16 Jun 2014 : Column GC1

Grand Committee

Monday, 16 June 2014.

Special Educational Needs (Personal Budgets) Regulations 2014

Motion to Consider

3.30 pm

Moved by Lord Nash

That the Grand Committee do consider the Special Educational Needs (Personal Budgets) Regulations 2014.

Relevant document: 26th Report, Session 2013–14, from the Joint Committee on Statutory Instruments

The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): These regulations are the first to be laid under Part 3 of the Children and Families Act 2014—an Act which, following very careful and considerate scrutiny by your Lordships’ House, has the potential to make a massive difference to the lives of children and young people with special educational needs and disabilities. These regulations, made under Section 49 of the Act, will introduce the option of a personal budget for education, health and care plan holders from September 2014. Personal budgets can make a real difference to children and young people; indeed, life changing, according to some of our parents on the pathfinder programme.

However, we know that the introduction of personal budgets is complex and needs very careful consideration. Noble Lords may have some concerns about the introduction in September, especially in relation to the depth of testing of direct payments for SEN provision under the pilot scheme. The pathfinder experience has shown that if they are to work, parents must be given clear upfront information about their availability and advice and support on requesting, taking up and managing a personal budget. Pathfinders have also demonstrated that they have the most impact when they are a coherent element of personalisation within the new education, health and care planning process rather than an end in themselves. The introduction from September 2014, as part of the wider introduction of the reforms, means that local authorities will develop personal budgets as a coherent element of the new system rather than as a bolt-on at a later date.

I want to stress that our approach to implementation will be one of evolution rather than revolution, building on the experience of the pathfinders. The draft code of practice, laid before Parliament on 11 June and to be subject to a debate in this House in its own right, is clear on this issue. Subject to the will of Parliament it will, along with regulations covering the local offer and EHC plans, set out a flexible framework for implementation while providing a clear expectation of what local authorities must have in place by September of this year and how this should evolve over time as joint commissioning arrangements and local offers mature.

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I turn now to the detail of the regulations we are considering today. They contain many of the provisions we have previously debated as part of the pilot scheme for direct payments for SEN provision. They give parents and young people the right to ask for a personal budget when an EHC plan is being prepared or during a statutory review of the plan. Parents must be given upfront information in relation to personal budgets, including information that we will require to be included in and consulted on as part of the local offer. We have maintained considerations in relation to value for money and impact on other service users, considerations that were included in the very first pilot scheme following discussions between the then Minister for Children and Families and the noble Lord, Lord Rix, and that have continued to be of concern in debates both in this House and in the other place. We have also repeated a requirement for the permission of a school or college, and have added early years settings where a direct payment is being used on their premises. I understand the concern that this is a get-out clause and could be a barrier to inclusion, especially in further education. However, we have not seen any evidence of this from the pathfinders and we think it is only right that institutions should have the final say on who can work on their premises. I can, however, reassure noble Lords that we will keep a careful eye on this issue.

Before I close I want to return to the subject of implementation. I would like to make noble Lords aware of the comprehensive package of support we have in place for local authorities to help them meet the complexities of implementation. This package includes an ever increasing portfolio of materials, including practical advice, case studies, checklists, programmes for workforce development and frameworks for implementation available on the SEN pathfinder website, all developed with expert support from local authorities, their partners and VCS groups working in this area including those representing parents.

On the latter point, we have some excellent examples of information for parents on personal budgets. These have been developed in partnership with parents and include exemplary work from our SE7 pathfinder and the Redcar and Cleveland-Middlesbrough SEN collaborative.

Our SEN advisers are visiting local authorities the length and breadth of the country to establish the level of individual support local areas need and, where necessary, making referrals to our pathfinder champion support team and the newly appointed national champions for personal development.

I know that noble Lords have been interested in the ongoing evaluation of personal budgets. As I stated when we discussed Section 49 of the Act in Committee, SQW, the evaluators of the pathfinder programme, are undertaking a thematic evaluation of personal budgets and integrated resources. The research will re-examine the progress that has been made by both pathfinder and non-pathfinder areas to identify good practice and lessons learnt, and inform the development of less advanced areas. It will be published later this summer.

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With this support, and the framework for implementation set out in regulations and the code of practice, I am confident that we have an approach that will in coming years make a significant difference to the lives of children and young people. As such, I hope all noble Lords will give it their support.

Lord Pearson of Rannoch (UKIP): My Lords I am very grateful to the Government and the noble Lord for bringing forward these regulations. I think that the Minister knows I have a long history, as the father of a Down’s syndrome daughter, of asking for this sort of thing. I particularly welcome, therefore, the inclusion of parents and families in these regulations, giving them a status which they have lacked for many years.

I trust the noble Lord will forgive me if my question is superfluous. I am not sure whether I heard him say anything about the portability of these arrangements. If a young person or a child moves from one local authority to another, is there machinery in place to ensure that what has been agreed with one local authority will be transferred to another?

Lord Addington (LD): My Lords, for once when I find myself talking about the noble Lord, Lord Nash, I am basically saying “Well done”, because the approach to bring parents more into the process and to bring the expertise and support together is very positive. Particularly in the case of certain types of needs or a certain child, the parent is usually the expert, at least initially, and to bring that expertise in is often required.

It is also the case that if one gets an individual need or even indeed something more commonly occurring, it is not uncommon to find a parent who has the time and energy to focus on their child to become more informed about that one child than the professional educators. So this has the potential to be a very good thing.

The devil, of course, will be in the detail and how it is seen through, but at least we have a willingness here to accept that it will need to change and develop, and it will not be one size fits all. This is probably a very good thing. I am sure that politicians and local authorities have the capacity to mess it up themselves, and not all parents will be that well informed and intentioned, but as a basic approach, I think there is much more good than harm in this.

Baroness Hughes of Stretford (Lab): My Lords, I will say at the outset that we very much welcome, as I think all Members in Committee on the Bill did, the principle of personal budgets and direct payments for children and young people with special education needs and learning difficulties and their families. It is fair to say that we all saw it as a tremendous possibility for empowering those young people and their families and parents. If it works, it will stimulate the provision of more and better services, and hold local authorities and providers to account, using the leverage of the personal budget. However, although we welcome the provision and the regulations, I would like to raise four points with the Minister, which potentially jeopardise this outcome of the empowerment of young people.

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The first is the lack of evidence from the pathfinder programme that the Minister referred to. The most recent evaluation we have was published three months ago, in March. At that time, only six of the 31 pathfinder areas had started to implement personal budgets and only four of them had actually managed to develop the necessary resource allocation system which underpins the whole thing. Therefore, as yet, there is no substantial evidence to support what the regulations should be doing in this area—there is not much experience to speak of. It also suggests that many local authorities will have difficulties, as the pathfinders clearly have, setting up personal budgets and will need considerable support and guidance. Although I hear what the Minister says—that this is a kind of iterative, developmental and evolutionary process—there really is at the moment, in this area anyway, very little foundation in terms of knowledge and experience from the pathfinders on which to build. Can the Minister be confident that local authorities generally will be able to implement personal budgets effectively and, more to the point in terms of our discussion today, in the light of that lack of evidence, that these regulations are adequate to ensure that families can really access the personal budgets if they wish?

My second point relates to Regulation 7, which refers to the decisions by local authorities not to make a direct payment. The regulations themselves do not specify the grounds on which a request for a personal budget can be refused by a local authority but simply say that the local authority must give the reasons, in writing, for that refusal. The code of practice that was published in the last couple of days, at paragraph 9.107, refers readers to later paragraphs—paragraphs 9.119 to 9.124—for the reasons why a request may be refused. However, I have to say to the Minister that those paragraphs in the code of practice are about as clear as mud to the average family and, indeed, to me. They refer specifically to other pieces of existing legislation, which you then have to go and trawl through in order to understand what the grounds for refusal might be. Could the Minister say clearly today, and put on record, what are the grounds on which a local authority can refuse a request, over and above those basic conditions outlined in Regulation 8? In respect of direct payments, which are, if you like, a subset of personal budgets, will the Minister look at rewriting the code of practice so that paragraphs 9.119 to 9.124 are clearly understandable by families and professionals who will be looking to the code of practice for guidance?

My third concern is around Regulations 6(c) and 6(d), which the Minister referred to. It seems that these potentially constrain the provision of personal budgets by placing conditions—some would call them a get-out, as the Minister said, although he was referring to something else at that point—because they will enable local authorities to refuse personal budgets if the local authority feels that the provision of those budgets would have an adverse impact on other services or have an impact on the efficient use of local authority resources. I served a long time in local government before coming to this place, and that could mean anything in any local authority. If you are providing a whole range of services directly as a local

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authority, and somebody wants to take a chunk of your money and have a personal budget, any local authority can argue that that will have an adverse affect on its services and will not be an efficient use of its resources. Therefore, I am very concerned about the wide scope that those two sub-paragraphs give to local authorities to refuse, or at least not promote, personal budgets.

3.45 pm

The Minister referred to my next point, for which I am grateful. I am unclear how personal budgets will operate at the post-16 level. He said that he is aware of concerns around this and that the Government would draw on evidence from pathfinders, but as yet there is no such evidence, as I have already said. Will the Minister explain how any personal budgets that are agreed for young people who may be looking to go to FE colleges will operate in the context of the block SEN grant to colleges? He will know that some organisations such as the Alliance for Inclusive Education and the Down’s Syndrome Association have said that they already have concerns about the way FE colleges use their grant and that, instead of providing opportunities for young people to attend mainstream courses where they can to learn how to do things, they tend to provide segregated learning disabilities courses or independent living courses—call them what you will. Increasingly, parents of these young people say that they do not want that but rather want resources to help their children join mainstream courses, where they can, and not be segregated into so-called independent living or preparing for life courses because they have a special educational need or disability.

Paragraph (9) of the regulations requires the permission of an FE provider, school or even, as the Minister said, early years provider, for a direct payment/personal budget approach to be used in relation to an individual child in that setting. Again, it seems to tip the balance towards providers and local authorities to call the shots here rather than the young person and their family. I wonder why there is an apparent distinction between the disabled students allowance for young people going into higher education, which is portable and is assigned to the young person who can use it as they wish at any university that will accept them, and the personal budget approach adopted in these regulations for young people going into further education, which seems to constrain their choice of options and requires the permission of the relevant institution before they can use it.

As I say, I entirely support the principle of the regulations but want them to work in the interests of young people and their families to enable them to have more say in addressing these young people’s needs in a mainstream education setting, where that is possible. That is a very important principle at the heart of this issue. In the light of the lack of evidence from the pathfinders, the regulations seem a little premature. Is the Minister satisfied that now is the right time to introduce them? I look forward to hearing his remarks and hope that he will put on record responses to the queries I and others have raised.

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Lord Nash: I am grateful to noble Lords for their comments and questions on the regulations. I turn first to the point made by the noble Lord, Lord Pearson, about portability. When a family moves to another area, the new local authority may review the plan and conduct an assessment but should keep the provision in the plan in place, including the provision supported by a personal budget.

