Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

I beg to move amendment No. 99, in clause 8, page 3, line 26, at end insert

‘, except for functions relating to collection and enforcement exercised under sections 19 to 28 of this Act.’.

The amendment would limit the scope of contracting out under clause 8. At the moment, clause 8 will enable any function of the commission to be contracted out, and I think that it would be inappropriate for certain functions to be contracted out to private organisations. The specific area that the amendment would prevent from being contracted out is the collection and enforcement powers that are specifically in clauses 19 to 28. In a moment, I will go through each of those in turn to explain why I think that contracting out would be inappropriate.

I want to say at the beginning that we very much support tough enforcement and collection powers. Indeed, it is specifically because the enforcement powers are very tough and robust that it would be inappropriate for them to be executed by an organisation to which they had been contracted out. Because they are tough and powerful, they should be exercised by only CMEC itself. It is worth saying that some functions should remain properly within the purview of the public sector and not be contracted out.

The first few clauses about which we are concerned—clauses 19 to 22—relate to collection. I do not want to go through the deduction of earnings orders at the moment because we will have a chance to discuss them later. Although the broad principle of allowing CMEC to take money and apply for deductions of earnings is correct, it is not a power that I would be comfortable having contracted out to a private company or organisation, as that would allow them to seek orders to take money directly from someone’s earnings.

A number of the first few clauses to which the amendment refers relate to such collection mechanisms, be they deductions from earnings, or some lump sum deduction orders. In some senses, however, those are the least objectionable issues. My main concerns about clauses 19 to 28 relate to some of the rightly tough enforcement mechanisms. Clause 25, on the disqualification from holding or obtaining travel authorisation, specifically gives the commission the power to make an order without even having to get the permission of a court. It will be allowed to make an order and to take away a person’s travel documents. That is a tough power, and it is not appropriate for the commission to contract it out and allow others to carry it out on its behalf. Given that the commission has to take into account whether a person needs travel authorisation to earn a living, it is a judgment that the commission should properly have to make, not simply contract out.

When the Minister was talking about the use of important powers to collect fines, he recognised that some of the powers would be disproportionate for that purpose. For the same reason, it would be inappropriate for the commission to contract them out.

Tim Boswell (Daventry, Conservative)

Has my hon. Friend noticed the concern expressed by several hon. Members about practices such as wheel clamping in private car parks, where some of the charges are quite inappropriate or inordinate? CMEC would issue a pretty full and possibly unduly detailed contract to preclude such a thing simply under contract law. I suspect that the Minister will give that type of assurance.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

My hon. Friend makes a good point. In relation to the specific example that he raised, many of us know from constituency casework that private companies can have tough powers to take enforcement measures that can be used disproportionately. The remedies available to individuals and the Members of Parliament acting for them are limited—far more so than they would be if they were dealing even with a non-departmental public body, with recourse at some stage to a Minister.

The applications for curfew orders under clause 26 are potentially very serious. Admittedly, there is a safeguard that the order must be made by a court, but, again, it is not appropriate for the commission to contract out to another organisation to seek from a court an order to limit a person’s liberty, a breach of which could result in imprisonment.

Similarly, clause 27 gives the commission the power to apply to a magistrates court for a warrant committing someone to prison if they have failed to pay the amounts that they owe. We might think that that penalty is appropriately tough, but given its very toughness, a private sector organisation should not be allowed to seek to have an individual imprisoned. That power should properly be exercised by a public body with the appropriate levels of accountability. The public would not be happy to see it contracted out.

Tough enforcement will potentially be one of CMEC’s weapons, whether or not it has to use it, when trying to change the culture to one of compliance. Apart from the principled arguments that I have been making, a danger of contracting out is that the inappropriate use of enforcement powers might drag all the enforcement mechanisms into disrepute—it would not need many inappropriate uses; one might be enough.

Stephen Hesford (PPS (Vera Baird, Solicitor General), Law Officers' Department; Wirral West, Labour)

Does the hon. Gentleman consider running a private prison to be more onerous and exacting than exercising those powers? Contracting out to private prisons that operate such systems has happened for a very long time.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

The hon. Gentleman makes an interesting point, but it is rather outside the scope of the Bill. We are talking about this Bill, not whether such things take place elsewhere.

Anne McGuire (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Stirling, Labour)

That is not a very good answer.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

It is a perfectly good answer. We are talking about this Bill, not another Bill, or another set of arrangements. We can talk about such things in due course in another forum, but I am talking about this Bill. I am being quite frank. It would not need very many examples of organisations misusing these powers to bring the powers into disrepute and to damage the reputation of the commission. That would damage its ability to use the powers, quite properly, to enforce maintenance arrangements.

