time to time over all these years. However, the Government have not had much chance of doing anything else. No doubt they searched around to find a remedy, because there are no other national bodies they could latch on to, unless possibly they wanted to overwork the Competition and Markets Authority and give it something entirely different from competition. It is not very satisfactory. If Powys does a good job, which it may well, why does it then have to go through another process of competitive tender in three years’ time? Three years is hardly enough time to get established, let alone to be ready to fight one’s corner against competitors.

The whole Bill was ill thought-out from the beginning, as my noble friend Lady Hayter indicated. It has sorted some things out as regards Citizens Advice and the work of trading standards officers in different departments coming together on a national basis to work across the boundaries. That has gone on, and it is good. However, the whole episode has led to the unsatisfactory order which is before us today. If we pass it, we do so with my regrets.

Lord Whitty (Lab): My Lords, I support the amendment to the Motion in the name of my noble friend Lady Hayter and her concerns about this order.

We are obviously at the final stage of this process, and the Government have determined for some time to transfer many of these functions as set out in the order. I make it clear that I hope that the new arrangements will deliver for consumers. I declare a past interest as the first chair of Consumer Focus, which was the expanded National Consumer Council, over the past four years, and as a vice-president of the

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Trading Standards Institute. As this is the final stage of the dismantling of Consumer Focus, which was only established under the 2007 Act, it provides for the responsibility for those issues which still remain with Consumer Futures, the successor of Consumer Focus, namely the regulatory area of energy and post.

I rehearsed at some length in Committee—I do not intend to repeat it entirely—why I felt that the coalition Government had missed a major opportunity of doing what the Minister claims this order does: namely, to create a comprehensive consumer advocacy organisation which is clear to consumers, to government and to business. When the new Government came in they rightly identified the complexity of the existing consumer landscape and the need to simplify it. I still believe that it was the intention of BIS Ministers—the noble Lord’s predecessors—to carry out that comprehensive reorganisation. However, that scheme was hijacked by the Cabinet Office, the desire for a cull of the quangos, and the consequent timetable of the passage of the Public Bodies Bill, and undermined by the squeeze on public expenditure.

It is now three years since the Public Bodies Act was passed. I am afraid that in that time there has been some salami-slicing of the government support for consumer advocacy and of the money available. That has not just hit Consumer Focus but some of the other bodies as well. Passenger Focus, which deals with passenger transport, has had its budget significantly cut, the Consumer Panel within Ofcom that covers communications has virtually disappeared, and there has been some narrowing of the role of the Consumer Panel in what was the Financial Services Authority and is now the FCA. Therefore there is a bit of a pattern. However, at least as far as the future of Consumer Focus’s responsibilities is concerned, we know that very soon Citizens Advice and Citizens Advice Scotland will take on those final responsibilities. That it would have been better to have had a comprehensive organisation which they could take over before transfer into the third sector is, in a sense, water under the bridge. However, we therefore still have a partial coverage and not the fully comprehensive system which the Minister was claiming we have.

As regards Citizens Advice, I do not think there are any noble Lords who do not have huge respect for its work. In one sense, to broaden its policy and advocacy function will turn it into an even more effective body. However, there have to be some anxieties about both its capacity and its resources. Contrary to what the Minister has said, the resources transferred from the previous Consumer Focus structure are significantly less than that which existed within Consumer Focus. Fewer than half the staff posts will be transferred. Although the level of funding for the energy and post side will more or less be kept up, the area to which my noble friend Lady Hayter referred, which is effectively the traditional area of the NCC—consumer interest within the non-regulated markets, the whole area of private services, goods, shopping, financial services, digital affairs and so forth—has been squeezed the most.

In its relatively short life, Consumer Focus produced 300 reports, 500 responses to government consultations, and 200 pieces of research work. That requires significant

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resources and concentration of effort. In the area of non-post and non-energy responsibilities, that will be severely cut. To take one example, reports of Consumer Focus—or the NCC, as for simplicity we had better call it—on cash ISAs and on travel money indirectly recovered £300 million for consumers.