I am very grateful to the noble Lord, Lord Addington, for his kind remarks and support for what we are doing. I turn to the four points made by the noble Baroness, Lady Hughes. I accept that the current evidence is not as extensive as we would all like. However, more than 500 personal budgets were in place at the last count in April, and in May 90% of local authorities said that they were ready to implement the reforms. Local authorities have expertise available to them in relation to the champions for personal budgets. SEN advisers are working with local authorities on this.

When someone’s experience is that something in the code of practice is, as the noble Baroness said, as clear as mud, it gives me cause for concern, but we will be debating this in full in the next few weeks. We feel that the guidance is appropriate but I look forward to those discussions.

I turn to the noble Baroness’s points about Regulations 6(c) and (d). We must consult about the personal budgets with parents and families as part of the process. I have to say that we have had no evidence that local authorities will use these regulations as a kind of devious reason for making the provisions available. Surprisingly, in my visits to a number of pathfinders, I found strong evidence that personal budgets resulted in a more efficient use of resources, as parents understood that this did not amount to a blank cheque, and the co-operation between parents and local authorities resulted in more efficiency.

Lastly, to deal with the point about post-16 provision, the regulations and advice that we give in the code of practice are clear that personal budgets should support provision that is appropriate to the young person as an individual. The wider provisions of the Children and Families Act contain a presumption of mainstream education for those with EHC plans, including those with personal budgets. If that is not an adequate answer for the noble Baroness I would be very happy to discuss it with her further and write to her.

Baroness Hughes of Stretford: I know that the Minister said we are going to debate the code of practice but what are the grounds upon which a local authority can refuse a payment? Why are those grounds not clearly listed in the regulations?

Lord Nash: It looks like I am going to have to get back to the noble Baroness on this. I do apologise.

Perhaps I can close with a quote from a parent on our pathfinder programme, who said:

“The flexibility is essential and means we can reflect changing circumstances’ needs. Compared to this time last year our son is a happier, less anxious, more settled and communicative child and as a consequence we as a family are able to function better and look forward more optimistically”.

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I can think of no better way in which to conclude our discussions and, on that note, I hope that all noble Lords will give the regulations their support.

Motion agreed.

Crime and Courts Act 2013 (County Court and Family Court: Consequential Provision) Order 2014

Motion to Consider

3.54 pm

Moved by Lord Faulks

That the Grand Committee do consider the Crime and Courts Act 2013 (County Court and Family Court: Consequential Provision) Order 2014.

Relevant document: 26th Report, Session 2013–14, from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, as noble Lords may be aware, this statutory instrument is required as a consequence of the creation of the new family court and single county court. Section 17 of the Crime and Courts Act 2013—the 2013 Act—establishes a new family court and a single county court for England and Wales, both of which came into being on 22 April 2014. Since the creation of the single family court, the county court and magistrates’ courts no longer have family jurisdiction.

The 2013 Act made amendments to a large number of Acts in consequence of the creation of the family court, and further consequential amendments to primary legislation were made in an order made and laid on 12 March 2014. That order included amendments to the Legal Aid, Sentencing and Punishment of Offenders Act 2013 which enabled the provision of legal aid for advocacy in the family court. However, amendments were not made to the Access to Justice Act 1999 to include similar references to the family court; it was thought that it did not need amending as it had been repealed. This was an oversight as amendments are required to that Act. Although it was repealed by LASPO, it was saved for certain purposes and still applies to some pending cases. These amendments are required to enable the provision of legal aid for advocacy in the family court.

At the debate in Your Lordships’ House on 3 March on the order making consequential amendments to legislation to create the family court, the noble Lord, Lord Beecham, who I see in his place, brought to our attention a possible gap in the legislative provision concerning interest payable on debts resulting from orders made in the family court. The order we are debating here today makes amendments to legislation to fill that gap to allow for interest to be automatically carried on certain orders made by the family court in the same way as it would have been carried when such orders were made by a county court.

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Noble Lords may recall that the independent Family Justice Review recommended the setting up of a single family court as the three-tier structure was complicated, inflexible and difficult for families and other court users to navigate. The creation of the new family court was complex. It required amendments to a large number of Acts and required an extensive package of secondary legislation. It was also part of the largest family justice reforms for a generation, with provisions contained in the Children and Families Act 2014 coming into force at the same time which firmly put children at the heart of the system.

Section 59 of the Crime and Courts Act 2013 enables the Lord Chancellor to make by order such amendments to enactments as he considers appropriate as a consequence of that Act. The amendments made in Article 3 of this order are required to enable the provision of legal aid for advocacy in the family court, in circumstances set out in secondary legislation, and to remove references to matters which will no longer be dealt with in the magistrates’ courts. The equivalent amendment to LASPO has already been made. Once this instrument has been made, we will bring forward the necessary amendments to the secondary legislation under the Access to Justice Act 1999, which will complete the process of amending legal aid legislation in consequence of the creation of the family court.

The amendments made in the rest of this order concern interest payable on judgments or orders made in the family court. I must repeat my thanks to the noble Lord, Lord Beecham, for raising this issue in a previous debate. On that occasion, I promised to write to the noble Lord, which I did after the debate. As I set out in my letter, the Government acknowledge that there is a gap in the legislation for the family court, which provisions in this order seek to close.

The current situation is that if the new family court makes an order for lump sum provision under the Matrimonial Causes Act 1973, Section 23(6) of that Act means that the court can at the same time order that the sum should carry interest. Therefore, there is some provision for interest to be made payable in the family court, but this is not automatic. To allow for interest automatically to be carried on certain orders made by the family court, in the same way as it would have been carried when such orders were made in the past by a county court, amendments are required to Section 74 of the County Courts Act 1984 and to the County Court (Interest on Judgment Debts) Order 1991.

4 pm

The current provision allows for interest on financial provision orders for a spouse or child of more than £5,000 automatically to run from the date of the order where it was made in the county court. However, as the county court no longer has the power to hear family proceedings, amendments are needed to allow this to be applied in the family court. The amendments made by Articles 2 and 4 to 8 of this order achieve that end while making it clear that the provision regarding interest does not apply if another enactment provides that interest should not run. The amendments made by Articles 5, 7 and 8 also reflect the fact that there is

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now a single county court with national jurisdiction for England and Wales rather than a series of individual county courts.

We undertook to fill the gap identified by the noble Lord, Lord Beecham, as soon as parliamentary time allowed. The amendments required to legal aid legislation have been developed quickly to rectify an oversight. I hope that noble Lords will consider this draft order so that these gaps can be filled as soon as possible. I beg to move.

Lord Beecham (Lab): My Lords, I am glad that in just under four years’ membership of the House, I have at last been able to persuade the Government to do something. I hope that this is the start of a trend for the last 12 months of the Government’s life. I would not dissent from the Minister’s proposal in these amendments, but I feel it is necessary to reflect a little on what is happening in the family court system because some worrying factors are emerging.

I cannot now recall whether the Minister was in his place in the Chamber during that part of the debate on the Queen’s Speech in which I spoke. I have no doubt that the noble Lord, Lord Taylor, will be replying in due course to some of the points I made, but some of them were around the business of the family court and, in particular, how the court is now operating. I am not speaking so much about the geographical location aspect—although that is a factor of some concern because now we have designated courts hearing these matters as opposed to just the local magistrates’ court which previously would have dealt with matters—but more particularly of the impact of the legal aid changes.

The Minister rightly referred to the fact that there is some legal aid available but, as noble Lords might recall, there was an extensive argument about the fact that a significant number of cases would fall outside the scope of legal aid, and it would appear that that is beginning to have a significant impact in turn, as was predicted, on the number of litigants in person in family court matters. I think the figure nationally has now risen to 52%. In the north-east, 61% of people in the family court are now unrepresented. That is apparently already causing significant delays to develop. Given the particularly sensitive area in which these cases are brought—disputes in the family are necessarily sensitive—that is an extremely unwelcome development. Of course, I cannot ask the Minister today to give any assurances about that matter, but I hope that he can say that the Government will be looking at the impact in terms of delay and the administration of justice in this sensitive area and will assess the position. It seems to me that that need not wait much longer because the legal aid impact has now been perceptible for some time, as these figures demonstrate. I hope the Government will take a look at the number of cases and the length of delays that are occurring and at whether any action can be taken to put that right because without that the reorganisation of the court structure will not achieve its objectives, which were to simplify the system and to make it more accessible and more efficient. That cannot be the case if unrepresented parties are clogging the courts, requiring adjournments and requiring the court effectively to intervene to run the case, as it were, when previously the parties would have had representatives

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who were capable of doing that and perhaps even of negotiating properly before the matter reached the court.

Having said that, we do not object to the order as laid but hope that the matters I have referred to today, which others have raised elsewhere, can be looked at and a response ultimately given.

Lord Faulks: My Lords, I am grateful to the noble Lord, Lord Beecham, who modestly did not acknowledge his own part in one part of the changes that we are proposing by this statutory instrument. As to litigants in person and the problems that they could cause in family justice, as the noble Lord would expect, I cannot comment on particular local difficulties. I understood him to be saying that his quarrel was not so much with the structure as with the practical difficulties that could be encountered by unrepresented litigants, with possible delays that might flow from that.

The Government want to help people to reach their own agreements outside court, when that is appropriate or safe. It is the case, and always has been, that people have to attend court on occasions, and the Government are taking a number of steps to assist litigants in person. We have provided funding to, among others, the Royal Courts of Justice and the Citizens Advice Bureau to develop and expand what is known as CourtNav—an application that helps selected users to complete applications to the courts in an effective way—and to Advicenow, to update a number of its guides, as well as to the Personal Support Unit, to provide free independent assistance to people facing proceedings without legal representation in civil and family courts. The Courts Service and the Ministry of Justice have also provided easy-to-understand practical information about family mediation, making an application to court and attending hearings. This has included updating leaflets available to court users and a number of videos have been made available online. I am sure that the noble Lord would like to have a look at those videos to assess their quality.

Judicial training is being delivered to support the implementation of the new private law programme—and this is an important feature. A key focus of the training is to ensure that judges, magistrates and legal advisers are better equipped to support litigants in person through the court process. I do not pretend that judges would not on the whole prefer litigants to be competently and well represented by lawyers, but as noble Lords are aware we are operating on a restricted budget and cuts have had to be made.

As to the number of litigants in person in family proceedings, I cannot give precise figures, but there have always been litigants in person in the family justice system. It is true that Her Majesty’s Courts & Tribunals Service data show a reduction in private law children disposals where both parties were represented in October to December of 2013, compared with the same period the previous year. Although the number of litigants in person has increased since LASPO came into effect, available data show that the time that cases are taking has remained steady. In private law, the average number of weeks to disposals remains steady at 16 to 18 weeks, but the Government are monitoring the situation and continue to do so very

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closely. The noble Lord is right to raise the issue—it is a source of anxiety—but I reassure him and other noble Lords that the Government are well aware of potential problems and will keep a close eye on the matter.

To sum up the statutory instrument, the order provides the vires by which legal aid may be provided for advocacy in a family court. It allows the Legal Aid Agency to provide legal aid for advocacy in the small number of cases that may still be before the family court under the old Access to Justice Act 1999, and it also allows interest to be automatically carried on certain orders made by the family court in the same way as it would have been carried when such orders were made by county courts. I commend the order to the Committee.