Andrew Selous (Shadow Minister, Work & Pensions; South West Bedfordshire, Conservative)

An answer to the question about the prison system raised by the hon. Member for Wirral, West is that no one is sent to prison without going through the court system, which is part of the Ministry of Justice. Part of what my hon. Friend the Member for Forest of Dean is talking about is the removal of passports, which is done under an administrative procedure, not a judicial one. He is therefore absolutely right to make that distinction.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

My hon. Friend makes a very good point. One issue that I have not referred to is that without my amendment, the commission will have the power to contract out the making of administrative liability orders. Again, the commission can make those orders without going to a third party—a court—to have them granted.

Stephen Hesford (PPS (Vera Baird, Solicitor General), Law Officers' Department; Wirral West, Labour)

The hon. Member for South-West Bedfordshire has come to the aid of the hon. Member for Forest of Dean, but anyone who knows about running a prison knows that within those four walls there are a lot of exacting administrative judgments in terms of discipline and other enforcements. Those judgments are delegated within the four walls of that private prison, so I repeat my question: does the hon. Gentleman believe that running a private prison is more or less onerous than running these measures?

Christopher Chope (Christchurch, Conservative)

Order. The scope of the Bill is pretty wide, but it does not extend to that matter.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

As I said in my response, we are talking about this Bill. Part of what I am saying relates to the arrangements. I suspect that these measures are very onerous. Therefore, were the commission to contract them out, the complexity involved and the control that would have to be exercised to ensure that the powers  were properly used would frankly make contracting out rather pointless. If the commission has to put those very tough arrangements in place, it may as well do the work itself.

Tim Boswell (Daventry, Conservative)

Will my hon. Friend accept from me, as somebody who’s constituency contains two privately run penal establishments, that the proceedings—including the administrative ones—in such prisons are crawled over at all times by the Home Office monitor? A similar level of control or intervention would therefore be appropriate if there are penal or quasi-penal powers in the case of CMEC.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

I thank my hon. Friend for that helpful intervention Without wishing to stray outside the confines of the Bill, there is nothing in the Bill that would set up a similarly exacting scrutiny function to ensure that these powers will be properly used by an organisation that they are contracted out to. If the Minister wants to retain the powers to contract out in the Bill, he will have to reassure us that there will be some tough enforcement powers. There would need to be a suitable exacting scrutiny function conducted not by CMEC, but by somebody outside the organisation to ensure that those powers were being used appropriately.

We can obviously talk about the specific powers in more detail, when we get to those sections of the Bill, but a cursory look at them shows that they are not the sort of powers that we would necessarily want CMEC to be able to contract out. As the Minister has already mentioned, CMEC would have to assess the efficiency and effectiveness of contracting out. Given the enforcement powers that would be needed to secure compliance, the complexity of contracting them out outweighs any efficiency and benefit that could be derived. Therefore, when we consider contracting out, it would be sensible to narrow the scope.

When we discussed amendment No. 39, other hon. Members wanted to ensure that contracting out was limited specifically to help the main objective of the Bill. On this amendment, I am keen that, where appropriate, tough enforcement powers are used to secure compliance. However, there is an issue of principle, which is who should use those powers. I fear that inappropriate use will damage the commission’s ability to enforce them.

Danny Alexander (Shadow Secretary of State for Work and Pensions, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I have a few brief comments to add. I share quite a lot of the objectives of the hon. Member for Forest of Dean, but I am not convinced that his amendment will fulfil the things that he said in his remarks. He said, and I think that he was right, that in relation to the child support and child maintenance system, the commodity of trust is in short supply. Part of the burden of his argument, which I agree with, is that it will only take a few mistakes by an organisation to which the relevant powers have been contracted out to undermine the precious little trust that there is. The Minister hopes that trust in CMEC will accumulate as it begins to demonstrate its competence, but I hae ma doots about that.

Anne McGuire (Parliamentary Under-Secretary (Minister for Disabled People), Department for Work and Pensions; Stirling, Labour)

Translate it into English for them.

Danny Alexander (Shadow Secretary of State for Work and Pensions, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I greatly doubt that that will happen.

Michael Weir (Spokesperson (Energy; Work and Pensions; Trade & Industry); Angus, Scottish National Party)

The hon. Gentleman gives in too easily.

Danny Alexander (Shadow Secretary of State for Work and Pensions, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I believe in the Union and the free flow of debate and information between Scotland and the rest of the UK. That is definitely outside the scope of the Bill, Mr. Chope, and I shall quickly move on.