7 pm

The Minister has claimed in Committee, in a letter to me and again this evening that the resources will be the same: that the money from Consumer Focus for non-energy non-post work has transferred to Citizens Advice and Citizens Advice Scotland. Not so. Three years ago, that figure was £5 million a year. The £2.7 million to which the Minister has referred is therefore a cut of nearly half over the level of activity for traditional NCC work. We have therefore lost a significant part of the capacity to assess consumer detriment across all these fields, including the general field of consumer law and in particular, the area of European law in which Consumer Focus and the NCC were so prominent.

There are some parts of this order that I welcome. One of them is the transfer of powers which Consumer Focus had under the Consumers, Estate Agents and Redress Act 2007 to Citizens Advice. The Government were initially somewhat hesitant about that. It is important that Citizens Advice inherit those powers to require information from any provider of goods and services. As my noble friend has said, one of the consequences of this appears to be that the ONS has reclassified Citizens Advice as a quasi-quango, part of the public sector—so much for getting rid of quangos. Whatever we call it, I hope that does not mean that the independence of Citizens Advice as a charity and its ability to campaign for citizens and for consumer rights—if necessary against government policy—is thereby constrained. I hope that Citizens Advice can take on this wider role, and that in a few years’ time we shall see that organisation develop at least as strong a role in general consumer rights and advocacy as predecessor organisations. Regrettably it is somewhat hobbled in the way in which we are beginning this, but I wish it well.

Briefly, I have two other points. One transfer is that of the responsibilities for post to the Consumer Council for Northern Ireland. That should have been done five years ago. I am glad that the Government have eventually done it because it clarifies the position in Northern Ireland.

The Consumer Council for Northern Ireland is a comprehensive body. It covers all the regulated sectors: transport and water as well as energy and now post. It is also a complaints body and a consumer education body. It is exactly the kind of model that Ministers were after in the first place and that I should have liked to see here in Great Britain. It is therefore regrettable that some of the enthusiasm for culling public bodies has begun to infect Northern Ireland colleagues and that they are now looking at the Consumer Council for Northern Ireland with a view to curtailing, transferring or dismantling all or some of its functions. I hope that the Minister’s opposite numbers in Northern Ireland do not go down that road, because it is a very important body.

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Finally, on trading standards, concerns have already been expressed by my noble friends Lord Borrie and Lady Hayter. There is an argument for devolving what were the functions of the OFT to local authorities and having a lead for local authorities in these areas, but that is very difficult to attain when there is such a squeeze on trading standards resources across the country. My noble friend Lord Harris reported to Committee—I hope he is going to repeat it in a moment—that there is effectively a 40% cut on the funding of trading standards in England over this period. Against that, it is difficult to see how trading standards organisations at local authority level are going to step up to carrying out the kind of job that the OFT has done in the past. I hope that we are wrong, but it is a bit of a diversion from some of the traditional role of local authorities. We are stepping into the unknown, whereas it was clear how important the OFT role in this field was.

To take one example in relation to Powys, budget discussions are continuing with Powys, but I understand that in parallel with taking on this enforcement responsibility, the likelihood is that Powys will cut its grant to Citizens Advice by at least half and possibly completely. That indicates the degree of squeeze there is on consumer activity at local authority level. At present all fronts are suffering cuts.

The Government are doing many positive things, and I join the noble Baroness, Lady Oppenheim-Barnes, not only in her defence of the history of the NCC but also in welcoming, at least in general terms, the consumer Bill that has been introduced in another place. I hope that we are moving into a more positive era. However, it is difficult to do this when capacity and resources are being squeezed on both the consumer advocacy and the enforcement front.

Lord Berkeley of Knighton (CB): My Lords, I shall help the noble Lord, Lord Borrie, on one small point. Being Lord Berkeley of Knighton, I reside in Powys and have had considerable dealings with Powys County Council and indeed the trading officer. I was slightly pricked by the noble Lord’s comments, and should like to inform him that Powys is quite a long way from Anglesey. Having said that, I feel that I am not expert enough to comment on the central issue, but in my experience Powys is an exemplary council. In my dealings with it and with its trading standards office I have experienced great efficiency and courtesy.