Motion agreed.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014

Motion to Consider

4.10 pm

Moved by Lord Faulks

That the Grand Committee do consider the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2014.

Relevant document: 27th Report, Session 2013–14, from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord Faulks) (Con): This order is part of the Government’s ongoing commitment to keep safeguarding measures in step with developments elsewhere. The amendments contained within this order seek to maintain the balance between the rehabilitation of offenders and the need to protect the public.

As noble Lords will be aware, the Rehabilitation of Offenders Act 1974 seeks to aid the reintegration into society of offenders who have put their criminal past behind them. It does this by declaring certain convictions, after a specified time, as spent. Once a conviction has become spent an ex-offender is not required to declare it when, for example, entering employment, or applying for insurance. Research has consistently shown that obtaining employment reduces the risk of offending. Noble Lords will recall that in March this year, the Government implemented the provisions in Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which mean that more convictions can become spent and, in most cases, sooner. This means that even more ex-offenders can benefit from the Rehabilitation of Offenders Act, which should help them reintegrate into society.

However, there must be a balance, of course, to ensure that members of the public are adequately protected. To this end, the exceptions order to the Act

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allows certain employers, bodies and proceedings to be excluded from the application of the Act. When, for example, a person applies for a job listed in the exceptions order, the employer is entitled to ask about certain spent cautions and convictions, as well as those which are unspent. The exceptions listed relate to activities where the individual is presented with a particular opportunity to cause harm to the public or has regular contact with particularly vulnerable groups such as children. In these circumstances, we consider that the need to protect the public outweighs the need to protect the ex-offender from disclosure of their criminal record.

It is, therefore, the exceptions order which sets out the exceptions to the general protections under the 1974 Act. The Police Act 1997 is the related legislation which sets out the process for the issue of criminal record certificates and enhanced criminal record certificates, otherwise known as standard and enhanced disclosure. Standard disclosure contains details of a person’s unprotected spent cautions and convictions. Enhanced disclosure includes, in addition, any information which the chief officer of police considers is relevant to the particular application. These disclosure certificates are issued by the Disclosure and Barring Service.

In this exceptions order, we introduce four amendments aimed at maintaining the balance between the rehabilitation of offenders and public protection. There is also an amendment to update the description of a probation officer.

Following changes made to the Childcare Act 2006 by the Children and Families Act 2014, a person wishing to provide childcare on domestic premises will be able to register with a childminder agency instead of registering with the Office for Standards in Education, Children’s Services and Skills—Ofsted. This is so that childminder agencies can support the training and development of childminders, thus improving the quality of childcare provision. In addition, anyone wishing to operate a childminder agency will be required to register with Ofsted.

The amendments to the exceptions order will permit Ofsted to ask a person seeking to register as a childminder agency about their spent convictions and cautions. The amendments will also permit childminder agencies to ask those it proposes to employ about their spent convictions and cautions.

Special guardians are appointed by a court under powers in the Children Act 1989. They share the parental responsibility of the child with their birth parent but can exercise that responsibility to the exclusion of the child’s birth parents or anyone else with parental responsibility. The child resides with the special guardian but the legal relationship with the parents is not severed, as is the case in adoption.

4.15 pm

Under the Children Act 1989, local authorities are required to provide a report to the court on the suitability of an applicant to be a special guardian. Regulations set out what should be included in the report, such as family background and experience of caring for children. There is no specific requirement for the disclosure of spent caution or conviction

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information as part of the process. Many special guardians, however, are, in fact, former foster carers who will have been subject to enhanced criminal records checks. The number of special guardians is increasing, however, and a significant proportion may not have previously had to declare convictions which may have become spent under the Act. This amendment will bring special guardians within the exceptions order so that local authorities can take into account spent convictions and cautions of the special guardian.

The third amendment relates to administrative and auxiliary staff in organisations such as children’s homes, adoption and fostering agencies. These people neither run organisations nor engage in work that falls under the definition of regulated activity relating to children, which is included in the exceptions order. Even where individuals are not employed to carry out regulated activity, however, they may still have access to certain sensitive information or some access to children, albeit not on a regular basis.

Parliament has already determined under separate regulations relating to those working in children’s homes, fostering agencies, et cetera, that questions about spent convictions and cautions should be permitted to be asked of a wider group of staff than those who are employed in regulated activity. We therefore need to make sure that the exceptions order is up to date with these regulations.

Following recommendation from the Legal Services Board, the Lord Chancellor is preparing orders to extend the practice rights to members of the Chartered Institute of Legal Executives, or CILEx. These orders will come before Parliament shortly. They will enable ILEX Professional Standards, or IPS, which regulates CILEx members, to authorise qualified and experienced practitioners to provide reserved and regulated legal services.

Once the necessary legislation has been approved by Parliament, the IPS will be able to award probate and conveyancing rights, and regulate legal practices that are required to have an approved manager. Fellows of CILEx carrying out these activities are already included in the exceptions order. The exceptions order now needs to be amended to cover regulated members who will shortly also be authorised to carry out these legal activities in order that they can be asked about their unprotected cautions and convictions. This amendment will also allow CILEx to ask about convictions and cautions of those who intend to be CILEx-approved managers.

The final amendment seeks to update the definition of probation officers to officers of providers of probations services, to reflect the definition in Section 9 of the Offender Management Act 2007.

I hope that I will have the agreement of all noble Lords that this instrument is a valuable tool in ensuring public safety. It illustrates the Government’s commitment to update legislation regularly to protect the public, in line with the latest analysis of risks. This instrument is focused on maintaining the correct balance towards public protection. These amendments to the exceptions order are limited in scope but clarify which people working with children are covered, and keep up to date with developments in the legal services sector.

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These amendments are reacting to the continuing need for public protection while maintaining the balance towards the rehabilitation of offenders that the Act seeks to find.

Lord Beecham (Lab): My Lords, I commend the Government’s stressing the importance of offender rehabilitation and their sensible way of dealing with spent convictions. I certainly support the order before us. However, it is confined to cases in which children are involved.

By sheer coincidence, last week the Government tabled a number of amendments to the Criminal Justice and Courts Bill, which will reach your Lordships’ House in about three weeks’ time, creating a series of offences concerning the ill treatment or wilful neglect of a range of people—not just children but other vulnerable people as well. That raises a question in my mind as to whether the order goes wide enough in terms of covering other people who are subject to care in the same way that the children referred to in it will be subject to care or reports. A wide range of people may be in such a position—for example, people suffering from mental health disorders or learning disabilities and those in elder care.

An area about which I have some general concerns is that of the Court of Protection and the appointment of deputies for people subject to powers of attorney. It seems to me that the same principles that the noble Lord rightly outlined in moving the order apply to those cases. I confess that I have not been able to check whether regulations already exist placing those involved in care in exactly the same position as those involved with children under this order, thereby enabling a check to be made on what would otherwise be spent convictions affecting this group. If that is the case, it is entirely satisfactory. If it is not yet the case, perhaps the Government will look at that.

I wish to raise a further point about the Chartered Institute of Legal Executives. The order refers to defined duties, as it were, and regulated work. A number of areas are defined. Probate and conveyancing are very sensibly added to the list as in those areas temptation could well be placed in the way of those with a record of dishonesty. However, in my submission, the same would apply to those engaged in guardianship work. I have in mind particularly powers of attorney, the Court of Protection and the role of deputies. The whole purpose of that court is to vest in the hands of a deputy power over the assets of a person who has become a patient within the meaning of the legislation. If that has not yet been embraced by previous regulations or is not implicitly included in this order, I suggest that the Government take a look at it because it seems to me a field which is certainly analogous to those which are clearly prescribed for CILEx in the order.

With those questions rather than reservations I am happy to support the order as it stands. If further regulations are required to deal with some of the points I have raised, perhaps the Government will look at those. They can be assured of our support if they decide that it is necessary to bring forward further regulations to cover the areas to which I have referred.

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Lord Faulks: My Lords, I am grateful to the noble Lord, Lord Beecham, for the various points that he made pertaining to these provisions. I cannot give a comprehensive answer to all the questions that he raised. However, I can say that the exceptions order covers all those who are engaged in regulated activity, which includes all those working unsupervised with vulnerable people—that is, those in care and, I would imagine, subject to confirmation, those vulnerable for one reason or another such as those he exemplified in his remarks. I would be surprised if they did not have this protection, but I undertake to write to him to confirm that that is the case.

The question of whether someone should be employed if they have any form of conviction and the degree of disclosure is difficult because, for example, as part of the community rehabilitation process recently begun as part of the transforming rehabilitation process, some of those who may be recruited by the CRCs may in fact be offenders themselves who will be provided as mentors to former offenders, so that one does not to have a hard-and-fast rule about these matters. Of course, safeguards need to be very much in place to ensure that the correct people are selected as mentors. It is always a difficult balance to achieve. The Government think that they have achieved it with these necessary changes which will, of course, arise from time to time with the development of particular bodies or services, as in the case of CILEx. This instrument is focused on maintaining the correct balance towards public protection, and the amendments, although limited in scope, clarify which people working with children are covered and keep up to date the legal services sector. They respond to the continuing need for public protection but at the same time maintain the balance towards rehabilitation acknowledged by the noble Lord as something we should be striving for in so far as is possible without jeopardising public safety.

Motion agreed.

Transfer of Tribunal Functions (Mobile Homes Act 2013 and Miscellaneous Amendments) Order 2014

Motion to Consider

4.27 pm

Moved by Lord Faulks

That the Grand Committee do consider the Transfer of Tribunal Functions (Mobile Homes Act 2013 and Miscellaneous Amendments) Order 2014.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, the purpose of this order is to transfer the appellate jurisdiction in the Caravan Sites and Control of Development Act 1960 and the Mobile Homes Act 2013 from residential property tribunals to the Property Chamber of the First-tier Tribunal and to make other changes in the law in connection with that transfer. It also makes changes to

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certain forms required to be used under the Housing Act 1988 with reference to the relevant tribunal. The order applies to England only.

Residential property tribunals had jurisdiction to settle disputes between owners of park homes and their site owners and to hear appeals on contractual matters arising under the Mobile Homes Act 1983. This dispute resolution was transferred to the First-tier Tribunal when it was launched on 1 July 2013. In the mean time, the Mobile Homes Act 2013 received Royal Assent on 26 March 2013. This hugely important Act started as a Private Member’s Bill in the other place and was navigated through your Lordships’ House with great skill by the noble Lord, Lord Best. The Government were pleased to support it.

The Act reflects the Government’s commitment to ensure that park home owners’ rights are respected and their health and safety protected. It introduced a reformed local authority licensing regime, modernising the scheme in the Caravan Sites and Control of Development Act 1960. This came into force on 1 April 2014 and for the first time gives local authorities real teeth in ensuring that park home sites are properly maintained and managed. Local authorities can now require works to be carried out to ensure that licence conditions are complied with and, in the case of an emergency, can enter the site and do the works themselves, recovering their costs from the site owner.

We want, of course, to ensure that local authorities act proportionately and site owners are not required to carry out works that do not come within the terms of the site licence or that are excessive, which is why the Act provided for appeals against local authority decisions to be heard by residential property tribunals. As I have already indicated, those tribunals were already dealing with disputes under the Mobile Homes Act 1983, and were therefore familiar with the issues in this very small niche part of the housing market.