The hon. Member for Forest of Dean is trying to make a distinction, which his amendment does not, between taking and implementing decisions. I agree with him 100 per cent. No contracted-out private organisation should be responsible for deciding whether an individual goes to prison. However, whether we like it or not, privately run prisons exist, to which people will be sent to complete their sentence. No private organisation should have the power to take away someone’s driving licence or to decide whether to subject someone to a curfew.

Michael Weir (Spokesperson (Energy; Work and Pensions; Trade & Industry); Angus, Scottish National Party)

I have some sympathy with the hon. Gentleman’s view, but there is a difference between sending someone to prison—I agree with that—and removing passports and other identity documents, for which there is administrative action. The implications would be very serious if—God forbid!—we were to end up with an identity card. I wonder, therefore, whether there is a problem with not only prison, but administrative action. The passport is a state document that allows someone to travel, and surely only the state should have the right to take it away.

Danny Alexander (Shadow Secretary of State for Work and Pensions, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

When we consider clause 25, we will have a proper debate about whether that should be an administrative power or one that is enforced by the courts. In that instance, I think that I would be on the hon. Gentleman’s side.

Tim Boswell (Daventry, Conservative)

In an effort to assist the hon. Gentleman, I would like to make two points. A passport remains at all times the property of the state. Conversely, I would invite him to spend a moment or two over the summer looking at the case of Sir Frederick Crawford, whose passport was removed by the Wilson Government in the late 1960s. It is an example of arbitrary action, and even from a long distance, I remember the matter to this day as an example of the bad practice that we seek to avoid.

Danny Alexander (Shadow Secretary of State for Work and Pensions, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

On the hon. Gentleman’s first point, I do not wish to stray into a debate about clause 25 and how that power should work. We will have plenty of time to do that at the appropriate moment. On the latter point, I shall seek his advice after the Committee about my summer reading list, so that I can become acquainted with that case, which sounds very interesting.

I broadly agree with the hon. Member for Forest of Dean with regard to the powers relating to passports and driving licences in prisons. One of the clauses relates to administrative liability orders, and I hope that in due course we will have a debate about whether they should be an administrative power. None the less, if the clause is accepted and administrative liability orders become a feature of the new system, I share that view of the hon. Member for Forest of Dean that decisions about those orders should be a matter for CMEC. However, is he then saying that the enforcement of that liability order should not be contracted out?

I agree with one of the points that the Minister has made—he has made only a limited number of points with which I agree. For example, during last Thursday’s sitting, we noted that private debt collection agencies have been used by the CSA relatively recently and that they have already pulled in some £3 million of outstanding debt. The fear of private debt collection agencies among non-resident parents has proven to be a powerful tool in encouraging them to come forward, merely on the basis of that threat. I am concerned that if we leave out the clause relating to liability orders, it would stop the use of contracted-out organisations for the enforcement of decisions that should properly be taken by CMEC.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

The hon. Gentleman makes two good points. I drew up the amendment specifically to refer to collection and enforcement powers so as not to damage any existing powers. The second reason is that, as currently drafted, the Bill does not have any restrictions at all on anything. The Minister may consider that my amendment goes a little too far, but given the broad level of agreement that he has achieved on most of the Bill, I would like him to acknowledge that this provision’s scope is far too wide and needs to be narrowed. If he does not do that, while my amendment may not be 100 per cent. perfect, it is an improvement on the Bill.

Danny Alexander (Shadow Secretary of State for Work and Pensions, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I hope that the Minister will make it clear in his response that it is not the Government’s intention for functions relating to decision taking under the clauses to be contracted out, although their implementation may be. Further to what the hon. Member for Forest of Dean has said, I would like to make a broader point in the hope of staving off a clause stand part debate.

Michael Weir (Spokesperson (Energy; Work and Pensions; Trade & Industry); Angus, Scottish National Party)

The hon. Gentleman has drawn a distinction between decision making and enforcement. However, it will still be up to whoever is contracted out to decide on what basis or how enforcement action will be taken. I am not sure that it is possible to make that distinction. CMEC might wish to enforce something and pass the case to a collector, but once it is in the collector’s hands, the method of enforcement becomes a matter for the contracting party. I am not sure that there is an exact distinction.

Danny Alexander (Shadow Secretary of State for Work and Pensions, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

The broader point I wanted to make is relevant to that intervention. The Under-Secretary of State for Work and Pensions, the hon. Member for Stirling, and I were members of the Committee that discussed the Welfare Reform Act 2007, where we had a debate about contracting out. One of the important assurances that she offered, and I hope that her ministerial colleague will do likewise, was to make it clear that provisions in relation to human rights and the Human Rights Act 1998—the Disability Discrimination Act 2005 is also important in this context—will fully apply to any or all agencies to which the functions are contracted out.