Lord Harris of Haringey (Lab): My Lords, I declare an interest as chair of the National Trading Standards Board, which a number of noble Lords have mentioned. I am pleased to take part in a debate where so many distinguished Members of your Lordships’ House who have played a significant and major role in the development of consumer affairs and consumer protection in this country have participated: the noble Baroness, Lady Oppenheim-Barnes, and my noble friends Lord Borrie and Lord Whitty. I am not going to travel down the historical road on which the noble Baroness, Lady Oppenheim-Barnes, took us. I recall when I was a very junior staff member of an organisation—abolished I think by a Conservative Government—called the

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Electricity Consumers Council, her rather grand appearance before us when she was Minister for Consumer Affairs. I also remind her that it was, I think, a previous Labour Government who had consumer protection as a Cabinet role fulfilled by my noble friend Lord Hattersley, who is not in his place today. That was some years ago—

Baroness Oppenheim-Barnes: It was not quite the same thing.

Lord Harris of Haringey: I accept that it was not quite the same thing.

The Minister in his introduction told us that the Government’s aim was to improve the offer to consumers. When we talk about the transfer of estate agent functions, essentially we are not talking about a change in the offer. What is happening is a transfer of what I am assured—I am not sure that the Minister actually said this in Committee—is the same sum of money that was expended by the Office of Fair Trading on the estate agent regulation functions, through the National Trading Standards Board, for the function which has now been awarded to Powys. It is, therefore, the same money, not new money. It is not an improvement in the offer. I shall come back to why that is important in a moment.

The £178,000 or thereabouts spent by the Office of Fair Trading has now passed to the National Trading Standards Board. As a board, we went through a commissioning exercise. As has been reported, six bids were received from local authorities around the country and Powys was selected by the selection panel to be the successful bidder. For the avoidance of any doubt, given some of the comments made in the other place, I should make it clear that none of those involved in the selection process was associated with the bids considered.

My noble friend Lady Hayter implied slightly pejoratively—I think that she was slightly overegging the case for the purposes of debate—that one officer from Powys had been seconded into the Office of Fair Trading to learn how to do it. I had the benefit earlier today of meeting a number of the officers from Powys who are responsible for this function. As I understand it, two officers from Powys are working in the Office of Fair Trading at present, for a very specific reason. Because of the problems that the government business managers have in processing business through your Lordships’ House and elsewhere, this order has not yet been made. As a consequence, it is not possible for preparatory work to be done in respect of how this function is to be carried out because the information cannot legally be transferred from the Office of Fair Trading to Powys County Council. So until your Lordships pass this order, the files cannot be moved and it is necessary for the officers from Powys to work through the Office of Fair Trading and carry out that function.

It is worth emphasising that this is a national function that will be delivered by a single local authority. That is not a unique model. There are a number of functions financed through the National Trading Standards Board where that is the model. The Minister referred to the illegal money lending teams for England and Wales, which are administered by a single local authority. The Illegal Money Lending Team for England is a

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very large organisation with a large number of staff, delivering services around the country, not only to consumers but in terms of outreach, and using the money seized under the Proceeds of Crime Act to improve consumer education. I was involved at a launch in a school in north-west London only a few days ago where a teaching pack for schools was being launched to ensure that pupils acquire the necessary skills to manage their own money and to understand the dangers of them and their families falling into the hands of loan sharks. That is a national function being delivered by a single local authority—in that case, the City of Birmingham.

There are similar examples in the work that is done on e-crime, on behalf of trading standards, which is delivered by North Yorkshire County Council, and the work being done on the national intelligence hub, which is delivered by Suffolk County Council. You can go through a list of functions that are delivered by agreement, by a memorandum of understanding, by individual local authorities in this way. So the Powys example is by no means unique. It is worth recording that and to recognise that this is about establishing and maintaining a single national state agency enforcement unit, providing an appropriate adjudication system, including a process to manage appeals; to provide and maintain a web-based public register; and to approve and monitor the approved estate agent redress schemes to which my noble friend Lady Hayter referred.