Secondly, residential property tribunals already dealt with appeals on housing conditions and licensing in the private rented sector. It was therefore logical that those tribunals be given the appellate jurisdiction in the new licensing regime in the Caravan Sites and Control of Development Act 1960 and take over existing licensing functions in that Act from magistrates’ courts. It is now necessary to transfer the functions conferred on the defunct residential property tribunals under the 1960 Act and the Mobile Homes Act 2013 to the Property Chamber so that appeals against licensing decisions can be determined by the First-tier Tribunal, which is what this order sets out to achieve. The transfer order also amends the 2013 fees order to allow fees to be charged for applications regarding mobile homes site rules and under the Caravan Sites and Control of Development Act 1960.

I accordingly commend the draft order to the Committee.

4.30 pm

Lord Shipley (LD): My Lords, I declare that I am a vice-president of the Local Government Association and a former council leader. Therefore, I have a keen interest in all aspects of local government matters.

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I would like to ask about the level of fees to be charged rather than the transfer of jurisdiction, which is what the order is mainly about. My query relates to paragraph 7.2 of the Explanatory Memorandum, which states:

“The normal policy is that fees should be set at a level to recover no more than the full cost of providing the service”

I agree with that; that is the correct policy. However, will the Minister clarify whether the definition of full cost actually is full cost in this instance? It is a fee level of £155. Has that fee level been set to include a contribution to a council’s overheads rather than just being the recovery of the immediate direct cost?

I raise this because I think that it is an issue of principle. When I was a council leader, I discovered that in many instances, particularly in the regulatory and licensing areas, fees and charges were not, in fact, related to the total cost that a council incurred. That total cost includes its overheads for its premises, heating, lighting and so on. Too often fees were set to cover the cost of undertaking the immediate work involved. I seek assurance from the Minister that the total cost to a local authority has been included in paragraph 7.2 in setting the fee at £155.


Lord Beecham (Lab): My Lords, I must follow the noble Lord, Lord Shipley, in declaring an interest as a vice-president of the Local Government Association and as a former leader of the same council for, if I may say so, quite a bit longer than the noble Lord. I have a certain sympathy with his view on this order to the extent that we are talking essentially about commercial organisations bearing the cost. The implication behind the noble Lord’s question is clear enough: is this a sufficient amount? If it were to fall on the occupier of a mobile home, I would be somewhat concerned about that. If the intention is that it should fall on the owner of the site as a commercial proposition, I think he makes a significant point. I am glad that he has made it because my only reservation about this order would have been to point to the split infinitive in the Explanatory Note.

Lord Faulks: I am grateful for the learned contribution from the north-east and for the grammatical point made so ably by the noble Lord, Lord Beecham. On the question of costs, as the Explanatory Note states, the position is that the fee of £155 is for making an application to the Property Chamber relating to a dispute over a mobile home. It is set at the same level as the fee applied to applications which follow similar tribunal processes for other applications. There are circumstances in which fee remissions can be obtained, but they are available only to individuals. On 7 October last the Government introduced reforms to the scheme of fee remissions in the courts and tribunals, and the purpose was to reduce the cost of the scheme to the taxpayer while ensuring that fee remissions were better targeted at those who cannot afford to pay the fee. They introduced a single fee remission scheme across the HM Courts and Tribunals Service, which is a simplified means test based on a gross monthly income and disposable capital test.

The question arises as to whether the costs payable in these cases should act as a deterrent to elderly residents. I think that, perhaps contrary to the sense of

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the debate so far, those concerned with these disputes are often people who would not normally venture into a court of any sort. This is to provide a relatively cost-neutral risk for those who want to resolve what can be quite highly charged disputes about their homes without great expense and involving the paraphernalia of lawyers. In fact, in answer to the question put by noble friend Lord Shipley, the fees reflect only the costs of the tribunal, not of the local authority. I accept his point that that means that there are a number of costs which are not reflected in that overall fee. What lies behind it is the provision of the sort of service I have endeavoured to describe.

So as further to assist those who might feel that they are receiving somewhat oppressive treatment from the site owners, and sadly there are some instances of that, the procedural rules contain provisions for cost awards if the tribunal considers that a party has acted unreasonably, although of course that is a judicial decision based on the particular facts of the case. Generally, however, costs are not awarded in the Property Chamber and parties meet their own expenses in bringing a case. These hearings are conducted by tribunal members who are experienced in the area and help unrepresented parties to frame questions where necessary, so clearly it is a cheap and, I hope, effective way of resolving disputes. However, I accept entirely what lies behind the question put by my noble friend Lord Shipley, which is that there is a cost involved which is borne by the local authority.

I hope that that deals with the points made by noble Lords. However unsatisfactory this might be to local authorities from the financial point of view, they are at least in the position of knowing that a useful service is being provided to those who are often in a vulnerable position in society. That is because those who acquire park homes, as they are known, often have little by way of rights and do not have clear contracts. Despite the fact that quite a lot of money is involved in these homes, there is nothing like the same security that someone would have if they were acquiring a house by the normal conveyancing route. This tribunal is providing an extremely useful and important source of remedy to help often vulnerable people.

To summarise, this order will make the changes necessary to transfer the functions conferred on the defunct residential property tribunals to the Property Chamber, so appeals against licensing decisions can be determined by the First-tier Tribunal. I commend this draft order to the Committee.

Motion agreed.

Representation of the People (Supply of Information) Regulations 2014

Motion to Consider

4.41 pm

Moved by Lord Wallace of Saltaire

That the Grand Committee do consider the Representation of the People (Supply of Information) Regulations 2014.

Relevant document: 1st Report from the Joint Committee on Statutory Instruments

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Lord Wallace of Saltaire (LD): My Lords, this is another of a long series of statutory instruments as we move from household electoral registration to individual registration. I emphasise that throughout this process our overriding aim is to make sure that as many people as possible are included on the register by as many different groups as possible.

I am happy to tell noble Lords that the implementation of individual electoral registration started successfully on 10 June in England and Wales and will start as planned in Scotland in September. For the first time ever, people can apply online to register to vote; and all 348 English and Welsh local authorities are connected to the IER digital service. Work continues and we are on track to connect Scottish authorities for the September start in Scotland. I am told that in the first five days, by last Friday, some 10,000 had registered online to vote. For the first week, that seems to be a good start. I am sure that the Committee will be pleased that this draft instrument is before it today.

During discussions with political parties to outline plans for the implementation of IER, political parties asked that at the end of the 2014 canvass they be given a specific new list of those electors on the register who have been carried forward and those who are not yet confirmed or registered under IER. I again remind noble Lords that we hope to reach some 70% to 75% confirmation through data sharing. We are now at between 80% and 85%—80% with national data sharing and 85% with local data sharing—so we are doing better than we initially thought, although we of course want to make sure that as many as we humanly can reach are included in the new list.

The full electoral register, which is available to certain people and organisations, such as political parties, will remain as it is now. It will not indicate whether an entry is as a result of a person making a new IER application, having been confirmed or being carried forward—hence the need for these regulations. They will allow registered political parties, or a person nominated by them, to request IER-related information about which entries on the electoral register are IER entries and therefore by implication which ones are not. Such applications can be made once, from 1 January to 27 February 2015 in England and Wales, and from 2 March to 10 April 2015 in Scotland. Electors who have an anonymous entry, a declaration of local connection, a service declaration or an overseas elector’s declaration will not be included in this information, as generally they do not live where they are registered. Anonymous electors are also excluded, for security reasons.

4.45 pm

This information will allow political parties to assist in promoting individual registration among those existing electors who will eventually come off the register if they do not make an IER application. In addition to the parties themselves, the Electoral Commission has recognised that there is significant potential for the work of political canvassers to have a positive impact on the register during the transition to IER. As befits any instrument dealing with personal data, the Information Commissioner has also been consulted

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on these regulations. The Information Commissioner did not consider that they raised any new or significant data protection or privacy issues.

The instrument will allow a registered political party—other than a minor party as defined in the Political Parties, Elections and Referendums Act 2000—or a person nominated by it access to information about electors’ IER status in a particular constituency area when also requesting a copy of the full electoral register. The request for the information must be given in writing. A political party may make the request only once during the specified time period in each local authority area. If the electoral registration officer holds the information in data form—which they will—they must supply it to the party or nominated person in that form, free of charge, within 14 days of receiving the written request, provided the request falls within the specified time period. The information can be used only for purposes relating to electoral registration, or for the purposes of any civil or criminal proceedings, and only until the 7 May 2015.

These regulations, if approved, come into force on 1 January 2015 and will, in effect, expire at the end of 7 May 2015. They do not extend to Northern Ireland. We are, of course, not making any assumptions about when the transition to IER will end, which will be a matter for the next Government and the Minister of the day. However, it would be possible after 7 May 2015 to make a further instrument making the information available again were the transition to continue into 2016.

This instrument is intended to assist political parties to ensure that electors in constituencies about which they are most concerned are included. It may be that very few will be found, but at least we will have done our best to ensure that everyone is caught. I know your Lordships are all passionate about maximising registration. So am I. The political parties can play a significant part in maximising registration as we make the transition to IER in Great Britain. I therefore commend these enabling regulations for that key activity to the Committee.

Lord Maxton (Lab): My Lords, the Minister would be surprised if I did not make some comment, but I shall be very brief. All of this would be totally unnecessary if the Government had not got rid of identity cards—what would now be called smart cards—at the beginning of this Parliament. If they had not done that, none of this would be necessary. We would have moved to compulsory ID cards and compulsory registration. All registration would have been based on the ID cards and that would have solved an awful lot of problems.

Lord Tyler (LD): My Lords, I apologise to my noble friend as I missed the first few sentences of his introduction. I am moved to make a contribution only by the remarks of the noble Lord opposite. I wish to congratulate the Government on what I think has been an extraordinarily successful exercise. They have made huge progress. Many of us who have attended debates in this very Room over the past seven or eight years on this issue have been filled with foreboding

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that such an important but nevertheless rather dramatic change to our electoral registration system might have some major problems. It would seem that, on the whole, those problems have been dealt with most effectively. I think that it is only right that your Lordships’ House should express its appreciation and congratulations to the team within the department, which has worked so hard to make this a success, together with those in other parts of the administrative system, notably the Electoral Commission.

I have just one question for my noble friend. He made brief reference to paragraph 8.10 of the draft Explanatory Memorandum, which includes the question of whether the transition period might be extended. I think that I understood him to say just now that that decision can be taken only after the general election by whatever new Administration come to power. I would be grateful if he could just clarify that because, if there is any change in the transition programme, it is important that we know in good time, well in advance, that any such change might take place. However, I think that I understood him to say just now that that could take place only after the general election in May 2015.

Lord Kennedy of Southwark (Lab): My Lords, I have only a very few comments to make on these regulations. As they stand, we support them because they will allow political parties to assist in promoting IER. One general point that I make every time that I stand at the Dispatch Box in the main Chamber is my concern about the people who are not registered to vote—at least 6 million people. Nothing I see coming from the Government ever deals with that. The Minister gave a figure of 85%, up from 75%. Is that 85% of the people who are presently registered, so that even more than 6 million people will not be registered? I want to hear more from the Government about what they will do about those people, because I do not see much for them at all.

