Vol. 742 Wednesday No. 95 16 January 2013

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Questions Property: Leasehold Valuation Tribunal NHS: Clinical Commissioning Groups Education: School Leavers EU: UK’s National and Trade Interest Age of Criminal Responsibility Bill [HL] First Reading Growth and Infrastructure Bill Order of Consideration Motion Legislative Reform (Constitution of Veterinary Surgeons Preliminary Investigation and Disciplinary Committees) Order 2013 Motion to Approve European Union (Croatian Accession and Irish Protocol) Bill Report European Union (Approvals) Bill [HL] Report Scotland Act 1998 (Modification of Schedule 5) Order 2013 Motion to Approve Health: Medical Innovation Question for Short Debate

Grand Committee Enterprise and Regulatory Reform Bill Committee (8th Day)

Written Statements Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2013, this publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 683 Property: Leasehold Valuation Tribunal[16 JANUARY 2013] NHS: Clinical Commissioning Groups 684 House of Lords NHS: Clinical Commissioning Groups Question

Wednesday, 16 January 2013. 3.09 pm Asked By Lord Hunt of Kings Heath 3pm To ask Her Majesty’s Government why the NHS Commissioning Board is discontinuing the poverty Prayers—read by the Lord Bishop of Exeter. element in the funding formula for allocation to clinical commissioning groups.

Lord Hunt of Kings Heath: My Lords, I beg leave to Property: Leasehold Valuation Tribunal ask the Question standing in my name on the Order Question Paper and declare my interests on the register.

3.06 pm The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I can reassure the Asked By Baroness Gardner of Parkes noble Lord that the board has not discontinued the To ask Her Majesty’s Government whether they poverty element of the funding formula. The board will review the workings of the leasehold valuation was concerned that while the formula provides an tribunal. accurate model of healthcare need as currently met, if implemented it would target resources away from those areas with the worst health outcomes. It has therefore Baroness Gardner of Parkes: My Lords, in asking decided to give all clinical commissioning groups the the Question in my name on the Order Paper, I declare same growth while launching a fundamental review of that my interest is recorded in the register. allocations.

Lord Hunt of Kings Heath: My Lords, I am grateful The Minister of State, Ministry of Justice (Lord McNally): to the noble Earl for that explanation and understand My Lords, we have no plans to review the working of that a flat-rate increase is to be given next year on top the leasehold valuation tribunal. However, later this of the existing formula. Will he assure me that if the year, the tribunal will transfer into the newly established national Commissioning Board, after this review, decides property chamber in the First-tier Tribunal, in line not to go down the route that the previous Secretary with our recently published administrative justice strategic of State, Mr Lansley, wanted this review to take—namely, work programme. In addition to improved deployment to take money away from the poorer areas and give it of judicial resources, the tribunal will operate under to the well off areas—it will see no interference whatever new procedural rules, which will continue to ensure from Ministers in relation to that decision? that all parties will have greater access to an efficient, proportionate and fairer system of justice. Earl Howe: My Lords, that is a very important principle. It is one of the reasons why we felt that the NHS Commissioning Board should be responsible for Baroness Gardner of Parkes: Is the Minister aware the allocation of resources to CCGs and not Ministers, that in the Housing Act 1996, when the leasehold to avoid any perception of party-political interference. valuation tribunal was set up, the aim was to make it However, the Government’s mandate to the board within the reach of every leaseholder to be able, for the makes clear that we would expect the board to place amount of £500, to bring his case to the tribunal? Is he equal access for equal need at the heart of its approach aware that now many landlords—whether they win or to allocations. That is why ACRA has been charged lose, even if they have no hope of costs—are charging with developing formulae independently to support their heavy legal expenses back through the management the decision that the board takes. schemes in the blocks of flats? Baroness Jolly: My Lords, the first rule of funding Lord McNally: I pay tribute to the noble Baroness’s is that recipients are never happy with their allocation. long campaign on this issue. She was an active participant Given that, will the Minister assure the House that, in the Bill that became the 1996 Act. She is absolutely with new configurations that we have with public correct that the right of the managing agent to claw health and CCGs, the model used will regularly be back costs of litigation can be written into leases. This reviewed to ensure that it remains fit for purpose? can be countermanded by an application to the court under Section 20C of the Landlord and Tenant Act 1985, Earl Howe: Yes, my Lords. As I have indicated, as but that has to be a proactive action by the leaseholder. regards the NHS allocations, the board is clear that We are looking at ways to make leaseholders more the model needs to be reviewed. That does not necessarily aware that, if such a clause is written into their lease, mean that it will need to change; the board will have to they have this power to take action to have it set aside keep an open mind about that. Clearly, the board was by the tribunal. not happy that the formula as currently constructed 685 NHS: Clinical Commissioning Groups[LORDS] NHS: Clinical Commissioning Groups 686

[EARL HOWE] Lord Cormack: It is a very well-deserved honour. best met future needs. As regards public health, I Does he have regular meetings with the chairman of think that we are in a better place. As my noble friend the board, and what plans he has for that? will know, the allocations were announced recently and they provide for considerable real-terms increases Earl Howe: I am very grateful to my noble friend. I everywhere around the country. have meetings from time to time with the chairman of the NHS Commissioning Board, as does my right Lord Mawhinney: My Lords, if the Commissioning honourable friend the Secretary of State. I also meet Board decides to change the present formula, will the regularly with the chief executive of the Commissioning new proposal be subject to public consultation before Board. It is important that there is that interaction it is implemented? between Ministers and the board if there is to be proper accountability. Earl Howe: My Lords, ACRA, the independent committee, will take advice from all relevant quarters. I am sure that the advice it receives will be taken on Lord Laming: Will the Minister say whether poverty board. I do not think that there will be a public was the only element that was removed and, if so, why consultation as such but, if I am wrong about that, I was this singled out? will write to my noble friend. Earl Howe: Poverty was not removed. As I hope I Lord Rea: Will the noble Earl reassure us that this have outlined, there are various criteria reflecting new allocation committee will take fully into account deprivation which are most certainly relevant to the the fact that poor people have worse health and, fair allocation of resources. Age is clearly another therefore, in an equitable system, it will cost more to factor, because it would be difficult to envisage an include them in the full services that the NHS can allocation formula that did not take it into account; it provide? Will he reassure us that that will be taken is the key factor in determining an individual’s need adequately into account and that proper measurements for healthcare. That is not to say that other factors will be made of the health differences between social such as deprivation should not continue to be considered. classes? Baroness Williams of Crosby: I would add congratulations Earl Howe: I can give the noble Lord that reassurance. from these Benches to the noble Earl on his very ACRA is not a new committee; it has been long- well-deservedhonourwhichreflectstheimmensecontribution established, and was a fundamental part of the previous he has made to this House. On the issue of poverty, is Administration’s approach to funding allocations. I the existence of traditional industrial diseases, such as can say to the noble Lord that, by using diagnosis emphysema in mining areas, taken into account in the information, the formula that has been adopted for allocations that continue to be made between CCGs? CCGs directly picks up a great deal of the increased prevalence of ill health due to deprivation. It also takes account of the proportion of the population in Earl Howe: I am very grateful to my noble friend social housing and in semi-routine occupations, and for her kind remarks. The information I have in my the number of DLA claimants, which is closely related brief is as I have stated, in that the indicators reflecting to deprivation. deprivation are quite broad. However, it is for ACRA, the independent committee, to review those indicators Baroness Farrington of Ribbleton: Will the Minister to see that the measures are representative and accurate. assure the House that, if the board is able to find a I am grateful to my noble friend for pointing us formula more reflective of local need in terms of towards some other indicators which could be relevant, poverty and deprivation, the Government will look at and I shall make sure that her ideas are passed to the it? They appear not to take such factors properly into appropriate quarters. account when looking at the revenue support grant which provides services for people in poverty. I declare Lord Reid of Cardowan: My Lords, when the Minister an interest as someone who lives in Preston, Lancashire, says that the decisions on these allocations are, of whose needs are being met with a government cut. I course, not taken by Ministers, that is correct. However, am sure that the noble Earl would not approve of that. can he confirm that it is equally correct that the criteria by which those decisions are made are influenced, Earl Howe: I am pleased to say to the noble Baroness judged and promoted by Ministers? Is not the most that there has been no cut at all in the allocations to important thing that he said today that the primary clinical commissioning groups. Indeed, there is a real-terms determinant of this should be need? Here I declare an increase everywhere in the country. I can also reassure interest, because I had to address this when I was her that this will not be a matter for Ministers; it will Secretary of State for Health. During the period 1979 be decided independently by ACRA advising the board to 1997, there was almost an indirect, inverse relationship and the board taking the decision. between increases in funding for areas and their social and health deprivation. I am sure that had nothing to Lord Cormack: My Lords, I congratulate my noble do with the coincidence of voting patterns in those friend on becoming a privy counsellor. areas of social and health deprivation, but it would be reassuring if he could tell us that that is not likely to Noble Lords: Hear, hear! happen during the term of this Government. 687 NHS: Clinical Commissioning Groups[16 JANUARY 2013] Education: School Leavers 688

Earl Howe: My Lords, we are determined that it Baroness Garden of Frognal: My Lords, the Government should not happen. I am as aware as the noble Lord of welcome the CBI’s report. We share the view that all the perception of party-political bias, and it is highly pupils should leave school prepared for the next stage undesirable that there should be such a perception. of their life in education or work. Our reforms to That is why, in the mandate to the NHS Commissioning qualifications, the review of the national curriculum, Board, we have stated simply that we believe that the the raising of the participation age and the introduction right basis for allocating resources is to place equal of a pupil premium for disadvantaged pupils all testify access for equal need for healthcare services at the to this. The academies and free schools programmes heart of whatever formula the board decides to follow. give head teachers the freedom they need to achieve the CBI’s vision. Lord Hunt of Kings Heath: My Lords, perhaps I may come back to that very important point. The fact Baroness Massey of Darwen: I thank the noble is that the advisory committee, presumably following Baroness for that response but does she believe that guidance from Ministers and officials, came up with a the Government understand the importance of pupils formula that would have taken money from poorer developing emotional and social skills and that such areas and allocated it to richer ones. That is why the skills enhance academic learning? I cannot believe that national Commissioning Board decided not to accept they do understand that because we have now been it and to go for an across-the-board increase. In the waiting for well over a year for a review of the curriculum, noble Earl’s discussions on the mandate, will he ensure as well as for a review of personal, social and health that the Commissioning Board is enabled to come to education in schools, which has not appeared. Can she its own view on these decisions? say where this review has got to?

Earl Howe: Yes, my Lords. In this case, the board Baroness Garden of Frognal: My Lords, I pay tribute concluded that the formula proposed by ACRA accurately to the noble Baroness’s expertise in this subject and to predicted the future spending requirements of CCGs, her support for PSHE, which I know is widely shared but it was concerned that the use of the formula on its around this Chamber. It is true that we have not yet own to redistribute funding would predominantly have announced the outcomes from the PHSE review, which resulted in higher levels of growth for areas that has been extended to take account of the review of the already have the best health outcomes compared with national curriculum. Perhaps I may reassure the noble those with the worst outcomes. In other words, the Baroness by saying that, in its latest report, Ofsted formula on its own would have disadvantaged precisely said that 75% of the schools it visited were providing the areas that the noble Lord is most concerned about. good or outstanding PSHE education. Therefore, although On the face of it, this would appear to be inconsistent it is not statutory, that figure is encouraging. However, with the board’s purpose, which is to improve health we shall of course be monitoring the situation. outcomes for all patients and citizens, and to reduce inequalities, which is a key aspect of the mandate. Baroness Brinton: My Lords, we are constantly told that we are short of engineers in this country. CBI Lord Brooke of Alverthorpe: My Lords, as patients director-general John Cridland has said: are to be at the heart of the new NHS from April, will it be the Commissioning Board or the Government “Businesses have traditionally focused on education at 14 plus, but it’s clear we need to tackle problems earlier, instead of who are responsible for advising patients throughout applying a sticking plaster later on”. the country of their rights and responsibilities? What are the Government are doing to encourage exciting and vibrant maths and science teaching at Earl Howe: My Lords, the NHS constitution is primary schools, particularly those with lower attainment currently under revision. It is a task for the Department levels? of Health to take forward but, as the noble Lord will know, in the mandate and indeed in the Health and Social Care Act the Commissioning Board is charged Baroness Garden of Frognal: My noble friend picks with upholding and promoting the NHS constitution. up a very important point from the report, and it was The process of updating the constitution is, of course, encouraging to see that now almost one in five maths subject to full public consultation. graduates is choosing to go into teaching. Among the initiatives going on, I highlight one under which eight universities are delivering the two-year master’s-level Education: School Leavers mathematic specialist teacher programmes, which aim Question to improve the practice and efficiency of primary maths teaching by upscaling existing teachers who in 3.22 pm turn train their colleagues. This year, our funding for that programme alone amounts to £2 million. Asked by Baroness Massey of Darwen To ask Her Majesty’s Government what assessment Lord Northbourne: My Lords, I wish to ask the they have made of the statement by the Confederation noble Baroness whether the Government have a policy of British Industry that pupils leaving school should on helping young people in secondary schools to learn be “rounded” and “grounded”; and, what steps about and to acquire what used to be called the soft they plan to take to ensure education policies support skills. By those, I mean interpersonal skills, including that objective. relationships skills, self-confidence, leadership, teamwork, 689 Education: School Leavers[LORDS] EU: UK’s National and Trade Interests 690

[LORD NORTHBOURNE] Baroness Garden of Frognal: My Lords, the EBacc communication skills and many others, all of which has already had some very beneficial effects on children are very important both in the workplace and in from disadvantaged backgrounds; we have seen their raising a family. levels of attainment improving. The EBacc is not for everybody, and there will be alternative provision. We Baroness Garden of Frognal: Indeed, it is vital that will certainly be monitoring the impact on the arts, young people come out of school with the soft skills sport, and all those other subject areas which are so which the noble Lord has highlighted. As far as parenting important within the educational programme. skills and others are concerned, there are of course different programmes, including the PSHE programme The Lord Bishop of Derby: My Lords, in terms of which so many schools are following. How schools the roundedness of arts, sport and faith studies, the address these matters specifically is for each school to key issue is: how can the experiences and studies of determine locally. pupils be recorded and monitored so that they can carry with them a proper record of their achievements Lord Howarth of Newport: My Lords, does the and learning in those areas? noble Baroness accept that if pupils are to leave schools rounded, they will have studied and practised the arts Baroness Garden of Frognal: The right reverend within the reformed curriculum? Imaginative capacities Prelate makes an important point. Of course, there are increasingly important, both for the employability will be recording of the sorts of achievements that of individuals and for the competitiveness of businesses. young people make at their schools that are not subject to formalised end testing. I agree with him and, indeed, Baroness Garden of Frognal: Of course the arts are with the other questions that we have heard that of particular importance. We touched on this in Questions sometimes those are the most important parts of a and debates earlier this week. The Government fully young person’s education. It is not necessarily the end support this, and there are various funding streams exams that tend to show how people can progress; going into support of the arts. The issue seems to be sometimes those personal skills are far more important that they do not appear in the EBacc, but of course for a successful and rewarding life. not all schools do the EBacc. In any event, 20% to 30% of the timetable will always be given over to creative subjects, which are so vital to individuals and EU: UK’s National and Trade Interests the country. Question

Baroness Heyhoe Flint: My Lords, is the Minister 3.30 pm able to confirm that any future Statements on the school curriculum, including the English Baccalaureate, Asked By Lord Renton of Mount Harry will include a greater emphasis on the provision of physical education? The current derisory agreement is To ask Her Majesty’s Government what assessment that there will be a minimum of one hour per week of they have made of the impact on the United Kingdom’s physical education. The CBI’s aspirations that school national and trade interests of disengagement from leavers be grounded and rounded may otherwise have the European Union. different connotations when one realises the serious obesity problems with school beginners rather than The Senior Minister of State, Department for Communities school leavers. and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, membership of Baroness Garden of Frognal: My noble friend makes the European Union is in the UK national interest. We her point in her own inimitable way. Of course, PE is continue to engage actively and constructively with an essential component of the school timetable. The our European partners and play a leading role in a amount of time that is spent on it is, again, a matter wide range of EU business. The UK benefits from for schools to determine for their pupils and circumstances. membership of the EU, including from the unrestricted However, particularly following on from the tremendous access for UK businesses to a single market of around Olympic and Paralympic Games this summer, we would 500 million customers, which was worth £11 trillion in not wish to see the initiative for sport lost. 2011, and from securing greater market access for the UK at a global level when, for example, it plays a leading role in EU free trade agreement negotiations Baroness Hughes of Stretford: My Lords, research with third party nations. undertaken by MORI for the Department for Education itself has shown that courses in the creative arts, physical education, design and technology and business Lord Renton of Mount Harry: My Lords, I thank studies are now disappearing from schools as a result my noble friend very much for those very interesting of the new, narrow EBacc performance measure by statistics but could I take matters just a little bit which schools will be judged. Will the Government further? Does she agree that it is absolutely essential now accept the CBI’s proposal that the EBacc be for us as a trading nation to keep our alliances, suspended so that the impact on schools can be partnerships and businesses throughout the European properly assessed, before these cuts in courses become Union? Against that background, does it not follow irreversible? that we should not be seen as a reluctant player in 691 EU: UK’s National and Trade Interests[16 JANUARY 2013] Growth and Infrastructure Bill 692

Europe, constantly looking for the way out and not That is likely to prove a great deterrent to all forms of the way forward? Could she make that point sometimes inward investment just at the moment when jobs and to some of our colleagues? the revival of investment depend on it? Does the noble Baroness agree that in doing this the Prime Minister is Baroness Warsi: I could not have thought of a not speaking for the national interest? better week for such a Question from my noble friend because it gives me an opportunity to say that this Baroness Warsi: It may well be that the noble Lord coalition Government are committed to playing an opposite has had sight of the speech and is therefore active and leading role in the EU, while advancing the making judgments based on his opinion of what is in UK’s national interests and protecting its sovereignty. the speech. I await to see what will be in that speech, as Membership of the EU is in the UK’s national interests do many of us in this House, and I can assure the and it is what this coalition Government believe, but noble Lord that this Government have done all they the EU needs to reform to meet the challenges of can to make sure that when opportunities present competitiveness. It needs a stable eurozone and greater themselves, both within the Commonwealth and in democratic legitimacy. It is to that end that the Prime the wider world, especially in relation to India, Brazil Minister will be making a speech later this week. and China, we have very clearly laid out our store to say that Britain is open for business. Lord Tomlinson: My Lords, we heard clearly from the noble Baroness about the benefits of being in a position to exploit our membership of the single market. Lord Pearson of Rannoch: My Lords, do the Does she agree with me that it would be inappropriate Government agree that we have some 3 million jobs at present to do anything to disturb that, particularly exporting to the European Union but that it has as sterling is currently devaluing against the much 4.5 million jobs exporting to us? Are we not, in fact, its criticised euro, which is improving our terms of trade largest client? When we leave the EU, will it not come with Europe and giving us greater potential competitive running after us for a free trade agreement which suits advantage there? us at least as well as our present arrangements?

Baroness Warsi: The Government believe that we Baroness Warsi: The noble Lord always has an can have a better Europe and that Europe can be interesting take on these matters and is in an interesting reformed with a view to increasing those real benefits position to trade statistics. I can assure him that most that come from the European Union. Members of this House believe that we are stronger for being within the European Union. Baroness Williams of Crosby: My Lords, when the Prime Minister speaks later this week, will he draw attention, as the Minister has done, to the significance Age of Criminal Responsibility Bill [HL] of the single market, which was strongly supported by First Reading Mrs Thatcher, to the insistence of many of our closest allies, such as the United States and the leading countries of the Commonwealth, that our influence within the 3.37 pm EU is vital to the position of the West in the world’s global discussions, and to some of the outstanding A Bill to raise the age of criminal responsibility, and for developments in global fields, for example, on climate connected purposes. change and not least on organised crime, which have been successful examples of British influence within The Bill was introduced by Lord Dholakia, read a first the EU and of EU influence within the world more time and ordered to be printed. generally?

Baroness Warsi: My noble friend raises a very important issue and these are matters that will be raised. It is Growth and Infrastructure Bill important that we value our relationship with the Order of Consideration Motion European Union. My noble friend quite rightly raises the issue of our place in the world. On foreign policy, 3.37 pm for example, I know that the work we did on smart sanctions against Iran’s nuclear programme, against Moved By Lord Ahmad of Wimbledon the Burmese regime to encourage democratic reform That it be an instruction to the Committee of the and against the Syrian regime was possible because we Whole House to which the Growth and Infrastructure worked collectively. Bill has been committed that they consider the Bill in the following order: Lord Liddle: My Lords, the noble Baroness sets great store by encouraging investment into the United Clause 1, Schedule 1, Clauses 2 to 6, Schedule 2, Kingdom from the emerging giants of Asia. Following Clauses 7 to 9, Schedule 3, Clauses 10 to 14, Schedule 4, the Prime Minister’s speech on Friday, we will face at Clauses 15 to 32. least five years of economic uncertainty over our continued membership of the European single market. Motion agreed. 693 Legislative Reform Order 2013[LORDS] Scotland Act 1998 Order 2013 694

Legislative Reform (Constitution of a new project in Montenegro. We have already hosted Veterinary Surgeons Preliminary a delegation of Croatian twinners to explore how we can work together on new twinning projects as partners Investigation and Disciplinary Committees) in the region. Order 2013 Finally, it is important that the EU’s enlargement Motion to Approve process works. Croatia’s successful accession is an important concrete means of maintaining the incentive 3.37 pm of EU membership in other western Balkan countries. Croatia’s efforts will highlight that the EU rewards the Moved By Earl Attlee hard work that underpins countries’ transformations. That the draft order laid before the House on 5 November 2012 be approved. Lord Anderson of Swansea: My Lords, I thank the Minister for her helpful replies to the questions that I Relevant document: 9th Report from the Delegated have raised, and join with her in saying that it is clearly Powers and Regulatory Reform Committee, considered in our interests that the whole of the western Balkans in Grand Committee on 10 January. be brought successfully into the European family. The accession of Croatia on 1 July will certainly be a signal Motion agreed. step in that direction, and we join with her in giving Croatia, and indeed the rest of the western Balkans, European Union (Croatian Accession and every blessing on that journey. Irish Protocol) Bill Report received. Report

3.38 pm European Union (Approvals) Bill [HL] Report The Senior Minister of State, Department for Communities and Local Government & Foreign and 3.41 pm Commonwealth Office (Baroness Warsi): My Lords, I beg to move that the Report be now received. I would Report received. also like to respond briefly to points raised in Committee by the noble Lord, Lord Anderson, and the noble Earl, Lord Dundee, with regard to further EU enlargement in the western Balkans. I reassure the noble Lords that Scotland Act 1998 (Modification of regional co-operation and good neighbourly relations are essential elements of EU enlargement. This was Schedule 5) Order 2013 reiterated in the General Affairs Council conclusions Motion to Approve of December 2011. The conclusions set out the EU’s expectation that disputes within the western Balkans 3.42 pm should not have a detrimental effect on the shared Moved By Lord Wallace of Tankerness goal of progress towards EU membership. That the draft order laid before the House on Baroness Anelay of St Johns: My Lords, it is unusual 22 October 2012 be approved. that there are no amendments down today. While Relevant documents: 9th Report from the Joint noble Lords are leaving, could they do so quietly? The Committee on Statutory Instruments, 13th Report Minister is having the courtesy to respond to points from the Secondary Legislation Scrutiny Committee, made in Committee, and I know that those who took 7th Report from the Constitution Committee part in Committee will want to hear her courteous remarks. The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I beg to move that the draft Baroness Warsi: The conclusions set out the EU’s order laid before the House on 22 October 2012 now expectations that disputes within the western Balkans be approved. I am grateful that we will have longer to should not have a detrimental effect on the shared debate the order than would normally be the case, goal of progress towards EU membership. The which I think will be welcomed on all sides of the Government support that statement in full. House. It certainly reflects the interest that noble Croatia, with its recent experience of accession Lords have shown in this order, not least the comments negotiations, can itself play a constructive role in and contribution of your Lordships’ Constitution supporting its neighbours on their EU paths. I am Committee whose report has made a very important pleased to say that Croatia is already doing this, as the contribution to the parliamentary process. noble Lord, Lord Anderson, highlighted in his remarks On 15 October last year, the Prime Minister, the in Committee. In addition to the UK’s support for First Minister of Scotland, the Deputy First Minister candidate countries, the UK provides expert support and the Secretary of State for Scotland signed an through EU peer-to-peer twinning projects. For example, agreement on behalf of our respective Governments since 2010, the UK has been awarded six twinning that will, if this order is approved by this House, allow contracts in Kosovo, and we have recently been awarded a legal, fair and decisive referendum to take place on 695 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 696

Scottish independence. I think it important that we case for the Electoral Commission publicly to report acknowledge at the outset of this debate just how far on the intelligibility of the proposed referendum question we have come. Your Lordships have discussed and and 86% of our consultation respondents supported debated this and related issues on many occasions. We the UK Government’s position. all recognise that we face perhaps the most important We also sought views on the— political choice that people have taken in Scotland in more than 300 years. Lord Forsyth of Drumlean: I am most grateful to Calls for separation from the rest of the United my noble and learned friend for giving way. On the Kingdom are not new, but the process that we are point that 86% of the respondents supported the UK debating today began with the Scottish National Party’s Government’s position, this position was that the victory in the May 2011 Scottish parliamentary elections referendum process should be looked after by the and its manifesto pledge to hold an independence Electoral Commission. Why did the UK Government referendum. In May 2011, the Scottish Government not insist on that being part of the Edinburgh agreement? claimed they had the right to bring forward legislation in the Scottish Parliament, without any role for this Parliament. The Scottish Government proposed the Lord Wallace of Tankerness: As I shall come on to establishment a separate Scottish Commission to oversee explain, it is very much part of the Edinburgh agreement. the process, and there was an expectation that there The Electoral Commission is crucially and centrally would be a multi-option referendum. Indeed, just involved in the oversight of this referendum. 12 months ago, when the United Kingdom Government launched their consultation paper, that was very much Lord Cormack: I am most grateful to the Minister. still the case. According to the agreement, all the commission has to From the very beginning, this Government determine is whether the question is intelligible. It is acknowledged the political mandate that the SNP had not a matter of whether it is fair, or loaded, but secured for a referendum. However, we also set out whether it is understandable. Is that sufficient? our very firm view that any referendum had to be legal, fair and decisive. As I set out to your Lordships just over a year ago, the Scotland Act 1998 is very Lord Wallace of Tankerness: My Lords, the position clear: the Scottish Parliament cannot legislate on is that the Referendum Question Assessment Guidelines matters reserved to this Parliament. That includes published by the Electoral Commission in November “the constitution” and, specifically, 2009 set out its approach to reviewing questions for “the union of the Kingdoms of Scotland and England”. intelligibility. These guidelines state: “A referendum question should present the options clearly, That is why we published a consultation paper on simply and neutrally. So it should: be easy to understand; be to 10 January 2012 which set out the different ways to the point; be unambiguous; avoid encouraging voters to consider deliver a legal referendum. Our consultation paper set one response more favourably than another; avoid misleading out the available legislative options and stated that our voters”. preferred option was to provide the Scottish Parliament That is the Electoral Commission’s guidance to the with the legal competence to legislate itself. This received intelligibility question which my noble friend raised; the overwhelming support of those responding to our those are the criteria I expect it to apply having regard consultation. More than 70% of respondents agreed to weighing up and assessing the question that has that the Scottish Parliament should be given that been submitted by the Scottish Government to the power. Your Lordships’ Constitution Committee in its Electoral Commission. With regard to this question, first report on the referendum in February 2012 welcomed we have sought to put the position of the role of the the proposal to use a Section 30 order to confer on the Electoral Commission and the role of the Scottish Scottish Parliament clear competence to legislate for Parliament on exactly the same terms as would be the the referendum. case if the United Kingdom Government were proposing a referendum, where we put the referendum to the 3.45 pm Electoral Commission for its assessment on the same criteria. I will come on to that in a bit more detail in a Our consultation paper also considered issues that moment. It will report to Parliament and ultimately address the fairness and decisiveness of the referendum. Parliament will decide. We are seeking to put the Throughout discussions with the Scottish Government, Scottish Parliament in exactly the same position, vis-à-vis we stressed that there should be a single question to the question and the Electoral Commission, as the deal decisively with the issue of independence. Your United Kingdom Parliament would be in any referendum Lordships’ Constitution Committee gave its clear support which the United Kingdom Government were proposing. for a single question to avoid conflating “two entirely separate constitutional matters” in its February 2012 report, and three-quarters of respondents to our Lord Foulkes of Cumnock: Would the Minister care consultation agreed. to give his opinion about the question as currently In our consultation paper, we set out our view that proposed by the Scottish Government, which is, the Electoral Commission—the independent body “Do you agree that Scotland should be an independent country?”? responsible for overseeing referendums in the UK—should All the polling evidence, and one can consult MORI be responsible for this referendum. This is the same and others on this, shows that this kind of phraseology position as for any other referendum. The Constitution is biased and leads towards a particular outcome. It Committee set out its view that there was a compelling therefore fails the test on that basis. 697 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 698

[LORD FOULKES OF CUMNOCK] to make a report, and we will all be well aware of what Secondly, the Minister said that the referendum the content of that report is. Perhaps I might make should be decisive. I am not clear what is meant by, progress after I have answered the noble Lord, Lord “Do you agree that Scotland should be an independent country?”. Williamson. It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my Lord Williamson of Horton: I comprehend that colleagues here, who think Scotland is currently an point, but we have our own Constitution Committee, independent country in many senses. Is it not unintelligible, which has stated: and therefore not decisive in any way? “We are concerned about whether a referendum on independence will be intelligible unless it specifies that the consequence of independence is Scotland leaving the United Kingdom”. Lord Wallace of Tankerness: My Lords, the key thing is that the Electoral Commission makes that judgment. What comment does the Minister have to make on I have heard the points made—with considerable that point, which is the view of our Constitution conviction—by the noble Lord, Lord Foulkes, and Committee? I understand the point that he made others, but at the end of the day it is for the Electoral about the responsibilities of the Scottish Parliament. Commission to make that assessment. What it thinks about it, having done the testing on it, is far more The Countess of Mar: My Lords, may I very important than what Ministers in the United Kingdom courteously suggest to the House that we hear the Government think. Minister’s speech, and that we will all have time to add Until relatively recently, I was the spokesperson for whatever we want afterwards and to ask him questions the Wales Office in your Lordships’ House and therefore to which he can respond at the end of the debate? during the referendum on the extension of powers for the Welsh Assembly. I could see at pretty close quarters Lord Wallace of Tankerness: I am grateful to the noble the work done by the Electoral Commission in framing Countess and, in that spirit, I shall seek to answer the question for that referendum—the noble Lord, questions afterwards. I have indicated what criteria the Lord Wigley, will recall it. I was very impressed—not Electoral Commission uses in determining intelligibility. least because it faced the additional issue of the question However, I think that many of us want to get on to being in Welsh as well as in English—by the thoroughness actually debating the issues, because we have a with which the Electoral Commission dealt with that. responsibility, too, to deploy the arguments so that I was also impressed by the way in which my right people are very clear about what the consequences honourable friend the then Secretary of State for Wales would be. responded to the terms of the Electoral Commission’s Following the respective consultations of the United report. Kingdom and Scottish Governments, a period of discussions between Scotland’s two Governments led Lord Kakkar: Was it not the case both that the to the signing of the referendum agreement on 15 October. Electoral Commission looked at the specific question It is important that we recognise the significant for that referendum and that legislation was brought achievement that this agreement represents: agreement before this Parliament? Therefore, this Parliament also to promote this order that we are debating today to had the opportunity to look at the question. The ensure that the referendum is legal; agreement that the question for the referendum in Scotland will not be independent Electoral Commission should oversee the brought before this Parliament and we will not have an referendum to ensure that it is fair; and agreement to a opportunity to look at it. Is it not still the responsibility single question on independence to ensure that the of this Parliament to take care and to discharge its referendum is decisive. obligations to the citizens of the entire union? I have said on a number of previous occasions that there is nothing worse than having a referendum that at the end of it one side or the other can call foul. I Lord Wallace of Tankerness: The noble Lord is believe that the various strands that have been brought right about the Welsh referendum: the question was together to achieve the agreement will allow us to brought before this Parliament and was determined by avoid that. They are a long way from where we were it. However, as I sought to explain to my noble friends when this debate started in May 2011. Lord Forsyth and Lord Cormack, this order seeks to put the Scottish Parliament in exactly the same position However, we also agreed another key point: once as this Parliament would be vis-à-vis a question for a the fundamental requirements to ensure that the United Kingdom referendum or a referendum that referendum is legal are established, fair and decisive, came under the responsibility of this Parliament. We the responsibility for setting out the detail of the want to put the Scottish Parliament in that position legislation should be for the Scottish Parliament. That for the referendum on independence. If we are going is a fundamental point of principle on which I have to devolve power to do that, it is important that that is already spoken and on which I will say more. on the same basis as if this Parliament were responsible I will first take your Lordships through the order itself. for the referendum. If this order is approved, it is up to It is made under Section 30(2) and (4) of the Scotland the Scottish Parliament to make that judgment, and Act 1998. It inserts a new paragraph (5)(a) into Part 1 political consequences will flow from it if it is felt that of Schedule 5 to the Scotland Act 1998. Part 1 provides, the wrong judgment is made. We look forward with among other things, that the Union of the Kingdoms confidence to the Electoral Commission testing the of Scotland and England is reserved to the United question thoroughly—as it is indeed currently doing—and Kingdom Parliament. The new paragraph (5)(a) will 699 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 700 ensure that the reservation does not apply to a referendum I will now say something about the detail of the on independence, provided that it meets the requirements memorandum of agreement that sits alongside the that are set out. order. It is a statement of political intent by Scotland’s Those requirements are for a single ballot paper two Governments. It commits us jointly to an approach with a choice of two responses—in other words, a and delivery of the independence referendum that will single question referendum on independence, to be held ensure that the proceedings are fair and that the before the end of 2014, and without any other referendum outcome is decisive. provided for by an Act of the Scottish Parliament to At the heart of any referendum must lie a set of be held on the same day. The order also makes provision rules and processes that have the support of both sets in respect of public referendum broadcasts and free of protagonists. For the outcome of any referendum mailshots, which otherwise would be outwith the legislative to be legitimate and accepted, both sides of the argument competence of the Scottish Parliament. must have faith in all aspects of the referendum. That Under the Political Parties, Elections and Referendums is particularly true when we are considering the future Act 2000, otherwise known as PPERA, referendum of our nation. The agreement therefore sets out the campaign broadcasts can be made only by or on behalf commitment of both Governments to the normal of a designated campaign organisation. The order rules and procedures that govern referendums in the applies this provision of PPERA to an independence UK as contained in PPERA. referendum. This means that the restriction in PPERA A core part of the PPERA process is the central as to who can make referendum broadcasts can apply role of the Electoral Commission. The two Governments to that referendum. have agreed that the Electoral Commission must review There are requirements on Ofcom and the BBC in the proposed referendum question and that its report relation to referendum broadcasts. The order provides will be laid before the Scottish Parliament, and that that the definition of referendum campaign broadcasts process is under way. It is worth reminding the House includes independence referendum campaign broadcasts that since PPERA came into force there have been in certain circumstances so that the BBC, Ofcom and three referendums held under it: the north-east regional the Electoral Commission can have the same obligations assembly referendum in 2004; the one to which I have and responsibilities in respect of the independence already referred in Wales on further devolution in referendum campaign broadcasts as they would have 2011; and the referendum on the voting system for the in respect of any PPERA referendum broadcasts. United Kingdom Parliament, also held in 2011. In all three cases, the Electoral Commission reviewed the Under the 2000 Act, each designated campaign Government’s proposed question and provided its advice, organisation can send a mailshot to every elector or and the Government responded by revising the question household and is not required to pay the postage costs in line with that advice. for this. This service is provided by the Royal Mail and the costs of this are recovered from the Consolidated Fund. This order applies these provisions in PPERA 4pm to an independence referendum. It specifically provides that the cost of the Royal Mail in providing this Under the terms of the Edinburgh agreement, it service will be recovered from the Scottish Ministers. will be for the Scottish Government to respond to the advice of the Electoral Commission. They have committed Therefore, the Section 30 order that we are debating to putting before the Scottish Parliament their response today enables the Scottish Parliament to legislate for to the Electoral Commission’s recommendations. As I a legal referendum. The Scottish Parliament has already said, that precisely parallels the procedure followed in considered the order and approved it unanimously. this United Kingdom Parliament when a referendum Yesterday the order was debated in the House of is held under PPERA. It also means that the Scottish Commons and approved without division, and if the Government will be held to account by the public and order is approved by your Lordships’ House and then Parliament alike for how they respond to that advice. by the Privy Council, it will enable the Scottish In this case, all opposition leaders in the Scottish Government to introduce a referendum Bill that sets Parliament have stated their intention to abide by the out the wording of the question, the date of the Electoral Commission’s judgment. I believe that to do referendum and the rules of the campaign for the otherwise would be a significant step for which there Scottish Parliament to consider. would be a heavy political price to pay. This devolution of power will ensure that the detail As I have set out, both Governments recognise that of the referendum process itself is made in Scotland the referendum process must be seen to be fair by both by the Scottish Parliament. As I have already set out sides in the campaign. That applies across the process to your Lordships, this is a principle of importance to but with particular regard to the financing of the the devolution settlement. Once a matter is passed campaign. As part of the agreement, the Scottish to the Scottish Parliament, it is for that Parliament to Government committed to consulting the two campaign determine the details of the legislation that follows. organisations for their views before proposing spending That is how devolution has operated since 1999 and limits for the referendum campaign to the Scottish this Government will continue to respect that. Parliament. I understand that those consultations The referendum agreement and the Section 30 order have been taking place. The agreement also ensures set out the framework for the referendum. They ensure that the independent Electoral Commission will also that it is legal, capable of commanding the confidence provide the Scottish Government with advice on the of people from both sides of the debate and of producing appropriate spending limits for the two campaigns a decisive result. and the parties. 701 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 702

Lord Foulkes of Cumnock: Will the Minister give I fully expect the Scottish Government’s proposals way on that particular point? to be debated robustly in the Scottish Parliament. It will be for the Scottish Government to make their case for this proposal and to deal with the issues that arise. Lord Wallace of Tankerness: No—as the noble Countess said, the noble Lord will have an opportunity I can make it equally clear that any decision taken later, and I will certainly respond. Well, if it is very by the Scottish Parliament for the referendum will not quick, yes. affect the voting age for parliamentary and local government elections in the United Kingdom. That remains the responsibility of this Parliament alone to Lord Foulkes of Cumnock: Does this include whether determine. money can come from overseas sources, as well as I turn to an issue which has attracted comment, total expenditure? particularly from the Scottish Government. The concluding paragraph of the Edinburgh agreement Lord Wallace of Tankerness: When I respond to the contains a commitment by both Governments to hold debate I will give a more detailed response to that, but a referendum that is legal, fair and decisive. It is fair to I think that those arrangements are already there say that there have been some creative interpretations under PPERA. of that paragraph in recent times, so I want to take the That is what happened in previous referendums opportunity to restate its clear and very obvious meaning. such as the 2011 referendum in Wales on further Perhaps it is worth reminding the House what it powers for the Welsh Assembly. In that referendum, actually says: the Electoral Commission recommended that the spending “The United Kingdom and Scottish Governments are committed, limit for designated campaign organisations should be through the Memorandum of Understanding between them and set by reference to the expenditure limits that applied others, to working together on matters of mutual interest and to the principles of good communication and mutual respect. The to elections to the relevant legislature. In its response two governments have reached this agreement in that spirit. They to both Governments’ consultation documents, the look forward to a referendum which is legal and fair producing a Electoral Commission provided its view that the model decisive and respected outcome. The two governments are committed remains appropriate for the Scottish independence to continue to work together constructively in the light of the referendum. outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.” The Electoral Commission has also met the parties represented in the Scottish Parliament to seek their This means that the two Governments will conduct views on the financial arrangements. When the Scottish the referendum on the same constructive terms as they Government set out their final proposals for financing work on today. It means that if the referendum follows the referendum campaign in their Bill, they must set the path set out in the order and agreement, its outcome themselves aside from their own campaigning interests will be decisive. It means also that, regardless of what and recognise that their approach is being watched by the result is, that constructive relationship should continue all of Scotland, and indeed by the wider international as we move forward. I believe that that is good practice community. This is a point which the Deputy First and common sense. Paragraph 30 is a statement of our Minister, Nicola Sturgeon, herself recognised when determination to hold a referendum that is legal, fair she said that the poll must satisfy the highest standards. and decisive. However, it does not and cannot be It is only right that we use the bar that she has set to interpreted in a way that pre-empts the implications of determine whether what is proposed is appropriate. that vote. It is important that everyone is very clear about that reality. Both Governments agree that the basis for the franchise will be that for the Scottish Parliament elections Scotland’s future within the United Kingdom will —that is, those UK or EU citizens who are resident in be the most important decision we in Scotland take in Scotland. Again, that is set out in the agreement. our lifetime. Facilitating a legal, fair and decisive In addition, the Scottish Government propose to referendum is critical. That is why we consulted on give 16 and 17 year-olds the right to vote. I recognise this issue. That is why both the Scottish Government and very much respect the fact that there are differing and the United Kingdom Government spent many views on this issue in this Parliament and in this hours discussing and negotiating the process. That is House. My party, the Liberal Democrats, supports the why we seek the support of the House today to approve principle of 16 and 17 year-olds participating in all this order. elections; our coalition partners do not. Indeed, there Debating this order in this House today marks an are views on both sides of the Chamber on that issue. important step as we move from discussions on process However, in devolving the power to hold the referendum, to what many of us want to do—get to the substance we respect that this is a matter which should be of the debate. It is essential that the referendum decision debated and determined by the Scottish Parliament. is focused on determining whether Scotland chooses Indeed, where the Scottish Government and Parliament to remain an integral part of the most successful have the power to hold referendums and elections partnership of nations that this world has ever seen already, they have chosen to allow some 16 and 17 year- and to remain part of a family of nations that works olds to vote. However, the Scottish Parliament’s decision in the interests of all, or whether Scotland wishes to with respect to health board elections and Crofting separate and go it alone. Commission elections in Scotland has set no precedent That is not a decision that should be taken lightly; it for any elections for which the United Kingdom should be taken after examination of the facts. I strongly Government and Parliament are responsible for. believe that, with the support of colleagues across the 703 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 704

House, across Scotland and across the whole of the In 1707, we did not give up our status as an independent United Kingdom, fellow Scots will join me in autumn country. Indeed, the Act of Union guarantees those 2014 in choosing to stay part of this very valued aspects of Scotland that make it an independent country. United Kingdom. I believe that we are indeed better We have our own legal system and our own education together. In the mean time, I commend this order to system. We have a completely different tradition in the House. many respects. We even have our own languages. If the question were, “Do you agree that Scotland should be an independent state?”, then of course I know the Amendment to the Motion answer. It is perfectly clear that it is no. By the way, Moved by Lord Forsyth of Drumlean any question that starts “Do you agree” is by definition a loaded question. At end to insert “but that this House calls on Her Majesty’s Government not to make the draft It is extraordinary that you have to get to Article 4(5) order until the proposals for the date of the referendum, of the order, on the very last page, to see any mention the proposed question and the rules governing the of independence. It says: conduct of the referendum have been published “In this article ‘independence referendum’ means a referendum and until both Houses of Parliament have debated on the independence of Scotland from the rest of the United Kingdom, held in pursuance of provision made by or under an those proposals”. Act of the Scottish Parliament”. The order makes it clear that a question framed in Lord Forsyth of Drumlean: My Lords, if I am ever terms of whether you think Scotland should be an facing a murder charge, I very much hope that the independent country is, to say the least, utterly misleading. noble and learned Lord, Lord Wallace of Tankerness, will, as a good Scottish advocate, be there to defend The Electoral Commission costs a great deal of me. He has made a very convincing case out of quite a money. In fact, it costs about half what the Royal thin brief, if I may say so. Family costs. It has a staff of 129 people but it seems to be incapable of providing the advice on the question, It may be convenient for the House if I speak to which it has had since 12 November, in time for the both my amendments. Neither amendment is fatal. If House of Commons and this House to have this debate. the House were to pass them, they would make absolutely That is an absolute disgrace. We should have had the no difference to the order, because they are simply advice from the Electoral Commission on the question. advice to the Government. For that reason, I am not In the very fine debate in the other place yesterday, proposing to press my amendments to a Division—and speech after speech centred on the issue of the question, out of respect to the other place, which agreed the its fairness and whether the Electoral Commission’s order unanimously without a Division. advice would be obtained. I asked the Electoral However, that is not to let my noble and learned Commission why it could not provide us with the friend off the hook, because there are some very advice and it said that it was allowed 12 weeks and serious issues. What are we doing here? We are passing that, with the Christmas period, it was very difficult responsibility for a referendum that will determine the for it to do so. I have to say that for the Government to future of the United Kingdom to the Scottish Parliament, bring this order before these Houses before we have my noble and learned friend would say. But in fact the that advice is just not acceptable. Scottish Parliament is one man: Alex Salmond. He As I pointed out to my noble and learned friend, completely dominates the Scottish Parliament. We are 86% of the responses to the consultation said that the passing responsibility for the conduct of the referendum Electoral Commission should be responsible for overseeing to a man who has made it his life’s work to destroy the the poll. Why have the Government not insisted on United Kingdom. We are doing so without knowing that? My noble and learned friend is very good with the question, without knowing the date of the referendum, words and he gives the impression that the commission without knowing the rules on expenses for the conduct is overseeing the poll. It is not; it is in a position where of the referendum and without even knowing who is it gives advice and the Scottish Government, the Scottish going to be allowed to vote in the referendum. That is First Minister or the Scottish Parliament may ignore after—how many months?—seven months of negotiation that advice. between the Government and the First Minister. We have also heard from my noble and learned We have no commitment whatever from the First friend the suggestion that the determination on the Minister that he will abide by the advice of the Electoral part of the Scottish First Minister to extend the franchise Commission. As my noble and learned friend Lord to 16 and 17 year-olds will have no implications for the Wallace pointed out, every other party in the Scottish rest of the UK. I find it extraordinary that this order Parliament has said that it will abide by the advice of can have rules included that make the position on the Electoral Commission on the question, and on the broadcasting expenditure and on free post absolutely rules of engagement and expenses—but not Alex clear but that it apparently cannot make the position Salmond. I wonder why that should be. clear on the franchise or indeed the role of the Electoral To cap it all, in November the First Minister produced Commission. his question. The question that he has suggested, which is contained in my second amendment, is: “Do you agree that Scotland should be an independent country?”. 4.15 pm There is no more committed unionist in this House The Electoral Commission has given a view on than I am, but I would be tempted to answer yes to what the expenses rules should be for the referendum, that question. Scotland is an independent country. suggesting that expenses should be limited to the same 705 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 706