7.15 pm

The fundamental issue that should be considered in the context of this order is the Minister’s initial opening statement about improving the offer to consumers. What is being enforced here is the Estate Agents Act 1979, which was no doubt right for its time—but a lot has happened since then. Increasingly, properties are bought and sold and the interactions take place through the web. There are still an awful lot of estate agents with a physical presence in high streets, but the nature of estate agency is changing, and the time may well have come for us to look at the legal basis on which this regulatory function takes place. We also have the increasing practice of estate agents who act both for the person who is selling their property and for the person who is buying the property, somehow managing to acquire fees from both of them in the process—which probably coincides with just about everyone’s caricature view of how estate agents behave. The question of how this regulation should go forward in future also requires a look at the legislative framework, and I would be grateful if the Minister could tell us whether, perhaps in the passage of the Consumer Rights Bill that is going through Parliament at the moment, we might want to look soon at whether the Estate Agents Act 1979 is fit for purpose.

That brings me to the point that my noble friend Lady Hayter raised about letting agents. I understand that there is a distinction, but in a large number of instances a letting agent and an estate agent is the same entity. It is not simpler to have one regulatory mechanism dealt with through the process that we are discussing today and another dealt with through the DCLG process; despite the no doubt wonderful interaction that is taking place between the officials of the two

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departments involved, that is not sensible. It certainly causes confusion. At a time when I know that the Government are committed to reducing the burdens on business, does it really make sense to have what may be one very small local agency deal separately with two regulatory systems maintained by two different departments? I suspect that it does not.

Interestingly, earlier today I met a representative from the Independent Network of Estate Agents. I do not know how many agencies that he relates to, but it was quite apparent that he was totally confused about how the estate agent regulatory system interacted—in fact, it does not—with the process for regulating letting agents. He had lots of questions about the new process for managing letting agents, which colleagues who are responsible for delivering regulation of estate agents could not answer. But that is a demonstration that this is going to cause confusion and problems on the ground.

The other interesting message that came across from a number of the organisations or stakeholders who had come along to hear how the new system worked was their amazement that the whole exercise was going to be valued at only £178,000. These are people who are to be regulated by these processes, who said that they thought that it should cost rather more because they thought that there was rather more to do.

The Minister has talked about improving the offer to consumers, but this measure is not doing that—this is transferring the offer to consumers and administering it in a different way. There is clearly work to be done both on the legislative framework about the interaction with letting agents and in terms of the resources that can be made available for this function, if we are genuinely to improve the offer to consumers.

Viscount Younger of Leckie: My Lords, this has been an interesting debate, and I thank all noble Lords for their contributions. Just before I go into the detail of the debate, I want to cover a couple of points. First, the noble Lord, Lord Harris, asked recently about the review of the Estate Agents Act. At present, we have no plans to review the Act. However, my colleague in the other place, Jenny Willott, has written to ask the ombudsman to review the issue of double-charging, which I agree is a worrying trend.

Secondly, I thank my noble friend Lady Oppenheim-Barnes for her general support for what we are doing in the Consumer Rights Bill. I very much welcome her support for the Government’s measures to modernise consumer law, which will make a major difference on behalf of consumers and has been widely supported.

I now return to this particular order. The Government believe that the changes introduced by the order will deliver more effective consumer advocacy and more joined-up supervision of the estate agency regime. Noble Lords have raised a number of points and I will seek to address these in a few moments.

The noble Baroness, Lady Hayter, stated that the measures that we are proposing lack coherence and fail to provide a single voice to protect consumers. I challenge that assertion. The consumer journey will not change significantly under the new arrangements.

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We are simply joining up the policy-making and regulatory oversight expertise of Consumer Futures with the existing consumer complaint handling abilities of Citizens Advice services. The changes do not mean additional burdens for local bureaux, as information on cases that they deal with is already collated centrally to inform Citizens Advice campaigns and reports. As a result of these changes, anyone needing impartial help or advice on a consumer issue will be able to phone the national helpline, contact their local bureau or use the interactive help on the Citizens Advice web pages.

The noble Baroness, Lady Hayter, and the noble Lord, Lord Whitty, suggested that we are simply abolishing quangos. Again, I challenge that assertion, as I did at the beginning of the debate. This is not simply about making a reduction in public bodies. Bringing together the in-depth knowledge of the regulated energy and postal service sectors with the wealth of intelligence on consumer problems available to Citizens Advice will bring coherence to public policy-making. For the first time, the consumer advocate will have detailed knowledge and understanding of the challenges facing real consumers across the country when campaigning to influence new regulation and policy development.