I do not share the optimism expressed by the noble Lord, Lord Tyler, about how it is all going so well. The situation has certainly improved but I am also very well aware that there were some serious problems at the start. I know that from my membership of the Electoral Commission and elsewhere, so things have improved. Whatever Government are in power after next year will have to think very carefully about how to introduce this. If it is not perfectly right, we will have to extend the period to allow people to come on to the register, because it is really important that we allow our citizens to get registered properly. If there is a risk of more people being left out, it is not good practice.

Could the Minister also tell us a little more about the thinking of the Electoral Commission on how we are getting on with this process? I am very pleased that the Government have involved political parties, as they are crucial to getting this right, but I would like to know a bit more about the attitude of the Electoral Commission to the role of political parties.

Lord Wallace of Saltaire: My Lords, I thank the noble Lord for his comments, but I am not sure that I can say with confidence what the attitude of the

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Electoral Commission is to political parties. They play a very obvious and important part in all of this. I am informed that a minor political party is something like the rate payers’ association in a local authority, the south Somerset independents, or whatever. Anything else that is nationwide is a national political party. Political parties have a very important role to play in democracy. One thing that I deeply regret about the current state of British democracy is that the membership of all major political parties has fallen. That worries all of us, and we all wish to turn it back.

We recognise that there are a number of people who are not on the register, and the Electoral Commission’s research demonstrates that the strongest reason for that is that people want nothing to do with politics and not much to do with the state if they can avoid it—apart from receiving benefits in a number of instances. We have a severe problem of political alienation. When I saw the latest audit of political engagement produced by the Hansard Society, which has only 24% of citizens between the ages of 18 and 25 thinking that politics has any useful connection with their own lives, that is a real problem for all of us. It suggests that we have to work particularly hard at getting young people to re-engage with politics.

Lord Maxton: Is not one of the reasons—I emphasise only one of the reasons—is that young people in particular see politics as somehow divorced from the trends and the movement of technology in our country? That is why they have switched off from it.

Lord Wallace of Saltaire (LD): That is one of the reasons why we hope that online voting will make it more attractive to them. I also think there is a case for encouraging more activity by all parties and by all Members of both Houses of Parliament, on a cross-party basis, to make sure that as we approach the next election young people are re-energised to take part in politics because they are, on the whole, switched off. We have a very large problem here, but there are a number of things that we can do about it. I have no doubt that the noble Lord, Lord Maxton, will be going out to many schools across his patch to energise them. I am told that the pick-up among 16 year-olds in schools in Scotland has been good and that registration is much higher than expected. That is partly because something is coming up which immediately involves them.

On ID cards, I look forward to many continuing conversations with the noble Lord, Lord Maxton. We had a Question this afternoon on digital information, digital sharing and digital privacy. The Government intend to publish a White Paper before the end of this year with clauses for a draft Bill on data sharing and data privacy. There are some very large issues here which all of us who remember the ID cards debate are scarred by. The intention of the White Paper will be precisely to try to float a more informed debate about the trade-offs between privacy and data sharing and how we address that. We have to change the legislation in this area because different departments have different legal frameworks for the collection, use and sharing of information. That is therefore a question to which we will return.

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In response to the noble Lord, Lord Tyler, the transition timetable does allow for the decision on whether to carry on or to delay has to be taken by the incoming Government and Parliament. These are all failsafes to make sure that we have the maximum amount of confidence by all concerned in the transition to individual electoral registration. I hope I have managed to answer all the questions.

I have become more and more committed to a successful transition. It was something that the previous Government set out on. We recognise that there are bound to be a number of problems, but so far the transition has gone much better than some of us were initially confident about, but nevertheless we have some way to go. I again flag the problems of making sure that attainers—the rising 18 year-olds—are fully on the register. We will be returning with further instruments as we go forward just to make sure that we utilise every single possibility to maximise registration.

Lord Kennedy of Southwark (Lab): We seem to be raising the same points again and again. One day I would like the Minister to say from the Dispatch Box that the Government are determined to have fewer people not registered under IER than were not registered before so we are going to bring in the AEA and council leaders and work with them to make sure that it happens because with all the investment and changes, if we end up with 7 million or 8 million people not registered to vote, that would be terrible. We must get to a situation where we have fewer people not registered to vote. While some people may not want to be registered, I do not believe for a moment that all of those 6 million people out there are saying that they do not want to be on the register. I think it is about how we engage with people at local authority level, at the government level and at all levels, and that includes the political parties. I hope that when the Minister brings the instruments to us over the next few weeks and months, he will be able to give us some good news on the lines that I have outlined.

Lord Wallace of Saltaire: I had hoped that I was bringing good news. Of course political parties have a significant contribution to make to this. We know who the vulnerable groups are. They are young people, people who move regularly, people in private rented accommodation and people who are out of a job. They are the groups who are least likely to be registered. People like me who have been living in the same house for a long time are almost always on the register. We have to concentrate on the vulnerable groups as well as we can. I am happy to say that evidence from the National Citizen Service courses—something which our Conservative colleagues in government are enormously enthusiastically about, but I must admit I was a little sceptical at the outset—appears to show that the 80,000 15, 16 and 17 year-olds who have taken part in NCS courses are much more enthused because they think they know how to participate in local communities and therefore also how to register to vote. It is a range of activities of that sort that we all have to be engaged in. I stress again that the Government cannot do it all and that civil society has to help. The Government

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have already provided some £4.2 million to various civil society groups for this effort. We all need to work together. I very much hope—as I know the noble Lord, Lord Kennedy, does—that that the outcome is that some of those 6 million people who we are missing will register in the transition and that we will gain rather than lose as we make that transition.

Motion agreed.

Scotland: Independence

Question for Short Debate

5.01 pm

Asked by Lord Purvis of Tweed

To ask Her Majesty’s Government what plans they have for further reform and decentralisation of the United Kingdom in the event of Scotland voting “no” in the independence referendum in September.

Lord Purvis of Tweed (LD): My Lords, I am grateful to noble Lords who have chosen to take part in this debate and to noble Lords across all parties who are taking an interest in what future path the United Kingdom takes in the event of a no vote in the Scottish referendum. It would be a dereliction of duty for me not to refer to the noble Lord, Lord Foulkes of Cumnock, who chairs with me an all-party group on UK reform and further decentralisation. When the noble Lord, Lord Foulkes, and I both served in the Scottish Parliament, we would occasionally spar against each other across the Floor of the Chamber, but on this issue we purr with agreement on the need for a lively debate on what shape the United Kingdom takes in future.

This debate is taking place on an important day in Scottish political history. It is uncommon that political parties from very different backgrounds and philosophies and with competing interests come together on a shared platform. This afternoon, Willie Rennie MSP, Johann Lamont MSP and Ruth Davidson MSP have led their respective parties to a common statement committing them all to delivering powers to strengthen the way the Scottish Parliament operates and to allow the people appropriately to hold MSPs to account for the decisions that they make. Such a commitment is highly significant and guarantees the strengthening of the Scottish Parliament should Scots vote no.

Exactly a decade ago, in June 2004, I published a pamphlet outlining a new model for financing the Scottish Parliament within the UK. In the introduction of a paper on fiscal federalism which I wrote while serving as a member of the Scottish Parliament’s Finance Committee I said that “the concept of fiscal federalism is well suited to a modern, sophisticated and pluralist society like Scotland. It will provide the necessary underpinning to support the move towards an increasingly federal system of governance in the United Kingdom”. A decade on, I continue to hold that view. It is worth noting for noble Lords’ interest that when I published that paper my party was serving in government in Scotland and the SNP had the

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previous year suffered a major reverse in the Scottish Parliament elections. It was most assuredly not a proposal designed to respond to the calls for independence by a strong SNP.

I have never believed that the question of the powers of the Scottish Parliament is one of tactics or about responding to nationalist arguments. Rather, I have always believed that the question of powers is one of ensuring the right balance of accountability and responsibilities within our union. With the right balance, we ensure that the appropriate sphere of government is best motivated to deliver good and efficient services and is appropriately held to account for the decisions it makes. Without the appropriate balance, it is easy for decisions to be avoided and an accountability gap to be created. I saw this start to develop while I was an MSP, and I see it today. I deliberately cite spheres of government; no longer should we in the United Kingdom be talking about levels of government. Many citizens across our union live with two Parliaments, or a Parliament and an Assembly, and two Governments. It is therefore the sphere of those government relations, and the relationship between them, not the hierarchical level, which is the most appropriate area to define.

The Scottish parties of the current coalition government partners have published proposals that match closely those I put forward in 2004. Coming from different perspectives, they have reached the same conclusions to address this growing imbalance. The post-referendum debate, however, is one that does not affect solely Scotland. For England, Wales and Northern Ireland the existential questioning of the union by many Scots requires us to consider the wider union, and the governance of England, too. This debate is best shaped if we set the terms for what the extent of devolution is, or what I have called the natural destination of devolution. This is the permanent balance of power and responsibility between the nations, beyond which the union does not function.

My party for many years has argued a federalist case, and others are coming to the same conclusions about the need to reach a clear understanding on what this destination of devolution is. The issue for post-referendum Britain, therefore, is how we bring coherence to this in order that the union is not merely a more asymmetrical entity than it is at the moment, without a clear defining of place for the Westminster and Whitehall institutions and the relationship between the nations and within England.

First, there can most definitely be a union that has varying powers in the nations. After all, they entered into the union for different reasons and under differing circumstances, so their continuing presence in it need not be identical. Secondly, the governance of Scotland on domestic—or, as some call them, home rule—affairs, need not be identical to the governance of equivalent areas within England, Wales or Northern Ireland. Indeed, in many respects, there can be a healthy difference in the way in which policy is approached. It is unhealthy if there is difference of accountability and balance of finance.

It is therefore the issue of the coherence of what holds the entity of the union together that is important. For me, it is the rational and well considered

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decentralisation of power from Westminster and Whitehall, the extent that we reach the right balance of accountability and that it is robust enough to be permanent and stable.

The UK should become a more federal-type kingdom after the referendum, even if it prefers not to describe itself as such. While it will not be a purely federal country— perhaps it will never be, as I have outlined in relation to the way in which the union was formed—it will increasingly have characteristics of how federal countries operate. For example, the permanence of the Scottish Parliament should be enshrined in the constitutional architecture of the whole union. The Scottish Parliament should not be a devolved Parliament of this Parliament, it should be a permanent body in its own right, able to be abolished only should it so desire, or have its powers altered only if it approves. The Scottish Government, elected from its Parliament’s Members, should not have their financial relationship with the Treasury set unilaterally by the Treasury. The relationship between the UK Treasury and Scotland, Wales and Northern Ireland will look much more like that of a federal finance ministry rather than a centralised UK Treasury that can unilaterally alter the state of funding policy across all four nations.