[LORD FORSYTH OF DRUMLEAN] Lord Forsyth of Drumlean: I have considerable respect as those in the 1997 campaign on devolution—a campaign for the noble Lord. Of course I take his point, but that I remember with considerable affection because I what conceivable reason could Alex Salmond have for did not take part in it. At today’s prices, that is about not agreeing, along with the other parties, that the half the amount of money in real terms. It strikes me Electoral Commission’s advice should be followed unless as extraordinary that we would want to reduce the it was that he wanted to rig the question? The noble amount of money that can be spent on telling people Lord says, “Ah, but there will be a political price”, but in Scotland and, indeed, the rest of the United Kingdom shall we spend the rest of the referendum campaign about the implications of the break-up of the United saying, “Ah, but the question is unfair”? What happens Kingdom and that we should halve that relative to if we win or lose by a tiny margin? There will be what was available in 1997 to consider the modest arguments ever after about whether it was a fairly matter of devolution, which, we were told, would conducted referendum campaign. That is why we need never lead to the position that we are in today. The to lance this boil at an early stage. It is no good setting point is that the First Minister—surprise, surprise—takes off from the starting line and throughout the race the view that the Electoral Commission is being too saying, “By the way, this is not a fair race”. We have to generous. He thinks that the amount should be less. win this race if we are to save the United Kingdom. There is nothing about that in the order or in the Just in case the noble Lord thinks that I am being Edinburgh agreement, which, incidentally, is not part partisan, I should say that I was quite struck during of the order and therefore cannot be challenged in the the debate on the order in the other place by what courts—I do not really understand why it is not part Mr Alistair Darling, the Member for Edinburgh South of the order. Therefore, on the question and on the West, who is playing such a fantastic role in leading expenses—two vital parts—there is uncertainty. the campaign for the union in Scotland, said about My noble and learned friend the Minister pointed passing responsibilities to the Scottish Parliament. He out that, if we look to precedent, in the case of the said: Welsh devolution referendum of 2011, the regional “There is absolutely nothing wrong in that”. assembly referendum of 2004 or the much lamented AV referendum of 2011, the Government accepted the However, he went on to say: advice of the Electoral Commission and made changes “In practice, the transfer is not just to the Scottish Parliament to the question as a result. This argument comes from but to the SNP,which runs the thing as a pretty tight ship—opposition my noble and learned friend, who knows Mr Salmond is not usually tolerated—and not just to the SNP, because, as we know, the SNP is very much run by one individual. We need to be and how he operates. I have known Mr Salmond since aware that that is what we are doing”. I was at St Andrews University, when he ran the SNP, which had about four members, and I ran the Tories, It is absolutely essential that we understand that. which had about 1,500 members; since then, the position Talking about the Edinburgh agreement, he said: has been reversed somewhat. I know how he operates. “That suggests that both parties were clear that the Electoral To suggest that by charging ahead with his own question Commission’s role was impartial and that there was an assumption he will pay a political price is an interesting argument, that they would accept whatever it proposes. It is, therefore, disappointing that before the ink was dry on the signatures, we as, indeed, is making out that the Scottish people will heard from senior members of the SNP that the Electoral Commission hold him to account. “L’état, c’est moi” is the First could say what it wanted, but it would ultimately be the SNP’s Minister’s motto every time he gets into his office in call. That would be unfortunate, in relation to both the wording the morning. of the question and the spending limits”.—[Official Report, Commons, 15/1/13; cols. 762 and 764.] The only thing in that with which I would argue is the Lord Reid of Cardowan: Given the noble Lord’s use of the word “unfortunate”, for which I would many valid criticisms of the weak negotiating outcome substitute “disastrous”. that the Government have presented to us, which is really what he is complaining about, I do not think There is within elements of the Government and that he should underestimate the question of the elements of the unionist campaign a creeping complacency political legitimacy of the First Minister should he which I find really worrying. I keep hearing people refuse the question that is put forward. I know that saying, “Oh, there is only 33% support for independence”. that is not the noble Lord’s intention, but in the I ask them to have a look at Quebec. In the referendum manner in which he is presenting it he is almost for secession there, the position started off with 70% making it a foregone conclusion. We should make the to 75% opposed to secession; in fact, it was 67:33—almost question of fairness and political legitimacy so important exactly where we are now. By the end of the referendum in this referendum that if the commission was to campaign, the vote against was won by 0.6%. Let us recommend a question, which then, for partisan purposes, not be cavalier in giving away things that could make was refused by the First Minister, that would become a all the difference, such as the weighting of the question central element of this political campaign. Let it be and the ability of people to get their messages out at known now that we would do so, that there will be a this stage. cost and that anyone who acts unfairly on this vital I point out to my noble and learned friend the question for Scotland will be seen by the people of causal way in which the Government regard the extension Scotland to be acting unfairly. I hope that the noble by the Scottish Parliament of the franchise to 16 and Lord will reflect on that. I agree with a great deal of 17 year-olds, with all the implications that that will what he has said so far, but we must make sure that, if have. I do not have a particularly strong view—actually, unfairness is deployed, there is a price to be paid for it I do have a strong view. I do not think that 16 and by the leader of the SNP. 17 year-olds should have the vote, but I am open to 707 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 708 persuasion. However, what I cannot be persuaded of My noble and learned friend said that he was is that they should have the vote for some elections but anxious to avoid talking about process and to get on not for others. Frankly, saying that the Scottish Parliament with the arguments. If he is anxious to get on with the has given them elections for the Crofters Commission arguments, why on earth are we leaving these issues of and that that somehow indicates that there is no process—the question and the rules of the referendum— precedent for the United Kingdom is an argument of open to more and more argument over a longer period? a quality to which I hope the noble and learned Lord The Scottish Government are not even proposing to will not stoop when he is defending me. publish their White Paper until the end of the year—and presumably the Bill will be published after that—so we We are suggesting that people in Scotland should will be focusing on process because these matters have not be able to buy a packet of fags or, as someone said not been addressed. in the other place, a packet of sparklers, or a drink in the pub, but that they can decide the future of the Of course, the First Minister agrees with the Electoral United Kingdom. We are suggesting that all of this Commission that the Scottish Government will need can be done on the basis of what Alex Salmond to be in purdah for only four weeks before the referendum. decides when he gets out of bed in the morning. This is Given the disgraceful and partisan way in which the utterly frightening. If ever there was an example of the Permanent Secretary in the Scottish Office has behaved, tail wagging the dog, then this is it. The franchise and given the way in which Alex Salmond clearly is should be a UK matter. using his roll in the Scottish Government to pursue a political agenda, I think that four weeks is far too My noble and learned friend, in echoing the Secretary short a time. of State, is talking nonsense when he expounds this My noble and learned friend is right to say that we view of devolution. The Secretary of State for Scotland need to resolve these matters and get on with discussing said of the order: the issues. I have to say to him that the UK Government “This devolution of power will ensure that the details of the have got some questions to answer as well. We cannot referendum process itself are made in Scotland, in the Scottish go on with a situation where, for example, the Ministry Parliament. That is a principle of great importance to the devolution of Defence is saying, “No, we are not making any settlement. Furthermore, the approach here respects another key contingency plans as to what to do about the Trident feature of devolution—namely, that once a matter is passed to the Scottish Parliament, it is for that Parliament to determine the nuclear deterrent if Scotland becomes independent details of the legislation that follows”.—[Official Report, Commons, and the SNP keeps its commitment to throw the 15/1/13; col. 745.] nuclear weapons out of Scotland. We are not doing anything because we do not think that it is going to That last is a point made by my noble and learned happen”. That is not good enough. The department friend. This is not about devolution. The future of the should be setting out what the consequences would be United Kingdom is not a devolved matter; it is for the in terms of the jobs lost—around 10,000 in Scotland— United Kingdom. It is true that the United Kingdom what the cost to the English taxpayer would be and Government have decided to amend and use the powers what the future of our deterrent would be. That applies in the Scotland Act to overturn the limitation in order to every single government department. They should to give the Scottish Parliament that power. I do not stop sitting there thinking that it is not going to have a problem with that, provided that we know what happen. We have a duty to ensure that the voters know we are getting ourselves into. I believe that we are at exactly what the consequences of voting for independence risk, given the way in which we are proceeding and the would be. trust that we are putting in Alex Salmond. It is a bit like putting the fox in charge of the chicken coop and The SNP has a role, too. It needs to make its case. It arguing that the chickens will protest if it all goes is extraordinary that we will have to wait until the end wrong. of the year to hear how the proposal will work. It has had about 30 years to think about. The Scottish Government, simply in any fairness, cannot be a participant and the referee at the same Lord Wallace of Tankerness: Eighty years. time, especially given that this First Minister has form. He was caught out telling porkies about whether he 4.30 pm had had advice on whether we would have to rejoin the Lord Forsyth of Drumlean: My noble and learned European Union if we were independent. He spent friend says 80 years. Yet we have no response. The taxpayers’ money on preventing people from getting, First Minister is known as something of a gambler. under freedom of information legislation, the facts, Ironically, his campaign will be funded on a lottery which turned out to be that what he had said was not win, on which, of course, no tax will have been paid. true at all. He has already had a red card. I think that The other part will come from overseas supporters, we should be concerned about trust. such as Sean Connery. The noble Lord, Lord Foulkes, Another point on the uncertainties that remain is made an important point. The Electoral Commission about the timetable. It is absolutely ridiculous that we thinks that it is inappropriate for foreign money to be do not know the date of the referendum. It has to be deployed in the campaign, but, once again, Mr Salmond by 2014, but everyone but everyone says that having to is taking the view that he will not rule that out. Even wait until 2014 will be hugely damaging to the Scottish now, overseas funds are being raised in America. I do economy and hugely damaging to business, will create not know what it is about the SNP that it has great enormous uncertainty and will bore us all to death, stars, such as Alan Cumming and Sean Connery, who because we will be talking about this for far too long. will do anything to support independence except live We need to get on with it. in the country that they are arguing should be independent. 709 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 710

[LORD FORSYTH OF DRUMLEAN] Lord Reid of Cardowan: My Lords, it is a great I said to my noble and learned friend that I would privilege and challenge to follow the noble Lord, Lord not press this to the vote but, as I have listened to Forsyth, on a subject such as this. On this occasion he myself talking, I have been tempted to do so because probably has more support from more people in Scotland the case seems absolutely overwhelming. Today, I want than he ever did when he was Secretary of State for an assurance from the Minister that the Government Scotland. When he started his reminiscences, it showed will put pressure on Mr Salmond to answer these how long he has been involved with these matters. He issues and to come forward and tell us what the mentioned that he was a leading member of the students’ question will be. Most important, we need an absolute union at the University of St Andrews in the days commitment that the Electoral Commission will act as when Gordon Brown was rector of Edinburgh University. referee and its advice will be accepted. I was student president at Stirling University and a certain Mr Alistair Darling was student president at the University of Aberdeen. As he pointed out, in Lord Foulkes of Cumnock: The noble Lord has those days—no doubt because of his own prowess—there called on the Government to put pressure on Mr Salmond. were some 1,500 members of St Andrews Conservative From time to time, it is better for some of us who are Association and only four members of the SNP. This perhaps long-term opponents of Mr Salmond to keep is presumably why St Andrews did not belong to the quiet about him, but would it not be helpful if the National Union of Students but followed the policy of supine Scottish media looked at the SNP and its absolute separatism in those days. I agree with a great policies, started to put them under scrutiny and started deal of what the noble Lord said but I am glad he is to ask serious questions about what Scotland would not pushing the amendment to a vote for reasons that really be like under independence? Should we be asking I will explain. It also liberates me to agree with him them to show us that they can do their job properly? more than I would have done. Two distinct questions are being debated around Lord Forsyth of Drumlean: Ihavetosaytothe this order. The first is whether the Government made noble Lord that I am quite ambitious, but to suggest a good fist of the negotiations, the handling of the that I could get him to keep quiet probably is stretching communication of their argument and the consultation reality. The media are only as good as the information with Parliament. The noble Lord has just given a that they are given. If we are honest with ourselves, pretty devastating critique of all three. The second is the pro-union campaign has been a little slow in how we, as parliamentarians, were to respond, and getting off the mark—by that, I mean the Government— whether our tactical differences over the mishandling and setting out the facts. We still are arguing of an amalgam or ensemble of tactical questions were about questions, rules and dates, all of which should sufficient for us to take a strategic decision to vote to have been resolved long ago. We should be talking renege on that agreement. That would have placed us about the consequences for jobs, employment, investment, in an extremely difficult position because, although I defence and our future in the European Union. These agree with a great deal of his criticism, had we taken are the matters that should be discussed. They are the such a vote, it would have played into the hands of very last things that Alex Salmond wants to those in Scotland who wish to portray the Westminster discuss because he and his party do not have any Parliament as somehow opposed to this whole exercise. answers as to how our financial institutions would be I just want to make one correction. It was never regulated, how we would be able to operate in a promised that devolution would stop the aspirations modern world and where they would be in terms of of the Scottish people for independence or separatism asking to join the European Union from a position of or anything else. What was said was that, all other weakness. things being equal, it would minimise the chances of I fear that I have gone on for far too long. The the people of Scotland separating themselves from the Secretary of State for Scotland said that this was the people of England. That is still absolutely true, although most important question in United Kingdom politics you would have to speculate where we would now be for more than 300 years. I find it sad that the involvement if, throughout the period of Mrs Thatcher and afterwards, of both Houses of this Parliament should be so limited we had never given Scotland any degree of devolution, in a question that is so important—he is absolutely which is the correct way of balancing that. right in that respect. It seems to me odd that the I will give way to the noble Lord who, in his mother of Parliaments is being excluded from this normal, non-partisan fashion, will deal with questions process. My noble and learned friend and his colleague, concerning devolution. the Prime Minister, went to Edinburgh. They did a deal in a room, which was never discussed by Parliament. Lord Forsyth of Drumlean: I just wonder whether There has been no opportunity for us to do anything. I the noble Lord can tell me what, “devolution will kill am reduced to moving an amendment that will make nationalism stone dead” meant. no difference whatever. Even then, Alex Salmond is distorting what we say. I know that Members opposite worry about Alex Salmond and the way in which he Lord Reid of Cardowan: It meant that the nationalist seeks to present our commitment to the United Kingdom aspiration of separating Scotland from the rest of the as being in some way anti-Scottish. It is not anti-Scottish United Kingdom would be defeated. It meant that we to seek to defend Scotland’s right to remain a part of would remain a partner in the United Kingdom for the United Kingdom and to play a proud and honourable much longer than we would if we failed to give an inch role in this process. I beg to move. to the aspirations of the Scottish people to meet their 711 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 712 national consciousness through a degree of control Lord Foulkes of Cumnock: Is he not also hoping for over it. In order to prove his point, the noble Lord some reflected glory from the Ryder Cup and the would have to argue that, had we not done that, the Commonwealth Games being held in Scotland in that demand for separation in Scotland would be less than year as well? it is now and I would strongly disagree. However, today I want to try to stress what unites us here, rather than historical differences. Lord Reid of Cardowan: I do not know. That is possibly the case, but I have given up the psychoanalysis of prominent figures. However, I have to say: be Lord Robertson of Port Ellen: Those people who careful. I am not frightened of Alex Salmond and I do suggested that devolution would kill nationalism or not know why we give him the status that he appeared the SNP stone dead have yet to be proved wrong. to be given earlier. I believe we should have the confidence to say that ultimately this decision will be made by the Lord Reid of Cardowan: I believe that in the outcome Scottish people. We may have a fox in charge but we of the referendum they will be proved to have been do not have chickens. We have in the region of five and right. That is why I am optimistic. It is an optimism of a half million good strong people in Scotland who will the will, although I agree that we have to have pessimism make their own decision after an aggressive argument of the intellect and to study contingencies on every during, as it now happens, another extended period. front. On the timing, I think that the Government were That leads me to the one area of disagreement that weak. If they had truly been speaking to the people of I have, which I think is important. If we do not Scotland, they would have said, “Let’s have a decision understand the premise of what we are arguing, the now. We’ve been debating this for decades”. conclusion will be wrong. It is not technically or Secondly, there were two aspects concerning the politically wrong that many of these issues have been question. One was of huge strategic importance and it passed by the Government to the Scottish Parliament, was whether or not to have one clear question. On because the question here is whether the people of that, to give credit to the Government, they stood firm Scotland wish to leave the union. The question in and we have it. We know why the First Minister Wales was whether the people of Wales and the Assembly wanted the other question. It was because he thought wished to change the relationship of the United Kingdom. it would be more achievable, and the way it was to be There are two distinct things here. One is, when you achieved was not by him admitting to his fundamentalists want to leave a club, that is your decision; the other is, that he would have settled for less than full separation. if you want to change the rules of the club, it is not And, for goodness’ sake, I hope that the Government your decision but the decision of everyone inside the will recognise that we are already a sturdy, independent club. That is why I believe it is right technically and country. What is being asked for here is separation, legally that, following negotiations, many things have not independence. Like any independent person, as a been passed down, although I entirely agree with the country we can choose, and have done for centuries, to noble Lord, Lord Forsyth, in his estimate of the ally and partner with other countries in order to efficacy of the Government’s efforts in the negotiations punch above our weight. We did so before the Reformation themselves. with France; we did so after the Reformation with the There were three major areas in those negotiations. great centres of learning of Europe, such as Geneva; One was the timing, one was the clarity and nature of and we did so throughout the British Empire when we the question, and the third was neutrality. On the ran it—although we can blame the English for the all timing, I cannot for the life of me understand why the ills that ensued afterwards. It would therefore be those of us in Scotland—and ultimately it is the Scottish helpful if the Government referred to this as what it is: people who will be making this decision—who have a campaign for separation, not a campaign for been debating this issue in some detail since at least independence. the 1970s, and in many ways since 1707, have to wait another two years for a decision on this. I know whom 4.45 pm it suits. It does not suit those of us who want an open debate and conclusion of this matter; it suits Alex In any case, what was planned was the encouragement Salmond. First, he has chosen a date which, he hopes, of the old broad front, which was supposedly demanding will be at the fag end of this Government and therefore something slightly less than separation which the First he can draw attention to the terrible effects of five Minister could live with. He therefore wanted a second years of a Westminster-based Tory Government, as he question on the ballot paper. The Government should will portray it. Secondly, the referendum will be held be given credit for standing firm on that, because a after four years of an SNP-led Administration in clear question ought to be put to the people of Scotland. Scotland, when he can say, “Yousee, we didn’t frighten If it is anything else—that is, a change in a relationship the horses”. To boot and for good measure, it will be inside the union—that is not a matter just for the the 700th anniversary of the Battle of Bannockburn. people of Scotland, but for the people of the United Therefore, I can see why he would choose to have it on Kingdom, because it changes the rules of the club. that date, even if it inconveniences the rest of Scotland The third question is on neutrality. Here I have a and two years of further dubiety about the status of slight difference—not a great one—with the noble our country affects our economic and social welfare. It Lord. Yes, it is true than any reasonable, legitimate will certainly not be in the interests of the people of Government or Administration would make it absolutely Scotland, the economy or the social structures to plain in advance that they would accept the Electoral delay the referendum that long. Commission as a neutral arbiter and would accept the 713 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 714

[LORD REID OF CARDOWAN] there was full cross-party consensus on the approval question. It has been made plain that the First Minister of the Motion, there was also, outside the nationalists, is avoiding that commitment. We should exact a price cross-party concern. That concern is shared by me and for that. I merely say to the noble Lord, Lord Forsyth: by my noble friend Lord Forsyth, as reflected forcefully never underestimate the political importance and potency in his remarks this afternoon, and clearly in the terms of democratic legitimacy and fairness. People can spot of his two amendments. Before focusing on that concern, a fly man at 100 miles, certainly in Glasgow, and I am we should recognise the good points of what has been sure that some of that attribute has spread to Edinburgh achieved and of this Motion. and elsewhere in Scotland. They know when somebody Michael Moore, as Secretary of State for Scotland, is “at it”, in the colloquial. They know when somebody and the Prime Minister deserve great credit for delivering is juking about, dodging and weaving, to use some of the Edinburgh agreement. Michael Moore skilfully the phrases that Alex loves so dearly. negotiated, no doubt with the support of my noble We must make sure that, right from the beginning, and learned friend the Advocate-General for Scotland, people know that this is all part of a pattern. It is the an agreement that all sides agree is a good start, and a same as the obfuscation and misportrayal—I am avoiding good way forward. It has been agreed by the Prime the obvious word for it—of the European Union Minister, the Scottish Secretary, the First Minister and position. It is the same as the misrepresentation that the Deputy First Minister that it is central to the Scotland will be accepted into NATO even if it does principles underpinning this referendum that it should not accept NATO’s operational and strategic concepts. be legal, decisive and fair. It is the same as the argument that goes, “We will be Let us take those tests in turn. First, it will now be separate, but nothing will actually change”. When you legal, by the securing today of this Section 30 Motion ask, “Who will be the head of state, Alex?”, he replies, and its approval under the terms of the Scotland “Oh, we’ll keep the Queen”. When you ask, “What about Act 1998. In my view it was pretty clear, but some our money?”, he replies, “Oh, we’ll keep the pound”. would say that it was a matter of doubt whether the Every question is answered by saying that each change Scottish Parliament had the legal powers to hold a will result in things staying the same. People can see referendum on independence. It is clear that those through that. They will see through the lack of legitimacy powers had not been devolved to the Scottish Parliament and see through somebody who says, “I will preside and that doubt will be removed today by the passing over this for the people of Scotland, but I will impose of this order. That is good. Secondly, as has been my partisan views on the question”. mentioned by others, it will now be a decisive referendum. I am therefore very glad that the noble Lord is not There will be one question only. Despite the views, pushing this to a vote. There is a great deal of sympathy interestingly, of his party, which wanted one question, in the House for his main comments, but strategically the First Minister wanted two questions. Clearly, he it would be a mistake for us to express opposition to wanted an escape route. He wanted the cover and something which, however weak, was negotiated by protection of a second question on more powers for the British Government. the Scottish Parliament, but that emergency exit is I have one very short final point on the electorate. now being removed. There will be a simple yes/no There has been a great deal of discussion about votes question, which means that the decision will be clear for 16 year-olds. That is a legitimate debate, and I tend cut. That is also good news. to agree with the noble Lord, Lord Forsyth, on this, We then come to the third issue about fairness, on but I am also concerned about whether we have absolutely which I want to spend a little time. It has been covered clarity on Scottish service men and women. I would pretty fully already, but it is vital that the referendum like the Minister to respond to that. It would be an is fair if it is to command respect. We already know absolute disgrace if young men and women from the SNP-preferred referendum question. We know the Scotland, many of them in the Scottish regiments and question that the Government in Scotland want to ask who are prepared to risk—and in some cases have and it is not fair; it is a biased question. My noble sacrificed—their lives, together with their families, friend Lord Forsyth helpfully quotes it in his amendment, were to be deprived of a vote about the future of the which asks: very country that they are risking their lives for because “Do you agree that Scotland should be an independent country?”. they are serving it. They are an integral part of the That is a rigged question on at least two grounds. I am British Armed Forces. I would like a guarantee from not a great expert on these psephological matters but the Minister that under those circumstances each and those who are explain that if you ask people to agree every one of them—even if no one else—will have a with you—do you like my tie, do you like my new vote and a say in the future of their country. Nobody haircut, do you like whatever principle—they will tend deserves that more than the people who are prepared to agree in response. to die for it. I hope that we can get that assurance from the Minister tonight. Lord Wallace of Tankerness: They do not think Lord Stephen: My Lords, I start by agreeing with about it for two and a half years. the noble Lord on that issue of service men and women of the United Kingdom, and of Scotland, who Lord Stephen: Indeed. Those who know about these should have the opportunity to vote in this referendum. matters say that is the first element of rigging of the The issue was raised yesterday in the other place in question. Secondly, and on this I am more familiar many good speeches on this Section 30 Motion. I listened because it is surely a matter of law, and of international to a great deal of that debate yesterday, and although law at that, is the issue of whether you want Scotland 715 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 716 to be an independent country. The correct question, I Scotland’s EU membership and the Scottish Government am told, is whether it should be an independent or a then used taxpayers’ money in the courts to resist separate state. That is not the wording that the SNP revealing legal advice that the Scottish Government proposes. Scotland is already a country; some people had never taken. That is the sort of “Alex in Wonderland”, in this Chamber who are fierce unionists have already topsy-turvy situation that we are dealing with. There said they believe it is an independent country. is no honesty, integrity and consistency in a position such as that. I am very pleased that the Edinburgh agreement sets out that the conduct of the referendum is to be However, there is a deeply serious and worrying overseen by the UK Electoral Commission—not a point. If this referendum is not based on a neutral separate Scottish body—which is seen to be fair and question, it will be biased; if it is biased, it will not be objective and neutral. That is wholly good news. I was fair; and if it is not fair, that will be a breach of the also greatly encouraged when I saw John McCormick, Edinburgh agreement to be “legal”, “fair”and “decisive”. who many people in this Chamber will know is the In my view, we will then have a serious constitutional Electoral Commissioner for Scotland, being interviewed crisis. I trust that can be avoided and that the First on this issue by the BBC. He said that it was crucial Minister can rise above narrow partisanship and set a that the question put to voters was clear, simple and tone for this referendum that will command all-party neutral and went on to say, very importantly, that in respect right across the whole of Scotland and of the his view the question was the foundation—the bedrock United Kingdom. On that basis, we should pass the —on which this referendum would be built. If it was Motion today, but remain fiercely, ferociously and for flawed or biased, the whole process would be flawed ever vigilant about the dangers that lie ahead, which and biased. I agree with him completely. I do not agree could have such profound implications for both Scotland with those who say the question does not really matter and the whole of the United Kingdom if some of the and that by voting day everyone will be pretty much fears mentioned today come to pass. clear on what the referendum is about—being in or out of the United Kingdom. It is important that the 5pm question is fair and commands respect on all sides from the start. Lord McConnell of Glenscorrodale: My Lords, when the noble and learned Lord, Lord Wallace of Tankerness, Some say it would make only a small difference, of was Deputy First Minister of Scotland and I was First maybe 2% or 3% either way. My noble friend Lord Minister of Scotland, there were probably times when Forsyth has referred to the situation in Quebec. Some he felt as if he was defending me against a murder are saying it would be more than that, some less. charge, as described by the noble Lord, Lord Forsyth, Percentages are a curious thing, are they not? If British earlier. I, too, appreciated the eloquence with which Airways downgraded its expectations of successful the noble and learned Lord introduced our debate this landings at Heathrow by 2% or 3%, international air afternoon and his appreciation of devolution. I am travel would be killed overnight. If a casino said that a also aware that we discuss these issues against hundreds roulette wheel had a built-in bias in its favour of 2% or of years of history—this month, in suppers all over 3%, I dare say that many gamblers might still take the the world, we will celebrate that century in which chance. We should not be gambling, however, with our Scotland joined the union, and led the world in literature, nation’s future. science, engineering, philosophy and, of course, also Finally, there is the issue of who decides in all of in poetry. However, today, we debate only this order; this. Is it the Electoral Commission? No, it is quite not the outcome of a referendum and not the overall clearly the SNP, the Scottish Government and the pros and cons of independence or separation. Scottish Parliament that will decide the question. Can I start my brief remarks by saying that I have we trust the SNP on this issue? Well, no, because believed passionately, since that 1979 referendum on although it is both the player and the referee, it has devolution, that a devolved Scottish Parliament, inside made clear that the recommendations of the Electoral the United Kingdom, is the best form of government Commission are not binding on the Scottish Government for Scotland. I believe in shared sovereignty, which I and Parliament. Angus Robertson, in the House of believe we have. I also believe that despite the mistakes Commons yesterday, and Alex Salmond, the First that have been made and will be made in the future by Minister, on Radio 4 this morning, have been given Scotland’s Parliament—just as this Parliament makes ample opportunity to make it clear, as the other leaders mistakes—Scotland is a better place today for having in the Scottish Parliament have done, that they would that devolved Parliament than it was 14 years ago. accept the views of the Electoral Commission on this crucial issue of bias and of avoiding anything other However, we are not debating that principle today, than an objective, neutral and fair question. nor the principle of independence, but the organisation of a referendum and the legal authority for it. In the They have a mantra now, to get them out of the 1990s and, after devolution, in the first decade of this difficult question. The Electoral Commission will advise, century, I vehemently opposed the idea that there says the First Minister. The Scottish Government will should be a referendum on independence because I recommend and the Scottish Parliament will decide. believed that the uncertainty that it would create would Of course, as has been said, they have form on these be harmful for Scotland. However, we are in new issues of fairness, honesty and integrity—the very circumstances and it is absolutely right that we now recent form that has been referred to, when the First have that vote, which will decide Scotland’s future. It is Minister failed to tell Andrew Neil of the BBC the time to make that decision, following the outcome of truth about whether he had taken legal advice on the Scottish elections last year and given the political 717 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 718

[LORD MCCONNELL OF GLENSCORRODALE] legal authority being devolved, which would have secured situation in which we now find ourselves. I supported more details here and now. For perhaps the very first the Prime Minister last January in his announcement time in the 30 or so years that I have known him, the that he wished to see the Scottish Parliament have the noble Lord, Lord Forsyth, and I strongly agree on that legal authority to conduct a referendum and that he point. I suspect we will not make a habit of it. I was prepared to enter into negotiations to secure that understand that he will not press his amendments, but outcome. I supported that position enthusiastically. I at the same time I think he is wrong even to suggest thought it was the right thing to do on principle and in that we should undermine the agreement that has been practice—a binding referendum is good for everyone. reached between the Prime Minister and the First However, in my view, that referendum has to be Minister. based on transparent financing and fair rules, and When I was First Minister I never really had a should have been held without delay.I made a submission position on whether the detailed discussions that took to that effect to both the UK Government and the place between me, the Prime Minister and his colleagues Scottish Government last March. In particular, I say should become public or not. Therefore people are again—I hope the Electoral Commission is listening—that perhaps not aware of when we agreed or disagreed, and I advocated that we should not have a single question. when agreements were implemented or not implemented. It is not that we should have two different questions on However, there is nothing worse for those who lead two different topics but that the question itself—I Parliaments than to be in a situation in which they think the noble Lord, Lord Steel, has made this same strike deals with other leaders but are then undermined point—should be two distinct statements, from which in their negotiating position and their ability to implement voters are allowed to choose: either Scotland as an it. Whatever feelings there are towards this agreement, independent country or Scotland as a member of the we need to respect the fact that a deal was done, they United Kingdom. shook hands and we now have to get on with the debate. To undermine that would leave an impression That said, we are in a different place today, and I of bad faith that would be damaging for the devolution believe strongly in the principle of respect between the settlement as well as for the referendum campaign United Kingdom Government here in London and itself. the Government in Edinburgh. That agreement has to involve our being willing today to criticise the outcome We should endorse the order, but we should express of these negotiations, but also respect the fact that the very clearly to the Government that the next time they Prime Minister and the First Minister have shaken negotiate with the Scottish Government, they need to hands on the deal. negotiate much harder. However, we also need to get on with this debate. We need to make the case that, I do not want to go back over all the points that after 300 or so years—in this month when we celebrate have been made but, as others have said, the outcome the amazing contribution that Scotland made to the is that the delay in this referendum will cost Scotland union, which we joined back in the 18th century—it is jobs. No one should be in any doubt about that time to celebrate that and have a positive campaign. whatever. I have met companies in the United Kingdom, That campaign should spell out the dangers but also North America and elsewhere that are already delaying the hope that exists if we retain our membership of decisions about whether to invest in Scotland. They the United Kingdom and do so decisively, putting this will delay even more between now and the autumn of whole debate—this division that has plagued us for 2014. The way in which the UK Government agreed to decades—behind us once and for all. the Scottish Government putting this vote off until late 2014 was a grave error by both Governments that will cost the people of Scotland and the Scottish Lord Nickson: My Lords, perhaps I may make three economy dearly, not just for the next 18 months but brief points. I am disappointed on two counts. It is for years to come after that. quite right that the noble Lord, Lord Forsyth, is not I do not want to repeat points that were made taking us through the Lobby, but after his inspiring earlier, but on the rules, an additional point is that this and marvellous speech, it is a disappointment to me referendum will be divisive enough in Scotland without that I cannot go through the Lobby behind him to having rules that are perceived by one side or the other support him. It was one of the great speeches on an to be unfair. One can already see prominent and issue of huge importance to us all and it has been reasonable people in public life tearing each other nobly supported on this side. apart, with relationships and friendships breaking down. It is a slight disappointment and surprise to me that This will happen increasingly over the next 18 months. no one from the Constitution Committee of this House, To add to that any perception that the referendum is which has produced the report on the agreement, has unfair or conducted with unfair rules will, in the come to speak in the debate. The report is in the aftermath, leave a sour taste in the mouth that will Printed Paper Office. I shall give way to the noble take years to overcome in Scotland, and lead to a lack Lord, Lord Crickhowell, and it is wonderful to see of acceptance of the outcome unless it is very decisive. him. I shall not delay him for more than a few seconds. I understand the point that the Government are Many of us in this Chamber, and many who are not making. The principle of devolving the legislative currently in the Chamber, attended a meeting this authority means that we will devolve the detailed morning by courtesy of the noble Lord, Lord Astor of decision-making as well. However I do not think it Hever, and the Minister for the Armed Forces. The was politically impossible to strike a deal openly and meeting was about defence. It was an extremely useful transparently between all concerned in advance of this meeting. Many noble Lords who are here in the Chamber 719 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 720 made extraordinarily important points. I should like or should not become; thirdly, that it asks about whether Scotland to highlight two of them. One was that it would be should be an independent country rather than an independent extremely helpful if similar meetings could take place state; and fourthly that it does not specify that the consequence of independence would be that Scotland would leave the United with the other great departments of state on the other Kingdom. We are concerned about whether a referendum on issues involved. The second was that it would be a very independence will be intelligible unless it specifies that the consequence good thing if there was more identification of leadership of independence is Scotland leaving the United Kingdom”. from No. 10 and the Prime Minister on the Better In paragraph 33 we said that, Together campaign. “We welcome the commitment in the Memorandum of Agreement I should like to draw the attention of the House to read across the PPERA procedure, such that the Electoral to the CBI document, The Scottish Government’s Commission will consider whether the referendum question proposed Independence White Paper, which came out this week. by the Scottish Government presents the options to voters clearly, It lists questions on all the issues to which Members of simply and neutrally and will report accordingly to the Scottish this House would want to draw attention and provides Parliament (as the legislator of the Referendum Act)”. an encyclopaedic examination for the SNP and Alex We said—and here we were beginning to express the Salmond. I commend the document to the House obvious doubt: because it covers all the questions to which we seek “We trust and believe that the Electoral Commission will be answers. I look forward very much to hearing the rigorous in assessing the question and will give candid and noble Lord, Lord Crickhowell. fearless advice on the wording proposed by the Scottish Government”. I hope, and believe, that they will. However, like my Lord Crickhowell: Encouraged by the noble Lord noble friend Lord Forsyth, I think that it is very who has just spoken, I should like to take the opportunity regrettable that they have not been able to produce as a member of the Constitution Committee to put on their report earlier and in time for this debate. the record of this Chamber some of the important points that we made in the report that we published on We said: 13 November, a report that has been freely quoted “We have two concerns in relation to the referendum question today both by my noble friend and by others. which we draw to the attention of the House. The first is that, while the draft section 30 Order provides that a referendum on We made it clear that the Section 30 route that we ‘the independence of Scotland from the rest of the United Kingdom’ are taking, rather than using primary legislation at is not a reserved matter, the precise meaning of this phrase Westminster, has a number of significant constitutional remains unclear. Exactly what the Scottish Government mean by and legal consequences. As we can see all too clearly, ‘independence’is unknown. The Scottish Government have undertaken and as the report states, it, to publish the equivalent of a white paper setting out their vision of independence in the autumn of 2013. On present timetables— “significantly curtails the opportunity of the UK Parliament to have an effective input into the process. The Agreement was we wrote this in November of last year— negotiated in private between the UK and Scottish Governments “this will occur well after the Referendum (Scotland) Bill has … There was no debate in either House of the UK Parliament on been introduced into the Scottish Parliament and, more importantly the Agreement until after it had been finalised”. perhaps, after the Electoral Commission will have assessed the And, as we are learning very painfully this week, we referendum question for intelligibility. It is hard to see how the said that, Scottish Parliament and the Electoral Commission will be able to undertake their roles fully and effectively, given that they will “neither the House of Commons, the House of Lords, nor the learn what the Scottish Government mean by ‘independence’ only Scottish Parliament will be able to amend the Order”. much later in the process”. We stated at paragraph 21: We went on to draw the attention of the House to, “The House may consider that, despite the constitutional significance of the draft section 30 Order, the procedure makes it “how little appears to have been agreed between the Governments impossible to ensure fully effective scrutiny … It is hard to avoid on these important issues. It seems that Parliament is to be invited the conclusion that more could have been done to include the to approve the draft section 30 Order with few guarantees that the United Kingdom Parliament in this process”. PPERA scheme governing the fairness of referendum campaigns We then made a crucial point: will be made to apply in Scotland”. “Neither the draft section 30 Order nor any other part of the Our conclusion was that: Agreement stipulates what the referendum question is to be. This “It is the Scottish Parliament that will play the vital constitutional will be”— role of providing full and effective scrutiny of the proposed as we have learnt— arrangements for the referendum on independence. The Scottish Parliament will have available to it the expert analysis and input “a matter for the Scottish Government to propose and for the of the Electoral Commission, whose advice should be considered Scottish Parliament to determine”. authoritative”. 5.15 pm When I first saw the Government’s response, which was only received on Monday in a letter from the Our next point, which has been referred to already Secretary of State, I was pretty underwhelmed. He by almost everyone who has spoken, was: said—and I believe that this was repeated by my noble “The question proposed by the Scottish Government in Your and learned friend in opening this debate—that the Scotland, Your Referendum was: ‘Do you agree that Scotland referendum on independence, should be an independent country?’”— a matter that my noble friend Lord Forsyth forcefully “must be properly supported and overseen by the independent identified. We said: Electoral Commission”. “At least four problems have been identified with this formulation: Certainly, my understanding of the word “overseen” is first, that it is a leading question; secondly, that it asks a question rather different from the role of the Electoral Commission, about what Scotland is rather than about what Scotland should which is to give advice that can be ignored. 721 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 722

[LORD CRICKHOWELL] Houses, must not drop this matter today having debated I read a large part of the extremely long and impressive this order, but come back and debate the whole question debate held in the other place yesterday. I think that I of devolution for Scotland again and again during the am right to say that on at least six occasions—there coming months, so that these messages can be got over may have been more—the representatives of the SNP to the people of Scotland. I think it was the noble were specifically asked whether they would not just Lord, Lord Reid, who expressed confidence in the listen to but take the advice of the Electoral Commission. good sense of the Scottish people and the electors. I On all six occasions, they refused to give an answer. have always had a huge respect for what I call the That is a fairly sinister and depressing signal. “horse sense”, the common sense, of the electors, One of the most interesting and important speeches when all the facts are fairly and fully put in front of made in the other House yesterday was made by the them. I am glad that in the other place yesterday the right honourable Member for Edinburgh South West, Secretary of State said that there would be plenty of Mr Alistair Darling. He touched on all those issues. opportunities to debate these issues again and again On this point, he said: and to draw all the questions to the attention of the Scottish people. I hope that that will be the case in this “My view is that the Electoral Commission should act as the House as well. referee, and I hope that it will go for a question that is clear and simply understood, without cant or tilt one way or another … People on both sides have mentioned the problem that the SNP is the player and the referee at one and the same time, which does Lord Sutherland of Houndwood: My Lords, I very not strike me as fair. I hope that it will accept what the Electoral much welcome the opportunity given by the noble Commission has to say on the wording of the question”. Lord, Lord Forsyth, to debate this issue. He is right to He went on to make another point touched on earlier take the view that he has on the amendment and on in the debate, but which has perhaps not been made whether it will be pressed. However, this is a very enough of. That is the issue of the money to be spent, important debate and, as has been suggested, we must not on the actual arrangements for the election but ensure that it is continued. before the period of purdah, when it is no longer—or I want to make two points and then issue a challenge. supposed not to be—possible for the department to The first point is about the question. I was invited by use public money effectively to campaign. That is very the three pro-union—as it turned out then—parties in worrying, as it is quite clear that the First Minister Scotland to chair a small, expert group on proposing a intends to postpone until the last possible moment question that would meet the criteria which we all that period of purdah. Mr Alistair Darling said about accept. We had hoped that it would be a group invited that: by all four of the major parties in the Scottish Parliament, but the SNP declined to nominate someone. Such is “The Scottish Government and the SNP seem to be one and the same thing when it comes to the referendum—the entire effort the way of life. of the Scottish Government is now being directed towards the We came up with a question that is rather different referendum. I am afraid that I do not have confidence that the from the one the Scottish Government propose—different permanent secretary at the Scotland Office will have any control in two respects that have already been commented on. over the SNP. I suspect that, even if he gets round to raising the odd word of concern, he will be told in no uncertain terms where First, we rejected the rubric, “Do you agree?” Rather, to go. Public money is being used on one side, and those of us on we wanted a single statement, “Scotland should be an the other side who have to raise the money ourselves will find it independent state”: either “yes” or “no”, or “I agree” or very difficult to compete, especially in the last four months of the “I disagree”. That would very plainly settle the matter. campaign”.—[Official Report, Commons, 15/1/13; cols. 763-4.] The second point was, of course, that we used the That is a very worrying and serious situation. word “state” and not “country”. The point of the The only word of encouragement to make me think word “state” is that if you have a state, you must have a that the Government have a serious understanding head of state, a constitution, and foreign relations— and recognition of the problem that we face came whether with the EU or with NATO or, in due course, from the Secretary of State, both in his letter to the with the Government in Westminster, not least because Constitution Committee and in his response to the of your interest in the Bank of England. debate in another place yesterday, when he said: It was suggested to us—we have offered this evidence to the Electoral Commission—that the word “state” is “When the Scottish Government set out their final proposals for financing the referendum campaign in the referendum Bill, a bit complicated. However, I believe in the electorate. they must set themselves aside from their own campaigning They will take account of what this means. It is not a interests and recognise that their approach is being watched by all technical term. As a country, we host the Commonwealth of Scotland, and indeed by the international community. That is a Games; as a nation, we play in the Five, or is it Six, point that the Deputy First Minister recognised when she rightly Nations tournament; as a state, we have a constitution, said that the poll must satisfy the highest international standards.— a head of state and, more than that, we must have [Official Report, Commons, 15/1/13; col. 746.] foreign relations that we negotiate with others. If one My noble and learned friend repeated those words says that the electorate will not understand that difference, exactly in his introductory remarks this afternoon, then they will not produce informed consent or informed and the issue was touched on by the noble Lord, Lord dissent. It is up to those of us who are involved in this, Reid, in his intervention. We have to get it over directly and, for example, the wider press, to explain the differences to the people of Scotland what is going on. That is and ensure that people understand what they are why the point made earlier about the press reporting voting on. So that is the question. We have submitted on these issues, if it can be persuaded to do so, is so that evidence to the Electoral Commission. I do not significant. It is why we in this Parliament, in both know whether it will accept it. 723 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 724

My next point relates to the role of the Electoral that it appears that we have allowed foreign money to Commission. The noble and learned Lord, Lord Wallace, interfere with our domestic politics, contrary to everything slipped from one phrase to another. He suggested that that I think we would all agree on about not allowing in previous referenda there was a question of responding that to happen. There are people taking advantage of to the advice of the Electoral Commission. It is one that to bring in foreign money to influence significantly thing to respond and accept—which is the phrase he the conduct of this decision in Scotland. I say to the used—but he also used another phrase: that the advice noble and learned Lord, Lord Wallace, that if our was accepted in line with what the Electoral Commission regulatory legislation on the conduct of elections has said. Are they required to go in the general direction, such an obvious lacuna in it that we are allowing or are they accepting the actual advice? foreign money to be used in this way to affect political In the light of that, I want to finish with a challenge. decisions in this country, it is incumbent on us quickly Much has been made of the role of the Scottish to close that loophole. As it appears that it is planned Parliament in this. I challenge the Scottish Parliament that the referendum will take place in late 2014, we have to debate now, before the advice is out. It must say the time to do that. If we can do something to achieve whether it will accept the advice of the Electoral the closing of a lacuna in our electoral regulations to Commission, and if not, say so—and say why, or why stop this happening, it is incumbent on us to do it. We not. Then, at least, we will have the arguments and all agree that we should not allow foreign money to be reasons laid out for the Scottish population to understand used in this way and should do something about it. what kind of group this is. The Scottish Parliament is I intend to concentrate on a small number of points not the Scottish Government; it is not the SNP. I which I think are genuinely additional to what we have challenge it now to debate a Motion that it will or will already heard. My first point is in support of the noble not accept the advice of the Electoral Commission. and learned Lord’s argument that this is being done properly in devolving the power to the Scottish Parliament. 5.30 pm I was interested in the irony of the argument that my noble friend Lord Reid of Cardowan deployed for Lord Browne of Ladyton: My Lords, I am content this: the analogy of those leaving the club being entitled to be associated with the challenge of the noble Lord, to make this decision for themselves, while those who Lord Sutherland, to the Scottish Parliament and I am stay and want to change the rules have to do that with delighted to follow him. The earlier part of his everybody in the club. I may be wrong, but I think the contribution, in which he went through the elements first time I heard that analogy was when it was deployed of the proposed question and the criticisms that his by the noble Lord, Lord Forsyth of Drumlean, in expert group had made of it, was helpful and instructive. making the argument that there should be only one It complemented nicely the contribution of the noble question in this referendum and that if we went on to Lord, Lord Crickhowell, who spoke with the authority the issue of devolution max—a phrase that has slipped of the Constitution Committee and its helpful report. away from this debate, thank goodness—that was a That report, although properly directed to a Minister matter for everybody in the United Kingdom, not just of the UK Government, should really be directed to one for the people of Scotland, and that it therefore the Electoral Commission. The fact that the Constitution had no part in this referendum. I agreed with him Committee of this House, with its modest resources, then. The noble Lord, Lord Forsyth, may be sitting although it has a very distinguished membership, produced there thinking that there is a degree of irony that this such an authoritative and well argued report in a argument was deployed so skilfully by my noble friend comparatively short time reinforces the criticism from Lord Reid to undermine the argument that the noble the noble Lord, Lord Forsyth, that the Electoral Lord was making. Commission, with all its significant resources, could However, there is an additional argument as to why not produce a report on the same issue in a time that it is right, in the circumstances that we find ourselves was in step with the important decisions that needed in politically and democratically, that we should devolve to be made in relation to the process of this referendum. this power to the Scottish Parliament. The current It will be of no surprise to the noble Lord, Lord Scottish Government won an overwhelming majority, Forsyth, that even were he to divide the House, I a majority that overwhelmed all of the other unionist would not have voted for his amendment. That is not parties in the Scottish Parliament in 2011 on a manifesto because he is not a powerful advocate—he knows the that pledged to deliver a referendum on the issue of view that I hold of his ability to make an argument—but independence. Of course we can say that was beyond for the reasons that my noble friend Lord Reid of the competence of that Parliament and we can make Cardowan set out. I just think it would be bad politics all these clever arguments, but actually we were left at this stage in this process to support such an amendment with a democratic problem. The answer to that to the Motion before the House. That is not to say that problem—we have to face up to the political reality of I do not have a lot of sympathy with many of the that—is to give the Scottish Parliament the power to arguments that the noble Lord rehearsed, and which run this and then deal with the issues in that context. have been reflected in other contributions. My second point is about the way in which we are As I am speaking so late in the debate, I am in the proceeding. I agree with all of the points that the fortunate position of not needing to repeat many of Constitution Committee has made, which are essentially the points about the question, the role of the Electoral criticisms of the way in which the Edinburgh agreement Commission or expenses. There is both the amount of was concluded and presented and the lack of expenses that the Electoral Commission proposes to parliamentary involvement, scrutiny and engagement allow for the conduct of the referendum and the fact in that. But that agreement has now been made. We have 725 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 726

[LORD BROWNE OF LADYTON] have entered into with the UK Government? I ask that to decide whether to respect that agreement made by not because I am such a clever lawyer that I have the UK government leadership and the leadership of worked it out for myself, but because I had an informal the Scottish Government. We have chosen to respect conversation with one of the leading legal brains in it, and I think that is right. It appears that we have this country, whom I will not indentify, who suggested here an order that we have a role to play in, which is to me that such a decision would be reviewable. If what we are doing now. We also have an interesting there is a preponderance of that view among other constitutional linkage between the order and the leading lawyers in the United Kingdom, that will be agreement, the status of which appears to be a matter enough to ensure that the Scottish Government behave of dispute. I say that because I understand that the in the way in which we want them to. principal legal adviser to the Scottish Government is That is an example of exactly the sort of thing that describing the agreement in a very particular way that it is quite legitimate for us as politicians and the UK is in contradiction to the way in which it is being Government to be exploring publicly in this environment. described here. What is the legal status of the Edinburgh When we debated the Scotland Bill we had concerns agreement? Can it be used by those who seek now to about what the Government would agree with the use it as some sort of legal platform to allow them to Scottish Government. We set them off, in a sense, with do other things, or is it, to paraphrase what the Secretary a mandate not to do certain things. They have to be of State for Scotland said, simply an agreement between congratulated on coming back and meeting a substantial the UK Government and the Scottish Government as part of that mandate. The noble and learned Lord to how the referendum is to be run? who will be responding to this debate deserves a That leads me on to my third point, which is significant degree of credit. The way in which he directly about the question. I will be astonished, as I conducted himself in the early stages of this controversy, think everybody will be, if the Electoral Commission particularly the speech he made at the University of does other than advise the Scottish Government that Glasgow, changed the whole tenor of the debate in the draft question that they have proposed is inappropriate Scotland. He carefully and calmly pointed out the and will have to be changed quite radically, for all of legal basis of the powers of the Scottish Parliament the reasons that we have heard. The noble Lord, Lord and of the UK Government in the devolution settlement. Forsyth of Drumlean, in an excellent speech, described He did the same thing on Scotland’s potential membership it as a misleading question. The fundamental problem of the European Union, in a speech he skilfully gave in with it, from my point of view, is not that it is misleading Edinburgh, and changed the debate. but that it is leading—leading in the way in which However, there are still some issues for which we lawyers deploy that word: it is a question that begs its could use the same sort of devices to shift in a way that answer. A question that can instinctively be answered would allow us to have the confidence that this referendum yes, as the noble Lord, Lord Stephen, suggested, is a would be legal, fair and decisive when it is conducted. leading question. In certain parts of the conduct of legal proceedings, we have a history and a tradition of Lord Forsyth of Drumlean: IamnotalawyerandI not allowing those sorts of questions to be asked wonder whether the noble Lord might give me some because they lead the witness to an answer. We do that free legal advice. I asked my noble and learned friend for the very good reason that in certain circumstances, why the Edinburgh agreement was not linked to the when people are engaged in that kind of a relationship order. Perhaps naively, I assumed that it was to avoid with an interrogator, they incline to say what the any litigation. This whole process was started on the person wants to hear. So it is a leading question, and I basis of trying to get a legal base that would avoid any cannot for the life of me believe that the Electoral legal challenges interrupting the process. Is the noble Commission will say that it is an acceptable question. Lord arguing that there would be the opportunity for The real issue is whether the combination of this litigation if it was linked, or is he arguing that there order and the agreement that the UK Government might be an opportunity even if it was not linked? have extracted from the Scottish Government lead to the Scottish Government putting before the Parliament Lord Browne of Ladyton: There is at least an issue that they control effectively a proposal in a Bill for a worth exploring as to whether, with the current question that reflects the advice that the Electoral arrangement of an agreement—a public agreement, Commission has given. In other words, will they respond which raises a level of expectation—and the order, if properly to that advice? Whether we can have confidence the Scottish Government behave in a particular way, that the man who leads the Government at the moment the decision to do so might be judicially reviewable. I can be trusted to do that or not, we need to know that do not look forward to the prospect of getting bogged there is some form of audit or enforcement of that down in litigation which might end up in the Supreme process that goes beyond our ability to be able, at Court, for the obvious reasons of the relationship some future election, to make the nationalists pay the between the Supreme Court and the Scottish Government. price for what they did then, as the noble Lord, Lord I do not want to resurrect all that, but if there is something Forsyth, said. in this—I think there may be—the very fact that it is In those circumstances, is it legitimate to consider being aired in the public domain with reliable, informed that a refusal to take that advice and an insistence on a and trustworthy legal advice, such as the sort of advice question—a question which the Electoral Commission that the noble and learned Lord, Lord Wallace, gave said was entirely inappropriate and leading and misleading publicly gave on previous issues of controversy, could for that reason—is reviewable in a legal sense in the well settle these issues so that we could have confidence light of the agreement that the Scottish Government that we were moving forward. That is my point. 727 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 728

My final point is that at one stage not too long ago we have got rather more in the memorandum of we were led to believe that the UK Government would agreement, but here we are being asked to pass measures deploy their resources in such a way that we would get that are not even as yet in secondary legislation. Noble a series of papers that would set out their view on the Lords have touched on reducing the voting age to 16, implications of independence for Scotland and its an issue that is bound to have repercussions on all elections separation from the rest of the United Kingdom. That that take place in the UK, whatever anyone likes to information is crucially important to the debate. I say. In fact a Bill has been tabled in this House by the hope the noble and learned Lord, Lord Wallace, will noble Lord, Lord Tyler, who I see is not in his place, when take the opportunity when he replies to the debate to we will be able to look at this issue in the round. Here indicate to the House where we are in the expectation the issue is tucked away in a memorandum of agreement of that. We know that the Scottish Government are and we will not spend much time considering it. deploying all of their resources towards the objective The fact that we now find ourselves in a country of a yes vote in the referendum in 2014. There is no with a devolved franchise, which is nominally giving reason at all why the UK Government, whose policy is restricted powers to other parts of the United Kingdom, to keep the United Kingdom together, should not appears to mean that the sovereignty of the Westminster deploy extra resources in order to achieve that objective. Parliament can no longer be adhered to. We get framework We should be utterly open about that. The sooner the orders such as this that are merely to approve powers Government are able to do that, to disaggregate that that the Government have already assumed for themselves. information from the information that only they hold Perhaps the Minister would like to comment on the for the rest of us to be able to deploy in this debate, the Government’s statement in answer to one of Monday’s better. I am delighted that we have this order now amendments to the Electoral Registration and because we are getting to the meat of the issue. I am Administration Bill. The amendment asked that the desperate to get to the meat of the issue, but I want to Secretary of State should be able to alter the franchise be in a position where I can make arguments that are for elections by secondary legislation. The Minister convincing. said that they, “believe that the franchise for UK elections should remain set out in primary legislation. It would be very unusual to provide for a 5.45 pm change to the franchise in secondary legislation”.—[Official Report, The Duke of Montrose: My Lords, I would like to 14/1/13; col. 489.] touch on three points, first on process, then on content What about memorandums of agreement? The agreement and finally on effect. I want to go back a bit further is such that we have a considerable— than we have done so far this afternoon. Today we are dealing with one of the myriad Henry VIII powers Lord Wallace of Tankerness: Rather than allow a that are contained in the Scotland Act. As your Lordships misunderstanding to continue, a memorandum of will know, the Act itself was almost exclusively the agreement does not change the franchise for the Scottish product of an ad hoc body that called itself the election. If it were to be changed, that would have to Scottish Constitutional Convention. The fact that it be done by means of primary legislation in the Scottish contains so many Henry VIII powers, it seems to me, Parliament. Every referendum has its own franchise. was the product of an approach that said, “We don’t The consequence of passing this order is that the really know what we eventually want, but let’s make a franchise would be determined by the Scottish Parliament. start and then we can see how it works as we go There is an agreement that it should first and foremost along”. So far, the Library tells me, Governments of be the franchise for Scottish elections and local elections. whatever persuasion have been able to unearth 31 powers If the Scottish Government wish to extend it to 16 and in the Act and pass 194 amendments to Schedule 5. 17 year-olds, that will require primary legislation in the Scottish Parliament. Given the state of politics in Scotland, contrary to the expectations of all the wise constitutionalists who The Duke of Montrose: I thank my noble and set things in motion, the Scottish Nationalists have learned friend for that clarification but the underlying achieved such an overall majority that the need for a issue still bears consideration. On independence, I referendum on independence has developed a certain think that what we are faced with is that some regard urgency. That need is to determine what the true Scottish history as having been a wasted opportunity convictions of the Scottish people are. either after Flodden in 1513 or after the Darien scheme The power contained in Section 30(2) is possibly in 1698, and they wish to wipe the record clean and the most far-reaching in the Act. As was pointed out begin again with a new and enlightened polity—centuries in the report of your Lordships’ Constitution Committee, of Scottish toil brushed carelessly aside. as we heard earlier, this power has already been used We can all see that in the intervening period there 10 times for things that varied from equality and have been some remarkable individual Scots whose human rights to the railways. As the noble Lord, Lord lives have marked moments of great progress for mankind, Crickhowell, said, the committee also commented that including Adam Smith, the framers of the United the use of, States constitution and David Livingstone. They can “the section 30 route significantly curtails the opportunity of the all stand on their own merit but in some ways, backing UK Parliament to have an effective input into the process”. up the remarks made by the noble Lord, Lord McConnell Today we are asked to pass this outwardly fairly of Glenscorrodale, when we begin to consider what simple order. Noble Lords will notice that it shares Scotland’s contribution has been on the wider world, one outstanding feature with the Scotland Act 2012. the vast bulk of it has been achieved within the union Both are remarkable for what they do not say. This time that is the United Kingdom. 729 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 730