During the debate in Committee last week, the noble Lord, Lord Whitty, bemoaned the fact that a number of consumer bodies remained outside the scope of these changes. I reiterate that this is not about rearranging the deck-chairs for the sake of it. This is about achieving real benefits for society, by enabling consumer advocates to effectively influence energy policy, transport policy, telecommunications policy, financial policy and general consumer matters. Citizens Advice will collaborate with consumer representatives in the other regulated sectors to ensure that best practice is shared and that regulatory developments in the other sectors reflect insights from the experiences of people on the street. Trading standards officers already take enforcement action against local estate agents. Changes brought about by this order support the flow of information from local to national enforcement, bringing further coherence to enforcement in this sector.

The noble Baroness, Lady Hayter, implied criticism of the Government for failing to harmonise redress for estate agents with redress for letting agents through this order. I will say more about this in a moment, but such harmonisation was not an objective of this order and the estate agent and letting agent sectors have very different characteristics.

When the Enterprise and Regulatory Reform Act was debated in Parliament, the noble Baroness proposed an amendment that called for letting agents to be regulated in the same way as estate agents, much as she described in her speech today. This amendment was rejected by the Government on the grounds that overregulation reduces supply, which in turn reduces choices for tenants and could lead to rent increases. However, the Government recognised the value of introducing a mandatory redress scheme, and this part of the noble Baroness’s amendment is now part of the Act.

The Government have taken a consistent approach. The process to establish and approve the new redress schemes for letting agents will mirror that for the

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existing estate agency schemes. This follows discussions between BIS and OFT officials, with colleagues in the DCLG, to help them take account of the lessons learnt from regulating the estate agency market; such points have been made by noble Lords in today’s debate. The Secretary of State for Communities and Local Government will be responsible for approval and oversight of redress schemes for letting agents, reflecting his department’s responsibility for this sector. Oversight of the estate agency schemes, and approval for any future schemes, will reside with Powys, reflecting the extensive role of trading standards in the broader regulation of this sector.

Before I address some of the questions raised, particularly those of the noble Baroness, Lady Hayter, I will say that it is very good to have an endorsement of Powys by the noble Lord, Lord Berkeley. It was also particularly helpful to have an explanation of the changes and of the selection of Powys by the noble Lord, Lord Harris.

The noble Baroness, Lady Hayter, raised the issue of the line of accountability for Powys County Council and stated that it was convoluted and unclear. This is simply not true. Ultimately, Powys County Council will be accountable to BIS. Powys will report to the NTSB in its role as co-ordinator, and the NTSB will be accountable to BIS for the performance of its enforcement teams and projects, including estate agency work. For the avoidance of doubt, Powys-elected representatives will have no part in running the new estate agency functions—a point raised notably outside this House.

The noble Baroness raised the issue of the role of Anglesey and stated that the Government have still not made clear what the role of Anglesey is. Both the Consumer Affairs Minister, the Member for Cardiff Central, and I have made it clear that it is Powys County Council that will take on sole responsibility for delivering these estate agent functions. It is true that the original bid submitted by Powys County Council proposed that some of the work be carried out in partnership with Anglesey. However, during the development of the transition bid, as circumstances changed, a decision was taken to deliver all the necessary functions from within Powys County Council.

To avoid any potential conflicts of interest between its statutory responsibilities as the lead enforcement authority and local enforcement cases, Powys County Council has decided to second an official from Anglesey County Council to manage matters that relate to estate agents which operate within Powys County Council’s area. This officer will also investigate national cases under the Estate Agents Act, but will act under the authority of Powys County Council. The OFT currently operates a similar Chinese wall between its enforcement and investigative activities. If it is some reassurance to the noble Baroness, we will show the paperwork associated with Powys’s bid in due course, as promised by my colleague in the other place, Jenny Willott, in her letter to Stella Creasy today.

The noble Baroness also raised the issue of the delay in providing a response to the request from Stella Creasy on the FOI request for the paperwork on the Powys bid. I will clarify that her letter was received on Thursday night, requesting a significant amount of

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additional information. We issued a response to all the issues that she raised earlier today. We will provide the paperwork requested in accordance with the Freedom of Information Act 2000.