While Scotland is further down a path of reform than Wales—and Northern Ireland, which has its own considerations——the question of the governance of England must continue. There is the need therefore to establish a framework of principles under which UK-wide bodies operate, under which UK Ministers carry out their UK-wide functions, as opposed to their English functions, and under which the institutional arrangements between the Governments of the nations, often called the concordats, are framed. Such a framework of principles would apply also to the many bodies and agencies that currently have a UK-wide remit and touch on areas that are the competence of the nations but which are answerable only to this Parliament.

What does this mean for the users of these services, our former constituents in many respects? Sometimes we think that our esoteric arguments about constitutional theory will be grabbing their attention every single day. I think they would see a greater level of transparency and hold the relevant politicians to account. A Scottish Parliament with spending powers and no taxation powers is a rather artificially benign political institution. Power resides with the people, not the institutions, and we must make it straightforward for them to exercise such power.

Therefore the question today is what path the UK Government and this Parliament take after 18 September and what position the new Administration from 2015 takes, whatever party or parties form it. The Secretary of State for Scotland, my right honourable friend Alistair Carmichael, has announced that he will convene a conference on the new Scotland within 30 days of the referendum in the event of a no vote. This represents an opportunity for the parties who have published their proposals and for those such as the Scottish Trades Union Congress, the Devo Plus group, the IPPR and others who have published their proposals to come together in good time before the UK general election.

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On a wider aspect relating to the whole of the union, some have spoken, including my noble friend Lord Maclennan of Rogart about the way the Scottish Constitutional Convention brought political parties and civic Scotland together in the 1980s and 1990s. This is a model worthy of consideration for the whole of the kingdom. There is merit in this. I believe, however, that given where we are today, 15 years on from the establishment of the Parliaments and Assemblies in our nations, we need a mechanism that can allow for open but focused discussion on how Westminster and Whitehall reforms take place.

I therefore propose to the Minister for his consideration the convening of a conference on the new union. Such a conference on the new union should be convened after the UK general election in 2015. It should last no longer than six months, and its objective should be to discuss and agree the principles upon which the UK and its institutions would be reformed in a coherent way for the positive distribution of power, a process already taking place within Scotland.

In conclusion, I leave the Minister with just these thoughts. It should have as its remit the endorsement of the reforms to the Scottish Parliament, that will be being legislated for, and to the National Assembly for Wales. It should also deliver agreement on how the financial relationship between the nations and the UK Government is made more transparent with the protections afforded the nations. The conference on the new union should also agree the parameters of reform to this Parliament’s procedures for the legislation that covers England. It should also put in place the necessary measures to enshrine permanently the existence of our national Parliament and the Assemblies of the nations.

Our union is a remarkable one, but it is being tested. The test is major. There will be a considerable number of people voting in fewer than 100 days to leave this union. I hope they will be in the minority in Scotland. If they are, we must respond. The response must be in a considered, sincere and careful way, but that does not mean it should not be radical. The opportunity for further decentralisation and modernisation of the UK presents itself most clearly. We should see the opportunity presented to us, and we should take it.

5.13 pm

Lord Foulkes of Cumnock (Lab): My Lords, I congratulate the noble Lord, Lord Purvis, first, on tabling the QSD on this subject and, secondly, even more impressively, on getting a debate quite so quickly on it. He must have the kind of influence on the usual channels that I can only dream of. He has also established a sort of, albeit temporary, unique Lib-Lab coalition on this debate, which I must say I am encouraged by.

I refer back to Margo MacDonald’s memorial service. I was struck by the message that Jim Sillars brought to us from Margo MacDonald on her deathbed, which was the hope that, whatever the outcome of the referendum, we should all work together for the good of Scotland. Maybe it is my wishful thinking, but I thought when he uttered that, he was looking particularly at Alex Salmond. I assume that he was talking to both

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sides on behalf of Margo. As Margo said—and I think I can say this as one of the no campaigners—I hope that when we win, as I think we will on 18 September, when 19 September comes there will be no recrimination whatever, no score-settling and no tone of triumphalism, but a tone of inclusivity, ensuring that not only is Scotland fit for purpose but the whole United Kingdom becomes increasingly fit for purpose.

We have had the devolution process. I was party to that as chair of the Labour campaign for a Scottish Assembly and then for a Scottish Parliament. I must say that I get upset when the SNP says that it was the instigator, as the noble Lord, Lord Purvis, said. We did it because we believed in it, and it was a Labour Government who produced the Scottish Parliament. But unfortunately, of necessity, the devolution process has been piecemeal. We have gone our own way in Scotland, Wales has not gone quite so far and in a different way, while Northern Ireland has its own set-up. London has not just one centre of government but two, on the riverside—the Mayor of London and the GLA. This piecemeal devolution has left us with what Tam Dalyell called the West Lothian question but what I would rather call the English anomaly—the English democratic deficit. If I was still living in England, that is what I would be annoyed about. I am surprised that the English are so reasonable and sensible about it, apart from towards Italy because of recent events. The wrong way to deal with the English dimension is what the Tory side of this Government are suggesting—I do not know about the Minister at the Dispatch Box—which is that Scots, Welsh and Northern Irish MPs should not vote on what supposedly can be defined as England-only measures in the House of Commons. This needs to be done in a more fundamental, sensible, coherent and cogent way than that, which is why the noble Lord, Lord Purvis, and I have set up an all-party group to look at further decentralisation and devolution and to consider ways in which England can be excluded. My own thought is that we should have an English Parliament and the devolution of administration to the regions or city regions within England, but that is not for me to decide. What we need to do is provide a framework so that we can all look at it and all decide.

Incidentally, a similar proposal is coming for another source of concern, which we will discuss next Thursday. It relates to the urgent need for a review of the constitution of this House, the second Chamber of Parliament. It should be looked at by a constitutional commission. I think that the outcome of the all-party group will be to suggest a constitutional commission, just as the working group of the Labour Party has suggested in relation to reform of the Upper House. If the second Chamber could be representative of the nations of the United Kingdom and the regions of England, it would fulfil a very useful purpose. Perhaps I may also echo what the noble Lord, Lord Purvis, said about the cynicism of the nationalists in saying that they cannot trust the unionist party leaders to come up with an alternative. That is cynicism of the worst order, which is so typical of the nationalists. If we had a constitutional commission, in order to reassure people who might think that we are kicking the issue into the long grass, it should have a clearly defined

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timetable to enable legislation to be introduced in the next Parliament. If there was a timetable of two years, the commission could certainly do that.

The idea that has been suggested by the noble Lord, Lord Purvis, is one way of doing this. I like the concept of a conference of the new union and I like the way that he suggested that the Government should do that. However, I say to my noble friend Lord Kennedy that I am campaigning to make sure that this commitment is set out in the Labour Party manifesto so that we can be really sure that what we expect to be the next Government of the United Kingdom will carry it through at the earliest opportunity. I know that my noble friend Lady Adams and other noble friends will join me in that campaign.

5.19 pm

Baroness Adams of Craigielea (Lab): My Lords, first, I congratulate the noble Lord, Lord Purvis, on securing this debate. I seem to have spent my whole political life talking about devolution. In fact, those of us who are young enough to remember will know that in every Scottish political programme of the 1970s, 10 minutes would be set aside for someone to ask, “And what about devolution?”. We spent the next 10 years, into the late 1980s, with the word “devolution”, until eventually we set up the Scottish Constitutional Convention, when we brought civic Scotland, political Scotland, religious Scotland and trade unionists together round a table to see what shape we thought this should take. Would this be the answer to nationalism? Could we bring Scotland together without going down the road of separation? That process also took 10 years. This is a long process; it is not something that can be done in a knee-jerk reaction. By taking each issue piecemeal, we have ended up in the situation that we are now in.

When Donald Dewar said, at the start of the Scottish Parliament, that devolution was not an event but a process, the nationalists took that to mean that the process should lead to separation. I do not think that was ever the intention in Donald Dewar’s head. I think that he was looking for continuous devolution—that power going down should continue to go down. What has been missed in all this is local government. In fact, the Scottish Parliament did not devolve more power to local government; it sucked up power from local government. We wondered then why people were not engaging. People will engage only at local level. The biggest issue is not the starting point; it might be for teenagers when they are thinking about nuclear weapons or identity cards but, once they get into their twenties and the price of bread and of houses means something, they want to be involved at local level. We have not looked closely enough at what is happening in that regard.

When we had the Scottish Parliament after 20 years of discussion, we might have thought that we would have a huge turnout at elections. In fact, that was not the case. I think that at the last Scottish Parliament elections less than 50% of the electors voted. So we now have a nationalist Government who were elected by about one-quarter of Scotland’s electors. That cannot

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be good for democracy. If devolution is about anything, it should be about securing democracy and engaging as many people as we can in the process from the lowest base.

Alex Salmond continually asks us what more powers the Scottish Parliament will have if there is a no vote. That reminds me of when I used to take my children to the fairground when they were small and they wanted to pull out a duck from a fairground stall—and it said above the stall that everybody would win a prize. I do not think that Alex Salmond is looking at all for an answer to the yes/no question; he wants to know what the next prize in the list will be. He is now looking for independence with the union jack or independence without it. You cannot have your cake and eat it.

If the union is to be sustained, the West Lothian question has to be answered. The West Lothian question has always been a matter for the people of England. That became totally confused. The people of England have to decide what shape their democracy takes. We cannot impose that on them from above; they have to decide whether they want an English Parliament, whether they want their home affairs to be discussed in the national Parliament or whether they want an English Parliament with regions within that Parliament. They should not just be told constantly that Scotland is getting more powers, Northern Ireland is getting more powers and Wales is getting more powers. Where do the people of England end up in all this? Like my noble friend Lord Foulkes, I think that if I was a resident of England I would be very annoyed at all of that. I would feel completely excluded and as if I did not matter. I would wonder why England, as the biggest part of the union, did not matter, and why what I wanted did not matter.

We wonder why people are not engaging. I, too, think that we need a constitutional convention for the whole UK to look at democracy in the context of both Houses in this Parliament. Should we have a bicameral system or a single Chamber with an Executive? Should we have devolved assemblies within national Parliaments? Where does local government come into all this? This is a long process, but what we have to do in that process is reach out to everyone, not just to people in certain parts of the UK.

5.25 pm

Lord Maclennan of Rogart (LD): My Lords, it is a great privilege to follow the noble Baroness, Lady Adams, whose views I broadly agree with. I am also grateful to my noble friend Lord Purvis of Tweed for initiating this debate. I believe it is very timely to do so.

Today, in its first leader, the Financial Times speaks of the possibility of a federal Britain being the best solution for the future of our constitution. I rather agree. It is well argued. However, we cannot arrive at that position as a result of a snap decision taken by one political party. As the noble Baroness, Lady Adams, said, it is clear that this needs to be deliberative. It needs to involve more than single political parties or single Governments, even if they happen to be coalition Governments. We are looking for a consensus about how best Britain should be governed.

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Having served in the Convention on the Future of Europe for nearly two years, I can report that that system brought about broad consensus. There were some exceptions, but there was broad consensus and the result, despite the referenda in France and the Netherlands, was that most of the recommendations were incorporated in the Lisbon treaty and have, to my mind, been broadly accepted by the member countries. That does not mean that we have reached the end of the debate about the future of Europe. We have to go ahead with that.