[THE DUKE OF MONTROSE] There is a misunderstanding of what would happen in Of course, as we contemplate the accumulation of the event of a yes vote, on which I think almost all of events—the noble Lord, Lord Reid of Cardowan, us here agree, although the noble Lord, Lord Wigley, raised the same issue—we are now learning that perhaps has not spoken yet. An assumption is being made—an some of the elements were far from activities of which impression is being created—by the supporters of the we should be proud. Overall, though, I maintain that yes vote that there would suddenly be independence. I Scotland has much to show for those years, and it is hope that the Minister will indicate that it would be a not something that can be easily shrugged off in a long and difficult process in relation to issues such as moment of enthusiasm for whatever appears new. the national debt and a whole range of others that will The nature of Scotland is such that big opportunities have to be negotiated. generally have been seen in the wider world outside. A separate Scottish state could not be created until We can all see that independence can have a great there had been legislation in this United Kingdom attraction to the stay-at-home Scots, as long as Alex Parliament. Surely, there would have to be further Salmond can continue to pull in sufficient funds to legislation before there could be a separate Scottish maintain the level of what we have come to regard as state. The referendum is not enough. The detail would our inalienable rights. However, what can a vote for have to be worked out. There would have to be independence offer to our young people who are pursuing negotiations. Some people have suggested, and I hope a career path in the corridors of power or in more that the Minister will comment on this, that there widespread and influential businesses and marketplaces, might need to be a further referendum on the acceptance or those who wish to establish businesses there? Will of the negotiations at the end of that. I am not sure if they not have to accept that they will be even more that would be the position but it certainly seems regarded as non-nationals in their place of work and arguable that that could be the position. increasingly unable to have a vote and influence in My main point relates to the report by the Select what is still their home? Committee on the Constitution, mentioned by the noble Lord, Lord Crickhowell. It covered a number of points. Paragraphs 27 of the report states: Lord Foulkes of Cumnock: Perhaps I may follow the “It may be, therefore, that irrespective of the legal status of the Duke of Montrose who has spoken so elegantly, as MoA as a whole, different provisions within the MoA are capable always, in this debate, as I did on a number of occasions of generating different levels or different kinds of legal or constitutional during the passage of the Scotland Bill. Perhaps I may obligations or expectations”. inform Members of this House, not all of whom may Paragraph 28 states: be au fait with social media, that this debate is being “It cannot safely be said that the arrangements proposed put very well covered. Already the key comments made by the matter beyond all legal challenge”. the noble Lord, Lord Forsyth, and my noble friends My noble friend Lord Browne has already raised Lord McConnell and Lord Robertson have appeared the question of legal challenge in relation to the wording on Twitter. That is a very interesting development, and of the question. I hope that the former Lord Chancellor, I shall return to that. the noble and learned Lord, Lord Mackay, does not mind my saying, but earlier I had the opportunity of The Scottish Government appear to want—I think discussing this matter with him and he indicated that that we have to be very careful about the words that we there may be options of legal challenge here as well. I use, as I said to the noble Lord, Lord Forsyth in an do not think that it should be used as a threat in any intervention—to manipulate the way in which things way but we should alert people, the public generally will turn out in this referendum. It is very important to and elected Members of the Scottish Parliament and indicate clearly that separation is very different from the Scottish Government, to the dangers of that kind any kind of devolution. As shown in the recent somewhat of thing. confusing vote regarding membership of NATO, the Scottish Government are going out of their way, in Lord Crickhowell: While this question was left in wanting to keep the Queen and in hoping to keep the the air, we were conscious that at the very least it pound, to try to make it appear that this separation, might be another cause for substantial delay while the which will be drastic and irreversible, is no different legal question was settled. from the vote that we had on devolution. It is completely different and we must keep saying that. 6pm I referred to funding in an intervention, and I hope Lord Foulkes of Cumnock: I think that that has that we will get a reply. Again, there seems to be an reinforced the point. attempt to manipulate or to try to make sure that the I also want to raise the question of 16 and 17 year-olds, outcome moves in a particular direction, with funding as I have done on a number of occasions. I do not coming from all sorts of sources for the yes campaign, think that people have realised—and certainly the particularly from overseas. We need to know that there Scottish Government have not realised—the practical will be a ruling, not advice, and to know exactly what problems of identifying and putting these 16 and the ruling will be and who will make it, so that there 17 year-olds on the register. It has been estimated that will be a level playing field. there may only be a few thousand who are ultimately Another issue that has appeared in social media—it eligible to vote. We should ask the Scottish Government was reported on Twitter—was that Alex Salmond said to tell us how they are going to do this. It has already today, in an interview on Radio 4: been made clear that they will have to undertake and “The first job of the Scottish Parliament would be forming a fund it; we should ask them how they are going to constitution”. carry it out. 731 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 732

Finally, one particular problem is that there is so have been found wanting. One already referred to is much preoccupation with the referendum by the Scottish the legal advice—or rather lack of it—on joining the Government, the First Minister and Deputy First European Union. Minister, by members of the Scottish Cabinet and I remember the SNP campaigning very strongly on SNP Members of the Scottish Parliament—they are independence in Europe—in other words, it was not so preoccupied with the run-up to it and winning only going to join the European Union, it was also it—that other areas that we have devolved to them are going to sign up to the euro. That has suddenly being ignored. The health service is not being properly disappeared: I cannot think why. The SNP is no longer supervised and problems have already been raised. advocating joining the euro. That uncertainty about Some of our Labour colleagues in the Scottish Parliament the relationship of a future independent Scotland with have brought up these concerns. In education, housing, the European Union—on which there was an interesting, and social work, problems have been raised that are long interview this morning on Radio 4—is one of the not being properly addressed. We should say to Members reasons why support has slowly withered away. The of the Scottish Parliament, and particularly to the second reason, which is related to it— Scottish Government, that a whole series of very important matters has been devolved to them and they should not let their preoccupation with the referendum Lord Reid of Cardowan: Will my noble friend give and with trying to win it take their attention away way? He has helpfully reminded me that there is from doing a good job in the areas already devolved. another implication of that slogan, of course, because just as you can be independent in Europe you can be independent in the United Kingdom. What you are Lord Steel of Aikwood: My Lords, when my noble not is separate, which reinforces the points that we friend Lord Forsyth began his speech he said to my made earlier on. noble friend the Minister that if he were on a charge of murder he would happily employ my noble friend as his defence counsel. I hope my noble friend is honing Lord Steel of Aikwood: Indeed, I was going on to his skills because they may be needed. I get the impression say that one of the other uncertainties that has been that my noble friend Lord Forsyth has a completely exposed during this prolonged debate is the question unhealthy obsession with the First Minister of Scotland, of what currency would be used. If the euro is out, and and it is not one that I share. It may go back to the fact we are not having a separate Scottish pound because that they were at university together, but I thought we are going to rely on the Bank of England, what that his otherwise powerful speech was spoilt by too sort of independence is that? So the second bit of many references to one individual of whom we should unravelling has been on the whole issue of the financing not be afraid. of an independent Scotland. The third—which has also been mentioned by others so I will not go into detail—is on Trident and the Lord Forsyth of Drumlean: I am certainly not obsessed defence role of an independent Scotland. My party with the First Minister but I think it is legitimate to and I have long been opposed to the replacement of point out that when my noble friend talks about the the Trident system—in fact we were opposed to the Scottish Parliament and so on, we all know that initial replacement of Polaris by Trident. That is at the Scottish Parliament is completely dominated by least a position of principle, even if people disagree the First Minister. None of the members of the SNP is with it. What is unacceptable is for the SNP to say, able to say a word but by his leave. So it is important to “We want rid of Trident, but we are quite happy if it realise that, when we think we are devolving power to goes to Devonport or Barrow-in-Furness or somewhere the Scottish Parliament, we are talking about giving else”. That is not a credible position. Nor is the power to Alex Salmond because he calls the shots. position, as the noble Lord, Lord Reid, pointed out earlier, of saying, “We would like to join NATO Lord Steel of Aikwood: My noble friend has just because that makes people feel comfortable, but we repeated the point I am trying to make—that he is will not accept any of the obligations of joining”. totally obsessed by one individual. I agree with the noble For all these reasons, the longer the debate has gone Lord, Lord Browne, who pointed out that, whether we on—and I have argued before that that was a mistake like it or not, the SNP secured the democratic mandate because people would become bored by it and the and this order enables it to carry that out and to hold uncertainty would not be good for Scotland nor for the referendum. For that reason I support the order. investment in Scotland—the more the support for There are lessons to be learnt from the mistake—the independence has declined. misjudgment—that has been made to keep postponing Among those of us who campaigned in the 1980s the process to 2014. This has been mentioned by and 1990s for the restoration of the Scottish Parliament, several other speakers. It is important to notice the there was an unspoken assumption that, if we got a difference between this situation and the one in Quebec: Scottish Parliament and a Scottish Government, then during the two years that we have been debating this the future Scottish Government and the future UK issue, the support for independence has been going Government would collaborate in the interests of the down, not up. This is extremely significant. I suggest people of Scotland. Indeed, it is fair to say that, in the that the reason it has been going down is that, quite first years of devolution, that did happen. Of course apart from the 35 questions from the CBI which the there were disagreements occasionally between the noble Lord, Lord Nickson, referred to, there have two Governments but basically they were both pursuing been three major issues on which the Scottish Government the best interests of the people of Scotland. I think the 733 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 734

[LORD STEEL OF AIKWOOD] Lord McConnell of Glenscorrodale: I hope that the biggest single reason why support for independence noble Lord, Lord Wigley, will accept that the only has declined is that that does not appear to be the responsibility for this situation lies with the Scottish position of the SNP Government. Their position is National Party itself. Many of us have argued that not, “What can we do together with the UK Government there should be representation in this Chamber. In to better the life of the people of Scotland?” It is particular, I have argued that Mr George Reid, the rather, “What can we do to promote the SNP?”. That Presiding Officer who preceded the noble Lord, Lord is a very different position. Steel, and who worked with me when I was First During the Olympic Games, the Scottish Government Minister, would be an excellent Member of this Chamber. hired the Army and Navy Club in London, at a cost of However, because he rightly feels some loyalty to his £400,000 of our taxpayers’ money, to entertain athletes former party and that party will not put him forward, and others visiting the Games: in fact, very few people he is not sitting here. That is wrong, but the responsibility went. They could have had Dover House for nothing—a for it lies entirely with the nationalist party, which will substantial building, right in the centre of London, not make that decision. well known—but of course it belonged to the UK Government, so it did not suit the ideal of the SNP. Lord Wigley: I hear what the noble Lord says. That is a trivial example of what I am saying—that the Indications that I have had from Mr George Reid may motivation throughout has been what is in the best be slightly different from the interpretation that the interests of the SNP. noble Lord has given. However, I have no doubt I end with the question that everybody else has whatever that there were those within nationalist been raising about the decision on respecting the Scotland—not necessarily even members of the SNP— judgment of the Electoral Commission. Why is the who would have been willing to serve the interests of SNP not willing to say now that it will accept that their country in this House. Be that as it may, the fact judgment? It is because it wants to promote the interests that they are not here and therefore cannot participate of the SNP. The more people realise this, the more the in this debate is unfortunate. That is why I am support for independence will continue to decline. contributing, although I have no authority to speak I support this order. I am not complacent about the on behalf of the SNP and I certainly would not outcome but I am confident that, because of this presume to do so. It is not for someone from Wales to constant shifting of position by the Scottish Government, tell the Scottish people what is best for them; nor in the end people will say that they do not want to indeed is it for those from England or Northern Ireland make that leap in the dark. to do so. The decision on whether Scotland should be an independent country lies with the people of Scotland and Scotland alone. I am glad that the draft Lord Wigley: My Lords, every voice that we have order before us today arises from the Edinburgh heard so far has been a unionist voice. I realise that I agreement, whereby it will be the Scottish Parliament may be in a small minority—perhaps even a minority and not Westminster that determines the date, of one—in this Chamber in wishing the people of franchise, question, referendum rules and campaign Scotland well in their quest for independence; none spending limits. The proposed arrangements for the less, I wish to see a new relationship between the the referendum will be initiated by the Scottish Parliament. nations of these islands: a new partnership of free and The Electoral Commission will then have an opportunity equal self-governing nations co-operating with each to give its views, and those views will be duly other and with partners in the European Union and considered by the Scottish Parliament before a final the wider world. decision is taken. That is the implication of the Edinburgh Today’s debate has involved a series of attacks on agreement. the SNP in general and on Alex Salmond in particular, I noted one important point in today’s debate relating as was mentioned by the noble Lord, Lord Steel of to Scottish servicemen based overseas. I know that Aikwood, a moment ago. It may well cross the minds there are SNP MPs and MEPs who are also actively of noble Lords that it is a little strange that this aware of this and I very much hope that a resolution House—one of the two Houses of the UK Parliament— of the issue can be found. does not have any voices from Scotland that represent As I understand it, the resolution in the Scottish nationalist aspirations, which is, after all, the driving Parliament supporting this order was passed unanimously force behind the forthcoming independence referendum. by that Parliament. I also understand that every one of I fully understand that the SNP has stuck resolutely the Westminster parties supports the order. This shows to a policy of not putting forward nominations officially how Governments can work together to achieve a in the party name—as indeed did my party, Plaid sensible outcome, and I believe that it is to the credit of Cymru, until five years ago. The experiences that my both the Government of Scotland and the Government party suffered at the hands of a former Prime Minister of the UK that this has been achieved. It is an indication may well have persuaded the SNP, which might be that Governments can, indeed, work together sympathetic to securing a voice in this Chamber, not harmoniously. I have no doubt that if Scotland becomes to bother pursuing the matter. Noble Lords may well an independent country as a result of the referendum, wish to ponder on the acceptability of a system whereby there will be equally harmonious co-operation between the leader of one party—albeit a Prime Minister—can the Governments in London and Edinburgh thereafter. determine whether another party, with MPs in the There has been talk today of litigation and judicial House of Commons, can be denied a voice in one of reviews but that sits a little uneasily with the type of the two Chambers of the British Parliament. co-operation that I have just described. 735 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 736

It is truly excellent that there should be such Lord Wigley: Yes, of course, I accept that without co-operation and that the referendum will be seen as reservation. The point is whether the question that has “Made in Scotland”. That gives greater confidence been proposed is a leading question, and there will be that the outcome, whichever way it goes, will be acceptable differences of opinion on that. I have no doubt that to all the Scottish people as a democratic decision the Electoral Commission will give its opinion on the taken by the Scottish nation. I am sure that no one in question and of course the Scottish Parliament will this Chamber from outside Scotland would want to take considerable note of what the Electoral Commission gainsay that or dispute the fact that this should be a says. It would be strange if it did not. However, to decision for Scotland. To that extent, the noble Lord, suggest that the Scottish Parliament or any Parliament Lord Reid, is quite correct that the referendum in should automatically accept the ruling of a body such Wales on providing further devolution is different as this takes the issue much further. If we were to from the question of independence and raises the argue that Westminster should automatically, under question of whether referenda are really necessary for any circumstances, always accept the suggestions put every small step of further devolution. That was not forward by the Electoral Commission, irrespective of the case with the Scotland Act last year. There are, of whether the Government or indeed the whole Parliament course, implications for the rest of the United Kingdom, agreed with it, that would be unacceptable here, and I and no doubt these will be debated during the referendum suggest that it would be unacceptable in the context of campaign, as is right and proper. However, they are Scotland as well. not issues that should delay the progress of the draft order before us today. Lord Reid of Cardowan: With respect, the noble Lord has set up a straw man. I did not suggest that 6.15 pm every recommendation should be accepted. I suggested Incidentally, I think it is a little disparaging towards that if the question is deemed by the arbitration body, Scottish voters to suggest that they may not understand which is neutral, to be a leading question, you should that voting “yes” will deliver an independent state, make it plain in advance that you will accept that even on the basis of the question that has been discussed. particular piece of advice. The noble Lord says that no In the spirit of the concordat which has led to the one should ever do it, but perhaps I may say that I draft order coming before us, I humbly suggest that it would do it. If a referendum were being proposed by is less than edifying to hear the personal attacks that any Government, including a Labour Government, have been made again today in this Chamber, and which the Electoral Commission said was being skewed which were perhaps made yesterday as well, on the by a leading question, I would accept the arbitration leader of the Scottish National Party, the First Minister of the Electoral Commission. The noble Lord implied of Scotland. Quite honestly, references to “no honesty, that he would as well if the question was denoted by a integrity or consistency”, allegations as to his honesty, neutral body as a leading question. The question that and the suggestion today that he wants to rig a referendum we have been asking is why that cannot be done by the and that distortion might take place are not, I believe, First Minister and the SNP in Scotland. worthy of this Chamber and, perhaps more importantly, may not be conducive to the cause that noble Lords Lord Wigley: I am very grateful to the noble Lord. are promoting. It does no credit to the democratic If indeed the Electoral Commission were to come out process to resort to personal attacks, and I would and say in categorical terms that this is a leading suggest that it is also counterproductive. question and is totally unacceptable, and that that is clear cut in its opinion, then that opinion must be Lord Martin of Springburn: I agree with the noble taken on board by the Scottish Parliament. I have no Lord: we should not personalise this debate. The First doubt that it would take good note of any such Minister has a case to put the same as the rest of us, recommendation. I have faith in the democratic process and we should not attack anyone—particularly the in Scotland. However, to say that whatever the Electoral First Minister—on a personal basis. Commission says, the Scottish Parliament must accept its ruling as opposed to the decision of elected Lord Wigley: I am very grateful to the noble Lord representatives, is surely one step too far. Be that as it for that intervention. Certainly, not all speakers have done may, I support the draft order that is before us today. I that. I noted the contribution of the noble Lord, Lord hope that the House will give it a unanimous backing Browne, which was very constructive. It hit a tone that so that we can move forward to the next stage of this can help to ensure that there is no dispute on matters process and, ultimately, secure a referendum, whatever that are irrelevant to the central question. That central the outcome, that is a credit to democracy. question is whether people want independence. No doubt there are arguments to be had on that and the Lord Cormack: My Lords, the noble Lord, Lord other issues should be put to one side. Wigley, whom I am very pleased to call a friend, said that his would probably be the only voice advocating Lord Reid of Cardowan: I do not know whether the independence. Mine appears to be the only English noble Lord is about to conclude but he has covered voice in this debate today. We have heard two from everything except one point. It is the main point here Wales and the rest from Scotland. I particularly wanted and concerns the nature of the question. Does he to take part because this is not a Scottish issue. This is accept that under any referendum a leading question an issue that affects the whole United Kingdom. As I is an unfair premise on which to base a democratic have said in this House before, we all have varied decision? backgrounds, and it is very difficult to isolate the pure 737 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 738

[LORD CORMACK] produced not only by the British Government but by Scottish from the pure English. I consider my identity the cross-party alliance that is being spearheaded in as English, and yet the background of my family is Scotland by Mr Darling—an admirable choice, I believe. Scottish for centuries. My elder son lives in Scotland It must be spelt out to the Scottish people, whose with a Scottish wife, and my two grandchildren go to decision this ultimately is—I am not one of those who school in Edinburgh. My son considers himself Scottish, advocates every citizen in the United Kingdom having so Scottish indeed that he acted as the election agent a vote—just what they will be losing and what they for the daughter of the noble Lord, Lord Steel—because will be leaving. he has gone Lib Dem—in a recent election. I was delighted that the question of the votes of Scottish service men and women, who serve our country, Lord Steel of Aikwood: Successfully? often in extremely dangerous circumstances, was brought up in this debate. They of all people, wherever they are temporarily domiciled, must have the opportunity to Lord Cormack: Yes, indeed, successfully. That, of cast a vote on the future of the country for which they course, in its simple way illustrates the fact that within are prepared on a daily basis to lay down their lives. this Chamber and within this country, there are very few of us who can say that we are wholly this, that or It is going to be an extremely interesting and, I the other. It is therefore important that there be English hope we can say, good-humoured period. However, voices in this debate. After all, England is by far the the stakes are extremely high. The noble Lord, Lord largest country in the union, and we will all be affected McConnell, pointed to the dangers of bitterness creeping for generations to come if, on the anniversary of in. Of course, he did so with his background knowledge— Bannockburn, the Scottish people vote to sever their knowledge that we all have—that of all wars, the links with the United Kingdom. bitterest are always civil wars. This will be a civil war of words, to a degree. It is crucially important that we My noble friend Lord Forsyth made an absolutely try to keep it good-humoured. That is why, although it splendid speech. He has been taken to task by one or is right to talk about the political skills of our opponents, two people for being too personal. I would like to we do not seek to denigrate them personally as individuals. dissociate myself from personal attacks but also to agree with the substance of what he said. I know Alex I very much hope that there will be an opportunity Salmond very well. I met him on the first day that he during the coming 18 months for those of us who have came into the other place. Quite by chance, my wife Scottish links, Scottish roots and Scottish branches of and I and our family found ourselves for successive our family to play a part in this debate. We need to say years taking holidays on the beautiful island of Colonsay to the people of Scotland, “You are a fundamental at the same time as Alex Salmond, and having many and integral part of the United Kingdom, and we an agreeable conversation at the bar. He is an engaging need you because we need each other”. The United man. Personally, he has many delightful qualities. Kingdom is far more than the sum of its individual However, he is one of the two most skilful politicians parts, and there is no individual part that has made a in the United Kingdom at the moment, the other greater contribution to our history and success as a being Boris Johnson. We underestimate his political nation than Scotland. We do not want to lose that. skill, dexterity and ability at our peril. We must take There is no point in resurrecting all the arguments him very seriously, and we cannot assume that the over devolution. I remember them well because I was referendum will go the way that most of us in this in the House of Commons when the very first Scottish Chamber would like it to go. National Party Member, Donald Stewart of the Western As I listened to my noble friend Lord Forsyth, and Isles, came—he was a lovely man. I saw all this, and as he was almost convincing himself that he was took part in debates in the early 1970s and throughout wrong not to press this to a Division, so he was almost that decade. Big mistakes were made by both major convincing me. Of course I accept his judgment and I political parties. The biggest mistake made by the will not attempt to divide the House. However, the Conservative Party was neglecting to recognise the agreement that was negotiated was not so much an reality of the first devolution vote. It failed because it agreement as a capitulation. The Prime Minister, for did not clear a parliamentary hurdle but it indicated whom I have high regard, and the Secretary of State aspirations in the Scottish people. During those 18 years, for Scotland had Mr Salmond running rings around I was one of a group who went to see Mrs Thatcher, as them. They conceded far too much. It is a great pity she then was, to beg that something be done: perhaps that the Parliament of the United Kingdom in its two we should start having the Scottish Grand Committee Houses will not have a greater say in these crucial sitting in Scotland regularly and frequently; or there decisions that will be taken. The Scottish Parliament should be a consultative assembly of Scottish local will be judge and jury when it comes to deciding the authorities. Sadly, she did not want to listen. That was question. a great mistake. We all know what the question to the Scottish I will never forget travelling up to Scotland on the people is. It could be framed in the simple terms, “Do sleeper and having a dram or two with Donald Dewar you wish to leave the United Kingdom?”. However, in 1996. I said, “What would have happened, Donald, what is being proposed at the moment is certainly, as if we had done that in 1979 or 1980?”. “You’d have has been said, a leading question. It invites the answer shot our fox”, he said, “but it’s far too late now”. We that Mr Salmond would like. That is why over these are, as they say, where we are. We have a United next months—we have less than two years—it is important Kingdom. There are cracks and fractures and it is our that the series of papers that has been referred to is duty collectively to repair them. I am sorry that the 739 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 740 order is phrased as it is. I am sorry that so many That takes it much further than the question that has concessions have been made, but those of us who just been raised by the noble Lord. believe in the United Kingdom all have a duty to fight for its integrity in the year ahead. Lord Kerr of Kinlochard: That is precisely the point 6.30 pm that I am trying to make. Is the reference to “intelligibility” in some way limited to it or could it be construed in a Lord Kerr of Kinlochard: My Lords, my view of the court of law as in some way limiting the normal role of Edinburgh agreement is closer to the noble Lord’s the Electoral Commission and its role envisaged in than that of the noble Lord, Lord Stephen. I scored 2009? the Edinburgh agreement a three-to-one win to the First Minister of Scotland. He seemed to lose on the number of questions but he won on the franchise, Lord Elystan-Morgan: Is not the agreement made which is not a very important point; he won on the between the Prime Minister and the Scottish First date, a more important point; and he won on the big Minister a gentleman’s agreement? It is not an international point, which is the question itself. It is to that issue treaty, which can be made only between sovereign that I want to come back. I shall follow what was said states? Although everything that the noble Lord says by the noble Lords, Lord Sutherland of Houndwood has every relevance in the moral context, in terms of and Lord Browne of Ladyton, and ask the Minister legal consequence and strict constitutionality it must for a view on the internal wording of the Edinburgh be the case that it is no more and no less than a agreement and its significance. I am referring to gentleman’s agreement, binding, of course, as it is. paragraphs 8 and 12. In paragraph 8 we are told: Lord Kerr of Kinlochard: That is where I was going, “Consistent with provisions in PPERA”, although I would like to hear the Minister’s answer to the Electoral Commission will review the wording for my question on how one reads paragraphs 8 and 12 its intelligibility. I do not know why these words are there together. but they worry me. Paragraph 12 has a straightforward reference to the PPERA, which gives the Electoral Lord Wallace of Tankerness: I wonder whether it Commission responsibility for, would be helpful to do so now, as it has been raised. “commenting on the wording of the referendum question”. The word “intelligibility” is used because Section 104(2) What is the remit given to the Electoral Commission? of the Political Parties, Elections and Referendums The Constitution Committee’s excellent report—I am Act 2000, passed by this Parliament, states, in relation grateful to the noble Lord, Lord Crickhowell, for to a referendum question, that the Electoral Commission, reading from it—shows that that committee, too, is “shall consider the wording of the referendum question, and shall nervous on that point. It says: publish a statement of any views of the Commission as to the intelligibility of that question”. “We trust and believe that the Electoral Commission will be rigorous in assessing the question and will give candid and That is why the word, “intelligibility” has been taken fearless advice on the wording proposed by the Scottish Government”. from the statute and put into the memorandum. As It says that, the noble Lord rightly points out, the Electoral “the Electoral Commission will consider whether the referendum Commission set out in its 2009 guidance and guidelines, question … presents the options clearly, simply and neutrally … which I quoted when moving the Motion, how it we would expect any departure from the Electoral Commission’s intends to go about determining intelligibility. I hope recommendations on the wording of the question to be robustly that that clarifies why the word was used. The other scrutinised. We hope that there will be no such departure”. matters to which the noble Lord referred, such as ease I share all those sentiments, obviously. of understanding, lack of ambiguity and avoiding Why is the word “intelligibility” there? Why is it misleading voters, are part of the criteria that the necessary to have the narrower definition of the role of Electoral Commission has indicated that it applies the Electoral Commission? It is easy to envisage a when undertaking the word, “intelligibility” in statute. question that is completely intelligible but also leading or misleading. I am nervous about the role of the Lord Kerr of Kinlochard: I am grateful to the Minister Electoral Commission in this respect. I do not want to and in some way reassured. It seems to me that we exaggerate the point. It would be resolved if the challenge need to keep a close eye on this issue. I strongly agree of the noble Lord, Lord Sutherland, were accepted. with the challenge raised by the noble Lord, Lord We need to know the view of the Edinburgh Parliament Sutherland, but I think in his normal, consensual, in principle on what it would do—not when it has seen non-polemical way, the noble Lord, Lord Reid of the language but its view of the language produced by Cardowan, got it absolutely right. There may be a fox the Electoral Commission. around, but the Scots are not chickens. They are not stupid. If there is an attempt to rig the question, and Lord Crickhowell: The noble Lord’s question is the advice from the Electoral Commission, speaking particularly apposite as to why this limited reference to its remit as described by the Minister, is dodged or was made when one considers that the Electoral not responded to positively, it would be a considerable Commission in 2009 set out the referendum question down side with the electorate in Scotland. The question assessment guidelines, which included: of the question is very important, but let us not “Is the question written in neutral language, avoiding words exaggerate it. If it is not a straight question the Scots that suggest a judgement or opinion, either explicitly or implicitly?”. are even more likely to give it a very straight answer. 741 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 742

Baroness Liddell of Coatdyke: My Lords, I rise at do it in 1945. Surely, it is not beyond the wit of a this stage in the debate because a woman always likes sophisticated democracy to find a way of giving our to get, if not the last word, at least something near to soldiers, men and women alike, the opportunity to that and it has been a singularly male debate so far. I vote in 2014, the year that marks the centenary of the make that point quite deliberately. If you look at the First World War, when many of our families went to polling in Scotland, you will discover that, in the fight for a United Kingdom. course of this debate about separation, women have The challenge with the order that exists for us is to increasingly become in favour of the union and men acknowledge, as a number of us have, that we should have remained static. Whether that is about “Braveheart” have been given an opportunity to debate these matters or the football, I do not know. The other side of the in this House. It should be recognised that we are a coin is that women are concerned about jobs and their partnership. Those of us who sit in this House are children’s future. They recognise that there are always unelected Members—but many of us have served our those who suffer when there is divorce—and what we time at the other end of the corridor and have come are talking about is divorce. from different parts of civil society in this country. We Let me be blunt. If the First Minister thought that are entitled to a voice, and our colleagues at the other there was a majority for the break-up of Britain, the end of the corridor have a democratic right to that referendum would have taken place by now. We proved voice. It is unfortunate that they were not given that in 1997, with the devolution referendum, how quickly opportunity. I would say, particularly to the noble a referendum could be done. What the First Minister Lord, Lord Stephen, that the Prime Minister was is counting on is either boredom on the part of the either naive or misadvised in the terms that he agreed electorate—and there is a very strong chance that that to in the Edinburgh agreement. The opportunity to will happen—or complacency on the part of those get an agreement that allowed for no jiggery-pokery who favour the union. That has been commented on was there, and I am afraid that he dropped the ball—and a couple of times this evening. There is a risk of it is not often that I use sporting analogies. complacency. I am fed up with taxi drivers telling me that there is no way Scotland is going to vote for the 6.45 pm break up of Britain. There is an assumption that it is I sum up in saying that I support the order. I think in the bag. It is not. the position that we are in is flawed, but let us get on During the Scotland Bill deliberations in this House, with it. Let us get this done and have a debate that is I said—and I am not one for quoting myself but I based on consensus and facts. The Government have a quite like this quote—that we wanted a referendum responsibility there. I asked previously if it would be without jiggery-pokery.As the noble Lord, Lord Forsyth, possible to have some sort of independent arbiter to laid out in his excellent speech, what we are discussing look at the facts that are increasingly being thrown this evening is the potential for jiggery-pokery. We around. Sometimes we hear from the First Minister have had a bit of it before—and this is not a personal facts that are issued as though ex cathedra that are attack. We have had obfuscation on the question of often not subject to rigorous scrutiny. I support the the legal basis of Scotland’s role in Europe; we have order, I recognise much of what the noble Lord, Lord had a situation where Hansard in the Scottish Parliament Forsyth, has said and I think we have had a good has been altered; and we have had misleading figures debate tonight. Please can we just now get on with it? given on further education, to name but three examples. This is a critical decision for Scotland and a critical Lord Pearson of Rannoch: My Lords, I sense that decision for the rest of the United Kingdom. We owe the mood of your Lordships is to move towards the it to all of the people of these islands to make sure that Front Bench speeches, so I shall speak briefly. I it is done on a sound and sustainable basis so that the congratulate the noble Lord, Lord Forsyth, on another day after the referendum each one of us can turn brilliant performance; I think he said it all. However, around and say that we won or we lost, and the other out of what he and other noble Lords have said, I side accepts the decision. would like to put two simple questions clearly to the I support much of what the noble Lord, Lord Minister, as it will save me interrupting him when he Forsyth, has said. I could not have followed him into comes to wind up. the Lobby this evening, so I am glad he is not testing Why did the Government not wait for the advice of the opinion of the House, because I believe it would the Electoral Commission before they brought forward have led to delay. We have heard about the situation in this order? What was the hurry? Secondly, do the Quebec, and I acknowledge what the noble Lord, Government agree that the leading question, “Do you Lord Steel, has said about the separation support agree that Scotland should be an independent country?”, going down, but a week is a long time in politics. Who which other noble Lords have quoted, is not an acceptable knows what will happen between now and the referendum question to put to the Scottish people? in 2014? It is critically important that we put aside petty divisions on these issues, which are much too big Finally, I understand that for many Scottish politicians for the future of this country. the whole prospect of a referendum and independence for Scotland is very agreeable to their political ambition One very important issue that was raised by the and hubris. However, I fear that independence may noble Lords, Lord Reid and Lord Cormack, and have a very unhappy result for the people of Scotland. others, is the question of allowing the vote to be made Therefore, I can only rely on the faith that I have in the available to those in our Armed Forces. I do not know Scottish people that they will not be that easily how they did it in 1945; they must have found a way to bamboozled when the time comes. 743 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 744

The Earl of Mar and Kellie: My Lords, very briefly, wives, sons and daughters—and some of those scars and by way of introduction, I believe the referendum have not yet healed. Let us be under no illusions but will lead to Scotland becoming a better democracy. The that the tone in which the debate is conducted is going process we are involved in at the present moment, and to very important for the long-term relationships. the fact that the Edinburgh agreement was signed in People keep telling us today of the implications of the Edinburgh, is a great improvement on what happened miners’ strike and the differences that arose there, and in 1921 after a ceasefire in July and fraught negotiations I know that both communities and individuals remained in Downing Street led to a treaty that people probably very divided. did not want to sign. The Westminster Parliament has Questions of this nature are extremely divisive, and made progress. constitutional questions, certainly where I come from, I am also mindful of the fact that the original treaty are exceptionally divisive. What we are witnessing at negotiations were held in London in the summer of home at the moment is terribly sad. Sadly, Mr Gerry 1706, and it is a curious phenomenon but the two sides Adams of Sinn Fein, in his new year message, as were not allowed to meet. They had to negotiate from reinforced in an article yesterday, is now trying to separate rooms, sending messengers to each other. We promote a referendum in Northern Ireland. Under the should make certain that we do not remain in that Belfast agreement, the only question, effectively, is, position. At the present moment, listening to the “Do you wish to be part of a united Ireland?”. Putting debate, it does slightly sound as though this House that particular, most divisive, issue front and centre as wants to talk to the Scottish Parliament without meeting your main campaign for the next few years running up its Members. I hope we can continue to make progress to 2016—the 100th anniversary of the rebellion in towards proper democratic discussion. Dublin—is irresponsible to say the least in the present circumstances. When we should be talking about our economy and trying to get young people into work, I Lord Empey: My Lords, the noble Earl is concerned would have thought that talking about a referendum is that people only met at a later stage in separate rooms. the last place anybody wants to be. I deeply regret People in negotiations that I have been involved in that. have been in separate nations, separate continents and different places before we actually got together, so we With regard to complacency, I strongly endorse are well versed in “proximity talks”, which I think was what the noble Lord, Lord Liddell, has just said. If the phraseology that was invented to cover those you have a 50% turnout, 33% can be 66%. You will get circumstances. differential turnouts; I have seen it happen. If one side of the argument feels, “Ach, well it will be all right on We seem in this country, of late, to have developed the night”, but the diehards on whatever side of the referendumitis, because we are looking at a whole argument come out, the percentages in an opinion poll series of them now. Indeed, later this week, we may be are almost an irrelevance. It is who turns out on the offered a menu for further referenda. Not wishing to day that matters. be outdone by the noble Lord, Lord Cormack, the sole English contributor to this debate, I felt it appropriate I share the concerns about intelligibility and all for my part of the world to make a few comments, these sorts of things. These arguments go over people’s because, as noble Lords have said throughout the debate, heads. We have had three terms used in this debate all of us would be affected one way or the other. already: “country”, “state” and “nation”. If you go However, the most important thing is that we are a and ask somebody for a definition, we all slip in and union with component parts, and there is no doubt in out of that language in our own parlance. As an my mind that the people of Scotland have a right to Ulsterman looking across the channel at Scotland, to choose. The job of this Parliament is to ensure that the me, Scotland is a country. It has to be a country; if it choice is fair and that the options are put to them were not, it would be part of the amorphous landmass clearly, as has been said many times before. of Great Britain. If it is not a country, why does it have I will just deal with the order, because noble Lords its own law, traditions and different languages? Why will all have great sympathy with much of what the does it have a history of attitudes, religion and a noble Lord, Lord Forsyth of Drumlean, has said pioneering spirit and all that goes with that? Of course today. However, I think that the noble Lord, Lord it is a country. I also think it is an independent McConnell of Glenscorrodale, who is not in his place country, because it has all those things, which define a at the moment, put his finger on it. Whether we like it country. However, if we get into an argument with or not and whether this Parliament has had enough somebody in the street about whether a country and a time to debate it or not—and I think it has not—the state are two different things, and if we have to go to fact is that the Prime Minister and the First Minister the door arguing and trying to explain the difference have shaken hands. Quite frankly, any departure from between those things, I fear we are some difficulty. that at this stage would have cataclysmic results on the All I can say, with the experience that we have had, implications and how that would be spun in the is that this will be divisive. We have to try to keep the circumstances. It is done, and whether we like it or best humour possible, as the noble Lord, Lord Cormack, not, we have to work with it. said, but not underestimating the downsides and I will also deal with the point of breakdown. When implications—and try to keep the argument as simple we had our referendum—nearly 15 years ago, believe as possible. I sincerely hope that the people of Scotland it or not—I had the task of being co-ordinator for the will choose to remain within the union, because it Ulster Unionist Party’s “yes” campaign. Not only were would have huge implications for us if they did not. It communities divided but so were families—husbands, is their decision, and I respect that, but the playing 745 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 746

[LORD EMPEY] I also hope my noble and learned friend will put field has to be level, with nobody manipulating it, and Lord Steel’s mind at rest. He raised the question of the the question asked has to be a genuine question that currency, and said that Scotland would have to look to makes it clear that they are seceding from the United the Bank of England in the event of independence. I Kingdom. Anything less than that will leave an hope the Government will make it absolutely clear argument. There are still people in Northern Ireland that should Scotland wish to separate from the rest of today who do not accept the referendum result that we the United Kingdom, it will not be allowed to use the had, even though it was won with 71.5%. Because of same currency as the rest of the United Kingdom. If it our cross-community issues, people say, “Oh, well not did, it would be bad for Scotland and it would be bad enough of this group voted or of that group”. I can for the rest of the United Kingdom. So let us lance that think of nothing worse or more corrosive than an boil now. I hope my noble friend will make it absolutely argument over the process. I sincerely wish the people clear that Scotland will not have the same currency in of Scotland well, but sincerely hope that the Government the event of a yes vote. do not allow anybody to wipe their eye in the months ahead. Lord McAvoy: My Lords, this has been quite a The Earl of Caithness: My Lords, as the noble Lord, lengthy debate. Nevertheless, the contributions have Lord Empey, has said, words are important, and I come been very weighty; there is much knowledge and wisdom back to this word “independent”, or “independence”. in this House. I would like to draw your Lordships’ I agree with my noble friend Lord Forsyth—on the House back to why we are here. We are here because hypothetical question that the Scottish Government the Scottish National Party won an electoral mandate would like to pose, I would very much like to vote yes at the previous Scottish parliamentary election. I do because Scotland is, to me, an independent country not like it but I accept the result. It has the right to now within part of the UK. I have been banging on support and advocate a referendum. We in the Labour about the use of the words “separate” and “separatism” Party support this order and hope to get into the rather than “independence”, and must ask my noble debate as soon as possible, rather than be distracted by friend why the Government have used “independence” the many issues that have been raised today. in the order. Proposed new Section 5A, under Article 3 The noble Duke, the Duke of Montrose, mentioned of the order, refers to, an ad hoc organisation that advocated devolution. “the independence of Scotland from the rest of the United The Labour Party, the Liberal Democrat party, and Kingdom”. almost the whole of civic Scotland joined that ad hoc That only encourages the Scottish Government to organisation. The difference between what happened continue using “independence”rather than “separation”. then and what is happening now is that there was a Why are the Government using that wording rather broad consensus throughout Scotland about the need than saying, “Separate from the rest of the United for a Scottish Parliament. The Labour Party supported Kingdom”? That would make what we are all talking that and, with the help of the Liberals and others, we about and what the Scottish Government actually brought about devolution and the installation of a mean much clearer. Scottish Parliament. As soon as you devolve power to I also echo what the noble Lord, Lord Pearson of the Scottish Parliament, that power is there and it Rannoch, said. I have been longing to ask the question, would be foolish to argue and quibble about this and “Why have we got this order now?”. My noble friend that when it clearly has a mandate and the democratic Lord Forsyth said that the Electoral Commission has right to do what they are doing, within generally told him it needs 12 weeks to study the question and accepted conventions. formulate its reply. That is in only three weeks’ time, but A number of your Lordships have mentioned, quite so much of this debate has been about what the Electoral rightly, the flaws within the deal that came about Commission might have said or might not say. Why between the Prime Minister and the First Minister. We have we brought it forward this time? It has been a feel that one or two things could have been negotiated huge disservice to Parliament, and we have not had the a bit more firmly. Having said that, the deal has been sort of debate that we could have had. It leads one to made, that is what we have, and we should move on ask the question put by the noble Lord, Lord Browne. from that. Nevertheless, we should note some points. If the Electoral Commission says, “No, that is a For instance, the Scottish Affairs Committee quite leading question”, what are the legal remedies if rightly said in its report last week that decisions in the the Scottish Government persist with their proposed Scottish Parliament should be achieved by consensus question? and not simply through the use of the SNP’s majority. I keep hearing the phrase “gold standard”. The consensus 7pm that we achieved in the 1980s over the issue of the I want to raise an old chestnut of mine which governance of Scotland should surely be the gold nobody else has raised, and ask my noble and learned standard. I do not want to denigrate anyone’s personality friend, Lord Wallace, what further negotiations he has on this, because that is a distraction that will only had with the Scottish Government about allowing damage the cause of those of us who support the Orkney and Shetland to determine their own future? union. This is hugely important. If England, Wales and There are a lot of issues, such as that of granting Northern Ireland are not allowed to consider what votes to 16 and 17 year-olds. The Scottish Parliament Scotland does, why should the rest of Scotland have has the power to do that. There should be a debate any say in what Orkney and Shetland decide they want about it, but it should not be an issue that prevents or to do? distracts us from scrutinising this order. 747 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 748

On campaign finance and the wording of the question, Again, I echo my noble friend Baroness Liddell. the key phrase should be that the Scottish Government Let us get these issues dealt with. Yes, let us deal with cannot be the referee and a player. Surely the Electoral them and debate them, but the sooner we get on to this Commission will act as an independent overseer of campaign the better. that process? The point so ably made by my noble friend, Lord Lord Wallace of Tankerness: My Lords, I thank all Reid of Cardowan, is that the Scottish people are not those who have taken part in this debate. I thank also exactly backward at coming forward. I do not think my noble friend Lord Forsyth for moving his amendment we will be easily fooled; we will spot any chicanery or which has stimulated so much debate, although I jiggery-pokery that may come from any party during suspect that, even without it, we would have had a this process. Sometimes, we in the political world can considerable debate on the issue. I understand from underestimate the acumen of the public, who keep an my noble friend Lady Garden that there have been eye on politicians. some 20 contributions, including an Englishman, a Welshman, a Northern Irishman and, regrettably, only The wording of the question should be clear, one woman. unambiguous and thoroughly tested by the Electoral Commission. Like others, I should like to see the Lord Crickhowell: There were two Welshmen. Scottish National Party commit itself to accepting the decision of the Electoral Commission vis-à-vis the Lord Wallace of Tankerness: I offer my sincere wording. The noble Lord, Lord Empey, and other apologies to my noble friend Lord Crickhowell. It has noble Lords who mentioned this were right: if we have been a very passionate debate. As the noble Lord, bitter disputes over this, the bitterness will continue Lord McAvoy, said, this is not necessarily where we and the result will not be regarded as legitimate. It is want to be. I do not think that anyone here has advocated absolutely essential that we get legitimacy for that a referendum or, certainly, independence. Nevertheless, result, whatever it is, and that it should be accepted by we recognise and respect the outcome of the Scottish all. election of May 2011 and the manifesto commitment A number of your Lordships have rightly mentioned of Scottish National Party to have a referendum. the quality of the contribution and amendments of I welcome the fact that the noble Lord, Lord Browne, the noble Lord, Lord Forsyth. A number of my colleagues supported the view that the process was being done have stated they agree with much of his position. As I properly. I thank my noble friend Lord Crickhowell as am a bit of a bureaucrat, one of the things I am a member of the Constitution Committee for his concerned about is the practicality of the timeline. It is contribution. I am grateful not just for the most recent clear that, although October 2014 seems a long time report of that committee on this matter but for the away, the processes that need to be gone through report which the committee produced in February last before then are nevertheless considerable and time- year following the consultation which the United Kingdom consuming. If any of these timeline targets are not Government launched. In that report, the Constitution met, the process will be delayed, which would be Committee welcomed the proposal, dangerous. It will seem that obstruction by Westminster “that a section 30 order be made to confer on the Scottish has caused the delay, which would be fatal to the cause Parliament clear competence to legislate for a referendum on of those of us who support the union. Scottish independence”. Devolution means devolution. I am afraid that is From that flow a number of the issues which have sometimes hard to accept and something that we do been dealt with in this debate. It is also fair to point not like. The Scottish people decided that they wanted out that, in its most recent report on the referendum, devolution. I accept it, and it should be accepted. the committee stated: “We welcome the fact that the Agreement reached between the My noble friend Lady Liddell made the point—far two Governments accords with our previous recommendations. better than I am making it so far—by warning that we The question of legislative competence is addressed, it is intended should not allow ourselves to be distracted by all the that the referendum will pose a single question on independence, niggly points that have annoyed us. We have picked and the Electoral Commission will play the lead role in advising fault here and picked fault there. I do not say that the on the referendum”. niggles, doubts and criticisms are not justified, but let That is why I cannot accept the argument that the us solve them; let us deal with them, get them out of outcome of the negotiations was weak, as it has been the way and get on with campaigning. The people of described by some noble Lords. As the Scottish Affairs Scotland are looking for a campaign where the issues Select Committee in the House of Commons said: are discussed, not individual personalities. We can “The Secretary of State and his team are to be congratulated on their willingness to compromise and reach a consensus with then go to the real core of what would happen to the Scottish Government so that the referendum can be held on a Scotland if it separated from the rest of the United basis to which all can consent”. Kingdom. I do not mean that as a negative point or to The noble Lord, Lord McConnell, mentioned the evidence frighten the people of Scotland by saying that Scotland that he gave to both the United Kingdom Government’s cannot or would not exist without the rest of the consultation and the Scottish Government’s consultation, United Kingdom. Of course we could: we could be where he said: economically viable and we could be a separate state. “I hope that both the Scottish Government and the UK But we should say to people that we do not want to be Government will be willing to compromise on all of the key issues separate—to separate from England, Wales and Northern to ensure we have a clear outcome in a referendum and an outcome Ireland, a union that has served us all well, especially that is accepted by everyone as the fair result of a fair campaign”. in two world wars. That is what we sought to do. 749 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 750