I agree with the point made by the hon. Member for Angus, but I hope that the methods that might be used by a contracted-out agency would be restricted by the contract that it has with CMEC and by the provisions  in the two pieces of legislation to which I have referred. Some of the more unpleasant methods of collection could be seen as being carried out on behalf of an arm of the state. That could involve a breach of an individual’s human rights, which would be a very serious constraint, compared with the way in which some of those organisations operate in the private sector. I hope that I have provided some reassurance. None the less, the Minister needs to respond to the burden of the argument, albeit that Liberal Democrats have doubts about the framing of the amendment.

James Plaskitt (Parliamentary Under-Secretary, Department for Work and Pensions; Warwick & Leamington, Labour)

The amendment moved by the hon. Member for Daventry would restrict the commission before it is even set up and running. He is trying to chip away at the range of options that is available to it. I resist his amendment because it begins to gnaw at the basic principle of moving to a commissioning arrangement. However, I hope that I can reassure him that the necessary safeguards are in place to prevent abusive use of the powers that he is talking about.

All the safeguards that would apply to CMEC, if it were doing any of the relevant things, will apply in the same way to any other contracted party carrying out functions on an agency’s behalf. I did not hear the hon. Gentleman object to any of the safeguards in place in respect of CMEC, so I am not sure why he does not understand that those also apply to anybody contracted with CMEC to carry out functions. Exactly the same safeguards and rights of appeal are in place as would be if the commission were carrying out a function.

Tim Boswell (Daventry, Conservative)

I am grateful for that specific assurance. Given the concern in this place about persons financed by local authorities in private care homes not being able to access human rights legislation, however, can the Minister specifically confirm that, in relation to any contracted-out functions of CMEC, the provisions of the Human Rights Act 1998 and of equalities legislation—going rather wider than disability discrimination—will be applicable?

James Plaskitt (Parliamentary Under-Secretary, Department for Work and Pensions; Warwick & Leamington, Labour)

Yes, I can. I maintain that we must equip the commission with the key tools and abilities that it will require to make child maintenance provision in this country a success, which is what we all want. We must ensure that it is able to work with the voluntary and third sector groups and with those with expertise in managing and collecting owed money. That is why clause 8 enables functions to be contracted out if the commission considers it appropriate. However, the commission will retain ultimate accountability for any functions it chooses to delegate.

Sir David Henshaw recommended that the new body should be set up essentially as a commissioning body. We agree that we must enable the commission to carry out its functions as effectively and efficiently as possible, as enshrined in the Bill. That will include benefiting from the skills and experience of external providers. Preventing the commission from contracting out the collection and enforcement powers contained in the Bill between clauses 19 and 28 could have a significant impact on the extent to which it is able to operate effectively and efficiently. If that were done, we would in effect, as I have said, be tying its hands before it even gets going.

I reassure hon. Members that contracting out functions has no effect on the rights of individuals to appeal against decisions. Individuals will retain the same right of appeal against decisions, regardless of whether the commission or another provider makes the day-to-day decisions. Restrictions on the use of personal information are the same, regardless of who is doing the work. In respect of the example that was mentioned—moving to withdraw a passport, for example, for administrative reasons—the decision is appealable in a magistrates court, and the rights of the individual concerned are exactly the same whether that is done by the commission or a contracted party.

We recognise that, in contracting out its functions, the commission will need to ensure that providers deliver high-quality services and high standards of decision making, including all those relevant to enforcement. That can be achieved through careful consideration of the contract terms and rigorous contract management. It will be for the board of CMEC to ensure that that happens. Building the capacity and capability to manage contracts must come before any large-scale contracting out is undertaken, otherwise the commission would be failing in its important, enshrined statutory duty to operate efficiently and effectively.

The commission will, under the range of provisions by which it is accountable to the Secretary of State, have a duty to report on standards of decision making. It will also be required to publish an annual report detailing all activities undertaken in that financial year, including the extent to which it has relied on its power to contract out. The Bill provides for all enforcement powers to have intrinsic safeguards, whoever operates them. For example, only a court can make a curfew order, whoever is carrying out the enforcement function. I hope that I have given the hon. Gentleman the reassurances that he seeks and that he will withdraw the amendment.

Mark Harper (Shadow Minister, Work & Pensions; Forest of Dean, Conservative)

I have listened carefully to the Minister and I am happy to beg to ask leave to withdraw the amendment.