What we are faced with at this time as a result of the referendum in Scotland is the possibility of the break-up of Britain. It seems to be me that that would be a catastrophe for the whole country and for Europe. That view is taken by many people in other countries. The Scots may be surprised that this issue has been noticed. The Foreign Secretary of Sweden, President Obama and, most recently, the Pope have indicated that the break-up of countries is highly undesirable. I hope those utterances by objective people who stand back will be recognised and noticed in Scotland.

I take the view that we need to improve our constitutional set-up so that the public can feel not disaffected by politics but involved to the extent that they can be effective. That requires greater decentralisation of government and attention to local government, which has not been given in Scotland. In fact, it has been reversed to some extent.

When we consider the future constitution of this country, we should be thinking about the equitable treatment of all parts of the country and considering how the English—85% of the population of Great Britain—should be favoured and how they should be enabled to reach decisions that are satisfactory to them. There is a fairly general sense of distrust of politicians across the United Kingdom at this time, so how we go about this should not be decided by a political party, and certainly not on the eve of a general election. The possibility of announcing before a referendum that a convention will be established would be highly desirable because it would give the Scots, particularly those who are undecided, some confidence that there will be a national debate about how best to govern a country that has been together for over 300 years. The Scottish convention did offer many good examples of the involvement of the public. As the noble Baroness said, it involved religious and civic groups, trade unions and the CBI. They all could take part.

The report of the Conservative commission chaired by the noble Lord, Lord Strathclyde, seems to tend in that direction. He has spoken about localities being represented in such a convention. I have talked to him subsequently and he said that evidence should be provided by all kinds of interest groups. That is what I would hope would happen. The leaders of the three political parties that are representative of the United Kingdom at this time do not have a common view about how devolution should be managed. They should get together and announce that such a convention will be set up. It will not come to its conclusions before the general election, but it will be a matter of priority to be decided by the people of this country.

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5.32 pm

Lord Soley (Lab): My Lords, I congratulate the noble Lord, Lord Purvis, on securing this debate. I am sure he already knows this, but I would point out to him that he comes from a very long line of politicians who have been strongly in favour of devolution but have not been able to deliver it. In fact, the Library note makes the point clearly on a number of occasions that almost all Governments have been in favour of decentralising Britain and devolving power, but that nearly all of them have run into difficulties in doing that. I must confess to my share in that because, back in 1980, when Bryan Gould, the MP for Dagenham at the time, was the shadow Minister for planning and I was a shadow Minister, we tried to work out what a regional structure for the UK would look like. It is actually very difficult to do, particularly when you have local councils worrying about losing their powers in a regional structure. They promptly start to reject what they previously said they were in favour of.

I have always been struck by the fact that in 1707, what became the United Kingdom after the joining up of Scotland made us Great Britain was actually a federal structure even before federalism was recognised. Why was that? It was because Scotland had its own legal system, and England and Scotland had separate arrangements for the church, which was a very important part of the constitutional structure at the time. In a way we partly invented federalism but did not quite know what to do thereafter.

Perhaps the most important point that I want to make today is that while I am a bit hesitant, I am broadly in favour of a constitutional commission, but the great difficulty with it is that it is an incredibly complex area that will take a long time to do. I would quite like to find a way of addressing the issue in more discrete parts.

I will give an example of what I mean. The noble Lord, Lord Foulkes, and I have often discussed this, and he made the point well that the English are a bit odd because they do not know quite what they want. Part of the problem, of course, is that a lot of English people think of themselves as British and not as English, whereas most Scottish people think of themselves as Scottish and British. The English are, in a way, a bit more ambivalent about it, although the rise of Englishness has certainly happened fairly dramatically in recent years. I do not regard myself as English and never have done so; I am a typical mixture of all parts of these islands, and that is one of its strengths.

However, it is not just the size of England in relation to Wales, Scotland and Northern Ireland that is the problem; it is also the problem within England. If you take the area bounded by Cambridge, Milton Keynes, Oxford and Southampton, you are talking about more than 22 million people. That is more than one-third of the population of the whole United Kingdom and approaching half that of England. Many years ago, Bryan Gould and I were looking at regional structures, and he said, “Supposing we take out London and just have the rest of the south-east”—the “mint with the hole” approach. That of course made no sense. However, if you tried to divide up the vast region of the south-east into regions, you would struggle

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again to make sense of it. That problem puts some of the other problems about regions into perspective, such as the problem of whether Manchester or Liverpool should be the capital of a north-west region, without provoking a revised version of the War of the Roses. So we struggled with that. However, the south-east is the problem.

One great advantage of the debates in Scotland that led to devolution, which I strongly supported and has worked well, was that it was much more focused. You could focus on what could be done within Scotland to get that structure working. Another good thing that has come out of that—and this is an underlying fact that we should never forget—was that you need to be very clear about the powers that are devolved. Then you have a situation whereby everything that is not devolved is with the central authority. That is a very important principle because it means that you can build up to devolution without having a big argument about whether defence or foreign policy is under the control of a particular area. I use the extreme example.

I have always been in favour of devolution. I do not like the centralisation of the UK. I recall, as most of us will, that the great driving house of the industrial revolution, which emerged as both parts of the union got very much richer after 1707, was in part due to the fact that the great cities themselves were an economic driving force. Scottish nationalists would do well to remember that. Birmingham is one of the classic examples. It would be nice if we could get back to something like that, whereby the regions, and the towns and cities in the regions, became the driving force.

I am in favour of a constitutional commission and we have to be very focused on it. Time is not on our side. If you start that process and it goes on for years on end, you will end up in many years to come with the same structure that we have now.

5.38 pm

Lord Tyler (LD): My Lords, we should all be grateful to my noble friend Lord Purvis for initiating this debate, and to him and the noble Lord, Lord Foulkes, for the work they are doing with the all-party group, which is very timely. I notice that all noble Lords speaking today either have strong connections with devolved areas of the country or cannot really speak for England—and, indeed, Cornwall—beyond London, expect of course the Minister himself.

I should put on the record that, as long ago as 1968, I was the co-author of a booklet entitled Power to the Provinces, in which we argued the case for subsidiarity before the term was invented: that decisions should be taken as close as possible to the people they are going to affect. We are getting there, but it has taken a long time, as other Members have already said. The forthcoming Scottish referendum clearly brings a new cross-party and UK-wide focus to the need for a review of the situation. Today’s joint statement from the three Scottish leaders is obviously in that spirit.

The word “devolution” is usually used in terms of Scotland, Wales and Northern Ireland, while “decentralisation” is what people talk about in terms of England. There is a rather false distinction between

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the two, and I would argue that we need to try to bring them together. This Government have made huge strides in decentralising power within England using the City Deals. There has been a real difference there, but there is a degree of democratic deficit. These agreements between central and local government only go so far: they are, to some extent, about decentralisation of delivery but they do not empower local government in the same way that we have with devolution elsewhere.

I very much agreed with the noble Lord, Lord Whitty, who I am sorry is not able to be here today, when he said in the debate on the gracious Speech last week:

“We clearly recognise in Scotland and Wales the distance and resentment towards Westminster-dominated decisions. We need to recognise that the same instincts apply in Newcastle, Norwich, Cumberland and Cornwall”.—[Official Report, 11/6/14; col. 460.]

Hear, hear to that. The Secretary of State for Scotland, my right honourable friend Alistair Carmichael, recognised this too in his radio interview yesterday.

We have proposed a Bill to enable English devolution to fill this huge gap in our devolution ambitions for the United Kingdom. Credit should be given to Peter Facey, formerly of Unlock Democracy, who wrote about such a model in 2011. The principle is simply that parts of England may well want to take up powers akin to those already devolved to the Welsh Assembly, and that they should be able to do so provided they meet certain criteria. This would be true devolution within the United Kingdom, but it need not all happen at once in every part of England.

Dr Andrew Blick, in a very useful publication last week, proposed some similar ideas. He envisages devolution, first, of administrative power, then later of some legislative power—as happened respectively in 1998 and 2006 for Wales—and, in due course, of financial power to local authorities or groups of them. That is already happening—the City Deals are bringing together groups of local authorities in England in a very positive way. The menu of powers that he sets out is much as in the Government of Wales Act: everything is available, from agriculture to education and health services.

However, like the Spanish autonomous communities, different places could take up more, or less, responsibility according to local demand and the strength of local political identity. Having just spent the weekend in my old North Cornwall constituency, I can assure friends across the House that the demand there would be for a full assembly, like that of Wales and with the same powers. In other places, there may be a different timetable and a different objective. Dr Blick said,

“an English Parliament would not address the issue of over-centralisation in a meaningful way”,

and that it would be “a destabilising force”. Finally, he said:

“The history of federal experiments in other parts of the world suggests that when one component of the federation is so much greater than any other, the arrangement is difficult to sustain”.

I suggest that there is a trap in creating an unbalancing, centralising English Parliament without addressing further devolution within England.

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For these reasons, I really think that the English question does not have an all-English answer. It is really not good enough. Real devolution within England through an enabling Act of the kind I have been able to only briefly describe—first to those areas which demand it and later to those areas that envy it—could advance the cause of really radical decentralisation in the whole of the United Kingdom, including its largest constituent part. This is a very timely debate and I am sure it will not be the last time that we will address this issue, as many noble Lords have already indicated, over the coming months. I welcome that.

5.44 pm

Lord Martin of Springburn (CB): My Lords, I have only one minute and therefore will obviously be brief. I thoroughly welcome the comments that have been made about local government. Recently, it has been neglected. It is an excellent employer, and the officials and elected members bring services to every section of our community—young, old and those who are disabled. They have risen to the occasion when the Government have called upon employers to find apprentices. They have embarked on apprenticeship schemes. Looking around this Room, it is the case that many of us—I include myself—found that serving on a local authority was a training ground for politics. It was a good apprenticeship, and I am glad that they are not being overlooked in this debate.

5.45 pm

Lord Kennedy of Southwark (Lab): My Lords, I join other noble Lords in putting on the record my thanks to the noble Lord, Lord Purvis of Tweed, for securing this debate today. It is a timely opportunity to explore what plans the Government have for further devolution in the UK following a no vote in the Scottish referendum on 18 September, fewer than 100 days away. I should say at the outset that I am a supporter of the Better Together campaign and very much hope that Scotland votes no. It is a decision for the people of Scotland and we will respect that decision, but for me it is unthinkable that Scotland would not be part of the union of nations that has been so successful in these islands, a union into which I was born and where nations stand together as equals.

It is also a matter of regret that because no one has been appointed to this House from the Scottish National Party—I am well aware that that is a decision of that party—we fail to have its arguments put up for debate. I would say to the Government that there are individuals who are not members of the SNP who would put the nationalist viewpoint and be excellent Members of this House. I am thinking in particular of the second presiding officer of the Scottish Parliament, the right honourable Sir George Reid, who I had the privilege of serving with on the Electoral Commission for four years. He would be a welcome addition to your Lordships’ House.

In the five minutes I have to speak in this debate, it is impossible to touch on all the implications for Scotland, Wales, Northern Ireland and the English regions, as well as London, but I shall make some brief

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remarks that I hope are helpful. I agree with my noble friend Lord Foulkes of Cumnock that the debate and the period after the referendum should be conducted with respect for other people’s views. It is unfortunate to see that that is often not the case for so-called cybernats. They often rain abuse down on people and that is totally unacceptable.