[LORD WALLACE OF TANKERNESS] Lord Forsyth of Drumlean: Before the noble and The noble Lord, Lord Reid, said, quite fairly, that learned Lord leaves the topic of the Electoral of huge significance was the fact that it was a single Commission— question. I would certainly find myself in some difficulty if I was to come before the House today trying to Lord Wallace of Tankerness: I am going to come defend an order or a process that had led to an back to it. outcome where there could be more than one question— the so-called multi-option referendum. As the noble Lord rightly said, there is a world of difference between Lord Forsyth of Drumlean: Well, perhaps, when he a referendum where one part of the United Kingdom comes back to it, he can answer the question whether wishes to secede from the United Kingdom, which is a it was ever part of the British Government’s negotiating matter, as successive Governments have accepted, for position to require the Scottish Government to accept that part of the United Kingdom, and one where there the advice of the Electoral Commission on the question. is to be a different relationship within the United Kingdom, with further powers being devolved. That is 7.15 pm an important distinction and it is why I am very glad Lord Wallace of Tankerness: I certainly intend to indeed that what we bring before the House today is deal with that. It is a fair question which has been an order which will provide for a single-question echoed across the Chamber in this debate. referendum. Donations from overseas are dealt with by paragraph 28 It is inevitable in these circumstances that we come of the agreement, which indicates that the rules under to the role of the Electoral Commission. The noble PPERA will apply. PPERA states that donations of Lord, Lord Kerr, asked about the wording in paragraph more than £7,500 must be recorded and declared 8 of the agreement, which contains the reference to publicly and that donations of more than £500 require “intelligibility”. I hope that I indicated why that word individuals to be registered in the United Kingdom. It was used—it is a statutory word, if you like—but of is intended that these rules will apply in this referendum equal importance is the way in which that has been and the agreement has set that out. In other words, it interpreted by the Electoral Commission. Mr John is the same rules as are agreed under PPERA. McCormick, who is the Electoral Commissioner for Scotland, said on 9 November, when the Scottish Government submitted their question: Lord Foulkes of Cumnock: Does that mean that more than £500 can be donated to the campaign from “We will assess the referendum question to see whether voters people in England? find it clear, simple and neutral. If it isn’t, we’ll say what needs to be done”. I shall come to the issue of the question in a moment, Lord Wallace of Tankerness: I understand that that because the other issue, as my noble friend Lord would be the case, yes. Crickhowell said, is the role of the Electoral Commission. My noble friend Lord Forsyth asked why broadcasting Paragraph 12 of the agreement, also referred to by the and mailshots were included in the order whereas noble Lord, Lord Kerr, sets out the role of the Electoral other issues were not. The simple answer to that is that Commission in referendums. It states: broadcasting and the Royal Mail are outwith the “Both governments agree on the importance of the referendum competence of the Scottish Parliament. Legislation being overseen in an impartial way by bodies that can command brought forward by the Scottish Parliament cannot the confidence of both sides of the campaign. The Electoral deal with these issues unless competence has been Commission is responsible for overseeing referendums held under transferred. That particular part of the order transfers PPERA. PPERA gives the Electoral Commission responsibility competence in order for the broadcasting arrangements for: commenting on the wording of the referendum question; and mailshots to be dealt with. registration of campaigners; designating lead campaign organisations; regulating campaign spending and donations; giving grants to My noble friend and many other noble Lords asked lead campaign organisations; publishing guidance for permitted about the nature of the question. Numerous people participants; reporting on the referendum process; the conduct of have found flaws with the question of whether Scotland the poll; and the announcement of the result”. is a country, a state or a nation, as the noble Lord, Paragraph 14 of the agreement states: Lord Sutherland, made clear. I do not stand here to “Both governments agree that the Electoral Commission should defend the question that has been put forward. It is fulfil all these functions in respect of the independence referendum, not my job to defend it; nor would I wish to defend it. with the exception of the conduct of the poll”— It is important that that should be a matter for the which will be done by an electoral management board Electoral Commission, which is why it has been asked which has already been established for local elections to advise. in Scotland and it is widely agreed across that parties The United Kingdom Government recognised in that that should continue— their consultation paper that the Electoral Commission’s “and announcement of the result, and the giving of grants”. role in referendums was to consult on the intelligibility of the proposed question and to report to the UK The reason why the giving of grants is excluded is that Parliament. We would have come under considerable the Scottish Government propose that there will be no pressure and criticism if it had been suggested that the grants of public money to the lead campaigns. That is Scottish Parliament should be treated in a different the nature of the oversight by the Electoral Commission way. I will pick up on this point, because it is quite which has been proposed. central to a lot that has been said in this debate. I will On foreign donations, it is proposed— not go into the personalities, but we know the ability 751 Scotland Act 1998 Order 2013[16 JANUARY 2013] Scotland Act 1998 Order 2013 752 of not only the leader of the Scottish National Party, to ensure that the question that is asked is not a source but in many ways the Scottish National Party itself. of that sour taste in the mouth. Just as we have sought, One thing that they have quite excelled at—those of us as a United Kingdom Government and a United who have been around Scottish politics know this only Kingdom Parliament, to produce a scheme and process too well—is their ability to nurse a grievance and to that will not allow anyone at the end of the day to cry milk a grievance. That is what the noble Lord, Lord foul—“It wasnae fair”—it is also incumbent on the McAvoy, said about the timing of this. We do not want Scottish Government and, above all, on the Scottish to give them another sense of grievance. If we had Parliament to ensure that when they devise the rules, proposed that the Scottish Parliament was in some procedures and indeed the questions for this referendum, way to be treated in a lesser way with regard to a they do not give anyone the opportunity at the end of question after it had gone to the Electoral Commission the day to say “It wasnae fair”. It is important that the than the United Kingdom Parliament was treated, we outcome of this referendum is decisive and properly would have given them cause for a grievance. recognised as having been fair and properly arrived at The noble Lord, Lord Reid, was absolutely right to by the people of Scotland when they cast their votes in point out that this is a question which will come back 2014. to haunt them if they choose to ignore the advice of the Electoral Commission. I know that my noble Lord Pearson of Rannoch: My Lords, is the Minister friend Lord Forsyth said that he did not want this to about to leave the Electoral Commission in his remarks, be two years of picking on points, but it would be or will he address the two questions that I, and the quite legitimate, if an attempt was made to put a noble Earl, Lord Caithness, put to him? biased question, for that to be pointed out and for the Lord Wallace of Tankerness: I had indicated that I political consequences of that to be reaped. However, would not defend the question that had been put I would not wish, and what we have sought to avoid—and forward. It would be appropriate for the Electoral have successfully sought to avoid—is a two-year campaign Commission to indicate that. I was asked about time; in which the United Kingdom Government and as was indicated by the noble Lord, Lord McAvoy, Parliament are in the dock because we somehow or there is a timeline. My noble friend Lord Forsyth another have tried to rig the referendum. That is why it suggested that the legislation for the referendum would is so crucially important that we do not give, and we not come until after the White Paper. My understanding have not given, any opportunity for the Scottish is that if this House, and subsequently, the Privy Government to cry foul and say that we are somehow Council, approve the order next month, the Bill will be rigging the situation. presented to the Scottish Parliament in March. The In an interesting article by John Rentoul in the Bill cannot in fact be presented to the Scottish Parliament Independent in November of last year, in which he until such time as this order has been approved, which praised my right honourable friend the Secretary of is why the timing of it is as it is. State for Scotland, he said: The important point with regard to the question is “This sudden removal of the London Government from the that what has been done by this order, in transferring see-saw meant that Salmond lost his balance. When Cameron the legal competence to the Scottish Parliament, is went to Edinburgh in February to announce that he would not try such that the nature of the question and the advice of to stop the Scottish National Party holding a referendum, Salmond found that the great London counterweight, against which his the Electoral Commission will go to the Scottish career had been built, had been taken away”. Parliament. It is not proper, and it would fuel that It is important that we do not give that opportunity, or sense of grievance, if somehow or another we said that excuse, for a grievance to be mounted. That is one “We’ll give you the competence to legislate for this, but of the main reasons—a key reason—why we are dealing only provided that we can write or prior-approve the with this in the same way as we would deal with a question for you”. That would lead to a very strong question in a UK referendum that had been legislated sense of grievance, and would put us, who want to for by the UK Parliament. argue the case for our United Kingdom, on the back foot in many of the ensuing debates. That answers the question about the referee and the I very much hope that common sense will prevail, player. I take the point made by the noble Lord, Lord and that the sense of achieving a decisive outcome will Sutherland, who came forward with a question himself. prevail with the Scottish Government and Parliament. It is up to people with an interest to make their views As the noble Lord, Lord Reid, indicated, they will pay on this known to the Electoral Commission. Clearly it a very serious political price if they do not do so. would not be appropriate from the Dispatch Box to determine the agenda of the Scottish Parliament, but I Lord Forsyth of Drumlean: Does the Minister really rather hope that Members of the Scottish Parliament mean that it was right for the Electoral Commission will note what has been said about them having an not to give its advice to this House and the other place opportunity to debate this issue. on the intelligibility of the question proposed by the I will make one further point on this, which was Scottish Parliament, and that it would be wrong for us made by the noble Lord, Lord McConnell, and was to comment on it? If we had had the Electoral echoed by the noble Lord, Lord Empey. Lots of harsh Commission’s advice today—it must be provided by 1 words could, and almost certainly will be, exchanged February—quite a long time would have been saved, in the next two years, and there is potential, as the because we would have known what the position was. noble Lord, Lord McConnell, said, for a nasty taste to Surely we have not got to the position where we are so be left in the mouth. That is why there is a responsibility afraid that what we are doing will be misrepresented on the Scottish Government and the Scottish Parliament that we cannot do our work. Of course we cannot 753 Scotland Act 1998 Order 2013[LORDS] Scotland Act 1998 Order 2013 754

[LORD FORSYTH OF DRUMLEAN] Several noble Lords, including the noble Lord, decide the question, but surely it would have been Lord Reid, my noble friends Lord Stephen and Lord entirely appropriate for us to have the opportunity to Cormack, and the noble Baroness, Lady Liddell, posed comment on the question in the light of the independent an important question about the vote for service personnel. advice from the Electoral Commission. The position is that the members of the Armed Forces and their spouses or civil partners are entitled to vote in elections, provided that they are registered to vote Lord Wallace of Tankerness: My Lords, a number either by means of a service declaration or as an of questions are rolled up into that. First, that is not ordinary voter. Members of the Armed Forces will be the obligation of the Electoral Commission—there is able to vote in the referendum if they are on the no statutory duty or anything else for it to provide the register in Scotland either as a result of an address in answer by 1 February. I cannot remember which noble Scotland or a qualifying address showing a connection Lords made the point that your Lordships’ Constitution to Scotland, such as service accommodation in Scotland; Committee had produced a report in a relatively short an address in Scotland where they would be living if period of time, so why could the Electoral Commission they were not in the services; or an address in Scotland not do the same? where they have lived in the past. The same rules apply The task of the Electoral Commission, among other to spouses and civil partners of members of the Armed things, is to go out and sample the question, which is Forces. not something, with all due respect, that the Constitution On the specific point raised by the noble Baroness, Committee intended to do, and neither would we Lady Liddell, service personnel who are overseas at expect it to do so. There is, therefore, a piece of work the time of the referendum who would otherwise be to be done in testing the question for its intelligibility, eligible to vote will be able to vote by post or by proxy. whether it is leading or misleading, whether it is neutral I understand that the Electoral Commission and the or whether it can be understood by those who will be Ministry of Defence run an annual electoral registration asked to answer it in the referendum. I do not believe, campaign to inform personnel and their families in therefore, that there was somehow some obligation on units around the world about such voting matters. I the Electoral Commission to rush that. I can hear the will certainly talk to colleagues in the Ministry of criticisms now if people thought that it had in some Defence in the next round of prompting of information way been rushed. to ensure that they remind service personnel of the Neither my noble friend nor any other noble Lord referendum. will be inhibited from commenting on the report of the Electoral Commission, which will be published and very much in the public domain. I will come to the Lord McConnell of Glenscorrodale: My Lords, will noble Lord, Lord Sutherland, in a moment. There is the Minister check very carefully that that information no doubt that it is a matter for the Scottish Parliament campaign is timed to coincide with the period during to determine. There will be every opportunity for which service personnel would require to register to voices to be expressed as to what the Scottish Parliament qualify to vote in 2014? The timescales may well be should do in the light of the advice from the Electoral such that they would miss deadlines. We would all Commission. appreciate an assurance that such checking will happen.

Lord Sutherland of Houndwood: Simply as a matter Lord Wallace of Tankerness: That is an important of fact, the Electoral Commission has advised me that point, and I take it on board. It is also important to it will publish its report early in February. make clear that service declaration, to which I referred, is now valid for five years, following legislation that took effect in March 2010. Those who have already Lord Wallace of Tankerness: That is helpful. However, made a service declaration which gets them on to the it is important to understand that there is a body of Scottish register will have that for the five years after work that it ought to do, and is doing, before it March 2010, so they will certainly have it for the time publishes that advice. of the referendum. The question has been raised about the franchise. As I indicated to my noble friend the Duke of Montrose, Lord Reid of Cardowan: I am grateful to the Minister it is a matter of primary legislation for the Scottish for that. Knowing how bureaucracy can ensure that Parliament. If it chooses to extend the franchise to the best laid plans gang aft agley, can he ensure that 16 and 17 year-olds, issues will arise out of that; it will there is a distinct recognition in the Ministry of Defence need to ensure that the proper protection is given to that this is different from the normal, annual registration, minors whose names would appear on a roll. That for this reason: you have go to every serviceman and would be the responsibility of the Scottish Parliament woman? From what he said, there may well have to be in any legislation which it brings forward. a process to identify those who have the qualifying I do not believe that that is the thin end of the criteria of having had a residence in Scotland, and so wedge. If only legislation passed by the Scottish Parliament forth. If that process is not started early, we will find, was, we would have proportional representation by as we did many years ago, before we brought in the single transferable vote for English local authority new regulations, that for purely bureaucratic reasons, elections, but I have not seen a great rush in the servicemen and women and their families are not Westminster Parliament to follow the Scottish Parliament adequately informed—especially, as my noble friend in that constitutional development Lord McConnell said, in time. That process has to 755 Scotland Act 1998 Order 2013[16 JANUARY 2013] Health: Medical Innovation 756 start now. It is quite a big job weeding out, if you like, we can defend them much more effectively in an or identifying people, rather than applying a carte uncertain and challenging world when we are working blanche regulation for everyone. together. It is in that spirit that I want to argue that case, and I urge your Lordships to approve the order. Lord Wallace of Tankerness: My Lords, the noble Lord makes an important point. I will certainly ensure Lord Forsyth of Drumlean: My Lords, what a wonderful that his comments and the general sense of the House debate we have had. It is pretty clear to me that there is is drawn to the attention to the Ministry of Defence. a consensus in all parts of this Chamber— bar one, if No doubt Questions can be asked to ensure that we I may say so—about the need to have a referendum live up to that. campaign that is seen to be fairly conducted and where there is no dispute about the result at the end of Finally, my noble friend Lord Forsyth quite properly the day. said that there should be no room for complacency. That was echoed by other noble Lords, including the As I said at the beginning, I do not propose to noble Baroness, Lady Liddell, and the noble Lord, divide the House. I think that that would be a huge Lord Empey. I could not agree with them more. I have error on my part, because it might give the impression said—although I do not think it was from the Dispatch that we are not as united as we are on these matters. Box—that the biggest enemy that those of us who However, I say to my noble and learned friend—we wish to remain part of the United Kingdom have is have been friends for a long time, if opponents, which complacency. We must guard against it, not simply we are not now, although we were earlier in the week; because I want to win—I want to win very convincingly it is very difficult to work out what the nomenclature indeed. I certainly take the point about differential of this week should be—that he has taken a risk, a turnout made by the noble Lord, Lord Empey, and very gamble, on being able to ensure that we get a decent much believe that we should guard against complacency. question and proper rules for the referendum. I am prepared to withdraw my amendment and back his My noble friend Lord Forsyth and the noble Baroness, judgment. If it turns out to be wrong, he can expect Lady Liddell, asked about information. I suspect that some very vigorous debates in future. I beg leave to we will not get a completely neutral arbiter, although withdraw my amendment. some bodies are producing evidence from a more neutral point of view. The noble Lord, Lord Nickson, Amendment withdrawn. who I think is a former chair of CBI Scotland, appropriately raised the pertinent questions that CBI Scotland is addressing to the Scottish Government. Amendment to the Motion The Government have made it clear that we will be Tabled by Lord Forsyth of Drumlean publishing material to provide information, not least about the number of jobs provided by the defence As an amendment to the Motion in the name of industry and what benefits being part of the United Lord Wallace of Tankerness, at end to insert “and Kingdom bring to Scottish security. It will also set out regrets that debate in Parliament on the draft Order facts, which are perhaps currently unknown or often is taking place before the publication by the Electoral just taken for granted. In that regard, it will include Commission of its advice on referendum campaign the importance of our position in the world. Scotland funding and on the proposal from the Scottish is part of the United Kingdom which punches much Government that the referendum question be ‘Do above its weight in terms of our population and because you agree that Scotland should be an independent of our history, to which Scotland has contributed. It country?’, advice which is required to be published will talk about the protection of our citizens. It will by 1st February”. talk about the many economic benefits to the United Kingdom. Amendment to the Motion not moved. The first of those papers will be published in the next few weeks, and we will publish further papers Motion agreed. throughout 2013. I hope that that brings important information, which we will all be able to use in our Health: Medical Innovation arguments for the furtherance of the United Kingdom. Question for Short Debate My noble friend Lord Forsyth and I were both elected to the other place 30 years ago this year, and I 7.39 pm have known him all that time. We have disagreed about a number of issues, not least Scotland’s constitutional Asked By Lord Saatchi future, but I have always respected where he comes from on that and the important issues that he has To ask Her Majesty’s Government what steps it raised this afternoon. One issue on which we can join proposes to take to encourage best practice in medical together is that it is very important that we join innovation. together people right across this Chamber who believe that Scotland is better as part of the United Kingdom Lord Saatchi: My Lords, I express my gratitude to and the United Kingdom is better with Scotland in it; the usual channels for allowing the time for this debate. that we share a common heritage; that we share common I have introduced the Medical Innovation Bill into social bonds; that we have a shared cultural heritage your Lordships’ House. I will not be covering the with, fundamentally, shared political values; and that details of that Bill in this debate; Second Reading will 757 Health: Medical Innovation[LORDS] Health: Medical Innovation 758

[LORD SAATCHI] procedures—are 40 years old. They are also ineffective; follow at some point in the year and we can discuss cancer quickly develops resistance. Not surprisingly, them then. However, this debate may illuminate the the survival rate for such cancers is the same as it was context of the Bill and give your Lordships’ House an 40 years ago—in other words, nought; and the mortality opportunity to consider the whole complex question rate is the same as it was 40 years ago—that is, 100%. of what best practice is in innovation, particularly the This disease is relentless, remorseless and merciless. application of research and knowledge to patient Its treatment is medieval, degrading and ineffective. treatment. Why are we so forsaken? It is said that cancer is so In opening this debate among the judicial and complex that it is beyond the judgment and understanding medical experts in your Lordships’ House who have of the human mind to comprehend its variables. Therefore, devoted a lifetime to this subject—compared to my through ignorance, we kill people unnecessarily. own brutally short experience—a certain humility is If that is true, it is not through lack of trying. appropriate. It will be my privilege to hear many noble Scholars in cancer have long sought general rules Lords who are among the great innovators of our about the world as robust as the laws of physics and to time. I particularly thank my noble friend and his verify statements, propositions and putative facts by team at the Department of Health for their wisdom; the results of empirical studies. Unfortunately, it has Dame Sally Davies, the Chief Medical Officer, for her not worked out quite like that. Instead, we find the viewpoint; the Secretary of State himself for making stubborn fact that, after 2000 years of human progress, improved survival rates his key priority for healthcare; cancer is still outside Newton’s universe where physical and the many patient groups, academics and practitioners laws govern reality. who have contributed their thinking. The Prime Minister himself has encouraged British In the natural sciences, even though, as Popper medical innovation in the context of the global race, says, the closest approach to proof is just a succession and the document on diffusion of innovation in the of unsuccessful attempts at falsification, we can NHS by my noble friend, himself Minister for innovation, nevertheless make statements in the natural sciences, is, if he will allow me to say so, a model of agenda-setting perhaps without finality but with a certain degree of by a government department. probability. If I drop these papers, they will fall to the ground. Tomorrow the sun will rise. In cancer, though, Buoyed up by Bertrand Russell’s view that the record seems to show that once we express opinions simplification is not always obfuscation and often or beliefs or attempt to offer explanations, descriptions serves to crystallise the issues, I will attempt first a or predictions, then error, doubt and uncertainty come simple description of the need, and then a specific to the fore. In cancer you hear it said that, “Every case suggestion of what steps your Lordships may consider is different” and, “There is always hope”. Such well to meet that need. I will concentrate on the most meaning sentiments are not science. There is no hope emotive word in the English language—cancer—and that if I drop my papers they will not fall. These hope to draw wider conclusions from this area. To statements are meant to bring cheer to the desperate, express the need, I am helped by an unexpected source, but instead the effect is the opposite. They bring the Father of the House in another place. In his tribute despair—the dread revelation that cancer is a realm in to Her Majesty the Queen on the occasion of her which science has yet to achieve sovereignty. Diamond Jubilee, he used a striking phrase: In the end, all attempts to place cancer medicine “There is nothing more inspiriting in the whole world than a within the canons of scientific objectivity have failed. beautiful woman”.—[Official Report, 07/3/12; col. 852.] There remains an irremediable tentativeness about the I can amend that. There is no more distressing thing in logically perplexing question of what is the cause or the whole world than a beautiful woman being reduced cure for cancer. Cancer science has not yet found its to a sparrow. Newton. Why? There is a powerful deterrent to innovation Unfortunately, here is the status quo. A woman is at the heart of the current system. Economists would told that her tests are “normal” and to come back in call it a systemic failure. Current law is a barrier to 12 months. She is removed from her home 12 months progress in curing cancer. Under present law, any later and cut and drilled until she loses half her body deviation by a doctor from standard procedure is weight. Wires and tubes are attached to her throat, likely to result in a verdict of guilt for medical negligence. nose, stomach and vagina. Drugs are given to her that Current law defines medical negligence as deviation cause nausea, vomiting, diarrhoea and fatigue. They from standard procedure. As innovation is deviation, open the path for fatal infections to enter the woman’s though, non-deviation is non-innovation. In this way, body and reduce her body’s defences against such infection. the fear of litigation for medical negligence is a roadblock The woman is left for dead, and sooner or later to innovation in cancer treatment. The present pre- the woman dies. The “process”, as it is called, involves eminence in law of the standard procedure provides scenes that would not be permitted in a Hollywood no inducement to progress. The self-interest of medical horror movie. practitioners, as defined, for example, in doctors’insurance I hope that that is a fair description of the need for policies, means that innovation—that is, deviation—is medical innovation. The screening techniques for such a form of self-harm. a cancer are inadequate; no reliable early detection In Clark v MacLennan, an important test case in method is available, and even if it was, it would improve 1983, the significance of departing from an approved the overall survival statistics but not the date of death. mode of practice was treated by the trial judge, J Pain, The treatment regimes, when provided—that is, the drugs, as having the effect of reversing the burden of proof, the cycles of their administration and the surgical so that once the plaintiff established a deviation the 759 Health: Medical Innovation[16 JANUARY 2013] Health: Medical Innovation 760 defendant had to disprove an inference of negligence. 7.51 pm I quote Crawford v Board of Governors of Charing Cross Hospital, 1953: Lord Winston: My Lords, it is both a responsibility and a privilege to be the first speaker after the deeply “The practitioner who treads the well-worn path will usually moving speech from the noble Lord, Lord Saatchi. He be safer, as far as concerns legal liability, than the one who adopts a newly discovered method of treatment”. carries the respect of the whole House for tabling this debate and has our thanks for the way that he phrased In the standard Butterworth text on medical negligence, what he said. I feel that my own contribution will be the authors Nathan and Barrowclough expressed in paltry by comparison, but I thought that it would be 1957 the following view, still applicable today, concerning interesting to look quickly at my own career and think deviation from accepted modes of practice and the of seven points in it where innovation was an issue. ethics of new treatment research and experimentation: Our excellent Minister sitting on the Front Bench cannot be expected to be responsible for trying to “Medical men cannot be permitted to experiment on patients (Slater v Baker and Stapleton) (1767) ... On the other hand the improve innovation in the health service. This is a courts will not press this proposition to a point where it stifles colossally difficult issue; I will explain why I think so. initiative and discourages advances in techniques … a line must be drawn between the reckless experimentation with a new and The first thing I want to refer to briefly is my comparatively untried remedy or technique, and the utilization of involvement in the early days of microsurgery of the a new advance which carries with it unforeseen dangers and fallopian tube. First, that project, which led to about difficulties”. 50 publications, would not have been possible today I hope that we can agree with Lord Diplock, who because the Medical Research Council grant that I got was looking for a better balance to be struck between would not be awarded with the current competition. therapeutic innovation and therapeutic conservatism. Secondly, it is fair to say that I would not have got an He warned of the dangers of so-called defensive medicine: animal licence to practise a surgical procedure, rather than to do it experimentally. There is a neat difference “Those members of the public who seek medical or surgical now in how the regulation is. Throughout, there are at aid would be badly served by the adoption of any legal principle least eight issues that conflict to make innovation that would confine the doctor to some long-established, well-tried difficult. One is regulation; one is infrastructure; one is method of treatment only, although its past record of success might be small, if he wanted to be confident that he would not governance; one is industry and its involvement; one is run the risk of being held liable in negligence simply because he the internal market, supported by both the Labour tried some more modern treatment, and by some unavoidable Party and the Conservative Party; one is clinical training; mischance it failed to heal but did some harm to the patient. This another is teamwork. Lastly and most importantly, would encourage ‘defensive medicine’”— there is the cultural environment. I will come to one that is his phrase— other issue at the end, if I may. “with a vengeance”. The infrastructure for my work with the fallopian tube would not be possible now because I had access I am looking carefully at the time and will therefore then to a workshop in a district general hospital, bring these remarks to a close. Your Lordships will where Dennis Melrose was producing extracorporeal agree that optimal care is evidence-based care. Evidence- circulation pumps to improve heart surgery. That is based medicine is therefore standard procedure for the almost unthinkable now. One of the greatest difficulties protection of patients. However, as your Lordships are I had was in getting industrial support for making the well aware, cancer is the least evidence-based disease microsurgical needles. I could not find a single industry of all. There is great uncertainty: either the evidence in this country that would make the needles. We made does not exist or, if it does, it is not clear what it needles with our own hands, under a microscope, that means. Innovation is therefore more appropriate in were so fine and delicate that they did not fall to the cancer treatment and the consequences of not innovating ground. Unlike the noble Lord’s papers, they actually are greater—poor life quality, followed by death. floated on the air. Eventually, we found a German company which then captured one-third of the world’s I shall end with this. What can your Lordships’ ophthalmic market with those needles. There is a House do—that is the point of this debate—to encourage message in that innovation. the drive towards medical innovation, on which my noble friend has made such a great contribution? The With regard to trying to translate that surgery into advance of science depends upon the free competition the female pelvis, the big problem now would be of thought and thus upon freedom; that must come to governance. What also followed was the issue of having an end if freedom is destroyed. Are the intellectual training in teamwork around, to persuade surgeons to problems of cancer insoluble? I do not think so. What work as a team. That has become more difficult now is more inspiring, apart from a beautiful woman, than because of the internal market. It is very difficult to the quest by scientists to explain the world; to find prove that a surgical procedure works and is innovative, satisfactory explanatory theories—simple theories—and because it is more difficult to collect the cases together to test them? One of them will cure cancer. We should within a health service structure. We have all faced this rise to our feet to applaud the great cancer doctors difficulty for quite a long time. It is not the responsibility and scientists, many of them in this House, who are of any one Government. striving by their own best lights to serve the community. Let us erect statues in their honour or build bridges in The same thing applies, to some extent, to laparoscopic their name, or parks, or avenues, or airports. Let us surgery. I think I was one of the first people to operate encourage them, not frighten them. using a laparoscope in this country. There would now 761 Health: Medical Innovation[LORDS] Health: Medical Innovation 762

[LORD WINSTON] Lord, Lord Winston, mentioned and which others will be a problem with governance; it would be considered mention—so there is hope. I would want to give my risky and unwise, and would take much longer to noble friend that element of hope. innovate. My frustration is with many of our scientists’ With the present regulatory system, it would also inclinations. The means to deliver novel or experimental be impossible to see in vitro fertilisation—your Lordships treatments to patients earlier exists. It is not something probably know that I have certainly more than dabbled that does not exist and, quite frankly, it does not in that—on the books in the way that it is now. It require further legislation. With the support of government would be very difficult to transfer an egg that you and an excellent UK life sciences strategy, we have the fertilise outside the body into a human patient. It means to do exactly what my noble friend wants to see. would certainly take much longer to get permission to We do not need more legislation; we need action. We do that. That is one of the issues. In my own unit, we need regulators and funders to recognise that, while made a whole series of improvements. We improved their approaches are fine for established research pathways the culture media. We demonstrated, for example, the and large populations of patients, they are hopelessly given knowledge that glucose in the medium was inadequate for new and experimental treatments on poisonous to human embryos but not to any other small, stratified populations. animal that was experimented on. We could not change those media now, given the current regulatory framework. There is progress. Both the conditional approval Even the little changes that one could make—the fact scheme and the named patient scheme are important that tungsten light is dangerous to embryos, for example— in the toolbox of clinicians who want to try novel and become increasingly difficult. untried treatments but, frankly, they are rarely used. I could go on and on but I do not want to spend Indeed, perhaps the Minister, when summing up, can more than a few minutes and my time is almost up. It say how often they are used and for what purpose. would now take much longer to get permission for things Perhaps, too, he could tell us what progress is being such as embryonic detection of genetic defects. I have made on the early access scheme, championed in the to declare an interest as somebody who launched a UK Life Sciences Strategy, which would allow access biotech company.One of the problems with that company, to drugs earlier than the current regime permits, especially which might change the whole field of transplantation where the compounds under consideration represent with the use of pigs’ kidneys, hearts and livers, and possible therapies where few alternatives are available. possibly pigs’ lungs, is that it took us more than a year Currently, the Government’s ambition for this scheme and a quarter to get an animal licence to practise and is two to five drugs per year. Does the Minister really do the work on just six pigs. It was quite difficult to get feel that that should be the height of this strategy’s the rodent licence before that as well. ambition? I want to say one final thing. The first experiment I Perhaps offering more promise, as the Science and ever did was as a result of fraud in my unit. I was Technology Select Committee heard in relation to its asked to go in and troubleshoot by repeating an regenerative medicine inquiry, is the issue of adaptive experiment. It was pure serendipity that we found that licensing, an initiative that also appeared in the UK there was probably something wrong, with an infection life sciences strategy. Adaptive licensing offers a flexible in the vagina of women that might lead to the possibility approach whereby regulators, clinicians, patients, the of a virus being involved. We now know, of course, research community and industry are jointly involved that the virus is very well established but I did not in assessing the risks of a given experimental treatment know what it was at the time. That was a long time ago so that a proportionate level of regulation can be but one of the issues with true innovation is that determined for the release of novel drugs to patient serendipity is extremely important. What we can perhaps groups. This proportionate approach recognises, as we best all do together is to see how we might improve the move to more targeted therapies for smaller populations culture in which we do our medicine. where traditional clinical trials will be of limited use, that this approach offers an alternative, more appropriate 7.57 pm assessment of patient risk and benefits; but, again, where is the urgency or ambition? The expert group Lord Willis of Knaresborough: My Lords, I begin that was set up by the MHRA to look at adaptive my remarks by echoing the comments of the noble licences has met only once, in October 2012. Frankly, Lord, Lord Winston. I have been a parliamentarian in if that is the rate of progress, it will be years before we both Houses for some 16 years now and I do not think see this opportunity realised. I have ever heard a more moving, considerate or emotive speech than that of my noble friend Lord Finally, I come to regulation and regulators, a topic Saatchi. I thank him for it. In so doing, I have to say to which I know many noble Lords will return later. that some of the issues that he and the noble Lord, When the Academy of Medical Sciences produced its Lord Winston, have raised—and that others will raise—are report in 2011, the Government promised simplified, ones that the Minister, with his responsibilities, can more unified and smarter regulation. The setting up of begin to address. Last night, I was responsible for the Health Research Authority would herald a new hosting a reception for Children with Cancer UK, an dawn for those who see the regulatory burden— organisation that has been running for 25 years and particularly for scientists, clinicians and SMEs working which began because, 25 years ago, childhood leukaemia at the edge of discovery—as an obstacle to progress. killed eight out of 10 children who suffered from it. Far from achieving that aim, the HRA appears to have Now, 80% of children survive it. That happened through become a very expensive national ethics service. If innovation—through the very things that the noble anything, regulation has become more complex and 763 Health: Medical Innovation[16 JANUARY 2013] Health: Medical Innovation 764 more bewildering. Indeed, as one expert witness revealed ODM that do not have adequate backing through yesterday to our committee, “It is only accessible if clinical research and have not been evaluated by NICE. you know where to look”. Allowing unproven technology to be on an equal Clinicians hoping to use new therapies to save the playing field with technology that has been through lives of cancer patients do not have the time, and often the rigours of clinical research is both unfair and do not have the resources, to meet the demands of well uncompetitive. It will also result in worse outcomes meaning regulators and their plethora of never-ending for patients, lost productivity, fewer savings for the hurdles set up to ensure patient safety. That is the real NHS and reduced incentives for clinical research to be challenge. Without a more agile, unified and flexible carried out in the UK. regulatory system, which puts patients at its heart, all Will the noble Earl look again at the ODM attempts to move novel and often untried treatments implementation plan to ensure that the benefits to into patients will fail. In that case, we will fail my both patients and the NHS are realised through proper noble friend in his cause. consideration being given to clinical research? There are so many complicated rare conditions that need new ways of treatment. When medical innovation has 8.03 pm come up with the answer, it is vital that patients get the Baroness Masham of Ilton: My Lords, I thank the correct treatment for their condition. Nothing is more noble Lord, Lord Saatchi, for asking this question so frustrating for the developers of a treatment and for movingly. I feel honoured to be taking part in this the patients than when commissioners will not pay, debate with such experts. Having a cousin who is thus holding up treatment and ongoing development. research-minded and is a professor, now living in It is heartening to witness the great support that so Australia, I want to raise a few points that we have many people give to medical research and innovation discussed. through charities. Many Britons see their clinical research careers take off after they leave the UK. Some of this is due to 8.08 pm the internationalisation of medicine and the growing Lord Ribeiro: My Lords, I add my thanks to my awareness of how valuable exposure to overseas best noble friend Lord Saatchi for bringing this debate on a practice can be during specialist training. It is a two-way matter that is very personal to him. I chair the research street, so some of the UK’s best specialists come from panel of the Pelican Cancer Foundation based in overseas. Basingstoke. One of our members, Professor Bill Heald, It seems that clinical research comes a poor second pioneered a new technique for removing rectal cancer after the pressing needs of an overloaded health service in the early 1980s. Total mesorectal excision, or TME, have been met. From clinical medical student through reduces the incidence of a recurrent tumour in the resident positions, specialist registrar training and on pelvis after surgery. Despite many publications, to first consultant position, it seems difficult to find presentations and lectures on his technique, it was not the time and support for clinical research and development. adopted in the UK. The Scandinavians, however, were Apart from a few fortunate centres, where seniors have more convinced of the benefits, and Professor Heald managed to establish a strong funding stream for developed a national training programme with them, R&D, resulting in research fellow appointments, research which was adopted in the Netherlands, Norway and support staff and so on, there seems to be a poor Sweden in the early 1990s. It became part of routine match between the R&D effort and the acute medical practice, resulting in improved outcomes for rectal front line. More regional expert centres should be cancer patients. It was to take another 10 years before better funded. Steps seem to be needed to recognise TME became accepted as a routine procedure and where there is already established leadership and to best practice in the UK, despite it having been first make use of it. pioneered in England. Innovation in healthcare and innovation in clinical So how can we speed up the take-up of new procedures? research have a symbiotic relationship. Without research How can we accelerate translational research? In 2007, there can be no innovation, as there will be no evidence the national cancer action team and the Department base with which to inform clinical practice. Without of Health introduced the LAPCO training programme that clinically proven innovation being acted on, we for teaching laparoscopic colorectal surgery. The Royal will see no advance in clinical practice, no improvement College of Surgeons promoted and delivered the in patient outcomes and less incentive for clinical programme through its new skills centres and, now, research to be carried out. through specialist hospitals throughout England. This initiative proved so successful that I was recently asked There seems to be frustration from some bodies to give a keynote lecture in the United States to offer involved in innovation. For example, Innovation, Health our experience of teaching and disseminating laparoscopic and Wealth promised to: colorectal surgery to the surgical community, and our “launch a national drive to get full implementation of”, methodology for assessing skills and accrediting oesophageal Doppler monitoring, competence to practice the procedure. The invitation “or similar fluid management monitoring technology, into practice letter said: across the NHS”. “It is my understanding that the UK has done this in a more This is an admirable policy, but again reality is not proactive and safe fashion than we have in the States”, living up to intention. Not only is that implementation an acknowledgment that central direction, as occurred drive delayed; it has been scaled back. The NHS is with TME in Scandinavia and now with LAPCO, can also allowing the inclusion of technologies similar to produce best practice and innovation. 765 Health: Medical Innovation[LORDS] Health: Medical Innovation 766

[LORD RIBEIRO] nurse that I may well need an insulin pump in another For a national programme of laparoscopic colorectal 10 years or so in order to be able to maintain good surgery for cancer, we will need about 460 surgeons control of my condition. trained in the technique. This is because we have a The prevalence of diabetes is growing, and the large NHS caseload, and it is required to meet the period of time over which people need treatment is NICE guidelines on laparoscopic bowel resection. We growing substantially. I am, therefore, concerned that currently have half that number. We need to be able to many people with diabetes, who might benefit considerably release doctors and surgeons to train innovative from the provision of insulin pumps, do not currently procedures. This requires incentives, the support of find them available on the NHS. A survey not very the base hospital when they have to go away to learn long ago showed that the average rate of insulin pump techniques, recognition of their efforts through clinical provision for people with type 1 diabetes in this country excellence awards—which I am pleased to say have was 3.7%, compared with the then 12% benchmark been reinstated—and other marks of recognition. These recommended by NICE and in comparison with other efforts definitely show that you can improve the outcome countries, such as the USA, where such provision is for patients, and the benefit to them is real. estimated at 35%, and Sweden, France and Germany, In report in 2001, From theory to theatre: Overcoming where it is estimated at 15-20%. barriers to innovation in surgery, the Royal College of Good diabetes management is, of course, crucial to Surgeons recommended that surgical trainees should reducing diabetes-related complications, such as be encouraged to participate in ongoing research and hypoglycaemic episodes and potentially fatal conditions to work with multidisciplinary teams. With the support such as heart disease and strokes. Greater use of of CMO Dame Sally Davies, who was mentioned technologies such as insulin pump therapy can deliver earlier, the Royal College of Surgeons has committed much better outcomes for patients. It can also help to to funding five surgical trial centres from 2013, with reduce cost savings for the NHS by improving diabetes the aim of recruiting thousands of patients for these control, reducing primary care contacts, and reducing trials. As surgeons, we are often criticised for not hospital admissions and hospital outpatient contacts. getting involved in randomised control trials; the comic However, the provision of insulin pumps is very opera referred to as “surgeons trying to do research” patchy and inconsistent. Many healthcare professionals perhaps refers to this. are not trained in supporting patients on insulin pump It is necessary today for us to carry out these trials therapy and, as a consequence, are reluctant to recommend because the number of trials carried out in surgical it as a treatment option. The position seems much discipline comprises less than 10% of those done in better in Scotland. The Scottish Government announced cardiology. The trials units will provide expertise to in February 2012 that they would invest over £1 million develop multi-centre surgical trials, offer technical support to deliver insulin pumps to patients with diabetes. and speed up the delivery of clinical trials. As surgeons, Over the next three years, their NHS boards will we are trying. increase the number of insulin pumps available to In order to speed up the process, from theory to under-18s, in addition to tripling the number of pumps theatre, it is vital that we involve patients in decisions available across Scotland. about innovative treatment. Patients must understand Patients must of course be given accurate information the potential risks so that they are able to give full, about self-managing their condition, which should informed consent. The process for doing this is in include advice on insulin pumps as a treatment option. place—we have study design, ethical approval and It is imperative that healthcare professionals are trained patient involvement—but it needs to be expedited. We in supporting patients to use insulin pump therapy. all know how long it takes to get approval to start a new trial. It is important that we do not have to wait the length of time that Professor Heald in Basingstoke 8.17 pm did to introduce a procedure which has clearly saved Baroness Morgan of Drefelin: My Lords, I congratulate many patients’ lives. the noble Lord, Lord Saatchi, on securing this debate. I, too, found his introduction moving, so I thank him for that. 8.14 pm I declare an interest as chief executive of the medical Lord Rennard: My Lords, I first declare my interest research charity Breast Cancer Campaign and, perhaps through the work that I do with the British Healthcare more importantly for this debate, honorary president Trades Association, as in the register. However, the of Cancer52, an alliance of more than 60 organisations— issue that I was asked to raise in this debate is specifically many of which are very small and unstaffed—working about the provision of insulin pumps. to address the issues faced by those with less common I am one of the 2.9 million people in this country cancers who make up 52% of UK cancer deaths, already diagnosed with diabetes. As a type 2 diabetic, I including ovarian cancer. was first told that my treatment would only be in the The promotion of a vibrant research environment form of tablets, but in common with many people who is absolutely essential for the development, evaluation are diagnosed at a relatively early age with what they and take-up of new medical innovations in our NHS. used to call “mature onset diabetes”, I found that after Research and innovation are vital if we are to ensure 10 years or so I also needed insulin injections every better outcomes for cancer patients, which is why I am day. Now, as our understanding of dealing with diabetes so proud that we in this House worked hard and grows, I am advised by my excellent diabetes specialist successfully to ensure that duties to promote research 767 Health: Medical Innovation[16 JANUARY 2013] Health: Medical Innovation 768 and innovation were included in the Health and Social horror for patients of illness and treatment, and the Care Act 2012. It is now equally essential to make sure difficulty that many patients and their families face that these duties are embraced by the new NHS structures while in the shock of realising that life is not as they as they take up their responsibilities in the coming hoped it would be and has changed in an instant. months. I know that there is much debate about how The noble Lord, Lord Saatchi, has highlighted the that will happen. push and pull of the dilemma of innovation in medicine. I turn to an issue that is of concern to many We have a push from research councils to innovate; we patients: the use of drugs which are off-patent and not have a push in academic medicine, principally in secondary licensed for a particular indication, but which could be care in specialist services, to innovate, to think and to helpful in new and innovative ways. This is a little instigate new trials; and we have a push from industry related to concerns that the noble Lord Saatchi has to come up with developments. However, we have a raised through his Private Members’ Bill. Many noble pull, which is a risk-averse system that is frightened of Lords will have seen the news yesterday about proposals taking the decision to go with something that looks as from the National Institute for Health and Clinical if it might be high-risk or to go with the unknown. It is Excellence to recommend the use of the drugs tamoxifen that tension between the push and pull that I think we and raloxifene for the prevention of breast cancer in are caught in the middle of today. Perhaps this debate high-risk patients. The barrier to using tamoxifen for is really timely, because we need to think about how chemoprevention in the UK arises from the fact that we should handle that. the drug is now off-patent and its original licence does not cover the use of tamoxifen for chemopreventive I was involved in some of the early trials to which purposes, despite the drug being licensed for this indication the noble Lord, Lord Willis, referred, of children with in the United States for a number of years. Because leukaemia. I remember some of the children who were existing UK legislation only allows the original owner in the arms of the failing drugs; I remember them as if of the drug to seek to change the indication—even it were yesterday. I can see in my mind’s eye the room when a drug is off-patent and there is therefore no and the face of the child who then died and having to incentive for the drug company to seek a change at this talk to those parents. However, it was through those stage—this means that medical professionals who may trials, through every child taking part, that the face of wish to prescribe the drug for their patients must do so childhood leukaemia has completely changed. I sincerely outside the existing licensing agreement. This is a say, thank God that it has, because there was a terrible significant disincentive and we could argue that it is toll before those trials were properly instigated. stifling innovation. Another problem for patients, when they are faced Indeed, the draft guidelines issued by NICE yesterday with a disease for which there does not seem to be a are clear. They state that the prescriber of these drugs conventional treatment on offer, is that in desperation should follow the General Medical Council’s good they go off and try to find their own treatment and practice in prescribing medicines and take full therapy. It is worth remembering that about half, or responsibility for their decision. This means that medical possibly more than half, of patients with malignant professionals must clearly document that the patient, disease of any type seek help and treatments outside or whoever has the authority to give consent on the of conventional medicine, going for complementary patients’ behalf, has provided informed consent to or alternative medicine—often taking treatments for receive the drugs for chemopreventive purposes. which there is no evaluation. Some years ago, it was a Although the NICE guidelines are designed to great difficulty for my team to cope with people who circumvent this problem and make health professionals were coming in and saying that they were taking more comfortable with prescribing these particular shark’s fin. The ecological disaster, the cruelty to drugs for chemoprevention, the best way to eliminate sharks and the total lack of evidence of any efficacy any remaining doubts for prescribers would be for a made us come up with a form of words that we could new avenue to obtain licences for new indications for use to dissuade patients from ever even thinking along drugs where there is a clear evidence base of clinical those lines and discuss with them their use of alternative benefit and when they are off-patent. Therefore, would therapies or medicines. Some things that they pinned the Minister tell us what avenues the Government are great hope on really had no benefit. exploring for closing this existing shortfall in the current I also congratulate the noble Lord, Lord Saatchi, legislation? Have the Government perhaps explored for having focused our minds on the patient in the any possibilities for public bodies such as NICE to context of themselves as a person and their whole family. seek new licences for off-patent drugs where the He put me in mind of a patient I had at one time, who manufacturer has no incentive to do so? He might was in exactly that situation. She was a young woman want to write to me on this, but it would be very with a rare disease who was clearly dying. We discovered interesting to hear how this kind of innovation—which that her children had been fundraising at the school is looking at existing medicines and discovering how gate for a treatment that they had found on the internet. they might be used in different ways in different conditions This treatment had been shipped over from America —could be made a more nimble, innovative process. and she wanted it given to her. There was no evidence base that I could find for it, and I discussed it at length with her and her family, documenting everything—pages 8.22 pm and pages of documentation of those conversations. Baroness Finlay of Llandaff:My Lords, I, too, congratulate She knew she was dying but she wanted to try it the noble Lord, Lord Saatchi, for having described, in because she knew that her family could live afterwards a very moving and clear speech, the reality and the if she tried it; but if she had not done so, they would 769 Health: Medical Innovation[LORDS] Health: Medical Innovation 770

[BARONESS FINLAY OF LLANDAFF] achieve results within a decade. Pharmaceutical companies not have been able to. Therefore, I undertook to take should be switching from blockbuster drugs to the whole responsibility on myself for administering personalised medicines targeted on small patient groups it, equipped myself with drugs for every adverse event based on cancer genes, but we suffer from the fact that that might occur, and gave her one dose. There was no these pharmaceutical companies are also enduring an adverse effect but there was no benefit either, but after era of change, which is typified by the theme of next her death her children, who had fund-raised at the month’s Pharma Summit in London—namely, “Should school gate, were able to cope better and were glad pharma cut its losses and get out of R&D?”. that she had at least tried it. How can we turn our knowledge into targeted We have a system in medicine called the N of 1 trial, drugs? How can we bridge this innovation chasm? The which is underused and should be used, particularly commendable Strategy for UK Life Sciences, which where we have rare conditions and genetic disorders, was produced by the Government, urged us to develop and where we could document and should be documenting infrastructures that connect academics, industry, investors, what we do. There is a problem, though, for those who clinicians and the NHS. Thanks partly to a longstanding instigate such trials in getting them published. I would relationship with our sister organisation, the Royal like to address the publication difficulty in my closing Marsden Hospital, that is our model. It has worked remarks—the difficulty of pooling all the little bits of well for years in terms of innovation and outcomes. It information that can come from different aspects of is vital for it to be taken up in as many places and as medicine. many fields as possible. I think that the N of 1 trial will have an increasing We also require more investment in drug discovery place as we get further into rare genetic conditions and and development carried out by non-profit groups, personalised medicine, but the NHS, with its push to especially early-stage drug projects that are too risky embrace research as a core component, is going to for industry and can be advanced quickly only in the have to look at a kind of buffer zone for funding the lab and with patients. In addition, we require further additional bits of work that need to go along with re-evaluation of regulations and pricing. Patients must doing that properly.We also need to have good publication have earlier access to drugs. I am told by institute of negative results and we need to publish all the clinicians working in the Royal Marsden that the results, including all the adverse effects, when trials European clinical trials directive handicaps their work fail. Unless all of those emerge, we really will not and impedes innovation. The Minister will know that, know the full picture and what we are dealing with. unfortunately, clinical trials carried out in the UK, as I make a plea that in this push-pull with which we a percentage of the world total, have fallen from 6% to are faced in medical innovation, there is a real push to 1.4% during the past 10 years. have a repository for the results of some of these N of Drug discovery and development is the UK’s leading 1-type studies, and a repository for negative results innovation-based business. It is the UK’s most successful and those that are currently going unpublished. manufacturing industry in terms of the surplus it provides for the balance of payments. However, expenditure 8.28 pm does not necessarily correlate with inventiveness. I have always upheld the Schumpeter line that innovation Lord Ryder of Wensum: My Lords, I congratulate is the critical part of economic change, yet Governments my noble friend on the clarity and strength of his have a duty to create the right climate for innovators, speech. I am conscious of the medical distinction of and they have plenty yet to do. many noble Lords here tonight; I participate as a layman. For the past eight years I have chaired the Institute 8.33 pm of Cancer Research, an organisation driven by innovation. The institute, a college of the University of London, Baroness Warwick of Undercliffe: My Lords, when employs about 800 scientists from more than 40 countries. I read just before Christmas the cri de coeur of the According to the Times Higher, we came top of the noble Lord, Lord Saatchi, about the lack of progress most recent research assessment exercise. We prize a in finding cutting-edge treatments for cancer, I had global-leading drug discovery unit and are proud that huge sympathy, which has been reinforced by his over the past six years alone, 16 of our drugs have passionate speech today. I remember a similar sense of been nominated as candidates for development. Two anger, frustration and bewilderment at the lack of months ago, an innovation debate took place at the speedy diagnosis and then effective treatment of my Royal Society. Professor Paul Workman, head of cancer mother’s cancer, albeit some years ago now. therapeutics at the institute and the RSC’s entrepreneur I hoped that the science would move on. I knew of the year, was a speaker. He argued that, although how good our scientists and our clinical researchers we are making strides against cancer, we are failing to were, so there was no question in my mind that our convert our knowledge into outcomes. To be precise, scientists could produce results so long as they were our knowledge of the genomes of cancer cells should given the means and the encouragement to do so. be allowing us to develop targeted therapies for patients— Sadly, the improvements have been patchy and, in what is known as personalised medicine. some cases, stubbornly resistant. A few months ago, I There are many reasons why we are not advancing noted in a debate on pancreatic cancer that there had at greater speed. Biotech companies are diminishing been virtually no change in treatments over the past because venture capitalists demand profits in three 20 years, although it is about not just drugs but early years, when in our sphere it is often a struggle to diagnosis and access to surgery. 771 Health: Medical Innovation[16 JANUARY 2013] Health: Medical Innovation 772

There are many reasons why progress has been less In my last few seconds, I should like to raise a speedy than we might have hoped. The noble Lord, related topic. I learnt this morning of a proposal in the Lord Saatchi, has identified one important area—the European Parliament that the minimum duration of a effect of medical negligence claims and the risk-averse medical training programme should be increased to culture that they generate—and I wish him good speed six years. This could have serious consequences for with his Private Member’s Bill. graduate-entry programmes in the UK. Medical schools will probably not be able to recruit arts graduates, and Another area often cited as a brake on innovation is surely we need creative people in the profession if we regulation. I declare an interest as chair of the Human want to be more innovative, especially when evidence Tissue Authority. I want to offer some thoughts on shows that they make as good doctors as do science how regulation might be a force for good and need not graduates. Will the Minister take this back to his stifle innovation. It is vital that all bodies involved in colleagues and ask them to do all that they can to the health service do all that they can to facilitate high prevent the requirement being increased in this way quality medical innovation. Innovation in medicine before the vote on 24 January? leads to improved healthcare and quality of life, and can have significant economic benefits. 8.38 pm Sir David Nicholson’s recent report, Innovation, Health and Wealth, provides us with a clear picture of Lord Patel: My Lords, I thank the noble Lord, what needs to change if we are to encourage further Lord Saatchi, for initiating this debate and for presenting innovation in medicine and healthcare. In his report, it so movingly. This ought to be the start of such Sir David makes a passing reference to regulation as a debates. It ought not to be the last debate we have on “top-down pressure” on innovation but, importantly, this subject. I hope he will remain committed to leading he does not identify regulation as one of his six, us in future debates. “barriers to innovation in the NHS”. Some of the treatments the noble Lord described, particularly for some cancers, are medieval and this No one doubts that regulation has value in providing continues to be the situation for some cancers. Treatment assurance for quality, safety and efficacy, and regulation for pancreatic cancer, to which the noble Baroness can sometimes be a driver of innovation. None the referred and of which both my mother and my mother- less, and notwithstanding the exclusion of regulation in-law died, remains the same. However, there is hope. from Sir David’s six barriers, it is clear that some Some novel and innovative treatments are now being regulation, if it is excessive, complex, unclear or inflexible, tried out, such as molecular tagging of drugs to get at can impede innovation. I believe that we should review all cancers that are not amenable to conventional treatment. healthcare regulation in terms of design, implementation There is also nanomedicine for targeting tumours that and enforcement, to ensure that unnecessary barriers are not responsive to current treatments. There are are removed. The regulators should be challenged other technologies that I will come to which could be and, just as importantly, should challenge themselves used to target tumours that are not receptive to to ensure that they are not creating barriers to innovation. radiotherapy. I shall finish with a few words about the approach We should also be slightly more optimistic in this to regulation used by the Human Tissue Authority. Of country about where our science is today compared particular relevance to this debate is our remit relating with 10 years ago. For instance, we have had 12 Nobel to the use of human tissue for patient treatment and Prize winners in medicine and physiology since 2001. the development of regenerative medicines, where we We have to go back to 1998 for the previous one. Not work very closely with the Medicines and Healthcare only that, we have Nobel Prize winners in allied disciplines, products Regulatory Agency.The HTA is very supportive such as Sir Venkatraman Ramakrishnan who won the of research and ensures that effective regulation supports chemistry prize in 2009 for his isolation of the structure good practice and high-quality science which, in turn, of life science-related diseases. leads to improved healthcare. We now have a commitment from the Government There is no doubt that some of the regulation in to investing in science and having strategies in life this area is complex, primarily because the science sciences and other fields. We should give credit for itself is complex, as is the legislation underpinning that. We hope that innovations will come but we must that regulation. Complex does not have to mean also ensure that regulation is proportionate and is not burdensome, however. At the HTA we believe that a bureaucratic. We must always keep an eye on that. key role of a regulator is to provide clarity and to support organisations in working through the quality There is also the question of investment in translational and safety regulations. I urge the Minister to reinforce medicine. One example is in the field not of drug the point that, if done well, regulation can yield significant therapy but in cell therapy where big pharma will not benefits. It provides assurances about quality and that invest and small countries do not have the money to products can be used safely for patient treatment. It do early translational research. There are many examples. promotes faith in the efficacy of products. Will the One is the use of embryonic stem cells as a therapy for Minister confirm that regulators should be committed age-related macular degeneration. Currently, the first- to doing all that they can to support innovation in phase translation of that is being funded through medicine? This is certainly true at the HTA, and I research councils and charities. The Government should hope that the Minister will encourage all regulators in be funding early-phase translation. What plans do the the sector to have such an enabling approach. Government have to help with this? 773 Health: Medical Innovation[LORDS] Health: Medical Innovation 774