The noble Lord, Lord Borrie, asked why the estate agent powers passed to Powys. Currently, both trading standards and the OFT possess enforcement powers under the Estate Agents Act 1979. Transferring the OFT’s powers to trading standards will simplify the landscape by giving sole responsibility to trading standards. This is very much in line with the Government’s intention that trading standards be responsible for the co-ordination of national consumer enforcement. Under the oversight of the National Trading Standards Board, a lead local authority will utilise the network of national, regional and local intelligence provided by trading standards services to carry out this function. As I have said, there is a previous precedent for a local authority to discharge functions on behalf of a nation, as alluded to by the noble Lord, Lord Harris. For example, the illegal money lending teams for England, Scotland and Wales of the NTSB and Trading Standards Scotland are hosted by single local authorities.

The National Trading Standards Board ran a tender exercise in the summer of 2013, as the noble Lord, Lord Harris, has said, to appoint a lead enforcement authority to host the National Trading Standards Estate Agency Team. Each bidder was required to demonstrate how it would satisfy a number of criteria. As has been said, six applications were received in total, and these were reviewed by a panel of senior trading standards officers, supported by officials from BIS, the NTSB and the OFT. Each bidder was required to demonstrate how they would discharge the functions under the 1979 Act, and through careful analysis of bids, the panel was able to assess that Powys County Council was the authority best placed to provide the most efficient and effective management of the function. I hope that this extra information, on top of what I said earlier, gives some further reassurance to this House.

The noble Baroness, Lady Hayter, asked very clearly why Powys was not appraising letting schemes. I will reiterate that the lettings and property management work redress scheme under the Enterprise and Regulatory Reform Act 2013 is new, and only concerned with mandatory redress, as the DCLG has responsibility for letting and property management agents within government. It was decided that it would be best placed to manage the relatively straightforward redress scheme appraisal process. There is a distinct difference there.

7.30 pm

The noble Baroness, Lady Hayter, raised the issue of some of the OFT’s functions, which she stated did not sit well with the Competition Commission responsibilities in the CMA. We agree that some of the functions of the OFT sit better with other organisations. That is precisely why we are moving responsibility for the redress scheme to trading standards so that the CMA can focus more on market-wide issues to benefit consumers and bring a closer link between front-line trading standards expertise and the estate agency redress scheme.

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The noble Baroness also asked why Powys was responsible for regulating all estate agents. These functions are just two of a number of measures that the Government have in place to protect consumers from rogue estate agents. A wide range of formal actions can be taken against rogue estate agents under both sector-specific and general law. The noble Lord, Lord Harris, alluded to this.

The noble Baroness also asked whether statutory bodies should have consumer panels or consumer representatives. We completely agree that the organisations in the consumer landscape should take full account of the perspectives of consumers. We believe that this is best achieved, however, through open consultations and engagement, such as the CMA’s recent consultation on its business plan and the consultation by Consumer Futures on its work plan, rather than specifying the need for one person who represents consumers. The whole organisation should think about the needs of the consumer.

The noble Baroness had concerns about vulnerable consumers, and I agree that she raised a fair point. The Citizens Advice service also has substantial experience of addressing the needs of vulnerable people across a wide range of subject areas in which I am sure the noble Baroness will be well versed. We are confident that it will be able to deliver outcomes with no loss in quality. While Consumer Futures currently assists around 7,000 customers directly, the Citizens Advice service is advising and supporting millions of individuals.

The noble Baroness asked about measurements—in other words: how will we know that these arrangements are working? The bodies have well established grant funding relationships with BIS and are already fully accountable for the use of BIS funding and levy funding through conditions placed in their annual grant letters. Grant terms will be expanded to set out the requirements and key performance indicators relating to these new activities. Performance will continue to be closely monitored by BIS to ensure that the successor bodies are delivering good outcomes for consumers and achieving good value for money for levy funders and taxpayers. I should reiterate that these arrangements mirror those for the NCC.

The noble Baroness asked a question along the lines of: is Citizens Advice now a public body? We are confident that Citizens Advice remains a charity, and although we have recently been discussing its classification with the Office for National Statistics, the Government remain confident in their belief that Citizens Advice should remain outside the public bodies framework. I hope that that is some reassurance.