Devolution in the nations outside England has been a great success. The institutions are accepted, are growing in strength and are gaining new powers as they mature, which I very much welcome. I agree with the comments made by the noble Lord, Lord Purvis of Tweed, about the framework of principles and a conference for a new union. The report by a commission of Scottish Conservatives, headed by the noble Lord, Lord Strathclyde, is an important document. It highlights for me that the Conservative Party has embraced and accepted the Scottish Parliament and devolution, which is not something that it was always known for. The case for a further transfer of power is unstoppable whether you call it devo-max, devo-plus or something else.

Although I have lived and worked in many parts of the UK, London is where I was born, and it is my home. My noble friend Lady Adams rightly said that the West Lothian question has to be answered by people living in England. The noble Lord, Lord Maclennan of Rogart, was right when he talked about the need to improve our constitution and the equitable treatment of our people. I was recently elected as a Labour councillor in London. Although the structure has changed since I was last a councillor 20 years ago, in terms of the powers exercised by a London borough there has been no dramatic change. That is the position in the rest of England as well. It is a real problem that whichever Government come to power after next May will have to address.

In its report, Raising the Capital, the independent London Finance Commission recommended a modest devolution of five property taxes to London government to allow it to invest in the infrastructure needed to underpin the capital’s future growth. This would give London control of approximately £12 billion per year, an increase of only £5 billion per year on what it presently controls. London government and the Core Cities Group also came together to call for this important devolution for all of England’s great cities. This is something I very much support.

In replying to this debate will the noble Lord, Lord Wallace, set out what plans the Government have to make it clear to people living in Scotland that quickly and without question there will be further devolution of powers to the Scottish Parliament? Will he also comment on how the Government could underpin the Scottish Parliament to make it impossible for there not to be a Scottish Parliament, as outlined by the noble Lord, Lord Purvis of Tweed? Will he tell us how the Government are going to address the deficit of devolved powers that people living in England presently have to live with? Does he see the devolution of power to England only through local government, as it is at present? What is his position on unitary local government for England, as called for by the noble Lord, Lord Heseltine, in his report on searching for growth, as

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opposed to the patchwork local government we have in England at present? Does he think the case for regional government or regional assemblies in England is dead or could it be brought into the debate on governance and devolution in England?

I am sorry that I do not have time to make further points, but this has been an excellent debate initiated by the noble Lord, Lord Purvis of Tweed, and I thank him for it. The noble Lord, Lord Wallace, has many things to reply to.

5.49 pm

Lord Wallace of Saltaire (LD): My Lords, I metaphorically tore up my speech before I started. Time is short. This has been a helpful debate and has raised the sort of questions that we will all have to consider over the next 90 days—and well beyond.

We need to remember just how far we have moved. I say that as someone who first joined the Liberal Party machinery of government panel. I was a graduate student in 1965 and we were talking about devolution and regional government. I remember that in 1974 my wife and I, as academics, were invited into the Treasury Constitution Unit that had just been established. Several of the senior officials there could not understand how you could manage a national economy if you allowed any autonomy whatever in financial terms. My wife and I tried to say, “Yes, but in Germany they do it this way, as they do in the United States and Canada”. The officials still could not understand. We have moved a long way already. Think how far we have gone since the Maclennan-Cook discussions of 1996 and 1997; it is some considerable distance.

We are, however, left with the tremendous problem of the democratic deficit in England and its highly centralised pattern of government. We should all recognise that part of that problem is the dominance of London, economically as well as politically. We must all take that economic dominance into account in considering the future of the United Kingdom because London continues to generate an enormous amount of wealth, which needs equitably to be shared around the regions and nations. My noble friend Lord Purvis talks about fiscal federalism, which is about hard bargaining or “finance ausgleich”—who gets what share and how much shall be distributed. That is at the core of Finanzausgleich, which is much better organised than the disorganised US federalism. Incidentally, in established federal systems—as the noble Lord suggested—you can never say that we have reached the end of the journey. Federal politics is about a constant battle between state rights and federal powers. A pull and push in each direction is normal politics—just as in the European Union we have had a constant and continuing battle between those who say that we have to do things at the European level and those who say, “No, we don’t; we have to have it at the nation-state level”. That is what international, domestic and local politics necessarily provide.

The noble Lord, Lord Foulkes, quoted Margo MacDonald, who said that we should all work together for the good of Scotland. I suggest that we should work for the good of the UK, not just Scotland. That is post the Scottish referendum; if, as we all hope, the

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result is no, we need to address this question. Between now and then, no one could cook up a proposal for a conference for a new union, or constitutional convention that could be agreed or accepted at least half-heartedly by the

Mail

and the

Telegraph

. We can raise the question—I encourage all noble Lords to do so: where do we go after September? It raises fundamental questions about the future of the kingdom, including, as the noble Lord, Lord Foulkes, said, the role of the second Chamber of what in some ways then becomes the federal Parliament.

It may well be that at that stage we move towards some sort of constitutional convention. We have to recognise that, against the cynicism of much of the national media and the disengagement of much of our national public, it will be quite a job for all of us as politicians to carry the public with us when we say that a more fundamental look at the balance of our political life nationally, regionally, locally and internationally is needed. After all, the future of the United Kingdom in the European Union is part of the picture. The arguments made by English nationalists for leaving the European Union are not entirely dissimilar from the arguments that Scottish nationalists make for leaving the United Kingdom. Therefore part of what those of us who care about good governance have to do is to link all these different levels together.

As somebody who accepted a job at Manchester University rather than Edinburgh University when I was 26, and therefore have spent my adult life in the north of England rather than in Scotland, I am concerned about the marginalisation of the north of England. I am told that a number of senior officials in local authorities in England have been saying to their Scottish counterparts: “Don’t leave us; we need you. We need you to help us to counterbalance the dominance of London and the south-east.” That is a very important part of this. As one of the relatively small number of people in this Chamber who represent, in a sense, the north of England, I am constantly struck by the assumption that when something happens in London it is important, when something happens in Edinburgh or Cardiff, well we notice it a bit, and when it happens in Bradford, Leeds or Newcastle we are not quite sure what it was, but besides we certainly did not report it, even in what used to be called the Manchester Guardian.

Birmingham is a local authority with a population larger than that of Northern Ireland and roughly comparable to that of Wales. This morning I heard on the “Today” programme a former Minister say that one could not trust Birmingham to run its own schools. There is a mindset inside the Westminster bubble which has accepted that perhaps one can now allow the Scots, the Welsh and the Northern Irish—to a certain extent—to run their own affairs, but one certainly could not allow Manchester or Leeds to do so.

The City Deals are at long last beginning to push power back to what might become the English regions. Part of the conversation we all need to have after September is what we mean by the English regions and whether they will be city regions or something different, and how far one can allow Cornwall to split off from the south-west because we all know that all good Cornishmen hate Bristol. What do we do about the

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south-east as a whole, which, as the noble Lord, Lord Soley, remarked, is so dominant a part in population and wealth terms of our United Kingdom? How do we ensure that the south-east continues to share its wealth with the rest of the country? The whole of the country, including Scotland, would benefit from the sharing of that wealth; it has to be done. Where do we move on that? We move perhaps towards the discussion of a constitutional convention. All parties need to consider to what extent they put that in their manifestos. They will then have to define what they mean by it. Then, of course, we cannot move towards a constitutional convention unless there is some consensus on it. It has to be cross-party and beyond party if it is to be successful.

Over the centuries the British constitution has been built in a series of fits of absence of mind and occasional crises. We are discussing now something which might be a little more rational and a little more long-sighted—it is very un-English in this respect—but we should go for it. The Government have no policy on this and intend to have no policy between now and the election. However, it is precisely the sort of thing that others ought to be floating if it is felt that we need to think in the round about how the substantial changes in the structure of government in the United Kingdom over the past 20 years have taken us to a point where we need to reconsider some of these fundamentals.

I would add—I say this personally, not as a Minister—that the role of the House of Commons, as such, is also a very important part of this. I have found in 18 years in the House of Lords that the House of Commons leaves more and more legislative scrutiny to the second Chamber, while the first Chamber does, in many ways, less and less.

Therefore, there are very some large issues which we have to consider. We have to attack the public scepticism about democratic politics as a whole. That is also part of this. We have to revive a degree of respect in regional government, regional autonomy and local government. I had not realised how sharp a problem that is in Scotland as well as in England. Then we need to work together across the parties and beyond in order to reshape something.

I have learnt over the past three years that there are many, particularly on the Opposition Benches in the House, who regard compromise and consensus as almost dirty words that are linked to “coalition”. Having been in coalition for four years, I would defend the concept of compromise and consensus in coalition if we are to address these fundamental issues, something the British have been pretty bad at doing most of the time. We are going to have to build a broad coalition of interested parties from all the regions of England, from the other three nations of the United Kingdom and from civil society as well as all parties, in order to promote the good governance that we all want.

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Lord Foulkes of Cumnock: The Minister has not been supported by any civil servants in the debate and yet he has done a brilliant job. However, I am a bit suspicious when Whitehall does not turn up. That is because my experience over the past few months is that Whitehall seems to be ignoring this issue. Perhaps I may ask the Minister how he is going to feed the ideas that have been put forward by the noble Lord, Lord Purvis, and the questions raised by my noble friend Lord Kennedy, into the Whitehall machine. It is important not only that we have the sympathy of the Minister but that we have the Whitehall machine behind him as well.

Lord Wallace of Saltaire: I thank the noble Lord for that barbed compliment. Of course it is purely accidental that I have made a good speech without officials being present. I can assure him that I meet the officials fairly regularly and that I meet my Conservative colleagues fairly regularly. I also talk to Labour colleagues fairly regularly. This is one of those areas where we all share an interest in raising various broad matters. It means that people like the noble Lord, Lord Foulkes, and others should be writing to the newspapers and appearing on radio and television programmes to discuss them. We have at last reached the point where people understand that there is going to be a Scottish referendum, and that is progress. Three months ago you hardly saw any mention of it in the London press. We can now begin to talk about what is to happen after September, and that takes us further.

Those of us who are interested in successful decentralisation within England, which is part of what the coalition Government are now trying to do with the City Deals, want to take them further and link them into the devolution-plus which follows in Scotland, the implementation of the report of the Silk commission for Wales and similar developments in Northern Ireland. That is a very large agenda, and it is not something that the British have been good at handling. The sad history of attempting to discuss House of Lords reform over the past 25 years and more shows how bad we are at considering constitutional reform in a calm way. Let us approach this in a different manner. I assure the noble Lord, Lord Purvis, that as far as I am concerned, I along with many of my Conservative colleagues recognise that after Scottish devolution we will have to move. That is what the three parties in Scotland have just committed themselves to, and that is how we will go forward. I note the point about entrenchment; it is not something that the British constitution has done before. I note the point about a changed role for the Treasury and I note the argument that we need a bigger overview in some form of the structure of the British constitution.

This is a debate that will continue and I trust that all noble Lords will be active participants in it, but this is the point at which, without my officials, I should stop and thank everyone for a very constructive debate.

Committee adjourned at 6.03 pm.