[LORD PATEL] a clear obligation to ensure that high-impact innovation I come now to technological advances and I use the is quickly adopted and diffused across populations example of focused radiotherapy which is often referred and healthcare systems, and that the recognised therapies to as “cyberknife”. Of course it is not a knife: it is that have been shown to have important clinical benefit focused radiotherapy. You cannot use conventional and are approved by NICE through its guidance radiotherapy for targeting tumours because you will mechanisms are applied more broadly across populations do more harm to normal cells. Currently, to make that for which we are responsible. available to a patient who is not amenable to conventional We have also heard in this debate that there are treatment, the doctor will have to ask for finances important hurdles to innovation in our healthcare from commissioners or PCTs. They do not have the system. These hurdles are regulatory, they are potentially expertise to know whether that is indicated for that legal and they are cultural in terms of the way that patient or not, and they may or may not fund it. The clinical practitioners and others work in the National Government should be commended for accepting in Health Service and healthcare systems more broadly. the Health and Social Care Act that all NHS organisations With regard to regulation, I should like to ask the must have an awareness of research, but it is difficult Minister about one particular problem that we have to find money to fund an expensive, one-off treatment. heard about today—the European clinical trials directive. However, that is sometimes the only thing that is I know that Her Majesty’s Government are involved in available to the patient. We should support such negotiations at the European level to overcome some technologies and make sure that whenever we find that of the problems associated with this directive, which they are not supported, we do something about supporting has been damaging to clinical research in our country. them. Will the Minister confirm that he will expect Is the noble Earl able to give an update on the progress commissioners to look at such treatments and innovations that has been made there and on what changes might in a more favourable way and provide the funding that be made to this regulation in the future? individual patients require? These treatments are expensive. With regard to the legal problem, the noble Lord, I again thank the noble Lord, Lord Saatchi, for Lord Saatchi, identified case law which suggests that initiating this debate. We should debate some of these there may be anxiety in clinicians’ minds about innovating issues at length at the Second Reading of his Bill and I when it comes to the individual patient in front of wish him luck with that. them. This may indeed be a very important problem 8.44 pm and something that needs to be addressed. As we have heard in this debate, it needs to be addressed in a Lord Kakkar: My Lords, I, too, thank the noble sensitive and careful way to ensure appropriate innovation Lord, Lord Saatchi, for having introduced this important and to ensure that clinicians who are in a position to debate with so much courage and with such intellectual innovate do so effectively but that any deleterious power. In doing so, I declare my interests as Professor effect is not allowed to take place. of Surgery at University College London, as Chair for Then there is the question of culture. This is particularly Clinical Quality in our academic health sciences centre, important because much of the debate today has UCL Partners, and as an active clinical researcher. focused on what the views of clinicians and researchers, Innovation is absolutely at the heart of improving the healthcare system and indeed the Government clinical practice and outcomes for our patients. It is may be on innovation. However, we must also look at only right that patients, their relatives and the public expect innovation from the patients’ point of view, as well as the profession and government to do all they can to that of their relatives. They are right to expect that ensure, first, that the research necessary to develop when they need it most innovation, wherever it is, is innovative treatments and diagnostic strategies is promoted responsibly applied to the management of their case. at national and local levels, and that, once we become In all the important work to drive innovation, research aware of innovation—be it through research in our own and development of biomedicine that has been achieved country or anywhere else in the world—it is quickly in our country so far, we must be sensitive to the fact identified, adopted and placed in clinical practice. Her that we may not be meeting the expectations of patients— Majesty’s Government have placed a particular emphasis our fellow human beings—when they are at their most on this. Driving a research commitment in the Health vulnerable, and therefore more may need to be done to and Social Care Bill for the first time, ensuring an drive an improved culture for the adoption of innovation obligation on the Secretary of State for Health to promote and the improvement of practice in our country. research and development in the NHS, was an important statutory development. We have the commitment of funding through the National Institute for Health 8.49 pm Research, the biomedical research centres and their Lord Turnberg: My Lords, it is clear that we are all associated units, and the academic health science centres, enormously grateful to the noble Lord, Lord Saatchi, which all promote early-phase, experimental and clinical for introducing this very timely debate. It was impossible research in our healthcare system. not to be moved by his remarkable personal story, and However, Her Majesty’s Government have also I respect and admire the motivation that lies behind recognised the problem of adopting the findings of his desire to see the best possible treatments being that innovation and diffusing it more broadly across made rapidly available for patients. He has certainly the healthcare system and across larger proportions stimulated a wide-ranging debate. and populations of patients. The recent report, Innovation, I declare an interest as a trustee of the charity Health and Wealth, has identified the need for the Ovarian Cancer Action and as a one-time practicing development of academic health science networks with clinician. We have heard from a number of noble Lords 775 Health: Medical Innovation[16 JANUARY 2013] Health: Medical Innovation 776 about the time-consuming, bureaucratic regulatory This debate has been invaluable in setting out a set pathway that new drugs have to go through, and we should of problems that really deserve our attention. The do something about that—I hope that the noble Earl need to be able to speed through the availability of might comment. However, I want to concentrate on novel therapies is vitally important, and we must do how it might be possible to bypass this normal route something about the regulatory burden. However, so to approval, and to give patients a drug that has just far as the use of innovative treatments is concerned, I come out of research. I shall limit myself to cancer patients. am not yet convinced that we need a new law to We know that the Government are committed to achieve what we want. We should concentrate on embedding research in the NHS, although we are a spreading information about what novel treatments little way off delivering fully on that holy grail across are emerging across the whole of the service, what the whole of the NHS as yet. However, it is the case treatments are available in our cancer centres, and that novel candidate drugs for cancers are being developed ensuring the rapid transfer of patients to those centres. all the time, and are being used for patients in many I very much look forward to the noble Earl’s response major centres around the country. At the Imperial and I hope that he will say something about many of Cancer research laboratories that we heard about, the the other problems mentioned today, such as streamlining Christie hospital in Manchester, the Beatson Institute regulation, availability of cancer funds and replacement in Glasgow and centres in most other cities new drugs of those funds by some other source. I believe that we are being developed all the time. The £200 million owe an enormous debt of gratitude to the noble Lord, cancer fund has been invaluable in making them available Lord Saatchi, for raising the debate, and for giving me for patients. What will happen to this funding when my moment in the sun on the Front Bench. the source dries up, as I believe it might? It is a tragic fact that, despite some remarkable advances, there remain many cancers that have proved terribly resistant. 8.55 pm Ovarian and pancreatic cancer, for example, creep up The Parliamentary Under-Secretary of State, Department on patients with vague symptoms or none at all, so of Health (Earl Howe): My Lords, my noble friend that diagnosis is often made too late. Lord Saatchi introduced this debate most compellingly The point is, however, that as novel treatments and very movingly, and I thank him for bringing a become available, they can be and are being tried. Of subject of such importance to us and one on which course, there are strict conditions. Novel treatments your Lordships have considerable expertise, as this can be given to individual patients only during clinical debate has amply shown. trials or on a named patient basis, where patients are Let me start, as many speakers have done, by focusing made fully aware of the risks and dangers as well as on the NHS. The unique and integrated nature of the the fact that the treatment may or may not help them. health service has brought many advantages. Since the They must give their informed consent. Then, the best NHS was established in 1948, innovation has brought conditions for giving the treatment must be available. incalculable benefits for patients. Treatments have been Those involved in the research, who understand the improved, as has health policy. Inequalities have been possibility of adverse side effects, should be available, reduced. Productivity has been increased. However, as should the laboratory facilities to monitor the patient’s while the NHS is recognised as a world leader at response. These are the conditions under which it is invention, the spread of those inventions within the reasonable to give novel treatments, and they are just NHS has often been too slow, and sometimes even the the ones that are provided by the NHS in our major best of them fail to achieve widespread use. It still cancer centres around the country. takes an estimated average of 17 years for only 14 per It should be clear, too, from all of this that it is cent of new scientific discoveries to enter day-to-day difficult to provide these conditions outside major clinical practice. This is not acceptable. Patients have centres, particularly in private hospitals where the the right to expect better health, better care and better expertise may not be available. Consultants there are value from their NHS. often on their own, and do not have the full back-up We need to make sure that our staff can get the that would give them confidence. They may feel vulnerable best, transformative, most innovative ideas, products and unwilling to take the risks to which they would be and clinical practice spread at pace and at scale so that exposed. Furthermore, private funders may be quite every patient benefits. That cannot happen without unwilling to fund untried treatments or the extra tests innovative minds working with the best resources in a needed to monitor the patients. creative and supportive environment. As the noble I come to the problem described by the noble Lord, Lord, Lord Winston, reminded us so powerfully, Lord Saatchi. It is clear that we do not currently lack research is an essential part of the innovation pathway. the ability to try out novel treatments within the NHS, The Government’s investment in basic health research and I have described the best conditions under which through the Medical Research Council underpins they should be and are being given. However, there are invention, and our investment in applied health research problems of continuing funding, with particular difficulty through the NIHR underpins evaluation. Translation in private hospitals and in some district general hospitals of research is also vital for innovation to progress which lack the facilities. In those hospitals, doctors along the pathway. I hope that the noble Lord, Lord and their patients need to be made aware of the Patel, will be pleased to know that the Government limitations that exist. When the possibility of a novel are investing a record £800 million over five years in a treatment arises, patients should be offered the prospect series of NIHR biomedical research centres and units. of transfer to a centre where the relevant research is These are translating scientific breakthroughs into going on and the treatment is being given. better treatments for patients. 777 Health: Medical Innovation[LORDS] Health: Medical Innovation 778

[EARL HOWE] innovation, training and education and healthcare Demands on healthcare continue to rise for now delivery—exactly the issues highlighted by the noble and the foreseeable future. We must meet those demands Lord, Lord Winston. They will improve patient and from within our current real-terms funding, while at population outcomes by translating research into practice, the same time improve quality. Accelerated change is developing and implementing integrated healthcare not so much a goal as an absolute necessity. This services. My noble friend Lord Saatchi will be glad to means that doing more of what we have always done is know that our ambition is for every NHS hospital to no longer an option. We need to radically transform be part of an AHSN. the way in which we deliver services. Innovation is The noble Baroness, Lady Masham, expressed her only way in which we can meet these demands. Spread view that clinical research was somewhat of a poor of innovations in large disaggregated organisations is relation in comparison to delivery of services. We have notoriously difficult. It is one of the biggest challenges done a great deal to turn that situation around. Through facing the NHS. Systematic bottlenecks come with the its integrated academic training programme, the NIHR territory.To make things harder still, technology adoption has taken a lead in reversing the decline in clinical can be very complex, often requiring significant and academic careers. Around 250 NIHR academic clinical disruptive reorganisation. New methods can require fellowships and 100 NIHR clinical lectureships are different expertise and mean new training, while care now available annually for medics. Last month we pathways have to be overhauled and existing procedures announced the award of five new NIHR research decommissioned. There can be financial barriers or professorships in the second competition for these issues of silo-budgeting. Of course, if we are to change awards, and a third round is under way. this there have to be effective and efficient ways for innovations to reach the patients who need them. This The noble Lord, Lord Winston, my noble friend must be across the NHS. That is why implementing Lord Willis and the noble Baroness, Lady Warwick, the recommendations in Sir David Nicholson’s report, focused on regulation and the varying degree to which Innovation, Health and Wealth, is crucial. It set out a it can be a force for good. I listened with concern to delivery agenda for spreading innovation at pace and what my noble friend Lord Willis had to say about the scale throughout the NHS. Its programme is designed Health Research Authority. He is so up to date that I as an integrated set of measures that will together probably do not need to tell him this, but the House support the NHS in achieving a systematic and profound may be interested to hear that the HRA is collaborating change in the way in which services are delivered. with other regulatory and advisory bodies, for example the MHRA, to create a unified approval process for The innovation landscape before the publication of the approval of health research and to promote consistent IHW lacked transparency and accountability; there and proportionate standards for compliance and was variable compliance with NICE technology appraisals, inspection. This should reduce the impact of regulation and the picture was confused and cluttered with layers on research-active businesses, universities and NHS of organisations seeking to serve as gateways for trusts; it will improve the timeliness of decisions about interaction between the NHS, academia and industry research projects and hence improve the cost-effectiveness partners. Value for money for patients, the NHS, UK of their delivery; and it has the clear support of the plc and healthcare partners was, I have to say, doubtful Academy of Medical Sciences’review of health regulation and innovation was not a central priority throughout and governance. the system. IHW seeks to overcome barriers to innovation that have built up over decades, and aims to deliver My noble friend Lord Ryder rightly focused on long-term, sustainable change embedded right at the earlier access to drugs. That is one of the reasons why heart of the NHS. To do that, we need not only to we have introduced the cancer drugs fund, as the noble change structures and process but, as the noble Lord, Lord, Lord Turnberg, was kind enough to mention, of Lord Kakkar, reminded us, to change culture and £600 million over three years. Clinicians can now behaviour—and this takes time. proscribe the cancer drugs that they feel their patients will benefit from, and 23,000 patients have already Innovation is a top priority for the new NHS. This benefited from it. I will write to him on the future of was most recently illustrated by the publication of its the fund. planning guidance on 18 December which clearly stated: “All NHS organisations should demonstrate how they are My noble friend Lord Willis referred to adaptive driving innovation and developing delivery mechanisms for long-term licensing. This is a subject in which I have taken a success and sustainability of innovation in their health economy”. personal interest. It is an important area but, I would To spread ideas right across the NHS means working say, one in which there are many complexities. He is collaboratively with all those who have an interest. I quite right that the MHRA has convened an expert am completely in agreement with my noble friend advisory group to consider matters such as this, and I Lord Ribeiro on this. This is why we want to see a attended its meeting last October. However, we need more systematic delivery mechanism so that innovation pharmaceutical companies to come forward and nominate spreads quickly and successfully through the NHS. candidates for adaptive licensing. So far, despite asking, This can happen in a number of ways, in particular no such candidates have been proposed, but we are through Academic Health Science Networks, or AHSNs. pressing forward in that area as fast as we can. The NHS needs a stronger relationship with the scientific My noble friend Lord Ryder also referred to genomic and academic communities and industry to develop and personalised medicine, an area of major importance solutions to healthcare problems and get existing solutions in the delivery of personalised medicine, as he said. spread at pace and scale. AHSNs present a unique My right honourable friend the Prime Minister announced opportunity to align clinical research, informatics, on 10 December that the ambition of the UK is to 779 Health: Medical Innovation[16 JANUARY 2013] Health: Medical Innovation 780 achieve a paradigm shift in the development of high ownership of the agenda. The IHW programme is throughput genome sequencing. Our ambition is to bringing together a community of leaders at different sequence 100,000 patients and have a small number of levels in the system who will work together over the contracts in place to deliver this from 2014. From a next few months to build commitment and ownership standing start, I think that is going to be an impressive in the NHS, to ensure that innovation really is at the achievement, and we are on track to deliver it. heart of the way the NHS does business. My noble friend Lord Saatchi took us very movingly As so often, time is my enemy. I have a number of to the subject of cancer, and a number of other noble other things that I would like to have said if I had had Lords have also spoken about it. I fully recognise that, more time, not least to my noble friend Lord Rennard, with cancer, screening and the identification of symptoms the noble Baronesses, Lady Masham, Lady Finlay and are vital, and perhaps the single most important thing Lady Morgan, and, indeed, others. If they will allow, I that will improve outcomes. I will write to my noble will write to them all and to other noble Lords whose friend about this, because all is not lost in this area. We questions I have not answered. have cause for hope, contrary to what he said, not least I believe we can point to a great deal of progress in ovarian cancer, where there has been a slow but being made at a time of great change in the NHS, but steady improvement in one and five-year survival rates much more needs to be done to deliver the improvements over the past few years. we need. We must not be complacent, and I am not. We owe it to patients, the public and our stakeholders My noble friend Lord Ribeiro rightly focused on to achieve that systematic adoption and diffusion of the slowness of adoption of techniques developed in innovation that I have referred to. We are committed the UK. I agree that that is the problem. It is one that to a future in which innovation is a core function of we are trying to address, but it is a matter of culture, the NHS. That will help us achieve our overall aim, which, as I have said, takes time to change. In addressing which is to have health outcomes as good as any in the long-term culture change, we are seeking to make world. innovation at pace and scale everybody’s business in the NHS. People throughout the service have to feel House adjourned at 9.09 pm.

GC 241 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 242

their properties. The private rented sector accounts for Grand Committee about 17% of all stock at the moment; this is forecast to rise to 20% by the time of the next general election. Wednesday, 16 January 2013. Which? estimates that tenants pay £175 million a year in agency fees. So it is a big industry, affecting the most basic of consumer goods—that is, homes—but it Enterprise and Regulatory Reform Bill is not well run or well regulated. Committee (8th Day) Indeed, the industry is actually completely unregulated. Relevant documents: 9th and 10th Reports from There is ample evidence of rogue agents in this field. the Delegated Powers Committee. Luckily, there is also lots of evidence of good agents. In fact, just as estate agents have to sign up to a redress 3.45 pm scheme, so 60% of letting agents—those who are members of the professional association ARLA: the Association of Residential Letting Agents—choose to Amendment 28ZH belong to a redress scheme. However, 40% of letting agents are not members of a redress scheme because Moved by Baroness Hayter of Kentish Town membership is voluntary. 28ZH: After Clause 62, insert the following new Clause— We want all letting and managing agents to be “Letting agents etc. members of a scheme and thus covered by a code of (1) In section 1 of the Estate Agents Act 1979 (estate agency work), conduct or by the RICS “Blue Book” of standards. for “to which this Act applies” substitute “and in subsection (1A) The amendment is supported by the two residential below to which this Act applies. property ombudsmen: Ombudsman Services and the (1A) This Act also applies, subject to subsections (2) to (4) Property Ombudsman. The latter, Chris Hamer, has below, to— noted that with 40% of agents outside a redress scheme, (a) things done by any person in the course of a business there is a, (including a business in which he is employed) pursuant to instructions received from another person (in this “significant risk for consumers who use such … firms. That risk section referred to as “the client”) who wishes to let or arises from a failure of the firm to follow accepted standards of have the letting of an interest in land managed (for operation and customer service as laid down in … [the] code; and example, the collection of rents on his behalf)— … exposes the landlord or tenant to … financial loss either through there being no protection of client money if the firm (i) for the purpose of, or with a view to, effecting the fails, or because … funds have been misappropriated”. introduction to the client of a third person who wishes to let an interest in land; or The Property Ombudsman’s workload with letting agencies has increased 200% in the past five years—up (ii) after such introduction has been effected in the course of that business, for the purpose of securing 25% last year alone. Some of that represents the the letting of the interest in land; or increase in agents who are joining voluntarily, but it is (iii) for the purpose of, or with a view to, managing the the economic situation forcing more people into the letting of the interest in land on behalf of the private rented sector that is leading to more complaints. client; or However, a quarter of the complaints referred to the (iv) for the purpose of, or with a view to, block Property Ombudsman could not be handled because management of interests in land; and the letting agent was not a member of the redress (b) management activities undertaken by any person in the scheme. course of a business (including a business in which he is The other ombudsman, Lewis Shand Smith, who is employed) in connection with land or interests in land.”” chief ombudsman at Ombudsman Services, has stated: “Protection for the consumer in the lettings market is patchy Baroness Hayter of Kentish Town: My Lords, this is which in turn leads to confusion. There is also an inequality in unfinished business for me. As the then chair of the that those buying and selling residential properties are protected Property Standards Board, I failed miserably to persuade and have access to redress, while those renting in the private the previous Government to do what I am now asking, sector do not. A more robust and comprehensive regulatory framework and comprehensive access to independent redress will but I feel I might have more success with this one. both protect and empower those in the PRS [private rented The purpose of these amendments is, first, to bring sector] market”. letting agents into the Estate Agents Act, thus enabling These ombudsmen are seeing the problem grow day the OFT to ban agents who act improperly; and, by day. Research undertaken by Which? and by RICS secondly, to require all letting and block management bears this out. One in five tenants and 17% of landlords agencies to join an ombudsman’s scheme, which would said they were dissatisfied with their letting agents. give tenants and landlords the possibility of redress. Indeed, landlords’ customer satisfaction score for letting This is already the case for estate agents under the agents was sixth from the bottom across 50 markets Consumers, Estate Agents and Redress Act 2007 and and tenants’ satisfaction was second from the bottom. we simply want to extend this to letting agents, as was Half of consumers were unaware of or could not demanded by Mark Prisk in 2007. I will make the case remember if their agent was a member of a professional in three ways: first, the evidence of need due to the size body and the vast majority of them believed that of this sector; secondly, the number of complaints; letting agents are required to abide by a code of and thirdly, the industry’s support for this move. practice, despite that not being the case. However, nine First, the numbers: about 3.5 million people rent out of 10 believe it should be compulsory for agents to privately, two-thirds of whom go through letting agents. register with a regulatory body and meet a code of Over 1 million landlords use letting agents to manage conduct. GC 243 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 244

[BARONESS HAYTER OF KENTISH TOWN] One of the UK’s largest estate agents, Knight Frank, It is not just tenants. Landlords are hardly more has also written to endorse this statement. sophisticated consumers than tenants. In fact, only This is a king-sized roll call. The industry is completely one-third checked whether their letting agent was a signed up to the initiative. Indeed, it is one that it has member of a professional body. So tenants are not in a long wanted, as have others such as the Resolution position to choose the agent and landlords often make Foundation, which wants all letting agents to be members bad choices. It is not simply that tenants and landlords of an ombudsman scheme and brought under the have nowhere to go with complaints if there is not a Estate Agents Act 1979 so that the OFT can ban those redress scheme. It is also that, because letting agents that act improperly. There is a major mischief at the do not have to be a member of a redress scheme, they moment as an estate agent banned by the OFT can cannot be banned for bad practice, they do not have to open up the very next day as a letting agent. Charities, provide indemnity insurance, they do not need a published campaigners and the industry support my amendments. complaints procedure, there are no client protection I turn now to the governing parties. In their policy rules and there are no entry requirements or qualifications. document, Decent Homes for All, the Liberal Democrats, It will come as no surprise to the Committee that noting that the numbers in the private rented sector Shelter, Crisis and Which? support these amendments, now equal those in social housing and are set to as does Boris Johnson, mayor in this city, and Sir overtake the public sector by 2020, describe how, Robin Wales, Mayor of Newham, whose borough has driven the debate on regulation of the private rented “a minority of bad … letting agents are a blight on the [private sector. The noble Lord, Lord Borrie, who is, unfortunately, rented] sector … bringing PRS into disrepute”. unwell today and unable to be with us, is also very The Liberal Democrats therefore support, supportive of these amendments. He was the first “regulation … to ensure that … people are protected from director of the OFT, which would gain some powers unscrupulous or incompetent landlords and managing agents”, under one of these amendments. The noble Baroness, by promising to, Lady Greengross, who sat through our last session “require all letting/managing agents to be on a national register when we did not reach these amendments would also and … to set up a mechanism whereby bad agents may be like her name associated with them. removed and therefore prevented from practising”. We know that those who represent tenants and These amendments provide that mechanism. landlords want this change, but what of the industry? I turn to the other part of the coalition. The then The industry is absolutely behind this amendment. opposition MP and now Housing Minister, Mark Lucy Morton, who has been described by the Telegraph Prisk, tabled amendments to the 2007 Consumers, as, Estate Agents and Redress Bill when it was going “the queen of London’s rental market for 30 years”, through the House. His amendments, as I am sure the told that paper: Minister has recognised, were virtually identical to my Amendment 28ZH. That is because he said that that “It is shocking that so many letting agents remain unregulated”. amendment would amend the Estate Agents Act 1979 The Chartered Institute of Housing wrote to me to extend the definition of estate agency work to that it, include residential lettings and management. Some of “believes that the private rented sector deserves adequate … the scandals in this market include charging both the regulation … to protect the increasing numbers of people … in landlord and the tenant for the same service, charging the sector ... Currently, the regulatory arrangements … fall short of customer expectations with … nearly 40% of … agents not for simple procedures already covered by a landlord’s part of … [the] regime. CIH supports these amendments … management fee, and charging exorbitant fees for [which] would … offer a redress scheme and extend the Estate basic functions. He went on to say: Agents Act … to include … letting and managing”, “As a Conservative, I am instinctively cautious about arguing agencies. for more regulation. However, as a chartered surveyor and a constituency Member of Parliament, I know that we need to put They are not alone: the Residential Landlords lettings on the same regulatory footing as sales. The fact that the Association, the British Property Federation, the Royal National Association of Estate Agents, the Royal Institution of Institution of Chartered Surveyors, the Federation of Chartered Surveyors and the rest of the industry agree shows that Private Residents’ Associations, the National Federation the measure is long overdue”.—[Official Report, Commons, of Property Professionals, the Association of Residential Consumers, Estate Agents and Redress Bill Committee, 24/4/07; Letting Agents, the National Association of Estate col. 192.] Agents, Southern Landlords Association, the Institute I have to confess that my party then proceeded to of Residential Property Management and the Association defeat his amendment. However, with this amendment, of Residential Managing Agents have all asked me to we have a chance to implement the amendment tabled let the Committee know that they support these by Mr Prisk in the other place. I beg to move. amendments and that they support mandatory membership of a redress scheme in line with estate Baroness Gardner of Parkes: My Lords, I support agents. They have written that they, the amendment, but I do not think it goes far enough. “believe that the regulatory framework in the lettings market … I shall go on to talk about that in a minute. The noble offers limited protection for the consumer with approximately Baroness has raised some interesting points and I was 40% of lettings agents outside of regulation … The current … rather cheered to hear about her lack of success with framework … costs business money, hitting many micro-businesses and sole practitioners … particularly hard. This amendment will the Labour Government because I am finding the provide consumers with clarity and … protection … raising same at the moment with the Conservative Government standards across the rental sector, without adding unnecessarily as regards the regulation of managing agents. I should to business costs”. say at the outset that that is what I think is missing GC 245 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 246 here, and I hope to bring forward an amendment on service charges to the residents. Labour does not seem Report to cover the regulation of managing agents of to care too much about this because it believes that it leasehold properties. is middle-class people—there are plenty of us here—who The noble Baroness mentioned the private rented have leasehold properties. However, those affected are sector. I am aware of what that is, but unfortunately not all middle class. Some people have no spare money; we still seem to be unable to deal with the invisible they have lived in a place for a long time, the lease private sector, which is quite worrying. I meet people might even be nearing its end, but it is their home and all the time who are being forced out of a bedsit or they want to stay. Suddenly, they find that the costs something because the rent is being put up. The landlord have increased enormously, there is no transparency does not even declare that he has any tenants—much and they have no idea what the money is being spent less use any letting agents—and when the tenants try on. The noble Baroness mentioned rogue letting agents. to find another place to go to, just a simple room, they The rogue managing agents are perhaps even worse are joining a huge queue of people. The rent is increasing because they often take out insurance policies through even as they wait for their opportunity to get a room. companies that are owned by their freeholders or head lessees, who are taking 50% of that insurance premium back themselves. There are proven cases of this happening, 4pm so I am not talking out of the blue. I was interested to read Labour’s declaration that it I do not mind going on a bit because the noble is going to protect tenants, but all Governments should Lord, Lord Browne, went on for such a long time at be looking at some way of dealing with this situation. the previous session of the Bill on Monday that I I understand that some authorities are going round to could not believe that anyone could manage to do so. check whether a place really is available and unoccupied It demonstrated to me that there is no time restriction or whether it has these illegal tenants. However, one at this stage of the Bill. I am sorry that you are all reads about the cases in Acton where landlords have stuck with a dose of it. Perhaps I am making up for built sheds and filled them with 10 tenants who are the lack of opportunity to address this at my Question living in almost subhuman conditions. The landlords today. are now being caught up with, I believe, but how could The list of those who support the amendments is this point have been reached in this country? It is impressive. The British Property Federation is always because of the desperate housing situation. We definitely cited as being opposed to mandatory systems. However, need more housing, and what we have we need to it has written to many people—I have seen the letters— handle better. I have great hopes that the present saying that it is not opposed to those systems. This is a Housing Minister might be encouraged to look into misapprehension under which the previous Government ways of making things better. and this one seem to be suffering. I make it clear now Rogue agents were mentioned and, sure enough, that the British Property Federation, which is a very there are rogue agents in everything. This, again, is big and powerful organisation, is in favour of proper why I very much favour regulation of all sorts of regulation of these bodies. That is very important as agents, rather than just letting agents. This amendment, the federation is hugely influential in this field. It is which would make it mandatory to be part of a very important that this redress scheme should become redress scheme, would at least be big progress. At mandatory. If a high proportion of bodies already present, the figures for the scheme mentioned by the belong to it, the only ones you are going to catch are noble Baroness, Lady Hayter, are correct, but it is those which have no intention of offering redress. It entirely voluntary. The fee to belong to the scheme would be very good if they were obliged to be part of and be part of the ombudsman system is £150. If you such a scheme. are any sort of an agent at all, surely £150 is only petty I emphasise that I will come back with an amendment cash for your business. The scheme is very effective for of my own about managing agents. The noble Baroness, those who need to use it. All complaints are free—you Lady Oppenheim-Barnes, who attended the Committee can bring any issue up and it costs you nothing. The until the very last minute of the session on Monday maximum award that has been made against anyone night but cannot be here today, feels very strongly has been £25,000. It is therefore an effective scheme about the managing agent issue. She might speak on and is not frightening for people. Nevertheless, the that point on a future occasion but I know that she proposals in the amendments would be good and I supports the general principle of the measure and is very much support the idea of a mandatory redress very pleased that managing agents have been included scheme. However, it should apply to managing agents, in the definition. I strongly support the measure, not estate agents and letting agents—all these categories. just on account of the redress scheme but because the Nothing demonstrated the situation more clearly definition has been widened to cover these most important than today when my Question became such a flop. issues. Noble Lords had no idea what the leasehold valuation tribunal was doing. I am waiting to receive a letter Baroness Howe of Idlicote: My Lords, I wish to back because the Minister said it was going to be focus my remarks on the R-word—redress—rather replaced by some other system. I would like to know more than on the regulation side. Here before us, in whether that will work better. the excellent amendment of the noble Baroness, Lady People are now at the stage where they are in Hayter, is an opportunity to do something simple but danger of forfeiture of their homes due to disputed clearly important which should have been done years cases in the leasehold valuation tribunal where, win or ago—that is, to close the redress loophole in property lose, the landlord is charging his costs back through lettings and management. The more one reads and GC 247 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 248

[BARONESS HOWE OF IDLICOTE] I very much hope the Minister and the coalition learns about this issue, the more surprised one is Government will be able to accept the very reasonable about how we got into this muddled position that we and carefully defined amendment moved by the noble are in today, with one department—BIS—taking a Baroness, Lady Hayter, not least in view of what a different view from another—Communities and Local Minister in his role—Mark Prisk, now the Housing Government. Minister—tried to do on a previous occasion. As we have heard, change will be achieved by Lord Deben: My Lords, the longer one has been in bringing letting agents and those who manage leasehold this House—or, indeed, in the House of Commons—the property within the redress net of the Consumers, more one believes that certain statements are made Estate Agents and Redress Act 2007 and the main irrespective of the Government. Somehow or other provisions of the Estate Agents Act 1979. Those Acts Governments take on a particular view about certain are both BIS Acts but, of course, housing is a CLG things, and regulation is one of those things. It seems responsibility. The key thing that they do is, first, to me that Governments often take a very narrow view require all sales agents to be a member of an approved about regulation and seem to think that if they regulate redress scheme and, secondly, give the OFT negative at all, they will be accused of red tape, of stopping licensing powers to ban or reprimand sales agents for businesses and of every heinous offence. That is the any misdeeds. However, neither Act has any sway over reason why the previous Labour Government refused letting or managing agents, despite them interacting to do this and why the present Government have with consumers to an even greater extent. introduced this Bill without this clause. I do not think that we should see access to redress I hope the Minister will take it from somebody who as regulation. It is a consumer right and one of the has been in elected and now non-elected public life for eight consumer principles. It is true that consumers nearly 40 years that it is the duty of Ministers to stand who are unhappy with their lettings or managing up against that attitude, because here is an issue where agent could go to court to get access to redress. everybody recognises that there is only one sensible However, as we know, very few do. These amendments answer. It is not sensible to have a situation in which are about mandating an alternative to court—alternative those who sell houses have a code that is different from dispute resolution—which means that letting and the code for those who rent houses, because those who managing agents must offer independent ADR to buy or rent houses think that they are working in the tenants, landlords and leaseholders. Therefore, I strongly same context. Indeed, as it becomes more natural to support the intent behind these proposed new clauses. buy and to rent in equal terms—I do not mean in From the consumer perspective, they would mean that numbers, but that people make those decisions—we consumers with a complaint, after exhausting any must help the consumer in a sensible way. The only in-house complaints procedure, if there is one, can sensible way is the way so eloquently put forward by take that complaint to an independent body approved the noble Baroness when she pointed out that this is by the OFT or its successor. This ADR will most likely not regulation but consumer rights. It is the possibility be an existing body such as the Property Ombudsman, of a consumer having a perfectly reasonable way of which already covers most sales agents, although I ensuring that they get fair do’s when they go to court. believe that there are other schemes as well. It is very important for us to press this. I am What is the impact of this loophole? Surely it does speaking because I am a strong deregulator. I do not not make any sense that a consumer who has a problem believe in the degrees of bureaucracy that we have with a sales agent when selling, or even buying, a managed to land on business. In my own business, I house has access to an independent complaints body, am conscious that there is a whole series of rules and but if that same consumer—landlord or tenant—has a regulations that restrict the number of people you take complaint about a lettings agent over a rental property on and certainly stop the expansion of British industry or a problem with a managing agent who looks after and a lot of things that can be done. This has nothing their block of flats, they may not have access to to do with that. The only people who can dislike this independent ADR. While it is true that many, possibly light regulation are those who have every intention of a majority, of lettings managing agents are voluntary misbehaving. When one reads that list of people who members of the Property Ombudsman—we have heard are supporting this, it is very hard to think of any that already from the noble Baroness, Lady Hayter—there responsible, respectable body, apart from the Caged are around 6,000 firms of lettings agents that are not Birds Society, that is opposed to this proposal. subject to it. I say this to my noble friend. Whatever is in his Why does it matter that we target them? One only speaking notes—and I have a horrible feeling that I has to read the briefing from Which?, along with that could write those notes, because there is a kind of from many other organisations which have already parallelism with what I myself was given in the past, been mentioned, to find the answer. The sector’s problems and was often willing to ignore—I hope that he will as outlined by the noble Baroness, Lady Hayter, and say to himself, “Least said soonest mended if I can’t other speakers—and I am sure many others will continue give way”. If he cannot give way, some anodyne references in this vein—speak volumes. I shall not extend my would enable him to go back and say to the powers time by reading out the Which? report giving various that be, “This won’t go. This isn’t acceptable”. examples of landlords and tenants who have suffered We must find a way to ensure that rogue letting in this way. Noble Lords will no doubt have a copy agents do not get away with it any more. There is no and can see for themselves. argument that can be put up by BIS that can overcome GC 249 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 250 the simple matter of the rights of the consumer. That Baroness Brinton: My Lords, I certainly will not is probably the elegant way through and I hope that he rehearse the arguments—in fact I have torn up half of will be able to take it. what I was going to say after the excellent opening speech of the noble Baroness, Lady Hayter, on this particular amendment. But I want to report particularly 4.15 pm that when the Liberal Democrats debated our policy paper, Decent Homes for All, we heard of some very Lord Sharkey: I speak briefly and enthusiastically personal examples from members that I found profoundly in support of Amendments 28ZH and 28ZJ. Other shocking. They included one letting agent who had noble Lords have spoken eloquently and powerfully in taken on a policy of no single parents at all, even if favour of these amendments already and I do not they were offering a three-month deposit as a guarantee want to repeat all their arguments, but I stress the real and even if they were happy to provide—which I importance of this proposed measure to people’s lives. would not have been—a separate guarantor. This The absence of any kind of ombudsman scheme for particular letting agent had just decided that single letting agents is in itself an odd situation. It is tempting parents, mainly mothers, were no good. This parent, to say simply that if we can have an ombudsman in particular, had no form of redress at all to that. scheme for estate agents surely it is obvious that we should have one for letting agents. What is in front of us today is an utterly reasonable way of getting that redress. I am grateful to the noble The absence of any such scheme for the private Baroness, Lady Howe, and the noble Lord, Lord rented sector is not just an unfortunate gap in the Deben, for making the point that this is actually much regulatory or perhaps the redress landscape; it is an more about redress and consumer rights. It is rare to admission that can be the cause of real and prolonged see an amendment that is so widely supported not distress. I have some personal experience of this. Two only from within the House of Lords but also in of my children lived in private rented accommodation another place by various people, including Mark Prisk, until recently and for prolonged periods of time. The Annette Brooke and others from the government side. experience has been on the whole often unsatisfactory I hope that even if the Minister cannot give us an and occasionally downright distressing. On frequent instant answer today he will be able to engage in occasions the dissatisfactions and distress were caused discussion with those who have spoken in the debate directly by the incompetence, inattention, procrastination on this amendment prior to getting to Report stage. and venality of the letting agent, and these were not always trivial occurrences. That is not surprising because The Parliamentary Under-Secretary of State, Department we are discussing people’s homes. for Business, Innovation and Skills (Viscount Younger We have heard a careful, well-argued and rational of Leckie): My Lords, it may not surprise my noble case for requiring letting agents to belong to an friend Lord Deben that I do indeed have some speaking ombudsman scheme, but we should not let the rational notes, but I also hope that I can attempt at least to and logical force of the argument blind us to the fact answer the questions that have been raised this afternoon that the current situation can be and frequently is the by noble Lords. I know that these issues have been cause of real emotional and financial distress. We raised before, and I have considered carefully the know that the problem is widespread, with 40% of amendments, arguments and indeed endorsements of letting agents not signed up either to a professional the noble Baroness, Lady Hayter, for regulating the body or a redress scheme. We know that it is the less letting sector, particularly the ones that were mentioned well-off who experience the most dissatisfaction. We this afternoon. She raises a very important issue. can see by looking at the amendments that the problem I fully recognise the noble Baroness’s commitment is easy enough to fix. in championing the interests of consumers in this area The amendment is not simply a tidying-up measure. and take her concerns very seriously. It is helpful that It addresses a real, widespread, distressing and, above she has brought it up in the context of this Bill. I note all, completely unnecessary problem. It is very encouraging and respect the intervention of my noble friend Lord to see that there is widespread support for the proposal Deben in this respect as well. I know that the Housing of the noble Baroness, Lady Hayter, both current and Minister is aware of these concerns but I will raise historic. The noble Baroness has listed the current them with him for further consideration. It is clear supporters and I would like to add my colleagues in from the speech from the noble Baroness, Lady Hayter, the Commons to that list. Annette Brooke put down that he—Mark Prisk, my honourable friend in another an Early Day Motion in the middle of last month place—is aware of the issues that she has mentioned. calling essentially for the measures that are now before The noble Baroness, Lady Hayter, raised the issue us. As for historic support, the noble Baroness has in terms of a need for a mandatory redress to protect noted that as long ago as 2007 my honourable friend consumers, particularly those who are the most vulnerable. Mark Prisk argued forcefully in favour in the Commons. The Government are indeed keen to promote a greater I very much hope that the Minister will see the force use of redress but, understandably, want to avoid in the noble Baroness’s arguments and in those of the increased costs which might fall on landlords and other noble Lords who have spoken and of his colleague tenants which a new mandatory regime would bring. Mark Prisk. I very much hope that the Minister will be While the Government acknowledge that poor practice able to revenge Mark Prisk’s defeat at the hands of the exists in some parts of the letting sector, Ministers previous Administration and accept this important believe that new regulation would be disproportionate amendment. and would drive some businesses from the market. GC 251 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 252

[VISCOUNT YOUNGER OF LECKIE] out by the noble Baroness, Lady Gardner, there is a This would increase costs for consumers and reduce shortage of 300,000 houses in the UK. The letting of the choice and availability of accommodation on offer some of these properties must be effected fairly and to tenants. consistently. I can reassure noble Lords that letting and management I hope that the noble Baroness, Lady Hayter, is agents are already subject to consumer protection reassured and will therefore be prepared to withdraw legislation. For example, the Consumer Protection these amendments. from Unfair Trading Regulations 2008 protect against giving false or misleading information, not acting with Lord Lucas: My Lords, I recognise a Treasury reply the standard of care and skill that is in accordance when I see it. I should be most grateful if the noble with honest market practice or claiming falsely to be a Lord would justify the first sentence of his reply by member of a professional body or approved redress writing to me with the evidence on which that statement scheme. The Unfair Terms in Consumer Contracts was based—that having this amendment passed would Regulations 1999 provide protection against unfair result in higher costs for consumers and a diminution contract clauses, particularly where they are hidden in in respectable firms in the market. That is just Treasury the small print. boilerplate. I very much doubt that they have done the Consumers who are treated unfairly or are charged work to justify that but I eagerly await the Minister’s unreasonable fees by an agent can seek help from their letter to show me that I am wrong. In the absence of local trading standards officers, who have civil and that, I very much hope that on Report we will deliver criminal enforcement powers. The Office of Fair Trading to my noble friend his first defeat as a Minister in the has been investigating practices in the lettings sector House of Lords. As he knows, this will not be a defeat and will be producing a report shortly including for his department but merely for the Treasury and recommendations on how enforcement bodies can therefore one in which we shall all rejoice. work to raise standards. We look forward to considering its report and recommendations. I hope that this particular Baroness Gardner of Parkes: My Lords, we would point will go some way to reassuring the noble Baroness all like to see that reply and I hope that it will be made on the points that she has raised. readily available to everyone. In addition to the protection offered by the consumer protection legislation, it is estimated that around half Viscount Younger of Leckie: Not only will I be very of all agents belong to voluntary schemes which set pleased indeed to reply to a letter that I might receive standards and offer redress if things go wrong. We but I would be delighted to meet to discuss these invited industry bodies to work with us to improve the matters fairly and fully. quality and coverage of self-regulation and in 2010 we endorsed the industry-led SAFEagent scheme. SAFEagent is designed to help consumers understand the benefits Baroness Hayter of Kentish Town: The Minister will of using agents with Client Money Protection, by not be surprised to know that the lady is not reassured. developing an easy to recognise logo. We are aware of I thank the noble Lords who have spoken for their the need for consumer awareness and also the importance support, not only the noble Lord, Lord Lucas, but of ensuring that vulnerable people are well informed, also the noble Lord, Lord Sharkey, the noble Baroness, and indeed are advised as to what to do and where to Lady Brinton and the noble Lord, Lord Deben, whose go for help. ministerial experience I am very grateful for, as well as the noble Baronesses, Lady Gardner and Lady Howe. We have also published top tips for both landlords The problem with the voluntary scheme is that only and tenants setting out the benefits of using an agent the good agents belong. They are the members of the that belongs to SAFEagent or one of the professional Association of Residential Letting Agents, which does bodies offering the right protections. We will continue not just get you in there—it educates you, awards to work with Citizens Advice and other bodies to certificates and does training. Very interestingly, ARLA ensure appropriate information is available. Citizens also gets feedback from the ombudsman scheme to Advice provides help and advice on lettings over the know what is going wrong and help them maintain telephone, online and face to face. In the light of these their standards. The problem with the idea of using existing schemes and the consumer protection legislation unfair contract terms is first that the consumer—whether in place, we have no current plans to introduce further it is a landlord or a tenant—simply does not know to statutory regulation. We are, however, keen to do go to them. Secondly, if an individual trading officer everything possible to ensure that consumers are well deals with something they will probably just deal with informed and empowered to exercise their rights. that one letting agent and there will be no feedback or I was grateful for the intervention from my noble ongoing case. I do not agree that this cost is friend Lady Gardner who spoke most eloquently on disproportionate. The noble Baroness, Lady Gardner the issue of the regulation of managing agents. I am of Parkes, gave the figure of £150 to belong to a aware that several issues have been brought to the scheme: this is not going to put any letting agents out Housing Minister’s attention in relation to letting of business. The Minister also seemed to suggest that agencies and residential leasehold and I am certain if any letting agents did go out of business—and they that managing agents are part of this. I am sure he is will only go out if they are bad and run off with aware of your ongoing interest in this matter, but I will clients’money—this would somehow lead to less property. also inform him of the comments you made today. It will not: they will just go to a decent agency. It does These are important issues to raise—as has been pointed not affect the number of properties on offer to tenants. GC 253 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 254

4.30 pm Viscount Younger of Leckie: The Agricultural Wages I will make just two other points. The noble Lord, Board and Agricultural Wages Committees were set Lord Sharkey, mentioned that, on the whole, slightly up in their current form nearly 65 years ago. The more vulnerable people tended to rent. The figures board was established at a time when there was little from the ombudsman schemes are that the rent of statutory employment protection for workers. Today 70% of the people they see—because some people the situation is very different and all workers are voluntarily belong to the schemes—is less than £1,200 protected by the National Minimum Wage Act and a month. That is for the vast majority of the people working time regulations. Before I proceed any further, they see, so we are not talking about the top end of the I want to reassure noble Lords that this Government market. firmly support the national minimum wage. The Federation of Private Residents’ Associations The Agricultural Wages Board is the only remaining has written to me saying that many of its member sector wage council—all others have now been abolished. associations, which are obviously private residents’ There is now no compelling reason why the agriculture groups, experience huge issues with unregulated letting sector alone should continue to be subject to a separate and managing agents. There is a problem out there, as statutory employment regime. Let me explain why. people have said. This is about consumer rights. I hope that the Minister will think more carefully about this The agriculture industry today is very different. before we bring it back. First, such businesses are often not just dependent on agriculture. Technological developments and increased On the question of managing agents, I do not think mechanisation mean that there is no longer such that I need to declare an interest any more because it is dependency on manual labour in order to carry out so long ago, but I worked very closely with ARMA—the agricultural functions. This has enabled businesses to Association of Residential Managing Agents—when expand and take on other, complementary work. The my Labour Government refused to regulate them, to sectors within agriculture are therefore becoming set up a voluntary system. It will be launched on increasingly diverse and many farm businesses now 23 February. It is working with the managing agents to carry out non-agricultural activities alongside more try to get a system of regulation that is separate from traditional farming enterprises—for example bed and representation so that there will be at least something breakfast, and farm shops, where workers would not there. It will be run by an independent person. The necessarily be covered by the agricultural wages order. chair is a former Member of Parliament for Streatham, Keith Hill. He is completely independent of the managing The agricultural wages order, which is made each agents. year by the Agricultural Wages Board, takes no account Although this is only voluntary, which I regret, at of these changes within the agriculture industry. The least there is some movement on managing agents set process is one of “one size fits all” and this imposes a up by the agents themselves. The good agents want rigid and no longer appropriate structure on what are this, because it is the rogues who are harming. I am in reality nowadays myriad businesses that come under grateful for the support of all noble Lords. They have the umbrella term of “the agriculture sector”. The given me, if I needed it, encouragement to bring this order is overly complicated and its provisions are back on Report. At the moment, I beg leave to withdraw wide-ranging and restrictive, hampering the ability of the amendment. the industry to offer more flexible, modern employment packages. These amendments will end the separate statutory employment regime for agricultural workers Amendment 28ZH withdrawn. in England and Wales and make amendments to the National Minimum Wage Act to bring the agricultural industry within the scope of the national minimum Amendment 28ZJ not moved. wage. The Government will also make amendments to secondary legislation to ensure that agricultural Clause 63 agreed. workers are adequately protected by the working time regulations. The abolition of the Agricultural Wages Board and Amendment 28ZK the associated agricultural minimum wage regime will enable farmers to offer terms and conditions for new Moved by Viscount Younger of Leckie workers that suit their particular circumstances and 28ZK: After Clause 63, insert the following new Clause— take account of the requirements of the specific farming “Abolition of Agricultural Wages Board and related English sector. They will also be able to agree more flexible bodies terms with existing workers by mutual consent. It will (1) The Agricultural Wages Board for England and Wales is make it easier for farm businesses to employ workers, abolished. including taking on new workers, and encourage longer- (2) Every agricultural wages committee for an area in term employment, thereby boosting growth and creating England is abolished. job opportunities. (3) Every agricultural dwelling-house advisory committee for an area in England is abolished. The abolition of the Agricultural Wages Board will (4) Schedule (Abolition of Agricultural Wages Board and also mean that a single employment regime applies to related English bodies: consequential provision) (abolition of all types of activities. This will bring transparency for Agricultural Wages Board and related English bodies: consequential both employers and workers, which is increasingly provision) has effect.” important given the diversity of farm businesses, not GC 255 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 256