The noble Baroness also asked why the letting and management redress scheme rests in England only. She may be aware that housing is a devolved issue. It is up to the devolved Administrations to introduce the protections that are important to them and reflect their differing priorities and different housing markets. She also asked why the letting and management redress schemes simply use the estate agent scheme. It is important that the approval and redress schemes for letting agents involve a fair and transparent process. I should reiterate that simply extending

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the estate agent schemes to include letting agents would unfairly restrict any new provider from coming forward.

The noble Baroness asked whether Citizens Advice would play a role in Europe. Indeed, it will play a full role in Europe, working with other EU bodies to promote consumer welfare and combining the NCC’s experience with Citizens Advice’s knowledge of consumers on the ground. The CMA will continue to lead the UK regulators’ engagement by working with the NTSB to feed in the experiences of trading standards and its enhanced role in the new landscape.

The noble Lord, Lord Borrie, basically stated that the Government have not explained who will do the work of Consumer Futures. The majority of staff from Consumer Focus and the NCC will transfer into Citizens Advice. This includes the director, who will fulfil his role in Citizens Advice as well as most of the expert staff. We recognise the importance of ensuring that there is sufficient capability and capacity for this important work, and firmly believe that our plans will achieve this.

The noble Lord, Lord Whitty, raised the issue of local trading standards being inadequately resourced to take on new functions. The baseline cost of policing the UK estate agency market will transfer from the OFT into the NTSB’s enforcement grant. This amount will be ring-fenced from the main portion of the grant in order to ensure that the full funding will be used for the purpose intended.

The noble Lord also raised the issues of the lack of staff transferring to Citizens Advice and the trimming of resources. I hope that I can give him some reassurance that the vast majority of policy staff will transfer to Citizens Advice. Next year’s levy-funded budget will be the same as this year’s. The noble Lord stated that funding for general advocacy has been cut. Budgets have been squeezed since 2008 in the light of pressure on the public finances, but we are confident that efficiencies created by this transfer will enable Citizens Advice to step into this role.

Baroness Oppenheim-Barnes: My noble friend will remember that in Committee during consideration of the then Enterprise and Regulatory Reform Bill I cited the amount of money that I made available to Citizens Advice in 1979-80 because of a small increase in its duties. It was £3 million then, which, in terms of what is being given now, causes me great concern. All members of citizens advice bureaux are not necessarily well versed in consumer affairs—they have other qualifications. If situations arise in which they do not know what to advise, who are they going to ask to tell them?

Viscount Younger of Leckie: I should like to write to my noble friend to clarify that question and give her more detail about the transfer. I hope that I will be able to give her some figures and will copy in other noble Lords to provide further details. I hope that that gives my noble friend some reassurance.

The noble Baroness, Lady Hayter, suggested that the provisions in the order do not provide—

Lord Whitty: Before we leave the issue of the transfer of money and personnel, is the noble Viscount saying that he rejects my view that less than half the number

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of posts in Consumer Focus three years ago will actually reappear in Citizens Advice, and that the non-post, non-energy side has been cut significantly—almost by half—in that period? That is a considerably larger reduction than the general cut in public expenditure to which he referred.

Viscount Younger of Leckie: I will be writing to my noble friend Lady Oppenheim-Barnes to clarify the position on the transfer, and the letter will be sent to the noble Lord. That should directly address the issue of how many staff are likely to be transferring.

Lord Whitty: I accept what the noble Viscount said regarding transfer, but I was referring to the point about the transition over the past three years when compared with what the NCC was previously doing.

Viscount Younger of Leckie: I will write to the noble Lord. The noble Baroness, Lady Hayter, suggests that the provisions in the order do not provide adequate parliamentary or ministerial accountability. However, I dispute that, as the noble Baroness will know. In making an order under the Public Bodies Act, a Minister must have regard to a number of tests, including the requirement to secure appropriate accountability to Ministers. The Secondary Legislation Scrutiny Committee considers compliance with all these tests. I remind the noble Baroness that in the case of this order the committee concluded that it was content to apply the 40-day affirmative procedure rather than the more stringent 60-day process. However, I will again set out the measures that we have put in place to ensure clear lines of accountability, and I will do that in a separate letter on grounds of time.