[VISCOUNT YOUNGER OF LECKIE] tenure to protected tenants, and therefore the amendments least in the interests of fairness and as the distinction will not in any way jeopardise the position of tenants between agricultural and non-agricultural activities with protected tenancies under the 1976 legislation. becomes blurred. Even within the agricultural sector In summary, these amendments will bring employment there can be confusion as to whether activities are practices in the agricultural industry into the 21st century, covered by the agricultural wages order. For example, enabling sustainable growth for the future. They will where a business packs and trims salad produce that is also remove a number of obsolete public bodies and both grown on the farm and bought in, the packing of contribute to the Government’s wider programme of the home-grown produce is covered by the agricultural public body reform. I hope that, in the light of my wages order, whereas the packing of the bought-in remarks, noble Lords will accept them. I beg to move produce may not necessarily be. There are similar Amendment 28ZK. examples of confusion in the dairy and livestock sectors. Abolition will lift administrative and regulatory burdens Lord Whitty: My Lords, the Minister must realise from farm businesses and enable them to focus on that this is a bit of a controversial item. That is not their core business activity. It should encourage farmers surprising because in their latest impact assessment of to offer more in the way of longer-term employment, the outcome of this measure the Government’s own including the payment of annual salaries. All of this best estimate is a cut in the living standards of rural will encourage the development of a sustainable and workers in England by £236 million over the next prosperous industry for the future. decade. For the avoidance of any doubt, let me offer some Before I get on to the substantive points, of which I further reassurance. Agricultural workers who have have many, I need to make a procedural point. I am contractual rights reflecting the terms of the agricultural not clear why we are debating the abolition of the wages order at the time of the abolition of the board Agricultural Wages Board in this Bill on this occasion. will continue to have those rights until such time as the The amendments were put down two days before contract might be varied by agreement between the Christmas, without any prior warning. The Bill has employer and the worker or until the contract comes been through the House of Commons. There was no to an end. Moving forward, it is important to bear in indication in the House of Commons that the Government mind that if agriculture-based businesses want to retain were going to come forward with this amendment in and attract able and well-qualified people, they need the House of Lords, which is very unusual, and, of to offer remuneration packages that are competitive. course, everybody in the industry—on both sides of We know that the majority of workers in the agriculture the industry and in Parliament—thought that the sector already benefit from terms and conditions that wages board was dealt with at primary-legislation are above the agricultural minimum wage rates. Currently, level under the Public Bodies Act well over a year ago. about 60% of permanent agricultural workers over the To implement that, the Government have to follow age of 22 are paid above the agriculture wages order Section 11 of the Public Bodies Act, which lays down minima. There is no reason why they should find certain stipulations for bringing forward secondary themselves in a worse position in the absence of the legislation. It requires a full explanation to both Houses, board. The Government have asked the Low Pay a proper consultation period, the consideration of Commission to include agricultural workers in its alternatives and a special memorandum to be laid considerations when providing recommendations for before the House before it considers it. Why is this all of the elements of the national minimum wage in before us today when a procedure is already laid out order to achieve the smooth integration of agricultural and it appeared that the Government were prepared to workers in England and Wales. go along that road until very recently? There was no Most of the functions of the 15 Agricultural Wages explanation in the letter we got from the noble Viscount’s Committees in England have now lapsed in practice or predecessor nor has there been any explanation from been replaced by wider legislation. Their only remaining the Minister today. I can think of a couple of procedural active function is to appoint members of the 16 reasons why the Government are in a bit of bother on Agricultural Dwelling House Advisory Committees in this one. One of them is the Delegated Legislation England, which are sometimes known as the ADHACs. Committee and the other one can be summarised by The committees were established under the Rent saying “Wales”. (Agriculture) Act 1976 and their function is to give Under the Public Bodies Act, the Government are advice to local authorities on rehousing agricultural already in serious trouble on a range of ways in which workers. As a result of changes in housing legislation, they have tried to bring forward the secondary legislation. the number of requests for advice from ADHACs has The report of the Secondary Legislation Scrutiny declined significantly, to fewer than 10 in each of the Committee indicates that the Act requires a proper last two years. There is no statutory requirement to 12-week consultation, not the four-week consultation consult an ADHAC and many local authorities happily that Defra has sprung on us, and a full impact assessment take decisions on rehousing without such advice. I followed by a government response to that consultation hope the Committee agrees that these 31 regional and a memorandum to Parliament. The Government committees in England are now effectively defunct seemed to start down that track, but the Secondary bodies and their continued existence at public expense Legislation Scrutiny Committee criticises their behaviour cannot be justified. With regard to the abolition of the in relation to other public bodies on a number of ADHACs in England, I want to assure noble Lords grounds: the lack of robustness of the government that there are no plans to change the provisions in the case; inadequate evidence; an inadequate approach to Rent (Agriculture) Act 1976 which give security of consultation with stakeholders; a failure to consider GC 257 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 258 alternatives; and a lack of arrangements for future is required under the Public Bodies Act. The best monitoring of the outcome. On pretty well all those outcome would be for the Minister to withdraw this counts, Defra and the Government are failing in the amendment. I see that he is not over-inclined to do so, implementation of the Public Bodies Act in relation to in which case I will have to go on to my substantive the Agricultural Wages Board, so it must have occurred points. to the Government that it might be a bit easier to slip The Minister said that there have been massive it into another piece of legislation, almost when nobody changes in the agricultural sector, and he is right. was looking over Christmas. However, it is still a sector and a workforce unlike any However, probably the biggest reason relates to other. It is found mostly on smallish farms with one, Wales. This is, of course, an England and Wales body. two or three employees and comprises substantial As I understand it, the Welsh Government object to its seasonal and casual work, with some sectors heavily abolition. The Welsh Government would like to see a dependent on migrant and seasonal labour. This workforce continuation of statutory provision in agriculture which is uniquely subject to low pay and, particularly in the the Scottish and Northern Irish Governments have seasonal sector, is subject to serious exploitation by decided to have in relation to their own agricultural gangmasters as well as by farmers and growers. sector. Of course there is confusion here. If this was The abolition of the Agricultural Wages Board is a dealt with under agricultural legislation, and as agricultural direct attack on the living standards of 150,000 rural policy is devolved, the Welsh Government would have workers and, indirectly, a lot more because, although equal rights to the Westminster Government and we they do not comprise a legal framework, the Agricultural would have to reach agreement with them on this. Wages Board minimum level and structure are used as a benchmark for rural wages outside the strictly 4.45 pm agricultural area; and, in a sense, the Minister Perhaps some bright spark in the department decided acknowledged that. to deal with this matter under employment legislation. I said that the original impact assessment provided There is a certain logic to doing that as it relates to for consultation—the very brief consultation was woefully wages, but the fact of the matter is that it has been thin—and that is true, both literally and content-wise. dealt with by agriculture departments ever since the In one sense it was a paragon of clarity and honesty. Agricultural Wages Board was set up. Every Agriculture Table 1 of that original impact assessment shows Minister, including myself and the noble Lord, Lord clearly that the sole intention of this measure is to De Mauley, have dealt with the Agricultural Wages remove over the next decade £136 million—in the Board under their Defra or MAFF responsibilities. It subsequent impact assessment that is increased to is a departure to treat it under employment legislation, £150 million—from the pockets of rural workers and in which case it becomes a reserved matter for Westminster. transfer it ostensibly into the coffers of landowners Putting it in employment legislation may get round the and farmers, although I will argue later that that Welsh issue. The Minister did not say so but the outcome may not be the case in practice. In total deletion of various pieces of secondary legislation in employment costs, it involves a total transfer of this Bill allows Wales to have a different solution £236 million. The latest best estimate is £150 million in because it crosses out England and Wales at various wages, £84 million in holiday pay and £4 million in points. However, that is being done in Westminster sick pay, plus associated national insurance costs et legislation; it is not what the Welsh Government want cetera—a total of £250 million. and they were not actively consulted on it. Not surprisingly, the Welsh Minister is extremely angry about the way The only net benefit in that assessment—because in which this matter has been dealt with. To get round that is a strict transfer—is a saving of approximately potential criticism in terms of procedures under the £67,000 to the Government in Defra’s administration Public Bodies Act and to get round the Welsh problem, costs for the AWB. Incidentally, there is no mention in if I can put it that way, the Government have tried to the impact assessment of the potentially increased find another way to tackle this issue. That is why it is administrative costs on farmers because a number of before us today. individual farmers wrote in, both to the NFU and the I am afraid that the Government are on somewhat Government, explaining that they actually relied on dodgy procedural and legal grounds. If the Government the wages order in order to implement simply their are intent on proceeding in this way then this Committee own wages and HR situation. Most farmers do not and, indeed, eventually the House are at a very minimum have HR departments, find it difficult to negotiate entitled to demand at least the same level of detailed directly with a very small number of staff and find it information as would be required under the Public difficult to check the legal requirements, level of pay, Bodies Act procedures. I remind the Government that sick pay, holidays and so on. Some farmers made those procedures were insisted on by the House, against those points in their responses. I understand that in a the Government’s inclinations, during the passage of survey conducted in, for example, Hampshire—my the then Public Bodies Bill. At that point, the noble neighbouring county—about 80% of farmers did not Lord, Lord Taylor of Holbeach, rightly recognised know that the board was going to be abolished and/or that the House had strong feelings on this matter and were actually opposed to the abolition for this very that we would need to have special procedures in order reason. to deal with the secondary legislation. That information The impact assessment is not full, but it is absolutely is not before the Committee today and there is no clear that this is money taken away from low-paid indication that the Government will produce it. Indeed, rural workers. There have been two main arguments in their procedure so far has been out of kilter with what the Government’s first position as to why we should be GC 259 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 260

[LORD WHITTY] not from the pockets of rural workers to struggling doing that. Those arguments are, frankly, contradictory. farmers but from the whole of the rural economy into First, there is the argument that this is about minimum the pockets of the supermarkets. That is what this wages and we do not need this board now that we have strategy means. a statutory minimum wage. However, unlike the other I do not believe that there is an economic case, and wages councils that were abolished in the 1980s, the there is certainly not a moral or social case, for the Agricultural Wages Board order is not simply about abolition of this board. There may be arguments for minimum wages. It is about the whole structure of the simplification and modernisation of the structures wages and other conditions, as the impact assessment and committees and of the substance of the order. I recognises. If we remove that structure, there will be certainly would agree with that. But removing the no wages structure in the agriculture sector. The effect body altogether in a blatant act of redistribution of will be to drag down wages. Before the noble Lord rural income—in many sectors out of the rural area gives some assurances in relation to the immediate and ultimately into the pockets of the supermarkets—is effect because existing contracts of employment clearly not acceptable and the Government should be ashamed continue to apply, in order for the Government to get of bringing this forward. Apart from the procedural to their figure of so-called benefit—that is to say, wage points, there are strong substantive arguments and cuts—the measure must affect a whole range of workers, again I ask the Minister to withdraw this amendment. whether they are on the minimum wage or not—and 40% are, even so. Lord Plumb: My Lords, I declare an interest as a The Government’s alternative argument is that most farmer and someone who has employed farm workers workers are actually paid more and that this will over a considerable number of years. It is for that therefore have no effect whatever. At the time of the reason that I am more interested in the substantive debate on the Public Bodies Bill, when this issue came points made by the noble Lord, Lord Whitty, than in up, various Members of your Lordships’ House—who, the procedural points. The procedural points he raised I may say, have fairly close associations with a landowning are worthy of some examination and I am sure that interest—pointed out that most of their workers and the Minister takes all that on board. The substantive the workers in the industry were paid more. You points are what really matter—how people react to cannot have it both ways. Either this measure will have whatever decision is taken in the proposed removal of no effect because employers will continue to pay more, the Agricultural Wages Board. or the £250 million saving in employment costs outlined I also declare an interest as, many years ago, a by Defra’s calculations cannot be achieved. You cannot member of that board. I served on it for a while so I have it both ways. have some recognition of what it does and the importance The Minister also said that this is likely to increase of the workers, farmers and independents who served employment in the industry. That is not what the on the board—as they do now—who had the impact assessment actually says. It effectively says that responsibility of trying to reach a fair conclusion in such an employment effect is not proven either way. the interests of both parties. Indeed, in one respect, Lantra, the training body for I particularly remember when we had the threat of the industry says that we need 60,000 new young a farm workers’ strike, which had never been heard of workers to come into the agriculture sector. Most in history. It became quite serious because the noises farmers would agree with that, if you consider in the were coming from East Anglia when we were about to long term the next decade or so of farming. The start sugar beet harvesting and potato picking and so biggest effect on wage rates is the cut in the youth rate. on, and it was spreading across the country. I always This is hardly likely to attract young workers into the encouraged my workers to become members of their agriculture sector, much needed though they are. own union; I was a member of a union and the leader My final point is that even if the Government of a union and told them that they had the same present, and the government documentation presents, responsibility. this as a blatant transfer out of the pockets of agricultural I remember saying to my herdsman, who had a workers into the pockets of their employers, it may not pretty substantial responsibility looking after a lot of be the reality. Unfortunately, we do not have a publicly animals, “You are a very keen member of the NFU. available list of responses to the consultation but I Have you heard about this strike?”. He said, “Of understand that a disproportionate number of responses course we have heard of this strike. We had a meeting were from the horticultural sector. That sector is unique last Wednesday night. Of course we have to join in the agriculture industry for two specific reasons. them—solidarity and all that”. I said, “What are we First, it depends even more heavily than other parts of going to do? If you are going to join this strike, have I the industry do on seasonal and migrant workers and got to come home and do the milking?”. He said, “No, therefore has a disproportionate interest in the minimum we will manage”. I said, “How can we manage if you rate. The other aspect is that it is one of the sectors are on strike?”. He said, “I will get up a bit early and that directly supply the supermarkets. do the milking, then I will have a bit of a strike and When you look behind all this and at the responses then I will do the milking in the afternoon”. of, for example, the Fresh Produce Consortium, which That story sums up very fairly the relationship is a front for the supermarkets, the economic reality of between the farmer and the worker. They live and the situation is that the farmers will not get the benefit work shoulder to shoulder. They can discuss things of this reduction in wages because as soon as the that are not normally discussed between industrialists supermarkets see the order disappear, they will require and their workers, because of the numbers and those farmers to cut their prices and the money will go relationships and so forth, which are very different. GC 261 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 262

I assure the noble Lord, Lord Whitty, that I am a and conditions in jeopardy. I do not accept that. bit nearer to farmers than he is. I have talked to the I know from experience what is being paid at the workers and to the farmers. When they see that the moment. You can forget your wages board and your difference between the national minimum wage and minimum wage. If you are going to employ on your the agricultural minimum wage is 2p an hour, they say, farm today someone who is going to sit on a machine “What are we keeping it for? It is plain daft to try to that has probably cost £250,000, you are not going to keep something going just for the sake of keeping it pay them peanuts to try to get them into employment; going”. What is the cost of keeping it? Is it £50,000? you are going to pay them a good living wage. I am a The figures will come forward, I think, but we know great believer in giving these young people an opportunity that a considerable amount is spent every year on to get into a share-farming operation. More and more running the various meetings, let alone the buildings, people are inclined to that sort of determination as we the staff and the offices. look towards the future. Rather than foster good labour relations, I believe 5pm that the present system is a source of friction and The Minister has explained very clearly how one could certainly be done away with. The normal pattern sees the difficulty between packaging livestock, poultry is for the employers and the employees to take turns and so on. If packaging is done on a farm, the prices each year in being disgruntled. The board and the paid are different from abattoir prices, which are paid councils were established each year, and we had the at the national minimum wage. All this is hindering Wages Council Act 1947. At their height, there were business and restricting jobs. It will not cut jobs, as 100 throughout the country. They were progressively you say; it will increase jobs. abolished, as we well know and have already heard, I have recently set up a foundation to encourage particularly between 1979 and 1997, leaving the young people into the agricultural industry, and am Agricultural Wages Board as the only remaining example. absolutely amazed at the number of under-25s who If they were so vital, why did the previous Labour are now saying that they want to apply to the foundation Government not restore them? Why did they not bring for help to get into the industry. There is no problem them back saying, “Other workers are going to be for them of what they are going to get when they get damaged”, as they propose farm workers are going to there; they just want help to get into the industry and be damaged? They have not been, and we have not got are happy with their prospects in British agriculture wages boards there. We got rid of them, so why not and with their prospects for specialising in different agriculture? areas. That, of course, is the world we are in. We are not living in the past or in a situation in which we have Lord Howarth of Newport: My Lords, I always to have these arrangements—arrangements that are listen to the noble Lord, Lord Plumb, on matters of therefore seen to be conditioned to be suitable for the agriculture and, indeed, on other matters with the past, certainly not for the future. greatest respect, as do all noble Lords, but the fact is I have information here from the NFU. The NFU that my noble friend Lord Whitty has made some very view—and it is a unanimous view, as I understand it, powerful points indeed about what the impact of this from its council—is that the AWB should be abolished policy is all too likely to be on agricultural workers. because, it claims, the board is a waste of time and I want to make only two brief points; they are both public money. The AWB costs about £500,000 a year about process. The Government have tabled this to run, which, in the context of public spending cuts, amendment in order to remove a provision from the the NFU claims is unjustifiable. There is little evidence Public Bodies Act. The effect of tabling this amendment to suggest that the farming sector represents a special to the Enterprise and Regulatory Reform Bill is to case. undo what Parliament quite recently legislated in the Public Bodies Act. Only two days ago, the Opposition tabled an amendment to the Electoral Registration Lord Knight of Weymouth: I hesitate to interrupt and Administration Bill and the House approved it. It the noble Lord, who is such an authority on agriculture had the effect of altering a provision in the Parliamentary in this House, but the figure of £500,000 is not accurate. Voting System and Constituencies Act, and there was As a point of information, I think it is about £50,000. the most almighty hullaballoo and complaint from the Government—the Conservative Party, certainly, in the Lord Plumb: I am inclined to agree that the figure is House. The noble Lord, Lord Taylor of Holbeach, not accurate. I was quoting from the NFU. I am not waxed eloquent in saying: the NFU. I was, but I am not now. I think the figure is “Where does it put this House in the eyes of the people should considerably higher than that. If the noble Lord wants the Committee choose to pass the amendment? We will not be to quote that figure, I am very happy for him to quote seen, as we would choose to be seen, as the guardians of constitutional it. I was merely quoting the cost of running the outfit, propriety”.—[Official Report, 14/1/13; col. 520.] not the whole cost of the operation, including the He said that the amendment would damage, “the buildings and everything else. If he wants to do that, I delicate constitutional underpinning”of the relationship ask him please to produce that figure. I shall be between the two Houses. He also said that, delighted to receive it. “there are great dangers in that”.—[Official Report, 14/1/13; One notes that Unite, which represents farm workers col. 522.] on the board, is today campaigning against its abolition, I can only conclude that all that complaint about the which one understands, and argues that the plans will constitutional impropriety of what the Opposition put thousands of rural and agriculture workers’ pay were doing was humbug. GC 263 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 264

[LORD HOWARTH OF NEWPORT] our employees. Many of them were housed on the I make no further comment on that, but I want to farm and some still live in housing on the farm, many make a comment on the process that the Government years later after they retired. I would hate to think that have adopted in introducing the measure as they are other Members of the Committee, perhaps responding now doing. I am told that they allowed only one week to the contribution from the noble Lord, Lord Whitty, for consultation in Wales. I had the privilege of believe that all is bad out there, because clearly it is representing a Welsh constituency in the House of not—and it should go on the record that it is not. Commons and among my constituents were a number The noble Lord, Lord Plumb, referred to the hugely of agricultural workers. Any Member of Parliament expensive machinery that we have these days. Obviously, representing a Welsh constituency is very well aware of you pay your workforce according to the work that the fragility and vulnerability of employment in the they do. Personally, I am very happy to support the agricultural sector in Wales, which deals with very proposals that the Government are making, in that we difficult conditions of all kinds. What is at stake in the should look again at what job these boards still do, policy represented in the amendment which the and whether it is necessary. The introduction of the Government tabled is the incomes of agricultural workers. minimum wage in 1999 made a huge difference—two As my noble friend Lord Whitty said, they are poorly pence is what we are talking about, and most farmers paid and in fragile employment. It is simply wrong to pay more than that to a lot of their workers. The noble consult for no more than a week on a matter of such Lord also mentioned the fact that some employers grave importance to those who would be affected by it. have not practised well, if I can use that expression. I It is wrong and inhumane, and the Committee must shall think of better words. I remind the noble Lord deprecate in the strongest possible terms the way in that in response to that his Government rightly brought which the Government have proceeded on this. in the gangmasters Act. There was a case recently in the paper where it was declared that two family members Baroness Byford: I would like to take the noble were employing people in dreadful conditions, Lord, Lord Whitty, back to 2000 when we had a long underpaying them and keeping them virtually confined. debate on the CROW Act. Why do I refer to that? I do That is an absolute disgrace and any practice like that so because he has suggested that this bit has been should be hit on the head. It should not be allowed—and slipped into another Bill. The CROW Act was four I use this opportunity to reinforce that point, because different Acts in one Act. The last bit dealt with areas it is hugely important. Where there is bad practice, it of outstanding natural beauty. It went through the should not be allowed. The gangmasters Act, which whole of the Commons before that bit was printed up the noble Lord and I took through the House, has at all. It then came to this House, and I was sitting teeth and it should happen. I am therefore more opposite the noble Lord, Lord Whitty, when he introduced resolved in supporting the Government in their proposals it formally at Second Reading. I said to him clearly at than I might have been had we not had the gangmasters the time that I was not prepared to go into the Committee Act behind us. stage before we had that legislation before us to consider Today we live in a very different era from when we it as a whole Bill. So I think that his protesting too first introduced the Agricultural Wages Board. The much about how this part of the Bill is being introduced workforce is smaller in many ways, and its members is a little rich. multitask in many ways—they are not just labourers. I know that reference has been made to horticultural Lord Whitty: Since we are going down this historic workers. To a certain extent, that is much more mundane road with the noble Baroness, which I am delighted at, work, because of the nature of what they are doing. the difference is that by then my right honourable However, for anyone who wants to get on in life and friend Alun Michael had already signalled in the run a good business, the one thing you should always Commons that we would be coming forward with remember is that your business is successful only if substantive provisions. Nothing was done in the same your workers are well looked after and encouraged to way on the same amendment. work well. I hope that Committee Members will support this Baroness Byford: I perhaps would not agree with move, which will allow the agricultural industry slightly him because, if I can take him further along down greater flexibility. It may be that wages are slightly memory lane, the Bill was debated in this House, better in one particular area than another but in amendments were made and it returned to the Commons. normal business, people working down here in London Several Members who were in the Commons at that get paid more than they do up north. Nobody goes to time will well remember that at that stage not one town about that saying that it is outrageous. The word of the amendments in the areas of outstanding responsibility is on the farmers to make sure that they natural beauty were debated in the Commons because employ fairly and pay fairly. In this day and age we do it was guillotined. That is what happens. Therefore, not still need the wages board. I support the government the noble Lord is being slightly mischievous this afternoon amendment. in perhaps protesting too much. However, I return to the substance. I should again 5.15 pm declare that we are family farmers. We used to employ people but are now part of an arrangement with a Lord Hunt of Kings Heath: My Lords, that was an neighbouring farmer who does the work for us. I also interesting contribution from the noble Baroness, who declare the fact that, like the noble Lord, Lord Plumb, speaks from experience, but there is no guarantee that we have always had a good working relationship with farmers will do the right thing. My concern, apart GC 265 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 266 from the procedure, is that by removing the Agricultural should be. I should have thought that there will be the Wages Board you are removing an essential safeguard. inverse rule of ministerial law which says that the more The noble Lord, Lord Plumb, also spoke with great contentious the issue the shorter the consultation will experience. Both noble Lords gave us a rather warm- be. Here we sit: one week in Wales on the abolition of hearted view of how farmers will respond. Apparently, the Agricultural Wages Board when we know there is we can rely on them to do the right thing and pay absolutely no support whatever for its abolition in much higher wages than are paid under either the Wales. No wonder it is a week. People should be minimum wage or the rates contained in the order grateful, should they not? Why not a day? Christmas issued by the Agricultural Wages Board—but I wonder. Eve would no doubt have produced the result the If one looks at the evidence given during the very Government wanted. The way the Minister’s department truncated consultation period, the fact is that the has acted is, frankly, a disgrace. supermarkets will undoubtedly be looking to drive I refer the noble Lord to the evidence given to the down those wages in order to ensure that they keep the Secondary Legislation Scrutiny Committee. It received profits themselves. That is the story in history of how a lot of evidence and, unlike the summation of the the supermarkets have behaved time and again. evidence that Defra made of the consultation receipts, My principal reason for coming into this debate is which I regard as wholly inadequate, this is a very well that I, alongside my noble friend Lady Royall, led for ordered summation. The committee report refers to a the Opposition on the Public Bodies Bill. I find it quote from the Academy of Medical Sciences, which extraordinary that we are debating the abolition of the said: Agricultural Wages Board in this Bill. We spent hours “‘We are concerned that if adopting a consultation response debating the Public Bodies Bill. We had two very good time of less than 12 weeks becomes the default, this may prevent debates on the Agricultural Wages Board in Committee expert membership organisations from being able to provide and on Report during passage of the Bill, and in no considered responses to support evidence-based decision-making way was there any suggestion by the Government that in policy … as so many legislative proposals impose additional they would not be using the process laid out in what is costs on business, calculating their actual cost impact can often now the Public Bodies Act to deal with the Agricultural take time and resources’”. Wages Board. The committee concluded that there was a, We have lost the super-affirmative procedure, which “widely expressed preference for a 12-week standard duration”. would have allowed for extensive engagement and consultation with stakeholders. It would have allowed We can see from what has happened in relation to the noble Lords who had an interest to have taken part in Agricultural Wages Board why that should be the case. extensive debate. Instead, we have had this remarkably truncated consultation—four weeks for England and The Fresh Produce Association, as my noble friend one week for Wales—when many people are engaged says, is a convenient front for the supermarkets; no in other activities during the winter period. We all wonder it is in favour. On the issue of what landowners’ welcome the Minister to his place but it is remarkable companies will do, I noticed the Duchy of Cornwall that in his introductory remarks he gave no explanation Nursery response in the consultation. The manager whatever about why this amendment was being introduced there says: “Overtime rates are ridiculous”. We know at this late stage, why the Public Bodies Bill procedure what will happen to the overtime rates of Duchy of agreed by your Lordships’ House is not being used Cornwall employees when we abolish the Agricultural and why such a short consultation period was agreed. Wages Board. I doubt there will be any overtime rate at all. That is what will happen in practice when this The consultation has been discussed very recently wretched amendment is passed, if it is passed, by your by the Secondary Legislation Scrutiny Committee. It Lordships’ House. very helpfully undertook a review of the new approach to consultation by the Government. We have to go The Minister then talked about this being a back only to November of last year when the Prime “deregulatory” action. I was a Minister at Defra for a Minister made a speech to the CBI conference and little while and I am reminding myself of the Agricultural said: Wages (England and Wales) Order. It is not a very “When we came to power there had to be a three month long document and absolutely clear. It is one of the consultation on everything and I mean everything”. most readable documents that I have come across. He continued: Here is a very clear way for employers and employees to understand what the rates are and how to put them “So we are saying to Ministers: here’s a revolutionary idea—you into practice. That is admitted by Defra, whose regulatory decide how long a consultation period this actually needs. If you can get it done properly in a fortnight, great, indeed the Department impact assessment, in talking about the impact on the for Education has already had a consultation done and dusted in affected groups, states: two weeks”. “Employers will need to familiarise themselves with relevant We know where that has landed the Department for legislation instead of”, Education. The Prime Minister added: having to look at the agricultural wages order. I refer “And we are going further, saying, if there is no need for a noble Lords opposite to their continued and frequent consultation, then don’t have one”, complaints about the complexity of employment at all. legislation. I fail to see how getting rid of this very We now have a remarkable situation now where, slim, readable document and replacing it by the need instead of having a well ordered process to consultation, for hard-pressed farmers to go through and read Act it is entirely up to Ministers to decide how long it after Act is, frankly, a nonsense. GC 267 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 268

[LORD HUNT OF KINGS HEATH] it was not illegal. They said that few, if any, use the The impact assessment goes on to say: agricultural wages order rates nowadays because one “Workers and employers will need to spend time on negotiations has to pay over the odds to attract people into farming, to agree pay levels & other terms & conditions individually”. especially if skills are involved, given, as my noble How on earth is that reducing the time and effort of friend Lord Plumb said, the combine harvester worth both farmers and farm workers? £250,000—that is a big skill. I also asked my neighbouring The Government are replacing a well ordered system, farmers, who employ workers on their farms, and got easily understood by everyone, with bargaining that the same answer. will have to take place from farm to farm, involving Another point is that the Agricultural Wages Board both farmer and farm worker in the complexity of works is archaic in that it sets pay rates per hour, negotiations. Is there any group of workers who work rather assuming that we still hand out weekly wage harder than farm workers? I doubt it. Surely they are packets. That is clearly impractical in today’s world. the “strivers” that this Government were so pleased to The preferred option for both parties is for a monthly cite when Mr Osborne started to try to divide this standing order. If employers and their advisers are not nation up in a very disturbing and discomfiting way. using the rates set by the Agricultural Wages Board, We know that the real impact of this will be to drive what is the point of the board? Here is the rub because down the wages of some very good and vulnerable the practicality of today’s employment market has people, and we ought to have nothing to do with it. made the board obsolete. Also, the raft of modern employment law referred to just now has made the Earl Cathcart: My Lords, when these amendments board irrelevant, not least by the national minimum came to my attention, my first rather tongue-in-cheek wage that was just referred to, which currently stands reaction was, “Blimey, does the Agricultural Wages at £6.19 an hour. The current minimum rate under the Board still exist? I thought it went out with the ark”. I agricultural wages order is £6.21 an hour, a difference say that as a farm employer. When setting a farm of a mere 2p, as has already been said. That 2p worker’s salary, I have to pitch it to reflect the salaries difference is not surprising because the board cannot in the wider market outside of farming; that is, the set its minimum below the national minimum wage competition. and it would look too simplistic to set it at the same rate— Within the past year, we have employed two new farm workers and I will use one of them as an example. Previously, he had been working for a road haulage 5.30 pm firm, on a salary of £16,000. It became clear in the Lord Hunt of Kings Heath: I am most grateful to interview that he was keen to take our job and he the noble Earl for giving way. He has referred to the seemed exactly the right man for it from my point of grade 1 rates, but he might have referred to the other view. Getting him to switch jobs all rested on his salary grades listed in the Agricultural Wages Board order, package. I was advised that the job equated to about particularly those around overtime. Where are the £7 an hour, which is just above grade 2 on the latest guarantees on those? agricultural wages order scale. Let us look at the practicalities of using the agricultural wages order scale in negotiations. The prospective employee said, Earl Cathcart: If I may, I shall come on to that “What is my salary going to be?”. I replied, “£7 an point later. As I was saying, the board cannot set the hour”, because the Agricultural Wages Board only same rate as the national minimum wage because that works in pounds an hour. He said, “What does that would look too simplistic, so the rate is set at 2p more. mean in gross per annum?”, because he wanted to Last year—surprise, surprise—it was also set at 2p compare my offer to the £16,000 from his existing job. above the national minimum wage. Next year, if the I said, “That is £7 an hour grossed up for the year”. So board still exists, I would hazard a guess that the rate we got out the calculator: £7 an hour times seven will be set at 2p more. This is hardly rocket science. hours a day, five days a week, 52 weeks a year is Recent research shows that the average earnings of £12,740. That is what the Agricultural Wages Board is full-time farm workers are 40% higher than the rate set saying I should pay him. He wanted the job and I by the board and that in 2010, some 90% of farm wanted to employ him but the Agricultural Wages workers received more than the grade 2 minimum. The Board pay scale does not cut the mustard because he conclusion must be that farm workers are paid well would not move jobs for a £3,260 cut in pay. I offered, over the minimum set by the board. I have talked and he accepted, £16,000—the same that he was getting largely about full-time employees, but what about from the job outside farming. The important point temporary workers? I would argue that they are and here is that it was the competitive wider employment will be protected by the national minimum wage. market that determined his salary, not the agricultural Apart from some noble Lords opposite, who does wages order pay scales, which we ignored as not being not want to see the abolition of the Agricultural helpful. Wages Board? It is the union, Unite, which is deploying I asked my firm of accountants in Norfolk whether scare tactics by saying that without the board farm other farmers ignored the Agricultural Wages Board workers will see reductions in their pay with only the rates when setting salaries. Was I alone, and was I national minimum wage to protect them. That is quite breaking the law? I now know that it is not strictly clearly rubbish. Going back to my employee on £16,000 legal to pay a salary to a farm employee under the a year, if the board goes, am I really going to reduce agricultural wages order. Happily, the accountants’ his pay to the level of the national minimum wage; answer to both questions was no—I was not alone and that is, £11,300? I am not going to do so because he GC 269 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 270 would not accept a drop in salary of some £4,700 and have to pay time and a half to the agricultural workers he would leave. That action would disrupt my business packing my farm produce if they work more than because I would have to interview new applicants, eight hours a day or 39 hours a week. The workers train the new person, and probably have to pay the packing my neighbouring farmers’ produce would be new worker £16,000 to entice him to move from his subject to the national minimum wage and paid the existing job. It is highly likely that all existing employment minimum rate regardless of the number of hours they terms and conditions will remain exactly the same as work. What a dog’s dinner. I believe that the board is my noble friend the Minister has said, in spite of— irrelevant in today’s employment market and an unnecessary cost to the taxpayer. It is outdated because Lord Knight of Weymouth: Can the noble Earl it works on hourly wage rates, not salaries. Those who square his estimation that no agricultural worker will need an hourly rate are protected by the national lose any pay with the Government’s own economic minimum wage, and if the Agricultural Wages Board— impact assessment which states: “Research suggests that workers’ wages may fall by £0-34.5m”, Lord Myners: I sense that the noble Earl is coming A year, and that its best estimate is £32.5 million? to the close of his comments. I want to remind him Where is that £32.5 million going to come from if it is that he said he would answer the point raised by my not from agricultural workers? noble friend Lord Hunt of Kings Heath; namely, that the higher grades are not protected by the national Earl Cathcart: I am not absolutely sure why—I can minimum wage. The noble Earl said he had an answer, only give you my case—I would want to reduce their and I think that the Committee is looking forward to pay at all. As far as I am concerned, the system is hearing it. working perfectly well. I am happy with their pay, and so are they. I do not know where those figures come Lord Hunt of Kings Heath: Perhaps I can help my from. My view is that it is highly likely that all existing noble friend. I am referring to grades 1 to 6: grade 6 is employment terms and conditions will remain exactly the farm management grade and the rate is £14.10 an the same, as the Minister has just confirmed. hour; grade 5, which is the supervisory grade, is £13.05 an hour; and grade 4, the craft grade, which I suspect Lord Whitty: I am sorry to pursue this point. The is the grade that the noble Lord has in mind, is £12.32 noble Earl may well be right in relation to his estate, an hour, which on a 37-hour week comes to £22,000 a but the department, which is supposed to know about year. I really do not understand what he is saying. the totality of the industry, estimates that there will be a significant cut in wages. Indeed, it is the major effect of this amendment in terms of the impact assessment. Earl Cathcart: The noble Lord did raise a question If the noble Earl is describing that argument as rubbish, and I did say that I would come back to it. This is all it is not we on this side or United who made the about the competitive market. I said before that one argument, but the department, which got it seriously has to attract people with skills into farming and to wrong. If that is what he is saying, it is another pay a higher rate according to those skills, and that is argument for the Government to look at what their exactly where I am; you have to pay a higher rate of information is based on. salary—not a higher rate per hour—to the person with the greatest skills, and it is the competitive market that determines that price, which is normally higher Earl Cathcart: I am sure that the noble Lord will be than the Agricultural Wages Board rates. interested to hear what the Minister says when he winds up. I said that the board is irrelevant to today’s employment markets. It is outdated, working in hourly wage rates I am happy to say that since employing new workers, not salaries. Those who need an hourly rate are protected my business has prospered. It may not be the norm, by the national minimum wage, and if the Agricultural but the decision I have to make is not by how much I Wages Board disappeared tomorrow I do not believe should reduce my employees’ salaries, but rather whether that most employers and employees would notice. I should give them a bonus, a pay rise or a combination Those who did would, I believe, breathe a sigh of relief of both. It is a decision I shall make in spite of, not as it would reduce the administrative burden on farmers because of, the Agricultural Wages Board and contrary and their advisers. to the scare tactics that I suggest are being used by Unite. The noble Lords opposite have all argued strongly for the board’s retention, but they had 13 years in If I wanted to expand my business beyond packing office to change, modernise and bring the Agricultural and selling my own farm produce by taking in produce Wages Board into the 21st century. They chose to do from other farmers for packing and resale, any new nothing. workers for that expansion would not be classed as farm workers and would not come under the Agricultural Wages Board’s umbrella, so we would have the absurd Lord Myners: My Lords, I welcome the Minister to situation of two people who are doing exactly the his new role, although I feel rather sad for him that his same job being paid at different rates—and all for 2 debut is in promoting a Bill that most Members of the pence, which is a ridiculous complication. It is further Committee will now recognise is a misrepresentation complicated because I am told that if my expanded in its reference to the promotion of enterprise. I can business had a busy period, say, before Christmas, say without any doubt after a career in business, under the Agricultural Wages Board’s rules I would including chairing a number of major public companies, GC 271 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 272

[LORD MYNERS] What we are seeing here today is an attack on the that almost nothing in this Bill will have any beneficial rural economies—fragile economies, as my noble friend impact on economic activity or on the growth of the Lord Howarth of Newport described. We see a economy. Government estimate of the economic impact of £250,000. This is a rather tawdry Bill, and we are now being That will come out of the pockets of farm workers—the asked to look at rather a shabby amendment. It must money will come from nowhere else—and the essential have been very clear to Members of the Committee protections that they have enjoyed through the Agricultural that the Minister’s predecessor, the noble Lord, Lord Wages Board will be removed. Marland, did not really have his heart in the Bill at all. I am a Cornishman and the agricultural sector is It was quite clear that he would much rather keep up important in Cornwall. Like most people of my his suntan overseas than put through legislation that generation, we did not do internships at Goldman will have such little economic impact. Sachs or such places, we worked on farms. I have done The amendment has come about as the result of my fair bit of clearing out the pigsty and milking the wholly inadequate consultation that is supported by cows. I was not very good at it and I certainly would evidence which is thin in the extreme, and the Minister not have been employed by the noble Lord, Lord will need to explain to the Committee why it is being Plumb, or his herdsman. I have worked at harvest proposed now. Why was it not incorporated into the time, thoroughly enjoying the colourful life of working original Bill? Why was it not mentioned, debated or on a farm. But I also know that it is a tough and hard discussed in the other place? Is it an afterthought? life, particularly when the weather is inclement, as it Was it overlooked when the Government were drafting frequently is in the winter in Cornwall. not only the Public Bodies Bill but this Bill? If that is the case, those who work in the rural economy will I have noted that the Members of the other place have grounds for extreme grievance at the behaviour who come from Cornwall tend to speak in Westminster of a Government who can approach this issue, which with one voice and with an entirely different voice is of great importance to them, in such a superficial when they go back to Cornwall. I will be looking with and callous manner. My noble friend Lord Hunt of particular interest to the Liberal Democrat Members Kings Heath has already pointed out that by putting of the other place who sit in Cornwall. After Monday this amendment into this Bill, a number of procedures evening I am not sure whether I should be describing and processes that Parliament approved in the Public the Liberal Democrats as my noble friends or not, but Bodies Bill will be avoided. I shall be looking at what they do. My forecast is that I I noted the Minister’s strong endorsement of the will read interviews in the Western Morning News, the national minimum wage and I declare my past role as West Briton and the Packet newspapers about how chairman of the Low Pay Commission. However, as I they are putting up a staunch defence of the rural listened to him I felt, as he advanced his arguments for economies, but they will march down the Lobby here the abolition of the Agricultural Wages Board, that to abolish the legal protection that the Agricultural one could have made the same speech and inserted Wages Board has provided for the poorest in the the words “Low Pay Commission”. What is it about the community. The impact of withdrawing protection Agricultural Wages Board that is different from the from these people in a much more subtle and sensitive Low Pay Commission? His arguments about freeing form than the Low Paid Commission can provide up the economy, allowing the market to operate and through the grading approach of the Agricultural establishing a market clearing rate apply to the whole Wages Board will be profound across the economy of economy. I ask myself whether we are seeing this Cornwall. I fear that in due course we will see the shabby amendment incorporated into this Bill at such hypocrisy and two-faced approach of the Liberal a late hour as a precursor for a deeper and more Democrat Members of the other place in the West fundamental attack on the concept of the national Country who say one thing to the local media and minimum wage. another when they speak or vote in the other place. This proposal really does not make economic sense. As other Members have suggested, I doubt that 5.45 pm the benefits will accrue to the farming community. I The Minister referred to complexities in the agricultural doubt that they will flow to good employers in the sector. I can assure him that similar complexities are farming community. I was previously chairman of confronted by the Low Pay Commission. We have to one of our largest retail groups. I have no doubt that consider things such as interns, the employment of the planning departments of our major retail groups people who are offered accommodation as part of are keeping a close eye on this initiative and they will their employment, like a room above the bar in a pub, be applying the squeeze—a squeeze that this and people who are employed on duty but not working, Government acknowledge—that is frequently applied perhaps in care homes. Complexity is a part of life in in an abusive manner in the promotion of the business and finding formulas which can manage groceries adjudicator. complexity is part of the challenge of government. I put it to the Minister that his arguments that this is all The Minister has said nothing about the impact of too difficult, that life has moved on and that the this proposal on the profitability and therefore the simple rubrics of past approaches to employment capacity of the farming industry to continue to invest. legislation no longer apply, are false. They are false as Instead, we have had inadequate consultation and a far as the agricultural sector is concerned and as far as flimsy impact assessment. Quite frankly, if I had been the wider economy is concerned. a Minister taking this forward, as I did when I was a GC 273 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 274

Treasury Minister in the previous Government, I would Lord Deben: First, I do not remember whether I have rejected the impact assessment for the superficiality was still there or not because it was the year in which I of the analysis that supports it. moved. Secondly, I have always been opposed to the Agricultural Wages Board and have always said so This unpalatable proposal has been tucked away in because it has never seemed to apply to the industry a Bill, proposed without any credible argument, and that I know. It may have applied in 1930. It may have almost certainly provides a Trojan horse for further applied in the long-distant past in 1830, although we attacks by this Government on the weakest and poorest did not have the board in those days. This is what in our economy. If the Government are foolish enough worries me about the speeches from the other side. I to keep this amendment, I hope that when we come to do not feel that they understand how agriculture works. Report it will be pressed to a vote and I am confident that we will be successful in that vote. The former Member for Newport talks about agricultural workers in Newport. I must say that my mother was brought up there and there must be a Lord Deben: My Lords, I declare an interest as the pretty exiguous collection of people in Newport. However owner of a very small amount of agricultural land. I I say this: those of us who live in agricultural areas, am also a former Minister of State for Agriculture. care about agriculture and have spent a lifetime dealing My only surprise is that it has taken so long to get to with it have to say that the speeches from the other this point. It is unacceptable to say that the only side have no connection with reality at all. people in the entire country who have to have a wages council after all the others have been abolished are we Baroness Turner of Camden: Is the noble Lord not rural people. Actually, the insult is to us. The suggestion aware that other employers in the industry feel very that there is only one group of people in the entire differently and find the Agricultural Wages Board nation who need a wages board—because otherwise useful and helpful? I was speaking to one such, a noble they will behave in a way that is wholly unacceptable—is Lord, on precisely that point today. I do not know offensive. It is offensive to my neighbours, it is offensive very much about agriculture, but I know quite a bit to rural people and it is not acceptable. That is the first about employment rights, and I happened to mention thing. this matter to a friend—not a noble friend but a Secondly, earlier I was rather tough with the Minister friend—who is involved in agriculture in a large way. about what he may have written down. I could have He told me that he respected the Agricultural Wages written all the speeches on the other side quite simply Board. He had always found it useful and was surprised because they have been said for the past 50 years. It is that the Government were moving in the direction of always the same thing—this argument that somehow abolition. It was clear that there had not been overall or other people are out to do people down in an consultation. This is apparent from a number of the industry that is the most co-operative industry we contributions today; there has been no real, deep have. You cannot run a farming enterprise—I do not consultation on the amendment. run one but I see them all around me, and I was Minister for Agriculture and deputy Minister for the Lord Deben: I am sure that the noble Baroness longest period of anybody—unless farmer and farm would agree from her long history of trade union worker work together. negotiations that you can always find someone who Thirdly, it is incredible to see the ignorance of what takes a differing view. However, I have to tell her that if is happening in the industry, to hear speeches that one talks to farmers throughout the country and to assume that the industry today is like it was 50 years large numbers of farm workers their view is simple: ago. Most people involved in the industry, by any this board has been an irrelevance for a very long time. proper measure, do not find themselves subject to the Many of them feel it to be an insult to suggest that this Agricultural Wages Board because the way farming is portion of humanity, this group of people, should be now organised and run is wholly different. Have we singled out and defended on the basis that they cannot had a great campaign from Unite to say that the board be trusted to run their businesses or to negotiate in the has to be extended? Have we had trade unionists way that everyone else in Britain does. stamping in the street? Of course not, because they I particularly objected, if I may say so, to the know perfectly well that this is an out-of-date mechanism comments of the noble Lord who suggested that it which they do not want to bring back in any of the would be much easier to keep the wages board because areas where it has been abolished. The previous it is too complicated for farmers and farm workers to Government had 13 years to do something, but they negotiate. My goodness, what a miserable society it is did not. in which we have to have things done on a collective basis because individuals who work with, talk to and care about each other are unable, too stupid or do not Lord Knight of Weymouth: I would like to revisit have the time to work out the relationships between history very briefly. As I understand it, the wages them, both financial and in terms of employment. It is councils for every other sector were abolished in 1993, a harking-back occasion. This Committee often reminds the same year that the noble Lord finished being me of discussions— Minister of State for Agriculture. He must have been part of the discussions held then as to whether or not the Agricultural Wages Board should be abolished Lord Hunt of Kings Heath: My Lords— along with the others. Can he explain why he chose not to abolish it then? Lord Deben: I will certainly give way but— GC 275 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 276

Lord Hunt of Kings Heath: My Lords, the noble the agriculture and food industry to which this wages Lord has mentioned me, and it would only be courtesy board applies has to be protected because it cannot to let me— otherwise stand up for itself. That is manifestly untrue, and it is insulting to a large section of the population. It also means that those of us who live in the countryside Lord Deben: I have made it quite clear that I will must again remember that people in this House and in give way, but I should have a chance to finish my the other place often debate our future with exiguous sentence before I do. I am very happy to give way to knowledge of what actually goes on Britain’s rural the noble Lord, who I much respect. areas. I shall give way to the former Member for I was saying merely that before we indulge in historical Newport. references, we ought to remember that we are talking about people working today, who are employing today, Lord Howarth of Newport: I am grateful to the who are alive today, who listen to these comments and noble Lord who knows my former constituency so who recognise in them a kind of attitude of superiority much better than I and who insists that although I to rural people that many townspeople appear to have represented a rural constituency for 15 years, I know by believing that they are not fit to run their own lives nothing about agriculture. I represented farmers and like townspeople can. farm workers for many years. The noble Lord has still not answered the question Lord Hunt of Kings Heath: My Lords, I am grateful put to him by my noble friend. Why, when he was the to the noble Lord for giving way because he mentioned Secretary of State for Agriculture, did he omit to me as the noble Lord who had referred to problems in abolish the Agricultural Wages Board? reading legislation. The Bill is called the Enterprise and Regulatory Reform Bill. The Minister told us that Lord Deben: First, I think I did say that I could not it would be great to get rid of the Agricultural Wages remember whether the decision to do the wages board Board because it will remove a whole raft of regulations came before or after I ceased to be the Agriculture from the industry. The point I am making is that the Minister. I am being absolutely truthful about that. regulatory impact assessment produced by the Minister’s Secondly, I was never in favour of the Agricultural own department has a wonderful phrase that, Wages Board, but I also remind the noble Lord that “employers will need to familiarise themselves with relevant legislation the decision to abolish these boards was taken as a instead of the Agricultural Wages Board Order. Workers and whole. In those circumstances, I would have played a employers will need to spend time on negotiations to agree pay part, but, as a matter of fact, I do not think I did levels and other terms and conditions individually”. because the timing was rather different. I would just My point is that far from easing regulatory burdens, say to him that if I had had the opportunity, I would this will increase the burdens in an area of industry have done so. He might remember that I had a number that is characterised by many small employers with a of other things to deal with at the time, but we do not limited number of employees. I would argue in favour wish to go into that otherwise people will recall the of the simplicity and straightforwardness of the order, photograph which was so widely used. which is incredibly easy to understand and well written. The issue I want to return to is this. I am not I know that if I was a small employer, I would welcome insulting the noble Lord. Of course he knows about it. The current arrangements are much less of a burden agriculture because in a different guise he represented than having to refer to dozens of Acts of Parliament, an agricultural constituency. I am merely saying that which the noble Lord’s department seems to think will the language we have heard from the noble Lord, Lord have to be done in the future. Whitty, and those who spoke later, including even the upright defender of Cornwall, does not go down well 6pm with those in agricultural areas who want to be treated like everyone else: grown up and able to look after Lord Deben: I have listened carefully to the noble themselves. Their employment practices are decent Lord, as I have on other occasions, and I think that he and the relationships between employers and employees is missing the point. Indeed, he has revealed exactly are particularly tight. The gangmaster regulations removed the kind of concern that I have. Most of the employers the only part of this which might have been argued, of agricultural workers are larger employers because even though the agricultural workers regulations did most of the smaller concerns do not employ any not always cover the very people we wanted to help. I longer. That is one of the issues. To talk about the commend the previous Government for bringing that agricultural industry from that point of view is to talk forward, and I am only sad to see that there is an about an industry which has passed. Ever since the innate conservatism in the trade union movement passing of the Hunting Act we have gone through which makes it impossible for it to understand that the periods of listening to townspeople who do not know world has changed and with it we have to change our about the countryside talking about it in a way that practices. they would find insulting if we who live in the country talked in the same way about the towns. Lord Monks: My Lords, I respond, as a former I say this to noble Lords opposite. It is impossible general secretary of the TUC, to that last remark to defend an argument which says that uniquely among about the trade union movement. I cannot claim any all jobs and professions, uniquely among all employers rustic origins—I do not come from that part of the and uniquely among all employees, the small part of world—but I do claim some experience of rural life GC 277 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 278 gleaned, at great expense, in various village pubs over Lord Cameron of Dillington: My Lords, first, I the years, listening to what people say. While I accept apologise for missing the first part of this debate. I am that the degree of paternalism that often exists from afraid that I was unaware that this debate was taking the farmers’ and landowners’ side is often genuine and place until very recently. sincere, and we have heard some of that today, it is not I thought that we had put this whole issue to bed the full story of rural life. It is not an idyll for everybody, with the Public Bodies Bill. We went through all the some place where Beethoven’s Symphony No. 6 wafts arguments, we discussed it, we voted on it, and I gently in the background and people are all very nice thought that the Agricultural Wages Board had been to each other. That is not the case. There are some abolished. Anyway, let us go through the arguments dark sides and some problems which are not being again. faced up to on that side. There is no doubt, as many noble Lords have said, Over the years, I have not been a great fan of wages that the Agricultural Wages Board is and has been a councils or the Agricultural Wages Board. I say to the very useful guide to farmers. I totally accept that. In noble Lord, Lord Plumb, that the National Farmers’ some ways it is a bit of a cop-out for farmers because Union has plenty to do with the fact that it is very they can look it up on a piece of paper and know what difficult to be proud of the Agricultural Wages Board they are going to pay their workers. It has been a because it is a very tough negotiator. It can always useful guide not because of the actual rate set—because answer for itself. It is good at it. If anything is irrelevant, in fact the majority of farm workers are paid above as the noble earl, Lord Cathcart, suggested, it is often the Agricultural Wages Board rate—but because of because the employers have not wanted the board to the percentage increases that have been given. This address some of the problems that were brought to function can be easily replaced by other means, and their attention. I take a rounded view which is certainly the NFU has already committed to replace it. not old-fashioned. Some of the rates of pay that have been contracted for people driving a machine worth It is no surprise to me that the majority of farm £250,000 or whatever do not seem excessive. When I workers are paid above the Agricultural Wages Board look at the figures for farm incomes, I accept that rate. As the noble Lord, Lord Plumb, said, with machinery there are good years and bad years, but they went up costs—actually his figures are slightly out of date by 25% in 2011. I did not see a trickledown effect in because you can get tractors nowadays that cost £400,000 the Agricultural Wages Board or any of the other to £500,000 and combines that cost nearly £750,000— agreements which were around. Farmers were, no would you seriously pay someone the minimum wage doubt, thankful for a good year after some bad ones, to drive such equipment? I very much doubt it. but they were not exactly shelling out the money As the noble Earl, Lord Cathcart, said, rural generously to their staff. competition is huge. Agricultural employment represents I ask the NFU and others, and I look forward to around 4% of the rural employment statistics. The what the noble Lord says on these things, whether competition from other industries is big, and you will where there are shortages in the industry and a reliance not get people to come to work as farm workers. As on migrant workers it could be because the wages and the noble Lord, Lord Monks, said, the prospects for conditions are still too low? Could it be because it is replacing the current workforce are not particularly not an attractive place for young people to go to work good. They will not be particularly good if farmers do and the prospects for replacing the ageing workforce not pay proper wages, which I personally believe most are not fantastically good? I look forward to what the farmers do, certainly on my farm and my neighbours’ Minister will say on these things. This debate is about farms. pay and conditions in agriculture as well as about the The noble Lord, Lord Deben, said that farming is a wages board. The wages board, like the wages councils, very co-operative industry, and I absolutely agree. You was in the words of Winston Churchill, a floor beneath live and work—and even play—as a team on a farm. wages. They are not a restriction which stops you from Quite often, you are in a remote area. You cannot treat paying more. They are simply a floor, and if you do them as a distant workforce. You have to live next not go below it, you are clean. However, there are door to these people, meet them in the pub and so on, plenty of people who do go below it. I could quote and it is a very co-operative industry. Frankly, I do not examples, particularly from the horticultural industry, believe that farmers will immediately make use of the where some quite substantial employers went below absence of the Agricultural Wages Board to behave the wages council order and were in difficulty when completely differently towards their teams from how they were caught. they do at the moment. I ask the Government to follow the wise advice that The noble Lord, Lord Hunt, said that the supermarket has been given by my noble friend Lord Whitty and interests will get the better of us and we will have to take a longer, deeper look at this. I am not against put wages down. If you sell commodities to the change, reforming, making the thing more relevant supermarkets, they put you through a whole series of and all the rest of it, but this industry has different tests, such as Nature’s Choice for Tesco, and one of features. There may be some other industries around the main chapters is how you treat your workforce. I that you can compare it with, but they are not on our do not agree that the supermarkets will impose such agenda today. Rural life, close relationships, living tight margins that agricultural wages will naturally cheek-by-jowl—not always but, often—make this a have to come down. I cannot see that as the logical rather special place, and that justifies the continuation conclusion to the abolition of the Agricultural Wages of the Agricultural Wages Board. Board. GC 279 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 280

[LORD CAMERON OF DILLINGTON] happen in horticulture; the staff will all be temporary, The board has been a useful guide, but the NFU all immigrants, and all on grade 1, which is the equivalent has committed to produce comparative indicators to of the statutory national minimum wage. To rely just help us, such as the cost of living changes, the labour on the minimum wage and the working time directive market, comparative industries, farm business conditions is to throw out the baby with the bath water. That is and so on. not to say that the board itself does not recognise the On farm business conditions, it is not as tough a life need for change and the need to give its constitution as it used to be. Tractors have heating, stereophonic more flexibility. It has said so itself. sound and CD players, and you have to produce all If I were still chair of ACAS and were asked what I these things to attract your farm workers nowadays. It would do to replace it, I would have supported the is a completely different life from the image that I seem idea of a joint industry council with an independent to be getting from certain noble Lords. chair and a conciliation and arbitration mechanism All the agricultural bodies—the CLA, the NFU where there is a failure to agree. The parties involved and the TFA—have been consulted and agree that, in the AWB have already called for this. The Minister frankly, a statutory board for a single remaining industry in the other place has called for salaries and not just is completely unnecessary in today’s world, and I very wages to be paid, something to which the noble Earl, much agree with that opinion. Lord Cathcart, referred. Again, this could be done without abolishing the board. It seems to me that the 6.15 pm Government are hell-bent on abolition. Presumably if they do not get their way in this Bill, they will begin Baroness Donaghy: My Lords, I was a member of again in another Bill whose subject matter overlaps the Low Pay Commission when it was first established, with half a dozen other Bills, which seems to be the although I did not have the pleasure of serving under coalition Government’s theme. my noble friend Lord Myners. We set the first statutory As the Minister knows, a lot of overtime is worked national minimum wage, which was applied to thousands in the industry. At present, that is paid at the rate of of farm workers who were not covered by the Agricultural time and a half. I thought it was 39.5 hours, but Wages Board. It did not render the AWB irrelevant, somebody said 39 hours, and I stand to be corrected. because the AWB dealt, and deals, with a wide range This will be in jeopardy, and workers may face an of other issues relating to the grading structure, pay 80- to 90-hour week in an industry which is the second above the grade 1 level, training, and other important most dangerous after the construction industry. The terms and conditions. workers might put themselves at risk simply to make Although I am aware that abolition has the support up for lost income in order to feed their families. Have of the supermarkets, the horticultural industry and, the Government assessed the impact on health and safety regrettably, the NFU, I believe that the country will if pay levels fall and excessive overtime is worked? suffer and that we will come to regret this move if it is The Minister in the other place, David Heath, has carried out. We know about the sorry process, so I will recognised the skills shortages and the importance of not repeat it. May I ask whether the proposal has the “rewarding well paid careers”. Amen to that, but the support of the Welsh Assembly Government? Will future of farming must take account of the needs of similar measures follow in Northern Ireland and in small farmers, not just agribusiness, if we are to protect Scotland? In other words, have they been asked for our food supply for our country. Have the Government their view in Northern Ireland and in Scotland? given up on small farmers? The industry is a special The proposal will have a detrimental effect on most case because it enjoys a £3.4 billion taxpayer subsidy. agricultural workers. Recruitment is already difficult, In 2011, these payments accounted for around 60% of and the Agricultural Wages Board has been particularly total farm incomes, so they are practically in the strong on building a career structure for farm workers, public sector. Farmers and farm workers are special strongly supported by the NFU, I should say. Farms because they help to feed the nation. I ask the Minister: with between one and four employees will find it if he succeeds in abolishing the Agricultural Wages impossible to resist the relentless pressure on pricing, Board, which will be a sad day for this country, what and I have to disagree with my noble friend who has will he put in its place? just spoken; the pricing issue will bring enormous pressures to bear on bringing down the cost in many farms. Their standard of living is already comparatively Lord Knight of Weymouth: My Lords, we have had low, and the wages board was to an extent protection an excellent debate and heard the arguments very well against that downward pressure. Small farms will also put on both sides. I shall start my comments with have to carry out their own negotiations on pay. That reading to your Lordships some of an Early Day might be perfectly possible—of course, they are not Motion that was put down in the other place in June stupid; I would not dream of saying that they are— 2000. It said, but it is an extra bit of work on top of a heavy “this House notes that … the Agricultural Wages Board also sets workload. a series of rates of pay to reflect the varying qualifications and The most recent impact assessment has revealed a experience of farm workers, thus providing a visible career structure much greater detrimental impact than the first one, for recruits going into agricultural work and is used as a benchmark and I ask the Minister why there is that difference for other rural employment; is nonetheless concerned that average earnings in rural areas are considerably lower than in urban areas; between the two impact statements. Does he have any believes that any weakening of the Agricultural Wages Board or assessment of how many small farms will go to the its abolition would further impoverish the rural working class, wall as a result of abolition? We know what will exacerbating social deprivation and the undesirable indicators GC 281 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 282 associated with social exclusion; and therefore calls on the Government economic climate in the agricultural industry has made at the conclusion of the current review, to retain the Agricultural it a less attractive option for young people. In the Wages Board as it is currently constituted”. union’s view, I read that out partly because it summarises the argument “rewarding skills, qualifications and level of responsibility is a that I want to make but also because among the names vital means of persuading high calibre people to remain in or of those who signed the Motion are some who are enter the industry”. now Members of your Lordships’ House; for example, Here I pay tribute to the noble Lord, Lord Plumb, for the noble Lords, Lord Clark of Windermere, Lord the foundation that he has set up and I was pleased to Campbell-Savours, Lord Taylor of Goss Moor, Lord be able to attend its launch. The union goes on to say Tyler and Lord Jones of Cheltenham. The name David that, Heath stands out. He is the Liberal Democrat Minister “reliance on a single national minimum wage will inevitably result responsible for abolishing the Agricultural Wages Board in an erosion of talent and skills from farming as more lucrative now, so I wonder what has changed in the intervening and less physically challenging professions are taken up”. 12 and a half years for Mr Heath. I think there are The second reason given is that: very important principles at stake here. “Agricultural workers are required to be flexible in their working arrangements to cover busy periods, fine weather and I pause at this moment to correct something in the unsocial hours which are not covered by general employment law intervention I made on the authoritative noble Lord, provision”. Lord Plumb, about getting the facts right. I checked The union believes that there is a still a vital role for the Government’s impact assessment, which has been additional minimum rates of pay across the six grades very helpful to us during this debate. It says that the for agricultural workers. The final reason given is that cost of running the board over 10 years is £800,000— it is an, £0.8 million—which equates to about £80,000 a year, “important means of avoiding potential conflict and lengthy so I was wrong and the NFU was wrong. I apologise negotiations with individual staff”. to your Lordships if I corrected the noble Lord incorrectly. People do not want the burden of negotiation that The principle of a rural living wage is important. If abolition would bring. That is the view of the Farmers’ you are poor in rural areas, it is a particular struggle. Union of Wales. It tells noble Lords that not all The quality of life in rural areas attracts asset-rich farmers are by any means agreed that abolition is a retirees and second-home owners, pushing up house good thing. prices, and local shops are a long way from distribution We have been privileged to hear from the noble centres and competition is limited because of the Lord, Lord Plumb, who is a former member of the geography, meaning that prices are higher than average. Agricultural Wages Board for England and Wales, but In its 2010 report, the Joseph Rowntree Foundation I want to repeat a short passage from a letter written said that it costs 10% to 20% more to live in rural areas. by a gentleman called Barry Salmon, a member of the board who is just about to retire. He is particularly Average wages are relatively low for the working concerned about training and attracting young people—a population, with the predominant sectors being cleaning, common theme when I researched this issue. He states care, hospitality and working in micro-businesses. If in his letter to the right honourable Owen Patterson, you are lucky, you will get a job in the public sector. the Secretary of State, that if he proposes that the Where I live in Dorset the largest employer is the local board must go, things like training and a proper wage council, where you will have decent job security and a structure will be lost: reasonable wage—if you can get a job there. But of “Come and work in the farming industry, a rewarding industry course rural councils are in turn underfunded, and I to work in, one that requires skilled employees, high skill levels am happy to be part of a group being led by Graham will be required and training can be given, a willingness to Stuart in the other place that is campaigning to get continue to train to meet new demands is essential, workers must better funding out of this Government for councils in be able to work on their own initiatives and take day to day rural areas. Of course, the best way out of poverty is responsibility for what they do. At busy and demanding times work, but only if work pays. Topping up low pay long hours are worked for which overtime rates are paid”, through the tax system by means of tax credits is one which, incidentally, is not guaranteed in the minimum good way of achieving that, but better still is for wage structure but is guaranteed, whatever you are employers to pay decent wages. That is why we should paid, in the Agricultural Wages Board structure. be campaigning for a rural living wage and why we “All of which is true but the rewards don’t look likely to should be retaining the Agricultural Wages Board. encourage new trainees into farming, no pensions, no sick pay, no entitlement to time off for such things as bereavements and worst My noble friend Lord Whitty talked about the of all the National Minimum pay scale applies with no formal position of Wales in his excellent opening speech. We structure above that to reward training. I cannot believe schools have heard from some speakers who support this are going to encourage pupils with the good practical skills abolition that farmers are united in their agreement needed to take up a career in farming”. that the Agricultural Wages Board is irrelevant and He starts to point out some of the other benefits— does not serve any purpose. However, the Farmers’ Union of Wales cites three good reasons for retaining 6.30 pm it, saying that it reflects the unique labour requirements Lord Deben: Will the noble Lord give way on that of the agricultural industry and that to abolish it point? would be a retrograde step for an industry which in recent years has been struggling to attract new skills and expertise. The three reasons are, first, that the Lord Knight of Weymouth: I would be delighted. GC 283 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 284

Lord Deben: First, I hope that the noble Lord will does not have holidays, sick pay or all the other explain to the Committee that there is a distinction entitlements that any other employee in every other between the Farmers’ Union of Wales and the National walk of life has? Of course he does. In my view it is not Farmers Union of Wales, which of course voted in the the wages board that is protecting him. He has normal opposite direction. There is a disagreement. employment rules and regulations, enjoyments and On the point that the noble Lord just raised, all privileges. those elements are in every other industry to which teachers might encourage people to move. Why would Lord Knight of Weymouth: I am most grateful to they not ask them to go into farming if there were no the noble Earl and his helpful intervention. Agricultural Wages Board but would ask them to go Under the national minimum wage legislation, there into all these other industries that do not have a wages is no minimum statutory level of overtime. Under that board? That does not stand up. legislation, you have an entitlement to 28 days’ paid holiday as opposed to 31 days under the Agricultural Lord Knight of Weymouth: I am afraid that I disagree Wages Board. There is also a maximum of 38 days for with the noble Lord about the unique nature of agriculture. workers working more than six days a week under the It is right that we have agricultural colleges giving Agricultural Wages Board, with no additional entitlement specific training, specifically feeding an industry with under minimum wage legislation. In terms of rest the skills that are needed. People need to have that breaks, under the Agricultural Wages Board you are training and understanding of the unique way of life, entitled to not less than 30 minutes where the daily in terms of working very anti-social hours at times working time is more than five and a half hours, and having to be highly flexible in the way that they whereas under the minimum wage legislation— work. Some 30% of farm workers have a boss who is also their landlord. There are a number of unique Lord Hunt of Kings Heath: Will my noble friend things about agriculture—he disagrees and I respect give way? I remind him of some of the evidence that his disagreement—that I do not know of in other came from the Duchy of Cornwall Nursery.The manager sectors. wrote in to say that he supports the abolition of the AWB and that “overtime rates are ridiculous”. Does Baroness Byford: I am grateful to the Minister for that not give a clue to how some people in the industry giving way. will act if the AWB protections are abolished?

Lord Knight of Weymouth: I am not yet a Minister. Lord Knight of Weymouth: The noble Lord makes a good point. He quotes evidence and I do not need to add to it. Baroness Byford: I apologise—too many years in opposition. I take the noble Lord up on the agricultural I could go on to help the noble Earl. The final colleges and universities—because two of them have point, which I think is most striking, is the entitlement become universities recently. I do not think that that to paid sick leave and the level of sick pay received. has anything to do with what my noble friend was Under the Agricultural Wages Board, all workers, saying. The agricultural colleges are hugely important. whether or not they are paid the minimum, are entitled They have an important role in encouraging young to 13 to 26 weeks on full pay after one year’s continuous people to come into the farming industry. But it is a employment, after which statutory sick pay applies. very different industry from what has been described Under minimum wage legislation, statutory sick pay— by several colleagues on the other side. currently £85.85 a week—applies where a worker has been sick for at least four days or more and has average earnings of more than the lower earnings Lord Knight of Weymouth: I mentioned agricultural limit, which is now £107 a week. colleges because I am not aware of another sector that has a specific network of colleges for its training. Earl Cathcart: I thought that it had been established There is something different and unique about agriculture, that 90% of farm workers are paid above grade 2 in which is very important. There may be others that the scales—£6.50 rather than whatever the level is other noble Lords want to mention. Maybe if I racked under the AWB. They are not being paid as minimum my brains I could come up with them, but I think wage earners. They are getting a proper wage like there is something unique about agriculture. anybody else who might be employed is getting a Other benefits are attached to the Agricultural Wages wage. I concede that temporary workers are paid the Board. For example, there is the entitlement to rest minimum wage, but normal salaried farm workers are breaks, overtime, paid holidays and even the allowance paid well above that. of £7.63 per week for working dogs. There is an on-call and night allowance. All these things are negotiated. Lord Knight of Weymouth: The important thing to They are all part of the reason why agriculture can be remember is that these legal entitlements for the regarded as a special case. agricultural sector apply regardless of whether your wages are at or above the minimum level set by the Earl Cathcart: I am not very good at employment Agricultural Wages Board. These entitlements—for law; I have to be frank about that. Are you saying that one and a half the usual rate for overtime, for example— my man to whom I am paying £16,000, which is are there regardless of what you are paid. That is an nothing to do with the wages board or that side of it, entitlement in law and we should protect it. I think GC 285 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 286 that it is a good thing for us as parliamentarians to That makes no sense to me. The proposal is then protect these minimum standards for workers, which brought here to Grand Committee where issues debated would go if the Government were successful with their are supposed to be non-controversial, and we have a amendment to abolish the Agricultural Wages Board. big row about whether the board should be abolished. Unfortunately, some people do not act as responsibly There is principled opposition and the noble Viscount as the noble Lords who have spoken and declared should now tell us that he will withdraw his amendment their interests as farmers. I point to the case of Chris and go away and reflect on it. He can then choose to Blakeney of Marden Management Ltd, who has just bring it back on Report but it is not appropriate for recently been in court in Swindon, where he changed the Grand Committee. his plea to guilty in respect of his activities as a gangmaster supplying 500 workers to farms across the Viscount Younger of Leckie: My Lords, this has country from his base in Calne. There are bad people been a helpful and somewhat lengthy debate, which around exploiting workers. When this protection goes, has included some passionate speeches from all sides that exploitation is likely to grow. of the Committee. I thank all noble Lords for their A good argument has been made on this side of the contributions. Committee for the retention of the Agricultural Wages I will clarify a couple of points. First, in relation to Board. What about the arguments against? I looked at a point that was made by my noble friend Lord Plumb the letter from the noble Lord, Lord Marland, the and led to a mini-debate concerning the figures in noble Viscount’s predecessor, to my noble friend Lord relation to retaining the Agricultural Wages Board, Stevenson on 19 December, when this amendment was my noble friend is right to highlight the cost of the announced. I note the manuscript amendment to the board. I have been advised that over recent years, the letter written by the noble Lord, Lord Marland, in annual cost of running it has been around £180,000 which he said, “I reluctantly agreed to this—decision and, for the ADHACs and the AWCs, the cost is above my unpaid grade!”. That clearly suggests that around £20,000. That is just for the record. Secondly, the noble Viscount’s predecessor thought that this was the noble Lord, Lord Hunt, brought up the issue of all a bit dodgy. I would be interested to know whether rates of pay for farm managers. He quoted a rate of the noble Viscount agrees with his predecessor about £14.10 per hour. I should like to clarify, and I hope he the dodginess of this amendment. will agree, that he quoted the overtime rates, not the I then looked at the letter from the noble Lord, basic rates. The minimum hourly wage rate is £9.40 Lord De Mauley, whom I am pleased to see in his and the overtime rate is £14.10. place. I think that we have answered most of the I will address directly some of the procedural issues questions. The noble Viscount repeated the notion that have been raised by noble Lords. The first issue that this will improve employment but, as we have was the question of whether the Agricultural Wages said, the impact assessment—on page 19, in paragraph Board met the requirements of the Public Bodies Act ii, headed “Employment”—says: procedures. This was raised by the noble Lord, Lord Whitty, my noble friend Lord Plumb, and the noble “This effect is highly uncertain, and may therefore not be significantly different from zero”. Lord, Lord Hunt of Kings Health. The Public Bodies Act is only one legislative route open to the Government The Government anticipate no employment effect at to abolish the board. It is not the only route and it is all. perfectly open to the Government to decide upon We have heard the arguments around whether another legislative option. agriculture is unique—people take different views on It would be politic to explain a little more about that. We have also heard the concerns about consultation. this. The Public Bodies Act created a specific set of The lack of consultation on the amendment is truly arrangements for the reform of a wide range of public shocking, given that 154,000 workers are directly covered bodies by means of secondary legislation, which included by it. Four weeks’ consultation is completely inadequate the consent of WelshMinisters, even where they exercised for such a measure. There is then the problem of the only minor functions. Welsh Ministers have specific, number of people who were not included in the list of minor functions under agricultural wages legislation, consultees. Action with Communities in Rural England for example in relation to the appointment of members was excluded. The various training organisations, such of the Agricultural Wages Board, and ministerial consent as Lantra, were not included. Housing bodies, such as was therefore needed to the proposal to abolish the the National Housing Federation and Shelter, were board under the Public Bodies Act. The WelshGovernment not included, even though the housing committees are refused to give consent without powers to set agricultural being abolished. Even the Arthur Rank Centre was wages and other terms and conditions being transferred not included, despite the important role that we know to the Welsh Ministers. The Government could not the church plays in rural communities. agree to this for two main reasons. First, we regard this The consultation has been shocking. The procedure as a non-devolved matter relating to employment and, has been ignored. I would have welcomed a four-week secondly, this would involve using the Public Bodies consultation if it had been for the ash trees, for which Act to extend devolution in a way that was never we had an eight-week consultation; that matter was intended. I hope that that goes some way to explain urgent. There was a really good reason for a short why the Agricultural Wages Board stood out on its own. consultation on ash tree disease and four weeks would have been great; but we chose to go for eight weeks Lord Howarth of Newport: Will the Minister also be where there is an urgent need but four weeks to get rid good enough to explain to the Committee why it is of something that has been in existence since 1917. acceptable for the Government to use the Bill to alter GC 287 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 288

[LORD HOWARTH OF NEWPORT] The policy on the abolition of the AWB and related the effect of the Public Bodies Act, whereas it is not committees was first announced in July 2010, so there acceptable for the Opposition to use the Electoral has been plenty of time for stakeholders and interested Registration and Administration Bill to alter the effect parties to make their views known. In particular, key of the Parliamentary Voting System and Constituencies stakeholders had the opportunity to do so during Act? meetings of the Agricultural Wages Board and the Agricultural Wages Committees. The department felt Viscount Younger of Leckie: I note the point that that a four-week consultation period was proportionate the noble Lord is making but I was addressing purely and realistic, given the length of time that the policy the issues relating to the Agricultural Wages Board. I had already been in the public domain. This is also in do not want to address or make a comparison with line with the Government’s new consultation principles. any other issue. In this respect I will address a point raised by the noble Lord, Lord Hunt, when he expressed concerns 6.45 pm about those principles. The new principles allow for a tailored approach to the circumstances and needs of a Lord Whitty: I am grateful to the Minister for particular case. Twelve weeks is not necessary in every confirming that one of the reasons for the change of case. The principles say that the timeframes for tack by the Government is the Welsh situation but he consultation should be “proportionate and realistic”. is surely wrong in his remarks on devolution. The department considers that the timeframe for this The Agricultural Wages Board has always been consultation was appropriate, given that the policy dealt with by the agriculture department. Well before had been known for some time, as I explained a little political devolution, there was a separate devolution earlier. to the Scottish agriculture department. There is a As mentioned, we also sent the consultation document separate arrangement in Northern Ireland. The to 13,000 bodies and held six meetings throughout the employment issue falls to the United Kingdom. There country to enable views to be heard. This very much is no difference in agriculture between Wales, Scotland involved Defra, which was also very much involved in and Northern Ireland, so why is the Minister prepared disseminating information to those bodies and to many to accept that there should be devolution to Scotland businesses to make them aware of the launch of the and Northern Ireland, quite rightly, but to deny Welsh consultation. Ministers’ request, in the light of the decision in relation to England, to have a devolved body in Wales? Lord Howarth of Newport: I apologise for troubling Viscount Younger of Leckie: My Lords, it is not for the Minister again, but would he also explain, because me to say it is only that. This is an historical fact, and I I think people in Wales would be very interested to was just setting out the background to this. This is why know his account of this, why one week’s consultation the Agricultural Wages Board has remained separate. was good enough for Wales when four weeks was Now, in this Bill, we are looking to sort this out. allowed for England?

Lord Elis-Thomas: I apologise; I have been unable Viscount Younger of Leckie: Ihavetosaythatitwas to follow the whole debate, as I have been sitting in the news to me—I have heard it today for the first time—that National Assembly in Cardiff. there was one week’s consultation. It is my clear Is the Minister aware of the statement issued yesterday indication that it was not one week. It was a lot longer by the Counsel General for Wales in which he proposes than that. I do hope that it was at least four weeks, but to refer the whole matter to the Supreme Court if the I will certainly get back to the noble Lord to clarify Minister persists with the current policy? this, as it is important. The noble Lord, Lord Whitty, in expressing concerns about the consultation responses, also stated that he Viscount Younger of Leckie: I note the noble Lord’s wanted clarification. On the question of where the comment. I was not aware of that. consultation responses are, all the responses are publicly available in the Defra library. Moreover, Defra officials The Deputy Chairman of Committees (Lord Faulkner specifically alerted the former Unite leader to the of Worcester): It might be for the convenience of the availability of the responses. Committee if I remind the Committee that the Companion On the content of the responses, it is worth pointing says: out to noble Lords that there were 939 respondees, of “Members of the House who are taking part in a debate are which 345—37%—agreed with the proposal to abolish expected to attend the greater part of the debate. It is considered the Agricultural Wages Board; some 575—61%—were discourteous for Members not to be present for the opening against, and 2% were “don’t knows”. The main point I speeches, or at least the speech before and that following their own, and for the winding-up speeches”. want to make is that of the 575 against, 242 came from the same website. Viscount Younger of Leckie: I will move on to the issues that have been raised about the consultation Lord Hunt of Kings Heath: With the greatest respect, period. Several noble Lords raised this issue, including I imagine that some of those people represented about the noble Lords, Lord Whitty, Lord Howarth of Newport 157,000 workers, so it seems to me that that is not at all and, indeed, Lord Knight of Weymouth. unreasonable. GC 289 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 290

Viscount Younger of Leckie: If the noble Lord is present—stand by the assessment, the removal of prefers, I can get back to him—I will, indeed, get back the Agricultural Wages Board will clearly lead to a to him—with more details concerning this response. I serious reduction in wages in the agricultural sector. was purely expressing some facts concerning the response. Viscount Younger of Leckie: The intervention of Lord Hunt of Kings Heath: With respect, it is not the noble Lord allows me to move on to focus on the unusual for organisations to send notes to their members impact assessment. I do not recognise the figure that detailing changes that are going to be made and their he has brought up. The impact will be between nought implications. The noble Viscount seems to be saying and £150 million. that because these figures came through websites—I think he mentioned five websites—somehow they should Lord Whitty: To clarify, there is a range, but I am be discounted. Surely that cannot be right. Is the using a figure close to the best estimate which amounts Government’s new approach to consultation to make to about £250 million. judgments about who they are going to listen to and to discount those responses that they do not like? Baroness Buscombe: My Lords, I am grateful to the Minister. I have been sitting here and slowly thinking Viscount Younger of Leckie: With respect to the to myself that I cannot continue to listen to the noble noble Lord, I did not say that I was discounting them. Lord, Lord Whitty, making this incredible, disingenuous I was just producing some facts. However, it is strange argument. I am going to go back down memory lane that such a high number of responses came from the briefly. I remember when the noble Lord, Lord Whitty, same website. I hope that that is a reasonable view to was Minister for Agriculture and we had the Burns express. As I say, I shall be delighted to get back to the report. noble Lord with some clear figures and a response to that. Lord Myners: I am grateful to the noble Baroness The noble Baroness, Lady Donaghy, raised the for giving way. The Chairman has already read from question of whether Northern Ireland or Scotland the guidance on participation in debates. The noble had been asked for a view on the abolition of the Baroness was not here at the beginning of the debate Agricultural Wages Board. I should clarify that the and in that circumstance— Agricultural Wages Board in Northern Ireland and the Agricultural Wages Board in Scotland constitute Baroness Buscombe: Excuse me, I was here. separate bodies and it is for their respective devolved Governments to take a view on their future. Lord Myners: Then I apologise. The noble Lord, Lord Whitty, asked about the terms and conditions of farmers and their pay and Baroness Buscombe: Good. sick pay under the current regime. Having two systems which may apply on the same site for the same I remember so well that when the noble Lord, Lord organisation is not ideal. This measure obviously covers Whitty, was in government, the Burns report looked agricultural workers and will cover others who fall into the future of hunting. The report came back into the non-agricultural sector. Surely it is more saying that if we lost hunting, the lives of a huge confusing and difficult to operate such a system. As I number of people in rural areas would be affected. said in my opening speech, farm businesses are increasingly They would lose their jobs and that would have a diverse and carry out non-agricultural activities. massive impact on the rural economy. I remember the noble Lord standing at the Dispatch Box saying “I do The noble Baroness, Lady Donaghy, asked why not like hunting. I am not interested in what the Burns there was a difference between the first and second report says. We are going to get rid of it anyway”. impact assessments. The first impact assessment was Here is the noble Lord, Lord Whitty, talking so much informed by independent research which compared about the need for consultation as if he really cares the agricultural sector with the forestry and fisheries what the result might be. This is all about dogma. sector in order to assess the effect of the Agricultural What has been going on this afternoon has been Wages Board minimum wages. However, this did not vacuous and disingenuous, and I hope that the Minister allow for the fact that forestry is covered by an agricultural will feel strong in his argument and ignore these wages order. Since the consultation, the contractors disingenuous requests to remove the amendment. have revised the analysis to correct this. Lord Whitty: I am quite happy to have another Lord Whitty: My Lords, does that mean that the debate about hunting. I understand, however, that the Government stand by the second impact assessment? Prime Minister is not prepared to pursue it. I have not If it does, it undermines everything that has been said seen the devastation in jobs in hunting since the hunting in favour of abolition of the wages board and the Act was passed, but let us put that to one side. All I argument that that will make no difference, given that was asking the Minister was whether he stood by his the second impact assessment says very clearly that own department’s calculations of the effect on wages over the next 10 years agricultural workers will lose in the agricultural sector of abolishing the board. It is £250 million worth of employment income. Let us be a straightforward question on which I would like a absolutely clear: if the Government, the noble Viscount’s clear answer: if he does still accept it then everything department and Defra—the noble Lord, Lord De Mauley, we have been saying on this side is correct and there GC 291 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 292

[LORD WHITTY] Lord Myners: My Lords, the Minister made what I will be a serious detrimental effect. If he wishes to thought was a rather unnecessary remark about the change it, however, I suggest he produces a different fact that I was absent from the Committee for not impact assessment before we reach Report. more than five minutes—in a debate that has run for two and a half hours, and I was here for about an hour Viscount Younger of Leckie: I will do my best to before that. I will not explain to noble Lords why I answer the noble Lord’s question. Our figures tell us chose to leave the Room for five minutes, but for the that the impact assessment for new workers will be Minister to make a point on that shows how desperate from nought to a worst-case scenario of £150 million. he is to keep the faith of his supporters. However, as I mentioned in my opening speech, there On the subject of people leaving the Committee, is no reason to suppose that the 60% of workers who the noble Lord, Lord Cameron of Dillington, who is are currently on a contract will not remain on their no longer in his place, asserted his view that he did not existing contract. Noble Lords will know that, if you think that the benefits would be passed on to supermarkets. are an employer, you cannot suddenly change or reduce I question that given that in their evidence to the a contract between two people. consultation the supermarkets have been hugely The reality will depend on how farmers use the supportive. One wonders why they are supportive of increased flexibility that will result from the abolition this proposal if they do not expect to benefit. If that is of the Agricultural Wages Board. Many workers are also the view of the Government, can the noble Viscount already paid above the agricultural minimum wage, so explain to us in very simple terms that if you have a there is no reason why there should be a change. transferred benefit here—taking £250 million out of Moreover, the underlying labour market conditions the rural economy—where is that £250 million going? suggest that workers will be in demand and farmers There has to be an equal and off-setting amount. will need to offer competitive packages to attract and Where does the Government believe the benefit will retain skilled and qualified staff. I am afraid that the accrue? evidence is against the noble Baroness, Lady Donaghy, who was claiming that the jobs would not be available and farm workers would be leaving the sector. I do not Viscount Younger of Leckie: First, I apologise to believe at all that that will be the case. the noble Lord. There was absolutely no derogatory I am also grateful for the intervention from my comment intended. noble friend Lord Plumb. It is encouraging to note his I do not believe that the money will be taken out of comments and all the efforts that he has been making the agricultural economy. The whole point of making in encouraging new workers into farming. I am also this change and abolishing the Agricultural Wages grateful for the intervention from my noble friend Board is to create a more flexible environment and to Lady Byford who, quite rightly, pointed out the enable farmers to recruit new workers. importance of ensuring that there were some good working practices that will be retained within the agricultural sector. Lord Myners: There is nothing in the Agricultural The noble Lord, Lord Myners—who is now back in Wages Board that in any way prevents a farmer from his place—spoke about the difference between the paying more, as indeed the noble Earl explained to us. Low Pay Commission and the Agricultural Wages This is “flexibility” used as a euphemism. It is a Board. This is exactly the point: there is no need for flexibility that only moves in one direction. The Minister’s two different bodies both assessing low pay issues. argument simply does not withstand any close and That plays into our hands as to why we believe that it critical examination. is right to abolish the Agricultural Wages Board.

7pm Viscount Younger of Leckie: I think I should repeat The noble Lord, Lord Hunt, raised the issue of the to the noble Lord that the Agricultural Wages Board abolition being non-deregulatory. Many farm businesses has been in existence for 65 years. I realise that that is have to operate both the agricultural minimum wage not necessarily a reason for changing but there are still and the national minimum wage. Therefore, it will be a some great anachronisms within the system. Secondly, removal of a regulatory burden to have a single part of the point is to release farmers from the employment regime. Moreover, many of the consultation administrative burden of the two-tier, dual system. So responses commented on the complications of the I stick by my view that this is long overdue and it is agricultural wages order and the difficulties for farmers right that we should take this step. in understanding the complexities of its provisions—points The key priority for this Government is to encourage made with great eloquence by the noble Earl, Lord economic growth. The Government firmly believe that Cathcart. the abolition of the Agricultural Wages Board and the The noble Lord, Lord Hunt, raised the issue of agricultural minimum wage regime is in the long-term pressure from supermarkets. Since February 2010, all interests of all those within the industry. It will enable contracts between major food retailers and their direct the sector to meet the challenges of increasing domestic grocery suppliers must comply with the Groceries food production and help secure its long-term prosperity. Supply Code of Practice. The aim of the code of The abolition of the related Agricultural Wages practice is to ensure that those who directly supply the Committees and Agriculture Dwelling House Advisory large grocery retailers do not have unexpected costs or Committees in England will also contribute to the risks transferred to them. Government’s public body reform programme and GC 293 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 294 will remove a number of redundant bodies, as mentioned debtor’s centre of main interest and whether the debtor earlier. I hope that the Committee will accept the is unable to pay their debts. Establishing the centre of amendment. main interest is important due to the recent development of bankruptcy tourism, where individuals from states The Deputy Chairman of Committees: The Question with more onerous bankruptcy regimes, such as Germany is that Amendment 28ZK be agreed to. As many are of or the Republic of Ireland, petition for bankruptcy in that opinion will say “Content”. the UK in order to be discharged from their debts after 12 months. If the adjudicator is satisfied as to both criteria the order will be made. If the adjudicator Noble Lords: Content. is not satisfied that the criteria have been met, they cannot make the order. The Deputy Chairman of Committees: To the contrary, The adjudicator will be able to request further “Not Content”. information from the debtor, and if they receive information from third parties—for example, a spouse Noble Lords: Not Content. writing to the adjudicator to claim that the debtor was seeking to go bankrupt in order to avoid matrimonial claims—they would be able to decide whether or not The Deputy Chairman of Committees: My Lords, to take this information into account. If the adjudicator paragraph 8.103 of the Companion states: is satisfied that the criteria have been met after receiving “As divisions are not permitted in Grand Committee, decisions further information, the order will then be made. If to alter the bill may only be made by unanimity. Thus when the the adjudicator rejects the application, the debtor is Question is put, a single voice against an amendment causes the amendment to be negatived”. able to request a review of their file. If, after review, the application is once again rejected, the debtor can I therefore declare this amendment negatived. appeal to court. Amendment 28ZK negatived. We need to consider the scale of the problems being faced by people experiencing unmanageable debt. We believe that some 6.2 million households are either in, Schedule 18 : Adjudicators: bankruptcy applications or are close to having, significant debt problems. by debtors and bankruptcy orders Bankruptcy is only one of three formal debt solutions, each of which involves the court, a licensed insolvency practitioner or the Civil Service equivalent. These Amendment 28ZKA include debt relief orders, individual voluntary Moved by Lord Stevenson of Balmacara arrangements and county court proceedings. However, many of StepChange’s clients prefer to reach a voluntary 28ZKA: Schedule 18, page 244, line 12, at end insert “except arrangement which we broker with their creditors and during any postponement period of ten working days as set out in section 263K(2)(b),” enter into a debt management plan under which they pay off their debts through us over a number of years. Last year, we returned some £300 million to creditors, Lord Stevenson of Balmacara: My Lords, I shall and we are on target to counsel some 500,000 individuals speak also to Amendments 28ZKB, 28ZKC, 28ZKD this year. and 28ZKE which are in my name and that of my noble friend Lady Hayter. I should make it clear that At present, when a bankruptcy application is made we on this side support the new bankruptcy regime to the court, either staff at the filing stage or the and welcome what is set out in the Bill to try to make district judges or registrars at the hearing have an progress in this important area, but we would like to opportunity to point the debtor towards proper debt suggest some improvements. In so doing, I declare an advice, and many discover that an alternative debt interest as chair of StepChange, the leading debt remedy is more appropriate for them. This may not advice charity. only prevent miscarriages of justice, as I have already mentioned, but may also save the court, and particularly We are concerned that the proposed changes to the the official receiver, considerable unnecessary work. bankruptcy process, wherein a court-based process is being replaced with an adjudicator, may lead to individuals However, we understand that under the new proposals, and sole traders being declared bankrupt when there is an adjudicator will not have the discretion to refer a actually an alternative debt solution which would be debtor to seek advice, and will have no choice but to more appropriate for their situation and would have process all eligible bankruptcy applications without less severe consequences for the debtor. Such miscarriages considering whether an individual may be better off of justice could lead to the debtor unnecessarily losing using an alternative debt solution. assets, including their house, or unnecessarily closing The Government propose to deal with this concern their business, and prevent them getting bank finance in the new adjudication process by assuming that for 12 months or longer. debtors will take independent debt advice before making Particularly at this time, we need to be very careful their bankruptcy applications. However, in practice we about how the debt relief processes work in practice. know that many of our clients can stall over doing Under the new process, as I understand it, a debtor something about their debts for up to a year, until will make an application to an adjudicator. The something such as illness or reduced earnings tips adjudicator will then determine the application based them over the edge, so to speak. We are therefore very on two criteria: the jurisdiction criteria based on the concerned that the procedures to be introduced do not GC 295 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 296

[LORD STEVENSON OF BALMACARA] Amendment 28ZKE reflects our concern that discretion place sufficient stress on the need for debtors to seek for the adjudicator to seek guidance from the court independent free advice, with the consequence that the has not been included in the Bill. If the adjudicator new system will be much less effective at preventing were given the discretion to ask the court for directions inappropriate bankruptcy applications. if she is not satisfied as to whether the criteria for making an order have been fulfilled, this could avoid Encouraging debtors to take appropriate debt advice the review and appeal process, as the court could prior to submitting an application will not necessarily provide an answer or guidance on complex issues, ensure that they have all the information that they including cases where a petition may have been presented need in order to make an informed decision on whether for an ulterior motive, such as to avoid matrimonial bankruptcy is the best solution. Debtors contemplating claims. bankruptcy are understandably under enormous financial and emotional stress and may be unaware of the At present it is up to the debtor to appeal to the sources of potential advice: my charity is the leading court if, for example, the adjudicator rejects their purveyor of free independent advice, but there are application, and in these circumstances the debtor others, including Citizens Advice, and there are also may face the prospect of two fees—not a palatable fee-charging operations including, of course, insolvency prospect if the debtor is out of funds. If the adjudicator practitioners. had the ability to seek guidance from the courts, we think that many cases may be resolved without the Furthermore, while debtors may be aware of the need for the debtor to apply to the court directly and gravity of bankruptcy and its implications, they may incur additional fees. be unaware that they may qualify for an alternative debt remedy that would cost less, or be free, ensure Without the ability to seek guidance from the court, that they maintain their homes and possessions, and the process will also be unnecessarily prolonged and have far less grave implications for their future relationship may expose the debtor to additional perils. In the to credit. interim period between the initial application for the order and the last resort of an appeal to court, there I understand that in Scotland, where we operate as will be no moratorium from creditor action and debtors a separate charity, consideration is currently being could still be pursued by their creditors, with all of the given to making debt advice mandatory within the associated stress and anxiety that this can cause. In insolvency processes there, and I applaud that. I urge our view, the drawn-out process could be avoided if the Government to consider whether this would be a the adjudicator could seek guidance from the court in sensible step here. It would be possible to legislate to the first instance. require a debtor to confirm that they have received independent expert advice before making their application. We understand that the Government have If that is too radical a step at this stage—and I accept discussed the issue with insolvency practitioners and that it may be—I urge the Government to think about they take the view that it is more important to have a emulating the Scottish Government to the extent of at simple system shorn of subjectivity and to a large least reviewing the whole debt arrangements system extent kept out of the courts. Those are admirable before too long. We have a major problem looming, as aspirations, but when he comes to respond, will the too many people are bumping along while prices rise, Minister honestly defend a situation where simplicity and with the spectre of a return to “normal” interest seems to be trumping individual rights, where difficult rates possibly the trigger for a whole range of new judgment calls are eschewed in place of a box-ticking problems. process and where people’s rights to be heard in court are being threatened? I would be willing to meet the Amendments 28KA and 28KD give the adjudicator Minister and his team if that would be helpful the opportunity to stay proceedings and work with because I hope that we can find accommodation on debtors while they seek independent debt advice; or these matters. I beg to move. enable debtors to withdraw their application during the 10-working day postponement period, for example if they are advised during that period that bankruptcy 7.15 pm is not the most appropriate debt solution. Viscount Younger of Leckie: My Lords, the When he responds, will the Minister clarify whether amendments seek to extend the role of the adjudicator the Government will consider ensuring that the online introduced by Clause 63 of the Bill. Noble Lords will forms to be used in this new system will require be aware that the reforms to the debtor-initiated debtors to confirm that they have sought appropriate bankruptcy process remove the order-making function debt advice from the independent and free debt advice from the court, and replace it with a new administrative charities? Will he also confirm whether there will be process. This provides an opportunity to introduce a an exhortation for the debtor to work with the debt modern, electronic and more efficient application process, advice organisations such as StepChange, Citizens and was indeed first consulted on by the previous Advice and IPs to ensure that the advice suggested or Government. A similar process has been successfully required on the online forms captures the best possible operated in Scotland since 2008, as the noble Lord, options and language for the debtor? Will the Minister Lord Stevenson, has already mentioned. The adjudicator also confirm whether discussions are being held with will be required to consider each application and the Scottish Government, particularly the Accountant decide on an objective basis whether or not the criteria in Bankruptcy up there whose scheme is very similar for making a bankruptcy order are met. If they are, to that proposed? the adjudicator must make a bankruptcy order. GC 297 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 298

The first four of these amendments seek to impose court still has a role to play. Where the adjudicator a requirement on the adjudicator to consider whether refuses to make a bankruptcy order because the criteria bankruptcy is the right option for the applicant, and are not met, the debtor will have the right to appeal to whether an alternative debt solution may be more the court. That provides a route to court in those cases appropriate. The proposal is that the adjudicator should where it is needed. The court will also continue to have a discretion to hold off making a bankruptcy determine creditor-initiated bankruptcy petitions, which order for a period if he or she feels the debtor may are more likely to be complex and contentious. benefit from taking further advice. For these reasons, the Government consider that The amendments may be motivated by a power that this amendment would confer an unnecessary the court presently has to refer a debtor who has discretionary power on the adjudicator. In the light of presented a bankruptcy petition to an insolvency these reassurances about the application process and practitioner in a case where an individual voluntary the recourse to court for debtors, I hope that the noble arrangement may be a viable alternative to bankruptcy. Lord will agree to withdraw the amendment. I understand, however, that the courts very rarely make use of this power. Lord Stevenson of Balmacara: I thank the Minister I reassure noble Lords that before making their for that response. I sense within what he has said that bankruptcy application, applicants will be strongly he shares some of my aims in tabling these amendments, encouraged to take independent debt advice to ensure and I welcome that. However, I am still a bit perplexed. that bankruptcy is really the right option for them. My If you are prepared to go down the route of ensuring officials will work with the Money Advice Service and that those responsible in these processes flag up the providers within the debt advice sector to ensure that options that are available to people—as I tried to applicants have the information they need to make an explain in my opening remarks, there are many people informed decision. Furthermore, within the electronic for whom bankruptcy is the wrong solution; in the application process itself, we propose to include a rather overused phrase, it is the nuclear option—and series of warnings to ensure that applicants are made you are going to ensure that appropriate warnings are fully aware of the serious implications of bankruptcy put on to the application forms, we are very close before they make their application. We will also ensure indeed on this point. It therefore boils down to a that the process flags up any alternative debt remedies question of whether there is a bit more discretion in that may better suit their circumstances. the system than perhaps the Minister is prepared to The Government consider that these safeguards are admit. I find that puzzling. sufficient to ensure that debtors are empowered to I tried to explain in my opening remarks that there make an informed decision as to whether or not is an awful gap for a debtor who is attempting to try to bankruptcy is the right option for them before they resolve a crisis because the only two options are to take the serious step of making a bankruptcy application. trust an adjudicator, and if the decision goes against The Government believe that these amendments would the debtor, to find, finance and pay fees for an appeal unnecessarily complicate the process by requiring the to the court. As the noble Viscount has said, there are adjudicator to exercise discretion on a case-by-case areas where the court will be better placed to make basis. That would increase administration costs with these decisions. The other point he made was the need an impact on the application fee. It would also delay to make sure that, in the first instance, there is sufficient access to debt relief for the debtor, who would have discretion in the appointment of adjudicators who elected for bankruptcy in full knowledge of their other have the sensibility to make sure that people are involved. options. The noble Viscount has hinted that further discussions Amendment 28ZKE seeks to give the adjudicator may take place between his officials and the appropriate power to apply to court for directions in relation to authorities. I would urge that they involve the main any matter arising in connection with the bankruptcy bodies that are actually involved in the direct dealing application. The policy intention is to ensure that the with those who have debt problems and not with the system delivers better outcomes by focusing the court’s Money Advice Service. Obviously it will have an interest role and resources on matters of dispute that rightly in this, but I think we need to speak to the experts in require judicial intervention and expertise. The onus this matter. Perhaps we could have a side exchange on will be on the debtor to show that he or she meets the how those discussions go and whether the right people relevant criteria. However, the application process will are being consulted. I would then be less concerned be designed to help the debtor and to ensure that the about them. adjudicator has all the information needed to reach a We may have to come back to this issue because to decision. The adjudicator will also be able to request me it feels too tight, but perhaps further experience such additional information from the debtor as he or will be sufficient. On that basis, I shall withdraw the she considers necessary for determining whether a amendment. bankruptcy order should be made. The Government recognise that complex issues may Amendment 28ZKA withdrawn. arise in a small minority of cases, especially around the jurisdictional criteria and where the debtor’s centre of main interests is located in England and Wales. Amendments 28ZKB to 28ZKE not moved. However, persons appointed as adjudicators will have the skills they need to do the job without the need for recourse to the court. It is acknowledged that the Schedule 18 agreed. GC 299 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 300

Schedule 19 : Adjudicators: minor and consequential bankruptcy Bill that is about to go through the Scottish amendments Parliament, which I am sure officials are well briefed about, seems to take as its starting point a slightly different perspective to those with debt problems from Amendment 28ZL the one that we are taking in England and Wales. I Moved by Viscount Younger of Leckie slightly regret that. I am not overstating it when I say that there is an ambition north of the border—is there 28ZL: Schedule 19, page 248, line 14, at end insert— not always an ambition north of the border?—to “ In section 293 (summoning of meeting to appoint first create what is called there, possibly in correspondence trustee), in subsections (2) and (3) for “court” substitute “prescribed person”. rather than in the main line, a financial health service. Perhaps the Minister could reflect on whether there is In section 295 (failure of meeting to appoint trustee), in subsection (3) for “court” substitute “prescribed person”.” some element of that in what is being proposed in the totality of the amendments that we have been considering today. Viscount Younger of Leckie: My Lords, these amendments make minor and technical changes to the The point that I am driving at is that, if we focus Insolvency Act 1986 and relate to the reforms to the only on the processes when people are already facing debtor bankruptcy petition process introduced by imminent bankruptcy or worse, we are not picking up Clause 63. The reforms will remove the existing the sensibility that I think is infusing the thinking by requirement for the indebted individual to present a the Accountant in Bankruptcy and in the Scottish bankruptcy petition to court and replace it with a new Parliament on these matters, which is that far greater administrative process. Presently, certain statutory notices attention should be placed on the role for public are required to be filed at court during the course of a involvement in the borrowing and lending processes bankruptcy. Most of these requirements are presently that affect individuals. Too many people find it very set out in the Insolvency Rules. However, a small easy to borrow and extremely hard to save. That number of requirements are contained in the Insolvency balance is completely wrong. We should have a much Act and are the subject of these amendments. more balanced approach to how these things operate and how we regulate in a space within which people The proposed amendments would ensure that extend credit in order to provide the sort of services Ministers, in consultation with stakeholders, are able that they wish to use during their lives but at the same to modernise and make more efficient all of the filing time acquire debts that have to be serviced and eventually and document inspection processes governing both repaid. debtor and creditor initiated bankruptcies without the need to amend the Act in the foreseeable future. It is There is a bigger and better conversation to be had anticipated that, where the bankruptcy is commenced around whether the 19th-century and 20th-century by way of the debtor making an application to the notions of debt are as appropriate as they should be in adjudicator, documents generated will not necessarily the 21st century to the way in which people operate. be routinely filed at court. While the Government have At one level—I do not want to extend this debate, but no intention at present to change the current policy of I think that this is an important point to put on the filing notices at court in relation to creditor-initiated record—there are many instances where we see behaviour bankruptcies, it is possible that in the future the in the marketplace that is counterintuitive and absurd. Government may be minded to extend some or all of I am thinking particularly of payday lenders. The the filing efficiencies introduced in relation to debtor- problems relate to the flow of credit to those who need initiated bankruptcies to creditor-initiated bankruptcies. it and the pressures under which they operate. The fact The strong policy preference is that such detailed that people are prepared to take out these ridiculous procedural requirements, including those relating to loans at absurd interest rates and impossible repayment filing, should be in the rules and not in the Act. This is terms is not a reflection of iniquity on the part of the in line with a wider government agenda to consider lenders; it is a reflection of something that is going on the overall structure of insolvency legislation with a in society. We are not tapping into that in the proposals view to ensuring consistency in what is contained that we are hearing today. Yes, it is sensible to take within the primary and secondary legislation. One of away the courts’ role as a primary source for all these our aims is to remove detailed prescriptive requirements bankruptcy applications but only, I would argue, if we from the primary legislation wherever possible. The are also aware of and alert to the other ways in which amendments also make other minor and technical people can be assessed for indebtedness and helped to changes that are consequential to the reform of the find an appropriate way forward. On that basis, I find debtor petition process. I beg to move. this general approach right but possibly lacking context. I wonder whether, in his closing remarks, the Minister could make a few comments on that area. Lord Stevenson of Balmacara: My Lords, I have listened carefully to the Minister. I find that these proposals are in keeping with the general approach 7.30 pm that has been taken and I have no particular objection to them. I mentioned in my contribution on the earlier Viscount Younger of Leckie: I listened carefully to amendments that I was much taken by the experience the noble Lord, Lord Stevenson, and I am very grateful in Scotland; I was trying to suggest that there are to him for his full response. I very much take note of lessons to be learnt from there. I make this point, the issues that he raised concerning the need to provide which I think would be worth reflecting on. The new better help to those who unfortunately get into debt. GC 301 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 302