I conclude by addressing the comments made by the noble Baroness, Lady Hayter, and the noble Lord, Lord Whitty, at the beginning concerning quango-cutting. On the one hand, we are being accused of having too many bodies; on the other hand, we are accused of being forced by the Cabinet Office to cull quangos. We think that our redesign of the consumer landscape strikes the right balance, including representation across all parts of the UK. The changes brought about by this order will deliver more effective consumer advocacy and more joined-up supervision of the estate agency regime.

Baroness Hayter of Kentish Town: First, I thank the Minister for doing as good a job as he could with the material at hand. I think that we know that he is batting on a sticky wicket but he did his best. I also thank the noble Baroness, Lady Oppenheim-Barnes, the noble Lord, Lord Berkeley, and my noble friends Lord Borrie, Lord Whitty and Lord Harris for their contributions to my regret Motion. I particularly thank the noble Baroness, Lady Oppenheim-Barnes. She called herself the “great-grandmother”. I think I would have to say “godmother”, because it sprinkles a bit of gold dust whence it goes. Consumers have an awful lot to thank her for.

I also express thanks to my noble friend Lord Stevenson, who, as we have been going along, has managed to find for me the debates that the noble Baroness referred to concerning her attempts to halt

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the merger. I am afraid that my memory is perhaps not as acute as it should be but we have looked quite carefully at them and it looks as though we were trying—maybe we took the wrong call—to improve what was being proposed. With our Amendment 24ZB, which I have just looked up, and another amendment, we were trying to get the CMA to take on and strengthen the consumer protection, enforcement and guidance role. We noted the comment that the noble Baroness made at that time about the possible lack of independence brought about by bringing the two organisations together. That is slightly different from our amendment but the call that we took was to try to improve what we thought was going to happen. However, looking through the speeches, it appears that we were on the same page for quite a lot of the time.

I shall try to be brief because it is now time to draw this to a close. There are questions remaining. We get a letter saying that Anglesey has no role; now we find, if I have understood it correctly, that someone is going to be put into Powys to sit there and do the job, but that person will presumably be answerable to employers in Anglesey. We need some clarity on this. We are told that elected councillors will have no role but it is their staff to whom they have a duty of care and other employment responsibilities. It would be extraordinary if elected councillors had no say on what was going on in their premises. Nor have we had a serious answer to why we are not using the same mechanism to approve redress schemes. I did not say “the same redress schemes”; we were talking about the same mechanism to approve them.

Contrary to what the noble Viscount said, I think that this is about getting rid of quangos. This happened under the Public Bodies Act and that was referred to in the coalition agreement. My noble friend Lord Harris of Haringey is right: this is not about improving the consumer offer, much as I would have liked it to be. I remain doubtful about whether delivering national functions via local trading standards is the most effective way of promoting consumer interests.

I also still have some concerns about the independence of Citizens Advice. I gather that there are still some discussions about whether it is going to be a public body, with all that that means with regard to procurement and the organisation’s way of working. Some clarification on that is necessary. I have no doubt about the role that Citizens Advice has in helping consumers who have detriment today. We have never questioned that. Our concern is about whether influencing today’s providers, regulators, the Government and Europe can be done by the same body which, every day, answers phone calls and e-mails and has visits from hard-pressed consumers.

I should say that I am known now as Lady Hayter of Kentish Town. I was, until my last relative died there, going to be Lady Hayter of Ystradgynlais. However, I thought that it would be a bit too much of a challenge to Hansard writers—hence Kentish Town. I also lived in Bodedern in Anglesey. Therefore, I am aware of the strength of those bodies but whether they are the rights ones to take this on, I remain doubtful.

Having said all that, we can only wish all these new organisations well for the sake of consumers, for the sake of the people whom the noble Baroness has

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looked after for so many years and for the sake of people whom my noble friends Lord Borrie, Lord Harris and Lord Whitty have done so much for. We can only wish them well. I know that what they need at the moment is speed. For those reasons, I beg leave to withdraw my amendment.

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Amendment to the Motion withdrawn.

Motion agreed.

House adjourned at 7.45 pm.