I think that the best thing to do is to follow up his suggestion to take this further in discussion outside Amendment 28A this Committee. Moved by Lord Lucas Amendment 28ZL agreed. 28A: Before Clause 65, insert the following new Clause— “Ownership of licences to copyright Amendments 28ZM to 28ZT (1) Any natural person who acquires, for value and for his personal use only, the right to use a copyright may, for value or Moved by Viscount Younger of Leckie otherwise, transfer that right to any other person. 28ZM: Schedule 19, page 248, line 18, at end insert— (2) Any terms in any contract that purport to forbid, place restrictions on or require payment for a transfer under subsection “ In section 298 (removal of trustee and vacation of office), in (1) shall be null and void. subsections (7) and (8) for “court” substitute “prescribed person”. (3) Any person who in any way controls the use of a copyright (1) Section 299 (release of trustee) is amended as follows. must do all things necessary, without undue delay and without (2) In subsection (1)(a) for “to the court” substitute “under recompense, to effect a transfer under subsection (1) above.” this paragraph to the prescribed person”. (3) In subsection (3)(a) for “court” substitute “prescribed Lord Lucas: My Lords, in moving the amendment, person”.” I wish to speak also to Amendment 28B. 28ZN: Schedule 19, page 251, line 38, leave out “In section 415 (fees orders), after” and insert— Since I tabled these amendments, we have had a “(1) Section 415 (fees orders) is amended as follows. Christmas present from the ministry. On 20 December, the Secretary of State was kind enough to announce a (2) In subsection (1)— package of intentions to reform copyright which entirely (a) after paragraph (a) omit “and”, and supersedes my Amendment 28B. Therefore, I will not (b) at the end of paragraph (b) insert “and trouble the Committee by addressing that because (c) the performance by an adjudicator of functions clearly we will see this in a proper and thought through under Part 9 of this Act,”. form when we come to the Bill that will follow the (3) After” announcements made by the Secretary of State. However, 28ZP: Schedule 19, page 252, line 28, after “adjudicators” we have a small cameo performance on copyright now insert “in the discharge of functions for the purposes of Part 9 of before we go to bed. I would be grateful if the Minister this Act” could confirm that the 28th of this month will be the 28ZQ: Schedule 19, page 252, line 40, at end insert— next day in Committee, since clearly this stage of the ““24ZA Provision requiring adjudicators— Bill is now going to go into 10 sittings. If there is any (a) to keep files and other records relating to bankruptcy suggestion that there will be a day in between, will we applications and bankruptcies resulting from all receive an e-mail notification rather than having to bankruptcy applications, spot that something has changed on the Order Paper? (b) to make files and records available for inspection by It seems to me that copyright is aptly described by persons of a prescribed description, and Macaulay. A lot of people speak as if copyright is a (c) to provide files and records, or copies of them, to god-given possession of creative people. It is not; it is a persons of a prescribed description. deal done between those who consume copyright 24ZB Provision requiring an adjudicator to make returns to material—I both produce and consume copyright the Secretary of State of the adjudicator’s business under Part 9 material—and those who produce it. In order that it of this Act.” should be produced, those who consume are prepared 28ZR: Schedule 19, page 253, line 2, after “applications” to let the copyright owners have a limited monopoly insert “and bankruptcies resulting from bankruptcy applications” on it, but that monopoly is not without terms. It is 28ZS: Schedule 19, page 253, line 3, leave out “those” given in order that it should be available for consumption. 28ZT: Schedule 19, page 253, line 4, at end insert— The way in which people want to consume copyright “24B Provision requiring a person to whom notice is given material is therefore an important part of negotiating under section 293(2), 295(3), 298(7) or (8) or section 299(1)(a) or and renegotiating the bargain between users and producers (3)(a)— of copyright material. (a) to keep files and other records of notices given under the My firm view, which, to judge from his 20 December section in question, and announcements, is shared by the Secretary of State, is (b) to make files and records available for inspection by that we should look at copyright as a means of increasing persons of a prescribed description.”” national wealth, not just of producing a nice little rose garden to enable creative people to live comfortably Amendments 28ZM to 28ZT agreed. and have everything exactly the way that they want it. It is a bargain between two sides. It is an agreement to use something that is essentially an evil—a monopoly—in Schedule 19, as amended, agreed. order to enable something good to happen. My view, like that of the Secretary of State, which is covered in Amendment 28ZU not moved. Amendment 28B, is that we must from time to time look at the way in which copyright functions in this country and ask whether it is serving the interests of Clause 64 agreed. users as well as those of the people who create it. In the case of fair use, quite clearly the rules had begun to Schedule 20 agreed. fall well short of the way in which people wanted to GC 303 Enterprise and Regulatory Reform Bill[LORDS] Enterprise and Regulatory Reform Bill GC 304

[LORD LUCAS] it also happens to be in contravention of the existing use copyright material. We all own a reasonable variety EU directive on computer software, which gives the of devices. If we buy a copy of Beethoven’s ninth exclusive rights to copyright owners in those circumstances. symphony by the London Symphony Orchestra, we Of course, there are issues about the ownership of ought to be able to listen to it on various devices; we digital content, but this is not the way to deal with do not want to have to buy separate copies for separate them. There are issues about who owns what you have devices. Therefore, we must make it possible for users on your iPad or tablet from other manufacturers, but to do that because that is the way that users want to this is an incredibly sweeping way to do it. In the way consume material and that is part of the modern the amendment is phrased, I doubt whether it will cure bargain. the issue by itself. Amendment 28A covers something that the Secretary of State has not touched on but which others will be Baroness Buscombe: My Lords, I rise to resist the aware of. In the days of books—and long may they amendment of my noble friend Lord Lucas and to continue—when you bought a book, you owned it. support what my noble friend Lord Clement-Jones You could pass it on to other people, you could sell it said. My noble friend Lord Lucas’s argument in relation second-hand, you could leave it in your will—it was a to Amendment 28A; that if someone has a book they possession. Now if you buy a book for use on your should be allowed to own it, enjoy it and pass it on to Kindle it remains the property of Amazon, which can others sounds, emotionally, like a good thing. Indeed, remove it at any time—and does. Amazon strips people I have done that on many occasions among my family of their whole libraries or removes individual books if and friends. But passing one book among one or two something has gone wrong with the licensing. You do friends is a million miles from what is now possible not own a book; you just have the right to consume it because of the speed of technology. Because of the for a while. That is a fundamentally undesirable position digital world we inhabit, the whole of the creative when it comes to the relationship between the creator being of that book can be out in the ether and transmitted and the user. globally within moments. The creative right is all but Something that is for personal consumption ought destroyed rather than shared in a small and special to be a personal possession; it ought to be something way. While I entirely understand the emotion behind that we can pass on to other people. We should not the idea that we should continue to feel that we can allow the position to persist where the balance has share something we really enjoy, it is neither wise nor been shifted. We have allowed the change in technology sensible to do that in this world because it will deter to change the balance between the old regime that creators from creating more wonderful books. That is existed in the case of books, of ownership as a result the tragedy of this. It is a perverse consequence of of payment to one of leasing as a result of payment. technology. We should encourage people to have libraries and pass on intellectual works they have created to other people. Lord Stevenson of Balmacara: My Lords, I do not That is the right balance between users and creatives. I wish to detain the Committee, but I wish to thank the want to restore the balance in the case of modern noble Lord for his introductory comments and reflect technology to where it was in the case of the old on two points. First, a number of the issues he raises technology. Although I know I will not achieve anything will come up in other amendments and I hope that he this time with this amendment, I hope we will see will share his wisdom on those occasions as well. something, if not from this Secretary of State then a Secondly, I must disappoint him in one respect. He future one. It is certainly a matter I will raise when we suggested that part of what he wanted to say was next debate this Bill. I beg to move. covered by the Christmas present provided by the additional copyright exceptions and other things that Lord Clement-Jones: My Lords, it would be a shame were coming forward and that there might be an not to savour the final quarter-hour of Committee opportunity to discuss those in a separate Bill. That today—although I have probably learnt more about will not happen because the Government are, at the agriculture than I ever wished to. I see that the noble moment, choosing to implement those proposals by Lord, Lord Whitty, is still here; he is clearly incredibly secondary legislation, bundled in, as the note says, “as versatile in all these matters. Seeing him and the noble few SIs as possible”. Lord, Lord Lucas, I am afraid that I am reminded of Unless we get a late Christmas present from the the passage of the Digital Economy Bill, which may or Minister, we will have to oppose that because there are may not be a good thing. As we know from that, the very large issues within what has been proposed. Not noble Lord, Lord Lucas, is never knowingly all of them are unwelcome and we would probably underprovocative, particularly on the question of want to get behind most of them. But the way in intellectual property rights, and I am not going to which it has been done leaves a gap in the expectation enter the lists with him on the issue of the format-shifting outside that there should be a lot of discussion about exception that was the subject of the Christmas present these things. As has just been said, they affect the very he mentioned. heart of what we are trying to say around our creative Amendment 28A is an incredibly sweeping amendment economy, how people create and how things are consumed. that would have a massive impact on the cloud computing If we do not get that right, there will be a wave of industry in the UK, which is forecast to grow from concern outside. I therefore lay down a small elephant something like £2 billion to £6 billion. It would have trap for the Minister to fall into then leap out of with an incredibly damaging effect, which makes it highly one bound later on when we reach that point in the undesirable for various commercial reasons. Quite frankly, Bill. GC 305 Enterprise and Regulatory Reform Bill[16 JANUARY 2013] Enterprise and Regulatory Reform Bill GC 306

Viscount Younger of Leckie: My Lords, it is fair to amendment. This will align the law with what consumers say that, as a Scotsman, I do not do Christmas presents expect and how businesses anticipate their products after Christmas. Nevertheless, I am grateful to my will be used. It will be welcomed by the public and noble friend Lord Lucas for initiating these amendments. cause little harm to copyright owners, and will be Before I continue, I cannot yet confirm the dates for introduced in secondary legislation later this year. In the extended Committee work, but we will make sure light of this, I hope that the noble Lord will withdraw that noble Lords hear in good time. his amendment. The amendments aim to allow consumers to do more with copyright materials that they have already Lord Lucas: My Lords, I am grateful to my noble bought. Amendment 28A seeks to ensure that personal friend for his reply, and less grateful to my noble licenses to use copyright can be resold or passed on to friends for their interventions. another person. This would apply, for example, to To my noble friend Lord Clement-Jones, I will those licences that accompany e-books or computer say—as I will likely say on future occasions in this software. This is an important area and one of which Bill—phooey. One of the effects of cloud computing the Government are keenly aware. However, the law in and the fact that something is not fundamentally this area is still developing. The extent to which resale located on an individual device makes the whole business of licences is already allowed under European law is of regaining ownership much easier. No longer does not yet clear. The cases that have been considered have one have to deal with something that is passed from dealt with specific limited circumstances. I note the device to device and copied into a torrent stream that comment from my noble friend Lord Clement-Jones suddenly goes illegal and cannot be kept track of. In who described the proposal as incredibly sweeping. the case of iTunes, it is one enormous great cloud Perhaps it is not surprising that I would say that there computing lump, and transferring ownership is an should be careful consideration before action is taken. extremely easy thing to do if one bothers to write a few lines of code. Technology is moving on and is making the transfer of ownership much easier than it 7.45 pm was under the old ways of doing things. I expect that, Amendment 28B aims to ensure that someone who given proper consideration and thought, this will be has bought a legal copy of a copyright work is able to quite easy to implement in a few years’ time. For now, reproduce it for their personal format-shifting and I beg leave to withdraw the amendment. back-up. We understand that there is a need to modernise the law regarding private copying. This is why, as the Amendment 28A withdrawn. noble Lord, Lord Lucas, mentioned, the Government Amendment 28B not moved. have announced that they will permit private copying in certain circumstances, similar to those set out in this Committee adjourned at 7.47 pm.

WS 47 Written Statements[16 JANUARY 2013] Written Statements WS 48 Written Statements EU: Agriculture and Fisheries Council Statement Wednesday 16 January 2013 The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley): My right honourable friend the Secretary of Energy: Warm Front Scheme State for Environment, Food and Rural Affairs (Owen Statement Paterson) has today made the following Statement. I represented the UK on agricultural matters and my honourable friend the Parliamentary Under-Secretary The Parliamentary Under-Secretary of State, Department for Natural Environment and Fisheries, Richard Benyon, of Energy and Climate Change (Baroness Verma): My represented the United Kingdom on fisheries items. right honourable friend the Minister of State for Climate Richard Lochhead MSP, Michelle O’Neil MLA and Change (Greg Barker) has made the following Written Alun Davies AM were also part of the United Kingdom Ministerial Statement. delegation. The Warm Front scheme has been an important Fisheries policy in tackling fuel poverty among private sector My honourable friend the Parliamentary Under- households in England though the installation of a Secretary for Natural Environment and Fisheries, Richard range of heating, insulation and other energy efficiency Benyon, gave an oral statement on the elements of the measures. The scheme was introduced in 2000 and has fisheries negotiations at the December council which helped around 2.3 million households vulnerable to directly affected UK interests on Tuesday 8 January. fuel poverty. The 2010 comprehensive spending review Black Sea fishing opportunities for 2013 were also announced that 2012-13 would be the last year of agreed at the council. Bulgaria and Romania supported Warm Front’s operation. a rollover of the TAC for sprat and resisted a Commission The scheme will close to new applications on Saturday proposal to reduce the TAC for turbot. They successfully 19 January 2013 to allow time for qualifying applications argued that, given the fishing interests of non-EU to be completed, as far as reasonably practicable, countries in the Black Sea, the only long-term solution before the end of the financial year. All applications was better regional management. received before 5 pm on that day will be processed Agriculture under the scheme. Warm Front is closing only to new The council welcomed the presidency’s CAP reform applications. Aftercare services for households assisted progress report and was generally able to accept it as a will continue. balanced assessment of the debate on the four main For households seeking help and support once CAP reform proposals. Member states raised common Warm Front is closed to new applications, the energy issues they felt are still debatable or important to company obligation (ECO) is already available. Anyone them. The most common was greening; with most calling the Warm Front telephone line to make a new member states happy with the direction of discussion application after 5 pm on 19 January will be directed and, with a bit more flexibility, an agreement could be automatically towards ECO. reached. The feeling on internal convergence of direct ECO came into force on 1 January 2013 and works payments is that it could be phased in over a longer alongside the Green Deal, with the aims of saving period. On market management issues, some member carbon by supporting energy efficiency measures in states called for a more effective safety net and for harder to treat homes and enabling the installation of production restrictions to be maintained for wine, efficient boilers and insulation into the homes of vulnerable sugar and (to a lesser extent) milk. For the UK, in people across Great Britain. Part of the ECO is specifically particular I highlighted that there needed to be further targeted at a wider group of low income households work to simplify the proposals for farmers and national than Warm Front, helping them to keep warm and administrations, and cautioned against moves to diverge save money on energy bills. A referrals system is from a more market-oriented approach to CAP reform. already operational for people who call the ESAS Any other business helpline. This checks customer eligibility against the Wine benefit based criteria for ECO affordable warmth The Commission presented two reports. One concerned support. Relevant customers will then be put in contact the implementation of the 2008 wine reform, noting with suppliers participating in the ECO who will then that the many objectives set out had been met and the provide a guaranteed minimum package of assistance sector was on a better competitive footing as a result, under this obligation. Householders should therefore but also suggested some minor adaptations and contact the Energy Saving Advice Service (ESAS) for improvements to the regime and its operation. The advice and access to ECO. second outlined conclusions of the high level group on Furthermore, we have also taken steps to ensure vine planting rights, with suggestions pointing to a that we make maximum use of the full budget for way forward that might see the development of a capital spending on fuel poverty. As set out in a planting authorisations framework which was controlled Written Ministerial Statement to Parliament on 15 January by producers rather than member states. I argued that 2013, DECC is awarding some £31 million of capital it was important to stick to agreements in previous funding to support 61 outstanding local fuel poverty rounds of CAP reform, including phasing out vine projects, helping 169 local authorities across the country planting rights by 2018. This would provide certainty improve the thermal efficiency of homes in their area. to businesses and generate the confidence to invest. WS 49 Written Statements[LORDS] Written Statements WS 50

Coupled support Incoming Irish presidency priorities Several central and eastern European countries The Irish Agriculture Minister (Simon Coveney) presented a joint paper calling for the option of providing set out his determination to reach a CAP reform deal more coupled support in new member states than in June if possible. He urged Ministers to start proper provided for in the Commission’s cap reform proposal. negotiations and move away from repetitive restatements The Commission noted that this would be dealt with of national positions. The MFF notwithstanding, he during negotiations. hoped the council could reach an agreed position in Sugar levy repayment March to allow negotiations with the European Parliament to begin. Germany requested the Commission expedite legislation to establish a legal basis for recalculation of historic sugar levies paid by producers in order to Taxation: Employee Share Schemes repay them, including interest (following a recent ECJ Statement case ruling the existing provisions illegal). The UK and other member states supported Germany. Belgium and France called for the interest to be paid from Lord Deighton: My honourable friend the Exchequer Community funds. The Commission responded with a Secretary to the Treasury (David Gauke) has today two-stage approach. It would soon publish an information made the following Written Ministerial Statement. note, and follow this up with draft legislation which The Government launched the Office of Tax would contain a retrospective revaluation of levies Simplification (OTS) in July 2010 to provide independent from 2001-2006. advice on simplifying the tax system. Milk quota The OTS has today published the final report of its The Commission presented its second report on the review of unapproved employee share schemes, dairy market situation, which concludes that the conditions commissioned by the Government on 5 July 2011. are in place for a smooth phasing out of the milk The Government asked the OTS to carry out a quota system in 2015. The report found that the two-stage review of employee share schemes. The first market was functioning well with overall EU production stage of the review looked at the four tax-advantaged below quota. I welcomed the Commission’s conclusions. schemes. This was completed in March 2012 and the Six member states had exceeded their quota and were Government gave their response at Budget 2012. Following thus subject to a super-levy in 2012. They disagreed consultation, Autumn Statement 2012 announced a with the Commission’s report and called for measures package of simplifications, most of which will take to help their farmers. Some member states also called effect during 2013. for a re-examination of the decision to end milk The OTS has now completed the second stage of its quota. review, focused on unapproved schemes (those that do Trade in exotic animals not benefit from tax advantages). The Government The presidency reported on the recent international will make their initial response to this report in the conference on the movement of exotic animals. In Budget, on 20 March 2013. response the Commission noted its intention to bring Electronic copies of the report have been placed in forward a legislative proposal in this area. the Libraries of both Houses. WA 125 Written Answers[16 JANUARY 2013] Written Answers WA 126

in the following table along with actual usage figures Written Answers for 2011, both in calendar years. Usage figures for the calendar year 2012 are expected to become available in Wednesday 16 January 2013 March this year. Southend International Airport has not been included Abortion in the table. It has planning consent for 53,300 ATMs Question and a current 1 million passenger terminal capacity. In 2011 it was used by 1,300 ATMs and 42,000 passengers. Asked by Lord Laird DfT estimated capacity Actual usage, 2011 CAA To ask Her Majesty’s Government, further to the statistics Written Answer by Earl Howe on 17 December 2012 ATMs Passengers ATMs Passengers (WA 268), what is the source of the delegated (000s) (million) (000s) (million) powers given to primary care trusts; where the Heathrow 480 86 476 69.4 limited circumstances are defined, if at all; and Gatwick 260 42 245 33.6 whether there is any evidence of primary care trusts Luton 104 10 72 9.5 in England providing abortions free to women Stansted 259 35 137 18.0 ordinarily resident in Northern Ireland. [HL4421] London 120 8 61 3.0 City The Parliamentary Under-Secretary of State, Department Birmingham 189 18 84 8.6 of Health (Earl Howe): The National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 confer on primary care trusts (PCTs) the Secretary of State’s duty under Section 3 of the Airports: Gatwick, Heathrow and Stansted National Health Service Act 2006 to provide a variety Question of secondary care services to such extent as he considers Asked by Lord Mawhinney necessary to meet all reasonable requirements. They also set out for whom they have responsibility for To ask Her Majesty’s Government how many commissioning and/or providing such services. The organisations which the Department for Transport limited powers referred to in the previous Written consulted about the Government’s airport policy in Answer relate to regulation 3(7)(a)(iii) and (b)(i), which the south-east of England indicated that they fully provide that PCTs are to exercise this duty, respectively, supported the Government’s policy on the usage of for certain patients with serious mental illness who are Heathrow, Gatwick and Stansted. [HL4451] present in the area of a PCT and in providing “emergency services” for patients present in their area, which could involve the provision of abortion services in an emergency. In 2011, 1007 abortions were performed on residents Earl Attlee: The Department for Transport’s public of Northern Ireland in England and Wales. The consultation on a draft aviation policy framework department has confirmed that five of these abortions closed at the end of October 2012. A summary of were NHS funded. responses to the consultation will be published alongside the final framework by March 2013. Airports: Capacity Question Asked by Lord Berkeley Building Regulations: Electrical Safety To ask Her Majesty’s Government what is their Question latest estimate of spare capacity on runways and Asked by Lord Harrison terminals at Heathrow, Gatwick, Luton, Stansted, London City, Southend International, and Birmingham To ask Her Majesty’s Government what assessment International airports compared with actual usage they have made of the safety impact of no longer in 2011–12. [HL4481] requiring that electrical work in kitchens and outdoors be notified to the local authority. [HL4597] Earl Attlee: Department for Transport estimates of annual runway capacities, in terms of air transport movements (ATMs), and annual terminal capacities, The Parliamentary Under-Secretary of State, Department in terms of passengers, are published in table 2.6 of for Communities and Local Government (Baroness Hanham): UK Aviation Forecasts 2011 (DfT, August 2011). The A detailed impact assessment was produced and published report is available on the department’s website at the alongside the Statutory Instrument in the usual way. following address: http://www.dft.gov.uk/publications/ IA No. DCLG 0084 ″Building Regulations Part P, uk-aviation-forecasts-2011. Electrical Safety in Dwellings″ (ISBN: 978-1-4098-3762-6) The report sets out capacity assumptions for 2008; is available on the internet at: www.gov.uk/government/ DfT considers these are also appropriate estimates for uploads/system/uploads/attachment_data/file/39370/ 2011. These capacity assumptions are also provided 121217_-_Part_P_IA_-_ to_publish_for_web.pdf WA 127 Written Answers[LORDS] Written Answers WA 128

Fluoridation The Minister of State, Ministry of Justice (Lord Questions McNally): The Government’s recent response to the Justice Select Committee’s report on post-legislative Asked by Earl Baldwin of Bewdley scrutiny of the Freedom of Information Act 2000 (the Act) makes clear that we remain committed to the To ask Her Majesty’s Government what implications extension of the Act to provide greater transparency. the benefits of the Childsmile programme in reducing As part of that, we intend to continue consultations dental decay and social inequalities in dental health with a wide range of organisations, including Trinity among children in Scotland have for their policy of House, about their possible inclusion in the Act with water fluoridation elsewhere in the United Kingdom. respect to any functions of a public nature that they [HL4464] perform. Subject to the outcome of that consultation, we intend by May 2015 to legislate under Section 5 of the Act to bring the public functions of Trinity House The Parliamentary Under-Secretary of State, Department into the scope of the Act. of Health (Earl Howe): The evidence of the success of the Childsmile programme is very encouraging. There are also schemes in England, which derive from the Brushing for Life scheme developed by the department Government Departments: Training aimed at getting young children into the habit of Question brushing regularly with fluoride toothpaste. However, Asked by Lord Laird the advantage of water fluoridation is that its benefits are enjoyed regardless of personal behaviour. To ask Her Majesty’s Government how much was spent on computer training courses for staff in Asked by Earl Baldwin of Bewdley the Department for Environment, Food and Rural To ask Her Majesty’s Government what is their Affairs in each year since 1997, broken down by assessment of the implications for water fluoridation type of course. [HL4056] policy of the findings of the systematic review of developmental fluoride neurotoxicity, published in The Parliamentary Under-Secretary of State, Department October 2012 by the Harvard School of Public Health. for Environment, Food and Rural Affairs (Lord De [HL4465] Mauley): The level of detail requested is not recorded centrally, nor do we hold records at this level of detail for every year from 1997. Earl Howe: The authors of the review concluded Our training courses are procured in a range of that their results: different ways across the business and managers are “support the possibility of an adverse effect of high fluoride held accountable for this expenditure. exposure on children’s neurodevelopment. Future research should include detailed individual-level information on prenatal exposure, Learning and development for IT skills is now neurobehavioral performance, and covariates for adjustment”. provided by Civil Service Learning and IBM. Both Bazian, an organisation of independent health supply a range of online learning options for staff. researchers, also reviewed the Chinese research studies on behalf of South Central Strategic Health Authority and found that the study design and methods used by Health: Ambulance Service many of the researchers had serious limitations. The Questions researchers reported, Asked by Baroness Smith of Basildon “the lack of a thorough consideration of confounding as a source of bias means that, from these studies alone, it is uncertain how To ask Her Majesty’s Government what assessment far fluoride is responsible for any impairment in intellectual development seen. For example, the amount of naturally occurring they have made of the waiting times for emergency fluoride in drinking water and from other sources, and the ambulances in the East of England Ambulance socioeconomic characteristics in the areas studied was different Services NHS Trust area. [HL4494] from those found in the UK”. Nevertheless, we agree that this is an issue which The Parliamentary Under-Secretary of State, Department merits further research and the department will be of Health (Earl Howe): Ambulance trusts are required monitoring the results of further studies closely. A copy to meet national performance standards in respect of of the report has been placed in the Library. their response times. The current national response time targets are known as A8 and A19. A8 means that 75% of category A (immediately life threatening) calls should receive a response within eight minutes. A19 Freedom of Information Act 2000 means that 95% of category A patients requiring Question transport should receive this within 19 minutes of the Asked by Lord Berkeley request for transport being made. From June 2012, the A8 standard was split into category A red 1 calls, To ask Her Majesty’s Government whether they defined as incidents presenting conditions which may be will make the Corporation of Trinity House subject immediately life threatening, and category A red 2 calls, to the provisions of the Freedom of Information defined as incidents presenting conditions which may Act 2000; and if so, when. [HL4380] be life threatening, but are less time critical. WA 129 Written Answers[16 JANUARY 2013] Written Answers WA 130

The following table shows the published data for since the red 1 and red 2 split was introduced in June East of England Ambulance Service NHS Trust (EEAST) 2012. November 2012 is the latest published data.

EEAST response times for category A calls received June to November 2012 Jun 2012 Jul 2012 Aug 2012 Sept 2012 Oct 2012 Nov 2012

Cat A red 1 (75% 71.2% 73.0% 75.7% 76.9% 74.8% 76.2% standard) Cat A red 2 (75% 74.6% 77.2% 77.1% 72.5% 73.9% 74.7% standard) A19 (95% 94.2% 95.1% 94.8% 92.8% 93.5% 94.3% standard)

Source: Unify2 Earl Howe: Information is not available in the format requested. It is for local commissioners, who know Ambulance trusts have additional response time their population’s needs best, to determine how much targets that are locally monitored, but information to spend on ambulance services, and this information about these is not collected centrally. is not collected centrally. Asked by Baroness Smith of Basildon To ask Her Majesty’s Government what was the The total turnover for East of England Ambulance budget for the East of England Ambulance Services Service NHS Trust from 2007-08 to 2011-12 at final NHS Trust in each of the past five years; and what accounts and the 2012-13 forecast turnover is shown is the projected budget for the next three years. in the following table. The department does not hold [HL4495] information about future years’ turnover.

East of England Ambulance Service NHS Trust turnover 2007-08 to 2011-12 and forecast turnover for 2012-13 2007-08 Annual 2008-09 Annual 2009-10 Annual 2010-11 Annual 2011-12 Annual 2012-13 Forecast accounts turnover accounts turnover accounts turnover accounts turnover accounts turnover outturn turnover £000s £000s £000s £000s £000s £000s

192,842 213,814 228,076 222,389 226,949 231,000

Source: The quarter, Department of Health three years; and how many and what proportion of those are or are expected to be (1) full-time, (2) Asked by Baroness Smith of Basildon part-time, and (3) permanent. [HL4496] (Earl Howe): Information is not available in the To ask Her Majesty’s Government how many format requested. Such information as is available is in staff were employed by the East of England Ambulance the following table. The department does not hold Services NHS Trust in each of the past five years; information about numbers of permanent staff or what are the projected figures for each of the next ambulance trusts’ staffing projections for future years.

NHS hospital and community health services: Non-medical staff in the East of England Ambulance Service NHS Trust by main staff group and contract as at 30 September each specified year Full time equivalent Full time Part time All staff % Full time % Part time

2007 staff total 3,051 423 3,474 87.8% 12.2% Professionally 1,817 92 1,909 95.2% 4.8% qualified clinical staff Qualified nursing, 11 5 16 68.7% 31.3% midwifery & health visiting staff Qualified ambulance 1,806 87 1,893 95.4% 4.6% service staff Support to clinical 871 261 1,132 76.9% 23.1% staff Support to doctors & 10 1 11 94.0% 6.0% nursing staff Support to ST&T staff 59 4 63 94.2% 5.8% Support to ambulance 802 257 1,059 75.7% 24.3% staff WA 131 Written Answers[LORDS] Written Answers WA 132

NHS hospital and community health services: Non-medical staff in the East of England Ambulance Service NHS Trust by main staff group and contract as at 30 September each specified year Full time equivalent Full time Part time All staff % Full time % Part time

NHS infrastructure 363 70 433 83.9% 16.1% support Central functions 172 55 227 75.6% 24.4% Hotel, property & 14 3 17 82.9% 17.1% estates Managers & senior 177 12 189 93.9% 6.1% managers 2008 staff total 3,238 429 3,667 88.3% 11.7% Professionally 1,856 111 1,967 94.4% 5.6% qualified clinical staff Qualified nursing, 11 5 16 70.5% 29.5% midwifery & health visiting staff Qualified ambulance 1,845 106 1,951 94.5% 5.5% service staff Support to clinical 967 251 1,218 79.4% 20.6% staff Support to doctors & 11 1 12 94.5% 5.5% nursing staff Support to ST&T staff 2 - 2 100.0% 0.0% Support to ambulance 954 250 1,205 79.2% 20.8% staff NHS infrastructure 415 67 482 86.1% 13.9% support Central functions 261 62 323 80.9% 19.1% Hotel, property & - 1 1 0.0% 100.0% estates Managers & senior 154 5 159 97.1% 2.9% managers 2009 staff total 3,395 434 3,829 88.7% 11.3% Professionally 1,711 124 1,835 93.2% 6.8% qualified clinical staff Qualified nursing, 11 4 15 71.9% 28.1% midwifery & health visiting staff Qualified ambulance 1,700 120 1,820 93.4% 6.6% service staff Support to clinical 1,208 230 1,438 84.0% 16.0% staff Support to ambulance 1,208 230 1,438 84.0% 16.0% staff NHS infrastructure 477 79 556 85.8% 14.2% support Central functions 284 70 354 80.3% 19.7% Hotel, property & - 1 1 0.0% 100.0% estates Managers & senior 193 9 202 95.7% 4.3% managers 2010 staff total 3,186 423 3,609 88.3% 11.7% Professionally 1,615 133 1,748 92.4% 7.6% qualified clinical staff Qualified nursing, 10 5 15 68.1% 31.9% midwifery & health visiting staff Qualified ambulance 1,605 128 1,733 92.6% 7.4% service staff Support to clinical 1,222 231 1,453 84.1% 15.9% staff Support to ambulance 1,222 231 1,453 84.1% 15.9% staff NHS infrastructure 349 59 408 85.5% 14.5% support Central functions 240 51 291 82.4% 17.6% WA 133 Written Answers[16 JANUARY 2013] Written Answers WA 134

NHS hospital and community health services: Non-medical staff in the East of England Ambulance Service NHS Trust by main staff group and contract as at 30 September each specified year Full time equivalent Full time Part time All staff % Full time % Part time

Hotel, property & - 1 1 0.0% 100.0% estates Managers & senior 109 8 117 93.5% 6.5% managers 2011 staff total 3,209 431 3,640 88.2% 11.8% Professionally 1,564 133 1,697 92.1% 7.9% qualified clinical staff Qualified nursing, 11 4 15 73.5% 26.5% midwifery & health visiting staff Qualified ambulance 1,553 129 1,682 92.3% 7.7% service staff Support to clinical 1,269 236 1,505 84.3% 15.7% staff Support to ambulance 1,269 236 1,505 84.3% 15.7% staff NHS infrastructure 376 62 438 85.8% 14.2% support Central functions 262 53 315 83.0% 17.0% Hotel, property & - 1 1 0.0% 100.0% estates Managers & senior 114 8 122 93.2% 6.8% managers

Notes: the Medical Act 1983. This is to strengthen the General It is not possible to determine from the census data which staff Medical Council’s (GMC’s) powers so that the GMC are permanent and which are not. can undertake checks on language knowledge where Full time equivalent figures are rounded to the nearest whole legitimate concerns arise during the registration process number. about a doctor’s ability to communicate effectively, - Zero. and before there is evidence of malpractice. The Data Quality: department is working constructively with the GMC, The Health and Social Care Information Centre seeks to and we envisage that shortly we will be announcing minimise inaccuracies and the effect of missing and invalid data further steps to develop the policy. but responsibility for data accuracy lies with the organisations Systematic testing of language competence at the providing the data. Methods are continually being updated to point of registration would not be lawful under European improve data quality where changes impact on figures already published. This is assessed but unless it is significant at national Law. level figures are not changed. Impact at detailed or local level is footnoted in relevant analyses. Health: Medical Students Source: Question Health and Social Care Information Centre Non-Medical Workforce Asked by Lord Laird Census. To ask Her Majesty’s Government whether there are sufficient doctors in training in the United Health: Doctors’ Language Tests Kingdom to meet the basic needs of the National Question Health Service without importing foreign medical graduates from outside the European Union; and, Asked by Lord Laird if so, whether they forecast this will continue to be the case. [HL4425] To ask Her Majesty’s Government when and why they intend to change the law so that doctors The Parliamentary Under-Secretary of State, Department who have qualified in the European Union have of Health (Earl Howe): The number of doctors entering their language skills tested to prove they can speak specialty training is determined each year by a English adequately before they can practice in the Postgraduate Medical Specialty Training Numbers Joint United Kingdom; and why it is not currently possible Working Group. The joint working group has been to test for competence in English. [HL4485] managed by the department, but will be part of Health Education England from April 2013. The Parliamentary Under-Secretary of State, Department Numbers of students entering medical school are of Health (Earl Howe): In pursuit of the Government’s periodically reviewed by the department and the Higher objective to strengthen the arrangements to ensure Education Funding Council for England (HEFCE) to that all doctors practising in England have sufficient ensure there are sufficient numbers graduating to meet knowledge of English, we are exploring options to amend the future need for doctors. WA 135 Written Answers[LORDS] Written Answers WA 136

While in earlier years the National Health Service The Chairman of Committees (Lord Sewel): In total, relied quite heavily on recruiting staff overseas, efforts 2,544,019 items of mail were received in the Palace to recruit, train and retain staff in this country have of Westminster in 2012. Approximately 25% (636,005) of paid off in recent years. The NHS has many more these items were destined for the House of Lords. doctors and is much closer to self-sufficiency, in line These figures do not include parcels, courier items or with World Health Organisation recommendations. internal mail. The current Government are committed to increasing the number of home-trained doctors working in the Marriage: Same-sex Weddings NHS. However, due to the time it takes to train a doctor, it is likely that the NHS, due to the size of the Question workforce and skills required, will continue to require Asked by Lord Mawhinney the flexibility provided by the international labour market to fill positions where posts cannot be filled To ask Her Majesty’s Government why their locally. proposals to legislate to prohibit the Church of England and the Church in Wales from conducting same-sex weddings do not extend to other churches or religious bodies. [HL4315] Higher Education: Degree Programmes Question Baroness Stowell of Beeston: The proposals relating Asked by Lord Storey to the Church of England arise from its unique position as the Established Church. First, it has a legal duty to To ask Her Majesty’s Government how many marry parishioners in their parish church. The Church students in (1) universities, (2) university colleges, of England has confirmed it does not want to conduct (3) colleges of higher education, and (4) further same-sex marriage ceremonies; therefore specific provision education colleges offering degree courses, have is needed so that the duty to marry parishioners does (a) accepted and enrolled, and (b) accepted but did not apply in the case of same-sex couples. not enrol, on degree programmes in the academic Second, the Church of England’s canon law is part year 2012–13. [HL4397] of the law of the land. We must therefore ensure that the proposed legislation is not in conflict with canon Baroness Garden of Frognal: This information is law. not available. Data on the number of enrolments at Similar provisions are simply not necessary for different types of institution in 2012-13 will be available other religious bodies because they do not have a legal in the 2012-13 Higher Education Statistics Agency duty to marry parishioners; and their religious law is student record. These data will be released in January not part of the law of the land. 2014. We are in discussions with the Church in Wales about how the legislation should apply to it.

HMS “St Albans” Mexico: Money Laundering Question Questions Asked by Baroness Warwick of Undercliffe Asked by Lord Myners To ask Her Majesty’s Government whether they To ask Her Majesty’s Government whether they will ensure that the crew of HMS “St Albans” will have received representations from the Government be given the opportunity to have harmony time of Mexico or its agencies regarding the consequences when it goes in for refit; and, if so, whether they will of HSBC’s facilitation of money laundering by provide greater certainty over the dates to allow the drug traffickers and criminal gangs. [HL4370] crew to plan ahead. [HL4392] The Commercial Secretary to the Treasury (Lord The Parliamentary Under-Secretary of State, Ministry Deighton): The UK Government have regular discussions of Defence (Lord Astor of Hever): HMS “St Albans” with the Government of Mexico, covering a range of is due to enter her upkeep period in May 2013 and issues. the ship’s company will be allowed harmony time in Asked by Lord Myners accordance with Naval Service regulations. To ask Her Majesty’s Government whether they have offered any reparation to Mexico in relation to the consequences of HSBC’s facilitation of money- Houses of Parliament: Correspondence laundering by Mexican criminal elements, including Question loss of life. [HL4371] Asked by Lord Norton of Louth Lord Deighton: The issue of reparation to Mexico, in To ask the Chairman of Committees how many relation to HSBC, is not a matter for the UK Government. items of correspondence were received in the Palace The anti-money laundering failings occurred in parts of Westminster in 2012; and, of those, what proportion of the HSBC Group outside of the regulatory remit of was received in the House of Lords. [HL4490] the UK and Financial Services Authority. WA 137 Written Answers[16 JANUARY 2013] Written Answers WA 138

NHS: Healthcare Services Railways: Fares Question Questions Asked by Lord Mawhinney Asked by Lord Bradshaw To ask Her Majesty’s Government on which To ask Her Majesty’s Government, further to legislative provisions the Department of Health the Written Answer by Earl Attlee on 18 December relies when requiring patient services to be shifted 2012 (WA 296), why there is a variation in individual from the hospital to the community sector; and train ticket prices when fare rises are limited to which health body has the responsibility to enforce Retail Prices Index minus 1%. [HL4407] such shifts if necessary. [HL4450] Earl Attlee: Increases in regulated fares are not The Parliamentary Under-Secretary of State, Department uniform. Train operators must ensure that the total of Health (Earl Howe): Decisions over the reconfiguration value of each fares basket does not exceed the cumulative of healthcare services are the responsibility of the cap placed on the value of the basket by Government. National Health Service. It is for NHS commissioners, This cap increases each year by a formula set out in working in partnership with providers and local franchise agreements with train operators. The formula authorities, to secure high-quality services that will is based on the Retail Price Index (RPI) as a measure meet the healthcare needs of local communities. of the cost of living: RPI+k where k is defined in the franchise agreement. Commissioners should ensure that any proposals to change services align with the arrangements for Since 2004, k has been plus 1% for the majority of the provision of health services, as set out in the NHS train operators. Act 2006 (as amended by the Health and Social Care No individual fare in the basket may increase by Act 2012). Accordingly, commissioners will need to more than 5% above the RPI+k average for the basket comply with their legal duties in relation to promoting (or more than 2% for regulated fares set by Southern). the NHS Constitution, acting with a view to securing Asked by Lord Bradshaw the continuous improvement in the quality of services, and promoting patient involvement, innovation and To ask Her Majesty’s Government, further to the integration. Written Answer by Earl Attlee on 18 December 2012 In addition, regulations set out the matters on (WA 296), whether they have any plans to make the which certain NHS bodies and certain providers of process of fare baskets more transparent. [HL4408] health services must consult local authority scrutiny functions. This includes proposals for substantial service changes. Where local authorities have concerns over Earl Attlee: The Department for Transport is engaged such proposals, which cannot be resolved locally, they in a full review of fares and ticketing and is considering have the power to refer the proposals to the Secretary the issue of transparency as part of that exercise. of State. Asked by Lord Bradshaw The legislative provisions are further supported by the Government’s four reconfiguration tests, To ask Her Majesty’s Government, further to the which are that local reconfiguration plans should Written Answer by Earl Attlee on 18 December 2012 demonstrate: support from clinical commissioners; robust (WA 296), whether representatives of passenger public and patient engagement; clarity on the clinical interests are involved in the process for monitoring evidence base; and support for patient choice. It is for the make-up of fare baskets. [HL4409] NHS commissioners to assure themselves, and their communities, that those proposals can demonstrate Earl Attlee: Although passenger representatives are clear and compelling evidence against these tests. not directly involved in monitoring fares baskets, Department for Transport officials follow the principles of fares regulation as set out in the franchise agreement. These were based on the Strategic Rail Authority’s Nobel Peace Prize conclusions to its fares review of 2003, which took Question account of passengers’ interests. Asked by Lord Dykes Passenger Focus has an overarching role in looking after passengers’ interests. To ask Her Majesty’s Government whether they have received representations from the public regarding the Prime Minister’s attendance at the award of the Nobel Peace Prize to the European Union.[HL4101] Railways: Rolling Stock Question Asked by Lord Bradshaw The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford): The Prime Minister’s Office received To ask Her Majesty’s Government when they representations from three members of the public expect the new rolling stock being procured by regarding the Nobel Peace Prize and the European Southern to be in service; and where the new stock Union. is to be deployed. [HL4410] WA 139 Written Answers[LORDS] Written Answers WA 140

Earl Attlee: The order for 40 new carriages announced perform. Subject to the outcome of that consultation, by Southern on 21 December 2012 will provide increased we intend by May 2015 to legislate under Section 5 of capacity on the Southern network from December 2014. the Act to bring the public functions of Trinity House into the scope of the Act. Schools: Free Schools Questions Asked by Lord Storey Shipping: General Lighthouse Authorities Questions To ask Her Majesty’s Government what percentage Asked by Lord Berkeley of (1) teaching, and (2) leadership, staff in operational free schools have qualified teacher status. [HL4034] To ask Her Majesty’s Government what was To ask Her Majesty’s Government what (1) the annual budget, and (2) the headcount, of safeguarding training is (1) offered to, and (2) expected the Research and Radionavigation Directorate of to have been undertaken by, teaching staff in free the General Lighthouse Authorities in (a) 2010, schools. [HL4035] (b) 2011, and (c) 2012; and what are the forecast figures for 2013. [HL4381] Baroness Garden of Frognal: The School Workforce Census collects data on teaching staff in schools. The most recent census return which was published in Earl Attlee: The General Lighthouse Authorities November 2012 covers 17 of the 24 free schools that budget on the basis of financial years, not calendar opened in September 2011. These data show 90% of years. The table below sets out the headcount and teaching staff in free schools have qualified teacher budget of the Research and Radionavigation Directorate status and, of the remaining 10%, at least 3% are of the General Lighthouse Authorities for those financial working towards the qualification. It also shows 95% years covering the calendar years in question: of teachers in a leadership role have qualified teacher 2010-11 2011-12 2012-13 2013-14 status. Like other schools, free schools are under a statutory Headcount 14 12 11 10 duty to have a child protection policy in place. As Budget (£thousands) independent schools, free schools must also have regard Staff 760 767 567 531 to the relevant parts of the Independent School Standards Non-Staff 1,273 1,422 1,389 1,415 Regulations (SI 2010/1997). Part 3 of the schedule Total 2,033 2,189 1,956 1,946 includes a standard that requires the proprietor of an independent school to have regard to any guidance Asked by Lord Berkeley issued by the Secretary of State in relation to safeguarding and promoting the welfare of pupils at the school. The To ask Her Majesty’s Government whether ship Safeguarding Children and Safer Recruitment in owners have been consulted about funding from Education guidance states proprietors should “ensure the General Lighthouse Fund being spent on the the head teacher, and all other staff who work with Accessibility for Shipping, Efficiency Advantages children undertake training that equips them with the and Sustainability (ACCSEAS) project. [HL4384] knowledge and skills necessary to carry out their responsibilities for child protection”. Earl Attlee: This is an operational matter for the Shipping: Freedom of Information General Lighthouse Authorities (GLAs). The Lights Advisory Committee, which represents the views of Act 2000 light dues payers, participates in the GLAs’ annual Question corporate planning round where their bids for expenditure Asked by Lord Berkeley are considered. Asked by Lord Berkeley To ask Her Majesty’s Government whether they will make the Corporation of Trinity House subject To ask Her Majesty’s Government whether they to the provisions of the Freedom of Information will place in the Library of the House a copy of the Act 2000; and if so, when. [HL4380] General Lighthouse Authorities’Joint Strategic Board’s annual corporate targets for (1) 2012, and (2) 2013. The Minister of State, Ministry of Justice (Lord [HL4429] McNally): The Government’s recent response to the Justice Select Committee’s report on post-legislative scrutiny of the Freedom of Information Act 2000 Earl Attlee: The Joint Strategic Board (JSB) of the (the Act) makes it clear that we remain committed to General Lighthouse Authorities (GLAs) is not an the extension of the Act to provide greater transparency. independent entity and therefore does not have corporate As part of that, we intend to continue consultations targets. The Department for Transport sets the JSB with a wide range of organisations, including Trinity tasks and challenges relating to the GLAs’ operational House, about their possible inclusion in the Act with and financial activities as part of the annual GLA respect to any functions of a public nature that they corporate planning round. WA 141 Written Answers[16 JANUARY 2013] Written Answers WA 142

Shipping: Navigation and Timing Systems have been any discussions with the Channel Islands Question and the Isle of Man; and, if so, what has been the result. [HL4468] Asked by Lord Berkeley To ask Her Majesty’s Government what are the expected benefits for ship owners from the continued The Commercial Secretary to the Treasury (Lord development of resilient position navigation and Deighton): On 7 December 2012, the Government timing (RPNT) systems; and whether ship owners announced that they would be entering into an agreement have sanctioned expenditure by the General Lighthouse to move to automatic information exchange with the Authorities on RPNT development. [HL4382] Isle of Man. This sets a new international standard in tax transparency. Earl Attlee: The General Lighthouse Authorities The Government will look to make similar agreements are developing and piloting eLoran, a position navigation with other jurisdictions and are in discussions with the and timing system. The operational benefits that eLoran Channel Islands about enhanced information exchange, would be expected to deliver include a reduction in the as part of their common commitment to combat tax deployment of physical aids to navigation, and additional evasion. The Government do not comment on ongoing resilience in the event of a failure of satellite-based discussions. navigation systems. The Lights Advisory Committee, that represents the views of light dues payers, participates in the annual Transport: Expenditure corporate planning round for the General Lighthouse Question Authorities, where all expenditure, including the sanction for eLoran, is considered. Asked by Baroness Smith of Basildon Social Care: Adults To ask Her Majesty’s Government what forecast Question they have made of identifiable expenditure per head on transport in (1) the East of England, (2) England, Asked by Lord Warner and (3) the United Kingdom, in each of the next To ask Her Majesty’s Government what is their three years. [HL4443] estimate of the cost of introducing a cap to individual financial liability for adult social care, as proposed by the Dilnot Commission, if the cap was set at Earl Attlee: The Department for Transport has not (1) £35,000, (2) £50,000, (3) £60,000 and (4) £75,000. made any estimate of the likely level of expenditure in [HL4415] these regions for future years. While we have an overall estimate of the department’s expenditure in each year The Parliamentary Under-Secretary of State, Department up to 2014-15, it is not allocated on a regional basis for of Health (Earl Howe): Caring for our Future: Progress future years because this is dependent on individual Report on Funding Reform published in July 2012 sets spending decisions. out the cost to Government of different levels of the The overall budget is published in the department’s cap. Copies of the document have been placed in the business plan which is updated annually and can be found Library. Pages 33 and 34 demonstrate the costs of caps at the following link: https://www.gov.uk/government/ set at £25,000 with a £7,000 contribution to general uploads/system/uploads/attachment_data/file/3367/ living costs and caps of £35,000, £50,000, £75,000 and dft-2012-business-plan.pdf. £100,000 with a £10,000 contribution to general living costs. In addition, the Autumn Statement 2012 announced a further £1 billion of capital within the spending review Information on a cap of £60,000 is not available. period. Areas in the East of England will benefit from Taxation: Tax Havens a proportion of the £333 million for highways maintenance and can also put forward proposals for the £170 million Question local pinchpoint fund. Asked by Lord Barnett As announced by the Chancellor in the Autumn To ask Her Majesty’s Government, further to Statement, funding allocations for 2015-16 will be the answer by Lord Newby on 9 January (Official announced in the spending round in the first half of Report, col. 126) about tax havens, whether there this year.

Wednesday 16 January 2013

ALPHABETICAL INDEX TO WRITTEN STATEMENTS

Col. No. Col. No. Energy: Warm Front Scheme...... 47 Taxation: Employee Share Schemes...... 50 EU: Agriculture and Fisheries Council...... 48

Wednesday 16 January 2013

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Abortion...... 125 Marriage: Same-sex Weddings ...... 136

Airports: Capacity ...... 125 Mexico: Money Laundering ...... 136

Airports: Gatwick, Heathrow and Stansted ...... 126 NHS: Healthcare Services...... 137

Building Regulations: Electrical Safety ...... 126 Nobel Peace Prize ...... 137

Fluoridation ...... 127 Railways: Fares ...... 138

Freedom of Information Act 2000...... 127 Railways: Rolling Stock ...... 138

Government Departments: Training ...... 128 Schools: Free Schools ...... 139

Health: Ambulance Service...... 128 Shipping: Freedom of Information Act 2000...... 139

Health: Doctors’ Language Tests...... 133 Shipping: General Lighthouse Authorities...... 140

Health: Medical Students ...... 134 Shipping: Navigation and Timing Systems...... 141

Higher Education: Degree Programmes...... 135 Social Care: Adults ...... 141

HMS “St Albans”...... 135 Taxation: Tax Havens ...... 141

Houses of Parliament: Correspondence...... 135 Transport: Expenditure...... 142 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL4034] ...... 139 [HL4384] ...... 140

[HL4035] ...... 139 [HL4392] ...... 135

[HL4056] ...... 128 [HL4397] ...... 135

[HL4101] ...... 137 [HL4407] ...... 138

[HL4315] ...... 136 [HL4408] ...... 138

[HL4370] ...... 136 [HL4409] ...... 138

[HL4371] ...... 136 [HL4410] ...... 138

[HL4380] ...... 127 [HL4415] ...... 141

[HL4380] ...... 139 [HL4421] ...... 125

[HL4381] ...... 140 [HL4425] ...... 134

[HL4382] ...... 141 [HL4429] ...... 140 Col. No. Col. No. [HL4443] ...... 142 [HL4481] ...... 125

[HL4450] ...... 137 [HL4485] ...... 133 [HL4490] ...... 135 [HL4451] ...... 126 [HL4494] ...... 128 [HL4464] ...... 127 [HL4495] ...... 129 [HL4465] ...... 127 [HL4496] ...... 130 [HL4468] ...... 142 [HL4597] ...... 126 Volume 742 Wednesday No. 95 16 January 2013

CONTENTS

Wednesday 16 January 2013 Questions Property: Leasehold Valuation Tribunal...... 683 NHS: Clinical Commissioning Groups ...... 684 Education: School Leavers ...... 687 EU: UK’s National and Trade Interests...... 690 Age of Criminal Responsibility Bill [HL] First Reading ...... 692 Growth and Infrastructure Bill Order of Consideration Motion ...... 692 Legislative Reform (Constitution of Veterinary Surgeons Preliminary Investigation and Disciplinary Committees) Order 2013 Motion to Approve ...... 693 European Union (Croatian Accession and Irish Protocol) Bill Report...... 693 European Union (Approvals) Bill [HL] Report...... 694 Scotland Act 1998 (Modification of Schedule 5) Order 2013 Motion to Approve ...... 694 Health: Medical Innovation Question for Short Debate ...... 756 Grand Committee Enterprise and Regulatory Reform Bill Committee (8th Day)...... GC 241 Written Statements...... WS 47 Written Answers...... WA 125